B-135222, MAR. 3, 1958

B-135222, MAR. 3, 1958

TO MR. JESSE FORTON:

YOUR LETTER OF JANUARY 29, 1958, REQUESTS RECONSIDERATION OF OFFICE SETTLEMENT DATED JANUARY 17, 1958, WHEREIN IT WAS HELD THAT YOU WERE NOT ENTITLED, BY REASON OF ACTIVE DUTY PERFORMED BY YOU AFTER TRANSFER TO THE FLEET NAVAL RESERVE, TO THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE -THIRD OF BASE PAY PLUS LONGEVITY. YOU STATE THAT SUCH HOLDING IS INCONSISTENT WITH PRIOR DECISIONS OF THIS OFFICE IN 26 COMP. GEN. 804; 32 COMP. GEN. 159; 36 COMP. GEN. 579, WHICH YOU CITE AS SUPPORTING THE BASIS OF YOUR CLAIM.

OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 813, SAID, IN ANSWER TO THE QUESTION WHETHER MEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, 42 STAT, 799, 800, WITH LESS THAN FIFTEEN YEARS' ACTUAL SERVICE WERE TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WITHIN THE CONTEMPLATION OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10, 1946, THAT:

"UNDER THE QUOTED PROVISION OF THE NAVAL APPROPRIATION ACT, 1923, 42 STAT. 799, ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE THEREWITH ARE PLACED IN THE SAME STATUS WITH RESPECT TO PAY AND ALLOWANCES AS ENLISTED MEN TRANSFERRED AT THE EXPIRATION OF ENLISTMENT "AFTER 16 YEARS" SERVICE.' WHERE IT BECOMES MATERIAL FOR PAY PURPOSES, TO DETERMINE THE NUMBER OF YEARS WHICH SUCH TRANSFERRED MEMBERS OF THE FLEET RESERVE MAY BE CONSIDERED TO HAVE HAD AT THE TIME OF TRANSFER, IT IS OBVIOUS THAT THEY CANNOT BE CONSIDERED TO HAVE HAD MORE THAN 16 YEARS' SERVICE. CONSIDER THEIR SERVICE OTHERWISE WOULD RESULT IN SUCH UNCERTAINTY AS TO THEIR LENGTH OF SERVICE AS TO MAKE THE COMPUTATION OF THEIR PAY IMPOSSIBLE. THEREFORE, THEY MAY NOT BE CONSIDERED TO HAVE BEEN TRANSFERRED AFTER "MORE" THAN 16 YEARS' SERVICE. SEE THE ANSWER TO QUESTION (C) ABOVE. ACCORDINGLY, QUESTION (J) IS ANSWERED IN THE NEGATIVE. * * *"

THE ANSWER TO QUESTION (C), REFERRED TO IN THE ABOVE QUOTATION, WAS THAT MEN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WERE NOT TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" AS THAT TERM WAS USED IN SECTION 208.

SINCE IT WAS HELD IN THE DECISION OF APRIL 24, 1947, THAT MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WERE NOT ELIGIBLE FOR THE BENEFITS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, THERE WAS NO OCCASION TO SPECULATE AS TO WHAT SERVICE WOULD BE CREDITABLE UNDER SECTION 208, TO A MAN TRANSFERRED UNDER THE 1922 ACT.

YOU REFER TO ABAD ET AL. V. UNITED STATES, C.CLS. NO. 49667, DECIDED OCTOBER 2, 1956. IN THAT CASE IT WAS HELD THAT A MAN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WAS TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WITHIN THE CONTEMPLATION OF SECTION 208. IN B 129880, FEBRUARY 6, 1957, 36 COMP. GEN. 579, IT WAS HELD THAT WE WOULD FOLLOW THE COURT'S OPINION IN THE ABAD CASE AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS AND ACCORDINGLY, THE ANSWER TO QUESTION (C) IN THE DECISION OF APRIL 24, 1947, WAS OVERRULED.

