B-34083, JULY 20, 1943, 23 COMP. GEN. 40

B-34083: Jul 20, 1943

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARE EXCLUSIVELY APPLICABLE 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 MARINE CORPS RESERVISTS ON THE RETIRED LIST WHO HAVE BEEN PROMOTED WHILE ON ACTIVE DUTY. 21 COM. ENLISTED MEN AFFECTED ARE ENTITLED TO RETIRED PAY AND ALLOWANCES UNDER THE PRIOR LAWS OR TO RETIRED PAY UNDER THE 1942 ACT. WHICHEVER IS HIGHER. 1943: REFERENCE IS MADE TO YOUR LETTER OF APRIL 21. AS FOLLOWS: YOUR ADVANCE DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS. WHICH HAVE DEVELOPED IN THE APPLICATION OF THE SAVING CLAUSE EMBODIED IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942 TO ACCOUNTS CARRIED BY THIS OFFICE.

B-34083, JULY 20, 1943, 23 COMP. GEN. 40

PAY - RETIRED FLEET RESERVISTS - PROMOTION AFTER RETIREMENT; COMPUTATION OF RETIRED PAY THE PROVISIONS OF THE ACT OF JULY 1, 1918, AUTHORIZING RETIRED ENLISTED MEN OF THE NAVY AND MARINE CORPS PROMOTED WHILE ON ACTIVE DUTY TO RETAIN ON THE RETIRED LIST THE RANK, SERVICE, ETC., HELD BY THEM AT THE TIME OF RELIEF FROM ACTIVE DUTY, ARE EXCLUSIVELY APPLICABLE 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 MARINE CORPS RESERVISTS ON THE RETIRED LIST WHO HAVE BEEN PROMOTED WHILE ON ACTIVE DUTY. 21 COM. GEN. 656, AMPLIFIED. UNDER SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, SAVING TO ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE ON OR PRIOR TO THE DATE OF ENACTMENT OF THE ACT, OR TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY FOR PHYSICAL DISABILITY, ANY BENEFITS TO WHICH THEY WOULD BE ENTITLED UPON COMPLETION OF 30 YEARS UNDER PRIOR LAWS, ENLISTED MEN AFFECTED ARE ENTITLED TO RETIRED PAY AND ALLOWANCES UNDER THE PRIOR LAWS OR TO RETIRED PAY UNDER THE 1942 ACT, WHICHEVER IS HIGHER, BUT NOT TO RETIRED PAY UNDER THE 1942 ACT AND, ALSO, ALLOWANCES AUTHORIZED UNDER PRIOR REPEALED LAWS.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. M. A. WILLARD, U.S. MARINE CORPS, JULY 20, 1943:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1943, AS FOLLOWS:

YOUR ADVANCE DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS, WHICH HAVE DEVELOPED IN THE APPLICATION OF THE SAVING CLAUSE EMBODIED IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942 TO ACCOUNTS CARRIED BY THIS OFFICE.

EZRA EDWARDS WAS TRANSFERRED FROM THE UNITED STATES MARINE CORPS TO CLASS II (B) (NOW CLASS 1 (B) (, FLEET MARINE CORPS, RESERVE, INACTIVE, WITH THE RANK OF SERGEANT, ON 15 MAY 1931, WITH A TOTAL OF SIXTEEN YEARS, SIX MONTHS AND TWENTY-FIVE DAYS SERVICE FOR THE PURPOSE OF TRANSFER. HE WAS ASSIGNED TO ACTIVE DUTY ON 15 NOVEMBER 1939. WHILE ON ACTIVE DUTY HE WAS PROMOTED TO THE RANK OF GUNNERY SERGEANT. ON 1 FEBRUARY 1943 HE WAS PLACED ON THE RETIRED LIST OF THE U.S. MARINE CORPS AS A SERGEANT, AND RETAINED ON ACTIVE DUTY. ON 2 FEBRUARY 1943 HE WAS AGAIN PROMOTED TO THE RANK OF GUNNERY SERGEANT, AND ON 19 APRIL 1943 WAS RELIEVED FROM ACTIVE DUTY AND DIRECTED TO RESUME INACTIVE STATUS ON THE RETIRED LIST WITH THE RANK OF GUNNERY SERGEANT. COPIES OF STATEMENT OF SERVICE, RETIREMENT ORDER, AND ORDER FOR RELIEF FROM ACTIVE DUTY ARE ATTACHED.

