B-129115, OCTOBER 2, 1956, 36 COMP. GEN. 271

B-129115: Oct 2, 1956

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IS COMPULSORILY INDUCTED INTO THE NAVY AS A SEAMAN RECRUIT AND WHO SUBSEQUENTLY APPLIES FOR A RESERVE COMMISSION AND IS DISCHARGED FROM HIS ENLISTED STATUS TO ACCEPT SUCH COMMISSION IS NOT THEN REMOVED FROM THE RESTRICTION IN SECTION 5 OF THE ACT OF SEPTEMBER 9. WHICH PRECLUDES SPECIAL PAY BENEFITS FOR PHYSICIANS FROM INDIVIDUALS WHO ARE INDUCTED INTO THE SERVICE. 1956: REFERENCE IS MADE TO YOUR LETTER OF JULY 20. IS ENTITLED TO THE SPECIAL PAY PRESCRIBED FOR PHYSICIANS AND DENTISTS IN SECTION 203. FARABAUGH WAS A SPECIAL MEDICAL REGISTRANT UNDER THE PROVISIONS OF PUBLIC LAW 779. HE WAS ELIGIBLE. HE WAS INDUCTED INTO THE UNITED STATES NAVY AS A SEAMAN RECRUIT. HE WAS APPOINTED ON DECEMBER 13.

B-129115, OCTOBER 2, 1956, 36 COMP. GEN. 271

MILITARY PERSONNEL - SPECIAL PAY FOR DOCTORS AND DENTISTS - INDUCTION RATHER THAN APPLICATION FOR COMMISSION A PHYSICIAN, WHO, AFTER FAILING TO APPLY FOR A COMMISSION COMMENSURATE WITH HIS PROFESSIONAL EDUCATION, IS COMPULSORILY INDUCTED INTO THE NAVY AS A SEAMAN RECRUIT AND WHO SUBSEQUENTLY APPLIES FOR A RESERVE COMMISSION AND IS DISCHARGED FROM HIS ENLISTED STATUS TO ACCEPT SUCH COMMISSION IS NOT THEN REMOVED FROM THE RESTRICTION IN SECTION 5 OF THE ACT OF SEPTEMBER 9, 1950, WHICH PRECLUDES SPECIAL PAY BENEFITS FOR PHYSICIANS FROM INDIVIDUALS WHO ARE INDUCTED INTO THE SERVICE.

TO S. H. MAGETTE, DEPARTMENT OF THE NAVY, OCTOBER 2, 1956:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1956, WITH ENCLOSURES, FORWARDED HERE BY LETTER DATED AUGUST 28, 1956, OF THE ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION WHETHER, IN THE CIRCUMSTANCES DISCLOSED, LIEUTENANT COMMANDER ROBERT E. FARABAUGH, MEDICAL CORPS, UNITED STATES NAVAL RESERVE, IS ENTITLED TO THE SPECIAL PAY PRESCRIBED FOR PHYSICIANS AND DENTISTS IN SECTION 203, CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 234.

IT APPEARS THAT DR. FARABAUGH WAS A SPECIAL MEDICAL REGISTRANT UNDER THE PROVISIONS OF PUBLIC LAW 779, ACT OF SEPTEMBER 9, 1950, AS AMENDED, 50 U.S.C. APPX. 454 (I), AMENDING THE SELECTIVE SERVICE ACT OF 1948, AND THUS BECAME LIABLE FOR INDUCTION IN THE ARMED FORCES. HE WAS ELIGIBLE, HOWEVER, UNDER THE PROVISIONS OF THE ACT OF JUNE 29, 1953, 67 STAT. 87, 50 U.S.C. APPX. 454A (A), 1952 USED. SUPP. III, TO BE APPOINTED TO THE COMMISSIONED GRADE OR RANK IN THE ARMED FORCES COMMENSURATE WITH HIS PROFESSIONAL EDUCATION, EXPERIENCE OR ABILITY. DR. FARABAUGH REFUSED TO APPLY FOR OR TO ACCEPT SUCH A COMMISSION AND ON AUGUST 31, 1954, HE WAS INDUCTED INTO THE UNITED STATES NAVY AS A SEAMAN RECRUIT. THEREAFTER, UPON APPROVAL OF HIS SUBSEQUENT APPLICATION, HE WAS APPOINTED ON DECEMBER 13, 1954, A LIEUTENANT COMMANDER IN THE MEDICAL CORPS, UNITED STATES NAVAL RESERVE, AND ON DECEMBER 22, 1954, HE WAS DISCHARGED FROM HIS ENLISTED (INDUCTED) STATUS FOR THE SPECIFIC PURPOSE OF PERMITTING HIM TO ACCEPT SUCH COMMISSION.

IT IS CONTENDED BY THE OFFICER THAT HIS INDUCTION STATUS UNDER THE PROVISIONS OF PUBLIC LAW 779, ACT OF SEPTEMBER 9, 1950, AS AMENDED, TERMINATED UPON HIS DISCHARGE ON DECEMBER 22, 1954, AND HENCE, THAT THE PROVISIONS OF SECTION 5 OF THAT ACT, 37 U.S.C. 234B, DO NOT BAR HIM FROM RECEIVING THE SPECIAL PAY PRESCRIBED IN SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, DURING HIS SUBSEQUENT ACTIVE SERVICE AS A LIEUTENANT COMMANDER, MEDICAL CORPS, UNITED STATES NAVAL RESERVE.

PRIOR TO THE AMENDMENT THEREOF BY SECTION 5, ACT OF APRIL 30, 1956, 70 STAT. 122, SUBSECTION (B) OF SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949 ( PUBLIC LAW 351, EIGHTY-FIRST CONGRESS) AS AMENDED, 37 U.S.C. 234 (B), PROVIDED IN PERTINENT PART THAT " IN ADDITION TO ANY PAY, ALLOWANCES, SPECIAL OR INCENTIVE PAYS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTIONS (A) AND (C) OF THIS SECTION SHALL BE ENTITLED TO RECEIVE SPECIAL PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE.' BY SUBSECTION (A) (4) OF SECTION 203, CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 234 (A), THE TERM COMMISSIONED OFFICERS IS DEFINED AS "SUCH OFFICERS WHO ON SEPTEMBER 1, 1947, WERE OR WHO THEREAFTER HAVE BEEN OR MAY BE COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF, OR DESIGNATED AS MEDICAL OR DENTAL OFFICERS IN * * * THE NAVAL RESERVE * * * AND WHO HERETOFORE, BUT SUBSEQUENT TO SEPTEMBER 1, 1947, HAVE BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER, OR WHO MAY, PRIOR TO JULY 1, 1959, BE CALLED OR ORDERED TO EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER.'

SECTION 4 (I) (1) OF THE SELECTIVE SERVICE ACT OF 1948, 50 U.S.C. APPX. 454 (I) (1), AS ADDED BY SECTION 1, PUBLIC LAW 779, ACT OF SEPTEMBER 9, 1950, 64 STAT. 826, AUTHORIZES THE PRESIDENT TO REQUIRE SPECIAL REGISTRATION AND AS THEREIN PROVIDED TO MAKE SPECIAL CALLS FOR MALE PERSONS QUALIFIED IN NEEDED MEDICAL, DENTAL AND ALLIED SPECIALIST CATEGORIES WHO HAVE NOT YET REACHED THE AGE OF FIFTY AT TIME OF REGISTRATION. PERSONS CALLED THEREUNDER ARE "LIABLE FOR INDUCTION FOR NOT TO EXCEED TWENTY-ONE MONTHS OF SERVICE IN THE ARMED FORCES.' SECTION 4 (I) (1), SUPRA, FURTHER PROVIDES, HOWEVER, THAT " NO SUCH PERSON WHO IS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES SHALL, SO LONG AS HE REMAINS A MEMBER THEREOF, BE LIABLE FOR REGISTRATION OR INDUCTION UNDER THIS SUBSECTION, BUT NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO AFFECT THE AUTHORITY OF THE PRESIDENT UNDER ANY OTHER PROVISION OF LAW TO CALL TO ACTIVE DUTY MEMBERS AND UNITS OF THE RESERVE COMPONENTS.'

SECTION 5 OF THE ACT OF SEPTEMBER 9, 1950, 64 STAT. 828, 37 U.S.C. 234B, PROVIDES THAT " NO PERSON INDUCTED UNDER THE PROVISIONS OF THIS ACT SHALL BE ENTITLED TO THE BENEFITS OF THE PROVISIONS OF SECTION 203 OF PUBLIC LAW 351, EIGHTY-FIRST CONGRESS ( CAREER COMPENSATION ACT OF 1949).'

UNDER THE PROVISIONS OF SUBSEQUENT AND AMENDING LAWS ANY PERSON LIABLE FOR INDUCTION UNDER THE ACT OF SEPTEMBER 9, 1950, AS AMENDED,"SHALL, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE APPOINTED, REAPPOINTED, OR PROMOTED TO SUCH GRADE OR RANK AS MAY BE COMMENSURATE WITH HIS PROFESSIONAL EDUCATION, EXPERIENCE, OR ABILITY.' SEE SECTION 3, ACT OF JUNE 29, 1953, 67 STAT. 87. THE ACT OF JUNE 18, 1954, 68 STAT. 254, PROVIDES THAT ANY PERSON THERETOFORE OR THEREAFTER INDUCTED OR ORDERED TO ACTIVE DUTY UNDER AUTHORITY OF THE ACT OF SEPTEMBER 9, 1950, AS AMENDED,"WHO FAILS TO QUALIFY FOR, OR TO ACCEPT, A COMMISSION OR WHOSE COMMISSION IS TERMINATED MAY BE UTILIZED IN HIS PROFESSIONAL CAPACITY IN AN ENLISTED GRADE OR RANK.'

THE MAIN PURPOSE OF THE ACT OF SEPTEMBER 9, 1950, WAS TO SECURE AN ADEQUATE NUMBER OF PHYSICIANS, DENTISTS AND SPECIALISTS IN ALLIED CATEGORIES TO MEET THE BASIC NEEDS OF THE ARMED FORCES IN A MANNER CONSISTENT WITH THE DEMANDS AND REQUIREMENTS OF THE CIVILIAN POPULATION THE PERTINENT PROVISIONS OF THE ACT OF SEPTEMBER 9, 1950, AS AMENDED, CLEARLY DISCLOSE THAT THIS OBJECTIVE WAS SOUGHT TO BE ACCOMPLISHED WITHOUT RESORT TO THE COMPULSORY REGISTRATION AND INDUCTION PROVISIONS CONTAINED IN THAT LAW BY EXEMPTING FROM THE REQUIREMENTS OF REGISTRATION AND LIABILITY TO INDUCTION THEREUNDER ALL MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES.

SECTION 5 OF THE ACT OF SEPTEMBER 9, 1950, SUPRA, WAS ENACTED, IN CONJUNCTION WITH THE OTHER PROVISIONS OF THAT ACT, FOR THE SPECIFIC PURPOSE OF ESTABLISHING SUCH AN ATTRACTIVE FINANCIAL INDUCEMENT THAT PHYSICIANS AND DENTISTS AND OTHER SPECIALISTS, SUBJECT TO THE SPECIAL REGISTRATION PROVISIONS AND LIABILITY TO INDUCTION UNDER THE ACT, WOULD APPLY FOR A COMMISSION WITHOUT DELAY, AND BY JOINING A RESERVE COMPONENT THEREBY MAKE THEIR PROFESSIONAL SERVICES AVAILABLE TO THE ARMED FORCES ON AN ORDERLY BASIS WITHOUT SUBJECTING THEMSELVES TO THE PROHIBITION PRESCRIBED IN SAID SECTION 5. IN ADDITION TO THE CLEAR LANGUAGE OF THE SECTION, ITS LEGISLATIVE HISTORY SHOWS AN UNMISTAKABLE INTENT TO WITHHOLD THE BENEFITS OF THE SPECIAL PAY PRESCRIBED FOR PHYSICIANS AND DENTISTS IN SECTION 203 (B) OF THE CAREER COMPENSATION (ACT OF 1949, FROM ANY INDIVIDUAL WHO IS INDUCTED UNDER THE LAW. IT IS THE COMPULSORY INDUCTION UNDER THE 1950 LAW WHICH SUBJECTS THE INDIVIDUAL TO THE RESTRICTION OF SECTION 5, AND INASMUCH AS THE PROCESS OF INDUCTION IS DIRECTED TO PERSONS WHO ARE BROUGHT INTO THE SERVICE IN ENLISTED GRADES ONLY, SUCH PROHIBITION CANNOT BE NULLIFIED THROUGH THE EXPEDIENCY OF SUBSEQUENTLY ACCEPTING A COMMISSION AND MEMBERSHIP IN A RESERVE COMPONENT.

IN THESE CIRCUMSTANCES, DR. FARABAUGH'S DISCHARGE ON DECEMBER 22, 1954, DID NOT REMOVE HIM FROM THE OPERATION OF THE SAID SECTION 5. ACCORDINGLY, HE IS NOT ENTITLED TO THE SPECIAL PAY PRESCRIBED FOR PHYSICIANS AND DENTISTS IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED.