B-73015, NOVEMBER 9, 1949, 29 COMP. GEN. 216

B-73015, NOVEMBER 9, 1949, 29 COMP. GEN. 216

PAY - ADDITIONAL - RETIRED NAVY MEDICAL AND DENTAL CORPS OFFICERS ON ACTIVE DUTY OFFICERS OF THE MEDICAL OR DENTAL CORPS OF THE REGULAR NAVY WHO WERE RETIRED PRIOR TO SEPTEMBER 1, 1947, BUT WERE SERVING ON ACTIVE DUTY ON THAT DATE ARE ENTITLED FOR SUBSEQUENT PERIODS OF ACTIVE DUTY WITH THE MEDICAL OR DENTAL CORPS TO THE ADDITIONAL PAY OF $100 PER MONTH AUTHORIZED FOR CERTAIN MEDICAL AND DENTAL OFFICERS BY SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949. MEDICAL OR DENTAL CORPS OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY ON SEPTEMBER 1, 1947, WHO UPON SUBSEQUENT RETIREMENT ARE CONTINUED ON ACTIVE DUTY WITH THE MEDICAL OR DENTAL CORPS, ARE ENTITLED TO THE $100 PER MONTH ADDITIONAL ACTIVE-DUTY PAY AUTHORIZED FOR CERTAIN MEDICAL AND DENTAL OFFICERS BY SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949. MEDICAL OR DENTAL CORPS OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY ON SEPTEMBER 1, 1947, WHO ARE SUBSEQUENTLY RETIRED AND THEREAFTER, BUT PRIOR TO SEPTEMBER 1, 1952, ARE RECALLED TO ACTIVE DUTY WITH THE MEDICAL OR DENTAL CORPS UNDER EITHER SECTION 422 OR 423 OF TITLE 34, U.S. CODE, ARE ENTITLED TO THE $100 PER MONTH ADDITIONAL ACTIVE-DUTY PAY AUTHORIZED BY SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949 FOR CERTAIN MEDICAL AND DENTAL OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 9, 1949:

REFERENCE IS MADE TO A LETTER DATED JULY 26, 1948, FROM YOUR PREDECESSOR IN OFFICE, SUBMITTING FOR DECISION SEVERAL QUESTIONS REGARDING PAYMENT OF THE ADDITIONAL PAY OF $100 PER MONTH, UNDER THE PROVISIONS OF TITLE I OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, APPROVED AUGUST 5, 1947, 61 STAT. 776, TO CERTAIN RETIRED OFFICERS OF THE MEDICAL CORPS AND DENTAL CORPS OF THE NAVY WHILE SERVING ON ACTIVE DUTY.

IN THE SAID LETTER REFERENCE IS MADE TO DECISION OF MAY 13, 1948, B 73015 (27 COMP. GEN. 681), IN WHICH IT WAS HELD THAT OFFICERS OF THE MEDICAL CORPS AND DENTAL CORPS OF THE REGULAR ARMY WHO WERE ON THE ACTIVE LIST ON SEPTEMBER 1, 1947, THE EFFECTIVE DATE OF TITLE I OF THE FOREGOING ACT, AND WHO HAVE BEEN RETIRED SINCE THAT DATE, WOULD BE ENTITLED, UPON RECALL TO ACTIVE DUTY, TO THE ADDITIONAL PAY OF $100 PER MONTH AUTHORIZED BY THE ACT FOR DUTY PERFORMED UNDER THE CIRCUMSTANCES THEREIN SPECIFIED. CONNECTION WITH THAT DECISION, THE FIRST QUESTION PRESENTED IS WHETHER RETIRED OFFICERS OF THE MEDICAL CORPS AND THE DENTAL CORPS OF THE NAVY WHO WERE ON ACTIVE DUTY ON SEPTEMBER 1, 1947, ARE ENTITLED TO SUCH EXTRA COMPENSATION OF $100 PER MONTH WHILE ON ACTIVE DUTY.

