B-132254, SEP. 6, 1957

B-132254: Sep 6, 1957

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DRISKELL: REFERENCE IS MADE TO YOUR LETTER DATED MAY 28. IT IS YOUR CONTENTION THAT YOU SHOULD BE CREDITED WITH 22 YEARS' SERVICE FOR BASE AND LONGEVITY PAY OR BASIC PAY PURPOSES AS WELL AS FOR PERCENTAGE MULTIPLE PURPOSES. 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. IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE. UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.'.

B-132254, SEP. 6, 1957

TO MR. HOWARD A. DRISKELL:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 28, 1957, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 22, 1957, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETAINER PAY COMPUTED ON THE BASIS OF OVER 22 YEARS' SERVICE FOR BOTH BASIC PAY AND PERCENTAGE MULTIPLE PURPOSES, AND PAY CURRENTLY BEING RECEIVED, COMPUTED ON THE BASIS OF OVER 18 BUT LESS THAN 22 YEARS' SERVICE FOR BASIC PAY PURPOSES AND WITH 22 YEARS' SERVICE FOR PERCENTAGE MULTIPLE PURPOSES, AS AVIATION CHIEF METALSMITH, NAVAL FLEET RESERVE, FOR THE PERIOD OCTOBER 1, 1949, TO JANUARY 31, 1957.

IT APPEARS THAT ON NOVEMBER 3, 1948, ON YOUR TRANSFER TO THE NAVAL FLEET RESERVE, YOU HAD COMPLETED A TOTAL OF 21 YEARS, 8 MONTHS AND 13 DAYS OF ACTIVE FEDERAL SERVICE.

IT IS YOUR CONTENTION THAT YOU SHOULD BE CREDITED WITH 22 YEARS' SERVICE FOR BASE AND LONGEVITY PAY OR BASIC PAY PURPOSES AS WELL AS FOR PERCENTAGE MULTIPLE PURPOSES, UNDER SECTIONS 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, BY SECTION 2 OF THE ACT OF AUGUST 10, 1956, 60 STAT. 993, AND SECTION 202 (A) (6) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808.

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 854C, PROVIDES, INSOFAR AS HERE PERTINENT, AS FOLLOWS:

"SEC. 204. 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 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 * * *.'

SECTION 202 (A) (6) OF THE CAREER COMPENSATION ACT, PROVIDES:

"SEC. 202 (A) SUBJECT TO THE PROVISIONS OF SUBSECTIONS (B), (C), AND (D) OF THIS SECTION, IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE, SUCH MEMBERS SHALL BE CREDITED WITH---

"/6) ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.'

ON THE DATE THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE YOU BECAME ENTITLED TO CERTAIN RETAINER PAY AS PROVIDED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, SUPRA. THE COMPUTATION OF RETAINER PAY WAS BASED UPON THE PAY YOU WERE THEN RECEIVING WHICH WAS SET OUT IN THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359 AS AMENDED. THAT RETAINER PAY COULD BE INCREASED OR DECREASED OR LEFT UNAFFECTED BY SUBSEQUENT LEGISLATION, DEPENDING ON THE WILL OF CONGRESS AS EXPRESSED IN SUCH SUBSEQUENT LEGISLATION.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 SETS FORTH TWO METHODS OF COMPUTING THE RETAINER PAY OF MEMBERS OF THE FLEET RESERVE THERETOFORE TRANSFERRED TO THE FLEET RESERVE, ON AND AFTER THE EFFECTIVE DATE OF THE SECTION, AND PROVIDES THAT THE GREATER AMOUNT, OF THE AMOUNTS COMPUTED BY THE TWO METHODS, IS TO BE PAID THE FLEET RESERVIST. METHOD (A) PROVIDES FOR THE PAYMENT OF AMOUNTS AUTHORIZED SUCH MEMBERS BY LAWS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949. THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THAT ACT WAS OCTOBER 11, 1949. ON THAT DAY, THE CAREER COMPENSATION ACT OF 1949 HAD NOT BEEN ENACTED AND THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WAS IN EFFECT. METHOD (B) PROVIDES FOR THE PAYMENT OF MONTHLY RETAINER PAY:

"* * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: PROVIDED THAT FOR THE PURPOSE OF THE COMPUTATION OF (B) ABOVE, FRACTIONS OF ONE HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR * * *.'

THE PROVISO, OF SECTION 511, QUOTED IMMEDIATELY ABOVE, MENTIONS ONLY ACTIVE SERVICE FOR THE PURPOSE OF INCREASING FRACTIONS OF ONE-HALF YEAR OR MORE TO A FULL YEAR AND IN THE BASIC PART OF SECTION 511, THE WORDS "ACTIVE SERVICE" ARE USED ONLY IN CONNECTION WITH THE MULTIPLIER IN DETERMINING RETIRED OR RETAINER PAY. IT SEEMS OBVIOUS THAT THE BASIC PAY TO BE USED IN THE COMPUTATION IS TO BE DETERMINED ACCORDING TO THE RULES FOR DETERMINING THE BASIC PAY OF MEMBERS ON ACTIVE DUTY. IF YOU WERE SERVING ON ACTIVE DUTY TODAY YOUR BASIC PAY WOULD BE DETERMINED WITHOUT REFERENCE TO THE SIXTH PROVISO IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED.

YOUR POSITION THAT SECTION 202 (A) (6) OF THE CAREER COMPENSATION ACT OF 1949, QUOTED ABOVE, IS AUTHORITY FOR PRESENTLY APPLYING THE SIXTH PROVISO OF SECTION 204 OF THE 1938 ACT, AS AMENDED, IN THE COMPUTATION OF YOUR RETAINER PAY IS NOT WELL TAKEN, SINCE THE SIXTH PROVISO IS RESTRICTED IN ITS OPERATION TO THE SECTIONS IT MENTIONS, AND SECTION 204 SPECIFICALLY PROVIDES FOR PAYMENT TO FLEET RESERVISTS AT RATES "THEY ARE RECEIVING AT THE TIME OF TRANSFER" TO THE FLEET RESERVE. YOU WERE TRANSFERRED TO THE NAVAL FLEET RESERVE PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949. YOU ALSO POINT OUT THAT IF YOU WERE TRANSFERRED TO THE NAVAL FLEET RESERVE TODAY, UNDER EXISTING LAW, WITH THE SAME SERVICE, YOU WOULD RECEIVE RETAINER PAY BASED ON THE BASIC PAY FOR 22 YEARS' SERVICE. THAT MAY BE TRUE, BUT THE COMPUTATION OF YOUR PAY WOULD BE PREDICATED UPON THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938; AS AMENDED, WHICH PROVIDES FOR PAYMENT AT RATES "THEY ARE RECEIVING AT THE TIME OF TRANSFER," AND NOT UPON METHOD (B) IN SECTION 511 OF THE CAREER COMPENSATION ACT WHICH PROVIDES FOR COMPUTATION OF RETAINER PAY ON THE BASIC PAY WHICH THE "PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY.'

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF MAY 22, 1957, DISALLOWING YOUR CLAIM IS SUSTAINED.