B-159990, NOV. 9, 1966

B-159990, NOV. 9, 1966

TO FINANCE AND ACCOUNTING OFFICER DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1966, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF ADDITIONAL PAY TO CAPTAIN MARK G. LAZANSKY, 01 941 982, AS MEDICAL OFFICER FOR THE PERIOD JUNE 29, 1953, THROUGH APRIL 29, 1955, UNDER THE CIRCUMSTANCES STATED BELOW. YOUR LETTER WAS FORWARDED TO THIS OFFICE ON AUGUST 31, 1966, BY THE OFFICE OF CHIEF OF FINANCE, AND HAS BEEN ASSIGNED NUMBER DO-A-924 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AS POINTED OUT IN YOUR SUBMISSION AND AS SHOWN BY THE RECORD, ON JULY 23, 1965, THE SECRETARY OF THE ARMY DIRECTED THAT CAPTAIN LAZANSKY'S MILITARY RECORDS BE CORRECTED UNDER 10 U.S.C. 1552 TO SHOW:

"A. THAT HE WAS HONORABLY DISCHARGED FROM HIS ENLISTED STATUS AS OF 28 JUNE 1953 FOR THE CONVENIENCE OF THE GOVERNMENT TO ACCEPT A COMMISSION; AND

"B. THAT HE WAS TENDERED, AND THAT HE ACCEPTED, AN APPOINTMENT AS A CAPTAIN, MEDICAL CORPS, UNITED STATES ARMY RESERVE, EFFECTIVE 29 JUNE 1953, AS OF WHICH DATE HE WAS ORDERED TO AND ENTERED ON EXTENDED ACTIVE DUTY IN SUCH STATUS.'

PURSUANT TO THE ABOVE CORRECTION THERE WAS FOUND DUE CAPTAIN LAZANSKY (AS SHOWN BY THE CLAIMS CERTIFICATE, COPY OF WHICH YOU ENCLOSED) THE NET AMOUNT OF $5,233.65, REPRESENTING THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND ALLOWANCES OF A CAPTAIN AND PAY AND ALLOWANCES OF THE ENLISTED GRADE HELD BY HIM FOR THE PERIOD JUNE 29, 1953, TO APRIL 29, 1955. YOU SAY THAT CAPTAIN LAZANSKY HAS DECLINED ACCEPTANCE OF THAT AMOUNT AND HE REQUESTS THAT THERE BE INCLUDED IN THE SETTLEMENT THE ADDITIONAL $100 A MONTH MEDICAL PAY FOR THAT PERIOD. YOU STATE THAT THE OFFICER HAS BEEN INFORMED THAT UNDER THE APPLICABLE PROVISIONS OF LAW AND REGULATIONS HE IS NOT ENTITLED TO THE SPECIAL PAY.

YOUR FURTHER SAY THAT CAPTAIN LAZANSKY AND HIS ATTORNEY FEEL THAT HE IS ENTITLED TO THIS ADDITIONAL PAY BECAUSE OF THE CIRCUMSTANCES IN HIS CASE, WHICH ARE STATED IN PART AS FOLLOWS:

"A. UNDER DATE OF 1 APRIL 1953 HEADQUARTERS FIRST ARMY ADVISED THE APPLICANT THAT AS A PRIORITY I MEDICAL SPECIAL REGISTRANT HE HAD BEEN ALLOCATED TO THE ARMY FOR COMMISSIONING; THAT SINCE HE HAD RECEIVED AN INDUCTION NOTICE IN CONNECTION WITH THE DRAFT CALL OF MEDICAL SPECIALISTS SCHEDULED FOR THE PERIOD 27 TO 30 APRIL 1953, HE HAD TO SIGN AND RETURN DD FORMS 98 (LOYALTY CERTIFICATE) AND 98A BEFORE ACTION COULD BE INITIATED TO TENDER HIM A COMMISSION; AND THAT HE SHOULD PROMPTLY REQUEST A COMMISSION IN ORDER THAT NECESSARY ADMINISTRATIVE PROCESSING COULD BE ACCOMPLISHED BEFORE HIS SCHEDULED INDUCTION.

