B-134160, DECEMBER 4, 1957, 37 COMP. GEN. 383

B-134160, DECEMBER 4, 1957, 37 COMP. GEN. 383

MILITARY PERSONNEL - PAY - RETIRED - FLEET RESERVISTS - ACTIVE DUTY AFTER RETIREMENT - SERVICE CREDITS THE BASIS FOR ENTITLEMENT OF MEMBERS ON THE FLEET NAVAL RESERVE OR FLEET RESERVE RETIRED LISTS TO THE INCREASED RETIREMENT PAY BENEFITS PROVIDED IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854G, FOR ACTIVE DUTY PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET NAVAL RESERVE OR FLEET RESERVE IS THE TOTAL CREDITABLE SERVICE THE MEMBER HAS ON THE DATE OF RELEASE FROM ACTIVE DUTY. A NAVY ENLISTED MAN WHO HAD THIRTEEN YEARS, SEVEN MONTHS AND FIVE DAYS OF SERVICE ON TRANSFER TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, AND WHO SUBSEQUENTLY PERFORMED ACTIVE DUTY AFTER TRANSFER SO THAT HE HAD AN AGGREGATE OF SEVENTEEN YEARS, ONE MONTH, AND TWENTY-TWO DAYS OF SERVICE ON DECEMBER 7, 1945, WHEN HE WAS RELEASED FROM ACTIVE DUTY, IS NOT ENTITLED TO ANY INCREASED RETIRED PAY BY REASON OF TOTAL SERVICE INTERRUPTED BY INACTIVE TIME IN THE FLEET NAVAL RESERVE, BUT IS ENTITLED ONLY TO THE SAME RETIRED PAY AS A MAN TRANSFERRED TO THE FLEET RESERVE ON THAT DAY UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854B, WITH MORE THAN SIXTEEN YEARS BUT LESS THAN TWENTY YEARS OF SERVICE.

TO GEORGE LEROY O-NEAL, DECEMBER 4, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 5, 1957, FROM KING AND KING, YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS.

YOUR ORIGINAL CLAIM FOR SUCH INCREASE IN PAY FOR THE PERIOD DECEMBER 8, 1945, TO NOVEMBER 30, 1948, WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 13, 1956, ON THE GROUND THAT, SINCE YOU HAD NOT COMPLETED MORE THAN SIXTEEN YEARS' SERVICE AT THE TIME OF YOUR TRANSFER TO THE FLEET NAVAL RESERVE AND DID NOT PERFORM SUFFICIENT SERVICE AFTER TRANSFER TO ACHIEVE AN AGGREGATE OF AT LEAST 19 YEARS AND 6 MONTHS, YOU WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 34 U.S.C. 854G.

IN THE LETTER OF SEPTEMBER 5, 1957, YOUR ATTORNEYS REFER TO THE CASE OF OKEY N. ROUNSAVELL, OUR CLAIM NO. Z-1804002; REQUEST REVIEW OF THE SETTLEMENT ON JANUARY 13, 1956, IN YOUR CASE; AND REQUEST THAT YOUR CLAIM BE AMENDED SO AS TO COVER THE PERIOD FROM DECEMBER 8, 1945, TO DATE OF SETTLEMENT.

ON JANUARY 18, 1955, THE CHIEF OF NAVAL PERSONNEL ADVISED US IN CONNECTION WITH YOUR CASE THAT:

1. THE FOLLOWING INFORMATION IS FURNISHED IN CONNECTION WITH SUBJECT MAN'S CLAIM:

* * * (CHART OMITTED ( * * *

APPARENTLY YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 8, 1922, UNDER THE PROVISIONS OF THE ACT OF JULY 1, 1922, 42 STAT. 799, 800, WHICH WERE AS FOLLOWS:

* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE: PROVIDED FURTHER, THAT ENLISTED MEN OF THE NAVY, WHO HAVE COMPLETED EIGHTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AFTER TWENTY YEARS' SERVICE * * * PROVIDED FURTHER, THAT NO ENLISTED MEN OF THE NAVY SHALL BE TRANSFERRED TO THE FLEET NAVAL RESERVE UNLESS THEY HAVE COMPLETED SIXTEEN OR TWENTY YEARS' SERVICE AFTER THE NAVY IS REDUCED TO THE NUMBER OF ENLISTED MEN APPROPRIATED FOR IN THIS ACT, AND IN NO EVENT AFTER JANUARY 1, 1923 * * *.

SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854B, PROVIDES, IN PERTINENT PART, THAT:

MEN SERVING IN THE REGULAR NAVY, WHO, HAVING ENLISTED THEREIN ON JULY 1, 1925, OR PRIOR THERETO * * * SHALL BE ENTITLED TO BE TRANSFERRED TO THE FLEET RESERVE ON THE COMPLETION OF SIXTEEN OR MORE YEARS' NAVAL SERVICE, AND WHEN SO TRANSFERRED SHALL, EXCEPT WHEN ON ACTIVE DUTY, BE ENTITLED TO RECEIVE, IF THEY HAVE HAD SIXTEEN BUT LESS THAN TWENTY YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-THIRD THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO, AND IF THEY HAVE HAD TWENTY OR MORE YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO * * *.

SECTIONS 2 AND 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 994, 34 U.S.C. 854C AND 854G, ARE, IN PERTINENT PART, AS FOLLOWS:

SEC. 2. SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1179) IS HEREBY AMENDED TO READ 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 NOTHING CONTAINED WITHIN THIS SECTION SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203 OF THIS ACT FROM BEING TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION IF THEY SO ELECT: 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 * * *.'

SEC. 3. TITLE II OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178) IS HEREBY AMENDED BY ADDING THERETO A NEW SECTION TO READ AS FOLLOWS:

" SEC. 208. WHENEVER ENLISTED MEN OF THE FLEET RESERVE, TRANSFER THERETO AFTER MORE THAN SIXTEEN YEARS' SERVICE, OR ENLISTED MEN TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHEN THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206 OF THIS TITLE, SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN INACTIVE- DUTY STATUS, AND IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE-DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM: * * * PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY * *

IT WAS HELD IN SANDERS V. UNITED STATES, 120 C.1CLS, 501, THAT AN ENLISTED MAN WHO HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087--- SUPERSEDED BY SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, SUPRA--- WITH MORE THAN SIXTEEN AND LESS THAN TWENTY YEARS' ACTIVE SERVICE (WITH CONSEQUENT ENTITLEMENT TO RETAINER PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS) AND WHO SUBSEQUENT TO SUCH TRANSFER PERFORMED ACTIVE DUTY OF 4 YEARS, 10 MONTHS, AND 20 DAYS, WAS ENTITLED, BY VIRTUE OF THE NEW SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, UPON RELEASE FROM ACTIVE DUTY, TO RETAINER OR RETIRED PAY ON THE BASIS OF TWENTY YEARS' ACTIVE SERVICE, THAT IS, ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. THE COURT SAID AT PAGES 509 AND 510 THAT:

READING THE ACT OF AUGUST 10, 1946, AS A WHOLE, THE INTENT OF CONGRESS APPEARS TO HAVE BEEN TO ALLOW ENLISTED MEN RETIRED OR RELEASED TO INACTIVE DUTY AND THEN RECALLED FOR AN EXTENDED PERIOD OF ACTIVE DUTY, TO COUNT THEIR WARTIME SERVICE IN THE COMPUTATION OF RETIREMENT PAY IN THE SAME MANNER AS IF THEIR ACTUAL-DUTY STATUS HAD BEEN CONTINUOUS.

FROM THE ABOVE STATEMENT AND THE FACT THAT PAY WAS AWARDED AT ONE HALF BASE PAY PLUS PERMANENT ADDITIONS (SECTION 203 OF THE NAVAL RESERVE ACT OF 1938), THE HOLDING IN THE SANDERS CASE MAY BE STATED THUS: A MAN WHO PERFORMS ACTIVE DUTY SUBSEQUENT TO TRANSFER TO THE FLEET NAVAL RESERVE OR TO THE FLEET RESERVE IS ENTITLED, UPON THE DAY OF HIS RELEASE FROM SUCH ACTIVE DUTY, TO THE SAME PAY BENEFITS AS A MAN WITH EXACTLY THE SAME TOTAL CREDITABLE SERVICE TRANSFERRING TO THE FLEET RESERVE ON THAT DAY UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938. THERE IS NOTHING IN THE LAW OR IN THE SANDERS OPINION TO AUTHORIZE GREATER PAY BENEFITS BY REASON OF TOTAL SERVICE, INTERRUPTED BY INACTIVE TIME IN THE FLEET RESERVE, THAN WOULD ACCRUE FOR EXACTLY THE SAME TOTAL SERVICE IF TRANSFERRED TO THE FLEET RESERVE ON THE DAY OF RELEASE FROM ACTIVE DUTY.

