B-132020, JULY 25, 1957, 37 COMP. GEN. 57

B-132020: Jul 25, 1957

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MILITARY PERSONNEL - FLEET RESERVIST - ACTIVE DUTY AFTER TRANSFER TO FLEET RESERVE - BASIC PAY FACTOR A NAVY ENLISTED MAN WHOSE SERVICE PRIOR TO TRANSFER TO THE FLEET RESERVE AND ACTIVE DUTY AFTER TRANSFER TOTALED MORE THAN 21 1/2 YEARS BUT LESS THAN 22 YEARS ON SUBSEQUENT RELEASE TO INACTIVE DUTY IS ENTITLED UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949. TO HAVE RETAINER PAY COMPUTED ON THE BASIS OF ACTIVE-DUTY PAY FOR SERVICE OF OVER 22 YEARS. 1957: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14. PUDNEY WAS TRANSFERRED TO THE FLEET RESERVE WITH SERVICE CREDITABLE FOR BASIC PAY PURPOSES OF 20 YEARS. THAT HE ELECTED TO HAVE HIS RETAINER PAY COMPUTED UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938.

B-132020, JULY 25, 1957, 37 COMP. GEN. 57

MILITARY PERSONNEL - FLEET RESERVIST - ACTIVE DUTY AFTER TRANSFER TO FLEET RESERVE - BASIC PAY FACTOR A NAVY ENLISTED MAN WHOSE SERVICE PRIOR TO TRANSFER TO THE FLEET RESERVE AND ACTIVE DUTY AFTER TRANSFER TOTALED MORE THAN 21 1/2 YEARS BUT LESS THAN 22 YEARS ON SUBSEQUENT RELEASE TO INACTIVE DUTY IS ENTITLED UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, WHICH PROVIDES THAT ON RELEASE FROM ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE, AN INDIVIDUAL'S BASIC PAY FACTOR SHALL BE THE SAME AS IF HE HAD AT THAT TIME BEEN TRANSFERRED TO THE FLEET RESERVE WITH SERVICE EXACTLY EQUAL TO THE AGGREGATE OF HIS SERVICE PRIOR TO TRANSFER PLUS ACTIVE DUTY, TO HAVE RETAINER PAY COMPUTED ON THE BASIS OF ACTIVE-DUTY PAY FOR SERVICE OF OVER 22 YEARS.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, JULY 25, 1957:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1957, REQUESTING DECISION AS TO THE PROPER RATE OF RETAINER PAY IN THE CASE OF CHIEF BOILERMAN GEORGE A. PUDNEY, UNITED STATES FLEET RESERVE.

IT APPEARS THAT ON JULY 26, 1950, MR. PUDNEY WAS TRANSFERRED TO THE FLEET RESERVE WITH SERVICE CREDITABLE FOR BASIC PAY PURPOSES OF 20 YEARS, 6 MONTHS, 2 DAYS; THAT HE ELECTED TO HAVE HIS RETAINER PAY COMPUTED UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854C; AND THAT HE WAS RECALLED TO ACTIVE DUTY ON JANUARY 15, 1952, AND SERVED FOR 1 YEAR, 5 MONTHS, AND 6 DAYS, UNTIL HIS RELEASE TO INACTIVE DUTY ON JUNE 20, 1953. THUS, ON THAT DATE, MR. PUDNEY'S CREDITABLE SERVICE BEFORE TRANSFER TO THE FLEET RESERVE, PLUS ACTIVE DUTY AFTER SUCH TRANSFER, AGGREGATED 21 YEARS, 11 MONTHS, 8 DAYS.

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, PROVIDES, IN PERTINENT PART (QUOTING FROM 34 U.S.C. 854C):

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 PERCENTUM 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 THE PAY AUTHORIZED IN THIS SECTION SHALL NOT EXCEED 75 PERCENTUM OF THE ACTIVE -DUTY BASE AND LONGEVITY PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER *

THE SIXTH PROVISO IN SECTION 204, AS AMENDED, PROVIDES "THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 854B OF THIS TITLE (SECTION 203 OF THE 1938 ACT) IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY.'

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316,--- REPEALED AUGUST 10, 1956, 70A STAT. 680--- PROVIDED, IN PERTINENT PART, THAT:

MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES, INCLUDING MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, WHO HAVE BEEN, OR MAY HEREAFTER BE, RETIRED OR TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY COMPUTED UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT, SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS HEREINAFTER LISTED, TO RECEIVE INCREASES IN SUCH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE: PROVIDED, THAT THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH SUCH MEMBER OR FORMER MEMBER SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY SHALL BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY AT THE TIME OF HIS RETIREMENT OR TRANSFER PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM, AND BY MULTIPLYING THE PRODUCT THUS OBTAINED BY THE BASE AND LONGEVITY PAY OR THE BASIC PAY, AS THE CASE MAY BE, OF THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED OR TRANSFERRED EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON OR A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE: PROVIDED, THAT FOR THE PURPOSE OF COMPUTING INCREASES IN RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY OF ANY MEMBER OR FORMER MEMBER, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER BY SUCH MEMBER OR FORMER MEMBER SHALL BE COUNTED AS A WHOLE YEAR * * *

THE TWO FACTORS FOR COMPUTING RETAINER PAY UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 ARE (1) YEARS OF SERVICE TIMES 2 1/2 PERCENTUM AND (2) BASIC PAY OF THE GRADE IN WHICH THE MEMBER WOULD BE ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE BUT FOR THE FACT THAT HE ALREADY HAD BEEN SO TRANSFERRED.

MR. PUDNEY HAD TOTAL CREDITABLE SERVICE OF MORE THAN 21 1/2 AND LESS THAN 22 YEARS UPON HIS RELEASE TO INACTIVE DUTY. HE IS ENTITLED, UNDER THE SECOND PROVISO TO SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, TO A PERCENTAGE FACTOR OF 55, ON THE BASIS OF 22 YEARS' SERVICE. 33 COMP. GEN. 225.

THE REMAINING QUESTION TO BE DETERMINED IS WHETHER WITH ACTUAL CREDITABLE SERVICE OF 21 YEARS, 11 MONTHS, 8 DAYS, MR. PUDNEY IS ENTITLED TO A BASIC PAY FACTOR AS FOR "OVER 22" YEARS' SERVICE.

WE THINK THAT IT IS THE INTENT OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 THAT UPON RELEASE FROM ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE, AN INDIVIDUAL'S BASIC PAY FACTOR SHALL BE THE SAME AS IF HE HAD AT THAT TIME BEEN RETIRED OR TRANSFERRED TO THE FLEET RESERVE WITH SERVICE EXACTLY EQUAL TO THE AGGREGATE OF HIS SERVICE PRIOR TO RETIREMENT OR TRANSFER PLUS ACTIVE DUTY THEREAFTER. AS POINTED OUT IN YOUR LETTER, IF MR. PUDNEY INITIALLY HAD BEEN TRANSFERRED TO THE FLEET RESERVE ON JUNE 20, 1953, WITH CREDITABLE SERVICE AGGREGATING 21 YEARS, 11 MONTHS, 8 DAYS, HE WOULD HAVE BEEN ENTITLED TO HAVE HIS RETAINER PAY COMPUTED ON THE BASIS OF ACTIVE-DUTY PAY FOR SERVICE OF "OVER 22" YEARS. 35 COMP. GEN. 612.

ACCORDINGLY, THE ENLISTED MAN IS ENTITLED TO RETAINER PAY COMPUTED AS 55 PERCENTUM OF THE BASIC PAY OF HIS GRADE WITH SERVICE OF OVER 22 YEARS.