A-1628, JULY 18, 1924, 4 COMP. GEN. 72

A-1628: Jul 18, 1924

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NAVY PAY - LONGEVITY - SERVICE AS INTERNE IN PUBLIC HEALTH SERVICE HOSPITAL SERVICE AS AN INTERNE IN A PUBLIC HEALTH SERVICE HOSPITAL IS CIVILIAN SERVICE AND NOT SUCH SERVICE AS THE ACTS OF MAY 18. 1924: THERE IS FOR CONSIDERATION THE QUESTION AS TO WHETHER E.L. IS ENTITLED TO CREDIT FOR SERVICE AS INTERNE IN THE PUBLIC HEALTH SERVICE FROM OCTOBER 6. IT APPEARS THAT CLAIMANT WAS APPOINTED AN INTERNE IN THE PUBLIC HEALTH SERVICE FOR DUTY AT NEW YORK. HE WAS APPOINTED AN ASSISTANT SURGEON IN THE NAVY FROM OCTOBER 14. THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY. ALSO 75 PERCENTUM OF ALL OTHER PERIODS OF TIME DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF THE ORGANIZED MILITIA BETWEEN JANUARY 21.

A-1628, JULY 18, 1924, 4 COMP. GEN. 72

NAVY PAY - LONGEVITY - SERVICE AS INTERNE IN PUBLIC HEALTH SERVICE HOSPITAL SERVICE AS AN INTERNE IN A PUBLIC HEALTH SERVICE HOSPITAL IS CIVILIAN SERVICE AND NOT SUCH SERVICE AS THE ACTS OF MAY 18, 1920, 41 STAT. 604, AND JUNE 10, 1922, 42 STAT. 627, AUTHORIZE TO BE COUNTED FOR LONGEVITY PAY PURPOSES BY OFFICERS OF THE NAVY. 27 COMP. DEC. 549 OVERRULED; 1 COMP. GEN. 246 MODIFIED.

DECISION BY ACTING COMPTROLLER GENERAL GINN, JULY 18, 1924:

THERE IS FOR CONSIDERATION THE QUESTION AS TO WHETHER E.L. WOODS, LIEUTENANT COMMANDER (M.C.), UNITED STATES NAVY, IS ENTITLED TO CREDIT FOR SERVICE AS INTERNE IN THE PUBLIC HEALTH SERVICE FROM OCTOBER 6, 1904, TO AUGUST 15, 1905, 10 MONTHS AND 10 DAYS, IN COMPUTING HIS PAY UNDER SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND IN COMPUTING HIS PAY AND ALLOWANCES UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, 627.

IT APPEARS THAT CLAIMANT WAS APPOINTED AN INTERNE IN THE PUBLIC HEALTH SERVICE FOR DUTY AT NEW YORK, N.Y., OCTOBER 6, 1904, AND RESIGNED EFFECTIVE AUGUST 15, 1905. HE WAS APPOINTED AN ASSISTANT SURGEON IN THE NAVY FROM OCTOBER 14, 1905, ACCEPTED THE APPOINTMENT AND EXECUTED THE REQUIRED OATH OF OFFICE ON OCTOBER 19, 1905, AND HAS CONTINUOUSLY SERVED IN THE NAVY SINCE THAT DATE. HE HELD THE TEMPORARY RANK OF COMMANDER FROM MAY 18, 1920, TO DECEMBER 31, 1921, WHEN HE REVERTED TO HIS PERMANENT RANK OF LIEUTENANT COMMANDER.

SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES:

THAT HEREAFTER LONGEVITY PAY FOR OFFICERS IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES.

THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDES:

FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME; AND ALSO 75 PERCENTUM OF ALL OTHER PERIODS OF TIME DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF THE ORGANIZED MILITIA BETWEEN JANUARY 21, 1903, AND JULY 1, 1916, OR OF THE NATIONAL GUARD, THE NAVAL MILITIA, OR THE NATIONAL NAVAL VOLUNTEERS SINCE JUNE 3, 1916, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME, SHALL BE INCLUDED IN THE COMPUTATION.

THE QUESTION PRESENTED IS WHETHER SAID SERVICE AS INTERNE IN THE PUBLIC HEALTH SERVICE IS SERVICE IN THE PUBLIC HEALTH SERVICE WITHIN THE MEANING OF SECTION 11 OF THE ACT OF MAY 18, 1920.

AT THE TIME OF THE ENACTMENT OF THE ACT OF MAY 18, 1920, THE PUBLIC HEALTH SERVICE CONSISTED OF COMMISSIONED MEDICAL OFFICERS WHOSE PAY AND DESIGNATIONS WERE FIXED BY LAW, AND CIVIL EMPLOYEES WHOSE COMPENSATION WAS FIXED EITHER BY REGULATION OR BY THE SECRETARY OF THE TREASURY. ACT OF AUGUST 14, 1912, 37 STAT. 309; REGULATIONS, UNITED STATES PUBLIC HEALTH SERVICE, 1913. INTERNES ARE NOT COMMISSIONED OFFICERS, BUT COME IN THE CLASS OF CIVIL EMPLOYEES IN REGARD TO WHOSE COMPENSATION PARAGRAPH 85 OF SAID REGULATIONS PROVIDES:

THE COMPENSATION OF INTERNES SHALL BE FIXED BY THE SECRETARY OF THE TREASURY, AND IN ADDITION THEY SHALL BE ENTITLED TO QUARTERS (ONE ROOM), SUBSISTENCE, AND LAUNDRY.

