B-154295, AUGUST 4, 1964, 44 COMP. GEN. 53

B-154295: Aug 4, 1964

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1964: REFERENCE IS MADE TO YOUR LETTER OF MAY 5. CUEVAS WAS TRANSFERRED TO THE FLEET RESERVE ON MAY 11. ALTHOUGH NO COPY OF HIS ORDERS TO ACTIVE DUTY IS AVAILABLE. HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST APRIL 1. OUR RECORDS SHOW THAT CLEMENTE CUEVAS CLAIMED AND WAS PAID AN ADJUSTMENT IN RETAINER PAY FOR THE PERIOD FROM FEBRUARY 3. WAS OBTAINED AS A PETITIONER IN THE CASE OF ALARCON. WAS PAID ON SETTLEMENT OF OUR OFFICE DATED DECEMBER 31. NO DISTINCTION WAS MADE BETWEEN SERVICE IN A PAY STATUS AND SERVICE IN A NONPAY STATUS. * * * YOU STATE THAT THE SERVICE IN QUESTION WAS PERFORMED UNDER AUTHORITY OF ARTICLE H-5307. THE 1925 ACT WAS SUPERSEDED BY THE NAVAL RESERVE ACT OF 1938.

B-154295, AUGUST 4, 1964, 44 COMP. GEN. 53

PAY - RETIRED - FLEET RESERVISTS - SERVICE CREDITS - TRAINING IN A NONPAY STATUS ALTHOUGH A PERIOD OF ACTIVE DUTY FOR TRAINING WITHOUT PAY OR ALLOWANCES IN 1940 WHILE A MEMBER OF THE FLEET NAVAL RESERVE, PURSUANT TO SECTION 315 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 855N (1946 ED.) (, MEETS THE "ACTIVE SERVICE" REQUIREMENTS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 (37 U.S.C. 311 (1958 ED.) ( FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING THE RETIRED PAY OF A FLEET RESERVIST UPON TRANSFER TO THE RETIRED LIST IN 1950, SUCH TRAINING SERVICE IN A NONPAY STATUS MAY NOT BE COUNTED IN DETERMINING THE MEMBER'S PROPER RATE OF BASIC PAY UNDER SECTION 201 OF THE CAREER COMPENSATION ACT, AS AMENDED (37 U.S.C. 203), FOR USE IN THE COMPUTATION OF HIS RETIRED PAY, CREDIT FOR "FULL-TIME TRAINING DUTY" AS "ACTIVE DUTY" PRIOR TO THE ACT OF AUGUST 10, 1956, 10 U.S.C. 101 (22), BEING PRECLUDED PURSUANT TO SECTION 101 OF THE ARMED FORCES RESERVE ACT OF 1952 (50 U.S.C. 901), WHICH DEFINES FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE AS OTHER THAN ACTIVE DUTY FOR TRAINING.

COMPTROLLER CAMPBELL TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, AUGUST 4, 1964:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1964, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-775, REQUESTING DECISION AS TO WHETHER OR NOT ACTIVE DUTY FOR TRAINING WITHOUT PAY SHOULD BE INCLUDED AS SERVICE CREDITABLE FOR PERCENTAGE MULTIPLE PURPOSES UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, AS AMENDED, 37 U.S.C. 311 (1958 ED.), AND FOR BASIC PAY PURPOSES IN COMPUTATION OF RETIRED PAY IN THE CASE OF CLEMENTE CUEVAS, SDS1, U.S. NAVY, RETIRED.

THE RECORDS FURNISHED WITH YOUR LETTER SHOW THAT MR. CUEVAS WAS TRANSFERRED TO THE FLEET RESERVE ON MAY 11, 1937, WITH 16 YEARS, 11 MONTHS, 11 DAYS OF ACTIVE NAVAL SERVICE, 2 MONTHS, 11 DAYS OF INACTIVE SERVICE IN THE NAVAL RESERVE FORCE AND THAT, ALTHOUGH NO COPY OF HIS ORDERS TO ACTIVE DUTY IS AVAILABLE, HE SERVED ON ACTIVE DUTY FOR TRAINING WITHOUT PAY OR ALLOWANCES ABOARD THE U.S.C. CANOPUS FROM APRIL 5 TO DECEMBER 2, 1940, PURSUANT TO AUTHORIZATION CONTAINED IN ARTICLE H-5307, BUREA OF NAVIGATION MANUAL, 1925 ED., AND ACTIVE DUTY IN A PAY STATUS FROM DECEMBER 3, 1940, TO FEBRUARY 2, 1947. HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST APRIL 1, 1950. YOU STATE THAT SINCE OCTOBER 1, 1949, THE MEMBER'S RETIRED PAY HAS BEEN COMPUTED UNDER THE 2 1/2 PERCENT FORMULA PROVIDED IN SECTION 511 OF THE CAREER COMPENSATION ACT WITHOUT CREDIT FOR THE 7 MONTHS AND 28 DAYS OF ACTIVE SERVICE IN A NONPAY STATUS.

OUR RECORDS SHOW THAT CLEMENTE CUEVAS CLAIMED AND WAS PAID AN ADJUSTMENT IN RETAINER PAY FOR THE PERIOD FROM FEBRUARY 3, 1947, THE DATE AFTER HIS RELEASE FROM ACTIVE DUTY, TO SEPTEMBER 30, 1949, INCLUSIVE, BASED ON THE DECISION IN THE CASE OF SANDERS V. UNITED STATES, 120 CT.CL. 501 (1951). THE ADJUSTMENT FOR THE PERIOD OCTOBER 30, 1947, TO SEPTEMBER 30, 1949, WAS OBTAINED AS A PETITIONER IN THE CASE OF ALARCON, ET AL. V. UNITED STATES, CT.CL. NO. 596-53, BY JUDGMENT DATED OCTOBER 5, 1954. ADJUSTMENT FOR THE EARLIER PERIOD, BEING BARRED IN THE COURT OF CLAIMS BY THE 6-YEAR STATUTE OF LIMITATIONS, WAS PAID ON SETTLEMENT OF OUR OFFICE DATED DECEMBER 31, 1954. THE STATEMENT OF SERVICE FURNISHED BY THE BUREAU OF NAVAL PERSONNEL UNDER DATE OF JANUARY 20, 1954, IN CONNECTION WITH THAT CLAIM SHOWS THAT AFTER MR. CUEVAS' TRANSFER TO THE FLEET RESERVE ON MAY 11, 1937, WITH 16 YEARS" 11 MONTHS, 11 DAYS OF SERVICE CREDITABLE FOR TRANSFER HE SERVED ON "ACTIVE DUTY 4-5-40 TO 2-2-47.' NO DISTINCTION WAS MADE BETWEEN SERVICE IN A PAY STATUS AND SERVICE IN A NONPAY STATUS.

SECTION 511 OF THE CAREER COMPENSATION ACT PROVIDES FOR COMPUTATION OF RETAINER OR RETIRED PAY AT 2 1/2 PERCENT OF THE MONTHLY BASIC PAY OF THE APPLICABLE GRADE MULTIPLIED BY THE NUMBER OF YEARS OF "ACTIVE SERVICE" CREDITABLE TO HIM AND PROVIDES FURTHER THAT:

* * * FOR THE PURPOSES OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES, * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL-TIME TRAINING OR OTHER FULL TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW, * * *

YOU STATE THAT THE SERVICE IN QUESTION WAS PERFORMED UNDER AUTHORITY OF ARTICLE H-5307, BUREAU OF NAVIGATION MANUAL, 1925 ED., WHICH PROVIDED FOR APPROVAL BY THE PROPER COMMANDING OFFICERS OF REQUESTS BY OFFICERS AND MEN OF THE NAVAL RESERVE FOR TRAINING DUTY WITHOUT PAY OR ALLOWANCES. THAT REGULATION APPEARS TO BE BASED ON SECTION 20 OF THE ACT APPROVED FEBRUARY 28, 1925, CH. 374, 43 STAT. 1085, WHICH PROVIDED, IN PART, THAT MEMBERS OF THE FLEET NAVAL RESERVE "MAY BE GIVEN ADDITIONAL TRAINING, OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY * * *.' THE 1925 ACT WAS SUPERSEDED BY THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1175, 34 U.S.C. 853J (1946 ED. (, SECTION 315, 34 U.S.C. 855N (1946 ED.), OF WHICH AUTHORIZES CERTAIN MEMBERS OF THE NAVAL RESERVE TO BE ,GIVEN ADDITIONAL TRAINING OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY DIRECTION OF THE SECRETARY OF THE NAVY * * *.' THAT PROVISION OF LAW WAS IN EFFECT AT THE TIME MR. CUEVAS SERVED ON ACTIVE DUTY FOR TRAINING WITHOUT PAY APRIL 5 TO DECEMBER 2, 1940, INCLUSIVE, AND PRESUMABLY WAS THE STATUTORY AUTHORITY FOR SUCH DUTY.

