B-5191, AUGUST 15, 1939, 19 COMP. GEN. 205

B-5191: Aug 15, 1939

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PAY - RETIRED - REAR ADMIRAL OF THE NAVAL RESERVE AN OFFICER APPOINTED TO THE GRADE OF REAR ADMIRAL IN THE NAVAL RESERVE IS ENTITLED UPON TRANSFER TO THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938. IT WAS HELD THAT THE PAY OF THE ONE OFFICER OF THE GRADE OR RANK OF REAR ADMIRAL ALLOWED IN TIME OF PEACE IN THE U.S. WAS "LIMITED TO THAT OF A COMMODORE OR REAL (REAR) ADMIRAL OF THE LOWER HALF.'. NAVAL RESERVE IN TIME OF PEACE WILL. TO WHICH RETIRED PAY HE WOULD HAVE BEEN ENTITLED IF SERVING IN THE GRADE OF CAPTAIN AT THE TIME OF SUCH TRANSFER. SINCE THE DETERMINATION THEREIN THAT A NAVAL RESERVE REAR ADMIRAL IS ENTITLED TO A CERTAIN RATE OF PAY APPEARS TO BE BASED ON OTHER SECTIONS OF SAID ACT AND PROVISIONS OF PRIOR LAWS.

B-5191, AUGUST 15, 1939, 19 COMP. GEN. 205

PAY - RETIRED - REAR ADMIRAL OF THE NAVAL RESERVE AN OFFICER APPOINTED TO THE GRADE OF REAR ADMIRAL IN THE NAVAL RESERVE IS ENTITLED UPON TRANSFER TO THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, TO RETIRED PAY COMPUTED UNDER SECTION 310 OF THE SAID ACT AND "AT THE RATE OF 50 PERCENTUM" OF THE ACTIVE-DUTY PAY OF A REAR ADMIRAL OF THE LOWER HALF IF OTHERWISE WITHIN THE REQUIREMENTS OF SECTION 310 OF THE SAID ACT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 15, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 25, 1939, AS FOLLOWS:

IN THE ACTING COMPTROLLER GENERAL'S DECISION OF JUNE 19, 1939, B 3084, IT WAS HELD THAT THE PAY OF THE ONE OFFICER OF THE GRADE OR RANK OF REAR ADMIRAL ALLOWED IN TIME OF PEACE IN THE U.S. NAVAL RESERVE, IN ACCORDANCE WITH SECTION 306 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1182; 34 U.S. CODE, SUP. IV, SEC. 855E), WAS "LIMITED TO THAT OF A COMMODORE OR REAL (REAR) ADMIRAL OF THE LOWER HALF.'

THE ABOVE-MENTIONED DECISION RAISES THE FURTHER QUESTION AS TO WHETHER THE OFFICER APPOINTED TO THE GRADE OF REAR ADMIRAL IN THE U.S. NAVAL RESERVE IN TIME OF PEACE WILL, UPON TRANSFER IN SUCH GRADE TO THE HONORARY RETIRED LIST ESTABLISHED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938, BE DEPRIVED OF RETIRED PAY AS PROVIDED IN SECTION 310 OF SAID ACT, TO WHICH RETIRED PAY HE WOULD HAVE BEEN ENTITLED IF SERVING IN THE GRADE OF CAPTAIN AT THE TIME OF SUCH TRANSFER.

SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 PROVIDES FOR PAYMENT OF RETIRED PAY TO CERTAIN OFFICES ON THE HONORARY RETIRED LIST "AT THE RATE OF 40 PERCENTUM OF THEIR ACTIVE DUTY RATE OF PAY AS PRESCRIBED IN SECTION 7, TITLE I, OF THIS ACT.'

HOWEVER, THE FIRST PARAGRAPH ON PAGE 6 AND TH LAST PARAGRAPH ON PAGE 7 OF THE DECISION OF JUNE 19, 1939, RAISE A DOUBT AS TO WHETHER SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 MAKES ANY PROVISION FOR THE PAY OF A NAVAL RESERVE OFFICER IN THE GRADE OF REAR ADMIRAL, SINCE THE DETERMINATION THEREIN THAT A NAVAL RESERVE REAR ADMIRAL IS ENTITLED TO A CERTAIN RATE OF PAY APPEARS TO BE BASED ON OTHER SECTIONS OF SAID ACT AND PROVISIONS OF PRIOR LAWS.

IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER AN OFFICER APPOINTED TO THE GRADE OF REAR ADMIRAL IN THE U.S. NAVAL RESERVE, PURSUANT TO THE TERMS OF SECTION 306 OF THE NAVAL RESERVE ACT OF 1938, WILL, UPON TRANSFER TO THE HONORARY RETIRED LIST OF THE U.S. NAVAL RESERVE AND ASSUMING THAT HE OTHERWISE COMES WITHIN THE ACTIVE SERVICE REQUIREMENTS TO ENTITLE HIM TO RECEIVE RETIRED PAY AS PROVIDED IN SECTION 310 OF SAID ACT, BE ENTITLED TO RETIRED PAY ON THE HONORARY RETIRED LIST OF THE U.S. NAVAL RESERVE "AT THE RATE OF 50 PERCENTUM" OF THE ACTIVE DUTY PAY OF A REAR ADMIRAL OF THE LOWER HALF. IF THIS QUESTION IS ANSWERED IN THE NEGATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO WHAT PAY, IF ANY, SUCH OFFICER WOULD BE ENTITLED TO RECEIVE WHILE ON THE HONORARY RETIRED LIST OF THE U.S. NAVAL RESERVE IN THE GRADE OR RANK OF REAR ADMIRAL.

THE DECISION OF JUNE 19, 1939, HELD THAT THE REAR ADMIRAL ALLOWED IN THE NAVAL RESERVE IN TIME OF PEACE BY SECTION 306 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1182, WAS ENTITLED TO HAVE HIS PAY COMPUTED UNDER SECTION 8 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, AS OF THE LOWER HALF AND THE BASIS THEREFOR WAS THAT NO OTHER CONCLUSION COULD GIVE PROPER EFFECT TO SECTIONS 305 AND 306.

SECTION 310 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, PROVIDES:

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.

WHILE SECTION 310 PROVIDES THAT RETIRED PAY OF OFFICERS COMING WITHIN ITS PROVISIONS SHALL BE COMPUTED ON A PERCENTUM OF THE RATES OF PAY PRESCRIBED IN SECTION 7 OF THE ACT, SUCH PROVISION IS NO MORE APPLICABLE TO A REAR ADMIRAL ON THE HONORARY RETIRED LIST THAN TO A REAR ADMIRAL ON THE ACTIVE LIST OF THE NAVAL RESERVE. IT SEEMS CLEAR THAT THE LIMITING PROVISION IN SECTION 306 AUTHORIZING ONE REAR ADMIRAL IN THE NAVAL RESERVE IN TIME OF PEACE HAS REFERENCE ONLY TO THE ACTIVE LIST AND DOES NOT REQUIRE SUCH OFFICER WHEN AND IF RETIRED TO REVERT TO A LOWER GRADE TO MAKE ROOM FOR A SUCCESSOR ON THE ACTIVE LIST IN THE SAME GRADE, AND THERE IS NOTHING IN THE ACT TO INDICATE THAT THE REAR ADMIRAL ON THE HONORARY RETIRED LIST IS TO RECEIVE RETIRED PAY COMPUTED UPON A GRADE LOWER THAN THAT HELD BY HIM AT THE TIME OF RETIREMENT. IT WILL BE NOTED THAT SECTION 310 PROVIDES THAT THEY SHALL BE ENTITLED TO 50 PERCENTUM OF THEIR ACTIVE-DUTY RATE OF PAY, WHICH HAS BEEN HELD TO BE PAY OF A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY. B-3084 DATED JUNE 19, 1939.

ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE INFORMED THAT AN OFFICER APPOINTED TO THE GRADE OF REAR ADMIRAL IN THE NAVAL RESERVE WOULD BE ENTITLED UPON TRANSFER TO THE HONORARY RETIRED LIST TO RECEIVE RETIRED PAY COMPUTED AT THE RATE OF 50 PERCENTUM OF THE ACTIVE-DUTY PAY OF A REAR ADMIRAL OF THE LOWER HALF IF OTHERWISE WITHIN THE REQUIREMENTS OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938.