B-138528, MAY 27, 1959, 38 COMP. GEN. 793

B-138528, MAY 27, 1959, 38 COMP. GEN. 793

MILITARY PERSONNEL - RETIRED PAY - FLEET RESERVISTS - ENLISTED PERSONNEL - INACTIVE STATUS AT TIME OF TRANSFER IN THE COMPUTATION OF RETAINER PAY FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, PURSUANT TO 10 U.S.C. 6330 (B) AS AMENDED BY THE ACT OF AUGUST 1, 1958, PUBLIC LAW 85-583, WHICH EXTENDED TO CAREER RESERVISTS THE RETIREMENT BENEFITS APPLICABLE TO REGULAR PERSONNEL, THE RATE OF ACTIVE DUTY PAY IN EFFECT AT THE TIME OF TRANSFER GOVERNS AND, IN THE ABSENCE OF ANY CONDITION THAT THE MEMBER BE SERVING ON ACTIVE DUTY AT THE TIME OF TRANSFER, SUCH RATE IS APPLICABLE EVEN THOUGH THE MEMBER WAS IN AN INACTIVE DUTY STATUS AND NOT SERVING ON ACTIVE DUTY AT THE TIME OF TRANSFER. WHEN AN ENLISTED MEMBER OF THE MARINE CORPS RESERVE WHO WAS IN AN INACTIVE DUTY STATUS FOR SEVERAL YEARS WHEN HE BECAME ENTITLED TO RETAINER PAY UPON TRANSFER TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 (B), AS AMENDED BY THE ACT OF AUGUST 1, 1958, PUBLIC LAW 85 583, AND WHO IS THEREAFTER PLACED ON THE RETIRED RESERVE LIST OF ENLISTED MEN OF THE MARINE CORPS UNDER 10 U.S.C. 6331 AND ADVANCED TO THE GRADE OF SECOND LIEUTENANT UNDER 10 U.S.C. 6151, RETIRED PAY IS TO BE COMPUTED ON THE RATE OF BASIC PAY OF A SECOND LIEUTENANT IN EFFECT AT THE TIME OF HIS TRANSFER, NOTWITHSTANDING THAT HE WAS NOT IN AN ACTIVE DUTY PAY STATUS ON THAT DATE.

TO MAJOR R. M. BURRILL, UNITED STATES MARINE CORPS, MAY 27, 1959:

BY FIRST ENDORSEMENT DATED JANUARY 21, 1959, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF JANUARY 15, 1959, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPER RATE OF RETAINER PAY AND THE METHOD TO BE USED IN COMPUTING SUCH PAY IN THE CASE OF MASTER SERGEANT PAUL B. COWLES, 211632, RETIRED. IT IS STATED THAT THE REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NO. DO-MC-392.

YOU STATE THAT MASTER SERGEANT COWLES WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON OCTOBER 31, 1958, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6330 (B), AS AMENDED BY THE ACT OF AUGUST 1, 1958 ( PUBLIC LAW 85- 583, 72 STAT. 480). THE RECORDS SHOW THAT AT THE TIME OF HIS TRANSFER ( OCTOBER 31, 1958), MASTER SERGEANT COWLES COMPLETED 31 YEARS, 3 MONTHS, AND 1 DAY TOTAL FEDERAL SERVICE (BOTH ACTIVE AND INACTIVE), OF WHICH 20 YEARS, 6 MONTHS, AND 9 DAYS WAS ACTIVE SERVICE. THE RECORDS FURTHER SHOW THAT DURING THE PERIOD APRIL 22, 1952, TO OCTOBER 31, 1958, THE ENLISTED MAN WAS IN AN INACTIVE DUTY STATUS AS A MEMBER OF THE MARINE CORPS RESERVE.

SUBSECTION (B), SECTON 6330, TITLE 10, U.S. CODE, AS AMENDED BY THE ACT OF AUGUST 1, 1958, 72 STAT. 480, PROVIDES THAT AN ENLISTED MEMBER OF THE MARINE CORPS RESERVE WHO HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE. SECTION 6330 (C) OF TITLE 10 PRESCRIBES THE METHOD FOR COMPUTING RETAINER PAY UPON SUCH TRANSFER IN PERTINENT PART, AS FOLLOWS:

EACH MEMBER WHO IS TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER THIS SECTION IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY THAT HE RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE IN THE ARMED FORCES. * * * ( ITALICS SUPPLIED.)

