certain allowances) constitutes their retired pay-computed upon the same or a different rating than held at time of their transfer out of the Navy into the reserve and on a different rate of pay than that being received by them as men of the Navy at the time of such transfer.

The act of August 29, 1916, 39 Stat., 591, which is the authority for the retirement of these members of the Fleet Naval Reserve who entered it by transfer, provides:

They may, upon their own request, upon completing thirty years' service, including naval and fleet naval reserve service, be placed on the retired list of the Navy with the pay they were then receiving plus the allowances to which enlisted men of the same rating are entitled on retirement after thirty years' naval service.

The "pay they were then receiving" is the retainer pay computed as required by the act of August 29, 1916, 39 Stat., 590, as follows:

Members of the Fleet Naval Reserve who have, when transferred to the Fleet Naval Reserve, completed naval service of sixteen or twenty or more years shall be paid a retainer at the rate of one-third and one-half, respectively, of the base pay they were receiving at the close of their last naval service plus all permanent additions thereto :

*

Section 10 of the act of June 10, 1922, 42 Stat., 630, effective July 1, 1922, provides:

On and after July 1, 1922 retired enlisted men of the Navy and Coast Guard shall have their retired pay computed as now authorized by law on the basis of pay provided by this Act.

Section 10 does not provide that the pay of men borne or to be borne on the retired list of the Navy shall be computed under its provisions, nor refer to the retired list, but, on the contrary, confines its authorization for the computation to "retired enlisted men of the Navy," thereby excluding from its operation the members of said reserve by transfer equally upon said list.

Transferred Fleet Naval Reservists are not enlisted men of the Navy and do not when retired become "retired enlisted men of the Navy" for purposes of said section 10 or otherwise. When they went from the Navy by transfer into the Fleet Naval Reserve they ceased for all purposes to be enlisted men of the Navy and became thereafter for all purposes, inclusive of retirement, Fleet Naval Reservists. Enlisted men of the Navy are one class of men, with their own statutes, inclusive of retirement, applicable to them; transferred Fleet Naval Reservists are, on the other hand, another class, with their own separate statutes applying to them, inclusive of that for their retirement. While the Fleet Naval Reserve has served with the Navy, it is not the Navy and never has been, and while for active duty pay purposes while serving with the Navy these reserves re

ceived pay corresponding to that of the men of the Navy, they did not receive it as men of the Navy but as reserves assimilated or measured with men of the Navy for that purpose, corresponding in this respect to men of the Marine Corps generally under their previous assimilation for pay purposes with men of the Army, who did not because of their pay assimilation become ipso facto men of the Army, the assimilation in each such instance being merely a statutory method used by the Congress for pay measurement purposes in lieu of insertion in the statute of a direct amount of pay in figures and not a transfer or conversion of the men themselves into the service their pay was measured by.

As these reservists were therefore not enlisted men of the Navy at time of retirement they still are not. The mere placing of them pursuant to their separate retirement statute on an existing list with retired enlisted men of the Navy, known as the "Retired list of the Navy," in lieu of creating a separate list expressly for such reservists, did not in itself operate to convert retired fleet naval reservists by transfer borne on the list into retired enlisted men of the Navy, or, on the other hand, the retired enlisted men of the Navy on the list into retired reservists. They each for retirement pay purposes retained their class identity as theretofore.

Men of the Navy go upon the list with three-fourths only of their active list pay-the pay that corresponds to the active duty pay of reserves-while these transferred men of the Fleet Naval Reserve go on the list with their full retainer pay. Acts of March 2, 1907, 34 Stat., 1217; and August 29, 1916, supra.

The retainer pay that thus becomes the retired pay of transferred fleet naval reservists is pay that became fixed and certain in amount by computation as required by the act of August 29, 1916, supra, viz, on the pay they were receiving as men of the Navy at time of their transfer from the Navy into the Fleet Naval Reserve, and which continued on as thus established until time of their retirement (subject only to the exceptional conditions of section 6 of the act of May 18, 1920, 41 Stat., 603).

