B-140554, NOV. 4, 1959

B-140554: Nov 4, 1959

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O-CONNOR: REFERENCE IS MADE TO YOUR LETTER DATED JULY 21. WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT DATED JANUARY 5. YOUR PRESENT REQUEST WILL BE CONSIDERED AS BEING IN THE NATURE OF A REQUEST FOR RECONSIDERATION OF THE SETTLEMENT. YOU WERE CREDITED WITH 26 YEARS AND 3 DAYS' CONSTRUCTIVE SERVICE FOR TRANSFER PURPOSES. WHICH INCLUDED AS FULL TERMS THOSE ENLISTMENTS WHEREIN YOU WERE DISCHARGED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF ENLISTMENT. THE RECORD FURTHER INDICATES THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON SEPTEMBER 1. YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF CHIEF SHIP'S CLERK (HIGHEST SATISFACTORY RANK HELD) TO BE EFFECTIVE AS OF SEPTEMBER 1.

B-140554, NOV. 4, 1959

TO MR. JOHN P. O-CONNOR:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 21, 1959, REQUESTING RECOMPUTATION OF YOUR RETIRED PAY AS A CHIEF SHIP'S CLERK (CWO-2), U.S.N., FROM SEPTEMBER 1, 1950, ON THE BASIS OF YOUR 26 YEARS' SERVICE FOR BASIC PAY PURPOSES. A SIMILAR CLAIM, FOR RETAINER PAY AS A FLEET RESERVIST, COMMENCING AUGUST 14, 1946, AND RETIRED PAY, COMMENCING SEPTEMBER 1, 1950, WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT DATED JANUARY 5, 1959. HENCE, YOUR PRESENT REQUEST WILL BE CONSIDERED AS BEING IN THE NATURE OF A REQUEST FOR RECONSIDERATION OF THE SETTLEMENT.

THE RECORD INDICATES THAT AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE ON AUGUST 14, 1946, UNDER AUTHORITY OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, YOU WERE CREDITED WITH 26 YEARS AND 3 DAYS' CONSTRUCTIVE SERVICE FOR TRANSFER PURPOSES, WHICH INCLUDED AS FULL TERMS THOSE ENLISTMENTS WHEREIN YOU WERE DISCHARGED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF ENLISTMENT. YOU ACTUALLY SERVED, HOWEVER, ONLY 25 YEARS AND 9 MONTHS. THE RECORD FURTHER INDICATES THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON SEPTEMBER 1, 1950, AND ON JANUARY 19, 1951, YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF CHIEF SHIP'S CLERK (HIGHEST SATISFACTORY RANK HELD) TO BE EFFECTIVE AS OF SEPTEMBER 1, 1950.

IN YOUR LETTER YOU STATE THAT SINCE THE SECRETARY OF THE NAVY DETERMINED THAT YOU HAD OVER 26 YEARS' SERVICE ON YOUR TRANSFER TO THE FLEET RESERVE, THAT SUCH 26 YEARS SHOULD NOT ONLY BE USED FOR PERCENTAGE MULTIPLIER PURPOSES BUT ALSO FOR BASIC PAY PURPOSES IN THE COMPUTATION OF YOUR RETIRED PAY FROM SEPTEMBER 1, 1950 TO DATE. THE BASIS OF YOUR CLAIM IS STATED AS FOLLOWS:

"* * * THE USE OF THE PHRASE "FOR ALL PURPOSES," AS USED IN SECTION 202 OF THE 1938 ACT, SUPRA, MUST BE HELD TO MEAN "EVERYTHING," I.E.--- CREDIT FOR THE ADDITIONAL SERVICE AUTHORIZED AND PAY THEREFOR BECAUSE IN SECTIONS 203 AND 204 OF THE 1938 ACT, SUPRA, IT IS INDICATED HOW RETAINER PAY FOR SERVICE CREDITED TO A MEMBER IS TO BE COMPUTED,--- ON THE 1/3, 1/2 OR 2 1/2 PERCENT FORMULA, AS THE CASE MAY BE. WERE THIS NOT SO, IT WOULD NOT HAVE BEEN NECESSARY FOR THE CONGRESS TO SAY ,FOR ALL PURPOSES," BUT COULD HAVE SAID: "A COMPLETE ENLISTMENT FOR MINORITY SHALL BE COUNTED AS FOUR YEARS' SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION DATE OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED FOR PURPOSES OF TRANSFER TO THE FLEET RESERVE," WHICH WOULD INDICATE THAT THE CONSTRUCTIVE TIME COULD ONLY BE USED FOR PURPOSES OF TRANSFER TO THE FLEET RESERVE AND NOT FOR PAY PURPOSES.'

