B-147085, OCTOBER 13, 1961, 41 COMP. GEN. 238

B-147085, OCTOBER 13, 1961, 41 COMP. GEN. 238

PAY - SERVICE CREDITS - ENLISTED SERVICE - MINORITY ENLISTMENT EFFECT--- PAY - RETIRED - FLEET RESERVISTS - THIRTY-YEAR SERVICE REQUIREMENT ALTHOUGH THE 30-YEAR SERVICE REQUIREMENT FOR COMPUTATION OF RETIRED PAY ON THE HIGHEST GRADE HELD UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949 SEEMS TO INCLUDE ONLY SERVICE ACTUALLY PERFORMED, THE SECTION MENTIONS "SERVICE REQUIRED BY EXISTING LAW; " THEREFORE, SINCE THE CONSTRUCTIVE SERVICE AUTHORIZED IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 FOR MINORITY ENLISTMENTS TERMINATED WITHIN 3 MONTHS OF AN ENLISTMENT TERM WAS CREDITABLE FOR ALL PURPOSES INCLUDING THE 30 YEARS OF SERVICE REQUIRED FOR TRANSFER OF FLEET RESERVISTS TO THE RETIRED LIST UNDER SECTION 203 OF THE 1938 ACT, THERE IS A BASIS FOR THE HOLDING IN JOHNSON V. UNITED STATES, CT.1CL. NO. 217-56, DECIDED MAY 31, 1961, THAT CONSTRUCTIVE SERVICE CREDIT IN SAID SECTION 202 IS FOR INCLUSION IN DETERMINING THE DATE A NAVY MEMBER COMPLETES 30 YEARS OF SERVICE FOR COMPUTATION OF RETIRED PAY UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT AND, HENCE, THAT DECISION WILL BE FOLLOWED IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS AND IN THE AUDIT OF PAYMENTS MADE BY THE NAVY OR MARINE CORPS IN SIMILAR CASES. THE RIGHT OF NAVY OR MARINE CORPS MEMBERS TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE TO INCREASED RETIRED OR RETAINER PAY UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, BASED ON THE HIGHEST GRADE SATISFACTORILY HELD, AS DETERMINED BY THE SECRETARY OF THE NAVY, ARISES WHEN THE MEMBER MEETS THE 30-YEAR SERVICE REQUIREMENT AND IS NOT DEPENDENT UPON APPOINTMENT OR ADVANCEMENT TO SUCH HIGHER GRADE; THEREFORE, A FLEET RESERVIST WHO ON THE BASIS OF CONSTRUCTIVE SERVICE CREDIT FOR A MINORITY ENLISTMENT COMPLETED 30 YEARS OF SERVICE ON DECEMBER 8, 1955, AND WHO WAS ADVANCED TO THE GRADE OF LIEUTENANT ON JANUARY 1, 1956--- THE DATE HE WAS PLACED ON THE RETIRED LIST--- IS ENTITLED TO HAVE HIS RETAINER PAY COMPUTED UNDER METHOD (B) OF SECTION 511 ON THE GRADE OF LIEUTENANT FROM DECEMBER 9, 1955.

TO LIEUTENANT COMMANDER E. L. TRAUX, DEPARTMENT OF THE NAVY, OCTOBER 13, 1961:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1961, FORWARDED HERE BY ENDORSEMENT OF AUGUST 30, 1961, OF THE COMPTROLLER OF THE NAVY, REQUESTING DECISION CONCERNING THE RETIRED PAY STATUS OF LIEUTENANT EARNEST L. MCCLOUD, U.S. NAVY, RETIRED. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. DO- N-600 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT LIEUTENANT MCCLOUD WAS TRANSFERRED TO THE FLEET RESERVE ON FEBRUARY 19, 1947, AND RELEASED TO INACTIVE DUTY ON THAT SAME DATE. THE ENCLOSURE TO YOUR LETTER INDICATES THAT HE HAD 21 YEARS 2 MONTHS AND 11 DAYS' SERVICE FOR TRANSFER PURPOSES, THEREBY REFLECTING CREDIT OF CONSTRUCTIVE SERVICE FOR HIS MINORITY ENLISTMENT AS AUTHORIZED BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854A (1952 USED.). LIEUTENANT MCCLOUD COMPLETED 20 YEARS 11 MONTHS AND 18 DAYS OF ACTUAL ACTIVE SERVICE ON FEBRUARY 19, 1947.

