B-125814, SEP. 6, 1957

B-125814, SEP. 6, 1957

TO LARKIN AND LEWIS, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 17, 1957, RELATIVE TO THE INDEBTEDNESS OF MR. MELVIN J. WARD TO THE UNITED STATES IN THE AMOUNT OF $481.56 REPRESENTING AN OVERPAYMENT OF RETAINER PAY AND RETIRED PAY INCIDENT TO HIS NAVAL SERVICE. IN OUR DECISION DATED AUGUST 6, 1956, B- 125814, TO MR. WARD, IT WAS STATED THAT--

"IT IS A MATTER OF RECORD THAT THE DEPARTMENT OF THE NAVY DETERMINED THAT FOR THE PURPOSE OF TRANSFER TO THE FLEET RESERVE YOU HAD 21 YEARS, 10 MONTHS AND 7 DAYS OF SERVICE BUT AT THE SAME TIME THAT DEPARTMENT ALSO DETERMINED THAT YOU HAD ONLY 21 YEARS, 2 MONTHS AND 28 DAYS OF ACTIVE SERVICE (COUNTED AS 21 YEARS). IT IS THE LATTER DETERMINATION ON WHICH YOUR PAY MUST BE COMPUTED AND THERE WAS NO BASIS FOR COMPUTING THAT PAY AS THOUGH YOU HAD 22 YEARS OF ACTIVE FEDERAL VICE.'

IN YOUR PRESENT LETTER YOU STATE THAT "THE WHOLE MATTER OF CONTROVERSY APPARENTLY RESOLVES ITSELF ON THE QUESTION OF WHETHER THE ACTUAL TIME OF SERVICE IN A MINORITY ENLISTMENT MAY BE COUNTED AS ACTIVE FEDERAL SERVICE OR WHETHER A COMPLETED MINORITY ENLISTMENT SHALL BE COUNTED AS FOUR YEARS OF ACTIVE SERVICE.' STATED OTHERWISE, IT IS YOUR CONTENTION THAT A COMPLETED MINORITY ENLISTMENT IS TO BE COUNTED NOT ONLY AS FOUR YEARS' SERVICE FOR PURPOSES OF TRANSFER TO THE NAVAL FLEET RESERVE, BUT ALSO AS FOUR YEARS FOR PAY COMPUTATION PURPOSES IRRESPECTIVE OF THE ACTUAL TIME SERVED IN THE MINORITY ENLISTMENT. IN SUPPORT OF YOUR CONTENTION YOU CITE SECTION 6330 (D) OF TITLE 10 OF THE UNITED STATES CODE, ACT OF AUGUST 10, 1956, 70A STAT. 396, AND STATE THAT IN YOUR OPINION ANY PRIOR AMBIGUITIES IN SECTIONS 202 AND 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993 (NOW CODIFIED AS 10 U.S.C. 6330/D), 70A STAT. 395), REGARDING THE CREDIT FOR A MINORITY ENLISTMENT AND FRACTIONAL PART OF A YEAR OF SERVICE ARE CLARIFIED IN THE 1956 CODIFICATION. SECTION 6330/D) OF TITLE 10, UNITED STATES CODE, PROVIDES AS FOLLOWS:

"/D) FOR THE PURPOSES OF SUBSECTIONS (B) AND (C), A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED. A COMPLETED MINORITY ENLISTMENT IS COUNTED AS FOUR YEARS OF ACTIVE SERVICE, AND AN ENLISTMENT TERMINATED WITHIN THREE MONTHS BEFORE THE END OF THE TERM OF ENLISTMENT IS COUNTED AS ACTIVE SERVICE FOR THE FULL TERM.'

UNDER THE LAW AS IT EXISTED PRIOR TO THE CODIFICATION ACT OF AUGUST 10, 1956--- SECTIONS 202 AND 204 OF THE NAVAL RESERVE ACT OF 1930, AS AMENDED- -- THE COURT OF CLAIMS IN THE CASE OF WHITE V. UNITED STATES, 97 F.SUPP. 698, HELD THAT THE ENLISTED MEMBER WAS ENTITLED, UNDER SECTION 204, AS AMENDED, TO COUNT THE MINORITY ENLISTMENT AS FOUR YEARS IN COMPUTING HIS SERVICE FOR TRANSFER TO THE FLEET RESERVE. ONLY ACTUAL ACTIVE SERVICE, HOWEVER, WAS COUNTED IN THE COMPUTATION OF HIS RETAINER PAY, 19 YEARS, 8 MONTHS, AND 23 DAYS BEING COUNTED AS 20 YEARS. WE HAVE CONSISTENTLY FOLLOWED THAT VIEW OF THE LAW. HENCE, IF THE LANGUAGE OF SECTION 6330/D), QUOTED ABOVE, WHICH NOW PROVIDES THAT A COMPLETED MINORITY ENLISTMENT IS COUNTED AS FOUR YEARS OF "ACTIVE" SERVICE, REQUIRES AN INTERPRETATION WHICH IS AT ODDS WITH THE INTERPRETATION PLACED UPON THE LAW AS IT EXISTED PRIOR TO THE 1956 CODIFICATION, IT WOULD APPEAR THAT THE CODIFICATION MADE A SUBSTANTIVE CHANGE IN THE LAW, AND, AS SUCH, WOULD BE EFFECTIVE ONLY FROM THE EFFECTIVE DATE OF THE ACT--- AUGUST 10, 1956--- NO PROVISION BEING MADE FOR A RETROACTIVE EFFECT.

THIS VIEW OF THE MATTER WOULD REQUIRE NO CHANGE IN THE DETERMINATION OF THE MATTER OF MR. WARD'S INDEBTEDNESS TO THE UNITED STATES, AND THE AMOUNT --- $481.56--- SHOULD BE REMITTED WITHOUT FURTHER DELAY.

AS TO THE QUESTION WHETHER UNDER SECTION 6330 (D) OF TITLE 10, UNITED STATES CODE, 70A STAT. 395, MR. WARD IS ENTITLED TO ADDITIONAL RETAINER OR RETIRED PAY FROM AUGUST 10, 1956, IF IT IS HIS BELIEF THAT HE IS SO ENTITLED, THEN MR. WARD MAY SUBMIT AN APPLICATION TO THE DEPARTMENT OF THE NAVY FOR ADJUSTMENT OF HIS CURRENT RETIRED PAY.