A-32599, JULY 26, 1930, 10 COMP. GEN. 37

A-32599: Jul 26, 1930

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" THERE ARE NECESSARILY EXCEPTED FROM SUCH CLAUSE CASES OF FRAUD. A TRANSFER OF ONE WHO DOES NOT HAVE AN ENLISTED STATUS IN THE NAVY IS PROPERLY FOR QUESTIONING IN THE AUDIT. THE ABOVE-NAMED MAN WAS REPORTED TRANSFERRED TO THE FLEET NAVAL RESERVE. REFERENCE (C) STATES THAT THE ABOVE-NAMED MAN WAS TRIED AND CONVICTED BY GENERAL COURT-MARTIAL ON JULY 9. ELIZABETHS HOSPITAL UNTIL THE UNEXPIRED PORTION OF HIS SENTENCE IS COMPLETED AND DISHONORABLE DISCHARGE EXECUTED OR HE MAY REMIT THE UNEXPIRED PORTION OF SAID SENTENCE. REFERENCE (B) WAS ISSUED ON FEBRUARY 25. IN HIS REQUEST THREE QUESTIONS WERE RAISED: FIRST. AS TO WHETHER AUSTIN WAS ELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE BECAUSE OF HIS MENTAL INCOMPETENCY AT THE TIME OF TRANSFER.

A-32599, JULY 26, 1930, 10 COMP. GEN. 37

PAY - RETAINER - TRANSFERRED MEMBER, FLEET NAVAL RESERVE UNDER THE ACT OF MAY 23, 1930, 46 STAT. 375, MAKING TRANSFERS TO THE FLEET NAVAL RESERVE, AND TRANSFERS OF SUCH RESERVISTS TO THE RETIRED LIST OF THE REGULAR NAVY "CONCLUSIVE FOR ALL PURPOSES," THERE ARE NECESSARILY EXCEPTED FROM SUCH CLAUSE CASES OF FRAUD, AND A TRANSFER OF ONE WHO DOES NOT HAVE AN ENLISTED STATUS IN THE NAVY IS PROPERLY FOR QUESTIONING IN THE AUDIT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 26, 1930:

THERE HAS BEEN RECEIVED YOUR SECOND INDORSEMENT, JULY 11, 1930, OF LETTER OF OFFICER IN CHARGE OF RETAINER PAY DIVISION AS FOLLOWS: SUBJECT: AUSTIN, PETER, 101 33 16 A.S. FNR F-4-C, RETIRED. REFERENCE:

(A) ACT OF MAY 23, 1930, PUB. NO. 244.

(B) LETTER OF THE ACTING SECRETARY OF THE NAVY, FEBRUARY 25, 1928.

(C) OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, NOVEMBER 17,

1927.

(D)DECISION OF THE COMP. GENL. OF THE U.S., MAY 4, 1928, A-22516.

(E) LETTER OF THE COMMANDANT, NAVY YARD, WASH., D.C., DATED FEBRUARY

12, 1930.

1. ON MARCH 12, 1928, THE ABOVE-NAMED MAN WAS REPORTED TRANSFERRED TO THE FLEET NAVAL RESERVE, CLASS F-4-C, IN ACCORDANCE WITH REFERENCE (B), AND PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY ON FEBRUARY 12, 1930, IN ACCORDANCE WITH REFERENCE (E). TRANSCRIPT OF HIS NAVAL SERVICE HAS BEEN FURNISHED AS FOLLOWS:

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

2. REFERENCE (C) STATES THAT THE ABOVE-NAMED MAN WAS TRIED AND CONVICTED BY GENERAL COURT-MARTIAL ON JULY 9, 1925, AND SENTENCED TO THREE YEARS CONFINEMENT, DISHONORABLE DISCHARGE, AND ACCESSORIES. ON SEPTEMBER 15, 1927, A BOARD OF MEDICAL SURVEY FOUND HIM TO BE SUFFERING FROM DEMENTIA PRAECOX, ORIGIN IN THE LINE OF DUTY, NOT THE RESULT OF HIS OWN MISCONDUCT, AND RECOMMENDED THAT HE BE DISCHARGED FROM THE NAVAL SERVICE AND RETAINED IN ST. ELIZABETHS HOSPITAL. THE NAVAL MEDICAL OFFICER AT ST. ELIZABETHS HOSPITAL, IN FORWARDING THE RECOMMENDATION TO THE DEPARTMENT, SUGGESTED THAT, IF PRACTICABLE, THE LEGAL ASPECTS OF HIS CASE BE REVIEWED WITH A VIEW TO HIS POSSIBLE TRANSFER TO THE NAVAL RESERVE.

