B-109748, OCTOBER 3, 1952, 32 COMP. GEN. 159

B-109748, OCTOBER 3, 1952, 32 COMP. GEN. 159

PAY - RETAINER; RETIRED - CREDIT FOR ACTIVE SERVICE AFTER TRANSFER TO THE FLEET RESERVE UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, ENLISTED MEN OF THE NAVY AND MARINE CORPS WHO TRANSFERRED TO THE RESPECTIVE FLEET RESERVE COMPONENTS AFTER COMPLETING MORE THAN 16 YEARS OF TOTAL SERVICE AND WHO THEREAFTER PERFORMED ACTIVE DUTY WHICH WHEN ADDED TO PRIOR SERVICE EQUALED 20 OR MORE YEARS OF SERVICE ARE ENTITLED, UPON SUBSEQUENT RELEASE FROM ACTIVE SERVICE, TO RETAINER OR RETIRED PAY COMPUTED ON THE SAME BASIS AS MEMBERS WHO ORIGINALLY TRANSFERRED TO THE SAID RESERVE AFTER THE COMPLETION OF 20 OR MORE YEARS OF SERVICE. 26 COMP. GEN. 804, MODIFIED. WHILE SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, AUTHORIZES THE COUNTING OF AN ENLISTED MAN'S ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE OR THE RETIRED LIST FOR THE PURPOSE OF INCREASING RETAINER OR RETIRED PAY FOR EXTRAORDINARY HEROISM, NO REFERENCE IS MADE TO SUCH AN INCREASE FOR GOOD CONDUCT AND THEREFORE, ACTIVE DUTY PERFORMED AFTER A TRANSFER TO THE FLEET RESERVE MAY NOT BE USED TO INCREASE AN ENLISTED MEMBER'S RETAINER OR RETIRED PAY FOR GOOD CONDUCT. THE PROVISION IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, WHICH AUTHORIZES THE RECOMPUTATION OF RETAINER OR RETIRED PAY OF MEMBERS OF THE FLEET RESERVE ON THE BASIS OF ACTIVE DUTY PERFORMED SUBSEQUENT TO JULY 1, 1925, WHILE EXTENDED TO RESERVISTS WHO RETURNED TO INACTIVE STATUS PRIOR TO THE ENACTMENT OF THE 1946 ACT, IS TO BE REGARDED, IN VIEW OF THE PROVISO THERETO, AS LIMITED TO ACTIVE DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT UNDER WHICH RESERVISTS MAY BE CALLED TO ACTIVE DUTY WITHOUT THEIR CONSENT. IN COMPUTING THE LENGTH OF SERVICE FOR RETAINER OR RETIRED PAY PURPOSES, UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10, 1946, THE ACTIVE SERVICE PERFORMED BY AN ENLISTED MAN SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE MAY BE ADDED TO THE SERVICE CREDITED PRIOR TO THE TRANSFER, AND SIX MONTHS OR MORE OF SERVICE IS TO BE CONSIDERED A FULL YEAR IN COMPUTING SAID RETAINER OR RETIRED PAY. UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY THE ACT OF AUGUST 10, 1946, AN ENLISTED MAN WITH OVER 16 BUT LESS THAN 20 YEARS OF NAVAL SERVICE WHO TRANSFERRED TO THE FLEET RESERVE PRIOR TO THE EFFECTIVE DATE OF THE 1946 ACT AND WHO IS OTHERWISE ELIGIBLE UNDER THE ACT FOR THE RETAINER OR RETIRED PAY PROVIDED FOR SUCH TRANSFEREES WITH 20 YEARS TOTAL NAVAL SERVICE IS ENTITLED TO COUNT SIX MONTHS OR MORE OF SERVICE AS A FULL YEAR FOR LONGEVITY PAY PURPOSES IN COMPUTING SAID RETAINER OR RETIRED PAY, PROVIDED THE FRACTIONAL PART OF THE YEAR IS COMPOSED OF SERVICE WHICH OTHERWISE IS CREDITABLE FOR LONGEVITY PAY PURPOSES. MEMBERS OF THE FLEET RESERVE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, WHO ELECTED TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, AND WHO UNDER A RECENT COURT DECISION WOULD BE ENTITLED TO MORE ADVANTAGEOUS BENEFITS UNDER SECTION 511 OF THE ACT, MAY ELECT NOW TO QUALIFY FOR RETIRED PAY UNDER SAID SECTION 511.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY OCTOBER 3, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1952, WITH ENCLOSURE, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS ARISING OUT OF THE DECISION BY THE COURT OF CLAIMS IN THE CASE OF SANDERS V. UNITED STATES, 120 C.1CLS. 501.

