B-135771, AUGUST 5, 1958, 38 COMP. GEN. 110

B-135771, AUGUST 5, 1958, 38 COMP. GEN. 110

MILITARY PERSONNEL - PAY - RETIRED - FLEET RESERVISTS - SERVICE CREDITS IN CONSONANCE WITH THE CONCLUSION IN WHITE V. UNITED STATES, 121 C. CLS. 1, THAT THE TERM ,ACTIVE FEDERAL SERVICE" IN THE SECOND SENTENCE OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 RELATING TO THE MULTIPLIER FACTOR TO BE USED IN DETERMINATION OF THE RATE OF RETAINER PAY SHOULD BE ACCORDED THE SAME CONSTRUCTION AS THE IDENTICAL PHRASE IN THE FIRST SENTENCE OF SECTION 204 RELATING TO ELIGIBILITY FOR TRANSFER TO FLEET RESERVE, WHICH INCLUDES, BY REASON OF SECTION 202, AUTHORITY TO CREDIT MINORITY ENLISTMENTS AS A FULL FOUR YEARS OF ACTIVE SERVICE, THE DECISION WILL BE CONSTRUED AS HOLDING THAT CONSTRUCTIVE SERVICE FOR MINORITY ENLISTMENTS SHOULD BE INCLUDED IN DETERMINING THE MULTIPLIER FACTOR TO BE USED IN COMPUTATION OF RETAINER PAY PURSUANT TO THE FORMULA IN SECTION 204. DECISIONS TO THE CONTRARY WILL NO LONGER BE FOLLOWED. AN ENLISTED MEMBER OF THE NAVY WHO, AT THE TIME OF TRANSFER TO THE FLEET RESERVE, HAD SLIGHTLY MORE THAN 20 YEARS OF ACTIVE FEDERAL SERVICE--- WHICH INCLUDES CREDIT AS A FULL FOUR YEARS OF SERVICE EACH FOR A MINORITY ENLISTMENT AND SHORT-TERM ENLISTMENTS TERMINATED ON SEPTEMBER 25, 1934, AND SEPTEMBER 23, 1938--- MAY HAVE THE MULTIPLIER FACTOR OF 20 USED IN THE COMPUTATION OF RETAINER PAY PURSUANT TO THE FORMULA IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, FOR THE PERIOD PRIOR TO SEPTEMBER 30, 1949; HOWEVER, IN THE RECOMPUTATION OF RETAINER PAY, ATTENTION IS DIRECTED TO THE PROCEDURES RELATING TO STATUTORY LIMITATIONS ON CLAIMS PRESCRIBED IN 4 GAO 2025. A FLEET RESERVIST WHO AT THE TIME OF TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY ON NOVEMBER 1, 1956, AND ADVANCEMENT IN RANK HAD RETAINER PAY COMPUTED ON THE BASIS OF A MULTIPLIER FACTOR OF 20 REPRESENTING THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE, INCLUDING CONSTRUCTIVE SERVICE CREDIT FOR MINORITY AND SHORT TERM ENLISTMENTS, MAY, PURSUANT TO 10 U.S.C. 6151 (C), HAVE THE SAME MULTIPLIER FACTOR OF 20 USED IN THE COMPUTATION OF RETIRED PAY EFFECTIVE FROM NOVEMBER 1, 1956. A FLEET RESERVIST WHO HAS COMPLETED 21 YEARS, 4 MONTHS, AND 29 DAYS ACTUAL SERVICE AT TIME OF TRANSFER TO THE FLEET RESERVE ON NOVEMBER 1, 1937, MAY, UNDER 10 U.S.C. 6330 AND 6332, BE CREDITED WITH 21 YEARS, 11 MONTHS, AND 11 DAYS OF SERVICE FOR TRANSFER AND PERCENTAGE MULTIPLE PURPOSES BY THE INCLUSION OF CONSTRUCTIVE SERVICE CREDIT FOR MINORITY AND SHORT TERM ENLISTMENTS; HOWEVER, THERE IS NO AUTHORITY FOR CREDITING THE MEMBER WITH MORE THAN THE ACTUAL SERVICE TIME IN THE ENLISTMENTS--- 21 YEARS, 4 MONTHS AND 29 DAYS--- FOR BASIC PAY PURPOSES. AN ENLISTED MEMBER OF THE NAVY WHO ON TRANSFER TO THE FLEET RESERVE ON JULY 1, 1950, RECEIVED RETAINER PAY UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 IS ENTITLED TO CREDIT FOR CONSTRUCTIVE SERVICE FOR A MINORITY ENLISTMENT IN DETERMINATION OF THE MULTIPLIER FACTOR FOR RETAINER PAY RECOMPUTATION. AN ENLISTED MEMBER OF THE NAVY WHO ON TRANSFER TO THE FLEET RESERVE ON JULY 2, 1950, HAD RETAINER PAY COMPUTED ON THE BASIS OF 21 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 MAY, IF THE RECORDS ARE CORRECTED UNDER 10 U.S.C. 6332 TO SHOW COMPLETION OF 21 YEARS, 6 MONTHS AND 3 DAYS ACTIVE FEDERAL SERVICE, HAVE 22 YEARS OF SERVICE USED AS THE PERCENTAGE MULTIPLIER FACTOR FOR DETERMINATION OF RETAINER PAY.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, AUGUST 5, 1958:

