B-82818, MAY 9, 1949, 28 COMP. GEN. 635

B-82818, MAY 9, 1949, 28 COMP. GEN. 635

PAY -RETAINER; RETIRED - FLEET RESERVIST REDUCED IN RATING WHILE ON ACTIVE DUTY AFTER TRANSFER WHILE A FLEET RESERVIST WHO PERFORMED ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE AND WHO WHILE SO SERVING WAS REDUCED IN RATING PURSUANT TO A COURT-MARTIAL SENTENCE ELECTED TO HAVE HIS RETAINER OR RETIRED PAY COMPUTED UNDER LAWS IN EFFECT AFTER AUGUST 10, 1946 SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, SUCH RESERVIST IS ENTITLED, BY VIRTUE OF THE SAVINGS PROVISION IN SECTION 208, TO HAVE HIS RETAINER OR RETIRED COMPUTED ON THE BASIS OF THE HIGHER RATING HELD BY HIM WHEN TRANSFERRED TO THE RESERVE, RATHER THAN ON THE BASIS OF THE REDUCED RATING HELD WHEN AN INACTIVE-DUTY STATUS WAS RESUMED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 9, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 10, 1949, ENCLOSING A LETTER DATED NOVEMBER 17, 1948, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO THE RETAINER AND RETIRED PAY OF JOHN WALTER SPEIDEL, FLEET RESERVE, RETIRED. BASED UPON THE FACTS SET FORTH IN THE SAID LETTER OF NOVEMBER 17, 1948, DECISION IS REQUESTED ON THE FOLLOWING SPECIFIC QUESTIONS:

(A) IS SPEIDEL ENTITLED TO RETAINER AND RETIRED PAY COMPUTED ON THE BASIS OF THE RATING HELD BY HIM AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE?

(B) IS SPEIDEL ENTITLED, UNDER THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT APPROVED AUGUST 10, 1946 (60 STAT. 994; 34 U.S.C. 854G), TO COUNT A FRACTIONAL YEAR OF SIX MONTHS OR MORE AS A FULL YEAR FOR LONGEVITY PAY PURPOSES IN COMPUTING HIS RETAINER AND RETIRED PAY?

IT IS STATED IN THE LETTER OF THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, THAT SPEIDEL WAS TRANSFERRED TO CLASS F-4-C OF THE FLEET RESERVE WITH THE RATING OF SHIP'S COOK, FIRST CLASS, ON MARCH 15, 1934, AFTER COMPLETION OF MORE THAN 16 YEARS' SERVICE, AND IMMEDIATELY WAS COMPLETION OF MORE THAN 16 YEARS' SERVICE, AND IMMEDIATELY WAS RELEASED TO INACTIVE DUTY; THAT HE WAS RECALLED TO ACTIVE DUTY NOVEMBER 18, 1940; THAT HE WAS APPOINTED CHIEF COMMISSARY STEWARD, ACTING APPOINTMENT, ON AUGUST 1, 1942; AND THAT HE WAS GIVEN A PERMANENT APPOINTMENT IN THE SAME RATING ON APRIL 1, 1943. IT IS FURTHER STATED THAT PURSUANT TO SENTENCE OF A GENERAL COURT-MARTIAL, APPROVED BY THE CONVENING AUTHORITY ON JANUARY 26, 1944, THE ENLISTED MAN WAS SENTENCED TO BE REDUCED TO THE RATING OF APPRENTICE SEAMAN, TO BE CONFINED FOR A PERIOD OF THREE YEARS, THEN TO BE DISCHARGED FROM THE NAVAL SERVICE WITH A BAD CONDUCT DISCHARGE, AND TO SUFFER ALL THE OTHER ACCESSORIES OF THE SAID SENTENCE. ALSO, IT IS STATED THAT REDUCTION TO THE GRADE OF APPRENTICE SEAMAN WAS MADE EFFECTIVE JANUARY 26, 1944; THAT ON FEBRUARY 4, 1944, THE ENLISTED MAN WAS TRANSFERRED TO NAVAL PRISON, PORTSMOUTH, NEW HAMPSHIRE, FOR CONFINEMENT; THAT ON JUNE 13, 1944, THE SECRETARY OF THE NAVY REMITTED THE UNEXECUTED PORTION OF THE ABOVE SENTENCE, SUBJECT TO A PROBATIONARY PERIOD OF SIX MONTHS; THAT THE ENLISTED MAN WAS RESTORED TO DUTY AND ADVANCED IN RATING FROM APPRENTICE SEAMAN TO SEAMAN, SECOND CLASS, ON JUNE 13, 1944; THAT ON OCTOBER 16, 1944, HE WAS ADVANCED IN RATING TO SEAMAN, FIRST CLASS, WHICH RATING HE HELD ON APRIL 27, 1945, DATE OF RELEASE FROM ACTIVE DUTY; AND THAT HE WAS TRANSFERRED TO THE RETIRED LIST ON JULY 1, 1947. IT IS FURTHER STATED THAT SPEIDEL ELECTED TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED UNDER LAWS IN EFFECT AFTER AUGUST 10, 1946.

SECTION 1 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 34 U.S.C. 853, PROVIDES IN PART AS FOLLOWS:

* * * THAT ALL MEN WHO ON THE DATE OF THIS ACT ARE MEMBERS OF THE FLEET NAVAL RESERVE AS THE RESULT OF SIXTEEN OR MORE YEARS OF ACTIVE NAVAL SERVICE, ARE HEREBY TRANSFERRED TO THE FLEET RESERVE CREATED BY THIS ACT, AND SHALL CONTINUE TO RECEIVE THE SAME PAY, ALLOWANCES, AND BENEFITS WHICH THEY WERE LEGALLY ENTITLED TO RECEIVE AT THE TIME OF APPROVAL OF THIS ACT,

SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, AMENDED TITLE II OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, BY ADDING THERETO A NEW SECTION 208 TO READ AS FOLLOWS:

WHENEVER ENLISTED MEN OF THE FLEET RESERVE, TRANSFERRED THERETO AFTER MORE THAN SIXTEEN YEARS' SERVICE, OR ENLISTED MEN TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206 OF THIS TITLE, SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN INACTIVE-DUTY STATUS, AND IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM: PROVIDED, THAT SUCH PAY SHALL NOT EXCEED 75 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE HIGHEST RATING TO WHICH ENTITLED UNDER THE PROVISIONS OF THIS SECTION: PROVIDED FURTHER, THAT ACTIVE DUTY PERFORMED DURING ANY PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT SHALL BE CONSIDERED FOR THE PURPOSE OF THIS SECTION AS NOT BEING ACTIVE DUTY IN TIME OF PEACE REQUIRED BY SECTION 206: PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS SECTION SHALL OPERATE TO REDUCE THE RETAINER OR RETIRED PAY AND ALLOWANCES TO WHICH ANY ENLISTED MAN WOULD OTHERWISE HAVE BEEN ENTITLED: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY: AND PROVIDED FURTHER, THAT PERSONS OF THE CLASSES DESCRIBED IN THIS SECTION WHO HAVE BEEN RETIRED OR RETURNED TO AN INACTIVE DUTY STATUS PRIOR TO THE DATE OF APPROVAL OF THIS SECTION SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RETURN TO AN INACTIVE DUTY STATUS.

SECTION 9 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 997, PROVIDES:

NO BACK PAY FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT OF THIS ACT SHALL ACCRUE TO ANY PERSON BY REASON OF THE ENACTMENT OF THIS ACT EXCEPT AS OTHERWISE PROVIDED IN SECTION 3. NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE ARMED FORCES, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT. RETIRED ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS, PERSONNEL OF THE NAVY AND MARINE CORPS WHO ARE MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AND PERSONNEL OF THE NAVY AND MARINE CORPS WHO BECOME ELIGIBLE AND WHO APPLY FOR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE SHALL RECEIVE AN OPPORTUNITY TO ELECT TO RECEIVE RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF THIS ACT OR TO RECEIVE SUCH PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF THE ENACTMENT OF THIS ACT, AND THESE PERSONS SHALL BE ENTITLED TO RECEIVE THE PAY ELECTED.

IN 20 COMP. GEN. 76, IT WAS CONCLUDED THAT, IN THE ABSENCE OF CLEAR AND DEFINITE LANGUAGE TO THE CONTRARY, A COURT-MARTIAL SENTENCE IMPOSING A REDUCTION IN GRADE OF A FLEET RESERVIST ON ACTIVE DUTY WOULD BE CONSIDERED TO BE APPLICABLE ONLY TO THE PERIOD WHILE ON ACTIVE DUTY, AND NOT TO SUBSEQUENT RETAINER PAY.

THERE WAS, OF COURSE, NO MENTION IN SPEIDEL'S SENTENCE OF REDUCTION IN GRADE SUBSEQUENT TO HIS RELIEF FROM ACTIVE DUTY, SINCE THE SAID SENTENCE CONTEMPLATED HIS DISCHARGE UPON RELEASE FROM CONFINEMENT, AND WERE IT NOT FOR THE SUBSEQUENT REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE THERE WOULD APPEAR TO BE NO DOUBT WHATEVER THAT THE PURPOSE AND INTENT OF THE SAID SENTENCE NOT ONLY WAS TO REDUCE THE MAN IN RATING PRIOR TO CONFINEMENT BUT, ALSO, TO SEVER HIS CONNECTION WITH THE UNITED STATES NAVAL RESERVE ALTOGETHER, WHICH, NECESSARILY, WOULD INCLUDE HIS REMOVAL THEREFROM AS A MEMBER OF THE FLEET RESERVE. STANDING ALONE, THEREFORE, THE SENTENCE WAS CLEAR IN PURPOSE AND INTENT, BUT AS A RESULT OF THE PARTIAL REMISSION, AND PROBATION SUBSEQUENT TO HIS RELEASE FROM CONFINEMENT IN THE NAVAL PRISON, WHICH INCLUDED REMISSION OF THE BAD CONDUCT DISCHARGE, THE SAME UNCERTAINTY IS CREATED AS TO THE ULTIMATE EFFECT OF THE SENTENCE FOLLOWING RELEASE FROM ACTIVE DUTY AS WAS CONSIDERED IN 20 COMP. GEN. 76, AND THAT DECISION IS FOR APPLICATION HERE. HENCE, SPEIDEL WOULD BE ENTITLED TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED ON THE BASIS OF THE RATING HELD BY HIM WHEN HE WAS TRANSFERRED TO THE FLEET RESERVE, PLUS ANY INCREASE THEREIN BY VIRTUE OF CREDITABLE ACTIVE DUTY PERFORMANCE SINCE TRANSFER UNDER SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367.

