B-116618, NOVEMBER 18, 1953, 33 COMP. GEN. 225

B-116618, NOVEMBER 18, 1953, 33 COMP. GEN. 225

PAY - RETIRED, RETAINER - COMPUTATION - ACTIVE SERVICE AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE - FRACTIONAL YEAR SERVICE IN DETERMINING THE NUMBER OF YEARS OF ACTIVE SERVICE TO BE CREDITED UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, IN COMPUTING THE RETIRED OR RETAINER PAY OF RETIRED OR FLEET NAVAL RESERVE PERSONNEL FOLLOWING TOURS OF ACTIVE DUTY, THE ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER TO THE FLEET RESERVE SHOULD BE ADDED TO THE AMOUNT OF ACTUAL CREDITABLE SERVICE AT THE TIME OF RETIREMENT OR TRANSFER AND ANY FRACTION OF ONE-HALF YEAR OR MORE APPEARING IN SUCH TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR OF SERVICE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, NOVEMBER 18, 1953:

REFERENCE IS MADE TO LETTER OF AUGUST 12, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, FORWARDING A LETTER FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, WITH ENDORSEMENTS, AND REQUESTING DECISION ON QUESTIONS PRESENTED THEREIN. THE QUESTIONS CONCERN THE METHOD OF DETERMINING THE NUMBER OF YEARS OF ACTIVE SERVICE TO BE CREDITED UNDER THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, IN COMPUTING THE RETIRED OR RETAINER PAY OF RETIRED OR FLEET NAVAL RESERVE PERSONNEL FOLLOWING TOURS OF ACTIVE DUTY.

THE SAID SECTION 516 READS, IN PART, AS FOLLOWS:

* * * MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES, INCLUDING MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, WHO HAVE BEEN, OR MAY HEREAFTER BE, RETIRED OR TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY COMPUTED UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT, SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS HEREINAFTER LISTED, TO RECEIVE INCREASES IN SUCH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE: PROVIDED, THAT THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH SUCH MEMBER OR FORMER MEMBER SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY SHALL BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY AT THE TIME OF HIS RETIREMENT OR TRANSFER PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM, AND BY MULTIPLYING THE PRODUCT THUS OBTAINED BY THE BASE AND LONGEVITY OR THE BASIC PAY, AS THE CASE MAY BE, OF THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED OR TRANSFERRED EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON OR A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE: PROVIDED, THAT FOR THE PURPOSE OF COMPUTING INCREASES IN RETIRED PAY, RETIREMENT PAY RETAINER PAY, OR EQUIVALENT PAY OF ANY MEMBER OR FORMER MEMBER, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER BY SUCH MEMBER OR FORMER MEMBER SHALL BE COUNTED AS A WHOLE YEAR: * * *.

IT IS STATED THAT THE ACTIVE SERVICE REFERRED TO IN THE REQUEST FOR DECISION HAS REFERENCE TO THE ACTIVE SERVICE TO BE MULTIPLIED BY 2 1/2 PERCENTUM AS PROVIDED BY THE ABOVE-QUOTED SECTION AND THAT DOUBT ARISES AS TO THE PROPER METHOD OF COMPUTING THE NUMBER OF WHOLE YEARS OF ACTIVE SERVICE UNDER THE SECOND PROVISO OF THE SECTION IN THE CASES SET FORTH IN THE LETTER.

THE FIRST CASE PRESENTED CONCERNS A MEMBER WHO INITIALLY WAS TRANSFERRED TO THE FLEET NAVAL RESERVE, EFFECTIVE AUGUST 2, 1947, UPON COMPLETION OF 22 YEARS, 10 MONTHS AND 18 DAYS OF ACTIVE SERVICE. HE WAS RECALLED TO ACTIVE DUTY SEPTEMBER 25, 1950, AND RELEASED TO INACTIVE DUTY SEPTEMBER 19, 1952, HAVING PERFORMED ONE YEAR, 11 MONTHS AND 24 DAYS OF ACTIVE DUTY DURING SUCH PERIOD. IT IS STATED THAT PRIOR TO RECALL THE MEMBER'S RETAINER PAY ACCOUNT HAD BEEN ADJUSTED IN ACCORDANCE WITH SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND HE WAS BEING CREDITED WITH RETAINER PAY ON THE BASIS OF 23 YEARS OF ACTIVE SERVICE, THAT SECTION PROVIDING THAT FOR THE PURPOSE OF COMPUTATION OF RETIRED OR RETAINER PAY UNDER METHOD (B) OF THE SECTION FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR.

