B-96394, JULY 18, 1950, 30 COMP. GEN. 21

B-96394, JULY 18, 1950, 30 COMP. GEN. 21

PAY - RETAINER - FLEET MARINE CORPS RESERVISTS - ELECTIONS UNDER ACT OF AUGUST 10, 1946 ENLISTED MEMBERS OF THE MARINE CORPS WHO WERE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON OR AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND WHO, DUE TO ADMINISTRATIVE UNCERTAINTY AS TO THE EFFECTS OF THE ACT ON RETAINER AND RETIRED PAY, FAILED TO ELECT TO HAVE THEIR RETAINER PAY COMPUTED UNDER THE OPTION IN SECTION 9 OF THE ACT OF AUGUST 10, 1946, MOST BENEFICIAL TO THEM MAY NOW MAKE SUCH ELECTION, WHICH WILL BE CONSIDERED AS EFFECTIVE ON THE DATE IMMEDIATELY FOLLOWING THEIR TRANSFER.

ACTING ASSISTANT COMPTROLLER GENERAL FISHER TO THE SECRETARY OF DEFENSE, JULY 18, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1950, RELATIVE TO THE RETAINER PAY AND RETIRED PAY STATUS OF CERTAIN MEMBERS OF THE FLEET MARINE CORPS RESERVE.

YOU REFER FIRST TO MASTER SERGEANT HENRY X. MCDERMOTT (188706), WHO, BY LETTER DATED SEPTEMBER 10, 1949, REQUESTED THAT HE BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON OR ABOUT OCTOBER 1, 1949. YOU STATE THAT THE RECORDS SHOW THAT MR. MCDERMOTT WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE AS A MASTER SERGEANT ON OCTOBER 31, 1949; THAT TO AND INCLUDING OCTOBER 31, 1949, HE HAD A TOTAL OF 28 YEARS AND 2 MONTHS' ACTIVE FEDERAL SERVICE, AND A TOTAL OF OVER 30 YEARS' SERVICE FOR ACTIVE- DUTY PAY PURPOSES; THAT HIS AVERAGE MARKS IN CONDUCT WERE 97 PERCENT OF THE MAXIMUM; AND THAT, HAVING COMPLETED OVER 30 YEARS' ACTIVE AND INACTIVE SERVICE, HE WAS TRANSFERRED TO THE RETIRED LIST AS A MASTER SERGEANT ON DECEMBER 1, 1949.

UNDER THE LAW (SECTION 9 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 997) HE WAS ENTITLED TO ELECT TO HAVE HIS RETAINER PAY COMPUTED UNDER ONE OF THE FOLLOWING TWO OPTIONS:

OPTION 1. RETAINER PAY AT THE RATE OF 1/2 THE BASE PAY HE WAS RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO (LONGEVITY PAY), PLUS 10 PERCENT FOR HAVING AVERAGE MARKS IN CONDUCT OF NOT LESS THAN 95 PERCENT OF THE MAXIMUM.

OPTION 2. RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF HIS ACTIVE FEDERAL SERVICE.

AT THE TIME MR. MCDERMOTT REQUESTED TRANSFER TO THE FLEET MARINE CORPS RESERVE, I.E., SEPTEMBER 10, 1949, HIS RETAINER PAY, AND, CONSEQUENTLY, HIS RETIRED PAY, WOULD BE GREATER IF COMPUTED UNDER OPTION 1 ABOVE AND, ACCORDINGLY, HE ELECTED TO HAVE HIS RETAINER PAY COMPUTED ON THAT BASIS. HOWEVER, BEFORE HIS TRANSFER WAS EFFECTED THERE WAS ENACTED THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 829, TO BE EFFECTIVE FROM OCTOBER 1, 1949. UNDER THIS LATTER ACT, MR. MCDERMOTT WOULD BE ENTITLED TO A HIGHER RETAINER PAY COMPUTED UNDER OPTION 2 ABOVE. APPARENTLY, HE WAS NOT ADVISED OF SUCH FACT AND NO ACTION WAS TAKEN SO AS TO PERMIT HIM TO CHANGE HIS ELECTION PRIOR TO HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE AND AFTER HIS TRANSFER THE ELECTION ALREADY MADE BY HIM COULD NOT, UNDER NORMAL CIRCUMSTANCES, BE CHANGED OR RECALLED. SEE 26 COMP. GEN. 804, 817, ANSWER TO QUESTION (O).

