B-145652, JULY 13, 1961, 41 COMP. GEN. 22

B-145652: Jul 13, 1961

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AT WHICH TIME HE WAS CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY. IS ENTITLED ON HIS POST- TRANSFER RELIEF FROM ACTIVE DUTY UNDER THE EXPRESS PROVISIONS OF 10 U.S.C. 6330 (C) TO HAVE THE ACTIVE DUTY AFTER TRANSFER AND THE 10 PERCENT INCREASE FOR EXTRAORDINARY HERDISM REFLECTED IN THE COMPUTATION OF RETAINER PAY UNDER THE FORMULA IN 10 U.S.C. 1402 AT THE BASIC RATES OF PAY PROVIDED IN THE PAY INCREASE ACT OF MAY 20. A NAVY ENLISTED MEMBER WHO AT THE TIME OF TRANSFER TO THE FLEET RESERVE IN 1950 WAS CREDITED WITH EXTRAORDINARY HEROISM IN LINE OF DUTY AND ELECTED TO RECEIVE RETAINER PAY COMPUTED UNDER THE ACT OF AUGUST 10. WHO SERVED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER IS ENTITLED BY REASON OF THE ELECTION TO HAVE HIS RETAINER PAY COMPUTED UNDER 10 U.S.C. 6330 AND 6331 EFFECTIVE AUGUST 10.

