B-22368, JANUARY 12, 1942, 21 COMP. GEN. 656

B-22368: Jan 12, 1942

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ARE LIMITED IN THEIR OPERATION TO ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS RETIRED UNDER THE PROVISIONS OF THE ACTS OF MARCH 3. HAVE NO APPLICATION TO TRANSFERRED FLEET NAVAL RESERVISTS ON THE RETIRED LIST. SHALL BE ELIGIBLE FOR PROMOTION AND HE SHALL BE ENTITLED TO THE PAY AND BENEFITS OF CONTINUOUS SERVICE OF SUCH RANK AND FOR SUCH LENGTH OF TIME AS HE IS OR HAS BEEN EMPLOYED IN ACTIVE SERVICE. WHO ARE PLACED ON THE RETIRED LIST OF THE REGULAR NAVY AFTER COMPLETION OF THIRTY YEARS' TOTAL SERVICE OR PRIOR THERETO ON ACCOUNT OF PHYSICAL DISABILITY. ARE TO BE CONSIDERED IN THE SAME STATUS AS ENLISTED MEN WHO ARE TRANSFERRED TO THE RETIRED LIST DIRECTLY FROM THE REGULAR NAVY AFTER COMPLETION OF THIRTY YEARS' SERVICE (ACT OF MARCH 3.

B-22368, JANUARY 12, 1942, 21 COMP. GEN. 656

PAY - RETIRED FLEET NAVAL RESERVISTS - PROMOTION AND SERVICE CREDITS THE PROVISIONS OF THE ACT OF JULY 1, 1918, AUTHORIZING THE PROMOTION OF RETIRED ENLISTED MEN OF THE NAVY AND MARINE CORPS WHEN RECALLED TO ACTIVE DUTY, AND, WHEN RELIEVED OF ACTIVE SERVICE, THE RETENTION ON THE RETIRED LIST OF THE RANK, SERVICE, ETC., HELD BY THEM AT THE TIME OF SUCH RELIEF, ARE LIMITED IN THEIR OPERATION TO ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS RETIRED UNDER THE PROVISIONS OF THE ACTS OF MARCH 3, 1899, AND MARCH 2, 1907, AND HAVE NO APPLICATION TO TRANSFERRED FLEET NAVAL RESERVISTS ON THE RETIRED LIST.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 12, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 5, 1941, AS FOLLOWS:

THE ACT APPROVED JULY 1, 1918 (40 STAT. 719; 34 U.S.C. 434), PROVIDES, RELATIVE TO PROMOTION OF RETIRED ENLISTED MEN CALLED INTO ACTIVE SERVICE, AS FOLLOWS:

"ANY ENLISTED MAN OF THE NAVY OR MARINE CORPS UPON THE RETIRED LIST WHO HAS BEEN ORDERED INTO ACTIVE SERVICE SINCE APRIL 6, 1917, OR WHO MAY HEREAFTER BE ORDERED INTO ACTIVE SERVICE, SHALL BE ELIGIBLE FOR PROMOTION AND HE SHALL BE ENTITLED TO THE PAY AND BENEFITS OF CONTINUOUS SERVICE OF SUCH RANK AND FOR SUCH LENGTH OF TIME AS HE IS OR HAS BEEN EMPLOYED IN ACTIVE SERVICE, AND WHEN RELIEVED OF ACTIVE SERVICE SHALL RETAIN UPON THE RETIRED LIST THE RANK AND SERVICE HELD BY HIM AT THE TIME OF SUCH RELIEF, WITH THE PAY AND ALLOWANCES OF SUCH RANK ON THE RETIRED LIST.'

THE QUESTION HAS ARISEN IN THE NAVY DEPARTMENT AS TO WHETHER FLEET RESERVISTS, WHO ARE PLACED ON THE RETIRED LIST OF THE REGULAR NAVY AFTER COMPLETION OF THIRTY YEARS' TOTAL SERVICE OR PRIOR THERETO ON ACCOUNT OF PHYSICAL DISABILITY, PURSUANT TO THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854C, 854E), ARE TO BE CONSIDERED IN THE SAME STATUS AS ENLISTED MEN WHO ARE TRANSFERRED TO THE RETIRED LIST DIRECTLY FROM THE REGULAR NAVY AFTER COMPLETION OF THIRTY YEARS' SERVICE (ACT OF MARCH 3, 1899, SEC. 17, 30 STAT. 1008, AS AMENDED, 34 U.S.C. 431), INSOFAR AS CONCERNS THE APPLICATION TO SUCH FLEET RESERVISTS OF THE PROVISIONS OF THE ACT OF JULY 1, 1918, SUPRA, RELATIVE TO ADVANCEMENT IN ENLISTED RATINGS WITH CORRESPONDING INCREASES IN PAY AND ALLOWANCES AS THEREIN SPECIFIED.

