B-155458, MAY 26, 1970, 49 COMP. GEN. 800

B-155458, MAY 26, 1970, 49 COMP. GEN. 800

PAY -- RETIRED -- FLEET RESERVISTS -- ENLISTED MEMBER TEMPORARY OFFICER ALTHOUGH 10 U.S.C. 5001(A)(4) EXCLUDES A MEMBER HOLDING A PERMANENT ENLISTED GRADE AND A TEMPORARY APPOINTMENT IN A COMMISSIONED OR WARRANT OFFICER GRADE FROM THE TERM "ENLISTED MEMBER," SUCH A MEMBER'S ENLISTED STATUS WAS NOT PREJUDICED BY THE FACT THAT HE HELD A TEMPORARY OFFICER APPOINTMENT AND HE MAY APPLY FOR TRANSFER TO THE FLEET RESERVE UNDER 10 U.S.C. 6330 WHILE SERVING AS A TEMPORARY OFFICER. 10 U.S.C. 6330(C) DOES NOT REQUIRE A MEMBER ACTUALLY TO BE PAID ON THE BASIS OF HIS ENLISTED GRADE ON THE DAY OF TRANSFER TO THE FLEET RESERVE, AND PAYMENT AS A TEMPORARY OFFICER ON THAT DAY DOES NOT CHANGE THE FACT THAT RETAINER PAY IS FOR COMPUTATION ON THE BASIS OF A MEMBER'S ENLISTED GRADE. IF A MEMBER IS ADVANCED TO PAY GRADE E-8 OR E-9 AT THE TIME OF REVERTING TO HIS ENLISTED GRADE FOR SIMULTANEOUS TRANSFER TO THE FLEET RESERVE, HE MAY BE PAID AT THE HIGHER GRADE, AS THE LIMITATION IMPOSED ON THE NUMBER OF SUCH GRADES HAS REFERENCE TO ACTIVE DUTY MEMBERS.

TO THE SECRETARY OF THE NAVY, MAY 26, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 10, 1970, FROM THE OFFICE OF THE ASSISTANT SECRETARY OF THE NAVY, FINANCIAL MANAGEMENT, REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING THE RIGHTS OF TEMPORARY OFFICERS WHO REVERT TO A PERMANENT ENLISTED GRADE ON THE DATE OF TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF 10 U.S.C. 6330.

IT IS STATED THAT THE CHIEF OF NAVAL PERSONNEL ACCEPTS APPLICATIONS FOR TRANSFER TO THE FLEET RESERVE AND RETAINER PAY ENTITLEMENT UNDER 10 U.S.C. 6330 FROM TEMPORARY OFFICERS WITH PERMANENT ENLISTED GRADES. IN THIS CONNECTION, IT IS STATED THAT ORDERS ARE ISSUED BY THE CHIEF OF NAVAL PERSONNEL DIRECTING THAT THE TEMPORARY APPOINTMENTS OF THESE MEMBERS TERMINATE AND THAT THE MEMBERS REVERT TO THEIR PERMANENT ENLISTED STATUS AT 2400 HOURS ON THE DATE OF TRANSFER TO THE FLEET RESERVE. IN SOME OF THE CASES, IT IS POINTED OUT, MEMBERS HAVE BEEN ADVANCED (FROM THE PERMANENT ENLISTED GRADES HELD IMMEDIATELY PRIOR TO THEIR TEMPORARY APPOINTMENTS) TO HIGHER ENLISTED GRADES, EFFECTIVE ON THE DATE OF TRANSFER TO THE FLEET RESERVE. IT IS ALSO STATED THAT THE MAJORITY OF THESE CASES INVOLVE ADVANCEMENTS FROM PAY GRADES E-7 TO PAY GRADES E-8 OR E-9.

AS A RESULT OF THESE ACTIONS, IT IS REPORTED THAT THE MEMBERS HAVE RECEIVED ACTIVE DUTY PAY AND ALLOWANCES BASED ON THEIR TEMPORARY OFFICER RANKS THROUGH THE DATE OF TRANSFER TO THE FLEET RESERVE BUT HAVE BEEN SO TRANSFERRED IN THE HIGHEST ENLISTED GRADES. IN THIS CONNECTION, IT IS SAID THAT THEY MERELY HELD THOSE GRADES WHILE CONCURRENTLY SERVING AS A TEMPORARY COMMISSIONED OR WARRANT OFFICER ON ACTIVE DUTY.

