B-55223, SEPTEMBER 2, 1947, 27 COMP. GEN. 129

B-55223: Sep 2, 1947

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RESPECTING THE RETIREMENT PAY BENEFITS OF "ANY ENLISTED MAN OF THE REGULAR ARMY" WHO HAS COMPLETED A MINIMUM OF 20 BUT LESS THAN 30 YEARS OF ACTIVE FEDERAL SERVICE ARE NOT TO BE REGARDED AS APPLYING TO FORMER ENLISTED MEN WHO. WERE DISCHARGED PRIOR TO THE EFFECTIVE DATE OF THE ACT AND WHO THEREAFTER DO NOT ENLIST OR REENLIST IN THE REGULAR ARMY. WITH 19 YEARS AND 6 MONTHS OF ACTIVE SERVICE WAS TO BE REGARDED AS HAVING COMPLETED 20 YEARS' SERVICE IN DETERMINING HIS RETIRED PAY PERCENTAGE RATE AS WELL AS HIS RIGHT TO RETIREMENT AND. WHICHEVER IS GREATER. RESPECTING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE "AVERAGE ANNUAL ENLISTED PAY" RECEIVED FOR 6 MONTHS "IMMEDIATELY" PRECEDING RETIREMENT IS TO BE REGARDED AS HAVING APPLIED SOLELY TO ENLISTED PAY.

B-55223, SEPTEMBER 2, 1947, 27 COMP. GEN. 129

PAY - RETIRED - ARMY ENLISTED MEN - EFFECT OF SECTION 4 OF ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED BY SECTION 6 (A) OF THE ACT OF AUGUST 10, 1946, RESPECTING THE RETIREMENT PAY BENEFITS OF "ANY ENLISTED MAN OF THE REGULAR ARMY" WHO HAS COMPLETED A MINIMUM OF 20 BUT LESS THAN 30 YEARS OF ACTIVE FEDERAL SERVICE ARE NOT TO BE REGARDED AS APPLYING TO FORMER ENLISTED MEN WHO, ALTHOUGH OTHERWISE QUALIFIED, WERE DISCHARGED PRIOR TO THE EFFECTIVE DATE OF THE ACT AND WHO THEREAFTER DO NOT ENLIST OR REENLIST IN THE REGULAR ARMY. ANY ARMY ENLISTED MAN RETIRED PURSUANT TO SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 PRIOR TO THE AMENDING ACT OF AUGUST 10, 1946, WITH 19 YEARS AND 6 MONTHS OF ACTIVE SERVICE WAS TO BE REGARDED AS HAVING COMPLETED 20 YEARS' SERVICE IN DETERMINING HIS RETIRED PAY PERCENTAGE RATE AS WELL AS HIS RIGHT TO RETIREMENT AND, UNDER THE SAVING PROVISIONS OF THE 1946 STATUTE, HE CONTINUES TO BE ENTITLED TO SUCH PERCENTAGE RATE MULTIPLIED BY THE ACTIVE-DUTY PAY PROVIDED BY THE ORIGINAL ACT OR THAT PROVIDED BY THE AMENDING ACT, WHICHEVER IS GREATER, NOTWITHSTANDING THAT THE AMENDING STATUTE PRECLUDES THE COUNTING OF 6 MONTHS AS A COMPLETE YEAR IN DETERMINING ELIGIBILITY FOR RETIREMENT. THE PROVISION IN SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945--- IN EFFECT PRIOR TO THE AMENDING ACT OF AUGUST 10, 1946-- RESPECTING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE "AVERAGE ANNUAL ENLISTED PAY" RECEIVED FOR 6 MONTHS "IMMEDIATELY" PRECEDING RETIREMENT IS TO BE REGARDED AS HAVING APPLIED SOLELY TO ENLISTED PAY, SO THAT HIGHER RATES OF PAY ACTUALLY RECEIVED AS A COMMISSIONED OR WARRANT OFFICER IMMEDIATELY PRECEDING AN ENLISTED MAN'S TRANSFER TO THE ENLISTED RESERVE CORPS ARE TO BE DISREGARDED. THE PROVISION IN SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945--- IN EFFECT PRIOR TO THE AMENDING ACT OF AUGUST 10, 1946-- THAT RETIRED PAY BE COMPUTED ON THE BASIS OF THE AVERAGE ANNUAL ENLISTED PAY RECEIVED FOR 6 MONTHS "IMMEDIATELY" PRECEDING TRANSFER TO THE ENLISTED RESERVE CORPS IS TO BE REGARDED, IN THE CASE OF AN ENLISTED MAN WHO SERVED MOST OF SUCH PERIOD AS A TEMPORARY COMMISSIONED OFFICER, AS REQUIRING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE AVERAGE PAY HE RECEIVED AS AN ENLISTED MAN FOR THE ENTIRE PERIOD HE ACTUALLY SERVED IN AN ENLISTED STATUS DURING SUCH 6 MONTHS' PERIOD. A FORMER ARMY ENLISTED MAN WHO, PRIOR TO THE EFFECTIVE DATE OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, WAS HONORABLY DISCHARGED FROM THE SERVICE FOR PHYSICAL DISABILITY AFTER HAVING COMPLETED 19 YEARS, 11 MONTHS, AND 20 DAYS OF ACTIVE SERVICE IS NOT ENTITLED TO COUNT, PURSUANT TO SECTION 4 OF SAID ACT, FRACTIONAL YEAR'S SERVICE AMOUNTING TO 6 MONTHS OR MORE AS A COMPLETE YEAR IN DETERMINING HIS "ELIGIBILITY FOR RETIREMENT" UNDER SECTION 2 OF THE ACT OF JUNE 30, 1941, AS AMENDED, PROVIDING FOR THE RETIREMENT OF ENLISTED MEN ON ACCOUNT OF PHYSICAL DISABILITY AFTER 20 OR MORE YEARS OF SERVICE. AN ENLISTED MAN TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED UNDER SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED, AFTER 20 YEARS AND MORE THAN 6 MONTHS' ACTIVE SERVICE, WHO, BY REASON OF COMMISSIONED SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, ELECTED UNDER SECTION 127 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED, TO RECEIVE THE RETIRED PAY OF A WARRANT OFFICER COMPUTED ON THE BASIS OF COMPLETE SERVICE YEARS PURSUANT TO SECTION 5 OF THE ACT OF AUGUST 21, 1941, RATHER THAN THE RETIRED PAY OF HIS ENLISTED GRADE, IS NOT ENTITLED UNDER SAID SECTION 4 TO COUNT A FRACTIONAL YEAR'S SERVICE AS A COMPLETE YEAR IN COMPUTING SUCH RETIRED PAY. AN ARMY ENLISTED MAN RETIRED FOR PHYSICAL DISABILITY WITH 20 YEARS AND MORE THAN 6 MONTHS OF SERVICE AND IN RECEIPT OF RETIRED PAY UNDER SECTION 3 OF THE ACT OF JUNE 30, 1941, COMPUTED ON THE BASIS OF LONGEVITY CREDIT FOR OVER 18 BUT LESS THAN 21 YEARS OF SERVICE, IS NOT NOW ENTITLED BY REASON OF THE ENACTMENT OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED, TO HAVE HIS LONGEVITY PAY RECOMPUTED ON THE BASIS THAT 6 MONTHS OR MORE ARE TO BE CREDITED AS A COMPLETE YEAR. AN ARMY ENLISTED MAN WHO, AFTER HAVING COMPLETED 29 YEARS AND 6 MONTHS OR MORE OF ACTIVE SERVICE, WAS RETIRED UNDER THE ACT OF MARCH 2, 1907, AS AMENDED, WITH PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE-DUTY PAY UPON RETIREMENT, IS NOT ENTITLED, BY REASON OF HAVING BEEN RETIRED DURING THE EFFECTIVE PERIOD OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 WHICH AUTHORIZED THE COUNTING OF 6 MONTHS OR MORE AS A COMPLETE YEAR IN DETERMINING YEARS OF SERVICE TO BE CREDITED IN COMPUTING RETIREMENT PAY, TO LONGEVITY CREDIT FOR OVER 30 YEARS' SERVICE, BUT, RATHER, IS ENTITLED ONLY TO THE LONGEVITY PAY HE WAS ACTUALLY RECEIVING UPON RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 2, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 14, 1946, REQUESTING DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE RETIREMENT AND COMPUTATION OF THE ANNUAL OR RETIRED PAY OF ENLISTED MEN OF THE REGULAR ARMY TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED PURSUANT TO THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, PUBLIC LAW 190, APPROVED OCTOBER 6, 1945, 59 STAT. 539, AND THE APPLICATION, IF ANY, OF CERTAIN PROVISIONS OF THE SAID SECTION 4 TO STATUTES SUCH AS THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 10 U.S.C. 947; THE ACT OF JUNE 3, 1916, AS AMENDED, 10 U.S.C. 981; AND THE ACT OF JUNE 30, 1941, 55 STAT. 394, AS AMENDED, 10 U.S.C. 934, DEALING WITH THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY. THE QUESTIONS WILL BE CONSIDERED IN THE ORDER PRESENTED.

