B-79843, JUNE 16, 1949, 28 COMP. GEN. 713

B-79843, JUNE 16, 1949, 28 COMP. GEN. 713

PAY - ACTIVE DUTY AND RETIRED - RETIRED NAVY ENLISTED MAN COMMISSIONED IN COAST GUARD A RETIRED NAVY ENLISTED MAN WHO, PURSUANT TO SECTION 3 OF THE ACT OF JULY 23, 1947, WAS APPOINTED AS A COAST GUARD OFFICER MAY BE REGARDED AS HAVING BEEN "ENLISTED," WHILE ON THE NAVY RETIRED LIST, WITHIN THE MEANING OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SO THAT INACTIVE TIME ON SUCH RETIRED LIST MAY BE COUNTED IN COMPUTING HIS ACTIVE- DUTY PAY AS A COAST GUARD OFFICER ON THE ACTIVE LIST; AND UPON RETIREMENT UNDER SECTION 3 OF THE ACT OF JANUARY 28, 1915, WITH MORE THAN 30 YEARS' SERVICE CREDITABLE TOWARD RETIREMENT, SUCH OFFICER IS ENTITLED TO COUNT INACTIVE TIME ON THE NAVY RETIRED LIST IN COMPUTING HIS RETIRED PAY AS A COAST GUARD OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO M. C. REDFORD, TREASURY DEPARTMENT, JUNE 16, 1949:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF THE TREASURY, YOUR LETTER OF AUGUST 2, 1948, IN WHICH YOU REQUEST DECISION AS TO WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF LIEUTENANT COMMANDER LEROY E. KUHNS, UNITED STATES COAST GUARD, IN THE AMOUNT OF $412.50, FOR RETIRED PAY FOR THE MONTH OF JULY 1948. THE SPECIFIC QUESTIONS WHICH HAVE ARISEN IN THE INSTANT CASE ARE STATED IN YOUR LETTER, AS FOLLOWS:

(A) MAY LIEUTENANT COMMANDER KUHNS, UNDER THE PROVISIONS OF SECTION 3A OF THE ACT OF JUNE 16, 1942 ( PUBLIC LAW 607-77TH CONGRESS), AS AMENDED BY THE ACT OF SEPTEMBER 7, 1944 ( PUBLIC LAW 421 78TH CONGRESS), BE CREDITED FOR ALL PAY PURPOSES WITH HIS PERIOD OF SERVICE ON THE RETIRED LIST OF THE NAVY, ON DISCHARGE THEREFROM AND ACCEPTANCE OF COMMISSION IN THE COAST GUARD, OR

(B) IF THE ANSWER TO (A) IS IN THE NEGATIVE, MAY LIEUTENANT COMMANDER KUHNS BE CREDITED FOR ALL PAY PURPOSES WITH THE PERIOD OF SERVICE BETWEEN DATE OF APPROVAL OF HIS RETIREMENT, 9 JUNE 1948, AND ASSUMPTION OF RETIRED STATUS, 1 JULY 1948?

IT IS UNDERSTOOD THAT LIEUTENANT COMMANDER KUHNS WAS APPOINTED IN THE COAST GUARD ON FEBRUARY 3, 1948, PURSUANT TO SECTION 3 OF THE ACT OF JULY 23, 1947, PUBLIC LAW 219, 61 STAT. 410, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED TO APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, PERMANENT COMMISSIONED OFFICERS IN THE COAST GUARD IN RANKS APPROPRIATE TO THEIR QUALIFICATIONS, EXPERIENCE, AND LENGTH OF SERVICE, AS THE NEEDS OF THE COAST GUARD MAY REQUIRE AND AS ARE FOUND BY THE SECRETARY OF THE TREASURY, AS THE RESULT OF SUCH EXAMINATIONS AS HE MAY DEEM NECESSARY, TO BE MENTALLY, MORALLY, PROFESSIONALLY, AND PHYSICALLY QUALIFIED, FROM AMONG THE FOLLOWING CATEGORIES:

(6) PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION OF THE DEPARTMENT OF COMMERCE, AND THE BUREAU OF CUSTOMS OF THE TREASURY DEPARTMENT, WHO WERE TRANSFERRED FROM THOSE BUREAUS TO THE COAST GUARD BY EXECUTIVE ORDER 9083, DATED FEBRUARY 28, 1942 (7 F.R. 1609), AND BY REORGANIZATION PLAN NUMBERED 3, EFFECTIVE JULY 16, 1946 (11 F.R. 7875), AND WHO ON MARCH 1, 1942, HELD THE CIVIL-SERVICE RATING OF CAF-9 OR P-3, OR ABOVE.

