B-141114, JAN. 5, 1960

B-141114, JAN. 5, 1960

TO R. A. WILSON, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

BY SECOND ENDORSEMENT DATED OCTOBER 27, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF OCTOBER 1, 1959, REQUESTING A DECISION (ASSIGNED SUBMISSION NO. DO-N-466 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) AS TO WHETHER INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE MAY BE CREDITED FOR LONGEVITY AND BASIC PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, IN THE CASE OF LIEUTENANT COMMANDER GUSTAVE J. S. WHITE, USNR (RETIRED), AND NINE OTHER RETIRED OFFICERS.

IT APPEARS FROM THE RECORDS AND THE INFORMATION FURNISHED BY YOU THAT COMMISSIONER WHITE WAS PLACED ON THE HONORARY RETIRED LIST ON MAY 1, 1941, AND THAT BY LETTER DATED MARCH 30, 1959, PURSUANT TO HIS APPLICATION FILED IN DECEMBER 1958, THE CHIEF OF NAVAL PERSONNEL NOTIFIED HIM THAT EFFECTIVE JUNE 29, 1948, HE WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST PURSUANT TO SECTIONS 1331 AND 6017 OF TITLE 10, U.S.C. YOU STATE THAT BASED ON HIS PAY ENTRY BASE DATE OF FEBRUARY 24, 1926, HE COMPLETED 15 YEARS, 2 MONTHS, 17 DAYS OF ACTIVE AND INACTIVE SERVICE ON JUNE 27, 1948, NOT INCLUDING TIME SPENT ON THE HONORARY RETIRED LIST.

YOU REFER TO OUR CLAIMS DIVISION SETTLEMENT OF JULY 22, 1959, WHICH CERTIFIED FOR PAYMENT IN COMMANDER WHITE'S CASE TITLE III RETIRED PAY RETROACTIVE TO JUNE 29, 1948, COMPUTED ON THE BASIS OF OVER 22 YEARS' SERVICE FOR BASE AND LONGEVITY PAY PURPOSES WHICH INCLUDED THE TIME AGENT- -- OVER SEVEN YEARS--- BY THE OFFICER ON THE HONORARY RETIRED LIST DURING THE PERIOD MAY 1, 1941, TO JUNE 28, 1948. ALSO, YOU CITE SIMILAR ACTION TAKEN BY OUR OFFICE IN THE SETTLEMENT OF CLAIMS OF MEMBERS RETIRED PRIOR TO OCTOBER 1, 1949, IN THE FOLLOWING CASES:

"CDR JOHANNES F. JENSEN, USNR (RETIRED) (DECEASED) 12553

RADM DONALD B. MACMILLAN, USNR (RETIRED) 49981

CAPT LESTER R. MCKENZIE, USNR (RETIRED) 65137

LCDR HAROLD L. RODMAN, USNR (RETIRED) 14907

LCDR CARL A. SCHIPFER, USNR (RETIRED) 7039

LCDR WALDO A. SHERMAN, USNR (RETIRED) 13450

LCDR ANDREW SINAMARK, MC, USNR (RETIRED) 13961

LCDR WALTER M. STRONG, USNR (RETIRED) 10200

LT PAUL E. TWIGGS, USNR (RETIRED) 24738"

YOU INDICATED THAT IN VIEW OF THE ANSWER TO QUESTION 2 IN 28 COMP. GEN. 655, AND THE DECISION IN 38 COMP. GEN. 10, THE PAY ENTITLEMENT OF THE MEMBERS CONCERNED IS QUESTIONABLE AND YOU STATE THAT NO ACTION WILL BE TAKEN TO ADJUST THE RETIRED PAY OF THE MEMBERS CONCERNED FROM THE DAY FOLLOWING THE DATE THROUGH WHICH PAYMENT WAS CERTIFIED BY OUR OFFICE, PENDING DECISION ON THE QUESTION INVOLVED.

