B-98929, MARCH 21, 1951, 30 COMP. GEN. 378

B-98929, MARCH 21, 1951, 30 COMP. GEN. 378

PAY - RETIRED - PUBLIC HEALTH SERVICE OFFICERS ON ACTIVE DUTY WITH COAST GUARD - ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 A NAVAL RESERVE OFFICER WHO SERVED AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE ON ACTIVE DUTY WITH THE UNITED STATES COAST GUARD MAY NOT BE REGARDED AS HAVING PERFORMED SUCH SERVICE "IN THE STATUS OF A COMMISSIONED OFFICER * * * IN THE * * * UNITED STATES COAST GUARD," WITHIN THE MEANING OF SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, SO AS TO PERMIT THE INCLUSION OF SUCH SERVICE IN THE COMPUTATION OF HIS RETIRED PAY UNDER SECTION 303 OF THE ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 21, 1951:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1950, REQUESTING DECISION AS TO WHETHER A COMMISSIONED OFFICER IN THE MEDICAL CORPS RESERVE WHO WAS TRANSFERRED TO THE U.S. NAVAL RESERVE RETIRED LIST PURSUANT TO THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 MAY COUNT SERVICE AS A COMMISSIONED MEDICAL OFFICER OF THE PUBLIC HEALTH SERVICE FROM FEBRUARY 1 TO DECEMBER 25, 1916, IN THE COMPUTATION OF HIS RETIRED PAY UNDER SECTION 303 OF THE SAID ACT. IT IS STATED THAT DURING SUCH PERIOD THE OFFICER SERVED ON ACTIVE DUTY WITH THE UNITED STATES COAST GUARD ON BOARD THE U.S. COAST GUARD CUTTER SENECA.

SECTION 302 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1087, 34 U.S.C. 440I, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY REORGANIZED NATIONAL GUARD PRIOR TO 1933, THE UNITED STATES NAVY INCLUDING THE RESERVE COMPONENTS THEREOF, THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, OR THE UNITED STATES COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF, AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFORE, BE GRANTED RETIRED PAY * * *.

THE SAID SECTION 302 (A) INCLUDES ONLY PERSONS WHO HAVE PERFORMED "SATISFACTORY FEDERAL SERVICE" IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES, THE AIR FORCE OF THE UNITED STATES, THE UNITED STATES NAVY, AND UNITED STATES MARINE CORPS, OR THE UNITED STATES COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF, AND EXTENDS THE RETIRED PAY BENEFITS OF THE ACT ONLY TO PERSONS WHO HAVE COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF "SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES.'

SECTION 303 OF THE ACT, 62 STAT. 1088 (34 U.S.C. 440J), PROVIDES THAT ANY PERSON GRANTED RETIRED PAY PURSUANT TO SUCH PROVISIONS SHALL RECEIVE SUCH PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY WHICH HE WOULD RECEIVE, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD DURING THE ENTIRE PERIOD OF SERVICE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF 360 DAYS PER YEAR), WHICH SHALL CONSIST OF, INTER ALIA,"ALL PERIODS OF ACTIVE FEDERAL SERVICE.'

SECTION 306 (D) OF THE ACT, 62 STAT. 1090 (34 U.S.C. 440M (D) (, PROVIDES:

THE TERM "ACTIVE FEDERAL SERVICE" SHALL INCLUDE ALL PERIODS OF ANNUAL TRAINING DUTY AND ALL PRESCRIBED PERIODS OF ATTENDANCE AT SUCH SCHOOLS AS HAVE BEEN, OR MAY BE DESIGNATED AS SUCH BY THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE AIR FORCE FOR THEIR RESPECTIVE SERVICES, OR BY LAW, OR ANY OTHER PERIOD OF TIME WHEN ORDERED TO ACTIVE DUTY UNDER COMPETENT FEDERAL ORDERS.

