B-151926, OCTOBER 22, 1963, 43 COMP. GEN. 402

B-151926, OCTOBER 22, 1963, 43 COMP. GEN. 402

PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - REFUND UPON RETIREMENT. PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - RECOUPMENT FROM RETAINER PAY. PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - RECOUPMENT FROM RETAINER PAY A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES, AS WELL AS A RESERVIST, UPON COMPLETION OF 20 OR MORE YEARS OF ACTIVE SERVICE IS REQUIRED UPON RETIREMENT TO REFUND 75 PERCENT OF THE READJUSTMENT PAY RECEIVED AS A MEMBER OF A RESERVE COMPONENT AFTER JUNE 28, 1962, SECTION 1 (4) OF THE ACT OF JUNE 28, 1962 (50 U.S.C. 1016 (C) (, PROVIDING FOR THE DEDUCTION OF 75 PERCENT OF THE READJUSTMENT PAYMENT RECEIVED BY A RESERVIST FROM HIS RETIRED PAY WHEN QUALIFYING FOR RETIREMENT UNDER ANY PROVISION OF TITLES 10 AND 14, U.S.C. CONTEMPLATING DEDUCTION OF READJUSTMENT PAY RECEIVED FROM THE RETIRED PAY OF BOTH REGULAR AND RESERVE MEMBERS OF THE UNIFORMED SERVICES. UPON THE RETIREMENT OF MEMBERS OF THE UNIFORMED SERVICES UNDER ANY PROVISION OF TITLES 10 AND 14 OF THE U.S.C. THE DEDUCTION FROM RETIRED PAY REQUIRED BY SECTION 1 (4) OF THE ACT OF JUNE 28, 1962 (50 U.S.C. 1016 (C) (, OF 75 PERCENT OF THE READJUSTMENT PAY RECEIVED BY A MEMBER OF A RESERVE COMPONENT AFTER JUNE 28, 1962, MUST BE MADE FROM THE RETAINER PAY OF AN ENLISTED MEMBER FOLLOWING HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UPON COMPLETION OF 20 OR MORE YEARS OF ACTUAL ACTIVE SERVICE, THE FLEET RESERVE BEING A FORM OF RETIRED STATUS IN WHICH REGULAR NAVY AND MARINE CORPS ENLISTED PERSONNEL ARE PLACED UPON COMPLETION OF 20 OR MORE YEARS OF SERVICE WITH AN OBLIGATION TO SERVE ON ACTUAL DUTY UNTIL COMPLETION OF 30 YEARS, AND THE LEGISLATIVE HISTORY OF THE ACT EVIDENCING NO INTENT TO DEFER RECOUPMENT OF READJUSTMENT PAYMENT WHEN MEMBERS BECOME ENTITLED TO MONTHLY RETIREMENT BENEFITS ON ACCOUNT OF MILITARY SERVICE, DEDUCTIONS FOR READJUSTMENT PAY ARE REQUIRED TO BE MADE FROM RETAINER PAY. A MEMBER TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AFTER JUNE 28, 1962, AND PRIOR TO THE COMPLETION OF 20 YEARS OF ACTIVE SERVICE HAS QUALIFIED FOR "RETIRED PAY" WITHIN THE MEANING OF SECTION 1 (4) OF THE ACT OF JUNE 28, 1962 (50 U.S.C. 1016 (C) ( AND HIS RETAINER PAY IS SUBJECT TO DEDUCTION FOR ANY PRIOR READJUSTMENT PAYMENT MADE TO HIM, 10 U.S.C. 6330 (D) PROVIDING THAT AN ENLISTED MEMBER OF THE NAVY OR MARINE CORPS HAVING LESS THAN 20 YEARS OF ACTUAL SERVICE, BUT OTHERWISE ELIGIBLE, MAY BE TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND, THEREFORE, BECOMING ENTITLED TO THE RIGHTS, BENEFITS, AND PRIVILEGES ACCORDED TRANSFEREES HAVING 20 OR MORE YEARS OF ACTIVE SERVICE, THE MEMBER ALSO IS SUBJECT TO THE SAME OBLIGATIONS AND RESPONSIBILITIES.

