B-133699, OCTOBER 18, 1957, 37 COMP. GEN. 264

B-133699: Oct 18, 1957

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ARE CONSIDERED COMMISSIONED OFFICERS UNDER SECTION 203 (A) OF THE CAREER COMPENSATION ACT OF 1949. AS OFFICERS ARE ENTITLED TO THE SPECIAL PAY PROVIDED IN SECTION 203 (B) OF THE ACT. INASMUCH AS THE TERM "FULL-TIME TRAINING DUTY" IS INCLUDED IN THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22). WHICH PROVIDES SPECIAL PAY FOR RESERVE COMMISSIONED OFFICERS WHO ARE RECALLED TO DUTY AFTER A PERIOD OF ONE YEAR OR MORE OF ACTIVE DUTY. 36 COMP. 1957: FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 5. IS SUBSEQUENTLY RECALLED TO A SECOND TOUR OF EXTENDED ACTIVE DUTY PRIOR TO JULY 1. AS VARIED IN THE RESPECT THAT THE SUBSEQUENT RECALL TO A SECOND TOUR OF ACTIVE DUTY IS FOR FULL TIME TRAINING DUTY FOR A PERIOD OF LESS THAN THIRTY DAYS.

B-133699, OCTOBER 18, 1957, 37 COMP. GEN. 264

MILITARY PERSONNEL - RESERVE MEDICAL AND DENTAL OFFICERS - PUBLIC HEALTH SERVICE - RECALL TO DUTY - TRAINING DUTY PUBLIC HEALTH SERVICE RESERVE MEDICAL OR DENTAL OFFICERS, WHO PERFORM ACTIVE DUTY FOR A PERIOD OF ONE YEAR OR MORE UNDER A CALL OR ORDER TO EXTENDED ACTIVE DUTY FOR ONE YEAR OR MORE, ARE CONSIDERED COMMISSIONED OFFICERS UNDER SECTION 203 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 234 (A), AND AS OFFICERS ARE ENTITLED TO THE SPECIAL PAY PROVIDED IN SECTION 203 (B) OF THE ACT, 37 U.S.C. 234 (B), ON RECALL FOR A SECOND TOUR OF ACTIVE DUTY FOR LESS THAN ONE YEAR OR FOR A PERIOD OF FULL-TIME TRAINING DUTY OF LESS THAN THIRTY DAYS BETWEEN SEPTEMBER 1, 1947, AND JULY 1, 1959. INASMUCH AS THE TERM "FULL-TIME TRAINING DUTY" IS INCLUDED IN THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22), IT MAY BE REGARDED AS "ACTIVE SERVICE" WITHIN THE MEANING OF SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 234 (B), WHICH PROVIDES SPECIAL PAY FOR RESERVE COMMISSIONED OFFICERS WHO ARE RECALLED TO DUTY AFTER A PERIOD OF ONE YEAR OR MORE OF ACTIVE DUTY. 36 COMP. GEN. 179, MODIFIED.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, OCTOBER 18, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 5, 1957, FROM THE ACTING SECRETARY OF HEALTH, EDUCATION, AND WELFARE, REQUESTING A DECISION ON TWO QUESTIONS RELATING TO ENTITLEMENT TO THE SPECIAL PAY PROVIDED IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1940 (1949), AS AMENDED, 37 U.S.C. 234 (B).

THE QUESTIONS INVOLVED RELATE TO WHETHER A RESERVE MEDICAL OR DENTAL OFFICER OF THE PUBLIC HEALTH SERVICE WOULD BE ENTITLED TO THE SPECIAL PAY WHEN CALLED TO ACTIVE DUTY UNDER THE FOLLOWING CIRCUMSTANCES:

1. A RESERVE MEDICAL OR DENTAL OFFICER, WHO PERFORMED ACTIVE DUTY BETWEEN SEPTEMBER 1, 1947, AND JULY 1, 1959, FOR A PERIOD OF ONE YEAR OR MORE UNDER A CALL OR ORDER TO EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE, IS SUBSEQUENTLY RECALLED TO A SECOND TOUR OF EXTENDED ACTIVE DUTY PRIOR TO JULY 1, 1959, UNDER A CALL OR ORDER TO ACTIVE DUTY OF LESS THAN ONE YEAR.

