B-129589, NOVEMBER 1, 1956, 36 COMP. GEN. 355

B-129589: Nov 1, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE INSULAR FORCE OF THE NAVY AND THE PHILIPPINE ARMY ARE ENTITLED TO DEPENDENCY AND INDEMNITY COMPENSATION PAYMENTS PROVIDED BY TITLE II OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT. WHO WERE PAROLED BY THE JAPANESE FOLLOWING SURRENDER OF THE PHILIPPINES RETAINED THEIR ENLISTED OR OFFICER STATUS DURING THE PAROLE PERIOD PRIOR TO REOCCUPATION. 1956: REFERENCE IS MADE TO LETTER OF OCTOBER 22. FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION CONCERNING THE RATES OF BASIC PAY WHICH THE SECRETARIES OF THE MILITARY DEPARTMENTS ARE AUTHORIZED BY THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT TO CERTIFY TO THE VETERANS ADMINISTRATION IN THE CASES OF MEMBERS AND FORMER MEMBERS OF THE PHILIPPINE SCOUTS.

B-129589, NOVEMBER 1, 1956, 36 COMP. GEN. 355

SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT - MEMBERS OF PHILIPPINE SCOUTS, INSULAR FORCE OF NAVY AND PHILIPPINE ARMY SURVIVORS OF MEMBERS AND FORMER MEMBERS OF THE PHILIPPINE SCOUTS, THE INSULAR FORCE OF THE NAVY AND THE PHILIPPINE ARMY ARE ENTITLED TO DEPENDENCY AND INDEMNITY COMPENSATION PAYMENTS PROVIDED BY TITLE II OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, COMPUTED ON THE BASIC RATES OF PAY PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949. FILIPINO MEMBERS OF THE PHILIPPINE SCOUTS, INSULAR FORCE OF THE NAVY AND PHILIPPINE ARMY, WHO WERE PAROLED BY THE JAPANESE FOLLOWING SURRENDER OF THE PHILIPPINES RETAINED THEIR ENLISTED OR OFFICER STATUS DURING THE PAROLE PERIOD PRIOR TO REOCCUPATION, AND THE SECRETARIES OF THE MILITARY SERVICES MAY COUNT SUCH PAROLE TIME FOR PURPOSES OF DETERMINING THE RATE OF BASIC PAY FOR DEPENDENCY AND INDEMNITY COMPENSATION PAYABLE PURSUANT TO THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT.

TO THE SECRETARY OF DEFENSE, NOVEMBER 1, 1956:

REFERENCE IS MADE TO LETTER OF OCTOBER 22, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION CONCERNING THE RATES OF BASIC PAY WHICH THE SECRETARIES OF THE MILITARY DEPARTMENTS ARE AUTHORIZED BY THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT TO CERTIFY TO THE VETERANS ADMINISTRATION IN THE CASES OF MEMBERS AND FORMER MEMBERS OF THE PHILIPPINE SCOUTS, THE INSULAR FORCE OF THE NAVY, AND OF THE PHILIPPINE ARMY.

THE QUESTIONS PRESENTED ARE SET FORTH IN COMMITTEE ACTION NO. 158 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. PURSUANT TO THE PROVISIONS OF PARAGRAPH (11) (A) AND (B), SECTION 102 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT ( PUBLIC LAW 881, 84TH CONGRESS), UNDER WHICH OF THE FOLLOWING RATES OF PAY ARE ELIGIBLE SURVIVORS OF MEMBERS OF THE PHILIPPINE SCOUTS OR INSULAR FORCE OF THE NAVY ENTITLED TO HAVE THEIR DEPENDENCY AND INDEMNITY COMPENSATION COMPUTED:

A. BASIC PAY PRESCRIBED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 805), AS AMENDED?

B. FIFTY PERCENT OF THE BASIC PAY PRESCRIBED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED?

C. PAY PRESCRIBED PURSUANT TO SECTION 507 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED?

2. UNDER THE PROVISIONS OF PARAGRAPH (11) (C) OF PUBLIC LAW 881, SUPRA, ARE ELIGIBLE SURVIVORS OF MEMBERS OF THE PHILIPPINE ARMY ENTITLED TO HAVE THEIR DEPENDENCY AND INDEMNITY COMPENSATION COMPUTED ON THE BASIC PAY PRESCRIBED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED?

