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B-140372, MARCH 27, 1963, 42 COMP. GEN. 525

B-140372 Mar 27, 1963
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ARE ELIGIBLE FOR APPOINTMENT IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE. NOTWITHSTANDING THE REQUIRED 20 YEARS OR MORE OF ACTIVE DUTY WAS COMPLETED AS AN OFFICER. THE PLAINTIFF WHOSE 20 YEARS OF ACTIVE SERVICE WAS COMPLETED WHILE SERVING AS AN OFFICER AND WHOSE RESIGNATION AS AN OFFICER MAY NOW BE CONSIDERED A DISCHARGE FOR THE PURPOSES OF THE 1956 ACT. THE DATE HE WAS TRANSFERRED TO THE RETIRED LIST. TO WHICH GRADE HE WAS ADVANCED ON MARCH 5. IS PAYABLE TO WILLIAM A. - (1) WHO WAS DISCHARGED PRIOR TO AUGUST 10. EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSES (1) AND (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE.

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B-140372, MARCH 27, 1963, 42 COMP. GEN. 525

PAY - RETIRED - FLEET RESERVISTS - APPLICATION OF ACT OF JULY 24, 1956 THE COURT HAVING HELD IN STEIMER V. UNITED STATES, CT.CL.NO. 111-61, DECIDED NOVEMBER 7, 1962, THAT FORMER MEMBERS OF THE NAVY OR MARINE CORPS DISCHARGED PRIOR TO AUGUST 10, 1946, ARE ELIGIBLE FOR APPOINTMENT IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, PURSUANT TO THE ACT OF JULY 24, 1956, NOTWITHSTANDING THE REQUIRED 20 YEARS OR MORE OF ACTIVE DUTY WAS COMPLETED AS AN OFFICER, FOLLOWED BY RESIGNATION AS AN OFFICER RATHER THAN DISCHARGE AS AN ENLISTED MAN, THE PLAINTIFF WHOSE 20 YEARS OF ACTIVE SERVICE WAS COMPLETED WHILE SERVING AS AN OFFICER AND WHOSE RESIGNATION AS AN OFFICER MAY NOW BE CONSIDERED A DISCHARGE FOR THE PURPOSES OF THE 1956 ACT, HAVING BEEN PROPERLY APPOINTED TO THE FLEET MARINE RESERVE CORPS MAY RECOVER RETIRED PAY BASED ON THE GRADE OF MASTER SERGEANT FROM DECEMBER 1, 1958, THE DATE HE WAS TRANSFERRED TO THE RETIRED LIST, TO MARCH 4, 1959, AND FROM MARCH 5, 1959, THROUGH DATE OF JUDGMENT, BASED ON THE GRADE OF CAPTAIN, TO WHICH GRADE HE WAS ADVANCED ON MARCH 5, 1959, UNDER 10 U.S.C. 6151, AND THE JUDGMENT HAVING BECOME FINAL AND THE ISSUES RES JUDICATA THE OFFICER MAY BE PAID RETIRED PAY BEGINNING NOVEMBER 8, 1962, BASED ON THE GRADE OF CAPTAIN AND COMPUTED IN ACCORDANCE WITH B-130465, DATED APRIL 2, 1957. 39 COMP. GEN. 324, OVERRULED.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, MARCH 27, 1963:

BY FIRST INDORSEMENT OF FEBRUARY 1, 1963, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF JANUARY 23, 1963, CDH/JR., REQUESTING THAT A DECISION BE RENDERED AS TO WHETHER RETIRED PAY BASED ON THE GRADE OF CAPTAIN AND COMPUTED IN ACCORDANCE WITH DECISION OF APRIL 2, 1957, B- 130465, IS PAYABLE TO WILLIAM A. STEIMER AFTER THE DATE OF THE JUDGMENT OF THE COURT OF CLAIMS IN HIS CASE (WILLIAM A. STEIMER V. UNITED STATES, CT.CL.NO. 111-61, DECIDED NOVEMBER 7, 1962). THE REQUEST FOR DECISION HAS BEEN ASSIGNED NO. DO-MC-692 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ACT OF JULY 24, 1956, CH. 683, 70 STAT. 626, 10 U.S.C. 6330 NOTE, PROVIDES---

THAT UPON APPLICATION BY ANY FORMER MEMBER OF THE NAVY OR MARINE CORPS---

(1) WHO WAS DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND

(2) WHO, AT THE TIME OF HIS DISCHARGE, HAD AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE, THE SECRETARY OF THE NAVY SHALL APPOINT SUCH FORMER MEMBER IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AS MAY BE APPROPRIATE, IN THE RANK HELD BY HIM AT THE TIME OF SUCH DISCHARGE.