ALTHOUGH THE ORDERS UNDER WHICH THE SERVICE WAS PERFORMED ARE NOT AVAILABLE, THE INFORMATION FURNISHED WITH YOUR LETTER, WHICH WAS TAKEN FROM THE OFFICIAL FILES, ESTABLISHES THAT MR. CUEVAS SERVED ON FULL TIME TRAINING DUTY ABOARD SHIP DURING THE PERIOD APRIL 5 TO DECEMBER 2, 1940, INCLUSIVE, AS AUTHORIZED IN THE NAVAL RESERVE ACT OF 1938. SUCH SERVICE MEETS THE REQUIREMENTS FOR "ACTIVE SERVICE" AS DEFINED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 AND, THEREFORE, IS CREDITABLE FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING HIS RETAINER OR RETIRED PAY THEREUNDER.

SERVICE CREDITABLE FOR THE PURPOSE OF DETERMINING A MEMBER'S RATE OF BASIC PAY IS GOVERNED BY SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, NOW CONTAINED IN 37 U.S.C. 205. SECTION 202 (B) PROVIDES THAT MEMBERS SHALL ACCRUE ADDITIONAL SERVICE CREDITS FOR BASIC PAY PURPOSES WHILE AUTHORIZED TO RECEIVE RETAINER OR RETIRED PAY BUT THAT ONLY "ACTIVE SERVICE" SHALL BE INCLUDED TO INCREASE RETAINER PAY OR RETIRED PAY EXCEPT AS PROVIDED IN TITLE IV OF THE ACT, 37 U.S.C. 271 (1952 ED. (, WHICH PERTAINS TO DISABILITY RETIRED PAY. THE DEFINITION OF "ACTIVE SERVICE" PRESCRIBED IN SECTION 511 FOR USE IN COMPUTING RETAINER OR RETIRED PAY THEREUNDER IS LIMITED TO THAT SECTION. COMPARE 31 COMP. GEN.39, 42, WITH RESPECT TO A SIMILAR DEFINITION OF "ACTIVE SERVICE" CONTAINED IN SECTION 412, 37 U.S.C. 282 (1952 ED.). EFFECTIVE AUGUST 10, 1956, 10 U.S.C. 101 (24) DEFINES "ACTIVE SERVICE" AS MEANING SERVICE ON ACTIVE DUTY AND 10 U.S.C. 101 (22) DEFINES "ACTIVE DUTY" AS INCLUDING, AMONG OTHER THINGS "FULL-TIME TRAINING DUTY.' PRIOR TO THAT TIME "ACTIVE DUTY" WAS DEFINED IN SECTION 101 OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 481, 50 U.S.C. 901, AS MEANING "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, OTHER THAN ACTIVE DUTY FOR TRAINING.' WE HAVE HELD THAT FOR THE PURPOSE OF QUALIFICATION FOR THE SPECIAL OAY PROVIDED IN SECTION 203 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 234, MEDICAL AND DENTAL OFFICERS MAY COUNT AS "ACTIVE SERVICE" PERIODS OF ACTIVE DUTY FOR TRAINING PERFORMED ON OR AFTER AUGUST 10, 1956, BUT THAT ACTIVE DUTY FOR TRAINING PERFORMED BEFORE THAT DATE DOES NOT CONSTITUTE "ACTIVE SERVICE" WITHIN THE MEANING OF THE APPLICABLE LAWS THEN IN EFFECT. 38 COMP. GEN. 251. SINCE MR. CUEVAS' ACTIVE DUTY FOR TRAINING WAS PERFORMED PRIOR TO AUGUST 10, 1956, THERE IS NO BASIS FOR COUNTING SUCH SERVICE IN DETERMINING THE PROPER RATE OF BASIC PAY UNDER SECTION 201 OF THE CAREER COMPENSATION ACT, AS AMENDED, NOW 37 U.S.C. 203, TO BE USED IN COMPUTATION OF HIS RETIRED PAY.