3. IF YOUR ANSWER TO QUESTION TWO IS IN THE NEGATIVE, WHAT RATE OF PAY SHOULD BE USED IN COMPUTING SUCH COMPENSATION?

4. IN DETERMINING THE BASIC PAY FOR COMPUTING DEPENDENCY AND INDEMNITY COMPENSATION UNDER PL 881, SUPRA, ARE PERIODS OF TIME DURING WHICH MEMBERS OF THE PHILIPPINE SCOUTS, INSULAR FORCE OF THE NAVY AND PHILIPPINE ARMY WERE DETERMINED NOT TO BE IN A MISSING STATUS UNDER THE ACT OF 7 MARCH 1942 (56 STAT. 143) CREDITABLE FOR PAY PURPOSES?

TITLE II OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, PUBLIC LAW 881, 84TH CONGRESS, 70 STAT. 862, EFFECTIVE JANUARY 1, 1957, SUBSTITUTES FOR THE SEPARATE BENEFITS OF SERVICEMEN'S INDEMNITY AND DEATH COMPENSATION FOR SURVIVORS OF SERVICEMEN A SINGLE "DEPENDENCY AND INDEMNITY COMPENSATION.' THE AMOUNT OF SUCH COMPENSATION IN THE CASE OF CHILDREN AND DEPENDENT PARENTS IS NOT RELATED TO THE AMOUNT OF THE SERVICEMAN'S PAY. IN THE CASE OF WIDOWS, HOWEVER, SECTION 202 (A) OF THE ACT, 70 STAT. 862, 38 U.S.C. 1112 (A), PROVIDES:

DEPENDENCY AND INDEMNITY COMPENSATION SHALL BE PAID UNDER THIS TITLE TO A WIDOW AT A MONTHLY RATE EQUAL TO $112 PLUS 12 PERCENTUM OF THE BASIC PAY OF HER DECEASED HUSBAND.

THE DEPENDENCY AND INDEMNITY COMPENSATION IS PAYABLE IN CASES WHERE THE DEATH OF THE SERVICEMAN OR VETERAN OCCURS ON OR AFTER THE EFFECTIVE DATE OF THE ACT (SEE SECTION 201, 38 U.S.C. 1111), AND IN CASES OF PRIOR DEATHS WHERE A PERSON WHO, ON OR AFTER DECEMBER 31, 1956, IS ELIGIBLE AS A WIDOW, CHILD, OR PARENT FOR DEATH COMPENSATION UNDER ANY OTHER LAW ADMINISTERED BY THE VETERANS ADMINISTRATION AND ELECTS DEPENDENCY AND INDEMNITY COMPENSATION IN LIEU OF CERTAIN OTHER BENEFITS (SEE SECTION 206), 38 U.S.C. 1116.

THE BASIS FOR COMPUTING THE AMOUNT OF THE DEPENDENCY AND INDEMNITY COMPENSATION FOR WIDOWS IS PRESCRIBED IN SECTION 102 (11), 38 U.S.C. 1101 (11), AS FOLLOWS:

(A) WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE WHO DIED WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING, THE TERM "BASIC PAY" (FOR PURPOSES OF TITLE II) MEANS THE BASIC PAY (AS DEFINED IN PARAGRAPH 10) ( PRESCRIBED ON JANUARY 1, 1957, OR ON THE DATE OF HIS DEATH (WHICHEVER IS THE LATER DATE) FOR A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY OF THE SAME RANK (WITH THE SAME CUMULATIVE YEARS OF SERVICE FOR PURPOSES OF PAY) AS THAT OF THE DECEASED MEMBER OF A UNIFORMED SERVICE ON THE DATE OF HIS DEATH.