IN THE SAID DECISION THE COURT HELD THAT UNDER THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 50 STAT. 994, AN ENLISTED MAN OF THE NAVY WHO TRANSFERRED TO THE FLEET RESERVE AFTER COMPLETING MORE THAN 16 YEARS' TOTAL NAVAL SERVICE AND THEREAFTER PERFORMED ACTIVE DUTY WHICH, WHEN ADDED TO HIS PRIOR SERVICE, EQUALED 20 OR MORE YEARS' SERVICE WAS, UPON HIS SUBSEQUENT RELEASE FROM ACTIVE SERVICE, ENTITLED TO HAVE HIS RETAINER OR RETIRED PAY COMPUTED ON THE SAME BASIS AS AN ENLISTED MAN WHO ORIGINALLY TRANSFERRED TO THE FLEET RESERVE AFTER THE COMPLETION OF 20 OR MORE YEARS' SERVICE, INCLUDING, INTER ALIA, THE TEN PERCENT INCREASE IN SUCH PAY FOR GOOD CONDUCT.

IN DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 809, ANSWER TO QUESTION (E), THIS OFFICE PREVIOUSLY HAD REACHED A CONTRARY CONCLUSION AND YOUR FIRST QUESTION IS WHETHER THE DECISION IN THE SANDERS CASE MAY BE APPLIED IN WHOLE OR IN PART IN THE CURRENT ADJUSTMENT OF RETAINER PAY AND RETIRED PAY ACCOUNTS OF MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE.

WHILE THIS OFFICE HAS NO OBJECTION TO FOLLOWING THE COURT'S CONCLUSION IN THE SANDERS CASE TO THE EXTENT CREDIT WAS ALLOWED FOR ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE SO AS TO PERMIT A MEMBER OF THE FLEET RESERVE, WHO TRANSFERRED THERETO AFTER THE COMPLETION OF MORE THAN SIXTEEN YEARS' NAVAL SERVICE TO HAVE HIS RETAINER PAY OR RETIRED PAY COMPUTED ON THE SAME BASIS AS A MEMBER WHO ORIGINALLY TRANSFERRED THERETO AFTER THE COMPLETION OF TWENTY YEARS' NAVAL SERVICE, IT DOES NOT APPEAR THAT THE COURT WAS CORRECT IN ALLOWING, IN ADDITION THERETO, THE TEN PERCENT ADDITIONAL PAY FOR GOOD CONDUCT.

THE COURT'S CONCLUSION WAS BASED SOLELY ON THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, WHICH READS AS FOLLOWS:

WHENEVER ENLISTED MEN OF THE FLEET RESERVE, TRANSFERRED THERETO AFTER MORE THAN 16 YEARS' SERVICE, OR ENLISTED MEN TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206 OF THIS TITLE, SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN INACTIVE-DUTY STATUS, AND IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE **PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM: PROVIDED, THAT SUCH PAY SHALL NOT EXCEED 75 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE HIGHEST RATING TO WHICH ENTITLED UNDER THE PROVISIONS OF THIS SECTION: PROVIDED FURTHER, THAT ACTIVE DUTY SHALL BE CONSIDERED FOR THE PURPOSE OF THIS SECTION AS NOT BEING ACTIVE DUTY IN TIME OF PEACE REQUIRED BY SECTION 206: PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS SECTION SHALL OPERATE TO REDUCE THE RETAINER OR RETIRED PAY AND ALLOWANCES TO WHICH ANY ENLISTED MAN WOULD OTHERWISE HAVE BEEN ENTITLED: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY: AND PROVIDED FURTHER, THAT PERSONS OF THE CLASSES DESCRIBED IN THIS SECTION WHO HAVE BEEN RETIRED OR RETURNED TO AN INACTIVE DUTY STATUS PRIOR TO THE DATE OF APPROVAL OF THIS SECTION SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RETURN TO AN INACTIVE DUTY STATUS.

THAT SECTION, WHICH MAKES PROVISION FOR COUNTING ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE OR THE RETIRED LIST FOR THE *PURPOSE OF INCREASING RETAINER PAY AND RETIRED PAY, EXPRESSLY AUTHORIZES THE COUNTING OF SUCH ACTIVE DUTY FOR THE PURPOSE OF INCREASING RETAINER PAY OR RETIRED PAY BY TEN PERCENT FOR EXTRAORDINARY HEROISM BUT NO MENTION IS MADE THEREIN REGARDING SUCH AN INCREASE FOR GOOD CONDUCT. UNDER THE RULE OF EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, THE CONCLUSION IS REQUIRED THAT SUCH ACTIVE DUTY AFTER TRANSFER COULD NOT BE COUNTED FOR THE PURPOSE OF INCREASING RETAINER PAY OR RETIRED PAY BY TEN PERCENT FOR GOOD CONDUCT. ACCORDINGLY, THIS OFFICE WILL RAISE NO OBJECTION TO THE OTHERWISE PROPER CURRENT ADJUSTMENT OF THE RETAINER PAY AND RETIRED PAY ACCOUNTS OF MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE ON THE BASIS OF THE SANDERS DECISION PROVIDED THAT SUCH ADJUSTMENTS DO NOT INCLUDE ANY INCREASE IN SUCH PAY FOR GOOD CONDUCT.

