B-140856, DEC. 16, 1959

B-140856: Dec 16, 1959

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THIS REQUEST WAS ASSIGNED SUBMISSION NO. ARE: THE MEMBER WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON JUNE 30. WHICH WERE MADE APPLICABLE TO THE MARINE CORPS BY SECTION 2 OF SAID ACT (52 STAT. 1175). UPON THE REPEAL OF SECTION 2 WERE CONTINUED IN EFFECT FOR IT BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952. THE MEMBER WAS EMPLOYED BY THE MARINE CORPS AS A CIVILIAN EMPLOYEE ON A FULL-TIME BASIS AT AN ANNUAL SALARY IN EXCESS OF $2. WAS IN EXCESS OF $2. 1952 ED.): "NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW.

B-140856, DEC. 16, 1959

TO CAPTAIN JOHN A. RAPP, DISBURSING OFFICER:

ON SEPTEMBER 22, 1959, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF SEPTEMBER 3, 1959, REQUESTING AN ADVANCE DECISION AS TO THE APPLICABILITY OF RESTRICTIONS OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, AND SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, IN THE CASE OF MASTER SERGEANT CHARLES C. MEYER, 225568, FLEET MARINE CORPS RESERVE. THIS REQUEST WAS ASSIGNED SUBMISSION NO. DG-MC-454 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE PERTINENT FACTS IN MASTER SERGEANT MEYER'S CASE AS DISCLOSED IN YOUR LETTER AND THE SUPPLEMENTAL INFORMATION FURNISHED INFORMALLY IN CONNECTION WITH THIS CASE, ARE: THE MEMBER WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON JUNE 30, 1954, UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED, WHICH WERE MADE APPLICABLE TO THE MARINE CORPS BY SECTION 2 OF SAID ACT (52 STAT. 1175), AND UPON THE REPEAL OF SECTION 2 WERE CONTINUED IN EFFECT FOR IT BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505. THEREAFTER ON APRIL 16, 1956, THE MEMBER WAS EMPLOYED BY THE MARINE CORPS AS A CIVILIAN EMPLOYEE ON A FULL-TIME BASIS AT AN ANNUAL SALARY IN EXCESS OF $2,500 PER ANNUM AND HAS CONTINUED IN SUCH EMPLOYMENT. THE RETAINER PAY PAID HIM AS A MEMBER OF THE FLEET MARINE CORPS RESERVE FOR THE PERIOD APRIL 16, 1956, TO MAY 31, 1958, WAS IN EXCESS OF $2,000 PER ANNUM, BUT LESS THAN $2,500 PER ANNUM, AND HAS BEEN IN EXCESS OF $2,500 PER ANNUM SINCE JUNE 1, 1958.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, PROVIDES AS FOLLOWS (QUOTING FROM 5 U.S.C. 62, 1952 ED.):

"NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.'

SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, PROVIDES AS FOLLOWS (QUOTING FROM 5 U.S.C. 58 AND 59, 1952 ED.):

"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM.

"SECTION 58 OF THIS TITLE SHALL NOT APPLY TO RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR TO OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA.'

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PERMITTED MEMBERS OF THE NAVAL RESERVE TO RECEIVE COMPENSATION AS CIVILIAN GOVERNMENT EMPLOYEES CONCURRENTLY WITH THE PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED UNDER THAT ACT AS MEMBERS OF THE NAVAL RESERVE. THAT SECTION WAS REPEALED, HOWEVER, EFFECTIVE JANUARY 1, 1953, BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505, AND BY VIRTUE OF THE PROVISIONS OF THAT ACT THEREAFTER THE FLEET RESERVE CEASED TO BE A PART OF THE UNITED STATES NAVAL RESERVE. HENCE, AFTER 1952, FLEET RESERVISTS NO LONGER WERE ENTITLED TO THE BENEFITS OF THE EXEMPTION FROM THE 1894 AND 1916 STATUTES ENJOYED BY MEMBERS OF THE NAVAL RESERVE BY VIRTUE OF STATUTORY PROVISIONS SPECIFICALLY EXEMPTING MEMBERS OF THE NAVAL RESERVE FROM THE DUAL EMPLOYMENT LAWS, ALTHOUGH AFTER 1952 BY STATUTE NAVAL RESERVISTS HAVE BEEN ENTITLED TO THE SAME EXEMPTION AS ARMY RESERVISTS. SEE SECTION 246 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 495, 10 U.S.C. 261, 70A STAT. 10, AND SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632. CF. 38 COMP. GEN. 243, 245. THE QUESTION THEN IS WHETHER MASTER SERGEANT MEYER MAY BE CONSIDERED TO BE A RETIRED ENLISTED MAN WITHIN THE MEANING OF THE EXCEPTIONS TO THE 1894 AND 1916 STATUTES.