2. THE FACTS SET FORTH IN ITEM "1" ABOVE, AS VARIED IN THE RESPECT THAT THE SUBSEQUENT RECALL TO A SECOND TOUR OF ACTIVE DUTY IS FOR FULL TIME TRAINING DUTY FOR A PERIOD OF LESS THAN THIRTY DAYS.

THE TERM "COMMISSIONED OFFICER" IS DEFINED IN SECTION 203 (A) OF THE CAREER COMPENSATION ACT, AS AMENDED, 37 U.S.C. 234 (A), AS INCLUDING "MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE * * * 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.' SUBSECTION (B) PROVIDES THAT ,COMMISSIONED OFFICERS AS DEFINED IN SUBSECTIONS (A) AND (C) OF THIS SECTION SHALL BE ENTITLED TO RECEIVE SPECIAL PAY * * * FOR EACH MONTH OF ACTIVE SERVICE FOR THOSE MEDICAL AND DENTAL OFFICERS COVERED BY SUBSECTION (A) OF THIS SECTION.'

IT IS CLEAR THAT A RESERVE MEDICAL OR DENTAL OFFICER IS COVERED BY SUBSECTION (A) OF THE QUOTED PROVISIONS OF LAW, IF HE HAS PERFORMED ACTIVE DUTY FOR A PERIOD OF ONE YEAR OR MORE UNDER A CALL OR ORDER TO EXTENDED ACTIVE DUTY FOR ONE YEAR OR MORE. SINCE SUBSECTION (B) REFERS TO OFFICERS, RATHER THAN TO PERIODS OF SERVICE COVERED BY SUBSECTION (A), IT APPEARS THAT THE STATUTE CONTEMPLATES PAYMENT OF THE SPECIAL PAY FOR EACH PERIOD OF ACTIVE SERVICE PERFORMED AFTER THE COMPLETION OF A TOUR OF ACTIVE DUTY COVERED BY SUBSECTION (A). ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

IN OUR DECISION OF AUGUST 29, 1956, 36 COMP. GEN. 179, IT WAS HELD THAT THE TERM "ACTIVE ERVICE" AS USED IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT, AS AMENDED, DOES NOT INCLUDE ACTIVE DUTY FOR TRAINING. HOWEVER, THAT CONCLUSION WAS BASED ON THE DEFINITION OF THE TERM "ACTIVE DUTY" AS USED IN SECTION 101 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, 50 U.S.C. 901 (B). SINCE SECTION 101 OF THE 1952 ACT, 50 U.S.C. 901, WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 682, AND SECTION 101 (22) OF THE LATTER ACT, 10 U.S.C. 101 (22) DEFINES "ACTIVE DUTY" AS INCLUDING "FULL TIME TRAINING DUTY," THERE APPEARS TO BE NO REASON WHY FULL-TIME TRAINING DUTY SHOULD NOT NOW BE REGARDED AS "ACTIVE SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT, AS AMENDED. IN THAT CONNECTION IT IS NOTED THAT THE COMMITTEE REPORT QUOTATION (RELATING TO THE 1956 ACT), WHICH IS SET FORTH IN THE ACTING SECRETARY'S LETTER, INDICATES THE VIEW THAT THE NEW DEFINITION--- DERIVED FROM SECTION 306 (D) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1090, 34 U.S.C. 440M (D/--- IS "CLOSER TO GENERAL USAGE THAN THE DEFINITION" USED IN THE 1952 ACT. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE. THE DECISION OF AUGUST 29, 1956, 36 COMP. GEN. 179, IS MODIFIED ACCORDINGLY.