A-5053, OCTOBER 2, 1924, 4 COMP. GEN. 345

A-5053: Oct 2, 1924

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MEMBERS OF THE FLEET NAVAL RESERVE WHO WERE TRANSFERRED MEMBERS THEREOF ON JUNE 30. ARE ENTITLED ON AND AFTER JULY 1. MEMBERS OF THE FLEET NAVAL RESERVE WHO WERE TRANSFERRED MEMBERS THEREOF ON JUNE 30. ARE ENTITLED ON AND AFTER JULY 1. 1924: THERE IS BEFORE ME FOR DECISION THE QUESTION WHETHER JOHN MAYCOCK. WHO WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON SEPTEMBER 17. WAS ISSUED A PERMANENT APPOINTMENT IN THAT RATING. IS BY REASON OF THE PROVISION IN THE ACT OF MAY 31. MAYCOCK WAS RECEIVING RETAINER PAY COMPUTED UNDER LAWS IN EFFECT PRIOR TO JULY 1. HIS PAY HAS BEEN ADJUSTED AT THE RATE HE WAS RECEIVING ON JUNE 30. HE CLAIMS THAT HE IS ENTITLED TO RETAINER PAY COMPUTED ON THE RATING OF A CHIEF COMMISSARY STEWARD.

A-5053, OCTOBER 2, 1924, 4 COMP. GEN. 345

RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE UNDER THE ACT OF MAY 31, 1924, 43 STAT. 251, MEMBERS OF THE FLEET NAVAL RESERVE WHO WERE TRANSFERRED MEMBERS THEREOF ON JUNE 30, 1922, AND WHO DO NOT COME WITHIN THE SPECIAL PROVISIONS OF THE ACT OF MAY 18, 1920, 41 STAT. 603, ARE ENTITLED ON AND AFTER JULY 1, 1922, TO RETAINER PAY COMPUTED ON THE RATES OF PAY AUTHORIZED BY THE ACT OF JUNE 10, 1922, 42 STAT. 630, ONLY IN THE RATING HELD BY THEM WHEN TRANSFERRED. UNDER THE ACT OF MAY 31, 1924, 43 STAT. 251, MEMBERS OF THE FLEET NAVAL RESERVE WHO WERE TRANSFERRED MEMBERS THEREOF ON JUNE 30, 1922, AND WHO COME WITHIN THE SPECIAL PROVISIONS OF THE ACT OF MAY 18, 1920, 41 STAT. 603, ARE ENTITLED ON AND AFTER JULY 1, 1922, TO RETAINER PAY COMPUTED ON THE RATES OF PAY AUTHORIZED BY THE ACT OF JUNE 10, 1922, 42 STAT. 630, ON THE GRADE HELD WHEN RELEASED FROM ACTIVE DUTY, AS AUTHORIZED IN SAID ACT OF MAY 18, 1920.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 2, 1924:

THERE IS BEFORE ME FOR DECISION THE QUESTION WHETHER JOHN MAYCOCK, C.C.STD. FLEET NAVAL RESERVE, WHO WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON SEPTEMBER 17, 1918, AS CHIEF COMMISSARY STEWARD, ACTING APPOINTMENT, AND WHO WHILE ON ACTIVE DUTY ON SEPTEMBER 1, 1919, WAS ISSUED A PERMANENT APPOINTMENT IN THAT RATING, IS BY REASON OF THE PROVISION IN THE ACT OF MAY 31, 1924, 43 STAT. 251, ENTITLED TO RETAINER PAY BASED ON PERMANENT RATING OF CHIEF COMMISSARY STEWARD AND ON RATES OF PAY PROVIDED IN THE ACT OF JUNE 10, 1922, 42 STAT. 630.