TO THE SECRETARY OF DEFENSE, OCTOBER 22, 1963:

REFERENCE IS MADE TO LETTER OF JUNE 26, 1963, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION OF FOUR QUESTIONS STATED AND DISCUSSED IN COMMITTEE ACTION NO. 323 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE CONCERNING THE MANDATORY DEDUCTION OF A READJUSTMENT PAYMENT MADE PURSUANT TO THE ACT OF JUNE 28, 1962, PUBLIC LAW 87-509, 76 STAT. 120, 50 U.S.C. 1016, FROM THE RETIRED PAY OF A MEMBER OF A REGULAR COMPONENT WHO, AFTER RECEIPT OF READJUSTMENT PAY, RETIRES WITH 20 OR MORE YEARS OF ACTIVE SERVICE. THE FIRST QUESTION IS AS FOLLOWS:

1. MUST 75 PERCENT OF THE READJUSTMENT PAY RECEIVED BY A MEMBER OF A RESERVE COMPONENT AFTER 28 JUNE 1962 BE DEDUCTED FROM THE RETIRED PAY TO WHICH HE IS ENTITLED FOLLOWING HIS NONDISABILITY RETIREMENT UNDER ANY PROVISION OF TITLE 10, U.S.C. AS A MEMBER OF A REGULAR COMPONENT UPON THE COMPLETION OF 20 OR MORE YEARS OF ACTIVE SERVICE?

SECTION 1 (4) OF THE ACT OF JUNE 28, 1962, AMENDED SECTION 265 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 518, 50 U.S.C. 1016 (C), AND PROVIDES AS FOLLOWS:

A MEMBER OF A RESERVE COMPONENT WHO HAS RECEIVED A READJUSTMENT PAYMENT UNDER THIS SECTION AFTER THE DATE OF ENACTMENT OF THIS AMENDED SUBSECTION AND WHO QUALIFIES FOR RETIRED PAY UNDER ANY PROVISION OF TITLE 10 OR TITLE 14, U.S.C. THAT AUTHORIZES HIS RETIREMENT UPON COMPLETION OF 20 YEARS OF ACTIVE SERVICE, MAY RECEIVE THAT PAY SUBJECT TO THE IMMEDIATE DEDUCTION FROM THAT PAY OF AN AMOUNT EQUAL TO 75 PERCENT OF THE AMOUNT OF THE READJUSTMENT PAYMENT, WITHOUT INTEREST.

WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THE 1962 ACT INDICATING THAT CONGRESS INTENDED TO REQUIRE DEDUCTIONS ONLY FROM THE RETIRED PAY OF RESERVE MEMBERS RETIRING AS SUCH ON AND AFTER JUNE 28, 1962, ON THE BASIS OF 20 OR MORE YEARS OF ACTIVE SERVICE. RATHER, THE LEGISLATIVE HISTORY SHOWS THAT DURING THE COURSE OF THE HEARINGS FREQUENT MENTION WAS MADE OF RESERVE OFFICERS ENLISTING AFTER THEIR RELEASE FROM ACTIVE DUTY AND QUALIFYING FOR "TITLE II" RETIRED PAY ON THE BASIS OF 20 OR MORE YEARS OF ACTIVE SERVICE. "TITLE II" IS APPLICABLE TO BOTH REGULARS AND RESERVES. ALSO, ONE PURPOSE OF THE 1962 LAW WAS TO EQUALIZE THE TREATMENT OF REGULARS AND RESERVES WITH RESPECT TO RECOVERY OF SEVERANCE PAY FROM RETIRED PAY. ACCORDINGLY, IN VIEW OF THE BROAD WORDING USED IN SECTION 1 (4), QUOTED ABOVE, IT SEEMS APPARENT THAT CONGRESS CONTEMPLATED THAT THE DEDUCTION SHOULD BE MADE FROM THE RETIRED PAY OF REGULARS AS WELL AS RESERVE MEMBERS. SEE H.REPT.NO. 1107 AND S.REPT.NO. 1096 ON H.R. 8773, WHICH BECAME THE 1962 ACT. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, MUST THE DEDUCTION BE MADE FROM THE RETAINER PAY OF AN ENLISTED MEMBER FOLLOWING HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UPON THE COMPLETION OF 20 OR MORE YEARS OF ACTUAL ACTIVE SERVICE?

