B-136671, JULY 22, 1958, 38 COMP. GEN. 50

B-136671: Jul 22, 1958

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MILITARY PERSONNEL - SAVED PAY UNDER PUBLIC LAW 85-422 - RESERVE MEMBERS MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO ARE ELIGIBLE FOR BASIC PAY PRESCRIBED BY LAW IN EFFECT ON MAY 31. - FOR ANY ACTIVE DUTY THEY MIGHT HAVE BEEN REQUIRED TO PERFORM ON THAT DATE ARE REGARDED AS BEING ENTITLED TO BASIC PAY WITHIN THE MEANING OF SECTION 10 OF THE ACT AND PAY IS SAVED TO THEM FOR ANY ACTIVE DUTY PERFORMED AFTER THAT DATE WHILE THEY CONTINUE TO BE MEMBERS OF RESERVE COMPONENTS. 1958: REFERENCE IS MADE TO LETTER OF JUNE 27. AS FOLLOWS: ARE THE PROVISIONS OF SECTION 10 (1). ACT OF 20 MAY 1958 ( PL 85 422) APPLICABLE TO INDIVIDUALS WHO ARE MEMBERS OF RESERVE COMPONENTS. B. IF THE ANSWER TO A IS IN THE NEGATIVE WOULD THE ANSWER BE THE SAME IF MEMBER PERFORMED AND WAS ENTITLED TO PAY FOR DRILL ATTENDED ON 31 MAY 1958?

B-136671, JULY 22, 1958, 38 COMP. GEN. 50

MILITARY PERSONNEL - SAVED PAY UNDER PUBLIC LAW 85-422 - RESERVE MEMBERS MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO ARE ELIGIBLE FOR BASIC PAY PRESCRIBED BY LAW IN EFFECT ON MAY 31, 1958--- THE DATE FOR DETERMINATION OF SAVED PAY BENEFITS PROVIDED IN SECTION 10 OF THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422/--- FOR ANY ACTIVE DUTY THEY MIGHT HAVE BEEN REQUIRED TO PERFORM ON THAT DATE ARE REGARDED AS BEING ENTITLED TO BASIC PAY WITHIN THE MEANING OF SECTION 10 OF THE ACT AND PAY IS SAVED TO THEM FOR ANY ACTIVE DUTY PERFORMED AFTER THAT DATE WHILE THEY CONTINUE TO BE MEMBERS OF RESERVE COMPONENTS.

TO THE SECRETARY OF DEFENSE, JULY 22, 1958:

REFERENCE IS MADE TO LETTER OF JUNE 27, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 217 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

ARE THE PROVISIONS OF SECTION 10 (1), ACT OF 20 MAY 1958 ( PL 85 422) APPLICABLE TO INDIVIDUALS WHO ARE MEMBERS OF RESERVE COMPONENTS, AND PERFORMING TRAINING UNDER THE FOLLOWING CIRCUMSTANCES:

A. ASSIGNED TO UNITS PERFORMING DRILLS AND RECEIVING COMPENSATION OF 1/30TH OF THE BASIC PAY FOR EACH DRILL AUTHORIZED AND ATTENDED?

B. IF THE ANSWER TO A IS IN THE NEGATIVE WOULD THE ANSWER BE THE SAME IF MEMBER PERFORMED AND WAS ENTITLED TO PAY FOR DRILL ATTENDED ON 31 MAY 1958?

C. IS ORDERED OR CALLED TO ACTIVE DUTY FOR TRAINING, WITH PAY, AND IS PERFORMING SUCH TRAINING ON 31 MAY 1958?

D. IF THE ANSWER TO C IS IN THE AFFIRMATIVE WOULD THE ANSWER BE THE SAME IF HE WAS ORDERED TO ACTIVE DUTY FOR TRAINING ON OR AFTER 1 JUNE 1958?

E. IF ANSWER TO C OR D IS IN THE AFFIRMATIVE WOULD SAVED PAY CONTINUE UPON RELEASE FROM ACTIVE DUTY FOR TRAINING AND REVERSION OF MEMBER TO DRILL STATUS?

F. MEMBER SERVING ON ACTIVE DUTY ON 31 MAY 1958, AND IS COVERED BY SAVED PAY PROVISION. WOULD SUCH MEMBER REMAIN IN A SAVED PAY STATUS UPON RELEASE FROM ACTIVE DUTY AND REVERSION TO DRILL STATUS?

SECTION 10 OF THE ACT OF MAY 20, 1958, 72 STAT. 130, EFFECTIVE JUNE 1, 1958, 37 U.S.C. 232 NOTE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 10. THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---

(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.

SECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 301, PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, THE NATIONAL GUARD AND RESERVE PERSONNEL THERE MENTIONED "SHALL BE ENTITLED 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, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY.' UNDER SUCH PROVISIONS OF LAW, THE RIGHT OF A MEMBER OF A RESERVE COMPONENT TO COMPENSATION FOR EACH DRILL PERFORMED BY HIM ON AND AFTER JUNE 1, 1958, IS DEPENDENT ON THE RATE OF BASIC PAY HE WOULD BE ENTITLED TO RECEIVE IF HE WERE SERVING IN AN ACTIVE DUTY STATUS ENTITLING HIM TO BASIC PAY AT THAT TIME. THE EXISTENCE OF A SAVED-PAY STATUS AT THAT TIME WOULD ENTITLE HIM TO COMPENSATION FOR EACH DRILL AT ONE-THIRTIETH OF THE RATE OF HIS SAVED PAY. IT IS BELIEVED THAT ATTENDANCE AT A DRILL ON MAY 31, 1958, IS NOT THE DETERMINING FACTOR IN DECIDING WHETHER A MEMBER OF A RESERVE COMPONENT IS ENTITLED TO SAVED PAY FOR DRILLS PERFORMED ON AND AFTER JUNE 1, 1958.

SECTION 10 OF THE ACT OF MAY 20, 1958, SAVES TO A "MEMBER" THE BASIC PAY TO WHICH HE WAS ,ENTITLED" ON MAY 31, 1958. SINCE ALL MEMBERS OF THE UNIFORMED SERVICES, INCLUDING MEMBERS OF RESERVE COMPONENTS, ARE ENTITLED TO BASIC PAY WHEN ON ACTIVE DUTY OR WHEN PARTICIPATING IN FULL TIME TRAINING DUTY WITH PAY OR OTHER FULL-TIME DUTY (SECTION 201 (D) OF THE CAREER COMPENSATION ACT, AS AMENDED, 37 U.S.C. 232 (D) (, IT APPEARS CLEAR THAT A MEMBER OF A RESERVE COMPONENT IS COVERED BY THE SAVED PAY PROVISION OF SECTION 10 OF THE ACT OF MAY 20, 1958, IN THE EVENT HE WAS "ENTITLED" TO BASIC PAY ON MAY 31, 1958.

LIKE MANY OTHER WORDS IN THE ENGLISH LANGUAGE, THE WORD "ENTITLED" HAS VARIOUS SHADES OF MEANING AND IT HAS BEEN INTERPRETED DIFFERENTLY BY THE COURTS ACCORDING TO THE CIRCUMSTANCES AND CONTEXT IN WHICH IT WAS USED AND THE INTENT OF THE PERSONS USING IT. SEE CASES CITED IN VOLUME 14A, WORDS AND PHRASES, PAGES 388-392. IT HAS BEEN HELD THAT A PERSON CAN BE SAID TO BE "ENTITLED" TO CERTAIN RETIREMENT PAY BENEFITS PROVIDED BY STATUTE EVEN THOUGH HE HAS NOT YET MET ALL THE ELIGIBILITY REQUIREMENTS FOR PAYMENT OF SUCH BENEFITS AND IT WAS CONCLUDED, IN EFFECT, THAT IF HE IS IN THE CLASS OF PERSONS WHO MAY QUALIFY FOR SUCH BENEFITS IN THE FUTURE, HE IS PRESENTLY "ENTITLED" TO THOSE BENEFITS WITHIN THE MEANING OF THAT WORD AS USED IN THE STATUTES INVOLVED. SEE MORRISSEY V. NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM, 84 N.E.2D 627, AND LITCHFIELD V. RETIREMENT BOARD OF MIDDLESEX COUNTY, 21 N.E.2D 973.

WE TAKE THE VIEW THAT IT WOULD NOT BE PROPER TO IMPUTE TO THE CONGRESS AN INTENT TO REDUCE THE RATE OF PAY OF AN ACTIVE MEMBER OF A RESERVE COMPONENT WHO WAS NOT ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING ON MAY 31, 1958 (FOR SUBSEQUENT PERIODS OF ACTIVE DUTY) AND SAVE THE PAY OF ANOTHER SUCH MEMBER WHO HAPPENED TO BE IN AN ACTIVE DUTY PAY STATUS ON THAT DATE. CLEARLY, EACH WAS A ,MEMBER" ON THAT DATE AND HAD A RATE OF PAY APPLICABLE TO HIS GRADE AND LENGTH OF SERVICE ON THAT DATE AND, WE BELIEVE, THAT THE CONGRESS INTENDED THAT BOTH SHOULD BE ENTITLED TO THE SAME SAVED PAY BENEFITS. THE STATEMENT APPEARS ON PAGE 5907 OF THE HEARINGS ON H.R. 11470--- LATER ENACTED INTO LAW AS THE ACT OF MAY 20, 1958--- BEFORE THE COMMITTEE ON ARMED SERVICES OF THE HOUSE OF REPRESENTATIVES HELD ON MARCH 20, 1958, THAT "THIS PAY PROPOSAL WILL NOT CUT ANYBODY'S PAY. THERE IS A SAVED-PAY PROVISION IN THIS PROPOSAL.' ALL ACTIVE MEMBERS OF RESERVE COMPONENTS WERE ENTITLED TO BASIC PAY AT THE RATES PRESCRIBED IN THE PROVISIONS OF LAW IN EFFECT ON MAY 31, 1958, FOR ANY ACTIVE DUTY THEY MIGHT HAVE BEEN REQUIRED TO PERFORM ON THAT DATE AND IT IS BELIEVED THAT THE WORD ,ENTITLED" IN THE 1958 ACT WAS INTENDED TO INCLUDE SUCH RESERVISTS WHO, IN THAT SENSE, WERE ENTITLED TO BASIC PAY ON THAT DATE. HENCE, IT IS CONCLUDED THAT SUCH PAY IS SAVED TO THEM FOR ANY ACTIVE DUTY THEY MAY PERFORM AFTER THAT DATE WHILE THEY CONTINUE TO BE MEMBERS OF RESERVE COMPONENTS OF THE ARMED SERVICES. THE QUESTIONS ARE ANSWERED ACCORDINGLY.

