B-69311, OCTOBER 24, 1947, 27 COMP. GEN. 238

B-69311, OCTOBER 24, 1947, 27 COMP. GEN. 238

PAY - RETAINER; RETIRED - FLEET RESERVISTS UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, PROVIDING FOR THE TRANSFER OF ENLISTED PERSONNEL TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST 20 YEARS' SERVICE, PERSONNEL WHO, PRIOR TO AUGUST 10, 1946, HAD 16 OR LESS YEARS' SERVICE WHEN TRANSFERRED PURSUANT TO SECTION 203 THEREOF MAY NOT HAVE THEIR RETAINER OR RETIRED PAY COMPUTED ON THE BASIS PRESCRIBED BY SAID SECTION 204, CONSIDERING THAT THE PROVISO THEREIN THAT NOTHING SHALL PREVENT OTHERWISE QUALIFIED PERSONS FROM BEING TRANSFERRED IN ACCORDANCE WITH AMENDED SECTION 204, IF THEY SO DESIRE, IS PROSPECTIVE ONLY AND COVERS THOSE QUALIFIED UNDER SECTION 203 ON OR AFTER AUGUST 10, 1946. UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, PROVIDING FOR THE TRANSFER TO THE FLEET RESERVE OF ENLISTED PERSONNEL WHO HAVE COMPLETED AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE, AND FOR THE COUNTING OF A FRACTIONAL YEAR OF SIX MONTHS OR MORE AS A FULL YEAR IN COMPUTING ACTIVE FEDERAL SERVICE, AN ENLISTED MAN WITH 19 YEARS AND 6 MONTHS' ACTIVE FEDERAL SERVICE AT THE TIME OF TRANSFER IS ENTITLED, IF HE SO ELECTS, TO RETAINER PAY OR RETIRED PAY--- UPON TRANSFER TO THE RETIRED LIST--- COMPUTED UNDER PROVISIONS OF SAID SECTION 204, AS AMENDED, PROVIDED HE OTHERWISE QUALIFIES THEREFOR. THE PROVISION IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE MAY BE COMPUTED AS A FULL YEAR FOR THE PURPOSES OF THAT SECTION, BEING PROSPECTIVE ONLY, HAS NO APPLICATION IN THE CASE OF A MEMBER OF THE FLEET RESERVE WHO TRANSFERRED TO THE RETIRED LIST WITH ACTIVE SERVICE TOTALING 20 YEARS, 6 MONTHS, AND 26 DAYS AND WHO ELECTS TO HAVE HIS RETIRED PAY COMPUTED UNDER LAWS IN EFFECT PRIOR TO AUGUST 10, 1946, SO THAT SUCH PERSON WOULD NOT BE ENTITLED TO CREDIT FOR 21 YEARS' SERVICE IN COMPUTING HIS LONGEVITY PAY FOR RETIRED PAY PURPOSES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 24, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 28, 1947, REQUESTING DECISION ON THE QUESTIONS PRESENTED THEREIN RELATIVE TO THE APPLICATION OF CERTAIN PROVISIONS OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 994, 997 ( PUBLIC LAW 720).

THE PERTINENT PROVISIONS OF THE SAID ACT OF AUGUST 10, 1946, ARE AS FOLLOWS:

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 THIS SECTION AND 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: PROVIDED FURTHER, THAT NOTHING 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 OF THE CLASS DESCRIBED HEREIN HERETOFORE OR HEREAFTER TRANSFERRED TO THE FLEET RESERVE, EXCEPT THAT NO INCREASE IN PAY OR ALLOWANCES SHALL BE DEEMED TO HAVE ACCRUED 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 IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN ACTIVE-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 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 MEN WOULD OTHERWISE HAVE BEEN ENTITLED: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR 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 OF 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 IN WHICH THEY ARE PRESENTED.

