A-31431, MARCH 21, 1958, 37 COMP. GEN. 618

A-31431: Mar 21, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - PAY - DRILL - MULTIPLE DRILLS IN ONE DAY - RETIREMENT CREDIT MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO PAY AND ALLOWANCES FOR TWO PAID DRILLS OR EQUIVALENT PERIODS OF INSTRUCTION PERFORMED IN ONE CALENDAR DAY OF AT LEAST EIGHT HOURS' DURATION. ARE ENTITLED FOR RETIREMENT PURPOSES TO CREDIT OF ONE POINT FOR EACH DRILL UNDER 10 U.S.C. 1332 AND 1333 WHICH AUTHORIZE A ONE POINT CREDIT FOR EACH DRILL AND ONE DAY CREDIT FOR EACH POINT. 1958: FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 22. (2) WHETHER SUCH MEMBERS ARE ENTITLED UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810. IT IS POINTED OUT IN THE LETTER THAT THE CURRENT POLICY OF THE DEPARTMENT OF DEFENSE.

A-31431, MARCH 21, 1958, 37 COMP. GEN. 618

MILITARY PERSONNEL - PAY - DRILL - MULTIPLE DRILLS IN ONE DAY - RETIREMENT CREDIT MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO PAY AND ALLOWANCES FOR TWO PAID DRILLS OR EQUIVALENT PERIODS OF INSTRUCTION PERFORMED IN ONE CALENDAR DAY OF AT LEAST EIGHT HOURS' DURATION, PURSUANT TO 37 U.S.C. 301 (A), ARE ENTITLED FOR RETIREMENT PURPOSES TO CREDIT OF ONE POINT FOR EACH DRILL UNDER 10 U.S.C. 1332 AND 1333 WHICH AUTHORIZE A ONE POINT CREDIT FOR EACH DRILL AND ONE DAY CREDIT FOR EACH POINT.

TO THE SECRETARY OF DEFENSE, MARCH 21, 1958:

FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 22, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION (1) AS TO THE LEGALITY OF PAYING TO MEMBERS OF THE RESERVE COMPONENTS OF ONE DAY'S BASIC PAY FOR EACH AUTHORIZED DRILL OR EQUIVALENT PERIOD OF INSTRUCTION PERFORMED IN ANY ONE CALENDAR DAY, AND (2) WHETHER SUCH MEMBERS ARE ENTITLED UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810, 62 STAT. 1087, 10 U.S.C. 1036, FOR RETIREMENT PURPOSES, TO CREDIT OF ONE POINT FOR EACH SUCH AUTHORIZED DRILL OR EQUIVALENT PERIOD OF INSTRUCTION PERFORMED DURING A SINGLE CALENDAR DAY.

THE ASSISTANT SECRETARY'S LETTER REFERS TO OUR DECISION OF MAY 13, 1930, A-31431, WHICH CONSIDERED THE PAYMENT OF MULTIPLE DRILLS PERFORMED IN ANY ONE CALENDAR DAY, AND HE STATES THAT THE LAW IN EFFECT, NAMELY, SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 301. IT IS POINTED OUT IN THE LETTER THAT THE CURRENT POLICY OF THE DEPARTMENT OF DEFENSE, AS SET FORTH IN PARAGRAPH V OF THE DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 1215.6, MARCH 5, 1956, IS TO AUTHORIZE NO MORE THAN TWO PAID DRILLS, TRAINING ASSEMBLIES, OR PERIODS OF EQUIVALENT TRAINING OR INSTRUCTION IN ANY ONE CALENDAR DAY. IT IS DISCLOSED THAT IT HAS BEEN THE PRACTICE OF THE MILITARY DEPARTMENTS, INSOFAR AS DETERMINING ELIGIBILITY FOR RETIREMENT PURPOSES UNDER TITLE III OF PUBLIC LAW 810 IS CONCERNED, TO CREDIT ONE POINT FOR EACH AUTHORIZED DRILL, ETC., PERFORMED IN ONE DAY WHERE THE MULTIPLE DRILLS ARE AUTHORIZED BY THE SECRETARY CONCERNED AND OTHERWISE CONFORM TO THE REQUIREMENTS PRESCRIBED BY LAW.

