B-143948, JANUARY 16, 1961, 40 COMP. GEN. 417

B-143948, JANUARY 16, 1961, 40 COMP. GEN. 417

MILITARY PERSONNEL - RETIRED PAY - FLEET RESERVISTS - LESS THAN 20 YEARS OF SERVICE - ELECTION THE FIFTH PROVISO OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, WHICH WAS ADDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946 (NOW 10 U.S.C. 6330) AND WHICH PERMITS ENLISTED PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 TO ELECT TO BE TRANSFERRED UNDER SECTION 204, IS WRITTEN IN BROAD TERMS AND ITS APPLICATION IS NOT LIMITED SOLELY TO THOSE PERSONS WITH 20 YEARS' SERVICE WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE, EVEN THOUGH THE LEGISLATIVE HISTORY OF THE FIFTH PROVISO IN SECTION 204 OF THE ACT OF AUGUST 10, 1946, REFERS TO MEN WHO HAD COMPLETED 20 YEARS' SERVICE; THEREFORE, A MARINE CORPS MEMBER WITH LESS THAN 20 YEARS' SERVICE WHO, AFTER AUGUST 10, 1946, QUALIFIED UNDER SECTION 203 FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE MAY ELECT TO BE TRANSFERRED UNDER SECTION 204 AND RECEIVE RETAINER PAY COMPUTED UNDER THAT SECTION.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, JANUARY 16, 1961:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1960, WITH ENCLOSURES, FORWARDED HERE BY ENDORSEMENT OF SEPTEMBER 8, 1960, OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENTS AFTER AUGUST 31, 1960, OF RETAINER PAY TO MASTER SERGEANT BLAIR L. MONTGOMERY, FLEET MARINE CORPS RESERVE, COMPUTED ON THE PERCENTAGE BASIS AUTHORIZED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854C (1952 USED.), AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 34 U.S.C. 854C (1952 USED.). THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE HAS ASSIGNED NO. D0-MC-529 TO YOUR REQUEST.

SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854 B (1952 USED.), PROVIDES IN PERTINENT PART THAT:

MEN SERVING IN THE REGULAR NAVY, WHO, HAVING ENLISTED THEREIN ON JULY 1, 1925, OR PRIOR THERETO, * * * SHALL BE ENTITLED TO BE TRANSFERRED TO THE FLEET RESERVE ON THE COMPLETION OF SIXTEEN OR MORE YEARS' NAVAL SERVICE, AND WHEN SO TRANSFERRED SHALL, EXCEPT WHEN ON ACTIVE DUTY, BE ENTITLED TO RECEIVE, IF THEY HAVE HAD SIXTEEN BUT LESS THAN TWENTY YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-THIRD THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO, AND IF THEY HAVE HAD TWENTY OR MORE YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO * * *

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, PROVIDED, IN PERTINENT PART, THAT:

MEMBERS OF THE NAVY WHO FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, * * * MAY UPON THEIR OWN REQUEST BE TRANSFERRED TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE. AFTER SUCH TRANSFER, EXCEPT WHEN ON ACTIVE DUTY, THEY SHALL BE PAID AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE. * * * PROVIDED FURTHER, THAT NOTHING CONTAINED WITHIN THIS SECTION SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203 OF THIS ACT FROM BEING TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION IF THEY SO ELECT: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY * * *

SECTION 204 OF THE NAVAL RESERVE ACT, AS AMENDED, WAS CODIFIED, INSOFAR AS IS MATERIAL HERE, AS 10 U.S.C. 6330 (1958 USED.).

THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, PERTAINING TO THE FLEET RESERVE, ARE ALSO APPLICABLE TO THE FLEET MARINE CORPS RESERVE BY VIRTUE OF SECTION 2 OF THAT ACT, 52 STAT. 1175, 34 U.S.C. 1200, ARTICLES 65 AND 69 (1952 USED.).

IT APPEARS THAT MR. MONTGOMERY, WHO FIRST ENLISTED IN THE MARINE CORPS PRIOR TO JULY 2, 1925, ELECTED TO BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED; THAT HE WAS SO TRANSFERRED ON JULY 20, 1950, WITH ACTIVE FEDERAL SERVICE OF 16 YEARS AND 13 DAYS, AND INACTIVE RESERVE SERVICE OF 3 YEARS 7 MONTHS 5 DAYS, A TOTAL OF 19 YEARS 7 MONTHS 18 DAYS; AND THAT FROM JULY 21, 1950, THROUGH AUGUST 31, 1960, HE WAS PAID RETAINER PAY COMPUTED ON THE PERCENTAGE METHOD PRESCRIBED IN SECTION 204, AS AMENDED.

ON JULY 20, 1950, WHEN MR. MONTGOMERY WAS TRANSFERRED TO THE FLEET RESERVE, HE MET THE REQUIREMENTS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, QUOTED ABOVE, AND HE WAS ENTITLED TO THE PAY BENEFITS PROVIDED FOR A MAN TRANSFERRED UNDER THAT SECTION WITH 16, BUT LESS THAN 20, YEARS OF NAVAL SERVICE. ALSO IN EFFECT AT THAT TIME WAS THE FIFTH PROVISO OF SECTION 204 OF THE NAVAL RESERVE ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, SUPRA, WHICH PROVIDES IN EFFECT THAT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203 MAY BE TRANSFERRED IN ACCORDANCE WITH SECTION 204, AS AMENDED, IF THEY SO ELECT. THE NAVY DEPARTMENT CONSIDERED THAT MR. MONTGOMERY HAD A RIGHT TO ELECT TO BE TRANSFERRED UNDER THE AMENDED SECTION 204 AND HE ELECTED TO BE SO TRANSFERRED. IT APPEARS THAT HE HAS BEEN PAID THE PAY BENEFITS PROVIDED IN THAT SECTION SINCE THE DATE OF TRANSFER. YOUR LETTER INDICATES THAT YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT OF THE PAY AUTHORIZED BY SECTION 204, AS AMENDED, ARISES BECAUSE MR. MONTGOMERY HAD LESS THAN 19 YEARS AND 6 MONTHS OF FEDERAL SERVICE AT THE TIME OF HIS TRANSFER. YOU CITE OUR DECISION OF OCTOBER 24, 1947, 27 COMP. GEN. 238, ANSWER TO QUESTION 5 (B), AND HULSE V. UNITED STATES, 133 CT.1CL. 848, FOR CONSIDERATION IN RESOLVING THE DOUBT EXPRESSED. THOSE DECISIONS, HOWEVER, INVOLVED PERSONS WHO HAD TRANSFERRED TO THE FLEET RESERVE PRIOR TO THE ACT OF AUGUST 10, 1946, AND THEREFORE THE FIFTH PROVISO WAS NOT APPLICABLE TO THEM, IT BEING HELD IN THE DECISION OF OCTOBER 24, 1947, THAT THAT PROVISO WAS FOR APPLICATION ONLY AS TO TRANSFERS ON AND AFTER AUGUST 10, 1946.

WHILE THE REMARKS FOUND IN THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 10, 1946, AS TO THE PURPOSE OF THE FIFTH PROVISO IN SECTION 204, AS AMENDED, REFER TO MEN WHO HAD COMPLETED 20 YEARS OF SERVICE, THE PROVISO IS WRITTEN IN BOARD TERMS AND ITS APPLICATION IS NOT LIMITED SOLELY TO THOSE PERSONS WITH 20 YEARS' SERVICE WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER SECTION 203. IT APPLIES WITHOUT LIMITATION TO "PERSONS WHO QUALIFY FOR TRANSFER" UNDER SECTION 203 AND, SINCE MR. MONTGOMERY QUALIFIED FOR TRANSFER UNDER THAT SECTION, IT IS OUR OPINION THAT HIS ELECTION TO BE TRANSFERRED UNDER SECTION 204, AS AMENDED, IN ACCORDANCE WITH THE PRACTICE OF THE NAVY DEPARTMENT IN SUCH CASES, WAS WITHIN THE SCOPE OF THAT PROVISO. PAYMENT OF THE RETAINER PAY AUTHORIZED BY THAT SECTION IS PROPER AND YOUR DECISION IS ANSWERED ACCORDINGLY.