YOU ALSO STATE THAT LIEUTENANT MCCLOUD WAS PLACED ON THE RETIRED LIST OF THE NAVY EFFECTIVE JANUARY 1, 1956, BY REASON OF COMPLETION OF 30 YEARS' SERVICE AND ADVANCED TO THE RANK OF LIEUTENANT; THAT HE WAS PAID RETIRED PAY UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, BASED ON THE RANK OF LIEUTENANT FOR THE PERIOD JANUARY 1 TO MARCH 1, 1956, INCLUSIVE; THAT HE COMPLETED 30 YEARS OF ACTUAL SERVICE (20 YEARS 11 MONTHS AND 18 DAYS' ACTIVE NAVAL SERVICE AND 9 YEARS AND 12 DAYS' INACTIVE SERVICE IN THE FLEET RESERVE) ON MARCH 1, 1956, AND THAT HE HAS BEEN RECEIVING RETIRED PAY AS A LIEUTENANT UNDER METHOD (B) OF SECTION 511 FROM MARCH 2, 1956.

YOU POINT OUT THAT IF LIEUTENANT MCCLOUD'S CONSTRUCTIVE SERVICE OF 2 MONTHS AND 23 DAYS (21 YEARS 2 MONTHS AND 11 DAYS LESS 20 YEARS 11 MONTHS AND 18 DAYS) MAY BE COUNTED IN DETERMINING THE DATE HE COMPLETED 30 YEARS' SERVICE FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THE 1949 LAW,"HE WOULD HAVE COMPLETED SUCH SERVICE ON 8 DECEMBER 1955.' HENCE, THE FIRST QUESTION PRESENTED IN YOUR LETTER IS WHETHER THAT PART OF THE DECISION RENDERED ON MAY 3, 1961, IN THE CASE OF JOHNSON V. UNITED STATES, CT.1CL. NO. 217-56, 289 F.2D 829, (WHICH HELD THAT CONSTRUCTIVE SERVICE CREDITED UNDER SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 MAY BE INCLUDED IN DETERMINING THE DATE A MEMBER COMPLETED 30 YEARS OF SERVICE FOR THE PURPOSE OF COMPUTING RETIRED PAY IN ACCORDANCE WITH METHOD (B) OF SECTION 511 OF THE 1949 LAW) MAY BE FOLLOWED.