B-145652, JULY 13, 1961, 41 COMP. GEN. 22

MILITARY PERSONNEL - RETIRED PAY - FLEET RESERVISTS - EXTRA HEROISM PAY A NAVY ENLISTED MEMBER WHO CONTINUES ON ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE UNDER 10 U.S.C. 6330, AT WHICH TIME HE WAS CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY, IS ENTITLED ON HIS POST- TRANSFER RELIEF FROM ACTIVE DUTY UNDER THE EXPRESS PROVISIONS OF 10 U.S.C. 6330 (C) TO HAVE THE ACTIVE DUTY AFTER TRANSFER AND THE 10 PERCENT INCREASE FOR EXTRAORDINARY HERDISM REFLECTED IN THE COMPUTATION OF RETAINER PAY UNDER THE FORMULA IN 10 U.S.C. 1402 AT THE BASIC RATES OF PAY PROVIDED IN THE PAY INCREASE ACT OF MAY 20, 1958, THE POST TRANSFER RELIEF FROM ACTIVE DUTY HAVING BEEN EFFECTED AFTER MAY 31, 1958, THE EFFECTIVE DATE OF THE PAY INCREASE ACT OF MAY 20, 1958. A NAVY ENLISTED MEMBER WHO AT THE TIME OF TRANSFER TO THE FLEET RESERVE IN 1950 WAS CREDITED WITH EXTRAORDINARY HEROISM IN LINE OF DUTY AND ELECTED TO RECEIVE RETAINER PAY COMPUTED UNDER THE ACT OF AUGUST 10, 1946, AND WHO SERVED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER IS ENTITLED BY REASON OF THE ELECTION TO HAVE HIS RETAINER PAY COMPUTED UNDER 10 U.S.C. 6330 AND 6331 EFFECTIVE AUGUST 10, 1956, WHICH AUTHORIZES PAYMENT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN ADDITION TO INCREASES ON ACCOUNT OF ACTIVE DUTY AFTER TRANSFER, THE MEMBER NOT HAVING BEEN RETIRED PRIOR TO AUGUST 10, 1956, IS NOT PRECLUDED BY SECTION 49 (F) OF THE ACT OF AUGUST 10, 1956, FROM RECEIVING AN INCREASE IN RETAINER PAY UNDER THE 1956 ACT. NAVY ENLISTED MEMBERS WHO WERE TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1956--- THE DATE OF THE ACT WHICH AUTHORIZED AN ELECTION OF PAY UNDER THE ACT OF AUGUST 10, 1946, AND 10 U.S.C. 6330 AND 6331 OR UNDER LAWS IN EFFECT PRIOR TO AUGUST 10, 1946--- WHO WERE NOT RETIRED PRIOR TO AUGUST 10, 1956, AND WHO ELECTED TO HAVE THEIR RETAINER PAY COMPUTED UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 AND SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 AS OF AUGUST 9, 1956, BASED UPON RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT, MAY HAVE THEIR RETAINER PAY COMPUTED UNDER 10 U.S.C. 6330, EFFECTIVE AUGUST 10, 1956, WHICH AUTHORIZES PAYMENT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN ADDITION TO INCREASES ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. WHEN SECTION 47 OF THE ACT OF AUGUST 10, 1956, AMENDING SECTION 9 OF THE ACT OF AUGUST 10, 1946, WHICH PROVIDES THAT MEMBERS OF THE NAVY WHO BECOME ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE AND MEMBERS OF THE FLEET RESERVE MAY ELECT TO RECEIVE RETAINER AND RETIRED PAY UNDER THE ACT OF AUGUST 10, 1946, AND 10 U.S.C. 6330 OR UNDER LAWS IN EFFECT PRIOR TO AUGUST 10, 1946, IS READ IN CONJUNCTION WITH 10 U.S.C. 6330 WHICH AUTHORIZES, EFFECTIVE AUGUST 10, 1956, PAYMENT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN ADDITION TO INCREASES FOR ACTIVE SERVICE AFTER TRANSFER, THE GENERAL PROVISION OF SECTION 49 (F) PRECLUDING AN INCREASE OR DECREASE IN RETIRED OR RETAINER PAY BY REASON OF THE 1956 ACT MAY BE REGARDED AS OVERCOME; THEREFORE, A RETIRED MEMBER OF THE FLEET RESERVE WHO ELECTED TO RECEIVE RETAINER PAY UNDER THE ACT OF AUGUST 10, 1946, AND HAD NOT BEEN RETIRED PRIOR TO AUGUST 10, 1956, IS ENTITLED BY VIRTUE OF SECTION 47 OF THE 1956 ACT TO RETAINER PAY COMPUTED UNDER 10 U.S.C. 6330, EFFECTIVE AUGUST 10, 1956, WHICH AUTHORIZES PAYMENT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN ADDITION TO INCREASES ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. NAVY MEMBERS WHO ELECTED UPON TRANSFER TO THE FLEET RESERVE TO HAVE THEIR RETAINER PAY COMPUTED UNDER THE ACT OF AUGUST 10, 1946, ARE NOT REQUIRED OR AUTHORIZED BY EITHER SECTION 47 OF THE ACT OF AUGUST 10, 1956, OR 10 U.S.C. 6330, EFFECTIVE AUGUST 10, 1956, TO MAKE NEW ELECTIONS, BECAUSE OF PERFORMANCE OF ACTIVE SERVICE AFTER TRANSFER TO THE FLEET RESERVE, IN ORDER TO RECEIVE CREDIT FOR EXTRAORDINARY HEROISM OR FOR POST-TRANSFER ACTIVE SERVICE SINCE SUCH INCREASED PAY AUTOMATICALLY FLOWS FROM THE FACT THAT THE MEMBERS ELECTED TO RECEIVE RETAINER PAY UNDER THE PROVISIONS OF THE 1946 ACT RATHER THAN UNDER THE PROVISIONS OF PRIOR LAWS.

TO LIEUTENANT COMMANDER E. C. DODD, DEPARTMENT OF THE NAVY, JULY 13, 1961:

BY LETTER OF MARCH 16, 1961, FORWARDED HERE BY 2D ENDORSEMENT OF APRIL 18, 1961, FROM THE COMPTROLLER OF THE NAVY, UNDER SUBMISSION NO. DO-N-571, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, YOU REQUEST DECISION WHETHER JAMES D. JOHNSON 261 85 22, GMC, USNFR, F-6, AND JOHN B. MONROE, 272 100 15, BMC, USN ( RETIRED), ARE ENTITLED TO RETAINER (AND RETIRED) PAY INCREASED BY 10 PERCENT FOR EXTRAORDINARY HEROISM FROM DECEMBER 30, 1958, AND AUGUST 10, 1956, RESPECTIVELY, UNDER THE FACTS OUTLINED IN YOUR SUBMISSION. ALSO, SOME COLLATERAL QUESTIONS ARE PRESENTED FOR DECISION.

