A-2879, SEPTEMBER 8, 1924, 4 COMP. GEN. 276

A-2879: Sep 8, 1924

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NAVAL RESERVE FORCE - RETAINER PAY ACTIVE SERVICE FOR THE MAINTENANCE OF EFFICIENCY IS REQUIRED WITH REGARD TO AN ENROLLMENT AS A WHOLE AND MUST BE PERFORMED BEFORE A MEMBER OF THE NAVAL RESERVE FORCE IS ENTITLED TO CONFIRMED RETAINER PAY FOR THE FOURTH YEAR OF AN ENROLLMENT. OR RATING OR WAS IN A CLASS IN WHICH ACTIVE DUTY FOR TRAINING WAS NOT REQUIRED BY LAW. FOR CERTAIN CLASSES OF THE NAVAL RESERVE FORCE TWO MONTHS' ACTIVE DUTY FOR TRAINING IS REQUIRED DURING EACH ENROLLMENT. ALL ACTIVE SERVICE FOR TRAINING COMPLYING WITH THE REQUIREMENTS OF THE LAW MAY BE CREDITED A MEMBER OF THE NAVAL RESERVE FORCE NOTWITHSTANDING A PORTION WAS PERFORMED WHILE THE MEMBER WAS IN A CLASS OF WHOM THE LAW REQUIRED NO ACTIVE DUTY FOR TRAINING.

A-2879, SEPTEMBER 8, 1924, 4 COMP. GEN. 276

NAVAL RESERVE FORCE - RETAINER PAY ACTIVE SERVICE FOR THE MAINTENANCE OF EFFICIENCY IS REQUIRED WITH REGARD TO AN ENROLLMENT AS A WHOLE AND MUST BE PERFORMED BEFORE A MEMBER OF THE NAVAL RESERVE FORCE IS ENTITLED TO CONFIRMED RETAINER PAY FOR THE FOURTH YEAR OF AN ENROLLMENT, AND THIS NOTWITHSTANDING THAT DURING A PORTION OF THE ENROLLMENT THE MEMBER HELD ONLY A PROVISIONAL RANK, GRADE, OR RATING OR WAS IN A CLASS IN WHICH ACTIVE DUTY FOR TRAINING WAS NOT REQUIRED BY LAW. FOR CERTAIN CLASSES OF THE NAVAL RESERVE FORCE TWO MONTHS' ACTIVE DUTY FOR TRAINING IS REQUIRED DURING EACH ENROLLMENT; AND SUCH DUTY MAY BE PERFORMED "IN ONE PERIOD OR IN PERIODS OF NOT LESS THAN 15 DAYS EACH.' THE RESTRICTION ON PAYMENT OF RETAINER PAY TO ANY MEMBER "WHO FAILS TO TRAIN AS PROVIDED BY LAW" PROHIBITS CREDITING FOR PAY PURPOSES PERIODS OF ACTIVE DUTY FOR TRAINING OF LESS THAN 15 DAYS' DURATION. ALL ACTIVE SERVICE FOR TRAINING COMPLYING WITH THE REQUIREMENTS OF THE LAW MAY BE CREDITED A MEMBER OF THE NAVAL RESERVE FORCE NOTWITHSTANDING A PORTION WAS PERFORMED WHILE THE MEMBER WAS IN A CLASS OF WHOM THE LAW REQUIRED NO ACTIVE DUTY FOR TRAINING. AS THE LAW PROVIDES NO EXCEPTIONS TO THE REQUIREMENT FOR ACTIVE DUTY FOR TRAINING DURING AN ENROLLMENT, OR DRILLS, OR EQUIVALENT DUTY DURING EACH YEAR THEREOF, THE FAILURE OF A MEMBER OF THE NAVAL RESERVE FORCE TO PERFORM THE REQUIRED SERVICE IS AN ABSOLUTE BAR TO PAYMENT OF RETAINER PAY, AND THE REASON FOR THE FAILURE IS NOT MATERIAL IN THIS CONNECTION.