THE FIRST QUESTION IS AS FOLLOWS:

(A) ARE THE RETIREMENT PAY BENEFITS PROVIDED BY SECTION 4 OF THE ACT OF 6 OCTOBER 1945, SUPRA, LIMITED IN THEIR APPLICATION TO ENLISTED MEN OF THE REGULAR ARMY WHO, ON THE EFFECTIVE DATE OF SAID ACT, WERE ON AN ACTIVE DUTY STATUS, AND THOSE WHO THEREAFTER ENTER ON AN ACTIVE DUTY STATUS, OR ARE THEY EQUALLY APPLICABLE TO FORMER ENLISTED MEN OF THE REGULAR ARMY WHO, BEING OTHERWISE QUALIFIED, HAVE BEEN DISCHARGED PRIOR TO THE EFFECTIVE DATE OF SAID ACT AND ARE NOW OUT OF THE SERVICE?

SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, 59 STAT. 539, PROVIDES AS FOLLOWS:

WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY SHALL HAVE COMPLETED NOT LESS THAN TWENTY OR MORE THAN TWENTY-NINE YEARS OF ACTIVE SERVICE, HE MAY UPON HIS OWN REQUEST BE TRANSFERRED TO THE ENLISTED RESERVE CORPS (TO REMAIN A MEMBER THEREOF UNTIL HIS ACTIVE SERVICE PLUS THE PERIOD OF HIS MEMBERSHIP IN SUCH CORPS EQUALS THIRTY YEARS) AND AT THE SAME TIME BE RETIRED FROM THE REGULAR ARMY. AN ENLISTED MAN SO TRANSFERRED AND RETIRED SHALL RECEIVE, EXCEPT WITH RESPECT TO PERIODS OF ACTIVE DUTY HE MAY BE REQUIRED TO PERFORM, UNTIL HIS DEATH, ANNUAL PAY EQUAL TO 2 1/2 PERCENTUM OF THE AVERAGE ANNUAL ENLISTED PAY (INCLUDING LONGEVITY PAY) HE WAS RECEIVING FOR THE SIX MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT MULTIPLIED BY A SUM EQUAL TO THE SUM OF THE NUMBER OF YEARS OF HIS ACTIVE SERVICE PERFORMED NOT IN EXCESS OF TWENTY-NINE YEARS. THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE RIGHT TO RETIREMENT AND RETIREMENT PAY AUTHORIZED BY THIS SECTION, OR ANY OTHER PROVISION OF LAW PROVIDING FOR THE RETIREMENT OF AN ENLISTED MAN OF THE REGULAR ARMY, SHALL INCLUDE ALL ACTIVE FEDERAL MILITARY SERVICE PERFORMED IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS OR THE COAST GUARD, OR ANY COMPONENT THEREOF, ANY FRACTIONAL PART OF THE YEAR AMOUNTING TO SIX MONTHS OR MORE TO BE COUNTED AS A COMPLETE YEAR.

SUBSEQUENT TO THE PRESENT SUBMISSION REPRESENTATIVES OF THE WAR DEPARTMENT INFORMALLY SUGGESTED THAT CONSIDERATION OF THE QUESTIONS PRESENTED BE WITHHELD PENDING THE POSSIBLE ENACTMENT OF CERTAIN AMENDATORY LEGISLATION, WHICH LATER WAS ENACTED AS PUBLIC LAW 720, APPROVED AUGUST 10, 1946, 60 STAT. 993, 995, AMENDING THE SAID SECTION 4 TO READ AS FOLLOWS:

SEC. 6 (A) SECTION 4 OF THE ACT APPROVED OCTOBER 6, 1945 ( PUBLIC LAW 190, SEVENTY-NINTH CONGRESS), IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 4. WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY SHALL HAVE COMPLETED A MINIMUM OF TWENTY BUT LESS THAN THIRTY YEARS OF ACTIVE FEDERAL SERVICE, HE MAY, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE, UPON HIS OWN REQUEST BE TRANSFERRED TO THE ENLISTED RESERVE CORPS AND THEREUPON WILL BE PLACED ON THE RETIRED LIST OF THE REGULAR ARMY. AN ENLISTED MAN SO TRANSFERRED AND RETIRED SHALL RECEIVE, EXCEPT WHEN ON ACTIVE DUTY, MONTHLY RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE ENLISTED GRADE HELD AT THE TIME HE MADE APPLICATION FOR RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE, NOT TO EXCEED THIRTY YEARS. THE RETIRED PAY AUTHORIZED BY THIS SECTION SHALL BE INCREASED 10 PERCENTUM FOR ANY ENLISTED MAN WHO IS CREDITED WITH EXTRAORDINARY HEROISM IN LINE OF DUTY: PROVIDED, THAT THE DETERMINATION OF THE SECRETARY OF WAR AS TO EXTRAORDINARY HEROISM FOR PURPOSES OF THIS SECTION SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES: PROVIDED FURTHER, THAT THE TOTAL RETIRED PAY (INCLUDING THE 10 PERCENTUM INCREASE FOR EXTRAORDINARY HEROISM) AUTHORIZED BY THIS SECTION SHALL NOT IN ANY CASE EXCEED 75 PERCENTUM OF THE TOTAL ENLISTED BASE AND LONGEVITY PAY SUCH ENLISTED MAN WAS RECEIVING AT THE TIME HE MADE APPLICATION FOR RETIREMENT: AND PROVIDED FURTHER, THAT ANY FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE SHALL BE COUNTED AS A COMPLETE YEAR FOR THE PURPOSE OF COMPUTING RETIRED PAY, BUT SHALL NOT BE COUNTED FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT UNDER THIS SECTION.'

(B) THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING ELIGIBILITY FOR RETIREMENT UNDER THIS ACT OR ANY OTHER ACT PROVIDING FOR RETIREMENT OF ENLISTED MEN OF THE ARMY SHALL INCLUDE ALL ACTIVE FEDERAL SERVICE PERFORMED IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF.

(C) ANY ENLISTED MAN RETIRED UNDER THE PROVISIONS OF SECTION 4 OF THE ACT APPROVED OCTOBER 6, 1945 ( PUBLIC LAW 190, SEVENTY-NINTH CONGRESS), SHALL, COMMENCING THE FIRST DAY OF THE MONTH FOLLOWING THE EFFECTIVE DATE OF THIS ACT, RECEIVE RETIRED PAY COMPUTED AS PROVIDED IN SECTION 6 OF THIS ACT.

