A-22515, MAY 4, 1928, 7 COMP. GEN. 700

A-22515: May 4, 1928

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NAVY ENLISTED MEN - TRANSFERS TO FLEET NAVAL RESERVE AN ENLISTED MAN OF THE NAVY WHO IS INSANE OR OTHERWISE PHYSICALLY DISQUALIFIED FOR ACTIVE SERVICE AND BY REASON THEREOF CAN NOT VALIDLY OBLIGATE HIMSELF TO SERVE IN THE NAVY DURING WAR OR NATIONAL EMERGENCY AS REQUIRED BY SECTION 4 OF THE ACT OF FEBRUARY 28. IS NOT ENTITLED TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 26 OF THE ACT BY REASON OF HAVING HAD THE SERVICE AS REQUIRED BY THAT SECTION. IS ENTITLED TO RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE. (2) IF IT IS DECIDED THAT AUSTIN IS ENTITLED TO RETAINER PAY. THAT HAVING BEEN TRIED AND CONVICTED BY A GENERAL COURT-MARTIAL HE WAS SENTENCED. "SO MUCH OF THE UNEXECUTED PORTION OF THE GENERAL COURT-MARTIAL SENTENCE IN AUSTIN'S CASE AS RELATES TO CONFINEMENT AND DISHONORABLE DISCHARGE IS HEREBY REMITTED AND HE WILL BE TRANSFERRED TO THE FLEET NAVAL RESERVE.'.

A-22515, MAY 4, 1928, 7 COMP. GEN. 700

NAVY ENLISTED MEN - TRANSFERS TO FLEET NAVAL RESERVE AN ENLISTED MAN OF THE NAVY WHO IS INSANE OR OTHERWISE PHYSICALLY DISQUALIFIED FOR ACTIVE SERVICE AND BY REASON THEREOF CAN NOT VALIDLY OBLIGATE HIMSELF TO SERVE IN THE NAVY DURING WAR OR NATIONAL EMERGENCY AS REQUIRED BY SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1081, IS NOT ENTITLED TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 26 OF THE ACT BY REASON OF HAVING HAD THE SERVICE AS REQUIRED BY THAT SECTION. A FORMER ENLISTED MAN OF THE NAVY MAY NOT BE TRANSFERRED TO THE FLEET NAVAL RESERVE WHILE NOT IN AN ENLISTED STATUS IN THE NAVY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 4, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 10, 1928, TRANSMITTING LETTER OF LIEUT. W. DISMUKES (SC), UNITED STATES NAVY, DATED MARCH 21, 1928, AND REQUESTING DECISION OF THE QUESTIONS THEREIN PRESENTED, VIZ: (1) WHETHER OR NOT PETER AUSTIN, APPRENTICE SEAMAN, CLASS 4-C, F.N.R., IS ENTITLED TO RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE; AND (2) IF IT IS DECIDED THAT AUSTIN IS ENTITLED TO RETAINER PAY, WHETHER OR NOT SUCH PAY SHALL BE BASED ON THE RATING OF APPRENTICE SEAMAN, THE RATING TO WHICH REDUCED BY SENTENCE OF GENERAL COURT-MARTIAL, OR ON THE RATING OF WATER TENDER, SECOND CLASS, RATING HELD AT THE TIME OF TRIAL.

