B-126842, MAY 22, 1956, 35 COMP. GEN. 657

B-126842, MAY 22, 1956, 35 COMP. GEN. 657

PAY - RETIRED - FLEET RESERVE - EFFECTIVE DATE - PAY COMPUTATION - DUAL EMPLOYMENT PROHIBITION MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE WHO ARE QUALIFIED FOR PLACEMENT ON THE RETIRED LIST ON THE BASIS OF SERVICE UNDER A TEMPORARY APPOINTMENT IN A COMMISSIONED GRADE, PURSUANT TO SECTION 2 (A) OF THE ACT OF AUGUST 9, 1955, ARE ENTITLED TO RETIREMENT PAY FROM SEPTEMBER 1, 1955, WHICH, IN ACCORDANCE WITH THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, IS THE FIRST DAY OF THE MONTH FOLLOWING AUGUST 9, 1955, THE DATE RETIREMENT UNDER THE ACT BECAME EFFECTIVE. ALTHOUGH ACTIVE SERVICE PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE IS CREDITABLE IN DETERMINING THE ACTIVE DUTY PAY FOR COMPUTATION OF RETIRED PAY UNDER SECTION 2 (A) OF THE ACT OF AUGUST 9, 1955, SUCH SERVICE MAY BE USED IN DETERMINING THE PERCENTAGE MULTIPLE FOR RETIRED PAY COMPUTATIONS. MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE WHO WERE SERVING ON ACTIVE DUTY ON SEPTEMBER 1, 1955, WHEN TRANSFERRED TO THE RETIRED LIST OF THE NAVY, UNDER THE ACT OF AUGUST 9, 1955, ARE ENTITLED TO INCLUDE, WHEN SUBSEQUENTLY RELEASED FROM ACTIVE DUTY, ALL ACTIVE SERVICE PERFORMED SUBSEQUENT TO SEPTEMBER 1, 1955, FOR LONGEVITY AND PERCENTAGE MULTIPLE PURPOSES IN COMPUTATION OF RETIRED PAY UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949. MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE WHO HAD PERMANENT ENLISTED STATUS BUT WHO HAVE BEEN PLACED ON THE RETIRED LIST ON THE BASIS OF SERVICE IN A TEMPORARY COMMISSIONED GRADE PURSUANT TO SECTION 2 (A) OF THE ACT OF AUGUST 9, 1955, AND MEMBERS PLACED ON THE NAVY RETIRED LIST IN OFFICER STATUS PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, ARE NO LONGER IN AN ENLISTED STATUS WITHIN THE EXEMPTION IN THE DUAL EMPLOYMENT STATUTE OF 1894 (5 U.S. CODE 62) AND ARE, THEREFORE, SUBJECT TO ITS PROHIBITORY PROVISIONS.

TO THE SECRETARY OF THE NAVY, MAY 22, 1956:

REFERENCE IS MADE TO LETTER OF JANUARY 26, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) FORWARDING A LETTER DATED DECEMBER 8, 1955, FROM THE DISBURSING OFFICER, SPECIAL PAYMENTS DIVISION, NAVY FINANCE CENTER, REQUESTING DECISION ON SEVERAL QUESTIONS CONCERNING THE RETIRED STATUS AND PAY OF THOSE MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE WHO HAVE BEEN PLACED ON THE RETIRED LIST OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 (A), ACT OF AUGUST 9, 1955, 69 STAT. 615, 34 U.S.C. 410B NOTE.

PUBLIC LAW 318, 84TH CONGRESS, THE ACT OF AUGUST 9, 1955, CITED ABOVE, IS AS FOLLOWS:

THAT THE ACT OF FEBRUARY 21, 1946 (60 STAT. 26) AS AMENDED, IS FURTHER AMENDED BY---

(A) INSERTING IN SECTION 6 AFTER THE WORD "THEREOF" WHERE IT FIRST OCCURS A COMMA AND THE PHRASE "INCLUDING ANY MEMBER OF THE NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE WHOSE PERMANENT STATUS IS ENLISTED,; "

(B) ADDING AT THE END OF SECTION 6 THE FOLLOWING NEW SENTENCE: " AS USED IN THIS SECTION ,ACTIVE COMMISSIONED SERVICE" INCLUDES ALL ACTIVE SERVICE PERFORMED UNDER A TEMPORARY APPOINTMENT TO A COMMISSIONED GRADE, INCLUDING A COMMISSIONED WARRANT GRADE, BY AN OFFICER WHOSE PERMANENT STATUS IS ENLISTED,; " AND

(C) DELETING SECTION 7 (C).

