A-48082, APRIL 12, 1933, 12 COMP. GEN. 587

A-48082: Apr 12, 1933

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IS TO BE APPLIED TO THE ADVANCED PAY FOR ASSIGNED ENLISTED MEN OF THE FLEET NAVAL RESERVE AND TO PAY OF OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE FOR DRILLS. THERE IS NO RESTRICTION IN THE ACT OF MARCH 20. DOES NOT CONSTITUTE AN AUTOMATIC INCREASE IN COMPENSATION BUT IS A PART OF THEIR RETIRED PAY AND IS. ARE SUBJECT OF THE PERCENTAGE REDUCTION REQUIRED BY THAT ACT. RETAINER PAY OF TRANSFERRED MEMBERS OF THE NAVAL AND MARINE CORPS RESERVES IS WITHIN THE DEFINITION OF COMPENSATION IN TITLE II OF THE ACT OF MARCH 20. DOES NOT PREVENT THE RECEIPT OF RETIRED PAY BY TRANSFERRED MEMBERS WHO ARE ALSO IN RECEIPT OF PARTIAL BENEFITS AS RETIRED EMERGENCY OFFICERS. IN THE MATTER OF THE LIMITATION UPON THE AGGREGATE COMPENSATION WHICH MAY BE EARNED IN A CIVILIAN POSITION AND RECEIVED AS RETIRED PAY BY REASON OF COMMISSIONED SERVICE IN THE CASE OF RETIRED ENLISTED MEN WHO ARE ENTITLED TO THE RETIRED PAY OF WARRANT OFFICERS UNDER THE ACT OF JUNE 6.

A-48082, APRIL 12, 1933, 12 COMP. GEN. 587

ECONOMY ACT, AMENDED - NAVAL RESERVE - PAY AND ALLOWANCES THE PERCENTAGE REDUCTION PRESCRIBED BY THE EXECUTIVE ORDER ISSUED PURSUANT TO SECTION 3 OF TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 13, IS TO BE APPLIED TO THE ADVANCED PAY FOR ASSIGNED ENLISTED MEN OF THE FLEET NAVAL RESERVE AND TO PAY OF OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE FOR DRILLS, EQUIVALENT AND APPROPRIATE DUTIES, ADMINISTRATIVE FUNCTION, AND UNIFORM GRATUITY. THERE IS NO RESTRICTION IN THE ACT OF MARCH 20, 1933, 48 STAT. 12, OTHER THAN THE REQUIRED PERCENTAGE REDUCTION, UPON THE PAYMENT TO ENLISTED MEN OF THE NAVAL RESERVE OF DRILL OR APPROPRIATE DUTY PAY BASED ON HIGHER RATING TO WHICH ADVANCED BY ADMINISTRATIVE ACTION. THE PAYMENT TO TRANSFERRED MEMBERS OF THE NAVAL RESERVE, WHEN PLACED UPON THE RETIRED LIST AFTER 30 YEARS' SERVICE, OF $15.75 A MONTH, LESS REQUIRED PERCENTAGE REDUCTION, IN LIEU OF RATIONS, CLOTHING, QUARTERS, FUEL, AND LIGHT, DOES NOT CONSTITUTE AN AUTOMATIC INCREASE IN COMPENSATION BUT IS A PART OF THEIR RETIRED PAY AND IS, THEREFORE, NOT PROHIBITED BY THE RESTRICTIONS UPON AUTOMATIC PROMOTIONS. THE ALLOWANCES FOR RATIONS, CLOTHING, QUARTERS, HEAT, AND LIGHT TO RETIRED ENLISTED MEN OF THE NAVY, CONSTITUTE A PART OF THEIR RETIRED PAY WITHIN THE DEFINITION OF COMPENSATION OF SECTION 1 (B), TITLE II, ACT OF MARCH 20, 1933, 48 STAT. 12, AND ARE SUBJECT OF THE PERCENTAGE REDUCTION REQUIRED BY THAT ACT. RETAINER PAY OF TRANSFERRED MEMBERS OF THE NAVAL AND MARINE CORPS RESERVES IS WITHIN THE DEFINITION OF COMPENSATION IN TITLE II OF THE ACT OF MARCH 20, 1933, AND SUBJECT TO REDUCTION THEREUNDER. THE PROHIBITION IN THE NAVAL APPROPRIATION ACT AGAINST THE USE OF SUCH APPROPRIATIONS FOR PAY, ALLOWANCES, OR EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NAVAL AND MARINE CORPS RESERVES WHO MAY BE DRAWING RETIRED PAY FROM THE UNITED STATES, DOES NOT PREVENT THE RECEIPT OF RETIRED PAY BY TRANSFERRED MEMBERS WHO ARE ALSO IN RECEIPT OF PARTIAL BENEFITS AS RETIRED EMERGENCY OFFICERS. THE FAILURE TO EXEMPT RETIRED PAY OF ENLISTED MEN FROM REDUCTION UNDER THE ACT OF MARCH 20, 1933, DOES NOT CHANGE THE RULINGS WITH RESPECT TO THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, IN THE MATTER OF THE LIMITATION UPON THE AGGREGATE COMPENSATION WHICH MAY BE EARNED IN A CIVILIAN POSITION AND RECEIVED AS RETIRED PAY BY REASON OF COMMISSIONED SERVICE IN THE CASE OF RETIRED ENLISTED MEN WHO ARE ENTITLED TO THE RETIRED PAY OF WARRANT OFFICERS UNDER THE ACT OF JUNE 6, 1924, 43 STAT. 472. WHERE THE PAY OF A RETIRED ENLISTED MAN ENTITLED TO THE RETIRED PAY OF A WARRANT OFFICER UNDER THE ACT OF JUNE 6, 1924, 43 STAT. 472, IS GREATER THAN HIS RETIRED PAY AS AN ENLISTED MAN, BOTH RATES NOW BEING SUBJECT TO THE SAME PERCENTAGE REDUCTION, THE RATE OF PAY AS A RETIRED WARRANT OFFICER SHOULD BE RESTORED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, APRIL 12, 1933:

