B-10520, AUGUST 9, 1940, 20 COMP. GEN. 76

B-10520, AUGUST 9, 1940, 20 COMP. GEN. 76

PAY - RETAINER - EFFECT OF ACTIVE DUTY PAY REDUCTION, ETC., BY COURT MARTIAL SENTENCE A COURT-MARTIAL SENTENCE IMPOSING REDUCTION IN GRADE OR FORFEITURE OF PAY ON MEMBERS OF THE FLEET RESERVE ON ACTIVE DUTY WILL BE CONSIDERED AS APPLICABLE ONLY TO THE PERIOD OF ACTIVE DUTY AND NOT AS CAUSING ANY REDUCTION IN, OR FORFEITURE OF, THEIR RETAINER PAY UNLESS SUCH PURPOSE IS CLEARLY EXPRESSED IN THE SENTENCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 9, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 24, 1940, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE OFFICER IN CHARGE, RETAINER PAY DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, DATED MAY 2, 1940, WITH ACCOMPANYING ENDORSEMENT AND COPY OF APPROVED OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN THIS MATTER, DATED APRIL 6, 1940, REQUESTING YOUR DECISION ON THE SPECIFIC QUESTIONS PRESENTED IN PARAGRAPHS 4, 5, AND 6 OF THE ENCLOSED LETTER, RELATIVE TO RETAINER PAY TO WHICH CERTAIN TRANSFERRED FLEET RESERVISTS REDUCED IN RATING BY SENTENCE OF COURT MARTIAL WHILE ON ACTIVE DUTY ARE ENTITLED AND THE LIABILITY OF ONE OF THESE FLEET RESERVISTS TO CHECK AGE OF BALANCE OF LOSS OF PAY IMPOSED BY SENTENCE OF SUMMARY COURT MARTIAL WHILE ON ACTIVE DUTY.

IN CONNECTION WITH THE QUESTION PRESENTED, IT WILL BE NOTED THAT NONE OF THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT CITED IN THE ENCLOSED CORRESPONDENCE HAVE REFERENCE TO REDUCTION IN PAY BECAUSE OF COURTS MARTIAL. THE ONLY REFERENCE THERETO IS CONTAINED IN GENERAL ACCOUNTING OFFICE UNPUBLISHED MEMORANDUM OF FEBRUARY 29, 1924, D.M. NO. 483. AN EXAMINATION OF THIS MEMORANDUM SHOWS NO DISCUSSION THEREIN AS TO THE EFFECT OF THE PROVISION IN THE NAVAL RESERVE LAW UNDER WHICH TRANSFERRED MEMBERS OF THE FLEET RESERVE ARE AT ALL TIMES MADE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY.

PARAGRAPHS 3, 4, 5, AND 6 OF THE LETTER FROM THE OFFICER IN CHARGE, RETAINER PAY DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, DATED MAY 2, 1940, ARE AS FOLLOWS:

3. THE OFFICER IN CHARGE, RETAINER PAY DIVISION, HAS TWO CASES BEFORE HIM INVOLVING RECALL OF FLEET RESERVISTS TO ACTIVE DUTY, REDUCTION IN RATING PURSUANT TO SENTENCE OF A COURT MARTIAL WHILE ON ACTIVE DUTY, AND TRANSFER TO INACTIVE DUTY IN THE RATING TO WHICH REDUCED.

4. SPECIFICALLY, JOHN BEAM KELLY, C.B.M. ( PA), WAS TRANSFERRED TO CLASS F-4-C ON 26 JUNE 1934 AFTER COMPLETION OF OVER 16 YEARS' SERVICE AND RECEIVED RETAINER PAY COMPUTED AS FOLLOWS: 1/3 BASE PAY $42, PLUS 25 PERCENT BASE PAY $31.50, LESS HOSPITAL FUND 20 CENTS, NET PAY PER MONTH, $73.30. CREDITED WITH ACTIVE DUTY PAY FROM 9 OCTOBER 1939 TO 12 MARCH 1940. DISRATED FROM C.B.M. ( PA) TO B.M. C ON 18 JANUARY 1940 IN ACCORDANCE WITH SUMMARY COURT MARTIAL APPROVED 9 DECEMBER 1939. TO WHAT RATE OF RETAINER PAY IS JOHN BEAM KELLY, B.M. C, NOW ENTITLED?

