B-73015, MAY 13, 1948, 27 COMP. GEN. 681

B-73015, MAY 13, 1948, 27 COMP. GEN. 681

PAY - ADDITIONAL - ARMY MEDICAL AND DENTAL OFFICERS - RETIRED OFFICERS RECALLED TO ACTIVE DUTY RETIRED MEDICAL AND DENTAL OFFICERS OF THE REGULAR ARMY WHO WERE ON ACTIVE DUTY WITH THE MEDICAL CORPS ON SEPTEMBER 1, 1947, THE EFFECTIVE DATE OF SECTION A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SO AS TO HAVE BEEN ENTITLED THEREUNDER TO THE $100 PER MONTH ADDITIONAL ACTIVE- DUTY PAY AUTHORIZED FOR MEDICAL AND DENTAL CORPS OFFICERS, ARE ENTITLED, UPON RECALL TO ACTIVE DUTY FOR SERVICE WITH THE MEDICAL AND DENTAL CORPS, TO SUCH ADDITIONAL COMPENSATION, ALTHOUGH AS RETIRED OFFICERS THEY CEASED TO BE OFFICERS OF THE MEDICAL AND DENTAL CORPS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, MAY 13, 1948:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 19, 1948, REQUESTING A DECISION ON THE QUESTION WHETHER OR NOT OFFICERS OF THE MEDICAL CORPS AND THE DENTAL CORPS OF THE REGULAR ARMY WHO WERE ON THE ACTIVE LIST ON SEPTEMBER 1, 1947, THE EFFECTIVE DATE OF TITLE I OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, AND WHO HAVE BEEN RETIRED SINCE THAT DATE, WOULD BE ENTITLED, UPON RECALL TO ACTIVE DUTY, TO THE ADDITIONAL PAY OF $100 PER MONTH WHICH THE SAID ACT AUTHORIZES (OVER AND ABOVE REGULAR ACTIVE DUTY PAY AND ALLOWANCES) FOR CERTAIN MEDICAL AND DENTAL OFFICERS.

SECTION 101, TITLE I, OF THE ABOVE-MENTIONED ACT ( PUBLIC LAW 365, 80TH CONGRESS, APPROVED AUGUST 5, 1947, 61 STAT. 776) AMENDED THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, BY ADDING THERETO A NEW SECTION (NUMBERED A) WHICH PROVIDES AS FOLLOWS:

SEC. A. (A) THE TERM "COMMISSIONED OFFICERS," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN ONLY (1) THOSE COMMISSIONED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY AND COMMISSIONED MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE ON ACTIVE DUTY ON THE

EFFECTIVE DATE OF THIS SECTION; (2) THOSE OFFICERS WHO ARE HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY OR AS MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION; (3) SUCH OFFICERS, NOW OR HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE PUBLIC HEALTH SERVICE, WHO MAY, DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION, 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, OR THE ARMY OF THE UNITED STATES WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION; (5) GENERAL OFFICERS WHO MAY HEREAFTER BE APPOINTED FROM THOSE OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, OR THE ARMY OF THE UNITED STATES WHO ARE INCLUDED IN (1), (2), OR (3) ABOVE.

(B) IN ADDITION TO ANY PAY, ALLOWANCES, OR EMOLUMENTS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED TO PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE FOLLOWING THE DATE OF ENACTMENT OF THIS SECTION: PROVIDED, THAT SUCH SUM SHALL NOT BE INCLUDED IN COMPUTING THE AMOUNT OF INCREASE IN PAY AUTHORIZED BY ANY OTHER PROVISION OF LAW OR IN COMPUTING RETIRED PAY: PROVIDED FURTHER, THAT THE TOTAL AMOUNT WHICH MAY BE PAID TO ANY ONE OFFICER UNDER THE AUTHORITY CONTAINED IN THIS SECTION SHALL NOT EXCEED $36,000: AND PROVIDED FURTHER, THAT THE COMMISSIONED OFFICERS DESCRIBED IN SUBSECTION (A) (3) OF THIS SECTION SHALL RECEIVE THE PAY PROVIDED BY THIS SUBSECTION ONLY DURING PERIODS OF VOLUNTEER SERVICE.

IT IS INDICATED THAT YOUR QUESTION, AS STATED ABOVE, HAS ARISEN BECAUSE OF CERTAIN OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY ( JAG 210.851, FEBRUARY 21, 1923, AND JAG 210.851, MARCH 31, 1941), WHEREIN IT WAS HELD THAT UPON RETIREMENT AN OFFICER "LOSES HIS IDENTITY WITH, AND HIS RELATION TO, THE ARM OR SERVICE IN WHICH HE FORMERLY SERVED AND BECOMES MERELY AN ARMY OFFICER.'

