B-128068, JUNE 21, 1956, 35 COMP. GEN. 705

B-128068, JUNE 21, 1956, 35 COMP. GEN. 705

PAY - RETIRED - FLEET RESERVISTS - ENLISTED AND COMMISSIONED SERVICE A FLEET RESERVIST WHO HAS A PERMANENT STATUS AS AN ENLISTED MAN AND WHO IS SERVING UNDER A TEMPORARY APPOINTMENT AS AN OFFICER MAY, UPON MEETING THE ACTIVE AND COMMISSIONED SERVICE QUALIFICATIONS FOR RETIREMENT, APPLY FOR RETIREMENT BENEFITS UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946.

TO THE SECRETARY OF THE NAVY, JUNE 21, 1956:

REFERENCE IS MADE TO LETTER OF MAY 24, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING A DECISION AS TO WHETHER LIEUTENANT WILLIAM T. BALDRIDGE, U.S. NAVY, MAY BE RETIRED, UPON HIS OWN APPLICATION, UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, 34 U.S.C. 410B. IT IS STATED THAT APPROXIMATELY 40 OTHER OFFICERS WILL BE AFFECTED BY OUR DECISION IN THE CASE.

IT APPEARS THAT WHILE SERVING AS AN ENLISTED MAN IN THE NAVY, THE OFFICER RECEIVED THREE CONSECUTIVE ADVANCEMENTS TO DIFFERENT TEMPORARY OFFICER GRADES DURING WORLD WAR II, AND THAT HIS TEMPORARY OFFICERS STATUS WAS TERMINATED ON MAY 6, 1948, WHEN HE WAS TRANSFERRED TO CLASS F-6, U. S. NAVAL FLEET RESERVE, AND RELEASED FROM ACTIVE DUTY. AT THAT TIME, HE HAD LESS THAN 10 YEARS' ACTIVE COMMISSIONED SERVICE. FOLLOWING HIS RECALL TO ACTIVE DUTY ON FEBRUARY 23, 1951, HE WAS APPOINTED LIEUTENANT (TEMPORARY) ON NOVEMBER 16, 1951, UNDER THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350-350K, AND SUCH APPOINTMENT WAS AFFIRMED PURSUANT TO THE ACT OF JULY 18, 1954, 68 STAT. 256, 34 U.S.C. 211A. IT IS STATED THAT HIS ACTIVE DUTY IN THE NAVY ON JUNE 30, 1956, WILL EXCEED 20 YEARS, MORE THAN TEN OF WHICH WILL BE ACTIVE COMMISSIONED SERVICE.

SECTION 6 OF THE 1946 ACT, AS AMENDED BY THE ACT OF APRIL 14, 1949, 63 STAT. 47, 42 U.S.C. 711 NOTE, AND THE ACT OF AUGUST 9, 1955, 69 STAT. 614, PROVIDES, AMONG OTHER THINGS, THAT WHEN AN OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF ,INCLUDING ANY MEMBER OF THE NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE WHOSE PERMANENT STATUS IS ENLISTED," HAS COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, AT LEAST 10 YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED ON THE RETIRED LIST. THE TERM " RESERVE COMPONENTS" IS DEFINED AS INCLUDING OFFICERS ON THE HONORARY RETIRED LIST, AND "ACTIVE COMMISSIONED SERVICE" IS STATED TO INCLUDE "ALL ACTIVE SERVICE PERFORMED UNDER A TEMPORARY APPOINTMENT TO A COMMISSIONED GRADE * * * BY AN OFFICER WHOSE PERMANENT STATUS IS ENLISTED.'

SECTION 2 OF THE ACT OF AUGUST 9, 1955, 34 U.S.C. 410B, EXPRESSLY GRANTED RETIREMENT BENEFITS ON THE BASIS OF ELIGIBILITY REQUIREMENTS COMPARABLE TO THOSE OF THE 1946 ACT, AS AMENDED, SUBJECT TO PRESIDENTIAL DISCRETION, TO PERSONS WHO WERE MEMBERS OF THE FLEET RESERVE ON AUGUST 9, 1955, AND WHO, PRIOR TO TRANSFER TO THE FLEET RESERVE, WERE SERVING UNDER A TEMPORARY APPOINTMENT IN A COMMISSIONED GRADE AND HAD THE REQUISITE 10 YEARS' COMMISSIONED SERVICE AND MORE THAN 20 YEARS' ACTIVE SERVICE AT THAT TIME, IF APPLICATION WAS MADE FOR SUCH BENEFITS WITHIN 90 DAYS AFTER ENACTMENT OF THAT ACT.