YOU SAY THAT, SINCE COWLES WAS NOT ON ACTIVE DUTY AT THE TIME OF HIS TRANSFER AND HENCE WAS NOT ACTUALLY IN RECEIPT OF BASIC PAY, THE QUESTION ARISES AS TO THE CORRECT COMPUTATION OF RETAINER PAY TO WHICH HE MAY BE ENTITLED AS A MEMBER OF THE FLEET MARINE CORPS RESERVE. YOU SUBMIT TWO POSSIBLE COMPUTATIONS AS FOLLOWS:

(1) IF COWLES HAS BEEN ON ACTIVE DUTY ON 31 OCTOBER 1958 (THE EFFECTIVE DATE OF TRANSFER), HE WOULD HAVE BEEN IN RECEIPT OF MONTHLY BASIC PAY IN THE AMOUNT OF $350. THIS IS THE BASIC PAY OF A MASTER SERGEANT (E-7) WITH OVER THIRTY YEARS SERVICE AS AUTHORIZED BY PUBLIC LAW 85-422, 85TH CONGRESS. USING THIS RATE OF BASIC PAY, HIS RETAINER PAY WOULD BE $183.75 PER MONTH (2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE (21) TIMES BASIC PAY ($350) ).

(2) ON HIS LAST DAY OF ACTIVE DUTY, 21 APRIL 1952, COWLES WAS IN RECEIPT OF BASIC PAY IN THE AMOUNT OF $279.30. THIS IS THE BASIC PAY OF A MASTER SERGEANT (E-7) WITH OVER TWENTY-TWO YEARS SERVICE AS AUTHORIZED BY PUBLIC LAW 351, 81ST CONGRESS. USING THIS RATE OF BASIC PAY, HIS RETAINER PAY WOULD BE $146.63 PER MONTH (2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE (21) TIMES BASIC PAY ($279.30) ).

YOUR LETTER SHOWS THAT EFFECTIVE DECEMBER 1, 1958, COWLES WAS PLACED ON THE RETIRED RESERVE LIST OF ENLISTED MEN OF THE MARINE CORPS RESERVE AS A MASTER SERGEANT, UNDER THE PROVISIONS OF 10 U.S.C. 6331, HAVING COMPLETED 30 YEARS OF SERVICE BOTH ACTIVE AND INACTIVE. YOU STATE THAT EFFECTIVE DECEMBER 1, 1958, HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT UNDER THE PROVISIONS OF 10 U.S.C. 6151, THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY. YOU EXPRESS THE BELIEF THAT COWLES IS ENTITLED TO RETIRED PAY BASED ON THE GRADE OF SECOND LIEUTENANT EFFECTIVE DECEMBER 1, 1958, AND YOU SAY THAT,"UNLESS ADVICE IS RECEIVED TO THE CONTRARY IT IS THE INTENTION OF THIS OFFICE TO COMPUTE RETIRED PAY BASED ON THE GRADE OF SECOND LIEUTENANT IN THE SAME MANNER IN WHICH YOUR OFFICE USES TO DETERMINE THE PROPER AMOUNT OF RETAINER PAY.'

THE PRIMARY PURPOSE OF THE ABOVE-MENTIONED ACT OF AUGUST 1, 1958 ( PUBLIC LAW 85-583), IS TO EXTEND TO NAVAL AND MARINE CORPS ENLISTED CAREER RESERVISTS, WHO COMPLETE AT LEAST 20 YEARS OF ACTIVE SERVICE, THE SAME RETIREMENT BENEFITS FOR WHICH REGULAR PERSONNEL OF THESE SERVICES ARE ELIGIBLE. AN ENLISTED MEMBER OF A REGULAR COMPONENT IS ENTITLED TO RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF HIS ACTIVE DUTY RATE OF PAY MULTIPLIED BY HIS YEARS OF ACTIVE SERVICE. UNDER CURRENT LAW, 10 U.S.C. 6327, AN ENLISTED PERSON WHO WAS A MEMBER OF THE NAVAL OR MARINE CORPS RESERVE ON JANUARY 1, 1953, MAY BE TRANSFERRED TO THE RETIRED RESERVE (BEFORE JANUARY 1, 1973) WITH RETIRED PAY AT THE FLAT RATE OF 50 PERCENT OF HIS ACTIVE DUTY RATE OF PAY IF HE COMPLETES (1) AT LEAST 30 YEARS OF ACTIVE SERVICE OR (2) AT LEAST 20 YEARS OF SUCH SERVICE, 10 OF WHICH WERE COMPLETED IN THE 11-YEAR PERIOD IMMEDIATELY PRECEDING HIS RETIREMENT. REGARDLESS OF HIS LENGTH OF SERVICE, HIS RETIRED PAY UNDER THAT SECTION IS NEVER MORE THAN 50 PERCENT OF HIS ACTIVE DUTY PAY. SEE PAGE 2 OF SENATE REPORT NO. 1859, TO ACCOMPANY H.R. 11504, WHICH BECAME THE ACT OF AUGUST 1, 1958.

