L-43-207 erpinion No. 1943 R.R. 9 M-61 ME MORA N DU M Approved by B.O. 43-136 dated March 16, 1943-
TO The Board March 10, 1943
FROM The General Counsel
SUBJECT Creditability of Service Performed as a Member of the Women's Army Auxiliary Corps, the Women's Reserve of the Naval Reserve, the Marine Corps Women's Reserve, the Women's Reserve of the Coast Guard Reserve, and the Army Specialist Corps
In response to requests from the Chairman and the Director of Retirement Claims, I submit herewith my opinion on the following:
QUESTIONS
1. Is service rendered as a member of the Women's Army Auxiliary Corps (WAACS), the Women1s Reserve of the Naval Reserve (WAVES), the Marine Corps Women's Reserve (Marines), or the Women's Reserve of the Coast Guard Reserve (SPARS), creditable toward annuities under the Railroad Retirement Act as "military service"?
2. Is service rendered as a member of the Army Specialist Corps creditable toward annuities under the Railroad Retire ment Act as "military service"?
CONCLUSIONS
1. Service rendered as a member of the Women's Army Auxiliary Corps (WAACS), the Women's Reserve of the Naval Reserve (WAVES), the Marine Corps Women's Reserve (Marines), and the Women's Reserve of the Coast Guard Reserve (SPARS) constitutes "military service" within the meaning of the Railroad Retirement Act and is creditable toward annuities under that Act, subject to the limitations contained in Section 3A.
2. Service rendered as a member of the Army Specialist Corps does not constitute "military service" within the meaning of the Railroad Retirement Act and is, therefore, not creditable tovrard annuities under that Act. Memorandum to the Board
DISCUSSION
Section 3A(a) of the Railroad Retirement Act provides that "For the purposes of determining eligibility for an annuity and computing an annuity, including a minimum annuity, there shall also be included in an individual's years of service. . .voluntary or involuntary military service of an individual within or without the United States during any war service period, including such military service prior to the date of enactment of this amendment. . Pursuant to Section 3A(b) of the Act, "an individual shall be deemed to have been in 'military service' when commissioned or enrolled in the active service of the land or naval forces of the United States and until resignation or discharge therefrom; and the service of any individual in any reserve component of the land or naval forces of the United States for any period, even though less than thirty days, shall be deemed to have been active service in such force during such period,"
I.
The Women's Army Auxiliary Corps, the Women's Reserve of the Naval Reserve, the Marine Corps Women's Reserve, and the Women's Reserve of the Coast Guard Reserve were created pursuant to Acts of Congress for the purpose of enabling the Army, the Navy, the Marine Corps, and the Coast Guard to use women in the performance of certain of their non- combatant functions so that officers and enlisted men might be released for combat duty. Such functions consist of administrative, clerical, fiscal, aircraft warning, pharmaceutical, and similar types of noncom batant services of the Army, Navy, Marine Corps, and Coast Guard, respectively, l/
The Women's Army Auxiliary Corps was created pursuant to an Act of May 14, 1942, Public Law 554, 77th Cong., 2d Sess., authorizing the President to establish such a Corps "for noncombatant service with the Army of the United States." The Act provides, in substance, as follows:
The Corps shall be administered by the Secretary of War through the channels of command of the Army pursuant to such regulations as he may promulgate. The Secretary of T,’ar is authorized to employ any and all
l/ Hearings before Committee on Military Affairs on H.R. 6293) H. of Rep., at p. 10; Hearings before Committee on Military Affairs on H.R. 6293, Sen., at p. 7; Hearings before Committee on Naval Affairs on S. 2527, Sen., at pp. 5, 12, 13; Sen. Rept. No. 1320, 77th Cong., 2d Sess. (1942), at p. 2; H. of Rep. Rept. No. 2523, 77th Cong., 2d Sess. (1942), at pp. 1, 2. -3- Memorandum to the Board