THE ACT OF 1 JULY 1918 (40 STAT. 719, CHAP. 114) PROVIDES IN PART

"THAT ANY ENLISTED MAN OF THE NAVY OR MARINE CORPS UPON THE RETIRED LIST WHO HAS BEEN ORDERED INTO ACTIVE SERVICE SINCE APRIL SIXTH, NINETEEN HUNDRED AND SEVENTEEN, 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; "

IN 2 C.G. 763, THE COMPTROLLER GENERAL RULED THAT "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.' AND ON PAGE 764,"THEY EACH FOR RETIREMENT PAY PURPOSES RETAIN THEIR CLASS IDENTITY AS THERETOFORE.' THE NAVAL RESERVE ACT OF 1938, AS CITED IN U.S.C. TITLE 34, SEC. 854A, PROVIDES FOR THE TRANSFER "OF MEMBERS OF THE NAVAL RESERVE OR FLEET NAVAL RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY" (ITALICS BY THIS OFFICE). DOES THE INSERTION OF THE ADJECTIVE "REGULAR" IN THE 1938 ACT OPERATE TO PERMIT THE INCLUSION OF GUNNERY-SERGEANT EDWARDS IN THE CLASS OF RETIRED ENLISTED MEN CONTEMPLATED IN THE ACT OF 1 JULY 1918 (SUPRA), OR IS HE TO BE STILL CONSIDERED AS A RETIRED FLEET RESERVIST WITH THE RANK OF SERGEANT FOR PAY PURPOSES?

FURTHER, AT THE TIME OF HIS ASSIGNMENT TO ACTIVE DUTY HIS RETAINER PAY WAS COMPUTED AS 1/3 OF THE BASE PAY OF THE RANK OF SERGEANT PLUS 25 PERCENT LONGEVITY FOR OVER 16 YEARS OF ACTIVE SERVICE, IN ACCORDANCE WITH THE ACT OF 21 AUGUST 1941, A TOTAL OF $35.00 PER MONTH. SHOULD IT BE DECIDED THAT HIS RETIRED RANK FOR PAY PURPOSES IS THAT OF SERGEANT, HE WOULD BE ENTITLED, UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO 1/3 OF THE PRESENT BASE PAY OF THE RANK OF SERGEANT, $26.00, PLUS 30 PERCENT LONGEVITY FOR OVER 18 YEARS ACTIVE SERVICE, $23.40, A TOTAL OF $49.40 PER MONTH. IN VIEW OF THE PROVISO CONTAINED IN SECTION 19 OF THE 1942 ACT, RELATIVE TO BENEFITS TO WHICH FLEET RESERVISTS BECOME ENTITLED UPON THE COMPLETION OF THIRTY YEARS SERVICE, NOT CONSIDERED IN THE COMPTROLLER GENERAL'S DECISION, 22 COMP. GEN. 344, OF 14 OCTOBER 1942, MAY HE BE CREDITED FOR THE RETIRED ALLOWANCES OF $15.75 PER MONTH IN ADDITION TO HIS RETAINER PAY AS COMPUTED UNDER THE TERMS OF SECTION 15, A TOTAL OF $65.15 PER MONTH, OR SHOULD HIS RETAINER PAY REVERT TO THAT ESTABLISHMENT BY THE ACT OF 21 AUGUST 1941, PLUS THE $1575 ALLOWANCES, A TOTAL OF $50.75 PER MONTH, THIS BEING GREATER THAN THE RETAINER PAY ALONE, $49.40, ESTABLISHED BY THE 1942 ACT?

A SIMILAR CASE IS THAT OF JAMES EVANS, CORPORAL, RETIRED, WHO WAS TRANSFERRED TO CLASS 11 (B) (NOW 1 (B) (, F.M.C.R., ON 27 JANUARY 1932 WITH EIGHTEEN YEARS EIGHT MONTHS AND NINETEEN DAYS OF ACTIVE SERVICE. HIS RETAINER PAY AS COMPUTED UNDER LAWS IN EFFECT ON 31 MAY 1942 WAS $31.50 PER MONTH. UNDER THE PROVISIONS OF THE 1942 PAY ACT HIS RETAINER PAY HAS BEEN CREDITED AND PAID AT THE RATE OF $41.80 PER MONTH. ON 1 JUNE 1942 HE WAS TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR MARINE CORPS FOR PHYSICAL DISABILITY IN HIS THEN CURRENT PAY STATUS. ON 15 MARCH 1943 HE COMPLETED A TOTAL OF THIRTY YEARS SERVICE IN THE U.S. MARINE CORPS. FLEET MARINE CORPS RESERVE AND ON THE RETIRED LIST OF THE MARINE CORPS.

IN VIEW OF THE APPARENT NON-CONSIDERATION BY THE COMPTROLLER GENERAL IN HIS DECISION OF 14 OCTOBER 1942 OF THE PROVISO FOLLOWING THE GENERAL SAVING CLAUSE CONTAINED IN SECTION 19 OF THE 1942 PAY ACT, THIS OFFICE IS IN DOUBT AS TO WHETHER EVANS MAY BE CREDITED THE $15.75 ALLOWANCES IN ADDITION TO THE RETAINER PAY WHICH IS NOW BEING CREDITED IN HIS CASE, OR WHETHER, IN ORDER THAT HE MAY NOT BE PLACED ON A MORE ADVANTAGEOUS FOOTING THAN REGULARLY RETIRED ENLISTED MEN, HIS RETAINER PAY SHOULD BE REDUCED TO THAT TO WHICH HE WAS ENTITLED ON 31 MAY 1942, PLUS THE ALLOWANCES. YOUR DECISION IS REQUESTED ACCORDINGLY.

YOUR FIRST QUESTION WOULD APPEAR TO BE ANSWERED IN DECISION OF JANUARY 12, 1942, 21 COMP. GEN. 656, IN WHICH IT WAS HELD:

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. THE FACT THAT THE FLEET RESERVIST HERE CONCERNED WAS PROMOTED FROM SERGEANT TO GUNNERY SERGEANT WHILE SERVING ON ACTIVE DUTY PRIOR TO BEING TRANSFERRED TO THE RETIRED LIST DOES NOT AFFECT THE RULE STATED IN THE ABOVE DECISION. HE WAS, WHEN RELEASED FROM ACTIVE DUTY ON THE RETIRED LIST, ENTITLED TO ONLY THE PAY OF THE GRADE HELD AT TIME OF TRANSFER TO THE FLEET RESERVE. SINCE HE WAS NOT RETIRED UNDER THE ACT OF MARCH 2, 1907, 34 U.S.C. 431, APPLICABLE TO ENLISTED MEN WHO HAVE SERVED 30 YEARS IN THE REGULAR MARINE CORPS, HIS PROMOTION WHILE ON ACTIVE DUTY AS A RETIRED FLEET RESERVIST DOES NOT ENTITLE HIM TO THE BENEFITS OF THE ACT OF JULY 1, 1918, 40 STAT. 719, QUOTED IN YOUR LETTER.

YOUR SECOND AND THIRD QUESTIONS ARE UNDERSTOOD TO CONCERN WHETHER, UNDER THE PROVISIONS OF THE SAVING CLAUSE CONTAINED IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 369, THE MEN INVOLVED ARE ENTITLED TO BE PAID RETIRED PAY COMPUTED ON THE BASIS OF THE PAY PROVIDED IN SUCH PAY READJUSTMENT ACT OF 1942 AND, IN ADDITION THERETO, BE PAID THE ALLOWANCES PROVIDED BY THE ACT OF MARCH 2, 1907, 34 STAT. 1217, WHICH, PRIOR TO JUNE 1, 1942, FLEET RESERVISTS ON THE RETIRED LIST, RETIRED AFTER 30 YEARS WERE ENTITLED TO RECEIVE UNDER THE PERTINENT PROVISIONS OF THE NAVAL RESERVE ACTS. YOU STATE THESE QUESTIONS ARE RAISED---

* * * IN VIEW OF THE PROVISO CONTAINED IN SECTION 19 OF THE 1942 ACT, RELATIVE TO BENEFITS TO WHICH FLEET RESERVISTS BECOME ENTITLED UPON THE COMPLETION OF THIRTY YEARS SERVICE, NOT CONSIDERED IN THE COMPTROLLER GENERAL'S DECISION 22 C.G. 344, OF 14 OCTOBER 1942. * * *

THE FIRST PARAGRAPH OF THE SAID SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 369, IS AS FOLLOWS:

"SEC. 19. NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: PROVIDED, HOWEVER, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO DEPRIVE ANY ENLISTED MAN TRANSFERRED TO THE FLEET RESERVE ON OR PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY FOR PHYSICAL DISABILITY, OF ANY BENEFITS, INCLUDING PAY, ALLOWANCES, OR COMPENSATION, WHICH HE WOULD BE ENTITLED TO RECEIVE UPON THE COMPLETION OF THIRTY YEARS UNDER LAWS IN FORCE ON THE DATE OF ENACTMENT OF THIS ACT. ADDITION TO THE GENERAL SAVING CLAUSE IN THE FIRST PART OF THAT SECTION, THE PROVISO QUOTED ABOVE SAVES TO ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE ON OR PRIOR TO THE DATE OF THE ENACTMENT ANY BENEFITS INCLUDING PAY, ALLOWANCES, ETC., WHICH THEY WOULD BE ENTITLED TO RECEIVE UPON THE COMPLETION OF THIRTY YEARS UNDER LAWS IN FORCE ON THE DATE OF THE ENACTMENT. IN OTHER WORDS, IT SAVES TO THOSE RESERVISTS COMING WITHIN ITS PROVISION ANY BENEFITS, INCLUDING PAY, ALLOWANCES, ETC., TO WHICH THEY WERE ENTITLED PRIOR TO THE ENACTMENT OF THAT ACT. IN THE SAID DECISION OF OCTOBER 14, 1942, 22 COMP. GEN. 344, IT WAS HELD, QUOTING THE SYLLABUS:

THE PROVISION IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, SAVING PERSONS, ACTIVE OR RETIRED, COVERED BY THE ACT FROM ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH ENTITLED ON THE EFFECTIVE DATE OF THE ACT, SAVES TO PREVIOUSLY RETIRED ENLISTED MEN ONLY THE TOTAL RETIRED PAYMENT THERETOFORE RECEIVED, WHETHER IT WAS PAY ALONE OR CONSISTED OF PAY PLUS COMMUTED ALLOWANCES, AND WHERE THE RETIRED PAY COMPUTED ON PAY PRESCRIBED BY THE SAID 1942 ACT IS GREATER THAN THE TOTAL PAYMENT (CONSISTING OF PAY AND COMMUTED ALLOWANCES) THERETOFORE RECEIVED, THE MAN MAY NOT CONTINUE TO RECEIVE THE COMMUTED ALLOWANCES IN ADDITION TO THE GREATER PAY.

IT APPEARS THAT SERGEANT EDWARDS WAS TRANSFERRED TO THE FLEET MARINE RESERVE PRIOR TO JUNE 1, 1942, TO WIT, ON MAY 15, 1931, WITH OVER 16 YEARS' SERVICE, AND WAS PLACED ON THE RETIRED LIST, UNDER THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, ON FEBRUARY 1, 1943, WITH OVER 18 YEARS' ACTIVE SERVICE.

CORPORAL EVANS WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON JANUARY 27, 1932, WITH OVER 18 YEARS' ACTIVE SERVICE; TRANSFERRED TO THE RETIRED LIST ON JUNE 1, 1942, FOR PHYSICAL DISABILITY, UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AND COMPLETED 30 YEARS' SERVICE ON MARCH 15, 1943.

THE PROVISO CONTAINED IN SECTION 19, SUPRA, DOES NOT SAY THAT THE MEN THERE INVOLVED SHALL HAVE THE ALLOWANCES ADDED TO THE RETIRED PAY UNDER THE NEW RATES. IT SAYS THAT NOTHING CONTAINED IN THE ACT SHALL DEPRIVE ANY SUCH MAN OF ANY BENEFITS "WHICH HE WOULD BE ENTITLED TO RECEIVE UPON THE COMPLETION OF THIRTY YEARS UNDER LAWS IN FORCE ON THE DATE OF ENACTMENT OF THE ACT.' ( ITALICS SUPPLIED.) IT DOES NOT SAY THAT HE SHALL HAVE THE ALLOWANCES UNDER THE PREVIOUS LEGISLATION AND THE PAY UNDER THE NEW ACT. IT WAS INTENDED ONLY TO SAVE HIM THE THEN INCHOATE RIGHT OF HAVING HIS RETIRED PAY, INCLUDING THE ALLOWANCES, COMPUTED UNDER THE OLD LAWS RATHER THAN UNDER THE NEW ACT, IF THAT BASIS PROVED TO BE TO HIS ADVANTAGE WHEN HE FINALLY COMPLETED THE 30 YEARS. HE WOULD THEN BE IN THE SAME POSITION AS MEN OF THE SAME STATUS WHO COMPLETED THEIR 30 YEARS PRIOR TO JUNE 1, 1942, THAT IS, HE WOULD BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED EITHER UNDER THE OLD LAWS OR UNDER THE NEW ACT, THE SAME AS MEN WHO COMPLETED THEIR 30 YEARS PRIOR TO JUNE 1, 1942, BUT, THE SAME AS THEY, NOT TO HAVE THE ALLOWANCES UNDER THE OLD LAW PLUS THE PAY UNDER THE NEW ACT.

UNDER THE PROVISO TO SECTION 19 THE ENLISTED MEN MAY BE PAID THE TOTAL RETIRED PAY COMPUTED UNDER LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE 1942 PAY ACT PLUS THE ALLOWANCES; OR THE TOTAL RETIRED PAY TO WHICH THEY WOULD BE ENTITLED IF COMPUTED ON THE BASIS OF PAY AS PROVIDED IN THE 1942 ACT, WHICHEVER IS THE HIGHER, BUT THEY MAY NOT BE PAID THE PAY UNDER THE 1942 ACT AND, ALSO, THE ALLOWANCES AUTHORIZED UNDER PRIOR REPEALED LAWS.