YOUR LETTER OF MARCH 14, 1958, WITH ENCLOSURES, WAS FORWARDED HERE BY THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY WITH TRANSMITTAL LETTER DATED APRIL 8, 1958, REQUESTING DECISION ( DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, D.O. NO. 330) CONCERNING THE PROPER BASIS UPON WHICH TO COMPUTE RETAINER AND RETIRED PAY IN THE CASES OF THE THREE INDIVIDUALS SPECIFICALLY REFERRED TO BELOW.

THE FOLLOWING PERTINENT FACTS ARE SET FORTH IN CONNECTION WITH THE FIRST CASE PRESENTED, THAT OF LIEUTENANT (JG) HENRY E. SMITH, SC, USN, RETIRED, FILE NO. 263260. LIEUTENANT SMITH WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F-5, ON OCTOBER 10, 1946, AND RELEASED TO INACTIVE DUTY THAT SAME DATE. HE WAS CREDITED FOR PURPOSES OF TRANSFER WITH A TOTAL OF 20 YEARS AND 17 DAYS SERVICE (COUNTING HIS MINORITY ENLISTMENT AND THE ENLISTMENTS THAT TERMINATED ON SEPTEMBER 25, 1934, AND SEPTEMBER 23, 1938, EACH AS A FULL FOUR YEARS OF SERVICE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854A). IS STATED THAT HE ACTUALLY HAD ONLY 19 YEARS, 2 MONTHS, AND 5 DAYS ACTIVE FEDERAL SERVICE AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE ON OCTOBER 10, 1946. IT IS ALSO STATED THAT HE HAS BEEN PAID RETAINER AND RETIRED PAY AS FOLLOWS:

(A) OCTOBER 11, 1946, TO SEPTEMBER 30, 1949, RETAINER PAY ON THE BASIS OF ONE-HALF BASE PAY AS PROVIDED IN SECTION 204, NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, 34 U.S.C. 854C,

(B) OCTOBER 1, 1949, TO OCTOBER 31, 1956, RETAINER PAY AT 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE PURSUANT TO METHOD (B), SECTION 511, CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311,

(C) NOVEMBER 1, 1956, TO AUGUST 5, 1957, RETIRED PAY AT 2 1/2 PERCENT TIMES NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE PURSUANT TO SECTION 204, NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2, ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854C, BASED ON THE RANK OF LIEUTENANT (JG), AND

(D) AUGUST 6, 1957, TO DATE, RETIRED PAY AT 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE PURSUANT TO METHOD (B), SECTION 511, CAREER COMPENSATION ACT OF 1949, BASED ON THE RANK OF LIEUTENANT (JG).

IT IS STATED THAT IN 1947 LIEUTENANT SMITH ELECTED TO RECEIVE RETAINER PAY UNDER THE PERCENTAGE FORMULA PRESCRIBED IN SECTION 204 AS AMENDED BY SECTION 2, ACT OF AUGUST 10, 1946, 60 STAT. 993, AND THAT HE WAS INFORMED THAT HE WAS NOT ELIGIBLE FOR SUCH BENEFITS. THAT ACTION APPEARS TO HAVE BEEN PROMPTED BY DECISION OF OCTOBER 24, 1947, 27 COMP. GEN. 238, 240, HOLDING THAT IN ORDER TO COME WITHIN THE PROVISIONS OF AMENDED SECTION 204 "* * * IT IS NECESSARY TO HAVE FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, OR TO HAVE REENLISTED AFTER JULY 1, 1925, HAVING BEEN OUT OF THE NAVY OVER THREE MONTHS, AND ALSO TO HAVE COMPLETED AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE AT THE TIME OF TRANSFER.' ( ITALICS SUPPLIED)

THE FIRST QUESTION RELATING TO LIEUTENANT SMITH IS WHETHER, IN VIEW OF THE DECISION RENDERED JUNE 5, 1951, BY THE COURT OF CLAIMS IN THE CASE OF SHAIL FREDERICK WHITE V. THE UNITED STATES, 121 C.1CLS. 1, LIEUTENANT SMITH IS ENTITLED TO COMPUTE HIS RETAINER PAY FOR THE PERIOD FROM OCTOBER 11, 1946, TO SEPTEMBER 30, 1949, INCLUSIVE, AND HIS RETIRED PAY FOR THE PERIOD FROM NOVEMBER 1, 1956, TO AUGUST 5, 1957, INCLUSIVE, UNDER THE FORMULA PRESCRIBED IN AMENDED SECTION 204.

THE DECISION OF JUNE 5, 1951, IN THE WHITE CASE HOLDS THAT SINCE THE ENLISTED MEMBER THERE CONCERNED WAS ENTITLED UNDER AUTHORITY OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, TO COUNT HIS MINORITY ENLISTMENT AS A FULL FOUR YEARS OF SERVICE FOR THE PURPOSE OF ESTABLISHING HIS ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE ON JUNE 30, 1946 (AS PROVIDED IN SECTION 204 OF THE ACT, 52 STAT. 1179), THE SAME MINORITY ENLISTMENT COULD THEREFORE ALSO BE COUNTED AS A FULL FOUR YEARS OF "ACTIVE FEDERAL SERVICE" TO ESTABLISH HIS ELIGIBILITY FOR THE BENEFITS PRESCRIBED IN SECTION 204, AS AMENDED BY SECTION 2, ACT OF AUGUST 10, 1946, 60 STAT. 993. MOREOVER, AND ALTHOUGH NOT TOO CLEARLY EVIDENT FROM THE LANGUAGE ACTUALLY EMPLOYED IN THE WHITE DECISION OF JUNE 5, 1951 (DUE NO DOUBT TO THE FACT THAT THE PLAINTIFF, WHITE, WAS IN ANY EVENT ALSO ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 208 OF THE 1938 ACT AS ADDED BY SECTION 3 OF THE 1946 LAW, 60 STAT. 994, 34 U.S.C. 854G), THERE IS IMPLICIT IN THAT DECISION THE CONCLUSION THAT THE PHRASE "ACTIVE FEDERAL SERVICE" IN THE SECOND SENTENCE OF SECTION 204 AS AMENDED BY THE 1946 LAW--- RELATING TO THE MULTIPLIER FACTOR TO BE USED IN DETERMINING THE ACTUAL RATE OF RETAINER PAY UNDER THE PERCENTAGE FORMULA THEREIN PRESCRIBED--- SHOULD BE CONSTRUED THE SAME AS THE IDENTICAL PHRASE CONTAINED IN THE FIRST SENTENCE OF SAID SECTION 204 AS AMENDED. THAT IS, THE COURT VIEWED THE PHRASE "ACTIVE FEDERAL SERVICE" IN THE SECOND SENTENCE OF SECTION 204, AS AMENDED, AS INCLUDING BY REASON OF THE PROVISIONS OF SECTION 202, 52 STAT. 1178, THE PERIOD OF CONSTRUCTIVE SERVICE RESULTING FROM WHITE'S MINORITY ENLISTMENT. THEREFORE, THE WHITE DECISION MUST BE CONSIDERED AS HOLDING THAT THE CONSTRUCTIVE SERVICE CREDIT FOR WHITE'S MINORITY ENLISTMENT SHOULD ALSO BE INCLUDED IN DETERMINING THE MULTIPLIER FACTOR (BASED UPON THE NUMBER OF YEARS OF CREDITABLE "ACTIVE FEDERAL SERVICE") TO BE USED IN COMPUTING HIS RETAINER PAY PURSUANT TO THE FORMULA PRESCRIBED IN SECTION 204 AS AMENDED. SEE, IN THIS CONNECTION, THE DISCUSSION CONCERNING THIS VERY POINT WHICH APPEARS IN THE DISSENTING OPINION IN HUMPHREY V. UNITED STATES, DECIDED NOVEMBER 7, 1956, 136 C. CLS. 660. ANY DECISION OR HOLDING OF THIS OFFICE TO THE CONTRARY WILL NO LONGER BE FOLLOWED.

