B-135771, B-150972, JUNE 25, 1964 43 COMP. GEN. 826

B-135771, B-150972, JUNE 25, 1964 43 COMP. GEN. 826

PAY - RETIRED - FLEET RESERVISTS - SERVICE CREDITS - CONSTRUCTIVE SERVICE THE CONSTRUCTIVE SERVICE CREDIT FOR MINORITY AND SHORT-TERM ENLISTMENTS PRESCRIBED BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 (10 U.S.C. 6330 (D) ( HAVING BEEN AUTHORIZED FOR ALL PURPOSES OF THE ACT, CONSTRUCTIVE TIME MAY BE COUNTED FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING RETIRED PAY UNDER 10 U.S.C. 6151 (C) FOR MEMBERS ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 6151 (A) TO THE HIGHEST TEMPORARY OFFICER GRADE SATISFACTORILY HELD, ONE OF THE PURPOSES OF THE ACT BEING TO PROVIDE A FORMULA FOR THE DETERMINATION OF THE PROPER PERCENTAGE MULTIPLE FACTOR; THEREFORE, A MEMBER WHO UPON TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST ON SEPTEMBER 1, 1958 AND ADVANCEMENT TO COMMISSIONED GRADE UNDER 10 U.S.C. 6151 (A) HAD 20 YEARS, 3 MONTHS AND 15 DAYS OF ACTIVE SERVICE AND 3 MONTHS AND 1 DAY OF CONSTRUCTIVE TIME IN A COMPLETED MINORITY ENLISTMENT, A TOTAL OF 20 YEARS, 6 MONTHS AND 16 DAYS, IS ENTITLED TO HAVE HIS SERVICE COUNTED AS 21 YEARS FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING RETIRED PAY UNDER 10 U.S.C. 6151 (C). B-150972, JUNE 21, 1963, MODIFIED.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, JUNE 25, 1964:

REFERENCE IS MADE TO YOUR REQUEST, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-760, FOR DECISION AS TO WHETHER CONSTRUCTIVE SERVICE CREDITED UNDER SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1178, OR 10 U.S.C. 6330 (D) MAY BE COUNTED FOR PERCENTAGE MULTIPLE PURPOSES IN COMPUTING RETIRED PAY UNDER 10 U.S.C. 6151 (C).

YOU CITE THE CASES OF LIEUTENANT (JG) HENRY E. SMITH, USN, RETIRED, WHICH WAS CONSIDERED IN 38 COMP. GEN. 110, AND LIEUTENANT (JG) CHARLES R. BLANCHARD, USN, RETIRED, WHICH WAS CONSIDERED IN B-150972, JUNE 21, 1963.