THE LETTER REFERS TO THE TERM "ENLISTED MEMBER" AS DEFINED IN 10 U.S.C. 5001(A)(4), TO MEAN "A MEMBER OF THE NAVAL SERVICE SERVING IN AN ENLISTED GRADE OR RATING. IT EXCLUDES, UNLESS OTHERWISE SPECIFIED, A MEMBER WHO HOLDS A PERMANENT ENLISTED GRADE AND A TEMPORARY APPOINTMENT IN A COMMISSIONED OR WARRANT OFFICER GRADE." IT IS POINTED OUT THAT UNLIKE SECTION 6326 (A) AND (B) OF TITLE 10, WHICH GOVERNS THE VOLUNTARY RETIREMENT OF ENLISTED MEMBERS AFTER COMPLETING 30 OR MORE YEARS OF ACTIVE SERVICE, SECTION 6330(B) DOES NOT SPECIFICALLY INCLUDE AN ENLISTED MEMBER OF THE REGULAR NAVY WHO HOLDS A PERMANENT ENLISTED GRADE AND A TEMPORARY APPOINTMENT IN A COMMISSIONED OR WARRANT OFFICER GRADE.

IT IS ALSO STATED THAT WHILE IT DOES NOT APPEAR TO BE THE INTENT OF 10 U.S.C. 6330(C), A LITERAL INTERPRETATION OF THAT LAW WOULD MEAN THAT THE RETAINER PAY OF THE MEMBERS DISCUSSED ABOVE SHOULD BE BASED ON THE BASIC PAY THAT THEY WERE RECEIVING AS TEMPORARY OFFICERS ON THE DATE OF TRANSFER TO THE FLEET RESERVE. ALSO, WE ARE ASKED TO CONSIDER THE STATUTORY LIMITATIONS IMPOSED IN 10 U.S.C. 517 ON THE NUMBER OF PERSONS WHO CAN HOLD THE TWO HIGHEST ENLISTED GRADES.

THE FOLLOWING QUESTIONS ARE ASKED:

A. IN VIEW OF THE RESTRICTION IN 10 U.S.C. 5001(A)(4), CAN A MEMBER WHOSE PERMANENT STATUS IS ENLISTED APPLY FOR TRANSFER TO THE FLEET RESERVE WHILE SERVING AS A TEMPORARY OFFICER?

B. IS IT NECESSARY THAT A MEMBER ACTUALLY BE PAID THE ACTIVE DUTY BASIC PAY OF HIS PERMANENT ENLISTED GRADE IN THE FLEET RESERVE ON THE DAY OF TRANSFER TO SAME IN ORDER TO RECEIVE RETAINER PAY BASED ON THAT GRADE?

C. ARE THE LIMITATIONS CONTAINED IN 10 U.S.C. 517 A FACTOR TO BE CONSIDERED IN DETERMINING THE RATE OF BASIC PAY TO BE USED IN THE COMPUTATION OF RETAINER PAY FOR MEMBERS WHO HAVE BEEN PROMOTED TO PAY GRADES E-8 AND E-9?

SECTION 6330(B) OF TITLE 10--WHICH WAS DERIVED FROM SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED--PROVIDES THAT "AN ENLISTED MEMBER OF THE REGULAR NAVY OR THE NAVAL RESERVE WHO HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET RESERVE." THIS PROVISION ALSO APPLIES TO ENLISTED MEMBERS OF THE REGULAR MARINE CORPS OR THE MARINE CORPS RESERVE. THE TERM "ENLISTED MEMBER" IS DEFINED IN 10 U.S.C. 5001(A)(4) FOR PURPOSES OF SUBTITLE C OF TITLE 10, WHICH INCLUDES SECTION 6330(B), AS FOLLOWS:

(4) "ENLISTED MEMBER" MEANS A MEMBER OF THE NAVAL SERVICE SERVING IN AN ENLISTED GRADE OR RATING. IT EXCLUDES, UNLESS OTHERWISE SPECIFIED, A MEMBER WHO HOLDS A PERMANENT ENLISTED GRADE AND A TEMPORARY APPOINTMENT IN A COMMISSIONED OR WARRANT OFFICER GRADE.