SEC. 2. (A) ANY PERSON WHO, ON THE DATE OF ENACTMENT OF THIS ACT, IS A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND WHO PRIOR TO HIS TRANSFER THERETO---

(1) WAS SERVING UNDER A TEMPORARY APPOINTMENT IN A COMMISSIONED GRADE, AND

(2) HAD COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, ARMY, AIR FORCE, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE, MAY, IN THE DISCRETION OF THE PRESIDENT, BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK IN WHICH HE SERVED SATISFACTORILY BEFORE HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, IF APPLICATION THEREFOR IS MADE WITHIN NINETY DAYS AFTER THE ENACTMENT OF THIS ACT.

(B) ANY PERSON TRANSFERRED TO THE RETIRED LIST UNDER SUBSECTION (A) IS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY, WITH LONGEVITY CREDIT, OF THE GRADE IN WHICH HE IS PLACED ON THE RETIRED LIST, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS ACTIVE DUTY PAY AT THE TIME OF TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF THAT RANK. FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS OF SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED.

IT IS STATED THAT NOTICES AS TO THE ELIGIBILITY REQUIREMENTS, ETC., FOR RETIREMENT UNDER SECTION 2 (A) WERE MAILED ON OR ABOUT AUGUST 18, 1955, TO ALL FLEET RESERVISTS ENTITLED TO RETAINER PAY ON AUGUST 9, 1955, AND THAT A NUMBER OF APPLICATIONS WERE RECEIVED FOR RETIREMENT UNDER THE PROVISIONS OF THAT SECTION. IT WAS NECESSARY, IN ORDER TO PROPERLY PROCESS THESE APPLICATIONS, TO REVIEW EACH CASE INDIVIDUALLY WITH RESPECT TO THE COMPUTATION OF CREDITABLE SERVICE AND ALSO WITH RESPECT TO THE FITNESS REPORTS TO MAKE A DETERMINATION CONCERNING SATISFACTORY SERVICE IN A GIVEN RANK PRIOR TO TRANSMITTAL OF SUCH APPLICATIONS TO THE SECRETARY OF THE NAVY FOR HIS APPROVAL ACTION. IN ILLUSTRATION, IT IS POINTED OUT THAT THE APPLICATION OF LIEUTENANT (JG) FORREST ROBINSON, U.S. NAVY 1 ( RETIRED), WAS DATED AUGUST 15, 1955, BUT WAS NOT APPROVED UNTIL OCTOBER 26, 1955, DUE TO ADMINISTRATIVE DELAYS INHERENT TO THE PROCESSING PROCEDURES.

IN OUR DECISION DATED JULY 22, 1952, 32 COMP. GEN. 38, WE HELD (QUOTING THE SYLLABUS) THAT "A TEMPORARILY APPOINTED COMMISSIONED OFFICER OF THE REGULAR NAVY WHO RETAINS HIS PERMANENT ENLISTED STATUS AND WHO COMPLETES AT LEAST TEN YEARS OF ACTIVE COMMISSIONED SERVICE IS NOT TO BE REGARDED AS "AN OFFICER OF THE REGULAR NAVY" WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SO AS TO BE ENTITLED THEREUNDER TO RETIREMENT AFTER TWENTY YEARS OF ACTIVE SERVICE.'

