B-105536, JANUARY 4, 1952, 31 COMP. GEN. 249

B-105536: Jan 4, 1952

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TO ASSIST NAVAL RESERVE OFFICERS TO COMPLETE THEIR EDUCATION UNDER NAVY AUSPICES IS NOT "RETAINER PAY" WITHIN THE PURVIEW OF THAT TERM AS USED IN SECTION 10 OF THE ACT OF AUGUST 2. 1952: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7. IS ENTITLED TO RECEIVE CONCURRENTLY RETAINER PAY UNDER THE PROVISIONS OF SECTION 9 (A) OF THAT ACT (60 STAT. 1060) AND PAY FOR INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING. SUCH AN OFFICER IS ENTITLED TO RECEIVE ONLY (1) THE RETAINER PAY OR (2) THE PAY FOR INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING WHICHEVER HE ELECTS. IT IS STATED THAT THE WORDS "PENSION. ARE TECHNICAL WORDS APPLICABLE TO REWARDS FOR "PRIOR MILITARY (OR NAVAL) SERVICE" AND THE PURPOSE OF SUCH STATUTORY PROVISIONS WAS TO PROHIBIT ONE WHO IS RECEIVING A MONETARY BENEFIT FOR DISABILITY OR AGE GROWING OUT OF PRIOR MILITARY SERVICE FROM CONCURRENTLY RECEIVING PAY AND ALLOWANCES FOR ACTIVE DUTY IN THE MILITARY OR NAVAL SERVICE IN ANOTHER CAPACITY.

B-105536, JANUARY 4, 1952, 31 COMP. GEN. 249

PAY - RETAINER - CONCURRENT RECEIPT OF TRAINING DUTY PAY THE RETAINER PAY GRANTED UNDER SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, TO ASSIST NAVAL RESERVE OFFICERS TO COMPLETE THEIR EDUCATION UNDER NAVY AUSPICES IS NOT "RETAINER PAY" WITHIN THE PURVIEW OF THAT TERM AS USED IN SECTION 10 OF THE ACT OF AUGUST 2, 1946, PROHIBITING THE CONCURRENT RECEIPT OF MONETARY BENEFITS FOR DISABILITY OR AGE AS RESULT OF PRIOR MILITARY SERVICE AND PAY AND ALLOWANCES FOR ACTIVE DUTY IN ANOTHER CAPACITY, AND THEREFORE, AN OFFICE MAY RECEIVE CONCURRENTLY THE RETAINER PAY UNDER SAID SECTION 9 (A) AND PAY FOR INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 4, 1952:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1951, WHEREIN YOU REQUEST DECISION AS TO WHETHER AN OFFICER OF THE NAVAL RESERVE, APPOINTED THEREIN PURSUANT TO THE ACT OF AUGUST 13, 1946, 60 STAT. 1057, IS ENTITLED TO RECEIVE CONCURRENTLY RETAINER PAY UNDER THE PROVISIONS OF SECTION 9 (A) OF THAT ACT (60 STAT. 1060) AND PAY FOR INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING, OR WHETHER, IN VIEW OF THE PROVISIONS OF SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS AMENDED BY SECTION 1 OF THE ACT OF SEPTEMBER 27, 1950, PUBLIC LAW 844, SUCH AN OFFICER IS ENTITLED TO RECEIVE ONLY (1) THE RETAINER PAY OR (2) THE PAY FOR INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING WHICHEVER HE ELECTS.

THE SAID SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, 60 STAT. 1060, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * UPON TERMINATION OF COMMISSION (IN THE REGULAR SERVICE), EACH SUCH OFFICER WHO THEREUPON ACCEPTS APPOINTMENT TO COMMISSIONED RANK IN THE NAVAL OR MARINE CORPS RESERVE MAY APPLY FOR AND RECEIVE RETAINER PAY AT THE RATE OF $100 FOR EACH CALENDAR MONTH OR PART THEREOF DURING WHICH, WHILE AN OFFICER OF THE NAVAL OR MARINE CORPS RESERVE, HE PURSUES FULL- TIME INSTRUCTION IN AN ACCREDITED COLLEGE OR UNIVERSITY BUT NOT TO EXCEED A TOTAL OF $2,000 * * *.

SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, 64 STAT. 1067, PROVIDES THAT---

ANY MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ENTITLED TO DRAW A PENSION, RETAINER PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES BY VIRTUE OF PRIOR MILITARY SERVICE, MAY ELECT, WITH REFERENCE TO PERIODS OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, DRILL, TRAINING, INSTRUCTION, OR OTHER DUTY FOR WHICH THEY MAY BE ENTITLED TO RECEIVE COMPENSATION PURSUANT TO ANY PROVISIONS OF LAW TO RECEIVE EITHER (1) THE COMPENSATION FOR SUCH DUTY, WHICH WHEN AUTHORIZED BY LAW, SHALL INCLUDE TRAVEL OR OTHER EXPENSES INCIDENT THERETO, AND SUBSISTENCE AND QUARTERS, OR COMMUTATION THEREOF, OR (2) THE PENSION, RETAINER PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION OR RETIRED PAY, BUT NOT BOTH; AND UNLESS THEY SPECIFICALLY WAIVE OR RELINQUISH THE LATTER, THEY SHALL NOT RECEIVE THE FORMER FOR THE PERIODS OF SUCH DUTY: PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING THE ENLISTMENT OR APPOINTMENT IN THE NAVAL RESERVE OR THE MARINE CORPS RESERVE OF ANY PERSON WHO MAY BE ENTITLED TO DRAW ANY SUCH PENSION, DISABILITY ALLOWANCE, OR DISABILITY COMPENSATION.

IN DECISION OF NOVEMBER 2, 1951, B-105564, COPY ENCLOSED, IT IS STATED THAT THE WORDS "PENSION, RETIREMENT PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY" AS USED IN SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS AMENDED BY SECTION 2 OF THE CITED ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067, ARE TECHNICAL WORDS APPLICABLE TO REWARDS FOR "PRIOR MILITARY (OR NAVAL) SERVICE" AND THE PURPOSE OF SUCH STATUTORY PROVISIONS WAS TO PROHIBIT ONE WHO IS RECEIVING A MONETARY BENEFIT FOR DISABILITY OR AGE GROWING OUT OF PRIOR MILITARY SERVICE FROM CONCURRENTLY RECEIVING PAY AND ALLOWANCES FOR ACTIVE DUTY IN THE MILITARY OR NAVAL SERVICE IN ANOTHER CAPACITY. SEE, ALSO, 20 COMP. GEN. 313 AND 30 ID. 155.

THE RETAINER PAY GRANTED BY SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946 IS NOT COMPENSATION FOR PRIOR NAVAL SERVICE BUT RATHER IS INTENDED AS COMPENSATION TO ASSIST THE NAVAL RESERVE OFFICERS IN QUESTION TO COMPLETE THEIR COLLEGE EDUCATION UNDER NAVY AUSPICES. SEE, IN THAT CONNECTION, THE REPORT OF THE HEARINGS BEFORE THE HOUSE OF REPRESENTATIVES COMMITTEE ON NAVAL AFFAIRS ( REPORT NO. 225) ON THE BILL, H.R. 5426, WHICH WAS THE COMPANION BILL TO S. 2304, WHICH BECAME THE ACT OF AUGUST 13, 1946, WHEREIN IT WAS STATED WITH RESPECT TO THE PROVISION FOR THE PAYMENT OF "RETAINER PAY" (PAGE 2999):

THE CHAIRMAN. IF HE SAYS " I DON-T WANT TO MAKE THE NAVY MY CAREER," AND HE DOES NOT MAKE APPLICATION, THEN YOU GIVE HIM AN OPPORTUNITY OF GOING TO ANY COLLEGE THAT HE DESIRES TO GO TO, FOR A PERIOD OF TWO YEARS?

CAPTAIN VEST. YES, SIR.

THE CHAIRMAN. AND YOU PAY ALL OF HIS EXPENSES, PLUS $100?

CAPTAIN VEST. WE PAY ALL OF HIS ACADEMIC EXPENSES PLUS $100 CASH ALLOWANCE FROM WHICH HE IS EXPECTED TO SUBSIST AND BOARD HIMSELF.

IT IS CONCLUDED THAT THE RETAINER PAY GRANTED BY THE SAID SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, IS NOT "RETAINER PAY" WITHIN THE PURVIEW OF THAT TERM AS USED IN SECTION 10 OF THE ACT OF AUGUST 2, 1946, AND OFFICERS IN RECEIPT OF SUCH $100 PER MONTH CASH ALLOWANCE MAY BE PAID CONCURRENTLY PAY FOR INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING.