B-128285, AUGUST 20, 1956, 36 COMP. GEN. 135

B-128285: Aug 20, 1956

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MILITARY PERSONNEL - MEDICAL AND DENTAL OFFICERS - SPECIAL PAY - PERIODS PRIOR TO INTERN DUTY THE PROHIBITION IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949 AGAINST PAYMENT OF SPECIAL PAY TO MEDICAL AND DENTAL OFFICERS OF THE ARMED SERVICES WHILE THEY ARE SERVING AS INTERNS PRECLUDES THE PAYMENT OF SPECIAL PAY PRIOR TO THE TIME THEY BEGIN DUTY AS INTERNS. YOU STATE THAT LIEUTENANT VOCKE WAS ORDERED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 1 YEAR. UNLIKE THE PRIOR LAW IT EXPRESSLY PROHIBITS THE PAYMENT OF SUCH SPECIAL PAY TO A COMMISSIONED OFFICER "WHILE HE IS SERVING AS A MEDICAL OR DENTAL INTERN.'. THAT PROVISION WAS RECOMMENDED BY THE ADVISORY COMMISSION ON SERVICE PAY ( HOOK COMMISSION).

B-128285, AUGUST 20, 1956, 36 COMP. GEN. 135

MILITARY PERSONNEL - MEDICAL AND DENTAL OFFICERS - SPECIAL PAY - PERIODS PRIOR TO INTERN DUTY THE PROHIBITION IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949 AGAINST PAYMENT OF SPECIAL PAY TO MEDICAL AND DENTAL OFFICERS OF THE ARMED SERVICES WHILE THEY ARE SERVING AS INTERNS PRECLUDES THE PAYMENT OF SPECIAL PAY PRIOR TO THE TIME THEY BEGIN DUTY AS INTERNS.

TO CAPTAIN F. D. ROEGNER, DEPARTMENT OF THE ARMY, AUGUST 20, 1956:

BY FIRST ENDORSEMENT DATED JUNE 11, 1956, THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF MAY 21, 1956, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT OF THE SPECIAL PAY AUTHORIZED FOR PHYSICIANS AND DENTISTS BY SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AS AMENDED, 37 U.S.C. 234 (B), MAY BE MADE TO FIRST LIEUTENANT LESTER VOCKE, DENTAL CORPS, OR ANY MEDICAL OR DENTAL OFFICER, FROM THE DATE OF ENTERING ON ACTIVE DUTY UNTIL THE DAY PRIOR TO BEGINNING DUTY AS AN INTERN. YOU STATE THAT LIEUTENANT VOCKE WAS ORDERED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 1 YEAR.

SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, LIKE SECTION 101 OF THE ACT OF AUGUST 5, 1947, 61 STAT. 776, 10 U.S.C. 91A, 121A; 34 U.S.C. 21C, 51B, AUTHORIZED ADDITIONAL PAY OF $100 A MONTH TO CERTAIN MEDICAL AND DENTAL OFFICERS OF THE ARMED SERVICES, BUT UNLIKE THE PRIOR LAW IT EXPRESSLY PROHIBITS THE PAYMENT OF SUCH SPECIAL PAY TO A COMMISSIONED OFFICER "WHILE HE IS SERVING AS A MEDICAL OR DENTAL INTERN.' THAT PROVISION WAS RECOMMENDED BY THE ADVISORY COMMISSION ON SERVICE PAY ( HOOK COMMISSION). IT WAS DISCUSSED IN THE HEARINGS CONDUCTED BY THE SENATE HEARINGS ON H.R. 5007--- 81ST CONGRESS, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949) AS FOLLOWS:

THE CHAIRMAN. * * * IS THERE ANY CHANGE IN EXISTING LAW * * *

ADMIRAL FECHTELER. WELL, THE DIFFERENCE IS THAT THE SECTION INCLUDES PROVISION FOR MEDICAL OFFICERS AND DENTISTS IN THE AIR FORCE, AND DENIES THIS ADDITIONAL PAY TO INTERNES.

THE CHAIRMAN. WELL, THEY ARE REALLY NOT OUT YET. THAT IS WHAT IT AMOUNTS TO, DOES IT NOT? AN INTERNE IS NOT SUPPOSED TO BE A FULL FLEDGED DOCTOR, IS HE?

ADMIRAL FECHTELER. THAT IS RIGHT, SIR, AND THIS WOULD DENY THAT PAY TO HIM.

THE CHAIRMAN. UNTIL HE IS A FULL-FLEDGED DOCTOR. DID THE HOOK COMMISSION RECOMMEND THAT?

MR. HOEN. YES, THEY DID.

THE CHAIRMAN. I THINK THAT IS A GOOD POSITION.

MR. HOEN. THIS WOULD DENY THEIR PAY TO THEM WHILE THEY ARE INTERNING AS COMMISSIONED OFFICERS IN ARMY OR NAVY HOSPITALS.

THE CHAIRMAN. I THINK THAT IS ALL RIGHT, GENTLEMEN. WHAT IS YOUR THOUGHT ON THAT? ALL RIGHT, IF THERE IS NO COMMENT ON IT, WE WILL GO TO PAGE 18. NOW WHAT IS NEW LAW HERE?

