SSR 70-13: SECTIONS 217(a)(1)(B) and 217(e)(1)(B). -- VETERANS -- GRATUITOUS MILITARY SERVICE WAGE CREDITS -- USE PRECLUDED IF PREVIOUSLY CREDITED FOR NONREGULAR MILITARY SERVICE RETIRED PAY

20 CFR 404.1310

SSR 70-13

Section 217(a)(1) of the Social Security Act provides in pertinent part

as follows:

* * * * * * * *

Section 217(e)(1) of the Act makes a similar provision for post-World War

II service, i.e., for the period on or after July 25, 1947, and prior to

January 1, 1957.

Chapter 67 of Title 10, United States Code (10 U.S.C. 1331 et seq.)

provides for the payment of retired pay for nonregular, i.e., as a

reservist, military service. 10 U.S.C. 1336 specifically provides:

Under Chapter 67, an eligibility requirement for benefits is a period of

active service during World War I, World War II, or the Korean Conflict.

Literally read, 10 U.S.C. 1336 would seem to require the crediting of

military service for purposes of any Federal retirement benefit based on

civilian employment, even though such service is also used to determine an

individual's eligibility for, or the amount of, a retirement benefit

payable under Chapter 67.

Because this section appears to be in conflict with sections 217(a)(1)(B)

and 217(e)(1)(B) of the Act, the question raised was whether retired pay

for nonregular military service payable under 10 U.S.C 1331 et seq., is an

exception to the restriction in sections 217(a)(1)(B) and 217(e)(1)(B) of

the Social Security Act against the granting of gratuitous wage credits

for military service where another Federal benefit (except one paid by the

Veterans' Administration) is payable on the basis of that same service.

Section 1336, 10 U.S.C. originally came into law as section 305 of title

III, PL 80-810, the "Army and Air Force Vitalization and Retirement

Equalization Act of 1948." This Act was passed to provide an incentive for

reservists to remain active. Section 305 of this Act originally read:

On August 10, 1956, PL 84-1028 revised, codified, and enacted into law,

Title 10 of the United States Code entitled "Armed Forces." Under this

codification section 1336 was revised to read substantially as shown

above.

talization and Retirement

Equalization Act of 1948." This Act was passed to provide an incentive for

reservists to remain active. Section 305 of this Act originally read:

On August 10, 1956, PL 84-1028 revised, codified, and enacted into law,

Title 10 of the United States Code entitled "Armed Forces." Under this

codification section 1336 was revised to read substantially as shown

above.

Section 217(a)(1) of the Act was enacted on August 28, 1950, and amended

in 1952 and 1954. Section 217(e)(1) was enacted on July 18, 1952, and

amended in 1953, 1954, 1955, and 1956 to extend the period of military

service for which gratuitous wage credits could be given. The last such

amendment, on August 1, 1956, was enacted into law shortly before the

codification of Title 10 of the United States Code by the same Congress

which enacted 10 U.S.C. 1336.

Under the general rules of statutory construction, when two conflicting

provisions enacted by a legislative body are irreconcilable (assuming the

subject provisions are irreconcilable) the later act will prevail.

Although 10 U.S.C. 1336 was enacted shortly after the last amendment to

section 217 of the Act, it was in substance the same as section 305 of

Public Law 80-810 as initially enacted in 1948. For reasons appearing

below, it may reasonably be concluded that sections 217(a)(1)(B) and

217(e)(1)(B) prevail over 10 U.S.C. 1336.

It is clear that in cases involving construction of acts of Congress, the

manifest intent of Congress will prevail over general rules of statutory

construction. Sutherland, Statutes and Statutory Construction §

4501 (3d ed., 1943); 82 C.J.S. Statutes, § 321; Sinclair Refining

Company v. Atkinson, 370 U.S. 195 (1962).

at sections 217(a)(1)(B) and

217(e)(1)(B) prevail over 10 U.S.C. 1336.

It is clear that in cases involving construction of acts of Congress, the

manifest intent of Congress will prevail over general rules of statutory

construction. Sutherland, Statutes and Statutory Construction §

4501 (3d ed., 1943); 82 C.J.S. Statutes, § 321; Sinclair Refining

Company v. Atkinson, 370 U.S. 195 (1962).

It appears that Congress did not intend, by the repeal of section 305 of

Public Law 80-810 (the predecessor section of 10 U.S.C. 1336) and its

reenactment as 10 U.S.C. 1336, to nullify any of the limitations on the

crediting of military service contained in section 217(a)(1)(B) and

217(e)(1)(B) of the Act. While the legislative history of Public Law

84-1028, enacting the codification of Title 10, is very brief and does not

specifically mention 10 U.S.C. 1336, it is clear that no substantial

change in the law was intended. In fact, section 49(a) of P.L. 84-1028

provides "* * * it is the legislative purpose to restate, without

substantive change, the law replaced by those sections on the effective

date of this Act." The view that Congress did not intend to, in any way,

limit the scope of sections 217(a)(1)(B) and 217(e)(1)(B) of the Social

Security Act is further supported by the fact that the same Congress which

enacted 10 U.S.C. 1336 had amended section 217(e)(1)(B) 9 days earlier;

they could hardly have intended to repeal pro tanto a statute they had

just amended. On the other hand, the legislative history of sections

217(a)(1)(B) and 217(e)(1)(B) is very detailed and specific. In

particular, Sen. Rep. No. 1669, 81st Cong., 2d Sess., at p. 110,

states:

Also, with reference to section 217(e)(1)(B), Sen. Rep. No. 1806, 82d

Cong., 2d Sess., pp. 6 and 22-23 (1952), and H.R. Rep. No. 1944, 82d

Cong., 2d Sess., state, at page 6:

hey had

just amended. On the other hand, the legislative history of sections

217(a)(1)(B) and 217(e)(1)(B) is very detailed and specific. In

particular, Sen. Rep. No. 1669, 81st Cong., 2d Sess., at p. 110,

states:

Also, with reference to section 217(e)(1)(B), Sen. Rep. No. 1806, 82d

Cong., 2d Sess., pp. 6 and 22-23 (1952), and H.R. Rep. No. 1944, 82d

Cong., 2d Sess., state, at page 6:

It seems clear that Congress was specifically concerned with preventing

the gratuitous crediting for social security benefit purposes of military

service used for purposes of another Federal retirement system. By

codifying the language of a general statute which antedated the language

of a very specific statute, it is reasonable to believe that Congress did

not intend to repeal the latter statute. As a general principle of law, a

specific statute will control over a general one without regard to

priority of enactment. For example, Panama Canal Co. v. Anderson, 312 F.2d 98 (5th Cir. 1963), cert. denied 375 U.S. 832 (1963), holds that

where there is a conflict between a statute dealing with limited subject

matter and a general statute, the more specific statute will control over

the general statute even though the general statute was enacted more

recently. See also, Bulova Watch Co. v. United States, 365 U.S. 753

(1961).

Furthermore, it is desirable, if at all possible, that statutes be

construed to avoid conflict. Such an interpretation of section 217 and 10

U.S.C. 1336 may, therefore, be justified. The latter statute states, in

pertinent part, that no period of service used in connection with Chapter

67 retired pay may be excluded in determining a person's eligibility for,

or the amount of, any annuity, pension, or old-age benefit under any law, "if that service is otherwise properly credited under it." This may

be interpreted to exclude the Social Security Act from the operation of 10

U.S.C

statute states, in

pertinent part, that no period of service used in connection with Chapter

67 retired pay may be excluded in determining a person's eligibility for,

or the amount of, any annuity, pension, or old-age benefit under any law, "if that service is otherwise properly credited under it." This may

be interpreted to exclude the Social Security Act from the operation of 10

U.S.C. 1336, where military service is not "otherwise credited"

under the Act because of the prohibition in sections 217(a)(1)(B) and

217(e)(1)(B).

Accordingly, it is held that sections 217(a)(1)(B) and

217(e)(1)(B) of the Act preclude the granting of gratuitous wage credits

for any military service during World War II of the post-World War II

period of July 25, 1947, to January 1, 1957, when such military service is

used to determine eligibility for, or the amount of, benefits under

Chapter 67 of Title 10 of the U.S. Code.