THE MENTIONED DECISION OF MAY 13, 1930, A-31431, WAS IN RESPONSE TO A REQUEST FROM THE DEPARTMENT OF THE NAVY FOR AUTHORITY TO AMEND ITS REGULATIONS TO PERMIT AVIATION DIVISIONS OF THE NAVAL RESERVE TO CONDUCT AS MANY AS THREE DRILLS IN ONE DAY AND TO PAY FOR SUCH DRILLS ON THAT BASIS. THE LAW IN EFFECT AT THAT TIME AND CONSIDERED IN THE DECISION (SECTION 21 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1085, 1086) AUTHORIZED THE PAYMENT TO CERTAIN OFFICERS AND ENLISTED MEN OF THE FLEET NAVAL RESERVE OF "COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE MONTHLY BASE PAY OF THEIR GRADES, RANKS, OR RATINGS FOR ATTENDING, UNDER COMPETENT ORDERS, EACH REGULAR DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY.' THE DECISION APPROVED THE PROPOSED CHANGE BUT POINTED OUT THE NECESSITY FOR COMPLYING WITH THE STATUTORY REQUIREMENT OF REGULAR DRILLS BASED UPON THE TOTAL NUMBER AUTHORIZED DURING A FISCAL YEAR.

SECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 63 STAT. 825, 37 U.S.C. 301 (A), PROVIDES AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, AND TO THE EXTENT PROVIDED FOR BY LAW AND BY APPROPRIATIONS, MEMBERS OF THE NATIONAL GUARD, AIR NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD OF THE UNITED STATES, ARMY RESERVE, NAVAL RESERVE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, SHALL BE ENTITLED TO RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE BASIC PAY AUTHORIZED FOR SUCH MEMBERS OF THE UNIFORMED SERVICES WHEN ENTITLED TO RECEIVE BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR NOT LESS THAN TWO HOURS, INCLUDING THOSE PERFORMED ON SUNDAYS AND HOLIDAYS, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED, AND ADDITIONALLY, IN THE DISCRETION OF THE SECRETARY CONCERNED, ENLISTED MEMBERS OF THE ABOVE SERVICES SHALL BE ENTITLED TO RATIONS IN KIND, OR A PORTION THEREOF, WHEN THE INSTRUCTION OR DUTY PERIOD OR PERIODS CONCERNED TOTAL EIGHT OR MORE HOURS IN ANY ONE CALENDAR DAY: * * *

SECTION 501 (A) ALSO AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE MINIMUM STANDARDS WHICH MUST BE MET BEFORE AN ASSEMBLY FOR DRILL, ETC., MAY BE CREDITED FOR PAY PURPOSES. THOSE PROVISIONS OF LAW (SECTION 501 (A) ( ARE SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF LAW IN EFFECT AT THE TIME OUR DECISION OF MAY 13, 1930, WAS RENDERED.

THE CURRENT POLICY OF THE DEPARTMENT OF DEFENSE CONCERNING MULTIPLE TRAINING PERIODS IS CONTAINED IN PARAGRAPH V., E. OF THE DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 1215.6, MARCH 5, 1956--- PRESUMABLY ISSUED TO IMPLEMENT THE PROVISIONS OF SECTION 501 (A/--- AND PROVIDES AS OLLOWS:

WITHIN APPROPRIATE PAY GROUPS, THE SECRETARIES OF THE MILITARY DEPARTMENTS MAY AUTHORIZE MULTIPLE TRAINING PERIODS, THAT IS, MORE THAN ONE PAID DRILL, TRAINING ASSEMBLY, OR PERIOD OF EQUIVALENT TRAINING OR INSTRUCTION TO BE CONDUCTED WITHIN ONE CALENDAR DAY, PROVIDED EACH IS OF AT LEAST FOUR HOURS DURATION. HOWEVER, NO MORE THAN TWO SUCH PAID DRILLS, TRAINING ASSEMBLIES, OR PERIODS OF EQUIVALENT TRAINING OR INSTRUCTION ARE AUTHORIZED IN ANY ONE CALENDAR DAY.

