B-134160, JAN. 29, 1958

B-134160, JAN. 29, 1958

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1957, REQUESTING ON BEHALF OF YOUR CLIENT, MR. GEORGE LEROY O-NEAL, THAT WE RECONSIDER OUR DECISION OF DECEMBER 4, 1957, B-134160, WHEREIN IT WAS HELD THAT MR. O NEAL WAS NOT ENTITLED, BY REASON OF ACTIVE DUTY PERFORMED BY HIM AFTER HIS TRANSFER TO THE FLEET NAVAL RESERVE, TO THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS.

THE STATEMENT OF MR. O-NEAL'S SERVICE FURNISHED US BY THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, AND THE STATUTORY PROVISIONS APPLICABLE TO HIS CASE WERE QUOTED IN OUR DECISION OF DECEMBER 4, 1957, AND NEED NOT BE REPEATED HERE. YOU REFER TO OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 813, IN WHICH IT WAS SAID--- IN ANSWER TO THE QUESTION WHETHER MEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, 42 STAT. 799, 800, WITH LESS THAN FIFTEEN YEARS' ACTUAL SERVICE WERE TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WITHIN THE CONTEMPLATION OF THE ABOVE SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10, 1946--- THAT:

"UNDER THE QUOTED PROVISION OF THE NAVAL APPROPRIATION ACT, 1923, 42 STAT. 799, ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE THEREWITH ARE PLACED IN THE SAME STATUS WITH RESPECT TO PAY AND ALLOWANCES AS ENLISTED MEN TRANSFERRED AT THE EXPIRATION OF ENLISTMENT "AFTER 16 YEARS' SERVICE.' WHERE IT BECOMES MATERIAL, FOR PAY PURPOSES, TO DETERMINE THE NUMBER OF YEARS WHICH SUCH TRANSFERRED MEMBERS OF THE FLEET RESERVE MAY BE CONSIDERED TO HAVE HAD AT THE TIME OF TRANSFER, IT IS OBVIOUS THAT THEY CANNOT BE CONSIDERED TO HAVE HAD MORE THAN 16 YEARS' SERVICE. TO CONSIDER THEIR SERVICE OTHERWISE WOULD RESULT IN SUCH UNCERTAINTY AS TO THEIR LENGTH OF SERVICE AS TO MAKE THE COMPUTATION OF THEIR PAY IMPOSSIBLE. THEREFORE, THEY MAY NOT BE CONSIDERED TO HAVE BEEN TRANSFERRED AFTER "MORE" THAN 16 YEARS' SERVICE. SEE THE ANSWER TO QUESTION (C) ABOVE. ACCORDINGLY, QUESTION (J) IS ANSWERED IN THE NEGATIVE

THE ANSWER TO QUESTION (C), REFERRED TO IN THE ABOVE QUOTATION, WAS THAT MEN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WERE NOT TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" AS THAT TERM WAS USED IN SECTION 208.

SINCE IT WAS HELD IN THE DECISION OF APRIL 24, 1947, THAT MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WERE NOT ELIGIBLE FOR THE BENEFITS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, THERE WAS NO OCCASION TO SPECULATE AS TO WHAT SERVICE WOULD BE CREDITABLE, UNDER SECTION 208, TO A MAN TRANSFERRED UNDER THE 1922 ACT.

ALSO, YOU REFER TO ABAD ET AL. V. UNITED STATES, C.CLS. NO. 49667, DECIDED OCTOBER 2, 1956. IN THAT CASE IT WAS HELD THAT A MAN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WAS TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WITHIN THE CONTEMPLATION OF SECTION 208. IN B 129880, FEBRUARY 6, 1957, 36 COMP. GEN. 579, IT WAS HELD THAT WE WOULD FOLLOW THE COURT'S OPINION IN THE ABAD CASE AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS AND, ACCORDINGLY, THE ANSWER TO QUESTION (C) IN THE DECISION OF APRIL 24, 1947, WAS OVERRULED.

IT WAS HELD IN SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT AN ENLISTED MAN WHO HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087--- SUPERSEDED BY THE SECTION 203 OF THE NAVAL RESERVE ACT OF 1938--- WITH MORE THAN SIXTEEN AND LESS THAN TWENTY YEARS' ACTIVE SERVICE (WITH CONSEQUENT ENTITLEMENT TO RETAINER PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS) AND WHO, SUBSEQUENT TO SUCH TRANSFER, PERFORMED ACTIVE DUTY OF 4 YEARS, 10 MONTHS, AND 20 DAYS, WAS ENTITLED BY VIRTUE OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, UPON RELEASE FROM SUCH ACTIVE DUTY, TO RETAINER OR RETIRED PAY ON THE BASIS OF TWENTY YEARS' ACTIVE SERVICE, THAT IS, TO ONE- HALF OF BASE PAY PLUS PERMANENT ADDITIONS. THE LANGUAGE OF THE COURT IN THAT CASE THAT "THE INTENT OF CONGRESS APPEARS TO HAVE BEEN TO ALLOW ENLISTED MEN RETIRED OR RELEASED TO INACTIVE DUTY AND THEN RECALLED FOR AN EXTENDED PERIOD OF ACTIVE DUTY, TO COUNT THEIR WARTIME SERVICE IN THE COMPUTATION OF RETIREMENT PAY IN THE SAME MANNER AS IF THEIR ACTUAL-DUTY STATUS HAD BEEN CONTINUOUS," SEEMS PARTICULARLY APPLICABLE TO THE PRESENT CASE.

WE FOLLOWED BOTH THE SANDERS DECISION AND THE REASONING IN 26 COMP. GEN. 804, 813, IN REACHING OUR DECISION OF DECEMBER 4, 1957. WE CONCLUDED THAT A MAN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN SIXTEEN YEARS' SERVICE WAS IN THE SAME POSITION AS A MAN TRANSFERRED UNDER SOME OTHER PROVISION OF LAW WITH EXACTLY SIXTEEN YEARS' SERVICE INSOFAR AS THE DETERMINATION OF WHETHER SECTION 208 IS APPLICABLE TO HIM AND THAT SINCE A MAN TRANSFERRED WITH EXACTLY 16 YEARS' SERVICE COMES WITHIN THE SCOPE OF THAT SECTION (ABAD CASE), IT MUST FOLLOW THAT A MAN TRANSFERRED UNDER THE 1922 ACT WITH LESS THAN 16 YEARS' SERVICE ALSO COMES WITHIN THE SCOPE OF THAT SECTION. IT WAS CONCLUDED, ALSO, FOLLOWING THE SANDERS DECISION, THAT A MAN WITHIN THE PROVISIONS OF SECTION 208 IS ENTITLED, UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, TO RETAINER OR RETIRED PAY AS A TWENTY-YEAR MAN IF HIS TOTAL CREDITABLE SERVICE, BEFORE AND AFTER TRANSFER, WOULD HAVE ENTITLED HIM, UPON THE DAY OF HIS RELEASE FROM SUCH ACTIVE DUTY, TO TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 AS A TWENTY YEAR MAN. IN OTHER WORDS, THE DECISION OF DECEMBER 4, 1957, WAS PREDICATED UPON THE PRINCIPLE OF THE SANDERS CASE, EQUAL BENEFITS FOR EQUAL SERVICE.

SINCE MR. O-NEAL, UPON HIS RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, HAD PERFORMED AN AGGREGATE OF BUT 17 YEARS, 1 MONTH, AND 22 DAYS' CREDITABLE SERVICE, IT WAS HELD THAT HE HAD NOT MET THE REQUIREMENT FOR PAY AS A TWENTY-YEAR MAN OF AT LEAST 19 YEARS AND 6 MONTHS' SERVICE.

YOU REFER TO THE CASE OF OKEY N. ROUNSAVELL, OUR CLAIM NO. Z 1804002, DISCUSSED IN THE DECISION OF DECEMBER 4, 1957, AND STATE THAT WHEN YOU REQUESTED REVIEW OF OUR DISALLOWANCE OF ROUNSAVELL'S CLAIM, YOU MADE IT PLAIN THAT YOU SOUGHT TO HAVE HIM CREDITED WITH SIXTEEN YEARS' CONSTRUCTIVE SERVICE UPON HIS TRANSFER TO THE FLEET NAVAL RESERVE TO WHICH SHOULD BE ADDED HIS SERVICE AFTER TRANSFER TO DETERMINE WHETHER HE HAD SUFFICIENT TOTAL SERVICE (19 YEARS AND 6 MONTHS) TO QUALIFY AS A TWENTY- YEAR MAN UNDER SECTION 208. IT IS TRUE THAT YOUR REQUEST FOR RECONSIDERATION WAS SUBMITTED ON THAT BASIS. IT ALSO IS TRUE, AS POINTED OUT IN THE DECISION OF DECEMBER 4, 1957, THAT ROUNSAVELL, WHO WAS TRANSFERRED TO THE FLEET NAVAL RESERVE WITH SERVICE OF 15 YEARS, 5 MONTHS, 3 DAYS, THUS ACHIEVING A TOTAL OF 20 YEARS, 1 MONTH, AND 6 DAYS' SERVICE. HIS CLAIM WAS ALLOWED ON THE BASIS OF THAT TOTAL SERVICE, SINCE IT WOULD HAVE ENTITLED HIM, ON THE DAY OF HIS RELEASE FROM ACTIVE DUTY AFTER TRANSFER, TO TRANSFER TO THE FLEET RESERVE AS A TWENTY-YEAR MAN. THUS, THERE WAS A PROPER BASIS FOR THE ALLOWANCE OF HIS CLAIM.

