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B-98502, APRIL 22, 1953, 32 COMP. GEN. 473

B-98502 Apr 22, 1953
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PAY - SERVICE CREDITS - CREDIT FOR AVIATION CADET SERVICE UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949 MEMBERS OF THE UNIFORMED SERVICES ARE AUTHORIZED TO COUNT FOR BASIC PAY PURPOSES ALL SERVICE CREDITABLE FOR SUCH PURPOSE UNDER ANY LAW IN EFFECT ON THE EFFECTIVE DATE OF SAID SECTION. INASMUCH AS LAWS WHICH ENTITLE MEMBERS TO COUNT FOR LONGEVITY PAY PURPOSES ACTIVE SERVICE AS APPOINTED AVIATION CADETS IN THE NAVAL RESERVE AND MARINE CORPS RESERVE WERE IN EFFECT ON SUCH DATE. WHILE ACTIVE SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE OF MARINE CORPS RESERVE IS SERVICE WHICH MAY BE COUNTED FOR DETERMINING ELIGIBILITY FOR RETIREMENT UNDER LAWS WHICH REQUIRE ACTIVE FEDERAL SERVICE WITHOUT REGARD TO COMPONENT.

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B-98502, APRIL 22, 1953, 32 COMP. GEN. 473

PAY - SERVICE CREDITS - CREDIT FOR AVIATION CADET SERVICE UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949 MEMBERS OF THE UNIFORMED SERVICES ARE AUTHORIZED TO COUNT FOR BASIC PAY PURPOSES ALL SERVICE CREDITABLE FOR SUCH PURPOSE UNDER ANY LAW IN EFFECT ON THE EFFECTIVE DATE OF SAID SECTION, AND THEREFORE, INASMUCH AS LAWS WHICH ENTITLE MEMBERS TO COUNT FOR LONGEVITY PAY PURPOSES ACTIVE SERVICE AS APPOINTED AVIATION CADETS IN THE NAVAL RESERVE AND MARINE CORPS RESERVE WERE IN EFFECT ON SUCH DATE, ENLISTED AND WARRANT PERSONNEL, AS WELL AS COMMISSIONED PERSONNEL, MAY COUNT ACTIVE SERVICE AS AVIATION CADETS FOR BASIC PAY PURPOSES. WHILE ACTIVE SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE OF MARINE CORPS RESERVE IS SERVICE WHICH MAY BE COUNTED FOR DETERMINING ELIGIBILITY FOR RETIREMENT UNDER LAWS WHICH REQUIRE ACTIVE FEDERAL SERVICE WITHOUT REGARD TO COMPONENT, NO PROVISION OF LAW AUTHORIZES THE COUNTING OF SUCH SERVICE AS COMMISSIONED SERVICE FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT, THEREFORE ACTIVE SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE OR MARINE CORPS RESERVE MAY NOT BE COUNTED AS COMMISSIONED SERVICE FOR DETERMINING ELIGIBILITY FOR RETIREMENT UNDER STATUTES WHICH AUTHORIZE RETIREMENT AFTER 20 YEARS OF SERVICE, TEN YEARS OF WHICH ARE REQUIRED TO BE ACTIVE COMMISSIONED SERVICE. SECTION 412 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES THAT, FOR THE PURPOSE OF TITLE IV OF THAT ACT RELATING TO RETIREMENT, RETIREMENT PAY, AND SEPARATION AND SEVERANCE PAY FOR PHYSICAL DISABILITY, THE TERM "ACTIVE SERVICE" SHALL BE INTERPRETED TO MEAN FOR THE PERSONNEL INDICATED "ALL SERVICE AS A MEMBER OF THE UNIFORMED SERVICES," WHILE ON ACTIVE DUTY, AND THEREFORE, ACTIVE SERVICE AS APPOINTED AVIATION CADETS IN THE NAVAL RESERVE OR MARINE CORPS RESERVE, IS "SERVICE AS A MEMBER OF THE UNIFORMED SERVICES," WITHIN THE MEANING OF THAT SECTION.

ASSISTANT COMPTROLLER YATES TO THE SECRETARY OF DEFENSE, APRIL 22, 1953:

REFERENCE IS MADE TO LETTER OF NOVEMBER 22, 1952, FROM THE DEPUTY SECRETARY OF DEFENSE REQUESTING DECISION AS TO WHETHER DECISION OF MAY 22, 1952, B-98502 (31 COMP. GEN. 610), MAY BE CONSTRUED AS AUTHORIZING THE COUNTING OF SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE (1) AS SERVICE FOR BASE PAY PURPOSES BY ALL MEMBERS OF THE UNIFORMED SERVICES, (2) AS SERVICE FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT AFTER 20 OR 30 YEARS OF SERVICE, AND (3) AS SERVICE WITHIN THE MEANING OF SECTION 412 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 824.

THE ACT OF APRIL 15, 1935, 49 STAT. 156, CREATED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE THE SPECIAL SEPARATE GRADE OF AVIATION CADET AND PROVIDED FOR THE APPOINTMENT OF AVIATION CADETS BY THE SECRETARY OF THE NAVY. THAT ACT WAS REPEALED BY SECTION 15 (A) OF THE NAVAL RESERVE AND MARINE CORPS RESERVE THE SPECIAL ENLISTED GRADE OF AVIATION CADET, BUT PROVIDED IN SECTION 14 THEREOF THAT AVIATION CADETS PREVIOUSLY APPOINTED BY THE SECRETARY OF THE NAVY, AS DISTINGUISHED FROM AVIATION CADETS ENLISTED PURSUANT TO THAT ACT, SHALL CONTINUE TO SERVE UNDER SUCH APPOINTMENTS UNTIL COMMISSIONED OR DISCHARGED FROM THE NAVAL SERVICE.

THE FIRST PROVISO OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1177, PROVIDED---

THAT FOR THE PURPOSE OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE, ACTIVE SERVICE IN THE GRADE OF AVIATION CADET SHALL BE CONSIDERED AS COMMISSIONED SERVICE.

SECTION 14 OF THE NAVAL AVIATION CADET ACT OF 1942 ALSO PROVIDED THAT THE ACTIVE SERVICE OF APPOINTED AVIATION CADETS, AS DISTINGUISHED FROM THAT OF AVIATION CADETS ENLISTED PURSUANT TO THAT ACT---

* * * SHALL BE CONSIDERED AS COMMISSIONED SERVICE FOR THE PURPOSE OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE.

SECTION 15 (F) OF SUCH ACT PROVIDES---

SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1177) IS HEREBY AMENDED BY DELETING THEREFROM THE FIRST PROVISO THEREOF * * *.

IN THE SAID DECISION OF MAY 22, 1952, IT WAS HELD THAT, UNDER THE FOREGOING STATUTORY PROVISIONS, OFFICERS OF THE REGULAR NAVY AND REGULAR MARINE CORPS, AS WELL AS COMMISSIONED OFFICERS OF THE RESERVE COMPONENTS OF SUCH SERVICES, WERE ENTITLED TO COUNT SERVICE AS APPOINTED NAVAL AVIATION CADETS FOR PAY PURPOSES.

IN EXPLAINING TO THE SENATE COMMITTEE ON NAVAL AFFAIRS THE LANGUAGE WHICH BECAME THAT OF SECTION 15 (F) OF THE NAVAL AVIATION CADET ACT OF 1942, REAR ADMIRAL RANDALL JACOBS, THEN CHIEF OF NAVAL PERSONNEL, STATED---

THE FIRST PROVISO OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 PROVIDES THAT FOR THE PURPOSE OF COMPUTING INCREASES OF PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE, ACTIVE SERVICE IN THE GRADE OF AVIATION CADET SHALL BE CONSIDERED AS COMMISSIONED SERVICE. THE COMPUTING OF ACTIVE SERVICE IN THE APPOINTIVE GRADE OF AVIATION CADET FOR PAY PURPOSES HAS BEEN PRESERVED IN SECTION 14 ABOVE. HOWEVER, ENLISTED SERVICE AS AN AVIATION CADET SHOULD NOT BE CONSIDERED AS COMMISSIONED SERVICE FOR THE PURPOSE OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE.

SEE PAGE 9 OF THE SENATE HEARINGS OF JULY 27, 1942, ON H.R. 7364, WHICH BECAME THE NAVAL AVIATION CADET ACT OF 1942. PRIOR TO THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AMENDING THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, GENERALLY OFFICERS COULD COUNT ONLY COMMISSIONED SERVICE FOR LONGEVITY PAY PURPOSES, HENCE THE SPECIAL PROVISIONS AUTHORIZING THE COUNTING OF ACTIVE SERVICE OF APPOINTED AVIATION CADETS AS COMMISSIONED SERVICE THEREFOR.

