B-101345, AUGUST 22, 1951, 31 COMP. GEN. 39

B-101345: Aug 22, 1951

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RETIRED ENLISTED MEN WHO WERE RETIRED OR GRANTED RETIRED PAY PRIOR TO OCTOBER 1. 1951: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. RETIRED ENLISTED MEN WHO WERE RETIRED OR GRANTED RETIRED PAY PRIOR TO OCTOBER 1. ARE ENTITLED TO COUNT FOR "BASIC PAY" PURPOSES. SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK. (B) AN OFFICER OR ENLISTED MAN OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL. BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

B-101345, AUGUST 22, 1951, 31 COMP. GEN. 39

PAY - RETIRED - COMPUTATION UNDER THE CAREER COMPENSATION ACT OF 1949 RETIRED MEMBERS OF THE FLEET RESERVE, RETIRED OFFICERS, AND RETIRED ENLISTED MEN WHO WERE RETIRED OR GRANTED RETIRED PAY PRIOR TO OCTOBER 1, 1949, UNDER SECTION 8 OF THE ACT OF JULY 24, 1941, AS AMENDED, MAY NOT COUNT FOR BASIC PAY PURPOSES, IN THE COMPUTATION OF THEIR RETIRED PAY, INACTIVE TIME ON THE RETIRED LIST OR IN THE FLEET RESERVE IF THEY ELECT PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 TO QUALIFY FOR DISABILITY RETIRED PAY UNDER SECTION 402 (D) OR TO RECEIVE RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THE ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, AUGUST 22, 1951:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1951, WITH ENCLOSURE, WHEREIN YOU REQUEST DECISION AS TO WHETHER RETIRED MEMBERS OF THE FLEET RESERVE, RETIRED OFFICERS, AND RETIRED ENLISTED MEN WHO WERE RETIRED OR GRANTED RETIRED PAY PRIOR TO OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350G, ARE ENTITLED TO COUNT FOR "BASIC PAY" PURPOSES, IN THE COMPUTATION OF THEIR RETIRED PAY, INACTIVE SERVICE IN THE FLEET RESERVE OR INACTIVE SERVICE ON THE RETIRED LIST IF THEY ELECT PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 802, 823, TO QUALIFY FOR DISABILITY RETIRED PAY AUTHORIZED BY SECTION 402 (D) OF THAT ACT, OR IF THEY ELECT TO RECEIVE RETIRED PAY COMPUTED IN ACCORDANCE WITH METHOD (B) OF SECTION 511 OF THAT ACT.

SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED, SUPRA, READS, IN PERTINENT PART, AS FOLLOWS:

(A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(B) AN OFFICER OR ENLISTED MAN OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(C) AN OFFICER OR ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) OF THIS SECTION, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(D) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY IN THE SAME RANK AS THAT HELD BY HIM ON THE RETIRED LIST AND IF NOT OTHERWISE ENTITLED THERETO, RECEIVE 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK. ( ITALICS SUPPLIED.)

IN DECISION OF JULY 28, 1943, 23 COMP. GEN. 59, 66, THE EFFECT OF THE ITALICIZED PORTIONS OF THE ABOVE-QUOTED STATUTORY PROVISIONS WAS CONSIDERED AND IT WAS CONCLUDED THAT, NOTWITHSTANDING THE GENERAL STATUTORY PROHIBITION AGAINST COUNTING INACTIVE TIME ON THE RETIRED LIST FOR THE PURPOSE OF INCREASING RETIRED PAY, PERSONNEL ENTITLED TO THE BENEFITS OF SUCH SPECIAL PROVISIONS IN THE SAID SECTION 8 WERE ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR RETIRED PAY FOR ANY INACTIVE TIME ON THE RETIRED LIST FOR WHICH THEY WERE RECEIVING CREDIT IN THE COMPUTATION OF THEIR ACTIVE DUTY PAY.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, SUPRA, PROVIDES IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

SECTION 402 (D), 63 STAT. 818, PROVIDES, IN PERTINENT PART, THAT---

* * * A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * AT THE TIME OF HIS RETIREMENT * * * BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY * * * AT THE TIME OF RETIREMENT * * * PROVIDED FURTHER, THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT * * * AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING * * * AT THE TIME OF HIS RETIREMENT * * *.