IN SUPPORT OF YOUR POSITION YOU CITE THE CASE OF DARBY V. UNITED STATES, COURT OF CLAIMS NO. 189-58, DECIDED JUNE 3, 1959, AND OUR DECISION DATED DECEMBER 9, 1958, B-137737, 38 COMP. GEN. 429, AS TO THE INTERPRETATION TO BE GIVEN THE PHRASE "FOR ALL PURPOSES.'

INSOFAR AS HERE PERTINENT, SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, PROVIDED THAT---

"SEC. 202. FOR ALL PURPOSES OF THIS ACT A COMPLETE ENLISTMENT DURING MINORITY SHALL BE COUNTED AS FOUR YEARS' SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED: PROVIDED, THAT ALL TRANSFERS FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE OR TO THE FLEET RESERVE, AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, HERETOFORE OR HEREAFTER MADE BY THE SECRETARY OF THE NAVY, SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEMBERS SO TRANSFERRED SHALL, FROM THE DATE OF TRANSFER, BE ENTITLED TO PAY AND ALLOWANCES, IN ACCORDANCE WITH THEIR RANKS OR RATINGS AND LENGTH OF SERVICE AS DETERMINED BY THE SECRETARY OF THE NAVY * * *.'

IT WILL BE NOTED THAT UNLIKE THE ORDER CORRECTING THE RECORD IN THE DARBY CASE, AND THE STATUTE CONSTRUED (10 U.S.C. 676) IN OUR DECISION OF DECEMBER 9, 1958, THE PHRASE "FOR ALL PURPOSES" IN THE PRESENT CASE IS RESTRICTED IN ITS APPLICATION TO THE NAVAL RESERVE ACT OF 1938 AND IS NOT UNLIMITED IN ITS SCOPE. HENCE THE DECISIONS CITED ARE NOT APPLICABLE HERE.

INSOFAR AS THE DETERMINATIONS OF THE SECRETARY OF THE NAVY, IN THE FIRST PROVISO OF SECTION 202, ARE CONCERNED IN YOUR CASE, THE RECORDS SHOW THAT DETERMINATION WAS MADE THAT YOU HAD 26 YEARS 3 DAYS' (CONSTRUCTIVE) SERVICE FOR TRANSFER PURPOSES, AND ALSO THAT YOU HAD ONLY 25 YEARS 9 MONTHS OF ACTUAL SERVICE.

THE COMPUTATION OF YOUR RETAINER PAY FOR THE PERIOD AUGUST 15, 1946, THROUGH SEPTEMBER 30, 1949, WAS MADE IN ACCORDANCE WITH SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, THAT IS, ONE-HALF THE BASE PAY OF A CHIEF YEOMAN, PLUS PERMANENT ADDITIONS PLUS 10 PERCENT FOR GOOD CONDUCT MARKS, ON RATES PRESCRIBED IN THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WITH CREDIT FOR OVER 24 YEARS' SERVICE. ON AND AFTER OCTOBER 1, 1949, YOUR RETAINER PAY WAS COMPUTED UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND YOU WERE PAID AN INCREASED AMOUNT OF RETAINER PAY.

MEMBERS OF THE UNIFORMED SERVICES WHO WERE TRANSFERRED TO THE FLEET RESERVE PRIOR TO OCTOBER 1, 1949, BECAME ENTITLED (EFFECTIVE FROM THAT DATE), TO RECEIVE RETAINER PAY UNDER ONE OF THE TWO METHODS THERE PRESCRIBED. UNDER METHOD (A) THEY WERE ENTITLED TO RECEIVE THEIR MONTHLY RETAINER PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS BY THE PROVISIONS OF LAW WHICH WERE IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE ACT. METHOD (B) IN SECTION 511 AUTHORIZED PAYMENT OF "RETAINER PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY * * * WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY * * * MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.'

