B-64196, APRIL 24, 1947, 26 COMP. GEN. 804

B-64196, APRIL 24, 1947, 26 COMP. GEN. 804

PAY - RETAINER; RETIRED - FLEET RESERVISTS UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, PROVIDING FOR THE TRANSFER OF ENLISTED PERSONNEL TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST 20 YEARS'"ACTIVE FEDERAL SERVICE," AND FOR THE COMPUTATION OF RETAINER OR RETIRED PAY ON THE BASIS OF 2 1/2 PERCENT OF THE ANNUAL BASE AND LONGEVITY PAY RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF "ACTIVE FEDERAL SERVICE, ONLY THE TIME ACTUALLY SERVED UNDER A MINORITY ENLISTMENT OF LESS THAN 4 YEARS OR UNDER AN ENLISTMENT TERMINATED WITHIN 3 MONTHS PRIOR TO EXPIRATION OF ENLISTMENT MAY BE CONSIDERED AS "ACTIVE FEDERAL SERVICE.' A NAVY ENLISTED MAN WHO HAD TRANSFERRED TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 WITH EXACTLY 16 YEARS' NAVAL SERVICE MAY NOT BE CONSIDERED AS HAVING TRANSFERRED THERETO "AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE MEANING OF SECTION OF THE ACT AS ADDED BY SECTON 3 OF THE ACT OF AUGUST 10, 1946, SO AS TO BE ENTITLED TO COUNT THEREUNDER ACTIVE DUTY PERFORMED AS A FLEET RESERVIST AFTER JULY 1, 1925, IN THE COMPUTATION OF RETAINER OR RETIRED PAY WHEN IN AN INACTIVE DUTY STATUS. A MEMBER OF THE FLEET RESERVE TRANSFERRED THERETO PURSUANT TO SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 WITH 16 BUT LESS THAN 20 YEARS' SERVICE WHO PERFORMED ACTIVE DUTY AFTER TRANSFER WHICH, IF ADDED TO HIS PRIOR SERVICE, WOULD EXCEED 20 YEARS, IS NOT ENTITLED UNDER SECTION 208 OF THE ACT AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, AUTHORIZING THE COUNTING OF SUCH DUTY IN COMPUTING THE PERCENTAGE RATE OF RETAINER OR RETIRED PAY, TO HAVE HIS PAY COMPUTED ON THE BASIS OF ONE-HALF OF THE BASE PAY RECEIVED WHEN TRANSFERRED AS FOR OVER 20 YEARS' SERVICE, RATHER THAN ON THE ONE-THIRD BASIS AUTHORIZED FOR 16 BUT LESS THAN 20 YEARS' SERVICE. THE PROVISION IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, AUTHORIZING THE COMPUTATION OF RETAINER OR RETIRED PAY ON THE BASIS OF THE ENLISTED PAY RECEIVED AT THE TIME AN INACTIVE DUTY STATUS IS RESUMED, MAY NOT BE REGARDED AS AUTHORIZING THE COUNTING OF INACTIVE DUTY PERFORMED IN THE FLEET RESERVE IN DETERMINING THE PERMANENT ADDITIONS TO WHICH ENTITLED IN THE COMPUTATION OF RETAINER OR RETIRED PAY UPON RELEASE FROM ACTIVE DUTY AND RESUMPTION OF AN INACTIVE DUTY STATUS. MEMBERS OF THE FLEET RESERVE WHOSE AVERAGE CONDUCT MARKS FOR 20 OR MORE YEARS WERE LESS THAN THE 95 PERCENT OF MAXIMUM REQUIRED FOR PAYMENT OF THE 10 PERCENT ADDITIONAL RETAINER OR RETIRED PAY AUTHORIZED BY SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 ARE NOT ENTITLED TO SUCH INCREASE FOR CONDUCT IN THE RECOMPUTATION OF THEIR RETAINER OR RETIRED PAY UNDER SECTION 208 OF THE ACT AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10 1946, ON THE BASIS THAT AT THE TIME OF THEIR RELEASE FROM ACTIVE DUTY AFTER TRANSFER THEIR AVERAGE MARKS FOR CONDUCT WERE NOT LESS THAN 95 PERCENT OF THE MAXIMUM. A MEMBER OF THE FLEET RESERVE WHO WAS RECALLED TO ACTIVE DUTY WOULD BE ENTITLED, IN THE RECOMPUTATION OF HIS RETAINER OR RETIRED PAY AFTER SUCH ACTIVE DUTY UNDER THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, TO 2 1/2 PERCENT OF HIS ACTIVE-DUTY PAY, EXCLUSIVE OF ANY CREDIT FOR LONGEVITY PAY PURPOSES ON ACCOUNT OF INACTIVE TIME IN THE FLEET RESERVE, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE. WHILE, UNDER SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, LONGEVITY INCREASES ARE PAYABLE ONLY FOR EACH 3 YEARS' SERVICE, A NAVY ENLISTED MAN WHO TRANSFERRED TO THE FLEET RESERVE PURSUANT TO SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 WITH 17 YEARS AND 6 MONTHS OF ACTIVE SERVICE IS ENTITLED UNDER SECTION 204 OF SAID ACT, AS AMENDED, PROVIDING THAT A FRACTIONAL YEAR OF 6 MONTHS OR MORE SHALL CONSTITUTE A FULL YEAR IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY, TO PERMANENT ADDITIONS (LONGEVITY) COMPUTED ON 18 YEARS' SERVICE. NAVY ENLISTED MEN WHO WERE TRANSFERRED, UNDER THE AUTHORITY OF THE NAVAL APPROPRIATION ACT, 1923, TO THE FLEET RESERVE WITH LESS THAN 16 YEARS' SERVICE IN THE SAME STATUS WITH RESPECT TO PAY AND ALLOWANCES AS THOSE TRANSFERRED AFTER 16 YEARS' SERVICE ARE NOT TO BE REGARDED AS HAVING BEEN TRANSFERRED TO THE FLEET RESERVE "AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE MEANING OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, RESPECTING THE RECOMPUTATION OF RETAINER OR RETIRED PAY ON ACCOUNT OF ACTIVE DUTY AFTER TRANSFER. THE PROVISION IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, AUTHORIZING THE RECOMPUTATION OF RETAINER OR RETIRED PAY OF MEMBERS OF THE FLEET RESERVE ON THE BASIS OF ACTIVE DUTY PERFORMED SUBSEQUENT TO JULY 1, 1925, WHILE EXTENDED TO RESERVISTS WHO RETURNED TO INACTIVE STATUS PRIOR TO THE ENACTMENT OF THE 1946 ACT, IS TO BE REGARDED, IN VIEW OF THE PROVISO THERETO, AS LIMITED TO ACTIVE DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT DURING WHICH TIME RESERVISTS MAY BE CALLED TO ACTIVE DUTY WITHOUT THEIR CONSENT. AN ENLISTED MAN WHO, UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1946--- THE DATE OF THE ACT AMENDING SAID 1938 ACT--- MAY, PURSUANT TO SECTION 9 OF THE 1946 ACT, ELECT TO RECEIVE HIS RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE ENACTMENT OF THE 1946 ACT. AN ENLISTED MAN WHO, UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1946--- THE DATE OF THE ACT AMENDING SAID 1938 ACT--- MAY NOT EXERCISE AN ELECTION UNDER THE PROVISIONS OF SECTION 9 OF THE 1946 ACT TO HAVE HIS RETAINER PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204 AS AMENDED BY THE 1946 ACT AND, UPON RETIREMENT, ELECT TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS PROVIDED BY THE PROVISIONS OF SECTION 204 IN EFFECT PRIOR TO AUGUST 10, 1946. AN ENLISTED MAN WHO TRANSFERRED TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, THEREBY EXERCISING THE ELECTION PROVIDED IN SECTION 9 OF THE 1946 ACT TO HAVE HIS RETAINER PAY COMPUTED ON THE BASIS PROVIDED FOR IN SECTION 204 AS AMENDED, MAY NOT THEREAFTER ELECT TO HAVE HIS RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SAID SECTION 204 IN EFFECT PRIOR TO THE 1946 AMENDING ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 24, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 27, 1947, FILE JAG:II:WJG:MH P16-3/QR1, REQUESTING DECISION ON THE QUESTIONS PRESENTED THEREIN RELATIVE TO THE APPLICATION OF CERTAIN PROVISIONS OF THE ACT OF AUGUST 10, 1946, PUBLIC LAW 720, 60 STAT. 993, 994, 997.

