B-128347, AUGUST 23, 1956, 36 COMP. GEN. 146

B-128347, AUGUST 23, 1956, 36 COMP. GEN. 146

MILITARY PERSONNEL - MEDICAL AND DENTAL OFFICERS - CONSTRUCTIVE LONGEVITY CREDIT UNDER THE ACT OF APRIL 30, 1956 RESERVE MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES WHO PERFORM INACTIVE DUTY TRAINING WITH COMPENSATION OR ACTIVE DUTY FOR TRAINING ON AND AFTER MAY 1, 1956, THE EFFECTIVE DATE OF THE ACT OF APRIL 30, 1956, WHICH ADDED SUBPARAGRAPH (7) TO SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, ARE ENTITLED TO THE CONSTRUCTIVE LONGEVITY CREDIT, AUTHORIZED IN THE 1956 ACT, INCLUDED IN THE COMPUTATION OF PAY DURING SUCH PERIODS OF SERVICE. RESERVE MEDICAL AND DENTAL OFFICERS WHO, AFTER MAY 1, 1956, PERFORM ONLY INACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY FOR TRAINING AS DISTINGUISHED FROM ACTIVE DUTY, AND WHO BECOME ENTITLED TO RETIREMENT PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, ARE NOT ENTITLED TO INCLUDE IN THE COMPUTATION OF RETIREMENT PAY THE CONSTRUCTIVE LONGEVITY CREDIT AUTHORIZED BY THE ACT OF APRIL 30, 1956, WHICH ADDED SUBPARAGRAPH (7) TO SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, DURING SUCH SERVICE PERIODS. RESERVE MEDICAL OR DENTAL OFFICERS WHO CONTINUE ON ACTIVE DUTY FROM MAY 1, 1956, TO DECEMBER 31, 1956, WHEN RELEASED TO INACTIVE DUTY, AND WHO MAY THEREAFTER PERFORM INACTIVE DUTY FOR TRAINING OR ACTIVE DUTY FOR TRAINING, ARE ENTITLED TO RETAIN THE CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PROVIDED IN SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 2 OF THE ACT OF APRIL 30, 1956, FOR ANY SUBSEQUENT TRAINING DUTY. ALTHOUGH RESERVE MEDICAL OR DENTAL OFFICERS WHO SERVE ON ACTIVE DUTY AFTER MAY 1, 1956, THE EFFECTIVE DATE OF THE ACT OF APRIL 30, 1956, WHICH AUTHORIZED CONSTRUCTIVE LONGEVITY SERVICE CREDITS FOR PAY COMPUTATION PURPOSES, AND WHO ARE SUBSEQUENTLY RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, ARE ENTITLED TO INCLUDE THE CONSTRUCTIVE SERVICE IN DETERMINING THE ANNUAL BASE AND LONGEVITY PAY FOR RETIRED PAY PURPOSES, SUCH CONSTRUCTIVE SERVICE IS NOT CREDITABLE FOR COMPUTATION OF THE PERCENTAGE MULTIPLE IN DETERMINING THE AMOUNT OF RETIRED PAY. SO LONG AS RESERVE MEDICAL OR DENTAL OFFICERS PERFORM ACTIVE DUTY AFTER MAY 1, 1956, THEY ARE ENTITLED TO THE CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES IF SUBSEQUENTLY RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1949, AND THERE IS NO IMPLIED LIMITATION ON OR MINIMUM PERIOD FOR SUCH ACTIVE DUTY. IF THE LANGUAGE CONTAINED IN OFFICIAL ORDERS DIRECTING DUTY IS CLEAR AND UNAMBIGUOUS, THE DESCRIPTION OF THE DUTY CONTAINED THEREIN MAY BE CONSIDERED AS ESTABLISHING WITH REASONABLE CONCLUSIVENESS THE NATURE AND CHARACTER OF DUTY; FOR EXAMPLE, IF THE ORDERS DIRECT ACTIVE DUTY FOR TRAINING THEY WILL NOT BE CONSIDERED AS ORDERING ACTIVE DUTY. A RETIRED MEDICAL OR DENTAL OFFICER, EITHER REGULAR OR RESERVE, WHO IS ORDERED TO RESERVE ACTIVE DUTY AFTER MAY 1, 1956, IS ENTITLED TO THE CONSTRUCTIVE LONGEVITY SERVICE CREDIT AUTHORIZED BY SECTION 2 OF THE ACT OF APRIL 30, 1956, WHICH ADDED SUBPARAGRAPH (7) TO SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, FOR PURPOSES OF INCREASING HIS ACTIVE DUTY PAY DURING SUCH PERIOD; HOWEVER, SUCH CONSTRUCTIVE SERVICE CREDIT MAY NOT BE CONSIDERED IN THE COMPUTATION OF RETIRED PAY UPON HIS SUBSEQUENT RELEASE FROM ACTIVE DUTY AND REVERSION TO THE RETIRED LIST. A NAVAL DENTAL CORPS OFFICER WHO, WHILE ATTENDING DENTAL SCHOOL FOR SUCCESSIVE REGULAR TERMS FOR A PERIOD IN EXCESS OF FOUR YEARS, WAS ALSO AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY DURING THAT PERIOD IS ENTITLED, UNDER SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, TO CONSTRUCTIVE LONGEVITY CREDIT OF FOUR YEARS, LESS THE ACTUAL PERIOD WHILE ATTENDING DENTAL SCHOOL, THAT HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY. A NAVAL MEDICAL CORPS OFFICER WHO GRADUATED FROM MEDICAL SCHOOL AFTER FOUR YEARS AND SPENT ONE YEAR IN MEDICAL INTERNSHIP, BUT ONE YEAR DURING THE MEDICAL SCHOOL ATTENDANCE HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY, IS ENTITLED UNDER SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, TO CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS; FOUR FOR MEDICAL SCHOOL PLUS ONE FOR MEDICAL INTERNSHIP, LESS ONE YEAR FOR THE PERIOD WHILE ATTENDING MEDICAL SCHOOL THAT THE OFFICER WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY. A NAVAL MEDICAL CORPS OFFICER WHO SPENT FOUR YEARS IN MEDICAL SCHOOL, ONE YEAR IN MEDICAL INTERNSHIP, AND TWO YEARS IN RESIDENCY TRAINING, DURING WHICH HE WAS ALSO AN ENLISTED MEMBER OF THE NAVAL RESERVE CORPS, IS ENTITLED, UNDER SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, TO A TOTAL CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS; FOUR FOR MEDICAL SCHOOL AND ONE FOR INTERNSHIP; THE PERIOD OF RESIDENCY TRAINING WHEN HE WAS A MEMBER OF THE RESERVE IS NOT FOR INCLUSION IN THE PERIOD OF PROFESSIONAL EDUCATION AND INTERNSHIP FOR WHICH CONSTRUCTIVE LONGEVITY SERVICE IS CREDITABLE AND, THEREFORE, NO DEDUCTION FOR RESERVE MEMBERSHIP DURING THE RESIDENCY TRAINING IS REQUIRED. A NAVAL MEDICAL CORPS OFFICER WHO ATTENDED MEDICAL SCHOOL FOR THREE YEARS AND NINE MONTHS AND TRAINED AS AN INTERN FOR NINE MONTHS, THE EQUIVALENT OF ONE YEAR MEDICAL INTERNSHIP, BUT DURING THE INTERN PERIOD THE OFFICER WAS ALSO AN ENLISTED MEMBER OF NAVAL RESERVE ON INACTIVE DUTY, IS ENTITLED, UNDER SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS BASED ON FIVE YEARS FOR/PROFESSIONAL EDUCATION AND INTERNSHIP, LESS ONE YEAR FOR THE INACTIVE DUTY IN THE NAVAL RESERVE. A NAVAL MEDICAL OFFICER WHO ATTENDED MEDICAL SCHOOL FROM SEPTEMBER 1, 1941, THROUGH MAY 31, 1945, THEN, AFTER A PERIOD OF TWO MONTHS WHEN HE WAS NOT ENGAGED IN EITHER EDUCATION OR INTERNSHIP, BEGAN AN INTERNSHIP ON SEPTEMBER 1, 1945, WHICH CONTINUED UNTIL MAY 31, 1946, IS ENTITLED TO A CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS; HOWEVER, SINCE THE OFFICER WAS A MEMBER OF THE NAVAL RESERVE FROM MARCH 1, 1945, THROUGH MAY 31, 1946, THE CONSTRUCTIVE CREDIT MUST BE REDUCED BY THE ACTUAL PERIOD COVERING THE OFFICER'S MEMBERSHIP IN THE NAVAL RESERVE WHEN HE WAS ACTUALLY ATTENDING MEDICAL SCHOOL OR WAS AN INTERN.

TO THE SECRETARY OF DEFENSE, AUGUST 23, 1956:

REFERENCE IS MADE TO LETTER OF JUNE 18, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON A NUMBER OF QUESTIONS CONCERNING THE ADMINISTRATION OF THE PROVISIONS OF SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (A), AS ADDED BY SECTION 2, PUBLIC LAW 497, 84TH CONGRESS, APPROVED APRIL 30, 1956, 70 STAT. 121, RELATING TO THE ADDITIONAL (CONSTRUCTIVE) SERVICE CREDIT AUTHORIZED FOR MEDICAL AND DENTAL OFFICERS OF THE ARMY, NAVY, AIR FORCE, AND PUBLIC HEALTH SERVICE. THE SEVERAL QUESTIONS PRESENTED, WHICH ARE SET FORTH SEPARATELY BELOW, ARE FULLY DISCUSSED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 143, RECEIVED WITH THE ASSISTANT SECRETARY'S LETTER.

SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949 (AS ORIGINALLY ENACTED), SET FORTH IN SIX NUMBERED SUBPARAGRAPHS THE CLASSES OF SERVICE CREDITABLE TO MEMBERS OF THE UNIFORMED SERVICES IN COMPUTING THEIR CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES AND SECTION 2 OF THE ACT OF APRIL 30, 1956, CITED ABOVE, ADDED A SEVENTH SUBPARAGRAPH (SECTION 202 (A) (7) (, 37 U.S.C. 233 (A) (7), WHICH IS AS FOLLOWS:

FOR EACH OFFICER OF THE MEDICAL CORPS OR THE DENTAL CORPS OF THE ARMY OR NAVY, EACH OFFICER OF THE AIR FORCE DESIGNATED AS A MEDICAL OF DENTAL OFFICER, AND EACH OFFICER OF THE PUBLIC HEALTH SERVICE COMMISSIONED AS A MEDICAL OR DENTAL OFFICER, FOUR YEARS; AND FOR EACH SUCH MEDICAL OFFICER WHO HAS COMPLETED ONE YEAR OF MEDICAL INTERNSHIP OR THE EQUIVALENT THEREOF, ONE ADDITIONAL YEAR; EXCEPT THAT THE SERVICE AUTHORIZED TO BE CREDITED TO AN OFFICER UNDER THIS CLAUSE SHALL BE REDUCED BY THE AMOUNT OF ANY SERVICE OTHERWISE CREDITED UNDER THIS SECTION WHICH COVERS ANY PART OF THE PERIOD OF THE OFFICER'S PROFESSIONAL EDUCATION OR INTERNSHIP; AND, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE SERVICE CREDIT AUTHORIZED BY THIS CLAUSE SHALL NOT---

(A) BE INCLUDED IN ESTABLISHING ELIGIBILITY FOR VOLUNTARY OR INVOLUNTARY RETIREMENT OR SEPARATION FROM THE SERVICE, UNDER ANY PROVISION OF LAW;

(B) INCREASE THE RETIRED OR RETIREMENT PAY OF A PERSON WHO BECAME ENTITLED TO SUCH PAY PRIOR TO MAY 1, 1956; OR

(C) INCREASE THE RETIRED PAY OF A PERSON WHO BECOMES ENTITLED TO SUCH PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 (62 STAT. 1087), ON OR AFTER MAY 1, 1956, BUT WHO DOES NOT PERFORM ACTIVE DUTY AFTER MAY 1, 1956.

THESE PROVISIONS OF LAW BECAME EFFECTIVE MAY 1, 1956 (SECTION 7, ACT OF APRIL 30, 1956, 70 STAT. 122), 10 U.S.C. 91A NOTE, AND UNDER THE CONDITIONS SPECIFIED AUTHORIZE A CONSTRUCTIVE CREDIT OF FOUR OF FIVE YEARS' SERVICE IN DETERMINING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEDICAL AND DENTAL OFFICERS OF THE ARMY, NAVY, AIR FORCE AND PUBLIC HEALTH SERVICE. THIS CONSTRUCTIVE SERVICE IS REQUIRED TO BE REDUCED BY THE AMOUNT OF ANY SERVICE OTHERWISE CREDITED UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233, WHICH COVERS ANY PART OF THE PERIOD OF PROFESSIONAL EDUCATION OR INTERNSHIP. ALSO, IT IS SPECIFICALLY PROVIDED THAT, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE CONSTRUCTIVE SERVICE CREDIT MAY NOT BE APPLIED TOWARD ESTABLISHING ELIGIBILITY FOR VOLUNTARY OR INVOLUNTARY RETIREMENT OR SEPARATION FROM THE SERVICE, TO INCREASE THE RETIRED OR RETIREMENT PAY OF ANY ONE WHO BECAME ENTITLED TO SUCH PAY PRIOR TO MAY 1, 1956, OR TO INCREASE THE RETIRED PAY OF ANY ONE BECOMING ENTITLED THERETO UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ( PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1087-1091), 10 U.S.C. 1036, ON OR AFTER MAY 1, 1956, BUT WHO DOES NOT PERFORM ACTIVE DUTY AFTER MAY 1, 1956.

QUESTION 1---

IS THE CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES, NEWLY AUTHORIZED BY SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 P.L. 497, SUPRA, PROPERLY CREDITABLE IN THE FOLLOWING CASES:

(A) RESERVE MEDICAL OR DENTAL OFFICERS WHOSE ONLY SERVICE ON AND AFTER 1 MAY 1956 IS INACTIVE DUTY AND INACTIVE DUTY TRAINING?

(B) RESERVE MEDICAL OR DENTAL OFFICERS WHOSE ONLY SERVICE ON AND AFTER 1 MAY 1956 IS INACTIVE DUTY AND ACTIVE DUTY FOR TRAINING?

MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO PERFORM INACTIVE DUTY TRAINING WITH COMPENSATION (AS SUCH INACTIVE DUTY TRAINING IS DEFINED IN SECTION 102 (I), CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, 37 U.S.C. 231, AND IN SECTION 101 (D), ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481), 50 U.S.C. 901 (A), ARE ENTITLED, UNDER THE CONDITIONS PRESCRIBED IN SECTION 501 (A), CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, 37 U.S.C. 301 (A), 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.' RESERVE MEDICAL AND DENTAL OFFICERS, WHEN ENTITLED TO RECEIVE BASIC PAY, ARE FURTHER ENTITLED, EFFECTIVE MAY 1, 1956, TO THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN SECTION 202 (A) (7) OF THE 1949 ACT, AS AMENDED. ACCORDINGLY, IN COMPUTING THE PAY OF RESERVE MEDICAL AND DENTAL OFFICERS FOR THE PERFORMANCE OF INACTIVE DUTY TRAINING ON OR AFTER MAY 1, 1956, THERE PROPERLY MAY BE INCLUDED THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN SECTION 202 (A) (7). QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 1 (B) ALSO IS ANSWERED IN THE AFFIRMATIVE, INASMUCH AS RESERVE MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES IN A STATUS OF ACTIVE DUTY FOR TRAINING ARE ENTITLED, UNDER AUTHORITY OF SECTION 201 (D), CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, AS AMENDED BY SECTION 2 (2), ACT OF MARCH 31, 1955, 69 STAT. 19, 37 U.S.C. 234, TO RECEIVE THE BASIC PAY OF THEIR PAY GRADE IN ACCORDANCE WITH THE NUMBER OF CUMULATIVE YEARS OF SERVICE TO THEIR CREDIT. HENCE, SUCH RESERVE MEDICAL AND DENTAL OFFICERS ARE ENTITLED, WHEN ON ACTIVE DUTY FOR TRAINING, TO HAVE THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN SECTION 202 (A) (7) INCLUDED IN THE COMPUTATION OF THEIR SERVICE FOR PAY PURPOSES.

QUESTION 2---

IF THE ANSWER TO EITHER (A) OR (B) OF 1, ABOVE, IS AFFIRMATIVE, WOULD OFFICERS OF EITHER CATEGORY, UPON BECOMING ENTITLED, SUBSEQUENT TO 1 MAY 1956, TO RETIREMENT PAY UNDER TITLE III OF P.L. 810--- 80TH CONGRESS, ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 (62 STAT. 1087) BE ENTITLED TO INCLUDE SAID CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES IN THE COMPUTATION OF THEIR RETIREMENT PAY?

THE TERM "ACTIVE DUTY" IS DEFINED IN SECTION 101 (B), ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, AS MEANING "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, OTHER THAN ACTIVE DUTY FOR TRAINING.' THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN SECTION 202 (A) (7) OF THE 1949 LAW, AS AMENDED, MAY NOT BE USED TO INCREASE THE RETIRED PAY OF ANY PERSON WHO, ON OR AFTER MAY 1, 1956, BECOMES ENTITLED TO RETIRED PAY UNDER TITLE III, PUBLIC LAW 810, APPROVED JUNE 29, 1948, CITED ABOVE, BUT WHO DOES NOT PERFORM "ACTIVE DUTY" AFTER MAY 1, 1956. SECTION 2 OF THE ACT OF APRIL 30, 1956, WHICH ADDED SECTION 202 (A) (7) TO THE CAREER COMPENSATION ACT OF 1949, CONTAINS NO DEFINITION OR RESTRICTION WITH RESPECT TO THE TERM "ACTIVE DUTY" AS USED IN THAT SECTION AND THEREFORE THE USUAL MEANING ASSIGNED TO SUCH TERM SHOULD CONTROL. SEE SECTION 101 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, QUOTED ABOVE, AND COMPARE THE FIRST THREE LINES OF SECTION 201 (D) OF THE CAREER COMPENSATION ACT, AS AMENDED. QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3---

IF A RESERVE MEDICAL OR DENTAL OFFICER WAS ON ACTIVE DUTY ON 1 MAY 1956, AND CONTINUED SO UNTIL 31 DECEMBER 1956, ON WHICH LATTER DATE HE WAS RELEASED TO INACTIVE DUTY, WOULD SUCH AN OFFICER RETAIN THE CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES, PROVIDED IN SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF P.L. 397, SUPRA, FOR THE PURPOSE OF COMPUTING PAY DUE FOR ANY SUBSEQUENT PERIOD OF

(A) INACTIVE DUTY TRAINING, OR

(B) ACTIVE DUTY FOR TRAINING?

QUESTIONS 3 (A) AND 3 (B) ARE ANSWERED IN THE AFFIRMATIVE. COMPARE ANSWERS TO QUESTION 1 (A) AND 1 (B), ABOVE.

QUESTION 4---

IN THE EXAMPLE GIVEN IN 3, ABOVE, WOULD THAT OFFICER, UPON BECOMING ENTITLED TO RETIREMENT PAY UNDER TITLE III, P.L. 810, SUPRA, ON 1 JANUARY 1958, BE ENTITLED TO INCLUDE THE CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES IN THE COMPUTATION OF HIS RETIREMENT PAY BOTH (1) FOR THE PURPOSE OF OBTAINING THE APPLICABLE BASIC PAY FIGURE AND (2) FOR THE PURPOSE OF OBTAINING THE PERCENTAGE MULTIPLE?

THE RETIRED PAY AUTHORIZED BY TITLE III, PUBLIC LAW 810, APPROVED JUNE 29, 1948, IS REQUIRED TO BE COMPUTED ON THE BASIS EXPRESSLY PRESCRIBED IN SECTION 303 OF THAT ACT, 62 STAT. 1088, AS AMENDED BY SECTION 3, ACT OF SEPTEMBER 7, 1949, 63 STAT. 693, 10 U.S.C. 1036B, WHICH PROVIDES AS FOLLOWS:

ANY PERSON GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL RECEIVE SUCH PAY AT AN ANNUAL RATE EQUAL TO 2-1/2 PER CENTUM OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR) WHICH SHALL CONSIST OF THE SUM OF THE FOLLOWING:

(I) ALL PERIODS OF ACTIVE FEDERAL SERVICE;

(II) ONE DAY FOR EACH POINT CREDITED PURSUANT TO SUBPARAGRAPHS (2) AND (3) OF SUBSECTION (B) OF SECTION 302 OF THIS ACT, BUT NO MORE THAN SIXTY DAYS SHALL BE CREDITED ON THIS BASIS IN ANY ONE YEAR FOR THE PURPOSES OF THIS SECTION:

PROVIDED, THAT NO PERSON SHALL BE ENTITLED TO RECEIVE SUCH RETIRED PAY AT AN ANNUAL RATE IN EXCESS OF 75 PER CENTUM OF SAID ACTIVE DUTY PAY: PROVIDED FURTHER, THAT FOR EACH YEAR OF FEDERAL SERVICE, OTHER THAN ACTIVE FEDERAL SERVICE PERFORMED AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, AND CREDITED IN ACCORDANCE WITH SUBSECTION (C) OF SECTION 302 OF THIS TITLE, SUCH MEMBER SHALL BE CREDITED WITH FIFTY DAYS FOR EACH OF SUCH YEARS, FOR THE PURPOSES OF THIS SECTION.

UNDER THE ABOVE-QUOTED STATUTORY PROVISIONS THE "BASIC PAY FIGURE" REFERRED TO IN QUESTION 4, ABOVE, IS REQUIRED TO BE BASED ON THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY (BASIC) PAY WHICH THE RESERVE MEDICAL OR DENTAL OFFICER CONCERNED WOULD RECEIVE "IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE.' THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED BY SECTION 202 (A) (7) OF THE 1949 LAW, AS AMENDED, WOULD BE INCLUDED IN THE COMPUTATION OF THE ANNUAL BASE AND LONGEVITY (BASIC) PAY WHICH A RESERVE MEDICAL OR DENTAL OFFICER WOULD RECEIVE ON OR AFTER MAY 1, 1956, IF SERVING ON ACTIVE DUTY AT THE TIME GRANTED SUCH RETIRED PAY. ACCORDINGLY, THE RESERVE MEDICAL AND DENTAL OFFICERS REFERRED TO WOULD, UPON BECOMING ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE JANUARY 1, 1958, UNDER TITLE III, PUBLIC LAW 810 (ACT OF JUNE 29, 1948), BE ENTITLED TO INCLUDE THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED BY SECTION 202 (A) (7) OF THE 1949 LAW, AS AMENDED, FOR THE PURPOSE OF COMPUTING THEIR ANNUAL BASE AND LONGEVITY (BASIC) PAY. PART (1) IN QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

PART (2) OF QUESTION 4 IS ANSWERED IN THE NEGATIVE FOR THE REASON THAT THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED BY SECTION 202 (A) (7) DOES NOT CONSTITUTE ACTIVE FEDERAL SERVICE UNDER (I) OF SECTION 303, PUBLIC LAW 810, AND DOES NOT CONSTITUTE SERVICE OF A NATURE CREDITABLE UNDER THE PROVISIONS OF (II) OF SECTION 303.

QUESTION 5---

SECTION 202 (A) (7) (C) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY P.L. 497, SUPRA, IN EFFECT AUTHORIZES CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES TO BE RETAINED FOR CREDIT IN THE COMPUTATION OF RETIREMENT PAY DUE TO MEMBERS RETIRED UNDER TITLE III, P.L. 810, SUPRA, IF THEY RETIRED ON OR AFTER 1 MAY 1956 AND IF THEY PERFORMED "ACTIVE DUTY" ON OR AFTER 1 MAY 1956.

(A) IS THERE ANY IMPLIED LIMITATION OR REQUIREMENT THAT "ACTIVE DUTY" BE FOR ANY MINIMUM PERIOD OF TIME?

(B) WILL THE DESCRIPTION OF THE DUTY ORDERED TO BE PERFORMED, AS CONTAINED IN OFFICIAL ORDERS REQUIRING SUCH PERFORMANCE, BE CONCLUSIVE AS TO WHETHER, FOR THE PURPOSE OF COMPUTING RETIREMENT PAY UNDER TITLE III, P.L. 810, SUPRA, THE DUTY PERFORMED WAS "ACTIVE DUTY" OR OTHERWISE?

QUESTION 5 (A) IS ANSWERED IN THE NEGATIVE.

CONCERNING QUESTION 5 (B) IT SEEMS PERTINENT TO CALL ATTENTION TO THE DECISION RENDERED APRIL 3, 1956, BY THE COURT OF CLAIMS IN THE CASE OF CLARENCE A. REMALEY V. UNITED STATES, C.1CLS. NO. 40-54. THE COURT THERE HELD THAT THE PLAINTIFF'S STATUS, UNDER THE ACTIVE DUTY TRAINING ORDERS ISSUED IN THAT CASE, WAS THAT OF EXTENDED ACTIVE DUTY AND NOT ACTIVE DUTY FOR TRAINING. IT WOULD SEEM, THEREFORE, THAT IRRESPECTIVE OF THE SPECIFIC LANGUAGE EMPLOYED IN ORDERS, THE COURT OF CLAIMS MIGHT ACCORD ACTIVE TRAINING DUTY ORDERS A CONSTRUCTION DIFFERENT FROM THAT CONTEMPLATED BY THE MILITARY AUTHORITY ISSUING THE ORDERS. HOWEVER THAT MAY BE, WE ARE INCLINED TO THE VIEW THAT, ORDINARILY, CLEAR AND UNAMBIGUOUS LANGUAGE CONTAINED IN OFFICIAL ORDERS DIRECTING ACTIVE DUTY FOR TRAINING PROPERLY MAY BE CONSIDERED AS ESTABLISHING WITH REASONABLE CONCLUSIVENESS THE NATURE AND CHARACTER OF SUCH DUTY. QUESTION 5 (B) IS ANSWERED ACCORDINGLY. QUESTION 6--- A MEMBER OF THE REGULAR NAVY MEDICAL CORPS, (OR ARMY OR AIR FORCE EQUIVALENT), RETIRED UNDER THE ACT OF FEBRUARY 21, 1946, AS AMENDED, SEE 34 U.S.C.A. 410B, ON 1 JANUARY 1956, IS ORDERED TO ACTIVE DUTY ON 1 MAY 1956 AND SERVES THEREON UNTIL 30 APRIL 1958.

(A) MAY THE CONSTRUCTIVE LONGEVITY CREDIT AUTHORIZED IN SECTION 202 (A) (7), CAREER COMPENSATION ACT OF 1949, AS ADDED BY P.L. 497, SUPRA, BE CREDITED TO THIS OFFICER FOR THE PURPOSE OF INCREASING HIS PAY WHILE ON ACTIVE DUTY?

(B) MAY THE SAID CONSTRUCTIVE LONGEVITY CREDIT BE CREDITED TO THIS OFFICER FOR THE PURPOSE OF INCREASING HIS RETIREMENT PAY UPON RESTORATION TO THE RETIRED LIST ON 1 MAY 1958, EITHER IN DETERMINING THE BASIC PAY APPLICABLE OR IN DETERMINING THE PERCENTAGE MULTIPLE, OR BOTH?

UNDER SECTION 514, CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, RETIRED MEMBERS OF THE UNIFORMED SERVICES SERVING ON ACTIVE DUTY ARE "ENTITLED TO RECEIVE THE PAY AND ALLOWANCES TO WHICH ENTITLED BY THE PROVISIONS OF THIS ACT FOR THE GRADE OR RANK IN WHICH THEY ARE SERVING ON SUCH ACTIVE DUTY.' IN ACCORDANCE WITH THESE STATUTORY PROVISIONS, THE ANSWER TO QUESTION 6 (A) IS IN THE AFFIRMATIVE.

THE BASIC ISSUE INVOLVED IN QUESTION 6 (B) IS WHETHER THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED BY SECTION 202 (A) (7) OF THE 1949 ACT, AS AMENDED, AND WHICH PROPERLY MAY BE CREDITED IN THE COMPUTATION OF THIS RETIRED MEDICAL OFFICER'S ACTIVE-DUTY PAY DURING THE PERIOD THAT HE IS SERVING ON ACTIVE DUTY FROM MAY 1, 1956, TO APRIL 30, 1958, OPERATES TO INCREASE HIS RETIRED PAY UPON RELEASE FROM ACTIVE DUTY AND REVERSION TO THE RETIRED LIST ON MAY 1, 1958. AS INDICATED IN THE DISCUSSION ON THIS POINT IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 143, SECTION 202 (A) (7), EXPRESSLY PROVIDES THAT "NOTWITHSTANDING ANY OTHER PROVISION OF LAW" THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED THEREIN SHALL NOT "INCREASE THE RETIRED OR RETIREMENT PAY OF A PERSON WHO BECAME ENTITLED TO SUCH PAY PRIOR TO MAY 1, 1956.' THESE SPECIFIC PROVISIONS WERE ADDED AS AMENDMENTS TO THE BILL H.R. 9428, 84TH CONGRESS (WHICH BECAME PUBLIC LAW 497, ACT OF APRIL 30, 1956), TO CLARIFY THE INTENTION THAT THE PROPOSED CONSTRUCTIVE SERVICE CREDIT WOULD NOT APPLY TO INCREASE THE RETIRED PAY OF MEDICAL AND DENTAL OFFICERS RETIRED PRIOR TO ITS EFFECTIVE DATE. THEREFORE, IN VIEW OF THE CLEAR EXPRESSION OF LEGISLATIVE INTENT IN THE MATTER, THE CONCLUSION IS REQUIRED THAT WHILE THE MEDICAL OFFICER REFERRED TO IN QUESTION 6 ABOVE, AND WHO WAS RETIRED PRIOR TO MAY 1, 1956, WOULD BE ENTITLED TO INCLUDE THE CONSTRUCTIVE SERVICE CREDIT IN THE COMPUTATION OF HIS ACTIVE-DUTY PAY INCIDENT TO HIS ACTIVE DUTY FROM MAY 1, 1956, TO APRIL 30, 1958, SUCH OFFICER WILL BE PRECLUDED FROM USING THE CONSTRUCTIVE SERVICE CREDIT IN THE COMPUTATION OF HIS RETIRED PAY UPON HIS RELEASE FROM ACTIVE DUTY AND REVERSION TO THE RETIRED LIST ON MAY 1, 1958. QUESTION 6 (B) IS ANSWERED IN THE NEGATIVE.