THE EFFECT OF THAT DECISION WAS TO LIMIT TEMPORARY OFFICER PERSONNEL WITH PERMANENT ENLISTED STATUS IN THE NAVY TO THE BENEFITS PRESCRIBED IN THE PROVISIONS OF LAW APPLICABLE TO THEIR PERMANENT ENLISTED STATUS ONLY, I.E., TRANSFER IN THEIR ENLISTED STATUS TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WITH SUBSEQUENT FURTHER TRANSFER TO THE RETIRED LIST OF THE NAVY OR MARINE CORPS, UPON THE COMPLETION OF 30 YEARS' SERVICE, INCLUDING TIME IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE (34 U.S.C. 854-854G), PLUS ADVANCEMENT ON THE RETIRED LIST TO THEIR OFFICER RANK IF OTHERWISE ELIGIBLE FOR SUCH ADVANCEMENT UNDER OTHER PROVISIONS OF LAW. THE EXCLUSION OF TEMPORARY OFFICER PERSONNEL WITH PERMANENT ENLISTED STATUS IN THE NAVY FROM THE PRIVILEGE OF RETIRING IN THEIR OFFICER STATUS, I.E., AS "OFFICERS," AFTER 20 YEARS' SERVICE WAS CONSIDERED TO BE INEQUITABLE AND LED TO THE ENACTMENT OF PUBLIC LAW 318 TO OVERCOME THE HOLDING IN THE DECISION OF JULY 22, 1952.

PUBLIC LAW 318 WAS ENACTED AND BECAME EFFECTIVE ON AUGUST 9, 1955. UNDER THE PROVISIONS OF SECTION 1 OF THAT ACT, 34 U.S.C. 410B, TEMPORARY OFFICERS OF THE NAVAL SERVICE WITH PERMANENT ENLISTED STATUS WHO MEET THE PRESCRIBED REQUIREMENTS HAVE BEEN ENTITLED SINCE THAT DATE TO VOLUNTARY RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, AS AMENDED, 34 U.S.C. 410B. SECTION 2 (A) OF PUBLIC LAW 318 EXTENDS TO THOSE PERSONS WHO, ON AUGUST 9, 1955, WERE MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AND WHO, PRIOR THERETO, HAD SERVED UNDER A TEMPORARY APPOINTMENT IN A COMMISSIONED GRADE AND HAD COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE, AT LEAST TEN YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE, THE QUALIFIED RIGHT TO BE PLACED ON THE RETIRED LIST, AT THE PRESIDENT'S DISCRETION, IN THE HIGHEST RANK IN WHICH THEY SERVED SATISFACTORILY BEFORE THEIR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE "IF APPLICATION THEREFOR IS MADE WITHIN NINETY DAYS" AFTER AUGUST 9, 1955. THUS, THOSE PERSONS WHO, ON AUGUST 9, 1955, WERE MEMBERS OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE AND WHO ON THAT DATE MET THE CONDITIONS SPECIFIED IN SECTION 2 (A) OF PUBLIC LAW 318, ARE ACCORDED VOLUNTARY RETIREMENT PRIVILEGES WHICH CORRESPOND WITH THOSE GRANTED IN SECTION 1 OF THE ACT, EFFECTIVE FROM AND AFTER AUGUST 9, 1955, TO TEMPORARY OFFICER PERSONNEL WITH PERMANENT ENLISTED STATUS IN THE NAVY.

THE SEVERAL QUESTIONS SUBMITTED BY THE DISBURSING OFFICER ARE AS FOLLOWS:

A. WHETHER RETIRED PAY UNDER SECTION 2 (B) OF THE ACT OF 9 AUGUST 1955 MAY BE CREDITED (1) FROM DATE OF ENACTMENT OF PUBLIC LAW 318, (2) FROM 15 AUGUST 1955, DATE OF APPLICATION, (3) FROM 1 SEPTEMBER 1955, FIRST DAY OF MONTH FOLLOWING DATE OF APPLICATION, OR (4) FROM 26 OCTOBER 1955, DATE OF APPROVAL.

B. WHERE MEMBER WAS TRANSFERRED TO THE FLEET RESERVE AND SERVED ON ACTIVE DUTY SUBSEQUENT TO TRANSFER, MAY SUCH ACTIVE DUTY SUBSEQUENT TO TRANSFER BE CREDITED IN DETERMINING (1) LONGEVITY CREDIT OF THE RANK IN WHICH RETIRED AND (2) YEARS OF SERVICE CREDITED FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING RETIRED PAY.

C. IF RETIREMENT OF THE FLEET RESERVISTS IS EFFECTED UNDER THE ACT OF 9 AUGUST 1955 WHILE SERVING ON ACTIVE DUTY, IS HE ENTITLED UPON RELEASE TO INACTIVE DUTY TO CREDIT FOR ACTIVE SERVICE PERFORMED PRIOR AND/OR SUBSEQUENT TO RETIREMENT IN DETERMINING LONGEVITY CREDIT OF RANK IN WHICH RETIRED AND IN COMPUTING SERVICE FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING RETIRED PAY UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949.