FOR CONVENIENT REFERENCE THE PERTINENT PROVISIONS OF THE SAID ACT OF AUGUST 10, 1946, ARE QUOTED BELOW.

SEC. 2. SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1179) IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 204. MEMBERS OF THE NAVY WHO FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, OR WHO REENLISTED THEREIN AFTER JULY 1, 1925, HAVING BEEN OUT OF THE REGULAR NAVY FOR MORE THAN THREE MONTHS, MAY UPON THEIR OWN REQUEST BE TRANSFERRED TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE. AFTER SUCH TRANSFER, EXCEPT WHEN ON ACTIVE DUTY, THEY SHALL BE PAID AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE: 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: 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: PROVIDED FURTHER, THAT THE PAY AUTHORIZED IN THIS SECTION SHALL NOT EXCEED 75 PERCENTUM OF THE ACTIVE-DUTY BASE AND LONGEVITY PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER: PROVIDED FURTHER, THAT ALL ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE WITH THE PROVISIONS OF YEARS' SERVICE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE CONTAINED WITHIN THIS SECTION SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203 OF THIS ACT FROM BEING TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION IF THEY SO ELECT: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL PERSONS OF THE CLASS DESCRIBED HEREIN HERETOFORE OR HEREAFTER TRANSFERRED TO THE FLEET RESERVE, PRIOR TO THE DATE OF THE ENACTMENT OF THIS AMENDMENT. FOR THE PURPOSES OF THIS SECTION, ALL ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF, SHALL BE DEEMED TO BE ACTIVE FEDERAL SERVICE.'

SEC. 3. TITLE II OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178) IS HEREBY AMENDED BY ADDING THERETO A NEW SECTION TO READ AS FOLLOWS:

"SEC. 208. WHENEVER ENLISTED MEN OF THE FLEET RESERVE TRANSFERRED THERETO AFTER MORE THAN SIXTEEN YEARS' SERVICE, OR ENLISTED MEN TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206 OF THIS TITLE, SHALL BE INCLUDED THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE-DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM: PROVIDED, THAT SUCH PAY SHALL NOT EXCEED 75 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE HIGHEST RATING TO WHICH ENTITLED UNDER THE PROVISIONS OF THIS SECTION: PROVIDED FURTHER, THAT ACTIVE DUTY PERFORMED DURING ANY PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT SHALL BE CONSIDERED FOR THE PURPOSE OF THIS SECTION AS NOT BEING ACTIVE DUTY IN TIME OF PEACE REQUIRED BY SECTION 206: PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS SECTION SHALL OPERATE TO REDUCE THE RETAINER OR RETIRED PAY AND ALLOWANCES TO WHICH ANY ENLISTED MAN WOULD OTHERWISE HAVE BEEN ENTITLED: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR THE PURPOSES OF THIS SECTION IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY: AND PROVIDED FURTHER, THAT PERSONS OF THE CLASSES DESCRIBED IN THIS SECTION WHO HAVE BEEN RETIRED OR RETURNED TO AN INACTIVE DUTY STATUS PRIOR TO THE DATE OF APPROVAL OF THIS SECTION SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RETURN TO AN INACTIVE DUTY STATUS.'

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. RETIRED ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS, PERSONNEL OF THE NAVY AND MARINE CORPS WHO ARE MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AND PERSONNEL OF THE NAVY AND MARINE CORPS WHO BECOME ELIGIBLE AND WHO APPLY FOR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE SHALL RECEIVE AN OPPORTUNITY TO ELECT TO RECEIVE RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF THIS ACT OR TO RECEIVE SUCH PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE THE ENACTMENT OF THIS ACT, AND THESE PERSONS SHALL BE ENTITLED TO RECEIVE THE PAY ELECTED.

THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED.

QUESTIONS (A) AND (B):

SECTION 2 OF PUBLIC LAW 720, SUPRA, PROVIDES FOR THE TRANSFER OF ENLISTED PERSONNEL TO THE FLEET RESERVE UPON COMPLETION OF AT LEAST 20 YEARS OF "ACTIVE FEDERAL SERVICE.' THIS SECTION FURTHER PROVIDES THAT IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY,"THEY SHALL BE PAID AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE: * * *.' FOR THE PURPOSE OF THIS SECTION "ACTIVE FEDERAL SERVICE" IS DEFINED AS "ALL ACTIVE SERVICE * * * IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT HEREOF.' IN THIS CONNECTION YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

"/A) WHETHER A MINORITY ENLISTMENT OF LESS THAN FOUR YEARS IS TO BE CONSIDERED AS FOUR YEARS' ,ACTIVE SERVICE" WITHIN THE MEANING OF THE TERM "ACTIVE FEDERAL SERVICE" AS USED IN SECTION 2 OF PUBLIC LAW 720?

"/B) WHETHER THE TIME BETWEEN DATE OF ACTUAL DISCHARGE AND THE DATE OF EXPIRATION OF ENLISTMENT, WHEN DISCHARGED WITHIN THREE MONTHS FROM DATE OF EXPIRATION OF ENLISTMENT, SHALL BE CONSIDERED "ACTIVE SERVICE" WITHIN THE MEANING OF THE TERM "ACTIVE FEDERAL SERVICE" AS USED IN SECTION 2 OF PUBLIC LAW 720?

SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, PROVIDES, IN PART:

FOR ALL PURPOSES OF THIS ACT A COMPLETE ENLISTMENT DURING MINORITY SHALL BE COUNTED AS FOUR YEARS' SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED * * *.

