B-147256, NOV. 8, 1961

B-147256, NOV. 8, 1961

TO LIEUTENANT COMMANDER E. L. TRUAX, S.C., USN, HEAD, RETIRED PAY DEPARTMENT, UNITED STATES NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1961, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF CHIEF WARRANT OFFICER ANTHONY A. ANGELLO, USN, RETIRED, TO CREDIT FOR SERVICE DURING THE PERIOD FEBRUARY 1, 1950, TO FEBRUARY 25 (24), 1952, IN DETERMINING HIS SERVICE UNDER 10 U.S.C. 1332 AND 1333 AND HIS SERVICE FOR BASIC PAY PURPOSES IN COMPUTING HIS RETIRED PAY. YOUR REQUEST, WHICH WAS FORWARDED HERE BY THE COMPTROLLER OF THE NAVY BY SECOND INDORSEMENT DATED SEPTEMBER 19, 1961, HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-607.

IT IS SHOWN IN YOUR LETTER AND ACCOMPANYING PAPERS THAT MR. ANGELLO ENLISTED IN THE NAVAL RESERVE ON AUGUST 11, 1943, AND THAT HE WAS APPOINTED A TEMPORARY WARRANT OFFICER ON OCTOBER 15, 1944. SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY ON NOVEMBER 15, 1945, HE REMAINED IN THE NAVAL RESERVE IN AN INACTIVE ENLISTED STATUS. IT IS FURTHER SHOWN THAT HE COMPLETED A CORRESPONDENCE COURSE AND VARIOUS CIVIL ENGINEERING CORPS RESERVE OFFICERS' SENIOR COURSES, THAT WITH THE APPROVAL OF THE BUREAU OF NAVAL PERSONNEL HE WAS TRANSFERRED TO THE ORGANIZED RESERVE ON MAY 15, 1950, AND THAT HE WAS PAID A $50 UNIFORM ALLOWANCE ON JULY 14, 1950. DOES NOT APPEAR, HOWEVER, THAT HE HAD THE STATUS OF AN OFFICER SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY AND PRIOR TO FEBRUARY 25, 1952, ON WHICH DATE HE ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE NAVAL RESERVE. ON JUNE 13, 1958, HE BECAME 60 YEARS OF AGE AND BEING OTHERWISE QUALIFIED UNDER 10 U.S.C. 1331-1337, HE BECAME ELIGIBLE FOR RETIREMENT ON JULY 1, 1958. HE WAS NOT TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST UNTIL JANUARY 1, 1960, AND YOU STATE THAT INFORMATION RECEIVED FROM THE BUREAU OF NAVAL PERSONNEL INDICATES THAT HE WAS RETAINED BEYOND JULY 1, 1958, UNDER 10 U.S.C. 676.

THE COPY OF FORM NO. 363 "RESERVE OFFICER PERFORMANCE RECORD CARD" WHICH ACCOMPANIED YOUR LETTER AND WHICH SHOWS MR. ANGELLO'S SERVICE CREDITS FOR RETIREMENT PURPOSES CONTAINS A NOTATION TO THE EFFECT THAT HE HAD CREDITABLE DE FACTO SERVICE FOR THE PERIOD FEBRUARY 1, 1950, TO FEBRUARY 25 (24), 1952. YOU HAVE EXPRESSED THE VIEW THAT DURING THAT PERIOD HE SERVED AS AN INACTIVE RESERVE OFFICER WITH NO ACTUAL STATUS, THE BUREAU OF NAVAL PERSONNEL HAVING TERMINATED HIS ENLISTED STATUS BY DISCHARGING HIM FROM HIS ENLISTMENT IN THE NAVAL RESERVE ON JANUARY 29, 1954, RETROACTIVELY AS OF JANUARY 31, 1950. PRESUMABLY, THE LATTER DATE WAS SELECTED TO COINCIDE WITH THE ISSUANCE DATE OF BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 17-50, DATED JANUARY 31, 1950, WHICH AMONG OTHER THINGS, CANCELED ALNAV NO. 155, DATED DECEMBER 15, 1941. THAT ALNAV WHICH WAS ISSUED PURSUANT TO THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, EXTENDED ENLISTMENTS OF MEN IN THE RESERVE COMPONENTS OF THE NAVY FOR A PERIOD OF NOT LATER THAN SIX MONTHS AFTER TERMINATION OF WAR. WHILE YOU STATE THAT SUCH CIRCULAR LETTER DIRECTED THAT ALL MEMBERS SERVING IN ENLISTMENTS WHICH HAD BEEN EXTENDED BY ALNAV NO. 155-41 BE TERMINATED ON JANUARY 31, 1950, WE FIND NO LANGUAGE IN THAT DIRECTIVE WHICH SUPPORTS SUCH STATEMENT. THAT ALNAV WAS CANCELED MERELY ,BY REASON OF HAVING SERVED THEIR (ITS) PURPOSE.'