LIEUTENANT SMITH WAS TRANSFERRED TO THE FLEET RESERVE ON OCTOBER 10, 1946, AND IN VIEW OF THE PROVISIONS OF SECTION 202 OF THE 1938 LAW, HIS RETAINER PAY FOR THE PERIOD FROM OCTOBER 11, 1946, TO SEPTEMBER 30, 1949, INCLUSIVE, PROPERLY IS TO BE COMPUTED ON THE PERCENTAGE FORMULA PRESCRIBED IN THE AMENDED SECTION 204, 60 STAT. 993, SUBJECT, HOWEVER, TO WHAT IS HEREINAFTER STATED RESPECTING THE STATUTE OF LIMITATIONS. SINCE AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE ON OCTOBER 10, 1946, HE HAD SLIGHTLY MORE THAN 20 YEARS "ACTIVE FEDERAL SERVICE"--- WHICH INCLUDES CREDIT AS A FULL FOUR YEARS OF SERVICE EACH FOR HIS MINORITY ENLISTMENT AND HIS ENLISTMENTS WHICH TERMINATED ON SEPTEMBER 25, 1934, AND SEPTEMBER 23, 1938--- THE CORRECT MULTIPLIER FACTOR TO BE USED PURSUANT TO THE FORMULA PRESCRIBED IN THE SECOND SENTENCE OF SECTION 204, AMENDED, IS "20.' THE FIRST QUESTION AND THAT PART OF THE SECOND QUESTION CONCERNING THE MULTIPLIER FACTOR TO BE USED IN COMPUTING LIEUTENANT SMITH'S RETAINER PAY FOR THE PERIOD PRIOR TO SEPTEMBER 30, 1949, ARE ANSWERED ACCORDINGLY.