THERE HAS BEEN RECEIVED BY YOUR DIRECTION THE REQUEST OF THE OFFICER IN CHARGE OF RETAINER PAY DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, FOR DECISION UPON THE FOLLOWING QUESTIONS:

2. IN THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF 29 JULY, 1932 (NO. A-43204), IT WAS HELD THAT THE PAY OF OFFICERS OF THE NAVAL RESERVE FOR UNIFORM GRATUITY, DRILLS, APPROPRIATE DUTY, AND ADMINISTRATIVE FUNCTIONS UNDER THE PROVISIONS OF TITLE 34, SECTIONS 760 AND 782 OF THE U.S.C. WHILE REGARDED AS "COMPENSATION" WITHIN THE DEFINITION OF THAT TERM IN SECTION 104 (B) OF THE ECONOMY ACT OF 30 JUNE, 1932, WOULD BE EXEMPT FROM THE 8 1/3 PERCENT REDUCTION BECAUSE UNDER THAT ACT THEIR MAXIMUM RATE OF COMPENSATION COULD NOT EXCEED THE EXEMPTION OF $1,000 PROVIDED THEREIN.

3. NO MENTION WAS MADE IN THAT DECISION CONCERNING THE DRILL PAY OF ENLISTED MEN PROVIDED FOR IN THE U.S.C. TITLE 34, SECTION 782, AND ADVANCE PAY OF $25.00 A YEAR PAID TO MEN ASSIGNED TO THE FLEET NAVAL RESERVE UNDER SECTION 783 BECAUSE ENLISTED MEN WERE TOTALLY EXEMPT FROM THE PROVISIONS OF THE ECONOMY ACT OF 30 JUNE, 1932.

4. SECTION 1 (B) OF TITLE II OF THE ACT OF 20 MARCH, 1933 (PUB., NO. 2), DEFINES MPENSATION," IN SO FAR AS PERTINENT TO THIS INQUIRY, IN SIMILAR TERMS AS SECTION 104 (B) OF THE ACT OF 30 JUNE, 1932, HOWEVER, THE ACT OF 20 MARCH, 1933, DOES NOT EXEMPT EITHER THOSE RECEIVING LESS THAN $1,000 PER ANNUM OR ENLISTED MEN FROM ITS PROVISIONS.