YOU STATE THAT JOHNSON WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F/6, ON MARCH 1, 1957, UNDER 10 U.S.C. 6330, AS A GMC, AND WAS RETAINED ON ACTIVE DUTY THROUGH DECEMBER 29, 1958; THAT AT THE TIME OF TRANSFER HE WAS CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY; THAT HIS SERVICE FOR TRANSFER AND HIS ACTUAL ACTIVE SERVICE TOTALED 22 YEARS 2 MONTHS AND 14 DAYS ON MARCH 1, 1957; THAT HE COMPLETED A TOTAL OF 24 YEARS AND 12 DAYS' SERVICE ON DECEMBER 29, 1958; AND THAT HIS PAY HAS BEEN COMPUTED FROM DECEMBER 29 AT THE GROSS MONTHLY RATE OF $210 UNDER 10 U.S.C. 1402 (A) WITHOUT THE 10 PERCENT CREDIT FOR EXTRAORDINARY HEROISM, BASED ON OVER 24 YEARS FOR PERCENTAGE PURPOSES AND THE BASIC PAY AUTHORIZED BY THE ACT OF MAY 20, 1958. 72 STAT. 122, 37 U.S.C. 232 (A), FOR PAY GRADE E-7 WITH OVER 22 YEARS' SERVICE.

YOU STATE THAT MONROE WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F 6, ON MAY 25, 1950, AS A BMC AND WAS RELEASED TO INACTIVE DUTY THE SAME DATE. AT THE TIME OF TRANSFER, HE WAS CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY AND 19 YEARS 10 MONTHS AND 24 DAYS' SERVICE FOR TRANSFER, INCLUDING CONSTRUCTIVE SERVICE FOR HIS MINORITY AND SHORT TERM ENLISTMENTS. HIS ACTUAL ACTIVE SERVICE ON MAY 25, 1950, TOTALED 19 YEARS 6 MONTHS AND 26 DAYS. HE ELECTED TO RECEIVE RETAINER PAY COMPUTED UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT 993, 34 U.S.C. 854C. HE SERVED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER FROM AUGUST 29, 1950, THROUGH OCTOBER 1, 1953, A PERIOD OF 3 YEARS 1 MONTH AND 3 DAYS. SUCH SERVICE, WHEN ADDED TO HIS SERVICE FOR TRANSFER, TOTALS 22 YEARS 11 MONTHS AND 27 DAYS, AND WHEN ADDED TO HIS ACTUAL ACTIVE SERVICE, TOTALS 22 YEARS 7 MONTHS AND 29 DAYS. HE HAS BEEN PAID UNDER SECTION 516 OF THE ACT OF OCTOBER 12, 1949, 63 STAT. 832, WITHOUT THE 10 PERCENT CREDIT FOR EXTRAORDINARY HEROISM, BASED ON OVER 23 YEARS FOR PERCENTAGE PURPOSES AND OVER 22 YEARS FOR BASIC PAY. EFFECTIVE AUGUST 1, 1960, MONROE WAS PLACED ON THE RETIRED LIST UNDER 10 U.S.C. 6331 BY REASON OF COMPLETION OF 30 YEARS' SERVICE.

THE PROVISIONS OF 10 U.S.C. 6330 (C) IN PERTINENT PART ARE AS FOLLOWS:

EACH MEMBER WHO IS TRANSFERRED TO THE FLEET 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, * * * HIS RETAINER PAY SHALL BE INCREASED BY 10 PERCENT * * * ( ITALICS SUPPLIED.)

YOUR FIRST QUESTION IS WHETHER THE ITALICIZED SENTENCES AUTHORIZE THE COMPUTATION OF RETAINER AND RETIRED PAY UNDER 10 U.S.C. 1402 (A) WITH AN ADDITIONAL CREDIT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN CASES SIMILAR TO THAT OF JOHNSON'S WHERE TRANSFER TO THE FLEET RESERVE IS EFFECTED UNDER 10 U.S.C. 6330.

10 U.S.C. 1402 (A) PROVIDES THAT A MEMBER OF AN ARMED FORCE WHO HAS BEEN RETIRED OR HAS BECOME ENTITLED TO RETAINER PAY, AND WHO THEREAFTER SERVES ON ACTIVE DUTY, IS ENTITLED, UPON RELEASE FROM THAT DUTY, TO RECOMPUTE HIS RETIRED OR RETAINER PAY AS FOLLOWS: MONTHLY BASIC PAY OR BASE AND LONGEVITY PAY, AS THE CASE MAY BE, OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY MULTIPLIED BY 2 1/2 PERCENT OF THE SUM OF (1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM IN COMPUTING RETIRED OR RETAINER PAY AND (2) HIS YEARS OF ACTIVE SERVICE AFTER RETIREMENT OR BECOMING ENTITLED TO RETAINER PAY. 10 U.S.C. 1402 (A) IS THE CODIFICATION OF SECTION 516 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 316, AND SUPERSEDED THAT SECTION EFFECTIVE AUGUST 10, 1956.

SINCE JOHNSON WAS TRANSFERRED TO THE FLEET RESERVE UNDER THE PROVISIONS OF 10 U.S.C. 6330, HIS RETAINER PAY IS COMPUTED UNDER THE FORMULA THERE PROVIDED. SECTION 6330 (C) EXPRESSLY PROVIDES THAT IN COMPUTING THE RETAINER PAY OF A MEMBER TRANSFERRED TO THE FLEET RESERVE UNDER THAT SECTION A MEMBER MAY RECOMPUTE HIS RETAINER PAY UNDER SECTION 1402 TO REFLECT ACTIVE DUTY AFTER TRANSFER AND IN ADDITION RECEIVE A 10-PERCENT INCREASE THEREON IF HE HAS BEEN CREDITED BY THE SECRETARY WITH EXTRAORDINARY HEROISM IN LINE OF DUTY. ACCORDINGLY, UNDER HIS POST- TRANSFER RELIEF FROM ACTIVE DUTY AFTER MAY 31, 1958, AFTER HAVING PERFORMED A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST ONE YEAR (SEE SECTION 3 (B) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, 37 U.S.C. 232 NOTE), WITH TOTAL ACTIVE SERVICE OF 24 YEARS AND 12 DAYS, JOHNSON IS ENTITLED TO HAVE HIS RETAINER PAY COMPUTED ON THE BASIC PAY RATES PROVIDED BY THE ACT OF MAY 20, 1958, FOR HIS PAY GRADE WITH OVER 22 YEARS' SERVICE, PLUS A 10-PERCENT INCREASE FOR EXTRAORDINARY HEROISM. YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SECTION 47 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 638, WHICH AMENDED SECTION 9 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, READS AS FOLLOWS:

MEMBERS OF THE NAVY AND MARINE CORPS WHO BECOME ELIGIBLE AND APPLY FOR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE MAY ELECT TO RECEIVE RETAINER AND RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THIS ACT AND SECTIONS 6330 AND 6331 OF TITLE 10, U.S.C. OR UNDER LAWS IN EFFECT ON AUGUST 9, 1946.

YOU STATE THAT, IF OUR REPLY TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, A DECISION IS ALSO REQUESTED WHETHER, BY VIRTUE OF THE ABOVE AMENDMENT, MONROE AND THE OTHER MEMBERS WHO TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1956, WITH CREDIT FOR EXTRAORDINARY HEROISM AND WHO SERVED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER, WHICH ACTIVE DUTY TERMINATED AFTER SEPTEMBER 30, 1949, ARE ENTITLED TO RECEIVE PAY COMPUTED UNDER 10 U.S.C. 1402 (A) WITH THE ADDITIONAL 10 PERCENT CREDIT FROM AUGUST 10, 1956, OR DATE OF RELEASE TO INACTIVE DUTY, WHICHEVER IS LATER. IT IS STATED THAT DOUBT EXISTS IN THIS REGARD BECAUSE SECTION 49 (F) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, PROVIDES THAT " THE ENACTMENT OF THIS ACT DOES NOT INCREASE OR DECREASE THE PAY OR ALLOWANCES, INCLUDING RETIRED PAY AND RETAINER PAY, OF ANY PERSON.' YOU CITE OUR DECISION, B-140554, DATED NOVEMBER 4, 1959, AS INDICATING A NEGATIVE REPLY TO YOUR SECOND QUESTION. ALSO, YOU REFER TO THE CASE OF JOHN P. ALWORTH, 402 26 23, BMC, USN ( RETIRED).