YOUR EARLY DECISION ON THIS QUESTION WILL BE APPRECIATED.

PROVISION WAS FIRST MADE FOR A NAVAL RESERVE BY THE ACT OF MARCH 3, 1915, 38 STAT. 940, 941. THE 1915 ACT WAS SUPERSEDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 587, ET SEQ., WHICH CREATED THE NAVAL RESERVE FORCE AND PROVIDED FOR THE RETIREMENT OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE UPON COMPLETING 30 YEARS' SERVICE, INCLUDING NAVAL AND FLEET NAVAL RESERVE SERVICE, WITH THE PAY THEY WERE THEN RECEIVING PLUS THE ALLOWANCES TO WHICH ENLISTED MEN OF THE SAME RATING WERE ENTITLED ON RETIREMENT AFTER 30 YEARS' NAVAL SERVICE. EVER SINCE THE ENACTMENT OF THE FIRST ACT A DISTINCTION BETWEEN THE STATUS OF RETIRED RESERVISTS AND RETIRED MEMBERS OF THE REGULAR NAVY HAS BEEN CLEARLY DEFINED.

A PROVISION CONTAINED IN THE ACT OF MARCH 3, 1915, 38 STAT. 941, PROVIDED:

THE SECRETARY OF THE NAVY IS AUTHORIZED IN TIME OF WAR, OR WHEN, IN THE OPINION OF THE PRESIDENT, WAR IS THREATENED, TO CALL ANY ENLISTED MAN ON THE RETIRED LIST INTO ACTIVE SERVICE FOR SUCH DUTY AS HE MAY BE ABLE TO PERFORM. WHILE SO EMPLOYED SUCH ENLISTED MEN SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WERE RECEIVING WHEN PLACED ON THE RETIRED LIST: PROVIDED, THAT ENLISTED MEN ON THE RETIRED LIST SHALL NOT BE ELIGIBLE FOR ENLISTMENT IN OR TRANSFER TO THE NAVAL RESERVE.

A SIMILAR PROVISION WAS CONTAINED IN THE ACT OF AUGUST 29, 1916, 39 STAT. 591, EXCEPT THAT THE PROVISO WAS OMITTED. THE ACT OF JULY 1, 1918, 40 STAT. 719, IN REFERRING TO ENLISTED MEN OF THE NAVY OR MARINE CORPS UPON THE RETIRED LIST, DOES NOT APPEAR REASONABLY TO HAVE CONTEMPLATED WITHIN ITS PURVIEW TRANSFERRED FLEET NAVAL RESERVISTS ON THE RETIRED LIST. THE ACT OF AUGUST 29, 1916, HAD BEEN ENACTED LESS THAN 2 YEARS PREVIOUSLY AND THE ONLY ENLISTED MEMBERS OF THE REGULAR NAVY WHO, ON JULY 1, 1918, COULD HAVE TRANSFERRED TO THE FLEET NAVAL RESERVE AND ATTAINED A RETIRED STATUS WOULD HAVE BEEN THOSE PERSONS WHO HAD COMPLETED MORE THAN 28 YEARS' NAVAL SERVICE ON AUGUST 29, 1916. HENCE, IT IS DOUBTFUL THAT MANY, IF ANY, MEMBERS OF THE REGULAR NAVY BETWEEN AUGUST 29, 1916, AND JULY 1, 1918, WITH AS MUCH AS 28 YEARS' ACTIVE NAVAL SERVICE HAD BECOME RETIRED RESERVISTS ON THE LATTER DATE TO WHOM THE ACT OF JULY 1, 1918, WAS APPLICABLE.