IT APPEARS THAT AUSTIN HAD COMPLETED 16 YEARS' SERVICE IN THE NAVY WHEN HE REENLISTED DECEMBER 20, 1923, TO SERVE 4 YEARS; THAT HAVING BEEN TRIED AND CONVICTED BY A GENERAL COURT-MARTIAL HE WAS SENTENCED, AS APPROVED JULY 9, 1925, TO BE REDUCED TO THE RATING OF APPRENTICE SEAMAN, TO BE CONFINED FOR A PERIOD OF 3 YEARS, THEN TO BE DISHONORABLY DISCHARGED, AND TO SUFFER ALL THE OTHER ACCESSORIES OF SAID SENTENCE; THAT A BOARD OF MEDICAL SURVEY CONVENED SEPTEMBER 15, 1927, FOUND AUSTIN TO BE SUFFERING FROM DEMENTIA PRAECOX, ORIGIN IN LINE OF DUTY, NOT THE RESULT OF HIS OWN MISCONDUCT, AND RECOMMENDED THAT HE BE DISCHARGED FROM THE UNITED STATES NAVAL SERVICE AND RETAINED IN ST. ELIZABETHS HOSPITAL; THAT UNDER DATE OF FEBRUARY 25, 1928, THE SECRETARY OF THE NAVY DIRECTED, IN VIEW OF THE FINDING OF THE BOARD OF MEDICAL SURVEY AND IN ACCORDANCE WITH THE RECOMMENDATION OF THE CHIEF OF THE BUREAU OF NAVIGATION,"SO MUCH OF THE UNEXECUTED PORTION OF THE GENERAL COURT-MARTIAL SENTENCE IN AUSTIN'S CASE AS RELATES TO CONFINEMENT AND DISHONORABLE DISCHARGE IS HEREBY REMITTED AND HE WILL BE TRANSFERRED TO THE FLEET NAVAL RESERVE.'

THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, ET SEQ., EFFECTIVE JULY 1, 1925, BY SECTION 1, ABOLISHED THE NAVAL RESERVE FORCE ESTABLISHED UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 587, AND IN LIEU THEREOF CREATED AND ESTABLISHED, AS A COMPONENT PART OF THE UNITED STATES NAVY, A NAVAL RESERVE WHICH SHALL CONSIST OF THREE CLASSES, NAMELY: THE FLEET NAVAL RESERVE, THE MERCHANT MARINE NAVAL RESERVE, AND THE VOLUNTEER NAVAL RESERVE, AND BY SECTION 3, REPEALED ALL PRIOR PROVISIONS OF LAW RELATING TO THE NAVAL RESERVE FORCE EXCEPTING THOSE CONTAINED IN THE ACT OF JUNE 10, 1922, 42 STAT. 625.

THE ACT FURTHER PROVIDED, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

SEC. 4. THAT THE NAVAL RESERVE SHALL BE COMPOSED OF MALE CITIZENS OF THE UNITED STATES AND OF THE INSULAR POSSESSIONS OF THE UNITED STATES OF EIGHTEEN YEARS OF AGE OR OVER WHO BY APPOINTMENT OR ENLISTMENT THEREIN, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, OR BY TRANSFER OR ASSIGNMENT THERETO AS IN THIS ACT PROVIDED, OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT: * * *.

SEC. 23. MEN WHO ENLIST IN THE REGULAR NAVY AFTER THE PASSAGE OF THIS ACT, EXCEPT AS HEREIN OTHERWISE PROVIDED, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE ONLY UPON THE COMPLETION OF AT LEAST TWENTY YEARS' NAVAL SERVICE AND PROVIDED THEY ARE THEN FOUND PHYSICALLY AND OTHERWISE QUALIFIED TO PERFORM DUTY IN TIME OF WAR AND APPLY FOR SUCH TRANSFER, AND THEREAFTER, EXCEPT WHEN ON ACTIVE DUTY, SHALL BE PAID AT THE RATE OF ONE- HALF OF THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER: * * *

SEC. 26. ENLISTED MEN SERVING IN THE REGULAR NAVY ON THE DATE OF THE APPROVAL OF THIS ACT, OR WHO, HAVING BEEN DISCHARGED THEREFROM, REENLIST IN THE REGULAR NAVY WITHIN THREE MONTHS FROM DATE OF DISCHARGE, OR WHO ARE SERVING IN THE NAVAL RESERVE FORCE ON THE DATE OF THIS ACT IN AN ENROLLMENT ENTERED INTO WITHIN FOUR MONTHS FROM THE DATE OF THEIR DISCHARGE FROM THE REGULAR NAVY AND HEREAFTER REENLIST IN THE REGULAR NAVY WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE FROM THE NAVAL RESERVE, HEREIN CREATED, SHALL BE ENTITLED TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE ON THE COMPLETION OF SIXTEEN OR MORE YEARS' NAVAL SERVICE, AND WHEN SO TRANSFERRED SHALL, EXCEPT WHEN ON ACTIVE DUTY, BE ENTITLED TO RECEIVE, IF THEY HAVE HAD SIXTEEN BUT LESS THAN TWENTY YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-THIRD THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO, AND IF THEY HAVE HAD TWENTY OR MORE YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO: * * *

