B-22581, JANUARY 31, 1942, 21 COMP. GEN. 737

B-22581, JANUARY 31, 1942, 21 COMP. GEN. 737

PAY - ACTIVE DUTY - SERVICE CREDITS - NAVAL RESERVE OFFICER ON HONORARY RETIRED LIST A NAVAL RESERVE OFFICER ON THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938 IS NOT ENTITLED FOR LONGEVITY PAY PURPOSES WHILE ON ACTIVE DUTY TO CREDIT FOR THE TIME ELAPSING BETWEEN THE EFFECTIVE DATE OF HIS TRANSFER TO THE HONORARY RETIRED LIST AND THE DATE ON WHICH HE BECAME ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 31, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 15, 1941, REQUESTING A DECISION ON THE QUESTION WHETHER LT. COMDR. HOWARD C. MARSHALL, D-V (G), UNITED STATES NAVAL RESERVE, HONORARY RETIRED LIST, IS ENTITLED, WHILE ON ACTIVE DUTY, TO CREDIT FOR LONGEVITY PAY PURPOSES FOR THE TIME ELAPSING BETWEEN THE EFFECTIVE DATE OF HIS TRANSFER TO THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183) AND THE DATE ON WHICH HE BECAME ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES. THERE WAS ENCLOSED WITH YOUR REQUEST FOR DECISION A LETTER FROM THE DISBURSING OFFICER, INSHORE PATROL HEADQUARTERS, FIRST NAVAL DISTRICT, BOSTON, MASS., AS FOLLOWS: SUBJECT: SERVICE FOR LONGEVITY PURPOSES FOR (13779) LT. COMDR.

HOWARD C. MARSHALL D-V (G) U.S.N.R.

1. SUBJECT OFFICER REPORTED FOR ACTIVE DUTY ON OCTOBER 6, 1941.

2. STATEMENT OF SERVICE FURNISHED BY COMMANDANT FIRST NAVAL DISTRICT STATES THAT SUBJECT OFFICER HAD 23 YEARS 6 MONTHS AND 12 DAYS FOR PAY PURPOSES UP TO JANUARY 1, 1941, THE DATE HE WAS TRANSFERRED TO THE HONORARY RETIRED LIST.

3.CLARIFICATION IS REQUESTED WHETHER SUBJECT OFFICER IS ENTITLED TO LONGEVITY FROM JANUARY 1, 1941, TO DATE OF REPORTING FOR ACTIVE DUTY.

AN INDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO THE QUESTION, IS AS FOLLOWS:SUBJECT: RIGHT OF LIEUTENANT COMMANDER HOWARD C. MARSHALL

D-V (G), U.S.N.R., TO COUNT PERIOD ON THE HONORARY RETIRED LIST FOR

LONGEVITY PAY PURPOSES. REFERENCE: (A) SECTION 3 OF THE ACT OF JUNE 10, 1922.

(B) SECTION 7 OF THE NAVAL RESERVE ACT OF 1938,

APPROVED JUNE 25, 1938.

1. SECTION 3 OF THE ACT OF JUNE 10, 1922 (42 STAT. 627), PROVIDES THAT IN COMPUTING THE INCREASE OF PAY FOR EACH PERIOD OF THREE YEARS' SERVICE, COMMISSIONED OFFICERS OF THE NAVAL RESERVE

"* * * SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE FORCE, WHEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE, WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE PERFORMED ACTIVE DUTY UNDER RESERVE COMMISSIONS, AND WITH ONE HALF TIME FOR ALL OTHER PERIODS DURING WHICH THEY HAVE HELD RESERVE COMMISSIONS.' AND SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 PROVIDES IN PART AS FOLLOWS:

"COMMISSIONED OFFICERS, EXCLUSIVE OF CHIEF WARRANT 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 OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY SHALL BE DEEMED TO HAVE BEEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE AND SHALL RECEIVE THE PAY AND ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES, AND SHALL WHEN TRAVELING UNDER ORDERS OR UNDER COMPETENT AUTHORITY RECEIVE TRANSPORTATION IN KIND, MILEAGE, OR ACTUAL EXPENSES AS PROVIDED BY LAW FOR TRAVEL PERFORMED BY OFFICERS OF THE REGULAR NAVY. * * *"

