B-80804, NOVEMBER 23, 1948, 28 COMP. GEN. 321

B-80804, NOVEMBER 23, 1948, 28 COMP. GEN. 321

PAY - RETIRED - NAVY AND MARINE CORPS RESERVE - EFFECT OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 NOTWITHSTANDING THE PROVISIONS OF SECTION 307 OF THE ACT OF JUNE 29, 1948, AUTHORIZING THE SECRETARY OF THE NAVY TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT RESPECTING THE RETIREMENT OF NAVY AND MARINE CORPS RESERVE PERSONNEL, THE FIXING OF A DATE OTHER THAN JUNE 29, 1948--- THE DATE OF ENACTMENT OF SAID ACT--- AS THE EFFECTIVE DATE UPON WHICH THE PREENACTMENT AND POST- ENACTMENT METHODS OF COMPUTING POINTS ACCRUE WOULD NOT BE AUTHORIZED UNDER SECTIONS 302 (B) AND 302 (C) OF SAID ACT WHICH PROVIDE FOR THE ACCRUAL OF POINTS SUBSEQUENT AND PRIOR TO THE ENACTMENT OF THE ACT. WHILE THE SECRETARY OF THE NAVY IS AUTHORIZED UNDER SECTION 312 OF THE ACT OF JUNE 29, 1948, TO ESTABLISH JANUARY 1, 1949, AS THE DATE ON WHICH THE PROVISIONS OF TITLE III OF SAID ACT BECOME EFFECTIVE AS TO THE RETIREMENT OF NAVAL RESERVE AND MARINE CORPS RESERVE PERSONNEL, THE SETTING OF SUCH DATE WOULD NOT, UNDER SECTION 302 (B) OF THE ACT--- SPECIFICALLY PROVIDING FOR THE ACCRUAL OF POINTS SUBSEQUENT TO THE "ENACTMENT" OF THE ACT--- JEOPARDIZE THE RIGHT OF INDIVIDUALS TO RECEIVE CREDIT FOR POINTS DURING THE PERIOD INTERVENING BETWEEN THE DATE OF ENACTMENT, JUNE 29, 1948, AND JANUARY 1, 1949. WHILE THERE IS NO EXPRESS PROVISION IN TITLE III OF THE ACT OF JUNE 29, 1948, WITH RESPECT TO CREDITING NAVAL RESERVE AND MARINE CORPS RESERVE PERSONNEL WHO HAVE LESS THAN ONE YEAR'S SERVICE WITH ANY PORTION OF THE 50 -POINT PER ANNUM CREDIT PROVIDED FOR IN SECTION 303 OF THE ACT FOR SERVICE PERFORMED PRIOR TO ENACTMENT OF THE ACT, OR FOR CREDITING PART OF A YEAR WITH ANY PORTION OF THE 15-POINT CREDIT PROVIDED FOR IN SECTION 302 (B) (3) OF THE ACT AS A MEMBER IN A RESERVE COMPONENT SUBSEQUENT TO ENACTMENT OF THE ACT, THERE IS NO OBJECTION TO HAVING SUCH SERVICE CREDITED, PROVIDED IT BE ON A PRO RATA BASIS. UNDER SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, PROVIDING THAT OTHERWISE QUALIFIED PERSONS SHALL,"UPON APPLICATION THEREFOR," BE GRANTED RETIRED PAY, THE SECRETARY OF THE NAVY IS AUTHORIZED TO CREDIT RETIRED PAY OF RESERVE PERSONNEL FROM THE TIME THEY QUALIFIED THEREFOR, OR FROM JUNE 29, 1948, WHICHEVER IS LATER; HOWEVER, PERSONNEL BECOMING QUALIFIED AFTER THE EFFECTIVE DATE OF THE ACT (AS FIXED UNDER SECTION 312) WOULD BE ELIGIBLE UNDER SAID SECTION 302 (A) AND SECTION 1 OF THE ACT OF APRIL 23, 1930, TO RECEIVE RETIRED PAY ONLY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION IS APPROVED. NOTWITHSTANDING THE BROAD LANGUAGE OF SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, AUTHORIZING RETIRED PAY FOR "ANY PERSON" WHO ATTAINS OR HAS ATTAINED THE AGE OF 60 YEARS, AN INDIVIDUAL WHO WAS FORMERLY A MEMBER OF A RESERVE COMPONENT AND WHO HAS COMPLETED ALL THE REQUIREMENTS WOULD NOT BE ENTITLED TO RECEIVE RETIREMENT BENEFITS UPON REACHING THE AGE OF 60 YEARS, IN VIEW OF SECTION 301 (B) OF THE ACT WHICH MAKES NO PROVISION FOR THE NAMES OF FORMER RESERVISTS TO BE PLACED ON THE RETIRED LIST, AND THE PROVISIONS OF SECTION 308, SPECIFICALLY PROVIDING THAT PERSONS WHO HAVE NOT ATTAINED THE AGE OF 60 YEARS MAY CONTINUE ON IN THE RESERVE ON AN INACTIVE STATUS LIST. THE INACTIVE RESERVE STATUS REFERRED TO IN SECTION 304 OF THE ACT OF JUNE 29, 1948, CONTEMPLATES A STATUS WHEREBY A PERSON WHILE REMAINING A MEMBER OF THE RESERVE DOES NOT PARTICIPATE IN ANY TRAINING PRESCRIBED FOR RESERVE COMPONENTS AS PROVIDED IN SECTION 308 THEREOF, AND WAS INTENDED ONLY TO SUSPEND THE ACCRUAL OF RETIREMENT BENEFITS DURING SUCH PERIOD OR PERIODS AS PERSONNEL MIGHT BE IN AN INACTIVE RESERVE STATUS, SO THAT AN INDIVIDUAL WHO HAS BEEN TRANSFERRED TO AN INACTIVE RESERVE STATUS UNDER SECTION 304 MAY BE RESTORED TO AN ACTIVE DUTY STATUS AND BE ENTITLED TO ADDITIONAL RETIREMENT BENEFITS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 23, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 14, 1948, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE ADMINISTRATION OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1087, 1088, 1090, 1091. FOR THE PURPOSE OF CONVENIENCE THE SAID TITLE III WILL BE HEREINAFTER REFERRED TO AS THE "ACT.'

