B-130465, APR. 2, 1957

B-130465: Apr 2, 1957

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MARINE CORPS: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. IT APPEARS THAT MASTER SERGEANT PRICE WAS DISCHARGED FROM THE U.S. 2 MONTHS AND 4 DAYS WAS ACTIVE SERVICE. IT IS STATED THAT PURSUANT TO THE ACT OF JULY 24. HE WAS "TRANSFERRED" (APPARENTLY "APPOINTED") TO THE FLEET MARINE CORPS RESERVE ON AUGUST 31. (1) WHO WAS DISCHARGED PRIOR TO AUGUST 10. EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSES (1) AND (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE. NO PAY SHALL ACCRUE TO THE BENEFIT OF ANY PERSON APPOINTED UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE DATE SUCH PERSON IS ACTUALLY APPOINTED UNDER THE PROVISIONS OF THIS ACT AND IN NO EVENT PRIOR TO THE FIRST DAY OF THE FIRST MONTH FOLLOWING ENACTMENT OF THIS ACT.'.

B-130465, APR. 2, 1957

TO CAPTAIN R. J. ANTHONY, U.S. MARINE CORPS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1957, FORWARDED HERE BY THE COMMANDANT OF THE MARINE CORPS ON FIRST ENDORSEMENT DATED JANUARY 15, 1957, REQUESTING DECISION AS TO THE PROPER RATE OF PAY ON WHICH TO BASE THE COMPUTATION OF RETIRED PAY IN THE CASE OF MASTER SERGEANT LEONARD C. PRICE, 216148, U.S. MARINE CORPS, RETIRED.

IT APPEARS THAT MASTER SERGEANT PRICE WAS DISCHARGED FROM THE U.S. MARINE CORPS ON MARCH 28, 1945, HAVING COMPLETED AT THAT TIME 21 YEARS AND 8 DAYS' FEDERAL SERVICE OF WHICH 20 YEARS, 2 MONTHS AND 4 DAYS WAS ACTIVE SERVICE. IT IS STATED THAT PURSUANT TO THE ACT OF JULY 24, 1956 (PUBLIC LAW 771, 84TH CONGRESS, 70 STAT. 626), HE WAS "TRANSFERRED" (APPARENTLY "APPOINTED") TO THE FLEET MARINE CORPS RESERVE ON AUGUST 31, 1956, AND PLACED ON THE RETIRED LIST OF ENLISTED MEN OF THE U.S. MARINE CORPS EFFECTIVE SEPTEMBER 1, 1956.

PUBLIC LAW 771, ACT OF JULY 24, 1956, PROVIDES AS FOLLOWS:

"THAT UPON APPLICATION BY ANY FORMER MEMBER OF THE NAVY OR MARINE CORPS--

(1) WHO WAS DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND

(2) WHO, AT THE TIME OF HIS DISCHARGE, HAD AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE,

THE SECRETARY OF THE NAVY SHALL APPOINT SUCH FORMER MEMBER IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AS MAY BE APPROPRIATE, IN THE RANK HELD BY HIM AT THE TIME OF SUCH DISCHARGE.

SEC. 2. EACH PERSON APPOINTED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER THE FIRST SECTION OF THIS ACT SHALL BE TRANSFERRED TO THE APPROPRIATE RETIRED LIST (1) ON THE FIRST DAY OF THE FIRST CALENDAR MONTH BEGINNING AFTER SUCH APPOINTMENT, IF HIS LAST DISCHARGE OCCURRED TEN OR MORE YEARS PRIOR TO THE DATE OF SUCH APPOINTMENT, AND (2) IN THE CASE OF INDIVIDUALS APPOINTED UNDER SUCH SECTION BEFORE THE EXPIRATION OF TEN YEARS FROM THEIR LAST DISCHARGE, ON THE FIRST DAY OF THE FIRST CALENDAR MONTH, BEGINNING AFTER THE EXPIRATION OF TEN YEARS FROM THE DATE OF SUCH DISCHARGE.

SEC. 3. EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSES (1) AND (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE, MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE FEDERAL SERVICE AT SUCH TIME (NOT TO EXCEED THIRTY), AND ADJUSTED TO REFLECT THE PERCENTAGE INCREASES MADE SINCE SUCH DISCHARGE IN THE RETIRED PAY OF PERSONS RETIRED FROM THE ARMED FORCES PRIOR TO OCTOBER 12, 1949.

