B-90755, APRIL 13, 1950, 29 COMP. GEN. 404

B-90755: Apr 13, 1950

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WHO ELECTED TO HAVE THEIR PAY COMPUTED UNDER PROVISIONS OF LAW IN EFFECT PRIOR TO AUGUST 10. - ARE ENTITLED. TO HAVE THEIR RETAINER PAY COMPUTED AT ONE-THIRD OR ONE-HALF OF THE BASIC PAY PROVIDED FOR MEN OF THEIR GRADE WITH THEIR LENGTH OF SERVICE. NAVY ENLISTED MEN WHO ARE DRAWING SAVED PAY UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 AT THE TIME OF TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 OR 204 OF THE NAVAL RESERVE ACT OF 1938. ARE ENTITLED TO HAVE THEIR RETAINER PAY COMPUTED ON THE BASE PAY. THEY WERE RECEIVING "AT THE TIME OF TRANSFER.'. A MEMBER OF THE FLEET RESERVE WHO WAS TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY PRIOR TO COMPLETION OF 30 YEARS' SERVICE MAY.

B-90755, APRIL 13, 1950, 29 COMP. GEN. 404

PAY - RETAINER - FLEET RESERVISTS - COMPUTATION UNDER CAREER COMPENSATION ACT OF 1949 NAVY ENLISTED MEN WHO ON OR AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 TRANSFERRED TO THE FLEET RESERVE UNDER SECTION 203 OR 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AND WHO ELECTED TO HAVE THEIR PAY COMPUTED UNDER PROVISIONS OF LAW IN EFFECT PRIOR TO AUGUST 10, 1946--- DATE OF ACT AMENDING SAID SECTION 204--- ARE ENTITLED, DEPENDING UPON THE SECTION UNDER WHICH TRANSFERRED, TO HAVE THEIR RETAINER PAY COMPUTED AT ONE-THIRD OR ONE-HALF OF THE BASIC PAY PROVIDED FOR MEN OF THEIR GRADE WITH THEIR LENGTH OF SERVICE, PLUS THE 10 PERCENTUM INCREASE IF QUALIFIED THEREFOR UNDER SECTION 203 OF THE 1938 ACT. NAVY ENLISTED MEN WHO ARE DRAWING SAVED PAY UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 AT THE TIME OF TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 OR 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, ARE ENTITLED TO HAVE THEIR RETAINER PAY COMPUTED ON THE BASE PAY, INCLUDING SAVED PAY, THEY WERE RECEIVING "AT THE TIME OF TRANSFER.' A MEMBER OF THE FLEET RESERVE WHO WAS TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY PRIOR TO COMPLETION OF 30 YEARS' SERVICE MAY, UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, ELECT EITHER TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER OTHER PROVISIONS OF THE ACT OR TO HAVE HIS RETIRED PAY COMPUTED BY METHOD (A) OR (B) IN SECTION 511; HOWEVER, UPON ELECTION TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD (B), SUCH PAY MAY NOT BE COMPUTED UPON THE BASIS OF THE HIGHEST OFFICER OR WARRANT OFFICER GRADE HELD BY SUCH MEMBER PRIOR TO COMPLETION OF 30 YEARS' SERVICE. MEMBERS OF THE FLEET RESERVE WHO ARE TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY AND WHO ELECT UNDER OPTION (B) IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 ARE NOT REQUIRED TO FURTHER IRREVOCABLY ELECT ONE OR THE OTHER OF THE TWO METHODS, BUT MAY RECEIVE RETIRED PAY, IN THE AMOUNT WHICHEVER IS GREATER FROM TIME TO TIME, COMPUTED BY EITHER METHOD, THE SAME AS NONDISABLED RETIRED MEMBERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 13, 1950:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 16, 1949, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS RELATIVE TO THE COMPUTATION OF RETAINER PAY AND RETIRED PAY OF MEMBERS OF THE FLEET RESERVE ARISING BY VIRTUE OF THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949.

THE FIRST TWO QUESTIONS ARE AS FOLLOWS:

(A) BY WHAT METHOD IS THE RETAINER PAY TO BE COMPUTED IN THE CASE OF ENLISTED MEN TRANSFERRED ON AND AFTER OCTOBER 1, 1949, TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, OR UNDER SECTION 204 OF THAT ACT AS AMENDED, EFFECTIVE AUGUST 10, 1946, AND WHO ELECT TO HAVE SUCH PAY COMPUTED UNDER PROVISIONS OF LAW IN EFFECT PRIOR TO AUGUST 10, 1946?