PRIOR TO THE ACT OF AUGUST 1, 1958, MASTER SERGEANT COWLES APPARENTLY WAS NOT OTHERWISE ENTITLED TO RECEIVE EITHER RETAINER PAY UNDER ANY OTHER PROVISIONS OF LAW OR RETIRED PAY UNDER 10 U.S.C. 6327. HE WAS OFFICIALLY NOTIFIED BY LETTER OF OCTOBER 31, 1958, THAT UNDER THE PROVISIONS OF 10 U.S.C. 6330 HE WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE EFFECTIVE OCTOBER 31, 1958, AND THAT HIS FULL RETIREMENT WAS SCHEDULED FOR DECEMBER 1, 1958. WHILE MASTER SERGEANT COWLES WAS NOT IN RECEIPT OF BASIC PAY "AT THE TIME OF TRANSFER" TO THE FLEET MARINE CORPS RESERVE ON OCTOBER 31, 1958, THERE IS NOTHING IN THE PROVISIONS OF 10 U.S.C. 5330, AS AMENDED, OR IN ITS LEGISLATIVE HISTORY WHICH WOULD REQUIRE THAT THE COMPUTATION OF RETAINER PAY BE BASED ON THE RATE OF PAY HE WAS RECEIVING ON HIS LAST DAY OF ACTIVE DUTY, NAMELY APRIL 21, 1952. THE STATUTE DOES NOT PROVIDE THAT THE RETAINER PAY BE COMPUTED AT THE RATES IN EFFECT ON THE DATE OF HIS LAST DISCHARGE, OR HIS LAST DAY OF ACTIVE DUTY, RATHER, THE STATUTE CLEARLY PROVIDES THAT SUCH PAY BE COMPUTED "AT THE RATE * * * THAT HE RECEIVED AT THE TIME OF TRANSFER.' WHILE THE LANGUAGE OF THE STATUTE APPEARS TO SUGGEST THAT, GENERALLY, REGULAR MEMBERS AND CAREER RESERVISTS WOULD BE SERVING ON ACTIVE DUTY AT THE TIME OF TRANSFER, THE STATUTE DOES NOT SPECIFICALLY REQUIRE AS A CONDITION OF TRANSFER THAT THE MEMBER BE THEN SERVING ON ACTIVE DUTY. CONSIDERING THE PURPOSE OF THE 1958 ACT TO MAKE RESERVISTS ELIGIBLE FOR THE SAME RETAINER AND RETIRED PAY BENEFITS AS REGULARS, AND THAT BY THAT ACT IT FIRST MADE RESERVISTS ELIGIBLE THEREFOR, IT FOLLOWS THAT THE CONGRESS INTENDED THAT SUCH PAY SHOULD BE BASED ON THE RATE OF ACTIVE-DUTY PAY IN EFFECT AT THE TIME OF TRANSFER, EVEN THOUGH THE MEMBER WAS NOT THEN SERVING ON ACTIVE DUTY.

IN VIEW OF THE FOREGOING, IT IS OUR VIEW THAT UNDER THE PROVISIONS OF 10 U.S.C. 6330, AS AMENDED, THE BASIC PAY FACTOR IS GOVERNED BY THE RATE OF PAY IN EFFECT "AT THE TIME OF TRANSFER" EVEN THOUGH THE MEMBER IS IN AN INACTIVE DUTY STATUS AND NOT IN RECEIPT OF BASIC PAY AT THAT TIME. HENCE, MASTER SERGEANT COWLES' RETAINER PAY IS FOR COMPUTATION, AS SHOWN IN COMPUTATION (1) ABOVE, IN ACCORDANCE WITH THE RATES IN EFFECT ON OCTOBER 31, 1958, THE DATE OF HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE. FURTHER, SINCE HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT UNDER THE PROVISIONS OF 10 U.S.C. 6151, IT FOLLOWS THAT HIS RETIRED PAY EFFECTIVE DECEMBER 1, 1958, IS TO BE COMPUTED ON THE SAME BASIS, NAMELY, THE RATE OF BASIC PAY OF A SECOND LIEUTENANT IN EFFECT AT THE TIME OF HIS TRANSFER.