A-18093, MAY 2, 1927, 6 COMP. GEN. 709

A-18093: May 2, 1927

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CREDIT FOR DOUBLE TIME FOR SERVICE DURING THE SPANISH-AMERICAN WAR IS NOT AUTHORIZED. IS ENTITLED TO CREDIT FOR DOUBLE TIME FOR SERVING DURING THE SPANISH-AMERICAN WAR FROM APRIL 21. WAS IN CONTINUOUS SERVICE THEREIN UNTIL NOVEMBER 8. WHEN HE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE. HE WAS PLACED ON THE RETIRED LIST UNDER PROVISIONS OF THE ACT OF FEBRUARY 28. WAS 29 YEARS 5 MONTHS AND 20 DAYS. TEUCHTLER'S RIGHT TO BE PLACED ON THE RETIRED LIST OF THE NAVY IS CONTAINED IN SECTION 24 OF THE ACT OF FEBRUARY 28. AS FOLLOWS: ALL ENLISTED MEN WHO HERETOFORE HAVE BEEN TRANSFERRED FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE. WHO BY SECTION 1 OF THIS ACT ARE TRANSFERRED TO THE FLEET NAVAL RESERVE HEREIN CREATED.

A-18093, MAY 2, 1927, 6 COMP. GEN. 709

RETIREMENT - TRANSFERRED MEMBER, FLEET NAVAL RESERVE IN COMPUTING THE SERVICE NECESSARY TO ENTITLE A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE TO TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY, AS PROVIDED IN SECTION 24 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087, CREDIT FOR DOUBLE TIME FOR SERVICE DURING THE SPANISH-AMERICAN WAR IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 2, 1927:

BY YOUR INDORSEMENT OF APRIL 8, 1927, THERE HAS BEEN RECEIVED THE REQUEST OF LIEUT. A. W. BARNES (SC), UNITED STATES NAVY, FOR DECISION WHETHER ROBERT TEUCHTLER, C.M.A.A., FLEET NAVAL RESERVE, IS ENTITLED TO CREDIT FOR DOUBLE TIME FOR SERVING DURING THE SPANISH-AMERICAN WAR FROM APRIL 21, 1898, TO APRIL 11, 1899, IN COMPUTING THE 30 YEARS' SERVICE NECESSARY TO ENTITLE HIM TO TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY.

IT APPEARS THAT TEUCHTLER ENLISTED IN THE NAVY SEPTEMBER 7, 1895, AND WAS IN CONTINUOUS SERVICE THEREIN UNTIL NOVEMBER 8, 1916, WHEN HE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE, HAVING ON DATE OF TRANSFER 20 YEARS, 1 MONTH AND 11 DAYS' NAVAL SERVICE. ON MARCH 17, 1926, HE WAS PLACED ON THE RETIRED LIST UNDER PROVISIONS OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087. TEUCHTLER'S TOTAL ACTUAL NAVAL SERVICE WHEN TRANSFERRED TO THE FLEET NAVAL RESERVE ADDED TO TIME IN THE FLEET NAVAL RESERVE ON MARCH 16, 1926, WAS 29 YEARS 5 MONTHS AND 20 DAYS, AND UNLESS ENTITLED TO COUNT DOUBLE TIME FOR HIS SPANISH-AMERICAN WAR SERVICE, HE HAD NOT COMPLETED 30 YEARS WHEN PLACED ON THE RETIRED LIST.

TEUCHTLER'S RIGHT TO BE PLACED ON THE RETIRED LIST OF THE NAVY IS CONTAINED IN SECTION 24 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087, AS FOLLOWS:

ALL ENLISTED MEN WHO HERETOFORE HAVE BEEN TRANSFERRED FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE, ESTABLISHED BY THE ACT OF AUGUST 29, 1916, AND WHO BY SECTION 1 OF THIS ACT ARE TRANSFERRED TO THE FLEET NAVAL RESERVE HEREIN CREATED, SHALL RECEIVE THE RATE OF PAY THEY WERE LEGALLY ENTITLED TO RECEIVE IN THE NAVAL RESERVE FORCE: PROVIDED, THAT SUCH ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE HEREIN CREATED SHALL, UPON COMPLETING THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE OF THE NAVAL RESERVE FORCE AND IN THE FLEET NAVAL RESERVE HEREIN CREATED, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE, PLUS THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE.