SEC. 27. THAT IN TIME OF PEACE ALL ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE IN ACCORDANCE WITH THE PRECEDING SECTION MAY BE REQUIRED TO PERFORM NOT MORE THAN TWO MONTHS' ACTIVE DUTY IN EACH FOUR- YEAR PERIOD AND SHALL BE EXAMINED PHYSICALLY AT LEAST ONCE DURING EACH FOUR-YEAR PERIOD, AND IF UPON SUCH EXAMINATION THEY ARE FOUND NOT PHYSICALLY QUALIFIED THEY SHALL BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY ARE THEN RECEIVING, AND UPON THE COMPLETION OF THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE, TIME IN THE FLEET NAVAL RESERVE AND TIME ON THE RETIRED LIST OF THE NAVY, THEY SHALL RECEIVE THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE: * * *

SEC. 36. THAT THE SECRETARY OF THE NAVY SHALL PRESCRIBE ALL NECESSARY AND PROPER REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT, FOR THE RECRUITING, ORGANIZATION, GOVERNMENT, ADMINISTRATION, TRAINING, INSPECTION, AND MOBILIZATION OF THE NAVAL RESERVE HEREBY CREATED AND ESTABLISHED. * * *

THE NAVAL RESERVE REGULATIONS ISSUED IN PURSUANCE OF THE SAID ACT DEFINE THE MISSION OF THE NAVAL RESERVE AS FOLLOWS:

H-1101. MISSION.--- THE MISSION OF THE NAVAL RESERVE IS TO PROCURE, ORGANIZE, AND TRAIN THE OFFICERS AND MEN NECESSARY IN THE EVENT OF WAR FOR THE EXPANSION AND OPERATION OF THE UNITED STATES FLEET AND NAVAL TRANSPORTATION SERVICE.

AND OF THE FLEET NAVAL RESERVE IN PARTICULAR AS FOLLOWS:

H-2101. MISSION.--- THE MISSION OF THE FLEET NAVAL RESERVE IS TO CREATE AND MOBILIZE TRAINED ORGANIZATIONS FOR SERVICE ON BOARD VESSELS OF THE UNITED STATES FLEET AND NAVAL TRANSPORTATION SERVICE IN THE THEATER OF OPERATIONS.

PARAGRAPH H-1202 OF THE REGULATIONS, UNDER THE HEAD OF "ELIGIBILITY FOR MEMBERSHIP," IS A STATEMENT OF THE PROVISIONS IN SECTION 4 OF THE ACT, QUOTED ABOVE, AND PARAGRAPH H-2416 PROVIDES THAT THE ENLISTED MEN DESCRIBED IN SECTION 26 OF THE ACT, QUOTED ABOVE,"SHALL BE ENTITLED TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE, CLASS F-4, ON THE COMPLETION OF 16 OR MORE YEARS' NAVAL SERVICE, PROVIDED HIS REQUEST FOR TRANSFER HAS BEEN SUBMITTED IN DUPLICATE ON FORM N. NAV. 395 AND HAS BEEN APPROVED BY THE BUREAU OF NAVIGATION.'

IN DECISION OF SEPTEMBER 4, 1924, 4 COMP. GEN. 260, IT WAS HELD THAT THE ACT OF JULY 1, 1922, 42 STAT. 800, PROVIDING FOR THE REENLISTMENT OF CERTAIN ENLISTED MEN OF THE NAVY UNTIL THEY HAVE SERVED 16 YEARS IN ORDER TO QUALIFY THEM FOR TRANSFER TO THE FLEET NAVAL RESERVE, DID NOT GIVE THEM A VESTED RIGHT TO BE RETAINED IN THE SERVICE OVER ALL CIRCUMSTANCES AND DID NOT RENDER VOID A DISCHARGE FOR PHYSICAL DISABILITY BEFORE THE COMPLETION OF THE 16 YEARS OF SERVICE. IN THE DECISION IT WAS STATED:

* * * THERE IS NO INTENDMENT THAT THE BLIND, THE HALT, AND THE LAME SHALL BE CONTINUED ON THE ACTIVE LIST OF THE NAVY UNTIL THEY HAVE COMPLETED 16 YEARS OF SERVICE WITH A RIGHT TO TRANSFER TO THE FLEET NAVAL RESERVE. NOR DOES THE ACT OF AUGUST 29, 1916, 39 STAT. 587, ET SEQ., ESTABLISHING THE NAVAL RESERVE FORCE, NOR ANY OF ITS AMENDMENTS INDICATE THAT THAT FORCE SHOULD BE COMPOSED OF DECREPITS UNFIT FOR ACTIVE SERVICE. IN FACT, THE CONTRARY IS CLEARLY IMPLIED BY THE FOLLOWING, QUOTED FROM 39 STAT. 587:

"THE NAVAL RESERVE FORCE SHALL BE COMPOSED OF CITIZENS OF THE UNITED STATES WHO, BY ENROLLING UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY OR BY TRANSFER THERETO AS IN THIS ACT PROVIDED, OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY, DECLARED BY THE PRESIDENT: PROVIDED, THAT CITIZENS OF THE INSULAR POSSESSIONS OF THE UNITED STATES MAY ENROLL IN THE NAVAL AUXILIARY RESERVE.'

THERE ARE OTHER PROVISIONS IN THE LAWS APPLICABLE TO THE NAVAL RESERVE FORCE INDICATING THAT IT SHOULD BE COMPOSED OF PHYSICALLY FIT MEMBERS. THE PROVISION FOR TRANSFER OF ENLISTED MEN OF THE NAVY AFTER 16 AND 20 YEARS OF SERVICE TO THE FLEET NAVAL RESERVE WAS NOT INTENDED TO PROVIDE A FORM OF A RETIREMENT FOR PHYSICALLY UNFIT ENLISTED MEN OF THE NAVY WHO HAD HAD THAT SERVICE. IT IS NOT NECESSARY AT THIS TIME TO INQUIRE WHETHER THE TRANSFER OF A PHYSICALLY UNFIT ENLISTED MAN TO THE FLEET NAVAL RESERVE IS ILLEGAL, BUT THE MATTER IS ONE FOR INQUIRY BY THE NAVAL AUTHORITIES BEFORE SUCH A QUESTION ARISES IN THE AUDIT OF THE ACCOUNTS.

REFERRING TO THE LAST SENTENCE OF THE ABOVE QUOTATION, YOU STATE:

4. THE PRESENT CASE, THAT OF AUSTIN, IS ONE SUCH AS IS CONTEMPLATED IN THE LAST QUOTED EXCERPT FROM THE COMPTROLLER GENERAL'S DECISION. THERE IS NO QUESTION BUT THAT AUSTIN WAS PHYSICALLY UNFIT AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE. SINCE, HOWEVER, AUSTIN HAD COMPLETED MORE THAN SIXTEEN YEARS' SERVICE BEFORE SUCH TRANSFER, THE ACT UNDER CONSIDERATION IN THE COMPTROLLER GENERAL'S DECISION OF SEPTEMBER 4, 1924, HAD NO APPLICATION IN THIS CASE. AUSTIN WAS TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE TERMS OF THE LATER ACT OF FEBRUARY 28, 1925, AND IN ACCORDANCE WITH SECTION 26 THEREOF * * *.

