B-137016, SEPTEMBER 29, 1958, 38 COMP. GEN. 251

B-137016: Sep 29, 1958

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TRAINING DUTY PERFORMED BY MEDICAL AND DENTAL OFFICERS WHO ARE OTHERWISE QUALIFIED FOR SPECIAL PAY UNDER SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949. WHEN THE DEFINITION OF ACTIVE DUTY WAS CHANGED TO INCLUDE TRAINING DUTY BY THE ENACTMENT INTO POSITIVE LAW OF TITLE 10 OF THE U.S.C. 1958: REFERENCE IS MADE TO LETTER OF AUGUST 2. REQUESTING A DECISION ON TWO QUESTIONS RELATING TO THE SERVICE WHICH MAY BE COUNTED FOR THE PURPOSE OF DETERMINING THE RATE OF SPECIAL PAY TO WHICH CERTAIN MEDICAL AND DENTAL OFFICERS ARE ENTITLED UNDER THE PROVISIONS OF SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949. THE QUESTIONS ARE SET FORTH IN COMMITTEE ACTION NO. 225 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE.

B-137016, SEPTEMBER 29, 1958, 38 COMP. GEN. 251

MILITARY PERSONNEL - MEDICAL AND DENTAL OFFICERS - TRAINING DUTY - EFFECTIVE DATE OF TITLES OF THE U.S.C. ENACTED INTO POSITIVE LAW THE SUBSTANTIVE CHANGE IN THE DEFINITION OF ACTIVE DUTY IN 10 U.S.C. 101 (22) FROM THE DERIVATIVE STATUTES WHICH EXCLUDED ACTIVE DUTY FOR TRAINING, AND THE ABSENCE OF ANY CLEAR AND EXPLICIT CONGRESSIONAL INTENTION THAT 10 U.S.C. 101 (22), AS ENACTED INTO POSITIVE LAW BY THE ACT OF AUGUST 10, 1956, HAS RETROACTIVE APPLICATION PRECLUDES THE APPLICATION OF THE NEW DEFINITION PRIOR TO AUGUST 10, 1956. TRAINING DUTY PERFORMED BY MEDICAL AND DENTAL OFFICERS WHO ARE OTHERWISE QUALIFIED FOR SPECIAL PAY UNDER SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, AFTER AUGUST 9, 1956, WHEN THE DEFINITION OF ACTIVE DUTY WAS CHANGED TO INCLUDE TRAINING DUTY BY THE ENACTMENT INTO POSITIVE LAW OF TITLE 10 OF THE U.S.C. BY THE ACT OF AUGUST 10, 1956, MAY BE INCLUDED IN THE COMPUTATION OF LENGTH OF ACTIVE SERVICE IN DETERMINATION OF THE RATE OF SPECIAL PAY.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 29, 1958:

REFERENCE IS MADE TO LETTER OF AUGUST 2, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON TWO QUESTIONS RELATING TO THE SERVICE WHICH MAY BE COUNTED FOR THE PURPOSE OF DETERMINING THE RATE OF SPECIAL PAY TO WHICH CERTAIN MEDICAL AND DENTAL OFFICERS ARE ENTITLED UNDER THE PROVISIONS OF SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 234. THE QUESTIONS ARE SET FORTH IN COMMITTEE ACTION NO. 225 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY ACTIVE DUTY FOR TRAINING PERFORMED PRIOR TO AUGUST 10, 1956, THE DATE OF ENACTMENT OF PUBLIC LAW 1028, 84TH CONGRESS, BE INCLUDED IN THE COMPUTATION OF THE LENGTH OF ACTIVE SERVICE AS A MEDICAL OR DENTAL OFFICER?