of the facilities of the War Department and of the Army of the United States in carrying out the provisions of this Act and to appoint a Director who shall, under the direction of the Chief of Staff of the Army, advise the War Department on matters pertaining to the establish ment of the Corps and operate and administer the Corps in accordance •with military procedure and regulations prescribed by the Secretary of War. The enlisted members of the Corps are to consist of female citi zens between the ages of 21 and 45 years, and their term of service is to be one year, except that in time of war or national emergency the President may, by order, extend the time of service to include the period of the war or national emergency plus six months. The ranks and pay of the officers and enlisted personnel of the Corps are to corre spond generally to those of officers and enlisted personnel of the United States Army, 2/ the highest ranking member of the Corps being the Director, whose rank corresponds to that of a colonel in the United States Army. Members of the Corps, exclusive of officers, are to be furnished with subsistence similar to that furnished to enlisted per sonnel of the Army, and Corps officers are to receive allowances towards subsistence at the rate established by law for commissioned officers of the Army holding corresponding ranks. Members of the Corps are also to be provided with quarters either on established Army posts, camps or stations or on those to be established or in such other places as may be directed by the Secretary, who may use any facilities of the Army for such purpose; and if quarters are not available, allowances in lieu thereof may be provided by the Secretary. Members of the Corps are further to be provided with medical and dental services similar to those rendered to Army personnel, and Army facilities may be used for such services. The responsibility and accountability of the various individuals and officers for individual clothing and equipment and for organization equipment and supplies shall conform so far as is practi cable to the laws and regulations pertaining to the Army in like cases.
The Secretary of War is to prescribe regulations for travel and for the payment of travel allowances similar to those for travel in the Army. Leave of Corps members is to be governed by existing regulations applicable to the Army. Members of the Corps who leave civilian positions with the United States Government to join the Corps
2/ On October 26, 1942, the Act authorizing the creation of the Women's Army Auxiliary Corps was amended (Public Law 7&1, 77th Cong,, 2d Sess,) to provide for increases in pay and allowances for Corps members to correspond with the increases granted to enlisted men and officers of the Army by the Pay Readjustment Act of 1942 (Public Law 607, 77th Cong., 2d Sess., June 16, 1942). -4- Memorandum to the Board
arc, upon termination of their period of service in the Corps, to be restored to such positions or to positions of like seniority, status, and pay, Such Corps members shall further be entitled to participate in all benefits pursuant to established rules and practices relating to employees on furlough or leave of absence.
Members of the Corps are to be subject to such disciplinary regulations as may be prescribed by the Secretary of War, including provisions for the punishment of major infractions by summary discharge from the Corps, and to the Articles of War pursuant to the Second Article thereof, when applicable. Members of the Corps may be relieved from active duty and recalled thereto at any time during their period of service, in accordance with such regulations as the Secretary of War may prescribe. The Corps is to serve "with" the Army rather than to constitute a part of the Army, but it is to be the only women's organi zation authorized to serve with the Army, exclusive of the Army Nurse Corps.
The Act authorizing the establishment of the Corps amends the Soldiers and Sailors Civil Relief Act of 1940 by providing that the term "person in military service" in the latter Act shall include "all members of the Array of the United States, the United States Navy, the Marine Corps, the Coast Guard, the Women1s Army Auxiliary Corps, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or the Navy." Section 125 of the National Defense Act, which prohibits any person not an officer or enlisted mem ber of the Army, Navy, or Marine Corps from wearing the uniform of any such organization, is also amended by including a like prohibition with respect to the wearing of the Corps uniform.
The regulations issued pursuant to the Act authorizing the establishment of the Corps (Title 10— Army: War Department, Sections 79b.l-79b.12; 7 Fed. Reg, 4818 (1942)) provide in part that, in the absence of specific regulations to the contrary, the Corps is to be administered in accordance with Army regulations; that enrollment in the Corps is to be conducted by Army recruiting officers at regular Army recruiting stations; that, due consideration being given to differ ence in sex and with the exceptions of height, weight, and chest meas urements, the standards prescribed for enlistment for general military service are to apply to enrollment in the Corps; and that Corps mem bers are not to be permitted to withdraw from the Corps prior to the expiration of their enrollment periods.