SECTION 9 OF THE ACT, 60 STAT. 997, READS AS FOLLOWS:

SEC. 9. NO BACK PAY FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT OF THIS ACT SHALL ACCRUE TO ANY PERSON BY REASON OF THE ENACTMENT OF THIS ACT EXCEPT AS OTHERWISE PROVIDED IN SECTION 3. NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE ARMED FORCES, 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. * * *

THE PHRASE "ANY ENLISTED MAN OF THE REGULAR ARMY" APPEARING IN THE SAID SECTION 4, AS ORIGINALLY ENACTED AND AS AMENDED, APPEARS CLEARLY TO HAVE REFERENCE TO PERSONS WHO HELD SUCH STATUS ON THE EFFECTIVE DATE OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 AND TO PERSONS WHO MIGHT THEREAFTER ACQUIRE SUCH STATUS. CONSEQUENTLY, IT WOULD NOT INCLUDE ENLISTED MEN OF THE REGULAR ARMY WHO WERE DISCHARGED PRIOR TO THE EFFECTIVE DATE OF THE ACT AND WHO THEREAFTER DO NOT ENLIST OR REENLIST IN THE REGULAR ARMY. IN THAT CONNECTION IT IS A SETTLED RULE OF STATUTORY CONSTRUCTION THAT STATUTES APPLY ONLY TO FUTURE CASES UNLESS OTHERWISE EXPRESSLY STATED OR UNLESS IT APPEARS BY NECESSARY IMPLICATION FROM THE LANGUAGE AND NATURE OF THE STATUTE THAT IT WAS INTENDED TO BE RETROACTIVELY EFFECTIVE. 21 COMP. GEN. 870, AND CASES CITED THEREIN. QUESTION A IS ANSWERED ACCORDINGLY.

QUESTION B IS STATED AS FOLLOWS:

(B) IN THE CASE OF AN ENLISTED MAN OF THE REGULAR ARMY ON ACTIVE SERVICE WHO, AFTER COMPLETING NINETEEN YEARS AND SIX MONTHS OR MORE OF ACTIVE SERVICE, BUT LESS THAN TWENTY YEARS OF ACTUAL SERVICE, IS PLACED ON THE RETIRED LIST UPON HIS OWN REQUEST PURSUANT TO SECTION 4 OF THE ACT OF 6 OCTOBER 1945, SUPRA, IS HIS RETIRED PAY TO BE COMPUTED ON THE BASIS OF 50 PERCENTUM (20 X 2 1/2 PERCENT) OF HIS ACTIVE DUTY PAY AS DEFINED IN CITED ACT, OR IS HIS RETIRED PAY UNDER SAID ACT TO BE COMPUTED ON THE BASIS OF ACTUAL SERVICE ONLY?

THE FIRST SENTENCE OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS ORIGINALLY ENACTED, 59 STAT. 539, PROVIDED THAT WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY SHALL HAVE COMPLETED NOT LESS THAN 20 YEARS OF ACTIVE SERVICE, HE MAY BE TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED. THE SECOND SENTENCE OF THE SAID SECTION AUTHORIZED ANY ENLISTED MEN RETIRED THEREUNDER TO BE RETIRED WITH ANNUAL PAY EQUAL TO 2 1/2 PERCENTUM OF THE AVERAGE ANNUAL ENLISTED PAY HE WAS RECEIVING FOR THE 6 MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT, MULTIPLIED BY A SUM EQUAL TO THE NUMBER OF YEARS OF HIS ACTIVE SERVICE, NOT IN EXCESS OF 29 YEARS. THE THIRD SENTENCE OF THE SAID SECTION PROVIDED THAT THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE "RIGHT TO RETIREMENT" AND "RETIREMENT PAY," AUTHORIZED BY THIS SECTION, SHALL INCLUDE ALL ACTIVE FEDERAL SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR ANY RESERVE COMPONENTS THEREOF,"ANY FRACTIONAL PART OF A YEAR AMOUNTING TO 6 MONTHS OR MORE TO BE COUNTED AS A COMPLETE YEAR.' WHILE THE FIRST SENTENCE OF SAID SECTION, AS ORIGINALLY ENACTED, REQUIRED THE COMPLETION OF "NOT LESS THAN 20 YEARS" OF ACTIVE SERVICE, THE THIRD SENTENCE OF THE SAID SECTION AUTHORIZED THE COUNTING OF A FRACTIONAL PART OF A YEAR OF 6 MONTHS OR MORE AS A COMPLETE YEAR IN COMPUTING NOT ONLY "RETIREMENT PAY" BUT ALSO THE "RIGHT TO RETIREMENT" UNDER THAT ACT OR ANY OTHER PROVISION OF LAW PROVIDING FOR THE RETIREMENT OF AN ENLISTED MAN OF THE REGULAR ARMY. HENCE, THE ENLISTED MAN REFERRED TO IN QUESTION B, HAVING COMPLETED 19 YEARS AND 6 MONTHS' ACTIVE SERVICE, WAS PROPERLY TO BE CONSIDERED AS HAVING COMPLETED 20 YEARS OF SERVICE FOR THE PURPOSE OF DETERMINING HIS "RIGHT TO RETIREMENT" UNDER THE ORIGINAL SECTION 4 OF THE SAID ACT. AND SUCH ENLISTED MAN IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER THE ORIGINAL SECTION 4 ON THE BASIS OF 50 (20 TIMES 2 1/2) PERCENTUM OF THE AVERAGE ANNUAL ENLISTED PAY HE WAS RECEIVING FOR THE 6 MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT.

HOWEVER, IT IS TO BE NOTED THAT SECTION 6 (A) OF THE ACT OF AUGUST 10, 1946, 60 STAT. 995, AMENDED THE ORIGINAL SECTION 4 SO AS TO PROVIDE THAT AN ENLISTED MAN OF THE REGULAR ARMY, WHO HAS COMPLETED A MINIMUM OF 20, BUT LESS THAN 30, YEARS OF ACTIVE FEDERAL SERVICE, AND WHO IS TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED, SHALL RECEIVE MONTHLY RETIRED PAY AT THE RATE OF "2 1/2 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE ENLISTED GRADE HELD AT THE TIME HE MADE APPLICATION FOR RETIREMENT," MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE, NOT TO EXCEED 30 YEARS. AND THE THIRD PROVISO OF THE SAID SECTION 6 (A) MADE A FURTHER CHANGE IN THE ORIGINAL SECTION 4 BY PROVIDING THAT ANY FRACTIONAL PART OF A YEAR AMOUNTING TO 6 MONTHS OR MORE SHALL BE COUNTED AS A COMPLETE YEAR FOR THE PURPOSE OF COMPUTING RETIREMENT PAY, BUT SHALL NOT BE COUNTED FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT. SECTION 6 (C) OF THE AMENDED ACT, 60 STAT. 996, PROVIDES, IN EFFECT, THAT ANY ENLISTED MAN RETIRED UNDER THE ORIGINAL SECTION 4 SHALL, COMMENCING SEPTEMBER 1, 1946, RECEIVE RETIRED PAY COMPUTED AS PROVIDED IN THE AMENDED SECTION 4, SUPRA, BUT SECTION 9 OF THE AMENDED ACT CONTAINS THE USUAL SAVINGS CLAUSE THAT NO PERSON SHALL SUFFER, BY REASON OF SUCH ACT, ANY REDUCTION IN PAY AND ALLOWANCES OR COMPENSATION TO WHICH HE WAS ENTITLED PRIOR TO THE EFFECTIVE DATE THEREOF. HENCE, ASSUMING THAT THE ENLISTED MAN REFERRED TO IN QUESTION (B) WAS TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED PRIOR TO THE ACT OF AUGUST 10, 1946- - WHICH ACT PRECLUDES THE COUNTING OF 6 MONTHS AS A COMPLETE YEAR FOR PURPOSES OF DETERMINING ELIGIBILITY FOR RETIREMENT--- BUT AFTER HAVING COMPLETED 19 YEARS AND 6 MONTHS OR MORE, BUT LESS THAN 20 YEARS OF ACTIVE FEDERAL SERVICE, HE WOULD BE ENTITLED ON AND AFTER SEPTEMBER 1, 1946, TO 50 (20 TIMES 2 1/2) PERCENTUM OF THE AVERAGE ANNUAL ENLISTED PAY HE WAS RECEIVING FOR 6 MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT, OR 50 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE ENLISTED GRADE HE HELD AT THE TIME HE MADE APPLICATION FOR RETIREMENT, WHICHEVER IS GREATER. QUESTION (B) IS ANSWERED ACCORDINGLY.