IN A MEMORANDUM PREPARED IN THE OFFICE OF THE GENERAL COUNSEL, DEPARTMENT OF DEFENSE (COPY RECEIVED WITH THE LETTER OF JANUARY 22, 1958), IT IS STATED THAT IN AN OPINION DATED MAY 13, 1954, THE JUDGE ADVOCATE GENERAL OF THE ARMY HELD THAT IT WAS LEGALLY OBJECTIONABLE TO AWARD MORE THAN ONE POINT FOR DRILLS OR EQUIVALENT PERIODS OF INSTRUCTION HELD DURING A SINGLE CALENDAR DAY FOR RETIREMENT PURPOSES UNDER PUBLIC LAW 810; AND, ALSO, THAT IT WAS LEGALLY OBJECTIONABLE TO COUNT, FOR PAY PURPOSES, DRILLS OR EQUIVALENT PERIODS OF INSTRUCTION IN EXCESS OF ONE HELD ON A SINGLE CALENDAR DAY.

IN SUPPORT OF THE VIEW TAKEN BY THE OFFICE OF THE SECRETARY OF DEFENSE THAT THE PRESENT PRACTICE OF PAYING FOR MULTIPLE DRILLS ON ONE DAY WAS NOT LEGALLY OBJECTIONABLE, THERE ARE CITED EXCERPTS FROM THE HEARINGS BEFORE A SUBCOMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 2553 (WHICH AS REWRITTEN BECAME H.R. 5007) WHICH IN TURN BECAME THE CAREER COMPENSATION ACT OF 1949. THOSE HEARINGS (PAGES 1721 TO 1723) DISCLOSE THAT IN DISCUSSING THE PROVISIONS OF SECTION 501 (A) (ORIGINALLY WRITTEN AS SECTION 601), THE PURPOSE OF WHICH WAS TO REENACT EXISTING LAW (SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 114 (1946 USED.) AMENDED BY SECTION 3 OF THE ACT OF MARCH 25, 1948, 62 STAT. 88), THAT AT THE REQUEST OF THE CHIEF OF THE NATIONAL GUARD BUREAU, SECTION 501 (A) WAS AMENDED TO PROVIDE "SHALL NOT AUTHORIZE FOR PAY PURPOSES (MORE THAN) ONE ASSEMBLY OR PERIOD OF EQUIVALENT TRAINING INSTRUCTION, DUTY OR APPROPRIATE DUTIES IN ANY ONE CALENDAR DAY.' WHEN THIS MATTER WAS FURTHER CONSIDERED (SEE PAGES 1775 TO 1778 OF THE HEARINGS), THE SUBCOMMITTEE WAS APPRISED OF THE CONCLUSION REACHED IN OUR DECISION OF MAY 13, 1930, A-31431, CITED ABOVE, AND AFTER FURTHER DISCUSSION OF THE MATTER, INCLUDING CONSIDERATION OF A JOINT MEMORANDUM FROM THE NAVY AND THE AIR FORCE URGING THE COMMITTEE NOT TO UPSET THE PRESENT PRACTICE OF THE CONSOLIDATED DRILL SYSTEM, THE ARMY'S PROPOSED AMENDMENT WAS DEFEATED.

