MAY 17, 1924, 3 COMP. GEN. 867

MAY 17, 1924, 3 COMP. GEN. 867

NAVAL RESERVE FORCE - RETAINER PAY THE PAYMENT TO NAVAL RESERVISTS OF RETAINER PAY, WHERE THERE IS A QUESTION OF PERFORMANCE OF ACTIVE SERVICE AND DRILLS PER ANNUM OR OTHER EQUIVALENT DUTY AS PRESCRIBED BY LAW, IS AUTHORIZED DURING THE PERIOD OF ENROLLMENT WHERE IT IS SHOWN THAT THE PRESCRIBED ACTIVE SERVICE AND DRILLS OR OTHER EQUIVALENT DUTY HAVE BEEN PERFORMED. PAYMENT OF RETAINER PAY MAY BE MADE TO NAVAL RESERVISTS WHERE THE MEMBER HAS PERFORMED THE REQUIRED 36 DRILLS OR OTHER EQUIVALENT DUTY FOR EACH OF THE FIRST THREE YEARS OF A PERIOD OF ENROLLMENT, IRRESPECTIVE OF WHETHER HE HAS PERFORMED ANY ACTIVE SERVICE, IF NO ACTIVE SERVICE HAS BEEN PRESCRIBED FOR THOSE YEARS. PAYMENT MAY NOT BE MADE FOR THE FOURTH YEAR OF AN ENROLLMENT PERIOD WHERE THE REQUIRED 36 DRILLS OR OTHER EQUIVALENT DUTY HAVE BEEN PERFORMED, BUT WHERE THE MEMBER HAS NOT HAD THE REQUIRED TWO MONTHS' ACTIVE SERVICE TO HIS CREDIT. THE PROPER ADMINISTRATION OF THE ACT OF JULY 1, 1918, 40 STAT. 710, REQUIRES THAT THE PERIOD OF SUCH ACTIVE SERVICE FOR TRAINING BE PRESCRIBED IN SUFFICIENT TIME WITH RELATION TO THE PERIOD OF ENROLLMENT THAT IT MAY BE PERFORMED THEREIN AND PRIOR TO THE PAYMENT TO THE MEMBER OF RETAINER PAY BASED UPON THE PERFORMANCE OF SUCH DUTY FOR THE LAST YEAR OF THE ENROLLMENT. THERE IS NO RIGHT OR AUTHORITY UNDER THE LAW TO NOT PRESCRIBE A PERIOD OF ACTIVE SERVICE SO THAT PAYMENTS OF RETAINER PAY WOULD BE MADE WITH A POSSIBILITY OF NO ACTIVE SERVICE BEING RENDERED. 3 COMP. GEN. 243, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 17, 1924:

CAREFUL CONSIDERATION HAS BEEN GIVEN THE LETTER OF YOUR PREDECESSOR OF JANUARY 6, 1924, WHICH CONCERNS A QUESTION OF THE RIGHT OF NAVAL RESERVISTS TO RETAINER PAY WHERE THERE IS A QUESTION OF PERFORMANCE OF ACTIVE SERVICE AND DRILLS PER ANNUM OR EQUIVALENT DUTY AS PRESCRIBED BY LAW.

THE STATUTORY DIRECTION IN THE MATTER OF RETAINER PAY APPEARS IN THE ACT OF JUNE 4, 1920, 41 STAT. 824, 837, AS FOLLOWS:

P. 824. BUREAU OF SUPPLIES AND ACCOUNTS. PAY OF THE NAVY: * * *RETAINER PAY AND ACTIVE-SERVICE PAY OF MEMBERS OF THE NAVAL RESERVE FORCE, $12,000,000; * * * PROVIDED, THAT RETAINER PAY PROVIDED BY EXISTING LAW SHALL NOT BE PAID TO ANY MEMBER OF THE NAVAL RESERVE FORCE WHO FAILS TO TRAIN AS PROVIDED BY LAW DURING THE YEAR FOR WHICH HE FAILS TO TRAIN.