THE FLEET RESERVE, AS NOW BASICALLY CONSTITUTED, WAS ESTABLISHED BY THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175. SECTIONS 203 AND 204 OF THAT ACT, 52 STAT. 1178, CONTAINED PROVISIONS FOR THE TRANSFER TO THE FLEET RESERVE OF MEN IN THE NAVY ON THE COMPLETION OF 16 OR 20 YEARS OF ACTIVE SERVICE WITH RETAINER PAY UNTIL THE COMPLETION OF 30 YEARS OF ACTIVE AND INACTIVE SERVICE, AT WHICH TIME THE MEMBER WOULD BE RETIRED WITH RETIRED PAY COMPUTED GENERALLY ON THE SAME BASIS AS RETAINER PAY. SECTIONS 6330 AND 6331, 10 U.S.CODE, 70A STAT. 396 AND 397, EFFECTIVE AUGUST 10, 1956, CONTAIN PROVISIONS WHICH ARE SUBSTANTIALLY TO THE SAME EFFECT AS THE PRIOR STATUTES.

IN 6 COMP. GEN. 223, IN CONSIDERING SIMILAR PROVISIONS FOR THE PAYMENT OF RETAINER PAY TO TRANSFERRED MEMBERS OF THE FLEET RESERVE CONTAINED IN THE ACT OF AUGUST 29, 1916, 39 STAT. 590, AND THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1087, IT WAS STATED THAT SUCH RETAINER PAY WAS IN THE NATURE OF REDUCED RETIREMENT PAY, IT BEING POINTED OUT THAT THE RETAINER PAY, BEING BASED ON LENGTH OF SERVICE ALONE, WITH THE RATES FIXED IN RELATION TO THE RATES OF ACTIVE SERVICE PAY, HAD PRACTICALLY ALL THE ELEMENTS OF RETIREMENT PAY. ALSO, SEE 2 COMP. GEN. 743 AND 18 COMP. GEN. 747, WHICH ARE TO THE SAME EFFECT.

THAT IT WAS NOT THE INTENTION OF THE CONGRESS TO SUBJECT MEMBERS OF THE FLEET RESERVE TO THE DUAL EMPLOYMENT STATUTES BY REASON OF ELIMINATION OF THE FLEET RESERVE AS A COMPONENT OF THE NAVAL RESERVE MAY BE INFERRED FROM THE REMARKS APPEARING ON PAGE 58 OF H.R. REPORT NO. 1006, 82D CONGRESS, OF THE HOUSE ARMED SERVICES COMMITTEE ON H.R. 5426, WHICH BECAME THE ARMED FORCES RESERVE ACT OF 1952:

"THE NAVAL RESERVE ACT OF 1938 WOULD BE GENERALLY SUPERSEDED BY THE PROVISIONS OF THIS BILL EXCEPT FOR THOSE PORTIONS WHICH RELATE TO THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE. THE LATTER ORGANIZATIONS ARE NOT RESERVE COMPONENTS IN THE COMMON SENSE OF THAT TERM, BUT RATHER CONSIST OF RETIRED REGULARS, AND THEREFORE ARE NOT INCLUDED WITHIN THE TERMS OF THIS BILL. * * *"

HENCE, IT REASONABLY MAY BE CONCLUDED THAT IT WAS THE VIEW OF THE CONGRESS THAT NO FURTHER LEGISLATION WAS NECESSARY TO EXEMPT MEMBERS OF THE FLEET RESERVE FROM THE DUAL COMPENSATION LAWS IN VIEW OF THE EXISTING EXEMPTION OF RETIRED ENLISTED MEN IN THE 1894 AND 1916 ACTS.