"B. THE APPLICANT WAS INDUCTED 30 APRIL 1953 IN THE GRADE OF PRIVATE (E- 1), AND WAS PROMOTED TO THE GRADE OF PRIVATE (E-2) EFFECTIVE 30 AUGUST 1953.'

IT APPEARS THAT IN DECEMBER 1953 THE CHIEF, ORTHOPEDIC SECTION, ARMY AND NAVY HOSPITAL, HOT SPRINGS, ARKANSAS, IN RECOMMENDING DR. LAZANSKY FOR PROMOTION TO A HIGHER ENLISTED GRADE, STATED, AMONG OTHER THINGS, THAT HE WAS A SKILLED AND WELL-QUALIFIED PHYSICIAN WHO WAS PERFORMING THE DUTIES OF WARD OFFICER AND OPERATING SURGEON IN AN EXEMPLARY MANNER. IT IS FURTHER INDICATED THAT DR. LAZANSKY'S APPLICATION FOR THE COMMISSION WAS DENIED BY THE DEPARTMENT OF THE ARMY APPARENTLY BECAUSE OF THE INFORMATION AVAILABLE AT THAT TIME SHOWING HIS MEMBERSHIP IN A QUESTIONABLE ORGANIZATION, NAMELY, AMERICAN YOUTH FOR DEMOCRACY, TO WHICH HE BELONGED DURING SEPTEMBER AND OCTOBER 1943 WHILE HE WAS ATTENDING CORNELL UNIVERSITY AS A STUDENT. IT IS STATED THAT THE DEPARTMENT OF THE ARMY UTILIZED DR. LAZANSKY'S PROFESSIONAL CAPACITY IN AN ENLISTED STATUS, ALONG WITH OTHER PHYSICIANS AND DENTISTS INDUCTED UNDER THE "DOCTOR DRAFT.'

IN A LOYALTY CERTIFICATE (DD FORM 98) EXECUTED APRIL 5, 1954, IT IS DISCLOSED THAT DR. LAZANSKY ACKNOWLEDGED HIS MEMBERSHIP IN THE ABOVE- MENTIONED ORGANIZATION; THAT HE PAID THE INITIAL DUES AND ATTENDED SEVERAL DISCUSSION MEETINGS BUT TOOK NO ACTIVE PART; THAT HE WAS NOT AWARE OF ITS COMMUNIST SPONSORSHIP; AND THAT AFTER TWO MONTHS HE BECAME ANNOYED WITH THE CHARACTER OF THE MEETINGS AND DISAFFILIATED FROM THE ORGANIZATION PERMANENTLY.

IT IS DISCLOSED THAT FOLLOWING AN INVESTIGATION BY THE OFFICE OF THE ASSISTANT CHIEF OF STAFF FOR INTELLIGENCE AND THE ADJUTANT GENERAL'S OFFICE, A MEMORANDUM WAS ISSUED ON MAY 5, 1954, STATING THAT DR. LAZANSKY WAS NOT SUBVERSIVE BUT SHOULD BE CONSIDERED A SECURITY RISK AND NOT BE TENDERED A COMMISSION IN THE MEDICAL CORPS. IT WAS RECOMMENDED THAT HE BE INFORMED THAT HE COULD ACCEPT A GENERAL DISCHARGE OR ELECT TO REMAIN IN THE ARMY AS AN ENLISTED MAN UNTIL COMPLETION OF HIS TWO-YEAR TERM OF SERVICE. HE ELECTED TO REMAIN IN THE SERVICE AND HIS RETENTION WAS AUTHORIZED ON JUNE 22, 1954.

