B-57554, JULY 24, 1946, 26 COMP. GEN. 56

B-57554, JULY 24, 1946, 26 COMP. GEN. 56

PAY - RETAINER - FLEET RESERVIST - LONGEVITY CREDITS IN COMPUTING THE RETAINER PAY OF A NAVY ENLISTED MAN TRANSFERRED TO THE FLEET RESERVE (OR THE FLEET NAVAL RESERVE) PRIOR TO JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, THERE MAY BE COUNTED SUCH SERVICE WHICH THE MAN HAD WHEN TRANSFERRED AS IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES BY THE PROVISIONS OF THE ACT, AS AMENDED, INCLUDING INACTIVE SERVICE IN A STATE NAVAL MILITIA UNIT DULY PRESCRIBED AS A PART OF THE ORGANIZED MILITIA WITHIN THE CONTEMPLATION OF THE ACT OF FEBRUARY 16, 1914, OR SUBSEQUENT SIMILAR LEGISLATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 24, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 25, 1946, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER CHARLES JACKSON SPAULDING, CHIEF SIGNALMAN ( PA), FLEET NAVAL RESERVE, IS ENTITLED TO COUNT PRIOR INACTIVE SERVICE IN THE MASSACHUSETTS NAVAL MILITIA FOR THE PERIOD MARCH 30, 1915, TO MARCH 23, 1917, FOR THE PURPOSE OF COMPUTING HIS RETAINER PAY, ON AND AFTER NOVEMBER 22, 1945.

IT APPEARS THAT ON MARCH 30, 1915, SPAULDING ENLISTED FOR THREE YEARS IN COMPANY D, SECOND DECK DIVISION, NAVAL BATTALION, MASSACHUSETTS NAVAL MILITIA; THAT HE WAS HONORABLY DISCHARGED MARCH 23, 1917, APPARENTLY FOR THE PURPOSE OF ENLISTING IN THE NATIONAL NAVAL VOLUNTEERS; THAT HE ENLISTED IN THE NATIONAL NAVAL VOLUNTEERS MARCH 24, 1917, FOR A TERM OF THREE YEARS; TRANSFERRED TO THE U.S. NAVAL RESERVE FORCE JULY 1, 1918, AND WAS HONORABLY DISCHARGED MARCH 23, 1920; THAT HE REENLISTED IN THE U.S. NAVAL RESERVE FORCE FOR A TERM OF FOUR YEARS ON MARCH 24, 1920, WAS TRANSFERRED TO THE REGULAR NAVY ON THE SAME DAY AND WAS HONORABLY DISCHARGED MARCH 22, 1924; THAT HE REENLISTED IN THE REGULAR NAVY MAY 1, 1924, FOR A TERM OF FOUR YEARS, EXTENDED HIS ENLISTMENT MAY 1, 1928, FOR TWO YEARS, AND WAS HONORABLY DISCHARGED APRIL 29, 1930; THAT HE REENLISTED IN THE REGULAR NAVY APRIL 30, 1930, FOR A TERM OF FOUR YEARS, WAS TRANSFERRED TO CLASS F-4-C, U.S. NAVAL RESERVE, AND RELEASED FROM ACTIVE DUTY JUNE 26, 1933; AND THAT HE WAS RECALLED TO ACTIVE DUTY MAY 14, 1941, AND RELEASED TO INACTIVE DUTY NOVEMBER 21, 1945.

SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, EFFECTIVE JULY 1, 1925, 43 STAT. 1087, PROVIDED:

ENLISTED MEN SERVING IN THE REGULAR NAVY ON THE DATE OF THE APPROVAL OF THIS ACT, OR WHO, HAVING BEEN DISCHARGED THEREFROM REENLIST IN THE REGULAR NAVY WITHIN THREE MONTHS FROM DATE OF DISCHARGE, OR WHO ARE SERVING IN THE NAVAL RESERVE FORCE ON THE DATE OF THIS ACT IN AN ENROLLMENT ENTERED INTO WITHIN FOUR MONTHS FROM THE DATE OF THEIR DISCHARGE FROM THE NAVAL RESERVE, HEREIN CREATED, SHALL BE ENTITLED TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE ON THE COMPLETION OF SIXTEEN OR MORE YEARS' NAVAL SERVICE, AND WHEN SO TRANSFERRED SHALL, EXCEPT WHEN ON ACTIVE DUTY, BE ENTITLED TO RECEIVE, IF THEY HAVE HAD SIXTEEN BUT LESS THAN TWENTY YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-THIRD THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO, AND IF THEY HAVE HAD TWENTY OR MORE YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO, AND IF THEY HAVE HAD TWENTY OR MORE YEARS' NAVAL SERVICE, PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO: PROVIDED, THAT THE PAY AUTHORIZED IN THIS SECTION SHALL BE INCREASED 10 PERCENTUM FOR ALL MEN WHO MAY BE CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY OR WHOSE AVERAGE MARKS IN CONDUCT FOR TWENTY YEARS OR MORE SHALL NOT BE LESS THAN 95 PERCENTUM OF THE MAXIMUM: PROVIDED FURTHER, THAT FOR ALL PURPOSES OF THIS SECTION A COMPLETE ENLISTMENT DURING MINORITY SHALL BE COUNTED AS FOUR YEARS' SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED.

THE ABOVE ACT WAS REPEALED BY THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175. HOWEVER, SECTION 1 OF THE LATTER ACT PROVIDES:

* * * 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 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES, IN PART:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS * * *.

SECTION 9 OF THE SAID PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PROVIDES, IN PART:

THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD SHALL BE AS FOLLOWS: ENLISTED MEN OF THE FIRST GRADE, $138; ENLISTED MEN OF THE SECOND GRADE, $114; ENLISTED MEN OF THE THIRD GRADE, $96; ENLISTED MEN OF THE FOURTH GRADE, $78; ENLISTED MEN OF THE FIFTH GRADE, $66; ENLISTED MEN OF THE SIXTH GRADE, $54; AND ENLISTED MEN OF THE SEVENTH GRADE, $50. CHIEF PETTY OFFICERS UNDER ACTING APPOINTMENT SHALL BE INCLUDED IN THE FIRST GRADE AT A MONTHLY BASE PAY OF $126.

EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS. SUCH SERVICE SHALL BE ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE ENLISTED RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE.

SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, PROVIDES IN PART:

THAT THE PAY READJUSTMENT ACT OF 1942 IS HEREBY AMENDED BY AMENDING SECTION 3A THEREOF, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942 ( PUBLIC LAW 785, SEVENTY-SEVENTH CONGRESS), TO READ AS FOLLOWS:

"SEC. 3A. IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTION 1, 3, 8, OR 9 OF THIS ACT, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTION UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * * OR IN THE NAVAL MILITIA * * *.'

IT HAS BEEN HELD THAT THE EFFECT OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, IS TO GIVE AN OFFICER OF THE REGULAR NAVY, RETIRED PRIOR TO ITS EFFECTIVE DATE, JUNE 1, 1942, THE SAME RETIRED PAY AS AN OFFICER OF THE SAME RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO SUCH EFFECTIVE DATE AND, HENCE, THAT IN COMPUTING THE RETIRED PAY OF OFFICERS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY PRIOR TO JUNE 1, 1942, THERE MAY BE COUNTED SUCH SERVICE WHICH THEY HAD AT THE TIME OF RETIREMENT AS IS AUTHORIZED TO BE COUNTED FOR PAY PURPOSES BY THE PROVISIONS OF SECTION 1 OF THE SAID ACT, AS AMENDED, WHICH ARE PERMANENT IN NATURE. COMP. GEN. 59. THE SAID SECTION 15 ALSO PROVIDES THAT MEMBERS OF THE FLEET RESERVE SHALL HAVE THEIR RETAINER PAY "COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT.' THE RULE SET OUT IN 23 COMP. GEN. 50, SUPRA, IS EQUALLY APPLICABLE IN THE COMPUTATION OF THE RETAINER PAY OF A MAN TRANSFERRED TO THE FLEET RESERVE (OR TO THE FLEET NAVAL RESERVE) PRIOR TO JUNE 1, 1942. THAT IS TO SAY, IN THE COMPUTATION OF SUCH RETAINER PAY, FOR LONGEVITY PURPOSES, THERE MAY BE INCLUDED SUCH SERVICE WHICH THE MAN HAD AT THE TIME OF TRANSFER AS IS NOW AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES BY THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHICH ARE PERMANENT IN NATURE. HENCE, IF UNDER SAID AMENDMENT SPAULDING'S SERVICE IN THE MASSACHUSETTS NAVAL MILITIA COULD BE INCLUDED IN THE COMPUTATION OF HIS PAY WERE HE ON ACTIVE DUTY, SUCH SERVICE IS FOR INCLUSION IN THE COMPUTATION OF THE "PERMANENT ADDITIONS" (LONGEVITY INCREASES) TO HIS RETAINER PAY.

IT WAS HELD IN 24 COMP. GEN. 186 THAT PRIOR SERVICE IN THE NAVAL MILITIA OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA MAY BE COUNTED FOR ACTIVE DUTY PAY PURPOSES BY OFFICERS OF THE NAVAL RESERVE IF SUCH SERVICE WAS IN A PARTICULAR NAVAL MILITIA UNIT WHICH WAS DULY PRESCRIBED AS A PART OF THE ORGANIZED MILITIA AS PROVIDED IN SECTION 1 OF THE ACT OF FEBRUARY 16, 1914, 38 STAT. 283, OR IN SUBSEQUENT SIMILAR LEGISLATION. FROM EXAMINATION OF THE VARIOUS STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS IN EFFECT DURING THE PERIOD OF SPAULDING'S SERVICE IN THE MASSACHUSETTS NAVAL MILITIA, IT APPEARS THAT THE SAID NAVAL MILITIA WAS, DURING SAID PERIOD, DULY PRESCRIBED AS PART OF THE ORGANIZED MILITIA OF THAT COMMONWEALTH, WITHIN THE CONTEMPLATION OF THE ABOVE ACT OF FEBRUARY 16, 1914.

THEREFORE, SPAULDING'S INACTIVE SERVICE IN THE MASSACHUSETTS NAVAL MILITIA COULD BE INCLUDED IN THE COMPUTATION OF HIS PAY WERE HE ON ACTIVE DUTY. IT FOLLOWS THAT HE IS ENTITLED TO INCLUDE SAID NAVAL MILITIA SERVICE IN THE COMPUTATION OF LONGEVITY INCREASES TO HIS RETAINER PAY.