WHILE THE ENLISTMENTS REFERRED TO ARE TO BE COUNTED AS 4 YEARS'"SERVICE" OR AS THE FULL TERM OF "SERVICE" FOR WHICH ENLISTED, AS THE CASE MAY BE, IT DOES NOT FOLLOW THAT THEY ARE TO BE COUNTED AS "ACTIVE" SERVICE FOR SUCH PERIODS. THE TERM "ACTIVE SERVICE" GENERALLY IS DISTINGUISHED FROM THE BROADER, GENERAL TERM "SERVICE" IN THAT THE LATTER TERM, DEPENDING UPON THE SENSE IN WHICH IT IS USED, OFTEN MAY INCLUDE SERVICE WHICH IS NOT ACTIVE SERVICE. BOTH THE TERMS "SERVICE" AND "ACTIVE FEDERAL SERVICE" ARE USED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED (SEC. 2 OF THE SAID ACT OF AUG. 10, 1946), OBVIOUSLY NOT SYNONYMOUSLY, WHICH FACT ALONE WOULD INDICATE THAT THE TERMS WERE USED ADVISEDLY WITH THE ABOVE- NOTED DISTINCTION IN MIND. CF. 22 COMP. GEN. 411, 419, ANSWER TO QUESTION (G). FURTHERMORE, WERE THE MATTER OTHERWISE IN DOUBT IT WOULD SEEM TO BE RESOLVED BY THE FACT THAT THE TERM "ACTIVE FEDERAL SERVICE" IS EXPRESSLY DEFINED IN THE SAID SECTON 204 AS INCLUDING ONLY "ACTIVE" SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, ETC., THUS NECESSARILY EXCLUDING ALL SERVICE WHICH IS NOT ACTIVE SERVICE. CF. 22 COMP. GEN. 732. SINCE, WITH RESPECT TO A COMPLETED MINORITY ENLISTMENT OR AN ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT, ONLY THE TIME ACTUALLY SERVED WOULD CONSTITUTE ACTIVE FEDERAL SERVICE, YOUR QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE.

QUESTIONS (C) AND (D):

UNDER THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178), ENLISTED PERSONNEL, IF OTHERWISE ELIGIBLE, WERE ENTITLED TO BE TRANSFERRED TO THE FLEET RESERVE "ON COMPLETION OF 16 OR MORE YEARS' NAVAL SERVICE.' IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE, MINORITY ENLISTMENTS AND EARLY DISCHARGES WERE, UNDER SECTION 202, COUNTED AS FULL TERMS OF ENLISTMENTS. ACCORDINGLY, AN ENLISTED MAN MAY HAVE 16 OR MORE YEARS' NAVAL SERVICE FOR THE PURPOSE OF TRANSFER TO THE FLEET RESERVE, YET HAVE HAD LESS THAN 15 YEARS' SERVICE FOR THE PURPOSE OF COMPUTING PERMANENT ADDITIONS (LONGEVITY) IN DETERMINING HIS RETAINER PAY AT THE TIME OF TRANSFER. SECTION 3 OF PUBLIC LAW 720, SUPRA, PROVIDES THAT " WHENEVER ENLISTED MEN OF THE FLEET RESERVE, TRANSFERRED THERETO AFTER MORE THAN SIXTEEN YEARS' SERVICE * * * PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206 OF THIS TITLE, SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER AND RETIRED PAY WHEN IN AN INACTIVE-DUTY STATUS * * *.' YOUR FURTHER DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(C) DOES A MAN TRANSFERRED TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178), WITH EXACTLY 16 YEARS' NAVAL SERVICE, COME WITHIN THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 720 SO AS TO BE CONSIDERED AS HAVING BEEN TRANSFERRED THERETO "AFTER MORE THAN 16 YEARS' SERVICE?

(D) IF THE ANSWER TO (C) IS IN THE AFFIRMATIVE, IS THE ACTIVE DUTY PERFORMED SUBSEQUENT TO THE DATE OF TRANSFER TO BE ADDED TO THE PERIOD OF SERVICE FOR ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE, OR IS SUCH ACTIVE DUTY TO BE ADDED TO THE ACTIVE SERVICE TO WHICH ENTITLED IN THE COMPUTATION OF LONGEVITY AT THE TIME OF TRANSFER TO ENTITLE SUCH PERSONNEL TO BENEFITS OF SECTION 3 OF PUBLIC LAW 720?

SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, SUPRA (SECTION 3 OF THE ACT OF AUGUST 10, 1946), REFERS EXPRESSLY TO ENLISTED MEN OF THE FLEET RESERVE TRANSFERRED THERETO AFTER "MORE THAN" 16 YEARS' SERVICE. THAT LANGUAGE IS CLEAR AND UNAMBIGUOUS AND MUST BE APPLIED AS IT APPEARS IN THE STATUTE. THERE APPEARS TO BE NO LEGAL BASIS FOR THIS OFFICE TO INTERPRET SUCH LANGUAGE AS INCLUDING ENLISTED MEN WHO DID NOT HAVE MORE THAN 16 YEARS' SERVICE--- E.G., ENLISTED MEN WTH EXACTLY 16 YEARS' SERVICE--- WHEN THEY TRANSFERRED TO THE FLEET RESERVE. SEE ASH V. UNITED STATES, 37 F.1SUPP. 464; 26 COMP. GEN. 307; 5 ID. 189, 194; 4 ID. 773. HOWEVER, SEE SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, AS AMENDED BY SECTION 1 OF THE ACT OF OCTOBER 18, 1943, 57 STAT. 571, WITH RESPECT TO COUNTING ACTIVE DUTY, AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE, IN THE COMPUTATION OF PAY, WHICH WOULD REMAIN APPLICABLE TO ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY 16 YEARS' SERVICE. ACCORDINGLY, QUESTION (C) IS ANSWERED IN THE NEGATIVE, MAKING AN ANSWER TO QUESTION (D) UNNECESSARY.

QUESTION (E):

(E) IF THE ACTIVE SERVICE PERFORMED SUBSEQUENT TO TRANSFER WILL, WHEN ADDED TO SERVICE CREDIT AT TIME OF TRANSFER, BE SUFFICIENT TO TOTAL 19 YEARS AND 6 MONTHS OR MORE, IS SUCH AN INDIVIDUAL ENTITLED, UNDER THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 720, TO INCREASE THE METHOD OF COMPUTING HIS RETAINER OR RETIRED PAY FROM 1/3 TO 1/2, AND TO INCREASE THE PERMANENT ADDITIONS ACCORDINGLY?

SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, PROVIDES, IN PERTINENT PART, THAT MEMBERS OF THE FLEET RESERVE TRANSFERRED PURSUANT TO THAT SECTION SHALL, IF THEY HAVE HAD 16 BUT LESS THAN 20 YEARS' NAVAL SERVICE, RECEIVE 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 20 OR MORE YEARS' NAVAL SERVICE THEY SHALL RECEIVE PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO. IT HAS BEEN RECOGNIZED THAT PRIOR TO THE ACT OF AUGUST 10, 1946, A MEMBER OF THE FLEET RESERVE TRANSFERRED THERETO WITH 16 OR MORE YEARS OF SERVICE BUT LESS THAN 20 YEARS OF SERVICE WAS NOT ENTITLED TO HAVE HIS RETAINER OR RETIRED PAY COMPUTED ON THE ONE-HALF BASIS INDICATED IN THE STATUTE, RATHER THAN THE ONE THIRD BASIS, IF HE PERFORMED ACTIVE DUTY SUBSEQUENT TO TRANSFER WHICH, ADDED TO HIS PRIOR SERVICE, EXCEEDED 20 YEARS THE NEW SECTION 208 OF THE NAVAL RESERVE ACT PROVIDES THAT ENLISTED MEN OF THE FLEET RESERVE TRANSFERRED THERETO "AFTER MORE THAN 16 YEARS' SERVICE" SHALL RECEIVE CERTAIN BENEFITS FOR ACTIVE DUTY PERFORMED AFTER JULY 1, 1925, EXCEPT THAT REQUIRED TO BE PERFORMED IN TIME OF PEACE UNDER SECTION 206 OF THE ACT, 52 STAT. 1179. IN THE FIRST INSTANCE, SUCH ACTIVE DUTY ,SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN INACTIVE-DUTY STATUS.' THE LANGUAGE THERE USED DOES NOT PURPORT TO AUTHORIZE A CHANGE IN COMPUTING RETAINER AND RETIRED PAY OF THE CHARACTER INDICATED IN THIS QUESTION.

IN ADDITION TO THE FOREGOING PROVISIONS, THE LAW PROVIDES THAT "IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY.' THAT PROVISION APPEARS TO HAVE REFERENCE TO THE COUNTING OF ACTIVE DUTY SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE OR RETIRED LIST FOR THE PURPOSE OF INCREASING THE PAY AUTHORIZED IN SECTION 204 OF THE NAVAL RESERVE ACT, AS AMENDED, WHICH PAY IS COMPUTED ON A PERCENTAGE BASIS RATHER THAN THE PAY AUTHORIZED IN SECTION 203 OF THAT ACT. THE SAID SECTION 203 AUTHORIZES PAYMENT TO MEMBERS OF THE FLEET RESERVE OF A CERTAIN FRACTION OF THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER. THAT PAY IS NOT COMPUTED ON A PERCENTAGE BASIS AND AUTHORITY TO COUNT ACTIVE DUTY SUBSEQUENT TO TRANSFER FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WOULD APPEAR TO HAVE NO APPLICATION TO A DETERMINATION OF WHETHER A MEMBER OF THE FLEET RESERVE WAS ENTITLED TO PAY UNDER THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT, ON THE BASIS OF ONE-THIRD OR ONE-HALF OF HIS BASE PAY.

IN THE CONSIDERATION OF THIS QUESTION, THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 10, 1946, HAS NOT BEEN OVERLOOKED. IT HAS BEEN NOTED THAT THE QUESTION HERE UNDER CONSIDERATION WAS DISCUSSED AT THE HEARINGS BEFORE THE UNITED STATES SENATE NAVAL AFFAIRS COMMITTEE ON S. 1438 (SEE P. 43 OF THE REPORT OF THE HEARINGS HELD OCT. 9 AND 11, 1945) BUT, OF COURSE, IF A RESERVIST IS AUTHORIZED TO CHANGE FROM THE ONE THIRD BASIS TO THE ONE-HALF BASIS, MENTIONED IN YOUR QUESTION, SOME AUTHORITY THEREFOR MUST BE FOUND IN THE STATUTE. I DO NOT FIND SUCH AN AUTHORIZATION IN SECTION 3 OF THE ACT OF AUGUST 10, 1946, OR ELSEWHERE, AND, THEREFORE, QUESTION (E) IS ANSWERED IN THE NEGATIVE.

QUESTION (F):

(F) MAY INACTIVE DUTY PERFORMED SUBSEQUENT TO THE DATE OF TRANSFER BE COUNTED IN DETERMINING THE PERMANENT ADDITIONS TO WHICH ENTITLED IN THE COMPUTATION OF THE RETIRED AND RETAINER PAY AT THE TIME OF RELEASE FROM ACTIVE DUTY, NOTWITHSTANDING THAT INACTIVE SERVICE MAY NOT BE COUNTED IN THE COMPUTATION OF RETIRED AND RETAINER PAY UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942?

THE LANGUAGE OF SECTION 208 IS FAR FROM BEING CLEAR. IT PROVIDES IN PART THAT "ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST * * * SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE- DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM.' READ ALONE THAT LANGUAGE WOULD APPEAR TO BE MEANINGLESS. NO INFORMATION HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE ACT WHICH WOULD BE OF AID IN INTERPRETING THAT LANGUAGE. CONSIDERING THE WORDS OF THE STATUTE TOGETHER WITH THE GENERAL PURPOSE OF THE ACT, I THINK THAT IT WAS INTENDED THAT RETAINER OR RETIRED PAY--- NOT "ACTIVE DUTY SO PERFORMED" SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR RETIRED LIST--- WAS TO BE BASED ON CERTAIN ENLISTED PAY AND IT SEEMS CLEAR THAT THE PAY REFERRED TO IS AT LEAST THE PAY OF THE ENLISTED GRADE OR RATING HELD BY THE MAN AT THE TIME HE RESUMES AN INACTIVE DUTY STATUS WITH CREDIT FOR AUTHORIZED INCREASES FOR LONGEVITY PAY AND EXTRAORDINARY HEROISM. SO VIEWED, THE STATUTE GRANTS SUBSTANTIAL RIGHTS TO ENLISTED MEN WHO PERFORM ACTIVE DUTY SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE OR RETIRED LIST, THAT IS, SUCH ENLISTED MEN RECEIVE THE ADVANTAGE OF AN ADVANCEMENT IN RATING MADE DURING SUCH A PERIOD OF ACTIVE DUTY. HOWEVER, IT IS WELL SETTLED THAT, IN THE ABSENCE OF EXPRESS STATUTORY PROVISION TO THE CONTRARY, INACTIVE TIME IN THE FLEET RESERVE OR ON THE RETIRED LIST IS NOT FOR CONSIDERATION IN DETERMINING THE ACTIVE DUTY PAY FOR A PARTICULAR GRADE OR RATING WHICH IS TO BE USED AS A BASIS FOR COMPUTING RETAINER PAY OR RETIRED PAY. SEE 21 COMP. GEN. 737; 23 ID. 284; 26 ID. 152; ID. 349. THE STATUTORY LANGUAGE HERE UNDER CONSIDERATION WOULD NOT WARRANT A CONCLUSION THAT SUCH RULE WAS INTENDED TO BE DISTURBED. ACCORDINGLY, YOUR QUESTION (F) IS ANSWERED IN THE NEGATIVE.