IT IS FURTHER REPORTED THAT ON MARCH 2, 1955, THE ADJUTANT GENERAL'S OFFICE RECEIVED A MEMORANDUM FROM DR. LAZANSKY IN SUPPORT OF HIS APPLICATION FOR A COMMISSION, AND THAT THE ASSISTANT CHIEF OF STAFF FOR INTELLIGENCE STATED THAT IF THE INFORMATION CONTAINED IN THE MEMORANDUM HAD BEEN FURNISHED AS A SWORN STATEMENT WHEN THE CASE WAS FIRST REVIEWED IN THAT OFFICE, A FAVORABLE DETERMINATION WOULD HAVE BEEN MADE IN HIS CASE. THEREAFTER, ON THE BASIS OF HIS SWORN STATEMENT, AND UPON ADMINISTRATIVE RECOMMENDATION, DR. LAZANSKY WAS HONORABLY DISCHARGED FROM HIS ENLISTED STATUS EFFECTIVE APRIL 21, 1955, AND ON APRIL 22, 1955, HE ACCEPTED AN APPOINTMENT AS A CAPTAIN IN THE MEDICAL CORPS, UNITED STATES ARMY RESERVE, AND ENTERED ON ACTIVE DUTY IN SUCH STATUS. IT IS STATED THAT PURSUANT TO ORDERS DATED APRIL 22, 1955, HE WAS HONORABLY DISCHARGED AS A CAPTAIN EFFECTIVE APRIL 29, 1955.

IN THE LIGHT OF THE FOREGOING YOU ASK WHETHER CAPTAIN LAZANSKY IS ENTITLED TO THE ADDITIONAL PAY AS A MEDICAL OFFICER FOR THE PERIOD JUNE 29, 1953, TO APRIL 29, 1955.

AT THE TIME DR. LAZANSKY ENTERED ON ACTIVE DUTY IN HIS ENLISTED STATUS, THE LAW AUTHORIZED THE PAYMENT OF SPECIAL PAY TO PHYSICIANS AND DENTISTS WHO WERE COMMISSIONED OFFICERS AS PROVIDED IN SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 809, AS AMENDED, 37 U.S.C. 234 (B) (1952 ED.), WHICH READS IN PERTINENT PART THAT:

"IN ADDITION TO ANY PAY, ALLOWANCES, SPECIAL OR INCENTIVE PAYS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED TO RECEIVE SPECIAL PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE.'

IN JANUARY 1953 DR. LAZANSKY WAS CLASSIFIED AS A PRIORITY I MEDICAL SPECIAL REGISTRANT UNDER THE PROVISIONS OF PUBLIC LAW 779, APPROVED SEPTEMBER 9, 1950, CH. 939, 64 STAT. 826. THIS LAW, WHICH WAS COMMONLY REFERRED TO AS THE DOCTORS DRAFT ACT, AMENDED THE SELECTIVE SERVICE ACT OF 1948 (50 U.S.C. APP. 454 (I) (1) ( TO AUTHORIZE THE PRESIDENT TO REQUIRE SPECIAL REGISTRATION AND, AS THERE PROVIDED, TO MAKE SPECIAL CALLS FOR MALE PERSONS QUALIFIED IN NEEDED MEDICAL, DENTAL AND ALLIED SPECIAL CATEGORIES WHO HAVE NOT REACHED THE AGE OF 50 AT THE TIME OF REGISTRATION. PERSONS CALLED THEREUNDER WERE LIABLE FOR INDUCTION AS THERE PROVIDED. SECTION 5 OF THE 1950 ACT, 37 U.S.C. 234B (1952 ED), EXPRESSLY PROVIDED THAT "NO PERSON INDUCTED UNDER THE PROVISIONS OF THIS ACT SHALL BE ENTITLED TO THE BENEFITS OF THE PROVISIONS OF SECTION 203 OF PUBLIC LAW 351, EIGHTY-FIRST CONGRESS (CAREER COMPENSATION ACT OF 1949).' THE 1950 LAW WAS FURTHER AMENDED BY THE ACT OF JUNE 29, 1953, CH. 158, 67 STAT. 86, REQUIRING THAT INDIVIDUALS INDUCTED OR ORDERED TO ACTIVE DUTY UNDER THE 1950 LAW AS A PHYSICIAN OR DENTIST,"SHALL, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE APPOINTED, REAPPOINTED, OR PROMOTED TO SUCH GRADE OR RANK AS MAY BE COMMENSURATE WITH HIS PROFESSIONAL EDUCATION, EXPERIENCE, OR ABILITY.'