THIS LANGUAGE IS SUBSTANTIALLY THAT OF THE ACT OF AUGUST 29, 1916, 39 STAT. 591, RESPECTING THE PLACING OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE ON THE RETIRED LIST OF THE NAVY, THE LANGUAGE IN THE LAST CITED ACT BEING:

* * * THEY MAY, UPON THEIR OWN REQUEST, UPON COMPLETING THIRTY YEARS' SERVICE, INCLUDING NAVAL AND FLEET NAVAL RESERVE SERVICE, BE PLACED ON THE RETIRED LIST OF THE NAVY WITH THE PAY THEY WERE THEN RECEIVING PLUS THE ALLOWANCES TO WHICH ENLISTED MEN OF THE SAME RATING ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE. * * *

THE ACT OF 1916, PAGE 589, ALSO PROVIDED:

IN ADDITION TO THE ENROLLMENTS IN THE FLEET NAVAL RESERVE ABOVE PROVIDED, THE SECRETARY OF THE NAVY IS AUTHORIZED TO TRANSFER TO THE FLEET NAVAL RESERVE AT ANY TIME WITHIN HIS DISCRETION ANY ENLISTED MAN OF THE NAVAL SERVICE WITH TWENTY OR MORE YEARS' NAVAL SERVICE, AND ANY ENLISTED MAN, AT THE EXPIRATION OF A TERM OF ENLISTMENT WHO MAY BE THEN ENTITLED TO AN HONORABLE DISCHARGE, AFTER SIXTEEN YEARS' NAVAL SERVICE: * * *.

THE CLAUSE DEFINING THE THIRTY YEARS' SERVICE IS INCLUSIVE OF ALL SERVICE TO BE INCLUDED IN THE COMPUTATION AND IS DESCRIBED AS NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE. THE QUESTION PRESENTED IS THEREFORE WHAT CONSTITUTES NAVAL SERVICE FOR THE PURPOSE OF THIS ACT. THE SAME PHRASE IS USED IN SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, IN AUTHORIZING TRANSFERS OF MEN IN THE SERVICE JULY 1, 1925,"ON THE COMPLETION OF SIXTEEN OR MORE YEARS' NAVAL SERVICE.'

IN THE CONSTRUCTION OF STATUTES "WHERE THE SAME WORD OR PHRASE IS USED IN DIFFERENT PARTS OF A STATUTE, IT WILL BE PRESUMED TO BE USED IN THE SAME SENSE THROUGHOUT; AND WHERE ITS MEANING IN ONE INSTANCE IS CLEAR, THIS MEANING WILL BE ATTACHED TO IT ELSEWHERE, UNLESS IT CLEARLY APPEARS FROM THE WHOLE STATUTE THAT IT WAS THE INTENTION OF THE LEGISLATURE TO USE IT IN DIFFERENT SENSES.' 36 CYC. 1131 AND AUTHORITIES THERE CITED.

THE CONTEXT OF THE STATUTE HERE CONSIDERED INDICATES CLEARLY THAT THE SERVICE THAT MAY BE COUNTED AS NAVAL SERVICE FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN OR MORE YEARS IS THE SAME SERVICE THAT IS TO BE COUNTED IN THE COMPUTATION OF 30 YEARS FOR TRANSFER TO THE RETIRED LIST.

PARAGRAPH E 702 (3) (4) OF BUREAU OF NAVIGATION MANUAL 1921 PROVIDES:

(3) CLASS 1, TRANSFERRED MEN OF 16 YEARS' SERVICE; ANY ENLISTED MAN HAVING A TOTAL OF 16 YEARS' NAVAL SERVICE (NOT NECESSARILY CONTINUOUS) AND WHO IS ENTITLED TO RECEIVE AN HONORABLE DISCHARGE AT THE EXPIRATION OF HIS CURRENT ENLISTMENT, MAY AT HIS OWN REQUEST AND WITH THE AUTHORITY OF THE SECRETARY OF THE NAVY, BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF HIS ENLISTMENT. HE IS NOT DISCHARGED.

(4) CLASS 1, TRANSFERRED MEN OF 20 YEARS' SERVICE; ANY ENLISTED MAN HAVING A TOTAL OF 20 YEARS' NAVAL SERVICE (NOT NECESSARILY CONTINUOUS) MAY AT HIS OWN REQUEST AND WITH THE AUTHORITY OF THE SECRETARY OF THE NAVY, BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME.

NAVAL RESERVE REGULATIONS 1925, PARAGRAPH H 2417, UNDER THE HEADING "COMPUTATION OF SERVICE" FOR PURPOSES OF RETIREMENT, LISTS THE SERVICE AND DEDUCTIONS THEREFROM AUTHORIZED TO BE COUNTED FOR TRANSFER, AND IN NEITHER THE MANUALS NOR THE REGULATIONS IS IT SUGGESTED THAT DOUBLE TIME FOR SPANISH-AMERICAN WAR SERVICE MAY BE COUNTED FOR PURPOSES OF TRANSFER.