ALTHOUGH NEITHER SECTION 303 NOR 306 (D) INCLUDES WORDS SPECIFICALLY LIMITING THE TERM "ACTIVE FEDERAL SERVICE," AS USED THEREIN, TO DUTY IN THE "AFORESAID SERVICES" EXPRESSLY NAMED IN SECTION 302, THERE IS NOTHING IN THE ACT REQUIRING THE CONCLUSION THAT THE CONGRESS INTENDED THEREBY TO INCLUDE ANY OTHER FEDERAL SERVICE WITHIN THE GENERAL SCOPE OF THE ACT OR TO AUTHORIZE INCREASED RETIRED PAY THEREUNDER FOR FEDERAL SERVICE GENERALLY HAVING NO RELATION TO THE SERVICE FOR WHICH A RIGHT TO RETIRED PAY IS GRANTED BY SECTION 302.

NO MENTION IS MADE IN SECTION 303, NOR IN ANY OTHER SECTION OF THE ACT, OF SERVICE PERFORMED IN THE STATUS OF A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE, EVEN THOUGH SUCH SERVICE MAY HAVE BEEN PERFORMED WITH THE ARMY, NAVY, OR COAST GUARD.

IT IS SUGGESTED IN YOUR LETTER, HOWEVER, THAT THE OFFICER MAY BE ENTITLED TO COUNT SUCH PERIOD OF SERVICE AS A PUBLIC HEALTH SERVICE OFFICER IN THE COMPUTATION OF HIS RETIRED PAY ON THE BASIS THAT AS A COMMISSIONED OFFICER IN SUCH SERVICE WOULD BE ENTITLED TO "FULL MILITARY BENEFITS," AS DEFINED IN SECTION 212 OF THE PUBLIC HEALTH SERVICE ACT, 58 STAT. 689, 42 U.S.C. 213. THAT SECTION PROVIDES THAT COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE SHALL BE ENTITLED TO "FULL MILITARY BENEFITS" WITH RESPECT TO ACTIVE SERVICES PERFORMED WHILE DETAILED FOR DUTY WITH THE ARMY, NAVY, OR COAST GUARD. SUBSECTION (A) THEREOF DEFINES "FULL MILITARY BENEFITS" AS MEANING ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW IN THE CASE OF COMMISSIONED OFFICERS OF THE ARMY ON ACCOUNT OF ACTIVE MILITARY SERVICE, INCLUDING BURIAL PAYMENTS, SIX MONTHS' DEATH GRATUITY, VETERANS' COMPENSATION AND PENSIONS, ET CETERA,"EXCLUDING, HOWEVER, RETIRED PAY.' SINCE SUCH PROVISION EXPRESSLY EXCLUDES RETIRED PAY, IT SEEMS CLEAR THAT IT DOES NOT GIVE THIS OFFICER ANY RIGHT TO INCREASED RETIRED PAY UNTIL TITLE III OF THE SAID ACT OF JUNE 29, 1948, HERE INVOLVED. THAT TITLE SPECIALLY PROVIDES FOR RETIRED PAY FOR A PARTICULAR CLASS OF MEMBERS OR FORMER MEMBERS OF THE ARMED SERVICES WHOSE STATUS IS SUCH THAT THEY WOULD NOT OTHERWISE BE ENTITLED TO ANY MILITARY OR NAVAL RETIREMENT BENEFITS AND, IN ADDITION TO PRESCRIBING IN DETAIL THE REQUIREMENTS WHICH MUST BE MET IN ORDER TO QUALIFY FOR SUCH RETIREMENT PAY, IT SPECIFICALLY PRESCRIBES THE SERVICE WHICH MAY BE INCLUDED IN ESTABLISHING SUCH RIGHT. SERVICE GENERALLY AS A PUBLIC HEALTH SERVICE OFFICER IS NOT INCLUDED AND NO SUFFICIENT BASIS IS FOUND TO CONSIDER SERVICE AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE UNDER THE CIRCUMSTANCES HERE INVOLVED AS HAVING BEEN PERFORMED "IN THE STATUS OF A COMMISSIONED OFFICER * * * IN THE * * * UNITED STATES COAST GUARD," WITHIN THE MEANING OF SECTION 302 OF THE ACT SO AS TO PERMIT INCLUSION OF SUCH SERVICE IN THE COMPUTATION OF THE OFFICER'S RETIRED PAY UNDER SECTION 303 OF THE ACT. IT FOLLOWS THAT THE QUESTION SUBMITTED MUST BE ANSWERED IN THE NEGATIVE.