B-138728, APRIL 10, 1959, 38 COMP. GEN. 691

B-138728, APRIL 10, 1959, 38 COMP. GEN. 691

MILITARY PERSONNEL - NAVAL ENLISTED MEMBERS RETAINED AFTER EXPIRATION OF ENLISTMENT ON VESSELS IN FOREIGN WATERS - ADDITIONAL PAY THE 25-PERCENT INCREASE IN BASIC PAY PROVIDED UNDER 10 U.S.C. 5540 FOR ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT IS ACCOMPLISHED UPON PAYMENT, AND ENTITLEMENT TO ANY ADDITIONAL BENEFITS BASED ON SUCH INCREASED PAY IS DEPENDENT UPON THE EXTENT OTHER LAWS SPECIFICALLY PROVIDE FOR INCLUSION OF THE INCREASED PAY. THE 25-PERCENT INCREASE IN BASIC PAY RECEIVED PURSUANT TO 10 U.S.C. 5540 BY NAVAL ENLISTED MEMBERS WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT, NOT BEING CONSIDERED BASE AND LONGEVITY PAY OR ALLOWANCES WITHIN THE MEANING OF SECTION 4C OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33, IS NOT FOR INCLUSION IN THE COMPUTATION OF PAYMENTS FOR UNUSED LEAVE UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY. IN VIEW OF THE REQUIREMENT IN 10 U.S.C. 1401 THAT RETIRED PAY FOR MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201 OR MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 BE COMPUTED ON MONTHLY BASIC PAY, THE 25-PERCENT INCREASE PROVIDED UNDER 10 U.S.C. 5540 FOR ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT IS NOT FOR INCLUSION IN THE COMPUTATION OF RETIRED PAY. SINCE THE 25-PERCENT INCREASE PROVIDED IN 10 U.S.C. 5540 FOR ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER THE EXPIRATION OF ENLISTMENT IS NOT A PART OF THE MEMBER'S BASIC PAY, AND UNDER 10 U.S.C. 1212 DISABILITY SEVERANCE PAY IS FOR COMPUTATION IN ALL INSTANCES ON "MONTHLY BASIC PAY," SUCH PERCENTAGE INCREASE IS NOT FOR INCLUSION IN COMPUTATION OF SEVERANCE PAY. SINCE A REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 IS REQUIRED TO BE COMPUTED WITHOUT REGARD TO THE RATE OF PAY TO WHICH THE MEMBER IS ENTITLED WHEN DISCHARGED, THE ADDITIONAL 25-PERCENT OF BASIC PAY PROVIDED UNDER 10 U.S.C. 5540 FOR ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT MAY NOT BE INCLUDED IN THE REENLISTMENT BONUS PAYMENT. THE 25-PERCENT INCREASE IN PAY PROVIDED UNDER 10 U.S.C 5540 FOR ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT IS NOT BASIC PAY AND, THEREFORE, IS NOT FOR INCLUSION IN THE COMPUTATION OF A REENLISTMENT BONUS PAYMENT AUTHORIZED UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239, WHICH PROVIDES THAT THE BONUS IN EVERY INSTANCE IS FOR COMPUTATION ON THE MONTHLY BASIC PAY TO WHICH THE ENLISTED MEMBER WAS ENTITLED AT THE TIME OF DISCHARGE. THE 25-PERCENT INCREASE PROVIDED UNDER 10 U.S.C. 5540 FOR ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE RETAINED ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT IS A SPECIAL PAY WITHIN THE DEFINITION OF PAY IN 10 U.S.C. 101 (27) AND, THEREFORE, IS FOR INCLUSION IN THE COMPUTATION OF A DEATH GRATUITY PAYMENT UNDER 10 U.S.C. 1478. THE RETENTION OF ENLISTED MEMBERS OF THE NAVAL SERVICE ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER THE EXPIRATION OF ENLISTMENT UNDER 10 U.S.C. 5540 IS AN INVOLUNTARY CHANGE IN THE CONTRACTUAL RELATIONSHIP WHICH GIVES RISE TO ENTITLEMENT TO THE 25-PERCENT INCREASE IN BASIC PAY, WHERE THE RETENTION OF MEMBERS AFTER EXPIRATION OF ENLISTMENT FOR AN INDEFINITE PERIOD WHILE UNDERGOING MEDICAL CARE OR HOSPITALIZATION UNDER 10 U.S 5537 MUST BE WITH THE MEMBER'S CONSENT AND FOR HIS BENEFIT AND THE ELEMENT OF INVOLUNTARY RETENTION ENDS; THEREFORE, UPON TRANSFER TO A HOSPITAL FOR TREATMENT THE INCREASE UNDER 10 U.S.C. 5540 TERMINATES, WHETHER THE ENLISTED MAN IS A MEMBER OF A REGULAR OR A RESERVE COMPONENT. AN ENLISTED MEMBER OF THE NAVAL SERVICE WHO WAS IN RECEIPT OF THE 25 PERCENT INCREASE IN PAY AUTHORIZED UNDER 10 U.S.C. 5540 FOR MEMBERS RETAINED ON VESSELS IN FOREIGN WATERS AFTER EXPIRATION OF ENLISTMENT, AND WHO WAS DETACHED AND RETURNED TO THE UNITED STATES VIA OTHER TRANSPORTATION IS ENTITLED TO THE 25-PERCENT INCREASE IN BASIC PAY UNTIL DATE OF DISCHARGE WHICH WAS ACCOMPLISHED WITHIN 30 DAYS AFTER ARRIVAL IN THE UNITED STATES.