D. WHETHER MEMBERS RETIRED UNDER SECTION 2 (A) OF THE ACT OF 9 AUGUST 1955 ARE SUBJECT TO THE DUAL EMPLOYMENT PROVISIONS OF THE ACT OF 31 JULY 1894, AS AMENDED (5 U.S.C. 62).

IT WOULD APPEAR THAT THE CONGRESS INTENDED THAT ALL QUALIFIED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE MAKING APPLICATION FOR RETIREMENT UNDER SECTION 2 (A) OF THE 1955 ACT WITHIN THE 90-DAY PERIOD SPECIFIED IN THAT SECTION SHOULD, IF GRANTED SUCH RETIREMENT, BE TREATED ALIKE WITH RESPECT TO THE EFFECTIVE DATE OF RETIREMENT. ACCORDINGLY, WHILE THE LANGUAGE OF THE STATUTE IS NOT CLEAR ON THAT POINT, IT IS OUR VIEW THAT ALL QUALIFIED MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE WHO MADE APPLICATION WITHIN THE 90-DAY PERIOD SPECIFIED IN THE LAW, ARE ENTITLED TO AND SHOULD RECEIVE THE VOLUNTARY RETIREMENT PAY BENEFITS PROVIDED IN SECTION 2 (A) ON AN EQUAL BASIS. THEREFORE, ALL SUCH QUALIFIED MEMBERS WHO HAVE BEEN PLACED ON THE RETIRED LIST IN THE DISCRETION OF THE PRESIDENT, PURSUANT TO THE AUTHORITY OF SECTION 2 (A), MAY BE CONSIDERED AS HAVING BECOME ENTITLED TO RETIREMENT EFFECTIVE AUGUST 9, 1955, SUBJECT, HOWEVER, TO THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A, WHICH PROVIDES THAT EVERY FEDERAL RETIREMENT "SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE.' ON THAT BASIS, SEPTEMBER 1, 1955, WILL BE REGARDED FOR PAY PURPOSES AS THE EFFECTIVE DATE OF RETIREMENT IN ALL SUCH CASES. QUESTION (A) IS ANSWERED ACCORDINGLY.

SECTION 2 (B) OF PUBLIC LAW 318 PRESCRIBES THE BASIS FOR COMPUTING THE RETIRED PAY OF MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE TRANSFERRED TO THE RETIRED LIST OF THE NAVY, UNDER THE AUTHORITY OF SECTION 2 (A) OF THAT ACT, IN THE HIGHEST RANK IN WHICH THEY SATISFACTORILY SERVED. AN INDIVIDUAL SO TRANSFERRED IS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY, WITH LONGEVITY CREDIT, OF THE GRADE IN WHICH HE IS PLACED ON THE RETIRED LIST, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS ACTIVE-DUTY PAY AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THAT RANK. SINCE, AS HELD IN REPLY TO QUESTION (A) ABOVE, SEPTEMBER 1, 1955, IS TO BE REGARDED FOR PAY PURPOSES AS THE EFFECTIVE DATE OF RETIREMENT OF ALL QUALIFIED MEMBERS TRANSFERRED TO THE RETIRED LIST OF THE NAVY PURSUANT TO THE PROVISIONS OF SECTION 2 (A), SUCH A MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED, EFFECTIVE SEPTEMBER 1, 1955, ON THE BASIS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH PLACED ON THE RETIRED LIST, WITH CREDIT FOR ALL SERVICE WHICH HE WAS ENTITLED TO COUNT FOR ACTIVE-DUTY PAY PURPOSES AT THAT TIME. HOWEVER, THE NUMBER OF YEARS OF SERVICE CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY IS FIXED BY SECTION 2 (B) AS THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS ACTIVE-DUTY PAY AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE. ACCORDINGLY, QUESTION (B 1) IS ANSWERED IN THE AFFIRMATIVE AND QUESTION (B-2) IS ANSWERED IN THE NEGATIVE.