THE PROVISIONS OF THE ACT WHICH ARE PERTINENT TO YOUR QUESTIONS (A) TO (G), INCLUSIVE, ARE QUOTED BELOW:

SECTION 301 (B):

THE SECRETARY OF THE NAVY IS AUTHORIZED TO ESTABLISH A UNITED STATES NAVAL RESERVE RETIRED LIST TO INCLUDE THE NAMES OF ALL OFFICERS AND ENLISTED PERSONNEL OF THE NAVAL AND MARINE CORPS RESERVE WHO ARE GRANTED RETIRED PAY UNDER THE PROVISIONS OF THIS TITLE, THE PROVISIONS OF PUBLIC LAW 305, SEVENTY-NINTH CONGRESS, OR ANY LAW HEREAFTER ENACTED TO PROVIDE RETIRED PAY FOR SUCH OFFICERS AND ENLISTED PERSONNEL:

SEC. 302. (A) ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933, THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, OR THE UNITED STATES COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF, AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY: PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT EXCEPT THAT ANY MEMBER OF A RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES SHALL BE ENTITLED TO INCLUDE SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES PERFORMED ON OR PRIOR TO JULY 26, 1949: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION SIMULTANEOUS SERVICE AS A MEMBER OF A RESERVE COMPONENT AND AS A MEMBER OF THE REGULAR ARMY, NAVY, AIR FORCE, OR MARINE CORPS, SHALL NOT BE DEEMED TO BE SERVICE IN A RESERVE COMPONENT: PROVIDED FURTHER, THAT NO PERSON WHO WAS A MEMBER OF A RESERVE COMPONENT ON OR BEFORE AUGUST 15, 1945, SHALL BE ELIGIBLE FOR RETIREMENT BENEFITS UNDER THIS TITLE UNLESS HE PERFORMED ACTIVE FEDERAL SERVICE DURING ANY PORTION OF EITHER OF THE TWO PERIODS BEGINNING APRIL 6, 1917, AND ENDING NOVEMBER 11, 1918, AND BEGINNING SEPTEMBER 9, 1940, AND ENDING DECEMBER 31, 1946.