P. 837. SEC. 9. THAT HEREAFTER THE SECRETARY OF THE NAVY MAY, IN HIS DISCRETION, WITHHOLD ANY PART OR ALL OF THE RETAINER PAY WHICH MAY BE DUE A MEMBER OF THE NAVAL RESERVE FORCE WHERE SUCH MEMBERS FAIL TO PERFORM SUCH DUTY AS MAY BE PRESCRIBED BY LAW FOR THE MAINTENANCE OF THE EFFICIENCY OF THE NAVAL RESERVE FORCE: PROVIDED, THAT ANY MONEY SO WITHHELD SHALL BE CREDITED TO THE APPROPRIATION FOR ORGANIZING AND ADMINISTERING THE NAVAL RESERVE FORCE TO BE USED FOR ANY PURPOSE THAT THE SECRETARY OF THE NAVY MAY CONSIDER PROPER TO INCREASE THE EFFICIENCY OF THE NAVAL RESERVE FORCE: * * *.

THE ACT OF AUGUST 29, 1916, PRESCRIBED PERIODS OF ACTIVE SERVICE FOR CERTAIN CLASSES, AND THIS WAS FOLLOWED BY THE ACT OF JULY 1, 1918, 40 STAT. 710, WHICH FIXED ACTIVE SERVICE AT TWO MONTHS DURING EACH TERM OF ENROLLMENT, IN ONE PERIOD OR IN 15-DAY PERIODS, AND ALSO PRESCRIBED 36 DRILLS ANNUALLY OR OTHER EQUIVALENT DUTY.

THE DECISION OF OCTOBER 23, 1923, 3 COMP. GEN. 243, STATED AS FOLLOWS:

* * * THAT THE MINIMUM ACTIVE SERVICE OF 15 DAYS FOR MAINTAINING EFFICIENCY AND AN ATTENDANCE AT NOT LESS THAN 36 DRILLS, OR OTHER EQUIVALENT DUTY, IS NECESSARY BEFORE PAYMENT OF RETAINER PAY CAN BE MADE FOR THE ENTIRE FIRST ENROLLMENT YEAR; BUT IT WOULD APPEAR THAT IF THE 15 DAYS, OR TWO MONTHS, ACTIVE DUTY FOR TRAINING IS COMPLETED DURING THE FIRST QUARTER OF THE FIRST ENROLLMENT YEAR, PAYMENT MAY BE MADE QUARTERLY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, UPON AFFIRMATIVE EVIDENCE THAT THE PROPORTIONATE NUMBER OF DRILLS HAD BEEN ATTENDED FOR SUCH QUARTER. AT LEAST 30 DAYS' ACTIVE SERVICE FOR MAINTAINING EFFICIENCY, TOGETHER WITH AN ATTENDANCE OF AT LEAST 36 DRILLS, IS NECESSARY BEFORE PAYMENT MAY LEGALLY BE MADE FOR THE SECOND ENROLLMENT YEAR, OR QUARTERLY PAYMENTS MAY BE MADE AS INDICATED FOR THE FIRST ENROLLMENT YEAR, AND AT LEAST 45 AND 60 DAYS' ACTIVE SERVICE, TOGETHER WITH DRILLS AS INDICATED PREVIOUSLY, IS REQUIRED BEFORE PAYMENT IS LEGALLY DUE FOR THE THIRD AND FOURTH ENROLLMENT YEARS, RESPECTIVELY.

THE APPARENT SITUATION WHICH ARISES IS STATED IN YOUR LETTER, AS FOLLOWS:

IN SEPTEMBER, 1921, THE NAVY DEPARTMENT TRANSFERRED TO THE VOLUNTEER NAVAL RESERVE ALL RESERVISTS ON INACTIVE DUTY WITH THE EXCEPTION OF THE FLEET NAVAL RESERVE, AND MANY OF THOSE SO TRANSFERRED WERE AGAIN TRANSFERRED TO CLASS 2 OF THE NAVAL RESERVE FORCE DURING THE EARLY PART OF THE CALENDAR YEAR 1923. IT HAS BEEN IMPRACTICABLE FOR THE DEPARTMENT TO AUTHORIZE ACTIVE DUTY FOR TRAINING FOR MEMBERS OF THE NAVAL RESERVE FORCE FOR THE PERIOD THEY WERE IN THE VOLUNTEER NAVAL RESERVE; AND THEREFORE, IN VIEW OF YOUR DECISION OF 23 OCTOBER, 1923, ABOVE QUOTED, FURTHER DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

THE APPLICATIONS OF MANY MEMBERS OF THE NAVAL RESERVE FORCE FOR TRAINING DUTY WERE DENIED, OWING TO THE FACT THAT APPROPRIATIONS WERE NOT AVAILABLE TO PERMIT ALL RESERVISTS TO PERFORM TRAINING DUTY DURING THE PAST TWO FISCAL YEARS, AND NO TRAINING DUTY OR DRILLS WERE PERFORMED BY MEMBERS OF THE NAVAL RESERVE FORCE WHILE IN THE VOLUNTEER NAVAL RESERVE. IF THE DEPARTMENT INTERPRETS YOUR DECISION OF 23 OCTOBER, 1923, CORRECTLY, IT WOULD APPEAR THAT A MEMBER OF THE NAVAL RESERVE FORCE IS NOT ENTITLED TO RECEIVE RETAINER PAY UNTIL HE HAS PERFORMED THIRTY DAYS' ACTIVE DUTY FOR TRAINING DURING THE SECOND ENROLLMENT YEAR AND ATTENDED THIRTY-SIX DRILLS DURING THE SECOND ENROLLMENT YEAR, REGARDLESS OF THE FACT THAT DURING THE WHOLE OF THE FIRST YEAR OF HIS ENROLLMENT HE WAS IN THE VOLUNTEER NAVAL RESERVE. IF THE DEPARTMENT IS CORRECT IN ITS INTERPRETATION OF YOUR DECISION, IT WILL BE IMPOSSIBLE FOR ANY MEMBER OF THE NAVAL RESERVE FORCE WHO WAS TRANSFERRED TO THE VOLUNTEER NAVAL RESERVE TO RECEIVE ANY RETAINER PAY DURING THE REMAINDER OF HIS ENROLLMENT, SINCE THE DEPARTMENT WILL NOT HAVE THE FUNDS AT ITS DISPOSAL TO PERMIT MEMBERS OF THE NAVAL RESERVE FORCE TO NOW PERFORM TRAINING DUTY AT THE RATE OF FIFTEEN DAYS EACH YEAR FOR THE PERIOD THEY WERE IN THE VOLUNTEER NAVAL RESERVE.

IT IS THE DEPARTMENT'S UNDERSTANDING THAT THE REQUIREMENTS FOR TRAINING DUTY OF TWO MONTHS DURING EACH ENROLLMENT PERIOD MAY BE TAKEN AT ANY TIME, AND FOR THIS SERVICE THERE IS PAID ACTIVE DUTY PAY FOR THE RANK OR RATING OF THE RESERVIST; AND THAT WHEN THE PROPER NUMBER OF DRILLS WERE PERFORMED DURING ANY QUARTER OF AN ENROLLMENT THAT PAYMENT OF RETAINER PAY THEREFOR WAS IN ORDER.

YOUR DECISION OF 23 OCTOBER, 1923, PLACES SUCH ADDITIONAL RESTRICTIONS UPON THE PAYMENT OF RETAINER PAY AS WILL PRECLUDE OFFICERS WHO WERE IN THE VOLUNTEER NAVAL RESERVE FROM RECEIVING RETAINER PAY TO WHICH THEY AND THIS DEPARTMENT BELIEVE DUE THEM BY VIRTUE OF THEIR HAVING ATTENDED THE PRESCRIBED DRILLS AND PERFORMED THE TRAINING DUTY DURING THE TIME PRESCRIBED BY THE DEPARTMENT.

IT IS APPARENT THAT THE REQUIREMENT OF LAW TREATS THE RESERVIST WITH RESPECT TO HIS ENROLLMENT, WHICH COVERS A PERIOD OF FOUR YEARS. IF THE REQUIREMENT BE FOR THE PERFORMANCE OF 15 DAYS' ACTIVE SERVICE IN EACH OF THE YEARS SO AS TO MAKE 60 DAYS OR 2 MONTHS FOR 4 YEARS, THE RESERVIST MUST PERFORM THAT SERVICE IN CONNECTION WITH THE PRESCRIBED DRILLS IN EACH OF THE YEARS. IF, HOWEVER, AS APPEARS FROM YOUR LETTER, YOU HAVE NOT REQUIRED THE PERFORMANCE OF ACTIVE SERVICE IN ANY OF THE INTERMEDIATE YEARS, THE SERVICE MUST BE PERFORMED WITHIN SUCH YEAR AS IT IS REQUIRED--- THAT IS TO SAY, WHEN THE FOURTH YEAR IS REACHED FOR THE PAYMENT WHICH WILL APPEAR AS THE FINAL PAYMENT FOR THE PERIOD OF ENROLLMENT, THERE THEN MUST BE A SHOWING OF TWO MONTHS' ACTIVE SERVICE.