TO THE SECRETARY OF THE NAVY, APRIL 10, 1959:

REFERENCE IS MADE TO LETTER OF FEBRUARY 12, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING DECISION ON SEVERAL QUESTIONS RELATING TO INCREASED PAY UNDER 10 U.S.C. 5540. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-N-393 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 5540 OF TITLE 10, U.S. CODE, DERIVED FROM SECTION 1422, REVISED STATUTES, PROVIDES THAT:

(A) THE SENIOR OFFICER PRESENT AFLOAT IN FOREIGN WATERS SHALL SEND TO THE UNITED STATES BY GOVERNMENT OR OTHER TRANSPORTATION AS SOON AS POSSIBLE EACH ENLISTED MEMBER OF THE NAVAL SERVICE WHO IS SERVING ON A NAVAL VESSEL, WHOSE TERM OF ENLISTMENT HAS EXPIRED, AND WHO DESIRES TO RETURN TO THE UNITED STATES. HOWEVER, WHEN THE SENIOR OFFICER PRESENT AFLOAT CONSIDERS IT ESSENTIAL TO THE PUBLIC INTEREST, HE MAY RETAIN SUCH A MEMBER ON ACTIVE DUTY UNTIL THE VESSEL RETURNS TO THE UNITED STATES.

(B)EACH MEMBER RETAINED UNDER THIS SECTION---

(1) SHALL BE DISCHARGED NOT LATER THAN 30 DAYS AFTER HIS ARRIVAL IN THE UNITED STATES; AND

(2) EXCEPT IN TIME OF WAR IS ENTITLED TO AN INCREASE IN BASIC PAY OF 25 PERCENT.

(C) THE SUBSTANCE OF THIS SECTION SHALL BE INCLUDED IN THE ENLISTMENT CONTRACT OF EACH PERSON ENLISTING IN THE NAVAL SERVICE.

THE QUESTIONS PRESENTED FOR DECISION ARE SEPARATELY QUOTED AND ANSWERED BELOW.

1. AN ENLISTED MEMBER OF THE NAVAL SERVICE WHOSE ENLISTMENT EXPIRED WHILE SERVING ON A NAVAL VESSEL IN FOREIGN WATERS WAS RETAINED ON ACTIVE DUTY BECAUSE HIS SERVICES WERE DETERMINED BY THE SENIOR OFFICER PRESENT AFLOAT TO BE ESSENTIAL TO THE PUBLIC INTEREST, AND BECAME ENTITLED TO 25 PERCENT INCREASE IN BASIC PAY. UPON RETURN OF THE VESSEL TO THE UNITED STATES, HE IS TRANSFERRED TO A SEPARATION ACTIVITY. UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY WITHIN 30 DAYS AFTER ARRIVAL IN THE UNITED STATES, WOULD SUCH 25 PERCENT INCREASE IN BASIC PAY BE INCLUDED IN THE COMPUTATION OF THE FOLLOWING ITEMS:

(A) CASH SETTLEMENT FOR UNUSED LEAVE TO HIS CREDIT ON DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY IN ACCORDANCE WITH THE PROVISION OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED?

