A-64872, SEPTEMBER 3, 1935, 15 COMP. GEN. 165

A-64872: Sep 3, 1935

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IS NOT FOR APPLICATION IN DETERMINING THE DATE OF SUCH RETIRED RESERVISTS' RIGHT TO ALLOWANCES AS A PART OF THE RETIRED PAY UPON COMPLETION OF 30 YEARS' SERVICE WHEN SUCH PERIOD OF SERVICE IS NOT COMPLETED UNTIL AFTER ATTAINING A RETIRED STATUS. WITH THE PAY THEY ARE THEN RECEIVING. THEY SHALL RECEIVE THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE.'. THE ABOVE QUOTED STATUTE IS APPLICABLE TO THE MARINE CORPS RESERVE. 2. ARE THOSE PROVIDED IN THE ACT OF MARCH 2. EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED. ARE REPEALED.'.

A-64872, SEPTEMBER 3, 1935, 15 COMP. GEN. 165

PAY - RETIRED - FLEET MARINE CORPS RESERVE THE ACT OF APRIL 23, 1930, 46 STAT. 253, FIXES THE DATE OF COMMENCEMENT OF THE RETIRED PAY STATUS OF MEMBERS OF THE FLEET MARINE CORPS RESERVE TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY AS ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BECOME EFFECTIVE, BUT IS NOT FOR APPLICATION IN DETERMINING THE DATE OF SUCH RETIRED RESERVISTS' RIGHT TO ALLOWANCES AS A PART OF THE RETIRED PAY UPON COMPLETION OF 30 YEARS' SERVICE WHEN SUCH PERIOD OF SERVICE IS NOT COMPLETED UNTIL AFTER ATTAINING A RETIRED STATUS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 3, 1935:

BY YOUR DIRECTION IN SECOND INDORSEMENT, AUGUST 19, 1935, THERE HAS BEEN RECEIVED BASIC LETTER OF THE PAYMASTER, MARINE CORPS, REQUESTING DECISION AS FOLLOWS: FROM: THE PAYMASTER. TO: THE MAJOR GENERAL COMMANDANT. SUBJECT:EFFECTIVE DATE FOR PAYMENT OF ALLOWANCES OR RETIRED TRANSFERRED

MEMBERS OF THE FLEET MARINE CORPS RESERVE PLACED ON THE

RETIRED LIST FOR PHYSICAL DISABILITY. REFERENCES: (A) SEC. 24, ACT OF FEB. 28, 1925 (43 STAT. 1087), AS

AMENDED BY THE ACT OF MAR. 2, 1929 (45 STAT.

1476-1477).

(B)ACT OF MARCH 2, 1907 (34 STAT. 1217).

(C) ACT OF APR. 23, 1930 (46 STAT. 253).

(D) DEC. OF COMP. GEN. DATED JULY 23, 1930 (10 COMP. GEN.

33).

1. REFERENCE (A) PROVIDES, IN PART, AS FOLLOWS:

"THAT TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE FOUND NOT PHYSICALLY QUALIFIED ON REPORTING FOR INSPECTION IN ACCORDANCE WITH THIS SECTION, SHALL BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY ARE THEN RECEIVING, AND UPON THE COMPLETION OF THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE, TIME IN THE FLEET NAVAL RESERVE, AND TIME ON THE RETIRED LIST OF THE NAVY, THEY SHALL RECEIVE THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE.' UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF FEBRUARY 28, 1925 (43 STAT. 1080), THE ABOVE QUOTED STATUTE IS APPLICABLE TO THE MARINE CORPS RESERVE.

2. THE "ALLOWANCES" REFERRED TO IN THE ACT OF MARCH 2, 1929, SUPRA, ARE THOSE PROVIDED IN THE ACT OF MARCH 2, 1907, FOR RETIRED ENLISTED MEN OF THE REGULAR ARMY, NAVY, AND MARINE CORPS, AND CONSIST OF $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND $6.25 PER MONTH IN LIEU OF QUARTERS.

3. REFERENCE (C) PROVIDES AS FOLLOWS:

"THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

"SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS, INSOFAR AS IN CONFLICT HEREWITH, ARE REPEALED.' UNDER THE PROVISIONS OF THIS STATUTE, AND IN ACCORDANCE WITH THE RULING OF THE COMPTROLLER GENERAL AS CONTAINED IN REFERENCE (D), TRANSFERS TO THE RETIRED LIST OF TRANSFERRED MEMBERS OF THE FLEET MARINE CORPS RESERVE PURSUANT TO THE PROVISIONS OF REFERENCE (A) ARE MADE EFFECTIVE AS OF THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SUCH TRANSFERS TO THE RETIRED LIST WOULD OTHERWISE BE EFFECTIVE. LIKEWISE, THE RULING OF THE COMPTROLLER GENERAL OF JULY 23, 1930, REFERENCE (D), HAS BEEN CONSTRUED AS AUTHORIZING THE PAYMENT OF RETIRED ALLOWANCES ONLY FROM AND INCLUDING THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THIRTY YEARS'SERVICE, AS DEFINED IN REFERENCE (A) HAS BEEN COMPLETED. THIS LATTER PROCEDURE DOES NOT APPEAR TO THIS OFFICE TO BE WITHIN THE INTENT OF THE ACT OF APRIL 23, 1930, REFERENCE (C), OR OF THE DECISION OF THE COMPTROLLER GENERAL OF JULY 23, 1930, REFERENCE (D).