IT APPEARS APPROPRIATE TO CALL ATTENTION TO THE PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH, IN PERTINENT PART, PROVIDED THAT EVERY CLAIM OR DEMAND (WITH EXCEPTION NOT MATERIAL HERE) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236, TITLE 31, U.S.C. "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE ( GENERAL ACCOUNTING OFFICE) WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' THERE IS NO RECORD IN THE GENERAL ACCOUNTING OFFICE OF THE RECEIPT OF A CLAIM FROM LIEUTENANT SMITH FOR INCREASED RETAINER PAY FOR ANY PART OF THE PERIOD FROM OCTOBER 11, 1946, TO SEPTEMBER 30, 1949, INCLUSIVE. ACCORDINGLY, ANY ACTION TAKEN BY YOUR OFFICE AS TO THAT PERIOD SHOULD BE IN CONFORMITY WITH THE PROCEDURES RELATING TO STATUTORY LIMITATIONS ON CLAIMS AS PRESCRIBED IN 4 GAO 2025 ( GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES) WHICH PROVIDES AS FOLLOWS:

IN ORDER TO PROTECT THE INTEREST OF CLAIMANTS, CLAIMS RECEIVED BY AGENCIES AS TO WHICH THE RIGHT OF PAYMENT ACCRUED EIGHT YEARS OR MORE PRIOR TO THE DATE OF RECEIPT AND WHICH CANNOT PROMPTLY BE APPROVED AND PAID IN THE FULL AMOUNT CLAIMED WILL IMMEDIATELY BE REFERRED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE. THESE CLAIMS WILL BE RECORDED IN THE GENERAL ACCOUNTING OFFICE, AFTER WHICH THEY WILL BE RETURNED TO THE AGENCIES FOR PAYMENT, DENIAL, OR REFERRAL BACK TO THE GENERAL ACCOUNTING OFFICE FOR ADJUDICATION.

THE SECOND QUESTION RELATING TO LIEUTENANT SMITH RAISED THE ISSUE WHETHER THE CONSTRUCTIVE SERVICE CREDIT FOR HIS MINORITY AND SHORT TERM ENLISTMENTS MAY BE USED IN DETERMINING THE MULTIPLIER FACTOR TO BE APPLIED IN COMPUTING HIS RETIRED PAY DURING THE PERIOD FROM NOVEMBER 1, 1956, THROUGH AUGUST 5, 1957. ON NOVEMBER 1, 1956, THE DATE THAT LIEUTENANT SMITH WAS PLACED ON THE RETIRED LIST OF THE NAVY BY REASON OF COMPLETION OF 30 YEARS SERVICE WITH CONCURRENT ADVANCEMENT TO THE RANK OF LIEUTENANT (JG), THE PERTINENT PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, HAD BEEN ENTIRELY REPLACED, EFFECTIVE AS OF AUGUST 10, 1956, BY THE APPLICABLE PROVISIONS CONTAINED IN THE ACT OF AUGUST 10, 1956, 70A STAT. AND CODIFIED IN TITLE 10, U.S.C. HENCE, LIEUTENANT SMITH'S TRANSFER TO THE RETIRED LIST ON NOVEMBER 1, 1956, PROPERLY MAY BE VIEWED AS HAVING BEEN ACCOMPLISHED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6331, TITLE 10, U.S. CODE, 70A STAT. 397. SEE SUBSECTIONS (A) (2), (B) (1), (B) (3), AND (C), OF SECTION 6331.

WHILE NOT SPECIFICALLY STATED IN THE FACTS SET FORTH CONCERNING LIEUTENANT SMITH, IT APPEARS THAT UPON HIS TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY ON NOVEMBER 1, 1956, HE WAS ADVANCED TO THE RANK OF LIEUTENANT (JG) IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 6151 (A), 70A STAT. 385. SUBSECTION 6151 (C), 70A STAT. 385, 386, PROVIDES THAT:

EACH FORMER MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE WHO IS ADVANCED ON THE RETIRED LIST UNDER THIS SECTION IS ENTITLED TO RETIRED PAY BASED UPON THE GRADE TO WHICH ADVANCED. SUCH RETIRED PAY SHALL BE AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE TO WHICH ADVANCED, DETERMINED BY THE SAME PERIOD OF SERVICE USED TO DETERMINE THE BASIC PAY OF THE GRADE UPON WHICH HIS RETAINER PAY IS BASED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE FOR HIS RETAINER PAY AT THE TIME OF RETIRMENT, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED. ( ITALICS SUPPLIED.)

