A-61369, APRIL 27, 1935, 14 COMP. GEN. 800

A-61369: Apr 27, 1935

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REQUESTING DECISION RELATIVE TO THE RIGHT OF AN OFFICER OF THE UNITED STATES NAVAL RESERVE WHO WILL BE PLACED ON THE "HONORARY RETIRED LIST" AS OF MAY 1. DESIGNATING A TITLE OR PLACE WHICH IS HELD WITHOUT RENDERING SERVICE OR WITHOUT THE EMOLUMENTS OR PRIVILEGES USUAL TO IT.'. OTHER PROVISIONS OF THE NAVAL RESERVE ACT BEARING ON THE QUESTION ARE AS FOLLOWS: SEC. 1. * * * AND PROVIDED FURTHER. INCLUDING THOSE WHO MAY HAVE BEEN RETIRED. EXCEPT AS IS OTHERWISE PROVIDED IN THIS ACT. THAT OFFICERS AND MEN WHO HAVE HERETOFORE BEEN OR MAY HEREAFTER BE TRANSFERRED TO THE RETIRED LIST OF THE NAVAL RESERVE FORCE OR THE NAVAL RESERVE WITH PAY SHALL AT ALL TIMES BE SUBJECT TO THE LAWS. IF UPON SUCH EXAMINATION THEY ARE FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE SERVICE THEY SHALL BE HONORABLY DISCHARGED OR.

A-61369, APRIL 27, 1935, 14 COMP. GEN. 800

PAY - NAVAL RESERVE - OFFICERS - ACTIVE DUTY AFTER RETIREMENT OFFICERS PLACED ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY OR ALLOWANCES UPON REACHING THE AGE OF 64 YEARS AS PROVIDED IN SECTION 19 OF THE NAVAL RESERVE ACT, 43 STAT. 1085, CEASE TO BE OFFICERS OF THE NAVAL RESERVE FOR ALL PRACTICAL PURPOSES AND, THEREFORE, MAY NOT LEGALLY BE ORDERED TO ACTIVE DUTY AND RECEIVE PAY THEREFOR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, APRIL 27, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 12, 1935, REQUESTING DECISION RELATIVE TO THE RIGHT OF AN OFFICER OF THE UNITED STATES NAVAL RESERVE WHO WILL BE PLACED ON THE "HONORARY RETIRED LIST" AS OF MAY 1, 1935, ON ACCOUNT OF ATTAINING THE AGE OF 64 YEARS ON APRIL 25, 1935, TO ACTIVE DUTY PAY FOR THE PERFORMANCE OF ACTIVE DUTY WHILE CARRIED ON THE HONORARY RETIRED LIST. SECTION 19 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1085, PROVIDES:

THAT OFFICERS OF THE NAVAL RESERVE SHALL BE PLACED ON AN HONORARY RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY OR ALLOWANCES UPON REACHING THE AGE OF SIXTY-FOUR YEARS, OR, WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY, UPON THE OFFICER'S OWN REQUEST, AFTER TWENTY-FIVE YEARS' SERVICE IN THE NAVAL RESERVE: PROVIDED, THAT SERVICE IN THE NAVY, MARINE CORPS, NAVAL RESERVE FORCE, NATIONAL NAVAL VOLUNTEERS, NAVAL MILITIA, NAVAL AUXILIARY SERVICE, AND COAST GUARD SHALL BE COUNTED AS SERVICE IN THE NAVAL RESERVE UNDER THE PROVISIONS OF THIS SECTION.

THE TERM "HONORARY RETIRED LIST" AS USED IN THIS ACT, APPEARS TO BE AN INNOVATION WITH RESPECT TO NAVAL NOMENCLATURE. WEBSTER'S INTERNATIONAL DICTIONARY DEFINES THE WORD "HONORARY" AS ,DESIGNATING A TITLE OR PLACE WHICH IS HELD WITHOUT RENDERING SERVICE OR WITHOUT THE EMOLUMENTS OR PRIVILEGES USUAL TO IT.' THE MODIFYING WORDS OF THE STATUTE "WITHOUT PAY OR ALLOWANCES" DEPRIVE OFFICERS PLACED ON SUCH LIST OF ANY EMOLUMENTS AS RETIRED OFFICERS AND INDICATE THAT SUCH STATUS CARRIES NO OBLIGATION TO RENDER SERVICE AND CONFERS NO PRIVILEGE.

OTHER PROVISIONS OF THE NAVAL RESERVE ACT BEARING ON THE QUESTION ARE AS FOLLOWS:

SEC. 1. * * * AND PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS ACT SHALL AFFECT THE STATUS OR PAY OF MEMBERS OF THE NAVAL RESERVE FORCE HERETOFORE RETIRED WITH OR WITHOUT PAY.