SEC. 4. FOR THE PURPOSES OF THIS ACT, 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.

SEC. 5. NO PAY SHALL ACCRUE TO THE BENEFIT OF ANY PERSON APPOINTED UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE DATE SUCH PERSON IS ACTUALLY APPOINTED UNDER THE PROVISIONS OF THIS ACT AND IN NO EVENT PRIOR TO THE FIRST DAY OF THE FIRST MONTH FOLLOWING ENACTMENT OF THIS ACT.'

YOU STATE THAT PAYMENT OF RETIRED PAY UNDER SECTION 3, PUBLIC LAW 771 "BASED ON RATES OF PAY PRESCRIBED BY THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, APPEARS TO BE IN CONSONANCE WITH THE INTENT OF THE CONGRESS.' YOU INDICATE THAT THE BASIS FOR THIS CONTENTION IS CONTAINED IN HOUSE OF REPRESENTATIVES REPORT NO. 6729 (2403), COMMITTEE ON ARMED SERVICES, DATED JUNE 20, 1956, WHICH YOU QUOTE IN PART AS FOLLOWS:

"* * * UPON RETIREMENT SUCH INDIVIDUALS WOULD DRAW RETIRED PAY BASED UPON THEIR BASE AND LONGEVITY PAY AT THE TIME OF LAST DISCHARGE, TOGETHER WITH INCREASES PROVIDED SINCE THAT DATE, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE PERFORMED. * * *"

IF COMPUTED ON THE BASIS OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT MASTER SERGEANT PRICE WOULD BE ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF $152.10 PER MONTH (APPROXIMATELY $1,825.20 PER YEAR) REPRESENTING THE MONTHLY BASIC PAY OF A MASTER SERGEANT, ENLISTED PAY GRADE E-7, WITH OVER 18 BUT LESS THAN 22 YEARS' CUMULATIVE SERVICE, $304.20 BY 2 1/2 PERCENT BY 20 YEARS.

YOU FURTHER POINT OUT IN YOUR LETTER, HOWEVER, THAT AS FINALLY ENACTED THE LANGUAGE ACTUALLY EMPLOYED IN SECTION 3, PUBLIC LAW 771, INFERS THAT THE COMPUTATION OF RETIRED PAY THEREUNDER SHALL BE BASED NOT ON THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, BUT ON THE RATES OF PAY WHICH WERE IN EFFECT ON THE DATE MASTER SERGEANT PRICE WAS DISCHARGED, MARCH 28, 1945, PLUS THE PERCENTAGE INCREASES IN SUCH RATES OF PAY AS AUTHORIZED BY SECTION 2/B), ACT OF MAY 19, 1952, 66 STAT. 80, AND BY SECTION 6, ACT OF MARCH 31, 1955, 69 STAT. 23. COMPUTED ON THIS BASIS, MASTER SERGEANT PRICE WOULD BE ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF $102.69 PER MONTH. THIS REPRESENTS THE BASE AND LONGEVITY PAY OF A MASTER SERGEANT, WITH OVER 21 YEARS' CREDITABLE SERVICE AS OF MARCH 28, 1945, THE DATE OF HIS LAST DISCHARGE, $186.30 BY 2 1/2 PERCENT BY 20 YEARS AMOUNTING TO $93.15, PLUS 4 PERCENTUM (ACT OF MAY 19, 1952) EQUALS $96.88 AND PLUS 6 PERCENTUM (ACT OF MARCH 31, 1955) TOTALLING $102.69, AN APPROXIMATE ANNUAL AMOUNT OF $1,232.28.

THE LEGISLATIVE HISTORY OF THE BILL H.R. 6729, 84TH CONGRESS, WHICH BECAME PUBLIC LAW 771, ACT OF JULY 24, 1956, COUPLED WITH THE FACTS STATED IN YOUR LETTER DISCLOSE QUITE CLEARLY THAT THE CASE OF MASTER SERGEANT LEONARD C. PRICE WAS THE ONLY KNOWN CASE WITHIN THE PURVIEW OF THAT BILL AND THAT IT WAS EXPECTED TO INVOLVE IN HIS CASE AN ANNUAL EXPENDITURE OF APPROXIMATELY $1,824. WHILE THIS FIGURE CORRESPONDS RATHER CLOSELY WITH THE FIRST METHOD OF COMPUTATION WHICH YOU HAVE SET FORTH, NOTHING FURTHER APPEARS IN THE HEARINGS ON THE BILL TO CLARIFY OR DEMONSTRATE THE PRECISE BASIS AS TO HOW THAT APPROXIMATE FIGURE WAS REACHED. ON THE OTHER HAND, THE COMMITTEE HEARINGS ON PUBLIC LAW 771 CLEARLY POINT TO SEVERAL REASONS UNDERLYING THE LANGUAGE NOW FOUND IN SECTION 3 OF PUBLIC LAW 771.