COMPTROLLER GENERAL MCCARL TO CAPT. GEORGE G. SEIBELS, UNITED STATES NAVY, SEPTEMBER 8, 1924:

BY REFERENCE OF THE JUDGE ADVOCATE GENERAL, I HAVE YOUR LETTER OF JUNE 3, 1924, REQUESTING DECISION IN THE MATTER OF PAYMENT OF RETAINER PAY TO CONFIRMED MEMBERS OF THE UNITED STATES NAVAL RESERVE FORCE, SUMMARIZED AS FOLLOWS:

THE QUESTIONS ARISING IN THE SEVERAL CASES HEREIN SUBMITTED MAY BE SUMMARIZED AS FOLLOWS:

(A) IS IT A PREREQUISITE TO THE PAYMENT OF RETAINER PAY TO AN ENROLLED CONFIRMED MEMBER OF CLASS 1, 2, 4, OR 5, OF THE NAVAL RESERVE FORCE, FOR ANY PART OF THE FOURTH ENROLLMENT YEAR, THAT THE RESERVIST SHALL HAVE PERFORMED THE FULL AMOUNT OF ACTIVE SERVICE PRESCRIBED BY LAW FOR A FULL ENROLLMENT (60 DAYS) ALTHOUGH FOR A PORTION OF THE ENROLLMENT---

1. HE OCCUPIED ONLY A PROVISIONAL STATUS;

2. HE WAS A MEMBER OF A CLASS IN WHICH NO ACTIVE SERVICE WAS REQUIRED BY LAW OR REGULATION AS A PREREQUISITE TO THE PAYMENT OF RETAINER PAY;

3. HE WAS IN A CLASS FOR WHICH CERTAIN ACTIVE SERVICE AND DRILLS OR EQUIVALENT DUTY WERE REQUIRED BY LAW AS A PREREQUISITE TO THE PAYMENT OF RETAINER PAY, BUT BECAUSE OF LIMITED FACILITIES NO OPPORTUNITY FOR THE ATTENDANCE AT DRILLS OR THE PERFORMANCE OF EQUIVALENT DUTY WAS GRANTED HIM BY THE NAVY DEPARTMENT, THUS HE WAS PRECLUDED FROM EARNING RETAINER PAY FOR THE PERIOD INVOLVED;

4. HE WAS IN A CLASS FOR WHICH CERTAIN DRILLS OR EQUIVALENT DUTY WAS REQUIRED BY LAW AS A PREREQUISITE TO THE PAYMENT OF RETAINER PAY, BUT THE NAVY DEPARTMENT PROHIBITED THE ATTENDANCE AT DRILLS OR THE PERFORMANCE OF EQUIVALENT DUTY, BECAUSE OF LIMITED APPROPRIATIONS, THUS PRECLUDING THE EARNING OF RETAINER PAY FOR THE PERIOD INVOLVED;

5. HE WAS A MEMBER OF A CLASS FOR WHICH NO RETAINER PAY IS PROVIDED AND IN WHICH NO DUTY IS NECESSARILY PERFORMED IN TIME OF PEACE.

(B) MAY PAYMENT FOR ANY PORTION OF THE FOURTH ENROLLMENT YEAR BE MADE TO A RESERVIST WHO HAS PERFORMED ACTIVE SERVICE PROPORTIONATE ONLY TO THE PERIOD OR PERIODS OF THE ENROLLMENT DURING WHICH HE WAS A CONFIRMED MEMBER OF CLASS 1 (1-A OR 1-B), 2, 4, OR 5?

(C) MAY PAYMENT FOR ANY PORTION OF THE FOURTH ENROLLMENT YEAR BE MADE TO A RESERVIST WHO HAS PERFORMED ACTIVE SERVICE PROPORTIONATE ONLY TO THE PERIOD OR PERIODS OF THE ENROLLMENT DURING WHICH RETAINER PAY HAS BEEN EARNED BY THE PERFORMANCE OF DRILLS OR OTHER EQUIVALENT DUTY?

THE DECISION OF THIS OFFICE MAY 17, 1924, 3 COMP. GEN. 867, DEALT WITH THE FOLLOWING PROVISIONS OF LAW:

THE ACT OF JULY 1, 1918, 40 STAT. 710:

THAT THE MINIMUM ACTIVE SERVICE REQUIRED FOR MAINTAINING THE EFFICIENCY OF A MEMBER OF THE NAVAL RESERVE SHALL BE TWO MONTHS DURING EACH TERM OF ENROLLMENT AND AN ATTENDANCE AT NOT LESS THAN THIRTY-SIX DRILLS DURING EACH YEAR, OR OTHER EQUIVALENT DUTY. THE ACTIVE SERVICE MAY BE IN ONE PERIOD OR IN PERIODS OF NOT LESS THAN FIFTEEN DAYS EACH.