This full retainer pay with which these reservists are retired under their separate retirement statute is exclusively a reservist pay and a pay which reservists do not share in common with men of the Navy, it being a pay that men of the Navy never have received and which reservists receive separately and apart from that payable to them by correspondence with men of the Navy, viz, active duty pay for periods of service with the Navy.

By the placing of these fleet naval reservists on a retired list with full retainer pay rate the Congress thus assured to them the con

tinuance of their full inactive duty pay as reservists for such inactive retired status, and in addition added thereto certain allowances. See act of August 29, 1916, supra. It has not since changed the retired pay thus bestowed upon them nor the basis for it-full retainer pay computed as prescribed in the act of August 29, 1916 (subject only to the single exception thereto in section 5 of the act of May 18, 1920).

Your question is therefore answered in the negative. See to this effect 12 MS. Comp. Gen., 1415, August 18, 1922; 2 Comp. Gen., 85; 16 MS. Comp. Gen., 414, December 8, 1922.

ARMY PAY-LONGEVITY-CREDIT FOR SERVICE IN NATIONAL GUARD RESERVE.

Members of the Army Officers' Reserve Corps while on active duty in the Militia Bureau are not entitled to credit for longevity pay purposes for service in the National Guard Reserve.

Comptroller General McCarl to the Secretary of War, May 22, 1923:

There has been received your letter of March 22, 1923, requesting decision as to the service Capt. William John Kelley, Infantry Officers' Reserve Corps, may count for longevity increase of pay while on active duty in the Militia Bureau, War Department, under paragraph 29 of Special Orders, No. 1, dated War Department, Washington, D. C., January 2, 1923.

The order under which Captain Kelley is on active duty provides:

By direction of the President, Captain William John Kelley, Infantry Officers' Reserve Corps, Montpelier, Vermont, is placed on active duty, effective January 10, 1923, and is detailed under the provisions of section 81, national defense act, as amended, for duty in the Militia Bureau for a period of one year unless sooner relieved. He will proceed from Montpelier, Vermont, to Washington, D. C., reporting upon arrival to the Chief, Militia Bureau, for duty in his office. He will rank from January 10, 1923. Upon completion of his tour of duty Captain Kelley will be relieved from duty by the Chief, Militia Bureau, and will be directed to return to his home, reverting to inactive status upon his arrival thereat. The travel directed is necessary in the militia service. All expenses incident to this detail will be met from Militia Bureau funds and are chargeable to procurement authority MB 60 P 2866, A. E. & T. NG-I, station No. 18.

Section 81 of the national defense act, as amended by section 4 of the act of September 22, 1922, 42 Stat., 1034, contains a provision that the President

may also assign for duty in the Militia Bureau three officers who hold or who have held commissions in the National Guard and who at the time of assignment are reserve officers, and any such officer while so assigned shall receive out of the whole fund appropriated for the support of the National Guard the pay and allowances provided in the Pay Readjustment Act of June 10, 1922, for officers of the National Guard when authorized by law to receive Federal pay.

The reserve officers" thus assignable are officers of the "Officers' Reserve Corps" previously mentioned in the section.

The commissioned service of Captain Kelley to January 31, 1923, is stated to have been:

National Guard, 2nd lieut., 1st lieut., and captain, Infantry,
Sept. 13, 1919, to Mar. 31, 1922.

National Guard Reserve, captain of Infantry, Apr. 1 to
Dec. 7, 1922_

National Guard, captain, Infantry, Dec. 8, 1922 to Jan.
31, 1923.

Years. Mos. Days,

2

6

18

8

7

1

23

On inquiry I am advised that in addition he was appointed as captain in the Officers' Reserve Corps (Infantry) December 18, 1922, effective December 20, 1922.

The question is whether Captain Kelley is entitled to one-half time credit for longevity increase of pay for the period of 8 months 7 days he held a commission as captain of Infantry in the Vermont National Guard Reserve. It is assumed that the service claimed has been verified by a report of the adjutant general of the State of Vermont and from the records of the Militia Bureau.