QUESTION (C) IS AS FOLLOWS:

(C) IN VIEW OF THE PHRASE,"AVERAGE ANNUAL ENLISTED PAY," APPEARING IN THE 9TH AND 10TH LINES OF SECTION 4 OF THE ACT OF 6 OCTOBER 1945, SUPRA, IT IS ASSUMED THAT FOR THE PURPOSE OF COMPUTING RETIRED PAY, IT WILL BE NECESSARY TO UTILIZE RATES OF PAY APPLICABLE TO ENLISTED MEN ONLY, DISREGARDING HIGHER RATES OF PAY ACTUALLY EARNED IN THE CAPACITY OF WARRANT OR COMMISSIONED OFFICER DURING THE SIX MONTHS OF SERVICE IMMEDIATELY PRECEDING RETIREMENT. IF THIS ASSUMPTION IS CORRECT AND THE PRECEDING QUESTION IS ANSWERED IN THE AFFIRMATIVE, YOUR DECISION IS REQUESTED AS TO THE CORRECTNESS OF THE COMPUTATION IN THE FOLLOWING ILLUSTRATIVE CASE:

TECHNICAL SERGEANT "A," HONORABLY DISCHARGED FROM THE REGULAR ARMY ON 20 NOVEMBER 1940, FOR THE PURPOSE OF ENTERING ON ACTIVE DUTY AS RESERVE OFFICER, AT WHICH TIME HE HAD COMPLETED 14 YEARS AND MONTHS OF ACTIVE MILITARY SERVICE. ENTERED ON ACTIVE DUTY AS RESERVE OFFICER ON 21 NOVEMBER 1940, AND SERVED AS SUCH CONTINUOUSLY (INCLUDING HIGHER COMMISSIONED GRADES TO WHICH APPOINTED IN THE ARMY OF THE UNITED STATES), UNTIL 20 NOVEMBER 1945, ON WHICH DATE HE REVERTED TO AN INACTIVE STATUS UNDER HONORABLE CONDITIONS. HE REENLISTED AS MASTER SERGEANT IN THE REGULAR ARMY ON 21 NOVEMBER 1945, AND WAS PLACED ON THE RETIRED LIST IN THAT GRADE ON 31 DECEMBER 1945, PURSUANT TO SECTION 4 OF THE ACT OF OCTOBER 1945, SUPRA, AT WHICH TIME HE HAD COMPLETED 19 YEARS, 7 MONTHS, AND 10 DAYS OF ACTIVE MILITARY SERVICE. HIS AVERAGE ANNUAL ENLISTED PAY FOR THE SIX MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT, BASED ON THE VARIOUS GRADES DURING SUCH PERIOD, IS COMPUTED AS FOLLOWS: CHART

1940 PVT. CL--- JULY 1-31 (OVER 12 YEARS) -------------------- $ 64.80 CORPORAL--- AUGUST 1-31 (OVER 12 YEARS) ------------------ 79.20 SERGEANT- -- SEPTEMBER 1-30 (OVER 12 YEARS) --------------- 93.60 STAFF SGT.--- OCTOBER 1-31 (OVER 12 YEARS) --------------- 115.20 TECH. SGT.--- NOVEMBER 1-20 (OVER 12 YEARS) -------------- 91.20

1945 MASTER SGT.--- NOVEMBER 21-30 (OVER 18 YEARS) ----------- 59.80 MASTER SGT.--- DECEMBER 1-31 (OVER 18 YEARS) ------------- 179.40

683.20 AVERAGE ANNUAL ENLISTED PAY (PER MONTH) ------------ 113.8667 2 1/2 PERCENT OF AVERAGE ANNUAL ENLISTED PAY -------- 2.846667 MONTHLY RETIRED PAY: $2,846667 X 20 YEARS --------- 56.93

SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED, SPECIFICALLY PROVIDED THAT RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF THE ANNUAL ENLISTED PAY THE MAN WAS RECEIVING FOR THE 6 MONTHS "IMMEDIATELY PRECEDING" HIS RETIREMENT, WHICH NECESSARILY EXCLUDES PAY RECEIVED AS A WARRANT COMMISSIONED OFFICER DURING SUCH SIX MONTHS' PERIOD. ACCORDINGLY, THE ASSUMPTION IN YOUR QUESTION (C) THAT, IN THE COMPUTATION OF AN ENLISTED MAN'S ANNUAL OR RETIRED PAY UNDER THE ORIGINAL SECTION 4, THE HIGHER RATES OF PAY ACTUALLY RECEIVED AS A WARRANT OR COMMISSIONED OFFICER DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE MAN'S TRANSFER TO THE ENLISTED RESERVE CORPS AND RETIREMENT ARE TO BE DISREGARDED, IS CORRECT.

WITH RESPECT TO THE METHOD OF COMPUTING THE ANNUAL OR RETIRED PAY UNDER SECTION 4, AS ORIGINALLY ENACTED, IN CASES WHERE THE MAN ACTUALLY SERVED LESS THAN 6 MONTHS IN AN ENLISTED STATUS IMMEDIATELY PRECEDING HIS TRANSFER TO THE ENLISTED RESERVE CORPS, THE COMPUTATION IN THE EXAMPLE STATED IN QUESTION (C), TO MAKE UP THE 6 MONTHS, INCLUDES A PERIOD OF ENLISTED SERVICE PERFORMED SEVERAL YEARS PRIOR TO TRANSFER TO THE ENLISTED RESERVE CORPS. SUCH A METHOD OF COMPUTATION GIVES NO EFFECT TO THE STATUTORY REQUIREMENT THAT THE AVERAGE ANNUAL ENLISTED PAY IS TO BE COMPUTED ON THE BASIS OF THE ENLISTED PAY THE MAN WAS RECEIVING FOR THE 6 MONTHS "IMMEDIATELY PRECEDING" HIS RETIREMENT. THE WORD "IMMEDIATELY" IS USED AS AN ADVERB OF TIME AND IN ITS GENERALLY ACCEPTED MEANING DENOTES "CLOSENESS OF CONNECTION OR BEING NEXT IN ORDER" ( MISSOURI K. AND T. RY. COMPANY V. LYONS, 53 S.W. 96, 97), OR "WITHOUT ANY SUBSTANTIAL INTERVAL" ( GENNA V. CONTINENTAL CASUALTY COMPANY, 167 ILL. APP. 413). HENCE, ASSUMING THAT THE WORD "IMMEDIATELY" WAS USED IN ITS GENERALLY ACCEPTED MEANING, IT IS DOUBTFUL THAT THE STATUTE--- ALTHOUGH PROVIDING THAT THE AVERAGE ANNUAL ENLISTED PAY IS TO BE BASED ON THE ENLISTED PAY HE WAS RECEIVING FOR 6 MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT--- CONTEMPLATED THE INCLUSION IN CASES SUCH AS THAT HERE INVOLVED OF THE ENLISTED PAY THE MAN RECEIVED INCIDENT TO AN ENLISTED STATUS IN WHICH HE SERVED SEVERAL YEARS PRIOR TO HIS TRANSFER TO THE ENLISTED RESERVE CORPS, MERELY TO MAKE UP THE 6 MONTHS. A LITERAL APPLICATION OF THE SAID PROVISION IN SECTION 4, AS ORIGINALLY ENACTED, WOULD REQUIRE THAT A MAN, OTHERWISE ELIGIBLE FOR TRANSFER TO THE ENLISTED RESERVE CORPS, ACTUALLY SHOULD SERVE IN AN ENLISTED STATUS FOR A FULL 6 MONTHS FOLLOWING HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER, IRRESPECTIVE OF THE NEED FOR HIS SERVICES, FOR THE SOLE PURPOSE OF PROVIDING A BASIS FOR DETERMINING THE AVERAGE ANNUAL ENLISTED PAY HE WAS RECEIVING FOR THE SIX MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT. IT IS DOUBTFUL THAT THE STATUTE EITHER INTENDED OR CONTEMPLATED ANY SUCH RESULT. ON THE CONTRARY, THE PRIMARY PURPOSE OF STATUTORY PROVISIONS SUCH AS THAT APPEARING IN THE SAID SECTION 4, AS ORIGINALLY ENACTED, REQUIRING AN ENLISTED MAN'S RETIRED PAY TO BE BASED ON A PERCENTAGE OF THE AVERAGE PAY HE RECEIVED FOR 6 MONTHS PRIOR TO HIS RETIREMENT. CF. 21 COMP. GEN. 809. THAT IS NOT HERE INVOLVED AND IT IS CONCLUDED THAT THE ORIGINAL LANGUAGE OF THE SAID SECTION 4, AS APPLIED TO CASES SUCH AS THAT PRESENTED IN QUESTION (C), WHERE THE MAN SERVED LESS THAN 6 MONTHS IN AN ENLISTED STATUS IMMEDIATELY PRECEDING HIS TRANSFER TO THE ENLISTED RESERVE CORPS, REQUIRES THE COMPUTATION OF THE AVERAGE ANNUAL ENLISTED PAY ON THE BASIS OF THE ENLISTED PAY THE MAN RECEIVED FOR THE PERIOD ELAPSING BETWEEN THE DATE OF HIS ENLISTMENT OR REENLISTMENT IN THE REGULAR ARMY, FOLLOWING HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER, AND THE DATE OF HIS TRANSFER TO THE ENLISTED RESERVE CORPS. THAT VIEW OF THE SAID SECTION 4 MORE NEARLY GIVES EFFECT TO ITS SPECIFIC LANGUAGE, IN THAT THE ANNUAL OR RETIRED PAY, ALTHOUGH NOT BASED ON THE PAY HE RECEIVED FOR A FULL 6 MONTHS PRECEDING RETIREMENT WOULD BE BASED ON AN AVERAGE OF THE PAY HE RECEIVED AS AN ENLISTED MAN FOR THE WHOLE PERIOD HE ACTUALLY SERVED IN AN ENLISTED STATUS DURING THE 6 MONTHS' PERIOD "IMMEDIATELY PRECEDING" HIS TRANSFER TO THE ENLISTED RESERVE CORPS. ACCORDINGLY, THE ENLISTED MAN REFERRED TO IN THE STATED EXAMPLE WAS ENTITLED TO RETIRED PAY OF $89.70 A MONTH UNDER THE ORIGINAL PROVISIONS OF SECTION 4, ON THE BASIS OF HIS AVERAGE ENLISTED PAY OF $179.40 A MONTH FOR THE PERIOD NOVEMBER 21 TO DECEMBER 31, 1945, THAT BEING THE ONLY ENLISTED SERVICE HE HAD DURING THE 6 MONTHS "IMMEDIATELY PRECEDING" HIS RETIREMENT.

OF COURSE, THE FOREGOING METHOD OF COMPUTING AN ENLISTED MAN'S ANNUAL OR RETIRED PAY IS APPLICABLE ONLY TO CASES WHERE THE ENLISTED MAN ACTUALLY WAS TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED PRIOR TO ENACTMENT OF PUBLIC LAW 720, APPROVED AUGUST 10, 1946, THE ANNUAL PAY OF ENLISTED MEN SUBSEQUENTLY TRANSFERRED AND RETIRED (AS WELL AS THOSE PREVIOUSLY TRANSFERRED AND RETIRED, IF TO THEIR ADVANTAGE AFTER THE LATTER DATE) BEING FOR COMPUTATION IN ACCORDANCE WITH SECTION 6 OF THE ACT OF AUGUST 10, 1946, ON THE BASIS OF "THE ENLISTED GRADE HELD AT THE TIME HE MADE APPLICATION FOR RETIREMENT.'

QUESTION (D) IS AS FOLLOWS:

(D) IN THE CASE OF AN ENLISTED MAN OF THE REGULAR ARMY ON THE ACTIVE LIST WHO, AFTER HAVING COMPLETED TWENTY YEARS AND MORE THAN SIX MONTHS OF ACTIVE MILITARY SERVICE, IS RETIRED AT HIS OWN REQUEST, PURSUANT TO SECTION 4 OF THE ACT OF 6 OCTOBER 1945, SUPRA, AND WHO IS ENTITLED TO RECEIVE THE RETIRED PAY OF A WARRANT OFFICER AS PROVIDED BY THE ACT OF 3 JUNE 1916, AS AMENDED BY THE ACT OF 4 JUNE 1920 (41 STAT. 786), AS FURTHER AMENDED, SHOULD HIS RETIRED PAY BE COMPUTED ON THE BASIS OF THE ACTIVE PAY OF A WARRANT OFFICER, AND WITH OVER EIGHTEEN YEARS SERVICE OR OVER TWENTY- ONE YEARS OF SERVICE?

SECTION 127 (A) OF THE NATIONAL OFFENSE ACT OF JUNE 3, 1916, 39 STAT. 217, AS ADDED BY SECTION 51 OF THE ACT OF JUNE 4, 1920, 41 STAT. 785, 786, 787, AND AMPLIFIED BY SECTION 8 OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, AS AMENDED, 10 U.S.C. 981, PROVIDES AS FOLLOWS:

RETIRED ENLISTED MEN OF THE ARMY WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES OR AS COMMISSIONED OFFICERS, REGULAR, TEMPORARY, OR RESERVE, OF THE NAVY OF MARINE CORPS AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE ARMY: PROVIDED, THAT SUCH ENLISTED MAN RETIRED PRIOR TO JULY 1, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO THAT DATE, AND THAT ANY SUCH ENLISTED MAN RETIRED SUBSEQUENT TO JUNE 30, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED FURTHER THAT NOTHING IN THIS SECTION SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK, OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS SECTION BY VIRTUE OF HIS COMMISSIONED SERVICE.

THE "PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE," IS STIPULATED IN SECTION 5 OF THE ACT OF AUGUST 21, 1941, 55 STAT. 653, 10 U.S.C. 594, WHICH PROVIDES AS FOLLOWS:

WARRANT OFFICERS SHALL BE ENTITLED TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS: PROVIDED, THAT HEREAFTER WARRANT OFFICERS MAY, IN THE DISCRETION OF THE SECRETARY OF WAR, BE RETIRED AFTER FIFTEEN YEARS OF ACTIVE SERVICE: PROVIDED FURTHER, THAT A WARRANT OFFICER RETIRED AFTER FIFTEEN YEARS OF ACTIVE SERVICE SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF HIS ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF ACTIVE SERVICE IN THE ARMY, BUT NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF HIS ACTIVE PAY.

SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED AND AS AMENDED, READ IN CONJUNCTION WITH SECTION 8 OF THE ACT OF JUNE 6, 1924, AS AMENDED, REASONABLY APPEARS TO CONTEMPLATE THAT AN ENLISTED MAN OF THE REGULAR ARMY WHO SERVED HONORABLY AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, AND IS TRANSFERRED TO THE ENLISTED RESERVE CORPS AND RETIRED UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF OCTOBER 6, 1945, SHALL RECEIVE EITHER THE RETIRED PAY AUTHORIZED BY LAW FOR A RETIRED WARRANT OFFICER OF EQUAL LENGTH OF SERVICE OR THE RETIRED PAY AUTHORIZED BY LAW FOR HIS ENLISTED GRADE, WHICHEVER IS GREATER. IN THE EVENT SUCH AN ENLISTED MAN ELECTS TO RECEIVE THE RETIRED PAY OF A WARRANT OFFICER OF EQUAL LENGTH OF SERVICE, HOWEVER, SUCH RETIRED PAY IS REQUIRED TO BE COMPUTED EXCLUSIVELY ON THE BASIS OF LAWS GOVERNING THE COMPUTATION OF RETIRED PAY OF WARRANT OFFICERS. THAT IS TO SAY, AN ENLISTED MAN WHO MAKES AN ELECTION TO RECEIVE THE RETIRED PAY OF A WARRANT OFFICER OF EQUAL LENGTH OF SERVICE, IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF A COMBINATION OF THE MOST BENEFICIAL FEATURES OF THE DIFFERENT RETIREMENT LAWS APPLICABLE TO ENLISTED MEN AND WARRANT OFFICERS. HENCE, IN THE EVENT SUCH AN ENLISTED MAN ELECTS TO RECEIVE THE RETIRED PAY OF A WARRANT GRADE, AS AUTHORIZED UNDER SECTION 127 (A) OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, SUPRA, HE WOULD NOT BE ENTITLED UNDER SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS AMENDED--- WHICH IS APPLICABLE IN THE COMPUTATION OF THE RETIRED PAY OF ENLISTED MEN ONLY--- TO COUNT A FRACTIONAL PART OF A YEAR OF 6 MONTHS OR MORE AS A COMPLETE YEAR IN THE COMPUTATION OF SUCH RETIRED PAY. APPLYING THE SPECIFIC PROVISIONS IN SECTION 5 OF THE ACT OF AUGUST 21, 1941, SUPRA, SPECIALLY FIXING THE RETIRED PAY OF WARRANT OFFICERS RETIRED AFTER MORE THAN 15 YEARS OF SERVICES ON THE BASIS OF COMPLETE YEARS OF SERVICE, ONLY--- TO COUNT A FRACTIONAL PART OF A YEAR OF 6 MONTHS OR MORE AS A COMPLETE YEAR, A WARRANT OFFICER RETIRED (NOT FOR DISABILITY OR AGE) AFTER MORE THAN 20 YEARS AND 6 MONTHS BUT LESS THAN 21 YEARS OF SERVICE WOULD BE ENTITLED TO RETIRED PAY OF 50 PERCENTUM (20 TIMES 2 1/2 ( OF HIS ACTIVE DUTY PAY AS A WARRANT OFFICER WITH OVER 18 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES. THAT, LIKEWISE, WOULD BE THE MEASURE OF THE RETIRED PAY OF THE ENLISTED MAN REFERRED TO IN QUESTION (D) IF HE ELECTED TO RECEIVE THE RETIRED PAY OF A WARRANT OFFICER OF "EQUAL LENGTH OF SERVICE.' QUESTION (D) IS ANSWERED ACCORDINGLY.

QUESTIONS (E), (F), AND (G) READ AS FOLLOWS:

(E) ARE THE RETIREMENT PAY BENEFITS PROVIDED BY THE ACT OF 30 JUNE 1941 (55 STAT. 394), AS AMENDED BY THE ACT OF 4 MAY 1945 ( PUBLIC LAW 51--- 79TH CONG.), AND AS APPARENTLY LIBERALIZED BY SECTION 4 OF THE ACT OF 6 OCTOBER 1945, SUPRA, LIMITED IN THEIR APPLICATION TO ENLISTED MEN OF THE REGULAR ARMY, WHO, ON THE EFFECTIVE DATE OF THE LATTER ACT WERE ON AN ACTIVE DUTY STATUS, AND THOSE WHO THEREAFTER ENTER ON AN ACTIVE DUTY STATUS, OR ARE THEY EQUALLY APPLICABLE TO FORMER ENLISTED MEN OF THE REGULAR ARMY WHO, BEING OTHERWISE QUALIFIED, HAVE BEEN HONORABLY DISCHARGED PRIOR TO THE EFFECTIVE DATE OF THE LATTER ACT AND ARE NOW OUT OF THE SERVICE? IN THIS CONNECTION, THERE IS BEFORE THE WAR DEPARTMENT THE APPLICATION FOR RETIREMENT FOR DISABILITY INCURRED IN LINE OF DUTY UNDER THE ACT OF 30 JUNE 1941, AS AMENDED, SUPRA, OF AN ENLISTED MAN WHO WAS HONORABLY DISCHARGED ON A CERTIFICATE OF DISABILITY IN 1933, WHO, AT THE TIME OF SUCH HONORABLE DISCHARGE, HAD COMPLETED NINETEEN YEARS, ELEVEN MONTHS, AND TWENTY DAYS OF ACTIVE MILITARY SERVICE. MAY RETIRED PAY BE PAID TO SUCH ENLISTED MAN ON THE BASIS PROVIDED BY SECTION 3 OF THE ACT OF 30 JUNE 1941, AS AMENDED, SUPRA?

(F) IF THE QUESTION POSED IN THE LAST SENTENCE OF THE PRECEDING SUBPARAGRAPH IS ANSWERED IN THE AFFIRMATIVE, IS THE RETIRED PAY TO BE COMPUTED ON THE BASIS OF THE RATES OF PAY ESTABLISHED BY THE ACT OF 16 JUNE 1942 (56 STAT. 363), AS AMENDED, AS HELD, ON THE FACTS OF THE CASE THERE PRESENTED, IN THE DECISION OF 3 NOVEMBER 1943 (23 COMP. GEN. 330), AND THE DECISIONS CITED HEREIN?

(G) ASSUMING THAT THE ENLISTED MAN REFERRED TO IN SUBPARAGRAPH (E), ABOVE WAS ADMINISTRATIVELY PLACED ON THE RETIRED LIST PURSUANT TO THE ACT OF 4 MAY 1945 ( PUBLIC LAW 51--- 79TH CONG.), MAY RETIRED PAY BE PAID FOR ANY PERIOD PRIOR TO 6 OCTOBER 1945?

SECTION 1 OF PUBLIC LAW 140, APPROVED JUNE 30, 1941, 55 STAT. 394, PROVIDES, INTER ALIA, THAT AN ENLISTED MAN OF THE REGULAR ARMY WHO HAS HAD LESS THAN 20 YEARS' SERVICE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED SHALL BE DISCHARGED. SECTION 2 THEREOF PROVIDES: AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE PLACED ON THE RETIRED LIST. THE ACT OF MAY 4, 1945, 59 STAT. 135, AMENDED THE SAID SECTION 2, AS FOLLOWS:

THAT SECTION 2 OF PUBLIC LAW 140, SEVENTY-SEVENTH CONGRESS, IS HEREBY AMENDED BY ADDING A COLON AT THE END THEREOF AND THE FOLLOWING: "PROVIDED, THAT THIS ACT SHALL APPLY TO ALL FORMER ENLISTED MEN OF THE REGULAR ARMY AND THE PHILIPPINE SCOUTS WHO HAVE SERVED FOR TWENTY YEARS OR MORE, AND WHO WERE HONORABLY DISCHARGED THEREFROM BY REASON OF BECOMING PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY: PROVIDED FURTHER, THAT ANY FORMER ENLISTED MAN PLACED UPON THE RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF THE FOREGOING PROVISO SHALL NOT BE ENTITLED TO RECEIVE RETIREMENT PAY FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF THIS AMENDMENT.' SECTION 5 OF THE SAID ACT, 55 STAT. 395, PROVIDES:

ALL PERIODS OF SERVICE WHICH ARE NOW COUNTED UNDER PROVISIONS OF EXISTING LAW IN COMPUTING THE TIME NECESSARY TO ENABLE AN ENLISTED MAN TO RETIRE UPON COMPLETION OF THIRTY YEARS OF SERVICE SHALL BE CREDITED IN THE COMPUTATION OF THE TWENTY YEARS OF SERVICE NECESSARY TO CONFER ELIGIBILITY FOR RETIREMENT HEREUNDER.

QUESTION (E) RAISES THE POINT WHETHER AN ENLISTED MAN WHO HAD COMPLETED 19 YEARS, 11 MONTHS, AND 20 DAYS OF ACTIVE MILITARY SERVICE IN 1933 WHEN HE WAS HONORABLY DISCHARGED FOR DISABILITY WAS ENTITLED TO COUNT, BY REASON OF THE PROVISION IN SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED, THE FRACTIONAL PART OF A YEAR AMOUNTING TO 6 MONTHS OR MORE AS A COMPLETE YEAR IN DETERMINING "ELIGIBILITY FOR RETIREMENT," UNDER THE PROVISIONS OF SECTION 2 OF THE SAID ACT OF JUNE 30, 1941, AS AMENDED.

IN VIEW OF THE PROVISION IN SECTION 6 (A) OF THE ACT OF AUGUST 10, 1946, AMENDING THE ORIGINAL SECTION 4 SO AS TO PROVIDE SPECIFICALLY THAT A FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE SHALL NOT BE COUNTED AS A COMPLETE YEAR FOR THE PURPOSE OF DETERMINING "ELIGIBILITY FOR RETIREMENT," THE ONLY QUESTION NOW TO BE DECIDED IS WHETHER A FORMER ENLISTED MAN LEGALLY IS ENTITLED TO RETIRED PAY IF, AS POSSIBLY INDICATED IN QUESTION (G), HE ADMINISTRATIVELY WAS PLACED ON THE RETIRED LIST UNDER THE ACT OF JUNE 30, 1941, DURING THE PERIOD THE ORIGINAL SECTION 4 OF THE ACT OF OCTOBER 6, 1945, WAS IN EFFECT, WHERE HE HAD COMPLETED 19 YEARS AND 6 MONTHS OR MORE, BUT LESS THAN 20 YEARS, OF ACTIVE SERVICE WHEN HE WAS DISCHARGED PRIOR TO THE 1945 AMENDMENT OF THE 1941 ACT.

THE RETIREMENT BENEFITS AUTHORIZED UNDER SECTION 2 OF THE ACT OF JUNE 30, 1941, FOR ENLISTED MEN OF THE REGULAR ARMY WHO SERVE 20 YEARS OR MORE IN THE MILITARY FORCES AND BECOME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO DISABILITY INCURRED IN LINE OF DUTY, WERE EXTENDED FOR ACTIVE SERVICE DUE TO DISABILITY INCURRED IN LINE OF DUTY, WERE EXTENDED BY THE ACT OF MAY 4, 1945, 59 STAT. 135, TO FORMER ENLISTED MEN OF THE REGULAR ARMY UNDER THE IDENTICAL CONDITIONS PRESCRIBED IN SECTION 2 OF THE ACT OF JUNE 30, 1941. HOWEVER, WHILE SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED, AUTHORIZED THE COUNTING OF A FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE AS A COMPLETE YEAR IN COMPUTING "RIGHT TO RETIREMENT" UNDER THAT SECTION "OR ANY OTHER PROVISION OF LAW PROVIDING FOR THE RETIREMENT OF AN ENLISTED MAN OF THE REGULAR ARMY," SUCH PROVISION IN THE ACT OF OCTOBER 6, 1945, WAS NOT RETROACTIVE--- SEE ANSWER TO QUESTION (A/--- AND MAY NOT BE REGARDED AN INTENDED TO BESTOW ADDITIONAL RETIREMENT RIGHTS UPON FORMER ENLISTED MEN WHO HAD BEEN DISCHARGED FROM THE ARMY BECAUSE THEY HAD NOT COMPLETED THE REQUIRED FULL 20 YEARS OF ACTIVE MILITARY SERVICE PREVIOUSLY REQUIRED. SECTION 1 OF THE SAID ACT OF JUNE 30, 1941, SPECIFICALLY PROVIDED THAT DISABLED ENLISTED MEN OF THE REGULAR ARMY WHO HAD COMPLETED LESS THAN 20 YEARS OF SERVICE IN THE MILITARY FORCES SHOULD BE DISCHARGED. AND THE PROVISION IN THE ACT OF MAY 4, 1945, AMENDING SECTION 2 OF THE 1941 ACT SO AS TO BESTOW RETIREMENT BENEFITS UPON FORMER DISABLED ENLISTED MEN WHO HAD COMPLETED 20 YEARS OF ACTIVE SERVICE, HAD NO APPLICATION TO ENLISTED MEN WHO PREVIOUSLY HAD BEEN DISCHARGED FROM THE ARMY WITH LESS THAN 20 YEARS OF SERVICE. SINCE, AS POINTED OUT IN ANSWER TO QUESTION (A), SECTION 4 OF THE ACT OF OCTOBER 6, 1945, WAS INTENDED TO APPLY TO ENLISTED MEN THEN SERVING, OR WHO MIGHT THEREAFTER SERVE, IN THE REGULAR ARMY, THERE WOULD BE NO BASIS FOR HOLDING THAT IT INTENDED TO AUTHORIZE RECOMPUTATION OF SERVICE OF FORMER ENLISTED MEN WHO HAD BEEN DISCHARGED FROM THE ARMY PRIOR TO COMPLETING THE MINIMUM OF 20 YEARS OF SERVICE THEN REQUIRED TO ESTABLISH ELIGIBILITY FOR RETIREMENT.

FOR THE REASONS STATED ABOVE, IT MUST BE CONCLUDED THAT THE ENLISTED MAN REFERRED TO IN QUESTION (E), WHO WAS DISCHARGED IN 1933, AFTER HAVING COMPLETED ONLY 19 YEARS, 11 MONTHS, AND 20 DAYS OF MILITARY SERVICE, WAS NOT WITHIN THE PROVISIONS OF SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AND IS NOT ENTITLED TO RETIRED PAY UNDER THE ACT OF JUNE 30, 1941, AS AMENDED. SINCE QUESTION (E) IS ANSWERED IN THE NEGATIVE, NO ANSWER IS REQUIRED TO QUESTIONS (F) AND (G) WHICH ARE PREDICATED UPON AN AFFIRMATIVE ANSWER TO QUESTION (E).

QUESTION (H) IS STATED AS FOLLOWS:

(H) IN THE CASE OF ANY ENLISTED MAN OF THE REGULAR ARMY HERETOFORE RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY PURSUANT TO THE ACT OF 30 JUNE 1941, AS AMENDED, SUPRA, WHO HAD TWENTY YEARS AND MORE THAN SIX MONTHS OF SERVICE BUT LESS THAN TWENTY-ONE YEARS AT THE TIME OF HIS RETIREMENT, MAY HIS RETIRED PAY, FOR LONGEVITY PURPOSES, NOW BE RECOMPUTED SO THAT HE MAY BE PAID FOR AN ADDITIONAL YEAR OF SERVICE? IF THE ANSWER IS IN THE AFFIRMATIVE, MAY THE RETIRED PAY BE RECOMPUTED AND PAID AS OF THE DATE OF RETIREMENT OR IS 6 OCTOBER 1945, THE EFFECTIVE DATE FOR THIS PURPOSE?

SECTION 3 OF THE SAID ACT OF JUNE 30, 1941, 55 STAT. 394, PROVIDES THAT ANY ENLISTED MAN OF THE REGULAR ARMY RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL, WHEN PLACED ON THE RETIRED LIST PURSUANT TO THAT ACT, RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR 6 MONTHS PRIOR TO RETIREMENT. THE ENLISTED MAN REFERRED TO IN QUESTION (H) HAD COMPLETED 20 YEARS AND MORE THAN 6 MONTHS OF SERVICE PRIOR TO RETIREMENT AND, PRESUMABLY, IS RECEIVING RETIRED PAY COMPUTED ON THE BASIS OF LONGEVITY CREDIT FOR OVER 18 BUT LESS THAN 21 YEARS OF SERVICE. EVEN THOUGH IT PROPERLY COULD BE ASSUMED THAT SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED, OR AS AMENDED, CONTEMPLATED COMPUTATION OF LONGEVITY PAY, IN COMPUTING RETIRED PAY, IN OTHERWISE PROPER CASES, ON THE BASIS THAT SIX MONTHS ARE TO BE CREDITED AS A COMPLETE YEAR (SEE ANSWER TO QUESTION (I) (, THE PROVISION IN SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED, AND AS AMENDED, AUTHORIZING THE COUNTING OF A FRACTIONAL PART OF A YEAR OF 6 MONTHS OR MORE AS A COMPLETE YEAR IN COMPUTING RETIRED PAY, IS NOT RETROACTIVELY EFFECTIVE SO AS TO PERMIT ENLISTED MEN THERETOFORE PLACED ON THE RETIRED LIST UNDER THE ACT OF JUNE 30, 1941, NOW TO RECOMPUTE THEIR LONGEVITY PAY ON THE BASIS THAT 6 MONTHS OR MORE ARE TO BE CREDITED AS A COMPLETE YEAR. SEE THE ANSWERS TO QUESTIONS (A) AND (B). ACCORDINGLY, QUESTION (H) IS ANSWERED IN THE NEGATIVE.

QUESTION (I) READS AS FOLLOWS:

(I) WHERE AN ENLISTED MAN OF THE REGULAR ARMY IS HEREAFTER RETIRED UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF 2 MARCH 1907 (34 STAT. 1217), AS AMENDED BY SECTION 19 OF THE ACT OF 16 JUNE 1942 (56 STAT. 369), AND AS APPARENTLY LIBERALIZED BY SECTION 4 OF THE ACT OF 6 OCTOBER 1945, SUPRA, AFTER COMPLETING TWENTY-NINE YEARS AND MORE THAN SIX MONTHS OF ACTIVE SERVICE BUT LESS THAN THIRTY YEARS OF ACTUAL SERVICE, IS HIS RETIRED PAY TO BE COMPUTED FOR LONGEVITY PURPOSES, ON THE BASIS OF OVER TWENTY-SEVEN YEARS OR OVER THIRTY YEARS OF SERVICE?

THE SAID ACT OF MARCH 2, 1907, 34 STAT. 1217, AS AMENDED BY SECTION 19 OF THE ACT OF JUNE 16, 1942, 56 STAT. 369, PROVIDES THAT WHENEVER ANY ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS SHALL HAVE SERVED 30 YEARS HE SHALL BE PLACED UPON THE RETIRED LIST WITH "75 PERCENTUM OF THE PAY HE MAY THEN BE IN RECEIPT OF," AND SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS ORIGINALLY ENACTED, PROVIDED THAT ANY FRACTIONAL PART OF THE YEAR OF 6 MONTHS OR MORE SHALL BE COUNTED AS A COMPLETE YEAR FOR THE PURPOSE OF COMPUTING THE "RIGHT TO RETIREMENT" AND "RETIREMENT PAY" UNDER THIS ACT "OR ANY OTHER PROVISION OF LAW PROVIDING FOR THE RETIREMENT OF AN ENLISTED MAN OF THE REGULAR ARMY.' SINCE THE QUOTED "RIGHT TO RETIREMENT" PROVISION WAS OMITTED FROM THE AMENDED SECTION 4 AND THUS REPEALED, SUCH PROVISION COULD HAVE NO LEGAL APPLICATION TO ENLISTED MEN RETIRED UNDER THE ACT OF MARCH 2, 1907, ON AND AFTER THE EFFECTIVE DATE OF THE ACT OF AUGUST 10, 1946. HOWEVER, IN VIEW OF THE SAVINGS CLAUSE CONTAINED IN SECTION 9 OF THE ACT OF AUGUST 10, 1946, SUPRA, THAT NO PERSON, ACTIVE OR RETIRED, SHALL SUFFER ANY REDUCTION IN PAY OR ALLOWANCES TO WHICH HE WAS ENTITLED ON THE EFFECTIVE DATE OF THAT ACT, QUESTION (I) WILL BE ANSWERED ON THE BASIS THAT THE ENLISTED MAN ACTUALLY WAS PLACED ON THE RETIRED LIST UNDER THE ACT OF MARCH 2, 1907, AS AMENDED, AND THE ORIGINAL SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AFTER HAVING COMPLETED 29 YEARS AND 6 MONTHS OF ACTIVE SERVICE. SEE ANSWER TO QUESTION (B).

THE ORIGINAL SECTION 4, INSOFAR AS PAY IS CONCERNED, MERELY AUTHORIZED THE COUNTING OF 6 MONTHS OR MORE AS A COMPLETE YEAR FOR THE PURPOSE OF DETERMINING "THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING * * * RETIREMENT PAY; " IT DID NOT AUTHORIZE THE COUNTING OF SUCH FRACTIONAL PART OF A YEAR AS A COMPLETE YEAR IN DETERMINING THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE LONGEVITY PAY THE MAN WAS RECEIVING AT TIME OF RETIREMENT, OR THE "AVERAGE ANNUAL ENLISTED PAY" THE MAN WAS RECEIVING FOR THE 6 MONTHS' PERIOD IMMEDIATELY PRECEDING HIS RETIREMENT. THE BASE AND LONGEVITY PAY OF ENLISTED MEN IS PRESCRIBED BY SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, WHICH DOES NOT AUTHORIZE THE COUNTING OF FRACTIONAL PARTS OF A YEAR OF 6 MONTHS OR MORE AS A COMPLETE YEAR IN DETERMINING LONGEVITY PAY. UNDER THE ORIGINAL SECTION 4, AN ENLISTED MAN'S "RETIREMENT PAY" IS DETERMINED BY MULTIPLYING THE NUMBER OF YEARS OF ACTIVE SERVICE BY 2 1/2 PERCENTUM OF HIS AVERAGE ENLISTED PAY FOR 6 MONTHS PRIOR TO RETIREMENT, AND SUCH SECTION MERELY PROVIDED THAT IN DETERMINING THE "NUMBER OF YEARS OF SERVICE," THAT IS, THE MULTIPLIER, TO BE USED IN COMPUTING RETIREMENT PAY--- NOT IN COMPUTING THE AVERAGE ANNUAL ENLISTED PAY--- ANY FRACTIONAL PART OF A YEAR AMOUNTING TO 6 MONTHS OR MORE SHALL BE CREDITED AS A COMPLETE YEAR. SUCH MULTIPLIER DOES NOT ENTER INTO THE COMPUTATION OF RETIRED PAY UNDER THE 1907 ACT, THE RATE BEING FIXED AT 75 PERCENTUM OF THE PAY BEING RECEIVED AT THE TIME OF RETIREMENT. HENCE, IT MUST BE CONCLUDED THAT, IF THE ENLISTED MAN REFERRED TO IN QUESTION (I) WAS PLACED ON THE RETIRED LIST UNDER THE ACT OF MARCH 2, 1907, AS AMENDED, DURING THE EFFECTIVE PERIOD OF THE ORIGINAL SECTION 4, AFTER HAVING COMPLETED 29 YEARS AND 6 MONTHS OR MORE OF ACTIVE SERVICE, HE WOULD BE ENTITLED, IN THE COMPUTATION OF HIS RETIRED PAY, TO LONGEVITY CREDIT FOR ONLY 27 YEARS OF SERVICE, THAT IS, THE LONGEVITY PAY HE WAS ACTUALLY RECEIVING AT THE TIME OF RETIREMENT. CF. 21 COMP. GEN. 301; B-27322, JANUARY 12, 1943.

QUESTION (J) IS AS FOLLOWS:

(J) IN THE CASE OF AN ENLISTED MAN HERETOFORE RETIRED WITH TWENTY THREE YEARS AND MORE THAN SIX MONTHS OF SERVICE, WHO WAS CREDITED WITH THIRTY YEARS OF SERVICE FOR RETIREMENT PURPOSES BY VIRTUE OF DOUBLE TIME CREDITS FOR CERTAIN FOREIGN SERVICE, IS HIS RETIRED PAY TO BE RECOMPUTED SO THAT HE MAY NOW BE PAID, FOR LONGEVITY PAY PURPOSES, FOR OVER TWENTY-FOUR YEARS OF SERVICE?

FOR THE REASONS STATED IN THE ANSWER TO QUESTION (I) THE ENLISTED MAN REFERRED TO IN QUESTION (J) WOULD NOT BE ENTITLED TO CREDIT FOR OVER 24 YEARS OF SERVICE UNDER THE SAID SECTION 4 IN COMPUTING LONGEVITY PAY FOR RETIRED PAY PURPOSES.