IN 2 COMP. GEN. 762, IT WAS HELD THAT THE FACT THAT TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE RETIRED PRIOR TO JULY 1, 1922, ARE BORNE ON THE RETIRED LIST OF THE NAVY DOES NOT ENTITLE THEM TO THE RETIRED PAY PRESCRIBED BY THE ACT OF JUNE 10, 1922, 42 STAT. 630, FOR RETIRED ENLISTED MEN OF THE NAVY; THEY ARE ONLY ENTITLED TO THE RETIRED PAY PRESCRIBED FOR THEM BY THE ACT OF AUGUST 29, 1916, 39 STAT. 591, IT HAVING BEEN STATED THEREIN THAT WHEN MEN OF THE NAVY WERE TRANSFERRED TO THE FLEET NAVAL RESERVE---

* * * THEY CEASED FOR ALL PURPOSES TO BE ENLISTED MEN OF THE NAVY AND BECAME THEREAFTER FOR ALL PURPOSES, INCLUSIVE OF RETIREMENT, FLEET NAVAL RESERVISTS. ENLISTED MEN OF THE NAVY ARE ONE CLASS OF MEN, WITH THEIR OWN STATUTES, INCLUSIVE OF RETIREMENT, APPLICABLE TO THEM; TRANSFERRED FLEET NAVAL RESERVISTS ARE, ON THE OTHER HAND, ANOTHER CLASS, WITH THEIR OWN SEPARATE STATUTES APPLYING TO THEM, INCLUSIVE OF THAT FOR THEIR RETIREMENT. * * *

SEE, ALSO, 4 COMP. GEN. 942, 946.

THE NAVAL RESERVE ACTS OF 1925 AND 1938 DO NOT AFFECT THE UNIFORM HOLDINGS UNDER THE 1916 ACT AS TO THE DISTINCTION BETWEEN THE TWO CLASSES OF RETIRED ENLISTED MEN. IT WAS PROVIDED BY THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 34 U.S.C. 431, THAT WHEN AN ENLISTED MAN OF THE NAVY OR MARINE CORPS SHALL HAVE SERVED 30 YEARS HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST WITH 75 PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, THE ALLOWANCES BEING COMMUTED AS THEREIN PROVIDED. IN VIEW OF THE STATE OF THE LAW AND THE CONDITIONS PREVAILING AT THE TIME OF ENACTMENT OF THE ACT OF JULY 1, 1918, THE CONCLUSION SEEMS TO BE CLEAR THAT THE ACT OF THAT DATE WAS APPLICABLE ONLY TO ENLISTED MEN WHO WERE RETIRED UNDER THE PROVISIONS OF THE ACTS OF MARCH 3, 1899, AND MARCH 2, 1907, AND WAS NOT INTENDED TO AFFECT THE SPECIAL PROVISIONS PERTAINING TO RETIRED TRANSFERRED NAVAL RESERVISTS.

IF ANY DOUBT EXISTS AS TO THE CORRECTNESS OF THIS CONCLUSION IT APPEARS ONLY NECESSARY TO CALL ATTENTION TO THAT PART OF SECTION 6 OF THE ACT OF MAY 18, 1920, 41 STAT. 602, 603, WHICH, AFTER AUTHORIZING TEMPORARY INCREASES IN BASE PAY FOR VARIOUS RATINGS EFFECTIVE FROM JANUARY 1, 1920, FOR ENLISTED MEN OF THE REGULAR NAVY, PROVIDED:

* * * THAT THE RETAINER PAY OF THOSE MEMBERS OF THE FLEET NAVAL RESERVE WHO, PURSUANT TO CALL, SHALL RETURN TO ACTIVE DUTY WITHIN ONE MONTH AFTER THE APPROVAL OF THIS ACT AND SHALL CONTINUE ON ACTIVE DUTY UNTIL THE NAVY SHALL HAVE BEEN RECRUITED UP TO ITS PERMANENT AUTHORIZED STRENGTH, OR UNTIL THE NUMBER IN THE GRADE TO WHICH THEY MAY BE ASSIGNED IS FILLED, BUT NOT BEYOND JUNE 30, 1922, SHALL BE COMPUTED UPON THE BASE PAY THEY ARE RECEIVING WHEN RETRANSFERRED TO INACTIVE DUTY, PLUS THE ADDITIONS OR INCREASES PRESCRIBED IN THE NAVAL APPROPRIATION ACT APPROVED AUGUST 29, 1916, FOR MEMBERS OF THE FLEET NAVAL RESERVE: * * *

HERE IS A CLEAR RECOGNITION BY THE CONGRESS THAT THE PAY OF TRANSFERRED RESERVISTS WAS ORDINARILY MEASURED BY THE PAY THEY RECEIVED AT THE CLOSE OF THEIR LAST NAVAL SERVICE AND OF THE NECESSITY FOR THE ENACTMENT OF SPECIFIC LEGISLATION IN ORDER TO CONFER UPON THEM GREATER PAY THAN THEY WERE RECEIVING AT THE TIME OF TRANSFER.

THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, ET SEQ., PROVIDES:

SEC. 5. ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309, TITLE III, OF THIS 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 THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: * * *

SEC. 204. MEN SERVING IN THE REGULAR NAVY ON THE DATE OF THE PASSAGE OF THIS ACT, WHO FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, OR WHO REENLISTED THEREIN AFTER JULY 1, 1925, HAVING BEEN OUT OF THE REGULAR NAVY FOR MORE THAN THREE MONTHS, AND MEN WHO FIRST ENLIST IN THE REGULAR NAVY AFTER THE PASSAGE OF THIS ACT, MAY UPON THEIR OWN REQUEST BE TRANSFERRED TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST TWENTY YEARS' NAVAL SERVICE: PROVIDED, THAT THEY ARE PHYSICALLY AND OTHERWISE QUALIFIED TO PERFORM DUTY IN TIME OF WAR. AFTER SUCH TRANSFER, EXCEPT WHEN ON ACTIVE DUTY, THEY SHALL BE PAID AT THE RATE OF ONE-HALF OF THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER: PROVIDED FURTHER, THAT ALL ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 1 AND 203 OF THIS ACT SHALL, UPON COMPLETION OF THIRTY YEARS' SERVICE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE: AND PROVIDED FURTHER, THAT ALL ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION SHALL, UPON COMPLETION OF THIRTY YEARS' SERVICE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE, PLUS ALL PERMANENT ADDITIONS THERETO, AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE.

SEC. 206. * * * THAT ENLISTED MEN HERETOFORE OR HEREAFTER TRANSFERRED TO THE FLEET RESERVE AFTER SIXTEEN YEARS' OR MORE SERVICE IN THE REGULAR NAVY, WHO ARE FOUND NOT PHYSICALLY QUALIFIED UPON SUCH EXAMINATION, SHALL BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY ARE THEN RECEIVING, AND IN ADDITION MEN COMING UNDER THE COGNIZANCE OF SECTIONS 1 AND 203 OF THIS ACT, SHALL, UPON THE COMPLETION OF THIRTY YEARS' SERVICE, RECEIVE THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE: PROVIDED FURTHER, THAT ALL MEN COMING UNDER THE COGNIZANCE OF SECTION 204 OF THIS TITLE SHALL RECEIVE ALL PERMANENT ADDITIONS TO THEIR BASE PAY, AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE: PROVIDED FURTHER, THAT IN THE COMPUTATION OF SERVICE REQUISITE FOR TRANSFER OF ENLISTED MEN OF THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, SERVICE IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, NAVAL RESERVE FORCE, FLEET NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE FORCE, AND THE MARINE CORPS RESERVE AND ON THE RETIRED LIST OF THE REGULAR NAVY SHALL BE INCLUDED: AND PROVIDED FURTHER, THAT SUCH SERVICE AS MAY HERETOFORE HAVE BEEN AUTHORIZED BY LAW TO BE COUNTED AS DOUBLE TIME SHALL BE CREDITED AS DOUBLE TIME IN THIS COMPUTATION.

IN VIEW OF THE STATUTORY PROVISIONS SPECIFICALLY APPLICABLE TO THE PAY OF TRANSFERRED RETIRED MEMBERS OF THE FLEET NAVAL RESERVE, IT MUST BE CONCLUDED THAT THE PROVISIONS OF THE ACT OF JULY 1, 1918, ARE LIMITED IN THEIR OPERATION TO THOSE ENLISTED MEN OF THE REGULAR NAVY AND THE MARINE CORPS RETIRED UNDER THE PROVISIONS OF THE ACTS OF MARCH 3, 1899, AND MARCH 2, 1907.