A-60165, MARCH 11, 1935, 14 COMP. GEN. 689

A-60165: Mar 11, 1935

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WHOSE ACTUAL SERVICE AT THE TIME OF TRANSFER WAS 15 YEARS. IS. - THAT IS. 1935: THERE IS FOR CONSIDERATION THE LEGALITY OF RATES OF PAY CREDITED IN THE DISBURSING ACCOUNT OF THE NAVY ALLOTMENT OFFICER. APPEARS THAT PRIOR TO DECEMBER 1934 THESE MEN WERE CREDITED RETAINER PAY BY THE DISBURSING OFFICER AT THE RATE OF $67.20 PER MONTH. STEINER WAS TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER ORDERS OF THE BUREAU OF NAVIGATION SEPTEMBER 11. WHEN THE ORDER WAS RECEIVED ON THE U.S.S. ON WHICH VESSEL STEINER WAS SERVING. - "YOU ARE THIS DATE TRANSFERRED UNDER DATE OF SEPTEMBER 4. WILL PROCEED THIS DATE TO YOUR HOME * * *.'. BASED ON THAT ORDER OF TRANSFER IT WAS HELD. WAS 15 YEARS. THE COURT OF CLAIMS HAVING FOUND AS A FACT THAT STEINER WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON A DATE WHEN HE ACTUALLY HAD OVER 16 YEARS' SERVICE.

A-60165, MARCH 11, 1935, 14 COMP. GEN. 689

RETAINER PAY - TRANSFERRED FLEET NAVAL RESERVIST A CHIEF PETTY OFFICER OF THE NAVY TRANSFERRED TO THE FLEET NAVAL RESERVE PRIOR TO THE COMPLETION OF 16 YEARS' NAVAL SERVICE AND PRIOR TO EXPIRATION OF ENLISTMENT, UNDER THE AUTHORITY OF THE ACT OF JULY 1, 1922, 42 STAT. 799, WHOSE ACTUAL SERVICE AT THE TIME OF TRANSFER WAS 15 YEARS, 10 MONTHS, AND 12 DAYS, IS, FOR THE PURPOSE OF DETERMINING PERMANENT ADDITIONS TO BASE PAY, ENTITLED TO LONGEVITY INCREASE UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, BASED ON HIS ACTUAL SERVICE AT THE TIME OF TRANSFER--- THAT IS, TO 20 PERCENTUM LONGEVITY INCREASE ON BASE PAY IN LIEU OF ALL PERMANENT ADDITIONS.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MARCH 11, 1935:

THERE IS FOR CONSIDERATION THE LEGALITY OF RATES OF PAY CREDITED IN THE DISBURSING ACCOUNT OF THE NAVY ALLOTMENT OFFICER, NAVY DEPARTMENT, FOR DECEMBER 1934 TO AUGUST STEINER, C.C.M. (PA), UNITED STATES NAVAL RESERVE, AND CHARLES A. GETTYS, C.T.M. (PA), UNITED STATES NAVAL RESERVE. APPEARS THAT PRIOR TO DECEMBER 1934 THESE MEN WERE CREDITED RETAINER PAY BY THE DISBURSING OFFICER AT THE RATE OF $67.20 PER MONTH, AND FOR DECEMBER 1934 AT THE RATE OF $73.50 PER MONTH.

STEINER WAS TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER ORDERS OF THE BUREAU OF NAVIGATION SEPTEMBER 11, 1920, DIRECTING THAT HIS TRANSFER BE EFFECTIVE UPON THE REVOCATION OF HIS TEMPORARY APPOINTMENT AS A WARRANT OFFICER. WHEN THE ORDER WAS RECEIVED ON THE U.S.S. SAN FRANCISCO, ON WHICH VESSEL STEINER WAS SERVING, THE COMMANDING OFFICER UNDER DATE OF SEPTEMBER 17, 1920, ISSUED ORDERS STATING--- "YOU ARE THIS DATE TRANSFERRED UNDER DATE OF SEPTEMBER 4, 1920, TO THE UNITED STATES NAVAL RESERVE FORCE, CLASS 1-C, AND WILL PROCEED THIS DATE TO YOUR HOME * * *.' BASED ON THAT ORDER OF TRANSFER IT WAS HELD, DECISION A-34963, FEBRUARY 18, 1931, THAT STEINER'S SERVICE IN THE REGULAR NAVY FOR PURPOSE OF DETERMINING HIS RETAINER PAY MUST BE CONSIDERED AS TERMINATED ON SEPTEMBER 4, 1920, AND THAT STEINER'S TOTAL ACTUAL SERVICE ON SEPTEMBER 4, 1920, WAS 15 YEARS, 11 MONTHS, AND 29 DAYS, WHICH SERVICE ENTITLED HIM TO 20 PERCENT LONGEVITY ON BASE PAY AND A TOTAL RATE OF PAY OF ONE-THIRD OF HIS BASE PAY ($126), $42, INCREASED BY 20 PERCENT FOR LONGEVITY, $25.20, A TOTAL OF $67.20.

STEINER SUED IN THE COURT OF CLAIMS, M-209, AND IN AN OPINION, MAY 7, 1934, THE COURT HELD THAT STEINER'S TRANSFER TO THE FLEET NAVAL RESERVE WITHIN THE INTENT AND MEANING OF THE ACT OF AUGUST 29, 1916, BECAME EFFECTIVE SEPTEMBER 17, 1920, ON WHICH DATE HE HAD IN EXCESS OF 16 YEARS' NAVAL SERVICE AND GAVE JUDGMENT FOR THE DIFFERENCE IN RETAINER PAY BETWEEN PAY AT $67.20 AND $73.50 FROM JUNE 1, 1925, TO DATE OF THE OPINION.

THE COURT OF CLAIMS HAVING FOUND AS A FACT THAT STEINER WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON A DATE WHEN HE ACTUALLY HAD OVER 16 YEARS' SERVICE, PAYMENT TO HIM OF RETAINER PAY ON THAT BASIS WILL BE PASSED IN THE AUDIT.

AS REPORTED BY THE CHIEF, BUREAU OF NAVIGATION, TO THE NAVY ALLOTMENT OFFICE, AUGUST 4, 1922, GETTYS HAD NAVAL SERVICE WHEN TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 17, 1922, AS FOLLOWS: SUBJECT: GETTYS, CHARLES ALFRED, CQM FNR 1-C NO. 160-63-77

1. THE FOLLOWING IS A STATEMENT OF THE SERVICE AND OTHER DATA OF THE ABOVE-NAMED MAN FOR THE PURPOSE OF COMPUTING HIS RETAINER PAY:

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

THIS RECORD SHOWS ACTUAL SERVICE ON DATE OF TRANSFER OF OVER 12 BUT LESS THAN 16 YEARS' ACTUAL SERVICE WHICH, UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, ENTITLED HIM TO 20 PERCENT INCREASE ON BASE PAY IN THE COMPUTATION OF HIS RETAINER PAY. PRIOR TO DECEMBER 1934 HE WAS CREDITED PAY AT THE RATE OF $67.20 PER MONTH.

THE ACT OF AUGUST 29, 1916, 39 STAT. 589, 590, PROVIDED:

IN ADDITION TO THE ENROLLMENTS IN THE FLEET NAVAL RESERVE ABOVE PROVIDED, THE SECRETARY OF THE NAVY IS AUTHORIZED TO TRANSFER TO THE FLEET NAVAL RESERVE AT ANY TIME WITHIN HIS DISCRETION ANY ENLISTED MAN OF THE NAVAL SERVICE WITH TWENTY OR MORE YEARS' NAVAL SERVICE, AND ANY ENLISTED MAN, AT THE EXPIRATION OF A TERM OF ENLISTMENT WHO MAY THEN BE ENTITLED TO AN HONORABLE DISCHARGE, AFTER SIXTEEN YEARS' NAVAL SERVICE: * * *.

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: * * *.

SECTION 10 OF THE ACT OF JUNE 10, 1922, PROVIDES, IN PART, AS FOLLOWS:

* * * IN LIEU OF ALL PERMANENT ADDITIONS TO PAY NOW AUTHORIZED FOR ENLISTED MEN OF THE NAVY AND COAST GUARD, THEY SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 10 PERCENTUM ON THE BASE PAY OF THEIR RATING UPON COMPLETION OF THE FIRST FOUR YEARS OF ENLISTED SERVICE, AND AN ADDITIONAL INCREASE OF 5 PERCENTUM FOR EACH FOUR YEARS' SERVICE THEREAFTER, THE TOTAL NOT TO EXCEED 25 PERCENTUM. * * *

THE ACT OF JULY 1, 1922, 42 STAT. 799, PROVIDED, IN PART, AS FOLLOWS:

* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE: * * *

THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087, PROVIDES:

SEC. 24. ALL ENLISTED MEN WHO HERETOFORE HAVE BEEN TRANSFERRED FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE ESTABLISHED BY THE ACT OF AUGUST 29, 1916, AND WHO BY SECTION 1 OF THIS ACT ARE TRANSFERRED TO THE FLEET NAVAL RESERVE HEREIN CREATED, SHALL RECEIVE THE RATE OF PAY THEY WERE LEGALLY ENTITLED TO RECEIVE IN THE NAVAL RESERVE FORCE: * * *

IT IS THUS APPARENT THAT THE ACT OF AUGUST 29, 1916, FIXED A MINIMUM SERVICE FOR TRANSFER PURPOSES AND FIXED A MEASURE OF RETAINER PAY BASED ON THE PAY THE MAN WAS RECEIVING ON DATE OF TRANSFER, I.E., "AT THE CLOSE OF THEIR LAST NAVAL SERVICE.' IF A MAN WAS TRANSFERRED AT EXPIRATION OF ENLISTMENT "AFTER SIXTEEN YEARS' NAVAL SERVICE" THE MEASURE OF HIS RETAINER PAY WAS FIXED AT ONE-THIRD OF THE BASE PAY HE WAS"RECEIVING AT THE CLOSE OF THEIR LAST NAVAL SERVICE PLUS ALL PERMANENT ADDITIONS THERETO.' SECTION 10 OF THE ACT OF JUNE 10, 1922, PROVIDES IN LIEU OF PERMANENT ADDITIONS A PERCENTUM INCREASE BASED ON ACTUAL NAVAL SERVICE. COMP. GEN. 552. THIS LONGEVITY SERVICE DOES NOT INCLUDE IN THE COMPUTATION TIME LOST BY ABSENCE WITHOUT LEAVE NOR TIME LOST FOR SICKNESS DUE TO OWN MISCONDUCT. 2 COMP. GEN. 162. STATEMENT OF HIS SERVICE AS ABOVE SHOWS THAT HIS ENLISTMENT AS EXTENDED WOULD HAVE EXPIRED AUGUST 6, 1922. ACCORDINGLY, HIS TRANSFER ON JULY 17, 1924, WAS NOT A TRANSFER AT EXPIRATION OF ENLISTMENT AFTER 16 YEARS' SERVICE UNDER THE ACT OF AUGUST 29, 1916, AND COULD HAVE BEEN AUTHORIZED ONLY UNDER THE ACT OF JULY 1, 1922, QUOTED HEREIN. HIS TRANSFER, THEREFORE, MUST BE PRESUMED TO HAVE BEEN MADE UNDER THAT ACT.

THE MEASURE OF RETAINER PAY OF ONE TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, WAS THE SAME AS AUTHORIZED FOR A TRANSFER AT EXPIRATION OF ENLISTMENT--- THAT IS, ONE-THIRD OF BASE PAY THE MAN WAS RECEIVING ON DATE OF TRANSFER PLUS ALL PERMANENT ADDITIONS THERETO. GETTYS' SERVICE RECORD AS REPORTED BY THE BUREAU OF NAVIGATIONON AUGUST 4, 1922, SHOWS TOTAL ACTUAL SERVICE OF 15 YEARS, 10 MONTHS, 12 DAYS, OR LESS THAN 16 YEARS. ACCORDINGLY, HE WAS NOT AT SUCH DATE ENTITLED TO LONGEVITY INCREASE (PERMANENT ADDITIONS TO BASE PAY) IN EXCESS OF 20 PERCENT OF HIS BASE PAY. THE BASE PAY OF A CHIEF PETTY OFFICER, PERMANENT APPOINTMENT, UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, IS $126, 20 PERCENT OF WHICH IS $25.20. UNDER THE PLAIN TERMS OF THE LAW GETTYS' RATE OF RETAINER PAY (ONE-THIRD OF $126) IS $42, PLUS $25.20, OR $67.20.

GETTYS' TOTAL SERVICE HAD HE BEEN TRANSFERRED AT EXPIRATION OF ENLISTMENT, AUGUST 6, 1922, WOULD HAVE BEEN LESS THAN 16 YEARS' ACTUAL SERVICE; THEREFORE, HAD HE SERVED UNTIL EXPIRATION OF ENLISTMENT BEFORE TRANSFER SUCH TOTAL SERVICE WOULD NOT HAVE ENTITLED HIM TO MORE THAN 20 PERCENTUM LONGEVITY INCREASE IN LIEU OF PERMANENT ADDITIONS. RETAINER PAY CREDITED GETTYS IN EXCESS OF $67.20 PER MONTH WILL BE DISALLOWED.