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The amendment was intended to provide PHS officers with a retirement system parallel to the existing retirement systems of military and naval officers. Since military and naval officers were then prohibited from receiving retirement credit for academy attendance. The same prohibition was. Clarke was a cadet at the Coast Guard Academy from July 6. He was a midshipman at the Naval Academy from September 9. This is the source of controversy in this case. The PHS reports that its position is predicated on the provisions of subsection 971(b) of title 10. The plaintiff in the Jacobs case was a Coast Guard officer who claimed additional service credit for retirement purposes for the time he had spent in attendance at the Coast Guard Academy.

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B-228663, Aug 4, 1988

CIVILIAN PERSONNEL - Compensation - Retirement compensation - Computation - Service credits DIGEST: In 1960 Congress amended the retirement laws applicable to Public Health Service (PHS) officers to permit them to receive credit for "all active service in any of the uniformed services" for retirement purposes. The amendment was intended to provide PHS officers with a retirement system parallel to the existing retirement systems of military and naval officers. Since military and naval officers were then prohibited from receiving retirement credit for academy attendance, the same prohibition was, by implication, necessarily intended to remain in effect for PHS officers. Hence, academy attendance may not be counted as "active service" under the PHS retirement laws, and a PHS officer may not be allowed payment on his claim for an increase in his retired pay based on his earlier attendance at the Coast Guard and Naval Academies.

Dr. Robert F. Clarke - Public Health Service Officer - Retired Pay - Service Credit:

Dr. Robert F. Clarke, a retired officer of the Public Health Service, claims additional retired pay on the basis of the 5 years he spent as a cadet at the Coast Guard Academy and as a midshipman at the Naval Academy between 1949 and 1954. We deny his claim.

BACKGROUND

Dr. Clarke was a cadet at the Coast Guard Academy from July 6, 1949, to September 8, 1950. He was a midshipman at the Naval Academy from September 9, 1950, until his graduation on June 4, 1954. Following the completion of his subsequent period of obligated active service as a commissioned officer in the armed forces, he returned to school and obtained a doctoral degree qualifying him for an appointment as an officer of the Commissioned Corps of the Public Health Service (PHS). He then joined the PHS and spent the remainder of his career in the federal service with that agency. He retired as a Regular PHS officer holding the position of scientist, director, grade (0-6), on October 1, 1984.

Upon Dr. Clarke's retirement, the PHS credited him with the completion of 27 years and 7 months of active service for retirement purposes. received no service credit based on his attendance at the Coast Guard and Naval Academies between 1949 and 1954. This is the source of controversy in this case, since Dr. Clarke would be eligible for retired pay at an increased rate if he could properly count his academy time as "active service" for PHS retirement purposes.

The PHS reports that its position is predicated on the provisions of subsection 971(b) of title 10, United States Code, and the Court of Appeals' judgment in the case of Jacobs v. United States, 680 F.2d 88 (9th Cir. 1982). In 1982, subsection 971(b) expressly prohibited only officers of the Army, Navy, Marine Corps and Air Force from counting time spent as an academy student in computing the length of their creditable service for any purpose. The plaintiff in the Jacobs case was a Coast Guard officer who claimed additional service credit for retirement purposes for the time he had spent in attendance at the Coast Guard Academy. He contended that his claim should be allowed because neither 10 U.S.C. Sec. 971(b) nor any other provision of statute then in effect expressly prohibited Coast Guard officers from counting service credit for academy attendance for retirement purposes. The Court of Appeals denied his claim and concluded, at page 90, 680 F.2d:

"In light of the legislative history accompanying Sec. 971(b) and its predecessor provisions, and the fact that the government's position promotes equality of treatment among the officers of all five branches of military service and is consistent with 70 years of uniform administrative practice, we hold that Sec. 971(b) applies to Coast Guard officers to the same extent as it does to officers of the other service branches."

The PHS suggests that this reasoning is equally applicable in Dr. Clarke's case.

