B-167666, AUG. 22, 1969

B-167666, AUG. 22, 1969

MILITARY - RETIRED PAY DECISION TO CERTIFYING OFFICER OF COAST GUARD, HOLDING THAT CONSTRUCTIVE SERVICE AUTHORIZED FOR PROMOTION PURPOSES FOR RESERVE OFFICERS IS NOT CREDITABLE FOR PAY PURPOSES. THE FACT THAT AN ADMINISTRATIVE PUBLICATION ERRONEOUSLY SUGGESTED THAT CONSTRUCTIVE SERVICE IS CREDITABLE FOR PAY PURPOSES DOES NOT PROVIDE ANY BASIS FOR SUCH CREDIT.

TO MR. R. H. MILLS:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1969, REQUESTING A DECISION WHETHER THE CONSTRUCTIVE CREDIT AUTHORIZED BY SECTION 201 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, APPROVED SEPTEMBER 3, 1954, CH. 1257, 68 STAT. 1150, NOW CODIFIED IN 14 U.S.C. 773 AS TO THE COAST GUARD, MAY BE COUNTED IN COMPUTING BASIC PAY.

SECTION 773 OF TITLE 14, U.S. CODE, READS IN PERTINENT PART WITH RESPECT TO CONSTRUCTIVE SERVICE UPON INITIAL APPOINTMENT AS FOLLOWS:

"UPON APPOINTMENT AS A COAST GUARD RESERVE OFFICER, A PERSON MAY BE PLACED IN A COMMENSURATE POSITION ON THE RESERVE LINEAL LIST TO REFLECT HIS COMBINED YEARS OF EXPERIENCE, EDUCATION, AND SUCH OTHER QUALIFICATIONS AS MAY BE PRESCRIBED BY REGULATIONS PROMULGATED BY THE SECRETARY. ANY SUCH PERSON WHO IS APPOINTED FOR THE PURPOSE OF OR WITH A VIEW TO ASSIGNMENT OR DESIGNATION AS A LAW SPECIALIST OF THE COAST GUARD RESERVE SHALL, FOR PURPOSES OF THIS SUBCHAPTER ONLY, BE CREDITED WITH A MINIMUM AMOUNT OF SERVICE IN AN ACTIVE STATUS OF THREE YEARS * * *.'

IN ITS REPORT ON H.R. 6573, 83RD CONGRESS, WHICH BECAME THE ACT OF SEPTEMBER 3, 1954, THE COMMITTEE ON ARMED SERVICES OF THE HOUSE OF REPRESENTATIVES SAID WITH RESPECT TO SECTION 201 THAT:

"INCLUDED IN TITLE II OF THE BILL IS THE AUTHORIZATION FOR THE APPROPRIATE SECRETARY TO GRANT CONSTRUCTIVE CREDIT FOR PROMOTION PURPOSES TO PERSONS INITIALLY APPOINTED AS RESERVE OFFICERS, BASED UPON THEIR PAST EXPERIENCE, EDUCATION, AND OTHER QUALIFICATIONS. PERSONS INITIALLY APPOINTED AS MEDICAL, DENTAL, VETERINARY, JAG, OR CHAPLAIN OFFICERS WOULD BE GRANTED MINIMUM CONSTRUCTIVE CREDIT.' H.R. REPT. NO. 1026, 83RD CONG., 1ST SESS. 4. THE SECTIONAL ANALYSIS OF THE BILL IS TO THE SAME EFFECT. SEE PAGE 20 OF THAT REPORT.

THERE IS NOTHING IN THE RESERVE OFFICER PERSONNEL ACT OF 1954 OR IN ITS LEGISLATIVE HISTORY WHICH INDICATES THAT THE CONGRESS INTENDED THAT THE CONSTRUCTIVE CREDIT AUTHORIZED IN THAT ACT SHOULD BE COUNTED IN THE COMPUTATION OF BASIC PAY. WHERE CONGRESS HAS INTENDED THAT SERVICE SHOULD BE COUNTED IN COMPUTING BASIC PAY IT HAS SPECIFICALLY SO AUTHORIZED. SEE 37 U.S.C. 205. THE FACT THAT AN ADMINISTRATIVE PUBLICATION MAY HAVE ERRONEOUSLY SUGGESTED THAT THE CONSTRUCTIVE SERVICE AUTHORIZED BY SECTION 201 OF THE 1954 ACT IS CREDITABLE FOR PAY PURPOSES PROVIDES NO BASIS FOR A DIFFERENT ANSWER.