IN REACHING THE FOREGOING CONCLUSIONS, WE HAVE NOT BEEN UNMINDFUL OF THE STATEMENTS APPEARING ON PAGES 24 AND 20 OF THE SENATE AND HOUSE OF REPRESENTATIVES COMMITTEE REPORTS, RESPECTIVELY, ON THE THEN PROPOSED LEGISLATION, AS FOLLOWS:

SECTION 10 IS A SAVINGS CLAUSE WHICH PROVIDES THAT NO PERSON, ACTIVE OR RETIRED, IN ANY OF THE UNIFORMED SERVICES OR HIS SURVIVOR SHALL SUFFER BY REASON OF THE ENACTMENT OF THIS BILL ANY REDUCTION IN BASIC OR RETIRED PAY TO WHICH HE WAS ENTITLED UPON THE DAY BEFORE THE EFFECTIVE DAY OF THE BILL.

A SAVED PAY PROVISION, WHICH IS COMMON TO ALL PAY LEGISLATION, IS CONTAINED IN THE PROPOSED LEGISLATION TO TAKE CARE OF THE 1 PERCENT OF THE TOTAL PERSONNEL ON ACTIVE DUTY WHO WOULD RECEIVE A PAY CUT WITHOUT THIS PROVISION.

SECTION 212 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 485, NOW CONTAINED IN 10 U.S.C. 267, 70A STAT. 12, PROVIDED THAT EACH MEMBER OF THE RESERVE COMPONENTS "SHALL BE IN AN ACTIVE, INACTIVE, OR RETIRED STATUS.' IT APPEARS REASONABLY CLEAR THAT UNDER SUCH STATUTORY PROVISION, A MEMBER OF A RESERVE COMPONENT COULD HAVE BEEN IN AN ACTIVE STATUS ON MAY 31, 1958, WHETHER OR NOT HE WAS PERFORMING ACTIVE DUTY AT THAT TIME AND THE STATEMENT IN THE SENATE REPORT APPEARS SUFFICIENTLY COMPREHENSIVE TO INCLUDE ALL RESERVISTS IN AN ACTIVE OR RETIRED STATUS. WHILE THE STATEMENT IN THE HOUSE REPORT REFERS TO PERSONNEL ON ACTIVE DUTY, THAT STATEMENT COULD NOT HAVE BEEN INTENDED AS AN ALL INCLUSIVE DESCRIPTION OF THE PERSONS COVERED BY SECTION 10 (1) OF THE 1958 ACT, 37 U.S.C. 232 NOTE, SINCE IT MAKES NO REFERENCE TO RETIRED MEMBERS OR FORMER MEMBERS WHO ARE ENTITLED TO SAVED RETIRED PAY BENEFITS UNDER THAT ACT. WHILE PERSONS DRAWING ACTIVE-DUTY PAY AND ALLOWANCES ON MAY 31, 1958, PRESUMABLY CONSTITUTE MOST OF THOSE WHO COULD BE ENTITLED TO SAVED PAY, IN THE CIRCUMSTANCES THE STATEMENT IN THE HOUSE REPORT DOES NOT APPEAR TO FURNISH A SOUND BASIS FOR CONCLUDING THAT ACTIVE RESERVISTS WHO WERE NOT ON ACTIVE DUTY ON THAT DATE ARE NOT ALSO COVERED BY THE SAVED PAY PROVISION OF THAT ACT. COMPARE 30 COMP. GEN. 114. ANY OTHER VIEW, OF COURSE, WOULD IMPUTE TO THE CONGRESS AN INTENTION TO TREAT MEMBERS DIFFERENTLY BASED UPON THE ACCIDENTAL CIRCUMSTANCE AS TO WHETHER THEY WERE SERVING ON ACTIVE DUTY ON MAY 31, 1958. IN GENERAL, THE TREND OF LEGISLATION IN RECENT YEARS HAS BEEN TOWARD A UNIFORMITY OF RIGHTS AND BENEFITS OF MEMBERS OF ALL THE COMPONENTS AND OF ALL OF THE BRANCHES OF THE ARMED SERVICES. THE CONCLUSIONS WE HAVE REACHED APPEAR TO ACCORD WITH THAT LEGISLATIVE POLICY.