Section 3 of the act of June 10, 1922, 42 Stat., 627, provides:

That when officers of the National Guard or of the reserve forces of any of the services mentioned in the title to this act are authorized by law to receive Federal pay, those serving in grades corresponding to those of colonel, lieutenant colonel, major, captain, first lieutenant, and second lieutenant of the Army shall receive the pay of the sixth, fifth, fourth, third, second, and first periods, respectively. In computing the increase of pay for each period of three years' service, such officers shall be credited with full time for all periods during which they have held commissions as officers of any of the services mentioned in the title of this Act, or in the Organized Militia prior to July 1, 1916, or in the National Guard, or in the Naval Militia, or in the National Naval Volun teers, or in the Naval Reserve Force or Marine Corps Reserve Force, when confirmed in grade and qualified for all general service, with full time for all periods during which they have performed active duty under réserve commissions, and with one-half time for all other periods during which they have held reserve commissions.

The second sentence of the section defines the service which may be counted for longevity increase of pay by "such officers"; i. e., "officers of the National Guard or of the reserve forces of any of the services mentioned in the title of " the act of June 10, 1922, described in the first sentence of the section. The provision for counting "full time for all periods during which they have performed active duty under reserve commissions, and with one-half time for all other periods during which they have held reserve commissions" refers to the reserve forces of any of the services mentioned in the title of" the act of June 10, 1922, and the National Guard is not mentioned in the title thereof.

66

Furthermore, the reserve commission contemplated in said section 3 is one under which active duty in the service of the United States

may be performed. But this is not equally so of the National Guard Reserve. Sections 77, 78, and 111 of the national defense act, 39 Stat., 202, the latter two as amended by the act of June 4, 1920, 41 Stat., 782, 784, provide, in part, as follows:

SEC. 77. ELIMINATION AND DISPOSITION OF OFFICERS. Officers of said guard rendered surplus by the disbandment of their organizations shall be placed in the National Guard Reserve. Officers may, upon their own application, be placed in said reserve.

SEC. 78. * * Provided, That members of said reserve, officers and enlisted men, when engaged in field or coast defense training with the active National Guard, shall receive the same Federal pay and allowances as those occupying like grades on the active list of said guard when likewise engaged: Provided further, That, except as otherwise specifically provided in this Act, no commissioned or enlisted reservist shall receive any pay or allowances out of any appropriation made by Congress for National Guard purposes.

*

*

WHEN DRAFTED INTO FEDERAL SERVICE.

* SEC. 111. NATIONAL GUARD, the President may draft into the military service of the United States * ** any or all members of the National Guard and of the National Guard Reserve. All persons so drafted shall, from the date of their draft, stand discharged from the militia, * and shall be organized into units corresponding as far as practicable to those of the Regular Army or shall be otherwise assigned as the President may direct. The commissioned officers of said organizations shall be appointed from among the members thereof; officers with rank not above that of colonel to be appted by the President alone and all other officers to be appointed by the President by and with the advice and consent of the Senate.

An officer of the National Guard Reserve can be brought into the service of the United States only by draft under section 111, and when so drafted he does not serve under his commission in the National Guard Reserve but under an appointment by the President, pursuant to the terms of section 111.

You are accordingly advised that service in the National Guard Reserve may not be counted for longevity increase of pay under section 3 of the act of June 10, 1922. Excluding such service in the case of Captain Kelley, he had on January 31, 1923, 2 years 8 months and 11 days' service, and is not entitled to longevity credit until his service within the meaning of section 3 shall equal 3 years.

LONGEVITY PAY-OFFICERS OF THE NAVAL RESERVE FORCE. Commissioned officers of the Naval Reserve Force, provisional and confirmed, when authorized to receive Federal pay, are entitled to count for longevity pay purposes under section 306, act of June 10, 1922, 42 Stat., 627Full time for all periods during which in an active duty pay status for training while holding a provisional commission;

Full time for all active duty performed, under either provisional or confirmed commission, in war or emergency declared by the President, for the time they have continued on active duty by proper authority following the expiration of their four-year enrollment and preceding their discharge or disenrollment and subsequent reenrollment; confirmed officers may count full time for all active service similarly performed in time of peace;

Full time for active duty and one-half time for inactive duty for any part of the period antedating the confirmation for which the officer retroactively 989449 0-52--50