The Women1s Reserve of the Naval Reserve was established by an Act of Congress of July 30> 1942, amending the Naval Reserve Act of 1936, as amended, by the addition of "Title V— -Women's Reserve" to that Act. -5- Memorandum to the Board
Public Law No. 689, 77th Cong., 2d Sess. Title V provides that the Women1s Reserve "shall be a branch of the Naval Reserve and shall be administered under the same provisions in all respects (except as may be necessary to adapt said provisions to the Women's Reserve, or as specifically provided herein) as those contained in this Act or which may hereafter be enacted with respect to the Volunteer Reserve;" that members of the Women's Reserve shall be restricted to the performance of shore duty within the continental United States only and shall not be assigned to duty on board vessels of the Navy or in combat aircraft; and that the Women's Reserve shall be composed of members who have attained the age of 20 and shall have ranks and ratings corresponding to those of the Regular Navy, as may be prescribed by the Secretary of the Navy, The authority conferred by the Act for appointments and en listments in the Women1s Reserve is to be effective during the present war and for six months thereafter.
The United States Marine Corps recently established within its ranks a Women's Reserve as a part of the Marine Corps Reserve, pursuant to Title V of the Naval Reserve Act of 1938, supra, creating the Women's Reserve of the Naval Reserve, and Title I, Sec. 2, of the Naval Reserve Act of 1938, 52 Stat. 1175, which provides that the Marine Corps Reserve shall function under the same provisions in all respects as those already in effect, or those which may thereafter be enacted, providing for the Naval Reserve. The members of the Marine Corps Women's Reserve are to have the same status and are to be governed under the same laws and regu lations as other members of the Marine Corps Reserve, except that their service is to be limited to noncombatant service. See Bulletin MCPB 110340 of the Marine Corps, issued on January 25, 1943.
The Women's Reserve of the Coast Guard Reserve was set up by an Act of November 23, 1942, amending the Coast Guard Auxiliary and Reserve Act of 1941. Public Law 773, 77th Cong., 2d Sess. The amentias tory Act provides that the Women's Reserve "shall be a branch of the Gq£.st Guard Reserve and shall be administered in the same manner as pro vided, for the Coast Guard Reserve in all respects, except as may be necesshsry to adapt said provisions to the Women's Reserve, or as speci fically provided herein;" that members of the Women's Reserve may be commissioned or enlisted in such appropriate ranks and ratings correspond ing to those of the Regular Coast Guard as may be prescribed by the Secretary of the Treasury, or by the Secretary of the Navy while the Coast Guard is operating as part of the Navy; and that members of the Women's Reserve shall not be assigned to duty on board vessels of the Navy or Coast Guard or in combat aircraft but shall be restricted to the performance of shore duty within the continental United States only. The authority to make appointments and enlistments in the Women's Reserve is to be in effect during the present war and for six months thereafter. -6- Memorandum to the Board
It is clear that service performed as a member of the Women1s Reserve of the Naval Reserve and of the Marine Corps Women1s Reserve con- jtitutes "military service" within the meaning of the Railroad Retirement Act, since such organizations were made branches of the Naval Reserve and the Marine Corps Reserve respectively, and are, therefore, parts of the "land or naval forces of the United States" within the meaning of the Railroad Retirement Act.
The United States Coast Guard has operated as a part of the Navy since November 1, 1941. See Executive Order No. 8929, 6 Fed. Reg, 5581, Consequently, since the Women1s Reserve of the Coast Guard Reserve was established as a branch of the Coast Guard, it is clear that the Women's Reserve is a part of the "land or naval forces of the United States" and that service rendered therewith constitutes "military service" within the meaning of the Railroad Retirement Act. See Louisville and Nashville Railroad v. United States, 258 U.S. 374; Decision of the Comptroller, of the Treasury, Vol. 27, p. 120 (1920).