THUS, UNDER THE EXPRESS TERMS OF THE ABOVE-QUOTED AND ITALICIZED STATUTORY PROVISIONS THE SAME MULTIPLIER FACTOR OF "20" REPRESENTING THE NUMBER OF YEARS OF "ACTIVE FEDERAL SERVICE" CREDITABLE IN COMPUTING HIS RETAINER PAY AT THE TIME OF HIS RETIREMENT ON NOVEMBER 1, 1956, PROPERLY IS TO BE USED IN COMPUTING LIEUTENANT SMITH'S RETIRED PAY EFFECTIVE FROM NOVEMBER 1, 1956.

IN THE SECOND CASE, THAT OF JOSEPH DISCHIAVE, 238-54-69, ENC SS, IT IS SHOWN THAT THE ENLISTED MAN WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F- 6, ON NOVEMBER 1, 1957, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6330 (B) AND (C), 70A STAT. 396, 397. DISCHIAVE WAS RELEASED TO INACTIVE DUTY ON THAT SAME DATE, AND IT IS STATED THAT IN ACCORDANCE WITH THE HOLDING IN 26 COMP. GEN. 804, 808, HIS ACTIVE SERVICE FOR TRANSFER PURPOSES WAS DETERMINED TO BE "21 YEARS, 4 MONTHS, AND 29 DAYS BY COUNTING ONLY TIME ACTUALLY SERVED UNDER HIS VARIOUS ENLISTMENTS.' IT APPEARS THAT HE HAS BEEN RECEIVING RETAINER PAY SINCE NOVEMBER 2, 1957, AT THE GROSS RATE OF $159.71 PER MONTH BASED ON 21 YEARS FOR PERCENTAGE PURPOSES AND OVER 18 BUT NOT OVER 22 YEARS FOR BASIC PAY PURPOSES.

THE FIRST QUESTION PRESENTED WITH RESPECT TO JOSEPH DISCHIAVE IS WHETHER HIS ACTIVE SERVICE FOR TRANSFER MAY BE RECOMPUTED UNDER THE PROVISIONS OF SUBSECTION 6330 (D), 70A STAT. 397,"BY COUNTING HIS MINORITY ENLISTMENT AS A FULL FOUR YEARS AND HIS ENLISTMENTS WHICH TERMINATED ON 25 NOVEMBER 1947 AND 20 NOVEMBER 1951 AS THE FULL TERMS.'

SECTION 6330, TITLE 10, U.S. CODE, 70A STAT. 396, 397, PROVIDES:

(A) THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE ARE COMPOSED OF MEMBERS OF THE REGULAR NAVY AND THE REGULAR MARINE CORPS, RESPECTIVELY, TRANSFERRED THERETO UNDER---

(1) TITLE II OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178), AS AMENDED; OR

(2) THIS SECTION.

(B) AN ENLISTED MEMBER OF THE REGULAR NAVY WHO HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET RESERVE. AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS WHO HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE.

(C) EACH MEMBER WHO IS TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER THIS SECTION IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY THAT HE RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE IN THE ARMED FORCES. A MEMBER MAY RECOMPUTE HIS RETAINER PAY UNDER SECTION 1402 OF THIS TITLE TO REFLECT ACTIVE DUTY AFTER TRANSFER. IF THE MEMBER HAS BEEN CREDITED BY THE SECRETARY OF THE NAVY WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY, WHICH DETERMINATION BY THE SECRETARY IS FINAL AND CONCLUSIVE FOR ALL PURPOSES, HIS RETAINER PAY SHALL BE INCREASED BY 10 PERCENT. HOWEVER, IN NO CASE MAY A MEMBER'S RETAINER PAY BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETAINER PAY IS BASED. (D) FOR THE PURPOSES OF SUBSECTIONS (B) AND (C), A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED. A COMPLETED MINORITY ENLISTMENT IS COUNTED AS FOUR YEARS OF ACTIVE SERVICE, AND AN ENLISTMENT TERMINATED WITHIN THREE MONTHS BEFORE THE END OF THE TERM OF ENLISTMENT IS COUNTED AS ACTIVE SERVICE FOR THE FULL TERM.

