B-207185 L/M, JUL 20, 1982

B-207185 L/M, JUL 20, 1982

PRECIS-UNAVAILABLE

MARIO BIAGGI, HOUSE OF REPRESENTATIVES:

YOUR LETTER DATED MARCH 31, 1982, WITH ENCLOSURES, REQUESTS OUR VIEWS REGARDING THE ELIGIBILITY OF YOUR CONSTITUTENT, LIEUTENANT COMMANDER DENNIS A. ROLAND, USNR, RETIRED, TO RECEIVE ADDITIONAL SERVICE CREDITS FOR A PERIOD OF DETENTION BY ENEMY FORCES DURING WORLD WAR II FOR THE PURPOSE OF INCREASING HIS RETIRED PAY ENTITLEMENT.

THE QUESTION ASKED IS WHETHER MR. ROLAND IS ENTITLED TO RECEIVE MILITARY SERVICE CREDITS FOR THE TIME HE WAS INTERNED BY THE JAPANESE DURING WORLD WAR II AFTER HE WAS CAPTURED WHILE SERVING AS AN AMERICAN MERCHANT SEAMAN. IT IS OUR VIEW THAT HE IS NOT ENTITLED TO BE CREDITED WITH THAT TIME FOR MILITARY SERVICE.

MR. ROLAND WAS EMPLOYED AS A PROFESSIONAL MERCHANT SEAMAN, A CIVILIAN OCCUPATION, ABOARD CIVILIAN VESSELS BEFORE, AT THE TIME OF, AND AFTER THE OUTBREAK OF WORLD WAR II. IN ADDITION TO HIS STATUS AS A MERCHANT SEAMAN, HE WAS A MEMBER OF THE MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, THROUGHOUT THE SAME PERIOD.

IN THE LATTER PART OF 1942, HE WAS SERVING ABOARD THE M/V SAWOKLA AS A LICENSED MERCHANT MARINE 2ND OFFICER. ON NOVEMBER 29, 1942, HIS SHIP WAS SUNK IN THE INDIAN OCEAN AND HE AND THE OTHER SURVIVORS OF HIS SHIP WERE TAKEN CAPTIVE. THEY WERE TAKEN TO SINGAPORE, TRANSFERRED TO JAPANESE MILITARY CONTROL AND IMPRISONED. WHILE IT APPEARS THAT HE SHOULD HAVE BEEN TREATED AS A CIVILIAN INTERNEE, FOR REASONS NOT COMPLETELY CLEAR, MR. ROLAND WAS PLACED IN PRISONER-OF-WAR CAMPS AND REMAINED THERE, UNTIL HE WAS LIBERATED BY THE ALLIED FORCES ON SEPTEMBER 7, 1945.

WHILE MR. ROLAND WAS A PRISONER OF WAR HE WAS TREATED AS THE OTHER PRISONERS OF WAR, PERFORMING THE SAME DUTIES AND SUFFERING THE SAME PRIVATION. IT IS ALSO INDICATED THAT WITH PASSAGE OF TIME, HE BECAME A SPOKESMAN FOR A SIZEABLE NUMBER OF THE PRISONERS OF WAR IN THESE CAMPS.

IT IS SUGGESTED IN THE ENCLOSURES, INCLUDING AN OPINION WHICH YOU SECURED FROM PENROSE L. ALBRIGHT, ESQUIRE, THAT BECAUSE HE WAS PLACED IN PRISONER- OF-WAR CAMPS AND TREATED AS A PRISONER OF WAR BY THE JAPANESE RATHER THAN AS A CIVILIAN INTERNEE, HE BECAME A PRISONER OF WAR UNDER THE GENEVA CONVENTION. FURTHER, SINCE HE ACTED AS SPOKESMAN FOR OTHERS, WAS ACCEPTED AS SUCH BY THE JAPANESE, AND PERFORMED ALL THE DUTIES OF LEADERSHIP AS THOUGH HE HELD A MILITARY POSITION, HE WAS CLOTHED WITH SUFFICIENT COLOR OF MILITARY AUTHORITY SO AS TO VEST HIM WITH A MILITARY POSITION. AND, IN VIEW OF THE FACT THAT HE HAD THE LEGAL STATUS AS AN INACTIVE MEMBER OF THE NAVAL RESERVE, HE CONSTRUCTIVELY BECAME A NAVY MEMBER ON ACTIVE DUTY FROM THE TIME OF HIS CAPTURE ON NOVEMBER 29, 1942, UNTIL HIS LIBERATION ON SEPTEMBER 7, 1945. FURTHER, OUR ATTENTION IS INVITED TO THE FACT THAT DURING THE PERIOD OF HIS DETENTION HE WAS OFFERED A COMMISSION BY THE NAVY. IN THIS CONNECTION, IT IS SUGGESTED THAT THE DECISION IN HOSKIN V. RESOR, 324 F.SUPP. 271 (D.C.D.C. 1971) WOULD CONTROL MR. ROLAND'S ENTITLEMENT. WE BELIEVE THAT CASE IS DISTINGUISHABLE FROM MR. ROLAND'S SITUATION.

THE PROVISIONS GOVERNING COMPUTATION OF YEARS OF SERVICE FOR RETIRED PAY PURPOSES UNDER CHAPTER 67, U.S.C. WHICH ARE PRESUMABLY APPLICABLE IN MR. ROLAND'S CASE, ARE CONTAINED IN 10 U.S.C. 1333. THAT SECTION PROVIDES IN PART:

"FOR THE PURPOSE OF COMPUTING THE RETIRED PAY OF A PERSON UNDER THIS CHAPTER, HIS YEARS OF SERVICE AND ANY FRACTION OF SUCH A YEAR ARE COMPUTED BY ADDING -

"HIS DAYS OF ACTIVE SERVICE; AND BY DIVIDING THE SUM OF THAT ADDITION BY 360."

IN THIS CONNECTION, 10 U.S.C. 1334 PROVIDES IN PART:

"(A) SERVICE IN AN INACTIVE STATUS MAY NOT BE COUNTED IN ANY COMPUTATION OF YEARS OF SERVICE UNDER THIS CHAPTER. ***"

THUS, UNDER THE LAW, IN ORDER FOR MR. ROLAND TO BE CREDITED FOR ALL OR PART OF THE PERIOD IN QUESTION, HE WOULD HAVE TO BE A MEMBER OF AN ARMED FORCE ON ACTIVE DUTY AT THAT TIME.

ACCORDING TO THE ENCLOSURES WITH YOUR LETTER, MR. ROLAND, WHO WAS EMPLOYED IN THE CIVILIAN OCCUPATION AS A MERCHANT SEAMAN, BECAME A MEMBER OF THE UNITED STATES NAVAL RESERVE (MERCHANT MARINE NAVAL RESERVE INACTIVE) ON OR ABOUT DECEMBER 14, 1937, UNDER THE AUTHORITY OF TITLE III OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 1985, 1992, AND THE ACT OF FEBRUARY 28, 1925, CH. 374, 43 STAT. 1080. UPON ENACTMENT OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175, WHICH ABOLISHED THE 1925 NAVAL RESERVE ACT, MR. ROLAND'S STATUS UNDER THE 1925 ACT WAS ASSIMILATED INTO THE 1938 ACT AND HE AUTOMATICALLY BECAME A MEMBER OF THE MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, 34 U.S.C. 853 (1946), ALSO AN INACTIVE STATUS. OTHER THAN PERFORMING TWO 2-WEEK PERIODS OF TRAINING DUTY, ONE IN 1938 AND THE OTHER IN 1939, MR. ROLAND WAS NOT REQUIRED TO PERFORM ANY TYPE OF ACTIVE DUTY TRAINING AS A MEMBER OF THE MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE. THUS, UNLESS IT CAN BE SHOWN THAT HE WAS CALLED OR ORDERED TO ACTIVE DUTY IN THE NAVY AS A MEMBER OF THE UNITED STATES NAVAL RESERVE, PRIOR TO HIS CAPTURE, HE MAY NOT BE CONSIDERED AS BEING IN AN ACTIVE DUTY STATUS IN THE NAVY DURING ANY PART OF WORLD WAR II.

IT IS NOTED THAT PRIOR TO THE OUTBREAK OF WORLD WAR II, THE REGULATIONS GOVERNING MEMBERSHIP IN THE MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, WERE CONTAINED IN 34 C.F.R., 1940 SUPP. SECTION 6.1207 OF THOSE REGULATIONS PROVIDED IN PART:

"*** THE PURPOSE OF THE MERCHANT MARINE RESERVE IS TO PROVIDE OFFICERS AND MEN FOR SERVICE ON MERCHANT VESSELS AND TO PROVIDE OFFICERS DIRECTLY CONNECTED WITH THE OPERATION AND MANAGEMENT OF SUCH VESSELS WHEN COMMISSIONED IN THE NAVY. ***"

SECTION 6.1208 PROVIDED IN PART:

"(A) THE MERCHANT MARINE RESERVE SHALL BE COMPOSED OF THOSE MEMBERS OF THE NAVAL RESERVE WHO FOLLOW, OR WHO HAVE WITHIN 3 YEARS FOLLOWED THE SEA AS A PROFESSION, OR WHO ARE EMPLOYED IN CONNECTION WITH THE SEAFARING PROFESSION. ***"

AND SECTION 6.1311 PROVIDED:

"EXCEPT THAT IT IS THE POLICY TO TRAIN MEMBERS OF THE MERCHANT MARINE RESERVE *** FOR SERVICE IN THEIR OWN VESSELS, THIS CLASS IS UNORGANIZED."

THOSE REGULATIONS REMAINED UNCHANGED THROUGHOUT WORLD WAR II.

IT IS EVIDENT FROM THE FOREGOING, THAT THE MERCHANT MARINE RESERVE REPRESENTED A BODY OF INDIVIDUALS WHO FOLLOWED THE SEA AS THEIR PROFESSION AND WHO COULD BE CALLED TO ACTIVE DUTY IN THE NAVY AS A MEMBER OF THE UNITED STATES NAVY RESERVE, SHOULD THE NEED ARISE. IT IS INDICATED, GENERALLY, THAT SO LONG AS THEY CONTINUE IN SUCH SEAFARING PROFESSION, THEY REMAINED A MEMBER OF THAT RESERVE AND WERE NOT LIABLE FOR TRAINING AND SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, CH. 720, 54 STAT. 885. BASICALLY SINCE THE MERCHANT MARINE RESERVE WAS UNORGANIZED, THE STATUS OF THESE INDIVIDUALS AS MEMBERS OF THE MERCHANT MARINE RESERVE WAS INACTIVE.

UNDER OTHER PROVISIONS OF TITLE 10, U.S.C. SERVICE AND ACTIVE DUTY ARE DEFINED AS HAVING THE SAME MEANING, THAT IS, IT IS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. 10 U.S.C. 101(22) AND (24). THE CREATION OF A STATUS AS A MEMBER OF AN ARMED FORCE AND ITS CONTINUED EXISTENCE ARE SOLELY DEPENDENT UPON STATUTES ENACTED BY CONGRESS. ADAMS V. CLIFFORD, 294 F.SUPP. 1318 (D.C.HAWAII 1969). SEE ALSO MAYER V. UNITED STATES, 201 CT.CL. 105 (1973). ONCE SUCH A STATUS IS ESTABLISHED IT MAY NOT BE ALTERED BY THE INDIVIDUAL IN THE ABSENCE OF POSITIVE CONSENT BY THE UNITED STATES. SEE BELL V. UNITED STATES, 366 U.S. 393 (1961), AND PFILE V. CORCORAN, FORCE IN AN INACTIVE STATUS DOES NOT ACQUIRE AN ACTIVE DUTY STATUS WITHOUT THE POSITIVE CONSENT OF THE UNITED STATES. HE MUST BE CALLED OR ORDERED TO ACTIVE DUTY IN ORDER TO ACHIEVE AN ACTIVE DUTY STATUS. SEE GENERALLY, CHAPTER 39 OF TITLE 10, UNITED STATES CODE.

THERE DOES NOT SEEM TO BE ANY QUESTION THAT MR. ROLAND WAS A CIVILIAN SEAMAN AND AN INACTIVE MEMBER OF THE MERCHANT MARINE RESERVE, U. S. NAVAL RESERVE, PRIOR TO HIS CAPTURE. WE ARE URGED TO ACCEPT THE VIEW THAT AT THE TIME OF HIS CAPTURE HIS STATUS WAS CHANGED BY CIRCUMSTANCES TO THAT OF AN ACTIVE DUTY MEMBER OF THE NAVAL RESERVE.

OF SIGNIFICANCE TO SUCH A VIEW IS THE STATEMENT OF THE SUPREME COURT IN BELL V. UNITED STATES, 366 U.S. 393 (1960) AT PAGE 410:

"*** IN THE ARMED FORCES THE TERM 'ACTIVE SERVICE' HAS A PRECISE MEANING, A MEANING NOT DEPENDENT UPON INDIVIDUAL CONDUCT. 10 U.S.C. 101. MOREOVER, THE VERBAL STRUCTURE OF THE ACT (MISSING PERSONS ACT), RE-ENFORCED BY COMMON SENSE, CLEARLY LEADS TO THE CONCLUSION THAT 'ACTIVE SERVICE' REFERS TO A PERSON'S STATUS AT THE TIME HE BECAME MISSING. ***"

THUS, MR. ROLAND'S STATUS WAS CONTROLLED BY THE CIVILIAN INACTIVE RESERVE STATUS HE WAS IN IMMEDIATELY PRIOR TO HIS CAPTURE. THE FACT THAT THE NAVY, DURING THE TIME OF HIS IMPRISIONMENT AND BEING UNAWARE OF HIS PLIGHT, TENDERED THE OFFER OF A COMMISSION TO HIM CANNOT BE CONSTRUED AS APPOINTING HIM AS A COMMISSIONED OFFICER AND ORDERING HIM TO ACTIVE DUTY.

WHILE THE SUGGESTION HAS BEEN MADE THAT THE HOSKIN CASE, CITED ABOVE, IS SIMILAR TO COMMANDER ROLAND'S, WE CANNOT AGREE. HOSKIN MUST BE DISTINGUISHED FROM COMMANDER ROLAND'S CASE ON THE FACTS ALONE. THE BASIC QUESTION IN HOSKIN WAS WHETHER INDIVIDUALS RECRUITED AND GIVEN COMMISSIONS IN RUSSIAN RAILWAY SERVICE WERE MEMBERS OF THE UNITED STATES ARMY. THE QUESTION OF WHETHER IT WAS INACTIVE STATUS HAD NO BEARING ON THE CASE. THE SOLE QUESTION WAS WHETHER THE RUSSIAN RAILWAY SERVICE CORPS WAS PART OF THE UNITED STATES MILITARY FORCES. IN COMMANDER ROLAND'S SITUATION THE MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, EXISTED SOLELY FOR THE PURPOSE OF PROVIDING A QUALIFIED POOL OF MERCHANT SEAMEN WHO IN TIME OF NEED COULD BE CALLED INTO THE U. S. NAVY AND ORDERED TO ACTIVE DUTY. UNTIL SUCH TIME AS THEY WERE ORDERED TO DUTY, THEY REMAINED CIVILIAN MERCHANT SEAMEN AND IN THE ABSENCE OF BEING ORDERED TO ACTIVE DUTY COULD NOT BE CONSIDERED AS IN AN ACTIVE DUTY STATUS IN THE ARMED FORCES OF THE UNITED STATES.

FURTHERMORE, WE CANNOT ACCEPT THE VIEW THAT MR. ROLAND WAS CLOTHED WITH COLOR OF TITLE TO A MILITARY APPOINTMENT DURING THIS PERIOD. GENERALLY, CASES HOLDING THAT AN INDIVIDUAL HAS COLOR OF TITLE TO AN OFFICE INVOLVE IRREGULARITIES IN THE APPOINTMENT PROCESS. SEE BENNETT V. UNITED STATES, 19 CT.CL. 379 (1884). IN MR. ROLAND'S CASE THERE WAS NO APPOINTMENT OR CALL TO ACTIVE DUTY AND THEREFORE THE QUESTION OF THE LEGAL SUFFICIENCY OF AN APPOINTMENT IS NOT RAISED.

IN VIEW OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT MR. ROLAND WAS A CIVILIAN MERCHANT SEAMAN AT THE TIME OF HIS CAPTURE AND REMAINED IN THAT STATUS DURING HIS DETENTION BY ENEMY FORCES. ACCORDINGLY, IT IS OUR VIEW THAT THIS PERIOD MAY NOT BE CONSIDERED ACTIVE DUTY MILITARY SERVICE.

WE NOTE THAT BILLS HAVE BEEN INTRODUCED IN THE CONGRESS WHICH WOULD ALLOW CREDIT FOR PERIODS OF TIME CIVILIANS WERE HELD IN ENEMY PRISONER OF-WAR CAMPS AND SIMILAR PLACES UNDER FEDERAL RETIREMENT PROGRAMS. SEE S. 407, 95TH CONGRESS, 1ST SESS. S. 1114, 94 CONGRESS, 1ST SESS. AND H.R. 2517, 96TH CONGRESS, 1ST SESS. HOWEVER, TO DATE NONE OF THESE BILLS HAVE BEEN ENACTED INTO LAW.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY AND REGRET A FAVORABLE RESPONSE CANNOT BE MADE.