B-123795, OCT. 14, 1955

B-123795: Oct 14, 1955

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TO THE HONORABLE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF APRIL 25. IS ENTITLED IN THE CIRCUMSTANCES HEREAFTER STATED. THE RECORD SHOWS THAT THE ENLISTED MAN WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE AS OF MAY 2. HE WAS CREDITED FOR TRANSFER PURPOSES WITH A TOTAL OF 22 YEARS. TO HAVE HIS RETAINER PAY COMPUTED ON THE BASIS OF THE NUMBER OF YEARS OF "ACTIVE FEDERAL SERVICE" CREDITABLE TO HIM UNDER THE PROVISIONS OF SECTION 204 OF THE ACT. IT IS SHOWN THAT CALANDE WAS RETAINED ON ACTIVE DUTY THROUGH JUNE 15. 25 DAYS SERVICE WITH WHICH HE WAS CREDITED UPON HIS TRANSFER TO THE FLEET RESERVE ON MAY 2. CALANDE IS ENTITLED. WHICH PROVIDES AS FOLLOWS: "AN ENLISTMENT IN THE NAVY OR MARINE CORPS SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF INJURY.

B-123795, OCT. 14, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF APRIL 25, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) FORWARDING A REQUEST DATED MARCH 22, 1955, FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, NAVY FINANCE CENTER, FOR DECISION WHETHER EUGENE L. CALANDE, CHIEF AVIATION MACHINIST'S MATE, CLASS F-6, FLEET RESERVE, IS ENTITLED IN THE CIRCUMSTANCES HEREAFTER STATED, TO RETAINER PAY ON THE BASIS OF 24 YEARS' ACTIVE FEDERAL SERVICE.

THE RECORD SHOWS THAT THE ENLISTED MAN WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE AS OF MAY 2, 1952, PURSUANT TO THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854C. HE WAS CREDITED FOR TRANSFER PURPOSES WITH A TOTAL OF 22 YEARS, 4 MONTHS, 25 DAYS SERVICE AND HE ELECTED, AS PROVIDED IN SECTION 9 OF THE 1946 LAW, 60 STAT. 997, TO HAVE HIS RETAINER PAY COMPUTED ON THE BASIS OF THE NUMBER OF YEARS OF "ACTIVE FEDERAL SERVICE" CREDITABLE TO HIM UNDER THE PROVISIONS OF SECTION 204 OF THE ACT.

IT IS SHOWN THAT CALANDE WAS RETAINED ON ACTIVE DUTY THROUGH JUNE 15, 1953, AND HIS RETAINER PAY, EFFECTIVE FROM JUNE 16, 1953, HAS BEEN COMPUTED ON THE BASIS OF THE 22 YEARS, 4 MONTHS, 25 DAYS SERVICE WITH WHICH HE WAS CREDITED UPON HIS TRANSFER TO THE FLEET RESERVE ON MAY 2, 1952, PLUS THE PERIOD OF ACTIVE DUTY PERFORMED BY HIM FROM MAY 3, 1952, TO JUNE 15, 1953, INCLUSIVE (1 YEAR, 1 MONTH, 13 DAYS), OR A TOTAL OF 23 YEARS, 6 MONTHS AND 8 DAYS. (SECTION 516, CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316). UNDER THE SPECIFIC TERMS OF THE SIXTH PROVISO IN SECTION 204, WHICH PROVIDES THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR THE PURPOSES OF THAT SECTION, CALANDE IS ENTITLED, ON THE BASIS OF THE SERVICE SHOWN ABOVE, TO COMPUTE HIS RETAINER PAY AS THOUGH HE HAD 24 FULL YEARS OF ACTIVE FEDERAL SERVICE.

A STATEMENT OF CALANDE'S NAVAL SERVICE PREPARED ON OCTOBER 4, 1954, BY THE CHIEF OF NAVAL PERSONNEL, DISCLOSES THAT THE ENLISTED MAN IN FACT LOST 41 DAYS TIME (NOVEMBER 24, 1933, TO DECEMBER 8, 1933, INCLUSIVE, AND JANUARY 22, 1934, TO FEBRUARY 16, 1934, INCLUSIVE) BY REASON OF SICKNESS DUE TO HIS OWN MISCONDUCT. TIME LOST IN EXCESS OF ONE DAY ON ACCOUNT OF SICKNESS RESULTING FROM OWN MISCONDUCT COMES WITHIN THE PURVIEW OF THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED, 34 U.S.C. 183, WHICH PROVIDES AS FOLLOWS:

"AN ENLISTMENT IN THE NAVY OR MARINE CORPS SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER CONDUCTS.'

