B-123032, JUNE 17, 1955, 34 COMP. GEN. 679

B-123032: Jun 17, 1955

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PAY - APPROPRIATE DUTY - NATIONAL GUARD A REGULARLY SCHEDULED DRILL OF A NATIONAL GUARD OFFICER'S UNIT WHICH TAKES PLACE WHILE HE IS ATTENDING A SERVICE SCHOOL MAY NOT BE REGARDED AS A "REGULARLY SCHEDULED DRILL OR ASSEMBLY" OF HIS UNIT FOR APPROPRIATE DUTY PAY. 1955: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31. REQUESTING A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED SUPPLEMENTAL PAYROLL FOR THE HEADQUARTERS. IT IS INDICATED ON THE PAYROLL THAT THE APPROPRIATE DUTY WAS PERFORMED IN LIEU OF ARMORY DRILLS CONDUCTED BY THE OFFICER'S UNITS WHILE THE OFFICERS WERE ATTENDING SERVICE SCHOOLS. THAT SINCE THE OFFICERS WERE DIRECTED BY COMPETENT ORDERS TO PERFORM THE PERIODS OF APPROPRIATE DUTY.

B-123032, JUNE 17, 1955, 34 COMP. GEN. 679

PAY - APPROPRIATE DUTY - NATIONAL GUARD A REGULARLY SCHEDULED DRILL OF A NATIONAL GUARD OFFICER'S UNIT WHICH TAKES PLACE WHILE HE IS ATTENDING A SERVICE SCHOOL MAY NOT BE REGARDED AS A "REGULARLY SCHEDULED DRILL OR ASSEMBLY" OF HIS UNIT FOR APPROPRIATE DUTY PAY; AND THE PERFORMANCE OF APPROPRIATE DUTY IN LIEU OF A REGULARLY SCHEDULED DRILL WHICH AN OFFICER HAS MISSED, DUE TO ATTENDANCE AT A SERVICE SCHOOL FOR WHICH HE RECEIVED BASIC PAY, CANNOT QUALIFY THE OFFICER FOR APPROPRIATE DUTY PAY UNDER THE PROVISIONS OF SUBSECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COLONEL W. G. MEYER, DEPARTMENT OF THE ARMY, JUNE 17, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1955, FINKE-AA 240.9, REQUESTING A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED SUPPLEMENTAL PAYROLL FOR THE HEADQUARTERS, 30TH INFANTRY DIVISION, NORTH CAROLINA NATIONAL GUARD.

THE PAYROLL COVERS THE CLAIMS OF BRIGADIER GENERAL CLAUDE T. BOWERS, 10- 183291, COLONEL IVAN HARDESTY, 10-399704, LIEUTENANT COLONEL THOMAS B. LONGEST, 10-328125, LIEUTENANT COLONEL CLARENCE B. SHIMER, 10 366079, AND MAJOR CHARLES S. MANOOCH, JR., 10-531334, FOR CERTAIN APPROPRIATE DUTY PERFORMED DURING THE PERIOD APRIL 1 TO JUNE 30, 1954. IT IS INDICATED ON THE PAYROLL THAT THE APPROPRIATE DUTY WAS PERFORMED IN LIEU OF ARMORY DRILLS CONDUCTED BY THE OFFICER'S UNITS WHILE THE OFFICERS WERE ATTENDING SERVICE SCHOOLS. IT APPEARS TO BE THE VIEW OF THE NORTH CAROLINA NATIONAL GUARD AUTHORITIES, HOWEVER, THAT SINCE THE OFFICERS WERE DIRECTED BY COMPETENT ORDERS TO PERFORM THE PERIODS OF APPROPRIATE DUTY, THEY SHOULD BE CONSIDERED FOR PAY PURPOSES AS HAVING PERFORMED THE DUTY AS SUCH AND NOT AS A SUBSTITUTE FOR NONATTENDANCE AT THE REGULARLY SCHEDULED ARMORY DRILLS OF THEIR UNITS.

THE PROVISIONS CONTAINED IN SECTION 109 OF THE NATIONAL DEFENSE ACT, AS AMENDED, RELATING TO THE PERFORMANCE OF APPROPRIATE DUTY BY OFFICERS OF THE NATIONAL GUARD WERE REPEALED EFFECTIVE JANUARY 1, 1953, BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505. THE SIMILAR PROVISIONS CONTAINED IN SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, PROVIDE, IN MATERIAL PART, AS FOLLOWS:

(A) 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 * * * 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 * * * PROVIDED, THAT * * * THE SECRETARY CONCERNED

(2) SHALL PRESCRIBE THE MAXIMUM NUMBER OF ASSEMBLIES, OR PERIODS OF OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES, WHICH MAY BE COUNTED FOR PAY PURPOSES IN EACH FISCAL YEAR;

(E) THE PROVISIONS OF SUBSECTIONS (A) * * * OF THIS SECTION SHALL NOT APPLY WHEN SUCH MEMBERS ARE ENTITLED TO RECEIVE BASIC PAY AS PROVIDED FOR IN TITLE II OF THIS ACT.

UNDER THE PROVISION OF SUBSECTION 201 (E) OF THE CAREER COMPENSATION ACT, 63 STAT. 807, OFFICERS OF THE NATIONAL GUARD ARE ENTITLED TO RECEIVE BASIC PAY WHILE ATTENDING SERVICE SCHOOLS.