YOU MAINTAIN THAT THE DECISION OF DECEMBER 4, 1957, WILL DESTROY THE TIME -HONORED DISTINCTION BETWEEN A FLEET RESERVIST'S SERVICE FOR TRANSFER PURPOSES (CONSTRUCTIVE SERVICE) AND SERVICE FOR PAY PURPOSES (DAY TO DAY SERVICE). A CAREFUL READING OF THE DECISION WILL DISCLOSE THAT IT RECOGNIZED THAT THERE SHOULD BE CREDITED IN THE COMPUTATION OF SERVICE FOR DETERMINATION OF WHETHER A TOTAL OF 19 YEARS AND 6 MONTHS, FOR PURPOSES OF ELIGIBILITY FOR TRANSFER HAD BEEN ACHIEVED, BEFORE AND AFTER TRANSFER TO THE FLEET RESERVE, ANY AND ALL CONSTRUCTIVE SERVICE WHICH COULD HAVE BEEN CREDITED FOR PURPOSES OF ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE ON THE DAY OF RELEASE FROM ACTIVE DUTY AFTER TRANSFER, FOR EXAMPLE, FULL CREDIT FOR A MINORITY ENLISTMENT AND FULL CREDIT FOR AN ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO ITS EXPIRATION TERM (SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178).

FINALLY, YOU STATE THAT TRANSFERS UNDER THE 1922 ACT WERE EFFECTED AS AN ECONOMY MOVE. IN THIS CONNECTION, IT IS NOTED THAT MEN WHO HAD COMPLETED TWELVE YEARS' SERVICE AND DID NOT WISH TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE APPARENTLY WERE EXEMPTED FROM THE OPERATION OF THE 1922 ACT. SEE SECOND PROVISO, 42 STAT. 800. THUS, IT APPEARS THAT NO ONE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THAT ACT WITH LESS THAN SIXTEEN YEARS' SERVICE UNLESS HE SO DESIRED.

IN CONCLUSION IT MAY BE POINTED OUT THAT THERE IS NOTHING IN THE ACT OF JULY 1, 1922, WHICH PROVIDES OR EVEN INTIMATES THAT MEN TRANSFERRED UNDER ITS PROVISIONS SHOULD BE DEEMED TO HAVE ACTUALLY PERFORMED SIXTEEN YEARS' SERVICE. THE ACT MERELY SAID THAT MEN SO TRANSFERRED SHOULD ,RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE.' IN THIS CONNECTION, IT IS SIGNIFICANT THAT THE DEPARTMENT OF THE NAVY, IN REPORTING ON O-NEAL AND ROUNSAVELL, DID NOT CREDIT EITHER OF THEM WITH SIXTEEN YEARS' SERVICE AT TIME OF TRANSFER TO THE FLEET NAVAL RESERVE.

UNDER THE THEORY ADVANCED BY YOU, A MAN TRANSFERRED UNDER THE 1922 ACT WITH SERVICE OF 12 YEARS AND 1 MONTH, WHO PERFORMED ACTIVE DUTY OF 3 YEARS AND 6 MONTHS ENDING JUNE 30, 1946, BECAME ENTITLED TO RETIRED PAY AS A TWENTY-YEAR MAN FROM JULY 1, 1946, WHEREAS A MAN SERVING IN THE NAVY WITH THE SAME TOTAL SERVICE, 15 YEARS AND 7 MONTHS, ON JUNE 30, 1946, WOULD BE REQUIRED TO SERVE FOR AN ADDITIONAL PERIOD OF 3 YEARS AND 11 MONTHS BEFORE BECOMING ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE AS A TWENTY-YEAR MAN. WE DO NOT BELIEVE THAT THE CONGRESS, IN PROVIDING A BENEFIT FOR ACTIVE DUTY PERFORMED PRIOR TO AUGUST 10, 1946, INTENDED SUCH A GLARING DISCRIMINATION.