B-138761, JUN 8, 1959

B-138761, JUN 8, 1959

PRECIS-UNAVAILABLE

COMMANDER R. A. WILSON, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1959, FORWARDED HERE BY SECOND ENDORSEMENT DATED FEBRUARY 17, 1959, TO WHICH THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, HAS ASSIGNED SUBMISSION NO. DO -N-399. YOUR LETTER REQUESTS DECISION AS TO THE PROPER RATE OF RETIRED PAY IN THE CASE OF WARRANT OFFICER THORNTON A. TANNER, UNITED STATES NAVAL RESERVE, RETIRED.

IT IS STATED THAT MR. TANNER WAS RELEASED FROM ACTIVE DUTY ON SEPTEMBER 30, 1958, WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST ON OCTOBER 1, 1958, WITH THE RATE OF CHIEF BOATSWAIN'S MATE, AND WITH THE RETIRED PAY OF THAT RATE PURSUANT TO 10 U.S.C. 6327; THAT HE HAD COMPLETED 29 YEARS, 2 MONTHS, 12 DAYS' SERVICE ON DATE OF RETIREMENT; AND THAT IN ACCORDANCE WITH 10 U.S.C. 6151 HE WAS ADVANCED TO THE RANK OF WARRANT OFFICER, W-1, FROM THE DATE OF HIS RETIREMENT.

IT IS FURTHER STATED THAT MR. TANNER IS BEING PAID RETIRED PAY AT THE RATE OF $195 PER MONTH, 50 PERCENT OF THE BASIC PAY OF A WARRANT OFFICER (W-1) WITH OVER 26 YEARS' SERVICE. DECISION IS REQUESTED WHETHER HE IS ENTITLED TO RETIRED PAY AT THE RATE OF $282.75 PER MONTH, 2 1/2 PERCENT OF THE BASIC PAY OF A WARRANT OFFICER (W-1) WITH OVER 26 YEARS' SERVICE TIMES 29 (YEARS OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES).

SECTION 6327 OF TITLE 10, U. S. CODE, AS AMENDED BY THE ACT OF AUGUST 1, 1958, 72 STAT. 480, PROVIDES, 10 U.S.C.A. 6327, THAT:

"(A) A MEMBER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE MAY BE TRANSFERRED TO THE RETIRED RESERVE UPON HIS REQUEST IF HE HAS COMPLETED -

(1) AT LEAST 30 YEARS OF ACTIVE SERVICE IN THE ARMED FORCES, OTHER THAN ACTIVE DUTY FOR TRAINING; OR

(2) AT LEAST 20 YEARS OF ACTIVE SERVICE IN THE ARMED FORCES OTHER THAN ACTIVE DUTY FOR TRAINING, THE LAST 10 OF WHICH HE SERVED IN THE 11 YEAR PERIOD IMMEDIATELY PRECEDING HIS TRANSFER TO THE RETIRED RESERVE.

"(B) EACH MEMBER WHO IS TRANSFERRED TO THE RETIRED RESERVE UNDER SUBSECTION (A) IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETIRED PAY AT THE RATE OF 50 PERCENT OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF ON ACTIVE DUTY.

"(C) THIS SECTION APPLIES ONLY TO PERSONS WHO WERE MEMBERS OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE ON JANUARY 1, 1953.

"(D) THIS SECTION TERMINATES ON JANUARY 1, 1973. HOWEVER, ITS TERMINATION WILL NOT AFFECT ANY ACCRUED RIGHTS TO RETIRED PAY.

"(E) A MEMBER WHO IS ELIGIBLE FOR RETIREMENT UNDER THIS SECTION, AND WHO IS ALSO ELIGIBLE FOR RETIREMENT UNDER ANOTHER PROVISION OR FOR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER SECTION 6330 OF THIS TITLE, IS ENTITLED TO ELECT WHICH OF THESE BENEFITS HE IS TO RECEIVE."

SECTION 6151 OF TITLE 10, U. S. CODE, AS AMENDED BY THE ACT OF MAY 20, 1958, 72 STAT. 131, AND THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1507, PROVIDES, 10 U.S.C.A. 6151, THAT:

"(A) UNLESS OTHERWISE ENTITLED TO A HIGHER RETIRED GRADE, EACH MEMBER, OTHER THAN A RETIRED MEMBER, OF THE NAVY OR THE MARINE CORPS SHALL, WHEN RETIRED, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AS DETERMINED BY THE SECRETARY OF THE NAVY.

"(B) EACH MEMBER, OTHER THAN A FORMER MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, WHO IS ADVANCED ON THE RETIRED LIST UNDER THIS SECTION IS, UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED PAY, ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY IN THE GRADE TO WHICH ADVANCED MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED. IN DETERMINING THE NUMBER OF YEARS TO BE USED AS A MULTIPLIER UNDER THIS SUBSECTION, A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED.

"(C) EACH FORMER MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE WHO IS ADVANCED ON THE RETIRED LIST UNDER THIS SECTION IS ENTITLED TO RETIRED PAY BASED UPON THE GRADE TO WHICH ADVANCED. SUCH RETIRED PAY SHALL BE AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE TO WHICH ADVANCED, DETERMINED BY THE SAME PERIOD OF SERVICE USED TO DETERMINE THE BASIC PAY OF THE GRADE UPON WHICH HIS RETAINER PAY IS BASED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE FOR HIS RETAINER PAY AT THE TIME OF RETIREMENT, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED."

THE PROVISIONS OF 10 U.S.C.A. 6327(A) AND 6327(B) RELATING TO TRANSFER TO THE RETIRED RESERVE AND TO RETIRED PAY THEREAFTER, ARE DERIVED FROM SECTION 310 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, PERTAINING TO TRANSFER TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE AND TO RETIRED PAY THEREAFTER. THE PROVISIONS OF 10 U.S.C.A. 6151(A) ARE DERIVED FROM SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I.

IN B-63359, B-65058, APRIL 2, 1948, IT WAS HELD THAT UPON TRANSFER TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE UNDER SECTION 310 OF THE 1938 ACT, AN OFFICER WAS ENTITLED UNDER SECTION 10 OF THE 1941 ACT, AS AMENDED, TO BE ADVANCED TO THE HIGHEST GRADE IN WHICH HE HAD SERVED SATISFACTORILY AND TO RECEIVE THE RETIRED PAY OF SUCH GRADE. BY ANALOGY TO THE REASONING IN THE DECISION OF APRIL 2, 1948, MR. TANNER WAS ENTITLED UPON TRANSFER TO THE RETIRED RESERVE TO BE ADVANCED TO THE GRADE OF WARRANT OFFICER (W-1), UNDER 10 U.S.C.A. 6151(A). HAVING BEEN SO ADVANCED, HE BECAME ENTITLED UNDER 10 U.S.C.A. 6151(B) TO THE RETIRED PAY OF A WARRANT OFFICER (W-1), COMPUTED AS 2 1/2 PERCENT OF THE BASIC PAY OF THAT RANK FOR EACH YEAR OF SERVICE, ACTIVE AND INACTIVE, PROVIDED THE INACTIVE SERVICE OCCURRED BEFORE JUNE 1, 1958.

THE QUESTION PRESENTED IS ANSWERED BY SAYING THAT EFFECTIVE OCTOBER 1, 1958, MR. TANNER BECAME ENTITLED TO RETIRED PAY AT THE RATE OF $282.75 PER MONTH.