AND SECTION 511, 63 STAT. 829, PROVIDES, IN PERTINENT PART, THAT---

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *.

IF THE MEMBERS REFERRED TO ELECT PURSUANT TO SECTION 411 TO HAVE THEIR RETIRED PAY OR RETAINER PAY COMPUTED UNDER EITHER SECTION 402 (D) OR UNDER METHOD (B) OF SECTION 511, THEN THE COMPUTATION OF THEIR RETIRED PAY IS GOVERNED BY THE PROVISIONS OF THE 1949 ACT AND THE COMPUTATION PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, SUPRA, WOULD NO LONGER BE FOR APPLICATION.

SECTION 202 OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) SUBJECT TO THE PROVISIONS OF SUBSECTIONS (B), (C), AND (D) OF THIS SECTION, IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE, SUCH MEMBERS SHALL BE CREDITED WITH---

(1) FULL TIME FOR ALL PERIODS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, AND ENLISTED PERSON IN ANY REGULAR OR RESERVE COMPONENT OF ANY OF THE UNIFORMED SERVICES; AND

(6) ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION ( OCTOBER 1, 1949) IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.

(B) MEMBERS OF THE UNIFORMED SERVICES SHALL ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST, HONORARY RETIRED LIST, OR A RETIRED LIST OF ANY OF THE UNIFORMED SERVICES, OR WHILE AUTHORIZED TO RECEIVE RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, FROM ANY OF THE UNIFORMED SERVICES OR FROM THE VETERANS' ADMINISTRATION, OR WHILE A MEMBER OF THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS OR ORGANIZED RESERVE CORPS: PROVIDED, THAT, EXCEPT FOR ACTIVE SERVICE PRESCRIBED IN SECTION 202 (A) (1), THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT. ( ITALICS SUPPLIED.)

SECTION 202 IS THE BASIC PROVISION OF THE CAREER COMPENSATION ACT DEFINING THE SERVICE CREDITABLE FOR BASIC PAY PURPOSES, THAT IS, ACTIVE DUTY PAY. SUBSECTION (B) CLEARLY AUTHORIZES THE COUNTING OF INACTIVE TIME ON THE RETIRED LIST OR AS A FLEET RESERVIST AS AN "ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES," THAT IS FOR ACTIVE DUTY PAY PURPOSES, BUT THE SAID SUBSECTION CONTAINS A PROVISO EXPRESSLY PROHIBITING THE INCLUSION OF CREDIT FOR SUCH SERVICE OR ANY OTHER SERVICE WHICH IS NOT "ACTIVE SERVICE AS PRESCRIBED IN SECTION 202 (A) (1)" TO "INCREASE" RETIRED PAY, RETAINER PAY, ETC., EXCEPT AS PROVIDED IN TITLE IV OF THE ACT. IN OTHER WORDS, AFTER AN OFFICER OR ENLISTED MAN IS RETIRED, ANY SUBSEQUENT SERVICE EXCEPT AS NOTED BELOW, MAY NOT BE COUNTED TO INCREASE HIS RETIRED PAY UNLESS IT BE ACTIVE SERVICE PRESCRIBED IN SECTION 202 (A) (1). ONE EXCEPTION IS MADE, THAT IS,"EXCEPT AS PROVIDED IN TITLE IV * * *.' THE ONLY PROVISIONS OF TITLE IV OF THE ACT WHICH SPECIFICALLY RELATE TO SERVICE WHICH MAY BE COUNTED FOR RETIRED PAY PURPOSES ARE THOSE CONTAINED IN SECTION 412. WHILE SUCH SECTION AUTHORIZES THE COUNTING OF CERTAIN SERVICE OTHER THAN THAT MENTIONED IN SECTION 202 (A) (1), IT RELATES TO THE "ACTIVE SERVICE" TO BE INCLUDED IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING RETIRED PAY UNDER TITLE IV AND NOT TO THE BASIC PAY (HERE INVOLVED) TO WHICH SUCH PERCENTAGE FACTOR IS TO BE APPLIED. SEE SECTION 402 (D), SUPRA.

IN THE ENCLOSURE WITH YOUR LETTER REFERENCE IS MADE TO THE LAST PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 WHICH READS, IN PERTINENT PART, AS FOLLOWS:

AND PROVIDED FURTHER, THAT FOR ANY MEMBER WHO, FOR ANY REASON, HAS BEEN OR HEREAFTER MAY BE RETIRED OR WHOSE NAME IS CARRIED ON A TEMPORARY DISABILITY RETIRED LIST AND WHO, WHILE IN SUCH STATUS, SERVES ON ACTIVE DUTY, AND WHILE SO SERVING, INCURS A PHYSICAL DISABILITY OF 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION OR INCUR A PHYSICAL DISABILITY IN ADDITION TO OR AN AGGRAVATION OF THE PHYSICAL DISABILITY FOR WHICH HE WAS RETIRED OR FOR WHICH HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, SHALL, IF QUALIFIED THEREFOR PURSUANT TO THIS TITLE, BE ENLISTED, ON HIS RETURN TO A RETIRED STATUS OR TO THE TEMPORARY DISABILITY RETIRED LIST, TO RECEIVE * * * DISABILITY RETIREMENT PAY AS PROVIDED IN THIS SECTION, USING AS MULTIPLIERS THE HIGHEST PERCENTAGES AND BASIC PAY WHICH HE ATTAINED WHILE SERVING ON SUCH ACTIVE DUTY * * *.

SUCH PROVISION IS PROSPECTIVE IN FORM AND IS VIEWED AS RELATING ONLY TO RETIRED MEMBERS WHO MAY SERVE ON ACTIVE DUTY SUBSEQUENT TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE ACT. COMPARE DECISION OF FEBRUARY 16, 1951, B-93171, 30 COMP. GEN. 350. HENCE, SUCH PROVISION APPEARS TO HAVE NO APPLICATION TO COMPUTATIONS UNDER SECTIONS 411 AND 511 OF THE ACT, HERE IN QUESTION.

IT WILL BE NOTED THAT UNDER THE PROVISIONS OF SECTION 402 (D) DISABILITY RETIREMENT PAY IS TO BE COMPUTED ON THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY A MEMBER AT THE "TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER," OR, IN THE CASE OF THOSE MEMBERS WHO SERVED SATISFACTORILY IN A HIGHER TEMPORARY RANK, GRADE, OR RATING, ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING "AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER.'