COMMANDER WHITE'S AND THE OTHER NINE CASES MENTIONED ARE SEAGRAVE TYPE CASES AND UNDER OUR DECISION OF APRIL 1, 1958, 37 COMP. GEN. 653, THOSE OFFICERS WERE ENTITLED TO RETROACTIVE RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, FROM THE DATE OF QUALIFICATION FOR SUCH PAY. THE CASES IN QUESTION INVOLVE RETROACTIVE PAYMENTS FOR PERIODS COMMENCING PRIOR TO OCTOBER 1, 1949.

IN THE ANSWER TO QUESTION 2 (D) IN DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, INVOLVING TITLE III RETIRED PAY, IT WAS HELD THAT THE PERIOD OF TIME DURING WHICH AN OFFICER IS IN THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS--- OR THE HONORARY RETIRED LIST OF THE NAVAL RESERVE--- IS NOT CREDITABLE IN THE COMPUTATION OF LONGEVITY FOR RETIRED PAY PURPOSES UNDER TITLE III OF THE 1948 ACT. THAT DECISION, HOWEVER, WAS RECONSIDERED IN B-135426, MAY 5, 1958, 37 COMP. GEN. 728, IN THE LIGHT OF THE EXPRESS PROVISIONS NOW CONTAINED IN SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949. WE POINTED OUT THAT ANY DOUBT THAT MIGHT HAVE EXISTED PRIOR TO OCTOBER 1, 1949, WITH RESPECT TO INCLUDING CREDIT FOR INACTIVE SERVICE IN THE HONORARY RESERVE WAS PUT TO REST BY THE EXPRESS PROVISIONS OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, AUTHORIZING FULL TIME FOR ALL PERIODS "DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS * * * IN THE OFFICERS' RESERVE CORPS" AND THE QUALIFIED PROVISIONS IN SECTION 202 (B) AUTHORIZING "ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS * * * WHILE A MEMBER OF THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS OR ORGANIZED RESERVE CORPS.' IN CONCLUDING THAT THE ANSWER TO QUESTION 2 (D) IN THE DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, IS NO LONGER FOR APPLICATION, WE HELD THAT UNDER THE PROVISIONS OF SECTION 202 (A) THE OFFICER WAS ENTITLED TO INCLUDE HIS SERVICE IN THE AUXILIARY RESERVE SECTION OF THE OFFICERS' RESERVE CORPS FOR THE PURPOSE OF COMPUTING HIS ANNUAL BASE AND LONGEVITY (BASIC) PAY FOR RETIRED PAY PURPOSES UNDER TITLE III OF PUBLIC LAW 810.

IN B-136111, JULY 7, 1958, 38 COMP. GEN. 10, THERE WAS CONSIDERED THE QUESTION WHETHER THE PROVISO CONTAINED IN SUBSECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949--- TO THE EFFECT THAT INACTIVE SERVICE ON A RETIRED LIST MAY NOT BE INCLUDED TO INCREASE RETIRED PAY WHILE ON A RETIRED LIST--- PRECLUDES THE COUNTING OF INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE AND THE RESERVE RETIRED LIST IN COMPUTING BASIC PAY FOR RETIRED PAY PURPOSES UNDER CHAPTER 67, TITLE 10, U.S.C. (PUBLIC LAW 810). WE POINTED OUT THAT UNDER SECTION 202 (B) OF THE 1949 ACT, SERVICE ON A RETIRED LIST, INCLUDING SERVICE ON AN "HONORARY RETIRED LIST," IS CREDITABLE FOR BASIC PAY PURPOSES IN COMPUTING ACTIVE- DUTY PAY, AND UNDER FORMULA NO. 3 OF SECTION 1401, TITLE 10, THE RETIRED PAY OF PERSONS GRANTED SUCH PAY PURPOSES IN COMPUTING ACTIVE-DUTY PAY, AND UNDER FORMULA NO. 3 OF SECTION 1401, TITLE 10, THE RETIRED PAY OF PERSONS GRANTED SUCH PAY UNDER THE PROVISIONS OF CHAPTER 67 IS FOR COMPUTATION ON MONTHLY BASIC PAY. WE HELD THAT SINCE THAT CASE DID NOT INVOLVE ANY "INCREASE" IN THE OFFICER'S RETIRED PAY ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE OR THE RESERVE RETIRED LIST BUT CONCERNED AN INITIAL GRANT OF RETIRED PAY WHICH IS EXPRESSLY AUTHORIZED BY LAW IN THE SITUATION PRESENTED, THE PROVISO OF SECTION 202 (B) OF THE 1949 ACT WAS NOT FOR APPLICATION. NOTHING WAS SAID IN THAT DECISION EITHER BY INFERENCE OR OTHERWISE WHICH WOULD INDICATE IN ANY WAY THAT THE PROVISO IN SUBSECTION 202 (B) PRECLUDES THE COUNTING OF INACTIVE SERVICE ON THE HONORARY RETIRED LIST EITHER BEFORE OR AFTER OCTOBER 1, 1949, FOR LONGEVITY PURPOSES IN COMPUTING RETIRED PAY UNDER TITLE III OF THE 1948 ACT. THE PROVISO MERELY PRECLUDES THE COUNTING OF SUCH SERVICE WHERE IT WOULD "INCREASE" RETIRED PAY WHILE ON A RETIRED LIST. IT IS NOT BELIEVED TO BE APPLICABLE TO SITUATIONS WHERE, AS HERE, THE MEMBERS WERE INITIALLY AWARDED RETIRED PAY. THAT PROVISION REFERS TO MEMBERS WHO HAVE BEEN RETIRED AND ARE IN RECEIPT OF RETIRED OR RETIREMENT PAY AND THUS HAVE A PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" MAY APPLY. COMPARE 36 COMP. GEN. 431, 433.

