B-136913, NOVEMBER 7, 1958, 38 COMP. GEN. 352

B-136913: Nov 7, 1958

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HAVE SUCH LOST PERIODS EXCLUDED FROM DETERMINATIONS OF CREDITABLE SERVICE FOR BASIC PAY. 1958: REFERENCE IS MADE TO LETTER OF JULY 22. THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET OUT IN COMMITTEE ACTION NO. 209 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE. D. ABSENCE BECAUSE OF CONFINEMENT FOR MORE THAN ONE DAY WHILE AWAITING TRIAL OR DISPOSITION OF THE CASE AND THE MEMBER IS RELEASED WITHOUT TRIAL OR ACQUITTED? 2. WOULD THE ANSWER TO QUESTIONS C AND D ABOVE BE THE SAME IF CONFINEMENT IS EFFECTED UNDER PROVISIONS OF U.C.M.J. WOULD THE ANSWER TO QUESTIONS 1 AND 2 BE THE SAME IN THOSE CASES WHERE THE ABSENCE IS ADMINISTRATIVELY EXCUSED AS UNAVOIDABLE? 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 UPON COMPLETION OF SUCH YEARS OF SERVICE.

B-136913, NOVEMBER 7, 1958, 38 COMP. GEN. 352

MILITARY PERSONNEL - PAY - SERVICE CREDITS - ABSENCES DUE TO MISCONDUCT, ETC. - OFFICERS COMMISSIONED AND WARRANT OFFICERS WHO LOSE TIME FROM ACTIVE DUTY BECAUSE OF SICKNESS DUE TO THEIR OWN MISCONDUCT, ABSENCE WITHOUT LEAVE OR ABSENCE BECAUSE OF CONFINEMENT WHILE AWAITING TRIAL, AS DISTINGUISHED FROM ENLISTED MEMBERS ABSENT UNDER SIMILAR CIRCUMSTANCES, MAY NOT, IN THE ABSENCE OF ADDITIONAL LEGISLATION, HAVE SUCH LOST PERIODS EXCLUDED FROM DETERMINATIONS OF CREDITABLE SERVICE FOR BASIC PAY, RETIREMENT AND OTHER PURPOSES.

TO THE SECRETARY OF DEFENSE, NOVEMBER 7, 1958:

REFERENCE IS MADE TO LETTER OF JULY 22, 1958, WITH ENCLOSURES FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING OUR DECISION AS TO WHETHER PERIODS OF UNAUTHORIZED ABSENCE IN EXCESS OF ONE DAY MAY BE INCLUDED IN DETERMINING CREDITABLE SERVICE OF COMMISSIONED OFFICERS, COMMISSIONED WARRANT OFFICERS, AND WARRANT OFFICERS FOR BASIC PAY, RETIREMENT AND OTHER PURPOSES.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET OUT IN COMMITTEE ACTION NO. 209 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY COMMISSIONED OFFICERS, COMMISSIONED WARRANT OFFICERS, AND WARRANT OFFICERS, IN DETERMINING CREDITABLE SERVICE FOR BASIC PAY, RETIREMENT AND OTHER PURPOSES, INCLUDE THE FOLLOWING PERIODS?

A. ABSENCE FROM HIS REGULAR DUTIES FOR A CONTINUOUS PERIOD OF MORE THAN ONE DAY BECAUSE OF INTEMPERATE USE OF ALCOHOLIC LIQUOR OR HABIT FORMING DRUGS, OR BECAUSE OF DISEASE OR INJURY RESULTING FROM HIS MISCONDUCT?

B. ABSENCE WITHOUT LEAVE IN EXCESS OF ONE DAY OR IN A DESERTION STATUS?

C. ABSENCE BECAUSE OF CONFINEMENT FOR MORE THAN ONE DAY WHILE AWAITING TRIAL AND WHOSE CONVICTION HAS BECOME FINAL?

D. ABSENCE BECAUSE OF CONFINEMENT FOR MORE THAN ONE DAY WHILE AWAITING TRIAL OR DISPOSITION OF THE CASE AND THE MEMBER IS RELEASED WITHOUT TRIAL OR ACQUITTED?

2. WOULD THE ANSWER TO QUESTIONS C AND D ABOVE BE THE SAME IF CONFINEMENT IS EFFECTED UNDER PROVISIONS OF U.C.M.J., ARTICLE 14?

3. WOULD THE ANSWER TO QUESTIONS 1 AND 2 BE THE SAME IN THOSE CASES WHERE THE ABSENCE IS ADMINISTRATIVELY EXCUSED AS UNAVOIDABLE?

SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 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 UPON COMPLETION OF SUCH YEARS OF SERVICE, MEMBERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, AND ENLISTED PERSON IN ANY REGULAR OR RESERVE COMPONENT OF THE UNIFORMED SERVICES, AND FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS, COMMISSIONED WARRANT OFFICERS OR WARRANT OFFICERS IN ANY OF THE REGULAR OR OTHER NAMED COMPONENTS OF THE UNIFORMED SERVICES.

