B-151790, JULY 11, 1963, 43 COMP. GEN. 44

B-151790: Jul 11, 1963

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1956 A FORMER ENLISTED MEMBER OF THE COAST GUARD RESERVE WHO WAS RELEASED FROM ACTIVE DUTY PRIOR TO THE ACT OF AUGUST 10. EXTENDING FLEET RESERVE APPOINTMENTS TO NAVY ENLISTED MEMBERS WHO DID NOT HAVE 20 YEARS OF ACTIVE SERVICE ENTIRELY IN THE NAVY OR MARINE CORPS MAY NOT BE CONSIDERED TO HAVE ANY RETIREMENT BENEFITS UNDER THE 1956 ACT. IN THE ABSENCE OF ANY COMPONENT IN THE COAST GUARD COMPARABLE TO THE FLEET RESERVE TO WHICH THE MEMBER COULD BE APPOINTED THERE IS NO AUTHORITY FOR PLACEMENT OF THE MEMBER ON THE RETIRED LIST UNDER THE 1956 ACT. 1963: REFERENCE IS MADE TO LETTER OF JUNE 11. THE QUESTIONS ARE AS FOLLOWS: (1) MAY ROGERS BE PLACED ON THE RETIRED LIST OF THE U.S. WITH APPROPRIATE PAY? (2) IF ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE.

B-151790, JULY 11, 1963, 43 COMP. GEN. 44

PAY - RETIRED - FLEET RESERVISTS - APPLICATION OF THE ACT OF JULY 24, 1956 A FORMER ENLISTED MEMBER OF THE COAST GUARD RESERVE WHO WAS RELEASED FROM ACTIVE DUTY PRIOR TO THE ACT OF AUGUST 10, 1946, WHICH PROVIDED FOR TRANSFER OF ENLISTED MEMBERS OF THE REGULAR NAVY WITH 20 YEARS OF SERVICE TO THE FLEET RESERVE, AND WHO SEEKS PLACEMENT ON THE RETIRED LIST BY REASON OF THE COAST GUARD RESERVE ASSIMILATION AUTHORITY IN 14 U.S.C. 755 (A) UNDER THE ACT OF JULY 24, 1956, 10 U.S.C. 6330 NOTE, EXTENDING FLEET RESERVE APPOINTMENTS TO NAVY ENLISTED MEMBERS WHO DID NOT HAVE 20 YEARS OF ACTIVE SERVICE ENTIRELY IN THE NAVY OR MARINE CORPS MAY NOT BE CONSIDERED TO HAVE ANY RETIREMENT BENEFITS UNDER THE 1956 ACT, WHICH PRESCRIBED BENEFITS FOR REGULAR NAVY MEMBERS AS DISTINGUISHED FROM NAVAL RESERVE MEMBERS, AND IN THE ABSENCE OF ANY COMPONENT IN THE COAST GUARD COMPARABLE TO THE FLEET RESERVE TO WHICH THE MEMBER COULD BE APPOINTED THERE IS NO AUTHORITY FOR PLACEMENT OF THE MEMBER ON THE RETIRED LIST UNDER THE 1956 ACT.

TO THE SECRETARY OF THE TREASURY, JULY 11, 1963:

REFERENCE IS MADE TO LETTER OF JUNE 11, 1963, FROM THE ASSISTANT SECRETARY OF THE TREASURY REQUESTING DECISION ON TWO QUESTIONS CONCERNING THE PROPRIETY OF PLACING WILLIAM SCOVILLE ROGERS, FORMER CHIEF MACHINIST, UNITED STATES COAST GUARD RESERVE, ON THE RETIRED LIST OF THE COAST GUARD, WITH APPROPRIATE RETIRED PAY, UNDER THE CIRCUMSTANCES OUTLINED IN THE ACCOMPANYING MEMORANDUM OF THE ACTING COMMANDANT OF THE COAST GUARD. THE QUESTIONS ARE AS FOLLOWS:

(1) MAY ROGERS BE PLACED ON THE RETIRED LIST OF THE U.S. COAST GUARD, WITH APPROPRIATE PAY?