IT APPEARS THAT ON JUNE 30, 1922, MAYCOCK WAS RECEIVING RETAINER PAY COMPUTED UNDER LAWS IN EFFECT PRIOR TO JULY 1, 1922, ON THE RATING OF CHIEF COMMISSARY STEWARD, PERMANENT APPOINTMENT, WITH BASE PAY AT $126, AMOUNTING TO $94.27 PER MONTH. SUCH PAY BEING GREATER THAN THE PAY OF A CHIEF COMMISSARY STEWARD, ACTING APPOINTMENT, UNDER THE ACT OF JUNE 10, 1922, HIS PAY HAS BEEN ADJUSTED AT THE RATE HE WAS RECEIVING ON JUNE 30, 1922. HE CLAIMS THAT HE IS ENTITLED TO RETAINER PAY COMPUTED ON THE RATING OF A CHIEF COMMISSARY STEWARD, PERMANENT APPOINTMENT, UNDER THE ACT OF JUNE 10, 1922, AT WHICH RATE HE WOULD BE ENTITLED TO $103.75 PER MONTH.

THE ACT OF MAY 31, 1924, 43 STAT. 251, WHICH IS AN AMENDMENT TO THE ACT OF JUNE 10, 1922, 42 STAT. 625, 633, PROVIDES:

SEC. 3. THAT SECTION 10 OF SAID ACT BE, AND THE SAME IS HEREBY, AMENDED BY ADDING THERETO THE FOLLOWING PARAGRAPHS:

"THE RETAINER PAY OF ALL MEN WHO WERE ON THAT DAY TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE OR THE FLEET MARINE CORPS RESERVE SHALL BE COMPUTED ON THE RATES OF PAY AUTHORIZED FOR ENLISTED MEN OF THE NAVAL SERVICE BY THE ACT APPROVED JUNE 10, 1922: PROVIDED, THAT THE RETAINER PAY OF SUCH RESERVISTS SHALL BE NOT LESS THAN THAT TO WHICH THEY WERE ENTITLED ON JUNE 30, 1922, UNDER DECISIONS OF THE COMPTROLLER OF THE TREASURY IN FORCE ON THAT DATE.'

THE ACT OF AUGUST 29, 1916, 39 STAT. 590, PROVIDES:

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: * * *

UNDER THE ACT OF AUGUST 29, 1916, THE RETAINER PAY OF MEMBERS OF THE FLEET NAVAL RESERVE IS NOT AFFECTED OR MODIFIED BY PROMOTION DURING ACTIVE SERVICE AFTER TRANSFER, OR BY CHANGES IN THE BASE PAY OF RATINGS AFTER TRANSFER, BUT REMAINS FIXED AS DETERMINED BY THE PAY TO WHICH ENTITLED WHEN TRANSFERRED, UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW. 2 COMP. GEN. 85. THE DECISION CITED, HOWEVER, WAS NOT APPLIED TO RETAINER PAY RECEIVED PRIOR TO JUNE 30, 1922, COMPUTED ON HIGHER RATINGS GIVEN WHILE ON ACTIVE DUTY AFTER TRANSFER, OR ON PERMANENT INCREASES AUTHORIZED BY LAW IN BASE PAY OF RATINGS AFTER MEMBERS WERE TRANSFERRED, SUCH INCREASED RETAINER PAY HAVING BEEN PAID IN ACCORDANCE WITH DECISIONS OF THE COMPTROLLER OF THE TREASURY, 26 COMP. DEC. 789, AND 27 ID. 126.

THE ACT OF MAY 31, 1924, CONFERS ON TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND THE FLEET MARINE CORPS RESERVE WHO WERE MEMBERS ON JUNE 30, 1922, RIGHT TO RETAINER PAY COMPUTED ON BASE RATES OF PAY AUTHORIZED FOR ENLISTED MEN OF THE NAVAL SERVICE BY SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, WITH THE PROVISION THAT THE RETAINER PAY OF SUCH RESERVISTS SHALL NOT BE LESS THAN THE RETAINER PAY TO WHICH ENTITLED UNDER DECISIONS OF THE COMPTROLLER OF THE TREASURY IN FORCE ON JUNE 30, 1922. IT EXTENDS TO ALL TRANSFERRED MEMBERS IN THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE ON JUNE 30, 1922, RIGHT TO RETAINER PAY BASED ON RATES OF PAY PROVIDED IN THE ACT OF JUNE 10, 1922, AND TO THAT EXTENT MODIFIES THE APPLICATION TO THEM OF PROVISION IN THE ACT OF AUGUST 29, 1916, THAT MEMBERS OF THE FLEET NAVAL RESERVE TRANSFERRED THERETO AFTER 16 OR 20 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 WHEN TRANSFERRED, PLUS ALL PERMANENT ADDITIONS THERETO. IT GIVES TO THAT PARTICULAR CLASS RIGHT TO RETAINER PAY BASED ON RATES OF PAY ESTABLISHED BY THE ACT OF JUNE 10, 1922. IT DOES NOT, HOWEVER, OTHERWISE CHANGE THE LAW OF AUGUST 29, 1916, AS TO THE MEASURE OF RETAINER PAY GENERALLY, AND THE RULE ANNOUNCED IN 2 COMP. GEN. 85, THAT RETAINER PAY IS NOT AFFECTED OR MODIFIED BY PROMOTION WHILE ON ACTIVE SERVICE OR BY CHANGES IN BASE PAY OF RATINGS AFTER TRANSFER, BUT REMAINS FIXED AS DETERMINED BY THE PAY TO WHICH THEY WERE ENTITLED WHEN TRANSFERRED, IS NOT AFFECTED IN ITS APPLICATION TO ANY OTHER TRANSFERRED MEMBERS NOR TO THAT PARTICULAR CLASS EXCEPT AS TO RATES OF PAY. THE ACT DOES NOT CONFER ON SUCH MEMBERS RIGHT TO HAVE BASE PAY, AS PROVIDED IN THE ACT OF JUNE 10, 1922, COMPUTED ON A HIGHER RATING ATTAINED AFTER DATE OF TRANSFER. THE RATING ON WHICH THEIR RETAINER PAY IS COMPUTED IS THE RATING HELD WHEN TRANSFERRED.

APPLIED TO THE INSTANT CASE, THE ACT OF MAY 31, 1924, AUTHORIZES RETAINER PAY UNDER THE ACT OF JUNE 10, 1922, FOR MAYCOCK, BASED ON THE RATING HE HELD WHEN TRANSFERRED; VIZ, CHIEF COMMISSARY STEWARD, ACTING APPOINTMENT, THE BASE PAY OF WHICH IS $99, OR THE PAY HE WAS ACTUALLY RECEIVING JUNE 30, 1922, UNDER THE DECISIONS IN EFFECT ON THAT DATE IF GREATER.

THE FOREGOING CONCLUSION IS ON THE ASSUMPTION THAT CLAIMANT IS NOT OF THE CLASS OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE, RESPECTING WHICH SPECIAL PROVISION WAS MADE IN THE ACT OF MAY 18, 1920, 41 STAT. 603, AND WHOSE GRADE WAS CHANGED WHILE ON ACTIVE DUTY UNDER THE PROVISION OF THAT ACT. IN 2 COMP. GEN. 93, THE RIGHTS OF THIS CLASS WERE STATED AS FOLLOWS:

TRANSFERRED PRIOR TO MAY 18, 1920, AND WHO RETURNED TO ACTIVE DUTY WITHIN ONE MONTH AFTER MAY 18, 1920, AND CONTINUED THEREON "UNTIL THE NAVY SHALL HAVE BEEN RECRUITED UP TO ITS PERMANENT AUTHORIZED STRENGTH, OR UNTIL THE NUMBER IN THE GRADE TO WHICH THEY MAY BE ASSIGNED IS FILLED, BUT NOT BEYOND JUNE 30, 1922," ON RESERVE GRADE PAY FOR ACTIVE DUTY AS IT EXISTED AT THE TIME OF THEIR RELEASE FROM SAID ACTIVE DUTY, PLUS THE PERMANENT ADDITIONS TO WHICH ENTITLED UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 590. SEE 27 COMP. DEC. 26.

AS TO SUCH MEMBERS RETAINER PAY BASED ON THE RATES PROVIDED BY ACT OF JUNE 10, 1922, AND ON THE GRADE HELD WHEN RELEASED FROM ACTIVE DUTY AS CONTEMPLATED BY THE ACT OF MAY 18, 1920, IS AUTHORIZED.