B-108782, FEB 27, 1953

B-108782: Feb 27, 1953

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WAS TRANSFERRED TO THE FLEET RESERVE ON OCTOBER 23. HE WAS PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY. THE SECRETARY OF THE NAVY DETERMINED THAT THE HIGHEST GRADE AND RANK IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT WAS THAT OF ENSIGN AND. IT IS STATED THAT MR. 000 PER ANNUM AND THUS WAS SUBJECT TO THE RESTRICTION IMPOSED BY SECTION 212 OF THE ACT OF JUNE 30. MASON'S RIGHT TO RESTORATION IS GOVERNED BY SECTION 3 OF THE ACT OF JULY 19. WHETHER THE PERIOD DURING WHICH HE IS ENTITLED TO REQUEST SUCH RESTORATION COMMENCES JULY 25. WHICH IS THE DATE THAT THE SECRETARY OF THE NAVY DETERMINED THAT HE HAD SATISFACTORILY SERVED IN THE RANK OF ENSIGN. IF APPLICATION THEREFOR IS MADE TO THE SECRETARY OF THE NAVY WITHIN THREE MONTHS FROM THE DATE OF APPROVAL OF THAT ACT OR WITHIN THREE MONTHS AFTER DATE OF ADVANCEMENT TO COMMISSIONED RANK OR GRADE ON THE RETIRED LIST.

B-108782, FEB 27, 1953

PRECIS-UNAVAILABLE

COMMANDER J. B. WARNER, S.C., U. S. NAVY:

BY LETTER DATED MARCH 25, 1952, THE JUDGE ADVOCATE GENERAL FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 15, 1952, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION REGARDING THE RETIRED PAY RIGHTS OF FRANK R. MASON, CHIEF SIGNALMAN, UNITED STATES NAVY, RETIRED, SERVICE NO. 336 36 91.

IT APPEARS THAT MR. MASON, AN ENLISTED MAN IN THE REGULAR NAVY, WAS TRANSFERRED TO THE FLEET RESERVE ON OCTOBER 23, 1944, AND THAT ON APRIL 1, 1945, HE WAS PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY. ON JULY 25, 1951, THE SECRETARY OF THE NAVY DETERMINED THAT THE HIGHEST GRADE AND RANK IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT WAS THAT OF ENSIGN AND, UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8(A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, HE BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF THAT RANK EFFECTIVE RETROACTIVELY TO APRIL 1, 1945.

IT IS STATED THAT MR. MASON HAS BEEN EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY IN EXCESS OF $3,000 PER ANNUM AND THUS WAS SUBJECT TO THE RESTRICTION IMPOSED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, AGAINST SUCH PERSONS RECEIVING RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER. ACCORDINGLY, ON AUGUST 2, 1951, HE REQUESTED THAT HE BE RESTORED TO HIS FORMER ENLISTED STATUS ON THE RETIRED LIST AND BY LETTER DATED NOVEMBER 7, 1951, THE CHIEF OF NAVAL PERSONNEL ADVISED HIM THAT THE SECRETARY OF THE NAVY HAD APPROVED SUCH REQUEST ON AUGUST 29, 1951, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802.

YOU REQUEST DECISION AS TO WHETHER MR. MASON'S RIGHT TO RESTORATION IS GOVERNED BY SECTION 3 OF THE ACT OF JULY 19, 1948, 62 STAT. 505, RATHER THAN THE CAREER COMPENSATION ACT OF 1949, AND, IF SO, WHETHER THE PERIOD DURING WHICH HE IS ENTITLED TO REQUEST SUCH RESTORATION COMMENCES JULY 25, 1951, WHICH IS THE DATE THAT THE SECRETARY OF THE NAVY DETERMINED THAT HE HAD SATISFACTORILY SERVED IN THE RANK OF ENSIGN.

SECTION 3 OF THE ACT OF JUNE 19, 1948, PROVIDES THAT ENLISTED MEN THERETOFORE OR THEREAFTER ADVANCED TO COMMISSIONED RANK OR GRADE ON THE RETIRED LIST UNDER THE ACT OF JULY 24, 1941, AS AMENDED, SHALL, IF APPLICATION THEREFOR IS MADE TO THE SECRETARY OF THE NAVY WITHIN THREE MONTHS FROM THE DATE OF APPROVAL OF THAT ACT OR WITHIN THREE MONTHS AFTER DATE OF ADVANCEMENT TO COMMISSIONED RANK OR GRADE ON THE RETIRED LIST, WHICHEVER IS LATER, AND SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE NAVY, BE RESTORED TO THEIR FORMER RETIRED ENLISTED STATUS. SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, EFFECTIVE OCTOBER 1, 1949, MAKES SIMILAR PROVISION FOR ENLISTED MEN, WHOSE RETIRED PAY IS COMPUTED UNDER THE PROVISIONS OF SUCH SECTION (30 COMP. GEN. 217), THERETOFORE OR THEREAFTER ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK OR GRADE PURSUANT TO ANY PROVISION OF LAW, IF APPLICATION FOR RESTORATION IS MADE TO THE SECRETARY WITHIN ONE YEAR FROM THE EFFECTIVE DATE OF THAT SECTION OR WITHIN ONE YEAR AFTER THE DATE OF ADVANCEMENT, WHICHEVER IS LATER. SINCE THERE WOULD BE NO BASIS FOR AUTHORIZING SUCH RESTORATIONS TO BE MADE RETROACTIVE UNDER EITHER STATUTORY PROVISION (30 COMP. GEN. 91), AND SINCE THE LATER ENACTED PROVISION IN SECTION 511 COVERS THE WHOLE FIELD OF THE EARLIER STATUTORY PROVISION WITH RESPECT TO THOSE ENLISTED MEN WHOSE RETIRED PAY IS GOVERNED BY SECTION 511, IT MUST BE CONSIDERED THAT, INSOFAR AS THOSE ENLISTED MEMBERS ARE CONCERNED, THE EARLIER ENACTMENT HAS BEEN SUPERSEDED. ASSUMING THAT THE RETIRED PAY OF THE OFFICER HERE IN QUESTION IS BEING COMPUTED UNDER SECTION 511, AS IS APPARENTLY THE CASE, THE FIRST PART OF YOUR QUESTION IS ANSWERED IN THE NEGATIVE. WHILE SUCH ANSWER MAKES A REPLY TO THE SECOND PART OF YOUR QUESTION UNNECESSARY, IT MAY BE STATED THAT THE PERIOD DURING WHICH HE WAS ENTITLED TO REQUEST RESTORATION UNDER THE PROVISIONS OF SECTION 511 COMMENCED ON JULY 25, 1951, I.E., THE ACTUAL DATE WHEN SUCH ADVANCEMENT ON THE RETIRED LIST WAS MADE, NOTWITHSTANDING THAT IT WAS RETROACTIVELY EFFECTIVE.

WITH RESPECT TO MR. MASON'S PAY STATUS FOR THE PERIOD PRIOR TO JULY 25, 1951, YOUR ATTENTION IS INVITED TO DECISION OF MAY 29, 1952, 31 COMP. GEN. 619.