YOUR SECOND QUESTION IS WHETHER ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE BUT PRIOR TO SEPTEMBER 8, 1939--- THE DATE A NATIONAL EMERGENCY WAS PROCLAIMED TO EXIST--- MAY BE INCLUDED IN DETERMINING ELIGIBILITY FOR AN ADJUSTMENT IN RETAINER PAY OR RETIRED PAY UNDER THE SANDERS DECISION.

THIS QUESTION IS ANSWERED IN THE NEGATIVE. SEE DECISION OF APRIL 24, 1947, SUPRA, ANSWER TO QUESTION (1), 26 COMP. GEN. 804, 813.

THE THIRD QUESTION IS WHETHER AN ENLISTED MAN TRANSFERRED TO THE FLEET RESERVE UPON THE COMPLETION OF A MINIMUM OF 16 YEARS AND 1 DAY'S TOTAL NAVAL SERVICE, I.E., SERVICE CREDITABLE IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE, IS ENTITLED TO AN ADJUSTMENT IN HIS RETAINER PAY OR RETIRED PAY UNDER THE SANDERS DECISION IF CREDITABLE ACTIVE DUTY PERFORMED AFTER TRANSFER WHEN ADDED TO SUCH TOTAL NAVAL SERVICE EQUALS (A), 19 YEARS AND 6 MONTHS, OR (B), 20 YEARS.

SECTION 208 PROVIDES THAT FOR THE PURPOSES OF THAT SECTION A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY. AS A CONDITION PRECEDENT TO THE STATUTE BECOMING OPERATIVE AS TO A PARTICULAR MEMBER, HE MUST HAVE BEEN ASSIGNED TO ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY SUBSEQUENT TO HIS TRANSFER TO THE FLEET RESERVE. THE PRACTICAL EFFECT THEN IS TO ADD THE ACTIVE SERVICE PERFORMED SUBSEQUENT TO SUCH TRANSFER TO THE SERVICE CREDITED TO HIM PRIOR TO SUCH TRANSFER AND ANY FRACTIONAL YEAR OF SIX MONTHS OR MORE APPEARING IN SUCH TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR'S SERVICE. COMPARE 21 COMP. GEN. 301. ACCORDINGLY, A MEMBER WOULD BE ENTITLED TO AN ADJUSTMENT IN HIS RETAINER PAY OR RETIRED PAY AS INDICATED ABOVE IF CREDITABLE ACTIVE DUTY AFTER TRANSFER WHEN ADDED TO THE SERVICE CREDITED TO HIM PRIOR TO TRANSFER EQUALS 19 YEARS AND 6 MONTHS-, OR MORE, SERVICE.

THE FOURTH QUESTION IS WHETHER ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1946, WITH OVER 16 BUT LESS THAN 20 YEARS' TOTAL NAVAL SERVICE WHO QUALIFY UNDER THE SANDERS DECISION ARE ENTITLED TO COUNT A FRACTIONAL YEAR OF SIX MONTHS OR MORE OF ACTIVE DUTY AS A FULL YEAR FOR LONGEVITY PAY PURPOSES IN COMPUTING RETAINER PAY OR RETIRED PAY. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE PROVIDED THAT THE ENTIRE FRACTIONAL YEAR OF SIX MONTHS OR MORE ACTUALLY IS COMPOSED OF SERVICE WHICH OTHERWISE IS CREDITABLE FOR LONGEVITY PAY PURPOSES. SEE THE ANSWER TO THE THIRD QUESTION.

YOUR FIFTH AND LAST QUESTION IS WHETHER MEMBERS OF THE FLEET RESERVE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, WHO ELECTED TO QUALIFY FOR DISABILITY RETIREMENT PAY RIGHTS UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 820, MAY NOW EXECUTE AN ELECTION TO QUALIFY UNDER SECTION 511 OF THAT ACT IF, IN VIEW OF THE SANDERS DECISION, THEY WOULD RECEIVE GREATER RETIRED PAY UNDER THAT SECTION.

IN VIEW OF THE UNCERTAINTY THAT EXISTED AS TO WHAT EFFECT THE SANDERS DECISION WOULD HAVE GENERALLY ON RETIRED PAY, IT IS EVIDENT THAT AT THE TIME SUCH ELECTIONS WERE MADE THE MEMBERS IN QUESTION COULD NOT PROPERLY BE ADVISED AS TO THEIR RIGHTS. AND, NOT HAVING BEEN GIVEN THE ELECTION TO WHICH IT NOW DEVELOPS THEY WERE ENTITLED, IT APPEARS THEY SHOULD NOW BE ADVISED OF THEIR RIGHTS IN THAT CONNECTION AND BE GIVEN AN OPPORTUNITY TO MAKE SUCH AN ELECTION. CF. DECISION DATED AUGUST 30, 1951, B-103324. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.