A-71273, APRIL 3, 1968, 47 COMP. GEN. 515

A-71273: Apr 3, 1968

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IN A NONLEAP YEAR IS NOT ENTITLED UNDER A- 71273. THE RULE IN THE 1936 DECISION THAT RESERVISTS ORDERED TO DUTY FOR A PERIOD OF LESS THAN 30 DAYS ARE NOT WITHIN THE SCOPE OF THE ACT OF JUNE 30. ARE. IS AFFIRMED. 1968: FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 9. IN A NONLEAP YEAR IS ENTITLED TO A FULL- MONTH'S ACTIVE DUTY PAY AND ALLOWANCES. THE CIRCUMSTANCES GIVING RISE TO THE REQUEST ARE SET FORTH AND DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 406. IN WHICH WE CONSIDERED THE CLAIM OF A MEMBER OF THE MARINE CORPS RESERVE WHO WAS ORDERED TO ACTIVE DUTY AT THE MARINE BARRACKS. THE RECORD SHOWED THAT THE MEMBER WAS ORDERED TO PROCEED ON FEBRUARY 1.

A-71273, APRIL 3, 1968, 47 COMP. GEN. 515

PAY - RESERVISTS - PAYMENT BASIS - ACTUAL DAYS SERVED A RESERVIST OF THE ARMED FORCES WHO SERVES ON ACTIVE DUTY FOR TRAINING FROM FEBRUARY 1, THROUGH 28, IN A NONLEAP YEAR IS NOT ENTITLED UNDER A- 71273, MARCH 2, 1936, TO A FULL MONTH'S ACTIVE DUTY PAY AND ALLOWANCES WITHOUT DEDUCTION FOR THE 2-CONSTRUCTIVE DAYS AT THE END OF FEBRUARY. THE RULE IN THE 1936 DECISION THAT RESERVISTS ORDERED TO DUTY FOR A PERIOD OF LESS THAN 30 DAYS ARE NOT WITHIN THE SCOPE OF THE ACT OF JUNE 30, 1906, WHICH PRESCRIBES A 30-DAY CALENDAR MONTH FOR COMPUTING THE PAY OF PERSONS PAID ON AN ANNUAL OR MONTHLY BASIS, AND ARE, THEREFORE, ONLY ENTITLED TO PAY FOR THE ACTUAL NUMBER OF DAYS SERVED, INCLUDING THE THIRTY-FIRST DAY OF THE MONTH, NOT HAVING BEEN CHANGED BY THE CODIFICATION IN 37 U.S.C. 1004 OF THE GOVERNING STATUTES, THE DECISION OF MARCH 2, 1936, IS AFFIRMED.

TO THE SECRETARY OF DEFENSE, APRIL 3, 1968:

FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 9, 1968, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION WHETHER A RESERVIST WHO SERVES ON ACTIVE DUTY FOR TRAINING FOR THE PERIOD FEBRUARY 1 THROUGH 28, INCLUSIVE, IN A NONLEAP YEAR IS ENTITLED TO A FULL- MONTH'S ACTIVE DUTY PAY AND ALLOWANCES. THE CIRCUMSTANCES GIVING RISE TO THE REQUEST ARE SET FORTH AND DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 406.

THE COMMITTEE REFERS TO OUR DECISION OF MARCH 2, 1936, A-71273, IN WHICH WE CONSIDERED THE CLAIM OF A MEMBER OF THE MARINE CORPS RESERVE WHO WAS ORDERED TO ACTIVE DUTY AT THE MARINE BARRACKS, QUANTICO, VIRGINIA, FOR THE PERIOD FEBRUARY 1 TO 28, 1935, TO PAY AND ALLOWANCES FOR 30 DAYS. THE RECORD SHOWED THAT THE MEMBER WAS ORDERED TO PROCEED ON FEBRUARY 1, 1935, TO THE MARINE BARRACKS FOR TRAINING DUTY. HE WAS DETACHED FROM HIS ASSIGNMENT ON FEBRUARY 26, 1935, AND DIRECTED TO RETURN TO CHICAGO, ILLINOIS, AND STAND RELIEVED FROM ACTIVE DUTY ON FEBRUARY 28, 1935. THE MEMBER CLAIMED PAY AND ALLOWANCES FOR 30 DAYS FOR THE MONTH OF FEBRUARY ON THE BASIS THAT UNDER THE ACT OF JUNE 30, 1906, 34 STAT. 763, PRESENTLY CODIFIED IN 5 U.S.C. 5505, 2DAYS MUST BE ADDED TO THE MONTH OF FEBRUARY TO CONSTITUTE IT A 30-DAY MONTH FOR PAY PURPOSES.