QUESTION (G):

(G) AN INDIVIDUAL TRANSFERRED TO THE FLEET RESERVE AFTER MORE THAN 16 BUT LESS THAN 20 YEARS' SERVICE, OR AN INDIVIDUAL WHO WAS TRANSFERRED TO THE FLEET RESERVE AFTER MORE THAN 20 YEARS' SERVICE BUT WHOSE AVERAGE MARKS FOR CONDUCT WERE LESS THAN 95 PERCENT OF THE MAXIMUM, WAS NOT ENTITLED TO THE 10 PERCENTUM INCREASE AT THE TIME OF TRANSFER TO THE FLEET RESERVE. IF SUCH INDIVIDUALS HAVE BEEN RECALLED TO ACTIVE DUTY AND, UPON RELEASE FROM ACTIVE DUTY, THEIR AVERAGE MARKS FOR CONDUCT FOR OVER 20 YEARS' SERVICE WAS NOT LESS THAN 95 PERCENT OF THE MAXIMUM AT THE TIME OF RELEASE FROM ACTIVE DUTY, ARE THEY ENTITLED TO 10 PERCENTUM INCREASE FOR CONDUCT IN THE RECOMPUTATION OF THEIR RETAINER OR RETIRED PAY UNDER THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 720?

UNDER SECTION 203 OF THE ACT THE RIGHT TO INCREASE OF 10 PERCENTUM IN PAY AUTHORIZED BY THAT SECTION IS CONDITIONED ON THE ENLISTED MAN'S HAVING HAD AVERAGE MARKS IN CONDUCT OF NOT LESS THAN 95 PERCENTUM OF THE MAXIMUM FOR 20 OR MORE YEARS, AND IT WOULD APPEAR THAT THE DETERMINATION OF HIS ELIGIBILITY IN THAT RESPECT NECESSARILY WOULD HAVE TO BE MADE AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE. NOTHING HAS BEEN FOUND IN SECTION 208 OF THE ACT, AND NOTHING HAS BEEN BROUGHT TO THE ATTENTION OF THIS OFFICE, WHICH WOULD PERMIT AN INCREASE IN PAY BASED ON A COMPUTATION OF AN INDIVIDUAL'S AVERAGE MARKS OF CONDUCT UPON COMPLETION OF A TOUR OF ACTIVE DUTY AFTER TRANSFER, IF HE WAS NOT ENTITLED THERETO AT THE TIME OF HIS ORIGINAL TRANSFER. MOREOVER, SINCE THE SAID SECTION 208 ENUMERATES THE PURPOSES FOR WHICH CERTAIN ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE MAY BE CREDITED AND OMITS ANY MENTION OF THE PERCENTAGE INCREASE IN PAY FOR GOOD CONDUCT MARKS, THE CONCLUSION IS REQUIRED THAT SUCH ACTIVE DUTY WOULD NOT ENTER INTO THE DETERMINATION OF THE RIGHT TO SUCH PERCENTAGE INCREASE. THEREFORE, QUESTION (G) IS ANSWERED IN THE NEGATIVE.

QUESTION (H):

UNDER THE PROVISIONS OF SECTION 2 OF PUBLIC LAW 720, SUPRA, THE RETIRED OR RETAINER PAY IS BASED UPON THE RATE OF 2 1/2 PERCENTUM OF THE ANNUAL "BASE AND LONGEVITY PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER" MULTIPLIED BY THE NUMBER OF YEARS OF "ACTIVE FEDERAL SERVICE.' BUT HAD A TOTAL OF OVER 24 YEARS FOR LONGEVITY PAY PURPOSES WHILE ON ACTIVE DUTY, WOULD BE ENTITLED TO HAVE HIS RETAINER PAY COMPUTED AT THE RATE OF 2 1/2 PERCENTUM OF HIS ACTIVE DUTY PAY FOR OVER 24 YEARS' SERVICE FOR LONGEVITY PURPOSES, MULTIPLIED BY 21 YEARS' ACTIVE SERVICE. SECTION 3 OF PUBLIC LAW 720 PROVIDES THAT ACTIVE SERVICE PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE SHALL BE COUNTED FOR THE PURPOSE OF "COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM.' IF THE INDIVIDUAL IN THE CASE CITED SHOULD, AFTER ONE YEAR AND SIX MONTHS IN AN INACTIVE STATUS IN THE FLEET RESERVE, BE RECALLED TO ACTIVE DUTY AND PERFORM ACTIVE DUTY FOR A PERIOD OF ONE YEAR AND SIX MONTHS, HE WOULD, AT THE TIME OF RELEASE FROM ACTIVE DUTY, BE IN RECEIPT OF ACTIVE DUTY PAY FOR OVER 27 YEARS' SERVICE, WHICH SERVICE WOULD INCLUDE THE INACTIVE SERVICE SUBSEQUENT TO TRANSFER. IN THIS CONNECTION YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

"/H) WOULD THE RETAINER PAY OF THIS MAN, ON RELEASE FROM ACTIVE DUTY, BE COMPUTED AT THE RATE OF 2 1/2 PERCENTUM OF HIS ACTIVE DUTY PAY FOR OVER 27 YEARS' SERVICE FOR LONGEVITY PURPOSES, MULTIPLIED BY 23 YEARS' ACTIVE SERVICE?

THE MAN REFERRED TO WOULD BE ENTITLED TO 2 1/2 PERCENTUM OF HIS ACTIVE DUTY PAY, EXCLUSIVE OF ANY CREDIT FOR LONGEVITY PAY PURPOSES ON ACCOUNT OF INACTIVE TIME IN THE FLEET RESERVE OR OTHER TIME NOT CREDITABLE FOR RETAINER PAY PURPOSES, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE AS DEFINED IN SECTION 204 OF THE ACT. SEE ANSWERS TO QUESTIONS (A) AND (F) ABOVE.

QUESTION (I):

THE SIXTH PROVISO OF SECTION 2 OF PUBLIC LAW 720, SUPRA, PROVIDES:

"THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY.'

AN ENLISTED MAN IS TRANSFERRED TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178) WITH MORE THAN 20 YEARS' NAVAL SERVICE FOR ELIGIBILITY BUT WITH 17 YEARS AND 6 MONTHS OF ACTIVE SERVICE. IN THIS CONNECTION YOUR FURTHER DECISION IS REQUESTED, AS FOLLOWS:

"/I) IS THIS ENLISTED MAN ENTITLED TO HAVE HIS RETAINER OR RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF HIS BASE PAY PLUS PERMANENT ADDITIONS (LONGEVITY) FOR OVER 18 YEARS' SERVICE, NOTWITHSTANDING THE FACT THAT LONGEVITY IS PAYABLE ONLY AFTER THE COMPLETION OF A PERIOD OF EACH THREE YEARS OF SERVICE AND NOT ON THE COMPLETION OF EXACTLY EACH THREE YEAR PERIOD OF SERVICE?

THE THIRD PARAGRAPH OF SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, PROVIDES THAT EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THAT SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE "FOR EACH 3 YEARS OF SERVICE" UP TO 30 YEARS. VIEW OF THE PROVISION REFERRED TO RELATIVE TO COUNTING A FRACTIONAL YEAR OF 6 MONTHS OR MORE AS A FULL YEAR'S SERVICE IN COMPUTING LONGEVITY PAY, IT WOULD APPEAR THAT THE PERMANENT ADDITIONS TO WHICH HE IS ENTITLED MUST BE COMPUTED ON 18 YEARS' SERVICE. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTIONS (J) AND (K):

THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1923, APPROVED JULY 1, 1922 (42 STAT. 786), AT PAGE 799, UNDER " BUREAU OF SUPPLIES AND ACCOUNTS," PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE.'

UNDER THIS PROVISION OF LAW, MANY ENLISTED MEN WERE TRANSFERRED TO THE FLEET RESERVE WITH LESS THAN 15 YEARS' ACTUAL SERVICE, BUT WERE CONSIDERED AS HAVING AT LEAST SIXTEEN YEARS' SERVICE FOR THE PURPOSE OF TRANSFER AND FOR COMPUTING THEIR RETAINER AND RETIRED PAY. YOUR FURTHER DECISION IS REQUESTED AS TO---

"/J) WHETHER THESE ENLISTED MEN ARE TO BE CONSIDERED AS HAVING BEEN TRANSFERRED TO THE FLEET RESERVE "AFTER MORE THAN SIXTEEN YEARS'SERVICE," AS THAT TERM IS USED IN SECTION 3 OF PUBLIC LAW 720?

"/K) IF QUESTION (J) IS ANSWERED IN THE AFFIRMATIVE, IS THE ACTIVE SERVICE PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE TO BE ADDED TO THE ACTUAL SERVICE AT THE TIME OF TRANSFER OR TO BE ADDED TO THE "CONSTRUCTIVE SIXTEEN YEARS' SERVICE" FOR THE PURPOSE OF RECOMPUTATION UNDER THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 720?

"/K) IF QUESTION (J) IS ANSWERED IN THE AFFIRMATIVE, IS THE ACTIVE SERVICE PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE TO BE ADDED TO THE ACTUAL SERVICE AT THE TIME OF TRANSFER OR TO BE ADDED TO THE "CONSTRUCTIVE SIXTEEN YEARS' SERVICE" FOR THE PURPOSE OF RECOMPUTATION UNDER THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 720?"

UNDER THE QUOTED PROVISION OF THE NAVAL APPROPRIATION ACT, 1923, 42 STAT. 799, ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE THEREWITH ARE PLACED IN THE SAME STATUS WITH RESPECT TO PAY AND ALLOWANCES AS ENLISTED MEN TRANSFERRED AT THE EXPIRATION OF ENLISTMENT "AFTER 16 YEARS' SERVICE.' WHERE IT BECOMES MATERIAL, FOR PAY PURPOSES, TO DETERMINE THE NUMBER OF YEARS WHICH SUCH TRANSFERRED MEMBERS OF THE FLEET RESERVE MAY BE CONSIDERED TO HAVE HAD AT THE TIME OF TRANSFER, IT IS OBVIOUS THAT THEY CANNOT BE CONSIDERED TO HAVE HAD MORE THAN 16 YEARS' SERVICE. TO CONSIDER THEIR SERVICE OTHERWISE WOULD RESULT IN SUCH UNCERTAINTY AS TO THEIR LENGTH OF SERVICE AS TO MAKE THE COMPUTATION OF THEIR PAY IMPOSSIBLE. THEREFORE, THEY MAY NOT BE CONSIDERED TO HAVE BEEN TRANSFERRED AFTER "MORE" THAN 16 YEARS' SERVICE. SEE THE ANSWER TO QUESTION (C) ABOVE. ACCORDINGLY, QUESTION (J) IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (K). QUESTION (L):

SECTION 3 OF PUBLIC LAW 720, SUPRA, PROVIDES THAT WHEN ENLISTED MEN OF THE FLEET RESERVE PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1179; 34 U.S.C. 854E), SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN INACTIVE-DUTY STATUS, AND IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY, ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND "SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE-DUTY STATUS, INCLUDING INCREASE IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM.' THE LAST PROVISO OF SAID SECTION 3 FURTHER PROVIDES:

"THAT PERSONS OF THE CLASSES DESCRIBED IN THIS SECTION WHO HAVE BEEN RETIRED OR RETURNED TO AN INACTIVE-DUTY STATUS PRIOR TO THE DATE OF APPROVAL OF THE SECTION SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTON FROM THE DATE OF RETIREMENT OR RETURN TO AN INACTIVE-DUTY STATUS.'

THE FIRST SENTENCE OF SECTION 9 OF PUBLIC LAW 720 PROVIDES THAT:

"* * * 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.' ( ITALICS SUPPLIED.)

A NUMBER OF FLEET RESERVISTS HAVE PERFORMED ACTIVE DUTY, OTHER THAN ACTIVE DUTY WHICH THEY ARE REQUIRED TO PERFORM UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, AT VARIOUS INTERVALS SUBSEQUENT TO JULY 1, 1925. YOUR FURTHER DECISION IS REQUESTED AS TO---

"/1) WHETHER SUCH INDIVIDUALS ARE ENTITLED, UNDER THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 720, TO HAVE THEIR RETAINER OR RETIRED PAY RECOMPUTED ON EACH SUCH RETURN TO INACTIVE STATUS?

THE ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE WHICH IS AUTHORIZED BY THE NEW SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 TO BE COUNTED BY FLEET RESERVISTS FOR RETAINER OR RETIRED PAY PURPOSES IS ALL ACTIVE DUTY "EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206" OF THE ACT. THE ONLY DUTY WHICH THEY MAY BE REQUIRED TO PERFORM UNDER SECTION 206 IS "NOT MORE THAN 2 MONTHS' ACTIVE DUTY IN EACH 4-YEAR PERIOD.' HENCE, IT WOULD APPEAR THAT ALL ACTIVE DUTY, OTHER/THAN THE SAID 2 MONTHS' ACTIVE DUTY IN TIME OF PEACE IN EACH 4-YEAR PERIOD, PERFORMED SUBSEQUENT TO TRANSFER, WOULD BE CREDITABLE IN THE COMPUTATION OF RETAINER AND RETIRED PAY. HOWEVER, THE SAID NEW SECTION 208 OF THE ACT CONTAINS A PROVISO TO THE EFFECT THAT ACTIVE DUTY PERFORMED DURING ANY PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT SHALL BE CONSIDERED FOR THE PURPOSE OF THAT SECTION AS NOT BEING ACTIVE DUTY IN TIME OF PEACE REQUIRED BY SECTION 206. THE USUAL FUNCTION OF A PROVISO IS TO LIMIT OR MODIFY THE GENERAL PROVISIONS OF SECTION 208 OF THE ACT WOULD, AS INDICATED, APPEAR TO AUTHORIZE ALL ACTIVE DUTY PERFORMED AFTER TRANSFER, EXCEPT THAT PERFORMED UNDER SECTON 206, TO BE CREDITED IN THE COMPUTATION OF RETAINER OR RETIRED PAY OF FLEET RESERVISTS, THE PROVISO REFERRED TO APPEARS TO LIMIT THE ACTIVE DUTY WHICH MAY BE SO CREDITED TO ACTIVE DUTY PERFORMED DURING ANY PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT. THAT SUCH IS THE EFFECT OF THE LEGISLATION IS BORNE OUT BY THE FACT THAT AT THE HEARINGS BEFORE THE SENATE NAVAL AFFAIRS COMMITTEE HELD OCTOBER 9 AND 11, 1945, ON S. 1438, HEREINBEFORE REFERRED TO, IT WAS INDICATED THAT ONLY ACTIVE SERVICE DURING THE WAR, AFTER TRANSFER TO THE FLEET RESERVE, WOULD ENABLE A FLEET RESERVIST TO HAVE HIS RETAINER PAY OR RETIRED PAY RECOMPUTED TO INCLUDE ADVANCEMENTS IN RATING, ETC., RECEIVED AFTER TRANSFER. SEE PAGE 43 OF SUCH HEARINGS WHERE WITH RESPECT TO AN INCREASE IN RETAINER PAY UNDER SUCH BILL BECAUSE OF 2 YEARS' ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, IT WAS STATED---

THE CHAIRMAN. IF THOSE 2 YEARS WERE DURING THE WAR; OR ANY TWO

YEARS?