THAT CONCLUSION IS IN ACCORD WITH THE CLEARLY EXPRESSED INTENT OF THE CONGRESS IN ENACTING THE ACT OF AUGUST 10, 1946, 60 STAT. 993, ONE OF THE "PRINCIPAL PURPOSES" OF WHICH WAS "TO EQUALIZE THE RETIREMENT BENEFITS FOR ENLISTED PERSONNEL OF THE NAVY WITH THAT PROVIDED FOR ENLISTED PERSONNEL OF THE ARMY.' SEE PAGE 1, H.R. REPORT NO. 2720 ON S. 2460, WHICH BECAME THE ACT OF AUGUST 10, 1946. SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 539, AS AMENDED BY THE ACT OF AUGUST 10, 1946, PROVIDED FOR THE RETIREMENT OF ENLISTED MEMBERS OF THE REGULAR ARMY WITH NOT LESS THAN 20 OR MORE THAN 30 YEARS OF ACTIVE SERVICE ON A BASIS COMPARABLE TO THAT APPLICABLE TO MEMBERS OF THE FLEET RESERVE, BUT PROVIDED THAT CONCURRENTLY WITH RETIREMENT THEY SHOULD BE TRANSFERRED TO THE ENLISTED RESERVE CORPS WITH THE OBLIGATION TO SERVE ON ACTIVE DUTY AS PRESCRIBED BY LAW UNTIL COMPLETION OF 30 YEARS OF ACTIVE AND INACTIVE SERVICE, SIMILAR TO THE REQUIREMENT FOR MEMBERS OF THE FLEET RESERVE. THERE IS NO QUESTION BUT THAT SUCH RETIRED ENLISTED MEMBERS OF THE ARMY ARE RETIRED ENLISTED MEN WITHIN THE MEANING OF THE 1894 AND 1916 ACTS.

TO CONCLUDE THAT MEMBERS OF THE FLEET RESERVE ARE NOT RETIRED ENLISTED MEN WITHIN THE MEANING OF THOSE ACTS WOULD RESULT IN A DISCRIMINATION BETWEEN MEMBERS OF THE ARMY AND THE NAVY CONTRARY TO THE EXPRESSED INTENT OF THE CONGRESS AND THE GENERAL LEGISLATIVE POLICY OF THE CONGRESS TO ACCORD EQUAL TREATMENT TO MEMBERS OF THE SEVERAL ARMED SERVICES. COMPARE SECTION 2 (G) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, PROVIDING THAT---

"THE TERM "RETIRED PAY" INCLUDES RETIREMENT PAY, EQUIVALENT PAY,AND RETAINER PAY.'

IN THE CIRCUMSTANCES WE THINK THAT A CONCLUSION THAT MEMBERS OF THE FLEET RESERVE HAVE BEEN SUBJECT TO THE 1894 AND 1916 DUAL EMPLOYMENT STATUTES SINCE 1952 WOULD REQUIRE A CLEARER EXPRESSION OF LEGISLATIVE INTENT THAN MERE ELIMINATION OF THE FLEET RESERVE AS A COMPONENT OF THE NAVAL RESERVE. IT IS OUR VIEW, THEREFORE, THAT MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE ARE RETIRED ENLISTED MEN WITHIN THE MEANING OF THE 1894 AND 1916 ACTS.

ACCORDINGLY, YOU ARE ADVISED THAT NO OBJECTION WILL BE INTERPOSED BY OUR OFFICE TO OTHERWISE PROPER CONCURRENT PAYMENTS OF CIVILIAN SALARY AND RETAINER PAY IN SUCH CASES.