(B) SUBSEQUENT TO THE ENACTMENT OF THIS ACT, A YEAR OF SATISFACTORY FEDERAL SERVICE, FOR THE PURPOSES OF THIS SECTION ONLY, SHALL CONSIST OF ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF FIFTY POINTS, WHICH POINTS SHALL BE CREDITED ON THE FOLLOWING BASIS:

(1) ONE POINT FOR EACH DAY OF ACTIVE FEDERAL SERVICE;

(2) ONE POINT FOR EACH DRILL OR PERIOD OF EQUIVALENT INSTRUCTION, SUCH DRILLS AND PERIODS OF EQUIVALENT INSTRUCTION TO BE RESTRICTED TO THOSE PRESCRIBED AND AUTHORIZED BY THE SECRETARY OF THE RESPECTIVE SERVICE FOR THE YEAR CONCERNED, AND TO CONFORM TO THE REQUIREMENTS PRESCRIBED BY OTHER PROVISIONS OF LAW;

(3) FIFTEEN POINTS FOR MEMBERSHIP IN A RESERVE COMPONENT FOR EACH YEAR OF FEDERAL SERVICE OTHER THAN ACTIVE FEDERAL SERVICE.

(C) EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO THE ENACTMENT OF THIS ACT SHALL BE DEEMED TO BE A YEAR OF SATISFACTORY FEDERAL SERVICE FOR THE PURPOSES OF THIS SECTION, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) OF SECTION 306 OF THIS ACT.

(D) APPLICATION FOR RETIREMENT WITH PAY MADE PURSUANT TO THIS SECTION SHALL BE SUBMITTED TO THE SECRETARY OF THE SERVICE IN WHICH THE APPLICANT LAST SERVED OR IS SERVING AT THE TIME OF SUCH SUBMISSION.

(E) ANY PERSON WHO, UPON ATTAINING THE AGE OF SIXTY YEARS, HAS QUALIFIED FOR RETIREMENT WITH PAY PURSUANT TO THIS TITLE, MAY WITH HIS CONSENT AND BY ORDER OF THE COGNIZANT SECRETARY, BE RETAINED ON DUTY TO PERFORM FEDERAL SERVICE. ANY PERSON SO RETAINED SHALL BE CREDITED WITH EQUIVALENT PERIODS OF FEDERAL SERVICE FOR THE PERFORMANCE OF SUCH DUTIES.

SEC. 307. THE SECRETARY OF THE ARMY WITH RESPECT TO PERSONNEL OF THE ARMY, THE SECRETARY OF THE NAVY WITH RESPECT TO PERSONNEL OF THE NAVY AND MARINE CORPS, AND THE SECRETARY OF THE AIR FORCE WITH RESPECT TO PERSONNEL OF THE AIR FORCE, ARE AUTHORIZED TO PRESCRIBE SUCH RULES, REGULATIONS, AND PROCEDURES AS THEY MAY DEEM NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS TITLE.

SEC. 308. ANY PERSON WHO HAS NOT ATTAINED THE AGE OF SIXTY YEARS BUT IS ELIGIBLE IN ALL OTHER RESPECTS TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF THIS TITLE MAY, AT HIS OWN REQUEST, AND BY THE DIRECTION OF THE SECRETARY OF THE COGNIZANT SERVICE, BE TRANSFERRED TO SUCH INACTIVE STATUS LIST AS HAS BEEN, OR MAY BE ESTABLISHED BY LAW OR REGULATION FOR THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, NAVY, AIR FORCE OF THE UNITED STATES, OR MARINE CORPS. AFTER THE EFFECTIVE DATE OF SUCH TRANSFER HE SHALL NOT BE REQUIRED TO PARTICIPATE IN ANY TRAINING OR OTHER PROGRAM PRESCRIBED FOR SAID RESERVE COMPONENTS, AND HE SHALL NOT BE ENTITLED TO BE CREDITED WITH EITHER ADDITIONAL ACTIVE FEDERAL SERVICE OR ADDITIONAL FEDERAL SERVICE IN A RESERVE COMPONENT OTHER THAN ACTIVE FEDERAL SERVICE FOR THE PURPOSE OF THIS TITLE WHILE HE IS IN AN INACTIVE STATUS. ANY SUCH PERSON MAY, IN THE DISCRETION OF THE COGNIZANT SERVICE SECRETARY, BE RECALLED TO ACTIVE STATUS AT ANY TIME, AND IF SO RECALLED, HE SHALL BE CREDITED WITH ACTIVE FEDERAL SERVICE OR FEDERAL SERVICE IN A RESERVE COMPONENT OTHER THAN ACTIVE FEDERAL SERVICE, OR BOTH FOR THE PERFORMANCE OF SUCH DUTY.

