B-17775, AUGUST 12, 1941, 21 COMP. GEN. 121

B-17775, AUGUST 12, 1941, 21 COMP. GEN. 121

PENSIONS, COMPENSATION, RETIREMENT PAY, HOSPITAL BENEFITS, AND DEATH GRATUITIES - NAVAL RESERVISTS ON ACTIVE DUTY OFFICERS AND ENLISTED MEN ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, ESTABLISHED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938, WHO HAVE BEEN OR MAY BE ORDERED TO ACTIVE DUTY FOR EXTENDED SERVICE IN EXCESS OF 30 DAYS ARE ENTITLED TO THE PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS PROVIDED IN THE ACT OF AUGUST 27, 1940, TO THE EXTENT THAT SUCH BENEFITS ARE MATTERS WITHIN THE JURISDICTION OF THIS OFFICE. BENEFICIARIES OF OFFICERS AND ENLISTED MEN ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WHO DIE WHILE ON THE EXTENDED ACTIVE DUTY CONTEMPLATED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940, ARE ENTITLED TO THE SIX MONTHS' DEATH GRATUITY AS AUTHORIZED BY LAW FOR BENEFICIARIES OF PERSONNEL OF THE REGULAR NAVY AND MEMBERS OF THE NAVAL RESERVE WHOSE DEATH OCCURS WHILE ON THE ACTIVE LIST. MEMBERS OF THE NAVAL RESERVE WHOSE ORDERS TO ACTIVE DUTY ARE FOR PERIODS OF INDEFINITE DURATION DURING THE EXISTING NATIONAL EMERGENCY, AND DO NOT OTHERWISE INDICATE THAT THE ORDERED DUTY IS FOR LESS THAN 31 DAYS, ARE WITHIN THE PROVISIONS OF SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED, GRANTING PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL AND DEATH GRATUITY BENEFITS TO MEMBERS OF THE NAVAL RESERVE ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS, EVEN THOUGH THEY ARE DISABLED OR DIE PRIOR TO COMPLETION OF 31 DAYS' ACTIVE SERVICE. NAVAL RESERVE AVIATION CADETS, MERCHANT MARINE RESERVE CADETS, AND NAVAL RESERVE MIDSHIPMEN, ARE ENTITLED TO THE PENSIONS, COMPENSATION, RETIREMENT PAY, HOSPITAL BENEFITS, AND DEATH GRATUITIES PROVIDED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED, TO THE EXTENT THAT SUCH BENEFITS ARE MATTERS WITHIN THE JURISDICTION OF THIS OFFICE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 12, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 12, 1941, IN PART, AS FOLLOWS:

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, APPROVED AUGUST 27, 1940 ( PUB. NO. 775, 76TH CONG.), PROVIDES:

"ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181) OR RETIRED PAY UNDER THE PROVISION OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.'

SECTION 4 WAS MODIFIED BY THE ACT OF MARCH 17, 1941 ( PUBLIC LAW 16, 77TH CONG.), AS FOLLOWS:

"THAT THE BENEFITS PROVIDED BY SECTION 4 OF THE ACT APPROVED AUGUST 27, 1940 ( PUBLIC, NUMBERED 775, SEVENTY-SIXTH CONGRESS), SHALL INCLUDE PAYMENT OF THE GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920 (41 STAT. 824), AS AMENDED BY THE ACT OF MAY 22, 1928 (45 STAT. 710; U.S.C., TITLE 34, SEC. 943).

"SEC. 2. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE AS OF AUGUST 27, 1940.'

IN CONNECTION WITH THE ABOVE QUOTED STATUTORY PROVISIONS, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) ARE OFFICERS AND ENLISTED MEN ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, ESTABLISHED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183; 34 U.S.C. 855H), WHO HAVE BEEN OR MAY BE ORDERED TO ACTIVE DUTY FOR EXTENDED SERVICE IN EXCESS OF 30 DAYS, ENTITLED TO RECEIVE THE PENSIONS, COMPENSATION, RETIREMENT PAY AND HOSPITAL BENEFITS AS PROVIDED IN THE ACT OF AUGUST 27, 1940, AS AMENDED, SUPRA?

(B) IN CASE OF THE DEATH OF AN OFFICER OR ENLISTED MAN ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WHILE PERFORMING ACTIVE DUTY, WILL THE BENEFICIARIES OF SUCH OFFICER OR ENLISTED MAN BE ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AS AUTHORIZED BY LAW FOR THE BENEFICIARIES OF THE PERSONNEL OF THE REGULAR NAVY AND MEMBERS OF THE NAVAL RESERVE WHOSE DEATH OCCURS WHILE ON THE ACTIVE LIST?

