B-142926, JUNE 27, 1960, 39 COMP. GEN. 890

B-142926, JUNE 27, 1960, 39 COMP. GEN. 890

MILITARY PERSONNEL - RETIRED PAY - FLEET RESERVISTS - ACT OF JULY 24, 1956 AN ENLISTED MEMBER WHO WAS IN RECEIPT OF RETAINER PAY AT THE TIME OF DISCHARGE FROM THE FLEET RESERVE ON SEPTEMBER 24, 1941, HAVING BEEN TRANSFERRED TO THE FLEET RESERVE ON AUGUST 25, 1936, UPON COMPLETION OF 20 YEARS OF ACTIVE FEDERAL SERVICE DOES NOT COME UNDER THE ACT OF JULY 24, 1956, WHICH WAS INTENDED TO AUTHORIZE TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND RETIREMENT OF ONLY THOSE FORMER ENLISTED MEN WHO WERE DISCHARGED PRIOR TO AUGUST 10, 1946, AND WHO HAD NOT THEN BEEN ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE BECAUSE THEIR 20 YEARS OR MORE OF ACTIVE SERVICE WAS NOT ENTIRELY IN THE NAVY OR MARINE CORPS; AND, THEREFORE, THE MEMBER MAY NOT BE REAPPOINTED TO THE FLEET RESERVE FOR ENTITLEMENT TO RETIRED PAY UNDER SECTION 3 OF THE ACT WHICH PROVIDES FOR COMPUTATION OF RETIRED PAY ON THE ANNUAL AND LONGEVITY PAY RECEIVED AT TIME OF DISCHARGE.

TO THE SECRETARY OF THE NAVY, JUNE 27, 1960:

REFERENCE IS MADE TO LETTER OF MAY 17, 1960, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING DECISION AS TO THE RETIRED PAY TO WHICH LAWRENCE WALTER BEVINS, DISCHARGED FROM THE FLEET RESERVE ON SEPTEMBER 24, 1941, WOULD BE ENTITLED UPON REAPPOINTMENT TO THE FLEET RESERVE AND TRANSFER TO THE RETIRED LIST UNDER AUTHORITY OF THE ACT OF JULY 24, 1956, 70 STAT. 626, 34 U.S.C. 854C-1 TO 5 (1952 EDITION), SUPP. IV, NOW CODIFIED AS NOTE TO 10 U.S.C. 6330 (1958 EDITION). APPARENTLY THE REQUEST WAS NOT ASSIGNED A "SUBMISSION NUMBER" BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT THE FORMER ENLISTED MAN WAS DISCHARGED FROM THE FLEET RESERVE UNDER HONORABLE CONDITIONS ON SEPTEMBER 24, 1941, HAVING BEEN TRANSFERRED TO THE FLEET RESERVE ON AUGUST 25, 1936, UPON COMPLETION OF 20 YEARS' SERVICE. APPARENTLY, THE FORMER MEMBER HAS REQUESTED REAPPOINTMENT TO THE FLEET RESERVE UNDER THE ACT OF JULY 24, 1956. SINCE HE HAD OVER 20 YEARS OF ACTIVE FEDERAL SERVICE AT THE TIME OF HIS DISCHARGE, IT WAS INDICATED THAT HE WILL BE REAPPOINTED. THE ONLY QUESTION SUBMITTED CONCERNS THE AMOUNT OF RETIRED PAY WHICH WILL BE DUE HIM IN VIEW OF SECTION 3 OF THE ACT, 34 U.S.C. 854C, WHICH PROVIDES FOR THE COMPUTATION OF SUCH RETIRED PAY ON THE BASIS "OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE.' SINCE BEVINS WAS RECEIVING RETAINER PAY AT THE TIME OF HIS DISCHARGE ON SEPTEMBER 24, 1941, THE BELIEF IS EXPRESSED THAT HIS RETIRED PAY SHOULD BE COMPUTED ON THE ACTIVE DUTY BASE AND LONGEVITY PAY HE WAS RECEIVING ON AUGUST 25, 1936, AT THE TIME HE WAS TRANSFERRED TO THE FLEET RESERVE.

IT IS NOT SHOWN WHY BEVINS WAS DISCHARGED FROM THE FLEET RESERVE. WHILE IT APPEARS THAT HE HAS THE ELIGIBILITY QUALIFICATIONS SET FORTH IN SECTION 1 OF THE ACT OF JULY 24, 1956, FOR APPOINTMENT IN THE FLEET RESERVE SINCE HE WAS DISCHARGED UNDER HONORABLE CONDITIONS PRIOR TO AUGUST 10, 1946, AND HAD AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE AT TIME OF DISCHARGE, IT APPEARS DOUBTFUL THAT IT WAS INTENDED THAT PERSONS IN HIS SITUATION SHOULD BE COVERED BY THAT ACT SINCE THE LAW REQUIRES THAT RETIRED PAY BE COMPUTED ON "THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE.' HE WAS RECEIVING RETAINER PAY, NOT ACTIVE DUTY PAY, AT THE TIME OF HIS DISCHARGE.