(B) BY WHAT METHOD IS THE RETAINER PAY TO BE COMPUTED IN THE CASE OF AN ENLISTED MAN COMING UNDER (A) ABOVE WHO IS DRAWING SAVED PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 AT THE TIME OF TRANSFER TO THE FLEET RESERVE ON OR AFTER OCTOBER 1, 1949?

THE ACT OF AUGUST 10, 1946, 60 STAT. 993, INTER ALIA, AMENDED THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AND MADE SUBSTANTIAL CHANGES IN THE METHOD OF COMPUTING RETAINER PAY FOR MEMBERS OF THE FLEET RESERVE. HOWEVER, PROVISION WAS MADE THEREIN WHICH PERMITTED CERTAIN ENLISTED PERSONNEL TO ELECT TO HAVE THEIR RETAINER PAY COMPUTED UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF THE ENACTMENT OF THAT ACT.

UNDER THE PROVISIONS OF LAW IN EFFECT PRIOR TO AUGUST 10, 1946, THE BASIS FOR THE COMPUTATION OF RETAINER PAY OF MEMBERS OF THE FLEET RESERVE WAS CONTAINED IN SECTIONS 203 AND 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178 AND 1179. SECTION 203 PROVIDED GENERALLY FOR THE TRANSFER TO THE FLEET RESERVE OF CERTAIN CATEGORIES OF ENLISTED MEN OF THE REGULAR NAVY ON THE COMPLETION OF 16 OR 20 OR MORE YEARS' SERVICE AT ONE-THIRD OR ONE-HALF THE BASE PAY THEY WERE RECEIVING "AT THE TIME OF TRANSFER," PLUS ALL "PERMANENT ADDITIONS" THERETO, WITH THE FURTHER PROVISION THAT SUCH PAY WOULD 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 20 OR MORE YEARS SHALL NOT BE LESS THAN 95 PERCENTUM OF THE MAXIMUM. SECTION 204 MADE SOMEWHAT SIMILAR PROVISION FOR OTHER CATEGORIES OF ENLISTED MEN OF THE REGULAR NAVY UPON TRANSFER TO THE FLEET RESERVE AFTER 20 OR MORE YEARS' SERVICE BUT THEIR RETAINER PAY WAS FIXED AT ONE- HALF THEIR BASE PAY, WITHOUT THE PERMANENT ADDITIONS AND WITHOUT THE 10 PERCENTUM ADDITIONS FOR EXTRAORDINARY HEROISM, ETC.

THE PERMANENT ADDITIONS REFERRED TO HERETOFORE EMBRACED THE SO CALLED LONGEVITY PAY REPRESENTING THE FIVE PERCENTUM INCREASE IN BASE PAY PREVIOUSLY AUTHORIZED BY LAW FOR EACH THREE YEARS OF SERVICE UP TO 30 YEARS. HOWEVER, THE CAREER COMPENSATION ACT OF 1949, SUPRA, MAKES NO PROVISIONS FOR THE PAYMENT OF LONGEVITY PAY SUCH AS WERE CONTAINED IN PREVIOUS PAY ACTS BUT PROVIDES FOR ,BASIC PAY" DISTRIBUTED IN VARIOUS PAY GRADES (E-1 TO E-7 FOR ENLISTED MEN) BASED ON CUMULATIVE YEARS OF SERVICE. SEE SECTION 201 (A) OF THE ACT, 63 STAT. 805. ACCORDINGLY, IN ANSWER TO YOUR QUESTION (A) ABOVE, YOU ARE ADVISED THAT THE MEN REFERRED TO THEREIN WOULD BE ENTITLED TO RETAINER PAY COMPUTED AT ONE-THIRD OR ONE- HALF, AS THE CASE MAY BE, OF THE BASIC PAY PROVIDED FOR MEN OF THEIR GRADE WITH THEIR LENGTH OF SERVICE, PLUS THE 10 PERCENTUM INCREASE, IF QUALIFIED THEREFOR UNDER SECTION 203 OF THE 1938 ACT.

WITH RESPECT TO QUESTION (B) IT WILL BE NOTED THAT, AS INDICATED ABOVE, SECTION 203 OF THE 1938 ACT, AS DOES SECTION 204, PROVIDES THAT RETAINER PAY SHALL BE COMPUTED ON THE BASE PAY THE MAN WAS RECEIVING "AT THE TIME OF TRANSFER.' HENCE, SINCE THE MEN REFERRED TO IN YOUR QUESTION WOULD BE RECEIVING SAVED PAY AT THE TIME OF THEIR TRANSFER, THEIR RETAINER PAY NECESSARILY WOULD BE COMPUTED ON SUCH SAVED PAY. CF. 23 COMP. GEN. 59, 65, ANSWER TO THE FOURTH QUESTION. QUESTION (B) IS ANSWERED ACCORDINGLY.