5. IS, THEREFORE, THE ADVANCE PAY PROVIDED FOR ASSIGNED ENLISTED MEN OF THE FLEET NAVAL RESERVE AND PAY OF OFFICERS AND MEN OF THE NAVAL RESERVE FOR DRILLS, EQUIVALENT AND APPROPRIATE DUTY, ADMINISTRATIVE FUNCTIONS, AND UNIFORM GRATUITY, SUBJECT TO ANY REDUCTION UNDER THE ACT OF 20 MARCH, 1933 (PUB., NO. 2/?

SECTION 1 (A) AND (B), TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 12, DEFINES OFFICERS AND EMPLOYEES AND COMPENSATION SUBJECT TO THE PROVISIONS OF THAT ACT AS FOLLOWS:

SEC. 1. WHEN USED IN THIS TITLE---

(A) THE TERMS "OFFICER" AND "EMPLOYEE" MEAN ANY PERSON RENDERING SERVICES IN OR UNDER ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, BUT DO NOT INCLUDE (1) OFFICERS WHOSE COMPENSATION MAY NOT, UNDER THE CONSTITUTION, BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE; (2) THE VICE PRESIDENT, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, SENATORS, REPRESENTATIVES IN CONGRESS, DELEGATES, AND RESIDENT COMMISSIONERS; (3) OFFICERS AND EMPLOYEES ON THE ROLLS OF THE SENATE AND HOUSE OF REPRESENTATIVES; (4) ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE AMOUNT OF COMPENSATION OF WHICH IS EXPRESSLY FIXED BY INTERNATIONAL AGREEMENT; AND (5) ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE COMPENSATION OF WHICH IS PAID UNDER THE TERMS OF ANY CONTRACT IN EFFECT ON THE DATE OF THE ENACTMENT OF THIS TITLE, IF SUCH COMPENSATION MAY NOT LAWFULLY BE REDUCED.

(B) THE TERM "COMPENSATION" MEANS ANY SALARY, PAY, WAGE, ALLOWANCE (EXCEPT ALLOWANCES FOR TRAVEL), OR OTHER EMOLUMENT PAID FOR SERVICES RENDERED IN ANY CIVILIAN OR NONCIVILIAN OFFICE, POSITION, OR EMPLOYMENT; AND INCLUDES THE RETIRED PAY OF JUDGES (EXCEPT JUDGES WHOSE COMPENSATION, PRIOR TO RETIREMENT OR RESIGNATION, COULD NOT, UNDER THE CONSTITUTION, HAVE BEEN DIMINISHED), AND THE RETIRED PAY OF ALL COMMISSIONED AND OTHER PERSONNEL OF THE COAST AND GEODETIC SURVEY, THE LIGHTHOUSE SERVICE, AND THE PUBLIC HEALTH SERVICE, AND THE RETIRED PAY OF ALL COMMISSIONED AND OTHER PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD; BUT DOES NOT INCLUDE PAYMENTS OUT OF ANY RETIREMENT, DISABILITY, OR RELIEF FUND MADE UP WHOLLY OR IN PART OF CONTRIBUTIONS OF EMPLOYEES.

IT WILL BE NOTED THAT THERE IS NOW NO EXCEPTION OF ENLISTED MEN, NOR OF ANY MINIMUM RATE OF PAY, FROM REDUCTION AS WAS THE CASE IN THE ECONOMY ACT OF JUNE 30, 1932, AND THAT THE TERM ,COMPENSATION" NOW COVERS ALL ALLOWANCES EXCEPT ALLOWANCES FOR TRAVEL. ACCORDINGLY, THE PERCENTAGE REDUCTION PRESCRIBED BY EXECUTIVE ORDERS ISSUED PURSUANT TO SECTION 3 OF THE ACT OF MARCH 20, 1933, MUST BE APPLIED TO ADVANCED PAY FOR ASSIGNED ENLISTED MEN OF THE FLEET NAVAL RESERVE (SO FAR AS IT MAY NOW BE PAID IN VIEW OF THE PROHIBITION ON THE ASSIGNMENT OF ENLISTED MEN TO THE RESERVE FROM AND AFTER JUNE 30, 1932, 47 STAT. 431AND 439) AND PAY OF OFFICERS AND ENLISTED MEN OF NAVAL RESERVE FOR DRILLS, EQUIVALENT AND APPROPRIATE DUTY, ADMINISTRATIVE FUNCTION, AND UNIFORM GRATUITY.