3. REFERENCE (C) CONCLUDES THAT THE SECRETARY OF THE NAVY MIGHT EITHER PERMIT AUSTIN TO REMAIN IN ST. ELIZABETHS HOSPITAL UNTIL THE UNEXPIRED PORTION OF HIS SENTENCE IS COMPLETED AND DISHONORABLE DISCHARGE EXECUTED OR HE MAY REMIT THE UNEXPIRED PORTION OF SAID SENTENCE, INCLUDING THE DISHONORABLE DISCHARGE, AND TRANSFER HIM TO THE FLEET NAVAL RESERVE, OR TAKE SUCH OTHER ACTION AS HE MAY DEEM ADVISABLE. IN ACCORDANCE WITH THIS OPINION, REFERENCE (B) WAS ISSUED ON FEBRUARY 25, 1928, DIRECTING THE TRANSFER OF THE ABOVE-NAMED MAN TO THE FLEET NAVAL RESERVE. UPON RECEIPT OF THE TRANSFER PAY ACCOUNTS, THE OFFICER THEN IN CHARGE OF THE RETAINER PAY DIVISION SUBMITTED THE CASE TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR AN ADVANCE DECISION. IN HIS REQUEST THREE QUESTIONS WERE RAISED: FIRST, AS TO WHETHER AUSTIN WAS ELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE BECAUSE OF HIS MENTAL INCOMPETENCY AT THE TIME OF TRANSFER; SECOND, WHETHER HE WAS ELIGIBLE BECAUSE OF THE FACT THAT THE ENLISTMENT IN WHICH HE WAS SERVING AT THE TIME OF HIS CONVICTION BY THE GENERAL COURT- MARTIAL HAD EXPIRED BEFORE THE UNEXPIRED PORTION OF THE SENTENCE HAD BEEN REMITTED AND HIS TRANSFER TO THE FLEET NAVAL RESERVE DIRECTED; AND, THIRD, IF AUSTIN WAS ENTITLED TO RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE SHOULD HIS PAY BE BASED ON THE RATING OF WATER TENDER, SECOND CLASS, WHICH HE HELD AT THE TIME OF HIS TRIAL, OR APPRENTICE SEAMAN, THE RATING TO WHICH REDUCED BY GENERAL COURT-MARTIAL. IN REPLY TO THIS REQUEST, THE COMPTROLLER GENERAL HELD THAT IN VIEW OF THE MENTAL INCOMPETENCY OF AUSTIN HE WAS NOT ELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE, ALSO THAT THE LAW CONTEMPLATES AN ENLISTED MAN MUST BE IN A PAY STATUS AT THE TIME OF TRANSFER TO THE FLEET NAVAL RESERVE. SINCE AUSTIN'S ENLISTMENT EXPIRED ON DECEMBER 19, 1927, HIS PAY STATUS CEASED ON THAT DATE, AND THE REMISSION OF THE UNEXPIRED PORTION OF HIS SENTENCE ON FEBRUARY 25, 1928, DID NOT 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. SECTION 2OF REFERENCE (A) PROVIDES THAT ALL TRANSFERS OF MEN TO THE FLEET NAVAL RESERVE AND TO THE RETIRED LIST HERETOFORE MADE BY THE NAVY DEPARTMENT SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND IT NOW BECOMES NECESSARY TO CONSIDER THE OPENING OF A PAY ACCOUNT FOR AUSTIN.

4. IN VIEW OF THE FACT THAT HE WAS NOT AN ENLISTED MAN OF THE NAVY AT THE TIME OF THE ATTEMPTED TRANSFER TO THE FLEET NAVAL RESERVE, IT IS REQUESTED THAT THE OFFICER IN CHARGE OF THE RETAINER PAY DIVISION BE ADVISED AS TO WHETHER OR NOT AUSTIN IS CONSIDERED AS BEING WITHIN THE PROVISIONS OF REFERENCE (A) AND ENTITLED TO RETAINER PAY FROM DATE OF ATTEMPTED TRANSFER TO THE FLEET NAVAL RESERVE AND RETIRED PAY FROM DATE OF RETIREMENT.

IN THE THIRD PARAGRAPH OF YOUR INDORSEMENT YOU STATE:

3. IT IS THE VIEW OF THE NAVY DEPARTMENT THAT THE TRANSFER OF AUSTIN TO CLASS F-4-C, FLEET NAVAL RESERVE, ON MARCH 12, 1928, AND HIS SUBSEQUENT TRANSFER TO THE RETIRED LIST FOR PHYSICAL DISABILITY ON FEBRUARY 12, 1930, HAVE BEEN VALIDATED BY SECTION 2 OF THE ACT OF MAY 23, 1930, AND THAT HE ACCORDINGLY IS ENTITLED TO PAY FROM DATE OF SAID TRANSFER TO THE FLEET NAVAL RESERVE AND TO RETIRED PAY FROM DATE OF SAID RETIREMENT. THE NAVY DEPARTMENT CONTEMPLATES ISSUING INSTRUCTIONS TO THIS EFFECT TO THE OFFICER IN CHARGE RETAINER PAY DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, BUT BEFORE DOING SO REQUESTS AN EARLY EXPRESSION OF THE COMPTROLLER GENERAL'S VIEWS IN THE MATTER.

SECTION 2 OF THE ACT APPROVED MAY 23, 1930, 46 STAT. 375, PROVIDES:

ALL TRANSFERS OF ENLISTED MEN OF THE NAVY OR MARINE CORPS TO THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE CREATED BY THE ACTS OF AUGUST 29, 1916, AND FEBRUARY 28, 1925, AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE TO THE RETIRED LIST HERETOFORE OR HEREAFTER MADE BY THE NAVY DEPARTMENT SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEN SO TRANSFERRED SHALL FROM DATE OF TRANSFER BE ENTITLED TO PAY AND ALLOWANCES IN ACCORDANCE WITH THEIR RANKS OR RATING AND LENGTH OF SERVICE AS DETERMINED BY THE NAVY DEPARTMENT AT TIME OF TRANSFER.

IT IS UNDERSTOOD THE ACTION OF THE SECRETARY OF THE NAVY IN REMITTING THE UNEXPIRED PORTION OF AUSTIN'S SENTENCE DID NOT AFFECT AUSTIN'S RATING OF APPRENTICE SEAMAN TO WHICH REDUCED BY THE SENTENCE, AND THAT THAT WAS HIS RATING AS "DETERMINED BY THE NAVY DEPARTMENT AT TIME OF TRANSFER.' SUCH BEING THE CASE, THE MEASURE, OR MONTHLY RATE, OF RETAINER PAY TO WHICH HE WOULD BE ENTITLED IF CONSIDERED AS TRANSFERRED TO THE FLEET NAVAL RESERVE, IS ONE-THIRD OF $21 PLUS PERMANENT ADDITIONS BY REASON OF 16 YEARS' LONGEVITY ($7 PLUS 25 PERCENT OF $21) OR $12.25, WHICH IS ALSO THE RATE OF HIS RETIRED PAY.

AUSTIN WAS NOT AN ENLISTED MAN OF THE NAVY AT THE DATE OF HIS PURPORTED "TRANSFER" TO THE FLEET NAVAL RESERVE FEBRUARY 25, 1928, HIS ENLISTMENT HAVING EXPIRED DECEMBER 19, 1927, WHILE IN CONFINEMENT IN PRISON PURSUANT TO SENTENCE OF A NAVAL COURT-MARTIAL. IF UNDER THE LAW FOR TRANSFER OF ENLISTED MEN OF THE NAVY TO THE FLEET NAVAL RESERVE AND SECTION 2 OF THE ACT OF MAY 23, 1930, THE NAVY DEPARTMENT HAS "TRANSFERRED" OR SHALL "TRANSFER" PERSONS NOT HAVING AN ENLISTED STATUS IN THE NAVY TO THE FLEET NAVAL RESERVE, THE ACT OF MAY 23, 1930, DOES NOT "VALIDATE" SUCH ACTION; IT MAKES SUCH ACTION "CONCLUSIVE FOR ALL PURPOSES" WITH THE NECESSARY EXCEPTION, ALWAYS PRESENT IN STATUTES APPERTAINING TO EXPENDITURES OF PUBLIC FUNDS, OF CASES OF FRAUD. SHOULD PAYMENTS BE MADE UNDER THE PURPORTED "TRANSFER" OF AUSTIN FEBRUARY 25, 1928, AT THE RATE HEREIN INDICATED THEY WILL BE PASSED TO THE CREDIT OF THE DISBURSING OFFICER.