PARAGRAPH E 501 OF BUREAU OF NAVIGATION MANUAL, 1921, PROVIDES:

* * * (1) TRANSFERRED MEMBERS OF THE NAVAL RESERVE FORCE MAY, AFTER COMPLETING 30 YEARS OF SERVICE, REGULAR NAVY, AND NAVAL RESERVE FORCE COMBINED, BE PLACED ON THE RETIRED LIST WITH THE RATING HELD BY THEM AT THE DATE OF TRANSFER TO THE NAVAL RESERVE FORCE, * * *.

SEE ALSO PARAGRAPHS H 2901 AND H 2902 OF NAVAL RESERVE REGULATIONS, 1925. IT THEREFORE APPEARS THE DEPARTMENT HAS NEVER IN ITS MANUALS OR REGULATIONS INTERPRETED THE TERM "NAVAL SERVICE" EITHER FOR THE PURPOSES OF TRANSFER TO THE FLEET NAVAL RESERVE OR FOR TRANSFER TO THE RETIRED LIST AFTER 30 YEARS' NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE AS INCLUDING DOUBLE TIME. THE ONLY BASIS FOR SUGGESTING THAT SOMETHING MORE IS AUTHORIZED TO BE COUNTED FOR TRANSFER TO THE RETIRED LIST THAN FOR TRANSFER TO THE FLEET NAVAL RESERVE UNDER IDENTICAL PHRASEOLOGY IS THE CLAUSE OF SECTION 24 OF THE ACT OF FEBRUARY 28, 1925, THAT SUCH MEN WHEN TRANSFERRED TO THE RETIRED LIST SHALL RECEIVE "THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER 30 YEARS' NAVAL SERVICE," AND ENLISTED MEN RETIRED AFTER 30 YEARS' SERVICE ARE ENTITLED TO COUNT DOUBLE TIME FOR SPANISH AMERICAN WAR SERVICE UNDER THE ACT OF MARCH 3, 1899, 30 STAT. 1008. THE LAST QUOTED CLAUSE IS MERELY DESCRIPTIVE OF THE ACTS AUTHORIZING RETIREMENT OF ENLISTED MEN AFTER 30 YEARS' SERVICE IN THE ARMY, NAVY, OR MARINE CORPS, AND MAY NOT FORM THE BASIS FOR CHANGING THE MEANING OF THE STATUTE WHICH IS OTHERWISE CLEAR THAT ONLY NAVAL SERVICE IS AUTHORIZED TO BE COUNTED. ONE YEAR'S SERVICE IN THE NAVY DURING THE SPANISH-AMERICAN WAR IS NOT TWO YEARS OF NAVAL SERVICE AND IT MAY NOT BE SO COUNTED EXCEPT WHEN RETIRED UNDER AND PURSUANT TO THE STATUTE SPECIFICALLY AUTHORIZING IT, AND NOT GENERALLY OR IN ANY OTHER CONNECTION.

IT IS NOTED THAT THE BUREAU OF NAVIGATION IN ITS COMMUNICATION TO THE COMMANDANT OF THE THIRD NAVAL DISTRICT RESPECTING THE TRANSFER OF TEUCHTLER TO THE RETIRED LIST STATED:

BY DIRECTION OF THE PRESIDENT, UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED MARCH 3, 1890, AS AMENDED BY THE ACTS APPROVED MARCH 2, 1907, AND FEBRUARY 28, 1925, THE SECRETARY OF THE NAVY DIRECTS THAT THE ABOVE-MENTIONED MAN, NOW ON THE INACTIVE LIST OF THE FLEET NAVAL RESERVE, CLASS F-3-D BE UPON HIS OWN APPLICATION, PLACED UPON THE RETIRED LIST CREATED BY THE ACT, TO TAKE EFFECT UPON RECEIPT OF THIS ORDER.

THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, ENTITLED "AN ACT TO PROVIDE FOR THE CREATION, ORGANIZATION, ADMINISTRATION, AND MAINTENANCE OF A NAVAL RESERVE AND A MARINE CORPS RESERVE" IS NOT AN AMENDMENT OF THE ACTS CITED FOR THE RETIREMENT OF ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS. IT MERELY AUTHORIZES CERTAIN TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE TO BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY AND NOT THEIR RETIREMENT UNDER THE ACTS OF 1899 AND 1907. THE CONCLUSION MUST BE THAT TEUCHTLER IS NOT ENTITLED TO THE ALLOWANCES TOTALING $15.75 PER MONTH PAID TO MEN RETIRED UNDER THE ACTS OF 1899 AND 1907 UNTIL HE SHALL HAVE COMPLETED 30 YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE OF THE NAVAL RESERVE FORCE, EXCLUDING CREDIT FOR DOUBLE TIME FOR SPANISH AMERICAN WAR SERVICE. TO THE SAME EFFECT IS 24 COMP. DEC. 679.