6. SECTION 4 (A) OF TITLE II OF THE ACT OF 20 MARCH, 1933, CONTINUES IN FORCE SECTION 201 OF THE ACT OF 30 JUNE, 1932, WHICH SUSPENDS INCREASES IN COMPENSATION BY REASON OF PROMOTION.

7. IN THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF 5 NOVEMBER, 1932 (NO. A-45165) (12 COMP. GEN. 437), IT WAS HELD THAT SECTION 201 DID NOT DEPRIVE AN OFFICER OF THE NAVAL RESERVE FORCE ON INACTIVE DUTY OF RECEIVING INCREASED DRILL AND APPROPRIATE DUTY PAY BY REASON OF PROMOTION.

8. THERE DOES NOT APPEAR TO BE ANY PROVISION IN THE ACT OF 20 MARCH, 1933 (PUB., NO. 2), WHICH CHANGES THE STATUS OF AN OFFICER OF THE NAVAL RESERVE IN RESPECT TO PAY FOR DRILLS UPON PROMOTION. IF THIS RULING, THEREFORE, IS CONTINUED IN FORCE, WILL IT APPLY TO ENLISTED MEN OF THE NAVAL RESERVE SO THAT THEY WILL BE ENTITLED TO DRILL OR APPROPRIATE DUTY PAY BASED ON THE HIGHER RATINGS TO WHICH ADVANCED?

THERE IS NO RESTRICTION IN THE ACT OF MARCH 20, 1933, OTHER THAN THE REQUIRED PERCENTAGE REDUCTION, UPON THE PAYMENT TO ENLISTED MEN OF THE NAVAL RESERVE OF DRILL OR APPROPRIATE DUTY PAY BASED ON HIGHER RATINGS TO WHICH ADVANCED BY ADMINISTRATIVE ACTION. 12 COMP. GEN. 437; ID. 560.

9. SECTION 201 ALSO SUSPENDS "AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE.' DOES THIS PROVISION PREVENT THE PAYMENT OF THE ALLOWANCES OF $15.75 A MONTH GRANTED UNDER THE UNITED STATES CODE, TITLE 34, SECTIONS 784, 785, AND 788, EITHER TO FLEET NAVAL RESERVISTS WHO ARE RETIRED UPON COMPLETION OF 30 YEARS' SERVICE OR TO SUCH RESERVISTS ON THE RETIRED LIST FOR PHYSICAL DISABILITY WHO COMPLETE 30 YEARS' SERVICE?

SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, IS CONTINUED IN FORCE DURING THE FISCAL YEAR 1934 BY SECTION 4 OF THE ACT OF MARCH 3, 1933, AS AMENDED BY THE ACT OF MARCH 20, 1933, AND SECTION 5, TITLE II, OF THE ACT OF MARCH 20, 1933, PROVIDES IN PART:

THE PROVISIONS OF THIS TITLE PROVIDING FOR TEMPORARY REDUCTIONS IN COMPENSATION AND SUSPENSION IN AUTOMATIC INCREASES IN COMPENSATION SHALL NOT OPERATE TO REDUCE THE RATE OF COMPENSATION UPON WHICH THE RETIRED PAY OR RETIREMENT BENEFITS OF ANY OFFICER OR EMPLOYEE WOULD BE BASED BUT FOR THE APPLICATION OF SUCH PROVISIONS, BUT THE AMOUNT OF RETIRED PAY SHALL BE REDUCED AS PROVIDED IN THIS TITLE: * * *