AS INDICATED ABOVE, IT WAS HELD IN THE JOHNSON DECISION OF MAY 3, 1961, THAT THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 (WHICH PROVIDED THAT A COMPLETE ENLISTMENT DURING MINORITY WOULD COUNT "AS FOUR YEARS' SERVICE" AND ANY ENLISTMENT TERMINATED WITHIN 3 MONTHS PRIOR TO EXPIRATION OF THE TERM OF SUCH ENLISTMENT WAS TO BE COUNTED "AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED" ( COULD BE INCLUDED BY JOHNSON IN COMPUTING THE 30 YEARS OF SERVICE REQUIRED BY THE NEXT TO THE LAST PROVISO OF SECTION 511 OF THE 1949 LAW. ALTHOUGH WE FEEL THAT THE 30 YEARS OF SERVICE SO REQUIRED INCLUDES ONLY SERVICE ACTUALLY PERFORMED WITHIN THE MEANING OF THE TERM "ACTIVE SERVICE" AS USED IN SECTION 511, IT IS TO BE NOTED THAT THE SERVICE THERE MENTIONED IS THAT "REQUIRED BY EXISTING LAW.' THE 1938 ACT WAS A PART OF THE EXISTING LAW IN 1949. THE CONSTRUCTIVE SERVICE MENTIONED IN SECTION 202 OF THE 1938 ACT WAS CREDITABLE FOR ALL PURPOSES OF THAT ACT INCLUDING THE 30 YEARS OF SERVICE REQUIRED FOR TRANSFER OF A MEMBER OF THE FLEET RESERVE TO THE RETIRED LIST UNDER SECTION 204 OF THAT ACT, 34 U.S.C. 854C (1952 USED.). THUS, THERE IS SOME BASIS FOR THE VIEW THAT, INSOFAR AS THE MATTER OF CONSTRUCTIVE SERVICE AUTHORIZED BY SECTION 202 OF THE 1938 ACT IS CONCERNED, THE YEARS OF SERVICE "REQUIRED BY EXISTING LAW" INCLUDES THE YEARS OF SERVICE CREDITABLE UNDER SECTION 204 OF THE 1938 ACT FOR TRANSFER TO THE RETIRED LIST.

ACCORDINGLY, AND SINCE WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT NO FURTHER ACTION WILL BE TAKEN WITH RESPECT TO THE JOHNSON DECISION OF MAY 3, 1961, IT IS CONCLUDED THAT THE RULE OF THE JOHNSON CASE, INCLUDING THE "CONSTRUCTIVE SERVICE" HOLDING OF THAT DECISION, WILL BE FOLLOWED BY THIS OFFICE, BOTH IN THE SETTLEMENT HERE OF SOME SIMILAR CLAIMS AND ALSO IN THE AUDIT OF PAYMENTS WHICH MAY BE MADE BY THE NAVY OR MARINE CORPS IN OTHER SIMILAR CASES. YOUR FIRST QUESTION IS ANSWERED AFFIRMATIVELY.

IN THE EVENT OF AN AFFIRMATIVE ANSWER TO THE ABOVE, YOU REQUEST A DECISION "AS TO WHETHER, IN VIEW OF THE WORDING OF SECTION 511 * * * LT. MCCLOUD IS ENTITLED TO PAY BASED ON HIS OFFICER'S RANK, UNDER SECTION 511 (B) FROM 9 DECEMBER 1955, OR ONLY FROM 1 JANUARY 1956, THE DATE OF HIS RETIREMENT.'

SECTION 511 IN PERTINENT PART PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES THERETOFORE TRANSFERRED (THAT IS, PRIOR TO OCTOBER 1, 1949) TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE SHALL BE ENTITLED TO RECEIVE RETIRED AND RETAINER PAY IN THE AMOUNT WHICHEVER IS GREATER COMPUTED BY METHOD (A) OR METHOD (B). UNDER METHOD (A) THE MEMBER IS ENTITLED TO MONTHLY RETIRED OR RETAINER PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBER BY THE PROVISIONS OF LAW WHICH WERE IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE 1949 LAW. METHOD (B) OF SECTION 511 ENTITLES SUCH A PERSON TO MONTHLY RETIRED OR RETAINER PAY

* * * EQUAL TO 2 1/2 PERCENT OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.

THE METHOD (B) FORMULA ABOVE SET FORTH IS SUBJECT TO THE RESTRICTIONS IMPOSED IN THE NEXT TO THE LAST PROVISO OF SECTION 511, WHICH IN PERTINENT PART IS AS FOLLOWS:

* * * ENLISTED PERSONS OR FORMER ENLISTED PERSONS OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO HAVE BEEN TRANSFERRED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION ( OCTOBER 1, 1949) TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF TITLE II OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SHALL NOT BE ENTITLED TO HAVE THEIR RETIRED PAY OR RETAINER PAY COMPUTED ON THE BASIS OF THE HIGHEST OFFICER OR WARRANT- OFFICER GRADE HELD BY THEM AS AUTHORIZED BY THIS SECTION UNTIL THEY HAVE COMPLETED THIRTY YEARS OF SERVICE, TO INCLUDE THE SUM OF THEIR ACTIVE SERVICE AND THEIR SERVICE ON THE RETIRED LIST OR IN THE FLEET RESERVE OR IN THE FLEET MARINE CORPS RESERVE, AS REQUIRED BY EXISTING LAW.

THE RIGHT TO RECEIVE INCREASED RETAINER PAY UNDER THE ABOVE-QUOTED STATUTORY PROVISIONS IS DEPENDENT UPON A DETERMINATION BY THE SECRETARY CONCERNED ESTABLISHING THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, SATISFACTORILY HELD BY SUCH MEMBER AND, WITH RESPECT TO THE HIGHEST OFFICER OR WARRANT-OFFICER GRADE, ARISES UPON MEETING THE 30 YEARS OF SERVICE REQUIREMENT PRESCRIBED IN THE NEXT TO THE LAST PROVISO OF SECTION 511. THE RIGHT TO RECEIVE RETAINER PAY BASED ON THE HIGHEST GRADE SATISFACTORILY HELD, AS DETERMINED BY THE SECRETARY CONCERNED, IS NOT MADE DEPENDENT UPON APPOINTMENT OR ADVANCEMENT TO SUCH HIGHER GRADE -- SUCH RIGHT ACCRUES UPON MEETING THE CONDITIONS PRESCRIBED IN SECTION 511. CF. 30 COMP. GEN. 312. SEE DECISION OF MAY 8, 1957; IN HARBAY V. UNITED STATES, 138 CT.1CL. 284, WHERE THE COURT STATED:

WE AGREE WITH DEFENDANT ( GOVERNMENT) THAT SECTION 511 OF THE CAREER COMPENSATION ACT DID NOT PERMIT PERSONS THERETOFORE RETIRED OR TRANSFERRED TO THE FLEET RESERVE TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST FEDERALLY RECOGNIZED RANK OR GRADE HELD BY THEM AT ANY TIME, BUT SECTION 511 DID EXPRESSLY PERMIT SUCH "HERETOFORE" RETIRED OR TRANSFERRED PERSONS TO COMPUTE THEIR RETIRED OR RETAINER PAY BY THE METHOD PROVIDED IN SECTION 511 (B) OF THE 1949 ACT ON THE BASIS OF THE HIGHEST FEDERALLY RECOGNIZED RANK OR GRADE HELD BY THEM AT ANY TIME.

THE STATEMENT IN YOUR LETTER CONCERNING THE ADVANCEMENT OF LIEUTENANT MCCLOUD TO THE GRADE OF LIEUTENANT EFFECTIVE JANUARY 1, 1956, THE DATE HE WAS PLACED ON THE RETIRED LIST, WOULD APPEAR TO BE BASED UPON A DETERMINATION BY THE SECRETARY OF THE NAVY THAT THE HIGHEST FEDERALLY RECOGNIZED RANK OR GRADE "SATISFACTORILY HELD" BY LIEUTENANT MCCLOUD AND IN WHICH HE SERVED SATISFACTORILY WAS THAT OF LIEUTENANT. SEE CAIRNES, ET AL. V. UNITED STATES, 130 CT.1CL. 776 (1955). ACCORDINGLY, LIEUTENANT MCCLOUD, UPON MEETING THE 30 YEARS OF SERVICE REQUIREMENT PRESCRIBED IN THE NEXT TO THE LAST PROVISO OF SECTION 511, BECAME ENTITLED TO HAVE HIS RETAINER PAY COMPUTED UNDER METHOD (B) OF THAT SECTION ON THE BASIS OF THE GRADE OF LIEUTENANT BEGINNING DECEMBER 9, 1955.