B-142839, JULY 22, 1960, 40 COMP. GEN. 43

B-142839, JULY 22, 1960, 40 COMP. GEN. 43

MILITARY PERSONNEL - FLEET RESERVIST RETIRED FOR PHYSICAL DISABILITY - DISABILITY V. FLEET RESERVE BENEFITS A NAVY MEMBER WHO WAS RETAINED ON ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE AND SUBSEQUENTLY RETIRED FOR DISABILITY UNDER SECTIONS 402 (B) AND 402 (F) OF THE CAREER COMPENSATION ACT OF 1949, RATHER THAN BEING RELEASED TO INACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE, IS REGARDED AS HAVING BEEN RETIRED FOR PHYSICAL DISABILITY WITH RIGHTS FOR DETERMINATION ON THE BASIS OF THE LAW RELATING TO DISABILITY RETIREMENTS; THEREFORE, THE CONSTRUCTIVE MINORITY AND SHORT-TERM LONGEVITY SERVICE CREDITABLE UNDER THE NAVAL RESERVE ACT OF 1938 TO FLEET RESERVISTS HAS NO EFFECT ON A RETIREMENT UNDER THE 1949 ACT, AND THERE IS NO BASIS TO TRANSFER THE MEMBER TO THE RETIRED LIST UNDER 10 U.S.C. 6331 AND ADVANCE HIM TO A HIGHER RANK UNDER 10 U.S.C. 6151 WHEN HE HAD BEEN PREVIOUSLY RETIRED AND ADVANCED TO SUCH RANK AT THAT TIME.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, JULY 22, 1960:

YOUR LETTER OF APRIL 11, 1960, WITH ENDORSEMENTS, PRESENTS FOR ADVANCE DECISION (UNDER MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO N- 501) THE QUESTION WHETHER MACHINIST RUSSELL C. EVANS, USN, RETIRED, IS ENTITLED TO RETAINER PAY UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, FOR THE PERIOD AUGUST 1, 1951, THROUGH MARCH 31, 1955, AND TO RETIRED PAY AS A MACHINIST UNDER 10 U.S.C. 6151 (C) ON AND AFTER FEBRUARY 1, 1961. IF THE ANSWER TO THE ABOVE IS IN THE AFFIRMATIVE, YOU ALSO REQUEST DECISION WHETHER OR NOT THE MEMBER'S PAY FOR THE PERIOD APRIL 1, 1955 THROUGH JANUARY 31, 1961, SHOULD BE COMPUTED UNDER METHOD (1) OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D), SUPRA, OR SECTION 516, 37 U.S.C. 316, OF THE SAME ACT.

IT APPEARS THAT THE MEMBER WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F- 6, ON MARCH 7, 1951, IN THE RATING OF CHIEF BOILERMAN WITH 19 YEARS 6 MONTHS AND 20 DAYS' ACTIVE SERVICE. HE WAS RETAINED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER THROUGH JULY 31, 1951. EFFECTIVE AUGUST 1, 1951, HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST IN THE RANK OF MACHINIST, WITH A DISABILITY RATED AT 10 PERCENT, IN ACCORDANCE WITH SECTIONS 402 (B), 37 U.S.C. 272 (B), AND 402 (F), 37 U.S.C. 273, OF THE CAREER COMPENSATION ACT OF 1949. IT FURTHER APPEARS THAT ON DATE OF RETIREMENT THE MEMBER HAD COMPLETED 19 YEARS 11 MONTHS AND 13 DAYS' ACTIVE SERVICE, AND THAT HE ELECTED TO RECEIVE RETIRED PAY COMPUTED UNDER METHOD (1) OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. IT IS STATED THAT HE HAS BEEN RECEIVING RETIRED PAY SINCE AUGUST 1, 1951, BASED ON 20 YEARS FOR PERCENTAGE PURPOSES AND THE BASIC PAY OF A MACHINIST WITH OVER 18 BUT LESS THAN 22 YEARS' SERVICE.

IN YOUR LETTER YOU STATE THAT MACHINIST EVANS SUBMITTED A CLAIM FOR THE BENEFITS OF OUR DECISION OF AUGUST 5, 1958, 38 COMP. GEN. 110, AND THAT ACCORDINGLY, ON MAY 8, 1959, PURSUANT TO TITLE 10 U.S.C. 6330 AND 6332, HIS SERVICE FOR TRANSFER TO THE FLEET RESERVE WAS CORRECTED TO INCLUDE CREDIT FOR CONSTRUCTIVE SERVICE FOR HIS MINORITY AND SHORT TERM ENLISTMENTS. YOU ALSO STATE THAT HIS CORRECTED SERVICE FOR TRANSFER OF 20 YEARS 1 MONTH AND 23 DAYS AND HIS SUBSEQUENT ACTIVE SERVICE OF 4 MONTHS AND 23 DAYS TOTALS 20 YEARS 6 MONTHS AND 16 DAYS.