IN THAT DECISION WE CONSIDERED SECTION 6 OF THE 1906 ACT WHICH PROVIDES THAT FOR THE PURPOSES OF COMPUTING THE PAY OF PERSONS PAID ON AN ANNUAL OR MONTHLY BASIS, EACH CALENDAR MONTH SHALL BE HELD TO CONSIST OF 30 DAYS, THE 31ST DAY OF A MONTH SHALL BE EXCLUDED FROM THE COMPUTATION OF PAY, AND FEBRUARY SHALL BE TREATED AS IF IT ACTUALLY HAD 30 DAYS. SEE 20 COMP. DEC. 772.

WE ALSO CONSIDERED THE ACT OF JUNE 30, 1922, 45 STAT. 749, AS AMENDED BY THE ACT OF MAY 11, 1926, 44 STAT. 531 (PERTAINING TO MEMBERS OF THE NATIONAL GUARD AND ARMY RESERVE) AND SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1083 (PERTAINING TO MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE) WHICH, IN SUBSTANCE, AUTHORIZE PAY FOR THE 31ST DAY OF A MONTH TO MEMBERS WHO SERVE ON ACTIVE DUTY FOR A PERIOD OF LESS THAN 1 MONTH OR 30 DAYS.

WE STATED THAT THE ACTS PERTAINING TO RESERVISTS MAKE AN EXCEPTION TO THE GENERAL RULE FOR COMPUTING SERVICE AS PRESCRIBED IN THE ACT OF JUNE 30, 1906, AND HAVE THE EFFECT OF REMOVING THE PERSONNEL COVERED THEREBY WHEN ORDERED TO ACTIVE DUTY AND IN A PAY STATUS FOR A PERIOD OF "LESS THAN THIRTY DAYS" AND GIVE TO THEM PAY FOR THE ACTUAL NUMBER OF DAYS SERVED. WE CONCLUDED THAT UNDER THIS STATUTORY RULE A RESERVE MEMBER ORDERED TO ACTIVE DUTY FOR ANY PERIOD LESS THAN 30 DAYS IS ENTITLED TO PAY FOR THE 31ST DAY OF ANY MONTH INCLUDED WITHIN SUCH LIMITED PERIOD, AND PAY FOR CONSTRUCTIVE DAYS IN FEBRUARY IS EXCLUDED. THEREFORE, WE HELD THAT THE CLAIMANT WAS NOT ENTITLED, UNDER HIS ORDERS, TO PAY AND ALLOWANCE FOR THE 2 CONSTRUCTIVE DAYS IN FEBRUARY AS CLAIMED.

THE COMMITTEE SAYS THAT UNDER THE 1906 ACT THE INTENT WAS TO PROVIDE FOR ENTITLEMENT TO 30 DAYS' PAY FOR FEBRUARY WITHOUT DEDUCTION FOR THE CONSTRUCTIVE DAYS AT THE END OF THE MONTH AND THAT THE ACT OF JUNE 30, 1922, AS AMENDED BY THE ACTS OF SEPTEMBER 14, 1922, AND MAY 11, 1926, AND THE ACT OF FEBRUARY 28, 1925, PERTAINED ONLY TO THE POINT OF INCLUSION OF THE 31ST DAY OF A MONTH AS A DAY OF ENTITLEMENT IN THE COMPUTATION OF PAY WHEN THE SERVICE WAS FOR A PERIOD OF LESS THAN 1 MONTH OR 30 DAYS AND, THEREFORE, THOSE MILITARY LAWS HAVE NO APPLICATION TO ENTITLEMENT TO PAY FOR SERVICE ON ALL THE DAYS IN FEBRUARY.

SECTION 1004 OF TITLE 37, U.S.C. PROVIDES:

A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO PAY AND ALLOWANCES UNDER THIS TITLE FOR A CONTINUOUS PERIOD OF LESS THAN ONE MONTH IS ENTITLED TO HIS PAY AND ALLOWANCE FOR EACH DAY OF THAT PERIOD AT THE RATE OF 1/30 OF THE MONTHLY AMOUNT OF HIS PAY AND ALLOWANCES. THE THIRTY-FIRST DAY OF A CALENDAR MONTH MAY NOT BE EXCLUDED FROM A COMPUTATION UNDER THIS SECTION.

IT HAS LONG BEEN HELD UNDER 37 U.S.C. 1004 (WHICH IS MERELY A RESTATEMENT OF THE ABOVE-MENTIONED MILITARY LAWS AND THE SECOND PARAGRAPH OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AND SECTION 510 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 828), THAT MEMBERS WHO ARE ORDERED TO DUTY FOR A CONTINUOUS PERIOD OF LESS THAN 30 DAYS ARE TO BE PAID ON THE BASIS OF THE DAYS ACTUALLY SERVED AS DISTINGUISHED FROM PAYMENT ON A CONSTRUCTIVE 30-DAY MONTH BASIS. SEE 5 COMP. GEN. 309 AND 581; 15 ID. 208; A-17624, AUGUST 3 AND OCTOBER 9, 1928; A-29383, NOVEMBER 21, 1929; A-89536, NOVEMBER 24, 1937; 45 COMP. GEN. 395; 46 ID. 100.

AS INDICATED IN THE 1936 DECISION, IT HAD LONG BEEN OUR VIEW THAT THE TERM "FOR A PERIOD OF LESS THAN ONE MONTH," IN THE 1922 ACT, AS AMENDED, AND THE TERM "FOR A PERIOD OF LESS THAN THIRTY DAYS," IN THE 1925 ACT HAD THE SAME GENERAL PURPOSE OF REMOVING THE MEMBERS DESCRIBED THEREIN FROM THE SCOPE OF THE ACT OF JUNE 30, 1906, WHEN ORDERED TO DUTY FOR PERIODS OF LESS THAN 30 DAYS AND AUTHORIZING PAY FOR THE ACTUAL DAYS SERVED IN SUCH CASES, INCLUDING THE 31ST DAY OF THE MONTH. SEE A-17624, AUGUST 3, 1928. THAT CONTEMPORANEOUS VIEW OF THE PURPOSE OF THE LAWS WAS ACCEPTED WITHOUT QUESTION BY THE MILITARY DEPARTMENTS AND SEEMS TO HAVE BEEN A PROPER APPLICATION OF THE LAWS.

SINCE THE MEMBER INVOLVED IN THE 1936 DECISION WAS ORDERED TO DUTY FOR EXACTLY 28 DAYS, A ,PERIOD OF LESS THAN THIRTY DAYS," AS PROVIDED IN THE 1925 ACT, IT WAS CONCLUDED THAT HE WAS ENTITLED TO PAY FOR 28 DAYS UNDER THAT ACT AND COULD NOT LOOK TO THE 1906 ACT FOR PAY FOR 2 ADDITIONAL CONSTRUCTIVE DAYS FOR THE MONTH OF FEBRUARY ON THE BASIS THAT THE PERIOD OF DUTY ENCOMPASSED THE MONTH OF FEBRUARY. WHILE POSSIBLY A DIFFERENT CONCLUSION COULD HAVE BEEN REACHED ON THE BASIS THAT THE ORDERED DUTY WAS FOR A PERIOD WHICH THE 1906 ACT DECLARED SHOULD CONSIST OF 30 DAYS FOR PAY PURPOSES, THE DECISION WAS CONSISTENT WITH THE PREVIOUS APPLICATION OF THE 1922 AND 1925 ACTS AND IS NOT UNTENABLE IN THE LIGHT OF THE PURPOSE OF CONGRESS IN ENACTING THOSE LAWS.

IN REENACTING AND CODIFYING THE ABOVE STATUTORY PROVISIONS AS NOW SET FORTH IN 37 U.S.C. 1004, WE ARE NOT AWARE OF ANY INTENTION OF THE CONGRESS TO CHANGE THE LAW TO OVERCOME OUR 1936 DECISION OR PROVIDE FOR PAYMENT ON A DIFFERENT BASIS. IN SUCH CIRCUMSTANCES, WE DO NOT FIND A SUFFICIENT BASIS TO DEPART FROM THE LONGSTANDING APPLICATION OF THE LAW. ACCORDINGLY, THE DECISION OF MARCH 2, 1936, IS AFFIRMED, AND THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.