SENATOR SALTONSTALL. JUST A MINUTE ON THAT, MR. CHAIRMAN. HOW DO YOU DO THAT? IF HE IS A COMMISSIONED OFFICER, AN INTERNE IS A DOCTOR WHO HAS RECEIVED HIS DEGREE WHO IS ENTITLED TO PRACTICE. HE WOULD NOT BE AN INTERNE IF HE WAS NOT. HOW DO YOU DRAW A DISTINCTION BETWEEN A MAN WHO IS ENTITLED TO PRACTICE AS A COMMISSIONED OFFICER IN THE NAVY, WE WILL SAY, AND A MAN WHO IS ENTITLED TO PRACTICE AND HAS FINISHED HIS INTERNSHIP OR HAS NEVER BECOME AN INTERNE? SUPPOSING A MAN GOES AS A COMMISSIONED OFFICER ON BOARD A SHIP?

MR. HOEN. I BELIEVE WE ALSO HAVE IN HERE THAT IT SHALL BE FOR A MINIMUM PERIOD OF 1 YEAR. THE ARMY AND NAVY INDICATED TO THE HOOK COMMISSION THAT THEY WANTED THEIR DOCTORS TO HAVE AN INTERNSHIP. IT WAS JUST A QUESTION WHETHER THEY TOOK IT AT $75 A MONTH IN A CIVILIAN HOSPITAL AND THAT WAS THEIR ENTIRE PAY, OR WHETHER THEY WERE MADE SECOND OR FIRST LIEUTENANTS IN THE ARMY AND THEN WOULD INTERNE FOR 1 YEAR IN THE ARMY AT AN ARMY OR NAVY HOSPITAL. THAT WAS FOR A MINIMUM PERIOD OF 1 YEAR.

SENATOR SALTONSTALL. IS THAT NOT VIOLATING THE LAW THAT WE PASSED 2 YEARS AGO?

GENERAL DAHLQUIST. THAT IS A CHANGE IN THE LAW.

MR. HOEN. IT IS A CHANGE, SIR. IN THE LAW THAT EXISTS TODAY, THE PEOPLE WHO ARE EDUCATED AT GOVERNMENT EXPENSE AND WERE FORCED TO SERVE A PERIOD OF 1 YEAR IN THE SERVICES DID NOT GET THE $100 BECAUSE IT WAS NOT ON A VOLUNTARY BASIS. THE $100 ONLY WENT TO THOSE ON A VOLUNTARY BASIS.

NOW THIS AGAIN, EVEN IF VOLUNTEERED AS AN INTERNE, IT WOULD BE DENIED TO THEM. IF THEY TOOK THEIR INTERNSHIP ON THE OUTSIDE AND CAME IN A YEAR AFTER, THEN THEY WOULD GET $100. I DO NOT BELIEVE IT IS A VIOLATION BECAUSE IT IS A MATTER OF VOLUNTEERING UNDER THE LAW.

THE CHAIRMAN. LET ME ASK YOU THIS SO THE RECORD WILL BE COMPLETE ON IT. IF A MAN HAS SERVED AN INTERNSHIP IN A HOSPITAL PRIOR TO GOING INTO THE SERVICE, THEN HE WOULD GET HIS $100.

MR. HOEN. HE WOULD GET HIS $100.

THE CHAIRMAN. IF HE COMES FROM MEDICAL SCHOOL WITH HIS DIPLOMA, WITHOUT HAVING SERVED HIS INTERNSHIP, THEN HE WOULD NOT GET IT UNTIL A YEAR LATER?

MR. HOEN. UNTIL A YEAR LATER, THAT IS CORRECT, SIR.

THE CHAIRMAN. I THINK THAT IS FAIR.

ADMIRAL FECHTELER. MAY I SAY, SIR, THAT THE MEDICAL AUTHORITIES IN THE SERVICES ARE FULLY AWARE OF THIS PROVISION, AND WE HAVE HAD NO EXPRESSION OF OBJECTION.

THE CHAIRMAN. ALL RIGHT, IS THAT ALL RIGHT, SENATOR SALTONSTALL? IS IT CLEARED UP NOW?

SENATOR SALTONSTALL. YES.

IT REASONABLY APPEARS FROM THAT DISCUSSION, WHEN CONSIDERED IN CONJUNCTION WITH THE LANGUAGE OF SECTION 203 (B), THAT THE CONGRESS DID NOT INTEND THAT MEDICAL AND DENTAL OFFICERS SHOULD RECEIVE THE SPECIAL PAY OF $100 A MONTH UNTIL AFTER COMPLETION OF THEIR INTERNSHIP. THE PRIMARY AND GENERAL RULE OF STATUTORY CONSTRUCTION IS THAT STATUTES SHOULD BE CONSTRUED IN ACCORDANCE WITH THE LEGISLATIVE INTENT. IN BREWER V. BLOUGHER, 14 XPET. 178, AT 198, THE U.S. SUPREME COURT SPEAKING THROUGH CHIEF JUSTICE TANEY SAID:

IT IS UNDOUBTEDLY THE DUTY OF THE COURT TO ASCERTAIN THE MEANING OF THE LEGISLATURE, FROM THE WORDS USED IN THE STATUTE, AND THE SUBJECT MATTER TO WHICH IT RELATES; AND TO RESTRAIN ITS OPERATION WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT, IF THE COURT ARE SATISFIED THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE IN IT.

ACCORDINGLY, PAYMENT OF THE SPECIAL PAY OF $100 A MONTH TO LIEUTENANT VOCKE FOR THE PERIOD FROM JUNE 11 TO 30, 1955, OR TO OTHER MEDICAL OR DENTAL OFFICERS IN LIKE CIRCUMSTANCES, IS NOT AUTHORIZED.