THE ACT OF JUNE 4, 1920, 41 STAT. 837:

SEC. 9. * * * THAT HEREAFTER THE MINIMUM AMOUNT OF ACTIVE SERVICE REQUIRED FOR THE MAINTENANCE OF THE EFFICIENCY OF THE FLEET NAVAL RESERVE SHALL BE THE SAME AS FOR THE NAVAL RESERVE.

THE ACT OF AUGUST 29, 1916, 39 STAT. 591 ET SEQ.:

NAVAL AUXILIARY RESERVE

THE REQUIREMENT AS TO QUALIFICATIONS OF OFFICERS AND MEN FOR CONFIRMATION IN RANK OR RATING, AND AS TO THE MAINTENANCE OF EFFICIENCY IN RANK OR RATING, SHALL BE PRESCRIBED BY THE SECRETARY OF THE NAVY AND SHALL BE LIMITED TO THE REQUIREMENTS FOR THE PROPER ORGANIZATION, DISCIPLINE, MANEUVERING, NAVIGATION, AND OPERATION OF VESSELS OF THE MERCHANT SHIP TYPE WHILE PERFORMING AUXILIARY SERVICE TO THE FLEET IN TIME OF WAR, AND LENGTH OF TIME OF EMPLOYMENT ON BOARD SUCH VESSELS IN THE MERCHANT SERVICE.

NAVAL COAST DEFENSE RESERVE

THE AMOUNT OF ACTIVE SERVICE REQUIRED FOR * * * MAINTAINING EFFICIENCY IN RANK AND RATING SHALL BE THE SAME AS THAT REQUIRED FOR MEMBERS OF THE NAVAL RESERVE.

VOLUNTEER NAVAL RESERVE

THE VOLUNTEER NAVAL RESERVE SHALL BE COMPOSED OF THOSE MEMBERS OF THE NAVAL RESERVE FORCE WHO ARE ELIGIBLE FOR MEMBERSHIP IN ANY ONE OF THE OTHER CLASSES OF THE NAVAL RESERVE FORCE, AND WHO OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN ANY ONE OF SAID CLASSES WITHOUT RETAINER PAY * * * IN TIME OF PEACE.

NAVAL RESERVE FLYING CORPS

* * * THE AMOUNT OF ACTIVE SERVICE REQUIRED FOR * * * MAINTAINING EFFICIENCY THEREIN, SHALL BE THE SAME AS THAT REQUIRED FOR MEMBERS OF THE NAVAL RESERVE. * * *.

THE QUESTIONS SEEM TO INDICATE DOUBT AS TO WHETHER PERFORMANCE OF THE ACTIVE DUTY AND DRILLS OR EQUIVALENT DUTY REQUIRED BY STATUTE DURING THE ENROLLMENT MUST BE SHOWN BEFORE PAYMENT OF RETAINER PAY FOR THE FOURTH YEAR MAY BE MADE. THE STATUTE AUTHORIZES NO EXCEPTION. THE MINIMUM ACTIVE SERVICE REQUIRED FOR MAINTAINING EFFICIENCY OF A MEMBER OF THE NAVAL RESERVE FORCE SHALL BE TWO MONTHS DURING EACH ENROLLMENT AND A MEMBER WHO HAS NOT COMPLIED WITH THAT REQUIREMENT IS NOT ENTITLED TO RETAINER PAY FOR THE FOURTH YEAR OF HIS ENROLLMENT. ALSO, THE STATUTE REQUIRES 36 DRILLS OR EQUIVALENT DUTY ANNUALLY AND PAYMENTS DURING THE FIRST THREE YEARS OF THE ENROLLMENT ARE WITH RESPECT TO THE PERFORMANCE OF THIS DUTY AND, IF SPECIFICALLY REQUIRED (OTHERWISE NOT), ACTIVE DUTY FOR TRAINING.

THE ACT OF AUGUST 29, 1916, 39 STAT. 587, PROVIDES:

WHEN FIRST ENROLLED MEMBERS OF THE NAVAL RESERVE FORCE, EXCEPT THOSE IN THE FLEET NAVAL RESERVE, SHALL BE GIVEN A PROVISIONAL GRADE, RANK OR RATING IN ACCORDANCE WITH THEIR QUALIFICATIONS DETERMINED BY EXAMINATION. THEY MAY THEREAFTER, UPON APPLICATION, BE ASSIGNED TO ACTIVE SERVICE IN THE NAVY FOR SUCH PERIODS OF INSTRUCTIONS AND TRAINING AS MAY ENABLE THEM TO QUALIFY FOR AND BE CONFIRMED IN SUCH GRADE, RANK OR RATING.