5. SPECIFICALLY, EDWARD PATRICK RUDDY, B.M. 2C, WAS TRANSFERRED TO CLASS F-4-C ON 10 JULY 1935 AFTER COMPLETION OF OVER 16 YEARS' SERVICE AND RECEIVED RETAINER PAY COMPUTED AS FOLLOWS: 1/3 BASE PAY, $24 PLUS 25 PERCENT BASE PAY $18, LESS HOSPITAL FUND 20 CENTS, NET MONTHLY PAY, $41.80. RECALLED TO ACTIVE DUTY AND CREDITED WITH ACTIVE DUTY PAY AS B.M. 2C FROM 12 SEPTEMBER 1939 TO 20 FEBRUARY 1940, AND AS COX. FROM 21 FEBRUARY 1940 TO 29 FEBRUARY 1940. TO WHAT RATE OF RETAINER PAY IS EDWARD PATRICK RUDDY, COX., NOW ENTITLED?

6. BY TERMS OF A SUMMARY-COURT-MARTIAL SENTENCE APPROVED 9 FEBRUARY 1940 RUDDY WAS SENTENCED TO LOSE PAY AMOUNTING TO $60 (15 X 4) AND WAS CHECKED $11 BEFORE BEING TRANSFERRED TO INACTIVE DUTY. MAY THE BALANCE REMAINING, I.E., $49, BE CHECKED AGAINST HIS RETAINER PAY?

THERE WAS ALSO SUBMITTED COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, DATED APRIL 6, 1940, AS TO THE EFFECT OF A REDUCTION IN RATING BY COURT-MARTIAL SENTENCE OF A MEMBER OF THE FLEET RESERVE SO REDUCED IN RATING WHILE ON ACTIVE DUTY CONTINUES TO HOLD THE REDUCED RATING WHEN HE RESUMES HIS INACTIVE STATUS, UNLESS IN THE MEANTIME OTHER CHANGE IS MADE IN HIS RATING IN ACCORDANCE WITH LAW, AND THAT THE MAN SO REDUCED IN RATING IS ENTITLED ONLY TO RETAINER PAY BASED ON THE RATING TO WHICH REDUCED.

THE JUDGE ADVOCATE GENERAL SUPPORTS HIS CONCLUSION UPON THE PROVISION CONTAINED IN SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853D, IN PART AS FOLLOWS:

* * * THAT MEMBERS OF THE FLEET RESERVE AND OFFICERS AND ENLISTED MEN WHO MAY HAVE HERETOFORE BEEN TRANSFERRED TO THE RETIRED LIST OF THE NAVAL RESERVE FORCE OR THE NAVAL RESERVE OR THE HONORARY RETIRED LIST WITH PAY OR MAY HEREAFTER BE SO TRANSFERRED, SHALL AT ALL TIMES BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY, AND SHALL NOT BE DISCHARGED THEREFROM PRIOR TO THE EXPIRATION OF THEIR TERM OF SERVICE, WITHOUT THEIR CONSENT, EXCEPT BY SENTENCE OF A COURT MARTIAL, OR, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, WHEN SENTENCED BY CIVIL AUTHORITIES TO CONFINEMENT IN A STATE OR FEDERAL PENITENTIARY AS A RESULT OF A CONVICTION FOR A FELONY.

SECTIONS 1 AND 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1178, 34 U.S.C. 853, 854A, RESPECTIVELY, PROVIDE IN PERTINENT 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,

* * * THAT ALL TRANSFERS FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE OR TO THE FLEET RESERVE, AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY, HERETOFORE OR HEREAFTER MADE BY THE SECRETARY OF THE NAVY, SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEMBERS SO TRANSFERRED SHALL, FROM THE DATE OF TRANSFER, BE ENTITLED TO PAY AND ALLOWANCES, IN ACCORDANCE WITH THEIR RANKS OR RATINGS AND LENGTH OF SERVICE AS DETERMINED BY THE SECRETARY OF THE NAVY: * * *

THE DECISIONS OF THIS OFFICE HOLD THAT THE RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET RESERVE OR THE OLD NAVAL RESERVE FORCE, AND THE FLEET NAVAL RESERVE ESTABLISHED BY THE ACT OF FEBRUARY 28, 1925 (WHICH, LIKE THE 1938 ACT, BASED RETAINER PAY ON THE PAY TO WHICH THE MEMBER IS ENTITLED ON DATE OF TRANSFER), IS NOT AFFECTED OR MODIFIED BY PROMOTION IN GRADE OR RATING WHILE ON ACTIVE DUTY OR BY CHANGES IN BASE PAY OF THEIR RATINGS AFTER TRANSFER, BUT REMAINS FIXED AS DETERMINED BY THE PAY OF THEIR RATING WHEN TRANSFERRED. 26 COMP. DEC. 483; 1 COMP. GEN. 77; 2 ID. 85 (AS AFFECTING 26 COMP. DEC. 789; 27 ID. 126, 192); 4 ID. 345.

