B-132428, OCTOBER 14, 1957, 37 COMP. GEN. 237

B-132428: Oct 14, 1957

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DURING WHICH TWO-YEAR PERIOD HE WAS ALSO A MEMBER OF THE ARMY RESERVE ON INACTIVE DUTY. IS ENTITLED. IT IS STATED THAT COLONEL GORDON ATTENDED MEDICAL SCHOOL FROM SEPTEMBER 1930 TO MAY 29. COLONEL GORDON WAS A MEMBER OF A RESERVE COMPONENT NOT ON ACTIVE DUTY. ADDED TO SECTION 202 (A) A NEW CATEGORY OF SERVICE WHICH MAY BE CREDITED TO SUCH MEMBERS FOR PAY PURPOSES BY ADDING A SEVENTH CLAUSE WHICH IS. IT IS COLONEL GORDON'S CONTENTION THAT THE GROSS CREDIT OF 5 YEARS SHOULD NOT BE REDUCED IN EXCESS OF 1 YEAR SINCE HE WAS NOT A RESERVIST DURING ANY PART OF HIS 4 YEARS IN MEDICAL SCHOOL. IS APPARENT THAT IF HE HAD INTERNED FOR 1 YEAR INSTEAD OF 2. ALTHOUGH THE INTENT OF A STATUTE IS TO BE ASCERTAINED CHIEFLY FROM THE WORDS USED IN THE STATUTE.

B-132428, OCTOBER 14, 1957, 37 COMP. GEN. 237

MILITARY PERSONNEL - MEDICAL AND DENTAL OFFICERS - CONSTRUCTIVE SERVICE CREDIT - RESERVE MEMBERSHIP WHILE SERVING AS INTERN AN ARMY MEDICAL CORPS OFFICER WHO ATTENDED MEDICAL SCHOOL FOR FOUR YEARS AND TRAINED AS AN INTERN FOR TWO YEARS, DURING WHICH TWO-YEAR PERIOD HE WAS ALSO A MEMBER OF THE ARMY RESERVE ON INACTIVE DUTY, IS ENTITLED, UNDER SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (A), TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS, BASED ON HIS FOUR YEARS IN ATTENDANCE AT MEDICAL SCHOOL, WHICH PERIOD MAY NOT BE REDUCED ON ACCOUNT OF RESERVE MEMBERSHIP DURING SUBSEQUENT INTERNSHIP.

TO J. A. STEWART, DEPARTMENT OF THE ARMY, OCTOBER 14, 1957:

IN A LETTER DATED JUNE 18, 1957, FORWARDED BY FIRST ENDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, YOU REQUESTED AN ADVANCE DECISION REGARDING THE RIGHT OF COLONEL JAMES H. GORDON, MEDICAL CORPS, U.S. ARMY, TO BE CREDITED WITH ADDITIONAL (CONSTRUCTIVE) SERVICE IN THE COMPUTATION OF HIS PAY. YOUR REQUEST INVOLVED THE MEANING AND APPLICATION OF CLAUSE (7) OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 2 OF THE ACT OF APRIL 30, 1956, 70 STAT. 121, 37 U.S.C. 233 (A) (7).

IT IS STATED THAT COLONEL GORDON ATTENDED MEDICAL SCHOOL FROM SEPTEMBER 1930 TO MAY 29, 1934, AND SERVED AS AN INTERN FOR TWO YEARS, BEGINNING JULY 1, 1934, AND ENDING JUNE 30, 1936. DURING THE PERIOD OF HIS INTERNSHIP, HOWEVER, COLONEL GORDON WAS A MEMBER OF A RESERVE COMPONENT NOT ON ACTIVE DUTY.

SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233 (A), SETS FORTH (IN SIX CLAUSES) THE CLASSES OF SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES AND SECTION 2 OF THE ACT OF APRIL 30, 1956, ADDED TO SECTION 202 (A) A NEW CATEGORY OF SERVICE WHICH MAY BE CREDITED TO SUCH MEMBERS FOR PAY PURPOSES BY ADDING A SEVENTH CLAUSE WHICH IS, IN PART, AS FOLLOWS:

(7) 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 OR DENTAL OFFICER, AND EACH OFFICER OF THE PUBLIC HEALTH SERVICE COMMISSIONED AS A MEDICAL OR DENTAL OFFICER, 4 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 * * *

COLONEL GORDON HAS BEEN CREDITED WITH 3 YEARS' CONSTRUCTIVE SERVICE, COMPUTED BY DEDUCTING FROM THE GROSS CONSTRUCTIVE SERVICE CREDIT OF 5 YEARS HIS 2 YEARS' SERVICE AS A RESERVIST, SUCH RESERVE SERVICE HAVING BEEN CREDITED UNDER ANOTHER CLAUSE OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949.

A MILITARY PAY ORDER HAS BEEN SUBMITTED TO YOU WITH THE REQUEST THAT COLONEL GORDON BE CREDITED WITH 4 YEARS' CONSTRUCTIVE SERVICE FOR PURPOSES OF DETERMINING HIS BASIC PAY. IT IS COLONEL GORDON'S CONTENTION THAT THE GROSS CREDIT OF 5 YEARS SHOULD NOT BE REDUCED IN EXCESS OF 1 YEAR SINCE HE WAS NOT A RESERVIST DURING ANY PART OF HIS 4 YEARS IN MEDICAL SCHOOL. IS APPARENT THAT IF HE HAD INTERNED FOR 1 YEAR INSTEAD OF 2, ONLY 1 YEAR OF THE 2 YEARS OF RESERVE SERVICE IN QUESTION WOULD BE FOR DEDUCTION FROM THE GROSS CREDIT OF 5 YEARS' CONSTRUCTIVE SERVICE. HE APPARENTLY FEELS THAT SINCE HIS SECOND YEAR OF INTERNSHIP DOES NOT ENTER INTO THE COMPUTATION OF THE GROSS CONSTRUCTIVE SERVICE CREDIT, HIS RESERVE SERVICE DURING THAT SECOND YEAR SHOULD NOT BE DEDUCTED FROM THAT GROSS CREDIT.

ALTHOUGH THE INTENT OF A STATUTE IS TO BE ASCERTAINED CHIEFLY FROM THE WORDS USED IN THE STATUTE, THE INTENT OF THE LEGISLATION IS PARAMOUNT AND IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT THE OPERATION OF A STATUTE MUST BE RESTRICTED WITHIN NARROWER LIMITS THAN THE WORDING IMPORTS WHERE THE LITERAL MEANING WOULD COVER CASES NOT INTENDED BY THE LEGISLATIVE BODY. BREWER V. BLOUGHER, 14 PET. 178; UNITED STATES V. AMERICAN BELL TELEPHONE COMPANY, 159 U.S. 548; HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457; 6 COMP. GEN. 288; 17 ID. 736; 19 ID. 516.

A REVIEW OF THE LEGISLATIVE HISTORY OF H.R. 9428, THE BILL WHICH BECAME THE ACT OF APRIL 30, 1956, REVEALS THAT CONGRESS INTENDED TO PLACE MEDICAL AND DENTAL OFFICERS IN A POSITION COMPARABLE TO THEIR LINE OFFICER CONTEMPORARIES. ON PAGE 8 OF SENATE REPORT NO. 1756, 84TH CONGRESS, DATED APRIL 16, 1956, IT IS SAID THAT:

* * * BY RECOGNIZING THE PERIOD OF PROFESSIONAL EDUCATION FOR LONGEVITY PAY PURPOSES, MEDICAL AND DENTAL OFFICERS WOULD BE IN THE SAME PAY BRACKET FOR THEIR GRADE AS THEIR LINE OFFICER CONTEMPORARIES WHO ENTERED MILITARY SERVICE AT THE SAME TIME AS THE MEDICAL AND DENTAL OFFICERS ENTERED THEIR PROFESSIONAL SCHOOLS. * * *

SEE ALSO COMMENTS ON THE FLOOR OF THE HOUSE BY CONGRESSMEN KILDAY AND ARENDS, 102 CONGRESSIONAL RECORD 3372 AND 3375 ( MARCH 2, 1956); ANALYSIS OF H.R. 9428 ON PAGE 10 OF HOUSE REPORT NO. 1806, 84TH CONGRESS; AND PAGES 4, 14 AND 44 OF THE HEARINGS ON H.R. 9428 BEFORE THE SENATE COMMITTEE ON ARMED SERVICES. THUS, IF THE INTENT INDICATED BY THE HEARINGS AND REPORTS IS TO BE GIVEN FULL EFFECT, IT WOULD APPEAR THAT COLONEL GORDON SHOULD BE GIVEN CREDIT FOR FOUR YEARS' CONSTRUCTIVE SERVICE, SINCE A MERE 3-YEAR CREDIT WILL LEAVE HIM ONE YEAR BEHIND HIS LINE OFFICER CONTEMPORARIES WHO ENTERED MILITARY SERVICE AT THE SAME TIME AS HE ENTERED MEDICAL SCHOOL.

IN CONNECTION WITH THE PHRASE IN THE STATUTE WHICH AUTHORIZES CERTAIN SERVICE OTHERWISE CREDITED TO BE DEDUCTED FROM THE GROSS CONSTRUCTIVE SERVICE CREDIT, WE NOTE THE FOLLOWING EXPLANATION (RELATING TO SECTION 2 OF THE ACT OF APRIL 30, 1956) IN SENATE REPORT NO. 1756, AT PAGE 11:

* * * A PHYSICIAN WHO HAD A MILITARY INTERNSHIP COULD NOT COUNT SUCH SERVICE TWICE UNDER THIS SECTION. LIKEWISE, A PERSON WHO HAD BEEN A MEMBER OF A RESERVE COMPONENT (NOT ON ACTIVE DUTY) WHILE IN MEDICAL SCHOOL OR WHILE UNDERGOING A CIVILIAN INTERNSHIP COULD NOT COUNT SUCH PERIOD TWICE FOR PAY PURPOSES UNDER THIS SECTION.

THE INTENT IS PLAIN THAT A YEAR OF CONSTRUCTIVE SERVICE FOR COMPLETING A MEDICAL INTERNSHIP WILL NOT BE GIVEN TO AN OFFICER WHO COMPLETES HIS INTERNSHIP WHILE HE IS A MEMBER OF THE UNIFORMED SERVICES, WHETHER HE IS ON ACTIVE DUTY OR NOT. IT SEEMS REASONABLY CLEAR, HOWEVER, THAT IT WAS ALSO INTENDED THAT IF AN OFFICER DID NOT HOLD SUCH MEMBERSHIP DURING ANY PORTION OF THE PERIOD OF HIS ATTENDANCE AT MEDICAL OR DENTAL SCHOOL HE WOULD BE GIVEN A 4-YEAR CONSTRUCTIVE SERVICE CREDIT BY REASON OF HIS MEDICAL OR DENTAL EDUCATION. COMPARE THE ANSWER TO QUESTION 8 (C) IN DECISION OF AUGUST 23, 1956, 36 COMP. GEN. 146, 154. HENCE, IT IS OUR VIEW THAT COLONEL GORDON IS ENTITLED TO A 4-YEAR CONSTRUCTIVE SERVICE CREDIT FOR PAY PURPOSES. ACCORDINGLY, YOU ARE AUTHORIZED TO PAY HIM ON THAT BASIS.