SEC. 310. NO BACK PAY OR ALLOWANCES FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT THEREOF SHALL ACCRUE TO ANY PERSON BY REASON OF ENACTMENT OF THIS TITLE.

SEC. 312. THE PROVISIONS OF THIS TITLE SHALL BECOME EFFECTIVE FOR EACH OF THE SERVICES CONCERNED WHEN DIRECTED BY THE COGNIZANT SECRETARY, BUT NOT LATER THAN THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE DATE OF ENACTMENT.

THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED. IT IS NOTED THAT QUESTIONS (A) AND (B) REQUEST DECISION RELATIVE TO THE ACTION WHICH LEGALLY MAY BE TAKEN BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE. OF COURSE, YOU ARE ENTITLED TO A DECISION ON THE ACT IN QUESTION ONLY TO THE EXTENT THAT IT AFFECTS THE NAVY DEPARTMENT AND THE REPLIES TO THOSE QUESTIONS SHOULD BE READ IN THAT LIGHT EVEN THOUGH THEY MAY, IN FACT, BE EQUALLY APPLICABLE TO THE ARMY AND THE AIR FORCE.

QUESTION (A):

(A) ARE THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE AUTHORIZED UNDER SECTIONS 307, 312, OR ANY OTHER SECTION OF THE ACT, TO PRESCRIBE THAT THE PREENACTMENT METHOD OF COMPUTING POINTS UNDER SECTION 302 BE EFFECTIVE THROUGH JUNE 30, 1948, AND THAT POST-ENACTMENT METHOD OF COMPUTING POINTS BECOME EFFECTIVE ON JULY 1, 1948?

WHILE IT IS UNDERSTANDABLE THAT FROM AN ADMINISTRATIVE STANDPOINT IT MIGHT BE DESIRABLE TO USE THE DATE OF JULY 1, 1948, RATHER THAN JUNE 29, 1948--- THE DATE OF ENACTMENT OF THE ACT--- AS THE EFFECTIVE DATE UPON WHICH POINTS WOULD BEGIN TO ACCRUE ON THE BASIS PRESCRIBED FOR THE PERIOD SUBSEQUENT TO THE ENACTMENT OF THE ACT, THE CLEAR WORDING OF SECTIONS 302 (B) AND 302 (C) OF SUCH ACT WOULD PRECLUDE ANY SUCH PROCEDURE. IT IS TRUE THAT UNDER SECTION 307 THE SECRETARY OF THE NAVY IS AUTHORIZED TO PRESCRIBE SUCH RULES, REGULATIONS, AND PROCEDURES AS HE MAY DEEM NECESSARY TO EFFECTUATE THE PROVISIONS OF THE ACT. HOWEVER, SUCH RULES, REGULATIONS, AND PROCEDURES MUST BE IN CONFORMITY WITH, AND NOT IN DEROGATION OF, THE ACT ITSELF. SINCE THE ACT WAS APPROVED ON JUNE 29, 1948, THAT DATE NECESSARILY IS CONTROLLING AS TO WHEN THE POST-ENACTMENT METHOD OF POINT ACCRUAL IS TO TAKE EFFECT. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE.

QUESTION (B):

(B) MAY THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE, PURSUANT TO SECTION 312 OF THE ACT, ESTABLISH JANUARY 1, 1949, AS THE DATE ON WHICH THE PROVISIONS OF TITLE III OF SAID ACT BECOME EFFECTIVE, WITHOUT JEOPARDIZING THE RIGHT OF INDIVIDUALS CONCERNED TO RECEIVE CREDIT FOR POINTS DURING THE PERIOD INTERVENING BETWEEN THE DATE OF ENACTMENT (OR JULY 1, 1948) AND JANUARY 1, 1949?

WHILE SECTION 312 AUTHORIZED THE SECRETARY OF THE NAVY TO SET THE EFFECTIVE DATE OF THE ACT INSOFAR AS IT RELATES TO PERSONNEL OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE, ONCE SUCH DATE IS SET THE INDIVIDUAL PROVISIONS OF EACH SECTION OF THE ACT BECOME OPERATIVE. HENCE, SINCE SECTION 302 (B) SPECIFICALLY PROVIDES FOR THE ACCRUAL OF POINTS SUBSEQUENT TO THE "ENACTMENT" OF THE ACT, IT MUST BE CONCLUDED THAT WHEN THAT SECTION BECOMES EFFECTIVE ITS PROVISIONS ARE FOR APPLICATION FROM AND AFTER THE SAID DATE OF ENACTMENT. MOREOVER, NOTHING APPEARS IN THE ACT TO INDICATE THAT THERE WAS ANY INTENTION THAT THERE BE ANY HIATUS IN THE POINT ACCRUAL. ACCORDINGLY, QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE.

QUESTIONS (C) AND (D):

(C) CAN ANY PORTION OF THE 50 POINT PER ANNUM CREDIT FOR SERVICE, OTHER THAN ACTIVE FEDERAL SERVICE PERFORMED PRIOR TO ENACTMENT OF THE ACT, BE CREDITED TO AN INDIVIDUAL FOR LESS THAN ONE YEAR'S SERVICE?

(D) CAN ANY PORTION OF THE 15 POINT CREDIT PROVIDED FOR BY SECTION 302 (B) (3) OF THE ACT BE CREDITED FOR MEMBERSHIP IN A RESERVE COMPONENT FOR PART OF A YEAR SUBSEQUENT TO ENACTMENT OF THE ACT?

WHILE THERE IS NO EXPRESS PROVISION IN THE ACT COVERING THESE MATTERS, IT WOULD APPEAR REASONABLE TO CONCLUDE THAT THE CONGRESS INTENDED TO PERMIT THE POINTS IN QUESTION TO BE PRORATED FOR A FRACTIONAL PART OF A YEAR. MANY CASES PERSONNEL WILL HAVE RENDERED SERVICE FOR THE MAJOR PORTION OF A YEAR AND IT SEEMS EVIDENT THAT IT WAS NOT THE INTENTION TO DEPRIVE SUCH PERSONS OF ALL CREDIT FOR THAT SERVICE. ACCORDINGLY, QUESTIONS (C) AND (D) ARE ANSWERED IN THE AFFIRMATIVE, CREDIT TO BE GIVEN ON A PRO RATA BASIS.

QUESTIONS (E) AND (F):

(E) IS THE PAYING AGENCY AUTHORIZED TO CREDIT RETIRED PAY RETROACTIVE TO THE DATE OF COMPLETION OF ELIGIBILITY REQUIREMENTS OF AGE AND SERVICE, OR JUNE 29, 1948, WHICHEVER IS LATER, EVEN THOUGH CERTIFICATE OF ENTITLEMENT TO RETIRED PAY IS ISSUED SUBSEQUENT TO SUCH DATE?

(F) IF THE ANSWER TO QUESTION (E) IS NEGATIVE, WHAT DATE MAY BE SELECTED BY THE PAYING AGENCY TO START CREDITING RETIRED PAY?