IN A DECISION OF MAY 10, 1923, 2 COMP. GEN. 743, WE HELD THAT THE RETAINER PAY PAID TO TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE (NOW FLEET RESERVE) WAS RETIREMENT PAY GIVEN FOR LESS THAN 30 YEARS' SERVICE WITHIN THE MEANING OF A STATUTE WHICH PROHIBITED PAYMENT OF DISABILITY COMPENSATION TO A PERSON RECEIVING RETIREMENT PAY. OUR DECISION OF SEPTEMBER 30, 1926, 6 COMP. GEN. 223, REITERATES THAT HOLDING AND POINTS OUT THAT RETAINER PAY, BEING BASED ON LENGTH OF SERVICE ALONE, WITH THE RATES FIXED IN RELATION TO THE RATES OF ACTIVE SERVICE PAY, HAD PRACTICALLY ALL THE ELEMENTS OF RETIREMENT PAY. SEE, ALSO, 26 COMP. GEN. 152, 157.

THE COMMITTEE REPORTS ON THE BILL WHICH BECAME THE 1956 ACT STATED THAT A RESERVIST WHO IS ON ACTIVE DUTY AND IS WITHIN 2 YEARS OF QUALIFYING FOR "RETIREMENT PAY" SHOULD NOT BE INVOLUNTARILY RELEASED FROM ACTIVE DUTY BEFORE HE QUALIFIES FOR THAT PAY (UNLESS HIS RELEASE IS APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED). SEE PAGE 1, H.REPT.NO. 1960, AND PAGE 5, S.REPT.NO. 2288, ON H.R. 9952, 84TH CONG., WHICH BECAME THE 1956 ACT. THE PROVISION OF THE BILL REFERRED TO CONCERNED A RESERVIST WHO "IS WITHIN TWO YEARS OF QUALIFYING FOR RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY.'

SIMILARLY, SUBSECTION (B) (4) OF THE 1956 ACT, 50 U.S.C. 1016 (B) (4), PROHIBITED PAYMENT OF READJUSTMENT PAYMENT TO A RESERVIST WHO IS IMMEDIATELY ELIGIBLE FOR "RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY," AND SUBSECTION (C), 50 U.S.C. 1016 (C), PROVIDED THAT ACCEPTANCE OF READJUSTMENT PAY SHOULD NOT DEPRIVE A PERSON OR ANY "RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER RETIREMENT BENEFITS" TO WHICH HE WOULD OTHERWISE BECOME ENTITLED.

ONE OF THE PRINCIPAL PURPOSES OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 10 U.S.C. 6330 NOTE, WAS "TO EQUALIZE RETIREMENT BENEFITS FOR ENLISTED PERSONNEL OF THE NAVY WITH THAT PROVIDED FOR ENLISTED PERSONNEL OF THE ARMY.' SEE PAGE 1, H.REPT.NO. 2720 ON S. 2460, 79TH CONG.,WHICH BECAME THE ACT OF AUGUST 10, 1946. THAT LAW AUTHORIZED THE RETIREMENT OF ARMY ENLISTED MEMBERS WHO HAD COMPLETED 20 YEARS OF ACTIVE SERVICE WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE, PLUS AN ADDITIONAL 10 PERCENT FOR EXTRAORDINARY HEROISM, WITH AN OBLIGATION TO PERFORM SUCH PERIODS OF ACTIVE DUTY AS MAY BE PRESCRIBED BY LAW UNTIL THE COMPLETION OF 30 YEARS OF SERVICE, ACTIVE AND INACTIVE. SIMILAR BENEFITS WERE PRESCRIBED FOR ENLISTED MEMBER OF THE NAVY. INSTEAD OF BEING IMMEDIATELY RETIRED UPON COMPLETION OF 20 OR MORE YEARS OF SERVICE, HOWEVER, NAVY MEMBERS ARE TRANSFERRED TO THE FLEET RESERVE WITH RETAINER PAY AND AN OBLIGATION TO SERVE ON ACTIVE DUTY AS PRESCRIBED BY LAW UNTIL THE COMPLETION OF 30 YEARS OF SERVICE, ACTIVE AND INACTIVE, AT WHICH TIME THEY ARE RETIRED WITH RETIRED PAY. THERE IS NO SUBSTANTIVE DIFFERENCE BETWEEN THE STATUS OF SUCH RETIRED ARMY ENLISTED MEMBERS AND MEMBERS OF THE FLEET RESERVE PRIOR TO THE COMPLETION OF 30 YEARS OF SERVICE, ALTHOUGH THERE IS A DIFFERENCE IN THE NOMENCLATURE APPLIED TO THEM. TO DEDUCT THE READJUSTMENT PAYMENT FROM THE RETIRED PAY OF SUCH A RETIRED ARMY ENLISTED MEMBER AND NOT FROM THE RETAINER PAY OF A MEMBER OF THE FLEET RESERVE WOULD IN THIS RESPECT DEFEAT THE PURPOSE OF THE 1946 ACT AND RESULT IN DISCRIMINATION BETWEEN THEM.

