B-135275, APRIL 4, 1958, 37 COMP. GEN. 662

B-135275, APRIL 4, 1958, 37 COMP. GEN. 662

MILITARY PERSONNEL - RETIRED PAY - NAVY OFFICERS' VOLUNTARY RETIREMENT - ARMY SERVICE CREDIT A NAVAL RESERVE OFFICER WHO, ON MARCH 1, 1954, WHEN TRANSFERRED TO THE RETIRED RESERVE WITH PAY, UPON HIS OWN APPLICATION, DID NOT QUALIFY FOR THE RETIREMENT BENEFITS OF SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946, 34 U.S.C. 410B AND 410C (A), BECAUSE ONE YEAR, 4 MONTHS AND 11 DAYS OF HIS 20 YEARS OF ACTIVE FEDERAL SERVICE WAS ENLISTED SERVICE IN THE ARMY WHICH WAS NOT CREDITABLE UNTIL THE AMENDATORY ACT OF AUGUST 4, 1955, 34 U.S.C. 410B, AUTHORIZED CREDIT FOR ARMY SERVICE, IS ELIGIBLE FOR RETIREMENT BENEFITS UNDER THE 1946 ACT UPON APPROVAL OF HIS APPLICATION MADE ON AUGUST 25, 1955, AND MONETARY BENEFITS WOULD ACCRUE FROM SEPTEMBER 1, 1955--- THE FIRST OF THE MONTH FOLLOWING APPLICATION--- OR FROM THE FIRST OF ANY ENSUING MONTH AT THE DISCRETION OF THE SECRETARY OF THE NAVY.

TO THE SECRETARY OF THE NAVY, APRIL 4, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 18, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING A DECISION ON CERTAIN QUESTIONS HEREINAFTER QUOTED. IT IS STATED THAT " SUBMISSION NUMBER C/S NO. 314 WAS ASSIGNED" TO SUCH LETTER.

IT APPEARS THAT EFFECTIVE MARCH 1, 1954, CAPTAIN LAURENCE D. RUCH, UNITED STATES NAVAL RESERVE, WAS TRANSFERRED TO THE RETIRED RESERVE WITH PAY, UPON HIS OWN APPLICATION UNDER SECTION 413 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 1052 (A); THAT HE THEN HAD COMPLETED 20 YEARS AND 23 DAYS OF ACTIVE FEDERAL SERVICE OF WHICH 1 YEAR, 4 MONTHS, AND 11 DAYS WAS ACTIVE ARMY SERVICE AS AN ENLISTED MAN AND 18 YEARS, 8 MONTHS, AND 12 DAYS WAS ACTIVE NAVAL COMMISSIONED SERVICE; AND THAT UPON TRANSFER HE WAS CREDITED WITH 25 YEARS, 3 MONTHS, AND 23 DAYS FOR BASIC PAY PURPOSES. FURTHER APPEARS THAT ON AUGUST 25, 1955, CAPTAIN RUCH REQUESTED THAT HE BE GRANTED RETIRED PAY EFFECTIVE FROM MARCH 1, 1954, THE DATE OF HIS TRANSFER TO THE RETIRED RESERVE, COMPUTED UNDER SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946, 34 U.S.C. 410B AND 410C (A); THAT NO ACTION WAS TAKEN ON HIS REQUEST, SINCE IT WAS THEN BELIEVED THAT THE ACT OF AUGUST 4, 1955, AUTHORIZING THE INCLUSION OF PRIOR ARMY SERVICE IN DETERMINING ELIGIBILITY FOR TRANSFER UNDER THE ABOVE ACT OF FEBRUARY 21, 1946, WAS PROSPECTIVE ONLY AND APPLIED SOLELY TO OFFICERS RETIRED SUBSEQUENT TO ITS ENACTMENT; AND THAT CAPTAIN RUCH WAS NOTIFIED ACCORDINGLY.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION.

(A) IS CAPTAIN RUCH ELIGIBLE FOR THE BENEFITS OF SECTIONS 6323 AND 6325, TITLE 10, U.S. CODE, AS AMENDED?

(B) IF THE ANSWER TO THE FOREGOING IS IN THE AFFIRMATIVE, AND UPON APPROVAL OF HIS APPLICATION FOR SUCH BENEFITS, WOULD RETIRED PAY BE CREDITED (1) FROM DATE OF ENACTMENT OF PUBLIC LAW 231--- 84TH CONGRESS (2) FROM 25 AUGUST 1955, DATE OF APPLICATION, (3) FROM 1 SEPTEMBER 1955, FIRST DAY OF MONTH FOLLOWING DATE OF APPLICATION, OR (4) FROM FIRST DAY OF MONTH FOLLOWING ACTUAL APPROVAL BY THE SECRETARY OF THE NAVY?

SECTIONS 309 AND 310 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, 34 U.S.C. 855H AND 855I (1946 USED.) PROVIDED, IN PERTINENT PART, THAT:

SEC. 309. AN HONORARY RETIRED LIST FOR THE NAVAL RESERVE IS HEREBY ESTABLISHED AND OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE SHALL BE PLACED ON THIS RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY OR ALLOWANCES, UPON REACHING THE AGE OF SIXTY-FOUR YEARS, OR UPON THEIR OWN REQUEST, AFTER THIRTY YEARS' SERVICE IN THE NAVAL RESERVE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT: PROVIDED, THAT SERVICE IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, NAVAL AUXILIARY SERVICE, NAVAL RESERVE FORCE, NAVAL MILITIA, NATIONAL NAVAL VOLUNTEERS, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, AND MARINE CORPS RESERVE SHALL BE COUNTED AS SERVICE IN THE NAVAL RESERVE UNDER THE PROVISIONS OF THIS SECTION * * *.

SEC. 310. OFFICERS AND MEN OF THE HONORARY RETIRED LIST CREATED BY SECTION 309 OF THIS TITLE, WHO HAVE PERFORMED A TOTAL OF NOT LESS THAN THIRTY YEARS' ACTIVE SERVICE IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, NAVAL AUXILIARY SERVICE, NAVAL RESERVE FORCE, NAVAL MILITIA IN FEDERAL STATUS, NATIONAL NAVAL VOLUNTEERS, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, AND MARINE CORPS RESERVE, OR WHO HAVE HAD NOT LESS THAN TWENTY YEARS' SUCH ACTIVE SERVICE, THE LAST TEN YEARS OF WHICH SHALL HAVE BEEN PERFORMED DURING THE ELEVEN YEARS IMMEDIATELY PRECEDING THEIR TRANSFER TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE CREATED BY SECTION 309 OF THIS TITLE OR TO THE HONORARY RETIRED LIST IN EXISTENCE ON THE DATE OF APPROVAL OF THIS ACT, SHALL, EXCEPT WHILE ON ACTIVE DUTY, BE ENTITLED TO PAY AT THE RATE OF 50 PERCENTUM OF THEIR ACTIVE-DUTY RATE OF PAY * * *.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, ORIGINALLY PROVIDED THAT:

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, 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.

SECTION 7 (A) OF THE ABOVE ACT, 60 STAT. 27, PROVIDED, IN PERTINENT PART, THAT:

* * * OFFICERS RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE- DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR ACTIVE-DUTY PAY * * *.

ON MAY 6, 1947, IN OUR DECISION B-63359, WE HELD THAT AN OFFICER WHO HAD BEEN TRANSFERRED TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE UNDER SECTION 309 OF THE NAVAL RESERVE ACT OF 1938 WAS NOT ELIGIBLE FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SINCE HE ALREADY WAS IN A RETIRED STATUS. TO OVERCOME THE EFFECT OF THAT DECISION, THERE WAS ENACTED THE ACT OF APRIL 14, 1949, 63 STAT. 47, 47 U.S.C. 410B- 1, EXPRESSLY MADE EFFECTIVE FEBRUARY 21, 1946, READING, IN PERTINENT PART, AS FOLLOWS:

THAT THE TERM " RESERVE COMPONENTS" AS USED IN SECTION 6 OF THE ACT APPROVED FEBRUARY 21, 1946 (60 STAT. 27; 37 U.S.C. 410B), SHALL INCLUDE OFFICERS ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ESTABLISHED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED (34 U.S.C. 855H) * * *.

ONE OF THE PURPOSES OF THE ACT OF APRIL 14, 1949, AS STATED IN HOUSE REPORT NO. 265, TO ACCOMPANY S. 278, 81ST CONGRESS--- WHICH BECAME THAT ACT--- WAS THAT IT WOULD "ENABLE THE DEPARTMENT OF THE NAVY TO COMPUTE THE RETIRED PAY OF FIVE OTHER RESERVE OFFICERS WHO SERVED IN WORLD WAR II WHO HAD PREVIOUSLY BEEN PLACED ON THE HONORARY RETIRED LIST WITH PAY AND WHO, UNDER THE PROVISIONS OF PUBLIC LAW 305, 79TH CONGRESS (THE ACT OF FEBRUARY 21, 1946, SUPRA) ARE CONSIDERED TO BE ELIGIBLE FOR INCREASED RETIRED PAY BECAUSE OF INCREASED ACTIVE SERVICE.'

THUS, BY VIRTUE OF THE ACT OF APRIL 14, 1949, AN OFFICER OTHERWISE QUALIFIED FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, WAS ELIGIBLE FOR SUCH RETIREMENT AND THE BENEFITS THEREOF EVEN THOUGH HE ALREADY HAD BEEN PLACED ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WITH PAY.

SECTIONS 309 AND 310 OF THE NAVAL RESERVE ACT OF 1938 WERE SUPERSEDED EFFECTIVE JANUARY 1, 1953, BY SECTIONS 413 (A) AND 413 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 499, 50 U.S.C. 1052 (A) AND 1952 (B), WHICH PROVIDED THAT:

(A) MEMBERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO HAVE PERFORMED A TOTAL OF NOT LESS THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE; OR WHO HAVE HAD NOT LESS THAN TWENTY YEARS' ACTIVE FEDERAL SERVICE, THE LAST TEN YEARS OF WHICH SHALL HAVE BEEN PERFORMED THE ELEVEN YEARS IMMEDIATELY PRECEDING THEIR TRANSFER TO A RETIRED RESERVE; MAY BE PLACED IN A RETIRED RESERVE UPON THEIR REQUEST.

(B) EXCEPT WHILE ON ACTIVE DUTY, PERSONNEL TRANSFERRED TO A RETIRED RESERVE AS PROVIDED BY THIS SECTION SHALL BE ENTITLED TO PAY AT THE RATE OF 50 PERCENTUM OF THEIR ACTIVE-DUTY RATE OF PAY.

SECTION 213 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 485, 50 U.S.C. 933 (B), PROVIDED THAT:

ANY PERSON WHO IS ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE WHEN THIS ACT TAKES EFFECT SHALL BE PLACED IN THE RETIRED RESERVE OF THE APPROPRIATE ARMED FORCE OF THE UNITED STATES.

WE SEE NO SUBSTANTIAL DIFFERENCE BETWEEN THE PROVISIONS OF SECTIONS 413 (A) AND 413 (B) OF THE ARMED FORCES RESERVE ACT OF 1952 AND THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 WHICH THEY SUPERSEDED. HENCE, WE THINK THAT UNDER THE CLEAR INTENT OF THE ACT OF APRIL 14, 1949, AN OFFICER ALREADY TRANSFERRED TO THE RETIRED RESERVE WITH PAY WAS ELIGIBLE FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, PROVIDED THAT HE MEET THE SERVICE REQUIREMENTS OF THAT SECTION.

ON MARCH 1, 1954, CAPTAIN RUCH WAS NOT ELIGIBLE FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SINCE HE HAD NOT HAD 20 YEARS' ACTIVE NAVAL SERVICE. HE WAS ELIGIBLE FOR TRANSFER TO THE RETIRED RESERVE WITH PAY UNDER SECTIONS 413 (A) AND 413 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, SINCE HE HAD HAD 20 YEARS' ACTIVE FEDERAL SERVICE, AND HE WAS SO TRANSFERRED.

SECTION 1 OF THE ACT OF AUGUST 4, 1955, 69 STAT. 493, PUBLIC LAW 231, 84TH CONGRESS, 34 U.S.C. 410B, PROVIDES:

THAT SECTION 6 OF THE ACT ENTITLED " AN ACT TO AUTHORIZE THE PRESIDENT TO RETIRE CERTAIN OFFICERS AND ENLISTED MEN OF THE NAVY, MARINE CORPS, AND COAST GUARD, AND FOR OTHER PURPOSES," APPROVED FEBRUARY 21, 1946 (34 U.S.C., SEC. 410B), IS HEREBY AMENDED BY INSERTING IMMEDIATELY AFTER " NAVY, MARINE CORPS," THE FOLLOWING: " ARMY, AIR FORCE, .'

BY VIRTUE OF THIS AMENDMENT, AUTHORIZING CREDIT FOR ARMY SERVICE, CAPTAIN RUCH BECAME ELIGIBLE FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, ALTHOUGH HE ALREADY HAD BEEN TRANSFERRED TO THE RETIRED RESERVE.