SECTION 101 OF THE SAID ACT OF AUGUST 5, 1947, 61 STAT. 776, AMENDED THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, BY INSERTING AFTER SECTION 1 THEREOF A NEW SECTION NUMBERED A. THE PROVISIONS OF THAT SECTION NOW HAVE BEEN SUPERSEDED BY SIMILAR PROVISIONS CONTAINED IN SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 809, SUBSECTION (B) OF WHICH AUTHORIZES SPECIAL PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE TO COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) THEREOF WHICH READS AS OLLOWS:

THE TERM "COMMISSIONED OFFICERS," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN ONLY (1) THOSE COMMISSIONED OFFICERS IN THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, NAVY, AND AIR FORCE AND COMMISSIONED MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHO WERE ON ACTIVE DUTY ON SEPTEMBER 1, 1947; (2) THOSE OFFICERS WHO, HERETOFORE BUT SUBSEQUENT TO SEPTEMBER 1, 1947, HAVE BEEN OR WHO, PRIOR TO SEPTEMBER 1, 1952, MAY BE COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, NAVY, AND AIR FORCE OR AS MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE; (3) SUCH OFFICERS WHO ON SEPTEMBER 1, 1947, WERE OR WHO THEREAFTER HAVE BEEN OR MAY BE COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE OFFICERS' RESERVE CORPS, THE UNITED STATES AIR FORCE RESERVE, THE NAVAL RESERVE, THE NATIONAL GUARD, THE NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD, THE AIR NATIONAL GUARD OF THE UNITED STATES, THE ARMY OF THE UNITED STATES, THE AIR FORCE OF THE UNITED STATES, OR AS MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE AND WHO HERETOFORE, BUT SUBSEQUENT TO SEPTEMBER 1, 1947, HAVE VOLUNTEERED AND BEEN ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER, OR WHO MAY PRIOR TO SEPTEMBER 1, 1952, VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER; (4) GENERAL OFFICERS APPOINTED FROM THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, THE NATIONAL GUARD OF THE UNITED STATES, THE ARMY OF THE UNITED STATES, THE REGULAR AIR FORCE, THE UNITED STATES AIR FORCE RESERVE, THE AIR NATIONAL GUARD, THE AIR NATIONAL GUARD OF THE UNITED STATES, AND THE AIR FORCE OF THE UNITED STATES WHO WERE ON ACTIVE DUTY ON SEPTEMBER 1, 1947; AND (5) GENERAL OFFICERS WHO, SUBSEQUENT TO SEPTEMBER 1, 1947, HAVE BEEN OR WHO MAY BE APPOINTED FROM THOSE OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, THE NATIONAL GUARD OF THE UNITED STATES, THE ARMY OF THE UNITED STATES, THE REGULAR AIR FORCE, THE UNITED STATES AIR FORCE RESERVE, THE AIR NATIONAL GUARD, THE AIR NATIONAL GUARD OF THE UNITED STATES, AND THE AIR FORCE OF THE UNITED STATES WHO ARE INCLUDED IN PARTS (1), (2), OR (3) OF THIS SUBSECTION.