IN EXPLAINING THE NATURE OF THE FLEET RESERVE, SENATOR RUSSELL, CHAIRMAN OF THE SENATE COMMITTEE ON ARMED SERVICES, IN CONNECTION WITH H.R. 11504, 85TH CONG., WHICH BECAME THE ACT OF AUGUST 1, 1958, PUBLIC LAW 85-583, 10 U.S.C. 6330, AND MADE NAVAL RESERVISTS ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE WITH RETAINER PAY, SAID:

* * * THE PURPOSE OF THIS BILL IS TO EXTEND TO NAVAL ENLISTED CAREER RESERVISTS THE SAME RETIREMENT BENEFITS OF REGULAR ENLISTED PERSONNEL BY AUTHORIZING AFTER AT LEAST 20 YEARS OF ACTIVE SERVICE THEIR TRANSFER TO THE FLEET RESERVE WHICH IS THE FORM OF RETIRED STATUS IN WHICH REGULAR NAVY AND MARINE CORPS ENLISTED PERSONNEL ARE PLACED WHEN THEY RETIRE WITH BETWEEN 20 AND 30 YEARS OF ACTIVE SERVICE.

SEE PAGE 36 OF THE SENATE HEARINGS ON H.R. 11504, 85TH CONG. THAT LAW AMENDED 10 U.S.C. 6327 TO PROVIDE THAT A MEMBER ELIGIBLE FOR RETIREMENT UNDER ANOTHER PROVISION OF LAW OR FOR TRANSFER TO THE FLEET RESERVE IS ENTITLED TO ELECT WHICH OF THESE BENEFITS HE IS TO RECEIVE.

SECTION 102 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (B), PROVIDED THAT THE WORDS "RETIRED PERSON" INCLUDES MEMBERS OF THE FLEET RESERVE WHO ARE IN RECEIPT OF RETAINER PAY. SECTIONS 511 AND 516 OF THAT ACT, 37 U.S.C. 311 AND 10 U.S.C. 1402, RESPECTIVELY, PROVIDED IDENTICAL TREATMENT OF RETIRED MEMBERS AND MEMBERS OF THE FLEET RESERVE WITH RESPECT TO COMPUTATION OF RETIRED AND RETAINER PAY UNDER THAT ACT AND INCREASES IN SUCH PAY ON ACCOUNT OF ADDITIONAL SERVICE ON ACTIVE DUTY. SEE HARBAY V. UNITED STATES, 138 CT.CL. 284 (1957).

CHAPTER 571 OF TITLE 10, U.S. CODE, ENTITLED "VOLUNTARY RETIREMENT," COVERS NOT ONLY RETIREMENT OF MEMBERS WITH RETIRED PAY FOR LENGTH OF SERVICE, BUT ALSO THE TRANSFER OF ENLISTED MEMBERS TO THE FLEET RESERVE WITH RETAINER PAY. SIMILARLY, SUBSECTION 2 (D) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 37 U.S.C. 371 (D) (1952 ED., SUPP. II), PROVIDED THAT THE TERM "RETIRED MEMBER" INCLUDES A MEMBER WHO "IS OR HAS BEEN AWARDED RETIRED, RETIREMENT, OR RETAINER PAY" AND SUBSECTION 2 (G), 37 U.S.C. 371 (G) (1952 ED., SUPP. II), PROVIDED THAT THE TERM "RETIRED PAY" INCLUDES RETAINER PAY. SIMILAR PROVISIONS WERE CONTAINED IN THE DEPENDENTS' MEDICAL CARE ACT APPROVED JUNE 7, 1956, 70 STAT. 250, 37 U.S.C. 401 NOTE (1952 ED., SUPP. V).