SECTION 12 OF THE SAME ACT, 61 STAT. 413, PROVIDES AS FOLLOWS:

ANY PERSON DESCRIBED IN CATEGORY (6) OF SECTION 3, CATEGORY (7) OF SECTION 5, OR CATEGORY (5) OF SECTION 6 WHO IS COMMISSIONED, APPOINTED, OR ENLISTED PURSUANT TO THE PROVISIONS OF THIS ACT SHALL NOT BE ENTITLED TO ANY RETIREMENT BENEFITS UNDER ANY LAWS RELATING TO THE RETIREMENT OF CIVILIAN PERSONNEL OF THE FEDERAL GOVERNMENT, BUT SHALL BE ENTITLED UPON CLAIM THEREFOR TO A RETURN OF THE TOTAL CONTRIBUTIONS MADE BY HIM TO THE RETIREMENT FUND WITH INTEREST THEREON AND, IN ADDITION, TO ELIGIBILITY FOR RETIREMENT BENEFITS PROVIDED BY LAW FOR MEMBERS OF THE REGULAR COAST GUARD, HE SHALL, IF HIS TOTAL SERVICE IN THE FEDERAL GOVERNMENT, CIVIL PLUS MILITARY, IS FIFTEEN YEARS OR OVER, BE ENTITLED, UPON REACHING THE STATUTORY RETIREMENT AGE FOR MILITARY PERSONNEL OF THE REGULAR COAST GUARD, TO RETIREMENT PAY AMOUNTING TO 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF SUCH RETIREMENT; AND, IN THE ADMINISTRATION OF APPLICABLE LAWS FOR PHYSICAL DISABILITY RETIREMENT, A DISABILITY SHALL BE DEEMED TO HAVE BEEN INCURRED INCIDENT TO COAST GUARD SERVICE IF THE CAUSE OF SUCH DISABILITY IS NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR MISCONDUCT.

PRIOR TO SUCH APPOINTMENT IN THE COAST GUARD IT APPEARS THAT LIEUTENANT COMMANDER KUHNS ENLISTED IN THE NAVY APRIL 25, 1905, AND WAS HONORABLY DISCHARGED NOVEMBER 21, 1908, HAVING BEEN ABSENT OVER LEAVE THREE DAYS DURING THAT ENLISTMENT; THAT HE REENLISTED JULY 20, 1914, AND WAS HONORABLY DISCHARGED JULY 30, 1919; AND THAT HE REENLISTED JULY 31, 1919, AND WAS TRANSFERRED TO THE FLEET NAVAL RESERVE NOVEMBER 22, 1924. FURTHER APPEARS THAT HE WAS RECALLED TO ACTIVE DUTY MARCH 2, 1926, AND WAS RELEASED FROM ACTIVE DUTY SEPTEMBER 28, 1926; THAT HE WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY DECEMBER 1, 1936; AND THAT HE WAS DISCHARGED FROM THE RETIRED LIST FEBRUARY 2, 1948, TO ACCEPT APPOINTMENT IN THE COAST GUARD. IT IS STATED THAT LIEUTENANT COMMANDER KUHNS APPLIED FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JANUARY 28, 1915, 14 U.S.C. 175, ON COMPLETION OF MORE THAN 30 YEARS' SERVICE; THAT HIS APPLICATION FOR RETIREMENT WAS APPROVED BY THE SECRETARY OF THE TREASURY, FOR THE PRESIDENT, ON JUNE 9, 1948, TO BE EFFECTIVE JULY 1, 1948, IN ACCORDANCE WITH THE ACT OF APRIL 23, 1940 (1930), 5 U.S.C. 47A; AND THAT ON JULY 1, 1948, HE WAS PLACED ON THE RETIRED LIST OF THE COAST GUARD. ALSO, IT IS INDICATED IN YOUR LETTER THAT, IN ADDITION TO THE 18 YEARS AND 2 MONTHS' ACTIVE NAVAL SERVICE, LIEUTENANT COMMANDER KUHNS HAD 21 YEARS, 10 MONTHS, AND 9 DAYS OF SERVICE AS A CIVILIAN EMPLOYEE OF THE UNITED STATES WHICH ARE CREDITABLE UNDER SECTION 11 OF PUBLIC LAW 219, SUPRA, 61 STAT. 412, IN COMPUTING LENGTH OF SERVICE FOR PURPOSE OF RETIREMENT, OR IN EXCESS OF 30 YEARS' CREDITABLE SERVICE FOR PURPOSES OF RETIREMENT IN THE COAST GUARD.