THE ABOVE SECTION 6 PROVIDED THAT AN OFFICER ELIGIBLE FOR RETIREMENT THEREUNDER MIGHT "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.'

THE AUTHORITY OF THE PRESIDENT UNDER SECTION 6 WAS DELEGATED TO THE SECRETARY OF DEFENSE BY SECTION 1 (J) OF EXECUTIVE ORDER NO. 10621, JULY 1, 1955, AND WAS REDELEGATED BY THE SECRETARY OF DEFENSE TO THE SECRETARY OF THE NAVY ON SEPTEMBER 22, 1955, 20 F.R. 7314. THUS, WHEN CAPTAIN RUCH APPLIED ON AUGUST 25, 1955, FOR RETIREMENT BENEFITS UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, HE WAS ELIGIBLE FOR SUCH BENEFITS AND ENTITLED THERETO UPON APPROVAL OF HIS APPLICATION BY THE SECRETARY OF DEFENSE, IF BEFORE SEPTEMBER 22, 1955, OR BY THE SECRETARY OF THE NAVY THEREAFTER.

SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946, WERE REPEALED AUGUST 10, 1956 (70A STAT. 674), AND WERE SUPERSEDED BY SECTIONS 6323 AND 6325, 10 U.S.C. 70A STAT. 394. HOWEVER, SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, PROVIDES THAT---

THE FOLLOWING LAWS (INCLUDING SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946) ARE REPEALED EXCEPT WITH RESPECT TO RIGHTS AND DUTIES THAT MATURED, PENALTIES THAT WERE INCURRED AND PROCEEDINGS THAT WERE BEGUN, BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.

PROCEEDINGS WERE BEGUN IN THE MATTER OF CAPTAIN RUCH'S RETIREMENT UNDER THE ACT OF FEBRUARY 21, 1946, AS AMENDED, WHEN HE MADE APPLICATION FOR SUCH RETIREMENT ON AUGUST 25, 1955. HENCE, THE PROVISIONS OF SECTIONS 6323 AND 6325 OF THE NEW TITLE 10, U.S.C. ARE NOT FOR CONSIDERATION HERE. IN THAT CONNECTION, IT MAY BE NOTED THAT SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, PROVIDES THAT "LAWS EFFECTIVE AFTER MARCH 31, 1955, THAT ARE INCONSISTENT WITH THIS ACT SHALL BE CONSIDERED AS SUPERSEDING IT TO THE EXTENT OF THE INCONSISTENCY.'

QUESTION (A) IS ANSWERED BY SAYING THAT CAPTAIN RUCH IS ELIGIBLE FOR THE BENEFITS OF SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946.

AMENDATORY ACTS ARE ORDINARILY PROSPECTIVE IN THEIR OPERATION AND WILL BE SO CONSTRUED UNLESS CONTRARY LEGISLATIVE INTENT, EITHER EXPRESS OR IMPLIED, IS CLEARLY SHOWN. PEONY PARK V. O-MALLEY, 223 F.2D 668; STRATEGICAL DEMOLITION TORPEDO CO. V. UNITED STATES, 124 C.1CLS. 492. THE CLEAR AND EXPLICIT INTENTION REQUIRED IN ORDER THAT A STATUTE BE RETROACTIVE IS NOT PRESENT WITH RESPECT TO THE ACT OF AUGUST 4, 1955. HENCE THERE IS NO BASIS FOR APPLYING THE PROVISIONS OF THAT ACT PRIOR TO AUGUST 4, 1955. ACCORDINGLY, CAPTAIN RUCH BECAME ELIGIBLE FOR THE BENEFITS OF RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, ON AUGUST 4, 1955. HE APPLIED FOR SUCH BENEFITS ON AUGUST 25, 1955. UNDER THE BROAD AUTHORITY CONFERRED BY THAT SECTION ON THE PRESIDENT, AND DELEGATED TO THE SECRETARY OF THE NAVY, THE SECRETARY, UPON HIS APPROVAL OF THE APPLICATION, WILL HAVE DISCRETION TO DIRECT THE TRANSFER OF CAPTAIN RUCH TO THE RETIRED LIST UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, EFFECTIVE FOR MONETARY BENEFITS AS OF SEPTEMBER 1, 1955, OR AS OF THE FIRST DAY OF ANY CALENDAR MONTH THEREAFTER.