(2) IF ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE, WHAT WILL BE THE PROPER RANK AND RATE OF RETIRED PAY?

IT APPEARS FROM THE DISCUSSION CONTAINED IN THE MEMORANDUM THAT THE MATTER FOR DETERMINATION IS WHETHER HIS RETIREMENT MAY BE EFFECTED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1956, CH. 683, 70 STAT. 626, 34 U.S.C. 854C-1 (1952 ED., SUPP. V).

THE STATEMENT OF SERVICE FURNISHED SHOWS THAT WILLIAM SCOVILLE ROGERS ENLISTED IN THE UNITED STATES NAVAL RESERVE ON MAY 6, 1918; THAT HE IMMEDIATELY ENTERED ON ACTIVE DUTY; AND THAT HE WAS RELEASED FROM ACTIVE DUTY ON SEPTEMBER 8, 1920. HE ENLISTED IN THE REGULAR NAVY ON OCTOBER 9, 1920, AND CONTINUED TO SERVE IN THE NAVY, WITH ONLY SLIGHT INTERRUPTION, UNTIL JULY 20, 1928, WHEN HE WAS DISCHARGED. HE ENLISTED IN THE REGULAR COAST GUARD ON JULY 25, 1928, AND SERVED CONTINUOUSLY, WITH SLIGHT INTERRUPTION, UNTIL SEPTEMBER 16, 1937, WHEN HE WAS DISCHARGED. ENLISTED IN THE COAST GUARD RESERVE ON MAY 27, 1941, AND IMMEDIATELY ENTERED ON ACTIVE DUTY.

ON AUGUST 5, 1943, HE WAS APPOINTED AS A WARRANT OFFICER IN THE COAST GUARD RESERVE FOR TEMPORARY SERVICE AND ON NOVEMBER 11, 1944, HE WAS APPOINTED A CHIEF WARRANT OFFICER IN THE RESERVE FOR TEMPORARY SERVICE. ON JANUARY 11, 1946, HE DEPARTED ON 4 DAYS' LEAVE AND 1 DAY'S TRAVEL TIME AT THE EXPIRATION OF WHICH HE WAS RELEASED FROM ACTIVE DUTY. ON THE SAME DAY (JANUARY 11, 1946) HE WAS APPOINTED AS A PERMANENT CHIEF WARRANT OFFICER IN THE COAST GUARD RESERVE. IT IS INDICATED THAT DURING THE 3 YEARS FOLLOWING HIS APPOINTMENT AS PERMANENT CHIEF WARRANT OFFICER HE HAD NO ACTIVE DUTY, AND THAT HIS APPOINTMENT EXPIRED ON JANUARY 10, 1949, AND HE WAS DISCHARGED. IT IS STATED THAT AT SUCH TIME HE HAD OVER 22 YEARS OF ACTIVE SERVICE AND OVER 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES INCLUDING HIS INACTIVE SERVICE; THAT HE IS NOT AT PRESENT A MEMBER OF ANY MILITARY SERVICE; AND THAT HE HAS REQUESTED RETIREMENT BY LETTER DATED NOVEMBER 6, 1961.

THE SECOND PARAGRAPH OF THE MEMORANDUM RELATING TO THE CASE OF WILLIAM SCOVILLE ROGERS READS AS FOLLOWS:

IT APPEARS THAT HE DOES NOT QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 1331 ET SEQ., AS THE LAST EIGHT YEARS OF HIS SERVICE WAS NOT IN THE RESERVE. HE LACKS SLIGHTLY OVER FOUR MONTHS OF THE NECESSARY TIME. HE DOES NOT QUALIFY FOR RETIREMENT AS A TWENTY-YEAR WARRANT OFFICER, AS 10 U.S.C. 1293 (THE WARRANT OFFICER ACT OF 1954) WAS NOT IN EFFECT IN EITHER 1946 OR 1949. HE DOES NOT QUALIFY FOR RETIREMENT UNDER 34 U.S.C. (1946 ED.) 410B, MADE APPLICABLE TO THE COAST GUARD BY 14 U.S.C. (1946 ED.) 162A, SINCE HE DID NOT HAVE TEN YEARS COMMISSIONED SERVICE BY SEVERAL YEARS.