WE FIND NO LEGAL OBJECTION TO THE CURRENT POLICY OF THE DEPARTMENT OF DEFENSE OF PAYING TO MEMBERS OF THE RESERVE COMPONENTS NO MORE THAN TWO PAID DRILLS, TRAINING ASSEMBLIES, OR PERIODS OF EQUIVALENT TRAINING OR INSTRUCTION CONDUCTED WITHIN ONE CALENDAR DAY OF AT LEAST EIGHT HOURS' DURATION. IT IS UNDERSTOOD, OF COURSE, THAT SUCH ASSEMBLIES, ETC., WILL NOT EXCEED THE PRESCRIBED MAXIMUM NUMBER WHICH MAY BE COUNTED FOR PAY PURPOSES IN EACH FISCAL YEAR. SEE 36 COMP. GEN. 46. ALSO SEE PARAGRAPH 39B (3), ARMY REGULATIONS 140-305 DATED DECEMBER 18, 1956, AND PARAGRAPH 10612, AIR FORCE MANUAL 173-22 OCTOBER 1, 1957.

CONCERNING THE QUESTION AS TO WHETHER SUCH RESERVE MEMBERS ARE ENTITLED, FOR RETIREMENT PURPOSES, TO CREDIT OF MORE THAN ONE POINT A DAY FOR EACH DRILL, ETC., THERE IS FOR CONSIDERATION THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087. THE PERTINENT PROVISIONS OF THAT ACT APPLICABLE HERE, SECTION 1332 (A) (2) (A) (I) OF THE TITLE 10 U.S. CODE, PROVIDES FOR CREDITING "ONE POINT FOR EACH DAY OF ACTIVE SERVICE," AND SECTION 1332 (A) (2) (B) PROVIDES FOR CREDITING "ONE POINT FOR EACH ATTENDANCE AT A DRILL OR PERIOD OF EQUIVALENT INSTRUCTION THAT WAS PRESCRIBED FOR THAT YEAR BY THE SECRETARY CONCERNED AND CONFORMED TO THE REQUIREMENTS PRESCRIBED BY LAW.' SECTION 1333 (2) AUTHORIZES ONE DAY FOR EACH POINT CREDITED UNDER CLAUSE (B) OF SECTION 1332 (A) (2), BUT NOT MORE THAN 60 DAYS IN ANY ONE YEAR.

THE ACT (10 U.S.C. 1332) CLEARLY AUTHORIZES THE CREDITING OF "ONE POINT FOR EACH ATTENDANCE AT A DRILL OR PERIOD OF EQUIVALENT INSTRUCTION THAT WAS PRESCRIBED FOR THAT YEAR BY THE SECRETARY CONCERNED.' THOSE PROVISIONS MUST BE READ IN CONJUNCTION WITH 10 U.S.C. 1333 WHICH AUTHORIZES ONE DAY FOR EACH POINT CREDITED BUT NOT MORE THAN 60 DAYS IN ANY ONE YEAR. THE WORD "EACH" MEANS EVERY ONE OF ANY NUMBER, SEPARATELY CONSIDERED. STATE V. MAINE CENT. R. CO., 66 ME. 488, 510. ALSO, THE WORD "EACH" MEANS EVERY ONE OF ANY NUMBER OF NUMERICAL AGGREGATE, CONSIDERED INDIVIDUALLY. MALCOMSON V. WAPPOO MILLS, C.S.S.C. 86 F. 192, 194. VOLUME 14, PAGES 7 AND 8, WORDS AND PHRASES, PERMANENT EDITION.) ACCORDINGLY, IT IS OUR VIEW THAT THOSE MEMBERS OF THE RESERVE COMPONENTS WHO ARE OTHERWISE ENTITLED TO PAY AND ALLOWANCES FOR TWO PAID DRILLS OR EQUIVALENT PERIODS OF INSTRUCTION CONDUCTED WITHIN ONE CALENDAR DAY, AS INDICATED ABOVE, ARE ENTITLED ALSO, UNDER THE PROVISIONS OF PUBLIC LAW 810, TO CREDIT OF ONE POINT FOR EACH SUCH AUTHORIZED DRILL OR EQUIVALENT PERIOD OF INSTRUCTION. COMPARE 36 COMP. GEN. 46, AND SEE PARAGRAPH 3, BUREAU OF NAVAL PERSONNEL INSTRUCTIONS 1820.1B, MAY 20, 1957. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.