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, IN PERTINENT PART EXPRESSLY PROVIDES THAT THE RETIRED PAY OF AN INDIVIDUAL, WHOSE STATUS BRINGS HIM WITHIN THE SCOPE OF THOSE STATUTORY PROVISIONS,"SHALL * * * UPON HIS RELEASE FROM ACTIVE DUTY * * * BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY * * * AT THE TIME OF HIS RETIREMENT * * * 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 PAY 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 * * * EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON.' QUALIFIED MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SERVING ON ACTIVE DUTY WHEN TRANSFERRED TO THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1955 (SEE ANSWER TO QUESTION (A) ABOVE), UNDER AUTHORITY OF SECTION 2 (A) OF PUBLIC LAW 318, WOULD BE ENTITLED, IF IMMEDIATELY PLACED ON INACTIVE DUTY, TO HAVE THEIR RETIRED PAY COMPUTED AS OF THAT DATE ON THE BASIS SET FORTH IN THE ANSWERS TO QUESTIONS (B-1) AND (B-2) ABOVE. SUCH MEMBERS WOULD BE FURTHER ENTITLED, BY VIRTUE OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, TO AN INCREASE IN RETIRED PAY FOR ANY PERIOD OF ACTIVE DUTY PERFORMED BY THEM AFTER SEPTEMBER 1, 1955, THE EFFECTIVE DATE OF THEIR RETIREMENT. IN OTHER WORDS, MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE WHO WERE TRANSFERRED TO THE RETIRED LIST OF THE NAVY EFFECTIVE AS OF SEPTEMBER 1, 1955, UNDER AUTHORITY OF SECTION 2 (A) OF PUBLIC LAW 318, WHILE SERVING ON ACTIVE DUTY, ARE ENTITLED UNDER SECTION 516, CAREER COMPENSATION ACT OF 1949, TO INCLUDE, WHEN SUBSEQUENTLY RELEASED FROM ACTIVE DUTY, ALL ACTIVE DUTY PERFORMED BY THEM ON AND AFTER SEPTEMBER 1, 1955, IN DETERMINING THE BASIC PAY TO BE USED IN AND COMPUTATION OF THEIR RETIRED PAY. LIKEWISE, ALL ACTIVE DUTY PERFORMED ON AND AFTER SEPTEMBER 1, 1955, THE EFFECTIVE DATE OF RETIREMENT IN SUCH CASES, MAY BE CREDITED IN COMPUTING THE NUMBER OF YEARS OF SERVICE FOR THE PERCENTAGE MULTIPLE PURPOSES OF SECTION 516. QUESTION (C) IS ANSWERED ACCORDINGLY. IN QUESTION (D) INQUIRY IS PRESENTED WHETHER THOSE MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE WHO ARE RETIRED UNDER AUTHORITY OF SECTION 2 (A) OF PUBLIC LAW 318 ARE SUBJECT TO THE DUAL EMPLOYMENT PROVISIONS OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, WHICH ARE AS FOLLOWS (QUOTING FROM 5 U.S.C. 62): NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

THE PROHIBITION CONTAINED IN THE FIRST SENTENCE OF THE ABOVE QUOTED STATUTORY PROVISIONS IS DIRECTED AGAINST THE APPOINTMENT TO "ANY OTHER OFFICE" TO WHICH COMPENSATION IS ATTACHED OF A PERSON WHO HOLDS "AN OFFICE" THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500. HOWEVER, RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY ARE EXEMPTED FROM SUCH INHIBITION BY VIRTUE OF THE SECOND SENTENCE AS ADDED BY THE AMENDING ACT OF MARY 31, 1924, 43 STAT. 245.