THE ELEMENT GIVING RISE TO THE QUESTIONS PRESENTED FOR DECISION IS THAT IF MACHINIST EVANS HAD NOT INCURRED A DISABILITY AND HAD NOT BEEN RETIRED FOR DISABILITY, HE WOULD HAVE BEEN ENTITLED, EFFECTIVE AUGUST 1, 1951, TO RETAINER PAY COMPUTED UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 AS A CHIEF BOILERMAN WITH 21 YEARS' SERVICE FOR PERCENTAGE PURPOSES AND OVER 18 BUT LESS THAN 22 YEARS FOR BASIC PAY PURPOSES. IT IS STATED THAT PAY SO COMPUTED IS GREATER FOR THE PERIOD AUGUST 1, 1951 THROUGH MARCH 31, 1955, THAN THE PAY THE MEMBER RECEIVED BASED ON HIS RANK OF MACHINIST. IT IS ALSO POINTED OUT THAT IF THE MEMBER HAD NOT INCURRED A DISABILITY, HE WOULD COMPLETE 30 YEARS' AND THAT HE WOULD ALSO BE ENTITLED TO BE RETIRED UNDER THAT SECTION EFFECTIVE FEBRUARY 1, 1961, AND ADVANCED TO THE RANK OF MACHINIST UNDER 10 U.S.C. 6151 (A), WITH A GREATER RETIRED PAY THAN THE PAY HE IS NOW RECEIVING.

THE INFORMATION FURNISHED DOES NOT DISCLOSE WHY MACHINIST EVANS WAS RETIRED FOR DISABILITY RATHER THAN RELEASE TO INACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE, SUCH RETIREMENT ACTION HAVING RESULTED IN THE PAYMENT OF A LESSER AMOUNT AS RETIRED PAY THAN WOULD HAVE ACCRUED TO HIM AS RETAINER PAY UNDER SECTION 516 OF THE 1949 ACT DURING THE PERIOD AUGUST 1, 1951 TO MARCH 31, 1955. IN ANY EVENT, IT IS BELIEVED THAT SECTION 516, AS IT RELATES TO FLEET RESERVISTS SERVING ON ACTIVE DUTY, IS APPLICABLE ONLY TO SITUATIONS WHERE THE PERSON CONCERNED REVERTS TO HIS FLEET RESERVE STATUS UPON HIS RELEASE FROM ACTIVE DUTY. IF, UPON SUCH RELEASE, HE IS RETIRED FOR PHYSICAL DISABILITY UNDER TITLE IV OF THE 1949 ACT, 37 U.S.C. 271 (A), HIS RIGHTS ARE FOR DETERMINATION UNDER THE LATTER PROVISIONS OF LAW. THERE WOULD, OF COURSE, BE NO BASIS FOR TRANSFERRING EVANS TO THE RETIRED LIST UNDER 10 U.S.C. 6331 AND ADVANCING HIM TO THE RANK OF MACHINIST ON FEBRUARY 1, 1961, UNDER 10 U.S.C. 6151 (A), SINCE HE WAS RETIRED EFFECTIVE OCTOBER 1, 1951, AND WAS ADVANCED TO THAT RANK AT THAT TIME. THE ADDITIONAL LONGEVITY CREDIT ADMINISTRATIVELY ALLOWED HIM UNDER OUR DECISION OF AUGUST 5, 1958, 38 COMP. GEN. 110, IS WITHOUT SIGNIFICANCE AS FAR AS THE MATTER OF DETERMINING THE AMOUNT OF RETIRED PAY TO WHICH HE IS ENTITLED IS CONCERNED, SINCE THE CONSTRUCTIVE MINORITY AND SHORT-TERM LONGEVITY SERVICE ALLOWABLE UNDER SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854A, IS CREDITABLE ONLY "1FOR ALL PURPOSES OF THIS ACT.' AS INDICATED ABOVE, HE IS ENTITLED TO RETIRED PAY UNDER THE 1949 ACT, NOT RETAINED OR RETIRED PAY UNDER THE 1938 ACT, AS AMENDED.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND NO ANSWER IS REQUIRED TO YOUR SECOND QUESTION.