2. MAY A RESERVE MEDICAL OR DENTAL OFFICER WHO HAS PERFORMED ACTIVE DUTY UNDER AN ORDER TO EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE, BETWEEN 1 SEPTEMBER 1947 AND 18 OCTOBER 1957 (DATE OF 37 COMP. GEN. 264), AND WHO SUBSEQUENT TO COMPLETION OF THAT TOUR OF ACTIVE DUTY HAS PERFORMED ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING FOR LESS THAN A YEAR, BE ENTITLED TO PAYMENT OF SPECIAL PAY FOR SUCH SUBSEQUENT DUTY IF SUCH DUTY IS PERFORMED:

A. BETWEEN 1 SEPTEMBER 1947 AND 10 AUGUST 1956?

B. BETWEEN 9 AUGUST 1956 AND 18 OCTOBER 1957?

SECTION 203 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 234 (A), SETS FORTH THE CLASSES OF OFFICERS WHO ARE ENTITLED TO THE SPECIAL PAY PROVIDED FOR PHYSICIANS AND DENTISTS. CLAUSES 1 TO 3 RELATE TO CERTAIN OFFICERS OF THE REGULAR SERVICES. CLAUSE 4 MEDICAL AND DENTAL OFFICERS OF THE VARIOUS RESERVE COMPONENTS OF THE UNIFORMED SERVICES "CALLED OR ORDERED TO EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER" BETWEEN SEPTEMBER 1, 1947, AND JULY 1, 1959. CLAUSES 5 AND 6 RELATE TO CERTAIN GENERAL OFFICERS.

SECTION 5 OF THE ACT OF APRIL 30, 1956, 73 STAT. 122, AMENDED SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED 37 U.S.C. 234 (B), TO AUTHORIZE THE PAYMENT OF SPECIAL PAY AT THE RATES OF $150, $200, AND $250 PER MONTH FOR MEDICAL AND DENTAL OFFICERS IN ANY OF THE DESCRIBED CLASSES WHO HAVE COMPLETED "ACTIVE SERVICE" OF AT LEAST TWO, SIX, AND TEN YEARS, RESPECTIVELY, IN A CATEGORY COVERED BY SECTION 203 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AND AT THE RATE OF $100 PER MONTH FOR THOSE OFFICERS WHO HAVE NOT COMPLETED TWO YEARS OF SUCH SERVICE.

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 1949 ACT, AS AMENDED, DOES NOT INCLUDE ACTIVE DUTY FOR TRAINING. AS POINTED OUT IN OUR DECISION OF OCTOBER 18, 1957, 37 COMP. GEN. 264, 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). ALSO, IT WAS POINTED OUT IN THE LATTER DECISION THAT SINCE SECTION 101 OF THE 1952 ACT, 50 U.S.C. 901, WAS REPEALED BY SECTION 53 OF PUBLIC LAW 1028, 84TH CONGRESS, 73A STAT. 641, 682, APPROVED AUGUST 10, 1956, AND THAT 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 SUCH DUTY SHOULD NOT NOW BE REGARDED AS "ACTIVE SERVICE" WITHIN THE MEANING OF SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED.

THE QUESTION PRESENTED IS WHETHER ACTIVE DUTY FOR TRAINING MAY BE SO REGARDED PRIOR TO AUGUST 10, 1956, THAT IS, WHETHER THE PROVISIONS OF 10 U.S.C. 101 (22), AS ENACTED INTO POSITIVE LAW BY THE ACT OF AUGUST 10, 1956, PUBLIC LAW 1028, 84TH CONGRESS, MAY BE CONSTRUED TO APPLY RETROACTIVELY OR ONLY PROSPECTIVELY IN SUCH CASES.

IN CONSTRUING A STATUTE, THE INTENT OF THE CONGRESS IS PARAMOUNT. WITH RESPECT TO A CODIFICATION STATUTE, THE JUDICIAL VIEW APPEARS TO BE THAT THE LAW IS INTENDED TO REMAIN SUBSTANTIALLY UNCHANGED UNLESS A CONTRARY INTENTION IS SHOWN. STEWART V. KAHN, 11 WALL, 493, 502; UNITED STATES V. LEBRIS, 121 U.S. 278, 280, AND UNITED STATES V. RYDER, 110 U.S. 729, 739- 740. HOWEVER, SEE MCDONALD V. HOVEY, 110 U.S. 619, 629, WHEREIN IT IS STATED IN SUBSTANCE, THAT UPON A REVISION OF STATUTES A DIFFERENT INTERPRETATION IS NOT TO BE GIVEN TO THEM WITHOUT SOME SUBSTANTIAL CHANGE- -- "SOME CHANGE OTHER THAN WHAT MAY HAVE BEEN NECESSARY TO ABBREVIATE THE FORM OF THE LAW.' SEE, ALSO 50 AMERICAN JURISPRUDENCE, STATUTES, SECTION 446, AND UNITED STATES V. NATIONAL CITY LINES, INC., 337 U.S. 78.

CONCERNING 10 U.S.C. 101 (22), IT APPEARS THAT THE DEFINITION OF "ACTIVE DUTY" WAS BASED ON THE DEFINITION OF "ACTIVE FEDERAL SERVICE" IN THE SOURCE STATUTE (SECTION 306 (D) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1090, 10 U.S.C. 1036E (D) (, SINCE IT WAS BELIEVED TO BE CLOSER TO THE GENERAL USAGE THAN THE DEFINITION IN SECTION 101 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 901 (B),"WHICH EXCLUDES ACTIVE DUTY FOR TRAINING FROM THE GENERAL CONCEPT OF ACTIVE DUTY.' SEE EXPLANATION OF SUCH ACTION APPEARING ON PAGE 23, HOUSE REPORT NO. 970, 84TH CONGRESS, ST SESSION. HENCE, IT SEEMS APPARENT THAT THE NEW STATUTORY LANGUAGE DOES REPRESENT A SUBSTANTIAL CHANGE FROM THAT OF THE PRIOR STATUTES INVOLVED--- "OTHER THAN WHAT MAY HAVE BEEN NECESSARY TO ABBREVIATE" THE OLD LAWS WHICH IT SUPERSEDED.

ALSO, WHILE SECTION 53 OF PUBLIC LAW 1028 PROVIDED FOR THE REPEAL OF THE REFERRED-TO STATUTES (INCLUDING SECTION 101 OF THE ARMED FORCES RESERVE ACT OF 1952), IT LIMITED THE REPEAL AND, IN EFFECT, CONTINUED THE REPEALED STATUTES IN FORCE "WITH RESPECT TO RIGHTS AND DUTIES THAT MATURED, PENALTIES THAT WERE INCURRED, AND PROCEEDINGS THAT WERE BEGUN" PRIOR TO AUGUST 10, 1956. IN THE CIRCUMSTANCES IT APPEARS THAT THE CLEAR AND EXPLICIT INTENTION REQUIRED IN ORDER THAT A STATUTORY PROVISION BE RETROACTIVE IS NOT PRESENT WITH RESPECT TO SECTION 101 (22) OF PUBLIC LAW 1028. ACCORDINGLY, THE OFFICERS CONCERNED BECAME ELIGIBLE FOR THE BENEFITS THEREOF ON THE EFFECTIVE DATE OF THE ACT, AUGUST 10, 1956. COURSE, THE RESERVE MEDICAL OR DENTAL OFFICER MUST FIRST QUALIFY TO RECEIVE THE SPECIAL PAY AUTHORIZED BY THE 1949 ACT, AS AMENDED, BY BEING CALLED OR ORDERED TO EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER BETWEEN SEPTEMBER 1, 1947, AND JULY 1, 1959. THEREAFTER, PERIODS OF ACTIVE DUTY FOR TRAINING PERFORMED SUBSEQUENT TO AUGUST 9, 1956, MAY BE INCLUDED IN THE COMPUTATION OF HIS LENGTH OF "ACTIVE SERVICE" AS A MEDICAL OR DENTAL OFFICER IN ORDER TO DETERMINE HIS RATE OF SPECIAL PAY AUTHORIZED IN 37 U.S.C. 234 (B). YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.