NO MEMBER SHALL BE CONFIRMED IN HIS PROVISIONAL GRADE, RANK OR RATING UNTIL HE SHALL HAVE PERFORMED THE MINIMUM AMOUNT OF ACTIVE SERVICE REQUIRED FOR THE CLASS IN WHICH HE IS ENROLLED * * *.

NAVAL RESERVE

THE MINIMUM ACTIVE SERVICE REQUIRED OF MEMBERS TO QUALIFY FOR CONFIRMATION IN THEIR RANK OR RATING IN THIS CLASS SHALL BE THREE MONTHS.

AS TO THE NAVAL COAST DEFENSE RESERVE AND THE NAVAL RESERVE FLYING CORPS, THE ACT OF AUGUST 29, 1916, PROVIDES:

THE AMOUNT OF ACTIVE SERVICE REQUIRED FOR CONFIRMATION IN RANK AND RATING * * * SHALL BE THE SAME AS THAT REQUIRED FOR MEMBERS OF THE NAVAL RESERVE.

THE LAW ACCORDINGLY TAKES INTO CONSIDERATION TWO CLASSES OF ACTIVE DUTY FOR MEMBERS OF THE NAVAL RESERVE FORCE: (1) FOR "INSTRUCTION AND TRAINING AS MAY ENABLE THEM TO QUALIFY FOR AND BE CONFIRMED IN SUCH GRADE, RANK, OR RATING; " AND (2) FOR "MAINTAINING THE EFFICIENCY" AFTER CONFIRMATION. THE PROVISION RELATIVE TO THE PERFORMANCE OF ACTIVE DUTY FOR PURPOSES OF QUALIFICATION IN RANK, GRADE, OR RATING IS MADE OPTIONAL WITH THE MEMBER, AND THE FAILURE TO PERFORM ACTIVE DUTY FOR THIS PURPOSE DOES NOT AFFECT THE MEMBER'S RIGHT TO RECEIVE THE NONCONFIRMED RATE OF RETAINER PAY, VIZ, $12 PER ANNUM. 17 MS. COMP. GEN. 1071, JANUARY 25, 1923. ON THE OTHER HAND, THE PROVISION RELATIVE TO PERFORMANCE OF ACTIVE DUTY AND ATTENDANCE AT DRILLS IS IN EFFECT MADE COMPULSORY IN ORDER THAT A CONFIRMED MEMBER MAY RECEIVE RETAINER PAY AS SUCH, AND AS TO ACTIVE DUTY COVERS THE ENTIRE ENROLLMENT NOTWITHSTANDING DURING A PORTION OF THE ENROLLMENT HE WAS IN A PROVISIONAL GRADE.

IT IS TO THIS LATTER CLASS OF ACTIVE SERVICE THAT THE ACTS OF JULY 1, 1918, AND JUNE 4, 1920, REFER. THE ACT OF JULY 1, 1918, WAS DIRECTED IN TERMS TO MEMBERS OF CLASS 2 (THE NAVAL RESERVE) AND BY REASON OF THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, EXTENDED TO CLASS 4 (THE NAVAL COAST DEFENSE RESERVE) AND TO CLASS 5 (NAVAL RESERVE FLYING CORPS). WAS EXTENDED TO CLASS 1 (THE FLEET NAVAL RESERVE) BY THE ACT OF JUNE 4, 1920. NEITHER THE ACT OF JULY 1, 1918, NOR JUNE 4, 1920, WAS DIRECTED TO EITHER CLASS 3 (THE NAVAL AUXILIARY RESERVE) OR CLASS 6 (THE VOLUNTEER NAVAL RESERVE), AND THE ACT OF AUGUST 29, 1916, DID NOT PUT THE MEMBERS OF EITHER OF THESE TWO CLASSES UNDER THE SAME REQUIREMENT AS FOR THE OTHER FOUR CLASSES.

FROM WHAT HAS ALREADY BEEN SAID, IT IS APPARENT THAT A MEMBER COMPLETING AN ENROLLMENT MUST SHOW THE PERFORMANCE OF THE ACTIVE DUTY REQUIRED BY LAW, AND THE FACT THAT DURING A PORTION OF THE ENROLLMENT HE WAS A MEMBER OF A CLASS IN WHICH ACTIVE DUTY WAS NOT REQUIRED DOES NOT RELIEVE HIM FROM COMPLIANCE WITH THE REQUIREMENTS OF THE CLASS IN WHICH HE IS SERVING UPON EXPIRATION OF ENROLLMENT.