SEC. 2. EACH PERSON APPOINTED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER THE FIRST SECTION OF THIS ACT SHALL BE TRANSFERRED TO THE APPROPRIATE RETIRED LIST (1) ON THE FIRST DAY OF THE FIRST CALENDAR MONTH BEGINNING AFTER SUCH APPOINTMENT, IF HIS LAST DISCHARGE OCCURRED TEN OR MORE YEARS PRIOR TO THE DATE OF SUCH APPOINTMENT, AND (2) IN THE CASE OF INDIVIDUALS APPOINTED UNDER SUCH SECTION BEFORE THE EXPIRATION OF TEN YEARS FROM THEIR LAST DISCHARGE, ON THE FIRST DAY OF THE FIRST CALENDAR MONTH, BEGINNING AFTER THE EXPIRATION OF TEN YEARS FROM THE DATE OF SUCH DISCHARGE.

SEC. 3. EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSES (1) AND (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE, MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE FEDERAL SERVICE AT SUCH TIME (NOT TO EXCEED THIRTY), AND ADJUSTED TO REFLECT THE PERCENTAGE INCREASES MADE SINCE SUCH DISCHARGE IN THE RETIRED PAY OF PERSONS RETIRED FROM THE ARMED FORCES PRIOR TO OCTOBER 12, 1949.

SEC. 4. FOR THE PURPOSES OF THIS ACT, ALL ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF, SHALL BE DEEMED TO BE ACTIVE FEDERAL SERVICE.

SEC. 5. NO PAY SHALL ACCRUE TO THE BENEFIT OF ANY PERSON APPOINTED UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE DATE SUCH PERSON IS ACTUALLY APPOINTED UNDER THE PROVISIONS OF THIS ACT AND IN NO EVENT PRIOR TO THE FIRST DAY OF THE FIRST MONTH FOLLOWING ENACTMENT OF THIS ACT.

THE RECORDS SHOW THAT WILLIAM A. STEIMER ENLISTED IN THE MARINE CORPS ON MARCH 7, 1924, AND THAT ON AUGUST 11, 1943, WHILE HOLDING PERMANENT ENLISTED STATUS BUT SERVING UNDER A TEMPORARY APPOINTMENT IN THE GRADE OF FIRST LIEUTENANT, HE ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER (PAY CLERK). HE WAS NOT FORMALLY DISCHARGED FROM HIS ENLISTED STATUS AT THE TIME HE ACCEPTED SUCH PERMANENT APPOINTMENT, BUT ON MARCH 20, 1944, THE COMMANDANT OF THE MARINE CORPS DIRECTED STEIMER'S COMMANDING OFFICER TO DISCHARGE HIS HONORABLY AS OF THE DATE PRIOR TO HIS ACCEPTANCE OF THE PERMANENT APPOINTMENT. HE WAS SO "DISCHARGED" ON APRIL 15, 1944. HE WAS TEMPORARILY APPOINTED TO THE GRADE OF CAPTAIN IN THE MARINE CORPS ON AUGUST 1, 1944, AND HE SERVED ON ACTIVE DUTY AS A CAPTAIN UNTIL JUNE 20, 1945, THE EFFECTIVE DATE OF HIS RESIGNATION UNDER HONORABLE CONDITIONS.

AT THAT TIME HE HAD COMPLETED 21 YEARS, 3 MONTHS AND 5 DAYS OF ACTIVE FEDERAL SERVICE, ALL OF WHICH HAD BEEN PERFORMED AS A MEMBER OF THE REGULAR MARINE CORPS.

ON OCTOBER 10, 1958, HE APPLIED FOR APPOINTMENT TO THE FLEET MARINE CORPS RESERVE AND RETIREMENT UNDER THE ACT OF JULY 24, 1956. ON DECEMBER 23, 1958, THE ASSISTANT SECRETARY OF THE NAVY APPOINTED HIM TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF MASTER SERGEANT AS OF NOVEMBER 30, 1958, AND EFFECTIVE DECEMBER 1, 1958, PLACED HIM ON THE RETIRED LIST OF ENLISTED MEN OF THE MARINE CORPS. ON MARCH 5, 1959, HE WAS ADVANCED, UNDER THE PROVISIONS OF 10 U.S.C. 6151, TO THE GRADE OF CAPTAIN,"EFFECTIVE 1 DECEMBER 1958," THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY.

IN OUR DECISION OF OCTOBER 29, 1959, B-140372, 39 COMP. GEN. 324, 328, IN THIS CASE, WE STATED THAT WHILE THE TERM "FORMER MEMBER" OF THE NAVY OR MARINE CORPS, AS USED IN THE ACT OF JULY 24, 1956, COULD BE LITERALLY CONSTRUED TO INCLUDE EITHER OFFICER OR ENLISTED MAN, IT SEEMED TO US THAT THE USE OF THE TERM "DISCHARGE" THROUGHOUT THE ACT, COUPLED WITH ITS LEGISLATIVE HISTORY, CONTEMPLATED THAT THE FORMER MEMBER HAVE AN ENLISTED STATUS "AT THE TIME OF HIS DISCHARGE" AND THAT HE HAVE AT THAT TIME "AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE.' WE ALSO STATED THERE THAT IT WAS OUR VIEW THAT A RESIGNATION OF A COMMISSION BY AN OFFICER IS NOT A "DISCHARGE" WITHIN THE MEANING OF THE 1956 ACT FOR THE PURPOSES OF APPOINTING SUCH A MEMBER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE.