IT WOULD SEEM FROM THE DEFINITION IN SECTION 5001(A)(4) THAT IN THE ABSENCE OF A SPECIFIC PROVISION IN SECTION 6330(B) TO INCLUDE A MEMBER WHO HOLDS A PERMANENT ENLISTED GRADE AND A TEMPORARY APPOINTMENT IN A COMMISSIONED OR WARRANT OFFICER GRADE, THERE WOULD BE NO AUTHORITY FOR AN ENLISTED MEMBER TO APPLY FOR TRANSFER TO THE FLEET RESERVE WHILE SERVING AS A TEMPORARY OFFICER. HOWEVER, SUCH A CONSTRUCTION WOULD TEND TO NULLIFY THE PROVISIONS OF 6330(B) INSOFAR AS ENLISTED MEMBERS HOLDING SUCH A DUAL STATUS ARE CONCERNED AND WE DOUBT THAT CONGRESS INTENDED SUCH CONSTRUCTION. IT SEEMS THAT A PREREQUISITE FOR TRANSFER TO THE FLEET RESERVE UNDER SECTION 6330(B) IS THAT THE MEMBER HAVE AN ENLISTED STATUS AT THE TIME OF TRANSFER. CF. 39 COMP. GEN. 324, 328 (1959).

THE SITUATION DESCRIBED ABOVE INDICATES THAT THE MEMBER CONTINUES TO HOLD HIS ENLISTED STATUS WHILE SERVING AS A TEMPORARY OFFICER. THE MERE FACT THAT HE IS SERVING AS A TEMPORARY OFFICER WOULD NOT ABRIDGE HIS RIGHTS AS AN ENLISTED MEMBER. IN THIS CONNECTION, WHILE THE SUBMISSION DOES NOT SHOW UNDER WHAT AUTHORITY THE TEMPORARY APPOINTMENTS AS OFFICERS WERE MADE, THERE IS FOR NOTING THAT IF TEMPORARY APPOINTMENTS ARE MADE UNDER 10 U.S.C. 5596 OR 5597, THE LAW PROVIDES IN SUBSECTIONS (F) AND (H) OF THOSE SECTIONS, RESPECTIVELY, THAT SUCH APPOINTMENTS "DO NOT CHANGE THE PERMANENT, PROBATIONARY OR ACTING STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS." FOR THESE REASONS, WE SEE NO BASIS TO CONCLUDE THAT 10 U.S.C. 5001(A)(4) WAS INTENDED TO PRECLUDE AN OTHERWISE QUALIFIED MEMBER WHOSE PERMANENT STATUS IS ENLISTED FROM APPLYING FOR TRANSFER TO THE FLEET RESERVE WHILE SERVING AS A TEMPORARY OFFICER. QUESTION A IS ANSWERED IN THE AFFIRMATIVE.

FOR THE PURPOSE OF COMPUTING RETAINER PAY OF ENLISTED MEMBERS WHO TRANSFERRED TO THE FLEET RESERVE THE LAW PROVIDES IN 10 U.S.C. 6330(C), AS AMENDED BY SECTION 3(4) OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 653, IN PERTINENT PART AS FOLLOWS:

(C) EACH MEMBER WHO IS TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER THIS SECTION IS ENTITLED WHEN NOT ON ACTIVE DUTY, TO RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY THAT HE RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE IN THE ARMED FORCES, EXCEPT THAT IN THE CASE OF A MEMBER WHO HAS SERVED AS SENIOR ENLISTED ADVISOR OF THE NAVY OR SERGEANT MAJOR OF THE MARINE CORPS, RETAINER PAY SHALL BE COMPUTED ON THE BASIS OF THE HIGHEST BASIC PAY TO WHICH HE WAS ENTITLED WHILE SO SERVING, IF THAT BASIC PAY IS HIGHER THAN THE BASIC PAY RECEIVED AT THE TIME OF TRANSFER. *** WHILE A LITERAL INTERPRETATION OF SECTION 6330(C) WOULD SEEM TO LEND SOME SUPPORT TO THE VIEW THAT RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE BASIC PAY THAT "HE RECEIVED AT THE TIME OF TRANSFER," WHICH, IN THE SITUATION HERE INVOLVED, WOULD BE THE PAY OF HIS TEMPORARY OFFICER GRADE, IT IS QUITE OBVIOUS THAT THE LAW NEVER INTENDED THAT RETAINER PAY BE COMPUTED, EXCEPT AS THERE STATED, ON OTHER THAN THE ENLISTED GRADE HE HELD AT THE TIME OF TRANSFER. THE ENLISTED MEMBER IS TRANSFERRED TO THE FLEET RESERVE SOLELY IN HIS ENLISTED STATUS AND HAD CONGRESS INTENDED THAT RETAINER PAY BE COMPUTED ON OTHER THAN THE PAY OF HIS ENLISTED GRADE, WE BELIEVE APPROPRIATE LANGUAGE WOULD HAVE BEEN USED TO EXPRESS THAT INTENT.