THE EXCLUSION OF THE 41 DAYS TIME LOST BY CALANDE DUE TO SICKNESS RESULTING FROM HIS OWN MISCONDUCT WOULD REDUCE THE AMOUNT OF HIS CREDITABLE ACTIVE FEDERAL SERVICE TO 23 YEARS, 4 MONTHS, 27 DAYS AND WOULD ENTITLE HIM TO RETAINER PAY ON THE BASIS OF ONLY 23 YEARS, INSTEAD OF 24 YEARS, ACTIVE FEDERAL SERVICE.

IN VIEW OF THE FIRST PROVISO IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, THE QUESTION IS PRESENTED WHETHER, NOTWITHSTANDING THE PERIOD OF TIME LOST DUE TO SICKNESS RESULTING FROM HIS OWN MISCONDUCT, CALANDE PROPERLY MAY BE CREDITED RETAINER PAY COMPUTED ON THE BASIS OF 24 YEARS' ACTIVE FEDERAL SERVICE. IN THAT CONNECTION, IT IS STATED THAT THE REGULATIONS OF THE DEPARTMENT OF THE NAVY WHICH WERE IN EFFECT IN MAY 1952, WHEN CALANDE WAS TRANSFERRED TO THE FLEET RESERVE, DID NOT EXCLUDE THE TIME SO LOST BY HIM IN DETERMINING THE AMOUNT OF ACTIVE FEDERAL SERVICE CREDITABLE FOR THE PURPOSE OF SUCH TRANSFER. IT IS FURTHER STATED THAT ON THE BASIS OF THE PRESENT RECORD YOU DO NOT CONTEMPLATE MAKING A CORRECTION IN CALANDE'S NAVAL RECORDS UNDER THE DISCRETIONARY AUTHORITY VESTED IN YOU BY THE SECOND PROVISO IN SECTION 202, OF THE 1938 LAW.

SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854A, PROVIDES:

"FOR ALL PURPOSES OF THIS ACT A COMPLETE ENLISTMENT DURING MINORITY SHALL BE COUNTED AS FOUR YEARS' SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED: PROVIDED, THAT ALL TRANSFERS FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE OR TO THE FLEET RESERVE, AND ALL TRANSFERS OF MEMBERS TO THE FLEET NAVAL RESERVE OR THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, HERETOFORE OR HEREAFTER MADE BY THE SECRETARY OF THE NAVY, SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEMBERS SO TRANSFERRED SHALL, FROM THE DATE OF TRANSFER, BE ENTITLED TO PAY AND ALLOWANCES, IN ACCORDANCE WITH THEIR RANKS OR RATINGS AND LENGTH OF SERVICE AS DETERMINED BY THE SECRETARY OF THE NAVY: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY, UPON DISCOVERY OF ANY ERROR OR OMISSION IN THE SERVICE, RANK, OR RATING FOR TRANSFER OR RETIREMENT, IS AUTHORIZED TO CORRECT THE SAME AND UPON SUCH CORRECTION THE PERSON SO TRANSFERRED OR RETIRED SHALL BE ENTITLED TO PAY AND ALLOWANCES, IN ACCORDANCE WITH HIS RANK OR RATING AND LENGTH OF SERVICE AS DETERMINED BY THE SECRETARY OF THE NAVY.'

SECTION 204, OF THE 1938 ACT, AS AMENDED AUGUST 10, 1946, IN PERTINENT PART PROVIDES:

"MEMBERS OF THE NAVY WHO FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, OR WHO REENLISTED THEREIN AFTER JULY 1, 1925, HAVING BEEN OUT OF THE REGULAR NAVY FOR MORE THAN THREE MONTHS, MAY UPON THEIR OWN REQUEST BE TRANSFERRED TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE. AFTER SUCH TRANSFER, EXCEPT WHEN ON ACTIVE DUTY, THEY SHALL BE PAID AT THE ANNUAL RATE OF 2 1/2 PER CENTUM OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE: * * * PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL PERSONS OF THE CLASS DESCRIBED HEREIN HERETOFORE OR HEREAFTER TRANSFERRED TO THE FLEET RESERVE, EXCEPT THAT NO INCREASE IN PAY OR ALLOWANCES SHALL BE DEEMED TO HAVE ACCRUED PRIOR TO THE DATE OF THE ENACTMENT OF THIS AMENDMENT. FOR THE PURPOSES OF THIS SECTION, ALL ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF, SHALL BE DEEMED TO BE ACTIVE FEDERAL SERVICE.'

ARTICLE H-9408/2), BUREAU OF NAVAL PERSONNEL MANUAL, 1948, WHICH GOVERNED THE COMPUTATION OF SERVICE CREDITABLE FOR THE PURPOSE OF TRANSFER TO THE FLEET RESERVE WHEN CALANDE WAS SO TRANSFERRED DID NOT REQUIRE EXCLUSION OF ANY TIME LOST BY REASON OF SICKNESS DUE TO OWN MISCONDUCT. COMPARE ARTICLE C-10320B/3) IN THE CURRENT REGULATIONS. ARTICLE C-10323/1), OF THE SAME REGULATIONS PROVIDES THAT "ENLISTED PERSONNEL OF THE REGULAR NAVY SHALL BE TRANSFERRED TO THE FLEET RESERVE ONLY UPON AUTHORITY OF THE CHIEF OF NAVAL PERSONNEL.' THESE REGULATIONS WERE APPROVED BY THE SECRETARY OF THE NAVY. CONSEQUENTLY, CALANDE'S TRANSFER TO THE FLEET RESERVE WITH CREDIT OF 22 YEARS, 4 MONTHS, 25 DAYS SERVICE FOR TRANSFER PURPOSES HAVING BEEN ACCOMPLISHED BY THE CHIEF OF NAVAL PERSONNEL PURSUANT TO THE AUTHORITY VESTED IN HIM BY ARTICLE C-10323/1), IS REQUIRED TO BE VIEWED AS THE ACTION OF THE SECRETARY OF THE NAVY AND IS "CONCLUSIVE FOR ALL PURPOSES" UNDER SECTION 202 IN THE ABSENCE OF A CORRECTION AS AUTHORIZED IN THE LAST PROVISO OF THAT SECTION.

HENCE, CALANDE'S RETAINER PAY IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE LENGTH OF SERVICE TO HIS CREDIT FOR TRANSFER PURPOSES "AS DETERMINED BY THE SECRETARY OF THE NAVY," PLUS ALL ACTIVE DUTY SERVICE PERFORMED SINCE THE DATE OF HIS TRANSFER. COMPARE DECISION OF SEPTEMBER 8, 1931, A- 37464. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

IT SEEMS APPROPRIATE TO STATE THAT SINCE ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF SICKNESS RESULTING FROM OWN MISCONDUCT MAY NOT BE INCLUDED IN COMPUTING THE COMPLETE TERM OF AN ENLISTMENT IN THE NAVY OR MARINE CORPS (34 U.S.C. 183), THE CREDIT OF 41 DAYS TIME LOST BY CALANDE IN COMPUTING HIS SERVICE FOR TRANSFER TO THE FLEET RESERVE AND IN THE COMPUTATION OF HIS RETAINER PAY IS CLEARLY AT VARIANCE WITH THE INTENT AND PURPOSE OF THE 1916 ACT, QUOTED ABOVE. IN THAT CONNECTION, THE APPLICABLE REGULATIONS OF THE DEPARTMENT OF THE NAVY (PARAGRAPHS 10404-2C AND 10405- 2C, MARINE CORPS MANUAL, 1949, APPROVED BY THE SECRETARY OF THE NAVY) GOVERNING THE TRANSFER OF ENLISTED MEMBERS OF THE REGULAR MARINE CORPS TO THE FLEET MARINE CORPS RESERVE AND THE COMPUTATION OF SERVICE TO DETERMINE ELIGIBILITY FOR SUCH TRANSFER REQUIRE DEDUCTION FOR ANY PERIOD OF NONPERFORMANCE OF DUTY DUE TO "TIME LOST DUE TO INJURY, SICKNESS, OR DISEASE RESULTING FROM INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT.' THUS ENLISTED MEMBERS OF THE REGULAR NAVY WHO ARE TRANSFERRED TO THE FLEET RESERVE ARE ACCORDED BROADER BENEFITS THAN THOSE EXTENDED TO ENLISTED MEMBERS OF THE REGULAR MARINE CORPS UPON THEIR TRANSFER TO THE FLEET MARINE CORPS RESERVE.

THE CORRECTION OF SUCH A SITUATION IN ANY PARTICULAR CASE LIES ENTIRELY WITHIN YOUR POWER UNDER THE SOLE AND DISCRETIONARY AUTHORITY VESTED IN YOU BY VIRTUE OF THE SECOND PROVISO OF SECTION 202 OF THE 1938 ACT. ALTHOUGH IT APPEARS THAT YOU DO NOT CONTEMPLATE MAKING SUCH A CORRECTION IN CALANDE'S NAVAL RECORDS, YOU MAY DESIRE TO CONSIDER THE QUESTION WHETHER THE DEPARTMENT OF THE NAVY REGULATIONS RELATING TO THE FLEET RESERVE SHOULD BE AMENDED SO AS TO BRING THEM INTO HARMONY WITH THE PERTINENT REGULATIONS GOVERNING THE FLEET MARINE CORPS RESERVE IN ORDER TO ACCOMPLISH THE TRUE PURPOSES AND INTENT OF THE STATUTORY PROVISIONS GOVERNING THE RIGHTS AND BENEFITS OF THOSE ENLISTED MEMBERS WHO ARE TRANSFERRED TO THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE.