Mario Biaggi
| Decision Date | 20 July 1982 |
| Docket Number | B-207185 |
| Parties | MARIO BIAGGI, HOUSE OF REPRESENTATIVES |
| Court | Comptroller General of the United States |
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:
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. ***"
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