SEC. 9. THAT OFFICERS AND MEN OF THE NAVAL RESERVE, INCLUDING THOSE WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS IS OTHERWISE PROVIDED IN THIS ACT, THEY SHALL ONLY BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH THEIR OWN CONSENT: PROVIDED, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY OFFICER OR MAN FROM ACTIVE DUTY AT ANY TIME.

SEC. 10. OFFICERS AND MEN OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY, AUTHORIZED TRAINING DUTY, WITH OR WITHOUT PAY, DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, DRILL, OR INSTRUCTION, OR DURING SUCH TIME AS THEY MAY BY LAW BE REQUIRED TO PERFORM ACTIVE DUTY IN ACCORDANCE WITH THEIR OBLIGATIONS, OR WHILE WEARING A UNIFORM PRESCRIBED FOR THE NAVAL RESERVE, SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY: PROVIDED, THAT DISCIPLINARY ACTION FOR AN OFFENSE COMMITTED WHILE SO SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY SHALL NOT BE BARRED BY REASON OF RELEASE FROM DUTY STATUS OF AN OFFICER OR MAN CHARGED WITH THE COMMISSION THEREOF: PROVIDED FURTHER, THAT OFFICERS AND MEN WHO HAVE HERETOFORE BEEN OR MAY HEREAFTER BE TRANSFERRED TO THE RETIRED LIST OF THE NAVAL RESERVE FORCE OR THE NAVAL RESERVE WITH PAY SHALL AT ALL TIMES BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY.

SEC. 18. ALL OFFICERS OF THE NAVAL RESERVE SHALL BE EXAMINED PHYSICALLY ONCE EVERY FOUR YEARS, OR OFTENER, AS MAY BE DEEMED NECESSARY, AND IF UPON SUCH EXAMINATION THEY ARE FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE SERVICE THEY SHALL BE HONORABLY DISCHARGED OR, WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY, PLACED ON THE HONORARY RETIRED LIST PROVIDED FOR IN SECTION 19 OF THIS ACT.

SECTION 17, RELATING TO THE ADVANCEMENT OF OFFICERS ON ACTIVE DUTY, CONTAINS THE FOLLOWING PROVISO:

* * * THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO OFFICERS WHO HAVE BEEN OR MAY HEREAFTER BE RETIRED FROM THE NAVAL RESERVE FORCE OR THE NAVAL RESERVE.

RELATIVE TO RETIREMENT OF OFFICERS OF THE NAVAL RESERVE FORCE, THE ACT OF AUGUST 29, 1916, 39 STAT. 588, PROVIDED:

* * * THAT ENROLLED MEMBERS WHO SHALL HAVE COMPLETED TWENTY YEARS OF SERVICE IN THE NAVAL RESERVE FORCE, AND WHO SHALL HAVE PERFORMED THE MINIMUM AMOUNT OF ACTIVE SERVICE REQUIRED IN THEIR CLASS FOR MAINTAINING EFFICIENCY DURING EACH TERM OF ENROLLMENT, SHALL, UPON THEIR OWN APPLICATION, BE RETIRED WITH THE RANK OR RATING HELD BY THEM AT THE TIME, AND SHALL RECEIVE IN LIEU OF ANY PAY, A CASH GRATUITY EQUAL TO THE TOTAL AMOUNT OF THEIR RETAINER PAY DURING THE LAST TERM OF THEIR ENROLLMENT.

THIS WAS MODIFIED BY THE ACT OF JULY 1, 1918, 40 STAT. 710, PROVIDING:

* * * SERVICE IN THE NAVY, MARINE CORPS, NATIONAL NAVAL VOLUNTEERS, AND NAVAL MILITIA SHALL BE COUNTED AS CONTINUOUS SERVICE IN THE NAVAL RESERVE FORCE, BOTH FOR THE PURPOSE OF RETIREMENT AND OF COMPUTING RETAINER PAY: PROVIDED, THAT NO MEMBER OF THE NAVAL RESERVE FORCE SHALL BE ELIGIBLE FOR RETIREMENT OTHER THAN FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY: *

THE ACT OF JUNE 4, 1920, 41 STAT. 834, PROVIDES:

THAT ALL OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY WHO HAVE HERETOFORE INCURRED OR MAY HEREAFTER INCUR PHYSICAL DISABILITY IN LINE OF DUTY SHALL BE ELIGIBLE FOR RETIREMENT UNDER THE SAME CONDITIONS AS NOW PROVIDED BY LAWS FOR OFFICERS OF THE REGULAR NAVY WHO HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY.