Although the Women1s Army Auxiliary Corps was established for service "with" the Army rather than "in'1 the Army, it is clear that the Corps constitutes, in substance, a part of the Army. Thus, the Corps is declared to be "the only women's organization authorized to serve with the Army, exclusive of the Army Nurse Corps;" it is administered through the channels of command of the Army in accordance with normal military procedure; the services rendered by the Corps are rendered as part of the duties to be performed by the Army; and its members are under military discipline and, in the absence of specific regulations to the contrary, are subject to general Army regulations. See United States v. La Tourrette, 151 U.S. 572; United States v. Dunn, 120 U.S. 249, 253; Wilkes v. Dinsman, 7 How. (U.S.) 89.
The legislative history of the Act authorising the creation of the Corps shows that the functions, organization, and administration of the Corps were intended to be the same whether the Corps was set up to serve "with" the Army or "in" the Army. The provision that the Corps is to serve "with" the Army was contained in H.R. 6293, the bill for the creation of the Corps as originally drafted and passed by the House of Representatives. In the debate of this bill on the floor of the Senate, which took place subsequent to the passage by the House of a bill for the creation of a Women's Reserve as a branch of the Naval Reserve, an amend ment to H.R. 6293 was introduced to place the Corps "in" rather than "with" the Army. See 77th Cong. Rec., April 27, 1942, at pp. 3821-3827; Hearings on H.R. 6293, Committee on Military Affairs, Senate, at pp. 3, 4. At the hearings on H.R. 6293 before the Senate Committee on Military Affairs, however, representatives of the War Department stated that they desired a speedy passage of the Act creating the Corps and were of the .IV
-7- Memorandum to the Board
opinion that "whether such corps is in or with the Army is of secondary importance as far as the War Department is concerned. Either the original bill or the amendment will serve the purpose for which the corps is desired. The organization and administration of the corps will, in the main, be similar whether such corps is in or with the Army." Hearings on H.R. 6293, Committee on Military Affairs, Senate, at p. 3; see 77th Cong.. Rec., May 12, 1942, at p. 4224. At those hearings, Colonel Ira P. Swift, United States Army, General Staff Corps, submitted an analysis comparing the existing laws which would become applicable to members of the Corps if the Corps were placed "in" the Army with com parable provisions contained in H.R. 6293, the bill which was subsequently enacted. This analysis, in fact, shows that H.R. 6293, as enacted, accom plishes the same result as would have been accomplished if the amendment to H.R. 6293 placing the Corps "in" the Army had been adopted. Thus, under H.R. 6293, as enacted, the Corps is to perform the same noncombatant service for the Array and is to be administered through the regular chan nels of the Army command in accordance with normal military procedure; the Corps members are made subject to the Articles of War pursuant to the Second Article thereof, and, in the absence of specific regulations to the contrary, are subject to Army regulations generally, enrollment in the Corps is to be conducted by Army recruiting officers at regular Army recruiting stations and, due consideration being given for difference in sex, under similar standards; the ranks and rates of pay of Corps members and their allowances for subsistence and quarters are to be substantially the same as those applicable to Army personnel; they are to receive the same medical, dental, and hospitalization services as Army personnel; and their travel allowances and leaves of absence are to be governed by regulations similar to those applicable to the Army.