IN THIS CONNECTION IT IS TO BE NOTED THAT HE DOES NOT QUALIFY FOR RETIREMENT UNDER SUBSECTION (F) OF SECTION 755, TITLE 14, U.S.C. CODE, RELATING TO FORMER MEMBERS OF THE COAST GUARD RESERVE, AS THE LAST 10 YEARS OF HIS ACTIVE SERVICE WAS NOT SERVED IN THE 11-YEAR PERIOD IMMEDIATELY PRECEDING HIS DISCHARGE.

THE ACT OF JULY 24, 1956, CH. 683, 70 STAT. 626, PROVIDES---

THAT UPON APPLICATION BY ANY FORMER MEMBER OF THE NAVY OR MARINE CORPS---

(1) WHO WAS DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND

(2) WHO, AT THE TIME OF HIS DISCHARGE, HAD AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE,

THE SECRETARY OF THE NAVY SHALL APPOINT SUCH FORMER MEMBER IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AS MAY BE APPROPRIATE, IN THE RANK HELD BY HIM AT THE TIME OF SUCH DISCHARGE.

SEC. 2. EACH PERSON APPOINTED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER THE FIRST SECTION OF THIS ACT SHALL BE TRANSFERRED TO THE APPROPRIATE RETIRED LIST (1) ON THE FIRST DAY OF THE FIRST CALENDAR MONTH BEGINNING AFTER SUCH APPOINTMENT, IF HIS LAST DISCHARGE OCCURRED TEN OR MORE YEARS PRIOR TO THE DATE OF SUCH APPOINTMENT, AND (2) IN THE CASE OF INDIVIDUALS APPOINTED UNDER SUCH SECTION BEFORE THE EXPIRATION OF TEN YEARS FROM THEIR LAST DISCHARGE, ON THE FIRST DAY OF THE FIRST CALENDAR MONTH, BEGINNING AFTER THE EXPIRATION OF TEN YEARS FROM THE DATE OF SUCH DISCHARGE.

SEC. 3. EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSES (1) AND (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE, MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE FEDERAL SERVICE AT SUCH TIME (NOT TO EXCEED THIRTY), AND ADJUSTED TO REFLECT THE PERCENTAGE INCREASES MADE SINCE SUCH DISCHARGE IN THE RETIRED PAY OF PERSONS RETIRED FROM THE ARMED FORCES PRIOR TO OCTOBER 12, 1949.

SEC. 4. FOR THE PURPOSES OF THIS ACT, ALL ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF, SHALL BE DEEMED TO BE ACTIVE FEDERAL SERVICE.

SEC. 5. NO PAY SHALL ACCRUE TO THE BENEFIT OF ANY PERSON APPOINTED UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE DATE SUCH PERSON IS ACTUALLY APPOINTED UNDER THE PROVISIONS OF THIS ACT AND IN NO EVENT PRIOR TO THE FIRST DAY OF THE FIRST MONTH FOLLOWING ENACTMENT OF THIS ACT.

THIS ACT NOW APPEARS AS A NOTE TO 10 U.S.C. 6330 (1958 ED.).

SUBSECTION (E) OF SECTION 755, TITLE 14, U.S. CODE, PROVIDES AS FOLLOWS:

MEMBERS OF THE COAST GUARD RESERVE SHALL BE ENTITLED TO THE SAME RETIREMENT BENEFITS AS PRESCRIBED BY LAW FOR PERSONNEL OF THE NAVY RESERVE, AND WHEREVER ANY SUCH LAW CONFERS AUTHORITY UPON THE SECRETARY OF THE NAVY, SIMILAR AUTHORITY SHALL BE DEEMED GIVEN TO THE SECRETARY OF THE TREASURY TO BE EXERCISED WITH RESPECT TO THE COAST GUARD WHEN THE COAST GUARD IS OPERATING UNDER THE TREASURY DEPARTMENT.

SECTION 2 OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993, AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1179, 34 U.S.C. 854C (1952 ED.), TO PROVIDE, AMONG OTHER THINGS, FOR THE TRANSFER OF CERTAIN ENLISTED MEMBERS OF THE NAVY TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE (WITH RETAINER PAY AT THE ANNUAL RATE OF 2 1/2 PERCENT OF THE ANNUAL BASE AND LONGEVITY PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE) AND FOR THE SUBSEQUENT TRANSFER OF SUCH MEMBERS TO THE RETIRED LIST OF THE REGULAR NAVY UPON THE COMPLETION OF 30 YEARS' SERVICE. ,ACTIVE FEDERAL SERVICE" WAS THERE DEFINED AS INCLUDING ALL ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF.' IN OTHER WORDS, UNDER THE PROVISIONS OF THE 1946 ACT ENLISTED MEMBERS OF THE REGULAR NAVY AND THE REGULAR MARINE CORPS WERE ALLOWED CREDIT FOR THEIR ACTIVE SERVICE PERFORMED IN OTHER SERVICES TOWARD COMPUTATION OF TIME REQUIRED FOR TRANSFER TO THE FLEET RESERVE OR TO THE FLEET MARINE CORPS RESERVE AND FOR LATER ENTITLEMENT TO RETIRED PAY. AT THAT TIME ENLISTED MEN OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE WERE NOT AUTHORIZED TO BE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE. SEE THE ACT OF AUGUST 1, 1958, PUB.L. 85-583, 72 STAT. 480, 10 U.S.C. 6327.

THE ACT OF JULY 24, 1956, WAS INTENDED TO AUTHORIZE THE APPOINTMENT TO THE FLEET RESERVE OR TO THE FLEET MARINE CORPS RESERVE AND THE SUBSEQUENT RETIREMENT OF ONLY THOSE FORMER REGULAR NAVY OR REGULAR MARINE CORPS ENLISTED MEN WHO WERE DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND WHO HAD NOT THEN BEEN ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE OR TO THE FLEET MARINE CORPS RESERVE DUE TO THE FACT THAT THEIR 20 OR MORE YEARS OF ACTIVE SERVICE HAD NOT BEEN ENTIRELY IN THE NAVY OR IN THE MARINE CORPS. SEE 39 COMP. GEN. 324 AND 39 COMP. GEN. 890. HENCE, IT DOES NOT APPEAR THAT A MEMBER OF THE NAVAL RESERVE DISCHARGED PRIOR TO AUGUST 10, 1946, HAS ANY RIGHTS UNDER THE ACT OF JULY 24, 1956. IT IS OUR VIEW, THEREFORE, THAT THE RETIREMENT BENEFITS PROVIDED IN THE 1956 ACT ARE NOT SUCH AS MAY BE CONSIDERED "RETIREMENT BENEFITS AS PRESCRIBED BY LAW FOR PERSONNEL OF THE NAVY RESERVE" WITHIN THE INTENT AND MEANING OF THE PROVISIONS OF SUBSECTION (E) OF SECTION 755, TITLE 14, U.S.C. COMPARE 26 COMP. GEN. 818 AND 26 COMP. GEN. 912, 917. MOREOVER, TRANSFER TO THE APPROPRIATE RETIRED LIST UNDER SECTION 2 OF THE 1956 ACT, 34 U.S.C. 854C-2 (1952 ED., SUPP. V), CAN BE ACCOMPLISHED ONLY AFTER APPOINTMENT TO THE FLEET RESERVE OR TO THE FLEET MARINE CORPS RESERVE AS PROVIDED IN SECTION 1 OF THE ACT. IT APPEARS THAT THERE IS IN THE COAST GUARD NO COMPONENT COMPARABLE TO THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE TO WHICH A FORMER MEMBER OF THE COAST GUARD MIGHT BE APPOINTED PRIOR TO TRANSFER TO THE RETIRED LIST.

ACCORDINGLY, IT IS CONCLUDED THAT, IN THE CIRCUMSTANCES, MR. ROGERS MAY NOT PROPERLY BE PLACED ON THE RETIRED LIST OF THE COAST GUARD UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1956.