SECTION 3 OF THE BILL H.R. 6729, AS ORIGINALLY PROPOSED, PROVIDED AS FOLLOWS:

"SEC. 3. (A) EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSE (1) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE, MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE FEDERAL SERVICE AT SUCH TIME (NOT TO EXCEED THIRTY), AND ADJUSTED TO REFLECT THE PERCENTAGE INCREASES MADE SINCE SUCH DISCHARGE IN THE RETIRED PAY OF PERSONS RETIRED FROM THE ARMED FORCES PRIOR TO OCTOBER 12, 1949.

(B) EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSE (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY AT THE TIME OF SUCH TRANSFER, MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE FEDERAL SERVICE AT SUCH TIME PLUS HIS YEARS OF SERVICE IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE (NOT TO EXCEED THIRTY).'

THE COMPUTATION FORMULA PRESCRIBED IN SUBSECTION (B), SECTION 3 OF THE ORIGINAL BILL H.R. 6729, FOR THOSE FORMER MEMBERS TRANSFERRED TO A RETIRED LIST UNDER THE AUTHORITY OF CLAUSE 2, SECTION 2 OF THE BILL WOULD HAVE HAD THE EFFECT OF ALLOWING SUCH PERSONS TO INCLUDE THE PERIOD FROM THE DATE OF THEIR LAST DISCHARGE TO THE DATE OF THEIR APPOINTMENT IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AS A CONSTRUCTIVE SERVICE CREDIT IN DETERMINING THE RATE OF PAY TO BE USED IN THE COMPUTATION OF THEIR RETIRED PAY. FURTHERMORE, THIS FORMULA ALSO WOULD HAVE HAD THE EFFECT OF REQUIRING THE COMPUTATION OF RETIRED PAY IN SUCH CASES TO BE BASED ON THE RATE OF BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY AT THE TIME OF HIS TRANSFER. THIS FORMULA WAS REJECTED NOT ONLY FOR THE PURPOSE OF ELIMINATING ANY INACTIVE PERIOD AS A CONSTRUCTIVE SERVICE CREDIT, BUT ALSO TO PROVIDE ONLY ONE BASIS UPON WHICH TO COMPUTE THE RETIRED PAY OF ALL MEMBERS APPOINTED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND TRANSFERRED TO THE RETIRED LIST OF THE NAVY UNDER THE AUTHORITY OF PUBLIC LAW 771. IT APPEARS PERTINENT TO OBSERVE THAT SINCE MASTER SERGEANT PRICE WAS LAST DISCHARGED ON MARCH 28, 1945, A DATE TEN OR MORE YEARS PRIOR TO AUGUST 30, 1956, HIS STATUS WOULD HAVE COME WITHIN THE SCOPE OF CLAUSE (1), SECTION 2 OF THE ORIGINAL BILL AND, HENCE, HE WOULD NOT HAVE BEEN ENTITLED IN ANY EVENT TO THE BENEFITS THAT WERE PROPOSED IN SUBSECTION (B), SECTION 3 OF THAT BILL.

A LENGTHY DISCUSSION CONCERNING THESE PROVISIONS OF THE ORIGINAL BILL H.R. 6729 APPEARS AT PAGES 7964 AND 7965 IN THE SUBCOMMITTEE HEARINGS HELD JUNE 18, 1956, BEFORE SUBCOMMITTEE NO. 2, HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES. THE FOLLOWING QUOTED STATEMENTS THEREFROM CLEARLY BRING INTO VIEW THE INTENT OF THE SUBCOMMITTEE MEMBERS AS TO THE LANGUAGE EMPLOYED IN SECTION 3, PUBLIC LAW 771:

"MR. BLANDFORD. BUT THE TWO SECTIONS WERE IN HERE WHEN THE BILL WAS ORIGINALLY WRITTEN WITH THIS IDEA IN MIND, THAT A MAN MIGHT BE APPOINTED TO FINISH OUT A PERIOD OF TIME IN THE FLEET RESERVE AND THEREFORE COULD COUNT THAT TIME IN THE FLEET RESERVE, FOR LONGEVITY, IN DETERMINING HIS RETIRED PAY.