Dr. Clarke disagrees. He notes that while the PHS is defined by statute as one of the seven "uniformed services," it is not included as one of the five "armed forces" of military services. 10 U.S.C. Sec. 101(4); 37 U.S.C. Sec. 101(3). He also notes that generally there are significant differences between the laws governing the administration of the armed forces and those applicable to the PHS. He notes further that in 1984 Congress amended 10 U.S.C. Sec. 971(b) to prohibit by express terms the receipt by Coast Guard officers of service credit for academy attendance. The amendment did not also extend the prohibition to PHS officers, however, and Dr. Clarke suggests this indicates that Congress intended to allow PHS officers to have service credit for academy attendance. In that regard, he points out that cadets and midshipmen have long been recognized as members of the armed forces during the period of their attendance at an academy, and he suggests that PHS officers should therefore be allowed service credit for any time spent as a cadet or midshipman, since no express statutory prohibition exists to preclude the award of such credit.

ANALYSIS AND CONCLUSION

Provisions of law governing the retirement of officers of the PHS Commissioned Corps are contained in section 212 of title 42, United States Code. Under 42 U.S.C. Sec. 212(a)(3) all PHS officers are eligible to retire "after completion of twenty or more years of active service." The term "active service" includes "all active service in any of the uniformed services." 42 U.S.C. Sec. 212(d)(1). Retired pay is computed on the basis of an officer's years of service and active duty basic pay using a percentage multiplier. 42 U.S.C. Sec. 212(a)(4). These features of the current retirement system were adopted through the amendment of 42 U.S.C. Sec. 212 by the PHS Commissioned Corps Personnel Act of 1960. /1/

Prior to its amendment in 1960, 42 U.S.C. Sec. 212 provided a substantially different retirement plan for PHS officers. Under the prior law, PHS officers became eligible for retirement at age 64, and they could generally be retired before reaching that age only if they had previously completed 30 years of service exclusively with the PHS. 42 U.S.C. Sec. 212(a) (1958 ed.). In the computation of retired pay under the prior PHS retirement system, Regular officers received no benefit or service credit for time spent attending a military or naval academy. 42 U.S.C. Sec. 212(a) and (b) (1958 ed.). Reserve PHS officers were not eligible to compute retired pay under the PHS retirement system, but were instead covered by the federal civil service retirement program. 42 U.S.C. Sec. 212(e) (1958 ed.).

We recognize that, as a general proposition, cadets and midshipmen of the military and naval academies have, for many purposes, the status of active duty members of the armed forces. /2/ Nevertheless, as indicated, 10 U.S.C. Sec. 971(b) expressly prohibits officers of the Army, Navy, Marine Corps, Air Force, and now the Coast Guard from counting academy attendance as creditable service for any purpose. Also, prior to 1960 PHS officers could not receive credit for academy attendance under the PHS retirement system prescribed under 42 U.S.C. Sec. 212 (1958 ed.).

The issue presented in this case, then, is whether the amendment of 42 U.S.C. Sec. 212 by the PHS Commissioned Corps Personnel Act of 1960 gave PHS officers an anomalous new benefit; i.e., that of allowing them to include academy attendance in the computation of their length of service. As noted, 42 U.S.C. Sec. 212 as so amended gives PHS officers the right to count "all active service in any of the uniformed services" as creditable service for retirement purposes.

The legislative documents relating to the PHS Commissioned Corps Personnel Act of 1960 do not state specifically whether time spent attending one of the military or naval academies was intended to be credible by PHS officers as "active service." Those documents do state, however, that the new method provided for computing retired pay on the basis of a percentage multiplier of a PHS officer's active duty basic pay and years of service "parallels the formulas applicable to the computation of retired pay for military personnel." /3/ Further, at the time it was noted that although all of the uniformed services had the same system of computing active duty basic pay and allowances, the PHS retirement system was significantly different from that of the military services. The provisions of the amendment were intended to "assure substantial parity with comparable provisions applicable to the Armed Forces," and to "identify the retirement system applicable to PHS commissioned officers with the system applicable to military personnel." /4/

We also note that PHS officers have long been precluded, together with the officers of the other uniformed services, from counting academy attendance time for longevity purposes in the computation of their active duty basic pay. /5/