IN 22 COMP. GEN. 759, WE HELD THAT, UNDER THE PROVISIONS OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, 37 U.S.C. 101 (1946 USED.), AUTHORIZING OFFICERS TO COUNT FOR LONGEVITY PAY PURPOSES ,FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED," OFFICERS MAY NOT COUNT TIME LOST, WHILE PREVIOUSLY SERVING AS ENLISTED MEN, ON ACCOUNT OF SICKNESS DUE TO THEIR OWN MISCONDUCT, ABSENCE WITHOUT LEAVE, ABSENCE OVER LEAVE, OR NONPERFORMANCE OF DUTY BECAUSE OF IMPRISONMENT. IN THAT DECISION WE SAID:

* * * LONGEVITY PAY GENERALLY HAS BEEN CONSIDERED AS AN INCREASE GRANTED FOR HONEST AND FAITHFUL SERVICE ON THE BASIS THAT THE SERVICEMAN BY HONEST AND FAITHFUL PERFORMANCE OF HIS DUTIES HAS FITTED HIMSELF BETTER FOR THE PERFORMANCE THEREOF AND HAS MADE HIMSELF MORE VALUABLE TO THE GOVERNMENT. WHILE THE PRESENT STATUTE DOES NOT RESTRICT THE SERVICE WHICH MAY BE COUNTED TO ACTIVE SERVICE BUT PERMITS THE INCLUSION OF PERIODS IN AN INACTIVE STATUS AS A RESERVIST, OR OTHERWISE, WHEN THE MAN WAS SUBJECT TO CALL FOR ACTIVE DUTY AND PRESUMABLY HELD HIMSELF IN READINESS TO SERVE, IT WOULD BE CONTRARY TO THE WHOLE SPIRIT AND PURPOSE OF SUCH PROVISIONS WERE HE TO RECEIVE THE BENEFITS THEREOF BY COUNTING PERIODS WHEN HE WAS NOT READY TO SERVE BECAUSE HE HAD DELIBERATELY ABSENTED HIMSELF FROM DUTY WITHOUT AUTHORITY OR BECAUSE HE WAS PHYSICALLY UNABLE TO PERFORM HIS DUTIES BY REASON OF HIS OWN MISCONDUCT. IN THE ABSENCE OF EXPRESS LANGUAGE CLEARLY AUTHORIZING THE INCLUSION OF PERIODS OF THAT CHARACTER, SUCH AN INTENTION MAY NOT BE IMPUTED TO THE CONGRESS. MOREOVER, IN VIEW OF THE LONG PERIOD OF TIME DURING WHICH THE RULE STATED ABOVE HAS BEEN IN EFFECT WITH REGARD TO ENLISTED MEN, IT MUST BE CONSIDERED THAT CONGRESS WAS COGNIZANT THEREOF, AND IN ENACTING THE PROVISIONS CONTAINED IN SECTION 3 OF THE ACT OF DECEMBER 2, 1942, WITHOUT EXPRESSLY PROVIDING THAT SUCH SERVICE SHOULD BE COUNTED, INTENDED THAT THE ESTABLISHED RULE IN THAT RESPECT WOULD STILL APPLY. * * *

AS THERE INDICATED, THAT DECISION WAS BASED ON THE LONG-STANDING RULE THAT ENLISTED MEN COULD NOT COUNT SUCH SERVICE FOR LONGEVITY PAY PURPOSES. A DIFFERENT RULE, HOWEVER, LONG HAD BEEN FOLLOWED WITH RESPECT TO OFFICER SERVICE. SEE 3 COMP. GEN. 825. PRESUMABLY THE FUNDAMENTAL BASIS FOR THE DIFFERENCE IN RULES WAS THAT THE RELATED ABSENCES WERE BY LAW EXCLUDED IN DETERMINING WHEN AN ENLISTMENT WAS COMPLETED AND THERE WAS NO COMPARABLE STATUTORY PROVISION APPLICABLE TO OFFICERS.

IT APPEARS FROM 7 DIGEST OF OPINIONS OF THE JUDGE ADVOCATES GENERAL OF THE ARMED FORCES, PAY AND ALLOWANCES, SECTION 21.3, THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS VIEWED 22 COMP. GEN. 759, IN CONJUNCTION WITH 36 COMP. GEN. 355, AS SUGGESTING THAT THE RULE NOW IS THE SAME FOR OFFICERS AND ENLISTED MEMBERS. IN THE LATTER DECISION WE STATED THAT FILIPINO MEMBERS OF THE ARMY

* * * 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.

IN NONE OF THOSE DECISIONS, HOWEVER, WAS THERE DIRECTLY INVOLVED THE QUESTION WHETHER ABSENCES OF OFFICERS IN THE CIRCUMSTANCES RELATED IN THE PRESENT QUESTIONS MAY BE CREDITED FOR LONGEVITY PAY OR RETIREMENT PURPOSES. WE AGREE THAT WHAT WAS SAID IN 22 COMP. GEN. 759 LOGICALLY SHOULD BE APPLIED WITH RESPECT TO SERVICE AS AN OFFICER, BUT IT IS OUR VIEW THAT LEGISLATION WOULD BE REQUIRED TO CHANGE THE LONG-STANDING RULE AS TO OFFICER SERVICE. WHILE THE TREND OF LEGISLATION IN RECENT YEARS GENERALLY HAS BEEN TO PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEMBERS OF THE ARMED FORCES, WE DO NOT PERCEIVE IN THE APPLICABLE STATUTES A SUFFICIENT BASIS TO WARRANT A CHANGE IN THE DIFFERENT EXISTING RULES APPLICABLE TO OFFICERS AND ENLISTED MEMBERS IN THE RELATED CIRCUMSTANCES. ADOPTION OF A UNIFORM RULE FOR ALL CLASSES OF SERVICE PERSONNEL WOULD, IN EFFECT, BE LEGISLATING. ACCORDINGLY, WE HOLD THAT UNDER EXISTING LAW OFFICER PERSONNEL MAY BE CREDITED WITH PERIODS OF ABSENCES UNDER THE RELATED CIRCUMSTANCES FOR LONGEVITY AND RETIREMENT PURPOSES, AND ALL THE QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.