B-146128, JUL. 24, 1961

B-146128: Jul 24, 1961

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IS ENTITLED TO RETIRED PAY AS AN OFFICER FROM JULY 1. IT IS STATED THAT MCKOWN WAS TRANSFERRED TO THE FLEET RESERVE. WAS RELEASED TO INACTIVE DUTY THE SAME DATE. THE MEMBER WAS PLACED ON THE RETIRED LIST BY REASON OF COMPLETION OF 30 YEARS' SERVICE AND ADVANCED TO THE RANK OF CHIEF WARRANT OFFICER (W-2) PURSUANT TO 10 U.S.C. 6151. IT IS FURTHER REPORTED THAT. THE MEMBER'S RETIRED PAY WAS ADJUSTED TO THE GROSS MONTHLY RATE OF $156.27. THAT HIS PAY WAS INCREASED BY 6 PERCENT TO $165.65 BEGINNING JUNE 1. THE MEMBER'S PAY WAS INCREASED TO $186.70 UNDER THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT. IT IS STATED THAT THE 6 PERCENT INCREASE PROVIDED IN SECTION 3 (C) OF THE ACT OF MAY 20.

B-146128, JUL. 24, 1961

TO LIEUTENANT COMMANDER E. L. TRUAX, SC, USN:

YOUR PREDECESSOR'S LETTER OF APRIL 10, 1961, AND INDORSEMENTS, PRESENTS FOR DECISION, UNDER THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NUMBER DO-N-584, THE QUESTION WHETHER CHIEF WARRANT OFFICER (W-2) THOMAS W. MCKOWN, U.S. NAVY, RETIRED, 377587, IS ENTITLED TO RETIRED PAY AS AN OFFICER FROM JULY 1, 1957, DATE OF HIS RETIREMENT, COMPUTED UNDER 10 U.S.C. 6151 (C).

IT IS STATED THAT MCKOWN WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F-6, ON AUGUST 16, 1948, UNDER SECTION 2 OF PUBLIC LAW 720, APPROVED AUGUST 10, 1946, 60 STAT. 993, IN THE RATING OF ADC (CHIEF PETTY OFFICER), AND WAS RELEASED TO INACTIVE DUTY THE SAME DATE. YOU SAY THAT ON DATE OF TRANSFER HE HAD COMPLETED 19 YEARS, 6 MONTHS AND 28 DAYS' ACTUAL ACTIVE SERVICE AND 21 YEARS, 1 MONTH AND 1 DAY FOR BASIC PAY PURPOSES, WHICH INCLUDES 1 YEAR, 6 MONTHS AND 3 DAYS' SERVICE IN THE NATIONAL GUARD; THAT ON JULY 1, 1957, THE MEMBER WAS PLACED ON THE RETIRED LIST BY REASON OF COMPLETION OF 30 YEARS' SERVICE AND ADVANCED TO THE RANK OF CHIEF WARRANT OFFICER (W-2) PURSUANT TO 10 U.S.C. 6151.

IT IS FURTHER REPORTED THAT, EFFECTIVE JULY 1, 1957, THE MEMBER'S RETIRED PAY WAS ADJUSTED TO THE GROSS MONTHLY RATE OF $156.27, BASED ON HIS OFFICER'S RANK (W-2), REPRESENTING PAY COMPUTED UNDER SECTION 511 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829; THAT HIS PAY WAS INCREASED BY 6 PERCENT TO $165.65 BEGINNING JUNE 1, 1958, UNDER THE ACT OF MAY 20, 1958, 72 STAT. 128, AND THAT HE COMPLETED 30 YEARS DAY BY DAY SERVICE WITHIN THE MEANING OF SECTION 511 OF THE CAREER COMPENSATION ACT ON JANUARY 18, 1959. ON JANUARY 19, 1959, THE MEMBER'S PAY WAS INCREASED TO $186.70 UNDER THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT. IT IS STATED THAT THE 6 PERCENT INCREASE PROVIDED IN SECTION 3 (C) OF THE ACT OF MAY 20, 1958, WAS NOT INCLUDED IN SUCH PAY.