THE PURPOSE OF THE NAVAL RESERVE ACT OF 1938 WAS TO PROVIDE FOR THE CREATION, ORGANIZATION, ADMINISTRATION, AND MAINTENANCE OF A NAVAL RESERVE AND A MARINE CORPS RESERVE AS A PART OF THE UNITED STATES NAVY. REDUCTION IN GRADE OR RATING OF AN ENLISTED MAN BY SENTENCE OF COURT MARTIAL HAS EXISTED IN THE ARMY AND NAVY SINCE THE BEGINNING OF THE GOVERNMENT; IT HAS BECOME A SETTLED POLICY OF COURT-MARTIAL ADMINISTRATION, AND IT IS NOT TO BE LIGHTLY PRESUMED THAT THE LANGUAGE CONTAINED IN SECTIONS 1 AND 202 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, WAS INTENDED TO LIMIT OR REPEAL THE AUTHORITY OF COURTS MARTIAL BY IMPLICATION. SEE WILLIAMS V. UNITED STATES, 24 CT.1CLS. 306. IN THIS CONNECTION, HOWEVER, AND RECOGNIZING THE REASONING OF THE JUDGE ADVOCATE GENERAL AND THE RULE STATED BY HIM THAT ALL PARTS OF A STATUTE MUST BE GIVEN EFFECT, IF POSSIBLE, DUE CONSIDERATION MUST BE GIVEN, ALSO, TO THE LANGUAGE CONTAINED IN SECTIONS 1 AND 202 OF THE ACT, SUPRA, AND IN REDUCING BY COURT MARTIAL ENLISTED MEMBERS OF THE FLEET RESERVE WHILE ON ACTIVE DUTY THE QUESTION WHETHER IT WAS THE PURPOSE AND INTENT OF THE SENTENCE TO EFFECT A PERMANENT REDUCTION IN GRADE OR RATING IS NOT TO BE RESOLVED UPON A PRESUMPTION OR A GENERALITY. JUDGMENTS, WHETHER OF CIVIL, MILITARY, OR NAVAL TRIBUNALS, SHOULD EMBRACE THE HIGHEST DEGREE OF CERTAINTY--- " CERTAINTY TO A CERTAIN INTENT IN EVERY PARTICULAR.' WILLIAMS V. UNITED STATES, SUPRA, AND CASES THEREIN CITED.

AS THE TRANSFERRED MEMBER, WHILE ON ACTIVE DUTY, IS ENTITLED TO THE PAY OF A RATING TO WHICH PROMOTED, BUT THAT PAY IS REDUCED TO THAT OF HIS GRADE AND LENGTH OF SERVICE WHEN TRANSFERRED ON RELIEF FROM ACTIVE DUTY, NECESSARILY OTHER CHANGES WHILE ON ACTIVE DUTY MUST BE PRESUMED TO APPERTAIN ONLY TO THE PERIOD THE MAN IS ON ACTIVE DUTY UNLESS THE CONTRARY IS CLEARLY SHOWN. IF A COURT-MARTIAL SENTENCE IS INTENDED TO OPERATE BEYOND THE PERIOD OF ACTIVE DUTY OR THAT THE FORFEITURE OF PAY IMPOSED SHALL BE COLLECTED IN FULL, NOTWITHSTANDING THE MAN'S RELIEF FROM ACTIVE DUTY, SUCH INTENT AND PURPOSE SHOULD BE CLEARLY EXPRESSED. THEREFORE, IN THE ABSENCE OF CLEAR AND DEFINITE LANGUAGE, A COURT MARTIAL SENTENCE IMPOSING A REDUCTION IN GRADE OR A FORFEITURE IN PAY WILL BE INTERPRETED AS APPLICABLE ONLY TO THE PERIOD THE MAN IS ON ACTIVE DUTY.

ACCORDINGLY, YOU ARE ADVISED THAT ON THE FACTS PRESENTED THE RETAINER PAY OF KELLY AND RUDDY IS NOT AFFECTED BY THE FACT THAT WHILE ON ACTIVE DUTY THEY WERE REDUCED IN RATING BY COURT-MARTIAL SENTENCE; NOR IS THE BALANCE OF MONTHLY PAY TO BE FORFEITED UNDER THE COURT MARTIAL SENTENCE IN RUDDY'S CASE, REMAINING UNCOLLECTED WHEN HE WAS RETURNED TO INACTIVE STATUS, TO BE COLLECTED FROM HIS RETAINER PAY.