IN 38 COMP. GEN. 110 WE HELD THAT A MEMBER TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST ON NOVEMBER 1, 1956, AND ADVANCED TO COMMISSIONED GRADE PURSUANT TO 10 U.S.C. 6151, WAS ENTITLED, IN DETERMINING THE MULTIPLIER FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY, TO COUNT THE SAME NUMBER OF YEARS OF "ACTIVE SERVICE," INCLUDING CONSTRUCTIVE TIME, WHICH WAS THEN ,CREDITABLE" IN COMPUTING HIS RETAINER PAY. ALTHOUGH AT THE TIME OF RETIREMENT LIEUTENANT SMITH WAS RECEIVING RETAINER PAY COMPUTED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, 37 U.S.C. 311 (B) AT 2 1/2 PERCENT OF THE PAY OF HIS GRADE MULTIPLIED BY HIS YEARS OF ACTUAL SERVICE (NOT INCLUDING CONSTRUCTIVE TIME), HIS BASIC ENTITLEMENT TO RETAINER PAY WAS UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, NOW CODIFIED IN 10 U.S.C. 6330. SINCE SECTION 202 OF THE 1938 ACT AUTHORIZED COUNTING CONSTRUCTIVE TIME IN MINORITY AND SHORT-TERM ENLISTMENTS AS "ACTIVE SERVICE" FOR ALL PURPOSES OF THAT ACT, AND IT APPEARS THAT PROVIDING THE FORMULA FOR DETERMINATION OF THE PROPER PERCENTAGE MULTIPLE FACTOR WAS ONE OF THE PURPOSES OF THAT ACT, LIEUTENANT SMITH WAS ENTITLED TO COUNT HIS CONSTRUCTIVE TIME. THIS AUTHORIZATION FOR COUNTING CONSTRUCTIVE TIME IS NOW CODIFIED IN 10 U.S.C. 6330 (D). THE FACT THAT LIEUTENANT SMITH WAS RECEIVING RETAINER PAY COMPUTED UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, DID NOT AFFECT HIS BASIC RIGHT TO COUNT CONSTRUCTIVE TIME IN SHORT-TERM ENLISTMENTS AS "ACTIVE SERVICE" UNDER THE NAVAL RESERVE ACT. AT THE TIME OF HIS TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST, NOVEMBER 1, 1956, THE APPLICABLE PROVISIONS OF THE NAVAL RESERVE ACT HAD BEEN REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 641. 669. THE ONLY STATUTORY PROVISION UNDER WHICH HE COULD THEN BE TRANSFERRED WAS CONTAINED IN 10 U.S.C. 6331, WHICH AUTHORIZED TRANSFER TO THE RETIRED LIST UPON COMPLETION OF 30 YEARS OF SERVICE, INCLUDING THE YEARS OF SERVICE CREDITED TO HIM UPON HIS TRANSFER TO THE FLEET RESERVE, AND THE ONLY AUTHORITY FOR HIS ADVANCEMENT IN GRADE ON THE RETIRED LIST WAS 10 U.S.C. 6151. ACCORDINGLY, WE HELD THAT CONSTRUCTIVE TIME IN SHORT-TIME ENLISTMENTS IS CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING RETIRED PAY UNDER 10 U.S.C. 6151 (C).

IN OUR DECISION OF JUNE 21, 1963, B-150972, WE DENIED THE CLAIM OF LIEUTENANT BLANCHARD FOR ADJUSTMENT IN RETIRED PAY FROM DATE OF RETIREMENT, SEPTEMBER 1, 1958, ON THE BASIS OF THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT, WHICH WE INTERPRETED AS BEING THE FOUNDATION FOR HIS CLAIM. ON RECONSIDERATION WE FIND THAT THE FACTS IN LIEUTENANT BLANCHARD'S CASE ARE SIMILAR TO THOSE IN THE CASE OF LIEUTENANT SMITH AND, THEREFORE, HIS RIGHTS ARE GOVERNED BY THE SAME PROVISIONS OF LAW. UPON LIEUTENANT BLANCHARD'S TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST ON SEPTEMBER 1, 1958, AND ADVANCEMENT TO COMMISSIONED GRADE UNDER 10 U.S.C. 6151 (A), HE BECAME ENTITLED TO RETIRED PAY COMPUTED UNDER SUBSECTION (C) AT 2 1/2 PERCENT OF THE PAY OF A LIEUTENANT (JG) WITH OVER 18 CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES MULTIPLIED BY 21 YEARS OF "ACTIVE SERVICE" REPRESENTING 20 YEARS, 3 MONTHS AND 15 DAYS OF ACTUAL SERVICE, PLUS 3 MONTHS AND 1 DAY OF CONSTRUCTIVE TIME IN COMPLETED MINORITY ENLISTMENT, TOTALING 20 YEARS, 6 MONTHS AND 16 DAYS, COUNTED AS 21 YEARS FOR PERCENTAGE MULTIPLE PURPOSES.

THAT PORTION OF OUR DECISION OF JUNE 21, 1963, B-150972, WHICH DENIED LIEUTENANT BLANCHARD'S CLAIM FOR ADJUSTMENT IN RETIRED PAY IS MODIFIED ACCORDINGLY. INSTRUCTIONS ARE BEING ISSUED TO OUR CLAIMS DIVISION TO ALLOW THE CLAIM PREVIOUSLY PRESENTED TO OUR OFFICE COVERING SUCH ADJUSTMENT FOR THE PERIOD SEPTEMBER 1, 1958, TO JUNE 30, 1960, IF OTHERWISE PROPER. A COPY OF THIS LETTER IS BEING FORWARDED TO LIEUTENANT BLANCHARD. MODIFICATION OF 38 COMP. GEN. 110 WAS NOT INTENDED.