UNDER THE PROVISIONS OF SECTIONS 8 AND 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 363, WARRANT OFFICERS AND ENLISTED MEN WERE AUTHORIZED TO COUNT ACTIVE FEDERAL SERVICE IN THE SERVICES MENTIONED IN THE TITLE OF THAT ACT OR RESERVE COMPONENTS THEREOF, INCLUDING SERVICE IN THE NAVAL RESERVE AND MARINE CORPS RESERVE, WITHOUT REGARD TO THE CAPACITY IN WHICH SUCH SERVICE WAS PERFORMED, AND HENCE, UNDER THE PROVISIONS OF THAT ACT, WARRANT OFFICERS AND ENLISTED MEN COULD COUNT SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE FOR LONGEVITY PAY PURPOSES. SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, APPROVED OCTOBER 12, 1949, AND EFFECTIVE OCTOBER 1, 1949, PROVIDES THAT IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE, MEMBERS SHALL BE CREDITED WITH---

(6) ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.

SINCE COMMISSIONED OFFICERS, WARRANT OFFICERS, ENLISTED MEN WERE AUTHORIZED TO COUNT, FOR PAY PURPOSES, SERVICE AS APPOINTED AVIATION CADETS UNDER THE LAWS IN EFFECT ON AND BEFORE OCTOBER 1, 1949, YOU ARE ADVISED, IN ANSWER TO THE FIRST QUESTION, THAT ENLISTED AND WARRANT PERSONNEL, AS WELL AS COMMISSIONED PERSONNEL, PRESENTLY MAY COUNT SERVICE AS APPOINTED AVIATION CADETS FOR BASIC PAY PURPOSES.

ACTIVE SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE OR MARINE CORPS RESERVE IS SERVICE WHICH MAY BE COUNTED FOR DETERMINING ELIGIBILITY FOR RETIREMENT UNDER LAWS WHICH REQUIRE FOR THAT PURPOSE ACTIVE FEDERAL SERVICE WITHOUT REGARD TO COMPONENT AND, OF COURSE, IS ACTIVE SERVICE IN THE NAVAL RESERVE AND MARINE CORPS RESERVE FOR THAT PURPOSE. WHILE THE ABOVE-QUOTED PROVISIONS OF LAW AUTHORIZED THE COUNTING OF THE ACTIVE SERVICE OF APPOINTED AVIATION CADETS AS COMMISSIONED SERVICE FOR THE PURPOSE OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE, THERE HAS BEEN FOUND NO PROVISION OF LAW AUTHORIZING THE COUNTING OF SUCH SERVICE AS COMMISSIONED SERVICE FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT. AS INDICATED ABOVE, THE APPARENT PURPOSE OF THE ABOVE QUOTED PROVISIONS OF T*E 1938 AND 1942 ACTS WAS TO AUTHORIZE THE COUNTING OF SUCH SERVICE FOR LONGEVITY PAY PURPOSES, SINCE THE LAWS IN EFFECT AT THE TIME OF ENACTMENT THEREOF DID NOT PERMIT COMMISSIONED OFFICERS TO COUNT ANY SERVICE OTHER THAN COMMISSIONED SERVICE FOR LONGEVITY PAY PURPOSES. HENCE ACTIVE SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE MAY NOT BE COUNTED AS COMMISSIONED SERVICE FOR DETERMINING ELIGIBILITY FOR RETIREMENT UNDER STATUTES WHICH AUTHORIZE RETIREMENT AFTER 20 YEARS OF SERVICE, OF WHICH AT LEAST TEN YEARS IS REQUIRED TO BE ACTIVE COMMISSIONED SERVICE.

SECTION 412 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 824, PROVIDES THAT FOR THE PURPOSE OF TITLE IV OF THAT ACT RELATING TO RETIREMENT, RETIREMENT PAY, SEPARATION AND SEVERANCE PAY FOR PHYSICAL DISABILITY, THE TERM "ACTIVE SERVICE" SHALL BE INTERPRETED TO MEAN FOR THE PERSONNEL INDICATED THEREIN "ALL SERVICE AS A MEMBER OF THE UNIFORMED SERVICES," WHILE ON ACTIVE DUTY OF FULL-TIME TRAINING PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW. SINCE AVIATION CADETS WERE APPOINTED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE, WHICH ARE COMPONENTS OF THE UNIFORMED SERVICES, CLEARLY ACTIVE SERVICE AS AVIATION CADETS APPOINTED THEREIN IS "SERVICE" AS A MEMBER OF THE UNIFORMED SERVICES," WITHIN THE MEANING OF THAT SECTION.

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