QUESTION 1:

1. WHETHER ENLISTED PERSONNEL TRANSFERRED TO THE FLEET RESERVE OR TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST PRIOR TO AUGUST 10, 1046, UNDER THE AUTHORITY CONTAINED IN SECTION 1 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 853), SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854B), SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854C), AND SECTION 206 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854E), AS APPLICABLE, ARE ENTITLED IF THEY SO ELECT, TO RECEIVE RETAINER OR RETIRED PAY UNDER SECTION 2 OF THE ACT APPROVED AUGUST 10, 1946 ( PUBLIC LAW 720, 79TH CONGRESS), IF THEY HAVE LESS THAN 19 YEARS' AND 6 MONTHS' ACTIVE FEDERAL SERVICE TO THEIR CREDIT EITHER AT TIME OF RELEASE FROM ACTIVE DUTY. THE MEN IN QUESTION EITHER HAD 16 YEARS' OR LESS NAVAL SERVICE TO THEIR CREDIT ON DATE OF TRANSFER TO THE FLEET RESERVE OR ELSE HAVE PERFORMED NO ACTIVE DUTY ON AND AFTER SEPTEMBER 8, 1939, SUBSEQUENT TO TRANSFER OR RETIREMENT. THEREFORE THEIR CASES DO NOT COME WITHIN THE PURVIEW OF SECTION 3 OF THE ACT APPROVED AUGUST 10, 1946 ( PUBLIC LAW 720, 79TH CONGRESS), AS INTERPRETED BY THE ASSISTANT COMPTROLLER GENERAL IN DECISION B-64196, DATED APRIL 24, 1947 (26 COMP. GEN. 804).

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, SUPRA, PROVIDES, INTER ALIA, THAT THE PROVISIONS OF THAT SECTION SHALL APPLY TO ALL PERSONS OF THE CLASS DESCRIBED THEREIN, THERETOFORE OR THEREAFTER TRANSFERRED TO THE FLEET RESERVE. THE GENERAL CLASS OF PERSONS DESCRIBED THEREIN ARE 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 NAVY FOR MORE THAN THREE MONTHS, AND WHO HAVE COMPLETED "AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE.' HENCE, IN ORDER TO COME WITHIN THE PROVISIONS OF THE AMENDED SECTION 204, IT IS NECESSARY TO HAVE FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, OR TO HAVE REENLISTED AFTER JULY 1, 1925, HAVING BEEN OUT OF THE NAVY OVER THREE MONTHS, AND ALSO TO HAVE COMPLETED AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE AT THE TIME OF TRANSFER. SINCE NONE OF THE PERSONNEL REFERRED TO IN YOUR QUESTION HAD COMPLETED 20 YEARS' ACTIVE FEDERAL SERVICE AT THE TIME OF TRANSFER, THIS QUESTION IS ANSWERED IN THE NEGATIVE. THERE HAS NOT BEEN OVERLOOKED, IN THAT CONNECTION, THE FURTHER PROVISION IN THE AMENDED SECTION 204 TO THE EFFECT THAT NOTHING CONTAINED THEREIN SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203, 52 STAT. 1178, FROM BEING TRANSFERRED IN ACCORDANCE WITH THE SAID AMENDED SECTION 204, IF THEY SO DESIRE. HOWEVER, AS HEREINAFTER POINTED OUT IN CONNECTION WITH PART (B) OF QUESTION 5, THAT PROVISION IS PROSPECTIVE ONLY AND COVERS THOSE PERSONS WHO QUALIFY FOR TRANSFER UNDER SECTION 203 ON OR AFTER AUGUST 10, 1946.

YOUR SECOND QUESTION IS PREDICATED ON AN AFFIRMATIVE ANSWER TO THE FIRST QUESTION AND, ACCORDINGLY, NO REPLY THERETO IS REQUIRED.