AS A MEMBER OF THE FLEET RESERVE, LIEUTENANT BALDRIDGE HAD A PERMANENT STATUS AS AN ENLISTED MAN. WHILE THE STATUS OF FLEET RESERVISTS IS SIMILAR, IN MANY RESPECTS, TO A RETIRED STATUS, SUCH RESERVISTS ARE NOT ACTUALLY RETIRED, IN THE USUAL COURSE OF EVENTS, UNTIL AFTER COMPLETION OF 30 YEARS' SERVICE AND THEN ARE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, 34 U.S.C. 854C. IF A FLEET RESERVIST IS RECALLED TO ACTIVE DUTY BEFORE COMPLETING THE 30 YEARS' SERVICE AND THEN MEETS THE QUALIFICATIONS FOR RETIREMENT UNDER SOME OTHER AND MORE FAVORABLE PROVISION OF LAW, NO EQUITABLE REASON IS PERCEIVED WHY HE SHOULD BE DENIED RETIREMENT UNDER THE STATUTORY PROVISIONS MOST FAVORABLE TO HIM. AT THE PRESENT TIME, LIEUTENANT BALDRIDGE IS SERVING UNDER A TEMPORARY APPOINTMENT AS AN OFFICER AND HE HAS PERMANENT STATUS AS AN ENLISTED MAN. WHILE HE ALSO IS A MEMBER OF THE FLEET RESERVE, IT IS OUR VIEW THAT SUCH STATUS DOES NOT BAR HIM FROM ELIGIBILITY FOR THE RETIREMENT BENEFITS OF THE 1946 ACT, AS AMENDED, IF OTHERWISE QUALIFIED, SINCE THE LANGUAGE OF THE 1955 AMENDMENT OF THAT ACT EVIDENCES AN INTENT TO GRANT SUCH BENEFITS TO ALL MEMBERS OF THE "NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE WHOSE PERMANENT STATUS IS ENLISTED" WHO APPLY FOR SUCH BENEFITS AND MEET THE SPECIFIED SERVICE REQUIREMENTS. COMPARE DECISION OF APRIL 5, 1956 (B- 126224), 35 COMP. GEN. 538.

ALTHOUGH MEMBERS OF THE FLEET RESERVE, WHO COMPLETE THE QUALIFYING SERVICE AFTER TRANSFER TO THE FLEET RESERVE AND SUBSEQUENT RECALL TO ACTIVE DUTY, ARE NOT SPECIFICALLY INCLUDED IN SECTION 2 OF THE 1955 ACT, IT WOULD SEEM THAT THERE WAS NO NECESSITY TO MENTION SUCH MEMBERS SINCE SECTION 1 APPEARS SUFFICIENTLY BROAD TO COVER THEM. FLEET RESERVISTS WHO COMPLETED 20 YEARS' ACTIVE SERVICE (INCLUDING 10 YEARS' COMMISSIONED SERVICE) PRIOR TO TRANSFER TO THE FLEET RESERVE AND BEFORE AUGUST 9, 1955, WERE NOT COVERED BY THE 1946 ACT AS AMENDED BY SECTION 1 OF THE 1955 ACT SINCE THE RETIREMENT BENEFITS AUTHORIZED BY THAT SECTION ACCRUE TO OFFICERS, NOT ENLISTED MEN, AND SUCH RESERVISTS WERE ENLISTED MEN WHOSE OFFICER STATUS HAD TERMINATED BEFORE THE ENACTMENT OF THE 1955 ACT. HENCE, AN ADDITIONAL STATUTORY PROVISION (SECTION 2 OF THE 1955 ACT) WAS REQUIRED TO AWARD THEM RETIREMENT BENEFITS GENERALLY COMPARABLE TO THOSE OF THE 1946 ACT, AS AMENDED. IN THE CIRCUMSTANCES, SECTION 2 DOES NOT APPEAR TO FURNISH ANY BASIS TO QUESTION THE RIGHT OF FLEET RESERVISTS WHO WERE RECALLED TO ACTIVE DUTY AND WHO QUALIFY FOR SUCH RETIREMENT WHILE SERVING UNDER TEMPORARY OFFICER APPOINTMENTS, TO BE RETIRED UNDER THE 1946 ACT, AS AMENDED. ON THE CONTRARY, SECTION 2 IS AN ADDED INDICATION OF THE INTENT OF THE CONGRESS TO AUTHORIZE OFFICER RETIREMENT BENEFITS ON THE BASIS OF DUTY UNDER TEMPORARY APPOINTMENTS IN COMMISSIONED GRADES.