BY SECTION 4 OF THE ACT OF JULY 1, 1902, 32 STAT. 712, THE PRESIDENT WAS AUTHORIZED, IN HIS DISCRETION, TO UTILIZE THE PUBLIC HEALTH AND MARINE HOSPITAL SERVICE, NOW PUBLIC HEALTH SERVICE, IN TIMES OF THREATENED OR ACTUAL WAR TO SUCH EXTENT AND IN SUCH MANNER AS SHALL IN HIS JUDGMENT PROMOTE THE PUBLIC INTEREST.

PARAGRAPH 5 OF THE PUBLIC HEALTH SERVICE REGULATIONS OF 1913 PROVIDES THAT THE COMMISSIONED OFFICERS OF THAT SERVICE SHALL RANK RELATIVELY WITH AND AFTER COMMISSIONED OFFICERS OF THE REVENUE CUTTER SERVICE (COAST GUARD), AND COMMISSIONED OFFICERS OF THE LATTER SERVICE RANK WITH COMMISSIONED OFFICERS OF THE ARMY AND NAVY. ACT OF APRIL 12, 1902, 32 STAT. 100; ACT OF APRIL 16, 1908, 35 STAT. 61; ACT OF JANUARY 28, 1915, 38 STAT. 800. THIS RELATIVE RANK WAS APPARENTLY RECOGNIZED BY CONGRESS IN THE ACT OF AUGUST 14, 1912, 37 STAT. 309, BY PROVIDING THE SAME RATES OFBASE PAY AND LONGEVITY INCREASE FOR EACH FIVE YEARS' SERVICE FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE AS HAD BEEN PROVIDED FOR COMMISSIONED OFFICERS OF THE ARMY AND NAVY OF CORRESPONDING RANK AND LENGTH OF SERVICE. SEE ALSO ACT OF MAY 18, 1920, 41 STAT. 601; ACT OF JUNE 10, 1922, 42 STAT. 625.

THE PAY OF THE OFFICERS AND OTHER EMPLOYEES OF THE PUBLIC HEALTH SERVICE BELOW THE COMMISSIONED GRADES HAS NOT BEEN PLACED ON A PARITY WITH THE NONCOMMISSIONED OFFICERS OR ENLISTED MEN OF THE MILITARY SERVICES. THE ACT OF MAY 18, 1920, ENTITLED "AN ACT TO INCREASE THE EFFICIENCY OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," INCREASED THE PAY OF THE COMMISSIONED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, AND PUBLIC HEALTH SERVICE, OF THE WARRANT OFFICERS OF THE NAVY, AND OF THE ENLISTED MEN OF THE ARMY, MARINE CORPS, AND NAVY, AND ASSIMILATED THE PAY AND ALLOWANCES OF THE COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY AND THE COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE COAST GUARD TO THOSE OF CORRESPONDING GRADES OR RATINGS AND LENGTH OF SERVICE IN THE NAVY AND CONTAINED THE ABOVE PROVISION RELATIVE TO COUNTING THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES FOR THE PURPOSE OF COMPUTING LONGEVITY PAY OF THE OFFICERS. IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE IN THE CONFERENCE REPORT (H. REPT. NO. 948) ON THE AMENDMENTS OF THE SENATE TO THE BILL H.R. 11927, IT WAS STATED, IN PART, AS FOLLOWS:

THE BILL AS AGREED UPON PLACES ALL OF THE MILITARY OR QUASI MILITARY SERVICES OF THE GOVERNMENT ON A SIMILAR BASIS AS REGARDS RATES OF PAY.

SECTION 1 OF THE BILL AS AGREED UPON PROVIDES SPECIFIC INCREASES IN THE PAY OF COMMISSIONED OFFICERS. * * *

SECTION 11 * * * CONTAINS A PROVISO PLACING ALL THE SERVICES ON AN EQUALITY IN THE MATTER OF COMPUTATION OF LONGEVITY OR SERVICE PAY.

IT WILL BE NOTED THAT SO FAR AS THE PUBLIC HEALTH SERVICE IS CONCERNED THE SAID ACT DEALT ONLY WITH THE PAY OF THE COMMISSIONED OFFICERS, AND THIS IS ALSO TRUE WITH RESPECT TO THE ACT OF JUNE 10, 1922.

THE PUBLIC HEALTH SERVICE IS NOT A PART OF THE MILITARY FORCES OF THE NATION, BUT IS A PART OF THE CIVIL GOVERNMENT. 27 COMP. DEC. 153. THE COMMISSIONED OFFICERS THEREOF, HOWEVER, HAVE RELATIVE RANK AND RECEIVE THE SAME PAY AS THE COMMISSIONED OFFICERS IN THE MILITARY SERVICES AND TO THAT EXTENT HAVE A QUASI MILITARY STATUS.