QUESTION 3:

3. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, ARE THE ENLISTED MEN OF THE CLASSES MENTIONED IN QUESTION 2 (A) TO (E) ENTITLED, IF THEY SO ELECT, UNDER SECTION 9 OF THE ACT APPROVED AUGUST 10, 1946 ( PUBLIC LAW 720, 79TH CONGRESS), TO RETAINER OR RETIRED PAY UNDER SECTION 2 OF THE ACT APPROVED AUGUST 10, 1946 ( PUBLIC LAW 720, 79TH CONGRESS), IF THEY HAVE TOTAL ACTIVE FEDERAL SERVICE OF NOT LESS THAN 19 YEARS AND 6 MONTHS? FOR INSTANCE, THE CASES LISTED BELOW, ONCE THE ELECTION HAS BEEN EXERCISED, WILL REQUIRE A DETERMINATION AS TO PAY STATUS:

THE CLASSES OF ENLISTED MEN REFERRED TO IN QUESTION 2 (A) TO (E) ARE PERSONNEL WHO, AT THE TIME OF TRANSFER TO THE FLEET RESERVE AND THE RETIRED LIST, HAD SERVICE AS FOLLOWS:

(A) LESS THAN 16 YEARS' NAVAL SERVICE (TRANSFERRED TO THE FLEET RESERVE UNDER THE ACT APPROVED JULY 1, 1922 (42 STAT. 786) );

(B) EXACTLY 16 BUT LESS THAN 20 YEARS' NAVAL SERVICE;

(C) MORE THAN 16 BUT LESS THAN 20 YEARS' NAVAL SERVICE;

(D) EXACTLY 20 YEARS' NAVAL SERVICE.

(E) MORE THAN 20 YEARS' NAVAL SERVICE.

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED (SECTION 2 OF THE SAID ACT OF AUGUST 10, 1946), REFERS ONLY TO PERSONNEL WHO HAVE COMPLETED AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE AT THE TIME OF TRANSFER BUT IT CONTAINS A PROVISO TO THE EFFECT THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR THE PURPOSES OF THAT SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE. IF THE PERSONNEL REFERRED TO IN QUESTION 2 (A), (C), (D), AND (E) HAD AT LEAST 19 YEARS AND 6 MONTHS' ACTIVE FEDERAL SERVICE AT THE TIME THEY TRANSFERRED TO THE FLEET RESERVE, AND IF THEY OTHERWISE QUALIFY UNDER THE PROVISIONS OF SECTION 204 OF THE ACT, AS AMENDED, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IF, AS INDICATED IN YOUR LETTER, THE PROPER METHOD OF COMPUTING RETAINER OR RETIRED PAY IN THE EXAMPLES STATED IN CONNECTION WITH QUESTION 3 IS GOVERNED BY THE ANSWER TO THAT QUESTION, NO DIFFICULTY SHOULD BE EXPERIENCED IN DETERMINING ADMINISTRATIVELY THE CORRECT RATES OF SUCH PAY BASED ON WHAT HAS BEEN STATED ABOVE. HOWEVER, IF THE MATTER IS STILL IN DOUBT, FURTHER CONSIDERATION WILL BE GIVEN THERETO UPON SUBMISSION OF THE SPECIFIC QUESTION, OR QUESTIONS, OF LAW WHICH MAY BE INVOLVED.

QUESTION 4:

4. AN ENLISTED MAN WAS TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1923 IN THE RATING OF CHIEF YEOMAN, AFTER COMPLETION OF 16 YEARS' AND 10 DAYS' NAVAL SERVICE, OF WHICH 15 YEARS, 5 MONTHS, AND 9 DAYS WAS ACTIVE FEDERAL SERVICE. THE MAN WAS TRANSFERRED TO THE RETIRED LIST IN 1937, WAS RECALLED TO DUTY ON MARCH 14, 1942, AND RELEASED THEREFROM ON APRIL 30, 1947, AT WHICH TIME HE HAD COMPLETED ACTIVE FEDERAL SERVICE TOTALING 20 YEARS, 6 MONTHS, AND 26 DAYS. IT HAS BEEN DETERMINED THAT HE SERVED SATISFACTORILY IN THE RANK OF COMMANDER. THE MAN IS AT PRESENT RECEIVING RETIRED PAY COMPUTED AS FOLLOWS:

1/3 OF BASE PAY OF A COMMANDER UNDER 30 YEARS ($320.83/------ 106.94

LONGEVITY INCREASE (30 PERCENT--- OVER 18 YEARS' SERVICE/---- 96.25

$203.19 IN CASE THE MAN ELECTS, UNDER SECTION 9 OF PUBLIC LAW 720 APPROVED AUGUST 10, 1946, TO DRAW PAY UNDER PROVISIONS OF LAW IN EFFECT ON AUGUST 9, 1946, IS HE ENTITLED TO RETIRED PAY COMPUTED AS ABOVE OR IS HE ENTITLED TO RETIRED PAY COMPUTED AS FOLLOWS:

1/3 OF BASE PAY OF A COMMANDER UNDER 30 YEARS (320.83/------ 106.94

LONGEVITY INCREASE (35 PERCENT--- OVER 21 YEARS' SERVICE)

(20-6-26) ------ 112.29 ------

$219.23

PRESUMABLY THE MAN IN QUESTION IS ENTITLED TO HAVE HIS RETIRED PAY BASED ON THE RANK OF COMMANDER UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28 ( PUBLIC LAW 305), WHICH AMENDED SECTION 10 OF THE ACT OF JULY 24, 1941, SO AS TO PROVIDE, INTER ALIA, THAT PERSONNEL OF THE RETIRED LIST OF THE REGULAR NAVY, INCLUDING MEMBERS OF THE FLEET RESERVE TRANSFERRED TO THE RETIRED LIST, WHO WERE APPOINTED OR ADVANCED UNDER AUTHORITY OF THE SAID ACT OF JULY 24, 1941, WHEN RETURNED TO AN INACTIVE STATUS SHALL HAVE THE HIGHEST GRADE OR RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY, AND SHALL RECEIVE RETIRED PAY BASED ON SUCH RANK TO BE COMPUTED AS PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE. 26 COMP. GEN. 5.

APPARENTLY THIS MAN TRANSFERRED TO THE FLEET NAVAL RESERVE, AFTER HAVING COMPLETED MORE THAN 16 YEARS' NAVAL SERVICE, UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 589, AND THE RATE OF HIS RETIRED PAY CURRENTLY IS GOVERNED BY THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AS AMENDED, SECTION 1 OF WHICH, BY REFERENCE, FIXES IT AT ONE-THIRD OF HIS BASE PAY PLUS ALL PERMANENT ADDITIONS THERETO. SEE THE ACT OF AUGUST 29, 1916, SUPRA, AND SECTIONS 1 AND 24 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1080 AND 1087.

SO FAR AS THIS OFFICE IS AWARE THERE WAS NO AUTHORITY OF LAW, PRIOR TO THE ENACTMENT OF THE SAID ACT OF AUGUST 10, 1946, FOR FLEET RESERVISTS TO COUNT A FRACTIONAL YEAR'S SERVICE OF SIX MONTHS OR MORE AS A FULL YEAR IN COMPUTING BASE AND LONGEVITY PAY IN CONNECTION WITH THEIR RETAINER OR RETIRED PAY. ACCORDINGLY, IF THE MAN REFERRED TO ELECTS TO RECEIVE RETIRED PAY UNDER THE LAWS IN EFFECT ON AUGUST 9, 1946, I.E., PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 10, 1946, THERE WOULD BE NO AUTHORITY TO CREDIT HIM WITH 21 YEARS' SERVICE IN COMPUTING HIS LONGEVITY PAY FOR RETIRED PAY PURPOSES WHEN HIS ACTUAL SERVICE IS ONLY 20 YEARS, 6 MONTHS, AND 26 DAYS. THEREFORE, HIS RETIRED PAY PROPERLY WOULD BE COMPUTED AT ONE -THIRD OF THE BASE PAY OF A COMMANDER WITH LESS THAN 30 YEARS' SERVICE PLUS LONGEVITY PAY BASED ON 18 YEARS' SERVICE.