4. A CASE ILLUSTRATIVE OF THE POINT ABOVE RAISED IS THAT OF SERGEANT TERENCE MCGARVEY, U.S. MARINE CORPS, RETIRED. SERGEANT MCGARVEY WAS TRANSFERRED TO CLASS II (D), FLEET MARINE CORPS RESERVE ON OCTOBER 20, 1925, AFTER MORE THAN TWENTY YEARS' NAVAL SERVICE. ON JULY 26, 1930, A LETTER WAS ADDRESSED TO MCGARVEY BY THIS HEADQUARTERS, AS FOLLOWS: "SUBJECT:TRANSFER TO THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR

MARINE CORPS. REFERENCES: (A) REPORT OF PHYSICAL EXAMINATION, DATED 21 JULY 1930, AND

ENDORSEMENTS THEREON.

(B) ACT APPROVED 28 FEBRUARY 1925, EFFECTIVE 1 JULY 1925,

PARAGRAPH 24.

(C) ACT APPROVED 2 MARCH 1929 (H.R. 7930), AMENDING

PARAGRAPH 24 OF ACT APPROVED 28 FEBRUARY 1925.

"1. IN ACCORDANCE WITH THE RECOMMENDATION CONTAINED ON REFERENCE (A), AND WITH THE PROVISIONS OF REFERENCES (B) AND (C), YOU ARE, ON AUGUST 1, 1930, TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR MARINE CORPS IN YOUR PRESENT PAY STATUS. UPON THE COMPLETION OF THIRTY YEARS OF NAVAL SERVICE YOU WILL RECEIVE THE ALLOWANCES TO WHICH YOU WILL BE ENTITLED AS PRESCRIBED BY LAW.

"2. YOU WILL KEEP THE PAYMASTER INFORMED OF ANY AND ALL CHANGES OF ADDRESS.

"3. THERE IS ENCLOSED A STATEMENT OF SERVICE WHICH SHOWS THAT YOU WILL HAVE COMPLETED THIRTY YEARS OF NAVAL SERVICE ON JULY 10, 1935.

"BY DIRECTION OF THE SECRETARY OF THE NAVY:

S B. H. FULLER.' MCGARVEY ASSUMED THE STATUS OF A RETIRED ENLISTED MAN ON AUGUST 1, 1930.

5. AS INDICATED IN PARAGRAPH 3 OF THE ABOVE-QUOTED LETTER, MCGARVEY COMPLETED THIRTY YEARS' SERVICE, INCLUDING SERVICE IN THE RESERVE AND ON THE RETIRED LIST, ON JULY 10, 1935.

6. IT IS RECOMMENDED THAT THE QUESTION BE PRESENTED TO THE COMPTROLLER GENERAL AS TO WHETHER MCGARVEY IS ENTITLED TO BE PAID THE ALLOWANCES OF A RETIRED ENLISTED MAN ON AND AFTER JULY 11, 1935, OR WHETHER SUCH ALLOWANCES ARE PROPERLY PAYABLE ONLY FROM AND INCLUDING AUGUST 1, 1935, THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THIRTY YEARS' SERVICE, AS DEFINED IN REFERENCE (A), WAS COMPLETED.

(SIGNED) GEORGE RICHARDS.

THE ACT OF APRIL 23, 1930, 46 STAT. 253, FIXES THE BEGINNING OF THE RETIRED PAY STATUS OF ALL FEDERAL PERSONNEL AS ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BECOME EFFECTIVE. THE RIGHT TO RETIRED PAY DOES NOT ACCRUE TO ANYONE PRIOR TO HIS ACQUISITION OF A RETIRED STATUS. A MEMBER OF THE FLEET MARINE CORPS RESERVE TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY DOES NOT ACQUIRE A RETIRED STATUS AND RIGHT TO RETIRED PAY PRIOR TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HIS RETIREMENT IS OTHERWISE EFFECTIVE. 9 COMP. GEN. 512; 10 ID. 33. THE ACT DETERMINES THE DATE OF COMMENCEMENT OF A PERSON'S RETIRED STATUS. IT DOES NOT, HOWEVER, AFFECT A RETIRED RESERVIST'S RIGHT TO ALLOWANCES AS A PART OF THE RETIRED PAY UPON COMPLETION OF 30 YEARS' SERVICE UNDER SECTION 24 OF THE NAVAL RESERVE ACT AS AMENDED BY THE ACT OF MARCH 2, 1929, 45 STAT. 1476, 1477, WHEN SUCH PERIOD OF SERVICE IS NOT COMPLETED UNTIL AFTER HE ATTAINS A RETIRED STATUS.

IN THE CASE OF MCGARVEY, WHOSE RETIRED STATUS, ACCORDING TO THE RECORDS SUBMITTED, BECAME EFFECTIVE AUGUST 1, 1930, AND WHO COMPLETED 30 YEARS' SERVICE ON JULY 10, 1935, YOU ARE ADVISED THAT IF THE RECORDS SUBMITTED ARE CORRECT HE IS ENTITLED TO THE INCREASED RETIRED PAY (ALLOWANCES OF A RETIRED ENLISTED MAN OF THE REGULAR NAVY) OF $15.75 PER MONTH COMMENCING JULY 11, 1935, THE DAY FOLLOWING COMPLETION OF 30 YEARS' SERVICE. 52575, DECEMBER 28, 1933.