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

Held, gratuitous military service wage credits may not be granted under sections 217(a)(1)(B) of the Social Security Act for any military service during World War II or the post-World War II period of July 25, 1947, to January 1, 1957, when the same service is credited by the Federal Government toward retired pay for nonregular military service under Chapter 67 of Title 10 of the United States Code.

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

For purposes of determining entitlement to and the amount of any monthly benefit * * * payable under this title on the basis of the wages and self-employment income of any World War II veteran * * * such veteran shall be deemed to have been paid wages (in addition to the wages, if any, actually paid to him) of $160 in each month during any part of which he served in the military or naval service of the United States during World War II. This subsection shall not be applicable in the case of any monthly benefit or lump-sum death payment if --

* * * * * * * *

(B) a benefit * * * which is based, in whole or part, upon the active military or naval service of such veteran during World War II is determined by any agency or wholly owned instrumentality of the United States (other than the Veterans' Administration) to be payable by it under any other law of the United States or under a system established by such agency or instrumentality. * * *

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:

No period of service included wholly or partly in determining a person's right to, or the amount of, retired pay under this chapter may be excluded in determining his eligibility for any annuity, pension, or old-age benefit, under any other law, on account of civilian employment by the United States or otherwise, or in determining the amount payable under that law, if that service is otherwise properly credited under it.

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:

. . . No period of service otherwise creditable in determining the eligibility of any person to receive, or the amount of, any annuity, pension, or old-age benefit payable under any other provision of law on account of civilian employment, in the Federal Government or otherwise, shall be excluded in such determination because such period of service may be included in whole or in part, in determining the eligibility of such person to receive, or the amount of, any retired pay payable under this title.

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).

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:

Paragraph (1) of subsection (a) of section 217 would provide World War II veterans * * * with wage credits of $160 for each month any part of which was spent in military or naval service during World War II except where the military service has been credited toward a benefit payable under the civil service, railroad, military or other Federal retirement or similar system (other than a benefit determined by the Veterans' Administration to be payable by it). (Emphasis supplied.)

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:

As in the case of World War II wage credits, the credits provided by the bill would not be given in any case where another benefit based on the same period of service is payable by any Federal agency other than the Veterans' Administration. Thus, for example, if credit is given under the civil service retirement system or any of the military retirement systems for the service in question, it could not be credited under the old-age and survivors insurance. (Emphasis supplied.)

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. 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.

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