IT WILL BE NOTED THAT SECTION 302 (A) PROVIDED THAT OTHERWISE QUALIFIED PERSONS SHALL,"UPON APPLICATION THEREFOR," BE GRANTED RETIRED PAY. THAT PROVISION, AT MOST, GIVES AN INCHOATE RIGHT TO RETIRED PAY WHICH VESTS ONLY AFTER APPLICATION IS MADE THEREFOR AND SUCH APPLICATION IS APPROVED. HENCE, AS A GENERAL PROPOSITION NO RETIRED PAY WOULD ACCRUE PRIOR TO THE DATE OF APPROVAL OF THE APPLICATION THEREFOR. HOWEVER, THERE IS FOR CONSIDERATION THE FACT THAT UNDER THE TERMS OF SECTION 312, REFERRED TO ABOVE, THE ACT DOES NOT BECOME EFFECTIVE UNTIL THE DATE SET BY THE COGNIZANT SECRETARY, BUT NOT LATER THAN JANUARY 1, 1949, AND UNTIL THE ACT ACTUALLY IS MADE EFFECTIVE IT WOULD APPEAR THAT APPLICATIONS FOR ITS BENEFITS COULD NOT PROPERLY BE FILED OR APPROVED. IT WOULD SEEM THAT ONE OF THE PURPOSES OF SECTION 312 WAS MERELY TO PERMIT A DELAY IN THE ACCEPTANCE OF SUCH APPLICATIONS UNTIL SUCH TIME AS THE VARIOUS SERVICES COULD ESTABLISH AND PLACE IN OPERATION THE NECESSARY ADMINISTRATIVE PROCEDURE FOR PROCESSING THEM. WITH THAT IN MIND AND TAKING INTO CONSIDERATION THE FACT THAT THE EXPRESS PROHIBITION AGAINST THE ACCRUAL OF BACK PAY AND ALLOWANCES CONTAINED IN SECTION 310 REFERS ONLY TO BACK PAY AND ALLOWANCES FOR ANY PERIOD PRIOR TO THE ENACTMENT DATE, THE CONCLUSION APPEARS WARRANTED THAT PERSONS WHO WERE OTHERWISE QUALIFIED FOR SUCH RETIRED PAY ON JUNE 29, 1948--- THE DATE OF ENACTMENT--- OR WHO BECAME QUALIFIED THEREFOR BETWEEN THAT DATE AND THE DATE FINALLY SET AS THE EFFECTIVE DATE OF THE ACT, WOULD BE ELIGIBLE TO RECEIVE RETIRED PAY FROM THE TIME THEY QUALIFIED THEREFOR, OR FROM JUNE 29, 1948, WHICHEVER IS LATER, PROVIDED APPLICATION FOR SUCH RETIRED PAY IS FILED AND APPROVED WITHIN A REASONABLE TIME AFTER THE EFFECTIVE DATE OF THE ACT IS ANNOUNCED. COMPARE THE ANSWER TO QUESTION (B) ABOVE. PERSONNEL BECOMING QUALIFIED FOR RETIRED PAY AFTER THE EFFECTIVE DATE OF THE ACT (AS FIXED UNDER THE PROVISIONS OF SECTION 312) WOULD BE ELIGIBLE TO RECEIVE SUCH RETIRED PAY ONLY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEIR APPLICATION THEREFOR IS APPROVED IN VIEW OF THE PROVISIONS OF SECTION 302 (A), SUPRA, AND THE PROVISIONS OF SECTION 1 OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A, AS FOLLOWS: THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

QUESTIONS (E) AND (F) ARE ANSWERED ACCORDINGLY.

QUESTION (G):

(G) IS AN INDIVIDUAL WHO IS NOT A MEMBER OF A RESERVE COMPONENT, BUT WHO WAS FORMERLY A MEMBER OF A RESERVE COMPONENT AND WHO HAS COMPLETED ALL REQUIREMENTS FOR RETIREMENT BENEFITS EXCEPT THE ATTAINMENT OF THE AGE OF 60 YEARS PRIOR TO SEPARATION FROM SUCH RESERVE COMPONENT, ENTITLED TO RECEIVE RETIREMENT BENEFITS UPON REACHING THE AGE OF 60 YEARS?

