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B-142920, OCT. 18, 1960

B-142920 Oct 18, 1960
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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF AUGUST 31. FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) IN EFFECT REQUESTING A DECISION WHETHER IN THE CASES OF MEMBERS OF THE FLEET RESERVE WHOSE RETAINER PAY IS COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 6330 SIX MONTHS OR MORE OF ACTIVE SERVICE SHOULD BE CONSIDERED A FULL YEAR IN THE BASIC PAY FACTOR. THAT CERTAIN CONSTRUCTIVE SERVICE IS NOT AUTHORIZED TO BE COUNTED FOR BASIC PAY PURPOSES (CITING 38 COMP. AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 TO AUTHORIZE ENLISTED MEN OF THE NAVY WITH TWENTY YEARS OF "ACTIVE FEDERAL SERVICE" TO BE TRANSFERRED TO THE FLEET RESERVE WITH RETAINER PAY AT THE ANNUAL RATE OF 2 1/2 PERCENT OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE.

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B-142920, OCT. 18, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 31, 1960, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) IN EFFECT REQUESTING A DECISION WHETHER IN THE CASES OF MEMBERS OF THE FLEET RESERVE WHOSE RETAINER PAY IS COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 6330 SIX MONTHS OR MORE OF ACTIVE SERVICE SHOULD BE CONSIDERED A FULL YEAR IN THE BASIC PAY FACTOR. THE QUESTION ARISES BECAUSE WE SAID IN DECISION OF JULY 19, 1960, B-142920, 40 COMP. GEN. 18, THAT CERTAIN CONSTRUCTIVE SERVICE IS NOT AUTHORIZED TO BE COUNTED FOR BASIC PAY PURPOSES (CITING 38 COMP. GEN. 110). THE REQUEST FOR DECISION HAS BEEN ASSIGNED NO. SS-N-524 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ACT OF AUGUST 10, 1946, 60 STAT. 993, AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 TO AUTHORIZE ENLISTED MEN OF THE NAVY WITH TWENTY YEARS OF "ACTIVE FEDERAL SERVICE" TO BE TRANSFERRED TO THE FLEET RESERVE WITH RETAINER PAY AT THE ANNUAL RATE OF 2 1/2 PERCENT OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE. SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, AUTHORIZED THE CREDITING OF CERTAIN CONSTRUCTIVE SERVICE ARISING OUT OF MINORITY ENLISTMENTS AND CERTAIN EARLY DISCHARGES TO BE CREDITED AS ACTIVE FEDERAL SERVICE. THE 1946 AMENDMENT TO SECTION 204 PROVIDED:

"* * * THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY. * * *"

THE PERTINENT PROVISIONS OF OF THE NAVAL RESERVE ACT OF 1938 WERE REPEALED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 669, AND REENACTED AS SECTION 6330 OF TITLE 10, UNITED STATES CODE. SUBSECTION (C) PROVIDES FOR PAYMENT OF RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE. SUBSECTION (D) PROVIDES THAT FOR THE PURPOSE OF SUBSECTIONS (B) AND (E):

"* * * A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED.

WHILE THE LANGUAGE DOES NOT SPECIFICALLY SAY THAT IT SHOULD BE APPLIED TO THE BASIC PAY FACTOR AS WELL AS TO THE MULTIPLIER FACTOR IN THE COMPUTATION OF RETAINER PAY, WE PERCEIVE NO BASIS FOR CONCLUDING THAT IT SHOULD BE APPLIED EXCLUSIVELY TO THE MULTIPLIER FACTOR. ITS TERMS APPEAR BROAD ENOUGH TO COVER BOTH THE BASIC PAY FACTOR AND THE MULTIPLIER FACTOR. IT IS NOT APPARENT THAT THE CONGRESS INTENDED THAT THE CHANGE IN WORDING USED IN THE ENACTMENT OF 10 U.S.C. 6330 SHOULD EFFECT A SUBSTANTIVE CHANGE IN THE LAW IN THAT RESPECT AND THE PROVISIONS OF SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, ARE CONSISTENT WITH THAT VIEW. THAT SECTION PROVIDES THAT IT IS THE LEGISLATIVE PURPOSE TO RESTATE THE LAW REPLACED BY TITLE 10, U.S. CODE,"WITHOUT SUBSTANTIVE NGE.' WITH RESPECT TO RETAINER PAY IN PARTICULAR, SECTION 49 (F) PROVIDES THAT ENACTMENT OF THE ACT OF AUGUST 10, 1956, DOES NOT INCREASE OR DECREASE THE RETAINER PAY OF ANY PERSON. IN THIS CONNECTION IT SHOULD BE NOTED THAT SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 WAS NOT REPEALED BY THE ACT OF AUGUST 10, 1956, BECAUSE OF ITS LIMITED APPLICATION AND EXPIRATION (SEE P. 1136, H.R.REP. 970, 84TH CONGRESS, ON THE BILL WHICH BECAME THE ACT OF AUGUST 10, 1956), BUT WAS AMENDED BY SECTION 25, 70A STAT. 631, TO INCLUDE THE PROVISION THERETOFORE CONTAINED IN THE REPEALED SECTION 204 RELATING TO COUNTING SIX MONTHS OR MORE OF SERVICE AS A YEAR. THE FOLLOWING LANGUAGE WAS USED IN MAKING THAT AMENDMENT:

"A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR THE PURPOSES OF THIS SECTION IN COMPUTING BASIC PAY. * * *"

CONSIDERING THAT FOR THE PURPOSES OF SECTION 203 A FRACTIONAL YEAR OF SIX MONTHS OR MORE IS EXPRESSLY AUTHORIZED TO BE COUNTED AS A FULL YEAR IN COMPUTING BASIC PAY AND GIVING EFFECT TO THE BROAD LANGUAGE USED IN SECTION 6330 (D), APPARENTLY ENACTED FOR THE SAME PURPOSE, YOU ARE ADVISED THAT IN CASES WHERE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 6330, A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHOULD BE CONSIDERED A FULL YEAR IN THE BASIC PAY FACTOR. OUR HOLDING IN 38 COMP. GEN. 110, WITH RESPECT TO SERVICE CREDITABLE FOR BASIC PAY PURPOSES, CONCERNED CONSTRUCTIVE SERVICE ARISING OUT OF MINORITY AND CERTAIN SHORT TERM ENLISTMENTS AND NOT CREDIT OF A FULL YEAR FOR A FRACTIONAL YEAR OF SIX MONTHS OR MORE. NOTHING SAID IN OUR DECISION OF JULY 19, 1960, WAS INTENDED AS A MODIFICATION OF 35 COMP. GEN. 612, MENTIONED IN THE LETTER OF AUGUST 31, 1960, OR AS MEANING THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE OF ACTUAL SERVICE SHOULD NOT BE CONSIDERED A FULL YEAR IN COMPUTING THE BASIC PAY FACTOR UNDER 10 U.S.C. 6330.

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