SECTION 9 OF THE ACT OF AUGUST 10, 1946, AS AMENDED BY SECTION 47 OF THE ACT OF AUGUST 10, 1956, PROVIDES THAT A MEMBER TRANSFERRED TO THE FLEET RESERVE MAY ELECT TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED (1) UNDER THE PROVISIONS OF THE ACT OF AUGUST 10, 1946, AND 10 U.S.C. 6330 AND 6331, OR (2) UNDER LAWS IN EFFECT ON AUGUST 9, 1946. AT THE TIME OF HIS TRANSFER ON MAY 25, 1950, IT IS STATED THAT MONROE ELECTED TO RECEIVE RETAINER PAY COMPUTED UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, WHICH PROVIDED FOR THE PAYMENT OF RETAINER PAY AT THE ANNUAL RATE OF 2 1/2 PERCENT OF THE ANNUAL BASE AND LONGEVITY PAY RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS ACTIVE FEDERAL SERVICE, WITH AN INCREASE OF 10 PERCENT FOR ALL MEN WHO MAY BE CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY.

ALTHOUGH SECTION 516 OF THE CAREER COMPENSATION ACT DID NOT PROVIDE FOR ADDITIONAL CREDIT FOR EXTRAORDINARY HEROISM, MONROE'S RETAINER PAY UPON REVERSION TO THE RETAINER ROLLS ON OCTOBER 2, 1953, COMPUTED WITH A MULTIPLIER FACTOR OF "23" (22 YEARS 11 MONTHS AND 27 DAYS) UNDER SECTION 516 (WITHOUT THE 10 PERCENT ADDITIONAL FOR EXTRAORDINARY HEROISM), WAS MORE THAN THAT COMPUTED UNDER SECTION 204 DUE HIM AT TIME OF TRANSFER WITH A MULTIPLIER FACTOR OF "20" (19 YEARS 10 MONTHS AND 24 DAYS), PLUS 10 PERCENT FOR EXTRAORDINARY HEROISM.

SINCE SECTION 9 OF THE ACT OF AUGUST 10, 1946, AS AMENDED BY SECTION 47 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 638, CLEARLY PROVIDES THAT A MEMBER TRANSFERRED TO THE FLEET RESERVE MAY ELECT TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED (1) UNDER THE ACT OF AUGUST 10, 1946, AND 10 U.S.C. 6330 AND 6331 OR (2) UNDER LAWS IN EFFECT ON AUGUST 9, 1946, MEMBERS WHO ARE TRANSFERRED TO THE FLEET RESERVE AFTER SEPTEMBER 30, 1949, AND WHO SERVED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER, ARE ENTITLED BY REASON OF AN ELECTION TO RECEIVE RETAINER PAY UNDER THE ACT OF AUGUST 10, 1946, TO COMPUTE THAT PAY UNDER SECTIONS 6330 AND 6331 ON AND AFTER AUGUST 10, 1956.

SINCE MONROE, WHO WAS TRANSFERRED TO THE FLEET RESERVE IN 1950, ELECTED TO RECEIVE RETAINER AND RETIRED PAY UNDER THE ACT OF AUGUST 10, 1946, AND WAS NOT RETIRED PRIOR TO AUGUST 10, 1956, HIS RETAINER (AND RETIRED PAY) SHOULD BE COMPUTED UNDER 10 U.S.C. 6330 AND 6331, EFFECTIVE AUGUST 10, 1956, WHICH AUTHORIZES PAYMENT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN ADDITION TO INCREASES ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY, WITH THE UNDERSTANDING THAT 10 U.S.C. 6330 AND 6331 PROVIDE THE BASIS FOR COMPUTATION OF RETAINER AND RETIRED PAY OF PERSONS TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1956, WHERE THE MEMBERS WERE NOT RETIRED PRIOR TO THAT DATE AND COMPUTED THEIR RETAINER PAY UNDER THE FORMULA PRESCRIBED (A) IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 AS AMENDED BY THE 1946 ACT OR (B) IN SECTION 516 OF THE CAREER COMPENSATION ACT.