PRIOR TO THE ACT OF MAY 18, 1920, OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS WERE AUTHORIZED TO COUNT IN COMPUTING LONGEVITY PAY PRIOR MILITARY SERVICE RENDERED IN THE ARMY, NAVY, AND MARINE CORPS, AS DISTINGUISHED FROM CIVILIAN SERVICE. ACT MAY 13, 1908, 35 STAT. 128; ACT OF JUNE 30, 1882, 22 STAT. 118, UNITED STATES V. MORTON, 112 U.S. L; UNITED STATES V. LA TOURRETTE, 151 U.S. 572; SCHREINER V. UNITED STATES, 43 CT.CLS. 480.

AS THE ACT OF MAY 18, 1920, DEALS ONLY WITH THE PAY OF PERSONS HAVING A MILITARY OR QUASI MILITARY STATUS IT WOULD SEEM THAT THE INTENDMENT OF THE LONGEVITY PROVISION OF SECTION 11 THEREIN WAS TO AUTHORIZE THE COUNTING OF ONLY MILITARY OR QUASI MILITARY SERVICE AS DISTINGUISHED FROM SERVICE AS A CIVILIAN; ESPECIALLY IN VIEW OF THE PRIOR LEGISLATION ON THE SUBJECT.

IT IS NOT TO BE PRESUMED THAT CONGRESS INTENDED TO AUTHORIZE THE COMMISSIONED OFFICERS OF THE MILITARY SERVICES TO COUNT FOR LONGEVITY PAY PURPOSES PRIOR SERVICE AS A CIVILIAN IN THE PUBLIC HEALTH SERVICE OR THE COAST AND GEODETIC SURVEY WHILE THE RIGHT TO COUNT SUCH SERVICE IN OTHER BRANCHES OF THE GOVERNMENT SERVICE IS DENIED.

IT IS CONCLUDED THAT SERVICE AS INTERNE IN THE PUBLIC HEALTH SERVICE IS NOT SERVICE IN THE PUBLIC HEALTH SERVICE WITHIN THE MEANING OF SAID ACT OF MAY 18, 1920, AND THEREFORE CAN NOT BE COUNTED IN COMPUTING THE LONGEVITY PAY OF AN OFFICER OF THE NAVY UNDER THE ACT OF MAY 18, 1920, OR THE PAY AND ALLOWANCES OF SUCH OFFICER UNDER THE ACT OF JUNE 10, 1922. SEE IN THIS CONNECTION 2 COMP. GEN. 350.

IT WAS HELD BY A FORMER COMPTROLLER OF THE TREASURY THAT THE WORD "SERVICE" IN THE PROVISION OF THE REGULATIONS OF THE MARINE HOSPITAL SERVICE THAT ADDITIONAL COMPENSATION SHALL BE ALLOWED COMMISSIONED OFFICERS ABOVE THE RANK OF ASSISTANT SURGEON "FOR EACH FIVE YEARS' SERVICE" MEANS NOT ONLY COMMISSIONED BUT OTHER SERVICE IN THE MARINE HOSPITAL SERVICE, INCLUDING SERVICE AS HOSPITAL STEWARDS, ACTING ASSISTANT SURGEONS, AND AS INTERNES. 6 COMP. DEC. 508; 9 ID. 314.

THE SAID DECISIONS RELATED TO A PERIOD OF TIME BEFORE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WERE GIVEN A QUASI MILITARY STATUS. IT DOES NOT FOLLOW, HOWEVER, THAT OFFICERS IN THE OTHER SERVICES MENTIONED IN THE ACT OF MAY 18, 1920, ARE ENTITLED TO COUNT SUCH CIVILIAN SERVICE UNDER THAT ACT. IN 27 COMP. DEC. 549, IT WAS HELD THAT AN ARMY OFFICER WAS ENTITLED UNDER SAID SECTION 11 OF THE ACT OF MAY 18, 1920, TO COUNT PRIOR SERVICE AS DECK OFFICER IN THE COAST AND GEODETIC SURVEY, A GRADE BELOW THAT OF COMMISSIONED OFFICER. ALTHOUGH NOT STATED, THE APPARENT REASON FOR THIS HOLDING WAS THAT SERVICE AS DECK OFFICER WAS SERVICE IN THE COAST AND GEODETIC SURVEY, AND THEREFORE CAME WITHIN THE LETTER OF THE LAW. WHILE SAID HOLDING IS IN ACCORDANCE WITH THE LETTER OF THE LAW, IT IS APPARENT THAT IT DOES NOT COME WITHIN THE SPIRIT AND REASON OF THE LAW. THE SAID DECISION WILL, THEREFORE, NOT BE FOLLOWED HEREAFTER. THE DECISION IN 1 COMP. GEN. 246 IS MODIFIED TO CONFORM WITH THE VIEWS HEREIN EXPRESSED.