SINCE WE CONSIDERED THAT STEIMER'S PERMANENT ENLISTED STATUS TERMINATED ON AUGUST 11, 1943, THE DATE OF HIS ACCEPTANCE OF HIS PERMANENT APPOINTMENT AS WARRANT OFFICER, AT WHICH TIME HE HAD NOT COMPLETED 20 YEARS OF ACTIVE FEDERAL SERVICE, WE CONCLUDED THAT HIS CASE DID NOT FALL WITHIN THE PURVIEW OF THE ACT OF JULY 24, 1956, FOR THE PURPOSES OF APPOINTING HIM TO THE FLEET MARINE CORPS RESERVE AND SUBSEQUENT TRANSFER TO THE RETIRED LIST. SUBSEQUENTLY, ON MAY 4, 1960, THE SECRETARY OF THE NAVY REVOKED STEIMER'S APPOINTMENT TO THE FLEET MARINE CORPS RESERVE, HIS TRANSFER TO THE RETIRED LIST, AND HIS ADVANCEMENT TO THE GRADE OF CAPTAIN.

THE COURT OF CLAIMS DECIDED ON NOVEMBER 7, 1962, IN STEIMER'S CASE THAT THOSE FORMER MEMBERS OF THE NAVY AND THE MARINE CORPS WHO HAVE HAD SUCCESSIVE TOURS OF ACTIVE DUTY, TOTALING 20 YEARS OR MORE, AND WHO ARE OTHERWISE QUALIFIED, ARE ENTITLED TO RECEIVE THE BENEFITS OF THE ACT OF JULY 24, 1956, AND THAT ALTHOUGH THE PLAINTIFF HAD NOT COMPLETED 20 YEARS OF ACTIVE SERVICE AT THE TIME OF HIS DISCHARGE AS AN ENLISTED MAN, HE WAS NOT PRECLUDED FROM RECEIVING THE BENEFITS OF THAT ACT, BECAUSE, WHILE SERVING AS AN OFFICER IN A SUBSEQUENT TOUR OF ACTIVE DUTY, HE DID COMPLETE OVER 20 YEARS OF ACTIVE SERVICE. THE COURT CONCLUDED THAT THE PLAINTIFF'S RESIGNATION AS A COMMISSIONED OFFICER, EFFECTIVE JUNE 20, 1945, WAS TO BE CONSIDERED A DISCHARGE UNDER THE TERMS OF THE 1956 ACT, AND IN EFFECT HELD THAT HIS APPOINTMENT TO THE FLEET MARINE CORPS RESERVE AND HIS TRANSFER TO THE RETIRED LIST WERE WITHIN THE SCOPE OF THAT ACT AND THAT HIS SUBSEQUENT ADVANCEMENT TO THE GRADE OF CAPTAIN WAS PROPER, THUS ENTITLING HIM TO RECOVER RETIRED PAY BASED ON THE GRADE OF MASTER SERGEANT FOR THE PERIOD FROM DECEMBER 1, 1958, TO MARCH 4, 1959, AND RETIRED PAY BASED ON THE GRADE OF CAPTAIN FOR THE PERIOD FROM MARCH 5, 1959, THROUGH THE DATE OF JUDGMENT (NOVEMBER 7, 1962).

THE JUDGMENT IN FAVOR OF STEIMER HAS BECOME FINAL AND ALL OF THE POINTS PLACED IN ISSUE IN HIS CASE HAVE, IN EFFECT, AND FOR PRACTICAL PURPOSES, BECOME RES JUDICATA. IN VIEW OF THAT DECISION, IT IS OUR VIEW THAT THE SECRETARY'S ACTION OF MAY 4, 1960, MAY BE CONSIDERED AS INEFFECTIVE TO REVOKE STEIMER'S APPOINTMENT TO THE FLEET MARINE CORPS RESERVE, HIS TRANSFER TO THE RETIRED LIST, AND HIS ADVANCEMENT TO THE GRADE OF CAPTAIN. ACCORDINGLY, YOU ARE AUTHORIZED TO PAY HIM RETIRED PAY FOR THE PERIOD BEGINNING NOVEMBER 8, 1962, SUCH PAY TO BE BASED ON THE GRADE OF CAPTAIN AND COMPUTED IN ACCORDANCE WITH OUR DECISION OF APRIL 2, 1957, B- 130465.

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