AS WAS STATED IN THE DECISION OF MAY 13, 1948, THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 5, 1947, SUPRA, DISCLOSES THAT THE PRINCIPAL PURPOSE OF SUCH ACT WAS TO HELP ALLEVIATE THE DIFFICULTY BEING EXPERIENCED BY THE ARMY, THE NAVY, AND THE PUBLIC HEALTH SERVICE IN PROCURING AND RETAINING AN ADEQUATE NUMBER OF PHYSICIANS, SURGEONS, AND DENTISTS, BY OFFERING THE ADDITIONAL PAY OF $100 PER MONTH AS AN INDUCEMENT FOR QUALIFIED MEDICAL AND DENTAL PERSONNEL TO SERVE ON ACTIVE DUTY. HENCE, ALTHOUGH THE JUDGE ADVOCATE GENERAL OF THE ARMY HAD EXPRESSED THE OPINION THAT UPON RETIREMENT AN OFFICER LOSES HIS IDENTITY WITH THE ARM OR SERVICE IN WHICH HE FORMERLY SERVED AND BECOMES MERELY AN ARMY OFFICER, IT WAS CONCLUDED THAT IT WOULD NOT BE INCONSISTENT WITH THE BROAD PURPOSES OF THE ACT FOR OFFICERS OF THE MEDICAL CORPS AND DENTAL CORPS OF THE REGULAR ARMY WHO WERE ON THE ACTIVE LIST ON THE EFFECTIVE DATE OF THE ACT AND WHO WERE RETIRED THEREAFTER TO RECEIVE THE ADDITIONAL PAY FOR PERIODS OF ACTIVE DUTY AFTER RETIREMENT, IT BEING UNDERSTOOD THAT SUCH OFFICERS WOULD BE PERFORMING THE DUTIES OF MEDICAL AND DENTAL OFFICERS AND THAT THEY WOULD BE ASSIGNED TO DUTY IN THE MEDICAL CORPS OR THE DENTAL CORPS DURING SUCH ACTIVE DUTY.

THE SPECIAL PAY AUTHORIZED BY SECTION 203, SUPRA, IS PAYABLE ONLY TO THOSE COMMISSIONED OFFICERS WHO FALL WITHIN THE DEFINITION OF THE TERM AS SET FORTH IN SUBSECTION (A) OF THAT SECTION. WHILE RETIRED OFFICERS SERVING ON ACTIVE DUTY ARE NOT SPECIFICALLY MENTIONED IN THE SUBSECTION, DEFINITION (1) INCLUDES THOSE COMMISSIONED OFFICERS IN THE MEDICAL AND DENTAL CORPS OF THE REGULAR NAVY WHO WERE ON "ACTIVE DUTY" ON SEPTEMBER 1, 1947, RATHER THAN ON THE ACTIVE LIST ON SUCH DATE. PRESUMABLY, SUCH LANGUAGE WAS USED ADVISEDLY AND APPARENTLY IT WAS NOT INTENDED TO INCLUDE UNDER THAT DEFINITION ONLY OFFICERS ON THE ACTIVE LIST ON SUCH DATE OR IT WOULD HAVE BEEN SO STATED. THEREFORE, EVEN THOUGH RETIRED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR NAVY NO LONGER ARE ON THE ACTIVE LIST, IT WOULD APPEAR THAT SUCH OFFICERS WHO WERE SERVING ON ACTIVE DUTY AS MEDICAL AND DENTAL OFFICERS WITH THE MEDICAL OR DENTAL CORPS ON SEPTEMBER 1, 1947, PROPERLY MAY BE CONSIDERED AS COMING WITHIN THE DEFINITION OF COMMISSIONED OFFICERS WHO ARE ENTITLED TO THE SPECIAL PAY OF $100 PER MONTH AUTHORIZED BY THE SAID SECTION WHILE THEY SERVE ON ACTIVE DUTY. ACCORDINGLY, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENT OF THE SPECIAL COMPENSATION TO RETIRED OFFICERS ON ACTIVE DUTY UNDER SUCH CIRCUMSTANCES. CF. DECISION OF TODAY TO THE SECRETARY OF THE ARMY, B- 73015, 29 COMP. GEN. 214.

DECISION ALSO IS REQUESTED AS TO WHETHER A COMMISSIONED OFFICER OF THE MEDICAL CORPS OR DENTAL CORPS ON THE ACTIVE LIST OF THE REGULAR NAVY ON SEPTEMBER 1, 1947, WHO RETIRES SUBSEQUENT TO THAT DATE, IS ENTITLED TO THE ADDITIONAL COMPENSATION OF $100 PER MONTH UNDER CIRCUMSTANCES AS FOLLOWS:

(1) IF HE IS CONTINUED ON ACTIVE DUTY AFTER RETIREMENT;