IT IS THE VIEW OF THE NAVY DEPARTMENT THAT THE ABOVE SECTION CONSTITUTES LEGAL AUTHORITY FOR THE TRANSFER OF AUSTIN TO THE FLEET NAVAL RESERVE. WAS SERVING IN THE REGULAR NAVY ON JULY 1, 1925, AND HAD COMPLETED MORE THAN SIXTEEN YEARS' NAVAL SERVICE ON MARCH 12, 1928, THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE. THE ABOVE SECTION CONTAINS NO PROVISION TO THE EFFECT THAT A MAN COMING WITHIN ITS TERMS MUST, AS A CONDITION PRECEDENT TO BEING TRANSFERRED TO THE FLEET NAVAL RESERVE, BE FOUND PHYSICALLY QUALIFIED TO PERFORM DUTY IN TIME OF WAR. NOR CAN IT BE SAID THAT SUCH A CONDITION, EVEN THOUGH UNEXPRESSED, IS IMPLIED IN THE ABOVE SECTION FOR THE REASON THAT, IN ANOTHER SECTION OF THE SAME ACT, IN DESCRIBING THE QUALIFICATIONS NECESSARY FOR TRANSFER TO THE FLEET NAVAL RESERVE IN THE CASES OF MEN WHO HAD ENLISTED SINCE JULY 1, 1925, CONGRESS HAS EXPRESSLY PROVIDED THAT SUCH MEN MUST BE FOUND PHYSICALLY QUALIFIED TO PERFORM DUTY IN TIME OF WAR. THIS PROVISION IS CONTAINED IN SECTION 23 OF THE SAID ACT OF FEBRUARY 28, 1925 * * *.

IT IS TRUE THAT SECTION 26 CONTAINS NO PROVISION EITHER EXPRESS OR FROM WHICH IT COULD BE IMPLIED THAT A MAN COMING WITHIN ITS TERMS MUST, AS A CONDITION PRECEDENT TO BEING TRANSFERRED TO THE FLEET NAVAL RESERVE, BE FOUND ON EXAMINATION PHYSICALLY QUALIFIED TO PERFORM DUTY IN TIME OF WAR. NO NECESSARY IMPLICATION ARISES FROM THIS FACT, HOWEVER, THAT IT WAS THE INTENTION TO GIVE SUCH ENLISTED MEN WHO ARE KNOWN TO BE PHYSICALLY DISQUALIFIED FOR SERVICE THE RIGHT TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE FOR THE PURPOSE OF BRINGING THEM WITHIN THE RETIREMENT PROVISIONS OF SECTION 27 OF THE ACT WHICH ASSUMES THAT THE MEN WERE PHYSICALLY QUALIFIED AT THE TIME OF TRANSFER AND SUBSEQUENTLY BECAME DISABLED. THE CONGRESS HAD INTENDED TO PROVIDE FOR THE RETIREMENT OF ENLISTED MEN OF THE NAVY ON ACCOUNT OF PHYSICAL DISABILITY INCURRED IN THE SERVICE NO DOUBT PLAIN AND UNAMBIGUOUS WORDS TO EXPRESS SUCH PURPOSE WOULD HAVE BEEN USED.

APPARENTLY THE DEPARTMENT IN CONSTRUING SECTION 26 GIVES NO EFFECT TO SECTION 4, WHICH SECTION, QUOTED ABOVE, REQUIRES ALL MEMBERS OF THE NAVAL RESERVE TO OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT. THIS PROVISION APPLIES TO ALL MEMBERS OF THE NAVAL RESERVE, INCLUDING THOSE TRANSFERRED THERETO AS PROVIDED IN THE ACT. SECTION 26 CONTAINS ADDITIONAL SPECIAL PROVISIONS APPLYING TO THE MEN THEREIN DESCRIBED.