SECTION 2 (A) OF PUBLIC LAW 318 EXPRESSLY PROVIDES THAT ANY MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WHO QUALIFIED AND MADE APPLICATION WITHIN 90 DAYS, ETC., FOR THE BENEFITS THEREIN PRESCRIBED MAY, IN THE DISCRETION OF THE PRESIDENT, BE PLACED ON THE RETIRED LIST "WITH THE HIGHEST RANK IN WHICH HE SERVED SATISFACTORILY BEFORE HIS TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE.' THE LEGISLATIVE HISTORY OF PUBLIC LAW 318, DEFINITELY ESTABLISHES THAT THE BASIC PURPOSE OF SECTION 2 (A) WAS TO PERMIT "THESE INDIVIDUALS TO BE RETIRED AS OFFICERS IN THEIR HIGHEST GRADE SATISFACTORILY SERVED.' (SEE PAGE 3, HOUSE OF REPRESENTATIVES REPORT NO. 869, 84TH CONGRESS, ST SESSION, ON THE BILL H.R. 2112, WHICH BECAME PUBLIC LAW 318). THUS, UNDER THE SPECIFIC TERMS OF SECTION 2 (A), ALL INDIVIDUALS TRANSFERRED TO THE RETIRED LIST OF THE NAVY PURSUANT THERETO HAVE BEEN PLACED ON THE RETIRED LIST, AS A RESULT OF DISCRETIONARY ACTION TAKEN BY THE PRESIDENT, IN THE OFFICER RANK CORRESPONDING TO THE HIGHEST TEMPORARY OFFICER RANK IN WHICH THEY HAD SERVED SATISFACTORILY BEFORE THEY WERE TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE. IT WOULD SEEM, THEREFORE, THAT THE PRESIDENT'S ACTION TO EFFECT RETIREMENT UNDER SECTION 2 (A) IN A PARTICULAR CASE SHOULD BE VIEWED AS TANTAMOUNT TO THE "APPOINTMENT" OF THE PERSON CONCERNED AS AN "OFFICER" ON THE RETIRED LIST AND THAT MEMBERS SO TRANSFERRED TO THE RETIRED LIST OF THE NAVY SHOULD NOT BE VIEWED AS " RETIRED ENLISTED MEN OF THE * * * NAVY" WITHIN THE MEANING OF THE EXEMPTION IN THE 1894 STATUTE TO THE PROHIBITORY PROVISIONS OF THAT STATUTE. HENCE, IT IS OUR VIEW THAT MEMBERS SO TRANSFERRED SHOULD BE CONSIDERED AS SUBJECT TO SUCH PROHIBITORY PROVISIONS, ASSUMING THAT THEY ARE NOT WITHIN THE SPECIFIC EXEMPTION PERTAINING TO OFFICERS RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY. QUESTION (D) IS ANSWERED ACCORDINGLY.

A FURTHER QUESTION IS PRESENTED IN THE ASSISTANT SECRETARY'S LETTER OF JANUARY 26, 1956, AS TO WHETHER MEMBERS RETIRED PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, AS AMENDED BY SECTION 1 OF PUBLIC LAW 318, ARE LIKEWISE SUBJECT TO THE DUAL EMPLOYMENT PROVISIONS OF THE 1894 LAW, 5 U.S.C. 62.

SECTION 6, ACT OF FEBRUARY 21, 1946, AS AMENDED BY THE ACTS OF AUGUST 4, 1955, 69 STAT. 493, AND AUGUST 9, 1955, 69 STAT. 614, PROVIDES AS FOLLOWS (QUOTING 34 U.S.C.A. 410B):

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF, INCLUDING ANY MEMBER OF THE NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE WHOSE PERMANENT STATUS IS ENLISTED, HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, ARMY, AIR FORCE, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE. AS USED IN THIS SECTION "ACTIVE COMMISSIONED SERVICE" INCLUDES ALL ACTIVE SERVICE PERFORMED UNDER A TEMPORARY APPOINTMENT TO A COMMISSIONED GRADE, INCLUDING A COMMISSIONED WARRANT GRADE, BY AN OFFICER WHOSE PERMANENT STATUS IS ENLISTED.

IN VIEW OF THE ABOVE QUOTED STATUTORY PROVISIONS THE VOLUNTARY RETIREMENT OF AN OFFICER OF THE NAVY, INCLUDING ANY MEMBER OF THE NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE WHOSE PERMANENT STATUS IS ENLISTED, IS ACCOMPLISHED IN THE DISCRETION OF THE PRESIDENT, IN THE INDIVIDUAL'S "OFFICER" STATUS. ACCORDINGLY, WHAT WE HAVE STATED IN ANSWER TO QUESTION (D), ABOVE, HAS EQUAL APPLICATION TO ALL MEMBERS OF THE NAVAL SERVICE WHO ARE RETIRED AS "OFFICERS" UNDER THE AUTHORITY OF SECTION 6, ACT OF FEBRUARY 21, 1946, AS AMENDED.