HOWEVER, THE ENLISTED MAN HAS ELECTED TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED UNDER THE LAWS IN EFFECT AFTER AUGUST 10, 1946, AND SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, PROVIDES IN PERTINENT PART THAT THE RETAINER AND RETIRED PAY OF MEN WHO PERFORM ACTIVE DUTY AFTER TRANSFER OR RETIREMENT "SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE-DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING.' SEE 26 COMP. GEN. 804, 810, ANSWER TO QUESTION (F). WHEN AN ENLISTED MAN PERFORMS ACTIVE DUTY SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE, UNDER THE CONDITIONS SPECIFIED IN SECTION 208, AND HE IS REDUCED IN RATING WHILE SO SERVING, THE PROVISION JUST QUOTED REQUIRES THAT HIS RETAINER PAY OR RETIRED PAY BE COMPUTED ON THE BASIS OF THE REDUCED RATING WHEN HE RESUMES AN INACTIVE- DUTY STATUS. WHETHER THERE BE ADVANCEMENT OR REDUCTION IN RATING WHILE ON ACTIVE DUTY, THE SECTION PROVIDES THAT RETAINER OR RETIRED PAY "SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME AN INACTIVE DUTY STATUS.' THUS, IF BASED UPON THE SAID SECTION 208, SPEIDEL'S RETAINER PAY WOULD BE COMPUTED ON THE PAY OF THE RATING HELD BY HIM UPON RELIEF FROM ACTIVE DUTY PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE.

SECTION 208 ALSO PROVIDES " THAT NOTHING CONTAINED IN THIS SECTION SHALL OPERATE TO REDUCE THE RETAINER OR RETIRED PAY AND ALLOWANCES TO WHICH ANY ENLISTED MAN WOULD OTHERWISE HAVE BEEN ITLED.'

IT WAS SAID IN 26 COMP. GEN. 804, 816, THAT THE GENERAL PURPOSE OF A SAVINGS CLAUSE CONTAINED IN PAY STATUTES IS TO SAVE TO PERSONNEL AFFECTED THEREBY HIGHER PAY AND ALLOWANCES TO WHICH THEY MAY HAVE BEEN ENTITLED UNDER A PRIOR LAW BUT NEVER, IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY, TO PERMIT THE COMMINGLING OF THE PROVISIONS OF THE PRIOR LAW AND THE CURRENT LAW SO AS TO GIVE SUCH PERSONNEL GREATER BENEFITS THAN THEY WOULD HAVE RECEIVED UNDER EITHER LAW ALONE. THAT STATEMENT WAS MADE IN REGARD TO SECTION 9 OF THE ACT OF AUGUST 10, 1946, SUPRA, A SAVINGS PROVISION RELATIVE TO THE WHOLE ACT OF THAT DATE. THE SAME REASONING APPLIES TO THE SAVINGS CLAUSE IN SECTION 208, RELATIVE TO THAT SECTION ALONE. IN OTHER WORDS, THE SAID SAVINGS CLAUSE PERTAINS TO SECTION 208 AS A WHOLE.

UNDER SECTION 208 SPEIDEL'S RETAINER AND RETIRED PAY FROM APRIL 28, 1945, WOULD BE COMPUTED ON PAY OF THE FIFTH PAY GRADE, SEAMAN, FIRST CLASS, OR THE PRESENT EQUIVALENT THEREOF, AND HE WOULD BE ENTITLED TO COUNT THEREUNDER FROM APRIL 28, 1945, A FRACTIONAL YEAR OF SIX MONTHS OR MORE AS A FULL YEAR; HOWEVER, EXCLUSIVE OF SECTION 208, HIS RETAINER AND RETIRED PAY FROM APRIL 28, 1945, WOULD BE COMPUTED ON PAY OF THE SECOND PAY GRADE SHIP'S COOK, FIRST CLASS, OR THE PRESENT EQUIVALENT THEREOF, WITHOUT THE BENEFIT OF THE FRACTIONAL YEAR PROVISION CONTAINED THEREIN. THUS, IF MR. SPEIDEL'S RETAINER AND RETIRED PAY WERE TO BE ESTABLISHED UNDER SECTION 208 HE WOULD THEREBY SUFFER A REDUCTION IN SUCH PAY TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED UNDER THE LAWS IN EFFECT PRIOR TO AUGUST 10, 1946.

ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE; QUESTION (B) IS ANSWERED IN THE NEGATIVE.