(B) PHYSICAL DISABILITY RETIREMENT IN ACCORDANCE WITH SECTION 1201 OF TITLE 10, U.S. CODE? IN THIS CONNECTION, WOULD YOUR ANSWER BE THE SAME IF THE MEMBER WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN ACCORDANCE WITH SECTION 1202, OF TITLE 10, U.S. CODE?

(C) DISABILITY SEVERANCE PAY IN ACCORDANCE WITH SECTION 1212 OF TITLE 10, U.S. CODE?

(D) REENLISTMENT BONUS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 207 OR 208, CAREER COMPENSATION ACT OF 1949, AS AMENDED, IF MEMBER REENLISTS IN THE REGULAR NAVY OR MARINE CORPS WITHIN THREE MONTHS OR 90 DAYS FROM OR AFTER THE DATE OF DISCHARGE, RESPECTIVELY? IN THIS CONNECTION, WOULD YOUR ANSWER BE THE SAME IF THE MEMBER IS DISCHARGED AND REENLISTS IN THE REGULAR NAVY OR MARINE CORPS WITHIN 24 HOURS?

(E) SIX-MONTHS DEATH GRATUITY IN ACCORDANCE WITH THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT (38 U.S.C. 1131-1134/?

THE APPARENT PURPOSE OF THE ABOVE-QUOTED PROVISIONS OF LAW IS TO GRANT INCREASED PAY AS COMPENSATION TO MEMBERS FOR ACTIVE DUTY REQUIRED TO BE PERFORMED IN THE PUBLIC INTEREST BEYOND THE PERIOD THEY HAVE VOLUNTARILY AGREED TO SERVE. 37 COMP. GEN. 178. SINCE THAT PURPOSE IS COMPLETELY ACCOMPLISHED BY PAYMENT OF THE 25 PERCENT INCREASE IN BASIC PAY, THE PAYMENT OF ADDITIONAL BENEFITS BASED ON SUCH INCREASED PAY WOULD SEEM TO BE CONTEMPLATED ONLY TO THE EXTENT THAT OTHER PROVISIONS OF LAW CLEARLY SO PROVIDE.

SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, AMENDED SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 946, 37 U.S.C. 33, TO READ IN PERTINENT PART AS FOLLOWS:

(A) LEAVE TO BE SETTLED AND COMPENSATED FOR UNDER SECTION 35 OF THIS TITLE SHALL BE COMPENSABLE AS FOLLOWS:

(1) IN THE CASE OF LEAVE ACCUMULATED AS AN ENLISTED MEMBER OF THE ARMED FORCES, ON THE BASIS OF THE BASE AND LONGEVITY PAY APPLICABLE TO SUCH MEMBER ON THE DATE OF HIS DISCHARGE FROM ENLISTED SERVICE IF DISCHARGED BEFORE AUGUST 31, 1946, OR ON AUGUST 31, 1946, IF NOT SO DISCHARGED, AND AN ALLOWANCE COMPUTED AT THE RATE OF 70 CENTS A DAY FOR SUBSISTENCE, PLUS, IN THE CASE OF ENLISTED MEMBERS OF THE FIRST THREE GRADES WITH DEPENDENTS ON AUGUST 31, 1946, OR FORMER ENLISTED MEMBERS OF THE FIRST THREE GRADES WITH DEPENDENTS AT THE TIME OF DISCHARGE IF PRIOR TO SUCH DATE, AN ALLOWANCE COMPUTED AT THE RATE OF $1.25 A DAY FOR QUARTERS.