IT HAS LONG BEEN THE ESTABLISHED ADMINISTRATIVE PRACTICE TO PAY ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS ACTIVE DUTY PAY AND ALLOWANCES TO AND INCLUDING THE DATE OF TRANSFER TO THE FLEET RESERVE. IN LINE WITH THAT PRACTICE WE HELD IN 44 COMP. GEN. 584 (1965), IN ANSWER TO QUESTION 3, COMMENTING ON OUR HOLDING IN 44 COMP. GEN. 373 (1965), THAT FOR A MEMBER TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WHO, INCIDENT TO SUCH TRANSFER, LAST RECEIVED ACTIVE DUTY PAY ON SEPTEMBER 1, 1964, RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THE 1964 PAY ACT. IN SUCH CIRCUMSTANCES, WE SAID THAT IT WOULD SEEM THAT THE PERSON THERE CONSIDERED DID NOT BECOME A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNTIL SEPTEMBER 2, 1964.

WE HAVE HELD, HOWEVER, IN THE CASE OF A MARINE CORPS RESERVE ENLISTED MAN IN AN INACTIVE DUTY NONPAY STATUS AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE, THAT 10 U.S.C. 6330 DOES NOT SPECIFICALLY REQUIRE AS A CONDITION OF TRANSFER THAT THE MEMBER BE THEN SERVING ON ACTIVE DUTY. IN CONSTRUING THE PROVISIONS OF SECTION 6330 WE SAID IN 38 COMP. GEN. 793, 795 (1959) THAT:

*** THE STATUTE DOES NOT PROVIDE THAT THE RETAINER PAY BE COMPUTED AT THE RATES IN EFFECT ON THE DATE OF HIS LAST DISCHARGE, OR HIS LAST DAY OF ACTIVE DUTY, RATHER, THE STATUTE CLEARLY PROVIDES THAT SUCH PAY BE COMPUTED "AT THE RATE *** THAT HE RECEIVED AT THE TIME OF TRANSFER." WHILE THE LANGUAGE OF THE STATUTE APPEARS TO SUGGEST THAT, GENERALLY, REGULAR MEMBERS AND CAREER RESERVISTS WOULD BE SERVING ON ACTIVE DUTY AT THE TIME OF TRANSFER, THE STATUTE DOES NOT SPECIFICALLY REQUIRE AS A CONDITION OF TRANSFER THAT THE MEMBER BE THEN SERVING ON ACTIVE DUTY. CONSIDERING THE PURPOSE OF THE 1958 ACT TO MAKE RESERVISTS ELIGIBLE FOR THE SAME RETAINER AND RETIRED PAY BENEFITS AS REGULARS, AND THAT BY THAT ACT IT FIRST MADE RESERVISTS ELIGIBLE THEREFOR, IT FOLLOWS THAT THE CONGRESS INTENDED THAT SUCH PAY SHOULD BE BASED ON THE RATE OF ACTIVE-DUTY PAY IN EFFECT AT THE TIME OF TRANSFER, EVEN THOUGH THE MEMBER WAS NOT THEN SERVING ON ACTIVE DUTY.

IN LINE WITH THE ABOVE DECISION, IT WOULD NOT BE NECESSARY THAT A MEMBER ACTUALLY BE PAID ACTIVE DUTY BASIC PAY OF HIS PERMANENT ENLISTED GRADE IN THE FLEET RESERVE ON THE DATE OF TRANSFER--THE MEMBER HAVING BEEN PAID ACTIVE DUTY PAY AS A TEMPORARY OFFICER THROUGH THE DATE OF TRANSFER AS STATED IN THE SUBMISSION. ACCORDINGLY, QUESTION B IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO QUESTION C, 10 U.S.C. 517 PROVIDES AS FOLLOWS:

EXCEPT AS PROVIDED IN SECTION 307 OF TITLE 37, THE AUTHORIZED DAILY AVERAGE NUMBER OF ENLISTED MEMBERS ON ACTIVE DUTY (OTHER THAN FOR TRAINING) IN AN ARMED FORCE IN PAY GRADES E-8 AND E-9 IN A CALENDAR YEAR MAY NOT BE MORE THAN 2 PERCENT AND 1 PERCENT, RESPECTIVELY, OF THE NUMBER OF ENLISTED MEMBERS OF THAT ARMED FORCE WHO ARE ON ACTIVE DUTY (OTHER THAN FOR TRAINING) ON JANUARY 1 OF THAT YEAR.

THE ABOVE LAW PRESCRIBES A PERCENTAGE LIMITATION ON THE NUMBER OF ENLISTED MEMBERS ON "ACTIVE DUTY" IN PAY GRADES E-8 AND E-9. THESE NEW PAY GRADES AND THE PERCENTAGE LIMITATIONS WERE FIRST ADDED BY SECTION 1 OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 123, ACCOMPANYING THE LETTER FROM THE ASSISTANT SECRETARY'S OFFICE THERE WAS ENCLOSED A COPY OF AN OPINION BY THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED DECEMBER 29, 1969, CONCERNING THE EFFECT OF THE PERCENTAGE LIMITATION AND, AFTER CONSIDERING THE LAW AND ITS LEGISLATIVE HISTORY, HE CONCLUDED IN PART THAT:

*** THEIR REVERSION TO ENLISTED STATUS WOULD HAVE NO EFFECT WHATSOEVER ON THE BALANCE OF THE ENLISTED STRUCTURE IN THE RANKS OF E-8 AND E-9 ENVISIONED BY THE LIMITATIONS IMPOSED BY 10 U.S.C. 517 INASMUCH AS THEY WOULD NOT PERFORM IN THEIR ENLISTED CAPACITY AND, BY EXCLUDING THEM FROM THE COMPUTATIONS INVOLVED, THE FRUSTRATION OF PURPOSE OF THE E-8/9 LEGISLATION DESCRIBED ABOVE WOULD BE AVOIDED. ACCORDINGLY, IT IS NOT NECESSARY TO INCLUDE IN THE DAILY AVERAGES OF E-8 AND E-9'S ON ACTIVE DUTY, AS PROVIDED BY 10 U.S.C. 517, THOSE INDIVIDUALS WHO REVERT FROM TEMPORARY OFFICER STATUS TO THEIR PERMANENT ENLISTED STATUS SOLELY FOR THE PURPOSE OF A SIMULTANEOUS TRANSFER TO THE FLEET RESERVE.

WE AGREE WITH THE CONCLUSION THAT THOSE INDIVIDUALS WHO REVERT FROM THEIR TEMPORARY OFFICER STATUS TO THEIR PERMANENT ENLISTED STATUS SOLELY FOR THE PURPOSE OF A SIMULTANEOUS TRANSFER TO THE FLEET RESERVE ARE NOT TO BE CONSIDERED AS COMING WITHIN THE DAILY AVERAGE LIMITATION PRESCRIBED IN 10 U.S.C. 517. FOR THIS REASON, AND SINCE THE TRANSFERRED MEMBERS ARE NOT ON "ACTIVE DUTY," WE DO NOT BELIEVE THAT THE PERCENTAGE LIMITATION SHOULD BE CONSIDERED A FACTOR IN DETERMINING THE RATE OF BASIC PAY TO BE USED IN COMPUTING THE RETAINER PAY FOR MEMBERS PROMOTED TO PAY GRADES E-8 AND E-9 IN THE CIRCUMSTANCES DISCLOSED. QUESTION C IS ANSWERED IN THE NEGATIVE.