IN DECISION OF OCTOBER 8, 1941, 21 COMP. GEN. 301, THERE WAS CONSIDERED LANGUAGE IN SECTION 17 OF THE JOINT SERVICE PAY ACT OF 1922, AS AMENDED, 55 STAT. 263, SOMEWHAT SIMILAR TO THAT CONTAINED IN THE SECOND PROVISO OF SECTION 516, ABOVE. IT WAS STATED IN THAT DECISION THAT:

* * * AS A CONDITION PRECEDENT TO THE STATUTE BECOMING OPERATIVE AS TO A PARTICULAR OFFICER, HE MUST HAVE BEEN ASSIGNED TO ACTIVE DUTY SUBSEQUENT TO THE DATE OF HIS RETIREMENT. THE PRACTICAL EFFECT THEN IS TO ADD THE COMMISSIONED SERVICE PERFORMED SUBSEQUENT TO RETIREMENT, TO THE COMMISSIONED SERVICE PERFORMED PRIOR TO RETIREMENT, AND INCLUDE IN THE COMPUTATION OF THE PERCENTAGE INCREASE OF THEIR RETIRED PAY, ALL ACTIVE SERVICE PERFORMED EITHER BEFORE OR AFTER RETIREMENT, AND A FRACTIONAL YEAR OF 6 MONTHS OR MORE, OF SUCH TOTAL SERVICE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS. * * *

THAT METHOD OF COMPUTATION WAS APPLIED IN DECISION OF OCTOBER 3, 1952, 32 COMP. GEN. 159, WITH RESPECT TO COUNTING ACTIVE SERVICE AFTER TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST AS AUTHORIZED BY SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 60 STAT. 994, SUCH SECTION ALSO PROVIDING THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR THE PURPOSES THEREIN SPECIFIED.

THE PROVISIONS OF SECTION 17 OF THE 1922 ACT, AS AMENDED, WERE SUPERSEDED BY SIMILAR PROVISIONS IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AND SUCH PROVISIONS OF THE 1942 ACT NOW HAVE BEEN SUPERSEDED BY THE PROVISIONS OF SECTION 516 OF THE 1949 ACT.

THERE IS DOUBT WHETHER THE SECOND PROVISO OF SECTION 516 MAY BE GIVEN THE SAME APPLICATION AS ITS PREDECESSOR PROVISIONS BECAUSE THE LANGUAGE MAY BE READ AS INTENDING THAT ONLY FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE DUTY PERFORMED "SUBSEQUENT" TO RETIREMENT OR TRANSFER TO THE FLEET RESERVE SHALL BE COUNTED AS A WHOLE YEAR, WITHOUT REGARD TO ANY FRACTION OF A YEAR INVOLVED IN TOTAL ACTIVE SERVICE PRIOR TO RETIREMENT OR TRANSFER.

NOTWITHSTANDING THE USE OF THE PHRASE "SUBSEQUENT TO RETIREMENT OR TRANSFER" IN THE SAID SECOND PROVISO OF SECTION 516, THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE SECTION OF ANY INTENTION TO CHANGE THE METHOD IN EFFECT UNDER THE PRIOR STATUTES OF COMPUTING FRACTIONAL YEARS OF SERVICE IN CASES WHERE ACTIVE DUTY HAS BEEN PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER TO THE FLEET RESERVE. IT IS UNDERSTOOD THAT BOTH THE ARMY AND THE AIR FORCE HAVE CONTINUED WITHOUT QUESTION TO APPLY SUCH PREVIOUS METHOD IN COMPUTING SERVICE UNDER SECTION 516. AND IN VIEW OF THE INEQUITIES, IF NOT SEEMING ABSURDITIES, WHICH WOULD RESULT FROM DISREGARDING FRACTIONAL YEARS OF PRIOR SERVICE, THE CONCLUSION IS REASONABLY WARRANTED, IN RESOLVING THE DOUBT THAT THE CONGRESS DID NOT INTEND ANY SUCH CHANGE, BUT INTENDED BY THE SECOND PROVISO THAT "FRACTIONS OF ONE-HALF YEAR OR MORE" RESULTING FROM THE ADDITION "OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER" TO PRIOR SERVICE, AS REQUIRED BY THE PRECEDING PROVISO, SHOULD BE COUNTED AS A WHOLE YEAR.

HENCE, IN REESTABLISHING RETIRED AND RETAINER PAY ACCOUNTS SUBSEQUENT TO TOURS OF ACTIVE DUTY, THE ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER SHOULD BE ADDED TO THE AMOUNT OF ACTUAL CREDITABLE SERVICE AT THE TIME OF RETIREMENT OR TRANSFER AND ANY FRACTION OF ONE-HALF YEAR OR MORE APPEARING IN SUCH TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR OF SERVICE. THE MEMBER INVOLVED IN THE FIRST CASE HAS TOTAL ACTIVE SERVICE OF 24 YEARS, 10 MONTHS AND 12 DAYS, INCLUDING HIS ACTIVE SERVICE SUBSEQUENT TO TRANSFER TO THE FLEET NAVAL RESERVE AND SINCE THE FRACTIONAL YEAR IS MORE THAN ONE-HALF HE IS ENTITLED TO HAVE HIS RETAINER PAY COMPUTED ON THE BASIS OF 25 YEARS OF SERVICE.

IT IS BELIEVED THAT THE DISCUSSION AND THE STATEMENT OF PRINCIPLE SET FORTH ABOVE WILL ENABLE THE FIELD BRANCH PROPERLY TO REESTABLISH THE ACCOUNTS IN THE OTHER CASES PRESENTED.