YOUR NEXT TWO QUESTIONS, WHICH HAVE BEEN RELETTERED FOR CONVENIENCE, ARE AS FOLLOWS:

(C) IS A MEMBER, TRANSFERRED TO THE RETIRED LIST FROM THE FLEET RESERVE PRIOR TO COMPLETION OF THIRTY YEARS' SERVICE, AND WHO, ON SEPTEMBER 30, 1949 WAS DRAWING RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO AUGUST 10, 1946, BASED ON TEMPORARY OFFICER RANK, ENTITLED TO RETIRED PAY COMPUTED AS PRESCRIBED IN OPTION (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, ON THE BASIS OF THE HIGHEST FEDERALLY RECOGNIZED RANK HELD PRIOR OR SUBSEQUENT TO JULY 1, 1946?

(D) IS A MEMBER, TRANSFERRED TO THE RETIRED LIST AFTER TRANSFER TO THE FLEET RESERVE UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, PRIOR TO COMPLETION OF THIRTY YEARS' SERVICE AND WHO, ON SEPTEMBER 30, 1949, WAS DRAWING RETIRED PAY BASED ON TEMPORARY OFFICER RANK, ENTITLED TO RETIRED PAY COMPUTED AS PRESCRIBED IN OPTION (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 ON THE BASIS OF THE HIGHEST FEDERALLY RECOGNIZED RANK HELD PRIOR OR SUBSEQUENT TO JULY 1, 1946?

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, READS, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY, (2) MEMBERS HERETOFORE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, AND (3) MEMBERS OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS HERETOFORE RETIRED UNDER THE ACT OF MAY 13, 1926 (44 STAT. 513), SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: * * * PROVIDED FURTHER, THAT THE RETIRED OR RETIREMENT PAY OF EACH MEMBER REFERRED TO IN (3) ABOVE SHALL, UNLESS A HIGHER RANK OR GRADE IS AUTHORIZED BY ANY PROVISION OF LAW, BE BASED UPON THE COMMISSIONED OFFICER GRADE AUTHORIZED FOR SUCH MEMBER BY THE ACT OF MAY 7, 1948 ( PUBLIC LAW 517, EIGHTIETH CONGRESS): PROVIDED FURTHER, THAT * * * ENLISTED PERSONS OR FORMER ENLISTED PERSONS OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO HAVE BEEN TRANSFERRED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF TITLE II OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SHALL NOT BE ENTITLED TO HAVE THEIR RETIRED PAY OR RETAINER PAY COMPUTED ON THE BASIS OF THE HIGHEST OFFICER OR WARRANT OFFICER GRADE HELD BY THEM AS AUTHORIZED BY THIS SECTION UNTIL THEY HAVE COMPLETED THIRTY YEARS OF SERVICE, TO INCLUDE THE SUM OF THEIR ACTIVE SERVICE AND THEIR SERVICE ON THE RETIRED LIST OR IN THE FLEET RESERVE OR IN THE FLEET MARINE CORPS RESERVE, AS REQUIRED BY EXISTING LAW. * * *

THIS OFFICE IS AWARE OF NO PROVISION OF LAW UNDER WHICH MEMBERS OF THE FLEET RESERVE MAY BE TRANSFERRED TO THE RETIRED LIST PRIOR TO THE COMPLETION OF 30 YEARS' SERVICE EXCEPT BY REASON OF PHYSICAL DISABILITY. AND, SINCE SECTION 511 OF THE ACT REFERS ONLY TO MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY, IT COULD HAVE NO APPLICATION TO MEMBERS OF THE FLEET RESERVE SUCH AS REFERRED TO IN QUESTIONS (C) AND (D) EXCEPT TO THE EXTENT THAT IT MAY BE MADE APPLICABLE BY VIRTUE OF THE PROVISIONS OF SECTION 411 OF THE ACT.

SECTION 411, 63 STAT. 823, READS, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

AS DEFINED IN SECTION 102 OF THE ACT, 63 STAT. 804, THE TERM "UNIFORMED SERVICES" INCLUDES, INTER ALIA, THE NAVY, MARINE CORPS, AND ALL RESERVE COMPONENTS THEREOF. HENCE, A MEMBER OF THE FLEET RESERVE WHO WAS TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY WOULD COME WITHIN THE PURVIEW OF SECTION 411 OF THE ACT AND COULD ELECT EITHER TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER OTHER PROVISIONS OF THE ACT OR TO HAVE HIS RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511. IF HE HAS HIS RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511, THE LAW CLEARLY PROVIDES THAT HE SHALL NOT BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST OFFICER OR WARRANT OFFICER GRADE HELD BY HIM, AS OTHERWISE AUTHORIZED IN METHOD (B), UNTIL HE HAS COMPLETED 30 YEARS OF SERVICE. ACCORDINGLY, ASSUMING THAT THE MEMBERS INVOLVED HAVE NOT YET COMPLETED 30 YEARS' SERVICE COMPUTED AS PRESCRIBED IN SECTION 511, QUESTIONS (C) AND (D) ARE ANSWERED IN THE NEGATIVE.

THE NEXT QUESTION, WHICH HAS BEEN RELETTERED (E), IS AS FOLLOWS:

(E) IF IT IS HELD THAT MEMBERS REFERRED TO IN QUESTION (B) (D) ARE ENTITLED TO RETIRED PAY UNDER OPTION (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 COMPUTED ON THE BASIS OF ENLISTED RATING ONLY UNTIL COMPLETION OF THIRTY YEARS' SERVICE, MAY SUCH MEMBERS CONTINUE IN RECEIPT OF SAVED PAY COMPUTED ON THE HIGHEST TEMPORARY RANK HELD PRIOR TO JULY 1, 1946, UNTIL COMPLETION OF THIRTY YEARS' SERVICE, AND THEREAFTER BE CREDITED WITH RETIRED PAY COMPUTED AS PRESCRIBED IN SAID OPTION (B) BUT BASED ON THE HIGHEST FEDERALLY RECOGNIZED RANK, PERMANENT OR TEMPORARY, HELD SATISFACTORILY PRIOR OR SUBSEQUENT TO JULY 1, 1946?

WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT DOES NOT APPEAR THAT THE PURPOSE AND INTENT OF OPTION (B) IN SECTION 411 WAS TO REQUIRE A DISABLED RETIRED MEMBER WHO ELECTED THAT OPTION TO FURTHER IRREVOCABLY ELECT ONE OR THE OTHER OF THE TWO METHODS CONTAINED IN SECTION 511, BUT RATHER THAT IT WAS INTENDED TO GIVE SUCH MEMBERS THE RIGHT TO HAVE THEIR RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THE LATTER SECTION; I.E., TO RECEIVE RETIRED PAY, IN THE AMOUNT WHICHEVER IS GREATER FROM TIME TO TIME, COMPUTED BY EITHER METHOD (A) OR METHOD (B) PRESCRIBED IN THAT SECTION, THE SAME AS NON-DISABLED RETIRED MEMBERS UNDER SUCH SECTION. TO CONCLUDE OTHERWISE WOULD BE TO IMPUTE TO THE CONGRESS AN INTENT TO DISCRIMINATE BETWEEN DISABLED RETIRED MEMBERS AND NON-DISABLED RETIRED MEMBERS WITH THE LATTER RECEIVING THE GREATER BENEFITS. NO INDICATION HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE ACT THAT ANY SUCH DISCRIMINATION WAS INTENDED NOR, INDEED, DO THERE COME TO MIND AT THIS TIME ANY REASONS WHY SUCH A DISCRIMINATION WOULD HAVE BEEN INTENDED. UNDER THE CIRCUMSTANCES, I AM OF THE OPINION THAT ANY DOUBT THERE MAY BE IN THE MATTER SHOULD BE RESOLVED IN FAVOR OF EQUAL TREATMENT IN THAT RESPECT FOR BOTH SUCH GROUPS OF PREVIOUSLY RETIRED MEMBERS. ACCORDINGLY, QUESTION (E) IS ANSWERED IN THE AFFIRMATIVE.

THE LAST QUESTION, WHICH HAS BEEN LETTERED (F), IS AS FOLLOWS:

(F) ARE ENLISTED MEN, WHO, BEFORE OCTOBER 1, 1949, WERE TRANSFERRED TO THE RETIRED LIST PRIOR TO COMPLETION OF THIRTY YEARS' SERVICE UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, ENTITLED TO RETIRED PAY COMPUTED ON THE RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 UNDER OPTION (B) OF SECTION 511 OF THAT ACT OR ARE THE RIGHTS OF SUCH MEN TO RECEIVE RETIRED PAY UNDER THE CAREER COMPENSATION ACT FOR DETERMINATION UNDER SECTION 411 OF THAT ACT?