INSOFAR AS HEREIN PERTINENT, THE TERM "ACTIVE SERVICE" IS EXPRESSLY DEFINED FOR THE PURPOSE OF SECTION 511 AS MEANING---

"* * * ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW. * * *" SUCH DEFINITION OF THE TERM "ACTIVE SERVICE" INCLUDES ONLY PERIODS OF ACTUAL SERVICE AND THE CONCLUSION IS REQUIRED THAT PERIODS OF CONSTRUCTIVE SERVICE, RESULTING FROM EARLY DISCHARGES AS AUTHORIZED BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, FOR THE PURPOSES OF THAT ACT, PROPERLY MAY NOT BE CONSIDERED AS CONSTITUTING CREDITABLE ACTIVE SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR TO BE USED IN THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

IT MAY BE NOTED HERE THAT PURSUANT TO THE FIRST PROVISO OF SECTION 511, YOUR 25 YEARS 9 MONTHS OF ACTIVE SERVICE IS COUNTED AS 26 YEARS FOR PERCENTAGE MULTIPLE PURPOSES, FROM OCTOBER 1, 1949. HENCE, UNDERMETHOD (B) OF SECTION 511, YOU WERE ENTITLED TO 65 PERCENT (26 TIMES 2 1/2 PERCENT) OF "THE MONTHLY BASIC PAY" TO WHICH YOU WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY. IF SERVING ON ACTIVE DUTY, AFTER THE EFFECTIVE DATE OF THE ACT, YOUR BASIC PAY WOULD BE AS PROVIDED IN SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, WITH CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES COMPUTED AS PROVIDED IN SECTION 202 OF THE SAME ACT. THE CONSTRUCTIVE SERVICE HERE CONSIDERED IS NOT MENTIONED AS ONE OF THE TYPES OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES. HENCE, FOR BASIC PAY PURPOSES YOU HAVE BEEN CREDITED WITH OVER 24 BUT LESS THAN 26 YEARS' CUMULATIVE SERVICE.

FINALLY, IN THE 11TH PARAGRAPH OF YOUR LETTER YOU CITE SECTION 6330 (D), TITLE 10, U.S.C. PARAGRAPH (A) OF SECTION 6330 PROVIDES, INTER ALIA, THAT THE FLEET RESERVE IS NOW COMPOSED OF MEMBERS OF THE REGULAR NAVY TRANSFERRED THERETO UNDER TITLE II OF THE NAVAL RESERVE ACT OF 1938, OR MEMBERS TRANSFERRED THERETO UNDER SECTION 6330. PARAGRAPHS (B), (C) AND (D), PROVIDE FOR THE TRANSFER OF MEMBERS OF THE REGULAR NAVY TO THE FLEET RESERVE AND FOR THE COMPUTATION OF RETAINER PAY OF A MEMBER TRANSFERRED TO THE FLEET RESERVE UNDER THAT SECTION (SECTION 6330 (A) (2) (, AND BY ITS SPECIFIC TERMS HAS NO APPLICATION TO MEMBERS TRANSFERRED TO THE FLEET RESERVE PURSUANT TO THE NAVAL RESERVE ACT OF 1938, AS AMENDED (SECTION 6330 (A) (1) ). THE COMPUTATION OF RETAINER PAY OF MEMBERS TRANSFERRED TO THE FLEET RESERVE PURSUANT TO SECTION 6330 (B) IS SET OUT IN SECTION 6330 (C), AND IS STATED TO BE "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.' THE BASIC PAY A MEMBER RECEIVES "AT THE TIME OF TRANSFER" IS ACTIVE DUTY BASIC PAY, AND AS STATED IN OUR DECISION 38 COMP. GEN. 110, NO PROVISION OF LAW HAS BEEN FOUND WHICH MAY BE CONSIDERED AS AUTHORITY FOR CREDITING A MEMBER WITH MORE TIME THAN HE ACTUALLY SERVED IN HIS ENLISTMENTS FOR BASIC PAY PURPOSES.

ACCORDINGLY, IN VIEW OF THE ABOVE, IT IS DETERMINED THAT THE SETTLEMENT OF JANUARY 5, 1959, DENYING YOUR PRIOR CLAIM IS CORRECT, AND THAT YOUR PRESENT CLAIM IS ALSO DENIED.