THE PRIMARY RULE OF STATUTORY CONSTRUCTION IS TO ASCERTAIN AND GIVE THE EFFECT TO THE LEGISLATIVE INTENT. SEE PSYCHAS V. TRANS-CANADA HIGHWAY EXPRESS, LIMITED, 146 F. SUPP. 11. SUCH INTENT MUST NORMALLY BE ASCERTAINED FROM THE LANGUAGE OF THE STATUTE AND THE LEGISLATIVE HISTORY THEREOF. THE CIRCUIT COURT OF APPEALS IN THE CASE OF CITY OF NEWARK V. UNITED STATES, 254 F.2D, 93, AT PAGE 97, STATED:

HOWEVER, IT HAS LONG BEEN A FUNDAMENTAL CANNON OF STATUTORY CONSTRUCTION THAT THE INTENTION OF LAWMAKERS IS PARAMOUNT IN DETERMINING THE MEANING OF AN ACT. A SITUATION NOT WITHIN THE INTENTION OF THE ENABLING BODY, THOUGH IT IS WITHIN THE LETTER OF THE STATUTE, IS NOT WITHIN THE STATUTE. HOLY TRINITY CHURCH V. UNITED STATES, 1892, 143 U.S. 457.

THE LEGISLATIVE HISTORY OF THE ACT OF JULY 24, 1956, CLEARLY SHOWS THAT IT WAS INTENDED TO AUTHORIZE THE TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND RETIREMENT OF ONLY THOSE FORMER NAVY OR MARINE CORPS ENLISTED MEN, WHO WERE DISCHARGED PRIOR TO AUGUST 10, 1946, AND WHO HAD NOT THEN BEEN ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE DUE TO THE FACT THAT THEIR 20 OR MORE YEARS OF ACTIVE SERVICE WAS NOT ENTIRELY IN THE NAVY OR MARINE CORPS. UNDER THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854C, ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS WERE ALLOWED CREDIT FOR THEIR ACTIVE DUTY PERFORMED IN OTHER SERVICES TOWARD COMPUTATION OF TIME REQUIRED FOR TRANSFER TO THE FLEET RESERVE AND FOR LATER ENTITLEMENT TO RETIRED PAY. THE FOLLOWING DISCUSSION CONCERNING THIS MATTER APPEARS ON PAGES 7959 AND 7960 OF THE HEARINGS ON H.R. 6729 (LATER ENACTED INTO LAW AS THE ACT OF JULY 24, 1956) BEFORE SUBCOMMITTEE NO. 2, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES:

MR. KILDAY. THE PURPOSE OF H.R. 6729 IS TO PROVIDE AUTHORITY FOR APPOINTMENT IN THE FLEET RESERVE OR THE FLEET MAINE ( MARINE) CORPS RESERVE AS APPROPRIATE AND FOR THE FURTHER TRANSFER TO THE RETIRED LIST WITH RETIRED PAY OF THOSE PERSONS WITH 20 OR MORE YEARS OF ACTIVE FEDERAL SERVICE WHO WERE DISCHARGED UNDER HONORABLE CONDITIONS PRIOR TO AUGUST 10, 1946, AND WHO AT THE TIME OF DISCHARGE WERE NOT ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE UNDER THE LAWS THEN IN EFFECT SINCE THE ACTIVE SERVICE PERFORMED AT THAT TIME HAD NOT ALL BEEN PERFORMED IN THE NAVAL SERVICE.

SINCE AUGUST 10, 1946, ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS HAVE BEEN ABLE TO CREDIT THEIR ACTIVE DUTY PERFORMED IN OTHER SERVICES TOWARD THE COMPUTATION OF TIME REQUIRED FOR TRANSFER TO THE FLEET RESERVE AND THE LATER ENTITLEMENT TO RETIRED PAY.

THERE IS ONLY ONE KNOWN CASE INVOLVED BUT THE PROPOSED LEGISLATION IS GENERAL IN NATURE IN THE EVENT OTHER CASES ARE DISCLOSED.

MR. DORN OF SOUTH CAROLINA, THE AUTHOR OF THE BILL STATED: * * *

WHAT MOTIVATED THIS BILL IN THE FIRST PLACE WAS A FELLOW IN MY DISTRICT WHO HAD SERVED 16 YEARS IN THE NAVY AND 4 IN THE ARMY, BUT HE IS NOT ELIGIBLE FOR RETIREMENT. I MEAN, HE CAN-T GET ANY RETIREMENT BECAUSE HE SPENT 4 YEARS IN THE ARMY AND 16 IN THE NAVY. BUT HE HAS SERVED 20 YEARS. AND I JUST UNDERSTAND THAT THAT IS NOT THE ONLY CASE IN THE UNITED STATES. THERE ARE OTHERS. AND CERTAINLY THAT SEEMS A LITTLE BIT RIDICULOUS. HE SPENT 20 YEARS IN THE ARMED FORCES OF THE UNITED STATES AND HE SHOULD BE RETIRED OR SHOULD GET RETIREMENT. I JUST DON-T THINK THAT IS RIGHT, MR. CHAIRMAN. AND THIS BILL JUST RECTIFIES THAT SITUATION.

SINCE IT IS CLEAR THAT BEVINS HAD COMPLETED MORE THAN 20 YEARS' SERVICE BEFORE AUGUST 25, 1936, AND ACTUALLY WAS TRANSFERRED TO THE FLEET RESERVE AT THAT TIME, HE IS NOT COVERED BY THE 1956 ACT AND THAT ACT CONTAINS NO AUTHORITY FOR HIS REAPPOINTMENT TO THE FLEET RESERVE SO AS TO BE ENTITLED TO RETIRED PAY UNDER SECTION 3 THEREOF.