(B) WITH RESPECT TO A DECEASED MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO DID NOT DIE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING, THE TERM "BASIC PAY" (FOR PURPOSES OF TITLE II) MEANS THE BASIC PAY (AS DEFINED IN PARAGRAPH (10) ( PRESCRIBED ON JANUARY 1, 1957, OR ON THE DATE OF HIS DEATH (WHICHEVER IS THE LATER DATE) FOR A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY OF THE SAME RANK (WITH THE SAME CUMULATIVE YEARS OF SERVICE FOR PURPOSES OF PAY) AS THAT OF THE DECEASED MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE ON THE DATE OF HIS LAST DISCHARGE OR RELEASE FROM ACTIVE DUTY UNDER CONDITIONS OTHER THAN DISHONORABLE; HOWEVER, IF HIS DEATH RESULTS FROM DISEASE OR INJURY INCURRED OR AGGRAVATED WHILE ON ACTIVE DUTY FOR TRAINING, OR FROM INJURY INCURRED OR AGGRAVATED WHILE ON INACTIVE DUTY TRAINING, AFTER SUCH LAST DISCHARGE OR RELEASE FROM ACTIVE DUTY, HIS RANK AND YEARS OF SERVICE FOR PURPOSES OF PAY SHALL BE THOSE HELD BY HIM ON THE DATE OF HIS DISCHARGE OR RELEASE FROM THE PERIOD OF ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING IN WHICH SUCH INJURY OR DISEASE WAS INCURRED OR AGGRAVATED.

(C) WITH RESPECT TO A DECEASED PERSON WHO IS NOT A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE, BUT WHO HAD A COMPENSABLE STATUS ON THE DATE OF HIS DEATH UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, THE HEAD OF THE DEPARTMENT UNDER WHICH SUCH PERSON PERFORMED THE SERVICES BY WHICH HE OBTAINED A COMPENSABLE STATUS SHALL DETERMINE A PAY GRADE FOR SUCH PERSON UNDER SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AND A RATE OF PAY WITHIN THAT PAY GRADE (TAKING INTO CONSIDERATION HIS DUTIES, RESPONSIBILITIES, AND YEARS OF SERVICE). HIS "BASIC PAY" SHALL BE THAT PRESCRIBED ON JANUARY 1, 1957, OR THE DATE OF HIS DEATH, WHICHEVER IS THE LATER DATE, UNDER SUCH SECTION 201 (A) FOR THE PAY GRADE AND RATE OF PAY SO DETERMINED. FOR THE PURPOSES OF TITLE II OF THIS ACT, ONLY, SUCH PERSONS SHALL BE DEEMED TO HAVE BEEN ON ACTIVE DUTY DURING THE PERIOD OF SERVICE BY WHICH THEY OBTAINED A COMPENSABLE STATUS. SECTION 102 (11) (F), 38 U.S.C. 1101 (11) (F), PROVIDES THAT---

THE SECRETARY CONCERNED SHALL, AT THE REQUEST OF THE ADMINISTRATOR, CERTIFY TO HIM THE BASIC PAY CONSIDERING RANK OR GRADE AND CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES OF DECEASED PERSONS WITH RESPECT TO WHOSE DEATHS APPLICATIONS FOR BENEFITS ARE FILED UNDER TITLE II OF THIS ACT. THE CERTIFICATION OF THE SECRETARY CONCERNED SHALL BE BINDING UPON THE ADMINISTRATOR. THE TERM "BASIC PAY" IS DEFINED IN SECTION 102 (10) (A), 38 U.S.C. 1101 (10) (A), AS FOLLOWS:

"BASIC PAY" MEANS THE MONTHLY PAY PRESCRIBED BY SECTION 201 (A), 201 (E), 201 (F), OR 508 OF THE CAREER COMPENSATION ACT OF 1949, AS MAY BE APPROPRIATE, FOR A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY.