THE ACT OF MARCH 2, 1907, 34 STAT. 1217, IN PROVIDING FOR THE RETIREMENT OF ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS AFTER 30 YEARS' SERVICE PROVIDES THAT THEY SHALL RECEIVE 75 PERCENT OF THE PAY AND ALLOWANCES THAY MAY THEN BE IN RECEIPT OF--- AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT. * * *

IN SECTIONS 23, 24, AND 26 OF THE NAVAL RESERVE LAW, ACT OF FEBRUARY 28, 1925, 43 STAT. 1087, ET SEQ., PROVISION IS MADE FOR PLACING TRANSFERRED MEMBERS OF THE NAVAL RESERVE ON THE RETIRED LIST OF THE REGULAR NAVY "UPON COMPLETION OF 30 YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE," WITH THE RETAINER PAY THEN IN RECEIPT OF "AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE SAME RATINGS ARE ENTITLED ON RETIREMENT AFTER 30 YEARS' NAVAL SERVICE.' SECTION 27 OF THE ACT PROVIDES THAT MEN TRANSFERRED TO THE NAVAL RESERVE UNDER SECTION 26 OF THE ACT SHALL BE EXAMINED PHYSICALLY ONCE EACH FOUR YEARS, AND, IF FOUND PHYSICALLY DISQUALIFIED, THEY SHALL BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY WITH THE PAY THEY ARE THEN IN RECEIPT OF (RETAINER PAY), AND UPON COMPLETION OF 30 YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE, THEY SHALL RECEIVE THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER 30 YEARS' SERVICE. WHILE LENGTH OF SERVICE IS THUS A VITAL CONSIDERATION IN REACHING A FULL RETIRED STATUS ON THE RETIRED LIST OF THE REGULAR NAVY WITH THE SPECIAL PAY PROVIDED IN THE ACT, AND THE MERE PASSING OF THE PERIOD AUTOMATICALLY ENTITLES THE MEN TO THE ALLOWANCES, YET THE ALLOWANCES ARE NOT IN FACT AN INCREASE IN COMPENSATION BY REASON OF LENGTH OF SERVICE ANY MORE THAN THEY ARE IN THE CASE OF AN ENLISTED MAN OF THE REGULAR ESTABLISHMENT RETIRED AFTER 30 YEARS' SERVICE WHILE SECTION 201 OF THE ECONOMY ACT IS IN EFFECT. THE FULL RETIRED STATUS BEING ATTAINED, THE PAYMENT OF THE ALLOWANCES, OTHERWISE PROPER, IS AUTHORIZED IN VIEW OF THE PROVISIONS OF SECTION 5 OF THE ACT OF MARCH 20, 1933.

10. SECTION 1 (B) OF TITLE II OF THE ACT OF 20 MARCH 1933 (PUB. NO. 2) PROVIDES IN PART---

"THE TERM "COMPENSATION" MEANS ANY SALARY, PAY, WAGE, ALLOWANCES (EXCEPT ALLOWANCES FOR TRAVEL), OR OTHER EMOLUMENT FOR SERVICES RENDERED IN ANY CIVILIAN OR NONCIVILIAN OFFICE, POSITION, OR EMPLOYMENT; AND THE RETIRED PAY OF ALL COMMISSIONED AND OTHER PERSONNEL OF THE NAVY--- .'

ALTHOUGH THE ABOVE SECTION SPECIFICALLY INCLUDES CERTAIN ALLOWANCES IN DEFINING PAY "FOR SERVICES RENDERED," IT FAILS TO INCLUDE THE TERM "ALLOWANCES" IN DEFINING THE "RETIRED PAY.' WILL THE $15.75 ALLOWANCES FOR QUARTERS, HEAT, AND LIGHT, PAID TO RETIRED ENLISTED MEN BE SUBJECT TO ANY REDUCTION UNDER THE TERMS OF THIS ACT?