QUESTION 5:

5. AN ENLISTED MAN WAS TRANSFERRED TO THE FLEET RESERVE ON JANUARY 15, 1939, IN THE RATING OF CSK ( PA) UNDER THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854B) AFTER COMPLETION OF 16 YEARS' AND 3 MONTHS' NAVAL SERVICE, AT WHICH TIME HE HAD TOTAL ACTIVE FEDERAL SERVICE INCLUDING 3 YEARS IN U.S. ARMY) OF 18 YEARS 7 MONTHS AND 21 DAYS. MAN WAS TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY ON JANUARY 1, 1940, WAS RECALLED TO ACTIVE DUTY ON FEBRUARY 1, 1942, AND WAS RELEASED FROM ACTIVE DUTY ON JANUARY 31, 1946. AT TIME OF RELEASE FROM ACTIVE DUTY HE HELD THE TEMPORARY RANK OF LIEUTENANT COMMANDER. THE PRESENT TIME HE IS BEING CREDITED WITH RETIRED PAY AS FOLLOWS:

1/3 OF BASE PAY OF A LIEUTENANT COMMANDER UNDER 23 YEARS'

SERVICE ------ $91.67

LONGEVITY INCREASE (35 PERCENT--- OVER 21 YEARS' SERVICE ----- 96.25

$187.92

(A) IF MAN ELECTS TO DRAW PAY UNDER THE PROVISIONS OF LAW IN EFFECT ON AUGUST 9, 1946 ( SECTION 10 OF THE ACT APPROVED JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT APPROVED FEBRUARY 21, 1946 ( PUBLIC LAW 305, 79TH CONGRESS) (, IS HE ENTITLED TO RETIRED PAY COMPUTED AS:

1/3 OF THE BASE PAY OF A LIEUTENANT COMMANDER WITH OVER 23YEARS' SERVICE (22 YEARS 7 MONTHS AND 21 DAYS ACTIVE FEDERAL SERVICE) ------- ----------- ------------------------------------$106.94

LONGEVITY INCREASE (35 PERCENT--- OVER 21 YEARS' SERVICE) --- 112.29

$219.23

(B) IN CASE HE ELECTS, UNDER SECTION 9 OF PUBLIC LAW 720 APPROVED AUGUST 10, 1946, TO DRAW RETIRED PAY COMPUTED UNDER PUBLIC LAW 720, IS HE ENTITLED TO RETIRED PAY COMPUTED AS 57 1/2 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 23 YEARS' SERVICE, OR $249.04 PER MONTH?

AS STATED IN ANSWER TO QUESTION 4, SO FAR AS THIS OFFICE IS AWARE THERE WAS NO AUTHORITY OF LAW, PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 10, 1946, FOR FLEET RESERVISTS TO COUNT A FRACTIONAL YEAR'S SERVICE OF SIX MONTHS OR MORE AS A FULL YEAR IN COMPUTING BASE AND LONGEVITY PAY IN CONNECTION WITH THEIR RETAINER OR RETIRED PAY. WHILE SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, SUPRA, DOES PROVIDE THAT A FRACTIONAL YEAR'S SERVICE OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING BASE AND LONGEVITY PAY FOR THE PURPOSES OF THAT SECTION AND "SECTION 203" OF THE ACT, THAT PROVISION IS NOT MADE RETROACTIVE, BUT APPLIES ONLY TO THOSE FLEET RESERVISTS WHO ELECT TO RECEIVE THEIR RETAINER OR RETIRED PAY UNDER THE LAWS IN EFFECT ON AND AFTER AUGUST 10, 1946. ACCORDINGLY, IF THE MAN REFERRED TO ELECTS TO RECEIVE RETIRED PAY UNDER THE LAWS IN EFFECT PRIOR TO AUGUST 10, 1946, HE WOULD NOT BE ENTITLED TO CREDIT FOR 23 YEARS' SERVICE FOR THE PURPOSE OF DETERMINING HIS BASE PAY WHEN HIS ACTUAL SERVICE WAS ONLY 22 YEARS, 7 MONTHS, AND 21 DAYS. THEREFORE, UNDER THE CIRCUMSTANCES STATED IN PART (A) OF THE QUESTION THE MAN WOULD BE ENTITLED TO RETIRED PAY COMPUTED AT ONE-THIRD THE BASE PAY OF A LIEUTENANT AND COMMANDER WITH OVER 21 YEARS' SERVICE WITH LONGEVITY INCREASE BASED ON 21 YEARS' SERVICE.