IN RECOMMENDING ENACTMENT OF THE 1962 LAW REQUIRING DEDUCTION OF THE READJUSTMENT PAY FROM RETIRED PAY, THE DEPARTMENT OF DEFENSE USED THE TERM "RETIRED PAY" GENERICALLY TO INCLUDE "RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER RETIREMENT BENEFITS" MENTIONED IN SUBSECTION (C) OF THE 1956 LAW. SEE PROPOSAL (C) IN THE DEPARTMENT OF DEFENSE LETTER OF AUGUST 4, 1961, IN H.REPT.NO. 1007 AND S.REPT.NO. 1096 ON H.R. 8773, WHICH BECAME THE 1962 ACT. THE 1962 LAW ALSO REQUIRES DEDUCTION OF THE READJUSTMENT PAYMENT FROM ANY DISABILITY COMPENSATION TO WHICH THE MEMBER IS ENTITLED UPON THE SAME RELEASE FROM ACTIVE DUTY.

THUS IT SEEMS CLEAR THAT THE CONGRESS INTENDED THAT THE READJUSTMENT PAYMENT SHOULD BE DEDUCTED IMMEDIATELY WHEN A MEMBER BECOMES ENTITLED TO MONTHLY PAYMENTS OF RETIREMENT BENEFITS BASED ON THE ACTIVE SERVICE FOR WHICH THE MEMBER RECEIVES THAT PAYMENT. THERE IS NO EVIDENCE IN THE LEGISLATIVE HISTORY OR IN THE STATUTE INDICATING THAT RECOUPMENT OF THE READJUSTMENT PAYMENT SHOULD BE DEFERRED IN ANY CASE WHERE THE MEMBER BECOMES ENTITLED TO ANY MONTHLY RETIREMENT BENEFITS ON ACCOUNT OF HIS MILITARY SERVICE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

OUR DECISION OF NOVEMBER 27, 1961, 41 COMP. GEN. 337, CITED IN COMMITTEE ACTION NO. 323, RELATED TO THE COMPUTATION OF THE RETIRED PAY OF A MARINE CORPS MEMBER WHO WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS, A SPECIAL LIMITED TEMPORARY STATUS, ALTHOUGH HE WAS ELIGIBLE FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE, AND IS NOT FOR APPLICATION HERE.

QUESTION 3

3. IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, MUST THE DEDUCTION BE MADE FROM THE RETAINER PAY OF AN ENLISTED MEMBER FOLLOWING HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UPON THE COMPLETION OF LESS THAN 20 YEARS OF ACTUAL ACTIVE SERVICE?

IT IS PROVIDED IN 10 U.S.C. 6330 (D) THAT, FOR THE PURPOSE OF COMPUTING THE "20 OR MORE YEARS OF ACTIVE SERVICE" FOR ELIGIBILITY OF ENLISTED MEMBERS FOR TRANSFER TO THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, A PART OF A YEAR THAT IS 6 MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, A COMPLETED MINORITY ENLISTMENT IS COUNTED AS 4 YEARS OF ACTIVE SERVICE,AND AN ENLISTMENT TERMINATED WITHIN 3 MONTHS BEFORE THE END OF THE TERM OF ENLISTMENT IS COUNTED AS ACTIVE SERVICE FOR THE FULL TERM. THUS, UNDER THAT PROVISION OF LAW AN ENLISTED MEMBER OF THE NAVY OR MARINE CORPS HAVING LESS THAN 20 YEARS OF ACTUAL ACTIVE SERVICE, BUT WHO IS OTHERWISE ELIGIBLE, MAY BE TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE. IMMEDIATELY UPON SUCH TRANSFER HE BECOMES ENTITLED TO ALL RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW IN THE SAME MANNER AS TRANSFEREES HAVING 20 OR MORE YEARS OF ACTIVE SERVICE AND BY THE SAME TOKEN HE BECOMES SUBJECT TO THE SAME OBLIGATIONS AND RESPONSIBILITIES WHICH SUCH TRANSFEREES ASSUME UNDER APPLICABLE PROVISIONS OF LAW. THEREFORE ANY MEMBER TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AFTER JUNE 28, 1962, AND PRIOR TO HIS COMPLETION OF 20 YEARS OF ACTIVE SERVICE HAS QUALIFIED FOR "RETIRED PAY" WITHIN THE MEANING OF SECTION 1 (4) OF THE ACT OF JUNE 28, 1962, AND WE MUST HOLD THAT HIS RETAINER PAY IS SUBJECT TO DEDUCTION FOR ANY PRIOR READJUSTMENT PAYMENT MADE TO HIM UNDER THAT PROVISION OF LAW.