PRESUMABLY, THERE IS NO QUESTION CONCERNING LIEUTENANT COMMANDER KUHNS' RIGHT TO COUNT ACTIVE NAVAL SERVICE (18 YEARS AND 2 MONTHS) AND INACTIVE SERVICE IN THE FLEET NAVAL RESERVE (11 YEARS, 5 MONTHS, AND 11 DAYS) FOR LONGEVITY PAY PURPOSES ON THE SAME BASIS AS ANY OTHER OFFICER OF THE COAST GUARD, THE ONLY DOUBT IN THE MATTER BEING WHETHER HE IS ENTITLED TO COUNT INACTIVE TIME ON THE RETIRED LIST OF THE NAVY IN COMPUTING HIS RETIRED PAY AS AN OFFICER OF THE COAST GUARD.

SECTIONS 1 AND 3A OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, PROVIDE, INTER ALIA, THAT OFFICERS OF THE COAST GUARD SHALL RECEIVE AN INCREASE OF FIVE PERCENTUM OF THE BASE PAY OF THEIR GRADES FOR EACH THREE YEARS OF SERVICE UP TO 30 YEARS, AND, IN COMPUTING THEIR SERVICE FOR ALL PAY PURPOSES, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY ARE "ENLISTED" IN THE NAVY AND IN THE NAVAL RESERVE. IN DECISION OF JANUARY 19, 1943, 22 COMP. GEN. 664, THERE WAS CONSIDERED THE QUESTION WHETHER RETIRED ENLISTED MEN AND WARRANT OFFICERS OF THE NAVY WHO ARE APPOINTED TO TEMPORARY WARRANT OR COMMISSIONED RANK AFTER RECALL TO ACTIVE DUTY MAY COUNT, IN THE COMPUTATION OF THEIR ACTIVE DUTY PAY, THE INACTIVE TIME BETWEEN THE EFFECTIVE DATE OF THEIR RETIREMENT AND THE DATE OF RECALL TO ACTIVE DUTY, AND IT WAS STATED IN PERTINENT PART AS FOLLOWS:

"* * * HOWEVER, IN CONNECTION WITH RETIRED PERSONNEL APPOINTED TO COMMISSIONED RANK, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 3A OF THE ACT OF JUNE 16, 1942, ADDED TO SUCH ACT BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, SUPRA. BY SECTION 3A, OFFICERS PAID UNDER THE PROVISIONS OF SECTIONS 1 AND 3 OF THE ACT OF JUNE 16, 1942, DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND SIX MONTHS THEREAFTER ARE ENTITLED TO COUNT, IN ADDITION TO THE TIME AUTHORIZED BY THOSE SECTIONS, ALL PERIODS "DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS" IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT OR IN THE OTHER SERVICES EXPRESSLY MENTIONED. WITH RESPECT TO THE WARTIME PAY IN THEIR COMMISSIONED RANK OF RETIRED ENLISTED MEN AND WARRANT OFFICERS TEMPORARILY APPOINTED AND SERVING AS COMMISSIONED OFFICERS, THE QUESTIONS ARE WHETHER ENLISTED MEN ON THE RETIRED LIST WERE "ENLISTED" IN ANY OF THE SERVICES MENTIONED AND WHETHER RETIRED WARRANT OFFICERS WHILE ON THE RETIRED LIST "HELD APPOINTMENTS" AS WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED, WITHIN THE CONTEMPLATION OF SAID SECTION 3A. WITH RESPECT TO THE STATUS OF ENLISTED MEN AND NONCOMMISSIONED PERSONNEL ON THE RETIRED LIST IT WAS STATED IN 1 COMP. GEN. 700, 702, THAT:

"ENLISTED MEN ON THE RETIRED LIST ARE NOW AS MUCH A PART OF THE ARMY OR NAVY, RESPECTIVELY, AS RETIRED COMMISSIONED OR WARRANT OFFICERS ARE. MERE NOMENCLATURE IS NOT MATERIAL, AND I SEE NO GROUND FOR DISTINCTION AMONG RETIRED ENLISTED MEN BETWEEN THOSE RANKING AS NONCOMMISSIONED OFFICERS OF THE ARMY OR PETTY OFFICERS OF THE NAVY AND THOSE RANKING BELOW SUCH NONCOMMISSIONED OR PETTY OFFICERS. * * *"