SECTION 303 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, PROVIDED, IN PERTINENT PART, THAT:

"ANY PERSON GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL RECEIVE SUCH PAY AT AN ANNUAL RATE EQUAL TO 2 1/2 PERCENT OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR) WHICH SHALL CONSIST OF THE SUM OF THE FOLLOWING: * * *.'

COMMANDER WHITE AND THE OTHER NINE OFFICERS BECAME ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 303 OF THE 1948 ACT, ABOVE QUOTED, AND THEIR RETIRED PAY WAS REQUIRED TO BE COMPUTED ON THE BASIS OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH THEY WOULD HAVE RECEIVED IF THEY HAD BEEN SERVING AT THAT TIME ON ACTIVE DUTY, MULTIPLIED BY THE APPROPRIATE NUMBER OF PERCENTAGE POINTS.

IN DECISION DATED JANUARY 19, 1943, B-31288, 22 COMP. GEN. 664, IT WAS HELD, QUOTING THE SYLLABUS:

"OFFICERS OF THE REGULAR NAVY ON THE RETIRED LIST WHO ARE ORDERED TO ACTIVE DUTY AND WHO, UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, ARE ENTITLED TO "FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON ACTIVE DUTY" ARE ENTITLED TO COUNT INACTIVE SERVICE SINCE RETIREMENT IN COMPUTING THEIR ACTIVE DUTY PAY UNDER SECTION 1 OF SAID ACT, AS AMENDED BY THE ACT OF DECEMBER 2, 1942; AND THE SAME RULE IS APPLICABLE IN COMPUTING UNDER SECTION 3 OF SAID PAY READJUSTMENT ACT, AS AMENDED, THE ACTIVE DUTY PAY OF RETIRED NAVAL RESERVE OFFICERS ON ACTIVE DUTY. * * *"

IN VIEW OF THE ABOVE, WE CONCLUDE THAT COMMANDER WHITE AND THE OTHER NINE OFFICERS ARE ENTITLED TO COUNT INACTIVE SERVICE ON THE HONORARY RETIRED LIST FOR THE PURPOSE OF COMPUTING THEIR ANNUAL BASE AND LONGEVITY PAY FOR RETIRED PAY PURPOSES UNDER TITLE III. ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION WAS PROPER AND YOU ARE AUTHORIZED TO ADJUST THE RETIRED PAY OF THOSE MEMBERS ON THE SAME BASIS FROM THE DAY FOLLOWING THE DATE THROUGH WHICH PAYMENT WAS CERTIFIED IN THE SETTLEMENTS IN QUESTION.