SECTION 302 (A) AUTHORIZES RETIRED PAY FOR "ANY PERSON" WHO ATTAINS OR HAS ATTAINED, THE AGE OF 60 YEARS AND WHO MEETS THE REQUIREMENTS SET FORTH THEREIN, BUT SUCH SECTION DOES NOT EXPRESSLY STATE THAT SUCH PERSONS MUST BE MEMBERS OF THE RESERVE AT THE TIME THEY REACH 60. HOWEVER, THAT CURRENT MEMBERSHIP IN THE RESERVE WAS INTENDED TO BE REQUIRED IN ORDER TO QUALIFY A PERSON FOR RETIRED PAY IS INDICATED BY THE FACT THAT SECTION 301 (B), WHICH AUTHORIZES THE ESTABLISHMENT OF A UNITED STATES NAVAL RESERVE RETIRED LIST, SPECIFICALLY PROVIDES THAT SUCH LIST SHALL INCLUDE THE NAMES OF OFFICERS AND ENLISTED PERSONNEL "OF THE NAVAL AND MARINE CORPS RESERVE" ND MAKES NO PROVISION FOR PLACING ON SUCH LIST THE NAMES OF FORMER RESERVISTS. MOREOVER, SECTION 308 MAKES SPECIFIC PROVISION FOR PERSONS WHO HAVE NOT ATTAINED THE AGE OF 60 YEARS, THOUGH OTHERWISE QUALIFIED FOR RETIRED PAY, TO CONTINUE ON IN THE RESERVE ON AN INACTIVE STATUS LIST BUT SUBJECT TO RECALL TO ACTIVE STATUS, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AT ANY TIME. HAD IT BEEN INTENDED TO GIVE SUCH PERSONS THE ALTERNATIVE OF RESIGNING OR OTHERWISE TERMINATING THEIR RESERVE MEMBERSHIP, AND STILL REMAIN ELIGIBLE FOR RETIRED PAY, IT MAY BE ASSUMED THAT AN EXPRESS PROVISION THEREFOR WOULD HAVE BEEN MADE.

IT IS, OF COURSE, A FAMILIAR RULE OF STATUTORY CONSTRUCTION THAT THE INTENT OF THE LEGISLATIVE BODY AS EXPRESSED IN ANY PART OF THE STATUTE MUST BE GATHERED FROM THE READING OF THE STATUTE AS A WHOLE. HELVERING V. N.Y. TRUST CO., 292 U.S. 455, 464. HENCE, NOTWITHSTANDING THE BROAD LANGUAGE OF SECTION 302 (A), IN VIEW OF THE APPARENT LEGISLATIVE INTENT AS INDICATED BY THE OTHER SECTIONS OF THE ACT REFERRED TO, QUESTION (G) IS ANSWERED IN THE NEGATIVE.

IN CONNECTION WITH THE FOREGOING, THERE HAS NOT BEEN OVERLOOKED THE FACT THAT SECTION 302 (D) PROVIDES THAT APPLICATION FOR RETIREMENT WITH PAY PURSUANT TO THE ACT SHALL BE SUBMITTED TO THE SECRETARY OF THE SERVICE IN WHICH THE APPLICANT "LAST SERVED OR IS SERVING" AT THE TIME OF SUCH SUBMISSION. WHILE SUCH LANGUAGE MIGHT LEND SOME BASIS TO THE VIEW THAT CURRENT MEMBERSHIP IN THE RESERVE WAS NOT INTENDED TO BE REQUIRED AS A CONDITION PRECEDENT TO QUALIFICATION FOR RETIREMENT PAY, IT DOES NOT REMOVE THE DOUBT IN THE MATTER RAISED BY THE OTHER SECTIONS OF THE STATUTE REFERRED TO. WERE SUCH VIEW TO PREVAIL IT WOULD TEND TO NEGATIVE THE PROVISIONS OF SECTION 308 IN THAT IT WOULD TEND TO DESTROY ANY INCENTIVE FOR REMAINING IN THE RESERVE, IN AN INACTIVE STATUS, AFTER THE COMPLETION OF 20 YEARS' SATISFACTORY FEDERAL SERVICE AND THIS VALUE TO THE GOVERNMENT PROBABLY WOULD BE AT, OR NEAR, ITS PEAK. THE QUESTION IS OF GRAVE IMPORTANCE AND IF THE CONSIDERABLE DOUBT THAT EXISTS IS TO BE RESOLVED AGAINST THE INTERESTS OF THE GOVERNMENT, IT IS THE VIEW OF THIS OFFICE THAT IT SHOULD BE SO RESOLVED BY THE CONGRESS AND NOT BY INTERPRETATION.

