A-14511, JULY 9, 1926, 6 COMP. GEN. 19

A-14511: Jul 9, 1926

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TO RECEIVE AND RETAIN THE ADVANCE PAY OF $25 PER ANNUM AS PROVIDED IN SAID SECTION IS NOT AFFECTED BY REASON OF THE PERFORMANCE OF ACTIVE DUTY DURING HIS PERIOD OF ASSIGNMENT TO THE FLEET MARINE CORPS RESERVE. I HAVE THE REQUEST PRESENTED BY THE MAJOR GENERAL COMMANDANT. AS FOLLOWS: (A) A MAN ASSIGNED TO THE FLEET MARINE CORPS RESERVE UNDER PROVISIONS OF SECTION 22 OF THE RESERVE ACT IS ORDERED WITH HIS CONSENT TO PERFORM ACTIVE DUTY. WHAT ARE HIS RIGHTS AS TO THE RETENTION OF THE $25 ADVANCE PAYMENT AND AS TO FUTURE PAYMENTS? (B) SUCH A MAN IS ORDERED TO TRAINING DUTY WITH HIS CONSENT FOR A PERIOD OF 30 DAYS. WHAT ARE HIS RIGHTS AS TO THE RETENTION OF THE $25 ADVANCE PAYMENT AND AS TO FUTURE PAYMENTS?

A-14511, JULY 9, 1926, 6 COMP. GEN. 19

RETAINER PAY - FLEET MARINE CORPS RESERVE THE RIGHT OF A MEMBER OF THE FLEET MARINE CORPS RESERVE, ASSIGNED THERETO UNDER THE PROVISIONS OF SECTION 22 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1086, TO RECEIVE AND RETAIN THE ADVANCE PAY OF $25 PER ANNUM AS PROVIDED IN SAID SECTION IS NOT AFFECTED BY REASON OF THE PERFORMANCE OF ACTIVE DUTY DURING HIS PERIOD OF ASSIGNMENT TO THE FLEET MARINE CORPS RESERVE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 9, 1926:

BY YOUR ENDORSEMENT OF MAY 24, 1926, I HAVE THE REQUEST PRESENTED BY THE MAJOR GENERAL COMMANDANT, MARINE CORPS, AS FOLLOWS:

(A) A MAN ASSIGNED TO THE FLEET MARINE CORPS RESERVE UNDER PROVISIONS OF SECTION 22 OF THE RESERVE ACT IS ORDERED WITH HIS CONSENT TO PERFORM ACTIVE DUTY. WHAT ARE HIS RIGHTS AS TO THE RETENTION OF THE $25 ADVANCE PAYMENT AND AS TO FUTURE PAYMENTS?

(B) SUCH A MAN IS ORDERED TO TRAINING DUTY WITH HIS CONSENT FOR A PERIOD OF 30 DAYS. WHAT ARE HIS RIGHTS AS TO THE RETENTION OF THE $25 ADVANCE PAYMENT AND AS TO FUTURE PAYMENTS?

SECTION 22 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1086, PROVIDES IN PART AS FOLLOWS:

THAT THE SECRETARY OF THE NAVY, IN HIS DISCRETION, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, MAY REQUIRE ANY PERSON HEREAFTER WHEN FIRST ENLISTING IN THE REGULAR NAVAL SERVICE AND MAY AUTHORIZE ANY ENLISTED MAN IN SUCH SERVICE TO OBLIGATE HIMSELF TO SERVE FOUR YEARS IN THE FLEET NAVAL RESERVE UPON TERMINATION OF HIS ENLISTMENT IN THE REGULAR NAVAL SERVICE: PROVIDED, THAT UPON TERMINATION OF THEIR ENLISTMENT IN THE REGULAR NAVAL SERVICE, MEN WHO HAVE SO OBLIGATED THEMSELVES SHALL BE ASSIGNED TO THE FLEET NAVAL RESERVE FOR THE FOUR YEAR PERIOD, UNLESS THEY APPLY FOR REENLISTMENT OR EXTENSION OF THEIR ENLISTMENT IN THE REGULAR NAVAL SERVICE, IN WHICH EVENT THEY MAY BE REENLISTED OR MAY EXTEND THEIR ENLISTMENT IN THE REGULAR NAVAL SERVICE: PROVIDED FURTHER, THAT THE MEN SO ASSIGNED TO THE FLEET NAVAL RESERVE FOR THE FOUR-YEAR PERIOD SHALL NOT, IN TIME OF PEACE, BE ORDERED TO ACTIVE DUTY, EXCEPT WITH THEIR OWN CONSENT, AND SHALL BE UNDER NO OBLIGATION TO PERFORM TRAINING DUTY OR DRILL DURING THAT PERIOD, BUT SHALL BE PAID IN ADVANCE $25 PER ANNUM, EXCEPT WHEN, WITH THEIR OWN CONSENT, THEY BECOME ATTACHED TO A DIVISION OF THE FLEET NAVAL RESERVE, OR SATISFACTORILY PERFORM APPROPRIATE DUTIES ASSIGNED BY DIRECTION OF THE SECRETARY OF THE NAVY, IN WHICH CASE THEY SHALL RECEIVE THE PAY, ALLOWANCES, GRATUITIES, AND OTHER EMOLUMENTS AS HEREIN SPECIFICALLY PROVIDED FOR ENLISTED MEN OF THE FLEET NAVAL RESERVE.