THE PROVISIONS OF SECTION 402 (D) WERE PRIMARILY INTENDED, OF COURSE, TO APPLY TO MEMBERS RETIRED FOR DISABILITY OR PLACED ON A TEMPORARY DISABILITY RETIRED LIST ON AND AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE ACT. IN APPLYING SUCH PROVISIONS CONSTRUCTIVELY, PURSUANT TO SECTION 411, TO MEMBERS RETIRED FOR DISABILITY PRIOR TO THAT DATE, THEY MUST BE APPLIED IN CONJUNCTION WITH THE PROVISION IN SECTION 202 (B) PROHIBITING THE INCLUSION OF CREDIT FOR INACTIVE SERVICE AFTER RETIREMENT TO INCREASE RETIRED PAY. THAT MAY BE DONE BY DETERMINING WHAT THE MEMBER'S MONTHLY BASIC PAY WOULD HAVE BEEN AT THE TIME OF RETIREMENT IF THE CAREER COMPENSATION ACT OF 1949 HAD THEN BEEN IN EFFECT AND THE MEMBER HAD THEN BEEN SERVING IN THE HIGHEST RANK, PRESCRIBED IN SECTION 402 (D), WITH ADDITIONAL CREDIT FOR ANY ACTIVE SERVICE AFTER RETIREMENT AS PRESCRIBED (AND ONLY AS PRESCRIBED) IN SECTION 202 (A) (1) OF THE ACT. SUCH BASIC PAY WOULD THEN BE MULTIPLIED BY THE PERCENTAGE OF DISABILITY OR BY THE PERCENTAGE FACTOR OBTAINED BY MULTIPLYING THE NUMBER OF YEARS OF "ACTIVE SERVICE" AS DEFINED IN SECTION 412 OF THE ACT BY 2 1/2 PERCENTUM, AS PROVIDED IN SAID SECTION 402 (D) OF THE ACT. WHILE THE LANGUAGE IN METHOD (B) OF SECTION 511 THAT RETIRED PAY OR RETAINER PAY IS TO BE COMPUTED ON THE BASIC PAY WHICH THE MEMBER WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IS SOMEWHAT BROADER THAN THAT CONTAINED IN SECTION 402 (D), SUCH LANGUAGE MUST ALSO BE READ IN CONJUNCTION WITH, AND AS SUBJECT TO, THE SAID PROHIBITION IN SECTION 202 (B) AGAINST INCLUDING CREDIT FOR INACTIVE TIME TO INCREASE RETIRED PAY OR RETAINER PAY. SUCH PROHIBITION WOULD APPEAR TO BE AS APPLICABLE TO MEMBERS RETIRED OR TRANSFERRED TO THE FLEET RESERVE PRIOR TO OCTOBER 1, 1949, WHO SEEK AN INCREASE IN THEIR RETIRED OR RETAINER PAY UNDER SECTION 511 AS TO MEMBERS THEREAFTER RETIRED OR TRANSFERRED. TO CONCLUDE OTHERWISE WOULD NOT ONLY IMPUTE TO THE CONGRESS AN INTENT TO DISCRIMINATE AGAINST PREVIOUSLY RETIRED DISABLED MEMBERS WHOSE RETIRED PAY, PURSUANT TO SECTION 411, SUPRA, IS COMPUTED UNDER SECTION 402 (D) AND IN FAVOR OF THOSE DISABLED AND NON-DISABLED MEMBERS WHOSE RETIRED PAY IS COMPUTED UNDER METHOD (B) OF SECTION 511. NO INDICATION HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE ACT THAT ANY SUCH DISCRIMINATION WAS INTENDED, NOR DOES THERE COME TO MIND ANY REASON WHY SUCH A DISCRIMINATION POSSIBLY COULD HAVE BEEN INTENDED. UNDER THE CIRCUMSTANCES, I AM OF THE OPINION THAT ANY DOUBT THERE MAY BE IN THE MATTER SHOULD BE RESOLVED IN FAVOR OF EQUAL TREATMENT IN THAT RESPECT FOR BOTH SUCH GROUPS OF PREVIOUSLY RETIRED MEMBERS. THAT WOULD BE ACCOMPLISHED BY READING THE "BASIC PAY" PROVISION IN SECTION 511 IN CONJUNCTION WITH THE PROHIBITION IN SECTION 202 (B) AS MEANING THE BASIC PAY WHICH THE MEMBER WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY WITHOUT CREDIT FOR ANY SERVICE AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE EXCEPT SUCH ACTIVE SERVICE AS IS EXPRESSLY PRESCRIBED IN SECTION 202 (A) (1). SUCH CONCLUSION CONFORMS WITH THE LONG ESTABLISHED POLICY OF THE CONGRESS AS EMBODIED IN THE ACT OF MARCH 2, 1903, 32 STAT. 932, PROHIBITING THE CREDITING OF INACTIVE TIME ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES, EXCEPT AS TO OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE; SECTION 17 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 632, AS AMENDED BY THE ACT OF MAY 26, 1928, 45 STAT. 774, AUTHORIZING CREDIT ONLY FOR ACTIVE DUTY PERFORMED AFTER RETIREMENT FOR RETIRED PAY PURPOSES; AND THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, TO THE SAME EFFECT.