(C) ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY, AND ALLOWANCES, APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE INCLUDING FOR ENLISTED PERSONS THE ALLOWANCES AS PROVIDED FOR SUCH ENLISTED PERSONS IN SUBSECTION (A) OF THIS SECTION * *

BY THE TERMS OF THE ABOVE PROVISIONS PAYMENT TO AN ENLISTED MEMBER FOR UNUSED LEAVE IS TO BE COMPUTED ON BASE AND LONGEVITY PAY, SUBSISTENCE ALLOWANCE, AND WHERE APPLICABLE, QUARTERS ALLOWANCE. AMOUNTS PAYABLE UNDER 10 U.S.C. 5540 ARE NOT BASE AND LONGEVITY PAY, BUT ARE PERCENTAGE INCREASES ON SUCH PAY. OBVIOUSLY, SUCH INCREASES HAVE NO RELATIONSHIP TO THE MATTER OF SUBSISTENCE OR QUARTERS ALLOWANCES.

IT HAS BEEN HELD THAT SPECIAL PAY FOR PHYSICIANS AND DENTISTS PROVIDED BY SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 234 (B), NOT BEING ANY PART OF "BASE AND LONGEVITY PAY, AND ALLOWANCES," AS SUCH TERMS ARE USED IN SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33 (C), MAY NOT BE INCLUDED IN COMPUTING PAYMENTS UNDER THE LATTER SECTION. B-103375, SEPTEMBER 12, 1951. INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY MAY NOT BE INCLUDED IN COMPUTING PAYMENTS UNDER SECTION 4 (C). B-127629, MAY 17, 1956. ON THE BASIS OF THE SAME REASONING, IT FOLLOWS THAT INCREASES UNDER 10 U.S.C. 5540, NOT BEING BASE AND LONGEVITY PAY OR ALLOWANCES, ARE NOT FOR INCLUSION IN COMPUTING PAYMENTS FOR UNUSED LEAVE. QUESTION 1 (A) IS ANSWERED IN THE NEGATIVE.

SECTION 1201 OF TITLE 10, U.S. CODE, PERTAINING TO DISABILITY RETIREMENT, AND SECTION 1202, PERTAINING TO THE PLACING OF MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST, BOTH PROVIDE FOR THE COMPUTATION OF RETIRED PAY UNDER 10 U.S.C. 1401. THAT SECTION PROVIDES THAT IN COMPUTING RETIRED PAY APPLICABLE TO PERSONS COVERED BY SECTIONS 1201 AND 1202, SUCH COMPUTATIONS SHALL BE ON MONTHLY BASIC PAY. QUESTION 1 (B) IS ANSWERED IN THE NEGATIVE WHETHER THE MEMBER RECEIVES RETIRED PAY UNDER SECTION 1201 OR SECTION 1202. COMPARE, 38 COMP. GEN. 281, 283, ANSWER TO QUESTION 1, HOLDING THAT PROFICIENCY PAY AUTHORIZED BY SECTION 209 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 240 (A) (2), AS ADDED BY THE ACT OF MAY 20, 1958, 72 STAT. 126, IS NOT FOR INCLUSION IN COMPUTING RETIRED PAY.

THE MATTER OF DISABILITY SEVERANCE PAY IS COVERED BY 10 U.S.C. 1212, WHICH PROVIDES THAT SUCH PAY SHALL BE COMPUTED IN ALL INSTANCES ON "MONTHLY BASIC PAY.' THE PERCENTAGE INCREASE IN PAY NOT BEING A PART OF SUCH BASIC PAY, QUESTION 1 (C) IS ANSWERED IN THE NEGATIVE.

SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238, PROVIDES LUMP-SUM BONUSES FOR REENLISTMENT WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE, WITHOUT REGARD TO THE RATE OF PAY TO WHICH THE MEMBER WAS ENTITLED WHEN DISCHARGED. CONSEQUENTLY, THE MATTER OF ENTITLEMENT, WHEN DISCHARGED, TO AN ADDITIONAL 25 PERCENT OF BASIC PAY CAN HAVE NO APPLICATION TO A REENLISTMENT BONUS UNDER THAT SECTION. SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239, AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, PROVIDES BONUSES FOR REENLISTMENT WITHIN 90 DAYS AFTER DISCHARGE, THE BONUS IN EVERY INSTANCE TO BE COMPUTED ON THE MONTHLY BASIC PAY TO WHICH THE ENLISTED MEMBER WAS ENTITLED AT THE TIME OF HIS DISCHARGE. INCREASES UNDER 10 U.S.C. 5540, NOT BEING BASIC PAY, ARE NOT FOR INCLUSION IN COMPUTATIONS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949. QUESTION 1 (D) IS ANSWERED IN THE NEGATIVE WHETHER OR NOT REENLISTMENT WAS ACCOMPLISHED IN THE REGULAR NAVY OR MARINE CORPS WITHIN 24 HOURS AFTER DISCHARGE.

THE PROVISIONS OF 38 U.S.C. 1131-1134 WERE SUPERSEDED EFFECTIVE SEPTEMBER 2, 1958, BY 10 U.S.C. 1475-1480. UNDER THE LATTER PROVISIONS, PROFICIENCY PAY UNDER SECTION 209 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, IS FOR INCLUSION IN COMPUTING SIX MONTH DEATH GRATUITIES, SINCE 10 U.S.C. 1478 PROVIDES THAT THE GRATUITY SHALL BE EQUAL TO SIX-MONTHS'"PAY; " SECTION 101 (27) OF TITLE 10 DEFINES "PAY" AS INCLUDING "BASIC PAY, SPECIAL PAY; " AND PROFICIENCY PAY UNDER SECTION 209 (A) (2) OF THE CAREER COMPENSATION ACT IS REGARDED AS "SPECIAL PAY.' B-138132, JANUARY 9, 1959, 38 COMP. GEN. 487. WE CONSIDER THAT ADDITIONAL PAY UNDER 10 U.S.C. 5540 ALSO IS "SPECIAL AY" AND HENCE,"PAY" INSOFAR AS THE COMPUTATION OF A DEATH GRATUITY IS CONCERNED. ACCORDINGLY, QUESTION 1 (E) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 IS AS FOLLOWS:

IN THE EVENT A REGULAR NAVY OR MARINE CORPS ENLISTED MEMBER, UNDER THE SAME CONDITIONS OUTLINED IN SUBPARAGRAPH 1 ABOVE, IS, PRIOR TO DISCHARGE, TRANSFERRED TO A HOSPITAL FOR TREATMENT, WOULD THE 25 PERCENT INCREASE IN BASIC PAY CONTINUE TO ACCRUE TO THE MEMBER DURING THE HOSPITALIZATION, REGARDLESS OF THE PERIOD INVOLVED? IN THIS CONNECTION, WOULD YOUR ANSWER BE THE SAME IF HE WERE A MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ENTITLED TO PAY AND ALLOWANCES IN ACCORDANCE WITH SECTION 6148 OF TITLE 10, U.S. CODE?

SECTION 5537, 10 U.S. CODE, PROVIDES THAT:

AN ENLISTED MEMBER OF THE NAVAL SERVICE ON ACTIVE DUTY WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS SUFFERING FROM DISEASE OR INJURY INCIDENT TO SERVICE AND NOT DUE TO HIS MISCONDUCT, AND WHO NEEDS MEDICAL CARE OR HOSPITALIZATION, MAY BE RETAINED ON ACTIVE DUTY, WITH HIS CONSENT,UNTIL HE RECOVERS TO THE EXTENT THAT HE IS ABLE TO MEET THE PHYSICAL REQUIREMENTS FOR REENLISTMENT OR UNTIL IT IS DETERMINED THAT RECOVERY TO THAT EXTENT IS IMPOSSIBLE.

SECTION 6148 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

(A) A MEMBER OF THE NAVAL RESERVE, THE FLEET RESERVE, THE MARINE CORPS RESERVE, OR THE FLEET MARINE CORPS RESERVE WHO IS ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE-DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, OR THE BENEFICIARY OF SUCH A MEMBER WHO DIES FROM SUCH AN INJURY, IS ENTITLED TO THE SAME PENSION, COMPENSATION, DEATH GRATUITY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE. FOR THE PURPOSE OF THIS SUBSECTION, A MEMBER WHO IS NOT IN A PAY STATUS SHALL BE TREATED AS THOUGH HE WERE RECEIVING THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY.