THIS WAS MODIFIED BY THE ACT OF JULY 12, 1921, 42 STAT. 140, PROVIDING:

THAT ALL OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY WHO HAVE HERETOFORE INCURRED OR MAY HEREAFTER INCUR PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR SHALL BE ELIGIBLE FOR RETIREMENT UNDER THE SAME CONDITIONS AS NOW PROVIDED BY LAW FOR OFFICERS OF THE REGULAR NAVY WHO HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY: PROVIDED, HOWEVER, THAT APPLICATIONS FOR SUCH RETIREMENT SHALL BE FILED WITH THE SECRETARY OF THE NAVY NOT LATER THAN OCTOBER 1, 1921.

OFFICERS OF THE NAVAL RESERVE FORCE RETIRED UNDER THE ACTS OF JUNE 4, 1920, AND JULY 12, 1921, ARE ENTITLED TO RETIRED PAY. 1 COMP. GEN. 83 AND 129. IT IS OBVIOUS, THEREFORE, IN CONTEMPLATION OF THE PROVISION IN SECTION 1 OF THE NAVAL RESERVE ACT THAT NOTHING CONTAINED THEREIN SHOULD AFFECT THE STATUS OR PAY OF MEMBERS OF THE NAVAL RESERVE FORCE "RETIRED WITH OR WITHOUT PAY," THOSE OFFICERS RETIRED UNDER THE ACT OF AUGUST 29,1916, WITH CASH GRATUITY WERE CONSIDERED AS OFFICERS OF THE NAVAL RESERVE FORCE RETIRED "WITHOUT PAY.' IT IS ALSO APPARENT THAT THOSE OFFICERS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACTS OF JUNE 4, 1920, AND JULY 12, 1921, ARE INCLUDED IN THOSE OFFICERS WHO HAVE HERETOFORE BEEN TRANSFERRED TO THE RETIRED LIST OF THE NAVAL RESERVE FORCE "WITH PAY" AND SHALL AT ALL TIMES BE SUBJECT TO THE LAWS, REGULATIONS AND ORDERS FOR THE GOVERNMENT OF THE NAVY AS PROVIDED IN SECTION 10 OF THE NAVAL RESERVE ACT. THIS PROVISION HAS THE EFFECT OF EXCLUDING THOSE SO TRANSFERRED WITHOUT PAY. APPARENTLY, THE ONLY PROVISION FOR RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVAL RESERVE IS THAT CONTAINED IN SECTIONS 18 AND 19. IT FOLLOWS THEN THAT OFFICERS OF THE NAVAL RESERVE ARE RETIRED WITHOUT PAY AND ARE NOT SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY AS ARE OFFICERS RETIRED UNDER THE NAVAL RESERVE FORCE LAWS WITH PAY. THE ONLY PROVISION IN THE ACT THAT SEEMINGLY IMPLIES ANY OBLIGATION OR PRIVILEGE WITH RESPECT TO OFFICERS ON THE "HONORARY RETIRED LIST" IS IN SECTION 9 OF THE ACT PROVIDING:

THAT OFFICERS AND MEN OF THE NAVAL RESERVE, INCLUDING THOSE WHO MAY HAVE BEEN RETIRED * * * IN TIME OF PEACE * * * SHALL ONLY BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH THEIR OWN CONSENT.

THIS PROVISION MAKES NO DISTINCTION IN THOSE "WHO MAY HAVE BEEN RETIRED" ON THE BASIS OF PAY. HOWEVER, SAID PROVISION OBVIOUSLY HAS APPLICATION TO OFFICERS RETIRED WITH PAY AND WHO UNDER SECTION 10 ARE "AT ALL TIMES" "SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY" AND DOES NOT INCLUDE OFFICERS ON THE "HONORARY RETIRED LIST OF THE NAVAL RESERVE" AS TO WHOM NO PROVISION IS MADE SUBJECTING THEM TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY.

I AM OF THE OPINION THAT WITHIN THE LEGISLATIVE INTENT AND PURPOSES, AS INDICATED BY THE LANGUAGE USED, OFFICERS PLACED ON THE "HONORARY RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY OR ALLOWANCES UPON REACHING THE AGE OF 64 YEARS" UNDER SECTION 19 OF THE NAVAL RESERVE ACT, ARE NOT OBLIGATED TO RENDER ANY SERVICE AND ARE NOT ENTITLED TO ANY PAY OR ALLOWANCES BY REASON OF SUCH STATUS; UPON BEING SO PLACED ON THE HONORARY RETIRED LIST THEY CEASE TO BE OFFICERS OF THE NAVAL RESERVE FOR ALL PRACTICAL PURPOSES AND, THEREFORE, MAY NOT LEGALLY BE ORDERED TO ACTIVE DUTY AND RECEIVE PAY THEREFOR.