A-28195, AUGUST 28, 1929, 9 COMP. GEN. 95

A-28195: Aug 28, 1929

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IS ENTITLED TO RETAINER PAY. BASED ON THE ACTIVE-DUTY PAY TO WHICH HE WAS ACTUALLY ENTITLED TO ON THE LAST DAY OF HIS SERVICE IN THE REGULAR MARINE CORPS PRIOR TO HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE. 1929: THERE IS FOR CONSIDERATION IN THE CLAIM OF WILLIAM R. THE QUESTION WHETHER IN THE COMPUTATION OF SANDS'S RETAINER PAY HE IS ENTITLED TO BE CREDITED LONGEVITY FOR THE LUSTRUM OF SERVICE COMPLETED ON THE DATE OF TRANSFER. WHEN HE WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE TO AN INACTIVE STATUS THEREIN AS OF MIDNIGHT AUGUST 20. IS HEREBY ABOLISHED. IN LIEU THEREOF THERE IS HEREBY CREATED AND ESTABLISHED. 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.

A-28195, AUGUST 28, 1929, 9 COMP. GEN. 95

PAY - RETAINER - FLEET MARINE CORPS RESERVE AN ENLISTED MAN OF THE MARINE CORPS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087, IS ENTITLED TO RETAINER PAY, INCLUDING PERMANENT ADDITIONS, BASED ON THE ACTIVE-DUTY PAY TO WHICH HE WAS ACTUALLY ENTITLED TO ON THE LAST DAY OF HIS SERVICE IN THE REGULAR MARINE CORPS PRIOR TO HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 28, 1929:

THERE IS FOR CONSIDERATION IN THE CLAIM OF WILLIAM R. SANDS, GUNNERY SERGEANT, FLEET MARINE CORPS RESERVE, TRANSFERRED TO THE FLEET MARINE CORPS RESERVE AUGUST 20, 1928, THE QUESTION WHETHER IN THE COMPUTATION OF SANDS'S RETAINER PAY HE IS ENTITLED TO BE CREDITED LONGEVITY FOR THE LUSTRUM OF SERVICE COMPLETED ON THE DATE OF TRANSFER.

IT APPEARS THAT SANDS SERVED HONORABLY IN THE MARINE CORPS FROM JULY 11, 1908, TO JULY 10, 1912, FROM JULY 11, 1912, TO JULY 10, 1916, FROM JULY 11, 1916, TO JULY 10, 1920, FROM AUGUST 21, 1920, TO AUGUST 20, 1924, FROM AUGUST 21, 1924, TO AUGUST 20, 1928, WHEN HE WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE TO AN INACTIVE STATUS THEREIN AS OF MIDNIGHT AUGUST 20, 1928. DURING SUCH PERIODS OF SERVICE SANDS LOST NO TIME FOR ANY CAUSE AND ON DATE OF TRANSFER HAD COMPLETED EXACTLY 20 YEARS' SERVICE AND CLAIMS CREDIT FOR 20 YEARS' LONGEVITY IN THE COMPUTATION OF HIS RETAINER PAY IN THE FLEET MARINE CORPS RESERVE.

SECTIONS 2 AND 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, 1087, PROVIDE:

SEC. 2. THAT THE UNITED STATES MARINE CORPS RESERVE, ESTABLISHED UNDER THE ACT OF AUGUST 29, 1916, IS HEREBY ABOLISHED, AND IN LIEU THEREOF THERE IS HEREBY CREATED AND ESTABLISHED, AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS, 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: PROVIDED, THAT THE MARINE CORPS RESERVE SHALL CONSIST OF TWO CLASSES, NAMELY: THE FLEET MARINE CORPS RESERVE AND THE VOLUNTEER MARINE CORPS RESERVE, CORRESPONDING, AS NEAR AS MAY BE, TO THE FLEET NAVAL RESERVE AND THE VOLUNTEER NAVAL RESERVE, RESPECTIVELY.

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 FLEETNAVAL 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: PROVIDED, THAT THE PAY AUTHORIZED IN THIS SECTION SHALL BE INCREASED 10 PERCENTUM FOR ALL MEN WHO MAY BE CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY OR WHOSE AVERAGE MARKS IN CONDUCT FOR TWENTY YEARS OR MORE SHALL NOT BE LESS THAN 95 PERCENTUM OF THE MAXIMUM: PROVIDED FURTHER, THAT FOR ALL PURPOSES OF THIS SECTION A COMPLETE ENLISTMENT DURING MINORITY SHALL BE COUNTED AS FOUR YEARS'SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED.

IN SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, IT IS PROVIDED:

* * * EXISTING LAWS AUTHORIZING CONTINUOUS-SERVICE PAY FOR EACH FIVE YEARS OF SERVICE ARE HEREBY REPEALED, EFFECTIVE JUNE 30, 1922. COMMENCING JULY 1, 1922, * * * ENLISTED MEN OF THE ARMY AND MARINE CORPS, SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 5 PERCENTUM OF THEIR BASE PAY FOR EACH FOUR YEARS OF SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT NOT TO EXCEED 25 PERCENTUM. * * *

THE ACT OF AUGUST 29, 1916, 39 STAT. 590, DESCRIBING THE MEASURE OF RETAINER PAY AUTHORIZED FOR MEMBERS OF THE FLEET NAVAL RESERVE OF THE NAVAL RESERVE FORCE, PROVIDED:

MEMBERS OF THE FLEET NAVAL RESERVE WHO HAVE, WHEN TRANSFERRED TO THE FLEET NAVAL RESERVE, COMPLETED NAVAL SERVICE OF SIXTEEN OR TWENTY OR MORE YEARS SHALL BE PAID A RETAINER AT THE RATE OF ONE-THIRD AND ONE HALF, RESPECTIVELY, OF THE BASE PAY THEY WERE RECEIVING AT THE CLOSE OF THEIR LAST NAVAL SERVICE PLUS ALL PERMANENT ADDITIONS THERETO: * * *

THE PHRASE "PAY THEY WERE RECEIVING AT THE CLOSE OF THEIR LAST NAVAL SERVICE" IN THE ABOVE-QUOTED PORTION OF THE ACT OF AUGUST 29, 1916, UNQUESTIONABLY BASED THE RETAINER PAY ON THE PAY TO WHICH THE TRANSFERRED MAN WAS LEGALLY ENTITLED ON THE LAST DAY OF HIS NAVAL OR MARINE CORPS SERVICE.

THAT THIS LANGUAGE OF THE ACT OF AUGUST 29, 1916, DID NOT AUTHORIZE CREDIT FOR CONTINUOUS-SERVICE PAY THAT WOULD HAVE ACCRUED IN THE SUCCEEDING ENLISTMENT IN THE CASE OF MEN TRANSFERRED IS APPARENT FROM AN EXAMINATION OF THE PROVISIONS FOR INCREASED PAY FOR LENGTH OF SERVICE OF ENLISTED MEN BOTH OF THE NAVY AND THE MARINE CORPS. ENLISTED MEN OF THE NAVY WERE ENTITLED TO INCREASED PAY UNDER NAVY GENERAL ORDER NO. 34 OF 1906, IF CITIZENS OF THE UNITED STATES, FOR "EACH SUBSEQUENT PERIOD OF SERVICE" AND TO CONTINUOUS-SERVICE PAY FOR EACH CONSECUTIVE REENLISTMENT. ENLISTED MEN OF THE MARINE CORPS WERE ENTITLED TO CONTINUOUS-SERVICE PAY UNDER THE ARMY ACT OF MAY 11, 1908, 35 STAT. 109, WHICH PROVIDED INCREASED PAY "DURING EACH SUBSEQUENT ENLISTMENT.' WHEN SUCH MEN WERE TRANSFERRED TO THE FLEET NAVAL RESERVE THERE WAS NOT OF COURSE, A REENLISTMENT AND THERE WAS NO QUESTION THEY WER NOT ENTITLED TO BE CREDITED IN THEIR RETAINER PAY WITH A CONTINUOUS-SERVICE INCREASE OF PAY THEY WOULD HAVE RECEIVED HAD THEY REENLISTED. THE INTENT OF THE STATUTE IN THIS RESPECT BEING PLAINLY TO GIVE THE MAN PERMANENT ADDITIONS ACTUALLY RECEIVED BY HIM ON THE DATE OF HIS TRANSFER, THE CHANGE IN THE METHOD OF COMPUTING INCREASE OF PAY FOR LENGTH OF SERVICE TO A PERCENTAGE OF PAY FOR EACH LUSTRUM OF SERVICE DOES NOT CHANGE THE RIGHT OF THE TRANSFERRED MAN OR AUTHORIZE THE INCLUSION OF LONGEVITY PAY HE HAD NOT RECEIVED PRIOR TO HIS TRANSFER TO THE FLEET NAVAL RESERVE. SEE HAZELTON'S CASE, A 10521, JULY 29, 1925.

IT IS OBVIOUS THAT THE PHRASE "PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER" IN SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, CONTEMPLATES ACTIVE-DUTY PAY IN THE REGULAR SERVICE, NAVY OR MARINE CORPS, FOR SUCH IS THE ONLY PAY THE MAN IS RECEIVING WHEN TRANSFERRED. THE PHRASE, THEREFORE, MUST MEAN THE PAY THE MAN IS ENTITLED TO RECEIVE FOR HIS LAST DAY'S SERVICE IN THE REGULAR SERVICE. THE PERMANENT ADDITIONS AUTHORIZED INCLUDE ONLY THE PERMANENT ADDITIONS TO WHICH THE MAN IS ENTITLED IN COMPUTING HIS PAY ON THE LAST DAY OF HIS REGULAR SERVICE. SEE DECISION A- 23952, OCTOBER 8, 1928, WHERE, AFTER QUOTING EXTENSIVELY FROM THE HEARINGS BEFORE THE HOUSE COMMITTEE ON NAVAL AFFAIRS RELATIVE TO THE NAVAL RESERVE ACT, IT IS STATED:

IT THUS APPEARS THAT THE PURPOSE OF THIS SECTION (SEC. 26 OF THE ACT OF FEBRUARY 28, 1925) WAS TO GIVE THE MEN COMING WITHIN ITS TERMS THE SAME RIGHTS AS WERE PROVIDED FOR SUCH MEN BY THE ACT OF AUGUST 29, 1916 NO MORE AND NO LESS.

ACCORDINGLY, NOT BEING ENTITLED TO LONGEVITY CREDIT FOR THE FIFTH LUSTRUM OF SERVICE ON AUGUST 20, 1928, IN COMPUTING THE ACTIVE DUTY PAY HE WAS RECEIVING AT THE TIME OF TRANSFER, SANDS IS NOT ENTITLED TO SUCH CREDIT IN THE COMPUTATION OF HIS RETAINER PAY AS A MEMBER OF THE FLEET MARINE CORPS RESERVE.