(B) A MEMBER OF THE NAVAL RESERVE, THE FLEET RESERVE, THE MARINE CORPS RESERVE, OR THE FLEET MARINE CORPS RESERVE WHO IS ORDERED TO ACTIVE DUTY, OTHER THAN ACTIVE DUTY FOR TRAINING, FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED, OR THE BENEFICIARY OF SUCH A MEMBER WHO DIES FROM SUCH A DISEASE, IS ENTITLED TO THE SAME PENSION, COMPENSATION, DEATH GRATUITY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE. * * *

SECTION 1422, REVISED STATUTES, 10 U.S.C. 5540, PROVIDED THAT DETENTION THEREUNDER SHOULD BE ,ESSENTIAL TO THE PUBLIC INTERESTS" AND SHOULD NOT EXTEND BEYOND 30 DAYS AFTER ARRIVAL IN AN ATLANTIC OR PACIFIC PORT. SECTION 5540 OF TITLE 10, U.S. CODE, PROVIDES THAT DETENTION THEREUNDER SHALL BE "ESSENTIAL TO THE PUBLIC INTEREST" AND SHALL NOT EXTEND BEYOND 30 DAYS AFTER ARRIVAL IN THE UNITED STATES.

IN 26 COMP. DEC. 1050, CITED IN THE ASSISTANT SECRETARY'S LETTER, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN WHO WAS RETAINED UNDER SECTION 1422, REVISED STATUTES, REPORTED ON A RECEIVING SHIP IN THE UNITED STATES MAY 5, 1919, AND DUE TO DELAY IN THE RECEIPT OF HIS TRANSFER PAY ACCOUNTS ON THE RECEIVING SHIP,"WAS NECESSARILY DETAINED THEREON UNTIL SEPTEMBER 4, 1919, WHEN FINALLY DISCHARGED FROM THE NAVAL SERVICE.' IT WAS HELD THAT THE MAN WAS ENTITLED TO INCREASED PAY UNDER SECTION 1422, REVISED STATUTES, UNTIL SEPTEMBER 4, 1919, IT BEING SAID AT PAGE 1051 THAT:

SECTION 1422 OF THE REVISED STATUTES, AS AMENDED, IMPOSES ON THE COMMANDING OFFICER THE DUTY OF SENDING AN ENLISTED MAN TO A PORT OF THE UNITED STATES FOR DISCHARGE AT EXPIRATION OF ENLISTMENT, WITH THE EXCEPTION THAT HE MAY RETAIN A MAN WHEN HIS SERVICES ARE ESSENTIAL TO THE PUBLIC INTEREST, IN WHICH EVENT THE STATUTE PROVIDES FOR ADDITIONAL PAY. THE STATUTE WAS INTENDED TO INSURE TO A MAN HIS DISCHARGE WHEN THE PERIOD FOR WHICH HE HAD CONTRACTED TO SERVE EXPIRES, OR AS SOON THEREAFTER AS POSSIBLE. IN OTHER WORDS, THE GOVERNMENT SHALL NOT, SUBJECT TO THE NEEDS OF THE PUBLIC INTEREST, BE PERMITTED, BY REASON OF PHYSICAL POSSESSION OF THE MAN, TO HOLD HIM AGAINST HIS WILL. LIKEWISE, THE PROVISION AGAINST RETENTION BEYOND 30 DAYS AFTER ARRIVAL IN THE UNITED STATES IS IN THE INTEREST OF THE MAN, AND THE GOVERNMENT CANNOT PLEAD THIS STATUTE AS A REFUSAL TO PAY A MAN FOR MORE THAN 30 DAYS WHEN IT FAILS TO DISCHARGE HIM AFTER THAT PERIOD HAS ELAPSED.