QUESTIONS A-1, 3, 4, 5 ARE ACCORDINGLY ANSWERED IN THE AFFIRMATIVE, WITH THE QUALIFICATION THAT THE FAILURE TO PERFORM DRILLS OR EQUIVALENT DUTY OPERATES AS A FORFEITURE FOR THE PERIOD OF FAILURE AND IS NOT REQUIRED TO BE MADE UP IN THE FOURTH YEAR. THE STATUTE MAKES NO EXCEPTION WITH RESPECT TO ACTIVE DUTY.

QUESTION A-2 SEEMS TO RELATE TO THE NAVAL AUXILIARY RESERVE. THE REQUIREMENTS AS TO THE MAINTENANCE OF EFFICIENCY ARE TO BE PRESCRIBED BY THE SECRETARY OF THE NAVY. IT IS STATED THAT THE SECRETARY OF THE NAVY, SEPTEMBER 10, 1921, DIRECTED PAYMENT OF RETAINER PAY TO BE MADE TO MEMBERS OF THE NAVAL AUXILIARY RESERVE (CLASS 3) PENDING THE ISSUANCE OF INSTRUCTIONS PRESCRIBING THE REQUIREMENTS FOR MAINTENANCE OF EFFICIENCY. THAT INSTRUCTION IS AUTHORITY FOR PAYMENT UNTIL THE ISSUANCE OF THE INSTRUCTIONS THEREIN CONTEMPLATED. AFTER THE ISSUANCE OF THOSE INSTRUCTIONS THEY WILL BE OPERATIVE UNDER THE STATUTE. WHAT, IF ANY, LATER INSTRUCTIONS HAVE BEEN ISSUED ARE NOT INDICATED, AND A MORE DEFINITE REPLY CAN NOT BE MADE ON THE PRESENT SHOWING.

QUESTION B SEEMS TO BE THE SAME AS QUESTION A-1. AS HAS BEEN STATED, THE ACTIVE SERVICE REQUIRED BY LAW DURING THE ENROLLMENT MUST BE PERFORMED BEFORE RETAINER PAY MAY BE PAID FOR THE FOURTH YEAR, AND THE ENROLLMENT INCLUDES THE PERIOD DURING WHICH THE MEMBER HAD ONLY A PROVISIONAL RANK, GRADE, OR RATING. THIS QUESTION AND QUESTION C ARE BOTH ANSWERED IN THE NEGATIVE.

THERE IS FURTHER QUESTION PRESENTED WITH RESPECT TO THE PROVISION FOR ACTIVE DUTY FOR MAINTAINING EFFICIENCY FOR PERIODS OF LESS THAN 15 DAYS. THE STATUTE IS SPECIFIC THAT THE ACTIVE SERVICE REQUIRED "MAY BE IN ONE PERIOD OR IN PERIODS OF NOT LESS THAN 15 DAYS EACH.' THIS PROVISION, READ IN CONNECTION WITH THE REQUIREMENT CONTAINED IN THE ACT OF JUNE 4, 1920, 41 STAT. 824, THAT RETAINER PAY SHALL NOT BE PAID TO ANY MEMBER OF THE NAVAL RESERVE FORCE "WHO FAILS TO TRAIN AS PROVIDED BY LAW," REQUIRES THAT THE ACTIVE DUTY FOR TRAINING SHALL BE IN PERIODS OF NOT LESS THAN 15 DAYS, AND IF ACTIVE DUTY TRAINING IS PERMITTED BY THE NAVY DEPARTMENT IN PERIODS OF LESS THAN 15 DAYS, SUCH TRAINING IS NOT PROPER FOR INCLUSION IN THE COMPUTATION OF THE ACTIVE DUTY FOR TRAINING FOR RETAINER PAY PURPOSES.

A FURTHER QUESTION IS WHETHER ACTIVE SERVICE OF THE REQUIRED DURATION PERFORMED PURSUANT TO ORDERS WHILE THE MEMBER WAS OF A CLASS OF WHOM NO ACTIVE DUTY WAS REQUIRED BY LAW MAY BE CREDITED DURING THE ENROLLMENT AND AFTER THE MEMBER IS TRANSFERRED TO A CLASS OF WHOM ACTIVE DUTY FOR TRAINING IS REQUIRED. OBVIOUSLY, AS THE ENROLLMENT IS TREATED AS AN ENTIRETY, ALL ACTIVE DUTY FOR TRAINING MEETING THE REQUIREMENTS OF LAW SHOULD BE INCLUDED.