COLONEL STOCKMAN. RETIRED PAY.

MR. BLANDFORD. ON THE OTHER HAND, IT DIDN-T SEEM CORRECT TO APPOINT A MAN AND GIVE HIM 10 YEARS OF CONSTRUCTIVE SERVICE IN THE FLEET RESERVE AND LET HIM COUNT THAT TIME. SO THAT IS WHY YOU HAD THE (A) AND (B) PROVISIONS.

NOW, WHAT THE MARINE CORPS SUGGESTS IS THAT WE JUST USE ONE BASIS OF DETERMINATION AND THAT IS ALLOW HIM TO HAVE HIS ACTIVE FEDERAL SERVICE, WHICH WOULD BE 20 YEARS, MULTIPLIED BY HIS BASE AND LONGEVITY PAY, WHICH WAS THE LAW IN EFFECT IN 1946, AND MULTIPLY THAT BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE, PERIOD.

IS THAT CORRECT, COLONEL?

COLONEL STOCKMAN. YES, SIR.

MR. BLANDFORD. SO THERE WOULD BE NO QUESTION ABOUT ONE MAN--- THERE WOULD BE NO QUESTION ABOUT CONSTRUCTIVE FLEET RESERVE CREDIT. THIS WILL BE MERELY TO GIVE THIS INDIVIDUAL HIS ACTUAL YEARS OF FEDERAL ACTIVE SERVICE TO BE USED AS A MULTIPLIER IN DETERMINING HIS PAY. HE WILL BE A LITTLE BIT UNUSUAL BECAUSE HE WILL BE DRAWING ON THE BASIS OF RETIREMENT PAY--- I CAN-T VISUALIZE THERE BEING ANYBODY THAT WOULD QUALIFY FOR TRANSFER TO THE FLEET RESERVE. THERE MAY BE, BUT I DOUBT IT. HE WILL IMMEDIATELY QUALIFY FOR RETIRED PAY. BUT THAT RETIRED PAY WILL ONLY REFLECT HIS BASE AND LONGEVITY PAY OF 20 YEARS OF ACTIVE SERVICE AND WILL NOT REFLECT ANY SERVICE IN THE FLEET RESERVE.

MR. BATES. THEN HE WON-T GET THE 30 YEARS.

MR. BLANDFORD. NO, HE WON-T GET THE 30 YEARS, NOT THIS INDIVIDUAL.

COLONEL STOCKMAN. NO, SIR.

MR. BATES. THAT IS WHAT I AM TRYING TO FIND OUT. HE WILL ONLY GET 20 YEARS.

COLONEL STOCKMAN. YES, SIR, AND HIS RETIRED PAY, COMPUTED ON THE BASIS OF THAT 20 YEARS, WILL BE ON THE SAME BASIS AS THE LAW THEN IN EFFECT.'

ACCORDINGLY, UNDER THE TERMS OF SECTION 3, PUBLIC LAW 771, THE COMPUTATION OF THE RETIRED PAY IN THE CASE OF MASTER SERGEANT PRICE IS REQUIRED TO BE BASED ON THE RATE OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING ON MARCH 28, 1945, THE DATE OF HIS LAST DISCHARGE. THAT RATE OF PAY TIMES 2 1/2 PERCENTUM AND MULTIPLIED BY THE NUMBER OF YEARS OF HIS ACTIVE FEDERAL SERVICE AS OF THAT DATE, NOT TO EXCEED THIRTY, PLUS ALL ADJUSTMENTS TO REFLECT THE PERCENTAGE INCREASES MADE IN THE RATE OF PAY OF PERSONS RETIRED PRIOR TO OCTOBER 12, 1949, GIVES THE PROPER AMOUNT OF RETIRED PAY DUE HIM. COMPUTED IN THIS MANNER, MASTER SERGEANT PRICE IS ENTITLED TO RECEIVE RETIRED PAY IN THE AMOUNT OF $102.69 PER MONTH AS SET FORTH IN THE SECOND COMPUTATION CONTAINED IN YOUR LETTER.