THE TWO SECTIONS SHOULD BE READ TOGETHER AND EFFECT GIVEN TO BOTH. BERNIER V. BERNIER, 147 U.S. 242, 246, IT WAS SAID:

* * * IT IS A GENERAL RULE, WITHOUT EXCEPTION, IN CONSTRUING STATUTES, THAT EFFECT MUST BE GIVEN TO ALL THEIR PROVISIONS IF SUCH A CONSTRUCTION IS CONSISTENT WITH THE GENERAL PURPOSES OF THE ACT AND THE PROVISIONS ARE NOT NECESSARILY CONFLICTING. ALL ACTS OF THE LEGISLATURE SHOULD BE SO CONSTRUED, IF PRACTICABLE, THAT ONE SECTION WILL NOT DEFEAT OR DESTROY ANOTHER, BUT EXPLAIN AND SUPPORT IT. WHEN A PROVISION ADMITS OF MORE THAN ONE CONSTRUCTION, THAT ONE WILL BE ADOPTED WHICH BEST SERVES TO CARRY OUT THE PURPOSES OF THE ACT. * * * THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE ACT OF FEBRUARY 28, 1925, WAS TO OBTAIN AND MAINTAIN AN EFFICIENT TRAINED FORCE TO SUPPLEMENT THE REGULAR NAVY IN TIME OF WAR OR NATIONAL EMERGENCY, AND NOT TO PROVIDE FOR THE INDIRECT RETIREMENT ON ACCOUNT OF PHYSICAL DISABILITY OF ENLISTED MEN OF THE NAVY.

AN ENLISTED MAN OF THE NAVY WHO IS PERMANENTLY PHYSICALLY DISQUALIFIED FOR FURTHER SERVICE IN THE NAVY OR WHO IS INSANE CAN NOT VALIDLY OBLIGATE HIMSELF TO SERVE AS REQUIRED BY THE PROVISIONS OF SECTION 4 OF THE ACT. IT IS APPARENT THAT AUSTIN COULD NOT OBLIGATE HIMSELF TO SERVE AS REQUIRED BY SECTION 4 AND THEREFORE WAS NOT ELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 26, AND HIS ERRONEOUS TRANSFER THEREUNDER GIVES HIM NO RIGHT TO PAY AS THEREIN PROVIDED.

THERE IS ANOTHER FEATURE OF THIS CASE THAT MAY BE NOTED. SECTION 26 OF THE ACT UNDER CONSIDERATION PROVIDES THAT THE ENLISTED MEN WHEN TRANSFERRED UNDER THAT SECTION WHO HAVE HAD 16 BUT LESS THAN 20 YEARS' NAVAL SERVICE SHALL BE ENTITLED TO RECEIVE PAY AT THE RATE OF ONE THIRD THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO. THIS SECTION CONTEMPLATES THAT THE MEN COMING WITHIN ITS TERMS NOT ONLY ARE ABLE TO OBLIGATE THEMSELVES TO SERVE IN THE NAVY AS REQUIRED BY SECTION 4, BUT THAT THEY ARE ALSO IN A PAY STATUS AT THE TIME OF TRANSFER. AUSTIN'S ENLISTMENT EXPIRED ON DECEMBER 19, 1927, AND HIS PAY STATUS CEASED ON THAT DATE BY REASON OF HIS SERVING THE SENTENCE OF A GENERAL COURT-MARTIAL. 9 COMP. DEC. 256. THE REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE THEREAFTER ON FEBRUARY 25, 1928, DID NOT HAVE THE EFFECT TO RESTORE HIM TO DUTY AND TO A PAY STATUS. WAS, THEREFORE, NOT RECEIVING ANY PAY WHEN HE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON MARCH 12, 1928. SEE IN THIS CONNECTION 34 MS. COMP. GEN. 868, JUNE 23, 1924, A 2621.

AS AUSTIN IS NOT ENTITLED TO ANY PAY AS A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE, IT IS UNNECESSARY TO DECIDE THE SECOND QUESTION SUBMITTED. THERE IS FOR CONSIDERATION BY HIS CUSTODIAN OR GUARDIAN, HOWEVER, THE APPLICATION OF THE PENSION LAWS TO HIS CASE.