SECTION 2 OF THE SAME ACT, 43 STAT. 1080, CREATES "A MARINE CORPS RESERVE, UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THIS ACT OR WHICH MAY HEREAFTER BE ENACTED PROVIDING FOR THE NAVAL RESERVE.' ACCORDINGLY, THE PROVISIONS IN SECTION 22 APPLY TO ASSIGNED MEMBERS OF THE FLEET MARINE CORPS RESERVE.

THE ADVANCE PAYMENT OF $25 PER ANNUM TO BE PAID EACH ASSIGNED MEMBER IS NOT A PAYMENT FOR SERVICE, BUT A RETAINER IN CONSIDERATION OF THE MEMBER'S OBLIGATION TO SERVE IN TIME OF WAR OR NATIONAL EMERGENCY. IT DOES NOT ACCRUE PROPORTIONATELY DURING EACH PART OF THE YEAR, BUT IS PAYABLE ANNUALLY IN ADVANCE--- THAT IS AT THE BEGINNING OF EACH SERVICE YEAR "EXCEPT WHEN, WITH THEIR OWN CONSENT, THEY BECOME ATTACHED TO A DIVISION OF THE FLEET NAVAL RESERVE, OR SATISFACTORILY PERFORM APPROPRIATE DUTIES ASSIGNED BY DIRECTION OF THE SECRETARY OF THE NAVY," IN WHICH EVENT THEY WOULD BE ENTITLED TO THE "DRILL" PAY PROVIDED FOR THIS CHARACTER OF TRAINING.

SECTION 11 OF THE SAME ACT PROVIDES THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY OFFICERS AND ENLISTED MEN OF THE SAME GRADE OR RATING IN THE REGULAR NAVY. SECTION 21 OF THE ACT PROVIDES COMPENSATION FOR ATTENDING DRILLS OR OTHER EQUIVALENT DUTY, AND FOR PERFORMING APPROPRIATE DUTIES; IT ALSO PROVIDES THAT SUCH COMPENSATION OR "DRILL PAY" SHALL NOT ACCRUE TO OFFICERS OR ENLISTED MEN DURING A PERIOD WHEN THEY SHALL BE LAWFULLY ENTITLED TO PAY FOR ACTIVE OR TRAINING DUTY.

THE QUESTION PRESENTED IS WHETHER MEN ASSIGNED TO THE FLEET MARINE CORPS RESERVE BY REASON OF THE PERFORMANCE OF ACTIVE DUTY AS PROVIDED IN SECTIONS 11 AND 22, MAY RETAIN PAYMENTS OF THE $25 ADVANCE RETAINER PAY WHICH THEY HAVE RECEIVED; ALSO WHETHER SUCH ACTIVE DUTY AFFECTS THEIR RIGHT TO SUCH FUTURE PAYMENTS.

YOU ARE ADVISED THAT THE RIGHT OF A MEMBER OF THE FLEET MARINE CORPS RESERVE ASSIGNED THERETO UNDER PROVISIONS OF SECTION 22 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1086, TO RECEIVE AND RETAIN THE ADVANCE OF $25 PER ANNUM PROVIDED IN SAID SECTION IS NOT AFFECTED BY REASON OF PERFORMANCE OF ACTIVE DUTY DURING HIS PERIOD OF ASSIGNMENT TO THE FLEET MARINE CORPS RESERVE.