THE ALLOWANCES FOR RATIONS, CLOTHING, QUARTERS, HEAT, AND LIGHT TO RETIRED ENLISTED MEN CONSTITUTE A PART OF THE RETIRED PAY OR COMPENSATION WITHIN THE DEFINITION OF COMPENSATION FOUND IN SECTION 1 (B), TITLE II OF THE ACT OF MARCH 20, 1933, AND ARE ACCORDINGLY SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED UNDER THAT ACT.

11. THE RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE IS NOT PAY FOR SERVICE, IT IS PAID OUT OF THE NAVAL APPROPRIATION "PAY, SUBSISTENCE, AND TRANSPORTATION.' THE AMOUNT APPROPRIATED FOR THIS PURPOSE IS SEPARATED FROM ACTIVE SERVICE OR RETIRED PAY.

12. TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE ARE NOT IN RECEIPT OF RETIRED PAY AS THEY ARE BY LAW EXPRESSLY REQUIRED TO BE RETAINED IN THE FLEET NAVAL RESERVE AND PAID RETAINER PAY UNTIL FOUND DISABLED OR UNTIL THEY COMPLETE 30 YEARS' SERVICE, AT WHICH TIME THEY ARE PLACED ON THE RETIRED LIST AND BECOME ENTITLED TO RETIRED PAY.

13. ON THE OTHER HAND IT HAS BEEN HELD BY THE COMPTROLLER GENERAL OF THE UNITED STATES IN 2 COMP. GEN. 743; 6 COMP. GEN. 223 AND IN THE DECISION OF SEPTEMBER 7, 1932 (NO. A-43502) THAT THE RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE IS IN THE NATURE OF RETIREMENT PAY AND ITS RECEIPT WOULD BAR PAYMENT OF DISABILITY COMPENSATION FOR THE SAME PERIOD.

14. HOWEVER, THESE DECISIONS APPEAR TO HAVE BEEN SPECIFICALLY OVERRULED IN THE NAVAL APPROPRIATION ACT OF 3 MARCH 1933 (PUB. NO. 249) WHICH STATES

"THAT NO APPROPRIATION MADE IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES, OR TRAVELING OR OTHER EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NAVAL OR MARINE CORPS RESERVE WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES; AND "RETIRED PAY" AS HERE USED SHALL NOT INCLUDE THE PAY OF TRANSFERRED MEMBERS OF SUCH RESERVE FORCES.'

IN VIEW OF THE ABOVE, WILL THE RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE BE SUBJECT TO ANY DEDUCTION UNDER THE ACT OF 20 MARCH 1933 (PUB., NO. 2/?

SECTION 784, TITLE 34, U.S.C. PROVIDES:

