B-56499, JULY 3, 1946, 26 COMP. GEN. 5

B-56499, JULY 3, 1946, 26 COMP. GEN. 5

PAY - RETIRED - RETIRED FLEET MARINE CORPS RESERVISTS ADVANCED ON RETIRED LIST TO TEMPORARY COMMISSIONED RANK A FLEET MARINE CORPS RESERVIST RETIRED UNDER THE PROVISIONS OF SECTIONS 203 AND 204 OF THE NAVAL RESERVE ACT OF 1938 WHO, UPON RELEASE FROM ACTIVE DUTY, AFTER RETIREMENT, UNDER A TEMPORARY WARTIME COMMISSION, WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF SUCH TEMPORARY COMMISSION WITH RETIRED PAY "COMPUTED AT THE RATE PRESCRIBED BY LAW * * * BASED UPON SUCH HIGHER RANK" PURSUANT TO SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, IS NOT ENTITLED TO RETIRED PAY AS FOR AN OFFICER, BUT, RATHER, HIS RETIRED PAY SHOULD BE COMPUTED, PURSUANT TO SAID 1938 ACT, AS FOR AN ENLISTED MAN (RETIRED FLEET RESERVIST) ON THE PAY OF HIS HIGHER COMMISSIONED RANK.

ACTING COMPTROLLER GENERAL YATES TO COL. E. E. SHAUGHNESSEY, U.S. MARINE CORPS, JULY 3, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 11, 1946, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO THE PROPER METHOD OF COMPUTING RETIRED PAY OF FORMER MEMBERS OF THE FLEET MARINE CORPS RESERVE ADVANCED IN RANK ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 8 OF PUBLIC LAW 305, 79TH CONGRESS, APPROVED FEBRUARY 21, 1946.

SUBSECTION (B) (2) OF SECTION 10 OF THE ACT APPROVED JULY 24, 1941, (55 STAT. 605) AS AMENDED BY SECTION 8 (A) OF THE ACT APPROVED FEBRUARY 21, 1946, PUBLIC LAW 305, 79TH CONGRESS, PROVIDES, INSOFAR AS HERE MATERIAL, THAT:

"/2) PERSONNEL OF THE * * * FLEET MARINE CORPS RESERVE APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT SHALL, WHEN SUBSEQUENTLY RETIRED, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.'

THERE HAS BEEN RECEIVED FOR SETTLEMENT ON MY ROLLS THE RETIRED PAY ACCOUNT OF CAPTAIN HENRY WILLIAM WANDT (09300), U.S. MARINE CORPS, RETIRED. THE RECORDS SHOW THAT WANDT HAS THE FOLLOWING SERVICE:

CHART

U.S. MARINE CORPS ENLISTED DISCHARGED

DAYS LOST 14 SEP 14 13 SEP 18 ----------------------------- -- 30 14 SEP 18 15 MAY 20 -------------------------------- 10 17 MAY 20 16 MAY 24 ----- --------------------------- 10 19 MAY 24 18 MAY 28 ----------------------- --------- 10 19 MAY 28 18 MAY 32 -------------------------------- 10 19 MAY 32 30 NOV 34 (TRANS TO FMCR) --------------- 10

FLEET MARINE CORPS RESERVE 1 DEC 34 30 SEP 44 (TRANS TO RETIRED LIST)

RETIRED LIST, U.S. MARINE CORPS 1 OCT 44 ---------- --

THE RECORDS FURTHER SHOW THAT WANDT WAS ASSIGNED TO ACTIVE DUTY AS AN ENLISTED MAN ON JUNE 25, 1940, AND WAS PROMOTED TO THE RANK OF WARRANT OFFICER, IN THE U.S. MARINE CORPS FOR TEMPORARY SERVICE ON MARCH 2, 1942, PURSUANT TO THE PROVISIONS OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 604), AS AMENDED. WANDT THEREAFTER SERVED ON CONTINUOUS ACTIVE DUTY IN THE TEMPORARY GRADES OF WARRANT AND COMMISSIONED OFFICER UNTIL NOVEMBER 8, 1945, WHEN HE WAS RELIEVED FROM ACTIVE DUTY.

AS INDICATED BY THE SERVICE HEREINBEFORE SET FORTH WANDT WAS TRANSFERRED TO CLASS II (D), NOW CLASS I (C), FLEET MARINE CORPS RESERVE, IN THE RANK OF QUARTERMASTER SERGEANT, (FIRST PAY GRADE) ON COMPLETION OF A TOTAL OF 20 YEARS, 1 MONTH, AND 14 DAYS' ACTIVE SERVICE. HIS AVERAGE MARKINGS FOR CONDUCT ON TRANSFER TO THE FLEET MARINE CORPS RESERVE WERE ABOUT 95 PERCENT. WANDT HAD A TOTAL OF 5 YEARS, 6 MONTHS, AND 24 DAYS' INACTIVE SERVICE AS A MEMBER OF THE FLEET MARINE CORPS RESERVE. SUBSEQUENT TO HIS ASSIGNMENT TO ACTIVE DUTY ON JUNE 25, 1940, HE COMPLETED A TOTAL OF 5 YEARS, 4 MONTHS, AND 14 DAYS' ACTIVE SERVICE, MAKING A TOTAL OF 25 YEARS, 5 MONTHS, AND 28 DAYS' ACTIVE SERVICE (ENLISTED, WARRANT, AND COMMISSIONED), WITH A GRAND TOTAL OF 31 YEARS, AND 22 DAYS' ACTIVE AND INACTIVE SERVICE. AT THE TIME OF HIS RELIEF FROM ACTIVE DUTY, NOVEMBER 8, 1945, WANDT WAS SERVING IN THE TEMPORARY GRADE OF CAPTAIN AND WAS IN RECEIPT OF THE PAY OF THE FOURTH PAY PERIOD WITH OVER 30 YEARS' SERVICE COMPUTED AS PROVIDED IN THE PAY READJUSTMENT ACT OF 1942, OR AT THE RATE OF $375 PER MONTH. THE SECRETARY OF THE NAVY HAS DETERMINED THAT HIS SERVICE IN THE RANK OF CAPTAIN WAS SATISFACTORY AND HE HAS ACCORDINGLY BEEN ADVANCED TO THE RANK OF CAPTAIN ON THE RETIRED LIST, EFFECTIVE NOVEMBER 9, 1945.

IT IS TO BE NOTED THAT SECTION 10 (B) (2) OF THE ACT APPROVED JULY 24, 1941, 55 STAT. 605), AS AMENDED, SUPRA, PROVIDES THAT PERSONNEL SHALL BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY "COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED ON SUCH HIGHER RANK.' THE LAW APPLICABLE TO THE CASE HERE CONSIDERED IS THAT CONTAINED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938. HOWEVER, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE RETIRED PAY OF MEMBERS OF THE FLEET MARINE CORPS RESERVE WHO HELD TEMPORARY WARRANTS OR COMMISSIONS DURING WORLD WAR II AND WHO, AFTER RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE RETIRED LIST, ARE ADVANCED TO THE HIGHEST TEMPORARY RANK HELD WHILE ON ACTIVE DUTY IS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, OR WHETHER THE RETIRED PAY OF SUCH PERSONNEL IS TO BE COMPUTED AS PROVIDED BY LAW FOR THE COMPUTATION OF RETIRED PAY OF RETIRED OFFICERS; E.G.,

CHART

(A) BY 34 U.S.C. 854 B, AND SEC. 15, PAY READJUSTMENT ACT OF

1942. 1/2 OF $250.00 (BASE PAY OF 4TH PAY PERIOD) --- $125.00

40 PERCENT LONGEVITY (OVER 24 YEARS' ACTIVE SERVICE) - $100.00

PLUS 10 PERCENT FOR CONDUCT MARKINGS ----------------- $ 22.50

TOTAL ---------------------------------------- $247.50

(B) BY 34 U.S.C. 404 B.

2 1/2 PERCENT X $350.00 X 25 YEARS' ACTIVE SERVICE --- $218.75

(C) BY PARAGRAPH 4, SEC. 15, PAY READJUSTMENT ACT OF 1942.

75 PERCENT OF 375.00 --------------------------------- $281.25

AS BEARING UPON THE COMPUTATION SET FORTH IN THE PRECEDING PARAGRAPH, THERE IS FOR CONSIDERATION THAT PROVISION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WHICH PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

IT IS TO BE NOTED THAT THE COMPUTATIONS UNDER (A) AND (B) ARE BASED UPON THE PAY AS FOR AN OFFICER OF THE FOURTH PAY PERIOD WITH OVER 24 YEARS' ACTIVE SERVICE FOR LONGEVITY PURPOSES, AS PROVIDED IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, I.E., 20 YEARS, 1 MONTH, 14 DAYS' ACTIVE SERVICE PRIOR TO TRANSFER TO THE FLEET MARINE CORPS RESERVE PLUS 5 YEARS, 4 MONTHS, AND 14 DAYS' ACTIVE SERVICE PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET MARINE CORPS RESERVE.

IN THE EVENT THAT COMPUTATION UNDER (C) IS CORRECT, WHICH WOULD APPLY, (A) OR (B), IN A SIMILAR CASE WHERE THE MAN CONCERNED DID NOT SERVE PRIOR TO 12 NOVEMBER 1918?

IN VIEW OF THE NUMBER OF SUCH CASES BEING TRANSFERRED TO MY ROLLS, AN EARLY REPLY WILL BE APPRECIATED.

THE DIFFICULTY IN THE CASE ARISES BY REASON OF THE FACT THAT CAPTAIN WANDT'S RIGHTS TO RETIREMENT AND ACTUAL TRANSFER TO THE RETIRED LIST WERE UNDER STATUTES APPLICABLE TO ENLISTED MEN, WHEREAS HE IS NOW ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY BASIS OF HIS COMMISSIONED RANK.

THE RIGHT TO RETIREMENT WAS UNDER SECTIONS 203 AND 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 1179, 34 U.S.C. 854B, 854C, IN PART AS FOLLOWS:

SEC. 203. MEN SERVING IN THE REGULAR NAVY, WHO HAVING ENLISTED THEREIN ON JULY 1, 1925, OR PRIOR THERETO, OR WHO HAVING BEEN DISCHARGED THEREFROM PRIOR TO JULY 1, 1925, AND REENLISTED IN THE REGULAR NAVY WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE, OR WHO WERE SERVING IN THE NAVAL RESERVE FORCE ON JULY 1, 1925, IN AN ENROLLMENT ENTERED INTO WITHIN FOUR MONTHS FROM THE DATE OF THEIR DISCHARGE FROM THE REGULAR NAVY AND THEREAFTER REENLISTED IN THE REGULAR NAVY WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE FROM THE NAVAL RESERVE CREATED BY THE ACT OF FEBRUARY 28, 1925, SHALL BE ENTITLED TO BE TRANSFERRED TO THE FLEET RESERVE ON THE COMPLETION OF SIXTEEN OR MORE YEARS' NAVAL SERVICE, AND WHEN SO TRANSFERRED SHALL, EXCEPT WHEN ON ACTIVE DUTY, BE ENTITLED TO RECEIVE, IF THEY HAVE HAD SIXTEEN BUT LESS THAN TWENTY YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-THIRD THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO, AND IF THEY HAVE HAD TWENTY OR MORE YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO: PROVIDED, THAT THE PAY AUTHORIZED IN THIS SECTION SHALL BE INCREASED 10 PERCENTUM FOR ALL MEN WHO MAY BE CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY OR WHOSE AVERAGE MARKS IN CONDUCT FOR TWENTY OR MORE YEARS SHALL NOT BE LESS THAN 95 PERCENTUM OF THE MAXIMUM: PROVIDED FURTHER, THAT THE DETERMINATION OF THE SECRETARY OF THE NAVY AS TO THE DEFINITION OF EXTRAORDINARY HEROISM SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES.

SEC. 204. * * * PROVIDED FURTHER, THAT ALL ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 1 AND 203 OF THIS ACT SHALL, UPON COMPLETION OF THIRTY YEARS' SERVICE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE * * *.

THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, IS IN PART AS FOLLOWS:

SEC. 15. ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS * * *

SUCH PROVISIONS WOULD HAVE GOVERNED CAPTAIN WANDT'S RETIRED PAY AS AN ENLISTED MAN (RETIRED FLEET RESERVIST) UPON RELEASE FROM ACTIVE DUTY UNDER HIS TEMPORARY COMMISSION, BUT FOR THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305, 60 STAT. 28, TO READ IN PART AS FOLLOWS:

SEC. 10. (A) PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS AND THOSE OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE AND RANK PURSUANT TO SECTION 8 OF THIS ACT, AS NOW OR HEREAFTER AMENDED.

(B) (1) PERSONNEL OF THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER RANK PURSUANT TO SUBSECTION (A) SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

BY VIRTUE OF SUCH PROVISIONS, CAPTAIN WANDT, UPON DETERMINATION BY THE SECRETARY OF THE NAVY, WAS ENTITLED TO BE RETURNED TO AN INACTIVE STATUS WITH THE RANK OF CAPTAIN ON THE RETIRED LIST AND TO RECEIVE RETIRED PAY "COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.' HAVING BEEN RETIRED UNDER THE PROVISIONS OF SECTIONS 203 AND 204 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, THE RATE PRESCRIBED BY LAW AND APPLICABLE IN HIS INDIVIDUAL CASE IS THE RATE PRESCRIBED IN THOSE SECTIONS. THAT IS TO SAY, HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE SAME BASIS AND UNDER THE SAME STATUTORY PROVISIONS AS THOUGH THE SAID ACT OF FEBRUARY 21, 1946, HAD NOT BEEN ENACTED, EXCEPT THAT, BY VIRTUE OF THE LATTER ACT, HE IS ENTITLED IN SUCH COMPUTATION TO HAVE THE PAY OF HIS HIGHER RANK SUBSTITUTED FOR THE PAY OF THE LOWER RANK OTHERWISE APPLICABLE. THAT SOLUTION APPEARS TO BE MOST REASONABLY IN CONSONANCE WITH THE LANGUAGE OF THE AMENDED STATUTE IN SUCH RESPECT.

IT IS SUGGESTED THAT SINCE CAPTAIN WANDT HAD SERVICE PRIOR TO NOVEMBER 12, 1918, HE MAY BE ENTITLED UNDER THE LANGUAGE OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, QUOTED IN YOUR LETTER, TO RETIRED PAY AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY AS A TEMPORARY OFFICER. THE SAID PARAGRAPH, HOWEVER, EXPRESSLY RELATES TO OFFICERS THEREAFTER RETIRED AND HAS NO APPLICATION TO THE RETIREMENT OF ENLISTED MEN. CAPTAIN WANDT WAS PLACED ON THE RETIRED LIST AS AN ENLISTED MAN UNDER STATUTORY PROVISIONS RELATING SOLELY TO ENLISTED MEN. WHILE HE WAS ACCORDED THE RANK OF CAPTAIN ON THE RETIRED LIST UPON HIS RELEASE FROM ACTIVE DUTY AND THE TERMINATION OF HIS TEMPORARY APPOINTMENT AS AN OFFICER, AS PROVIDED IN THE SAID ACT OF FEBRUARY 21, 1946, THAT ACT DID NOT ACCORD HIM THE RIGHT TO HAVE HIS RETIRED PAY COMPUTED UNDER STATUTES APPLICABLE TO OFFICERS BUT LIMITED HIM TO THE BASIS OF THE STATUTES OTHERWISE APPLICABLE IN HIS INDIVIDUAL CASE (THE PROVISIONS FOR ENLISTED FLEET RESERVISTS IN SECTIONS 203 AND 204 OF THE NAVAL RESERVE ACT, SUPRA), EXCEPT THAT THE METHOD OF COMPUTATION THERE PROVIDED WAS TO BE APPLIED TO THE PAY OF THE HIGHER RANK.

IT FOLLOWS THAT THE SAID PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT ARE NOT APPLICABLE IN THIS CASE AND THAT THE METHOD OF COMPUTATION SET FORTH IN THE FIRST EXAMPLE IN YOUR LETTER--- EXAMPLE (A/--- IS PROPER.