B-154293, JUL. 10, 1964

B-154293, JUL. 10, 1964

TO COMMANDER M. L. CONNER, SC, USN, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1964, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-774, REQUESTING DECISION WHETHER OR NOT ROY PARKS, A FORMER ENLISTED MEMBER OF THE UNITED STATES NAVAL RESERVE, IS ENTITLED TO RETIRED PAY ON AND AFTER JANUARY 1, 1964, BY REASON OF THE PROVISIONS OF THE ACT OF JULY 24, 1956, CH. 683, 70 STAT. 626.

THE RECORD SHOWS THAT PARKS SERVED ON ACTIVE DUTY UNDER ENLISTMENTS IN THE UNITED STATES ARMY DURING VARIOUS PERIODS BETWEEN JUNE 27, 1916, AND JULY 25, 1934, FOR A TOTAL OF 17 YEARS, 8 MONTHS AND 8 DAYS. HE ENLISTED IN THE UNITED STATES NAVAL RESERVE ON OCTOBER 6, 1942, AND SERVED ON ACTIVE DUTY THEREIN CONTINUOUSLY UNTIL JUNE 20, 1945, WHEN HE WAS DISCHARGED. ORDERS OF JANUARY 13, 1964, FROM THE CHIEF OF NAVAL PERSONNEL, STATED THAT HE WAS APPOINTED TO THE FLEET RESERVE EFFECTIVE DECEMBER 31, 1963, AND TRANSFERRED TO THE RETIRED LIST OF THE NAVY EFFECTIVE JANUARY 1, 1964, UNDER AUTHORITY OF THE ACT OF JULY 24, 1956, SUPRA, ON THE BASIS OF HAVING COMPLETED OVER 20 YEARS OF ACTIVE FEDERAL SERVICE AT THE TIME OF HIS LAST DISCHARGE.

AT THE TIME OF PARKS' DISCHARGE IN 1945 TRANSFERS TO THE FLEET RESERVE WERE GOVERNED BY TITLE II OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1178, AND THE CLASS OF PERSONS ELIGIBLE FOR TRANSFER WAS LIMITED TO MEN SERVING IN THE "REGULAR NAVY.' THEREFORE HE COULD NOT THEN QUALIFY FOR SUCH TRANSFER. TITLE II OF THE NAVAL RESERVE ACT WAS AMENDED BY THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993, TO AUTHORIZE TRANSFERS TO THE FLEET RESERVE AFTER 20 YEARS OF "ACTIVE FEDERAL SERVICE.' HOWEVER, THE CLASS OF PERSONS ENTITLED TO TRANSFER WAS STILL LIMITED TO THOSE SERVING IN THE REGULAR NAVY. THE ACT OF JULY 24, 1956, WAS INTENDED TO AUTHORIZE THE APPOINTMENT TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND SUBSEQUENT RETIREMENT OF ONLY THOSE FORMER REGULAR NAVY OR REGULAR MARINE CORPS ENLISTED MEN WHO HAD BEEN DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS AND WHO WERE NOT THEN ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE BECAUSE THEIR 20 OR MORE YEARS OF ACTIVE SERVICE HAD NOT BEEN ENTIRELY IN THE NAVY OR MARINE CORPS. 43 COMP. GEN. 44, 47. THE 1956 ACT DID NOT PURPORT TO AFFECT THE RETIRED PAY RIGHTS OF RESERVISTS. PARKS COULD NOT QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE NAVAL RESERVE ACT AS AMENDED BY THE ACT OF AUGUST 10, 1946, AND THE ACT OF JULY 24, 1956, GAVE HIM NO GREATER RIGHT THAN HE WOULD HAVE HAD IF HIS DISCHARGE FROM THE NAVAL SERVICE HAD BEEN EFFECTED AFTER AUGUST 10, 1946.

ACCORDINGLY, IT IS CONCLUDED THAT THE ORDER OF JANUARY 13, 1964, PURPORTING TO APPOINT PARKS TO THE FLEET RESERVE AND TRANSFER HIM TO THE RETIRED LIST OF THE NAVY PURSUANT TO THE ACT OF JULY 24, 1956, IS WITHOUT EFFECT TO AUTHORIZE PAYMENT OF RETIRED PAY TO HIM.