Prewitt v. Department of Military Affairs
| Decision Date | 17 January 1997 |
| Parties | Col. David E. PREWITT, Petitioner, v. DEPARTMENT OF MILITARY AFFAIRS and The Adjutant General of Pennsylvania, Respondents. |
| Court | Pennsylvania Commonwealth Court |
David E. Prewitt, Haverford, for Petitioner.
Eclemus Wright, Jr., Annville, for Respondent.
Before PELLEGRINI and KELLEY, JJ., and RODGERS, Senior Judge.
Colonel David E. Prewitt appeals from an order of the Adjutant General of Pennsylvania (Adjutant General) approving a proposed report and order of a hearing officer denying Colonel Prewitt's appeal and application for promotion to the grade of brigadier general on the retired list of the Pennsylvania National Guard pursuant to section 2313 of the Military Code, 51 Pa.C.S. § 2313. We affirm.
In this appeal, the sole issue before this court is whether the Adjutant General should be required to promote Colonel Prewitt pursuant to section 2313 of the Military Code. Section 2313 governs the promotion of retired Pennsylvania National Guard personnel and provides:
(a) Promotions--Every former officer, warrant officer or enlisted person shall upon application to the Adjutant General after his or her retirement, be promoted to the next higher grade in the Pennsylvania National Guard retired list above that presently held in a grade Federally recognized if the applicant:
(1) has served a total of 25 years in armed forces of the United States or its components, ten years of which includes service in Pennsylvania National Guard with active Federal service counting as double time. The 25 years service shall be such as would be credited for retirement of National Guard and Reserve personnel; or
(2) has attained the grade of major general in the Pennsylvania National Guard and has been Federally recognized in such grade; or
(3) has served in the Pennsylvania National Guard, Pennsylvania Guard or both for a period of 25 or more years and who has served in his highest grade for at least one year.
Promotion to general officer on the retired list shall not require the consent of the Senate.
(b) Computation of period of service.--In considering the period of service under this section, the military service of personnel in the Pennsylvania National Guard engaged in the service of the United States or active service in the armed forces of the United States shall be included and counted double in calculating the period of service for retirement with increased grade under provisions of this section.
Colonel Prewitt contends that based on the statutory language of section 2313, the Adjutant General is required to promote Colonel Prewitt to the grade of brigadier general on the retired list of the Pennsylvania National Guard. 1 The Department of Military Affairs (DMA) contends that, pursuant to its interpretation of section 2313, Colonel Prewitt is not entitled to a promotion on the retired list because he has not served the required ten years in the Pennsylvania National Guard.
The facts herein with respect to Colonel Prewitt's military service are undisputed. Colonel Prewitt served on active duty in the United States Army from March 19, 1962 until June 15, 1965, a total of 3 years, 2 months, and 17 days. Colonel Prewitt was not a member of the Pennsylvania National Guard when he entered active duty with the United States Army.
Colonel Prewitt was appointed as an officer of the Pennsylvania National Guard on February 19, 1971 and served a total of 6 years, 8 months and 28 days. Colonel Prewitt was not called or ordered to active federal service during the period he served as a member of the Pennsylvania National Guard. In November 1977, he was released from the Pennsylvania National Guard so he could transfer to the United States Army Reserve to qualify for promotion to the grade of major. Colonel Prewitt remained a member of the United States Army Reserve until May 12, 1993 when he retired in the grade of colonel. As a result, Colonel Prewitt accumulated more than 28 years of service qualifying for retirement in a reserve component of the United States armed forces.
On July 15, 1993, Colonel Prewitt wrote the Adjutant General requesting promotion to the grade of brigadier general on the Pennsylvania National Guard's retired list pursuant to section 2313 of the Military Code. On August 16, 1993, the DMA advised Colonel Prewitt that his request for promotion could not be granted because he did not serve 10 years in the Pennsylvania National Guard.
On September 3, 1993, Colonel Prewitt wrote to the State Judge Advocate, seeking reconsideration of his request for promotion. As a result, an administrative hearing was held before a hearing officer on March 24, 1994, after which the hearing officer issued a proposed report and order. Based on the evidence received and a review of the statutory language of section 2313, the hearing officer concluded that:
(1) Colonel Prewitt has served a total of more than 25 years in the armed forces of the United States or its components, which service is such as would be credited for retirement of National Guard or Reserve personnel;
(2) Colonel Prewitt did not serve 10 years in the Pennsylvania National Guard, with active federal service counting double;
(3) Colonel Prewitt's 3 years, 2 months, 17 days of active duty with the United States Army is not applicable to be counted or doubled for purposes of meeting the 10 year Pennsylvania National Guard service requirement because this period of active Army duty was not active federal service as a member of the Pennsylvania National Guard; and
(4) Colonel Prewitt is not entitled to promotion to the grade of brigadier general on the Pennsylvania National Guard retired list because he did not serve 10 years in the Pennsylvania National Guard.
Accordingly, the hearing officer entered a proposed order on June 6, 1995, denying Colonel Prewitt's appeal and his application for promotion. Colonel Prewitt filed exceptions to the hearing officer's proposed report and order. On December 3, 1995, the Adjutant General approved the hearing officer's proposed report and order. This appeal followed. 2
Pursuant to section 1921 of the Statutory Construction Act of 1972: 3
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
Pursuant to section 1922 of the Statutory Construction Act of 1972, 4 in ascertaining the intention of the General Assembly in the enactment of a statute, it is to be presumed that the General Assembly did not intend a result that is absurd, impossible of execution or unreasonable, and that the General Assembly intended the entire statute to be effective and certain. In addition, in no case shall the punctuation of a statute control or affect the intention of the General Assembly in the enactment of a statute, but punctuation may be used to aid in the construction of the statute in question. Section 1923 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1923.
In this case, Colonel Prewitt contends that, pursuant to section 2313 of the Military Code, he has served the required 10 years in the Pennsylvania National Guard. Colonel Prewitt argues that his active duty service in the United States Army, before he became a member of the Pennsylvania National Guard, from March 19, 1962 until June 15, 1965, a total of 3 years, 2 months, and 17 days, should be counted as double time and added to his 6 years, 8 months and 28 days service as a guardsman.
Colonel Prewitt argues that the Adjutant General's interpretation of section 2313, that the only active federal service which may be included and counted as double time towards the 10 year service requirement is active duty as a guardsman, is erroneous. Colonel Prewitt contends that section 2313 applies to any current or former guardsman who has had over 25 years of service in the armed forces of the United States and who has either served 10 years in the Pennsylvania National Guard or has served sufficient time in the active service of the United States which, when doubled and added to the Pennsylvania National Guard time, amounts to over 10 years.
The DMA argues that section 2313 allows for the doubling of active service in the armed forces of the United States to be added to the total time served in the Pennsylvania National Guard provided that the active service in the armed forces of the United States occurred while as a member of the Pennsylvania National Guard. The DMA contends that Colonel Prewitt's active service in the armed forces did not occur while as a member of the Pennsylvania National Guard; therefore, that service cannot be doubled.
Upon review of the statutory language of section 2313, we conclude that Colonel Prewitt's interpretation of section 2313 is erroneous. We believe that the hearing officer was correct in his interpretation that the phrase "with active Federal service counting double time" found in section 2313(a)(1) is a term of limitation that relates to calculating whether an applicant meets the 10 year Pennsylvania National Guard service...
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