THE CITED ACT OF DECEMBER 13, 1941, PROVIDED THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH ITS PROVISIONS SHOULD BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE TERMINATION OF THE CONDITION WHICH ORIGINALLY AUTHORIZED THEIR DETENTION. MR. ANGELLO'S ENLISTMENT WAS EXTENDED UNDER THE 1941 ACT FOR A PERIOD NOT LATER THAN SIX MONTHS AFTER TERMINATION OF THE WAR AND SINCE A STATE OF WAR WITH JAPAN WAS NOT ENDED UNTIL AFTER HE ACCEPTED AN APPOINTMENT AS A WARRANT OFFICER (SEE PRESIDENTIAL PROCLAMATION 2974, APRIL 26, 1952) WE SEE NO BASIS FOR QUESTIONING HIS STATUS AS AN ENLISTED RESERVIST DURING THE PERIOD INVOLVED. HAVING HAD A VALID RESERVE STATUS DURING THAT PERIOD, IT IS BELIEVED THAT THE ADMINISTRATIVE ATTEMPT TO ELIMINATE THAT STATUS BY ACTION TAKEN ON JANUARY 29, 1954, WAS WITHOUT EFFECT. COMPARE 31 COMP. GEN. 3. ACCORDINGLY, IT IS CONCLUDED THAT HE IS ENTITLED TO THE SERVICE CREDIT FOR THE PERIOD FEBRUARY 1, 1950, TO FEBRUARY 24, 1952, FOR BASIC PAY PURPOSES AND COMPUTATION OF RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1332 AND 1333.

THE ABOVE-MENTIONED FORM NO. 363, REVEALS THAT MR. ANGELLO RECEIVED SERVICE CREDITS FOR PERIODS SUBSEQUENT TO THE DATE ON WHICH HE INITIALLY QUALIFIED FOR RETIRED PAY, JULY 1, 1958. WHILE LETTER OF JANUARY 27, 1960, FROM THE CHIEF OF NAVAL PERSONNEL, WHICH INFORMED MR. ANGELLO OF THE APPROVAL BY THE SECRETARY OF THE NAVY OF HIS REQUEST FOR TRANSFER TO THE NAVAL RESERVE RETIRED LIST, EFFECTIVE JANUARY 1, 1960, CONTAINS INFORMATION TO THE EFFECT THAT HE WAS RETAINED UNDER THE PROVISIONS OF 10 U.S.C. 676 BEYOND THE DATE OF FIRST ELIGIBILITY, WE DO NOT FIND HIS NAME ON THE LIST OF PERSONS SUBMITTED BY THE SECRETARY OF THE NAVY ON AUGUST 24, 1959, WHO HAD BEEN ,RETAINED ON ACTIVE DUTY, OR IN SERVICE IN A RESERVE COMPONENT" WITHIN THE MEANING OF THOSE STATUTORY PROVISIONS AND NO INFORMATION HAS BEEN FURNISHED WHICH SHOWS THAT HIS RETENTION WAS BY VIRTUE OF WRITTEN AUTHORITY OF THE SECRETARY OF THE NAVY OR AN AUTHORIZED SUBORDINATE. SEE, IN THIS CONNECTION, OUR DECISION OF AUGUST 25, 1958, 38 COMP. GEN. 146, WHEREIN WE HELD THAT IN VIEW OF 10 U.S.C. 676, NO SERVICE CREDIT FOR TITLE III RETIRED PAY COULD ACCRUE AFTER DATE OF QUALIFICATION FOR SUCH PAY, IN THE ABSENCE OF A SECRETARIAL ORDER RETAINING THE MEMBER ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THOSE LISTED IN 10 U.S.C. 1332 (B). SEE, ALSO, OUR DECISION OF AUGUST 22, 1961, B-145849, 41 COMP. GEN. - . HENCE, TO PROPERLY COMPUTE MR. ANGELLO'S RETIRED PAY, THERE MUST BE EXCLUDED ALL CREDITS FOR DRILLS AND OTHER SERVICE FROM JULY 1, 1958, DATE OF FIRST ELIGIBILITY UNTIL DECEMBER 31, 1959, THE DATE PRECEDING THE EFFECTIVE DATE OF HIS RETIREMENT.

ACCORDINGLY, YOU ARE ADVISED THAT WHILE AN ADJUSTMENT OF MR. ANGELLO'S RETIRED PAY ACCOUNT IN CONNECTION WITH HIS SERVICE DURING THE PERIOD FEBRUARY 1, 1950, TO FEBRUARY 24, 1952, IS NOT NECESSARY, AN ADJUSTMENT IN THAT ACCOUNT IS REQUIRED WITH RESPECT TO THE OVERCREDIT OF SERVICE FOR THE PERIOD COMMENCING JULY 1, 1958, IN THE ABSENCE OF A SHOWING THAT HE PROPERLY WAS RETAINED UNDER 10 U.S.C. 676.