THE SECOND QUESTION CONCERNING JOSEPH DISCHIAVE IS WHETHER HE WOULD BE ENTITLED TO RETAINER PAY EFFECTIVE NOVEMBER 2, 1957,"BASED ON 22 YEARS SERVICE FOR BOTH PERCENTAGE AND BASIC PAY PURPOSES" IF THE SECRETARY OF THE NAVY SHOULD CORRECT HIS RECORDS UNDER AUTHORITY OF SECTION 6332, 70A STAT. 397, TO SHOW THAT HE HAD COMPLETED 21 YEARS, 11 MONTHS, AND 11 DAYS ACTIVE SERVICE ON THE DATE OF HIS TRANSFER. DISCHIAVE'S NAVAL RECORDS SHOW HIM TO HAVE COMPLETED 21 YEARS, 4 MONTHS, AND 29 DAYS ACTUAL SERVICE FOR TRANSFER PURPOSES AND THAT AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE ON NOVEMBER 1, 1957, HE WAS RECEIVING MONTHLY BASIC PAY OF ENLISTED PAY GRADE E-7, AS WITH OVER 18 BUT NOT OVER 22 CUMULATIVE YEARS OF SERVICE (SECTION 201 (A), CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (A), SUPP. V).

SECTION 6332, IN PERTINENT PART, PROVIDES THAT:

THE SECRETARY MAY CORRECT ANY ERROR OR OMISSION IN HIS DETERMINATION AS TO A MEMBER'S GRADE AND YEARS OF CREDITABLE SERVICE. WHEN SUCH A CORRECTION IS MADE, THE MEMBER IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETAIN (RETAINER) PAY OR RETIRED PAY IN ACCORDANCE WITH HIS GRADE AND NUMBER OF YEARS OF CREDITABLE SERVICE, AS CORRECTED, FROM THE DATE OF TRANSFER.

WHILE IT APPEARS THAT DETERMINATIONS OF YEARS OF CREDITABLE SERVICE MADE BY THE SECRETARY OF THE NAVY ARE NOT SUBJECT TO REVIEW BY THIS OFFICE, IT IS TO BE NOTED THAT THE LAW WAS NOT DESIGNED TO AUTHORIZE THE INCLUSION OF TIME NOT OTHERWISE CREDITABLE UNDER SOME STATUTORY PROVISION FOR TRANSFER, PERCENTAGE MULTIPLE OR BASIC PAY PURPOSES. ON THE BASIS OF THE CONCLUSIONS REACHED WITH RESPECT TO THE SMITH CASE AND IN VIEW OF THE PROVISIONS OF SECTION 6330, TITLE 10, U.S. CODE, QUOTED ABOVE, DISCHIAVE SHOULD BE CREDITED WITH 21 YEARS, 11 MONTHS, AND 11 DAYS SERVICE FOR TRANSFER AND PERCENTAGE MULTIPLE PURPOSES. HOWEVER, NO PROVISION OF LAW HAS BEEN FOUND WHICH MAY BE CONSIDERED AS AUTHORITY FOR CREDITING HIM WITH MORE THAN THE TIME HE ACTUALLY SERVED IN HIS ENLISTMENTS FOR BASIC PAY PURPOSES AND IT, THEREFORE, APPEARS THAT A DETERMINATION THAT HE HAD MORE THAN 21 YEARS, 4 MONTHS, AND 29 DAYS FOR BASIC PAY PURPOSES WOULD NOT BE PROPER.