CAPTAIN HOPWOOD. IT MUST BE DURING THIS WAR.

THE CHAIRMAN. NOW?

CAPTAIN HOPWOOD. YES, SIR.

SENATOR ROBERTSON. YOU ARE TALKING ABOUT RETIREMENT?

CAPTAIN HOPWOOD. I AM TALKING ABOUT REVERTING TO INACTIVE

STATUS--- PERSONNEL WHO RECEIVE A RETAINER OR RETIRED PAY.

SEE, ALSO, PAGE 1946 OF THE HOUSE OF REPRESENTATIVES NAVAL AFFAIRS COMMITTEE HEARINGS ON THE BILL WHICH ARE REFERRED TO ABOVE.

WHILE THE ABOVE-QUOTED STATEMENTS REFER TO THE WAR PERIOD OTHER TESTIMONY AT THE HEARINGS (SEE P. 10 OF THE SENATE COMMITTEE'S HEARINGS OF OCT. 4, 1945, AND P. 1946 OF THE HOUSE COMMITTEE'S HEARINGS, SUPRA), REFERS TO THE PERIOD OF THE NATIONAL EMERGENCY, THE TERMS "WAR" AND "NATIONAL EMERGENCY" APPEARING TO HAVE BEEN USED INTERCHANGEABLY THROUGHOUT SUCH HEARINGS. VIEW OF THE FOREGOING, AND SINCE MEMBERS OF THE FLEET RESERVE COULD BE CALLED TO ACTIVE DUTY WITHOUT THEIR CONSENT DURING THE PERIOD OF THE NATIONAL EMERGENCY, THE CONCLUSION APPEARS REQUIRED THAT THE PROVISION RELATIVE TO SUCH RESERVISTS RETIRED OR RETURNED TO AN INACTIVE STATUS PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 10, 1946, BEING ENTITLED TO THE BENEFITS OF SECTION 3 THEREOF REFERRED ONLY TO FLEET RESERVISTS SERVING ON ACTIVE DUTY DURING THE PERIOD OF THE NATIONAL EMERGENCY. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE TO THE EXTENT THAT IT REFERS TO ACTIVE DUTY NOT PERFORMED DURING A PERIOD OF A NATIONAL EMERGENCY, DECLARED BY THE PRESIDENT.

QUESTIONS (M) AND (N):

THE LAST SENTENCE OF SECTION 9 OF PUBLIC LAW 720, SUPRA, PROVIDES THAT:

"RETIRED ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS, PERSONNEL OF THE NAVY AND MARINE CORPS WHO ARE MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AND PERSONNEL OF THE NAVY AND MARINE CORPS WHO BECOME ELIGIBLE AND WHO APPLY FOR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE SHALL RECEIVE AN OPPORTUNITY TO ELECT TO RECEIVE RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF THIS ACT OR TO RECEIVE SUCH PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF THE ENACTMENT OF THIS ACT, AND THESE PERSONS SHALL BE ENTITLED TO RECEIVE THE PAY ELECTED.'

THIS PROVISION APPEARS TO BE REPUGNANT TO THAT PART OF THE LAST PROVISO OF SECTION 2 OF PUBLIC LAW 720, WHICH PROVIDES:

"THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL PERSONS OF THE CLASS DESCRIBED HEREIN, HERETOFORE OR HEREAFTER TRANSFERRED TO THE FLEET RESERVE, EXCEPT THAT NO INCREASE IN PAY OR ALLOWANCES SHALL BE DEEMED ACCRUED PRIOR TO THE DATE OF THE ENACTMENT OF THIS AMENDMENT.'

IN VIEW OF THE ABOVE, YOUR FURTHER DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(M) MAY A RESERVIST TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1946, UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178), EXERCISE AN ELECTION, UNDER THE LAST SENTENCE OF SECTION 9 OF PUBLIC LAW 720, TO CONTINUE TO DRAW THE PAY HE WAS RECEIVING ON THE DATE PRIOR TO DATE OF ENACTMENT OF PUBLIC LAW 720 UNTIL SUCH TIME AS HE IS TRANSFERRED TO THE RETIRED LIST AND THEN BECOME ENTITLED TO HAVE HIS RETAINER OR RETIRED PAY INCREASED BY THE PERMANENT ADDITIONS?

(N) MAY A RESERVIST TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1946, UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178), EXERCISE AN ELECTION, UNDER THE PROVISIONS OF SECTION 9 OF PUBLIC LAW 720, TO HAVE HIS RETAINER PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204, AS AMENDED, AND, UPON RETIREMENT, EXERCISE A SECOND ELECTION TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF ONE- HALF THE BASE PAY, PLUS PERMANENT ADDITIONS, AS PROVIDED IN SECTION 204 PRIOR TO AMENDMENT?

WHILE THE LANGUAGE OF SECTION 9 OF THE ACT, QUOTED ABOVE, IS STATED BROADLY, IT APPARENTLY WAS INTENDED MERELY AS A SAVINGS CLAUSE, SAVING TO PERSONNEL OF THE NAVY AND MARINE CORPS--- WHETHER ON THE ACTIVE LIST, IN THE FLEET RESERVE, OR ON THE RETIRED LIST AFTER TRANSFER FROM THE FLEET RESERVE--- ON THE EFFECTIVE DATE OF THAT ACT, THAT IS, AUGUST 10, 1946, THE RETAINER PAY AND RETIRED PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THE ACT NOT BEEN PASSED. IN THIS CONNECTION, THERE MAY BE NOTED THE STATEMENT IN REPORT NO. 1768 FROM THE COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE, TO ACCOMPANY S. 2460--- THE BILL WHICH BECAME THE SAID ACT OF AUGUST 10, 1946--- AS FOLLOWS:

SECTION 9 PROVIDES THAT NO BACK PAY FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT OF THE BILL SHALL ACCRUE TO ANY PERSON BY REASON OF THE ENACTMENT OF THE BILL. IT FURTHER PROVIDES THAT NO PERSON SHALL SUFFER ANY REDUCTION IN PAY, ALLOWANCES, OR COMPENSATION BY REASON OF THE ENACTMENT OF THE BILL. ( ITALICS SUPPLIED.)

IDENTICAL EXPLANATION OF THE PROVISIONS OF SECTION 9 IS CONTAINED IN REPORT NO. 2720 FROM THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, ON THE BILL.

THE GENERAL PURPOSE OF A SAVINGS CLAUSE CONTAINED IN PAY STATUTES IS TO SAVE TO PERSONNEL AFFECTED THEREBY HIGHER PAY AND/OR ALLOWANCES TO WHICH THEY MAY HAVE BEEN ENTITLED UNDER A PRIOR LAW BUT NEVER, IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY, TO PERMIT A COMMINGLING OF THE PROVISIONS OF THE PRIOR LAW AND THE CURRENT LAW SO AS TO GIVE SUCH PERSONNEL GREATER BENEFITS THAN THEY COULD HAVE RECEIVED UNDER EITHER LAW ALONE. CF. 22 COMP. GEN. 236, 242, ANSWER TO QUESTION 7; ID. 344; 23 ID. 40; HAVEY V. UNITED STATES, 104 C.1CLS. 483. THE PROVISION HERE IN QUESTION PERMITS THE PERSONNEL INVOLVED TO ELECT TO RECEIVE THEIR RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE ENACTMENT OF THE AMENDING ACT OF AUGUST 10, 1946.

WITH RESPECT TO QUESTION (M) SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS IT READ PRIOR TO BEING AMENDED BY THE SAID ACT OF AUGUST 10, 1946, PROVIDED, IN PART:

* * * THAT ALL ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, 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, PLUS ALL PERMANENT ADDITIONS THERETO, AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' SERVICE. ( ITALICS SUPPLIED.)

UNDER THE FACTS AS UNDERSTOOD THE ENLISTED MAN REFERRED TO IN QUESTION (M) WOULD, IN EFFECT, BE ELECTING TO RECEIVE HIS RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 10, 1946. ACCORDINGLY, THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE. HOWEVER, THE CONTRARY IS TRUE WITH RESPECT TO QUESTION (N). WHAT IS THERE PROPOSED WOULD RESULT IN A COMMINGLING OF THE PROVISIONS OF SECTION 204 OF THE ACT AS IN EFFECT PRIOR TO AUGUST 10, 1946, WITH THE PROVISIONS OF SECTION 204 OF THE ACT AS IN EFFECT ON OR AFTER THAT DATE WHICH, AS POINTED OUT ABOVE, WOULD NOT APPEAR TO BE AUTHORIZED BY THE STATUTORY PROVISION IN QUESTION. THE ELECTION MUST BE MADE AS TO WHETHER RETAINER PAY AND RETIRED PAY SHALL BE PAID UNDER THE LAW AS IN EFFECT PRIOR TO AUGUST 10, 1946, OR UNDER THE LAW AS IN EFFECT ON AND AFTER THAT DATE. FOR THE REASONS STATED QUESTION (N) IS ANSWERED IN THE NEGATIVE.

QUESTION (O):

(O) MAY AN ENLISTED MAN TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 204 OF HE NAVAL RESERVE ACT OF 1938 (52 STAT. 1178), AS AMENDED BY SECTION 2 OF PUBLIC LAW 720, EXERCISE AN ELECTION, UNDER THE PROVISIONS OF SECTION 9 OF PUBLIC LAW 720, TO HAVE HIS RETAINER PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE SAID SECTION 204 IN EFFECT PRIOR TO AUGUST 10, 1946, AND UPON RETIREMENT, EXERCISE A SECOND ELECTION TO HAVE HIS RETIRED PAY COMPUTED AS PROVIDED IN SAID SECTION 204 IN EFFECT PRIOR TO AMENDMENT BY PUBLIC LAW 720?

AS HEREINAFTER POINTED OUT, AN ENLISTED MAN TRANSFERRED TO THE FLEET RESERVE ON OR AFTER AUGUST 10, 1946, AND WHO IS ENTITLED TO ELECT TO RECEIVE THE BENEFITS OF THE NAVAL RESERVE ACT AS IN EFFECT PRIOR TO AUGUST 10, 1946, OR AS IN EFFECT ON AND AFTER THAT DATE, MUST MAKE HIS ELECTION AT THE TIME OF SUCH TRANSFER. ONCE MADE, THE ELECTION CANNOT BE RECALLED OR CHANGED. UNDER THE CIRCUMSTANCES STATED IN QUESTION (O) IT WOULD APPEAR THAT THE ENLISTED MAN ELECTED TO TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 204 AS AMENDED BY THE 1946 ACT AND HE MAY NOT THEREAFTER CHANGE SUCH AN ELECTION. ACCORDINGLY, QUESTION (O) IS ANSWERED IN THE NEGATIVE.

WITH REFERENCE TO THE FOREGOING IT MIGHT BE POINTED OUT THAT SECTION 9 OF THE ACT OF AUGUST 10, 1946, PROVIDES THAT PERSONNEL MENTIONED THEREIN "SHALL RECEIVE AN OPPORTUNITY TO ELECT" TO RECEIVE RETAINER AND RETIRED PAY UNDER THAT ACT OR TO RECEIVE SUCH PAY UNDER THE LAW AS IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF THAT ACT. THAT PROVISION SEEMS TO CONTEMPLATE THAT A REASONABLE TIME AFTER PASSAGE OF THE ACT BE ALLOWED WITHIN WHICH THE ELECTION MAY BE MADE. IT IS UNDERSTOOD THAT THUS FAR, APPARENTLY BECAUSE OF ADMINISTRATIVE UNCERTAINTY AS TO THE EFFECT OF THE ACT, FEW, IF ANY, ELECTIONS HAVE BEEN EXERCISED. HOWEVER, IN VIEW OF THE BROAD TERMS OF THE SAID SECTION 9, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER ELECTIONS MADE PRIOR TO JULY 1, 1947, IN THE CASE OF ANY PERSON WHO TRANSFERRED TO THE FLEET RESERVE OR WHO TRANSFERRED TO THE RETIRED LIST, PRIOR TO JULY 1, 1947, AND WHO WAS IN AN INACTIVE DUTY STATUS ON JUNE 30, 1947. FOR PERSONNEL WHO TRANSFER TO THE FLEET RESERVE AFTER JUNE 30, 1947, OR FLEET RESERVISTS WHO RETURN TO AN INACTIVE STATUS EITHER IN THE FLEET RESERVE OR ON THE RETIRED LIST AFTER THAT DATE, THE RIGHT OF ELECTION MUST BE EXERCISED SIMULTANEOUSLY WITH SUCH CHANGE IN STATUS. OF COURSE, ONCE THE ELECTION IS MADE IT MAY NOT BE RECALLED OR CHANGED.

IT WILL BE NOTED THAT THE ANSWERS TO THE QUESTIONS SUBMITTED FOR DECISION MAKE NO REFERENCE TO THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305, 60 STAT. 26, IT BEING ASSUMED, SINCE THE QUESTIONS DO NOT REFER TO THAT ACT, THAT THE PARTICULAR SITUATIONS PRESENTED DO NOT INVOLVE RESERVISTS WHOSE RIGHTS ARE FOR DETERMINATION UNDER THAT ACT.