(C) ARE MEMBERS OF THE U.S. NAVAL RESERVE ORDERED TO ACTIVE DUTY FOR INDEFINITE PERIODS DURING THE EXISTING NATIONAL EMERGENCY, WHICH UNDER ORDINARY CIRCUMSTANCES WOULD CONTINUE FOR MORE THAN 30 DAYS, ENTITLED TO ANY OF THE BENEFITS SPECIFIED IN SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED, SUPRA, IF THEY ARE DISABLED OR DIE PRIOR TO COMPLETION OF 31 DAYS ACTIVE SERVICE?

(D) ARE AVIATION CADETS, MERCHANT MARINE RESERVE CADETS, AND NAVAL RESERVE MIDSHIPMEN ENTITLED TO THE PENSIONS, COMPENSATION, RETIREMENT PAY, HOSPITAL BENEFITS AND DEATH GRATUITIES AS PROVIDED BY LAW FOR OTHER NAVAL RESERVE PERSONNEL?

SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853C, PROVIDES THAT ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THE ACT, OR WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST, BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THE ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY. SECTION 7 OF THE ACT, 52 STAT. 1176, AS AMENDED, 34 U.S.C. 853E, PROVIDES THAT COMMISSIONED OFFICERS OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST OR WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY SHALL BE ENTITLED TO THE PAY AND ALLOWANCES, INCLUDING LONGEVITY PAY, AS AUTHORIZED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES AND THAT MIDSHIPMEN, CHIEF WARRANT OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST, WHEN EMPLOYED ON ACTIVE OR TRAINING DUTY WITH PAY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES OF PERSONNEL OF THE REGULAR NAVY. SECTION 309 OF THE ACT ESTABLISHED AN HONORARY RETIRED LIST FOR OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE WITHOUT PAY OR ALLOWANCES, AND SECTION 310 OF THE ACT PROVIDED FOR RETIREMENT OF OFFICERS AND MEN AFTER PERFORMING THE SERVICES SPECIFIED THEREIN WITH 50 PERCENTUM OF THEIR ACTIVE DUTY RATE OF PAY AS PRESCRIBED IN SECTION 7 OF THE ACT.

SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 PROVIDES THAT A MEMBER OF THE NAVAL RESERVE, WHO IS INJURED IN TIME OF PEACE OR DIES AS A RESULT OF SUCH INJURY UNDER CIRCUMSTANCES THEREIN SPECIFIED, HE OR HIS BENEFICIARY SHOULD HAVE THE BENEFITS OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION AS IN THE CASES OF CIVILIAN EMPLOYEES OF THE UNITED STATES SO DISABLED. PRIOR TO THE ACT OF AUGUST 27, 1940, SECTION 4 OF WHICH IS QUOTED IN YOUR LETTER OF JUNE 12, 1941, THERE WAS NO AUTHORITY OF LAW GRANTING RETIREMENT BENEFITS TO THOSE RESERVISTS FOR DISABILITY. MEMBERS OF THE HONORARY RETIRED LIST OF THE NAVAL RESERVE CONSTITUTE PART OF THE NAVAL RESERVE AND TO THE EXTENT THAT THE BENEFITS REFERRED TO IN QUESTION (A) PERTAIN TO MATTERS WITHIN THE JURISDICTION OF THIS OFFICE, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE PURPOSE OF THE AMENDMENT TO SECTION 4 BY THE ACT OF MARCH 17, 1941, PUBLIC NO. 16, 76TH CONGRESS, WAS TO EXTEND THE BENEFITS OF THE SIX MONTHS' DEATH GRATUITY PAY TO THE BENEFICIARIES OF MEMBERS OF THE NAVAL RESERVE ON A SUBSTANTIAL PARITY WITH THE RIGHTS ENJOYED BY MEMBERS OF THE REGULAR NAVY AS PROVIDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED. SINCE THE BENEFITS OF THE ACT OF JUNE 4, 1920, AS AMENDED, ARE SPECIFICALLY PROVIDED FOR RETIRED PERSONNEL OF THE REGULAR SERVICE WHO DIE WHILE ON ACTIVE DUTY, SIMILAR BENEFITS APPLY IN THE CASE OF MEMBERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO HAVE BEEN TRANSFERRED TO THE HONORARY RETIRED LIST IF THEY DIE WHILE ON THE EXTENDED ACTIVE DUTY CONTEMPLATED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940. QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE.

SECTION 4 OF THE ACT OF AUGUST 27, 1940, PROVIDES, IN PERTINENT PART, THAT---

ALL OFFICERS * * * WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE * * * FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, * * * THE LANGUAGE WAS UNDOUBTEDLY DESIGNED FOR THE BENEFIT OF ALL MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE WHO ARE CALLED INTO ACTIVE SERVICE FOR A PERIOD IN EXCESS OF THIRTY DAYS AND NECESSARILY WOULD INCLUDE THOSE MEMBERS WHO ARE OR WILL BE CALLED TO ACTIVE DUTY FOR AN INDEFINITE PERIOD DURING THE EXISTING NATIONAL EMERGENCY. WHERE THE ORDERS CALLING SUCH MEMBERS OF THE RESERVE TO ACTIVE DUTY DO NOT IN TERMS LIMIT THE PERIOD THEREOF TO LESS THAN THIRTY-ONE DAYS AND DO NOT OTHERWISE SHOW THAT THE ACTIVE DUTY ORDERED SHALL BE FOR A PERIOD OF LESS THAN THIRTY-ONE DAYS OR ARE INDEFINITE AS TO DURATION AND OTHERWISE SHOW THE ORDERED DUTY IS DURING THE EMERGENCY, SUCH MEMBERS ARE WITHIN THE PROVISIONS OF SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED, REGARDLESS OF THE DATE OF THE HAPPENING OF THE DISABILITY OR DEATH. QUESTION (C), IS ANSWERED YES.

THE GRADE OF AVIATION CADET WAS CREATED IN THE NAVAL RESERVE AND THE MARINE CORPS RESERVE BY SECTION 1 OF THE ACT OF APRIL 15, 1935, 49 STAT. 156. SECTION 4 OF THAT ACT PROVIDED:

AVIATION CADETS SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, BE SUBJECT TO ALL THE LAWS AND REGULATIONS PRESCRIBED FOR OTHER MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE. THEY SHALL TAKE PRECEDENCE NEXT BEFORE WAR OFFICERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE: PROVIDED, THAT WHEN AVIATION CADETS CONTRACT SICKNESS OR DISEASE OR SUFFER INJURY IN LINE OF DUTY WHILE PERFORMING ACTIVE DUTY, THEY MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE RETAINED ON SUCH ACTIVE-DUTY STATUS BEYOND THE SPECIFIED DATE OF TERMINATION THEREOF. THE ACT OF APRIL 15, 1935, WAS AMENDED IN CERTAIN RESPECTS NOT HERE MATERIAL BY THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819. UNDER SECTION 8 (D) OF THE LATER ACT THEY MAY BE REQUIRED TO SERVE ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF FOUR YEARS FROM THE DATE OF APPOINTMENT AS AVIATION CADET.

UNDER SECTION 305 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 855D, MERCHANT MARINE CADETS AND MIDSHIPMEN ARE AUTHORIZED TO BE APPOINTED TO SERVE DURING THE PLEASURE OF THE SECRETARY OF THE NAVY. UNDER NAVAL RESERVE REGULATIONS, PRELIMINARY TO APPOINTMENT AS MIDSHIPMEN, U.S. NAVY RESERVE, ENLISTMENTS ARE REQUIRED TO BE MADE IN THE RATING OF APPRENTICE SEAMEN AND APPOINTMENTS THEREIN UNDER THE REGULATIONS ARE MADE ONLY DURING TIMES OF THREATENED EMERGENCY IN ACCORDANCE WITH INSTRUCTIONS ISSUED BY THE BUREAU OF NAVIGATION IN SEPARATE PUBLICATIONS. MEMBERS OF THE MERCHANT MARINE RESERVE MAY BE AUTHORIZED TO PERFORM THE TRAINING DUTY AUTHORIZED FOR MEMBERS OF OTHER BRANCHES OF THE NAVAL RESERVE. THEREFORE UNDER SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED, MEMBERS OF THE NAVAL RESERVE HOLDING GRADES OF AVIATION CADET, AND NAVAL RESERVE MIDSHIPMAN ARE ENTITLED TO THE SAME BENEFITS AS OTHER MEMBERS OF THE NAVAL RESERVE. INASMUCH AS THE MERCHANT MARINE RESERVE CONSTITUTES PART OF THE NAVAL RESERVE, MERCHANT MARINE RESERVE CADETS ALSO COME WITHIN THE BENEFITS OF THE ACT. ACCORDINGLY, TO THE EXTENT THAT THE BENEFITS REFERRED TO IN QUESTION (D) RELATE TO MATTERS OF WHICH THIS OFFICE HAS JURISDICTION, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.