WITH RESPECT TO PART (B) OF THE QUESTION, THE AMENDED SECTION 204 OF THE ACT PROVIDES THAT NOTHING CONTAINED WITHIN THAT SECTION SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203 OF THE ACT FROM BEING TRANSFERRED IN ACCORDANCE WITH SAID AMENDED SECTION 204 IF THEY SO DESIRE. HOWEVER, THAT PROVISION NECESSARILY IS PROSPECTIVE AND REFERS ONLY TO PERSONS WHO THEREAFTER QUALIFY FOR TRANSFER UNDER SECTION 203 SINCE IT IS MANIFEST THAT THERE WOULD BE NO OCCASION FOR A PERSON WHO HAD ALREADY TRANSFERRED UNDER SECTION 203 TO AGAIN TRANSFER TO THE FLEET RESERVE AT A LATER DATE. ALSO, SINCE THE MAN IN QUESTION HAD LESS THAN 20 YEARS' ACTIVE FEDERAL SERVICE AT THE TIME OF THIS TRANSFER, IN ADDITION TO HAVING ENLISTED PRIOR TO JULY 1, 1925, HE WOULD NOT COME WITHIN THE GENERAL PROVISIONS OF THE AMENDED SECTION 204. SEE THE ANSWER TO QUESTION 1 ABOVE. ACCORDINGLY, THERE WOULD BE NO PROPER BASIS FOR COMPUTING THE MAN'S RETIRED PAY ON A PERCENTAGE BASIS AS INDICATED IN THE EXAMPLE GIVEN. HOWEVER, SINCE THE SAID AMENDED SECTION 204 PROVIDES THAT A FRACTIONAL YEAR'S SERVICE OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR THE PURPOSES OF THAT SECTION AND "SECTION 203" IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY, IF THE MAN IN QUESTION ELECTS TO HAVE HIS RETIRED PAY COMPUTED UNDER THE LAW IN EFFECT ON AND AFTER AUGUST 10, 1946, HE WOULD BE ENTITLED TO RETIRED PAY AT THE RATE OF ONE-THIRD THE BASE PAY OF A LIEUTENANT COMMANDER WITH 23 YEARS' SERVICE PLUS LONGEVITY BASED ON OVER 21 YEARS BUT LESS THAN 24 YEARS' SERVICE.

QUESTION 6:

6. A MAN WAS INITIALLY TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854B) AFTER COMPLETION OF OVER 20 YEARS' NAVAL SERVICE AND WAS SUBSEQUENTLY TRANSFERRED TO THE RETIRED LIST AFTER COMPLETION OF 30 YEARS' SERVICE. WAS RECALLED TO ACTIVE DUTY, WAS TEMPORARILY APPOINTED TO CHIEF GUNNER UNDER THE ACT OF JULY 24, 1941, AND IT HAS BEEN DETERMINED THAT HE SERVED SATISFACTORILY IN THAT RANK. AT TIME OF RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE RETIRED LIST ON JANUARY 15, 1946, THE MAN HAD ACTIVE FEDERAL SERVICE TOTALING 23 YEARS 10 MONTHS AND 22 DAYS. HE IS ALSO ENTITLED TO 10 PERCENT INCREASE FOR GOOD CONDUCT. THE MAN IS AT PRESENT BEING CREDITED WITH RETIRED PAY COMPUTED AS FOLLOWS:

1/2 OF BASE PAY OF CWO WITH LESS THAN 10 YEARS' COMMISSIONED SERVICE ---- ------------------------------------------------- $105.00

LONGEVITY INCREASE (35 PERCENT--- OVER 21 YEARS' SERVICE) - 73.50

$178.50

10 PERCENT INCREASE FOR GOOD CONDUCT ---------------------- 17.85

$196.33 (35)

IF THE MAN ELECTS TO HAVE HIS PAY COMPUTED UNDER LAWS IN EFFECT ON AUGUST 9, 1946, IS HE ENTITLED TO PAY COMPUTED AS FOLLOWS ON AND AFTER JANUARY 15, 1946, DATE OF RELEASE FROM ACTIVE DUTY:

1/2 OF BASE PAY OF CWO WITH LESS THAN 10 YEARS' COMMISSIONED SERVICE ---- ------------------------------------------------- $105.00

LONGEVITY INCREASE (40 PERCENT--- 23-10-22 CREDITABLE FOR PAY PURPOSES) - ---------------------------------------------- 84.00

$189.00

10 PERCENT INCREASE FOR GOOD CONDUCT ---------------------- 18.90

$207.90

IF THE MAN ELECTS TO RECEIVE RETIRED PAY COMPUTED UNDER THE LAWS IN EFFECT PRIOR TO AUGUST 10, 1946, HE WOULD BE ENTITLED TO HAVE HIS PAY COMPUTED IN THE MANNER IN WHICH IT IS INDICATED HE IS NOW BEING PAID, I.E., ONE-HALF THE BASE PAY OF A COMMISSIONED WARRANT OFFICER HAVING LESS THAN TEN YEARS' COMMISSIONED SERVICE WITH LONGEVITY CREDIT FOR OVER 21 YEARS' SERVICE PLUS 10 PERCENT INCREASE FOR GOOD CONDUCT. SEE THE ANSWERS TO QUESTIONS 4 AND 5.

QUESTION 7:

7. A MAN WAS TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 854B), IN THE RATING OF CMM ( PA) AFTER COMPLETION OF NAVAL SERVICE TOTALING 16 YEARS 2 MONTHS AND 8 DAYS. HE WAS SUBSEQUENTLY RECALLED TO AND REPORTED FOR ACTIVE DUTY ON JANUARY 29, 1942, AND SERVED CONTINUOUSLY ON ACTIVE DUTY UNTIL JULY 29, 1946. THE MAN WAS TRANSFERRED TO THE RETIRED LIST ON AUGUST 1, 1946, AT WHICH TIME HE HAD COMPLETED ACTIVE FEDERAL SERVICE TOTALING 20 YEARS 7 MONTHS AND 1 DAY. AT THE TIME OF RELEASE FROM ACTIVE DUTY, THE MAN HELD THE TEMPORARY RANK OF CHIEF WARRANT OFFICER, AND IT HAS BEEN DETERMINED THAT HE SERVED SATISFACTORILY IN THAT RANK. THE MAN IS AT PRESENT BEING CREDITED WITH RETIRED PAY COMPUTED AS FOLLOWS:

1/3 OF BASE PAY OF CWO WITH LESS THAN 10 YEARS COMMISSIONED SERVICE ----- ------------------------------------------------- $70.00

LONGEVITY INCREASE (30 PERCENT--- OVER 18 YEARS' SERVICE ---------- ----- -------------------------------------- 63.00

$133.00

IF THE MAN ELECTS TO DRAW MONTHLY RETIRED PAY COMPUTED AS PROVIDED IN PUBLIC LAW 720 APPROVED AUGUST 10, 1946, IS HE ENTITLED TO RETIRED PAY COMPUTED AS FOLLOWS:

2 1/2 X $283.50 X 21 (20-7-1 ACTIVE FEDERAL SERVICE) ------ $148.84

THIS QUESTION IS ANSWERED IN THE NEGATIVE. SEE THE ANSWER TO PART (B) OF QUESTION 5.