YOU ALSO INDICATE THAT THERE ARE AT LEAST SEVEN OTHER CASES WHERE ENLISTED MEN OF THE MARINE CORPS ELECTED TO RECEIVE RETAINER PAY UNDER OPTION 1 ABOVE UPON TRANSFER TO THE FLEET MARINE CORPS RESERVE, AS A RESULT OF WHICH THEY WILL BE ENTITLED TO RECEIVE LESS RETAINER PAY THAN THEY WOULD BE ENTITLED TO RECEIVE IF THEY HAD ELECTED TO TAKE UNDER OPTION 2. OF THE SEVEN LETTERS OF APPLICATION FOR SUCH TRANSFER, ONE WAS DATED SEPTEMBER 27, 1949, WHICH, OF COURSE, WAS PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, AND THE OTHER SIX WERE EXECUTED ON VARIOUS DATES SUBSEQUENT THERETO, THE LATEST HAVING BEEN EXECUTED ON FEBRUARY 14, 1950.

YOU INDICATE IN YOUR LETTER THAT IN THE CASES REFERRED TO ABOVE THE FAILURE OF THE ENLISTED MEN CONCERNED TO MAKE THE ELECTIONS MOST BENEFICIAL TO THEIR INTERESTS PRIMARILY WAS DUE TO THE FACT THAT, BECAUSE OF ADMINISTRATIVE UNCERTAINTY AS TO THE EFFECT OF THE SAID CAREER COMPENSATION ACT ON THE RETAINER AND RETIRED PAY OF ENLISTED PERSONNEL TRANSFERRING TO THE FLEET RESERVE AFTER ITS EFFECTIVE DATE, THEY COULD NOT PROPERLY BE GIVEN INFORMATION OR ADVICE WHICH WOULD ENABLE THEM INTELLIGENTLY TO MAKE THEIR ELECTIONS. WITH A VIEW TO RESOLVING SUCH UNCERTAINTY THE SECRETARY OF THE NAVY BY LETTER DATED NOVEMBER 16, 1949, SUBMITTED TO THIS OFFICE FOR DECISION CERTAIN QUESTIONS THE ANSWERS TO WHICH WERE NECESSARY IN ORDER TO ENABLE THE DEPARTMENT TO MAKE PROPER DETERMINATIONS AS TO THE RIGHTS OF THE MEMBERS OF THE FLEET RESERVE TO RETAINER AND RETIRED PAY. REPLY TO SUCH LETTER WAS MADE BY DECISION OF APRIL 13, 1950, B-90755, 29 COMP. GEN. 404.

IN VIEW OF THE ABOVE CIRCUMSTANCES YOU REQUEST DECISION AS TO WHETHER THE PERSONNEL REFERRED TO, AND OTHERS WHO MAY HAVE APPLIED FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE ON OR AFTER OCTOBER 1, 1949, BUT PRIOR TO APRIL 14, 1950--- THE DATE IMMEDIATELY FOLLOWING THE SAID DECISION OF APRIL 13, 1950--- MAY NOW "REELECT" TO HAVE THEIR RETAINER PAY, AND CONSEQUENTLY THEIR RETIRED PAY, COMPUTED UNDER THE OPTION WHICH WILL BE MOST ADVANTAGEOUS TO THEM, SUCH "REELECTION" TO BE EFFECTIVE AS OF THE DATE FOLLOWING THE DATE OF THEIR TRANSFER TO THE FLEET MARINE CORPS RESERVE.

I THINK IT IS CLEAR THAT THE RIGHT GIVEN ENLISTED PERSONNEL OF THE MARINE CORPS BY SECTION 9 OF THE ACT OF AUGUST 10, 1946, SUPRA, TO ELECT TO RECEIVE THEIR RETAINER PAY UNDER ONE PROVISION OF LAW, OR THE OTHER, WAS INTENDED TO PERMIT THEM TO ELECT TO RECEIVE IT UNDER THE LAW WHICH WOULD, IN THEIR JUDGMENT, AFFORD THEM THE GREATEST BENEFITS. IT SEEMS REASONABLE TO CONCLUDE THAT IT WAS NOT CONTEMPLATED THAT THEY COULD, OR WOULD, BE REQUIRED TO MAKE SUCH AN ELECTION AT A TIME WHEN THEY COULD NOT DETERMINE THEMSELVES, OR BE ADVISED ADMINISTRATIVELY OF, THE RIGHTS ACCRUING UNDER THE VARIOUS OPTIONS AVAILABLE TO THEM. IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES THE ELECTIONS IN QUESTION MAY BE CONSIDERED NEVER TO HAVE BEEN EFFECTIVE UNDER THE STATUTE. ACCORDINGLY, THE PERSONNEL IN QUESTION MAY NOW ELECT WHICH BENEFITS THEY WILL RECEIVE AND SUCH ELECTIONS WILL BE CONSIDERED TO BE EFFECTIVE ON THE DATE IMMEDIATELY FOLLOWING THE DATE OF THEIR TRANSFER TO THE FLEET MARINE CORPS RESERVE. COMPARE DECISION OF FEBRUARY 8, 1950, B 88033.