THE PROVISIONS OF THE 1950 LAW, PARTICULARLY THE PROHIBITION IN SECTION 5 OF THAT LAW, WERE CONSIDERED BY US IN OUR DECISION OF OCTOBER 2, 1956, 36 COMP. GEN. 271. IN THAT CASE THE DOCTOR INVOLVED REFUSED TO APPLY FOR A COMMISSION AND HE WAS INDUCTED INTO THE UNITED STATES NAVY AS A SEAMAN RECRUIT. IN HOLDING THAT HE WAS NOT ENTITLED TO THE SPECIAL PAY FOR PHYSICIANS AND DENTISTS, WE STATED THAT IN ADDITION TO THE CLEAR LANGUAGE OF SECTION 5, ITS LEGISLATIVE HISTORY SHOWED AN UNMISTAKABLE INTENT TO WITHHOLD THE BENEFITS OF THE SPECIAL PAY PRESCRIBED FOR PHYSICIANS AND DENTISTS IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, FROM AN INDIVIDUAL WHO WAS INDUCTED UNDER THE LAW.

WHILE DR. LAZANSKY STATES THAT HE, UNLIKE THE INDIVIDUAL IN 36 COMP. GEN. 271, APPLIED FOR A COMMISSION PRIOR TO HIS INDUCTION, NO CONFIRMATION OF THAT STATEMENT HAS BEEN RECEIVED FROM AN OFFICIAL SOURCE. HOWEVER, IT APPEARS THAT THIS MATTER IS IMMATERIAL SINCE IT IS CLEAR THAT HE ACTUALLY WAS "INDUCTED" INTO THE UNITED STATES ARMY AS AN ENLISTED MAN. THE LAW MAKES NO EXCEPTION TO THE PROHIBITION IN SECTION 5 OF THE 1950 ACT AND HIS INDUCTION INTO THE UNITED STATES ARMY PRECLUDES PAYMENT OF SPECIAL PAY FOR PHYSICIANS AND DENTISTS AS AUTHORIZED IN SECTION 203 OF THE 1949 ACT.

THE COURT OF CLAIMS CONSIDERED THE QUESTION HERE INVOLVED IN THE CASE OF NELSON V. UNITED STATES, 140 CT.CL. 490 (1957), INVOLVING THE RIGHTS OF A DENTIST WHO HAD BEEN REFUSED A COMMISSION IN THE ARMY ON THE GROUND THAT HE HAD HAD COMMUNIST AFFILIATIONS AND WAS SUBSEQUENTLY INDUCTED INTO THE ARMY AS A PRIVATE. IN FINDING IN FAVOR OF THE PLAINTIFF FOR THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES OF A CAPTAIN AND THOSE OF A PRIVATE THE COURT WENT ON TO SAY:

"WE DO NOT THINK, HOWEVER, THAT PLAINTIFF IS ENTITLED TO THE ADDITIONAL $100 PER MONTH SPECIAL PAY, SINCE SECTION 5 OF THE ACT UNDER WHICH PLAINTIFF WAS INDUCTED, STIPULATED THAT NO PERSON INDUCTED UNDER THAT ACT SHOULD BE ENTITLED TO THE BENEFITS OF SECTION 203 OF PUBLIC LAW 351, 81ST CONGRESS (63 STAT. 803, 809), THAT SECTION BEING THE ONE WHICH PROVIDED FOR THE $100 SPECIAL PAY.' SEE, ALSO, BELSKY V. UNITED STATES, 154 CT.CL. 206 (1961). WE ARE FOLLOWING THE NELSON DECISION AND IN COMPUTING PAY AND ALLOWANCES FOUND DUE ON THE BASIS OF THAT DECISION, OUR SETTLEMENTS DO NOT INCLUDE IN THE COMPUTATION THEREOF THE SPECIAL PAY PRESCRIBED FOR PHYSICIANS AND DENTISTS IN SECTION 203 OF THE 1949 ACT.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE. THE VOUCHER AND SUPPORTING ..END :