NATIONAL GUARD REGULATIONS NO. 45, DATED JULY 14, 1952, APPLICABLE DURING THE PERIOD HERE CONCERNED, PROVIDE:

14. DEFINITION.--- ARMORY TRAINING CONSISTS OF THE ASSEMBLIES FOR DRILL AND INSTRUCTION * * * AS PROVIDED FOR IN SECTION 501, CAREER COMPENSATION ACT OF 1949, AND AS PRESCRIBED IN THESE REGULATIONS. ASSEMBLIES FOR DRILL AND INSTRUCTION, HEREINAFTER REFERRED TO AS "ASSEMBLIES," ARE CONSTRUED AS INCLUDING THE "REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY * * * " AS PRESCRIBED BY THE SECRETARY OF THE ARMY, REFERRED TO IN SECTION 501, CAREER COMPENSATION ACT. * * *

17. MAXIMUM LIMITATIONS ON NUMBER OF ASSEMBLIES PER YEAR.--- A. GENERAL-- - NO. MAXIMUM NUMBER OF ASSEMBLIES FOR DRILL OR INSTRUCTION IS PRESCRIBED, BUT NO UNIT MAY CONDUCT ASSEMBLIES FOR PAY PURPOSES MORE THAN 48 TIMES DURING ANY FISCAL YEAR UNLESS OTHERWISE AUTHORIZED BY THE SECRETARY OF THE ARMY. * * *

22. APPROPRIATE DUTY. * * *

C. HOW PERFORMED.--- OFFICERS PERFORMING "APPROPRIATE DUTIES," WITHIN THE MEANING OF THESE REGULATIONS, WILL PERFORM SUCH DUTIES BY ATTENDANCE AT A REGULARLY SCHEDULED DRILL OR ASSEMBLY OF THEIR OWN UNITS. HOWEVER, COMMANDERS OF BATTALIONS AND HIGHER HEADQUARTERS MAY SPECIFICALLY DIRECT THE OFFICERS REFERRED TO IN "B" ABOVE (OFFICERS FOR WHOM APPROPRIATE DUTIES ARE AUTHORIZED) TO PERFORM, IN CONNECTION WITH THE TRAINING, ADMINISTRATION AND SUPPLY UNITS WITHIN THEIR COMMANDS, SUCH MILITARY DUTIES AS PLANNING, SUPERVISING, INSPECTING, IN LIEU OF ATTENDING DRILL WITH THEIR OWN UNITS. * * *

D. LIMITATIONS.--- NOTHING WITHIN THE MEANING OF THESE REGULATIONS WILL BE CONSTRUED AS AUTHORIZING PERFORMANCE OF "APPROPRIATE DUTIES" FOR THE PURPOSE OF QUALIFYING FOR PAY IN ANTICIPATION OF ABSENCES OR FOR NON- ATTENDANCE AT DRILLS ALREADY CONDUCTED, SUCH AS ATTENDANCE AT SERVICE SCHOOLS, SICKNESS, ETC.

PARAGRAPH 7 (2) OF NATIONAL GUARD REGULATIONS NO. 58, DATED JUNE 22, 1953, EFFECTIVE NOVEMBER 1, 1953, PROVIDES THAT, FOR PAY PURPOSES, PERIODS OF APPROPRIATE DUTY PERFORMED AWAY FROM THE PARENT ORGANIZATION, TOGETHER WITH PERIODS OF APPROPRIATE DUTY PERFORMED WITH THE ORGANIZATION, WILL NOT EXCEED IN ANY ONE PAY PERIOD THE TOTAL NUMBER OF DRILLS REGULARLY SCHEDULED FOR THE PARENT ORGANIZATION, AND THE TOTAL NUMBER OF ALL SUCH PERIODS OF APPROPRIATE DUTY WILL NOT EXCEED THE TOTAL NUMBER OF DRILLS AUTHORIZED FOR PAY PURPOSES FOR THE PARENT ORGANIZATION IN A FISCAL YEAR.

WHILE THE REGULATIONS ISSUED PURSUANT TO SUBSECTION 501 (A) OF THE CAREER COMPENSATION ACT, 63 STAT. 825, PERMIT A MAXIMUM OF 48 REGULARLY SCHEDULED PAID PERIODS OF APPROPRIATE DUTY DURING A FISCAL YEAR, SUBSECTION 501 (E) OF THE STATUTE, 63 STAT. 827, MAKES THE PROVISIONS OF SUBSECTION 501 (A) INAPPLICABLE WHEN MEMBERS OF THE NATIONAL GUARD ARE ENTITLED TO RECEIVE BASIC PAY. HENCE, A REGULARLY SCHEDULED DRILL OF AN OFFICER'S UNIT WHICH TAKES PLACE WHILE HE IS ATTENDING A SERVICE SCHOOL MAY NOT BE REGARDED AS A "REGULARLY SCHEDULED DRILL OR ASSEMBLY" OF HIS UNIT CONFERRING A RIGHT TO APPROPRIATE DUTY PAY. AND, AS PROVIDED BY THE REGULATIONS, THE PERFORMANCE OF APPROPRIATE DUTY IN LIEU OF A REGULARLY SCHEDULED DRILL WHICH AN OFFICER HAS MISSED DUE TO ATTENDANCE AT A SERVICE SCHOOL CANNOT QUALIFY THE OFFICER FOR APPROPRIATE DUTY PAY. PARAGRAPH 22D, NATIONAL GUARD REGULATIONS NO. 45. SINCE IT APPEARS THAT THE PERIODS OF APPROPRIATE DUTY HERE INVOLVED WERE IN LIEU OF DRILLS HELD WHILE THE OFFICERS WERE ATTENDING SERVICE SCHOOLS, PAYMENT ON THE SUPPLEMENT PAYROLL, WHICH WE ARE RETAINING, IS NOT AUTHORIZED.