HENCE, WHETHER A MAN IS ENTITLED TO INCREASED PAY UNDER THE SANDERS DECISION MUST BE DETERMINED BY WHETHER, ON THE DATE OF HIS RELEASE FROM ACTIVE DUTY PERFORMED AFTER HIS TRANSFER TO THE FLEET RESERVE AS A "SIXTEEN-YEAR" MAN, HE HAD TOTAL SERVICE WHICH WOULD HAVE ENTITLED HIM- - BUT FOR THE FACT THAT HE ALREADY WAS A TRANSFERRED MEMBER--- TO TRANSFER TO THE FLEET RESERVE ON THAT DAY UNDER SECTION 203 AS A TWENTY YEAR MAN (A MINIMUM OF 19 YEARS, 6 MONTHS).

ROUNSAVELL HAD THE FOLLOWING ACTIVE SERVICE:

ENLISTED TERM DISCHARGED CREDITED FEB. 4, 1907 ------- 4 YEARS-------- FEB. 13, 1911 4- 10-10 MAR. 6, 1911----- -- 4 YEARS-------- MAR. 5, 1915 4 - 10-00 MAR. 6, 1915-------- 4 YEARS-------- JAN. 30, 1919 3-11-05 (1) JAN. 31, 1919------- ?-- ---------- JULY 18, 1922 3- 5-18

TOTAL---------------------------------------------- 15-5-03 (2) ACTIVE DUTY AFTER TRANSFER, MAY 4, 1942, TO JAN. 6, 1947--------------- --------- ----------------------- 4-8-03

TOTAL---------------------------------------------- 20- 1-06

(1) CREDITED FOUR YEARS, DISCHARGE WITHIN THREE MONTHS OF EXPIRATION DATE OF ENLISTMENT (ACT OF AUGUST 29, 1916, 39 STAT. 590/--- LESS 25 DAYS SICK, MISCONDUCT.

(2) APPARENTLY TRANSFERRED UNDER THE ACT OF JULY 1, 1922, 42 STAT. 799, SUPRA, AUTHORIZING TRANSFERS OF MEN WHO, UPON EXPIRATION OF CURRENT ENLISTMENT, WOULD BE ELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE WITHIN SIXTEEN YEARS' SERVICE.

HENCE, UPON HIS RELEASE FROM ACTIVE DUTY ON JANUARY 6, 1947, ROUNSAVELL HAD AN AGGREGATE OF CREDITABLE SERVICE OF 20 YEARS, 1 MONTH, AND 6 DAYS, WHICH WOULD HAVE MADE HIM ELIGIBLE FOR TRANSFER ON THAT DAY TO THE FLEET RESERVE AS A TWENTY-YEAR MAN UNDER SECTION 203. ACCORDINGLY, WE ALLOWED ROUNSAVELL'S CLAIM AS BEING WITHIN THE INTENT OF THE LAW AS CONSTRUED IN THE SANDERS CASE, THAT IS, THAT CONGRESS INTENDED TO CONFER EQUAL BENEFITS FOR EQUAL SERVICE. SEE, ALSO, ABAD V. UNITED STATES, C.1CLS. NO. 49667, DECIDED OCTOBER 2, 1956.

YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE WITH TOTAL CREDITABLE SERVICE OF 13 YEARS, 7 MONTHS, AND 5 DAYS. YOU PERFORMED ACTIVE DUTY AFTER TRANSFER OF 3 YEARS, 6 MONTHS, AND 17 DAYS, AN AGGREGATE OF 17 YEARS, 1 MONTH, AND 22 DAYS. THAT AGGREGATE WOULD NOT HAVE ENTITLED YOU ON DECEMBER 7, 1945, TO TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 AS A "TWENTY-YEAR" MAN.