IN SUMMARY, IT IS OUR VIEW THAT MEMBERS (1) WHO WERE TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1956, (2) WHO WERE NOT RETIRED PRIOR TO AUGUST 10, 1956, AND (3) WHO COMPUTED THEIR RETAINER PAY UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 AND SECTION 516 OF THE CAREER COMPENSATION ACT AS OF AUGUST 9, 1956, BASED ON THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 MAY COMPUTE THEIR RETAINER PAY UNDER THE PROVISIONS OF 10 U.S.C. 6330 EFFECTIVE AUGUST 10, 1956.

SECTION 47 OF THE 1956 ACT AMENDS SECTION 9 OF THE ACT OF AUGUST 10, 1946, TO PROVIDE (1) THAT MEMBERS OF THE NAVY WHO BECOME ELIGIBLE AND APPLY FOR TRANSFER TO THE FLEET RESERVE AND (2) MEMBERS OF THE FLEET RESERVE MAY ELECT TO RECEIVE RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 10, 1946, AND 10 U.S.C. 6330, OR UNDER THE LAWS IN EFFECT ON AUGUST 9, 1946. UNLIKE SECTION 9 OF THE 1946 ACT, SECTION 47 OF THE 1956 ACT DOES NOT INCLUDE RETIRED MEMBERS. SINCE THE MEMBER WHOSE CASE WAS CONSIDERED IN B-140554, NOVEMBER 4, 1959, WAS RETIRED PRIOR TO AUGUST 10, 1956 (ON SEPTEMBER 1, 1950), HE WAS NOT ENTITLED TO THE BENEFITS OF SECTION 47 OF THE 1956 ACT. HENCE, THAT CASE PROVIDES NO BASIS FOR CONCLUDING THAT THE GENERAL ACCOUNTING OFFICE SETTLEMENT IN THE CASE OF JOHN P. ALWORTH, MENTIONED IN YOUR LETTER, WAS ERRONEOUS.

THE RECORD INDICATES THAT ALWORTH WAS TRANSFERRED TO THE FLEET RESERVE ON MAY 18, 1953. IF HE HAD BEEN RELEASED FROM ACTIVE DUTY THAT DAY, HIS RETAINER PAY WOULD HAVE BEEN COMPUTED UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 AS AMENDED BY THE 1946 ACT (UNLESS HE ELECTED TO RECEIVE RETAINER PAY UNDER LAWS IN EFFECT ON AUGUST 9, 1946) AND HE WOULD HAVE BEEN ENTITLED TO A 10-PERCENT INCREASE FOR EXTRAORDINARY HEROISM. HOWEVER, HE CONTINUED ON ACTIVE DUTY UNTIL SEPTEMBER 18, 1953. SECTION 516 OF THE CAREER COMPENSATION ACT, WHICH SUPERSEDED SECTION 208 OF THE NAVAL RESERVE ACT (SEE 39 COMP. GEN. 217 AT PAGE 218), PROVIDED FOR INCREASING THE RETAINER PAY OF A MEMBER WHO PERFORMED ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, AND IN VIEW OF ITS SPECIFIC FORMULA FOR RECOMPUTING RETAINER PAY, HIS RETAINER PAY WOULD HAVE BEEN RECOMPUTED ON THE BASIS OF ITS PROVISIONS (WITHOUT THE 10 PERCENT ADDITIONAL FOR EXTRAORDINARY HEROISM) IF THAT AMOUNT WITH A MULTIPLIER FACTOR OF "23" HAD EXCEED THE AMOUNT OF HIS RETAINER PAY COMPUTED UNDER SECTION 204 OF THE NAVAL RESERVE ACT AT THE TIME OF HIS TRANSFER WITH A MULTIPLIER FACTOR OF "22" PLUS 10 PERCENT ADDITIONAL FOR EXTRAORDINARY HEROISM. SEE 31 COMP. GEN. 547 AND 33 ID. 17.