SECTION 201 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 232, PRESCRIBES THE PAY GRADES AND MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES WITHIN EACH PAY GRADE ACCORDING TO CUMULATIVE YEARS OF SERVICE. SECTIONS 201 (E) AND 508 (37 U.S.C. 308) PRESCRIBE THE BASIC PAY RATE FOR AVIATION CADETS AND FOR CADETS AND MIDSHIPMEN, RESPECTIVELY, AND SECTION 201 (F), 37 U.S.C. 232 (F), PROVIDES AN ADDITIONAL INCREMENT OF BASIC PAY OF $100 A MONTH FOR LIEUTENANT GENERALS AND VICE ADMIRALS AND OF $200 A MONTH FOR GENERALS AND ADMIRALS.

SECTION 11 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, PROVIDED THAT THE PAY AND ALLOWANCES OF WHATEVER NATURE AND KIND FOR ENLISTED MEN OF THE PHILIPPINE SCOUTS SHOULD BE FIXED BY THE SECRETARY OF WAR AND THAT THE RATES OF PAY FOR ENLISTED MENT OF THE INSULAR FORCE OF THE NAVY SHOULD BE ONE-HALF THE RATES OF PAY PRESCRIBED FOR ENLISTED MEN OF THE NAVY IN CORRESPONDING GRADES. SECTION 507 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 307, PROVIDES THAT THE PAY AND ALLOWANCES FOR ENLISTED MEN OF THE PHILIPPINE SCOUTS AND FOR ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY SHALL BE FIXED BY THE SECRETARY OF THE ARMY AND THE SECRETARY OF THE NAVY, RESPECTIVELY. IT IS UNDERSTOOD THAT THE SECRETARY OF THE ARMY LAST FIXED THE PAY OF PHILIPPINE SCOUTS EFFECTIVE JUNE 1, 1946, AT ONE-HALF THE RATES THEN APPLICABLE TO ENLISTED MEN OF THE ARMY, AND THAT UNDER THE CAREER COMPENSATION ACT THE SECRETARY OF THE NAVY FIXED THE PAY RATES FOR MEMBERS OF THE INSULAR FORCE AT ONE HALF OF THE RATES APPLICABLE TO ENLISTED MEMBERS OF THE NAVY. WHILE THE UNITED STATES APPROPRIATED FUNDS TO FINANCE THE ARMY OF THE PHILIPPINES (SEE 26 COMP./GEN. 940), THE PAY GRADES AND PAY RATES OF MEMBERS OF THE PHILIPPINE ARMY WERE NOT REGULATED BY UNITED STATES STATUTES.

IT WILL BE NOTED THAT SECTION 102 (10), 38 U.S.C. 1101 (10) OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT DEFINES "BASIC PAY" AS THAT PRESCRIBED BY SECTION 201 (A), 201 (E), 201 (F), OR 508 OF THE CAREER COMPENSATION ACT OF 1949, AS MAY BE APPROPRIATE, AND NOT BY ANY OTHER PROVISION OF LAW OR REGULATION. EVEN IN THE CASE OF A MEMBER OF THE ARMED SERVICES WHO DIES WHILE ON ACTIVE DUTY, THE TERM "BASIC PAY" IS NOT DEFINED AS THE PAY RECEIVED BY THE MEMBER AT THE DATE OF DEATH BUT IS THE BASIC PAY AS DEFINED IN SECTION 102 (10) FOR A MEMBER ON ACTIVE DUTY OF THE SAME RANK AND LENGTH OF SERVICE AS THAT OF THE DECEASED MEMBER ON THE DATE OF HIS DEATH. IN THE CASE OF A DECEASED MEMBER OR FORMER MEMBER WHOSE DEATH OCCURS OR OCCURRED WHILE NOT PERFORMING MILITARY SERVICE, IT IS NOT THE PAY RECEIVED BY THE MEMBER WHILE ON MILITARY DUTY BUT THE BASIC PAY AS DEFINED IN SECTION 102 (10) ON JANUARY 1, 1957, OR DATE OF DEATH (WHICHEVER IS LATER) FOR A MEMBER ON ACTIVE DUTY WITH THE SAME RANK AND LENGTH OF SERVICE AS THE DECEASED MEMBER OR FORMER MEMBER AS OF THE DATE OF HIS LAST MILITARY SERVICE. THE SAME DEFINITION OF BASIC PAY APPLIES TO A DECEASED PERSON WHO WAS NOT EVEN A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES BUT WHO HAD A COMPENSABLE STATUS UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION. IN SHORT, IN EACH AND EVERY SITUATION THE TERM "BASIC PAY" IS THAT DEFINED IN SECTION 102 (10) OF THE ACT, WHICH TAKES COGNIZANCE OF ONLY ONE GENERAL RATE OF PAY AND THREE SPECIAL RATES OF PAY: THAT APPLICABLE TO MEMBERS OF THE UNIFORMED SERVICES GENERALLY (SECTION 201 (A) ( AND THOSE SPECIAL RATES OF PAY APPLICABLE TO (1) AVIATION CADETS (SECTION 201 (E) (, (2) CERTAIN GENERALS AND ADMIRALS (SECTION 201 (F) (, AND (3) CADETS AND MIDSHIPMEN (SECTION 508). HAD THE CONGRESS INTENDED TO ESTABLISH A SPECIAL RATE FOR MEMBERS OF THE PHILIPPINE SCOUTS OR OF THE INSULAR FORCE OF THE NAVY, IT DOUBTLESS WOULD ALSO HAVE SPECIFIED IN THE DEFINITION OF BASIC PAY IN SECTION 102 (10) THE SPECIAL RATES AUTHORIZED IN SECTION 507 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 307. CONSIDERING THE JUXTAPOSITION OF SECTION 507 TO SECTION 508 IN THAT ACT, IT IS REASONABLE TO ASSUME THAT THE CONGRESS WAS NOT UNMINDFUL OF THE PHILIPPINE SCOUTS AND INSULAR FORCE OF THE NAVY IN ESTABLISHING THE APPLICABLE RATES OF BASIC PAY.

THE RULE THAT A CASE OR CLASS OF CASES OMITTED OR UNPROVIDED FOR BY STATUTE SHOULD BE HELD TO BE INTENTIONALLY OMITTED IS NOT FOR APPLICATION IF BY ANY REASONABLE CONSTRUCTION THE STATUTE MAY BE READ TO AVOID IT. 22 COMP. GEN. 37. THE SPECIFIC ENUMERATION IN SECTION 102 (10) OF CERTAIN SPECIAL FORMULAS FOR DETERMINING BASIC PAY SEEMS TO US TO PRECLUDE THE VIEW THAT OTHER SPECIAL FORMULAS NOT SO ENUMERATED WERE INTENDED. COMPARE 23 COMP. GEN. 52. AS NOTED ABOVE, THE ACT APPLIES TO PERSONS WHO HAVE HAD NO STATUS AS MEMBERS OF THE UNIFORMED SERVICES OF THE UNITED STATES, INCLUDING CERTAIN MEMBERS OF THE ARMY OF THE PHILIPPINES (SEE ACT OF FEBRUARY 18, 1946, 60 STAT. 14, AS AMENDED, 38 U.S.C. 38), FOR WHICH NO RATES OF PAY WERE ESTABLISHED BY LAWS OF THE UNITED STATES. AS TO SUCH PERSONS THE ACT DIRECTS THE RESPECTIVE SECRETARIES TO ASSIGN AN APPROPRIATE PAY GRADE UNDER SECTION 201 (A) OF THE CAREER COMPENSATION ACT AND A RATE OF PAY WITHIN THAT PAY GRADE.

IT IS OUR OPINION THAT THE RATES OF PAY PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT SHOULD BE APPLIED TO ALL CASES OTHER THAN THOSE TO WHICH SECTIONS 201 (E), 201 (F), OR 508 OF THAT ACT APPLY AND, HENCE, THAT THE BASIC PAY RATES PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT SHOULD BE CERTIFIED AS THE BASIC PAY RATES APPLICABLE UNDER THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT TO MEMBERS AND FORMER MEMBERS OF THE PHILIPPINE SCOUTS, INSULAR FORCE OF THE NAVY, AND OF THE PHILIPPINE ARMY. COMPARE 21 COMP. GEN. 311; 25 COMP. GEN. 749. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY MAKING AN ANSWER TO QUESTION 3 UNNECESSARY.

SECTION 202 (A) (2) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233, PROVIDES THAT, IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE, SUCH MEMBERS SHALL BE CREDITED WITH "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS, COMMISSIONED WARRANT OFFICERS, WARRANT OFFICERS" IN THE SERVICES ENUMERATED. THE LEGISLATIVE HISTORY OF THE ACT OF JULY 25, 1947, 61 STAT. 455, PUBLIC LAW 241, 38 U.S.C. 38, INDICATES THAT SHORTLY FOLLOWING THE SURRENDER OF THE PHILIPPINES IN MAY 1942 THE JAPANESE RELEASED ON PAROLE PRACTICALLY ALL FILIPINO MEMBERS OF THE OPPOSING FORCES IN ORDER TO GAIN THE GOOD WILL OF THE FILIPINOS. SEE PAGE 3 OF SENATE REPORT NO. 570 AND PAGE 2 OF HOUSE OF REPRESENTATIVES REPORT NO. 509 ON H.R. 3191, WHICH BECAME PUBLIC LAW 241. IT APPEARS THAT UNDER AUTHORITY OF THE MISSING PERSONS ACT THE WAR DEPARTMENT HAS DETERMINED THAT PAROLED PRISONERS OF WAR WERE NOT IN A "MISSING" STATUS AND, THEREFORE, ARE NOT ENTITLED TO PAY FOR THAT PERIOD (SEE MORENO V. UNITED STATES, 118 C.1CLS. 30), WHILE THE SECRETARY OF THE NAVY DETERMINED THAT MEMBERS OF THE INSULAR FORCE OF THE NAVY WERE IN A "MISSING" STATUS AND WERE ENTITLED TO PAY.

THE ADMINISTRATIVE DETERMINATION BY THE SECRETARY OF WAR THAT FILIPINO MEMBERS OF THE ARMY RELEASED ON PAROLE WERE NOT IN A "MISSING" OR OTHER CASUALTY STATUS AND NOT IN A PAY STATUS DURING THE PAROLE PERIOD DID NOT, AND APPARENTLY WAS NOT INTENDED TO, CONSTITUTE A FINDING THAT THEY WERE NOT ENLISTED MEN OR OFFICERS OF THE ARMY OR THAT THEIR STATUS IN THAT RESPECT WAS TERMINATED. IT IS OUR OPINION THAT THEY ARE ENTITLED TO COUNT THE PERIODS, IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, DURING WHICH THEY RETAINED THEIR STATUS AS ENLISTED MEN OR OFFICERS AND WERE NOT ABSENT WITHOUT AUTHORITY OR IN A STATUS REQUIRING THEM TO MAKE UP THE LOST TIME, EVEN THOUGH THEY WERE ,PAROLED" BY THE ENEMY AND RETURNED TO THEIR HOMES. COMPARE 22 COMP. GEN. 759 AND 30 COMP. GEN. 285 HOLDING THAT A PERIOD WHILE ON LEAVE WITHOUT PAY MAY BE COUNTED IN DETERMINING THE LENGTH OF SERVICE FOR PAY PURPOSES. AND IN VIEW OF THE AUTHORITY CONFERRED ON THE SECRETARIES OF THE MILITARY SERVICES BY SECTION 102 (11) (C) OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT TO DETERMINE A PAY GRADE AND RATE OF PAY WITHIN THAT GRADE "TAKING INTO CONSIDERATION * * * YEARS OF SERVICE" OF PERSONS NOT MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES, BUT WHO HAD A COMPENSABLE STATUS ON THE DATE OF DEATH UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, WE BELIEVE THAT THE SECRETARIES PROPERLY MAY COUNT THE PAROLE TIME PRIOR TO REOCCUPATION OF THE PHILIPPINES FOR THE PURPOSE OF DETERMINING THE RATE OF BASIC PAY APPLICABLE.