IN COMMITTEE ACTION NO. 323 CONCERNING THIS QUESTION OUR ATTENTION WAS DIRECTED TO OUR DECISION OF JULY 19, 1960, 40 COMP. GEN. 18, AND AKOL, ET AL. V. UNITED STATES, CT.CL.NO. 564-57, DECIDED MAY 10, 1963. OUR DECISION OF JULY 19, 1960, CONCERNED THE QUESTION OF THE RECOUPMENT OF THE REENLISTMENT BONUS FROM AN ENLISTED MEMBER OF THE NAVY WHO BEFORE COMPLETING 20 YEARS OF ACTUAL ACTIVE SERVICE TRANSFERRED TO THE FLEET RESERVE. WE CONCLUDED THAT, WHILE ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE WITH THE RIGHT TO RECEIVE AND COMPUTE RETAINER PAY OF SUCH MEMBER IS BASED ON 20 YEARS' ACTUAL AND CONSTRUCTIVE SERVICE, CONSTRUCTIVE SERVICE IS NOT CREDITABLE IN DETERMINING WHEN A MEMBER COMPLETED 20 YEARS OF ACTIVE SERVICE FOR THE PURPOSE OF THE REENLISTMENT BONUS WITHIN THE CONTEMPLATION OF THE APPLICABLE PROVISIONS OF 37 U.S.C. 239 AND, THEREFORE, RECOUPMENT OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS WAS REQUIRED. SINCE THAT DECISION RELATES SOLELY TO THE QUESTION OF CREDITING CONSTRUCTIVE SERVICE FOR THE PURPOSE OF DETERMINING WHETHER A MEMBER COMPLETED 20 YEARS' SERVICE WITHIN THE MEANING OF A STATUTE RELATING TO REENLISTMENT BONUS, 37 U.S.C. 239 (1958 ED.), IT IS NOT RELEVANT IN CONSIDERING THE APPLICATION OF SECTION 1 (4) OF THE ACT OF JUNE 28, 1962. SIMILARLY IN THE AKOL CASE THE COURT OF CLAIMS HELD THAT A STATUTORY PROVISION THAT FRACTIONS OF ONE-HALF A YEAR OR MORE SHOULD BE COUNTED AS A WHOLE YEAR FOR THE PURPOSE OF COMPUTING RETIRED PAY HAS NO BEARING IN DETERMINING ELIGIBILITY TO RECEIVE RETIRED PAY AS A MEMBER WHO HAS COMPLETED "AT LEAST TWENTY YEARS OF ACTIVE SERVICE" UNDER THE PROVISIONS OF SUBSECTION 402 (F) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 820, 37 U.S.C. 272 (F) (1952 ED.). THE HOLDING STATED ABOVE IS NOT INCONSISTENT WITH THE CONCLUSION REACHED IN THOSE TWO DECISIONS. THIS QUESTION, ACCORDINGLY, IS ALSO ANSWERED IN THE AFFIRMATIVE.

QUESTION 4

4. IF THE ANSWER TO QUESTION 2 OR 3 IS IN THE NEGATIVE, MUST THE DEDUCTION BE MADE FROM THE RETIRED PAY TO WHICH THE MEMBER IS ENTITLED FOLLOWING HIS TRANSFER TO THE RETIRED LIST FROM THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE?

IN VIEW OF THE ANSWERS TO QUESTIONS 2 AND 3, AN ANSWER TO THIS QUESTION IS UNNECESSARY.