HIS RATE OF RETAINER PAY UNDER SECTION 204 OF THE NAVAL RESERVE ACT WAS GREATER THAN RETAINER PAY COMPUTED UNDER SECTION 516 OF THE CAREER COMPENSATION ACT. SINCE ALWORTH ELECTED TO RECEIVE RETAINER AND RETIRED PAY UNDER THE ACT OF AUGUST 10, 1946, AND HAD NOT BEEN RETIRED PRIOR TO AUGUST 10, 1956, HE WAS, BY VIRTUE OF THE PROVISIONS OF SECTION 47 OF THE 1956 ACT, ENTITLED TO RETAINER PAY COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 6330, EFFECTIVE AUGUST 10, 1956, WHICH AUTHORIZES PAYMENT OF 10 PERCENT FOR EXTRAORDINARY HEROISM IN ADDITION TO INCREASES ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. THE PROVISIONS OF SECTION 49 (F) OF THE 1956 ACT, 70A STAT. 640, THAT ITS ENACTMENT "DOES NOT INCREASE OR DECREASE THE RETIRED AND RETAINER PAY OF ANY PERSON" WAS NOT REGARDED AS APPLICABLE IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 47 OF THAT ACT READ IN CONJUNCTION WITH THE SPECIFIC PROVISIONS OF 10 U.S.C. 6330. WE CONSIDERED THAT THE SPECIFIC PROVISIONS OF THOSE SECTIONS OVERCAME THE GENERAL PROVISIONS OF SECTION 49 (F) OF THE 1956 ACT.

DECISION IS ALSO REQUESTED AS TO WHETHER, UNDER SECTION 9 OF THE 1946 ACT AS AMENDED BY SECTION 47 OF THE 1956 ACT, MEMBERS MUST MAKE AN ELECTION TO RECEIVE PAY UNDER THE PROVISIONS OF THE 1946 ACT AND 10 U.S.C. 6330 AND 6331 IN ORDER TO RECEIVE THE INCREASED PAY, OR WHETHER SUCH AN ELECTION IS REQUIRED ONLY IN THOSE CASES WHERE THE MEMBERS EITHER DID NOT MAKE AN ELECTION UNDER THE 1946 ACT OR MADE AN ELECTION AT TIME OF TRANSFER TO RECEIVE PAY UNDER PROVISIONS OF LAW OTHER THAN SECTION 2 OF THAT ACT. YOU ASK FURTHER WHETHER IF AN ELECTION IS REQUIRED THERE IS ANY DEADLINE DATE BY WHICH THE ELECTION MUST BE MADE.

WE ASSUME THAT YOUR QUESTION IS PROMPTED BY THE FACT THAT SECTION 6330 PERMITS CREDIT FOR BOTH EXTRAORDINARY HEROISM AND POST-TRANSFER ACTIVE SERVICE BEGINNING AUGUST 10, 1956. THE GENERAL QUESTION OF MAKING AN ELECTION TO RECEIVE RETAINER AND RETIRED PAY UNDER THE ACT OF AUGUST 10, 1946, OR UNDER THE PRIOR LAWS, WAS CONSIDERED IN OUR DECISIONS 26 COMP. GEN. 814; B-64196, MAY 27, 1947; AND 38 COMP. GEN. 579. AS INDICATED ABOVE, MONROE BECAME ENTITLED TO RECEIVE ADDITIONAL RETAINER PAY UNDER 10 U.S.C. 6330 BEGINNING AUGUST 10, 1956, BECAUSE OF CREDIT FOR EXTRAORDINARY HEROISM AND ALWORTH BECAME ENTITLED TO ADDITIONAL PAY BECAUSE OF ADDITIONAL POST-TRANSFER ACTIVE SERVICE. SUCH ADDITIONAL PAY AUTOMATICALLY FLOWED FROM THE FACT THAT EACH OF THEM HAD ELECTED TO RECEIVE RETAINER PAY UNDER THE PROVISIONS OF THE 1946 ACT (RATHER THAN UNDER THE PROVISIONS OF PRIOR LAWS). NO NEW ELECTION IS AUTHORIZED BY EITHER SECTION 47 OF THE 1956 ACT OR 10 U.S.C. 6330, EFFECTIVE AUGUST 10, 1956, BECAUSE OF PERFORMANCE OF ACTIVE SERVICES AFTER TRANSFER TO THE FLEET RESERVE. YOUR QUESTION IS ANSWERED ACCORDINGLY.