ON JULY 1, 1957, THE DATE THE MEMBER IS STATED TO HAVE BEEN PLACED ON THE RETIRED LIST BY REASON OF COMPLETION OF 30 YEARS' SERVICE, WITH CONCURRENT ADVANCEMENT TO THE RANK OF CHIEF WARRANT OFFICER (W-2), THE PERTINENT PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, HAD BEEN RESTATED AND REPLACED BY THE APPLICABLE PROVISIONS OF THE ACT OF AUGUST 10, 1956, AND CODIFIED IN TITLE 10, U.S. CODE, EFFECTIVE AUGUST 10, 1956, SEE 38 COMP. GEN. 110, 113. IT FOLLOWS THAT THE MEMBER'S TRANSFER TO THE RETIRED LIST ON JULY 1, 1957, WAS ACCOMPLISHED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6331.

SECTION 6331 (A) PROVIDES THAT A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, (IF HE WAS A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS AT TIME OF TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE) SHALL BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS "WHEN HE HAS COMPLETED 30 YEARS OF SERVICE.' SECTION 6331 (B) PROVIDES THAT, FOR THE PURPOSE OF TRANSFERRING A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS,"HIS YEARS OF ACTIVE AND INACTIVE SERVICE IN THE ARMED FORCES BEFORE HIS TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE NOT CREDITED TO HIM UPON THAT TRANSFER" ARE ADDED TO THE SERVICE PREVIOUSLY CREDITED FOR TRANSFER TO THE FLEET RESERVE.

THE TERM "ARMED FORCES" IS DEFINED IN 10 U.S.C. 101 AS MEANING "THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD.' IN 10 U.S.C. 3062 (C) IT IS STATED THAT THE ARMY CONSISTS OF "THE REGULAR ARMY, THE ARMY NATIONAL GUARD OF THE UNITED STATES, THE ARMY NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, AND THE ARMY RESERVE.' ASSUMING THAT MCKOWN WAS A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD OF 1 YEAR, 6 MONTHS, AND 3 DAYS THAT HE WAS A MEMBER OF THE NATIONAL GUARD, SUCH SERVICE MAY BE COUNTED AS SERVICE FOR THE PURPOSE OF A MEMBER'S TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST UNDER 10 U.S.C. 6331.

AN ENLISTED MAN OF THE NAVY WHO WAS TRANSFERRED TO THE FLEET RESERVE BEFORE OCTOBER 1, 1949, BECAME ENTITLED, ON OCTOBER 1, 1949, TO RECEIVE RETAINER PAY COMPUTED UNDER METHOD (A) OR (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT. SUCH AN ENLISTED MEMBER, UPON SUBSEQUENTLY BEING TRANSFERRED TO THE RETIRED LIST OF THE NAVY, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6331 (A), IS ENTITLED TO RECEIVE RETIRED PAY IN THE AMOUNT PRESCRIBED IN SECTION 6331 (C) AND, IF ADVANCED TO A HIGHER GRADE ON THE RETIRED LIST AS PROVIDED IN SECTION 6151 (A), BECOMES ENTITLED TO RECEIVE RETIRED PAY "AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY" OF THE GRADE TO WHICH ADVANCED AS PROVIDED IN SECTION 6151 (C). THE RATES OF "BASIC PAY" REFERRED TO WERE THOSE IN EFFECT ON AUGUST 10, 1956, DATE OF ENACTMENT OF TITLE 10, U.S.C. THOSE RATES ARE THE RATES PRESCRIBED IN THE CAREER COMPENSATION ACT, AS AMENDED. SUCH RATES PROPERLY ARE TO BE USED IN COMPUTING RETIRED PAY UNDER THE FORMULA PRESCRIBED IN SECTION 6151 (C).

HENCE, BASED ON THE RATES OF PAY IN EFFECT WHEN THE MEMBER COMPLETED 30 YEARS OF SERVICE AS COMPUTED UNDER 10 U.S.C. 6331, HE IS ENTITLED TO RETIRED PAY AS A WARRANT OFFICER (W-2), AT THE RATE OF $186.70 PER MONTH FROM THAT DATE THROUGH MAY 31, 1958, AND AT THE RATE OF $197.90, BEGINNING JUNE 1, 1958, UNDER THE ACT OF MAY 20, 1958. YOUR QUESTION IS ANSWERED ACCORDINGLY.

THE CLAIM OF CHIEF WARRANT OFFICER JOSEPH G. BERNARD WILL BE RECONSIDERED ON THE BASIS OF THIS DECISION.