It also appears from the legislative history of the Acts creat ing the Women's Army Auxiliary Corps and the women's reserves in the Naval Marine Corps, and Coast Guard reserves that it was the Congressional intent that the Corps should be considered to be as much a part of the Army as the Women's Reserve of the Naval Reserve, the Marine Corps 'Women's Reserve, and the Women's Reserve of the Coast Guard Reserve are considered parts of the Navy, Marine Corps, and Coast Guard, respectively. Sen. Rep. No. 1603, 77th Cong., 2d Sess. (1942),- pp. 1, 2; H.R. Rep.No. 2475, 77th Cong., 2d Sess. (1942), pp. 2, 3; 77th Cong, Rec., October 5, 1942, at pp. 8013, 8014. The reason is apparent. Members of the Corps make the same sacrifices as those made by women serving in the other three women's organizations. In fact, service with the Women's Army Auxiliary Corps entails even greater sacrifices than those made by women in the other organizations since Corps members may be ordered to serve overseas, whereas members of the other groups are restricted to shore duty within the continental United States. See Hearings before Committee on Military Affairs, Senate, on S. 2751, 77th Cong., 2d Sess. (1942), at p. 8. -8- Memorandum to the Board
In view of the foregoing, it is my opinion that service per formed as a member of the Women's Army Auxiliary Corps, as well as service performed as a member of the women's reserves of the Naval, Marine Corps, and Coast Guard reserves, constitutes military service within the meaning of the Railroad Retirement Act. Direct support for this conclusion may be found in a decision of the Comptroller General of June 17, 1942, B-26460, in which it was held that members of the Women's Army Auxiliary Corps are to be regarded as having "entered upon active military or naval service in the land or naval forces of the Unit ed States" within the meaning of the Act of August 1, 1941, 55 Stat. 616. as amended by the Act of April 7, 1942, Public Law 517, which pro vider bhvL employees of the United States who have entered active mili tary ser> ce shall be entitled to receive, in addition to their military pay> compensation in their civilian positions covering their accumu lated and current annual leave, or to elect to have such leave remain to their credit until their return from active military service,
II.
The Army Specialist Corps was created by Executive Order on February 26, 1942, as "a corps of uniformed civilian employees" "for the purpose of obtaining the temporary service of certain qualified civilian employees for the War Department." Executive Order No, 9078, 7 Fed. Reg, 1607. The Executive Order and the Regulations issued by the Secretary of War pursuant to such Executive Order (Title 1C— Army: War Department Regs., Sections 79a.l-79ai45, 7 Fed. Reg. 3914-3922) provided, in substance, as follows:
The membership of the Specialist Corps was to consist of indi viduals who had technical, scientific, administrative, and managerial
3/ In the course of his opinion, the Comptroller General states as follows (at page 5):
"Also, it is proper in connection with the question presented, to refer to section 101 (1) of the Soldiers' and Sailors' Civil Relief Act of 1940. as amended by section 19 of the act of May 14, 1942, which defines the term 'persons in military service' to include members of uhe Women's Army Auxiliary Corps. As the Congress has thus included members of the corps within the term 'persons in military service' for the purposes of that law, it seems reasonable in. tn? lignt, of the foregoing observations to suppose that the Congress mir,ended them to be regarded likewise as in the active military service within the meaning of the leave act and its re lated act of April 7, 1942— nothing to the contrary appearing in the statute or its legislative history." -9- Memorandum to the Board
qualifications. The responsibility to recruit persons for the Corps was vested in the Civil Service Commission, which was authorized to exercise such function without regard to the Civil Service Act, and the appoint ment and supervision of such persons was placed under the direction of the Secretary of War, The Corps personnel was to consist of officers and specialists holding titles corresponding generally to those of offi cers and enlisted men in the United States Army. The pay rates of Corps members, however, were generally to be fixed in accordance with the Civil Service Classification Act of 1923, as amended, ranging from a minimum of $1800 to a maximum of $9000 per year. These pay rates were subject to increases through payment of salary differentials such as might be in effect for certain geographic areas. Certain members of the Corps, consisting of artisans, mechanics, or technicians, were to be paid in accordance with the rate of wages prevailing in the United States generally for the same class of work at the same level of diffi culty and responsibility. The commanding officer of the Corps was authorized to promote Corps members to the next civil service grade and to make within-grade promotions in accordance with the Classification Act of 1923, as amended. The pay rolls of the Corps members were to be prepared in the manner prescribed for civilian employees of the V'ar Department generally. Members of the Corps were to be given annual and sick leave, travel allowances, compensation for death or injury, and similar rights and privileges in accordance with the lav/s and regula tions applicable to civilian employees of the Government generally.