IT WAS HELD IN SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT AN ENLISTED MAN WHO HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087--- SUPERSEDED BY THE SECTION 203 OF THE NAVAL RESERVE ACT OF 1938--- WITH MORE THAN SIXTEEN AND LESS THAN TWENTY YEARS' ACTIVE SERVICE (WITH CONSEQUENT ENTITLEMENT TO RETAINER PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS) AND WHO, SUBSEQUENT TO SUCH TRANSFER, PERFORMED ACTIVE DUTY OF 4 YEARS, 10 MONTHS, AND 20 DAYS, WAS ENTITLED BY VIRTUE OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, UPON RELEASE FROM SUCH ACTIVE DUTY, TO RETAINER OR RETIRED PAY ON THE BASIS OF TWENTY YEARS' ACTIVE SERVICE, THAT IS, TO ONE- HALF OF BASE PAY PLUS PERMANENT ADDITIONS. THE LANGUAGE OF THE COURT IN THIS CASE THAT "THE INTENT OF CONGRESS APPEARS TO HAVE BEEN TO ALLOW ENLISTED MEN RETIRED OR RELEASED TO INACTIVE DUTY AND THEN RECALLED FOR AN EXTENDED PERIOD OF ACTIVE DUTY, TO COUNT THEIR WARTIME SERVICES IN THE COMPUTATION OF RETIREMENT PAY IN THE SAME MANNER AS IF THEIR ACTUAL DUTY STATUS HAD BEEN CONTINUOUS," SEEMS PARTICULARLY APPLICABLE TO THE PRESENT CASE.

WE FOLLOWED BOTH THE SANDERS DECISION AND THE REASONING IN 26 COMP. GEN. 804, 813, IN MAKING THE SETTLEMENT OF JANUARY 17, 1958, IN YOUR CLAIM. CONCLUDED THAT A MAN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN SIXTEEN YEARS' SERVICE WAS IN THE SAME POSITION AS A MAN TRANSFERRED UNDER SOME OTHER PROVISIONS OF LAW WITH EXACTLY SIXTEEN YEARS' SERVICE INSOFAR AS THE DETERMINATION OF WHETHER SECTION 208 IS APPLICABLE TO HIM AND THAT SINCE A MAN TRANSFERRED WITH EXACTLY 16 YEARS' SERVICE COMES WITHIN THE SCOPE OF THAT SECTION (ABAD CASE) IT MUST FOLLOW THAT A MAN TRANSFERRED UNDER THE 1922 ACT WITH LESS THAN SIXTEEN YEARS' SERVICE ALSO COMES WITHIN THE SCOPE OF THAT SECTION. IT WAS CONCLUDED ALSO, FOLLOWING THE SANDERS DECISION, THAT A MAN WITHIN THE PROVISIONS OF SECTION 208 IS ENTITLED, UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, TO RETAINER OR RETIRED PAY AS A TWENTY-YEAR MAN IF HIS TOTAL CREDITABLE SERVICE, BEFORE AND AFTER TRANSFER, WOULD HAVE ENTITLED HIM, UPON THE DAY OF HIS RELEASE FROM SUCH ACTIVE DUTY, TO TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 AS A TWENTY-YEAR MAN. IN OTHER WORDS, THE SETTLEMENT OF JANUARY 17, 1958, WAS PREDICATED UPON THE PRINCIPLE OF THE SANDERS CASE, EQUAL BENEFITS FOR EQUAL SERVICE.

SINCE YOU, UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, HAD PERFORMED AN AGGREGATE OF BUT 18 YEARS, 2 MONTHS, AND 17 DAYS' CREDITABLE SERVICE, IT WAS HELD THAT YOU HAD NOT MET THE REQUIREMENT FOR PAY AS A TWENTY-YEAR MAN OF AT LEAST 19 YEARS' AND 6 MONTHS' SERVICE. YOUR SERVICE FROM JUNE 18, 1923 TO AUGUST 26, 1924, WAS NOT REPORTED TO THIS OFFICE BY NAVY DEPARTMENT RESPONSE TO OUR REQUEST FOR YOUR COMPLETE NAVAL SERVICE HISTORY. REGARDLESS OF THIS FACT, SUCH SERVICE WOULD NOT BE CREDITABLE UNDER 34 U.S.C. 845G, WHICH AUTHORIZES CREDITING ONLY POST- TRANSFER ACTIVE DUTY PERFORMED AFTER JULY 1, 1925.