THE THIRD MAN, JOHNNY F. DURANT, 359 73 80, BMC, IS SHOWN TO HAVE BEEN TRANSFERRED TO THE FLEET RESERVE, CLASS F-6, ON JULY 1, 1950, PURSUANT TO THE PROVISIONS OF SECTION 204, NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993. HE WAS RELEASED TO INACTIVE STATUS THAT SAME DATE AND IT IS STATED THAT HE RECEIVED RETAINER PAY FOR THE PERIOD FROM JULY 2, 1950, TO MARCH 18, 1951, INCLUSIVE (UNDER HIS ELECTION TO RECEIVE RETAINER PAY PURSUANT TO THE PROVISIONS OF AMENDED SECTION 204) AT THE RATE OF $138.92 PER MONTH COMPUTED AS FOLLOWS: 2 1/2 PERCENT TIMES 21 (20 YEARS 11 MONTHS, 20 DAYS, TIME ACTUALLY SERVED) EQUALS 52 1/2 PERCENT TIMES $264.60 (ACTIVE DUTY PAY OF ENLISTED PAY GRADE E-7, WITH OVER 18 BUT NOT OVER 22 CUMULATIVE YEARS OF SERVICE). DURANT SERVED ON ACTIVE DUTY DURING THE PERIOD FROM MARCH 19, 1951, TO FEBRUARY 18, 1953, INCLUSIVE, AND IT IS FURTHER STATED THAT HE HAS BEEN RECEIVING RETAINER PAY "BASED ON 23 YEARS FOR PERCENTAGE PURPOSES AND OVER 18 YEARS FOR BASIC PAY SINCE 19 FEBRUARY 1953.'

THE FIRST QUESTION PRESENTED WITH RESPECT TO DURANT IS WHETHER THE SERVICE CREDITED TO HIM ON JULY 1, 1950, THE DATE OF HIS TRANSFER TO THE FLEET RESERVE, MAY BE RECOMPUTED UNDER AUTHORITY OF THE DECISION OF JUNE 5, 1951, IN THE WHITE CASE, 121 C.1CLS. 1, SO AS TO COUNT HIS MINORITY ENLISTMENT AS A FULL FOUR YEARS OF SERVICE. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE RESULTING IN A MULTIPLIER FACTOR OF "22" INSTEAD OF "21" AS ABOVE SET FORTH.

THE SECOND QUESTION CONCERNING JOHNNY F. DURANT IS WHETHER HE WOULD BE ENTITLED TO RETAINER PAY DURING THE PERIOD FROM JULY 2, 1950, TO MARCH 18, 1951, INCLUSIVE, BASED ON 22 YEARS SERVICE FOR BOTH PERCENTAGE AND BASIC PAY PURPOSES, IF THE SECRETARY OF THE NAVY SHOULD CORRECT DURANT'S RECORDS, UNDER AUTHORITY OF SECTION 6332, TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 397, TO SHOW THAT DURANT HAD COMPLETED 21 YEARS, 6 MONTHS, AND 3 DAYS ACTIVE FEDERAL SERVICE ON JULY 1, 1950.

AS STATED ABOVE, DURANT ELECTED, UPON HIS TRANSFER TO THE FLEET RESERVE, EFFECTIVE JULY 2, 1950, TO RECEIVE RETAINER PAY COMPUTED PURSUANT TO THE PROVISIONS OF AMENDED SECTION 204, THAT IS, AT THE RATE OF 2 1/2 PERCENT OF THE ANNUAL BASE AND LONGEVITY PAY (BASIC PAY) HE WAS RECEIVING AT THE TIME OF HIS TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE. IN VIEW OF THE SPECIFIC TERMS OF SECTION 6332, THAT PART OF THE SECOND QUESTION CONCERNING DURANT WHICH RELATES TO THE "PERCENTAGE" MULTIPLIER FACTOR IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO THE SERVICE TO BE CREDITED FOR BASIC PAY PURPOSES, SEE THE ANSWER TO THE QUESTIONS RELATING TO DISCHIAVE.