TRANSFER TO FLEET NAVAL RESERVE OF MEN ENLISTED IN REGULAR NAVY; PAY; DUTIES; DISCHARGE FOR PHYSICAL DISQUALIFICATION; RETIREMENT. MEN WHO HAVE ENLISTED SINCE JULY 1, 1925, OR MAY HEREAFTER ENLIST IN THE REGULAR NAVY AFTER THE PASSAGE OF THIS CHAPTER, 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: PROVIDED, THAT IN TIME OF PEACE ALL ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE MAY BE REQUIRED TO PERFORM NOT MORE THAN TWO MONTHS' ACTIVE DUTY IN EACH FOUR-YEAR PERIOD AND SHALL BE PHYSICALLY EXAMINED AT LEAST ONCE DURING EACH FOUR-YEAR PERIOD, AND IF UPON SUCH EXAMINATION THEY ARE FOUND NOT PHYSICALLY QUALIFIED TO PERFORM DUTY IN TIME OF WAR THEY SHALL BE DISCHARGED: PROVIDED FURTHER, THAT ALL ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE SHALL UPON COMPLETION OF THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY WITH ONE-HALF OF THE BASE PAY OF THEIR RATINGS PLUS ALL PERMANENT ADDITIONS THERETO, AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE SAME RATINGS ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE. THE TRANSFERS TO THE FLEET NAVAL RESERVE RESPECTING WHICH THE INQUIRY IS MADE ALSO INCLUDE THOSE PROVIDED FOR IN SECTIONS 24 AND 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087 (34 U.S.C. 785 AND 787). THE EXCLUSION OF PAY OF TRANSFERRED MEMBERS OF THE NAVAL AND MARINE CORPS RESERVES FROM THE DEFINITION OF "RETIRED PAY" IN THE NAVAL APPROPRIATION ACT FOR 1934 WAS NECESSARY IN ORDER NOT TO EXCLUDE MEMBERS IN RECEIPT OF RETAINER PAY FROM THE RECEIPT OF TRAVEL OR OTHER ALLOWANCES TO WHICH THEY MIGHT BECOME ENTITLED BY THE PERFORMANCE OF DRILLS OR TRAINING DUTY. IT DOES NOT NECESSARILY CONTROL THE DEFINITION OF RETIRED PAY UNDER ANY OTHER STATUTE. RETAINER PAY IS EITHER PAID "FOR SERVICES RENDERED; " THAT IS, FOR THE PERFORMANCE OF TRAINING DUTY AND/OR THE MAINTENANCE OF PHYSICAL ABILITY TO RENDER ACTIVE SERVICE, OR IT IS THE NATURE OF RETIRED PAY. 43502, SEPTEMBER 7, 1932. IN EITHER CASE, IT IS WITHIN THE DEFINITION OF COMPENSATION IN TITLE II OF THE ACT OF MARCH 20, 1933, SUPRA, AND IS SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY THE EXECUTIVE ORDERS ISSUED PURSUANT TO THAT ACT.

15. SPECIFIC REFERENCE IS MADE TO THAT PORTION OF THE NAVAL APPROPRIATION ACT QUOTED ABOVE WHICH READS AS FOLLOWS:

"NO APPROPRIATION MADE IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES OR TRAVELING OR OTHER EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NAVAL OR MARINE CORPS RESERVE WHO MAY BE DRAWING--- RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES.'

16. JOHN SIMON DAMON AND WILLIAM P. SHERIDAN, FORMER TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE, ARE NOW RECEIVING PAY ON THE RETIRED LIST OF THE REGULAR NAVY AND THE DIFFERENCE BETWEEN THIS PAY AND THE AMOUNTS DUE THEM AS RETIRED EMERGENCY OFFICERS FROM THE VETERANS' ADMINISTRATION UNDER THE RULING IN 9 COMP. GEN. 399. ARE THESE TO BE REGARDED AS OFFICERS OR ENLISTED MEN OF THE NAVAL RESERVE WITHIN THE MEANING OF THE ABOVE PROVISION SO AS TO BE BARRED FROM RECEIVING ANY RETIRED PAY FROM THE NAVY DEPARTMENT DURING THE FISCAL YEAR 1934?

THE PROHIBITION IS AGAINST THE USE OF NAVAL APPROPRIATIONS FOR "PAY, ALLOWANCES, OR TRAVEL OR OTHER EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NAVAL OR MARINE CORPS RESERVES.' THIS PROHIBITION APPEARS TO BE ADDRESSED TO MEMBERS OF THE NAVAL AND MARINE CORPS RESERVES OTHER THAN TRANSFERRED MEMBERS, THE EXCEPTION CONCLUDING THE PROVISO MAKES THIS PURPOSE CLEAR. THE PROVISION WILL NOT, THEREFORE, BE CONSTRUED AS PROHIBITING THE RECEIPT OF PAY ON THE RETIRED LIST OF THE REGULAR NAVY BY FORMER TRANSFERRED MEMBERS OF THE NAVAL RESERVE WHO ARE ALSO IN RECEIPT OF PARTIAL BENEFITS AS RETIRED EMERGENCY OFFICERS. 9 COMP. GEN. 399. OPINION IS EXPRESSED AS TO THE EFFECT OF THE PROVISIONS OF TITLE I OF THE ACT OF MARCH 20, 1933, UPON THIS SITUATION.