THE AUTHORITY OR RIGHT TO MAKE PAYMENTS TO THE RESERVIST AT ANY TIME DURING THE PERIOD OF ENROLLMENT ARISES UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 588, WHICH PROVIDES: "RETAINER PAY SHALL BE PAID ANNUALLY OR AT SHORTER INTERVALS, AS THE SECRETARY OF THE NAVY, IN HIS DISCRETION, MAY DIRECT.' THE PROVISION GIVES THE AUTHORITY TO MAKE PAYMENTS ON THE BASIS OF WHAT HAS BEEN DIRECTED, BUT THERE CAN BE NO DIRECTION INCONSISTENT WITH THE STATUTORY REQUIREMENT. THEREFORE, AS THE STATUTE REQUIRES 36 DRILLS OR OTHER EQUIVALENT DUTY ANNUALLY, IF THE SECRETARY PRESCRIBES FOR ANY PARTICULAR PORTION OF THE YEAR A PAYMENT, IT NECESSARILY MUST BE IN PROPORTION TO THE DRILLS OR EQUIVALENT DUTY REQUIRED. THERE COULD BE NO PAYMENT FOR ANY PERIOD OF TIME IN WHICH NO DRILLS OR OTHER EQUIVALENT DUTY HAD BEEN PERFORMED. THIS MAY BE ILLUSTRATED BY STATING THAT THE STATUTE REQUIRES 36 DRILLS ANNUALLY. IF A QUARTERLY PERIOD OF PAYMENT BE PRESCRIBED THERE SHOULD AT LEAST APPEAR THAT THERE WAS PERFORMED A NUMBER OF DRILLS IN THE PROPORTION OF THE PERIOD OF TIME THERETO; THAT IS, FOR QUARTERLY PAYMENTS THERE SHOULD APPEAR THE PERFORMANCE OF AT LEAST 9 DRILLS. AS HERETOFORE STATED, IF ACTIVE SERVICE HAD BEEN PRESCRIBED AS 15 DAYS IT WOULD NOT HAVE TO APPEAR THAT SUCH ACTIVE SERVICE ALSO HAD BEEN PERFORMED DURING SUCH QUARTER PROVIDED THAT THE SECRETARY OF THE NAVY HAD NOT PRESCRIBED ITS PERFORMANCE FOR SUCH QUARTER. THE INTENT OF THE LAW IS IN THE PROVISO TO SECTION 9--- THAT THE SECRETARY MAY WITHHOLD PAY DUE FROM FAILURE TO TRAIN. THERE CAN BE NO FAILURE TO TRAIN, IF ASIDE FROM THE STATUTORY REQUIREMENT OF 36 DRILLS PER ANNUM OR OTHER EQUIVALENT DUTY THE SECRETARY OF THE NAVY HAS NOT DIRECTED THE RESERVIST TO PERFORM THE OTHER STATUTORY REQUIREMENTS, TO WIT, ACTIVE SERVICE OF TWO MONTHS, EXCEPTING AS HERETOFORE STATED THAT SUCH SERVICE MUST APPEAR BEFORE THE PAYMENT FOR THE FINAL YEAR OF ENROLLMENT MAY BE MADE.

IT APPEARS UNNECESSARY TO SPECIFICALLY REPLY TO EACH OF THE QUESTIONS SUBMITTED INASMUCH AS THE QUESTIONS APPEAR TO BE ANSWERED BY THE STATUTORY PROVISIONS OF SECTION 9 AS HERE GENERALLY INTERPRETED.

THE MAIN QUESTION AFFECTING PAY APPEARS TO BE THE ACTIVE SERVICE OF TWO MONTHS. A PROPER ADMINISTRATION OF THE ACT REQUIRES THAT THE PERIOD OF SUCH ACTIVE SERVICE BE PRESCRIBED IN SUFFICIENT TIME WITH RELATION TO THE PERIOD OF ENROLLMENT THAT IT MAY BE PERFORMED THEREIN AND THE TWO MONTHS' SERVICE CAN NOT BE SO PRESCRIBED THAT NO PROPER ADJUSTMENT OF PAY MAY BE MADE SO THAT THE INTERESTS OF THE UNITED STATES AS WELL AS THE RESERVIST WILL BE PROPERLY PROTECTED, IF THE SERVICE BE NOT PERFORMED. THERE IS NO RIGHT OR AUTHORITY UNDER THE LAW TO NOT PRESCRIBE A PERIOD OF ACTIVE SERVICE SO THAT PAYMENTS OF RETAINER PAY WOULD BE MADE WITH A POSSIBILITY OF NO ACTIVE SERVICE BEING RENDERED.