B-149224, JUL. 26, 1962

B-149224, JUL. 26, 1962

TO COMMANDER M. M. ALEXANDER, SG.USNR:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1962, DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-659, REQUESTING A DECISION AS TO ENTITLEMENT OF FRED CAGNE, FORMER CHIEF MACHINIST'S MATE, UNITED STATES NAVY, TO RETIRED PAY UNDER THE ACT OF JULY 24, 1956, CH. 683, 70 STAT. 626.

IT IS REPORTED THAT CAGNE WAS HONORABLY DISCHARGED IN 1944 AFTER HAVING SERVED MORE THAN 22 YEARS IN THE NAVY AND MORE THAN 2 YEARS IN THE ARMY, MAKING A TOTAL OF 24 YEARS, 9 MONTHS AND 14 DAYS OF ACTIVE FEDERAL SERVICE. WHILE THE EXACT REASON WHY HE WAS NOT TRANSFERRED TO THE FLEET RESERVE AT THAT TIME IS NOT DISCLOSED, IT IS INDICATED THAT HE COULD NOT MEET THE FOLLOWING REQUIREMENT IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1179:

"PROVIDED, THAT THEY ARE PHYSICALLY AND OTHERWISE QUALIFIED TO PERFORM DUTY IN TIME OF WAR.'

THE ACT OF JULY 24, 1956, SUPRA, WAS PASSED BECAUSE OF ONE PARTICULAR CASE WHICH CAME TO THE ATTENTION OF THE CONGRESS BUT WAS MADE GENERAL IN NATURE IN ORDER TO COVER ANY OTHER SIMILAR CASES WHICH MIGHT BE DISCOVERED IN THE FUTURE. THAT ACT AUTHORIZES THE APPOINTMENT IN THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, AS APPROPRIATE, AND SUBSEQUENT TRANSFER TO THE RETIRED LIST, OF ANY FORMER MEMBER OF THE NAVY OR MARINE CORPS WHO WAS DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS AND WHO THEN HAD AT LEAST 20 YEARS OF ACTIVE FEDERAL SERVICE. THE MAN FOR WHOSE BENEFIT THE LAW WAS PASSED HAD BEEN UNABLE TO QUALIFY FOR TRANSFER TO THE FLEET RESERVE AND HAD BEEN DISCHARGED FROM THE SERVICE IN 1945, AT WHICH TIME HE HAD COMPLETED FOUR YEARS OF ARMY SERVICE, WHICH COULD NOT BE CREDITED TOWARD TRANSFER, AND 16 YEARS OF NAVAL SERVICE. HE WAS NOT PHYSICALLY QUALIFIED TO REENLIST IN THE NAVY AND COMPLETE THE REQUIRED 20 YEARS OF NAVAL SERVICE. WHETHER OR NOT HE WAS PHYSICALLY QUALIFIED "TO PERFORM DUTY IN TIME OF WAR," AS REQUIRED FOR A FLEET RESERVIST UNDER SECTION 204 OF THE NAVAL RESERVE ACT, IS NOT SHOWN IN THE LEGISLATIVE HISTORY OF THE ACT. HOWEVER, UPON APPOINTMENT IN THE FLEET RESERVE UNDER THE 1956 ACT, HE WAS ENTITLED TO BE TRANSFERRED THEREFROM TO THE RETIRED LIST UNDER CLAUSE (1), SECTION 2 OF THAT ACT.

SECTION 204 OF THE NAVAL RESERVE ACT WAS AMENDED BY THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993, WHICH, AMONG OTHER THINGS, DELETED THE REQUIREMENT FOR PHYSICAL QUALIFICATION FOR DUTY IN TIME OF WAR AND AUTHORIZED CREDITING ACTIVE DUTY IN OTHER BRANCHES OF THE MILITARY SERVICE IN ADDITION TO THAT PERFORMED IN THE NAVY FOR THE PURPOSE OF QUALIFICATION FOR TRANSFER AND IN COMPUTATION OF RETAINER AND RETIRED PAY.

WHILE THERE IS EVIDENCE IN THE LEGISLATIVE HISTORY OF THE 1956 ACT OF AN INTENT TO LIMIT ITS BENEFITS TO PERSONS WHOSE SITUATIONS WERE SIMILAR TO THAT OF THE MAN FOR WHOSE BENEFIT IT WAS PASSED (39 COMP. GEN. 890), IT IS STATED ON PAGE 1 OF SENATE REPORT NO. 2553, JULY 12,1956, TO ACCOMPANY H.R. 6729, 84TH CONGRESS, THAT THE PURPOSE OF THE LEGISLATION IS TO PROVIDE AUTHORITY FOR APPOINTMENT IN THE FLEET RESERVE AND FURTHER TRANSFER TO THE RETIRED RESERVE, WITH PAY, OF FORMER MEMBERS WHO WERE DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, BUT WITH 20 OR MORE YEARS OF ACTIVE FEDERAL SERVICE AT THAT TIME. HENCE, THE CONCLUSION APPEARS WARRANTED THAT THE INTENT OF THE CONGRESS WAS TO GRANT RETIREMENT BENEFITS TO CAREER MEN WHO WERE DISCHARGED RATHER THAN TRANSFERRED TO THE FLEET RESERVE BEFORE AUGUST 10, 1946, BUT WHOSE SERVICE AND CIRCUMSTANCES WOULD HAVE ENTITLED THEM TO TRANSFER UNDER THE NAVAL RESERVE ACT AS AMENDED BY THE ACT OF AUGUST 10, 1946, SUPRA. FRED CAGNE APPEARS TO BE IN THAT CATEGORY AND THEREFORE, IS ENTITLED TO THE RETIREMENT BENEFITS OF THE 1956 LAW.