It is clear from the foregoing that the members of the Army Specialist Corps have been, in fact, civilian employees of the War Department and have not been "commissioned or enrolled in the active service of the land or naval forces of the United States" within the meaning of the Railroad Retirement Act. See Decision of the Comptrol ler General, September 19, 1942, B-28813, in which it was ruled that "the Army Specialist Corps is a civilian organization in the War Department, rather than in the military service"; that an employee of the United States Government "who enters the Army Specialist Corps does not enter 'upon active military or naval service1 within the meaning of the act of August 1, 1941, as amended by the act of April 7, 1942, Public Law 517> authorizing payment of compensation in civilian posi tions covering accumulated or accrued annual leave when entering the active military or naval service"; and that accrued annual leave of Government employees who are transferred to the Corps without a break in service is transferred to their credit with the Corps, the change of position being simply a transfer from one civilian agency of the Gov ernment to another. It may also be noted that members of the Army Spe cialist Corps have not been placed in the same draft classification as members of the land and naval forces of the United States in accordance with the Selective Service Act, but have been subject to deferment from military service on the same basis as civilians generally. Memorandum to the Board
qualifications. The responsibility to recruit persons for the Corps was vested in the Civil Service Commission, which was authorized to exercise such function without regard to the Civil Service Act, and the appoint ment and supervision of such persons was placed under the direction of the Secretary of War. The Corps personnel was to consist of officers and specialists holding titles corresponding generally to those of offi cers and enlisted men in the United States Army. The pay rates of Corps members, however, were generally to be fixed in accordance with the Civil Service Classification Act of 1923, as amended, ranging from a minimum of $1800 to a maximum of $9000 per year. These pay rates were subject to increases through payment of salary differentials such as might be in effect for certain geographic areas. Certain members of the Corps, consisting of artisans, mechanics, or technicians, were to be paid in accordance with the rate of wages prevailing in the United States generally for the same class of work at the same level of diffi culty and responsibility. The commanding officer of the Corps was authorized to promote Corps members to the next civil service grade and to make within-grade promotions in accordance with the Classification Act of 1923, as amended. The pay rolls of the Corps members were to be prepared in the manner prescribed for civilian employees of the War Department generally. Members of the Corps were to be given annual and sick leave, travel allowances, compensation for death or injury, and similar rights and privileges in accordance with the lav/s and regula tions applicable to civilian employees of the Government generally.
It is clear from the foregoing that the members of the Army Specialist Corps have been, in fact, civilian employees of the War Department and have not been "commissioned or enrolled in the active service of the land or naval forces of the United States" within the meaning of the Railroad Retirement Act. See Decision of the Comptrol ler General, September 19, 1942, B-28813, in which it was ruled that 'the Army Specialist Corps is a civilian organization in the War Department, rather than in the military service"; that an employee of "^he United States Government "who enters the Army Specialist Corps does not enter 'upon active military or naval service1 within the meaning of che act of August 1, 1941, as amended by the act of April 7, 1942, ?ublic Law 517, authorizing payment of compensation in civilian posi tions covering accumulated or accrued annual leave when entering the active military or naval service"; and that accrued annual leave of Government employees who are transferred to the Corps without a break in service is transferred to their credit with the Corps, the change of position being simply a transfer from one civilian agency of the Gov ernment to another. It may also be noted that members of the Army Spe cialist Corps have not been placed in the same draft classification as members of the land and naval forces of the United States in accordance with the Selective Service Act, but have been subject to deferment from military service on the same basis as civilians generally. ' * v - 1 0 - Memorandum to the Board # It is, therefore, my opinion that service performed with the Army Specialist Corps is not creditable under the Railroad Retirement Act as "military service." See General Counsel's Opinion on Creditabil- :_ty of Service Rendered to the Russian Railway Service Corps, L-42-291.
On or about October 31> 1942, an order was issued abolishing the Army Specialist Corps and merging it with the Army, leaving the Army's personnel board to pass on applications of Corps members for commissions in the Army. Service performed by former Corps members after being commissioned in the Army would, of course, be creditable as "military service" rendered to the Army.
Joseph H. Freehill General Counsel
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