(2) IF HE IS RECALLED TO ACTIVE DUTY WITH HIS CONSENT (34 U.S.C. 422) AND ACQUIRES AN ACTIVE DUTY PAY STATUS PRIOR TO SEPTEMBER 1, 1952;

(3)IF HE IS RECALLED TO ACTIVE DUTY WITH HIS CONSENT ON OR SUBSEQUENT TO SEPTEMBER 1, 1952;

(4) IF HE IS RECALLED TO ACTIVE DUTY UNDER THE AUTHORITY IN 34 U.S.C. 423 AND ACQUIRES AN ACTIVE DUTY PAY STATUS:

(A) PRIOR TO SEPTEMBER 1, 1952;

(B) ON OR SUBSEQUENT TO SEPTEMBER 1, 1952.

QUESTION (1) PRESENTS SUBSTANTIALLY THE SAME SITUATION WITH RESPECT TO RETIRED OFFICERS SERVING ON ACTIVE DUTY WITH THE MEDICAL CORPS OR DENTAL CORPS OF THE NAVY AS WAS CONSIDERED IN THE DECISION OF MAY 13, 1948, SUPRA, RESPECTING SUCH OFFICERS OF THE ARMY SERVING ON ACTIVE DUTY AFTER RETIREMENT EXCEPT THAT THE SAID QUESTION APPARENTLY RELATES TO OFFICERS WHO ARE CONTINUED ON ACTIVE DUTY AFTER RETIREMENT (WITHOUT ANY BREAK IN ACTIVE SERVICE), WHEREAS THE DECISION REFERRED TO RELATED TO ARMY OFFICERS RECALLED TO ACTIVE DUTY SOME TIME AFTER THEIR RETIREMENT. NO REASON IS PERCEIVED WHY AN OFFICER CONTINUED ON ACTIVE DUTY AFTER RETIREMENT SHOULD BE IN A MORE UNFAVORABLE POSITION WITH RESPECT TO RECEIVING THE SPECIAL PAY THAN A RETIRED OFFICER WHO IS RECALLED TO ACTIVE DUTY AFTER HAVING BEEN IN AN INACTIVE STATUS OR WHY AN OFFICER OF THE MEDICAL CORPS OR DENTAL CORPS OF THE REGULAR NAVY SHOULD BE CONSIDERED AS CEASING TO BE AN OFFICER OF SUCH MEDICAL CORPS OR DENTAL CORPS UPON HIS RETIREMENT. ACCORDINGLY, THE SAID QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE, IT BEING UNDERSTOOD THAT THE DUTY ASSIGNMENTS OF SUCH OFFICERS WHO ARE CONTINUED ON ACTIVE DUTY AFTER RETIREMENT WILL BE AS MEDICAL AND DENTAL OFFICERS WITH THE MEDICAL CORPS OR DENTAL CORPS.

WITH RESPECT TO THE RECALL OF OFFICERS TO ACTIVE DUTY AFTER RETIREMENT, SECTION 422, TITLE 34 OF THE U.S. CODE, PROVIDES:

IN TIME OF PEACE ANY NAVAL OFFICER ON THE RETIRED LIST MAY, WITH HIS CONSENT, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE ORDERED TO SUCH DUTY AS HE MAY BE ABLE TO PERFORM AT SEA OR ON SHORE. ( AUG. 22, 1912, CH. 335, 37 STAT. 329.)

SECTION 423, TITLE 34 OF THE U.S. CODE, PROVIDES:

DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, ANY COMMISSIONED OR WARRANT OFFICER OF THE NAVY OR MARINE CORPS OF THE UNITED STATES ON THE RETIRED LIST MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE ORDERED TO ACTIVE DUTY AT SEA OR ON SHORE. ( JULY 1, 1918, CH. 114, 40 STAT. 717; JULY 24, 1941, CH. 320, 55 STAT. 603-605.)