IT IS FOR NOTING THAT SUBSECTION (B) OF THE ABOVE-QUOTED SECTION AUTHORIZES ADDITIONAL MONTHLY PAY OF $100, DURING ACTIVE SERVICE, FOR "COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION" AND THAT THE TERM "COMMISSIONED OFFICERS," AS DEFINED IN THE SAID SUBSECTION (A), LUDES,"THOSE COMMISSIONED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY * * * WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION.' THE OFFICERS HERE INVOLVED WERE ,COMMISSIONED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY" ON THE EFFECTIVE DATE OF THE SAID SECTION BUT THE QUESTION IS WHETHER OR NOT SUBSECTION (B), SUPRA, CONTEMPLATES THE PAYMENT OF THE ADDITIONAL MONTHLY PAY OF $100 FOR ACTIVE SERVICE RENDERED BY SUCH OFFICERS AFTER THEY ARE RETIRED AND THUS CEASE TO BE OFFICERS OF THE " MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY" AND BECOME RETIRED OFFICERS OF THE ARMY WITHOUT ANY PARTICULAR ARM OR SERVICE.

YOU STATE THAT THE ABOVE-QUOTED ACT "WAS PASSED FOR THE SPECIFIC PURPOSE OF INDUCING OFFICERS INTO THE MEDICAL DEPARTMENT OF THE ARMY; " THAT IT "IS EXPECTED THAT IT (THE SAID ACT) WOULD BE A FACTOR IN INDUCING SOME OF THESE RETIRED OFFICERS TO RETURN TO ACTIVE DUTY; " THAT THEIR "CHANGE IN STATUS UPON RETIREMENT DOES NOT AFFECT THE FACT THAT THEY WOULD BE PERFORMING MEDICAL AND DENTAL DUTIES AFTER THEIR RETURN TO ACTIVE DUTY; " AND THAT YOU ARE "INCLINED TO BELIEVE THAT" THE RETIRED OFFICERS IN QUESTION "WHEN BROUGHT BACK ON ACTIVE DUTY, SHOULD BE ENTITLED TO THE ADDITIONAL PAY OF ONE HUNDRED DOLLARS * * * PER MONTH AS PROVIDED IN PUBLIC LAW 365.'

UNDER THE TERMS OF THE ABOVE-QUOTED ACT, THE ADDITIONAL MONTHLY PAY OF $100 IS PAYABLE NOT ONLY TO OFFICERS OF THE REGULAR ESTABLISHMENTS OF SPECIFIED CATEGORIES BUT TO CERTAIN RESERVE OFFICERS AS WELL AND THE LEGISLATIVE HISTORY OF THE ACT DISCLOSES THAT THE ARMY, THE NAVY AND THE PUBLIC HEALTH SERVICE WERE "EXPERIENCING GREAT DIFFICULTY IN SECURING AND RETAINING AN ADEQUATE NUMBER OF PHYSICIANS, SURGEONS AND DENTISTS" AND THAT THE PRINCIPAL PURPOSE OF THE ACT WAS TO ALLEVIATE SUCH DIFFICULTY BY OFFERING THE ADDITIONAL PAY OF $100 PER MONTH AS AN INDUCEMENT FOR QUALIFIED MEDICAL AND DENTAL PERSONNEL TO SERVE ON ACTIVE DUTY. HENCE, IT WOULD NOT APPEAR TO BE INCONSISTENT WITH THE GENERAL TENOR OR THE BROAD PURPOSES OF THE ACT TO PAY THE SAID ADDITIONAL PAY TO THE RETIRED OFFICERS HERE INVOLVED FOR PERIODS OF ACTIVE SERVICE. MOREOVER, THE ACT OF JULY 9, 1918, 40 STAT. 893, 10 U.S.C. 999, PROVIDES THAT:

WHEN ANY RETIRED OFFICER OF THE ARMY IS, IN THE DISCRETION OF THE PRESIDENT, EMPLOYED ON ACTIVE DUTY AND ASSIGNED TO DUTY IN AN ARM, CORPS, DEPARTMENT, OR ORGANIZATION, HE SHALL, FOR ALL PURPOSES, EXCEPT PROMOTION, BE CONSIDERED AN OFFICER OF SUCH ARM, CORPS, DEPARTMENT, OR ORGANIZATION WHILE SO SERVING, AND SHALL BE AN EXTRA NUMBER THEREIN.

THEREFORE, IT BEING UNDERSTOOD THAT THE RETIRED OFFICERS INVOLVED IN YOUR QUESTION WILL BE PERFORMING THE DUTIES OF MEDICAL AND DENTAL OFFICERS AND THAT THEY WILL BE ASSIGNED TO DUTY IN THE MEDICAL CORPS OR THE DENTAL CORPS DURING THEIR ACTIVE SERVICE, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT TO THEM OF ADDITIONAL PAY OF $100 PER MONTH IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF AUGUST 5, 1947, SUPRA. ..END