We note further that the laws originally adopted to preclude military and naval officers from receiving service credit for the time they had spent at an academy while obtaining an undergraduate college education at public expense were intended by the Congress to end the "preposterous practice ... of counting the period of cadet service in computing length of service," a practice which was viewed "as indefensible as it is illogical and unfair." /6/

Given these circumstances, we are unable to conclude that in amending 42 U.S.C. Sec. 212 in 1960 Congress intended to give PHS officers the right to count time spent in attendance at a military or naval academy as creditable service for retirement purposes. Rather, the intent expressed was to provide PHS officers with a retirement system parallel to the retirement system which had been established for military and naval officers. Since officers of the military and naval forces were then prohibited from receiving retirement credit for academy attendance, it is our view that the same prohibition was, by implication, necessarily intended to remain in effect for PHS officers. Hence, our conclusion is that the term "active service" as it appears in 42 U.S.C. Sec. 212 does not, in that particular context, include time spent attending a military or naval academy.

As to the amendment of 10 U.S.C. Sec. 971(b) in 1984 to extend by express terms to Coast Guard officers the prohibition of that code section against the receipt of service credit for academy attendance for any purpose, we note that this amendment was originally introduced in Congress in a bill styled as the Coast Guard Management and Efficiency Improvement Act of 1984. /7/ It was subsequently incorporated in and enacted as a provision of the Coast Guard Authorization Act of 1984. /8/ The legislative documents relating to this amendment indicate that it was designed as a clarification of existing statutes pertaining to Coast Guard retirements. /9/ Hence, our view is that the amendment was in the nature of a legislative ratification of the court's judgment in Jacobs v. United States, supra, and that it may not properly serve as the basis for an inference of an intent on the part of Congress to confer or preserve some special benefit on or for PHS officers.

According, we conclude that Dr. Clarke is not entitled to count the time he spent in attendance at the Coast Guard and Naval Academies between 1949 and 1954 as creditable service for PHS retirement purposes, and we deny his claim for additional retired pay.

/1/ Public Law 86-415, Sec. 4, Apr. 8, 1960, 74 Stat. 32, 33.

/2/ See, generally, United States v. Morton, 112 U.S. 1 (1884); United States v. Baker, 125 U.S. 646 (1888); Cook v. United States, 128 U.S. 254 (1888); United States v. Watson, 130 U.S. 80 (1889); Collins v. United States, 642 F.2d 217 (7th Cir. 1981); Wimmer v. Lehman, 705 F.2d 1402 (4th Cir. 1983); 37 Comp.Gen. 465 (1958); B-195448, Apr. 3, 1980. But see also Jacobs v. United States, supra, 680 F.2d at 89 (footnote 2).

/3/ H.R. Rep. No. 1091, 86th Cong., 1st Sess. 17 (1959), reprinted in 1960 U.S. Code Cong. & Ad. News. 1834, 1848 - 1849; and S. Rep. No. 535, 86th Cong., 1st Sess. 7 (1959).

/4/ Bills to Strengthen the Commissioned Corps of the PHS: Hearings on H.R. 1077 and H.R. 6324 Before the House Comm. on Interstate and Foreign Commerce, 86th Cong., 1st Sess. 16, 20 (1959) (statement of Dr. Leroy E. Burney, Surgeon General, PHS).

/5/ See act of June 10, 1922, ch. 212, 42 Stat. 625, 627; 37 U.S.C. Sec. 205 (current); Williams v. United States, 136 Ct. Cl. 582 (1956); Jacobs v. United States, supra, 680 F.2d at 90 (footnote 4).

/6/ Jacobs v. United States, supra, 680 F.2d at 89-90, quoting H.R. Rep. No. 270, 62d Cong., 2d Sess. 65-66 (1912). See, also, Horner v. Jeffrey, 823 F.2d 1521, 1526-1527 (Fed. Cir. 1987).

/7/ H.R. 4990, 98th Cong., 2d Sess. (1984).

/8/ Public Law 98-557, Sec. 17(a), Oct. 30, 1984, 98 Stat. 2860, 2867.

/9/ See 130 Cong. Rec. 3971 (1984) (statement of Cong. Don Young).

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