THE QUESTIONS DESIGNATED (2), (3), AND (4), SUPRA, PRESENT THE PROBLEM AS TO WHETHER OFFICERS OF THE MEDICAL CORPS OR DENTAL CORPS OF THE NAVY, ON THE ACTIVE LIST ON SEPTEMBER 1, 1947, AND THEREAFTER RETIRED, ARE ENTITLED TO THE SPECIAL PAY OF $100 PER MONTH IF RECALLED TO ACTIVE DUTY UNDER EITHER OF THE ABOVE-QUOTED SECTIONS OF THE U.S. CODE, PRIOR TO SEPTEMBER 1, 1952, AND ON OR AFTER THAT DATE. SUCH QUESTIONS APPARENTLY HAVE ARISEN BECAUSE OF THE FIVE-YEAR PERIOD DURING WHICH ELIGIBILITY MAY BE ESTABLISHED TO RECEIVE THE SPECIAL PAY. THAT IS, OFFICERS OF THE MEDICAL CORPS OR DENTAL CORPS OF THE REGULAR NAVY WHO WERE ON ACTIVE DUTY ON SEPTEMBER 1, 1947, AND THOSE OFFICERS COMMISSIONED IN SUCH CORPS AFTER THAT DATE AND PRIOR TO SEPTEMBER 1, 1952, ARE ENTITLED TO THE SPECIAL PAY WHILE ON ACTIVE DUTY. ALSO, THE RESERVE OFFICERS SPECIFIED WHO, DURING SUCH FIVE-YEAR PERIOD, VOLUNTEER AND ARE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER ARE ENTITLED TO THIS SPECIAL PAY. SINCE AN OFFICER OF THE MEDICAL CORPS OR DENTAL CORPS WHO WAS ON THE ACTIVE LIST OF THE NAVY ON SEPTEMBER 1, 1947, ESTABLISHED HIS ELIGIBILITY TO RECEIVE THE SPECIAL PAY AND SINCE AN OFFICER WHO IS TRANSFERRED FROM THE ACTIVE TO THE RETIRED LIST IS NOT DIVESTED OF THE OFFICE WHICH HE HOLDS, BUT CONTINUES AS A RETIRED OFFICER UNDER THE APPOINTMENT WHICH HE HELD ON THE ACTIVE LIST (5 COMP. GEN. 198; 25 OP. ATTY. GEN. 185; WOOD V. UNITED STATES, 15 C.1CLS. 151), THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENT OF THE SPECIAL PAY TO THOSE OFFICERS OF THE MEDICAL CORPS OR DENTAL CORPS OF THE NAVY WHO WERE RETIRED SUBSEQUENT TO SEPTEMBER 1, 1947, AND THEREAFTER ARE RECALLED TO ACTIVE DUTY WITH THE MEDICAL OR DENTAL CORPS UNDER AUTHORITY OF EITHER OF THE ABOVE-QUOTED SECTIONS OF THE U.S.C. PRIOR TO SEPTEMBER 1, 1952.

THE QUESTIONS CONCERNING PAYMENT OF THE SPECIAL PAY TO RETIRED OFFICERS WHO MIGHT BE RECALLED TO ACTIVE DUTY ON OR AFTER SEPTEMBER 1, 1952, RELATE TO A SITUATION WHICH WILL NOT ARISE FOR A PERIOD OF APPROXIMATELY THREE YEARS, IN ANY EVENT, AND MAY NEVER ARISE IF THE DIFFICULTY OF PROCURING MEDICAL AND DENTAL PERSONNEL DOES NOT OBTAIN AT THAT TIME OR IF THE LAW IS CHANGED BEFORE THAT TIME. THEREFORE, SINCE SUCH QUESTIONS ARE OF A HYPOTHETICAL NATURE, RELATING TO SITUATIONS WHICH MAY NOT ARISE, AN AUTHORITATIVE DECISION THEREON AT THE PRESENT TIME WOULD NOT BE APPROPRIATE. IN THAT CONNECTION SEE 21 COMP. GEN. 83.