QUESTION (H):

(H) MAY AN INDIVIDUAL WHO HAS BEEN TRANSFERRED TO AN INACTIVE RESERVE STATUS, PURSUANT TO SECTION 304 OF THE ACT, BE RESTORED TO A STATUS IN WHICH HE CAN EARN ADDITIONAL RETIREMENT REDITS?

SECTION 304 OF THE ACT, 62 STAT. 1088, PROVIDES, IN PERTINENT PART, THAT-

* * * WHENEVER ANY MEMBER OF ANY SUCH RESERVE COMPONENT THEREAFTER SHALL FAIL TO CONFORM TO THE STANDARDS AND QUALIFICATIONS SO PRESCRIBED HE SHALL BE TRANSFERRED TO AN INACTIVE RESERVE STATUS IF QUALIFIED FOR SUCH STATUS * * *. SUCH ACTION SHALL EFFECT A TERMINATION OF SUCH PERSON'S RIGHT TO ACCRUE RETIREMENT BENEFITS UNDER THIS TITLE BUT SHALL NOT AFFECT ANY RIGHTS WHICH HAVE ACCRUED PRIOR TO THE TIME THAT SUCH ACTION SHALL HAVE BEEN TAKEN WITH RESPECT TO SUCH PERSON * * *.

THE INACTIVE RESERVE STATUS REFERRED TO IN THE ABOVE-QUOTED PROVISION OF THE ACT APPARENTLY CONTEMPLATES A STATUS WHEREBY THE PERSONNEL CONCERNED, WHILE REMAINING MEMBERS OF THE RESERVE, DO NOT PARTICIPATE IN ANY TRAINING OR OTHER PROGRAM PRESCRIBED FOR RESERVE COMPONENTS. SEE SECTION 308 OF THE ACT, SUPRA. SUCH PROVISION DOES NOT AFFECT, IN ANY MANNER, THE STATUTORY AUTHORITY OF THE SECRETARY OF THE NAVY TO ORDER A MEMBER OF THE RESERVE TO ACTIVE DUTY NOR DOES IT PRECLUDE THE SECRETARY OF THE NAVY FROM RETURNING SUCH MEMBERS TO AN ACTIVE RESERVE STATUS. AND, WHILE THE PROVISION RELATIVE TO THE TERMINATION OF A PERSON'S RIGHT TO ACCRUE RETIREMENT BENEFITS IS STATED RATHER BROADLY, IT MAY NOT BE ASSUMED, IN THE ABSENCE OF MORE UNEQUIVOCAL LANGUAGE, THAT IT WAS INTENDED TO PROHIBIT THE ACCRUAL OF RETIREMENT BENEFITS AFTER SUCH PERSON HAS BEEN RESTORED TO A STATUS WHERE HE AGAIN MAY PARTICIPATE IN THE RESERVE TRAINING PROGRAMS, ETC. IF SUCH WERE THE INTENTION, THEN THE SAVING TO SUCH A PERSON OF RETIREMENT BENEFITS WHICH ACCRUED PRIOR TO HIS TRANSFER TO AN INACTIVE RESERVE STATUS WOULD BE MEANINGLESS AND SUCH SAVINGS THEN COULD ONLY BENEFIT THOSE WHO, EXCEPT FOR AGE, HAD ALREADY QUALIFIED FOR RETIRED PAY. THE MORE REASONABLE VIEW IS THAT THE PROVISION IN QUESTION WAS INTENDED ONLY TO SUSPEND THE ACCRUAL OF RETIREMENT BENEFITS DURING SUCH PERIOD, OR PERIODS, AS PERSONNEL MIGHT BE IN AN INACTIVE RESERVE STATUS AND, ACCORDINGLY, QUESTION (H) IS ANSWERED IN THE AFFIRMATIVE.