IT SHOULD BE NOTED THAT WHILE IT WAS SAID IN THE ABOVE DECISION THAT SECTION 1422 WAS INTENDED TO INSURE A MAN HIS DISCHARGE WHEN THE PERIOD FOR WHICH HE HAD CONTRACTED TO SERVE EXPIRES OR AS SOON THEREAFTER AS POSSIBLE, SECTION 5537 OF TITLE 10, U.S. CODE, CONTEMPLATES THAT THE MAN MAY BE RETAINED AFTER EXPIRATION OF HIS CONTRACTUAL TERM OF ENLISTMENT FOR AN INDEFINITE PERIOD SO LONG AS HE IS RECOVERING THROUGH MEDICAL CARE OR HOSPITALIZATION. HIS RETENTION UNDER SECTION 5537 MUST BE WITH HIS CONSENT AND IT IS FOR HIS BENEFIT. RETENTION UNDER 10 U.S.C. 5540 IS AN INVOLUNTARY CHANGE IN THE CONTRACTUAL RELATIONSHIP, AND IT IS THIS CHANGE WHICH GIVES RISE TO A RIGHT TO INCREASED PAY. WHEN THE ELEMENT OF INVOLUNTARY RETENTION ENDS AND HE THEREAFTER IS RETAINED WITH HIS CONSENT AND FOR HIS BENEFIT, THE RIGHT TO SUCH INCREASED PAY TERMINATES. QUESTION 2 IS ANSWERED BY SAYING THAT UPON TRANSFER TO A HOSPITAL FOR TREATMENT UNDER THE PROVISIONS OF 10 U.S.C. 5537, THE INCREASE UNDER 10 U.S.C 5540 TERMINATES, WHETHER THE ENLISTED MAN IS A MEMBER OF A REGULAR OR A RESERVE COMPONENT OF THE NAVY OR MARINE CORPS.

QUESTION 3 IS AS FOLLOWS:

AN ENLISTED MEMBER OF THE NAVAL SERVICE WHOSE ENLISTMENT EXPIRED WHILE SERVING ON A NAVAL VESSEL IN FOREIGN WATERS WAS RETAINED ON ACTIVE DUTY BECAUSE HIS SERVICES WERE DETERMINED BY THE SENIOR OFFICER PRESENT AFLOAT TO BE ESSENTIAL TO THE PUBLIC INTEREST, AND BECAME ENTITLED TO 25 PERCENT INCREASE IN BASIC PAY. IN THE EVENT THE VESSEL REMAINS IN FOREIGN WATERS, THE MEMBER IS DETACHED AND RETURNED TO THE UNITED STATES VIA GOVERNMENT OR OTHER TRANSPORTATION FOR SEPARATION PROCESSING; WOULD THE 25 PERCENT INCREASE IN BASIC PAY TERMINATE ON THE DATE OF DETACHMENT FROM THE VESSEL, ON THE DATE OF FINAL DISCHARGE WITHIN 30 DAYS AFTER ARRIVAL IN THE UNITED STATES, OR DATE OF ARRIVAL IN THE UNITED STATES?

UPON RETENTION UNDER 10 U.S.C. 5540 BECAUSE HIS SERVICES WERE CONSIDERED TO BE ESSENTIAL TO THE PUBLIC INTEREST, THE ENLISTED MAN BECAME ENTITLED TO INCREASED PAY UNDER THAT STATION. THE LAW CONTEMPLATES THAT SUCH INCREASE SHALL CONTINUE THROUGH DATE OF DISCHARGE, WITHIN 30 DAYS AFTER ARRIVAL IN THE UNITED STATES. IT IS ASSUMED THAT THE ENLISTED MAN WAS RETURNED TO THE UNITED STATES AS PROMPTLY AS POSSIBLE AFTER DETACHMENT FROM HIS VESSEL. THE FACT THAT HE WAS NOT RETURNED TO THE UNITED STATES ON THE VESSEL ON WHICH DETAINED, BUT WAS RETURNED AFTER DETACHMENT THEREFROM, BY SOME OTHER MEANS OF TRANSPORTATION, IS NOT MATERIAL. QUESTION 3 IS ANSWERED BY SAYING THAT THE 25 PERCENT INCREASE IN BASIC PAY TERMINATES ON THE DATE OF DISCHARGE UNDER THE CIRCUMSTANCES INDICATED IN THAT QUESTION.