ARTICLE 1712 (2), NAVY REGULATIONS 1920, PROVIDES THAT AT TIME OF RETIREMENT OF ENLISTED MEN OF THE NAVY NO DISCHARGE WILL BE GIVEN AND THE RETIRED ENLISTED MAN WILL BE REGARDED AS CONTINUING IN THE SERVICE UPON THE RETIRED LIST. SEE, ALSO, 34 U.S.C. 433, PROVIDING FOR THE ORDERING OF RETIRED WARRANT OFFICERS AND ENLISTED MEN TO ACTIVE DUTY. IT IS CLEAR THAT RETIRED ENLISTED MEN AND WARRANT OFFICERS OF THE NAVY REMAIN A PART OF THE SERVICE AFTER RETIREMENT AND IN VIEW OF THE OTHER INACTIVE SERVICE WHICH SECTION 3A AUTHORIZED TO BE COUNTED DURING WARTIME, THE CONCLUSION THAT THE CONGRESS INTENDED TO EXCLUDE THE INACTIVE SERVICE OF ENLISTED MEN AND WARRANT OFFICERS ON THE RETIRED LIST WOULD NOT BE JUSTIFIED. WHILE ON THE RETIRED LIST THEY WERE "ENLISTED" OR "HELD APPOINTMENTS AS WARRANT OFFICERS" WITHIN THE MEANING OF SECTION 3A OF THE ACT OF JUNE 16, 1942.

THE SO-CALLED "WAR TIME PAY" PROVISIONS OF SECTION 3 A OF THE ACT OF JUNE 16, 1942, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, REFERRED TO IN SAID DECISION WERE MADE PERMANENT BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729.

ON THE BASIS OF THE SAID DECISION OF JANUARY 19, 1943, IT SEEMS REASONABLY CLEAR THAT LIEUTENANT COMMANDER KUHNS, WHILE ON THE RETIRED LIST OF THE NAVY, WAS "ENLISTED" WITHIN THE MEANING OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SO AS TO ENTITLE HIM TO COUNT INACTIVE TIME ON SUCH RETIRED LIST IN COMPUTING HIS ACTIVE DUTY PAY AS AN OFFICER ON THE ACTIVE LIST OF THE COAST GUARD. SEE, ALSO, 23 COMP. GEN. 59, 66.

IT IS UNDERSTOOD THAT LIEUTENANT COMMANDER KUHNS WAS RETIRED PURSUANT TO PROVISIONS OF SECTION 3 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 801, 802, 14 U.S.C. 175, 2, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * A COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MAN (OF THE COAST GUARD) WHO HAS SERVED THIRTY YEARS, UPON SUITABLE APPLICATION AND AS TO COMMISSIONED OFFICERS UPON APPROVAL BY THE SECRETARY OF THE TREASURY, MAY BE RETIRED FROM ACTIVE SERVICE AND RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY, OF SERVICE FOR ANY PURPOSE ALL CREDITABLE SERVICE IN THE * * * NAVY * * * SHALL BE INCLUDED * * *.

UNDER THE PROVISIONS OF THE SAID SECTION 3, AN OFFICER OTHERWISE ELIGIBLE FOR RETIREMENT IS ENTITLED, UPON RETIREMENT, TO RETIRED PAY OF "SEVENTY- FIVE PERCENTUM OF THE DUTY PAY, SALARY AND INCREASE OF HIS GRADE," WHICH, IN EFFECT, MEANS 75 PERCENTUM OF THE ACTIVE DUTY PAY, WITH LONGEVITY CREDIT, OF THE GRADE OR RANK IN WHICH SERVING AT THE TIME OF RETIREMENT. AT THE TIME OF RETIREMENT, LIEUTENANT COMMANDER KUHNS WAS ENTITLED TO INCLUDE INACTIVE TIME ON THE RETIRED LIST OF THE NAVY IN COMPUTING HIS ACTIVE DUTY PAY AS AN OFFICER OF THE COAST GUARD, AND, WHILE THE INSTANT CASE PRESENTS THE UNUSUAL SITUATION OF A PERSON RETIRING FROM THE UNITED STATES COAST GUARD (NOT FOR DISABILITY OR AGE) FOLLOWING APPROXIMATELY FOUR MONTHS OF COMMISSIONED SERVICE UNDER AN ORIGINAL APPOINTMENT THEREIN, HIS TOTAL SERVICE, ACTIVE AND INACTIVE, IN THE NAVAL SERVICE PRIOR TO RETIREMENT AS AN OFFICER OF THE COAST GUARD EXCEEDED 30 YEARS. HENCE, SINCE LIEUTENANT COMMANDER KUHNS HAS COMPLETED OVER 30 YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES, AND ASSUMING THAT HE IS A LINE OFFICER (SEE THIRD PARAGRAPH OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED), HE IS ENTITLED TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF THE SIXTH PERIOD, INCREASED BY 50 PERCENTUM FOR LONGEVITY, OR $412.50 PER MONTH (THREE FOURTHS OF $550). ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.