QUESTION 7---

WOULD THE ANSWERS TO (A) AND (B) OF 6, ABOVE, BE DIFFERENT IF THE PERSON CONCERNED WAS A RESERVE MEMBER OF THE NAVY MEDICAL CORPS (OR ARMY OR AIR FORCE EQUIVALENT) RETIRED UNDER TITLE III, P.L. 810, SUPRA?

THE ANSWER TO QUESTION 7 IS NO.

QUESTION 8---

(A) IF AN OFFICER OF THE DENTAL CORPS OF THE NAVY ATTENDED DENTAL SCHOOL THROUGHOUT SUCCESSIVE REGULAR TERMS FOR A PERIOD IN EXCESS OF 4 YEARS, AND HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY DURING THAT TIME FOR A PERIOD EXACTLY EQUAL TO THE TIME SPENT IN DENTAL SCHOOL IN EXCESS OF 4 YEARS, DOES HE RECEIVE 4 YEARS CONSTRUCTIVE SERVICE FOR BASIC PAY PURPOSES OR SOMETHING LESS?

(B) IF AN OFFICER OF THE MEDICAL CORPS OF THE NAVY GRADUATED FROM MEDICAL SCHOOL AFTER 4 YEARS ATTENDANCE, SPENT 1 YEAR IN A MEDICAL INTERNSHIP AND 2 YEARS IN RESIDENCY TRAINING, WOULD HE RECEIVE 5 YEARS CONSTRUCTIVE SERVICE FOR BASIC PAY PURPOSES IF HE HAD BEEN AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY FOR 1 YEAR DURING ATTENDANCE AT MEDICAL SCHOOL?

(C) THE FACTS ARE THE SAME AS IN (B) ABOVE, EXCEPT THAT THIS PERSON WAS A MEMBER OF THE MEDICAL RESERVE CORPS OF THE NAVY DURING THE TWO YEAR PERIOD OF RENDERING TRAINING.

(D) AN OFFICER OF THE MEDICAL CORPS OF THE NAVY ATTENDED MEDICAL SCHOOL FROM 1 SEPTEMBER 1941 THROUGH 31 MAY 1945 (3 YEARS 9 MONTHS) AND TRAINED AS A MEDICAL INTERN FROM 1 JUNE 1945 THROUGH 28 FEBRUARY 1946 (9 MONTHS). THE PERIOD OF INTERNSHIP IS CONSIDERED, IN THE CIRCUMSTANCES, TO BE EQUIVALENT TO A ONE YEAR MEDICAL INTERNSHIP. THIS OFFICER WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY FROM 1 MARCH 1945 THROUGH 28 FEBRUARY 1946. WHAT IS THE NET CONSTRUCTIVE LONGEVITY CREDIT FOR BASIC PAY PURPOSES THAT HE SHOULD RECEIVE PURSUANT TO SECTION 202 (A) (7), CAREER COMPENSATION ACT OF 1949, AS ADDED BY P.L. 397, SUPRA?

(E) THE FACTS ARE THE SAME AS IN (D) ABOVE, EXCEPT THAT FROM 1 JUNE 1945 UNTIL 31 AUGUST 1945, THIS OFFICER WAS NOT IN ANY MANNER ENGAGED IN PURSUING HIS "PROFESSIONAL EDUCATION" NOR WAS HE SERVING AS AN INTERN. COMMENCING 1 SEPTEMBER 1945 HE TRAINED AS AN INTERN UNTIL 31 MAY 1946. THE PERIOD OF MEMBERSHIP IN THE NAVAL RESERVE WAS 1 MARCH 1945 THROUGH 31 MAY 1946.

A DENTAL OFFICER IS ENTITLED, UNDER AUTHORITY OF SECTION 202 (A) (7) OF THE 1949 LAW, AS AMENDED, TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS. THIS CONSTRUCTIVE SERVICE CREDIT IS AUTHORIZED WITHOUT REGARD TO THE ACTUAL PERIOD WHEN THE DENTAL OFFICER HAS ATTENDED DENTAL SCHOOL. THUS, WHETHER THE ACTUAL PERIOD OF ATTENDANCE AT DENTAL SCHOOL WAS MORE OR LESS THAN FOUR YEARS, THE CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS IS REQUIRED TO BE REDUCED BY THE AMOUNT OF ANY SERVICE OTHERWISE CREDITABLE TO THE DENTAL OFFICER CONCERNED UNDER AUTHORITY OF SECTION 202 (A) OF THE 1949 LAW, 63 STAT. 807, WHICH COVERS ANY PART OF THE ACTUAL PERIOD OF THE OFFICER'S PROFESSIONAL EDUCATION. ACCORDINGLY, IN THE SITUATION SET FORTH IN QUESTION 8 (A) THE DENTAL OFFICER CONCERNED WOULD BE ENTITLED TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS, LESS THE ACTUAL PERIOD, WHILE ATTENDING DENTAL SCHOOL, THAT HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY.

IN QUESTION 8 (B) THE MEDICAL OFFICER THEREIN REFERRED TO IS ENTITLED (PRIOR TO ADJUSTMENT FOR HIS RESERVE SERVICE) TO A CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS; FOUR YEARS BY REASON OF BEING A MEDICAL OFFICER PLUS ONE YEAR FOR HAVING COMPLETED A ONE-YEAR PERIOD OF MEDICAL INTERNSHIP. THE CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS TO WHICH THIS OFFICER IS ENTITLED IS REQUIRED TO BE REDUCED TO THE EXTENT OF ANY SERVICE OTHERWISE CREDITABLE TO HIM UNDER SECTION 202 (A) OF THE 1949 LAW WHICH COVERS ANY PART OF THE ACTUAL PERIOD OF HIS PROFESSIONAL EDUCATION OR INTERNSHIP. CONSEQUENTLY, THE MEDICAL OFFICER IN QUESTION IS ENTITLED TO A NET CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS ONLY, REPRESENTING FIVE YEARS' CONSTRUCTIVE SERVICE CREDIT LESS THE ONE-YEAR PERIOD THAT HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY WHILE ATTENDING MEDICAL SCHOOL.

THE MEDICAL OFFICER IN QUESTION 8 (C) IS ENTITLED TO A TOTAL CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS (FOUR YEARS BASED ON HIS MEDICAL TRAINING AND ONE YEAR FOR THE PERIOD OF HIS INTERNSHIP), ASSUMING, OF COURSE, THAT, UNLIKE THE OFFICER DESCRIBED IN QUESTION 8 (B), HE WAS NOT A MEMBER OF THE NAVAL RESERVE DURING ANY PART OF THE PERIOD OF HIS ATTENDANCE AT MEDICAL SCHOOL. BLACKISTON'S NEW GOULD MEDICAL DICTIONARY DEFINES THE TERM "RESIDENT PHYSICIAN" AS " A PHYSICIAN LIVING IN THE HOSPITAL FOR FURTHER TRAINING AFTER AN INTERNSHIP.' THUS, IT REASONABLY MAY BE CONCLUDED, WITH RESPECT TO THE OFFICER DESCRIBED IN QUESTION 8 (C), THAT NO PART OF THE TWO-YEAR PERIOD OF HIS MEMBERSHIP IN THE MEDICAL RESERVE CORPS OF THE NAVY WHILE HE WAS IN RESIDENCY TRAINING IS INCLUDED IN ANY PART OF THE ACTUAL PERIOD OF HIS PROFESSIONAL EDUCATION AND INTERNSHIP ON WHICH HIS CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS IS BASED. HENCE, IT IS OUR VIEW THAT NO REDUCTION IS REQUIRED IN SUCH CONSTRUCTIVE SERVICE CREDIT BECAUSE OF THE OFFICER'S RESERVE MEMBERSHIP DURING HIS RESIDENCY TRAINING.

THE NET CONSTRUCTIVE SERVICE CREDIT TO WHICH THE MEDICAL OFFICER DESCRIBED IN QUESTION 8 (D) IS ENTITLED IS FOUR YEARS. THE NET CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS IN THIS CASE REPRESENTS THE FIVE -YEAR CONSTRUCTIVE CREDIT TO WHICH THE MEDICAL OFFICER CONCERNED IS ENTITLED, BASED ON HIS PROFESSIONAL EDUCATION AND THE PERIOD OF HIS INTERNSHIP, LESS THE ONE-YEAR PERIOD THAT HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE ON INACTIVE DUTY DURING THE PERIOD OF HIS PROFESSIONAL EDUCATION AND INTERNSHIP.

IN THE FINAL QUESTION, 8 (E), THE MEDICAL OFFICER THEREIN REFERRED TO ALSO IS ENTITLED TO A NET CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS. THIS CASE, AS IN THE PRECEDING CASE UNDER QUESTION 8 (D), THE MEDICAL OFFICER IS ENTITLED TO A GROSS CONSTRUCTIVE SERVICE CREDIT OF FIVE YEARS BASED ON HIS PROFESSIONAL EDUCATION AND THE PERIOD OF HIS INTERNSHIP (STATED TO BE THE EQUIVALENT OF A ONE-YEAR MEDICAL INTERNSHIP). THE FIVE- YEAR CONSTRUCTIVE CREDIT IS REQUIRED TO BE REDUCED BY THE ACTUAL PERIOD COVERING THE OFFICER'S MEMBERSHIP IN THE NAVAL RESERVE (INACTIVE) DURING THE PERIODS MARCH 1, 1945, TO MAY 31, 1945, AND SEPTEMBER 1, 1945, TO MAY 31, 1946, INCLUSIVE, WHEN HE WAS ACTUALLY ATTENDING MEDICAL SCHOOL OR WAS AN INTERN.