17. SECTION 212 OF THE ACT OF JUNE 30, 1932 (PUB. NO. 212) LIMITS THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND THE RETIRED PAY PAYABLE ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER TO $3,000 PER ANNUM. THERE ARE ON THE RETIRED LIST CERTAIN ENLISTED MEN WHO ON ACCOUNT OF SERVICE AS COMMISSIONED OFFICERS DURING THE WORLD WAR RECEIVE RETIRED PAY BASED ON THE PAY OF WARRANT OFFICERS.

18. IN THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF 14 JULY, 1932 (NO. A-43204) (12 COMP. GEN. 37), IT WAS STATED THAT THE ACT OF 30 JUNE 1932, SHOWED AN INTENTION THAT THE RETIRED PAY OF ENLISTED MEN SHOULD NOT BE AFFECTED. THAT DECISION ALSO RECITED THAT THE ACT OF 6 JUNE, 1924 (43 STAT. 472), UNDER WHICH SUCH ENLISTED MEN WERE GRANTED RETIRED PAY ON ACCOUNT OF COMMISSIONED SERVICE, CONTAINS A SAVING CLAUSE ALLOWING THEM TO RECEIVE THE PAY AND ALLOWANCE OF THEIR ENLISTED STATUS WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY TO WHICH THEY WOULD BE ENTITLED UNDER THAT ACT BY VIRTUE OF THEIR COMMISSIONED SERVICE. THE DECISION THEN CONCLUDES AS FOLLOWS:

"CONSIDERING THIS SAVING CLAUSE IN CONNECTION WITH THE EXAMPLES IN THE ECONOMY ACT IN FAVOR OF RETIRED PAY OF ENLISTED MEN, IT MAY REASONABLY BE CONCLUDED THAT IN THE APPLICATION OF SECTION 212 OF THE LATTER STATUTE, THE RETIRED PAY OF THE ENLISTED MEN MENTIONED--- SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE.'

19. IN VIEW OF THE FAILURE TO EXEMPT THE RETIRED PAY OF ENLISTED MEN FROM REDUCTION UNDER THE ACT OF 20 MARCH, 1933, WILL THE SAVING CLAUSE IN THE ACT OF 6 JUNE, 1924, STILL OPERATE TO PERMIT SUCH MEN WHO HOLD CIVILIAN POSITIONS TO BE PAID RETIRED PAY ON THE BASIS OF THEIR ENLISTED GRADES OR RATINGS LESS WHATEVER REDUCTION IS MADE APPLICABLE THERETO WITHOUT REGARD TO THE LIMITATIONS IN SECTION 212 OF THE ACT OF 30 JUNE, 1932?

THE FAILURE TO EXEMPT THE RETIRED PAY OF ENLISTED MEN FROM REDUCTION UNDER THE ACT OF MARCH 20, 1933, DOES NOT CHANGE THE RULINGS WITH RESPECT TO THE APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932. THIS QUESTION IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE.

20. IN THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF 29 JULY, 1932 (A-43204), THE SAME PRINCIPLE WAS APPLIED TO RETIRED ENLISTED MEN WHO WERE ENTITLED TO PAY AS WARRANT OFFICERS AND WHO WERE NOT HOLDING CIVILIAN POSITIONS UNDER THE FEDERAL GOVERNMENT. THAT IS, THEY WERE PERMITTED EITHER TO TAKE THE REDUCTION OF 8 1/3 PERCENT OF THEIR WARRANT OFFICER'S PAY OR ELECT TO RECEIVE THEIR FULL PAY AS ENLISTED MEN IF THIS LATTER WAS THE GREATER. SHOULD SUCH MEN NOW BE RESTORED TO THEIR FORMER PAY AS WARRANT OFFICERS BEFORE ANY REDUCTION IS APPLIED UNDER THE ACT OF 20 MARCH, 1933?

WHERE THE PAY AS A RETIRED WARRANT OFFICER IS GREATER THAN THE RETIRED PAY AS AN ENLISTED MAN, BOTH RATES OF PAY NOW BEING SUBJECT TO THE SAME PERCENTAGE OF REDUCTION, THE RATE OF PAY AS A RETIRED WARRANT OFFICER SHOULD BE RESTORED.

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