THERE IS NOTHING IN OUR DECISION 32 COMP. GEN. 159, WHICH INDICATES THAT MEN WITH CREDITABLE SERVICE OF LESS THAN 19 YEARS AND 6 MONTHS ARE ELIGIBLE UNDER THE SANDERS RULE TO BE PAID AS TWENTY-YEAR MEN OR THAT MEMBERS TRANSFERRED TO THE FLEET RESERVE UNDER THE ACT OF JULY 1, 1922, WHO HAD SERVED LESS THAN 16 YEARS PRIOR TO TRANSFER SHOULD BE CREDITED WITH 16 YEARS' SERVICE ON ACCOUNT OF ACTIVE DUTY PERFORMED PRIOR TO TRANSFER FOR THE PURPOSES OF THE ACT OF AUGUST 10, 1946.

IN CONCLUSION, IT MUST BE POINTED OUT THAT THERE IS NOTHING IN THE ACT OF JULY 1, 1922, WHICH PROVIDES OR EVEN INTIMATES THAT MEN TRANSFERRED UNDER ITS PROVISIONS SHOULD BE DEEMED TO HAVE ACTUALLY PERFORMED SIXTEEN YEARS' SERVICE. THE ACT MERELY SAID THAT MEN SO TRANSFERRED SHOULD ,RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE.' IN THIS RESPECT, IT IS SIGNIFICANT THAT THE DEPARTMENT OF THE NAVY, IN REPORTING YOUR SERVICE, DID NOT CREDIT YOU WITH SIXTEEN YEARS' SERVICE AT TIME OF TRANSFER TO THE FLEET RESERVE.

UNDER THE THEORY ADVANCED BY YOU, A MAN TRANSFERRED UNDER THE 1922 ACT WITH SERVICE OF 13 YEARS, 8 MONTHS, AND 23 DAYS, WHO PERFORMED ACTIVE DUTY OF 4 YEARS, 5 MONTHS, AND 24 DAYS, ENDING JANUARY 18, 1946, BECAME ENTITLED TO RETIRED PAY AS A TWENTY-YEAR MAN FROM JANUARY 19, 1946, WHEREAS A MAN SERVING IN THE NAVY WITH THE SAME TOTAL SERVICE, 18 YEARS, 2 MONTHS, AND 17 DAYS, ON JANUARY 18, 1946, WOULD BE REQUIRED TO SERVE FOR AN ADDITIONAL PERIOD OF ONE YEAR, 3 MONTHS AND 13 DAYS BEFORE BECOMING ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE AS A TWENTY-YEAR MAN. WE DO NOT BELIEVE THAT THE CONGRESS, IN PROVIDING A BENEFIT FOR ACTIVE DUTY PERFORMED PRIOR TO AUGUST 10, 1946, INTENDED SUCH A DISCRIMINATION.

THERE IS FORWARDED A COPY OF B-134160, DECEMBER 4, 1957, WHICH SETS FORTH IN DETAIL THE PERTINENT STATUTES AND DECISIONS TOGETHER WITH THE UNDERLYING REASONING INVOLVED IN COMPUTING NAVAL SERVICE CREDITS FOR DETERMINATION OF ENTITLEMENT TO THE BENEFITS ACCRUING UNDER SECTION 218 OF THE NAVAL RESERVE ACT OF 1938, ADDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 994, 34 U.S.C. 854G. ON THE BASIS THEREOF AND ON THE REASONING ABOVE SET FORTH, THE SETTLEMENT OF JANUARY 17, 1958, MUST BE, AND HEREBY IS, SUSTAINED.