B-99853, MARCH 1, 1951, 30 COMP. GEN. 361

B-99853, MARCH 1, 1951, 30 COMP. GEN. 361

PAY - RETIRED - CADET OR MIDSHIPMAN SERVICES - COMPUTATION UNDER CAREER COMPENSATION ACT OF 1949 OFFICERS OF THE REGULAR SERVICES RETIRED PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 WHO ELECT TO HAVE THEIR RETIRED PAY COMPUTED UNDER THE METHODS PROVIDED IN SECTION 402 (D) OR 511 OF THE ACT MAY NOT INCLUDE SERVICE AS A CADET AT THE MILITARY ACADEMY OR AS A MIDSHIPMAN AT THE NAVAL ACADEMY AS ACTIVE SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING THEIR RETIRED PAY.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MARCH 1, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1950, WHEREIN YOU REQUEST DECISION AS TO WHETHER UNDER THE PROVISIONS OF SECTIONS 412 AND 511 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, RETIRED OFFICERS WHO WERE IN THE SERVICE ON JUNE 30, 1922, AND WHO SERVED CONTINUOUSLY IN THEIR RESPECTIVE SERVICES UNTIL THEIR RETIREMENTS, THUS BEING ENTITLED TO INCLUDE SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY, IF APPOINTED THERETO PRIOR TO AUGUST 24, 1912, AND AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, IF APPOINTED THERETO PRIOR TO MARCH 4, 1913, IN THE COMPUTATION OF THEIR ACTIVE DUTY PAY, MAY INCLUDE SUCH SERVICE IN THE COMPUTATION OF THEIR "ACTIVE SERVICE" CREDIT IN THE EVENT THEY ELECT TO HAVE THEIR RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THE SAID ACT. IT IS ASSUMED THAT YOU HAVE REFERENCE TO OFFICERS OF THE REGULAR SERVICES RETIRED PRIOR TO THE ENACTMENT OF THE 1949 ACT.

AS YOU POINT OUT IN YOUR LETTER, UNDER THE LAWS IN EFFECT PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, THE OFFICERS REFERRED TO WERE ENTITLED TO INCLUDE IN THE COMPUTATION OF THEIR SERVICE FOR PAY PURPOSES CADET SERVICE AT THE UNITED STATES ACADEMY, IF APPOINTED THERETO PRIOR TO AUGUST 24, 1912, AND MIDSHIPMAN SERVICE AT THE UNITED STATES NAVAL ACADEMY IF APPOINTED THERETO PRIOR TO MARCH 4, 1913. 7 COMP. GEN. 463.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, RELATES GENERALLY TO PERSONS THERETOFORE RETIRED FOR PHYSICAL DISABILITY WHO ARE RECEIVING OR ARE ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY, AND PERSONS THERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY FOR PHYSICAL DISABILITY AND IT PROVIDES THAT SUCH PERSONS---

* * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

SECTION 402 (D) OF THE ACT, 63 STAT. 818, PROVIDES, IN PERTINENT PART, THAT---

* * * A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT * * * BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY * * * AT THE TIME OF RETIREMENT * * * PROVIDED FURTHER, THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING * * * AT THE TIME OF HIS RETIREMENT * * *.

SECTION 412, 63 STAT. 824, PROVIDES THAT---

FOR THE PURPOSES OF THIS TITLE, THE TERM "ACTIVE SERVICE" SHALL BE INTERPRETED TO MEAN (1) FOR MEMBERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES AND FOR THOSE MEMBERS, FORMER MEMBERS, AND PERSONS REFERRED TO IN SECTION 411 (1), (3), AND (4), ALL SERVICE AS A MEMBER OF THE UNIFORMED SERVICES, OR AS A NURSE, OR AS A CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, OR AS A RESERVE NURSE SUBSEQUENT TO FEBRUARY 2, 1901, OR AS A CONTRACT DENTAL SURGEON, OR AS AN ACTING DENTAL SURGEON, OR AS A VETERINARIAN IN THE QUARTERMASTER DEPARTMENT, CAVALRY, OR FIELD ARTILLERY, OR AS AN ARMY FIELD CLERK OR AS A FIELD CLERK, ARMY QUARTERMASTER CORPS, WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL- TIME TRAINING OR OTHER FULL TIME DUTY 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, INCLUDING PARTICIPATION IN EXERCISES OR PERFORMANCES OF THE DUTIES PROVIDED FOR BY SECTIONS 5, 81, 92, 94, 97 AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, OR ALL SERVICE WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON HAS OR IS DEEMED TO HAVE PURSUANT TO LAW FOR THE PURPOSE OF SEPARATION OR MANDATORY ELIMINATION FROM THE ACTIVE LIST OF HIS UNIFORMED SERVICE; (2) FOR MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES, OTHER THAN COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, AND FOR FORMER MEMBERS REFERRED TO IN SECTION 411 (2) THAT SERVICE WHICH IS EQUAL TO THE NUMBER OF YEARS WHICH WOULD BE USED BY SUCH MEMBERS OR FORMER MEMBERS AS A MULTIPLIER IN THE COMPUTATION OF THEIR RETIRED PAY PURSUANT TO SECTION 303 OF THE ACT OF JUNE 29, 1948 (CH. 708, 62 STAT. 1088); AND (3) FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, HERETOFORE RETIRED FOR PHYSICAL DISABILITY OR HEREAFTER RETIRED OR SEPARATED FOR PHYSICAL DISABILITY PURSUANT TO THIS ACT, IN ADDITION TO THE SERVICE CREDITABLE AS ACTIVE SERVICE UNDER (1) ABOVE, THEIR SERVICE, OTHER THAN COMMISSIONED SERVICE, WITH THE PUBLIC HEALTH SERVICE.

AND SECTION 511, 63 STAT. 829, PROVIDES, IN PERTINENT PART, THAT---

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS. (A) THE MONTHLY RETIRED PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * * PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER * * * OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST * * *.

IT WILL BE NOTED THAT IN DETERMINING THE PERCENTAGE FACTOR BY WHICH THE MONTHLY BASIC PAY IS TO BE MULTIPLIED UNDER BOTH SECTION 402 (D) AND 511 THE SERVICE TO BE COUNTED MUST HAVE BEEN SERVICE AS A MEMBER OF THE UNIFORMED SERVICES OR SERVICE IN OTHER SPECIFICALLY ENUMERATED STATUTES, NOT INCLUDING SERVICE AS A CADET OR A MIDSHIPMAN, AND SECTION 102 (B) OF THE ACT, 63 STAT. 804, DEFINES THE TERM "MEMBER," UNLESS OTHERWISE QUALIFIED, AS MEANING "A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES.' HENCE, SUCH TERM, AS USED IN THE ACT, MAY NOT BE CONSTRUED AS INCLUDING A CADET AT THE MILITARY ACADEMY OR A MIDSHIPMAN AT THE NAVAL ACADEMY. CF. DECISION OF JULY 28, 1850, B- 94929, 30 COMP. GEN. 31. HENCE, THE OFFICERS IN QUESTION MAY NOT INCLUDE SERVICE AS CADETS OR MIDSHIPMEN AT THE ACADEMIES IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING THEIR RETIRED PAY. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.