2. IT APPEARS FROM THE INFORMATION CONTAINED IN THE BASIC LETTER OF THE DISBURSING OFFICER, INSHORE PATROL, NAVY YARD, BOSTON, MASS., DATED OCTOBER 10, 1941, THAT LT. COMDR. HOWARD C. MARSHALL, D-V (G), U.S.N.R., WAS TRANSFERRED TO THE HONORARY RETIRED LIST ON JANUARY 1, 1941, AND REPORTED FOR ACTIVE DUTY ON OCTOBER 6, 1941. THERE IS NO AVAILABLE DECISION OF THE COMPTROLLER GENERAL AS TO WHETHER TIME SPENT ON THE HONORARY RETIRED LIST MAY BE COUNTED IN DETERMINING LONGEVITY INCREASES TO WHICH A RESERVE OFFICER IN RECEIPT OF ACTIVE DUTY PAY IS ENTITLED. VIEW OF THE WORDING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, QUOTED ABOVE, IT IS RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER LIEUTENANT COMMANDER MARSHALL IS ENTITLED TO COUNT FOR LONGEVITY PAY PURPOSES THE TIME ELAPSING BETWEEN EFFECTIVE DATE OF TRANSFER TO THE HONORARY RETIRED LIST AND THE DATE ON WHICH HE BECAME ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES.

SECTIONS 309 AND 310 OF THE NAVAL RESERVE ACT OF 1938 ARE AS FOLLOWS:

SEC. 309. AN HONORARY RETIRED LIST FOR THE NAVAL RESERVE IS HEREBY ESTABLISHED, AND OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE SHALL BE PLACED ON THIS RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY OR ALLOWANCES, UPON REACHING THE AGE OF SIXTY-FOUR YEARS, OR UPON THEIR OWN REQUEST, AFTER THIRTY YEARS' SERVICE IN THE NAVAL RESERVE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT: PROVIDED, THAT SERVICE IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, NAVAL AUXILIARY SERVICE, NAVAL RESERVE FORCE, NAVAL MILITIA, NATIONAL NAVAL VOLUNTEERS, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, AND MARINE CORPS RESERVES SHALL BE COUNTED AS SERVICE IN THE NAVAL RESERVE UNDER THE PROVISIONS OF THIS SECTION: PROVIDED FURTHER, THAT NAVAL RESERVISTS WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, SHALL, WHEN PLACED UPON THE HONORARY RETIRED LIST, BE ADVANCED TO THE NEXT HIGHER GRADE.

SEC. 310. OFFICERS AND MEN OF THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THIS TITLE, WHO HAVE PERFORMED A TOTAL OF NOT LESS THAN THIRTY YEARS' ACTIVE SERVICE IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, NAVAL AUXILIARY SERVICE, NAVAL RESERVE FORCE, NAVAL MILITIA IN FEDERAL STATUS, NATIONAL NAVAL VOLUNTEERS, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, AND MARINE CORPS RESERVE, OR WHO HAVE HAD NOT LESS THAN TWENTY YEARS' SUCH ACTIVE SERVICE, THE LAST TEN YEARS OF WHICH SHALL HAVE BEEN PERFORMED DURING THE ELEVEN YEARS IMMEDIATELY PRECEDING THEIR TRANSFER TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE CREATED BY SECTION 309 OF THIS TITLE OR TO THE HONORARY RETIRED LIST IN EXISTENCE ON THE DATE OF APPROVAL OF THIS ACT, SHALL, EXCEPT WHILE ON ACTIVE DUTY, BE ENTITLED TO PAY AT THE RATE OF 50 PERCENTUM OF THEIR ACTIVE-DUTY RATE OF PAY AS PRESCRIBED IN SECTION 7, TITLE I, OF THIS ACT: PROVIDED, THAT THE PAY OF MEMBERS OF THE HONORARY RETIRED LIST PRESCRIBED BY THIS SECTION SHALL BE PAID FROM THE APPROPRIATIONS MADE FOR THE MAINTENANCE OF THE NAVAL RESERVE.

IN VIEW OF THE TERMS OF THE LAWS IN EFFECT AT THE TIME OF ENACTMENT OF THE NAVAL RESERVE ACT OF 1938, AND IN THE ABSENCE OF ANY CLEAR PROVISION IN THE SAID ACT REQUIRING OR JUSTIFYING A CONTRARY HOLDING, IT IS CONCLUDED THAT LIEUTENANT COMMANDER MARSHALL IS NOT ENTITLED TO COUNT FOR LONGEVITY PAY PURPOSES THE TIME ELAPSING BETWEEN THE EFFECTIVE DATE OF HIS TRANSFER TO THE HONORARY RETIRED LIST AND THE DATE ON WHICH HE BECAME ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES.