B-38463, JANUARY 5, 1944, 23 COMP. GEN. 489

B-38463: Jan 5, 1944

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WHO WAS RETAINED ON ACTIVE DUTY SUBSEQUENT TO THE EXPIRATION OF HIS 4-YEAR TERM PURSUANT TO SECTION 5 OF THE SAID ACT. IS NOT ENTITLED TO RECEIVE SUCH RETAINER PAY UPON ENTERING HIS FIFTH YEAR AS A RESERVIST. IN WHICH YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. IT IS REPORTED THAT UNDER DATE OF AUGUST 11. THIS VOUCHER IS TO CLAIM AARP FOR THE YEAR OF 1943. SERGEANT EGLEY WAS ON ACTIVE DUTY. THE QUESTION HERE PRESENTED IS WHETHER HE MAY RECEIVE A FIFTH SUCH PAYMENT UPON ENTERING INTO HIS FIFTH YEAR IN THE MARINE CORPS RESERVE. IS HEREBY ABOLISHED. IN LIEU THEREOF THERE IS HEREBY CREATED AND ESTABLISHED AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS. MEN WHO HAVE SO OBLIGATED THEMSELVES SHALL BE TRANSFERRED TO THE FLEET RESERVE FOR THE FOUR-YEAR PERIOD.

B-38463, JANUARY 5, 1944, 23 COMP. GEN. 489

RETAINER PAY - MARINE CORPS RESERVE - AFTER EXPIRATION OF ENROLLMENT THE ANNUAL ADVANCE RETAINER PAY OF $20 AUTHORIZED UNDER SECTION 205 OF THE NAVAL RESERVE ACT OF 1938, FOR ENLISTED MEN IN THE REGULAR NAVY WHO OBLIGATE THEMSELVES TO SERVE 4 YEARS IN THE FLEET RESERVE UPON TERMINATION OF THEIR ENLISTMENTS IN THE REGULAR NAVY, MAY NOT BE PAID FOR RESERVE SERVICE SUBSEQUENT TO THE EXPIRATION OF SUCH 4-YEAR TERM, AND, THEREFORE, AN ENLISTED MARINE CORPS RESERVIST WHOSE ENROLLMENT EXPIRED IN TIME OF WAR, AND WHO WAS RETAINED ON ACTIVE DUTY SUBSEQUENT TO THE EXPIRATION OF HIS 4-YEAR TERM PURSUANT TO SECTION 5 OF THE SAID ACT, IS NOT ENTITLED TO RECEIVE SUCH RETAINER PAY UPON ENTERING HIS FIFTH YEAR AS A RESERVIST.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. JAMES L. DENHAM, U.S. MARINE CORPS, JANUARY 5, 1944:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF THE PAYMASTER, HEADQUARTERS, UNITED STATES MARINE CORPS, WASHINGTON, D.C., YOUR LETTER OF NOVEMBER 10, 1943, IN WHICH YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF ROBERT JAMES EGLEY, SERGEANT, CLASS I (E), UNITED STATES MARINE CORPS RESERVE, FOR $20 AS ANNUAL ADVANCE RETAINER PAY FOR THE YEAR 1943-1944.

IT IS REPORTED THAT UNDER DATE OF AUGUST 11, 1939, EGLEY OBLIGATED HIMSELF TO SERVE IN THE MARINE CORPS RESERVE FOR A PERIOD OF FOUR YEARS EFFECTIVE SEPTEMBER 10, 1939, FOLLOWING HIS DISCHARGE FROM A FOUR-YEAR ENLISTMENT IN THE REGULAR MARINE CORPS ON SEPTEMBER 9, 1939, AND THAT HE HAS NOT BEEN DISCHARGED SINCE THE NORMAL EXPIRATION OF SUCH OBLIGATION ON SEPTEMBER 9, 1943. THE VOUCHER TRANSMITTED WITH YOUR LETTER BEARS THE FOLLOWING NOTATION:

ENLISTED IN USMCR ON 10 SEPT. 39. NO TIME LOST. HELD FOR C OF G SINCE 10 SEPT. 43. SERVICE RECORD BOOK SHOWS: "PD. $20.00, 4TH. AARP BY W. M. MITCHELL ON ROLLS OF BKS. DEPT., MB, NYD, NEW YORK CITY, NEW YORK, FOR THE MONTH OF OCTOBER, 1942.' THIS VOUCHER IS TO CLAIM AARP FOR THE YEAR OF 1943.

IT THUS APPEARS THAT ON SEPTEMBER 9, 1943, THE NORMAL EXPIRATION DATE OF HIS OBLIGATION TO SERVE IN THE MARINE CORPS RESERVE, SERGEANT EGLEY WAS ON ACTIVE DUTY; THAT HE HAS BEEN RETAINED ON SUCH RESERVE SINCE THAT DATE; AND THAT HE HAS ALREADY RECEIVED FOUR PAYMENTS OF $20 AS ADVANCE RETAINER PAY. THE QUESTION HERE PRESENTED IS WHETHER HE MAY RECEIVE A FIFTH SUCH PAYMENT UPON ENTERING INTO HIS FIFTH YEAR IN THE MARINE CORPS RESERVE.

SECTIONS 2 AND 205 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1179, PROVIDE:

SEC. 2. THE UNITED STATES MARINE CORPS RESERVE ESTABLISHED UNDER THE ACT OF FEBRUARY 28, 1925, IS HEREBY ABOLISHED, AND IN LIEU THEREOF THERE IS HEREBY CREATED AND ESTABLISHED AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS, A MARINE CORPS RESERVE UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THIS ACT OR WHICH MAY HEREAFTER BE ENACTED PROVIDING FOR THE NAVAL RESERVE: PROVIDED, THAT THE MARINE CORPS RESERVE SHALL CONSIST OF THE FLEET MARINE CORPS RESERVE, THE ORGANIZED MARINE CORPS RESERVE, AND THE VOLUNTEER MARINE CORPS RESERVE, CORRESPONDING AS NEAR AS MAY BE, TO SIMILAR CLASSES OF THE NAVAL RESERVE.

SEC. 205. THE SECRETARY OF THE NAVY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, MAY REQUIRE ANY PERSON HEREAFTER WHEN ENLISTING IN THE REGULAR NAVY AND MAY AUTHORIZE ANY ENLISTED MAN IN SUCH SERVICE TO OBLIGATE HIMSELF TO SERVE FOUR YEARS IN THE FLEET RESERVE UPON TERMINATION OF THEIR ENLISTMENT IN THE REGULAR NAVY: PROVIDED, THAT UPON TERMINATION OF THEIR ENLISTMENT IN THE REGULAR NAVY, MEN WHO HAVE SO OBLIGATED THEMSELVES SHALL BE TRANSFERRED TO THE FLEET RESERVE FOR THE FOUR-YEAR PERIOD, UNLESS THEY APPLY FOR REENLISTMENT OR EXTENSION OF THEIR ENLISTMENT IN THE REGULAR NAVY, IN WHICH EVENT THEY MAY BE REENLISTED OR MAY EXTEND THEIR ENLISTMENT IN THE REGULAR NAVY; PROVIDED FURTHER, THAT, EXCEPT AS OTHERWISE PROVIDED FOR IN THIS ACT, THE MEN SO TRANSFERRED TO THE FLEET RESERVE FOR THE FOUR- YEAR PERIOD, AND OFFICERS AND MEN ASSIGNED THERETO UNDER THE PROVISIONS OF SECTION 201 OF THIS TITLE SHALL NOT, IN TIME OF PEACE, BE ORDERED TO ACTIVE DUTY, EXCEPT WITH THEIR OWN CONSENT AND SHALL BE UNDER NO OBLIGATION TO PERFORM TRAINING DUTY OR DRILL DURING THAT PERIOD, BUT SHALL BE PAID IN ADVANCE $20 PER ANNUM.

ARTICLE 13-20, MARINE CORPS MANUAL, PROVIDES IN PART:

THE MARINE CORPS RESERVE CONSISTS OF FIVE CLASSES AS FOLLOWS:

(1) CLASS I. FLEET MARINE CORPS RESERVE--- (A) COMMISSIONED OFFICERS AND WARRANT OFFICERS OF THE MARINE CORPS RESERVE WHO WERE HONORABLY DISCHARGED FROM THE REGULAR MARINE CORPS AFTER NOT LESS THAN 4 YEARS' SERVICE.

(B) ENLISTED RESERVISTS HAVING 16 YEARS' OR MORE REGULAR NAVAL SERVICE, WHO SERVED IN THE REGULAR NAVY OR MARINE CORPS ON OR BEFORE JULY 1, 1925.

(C) ENLISTED RESERVISTS WHO SERVED IN THE REGULAR NAVY OR MARINE CORPS ON OR PRIOR TO JULY 1, 1925, HAVING 20 YEARS' OR MORE REGULAR NAVAL SERVICE.

(D) ENLISTED RESERVISTS WHO FIRST ENLISTED IN THE REGULAR NAVY OR MARINE CORPS AFTER JULY 1, 1925, OR WHO REENLISTED THEREIN WITH BROKEN SERVICE AFTER JULY 1, 1925, HAVING 20 YEARS' OR MORE REGULAR NAVAL SERVICE. CONTINUOUS SERVICE IS NOT REQUIRED FOR TRANSFER TO CLASS I (D), FLEET MARINE CORPS RESERVE.

(E) ENLISTED RESERVISTS HAVING 4 YEARS' OR MORE HONORABLE REGULAR NAVAL SERVICE WHO DOT NOT COME UNDER SUBPARAGRAPHS (B), (C), OR (D) HEREIN. THE TERM " 4 YEARS" INCLUDES A MINORITY DISCHARGE OR A DISCHARGE 3 MONTHS PRIOR TO NORMAL EXPIRATION OF A 4-YEAR ENLISTMENT. ARTICLE 4-23 OF THE ABOVE MANUAL PROVIDES IN PART:

(1) IN ACCORDANCE WITH THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854 B, C, D), MEMBERS OF THE REGULAR MARINE CORPS ARE ELIGIBLE FOR TRANSFER OR ASSIGNMENT TO THE FLEET MARINE CORPS RESERVE AS FOLLOWS:

(D)TO CLASS I (E).--- ENLISTED MEN, WHO UPON OR DURING ENLISTMENT IN THE REGULAR MARINE CORPS, OBLIGATE THEMSELVES TO SERVE 4 YEARS IN THE MARINE CORPS RESERVE UPON TERMINATION OF THEIR ENLISTMENT IN THE REGULAR MARINE CORPS.

ARTICLE 13-92 OF THE MANUAL PROVIDES IN PART:

(3) FROM CLASS I (E).--- (A)ON THE COMPLETION OF 4 YEARS' SERVICE IN CLASS I (E), MEN WHO EXTEND THEIR ENLISTMENT OR REENLIST, WILL BE TRANSFERRED TO THE ORGANIZED RESERVE OR VOLUNTEER RESERVE AS APPROPRIATE.

THE ANNUAL ADVANCE RETAINER PAY OF $20 GRANTED BY THE LAST PROVISO IN SECTION 205, SUPRA, IS NOT A PAYMENT FOR ANY SERVICE TO BE RENDERED, BUT IS IN THE NATURE OF A GRATUITY DUE AND PAYABLE ANNUALLY. CF. 4 COMP. GEN. 1036, 1040. SUCH PAY IS GIVEN IN CONSIDERATION OF THE MAN'S VOLUNTARY AGREEMENT TO BE AVAILABLE, FOR A PERIOD OF FOUR YEARS, FOR ACTIVE DUTY IN THE EVENT OF WAR OR NATIONAL EMERGENCY.

SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES IN PERTINENT PART AS OLLOWS:

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: * * * PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

UPON OBLIGATING HIMSELF TO SERVE IN THE MARINE CORPS RESERVE FOR A PERIOD OF FOUR YEARS FOLLOWING DISCHARGE FROM THE REGULAR MARINE CORPS ON SEPTEMBER 9, 1939, THE ENLISTED MAN NECESSARILY BECAME SUBJECT TO THE CONDITIONS PRESCRIBED IN SECTION 5, SUPRA, TO PERFORM THE ACTIVE DUTY THEREIN REQUIRED, UNLESS RELEASED BY THE SECRETARY OF THE NAVY AS AUTHORIZED IN THE LAST PROVISO, AND IF ACTIVE DUTY AS A RESERVIST WAS REQUIRED OF HIM SUBSEQUENT TO THE FOUR-YEAR PERIOD BEGINNING SEPTEMBER 9, 1943, SUCH ACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE APPEARS TO HAVE BEEN INCIDENT TO THE PROVISIONS OF SAID SECTION 5 SINCE HIS VOLUNTARY TERM OF RESERVE SERVICE UNDER SECTION 205 EXPIRED BY LIMITATION ON SUCH DATE.

YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.