B-138246, APR 23, 1959

B-138246, APR 23, 1959

PRECIS-UNAVAILABLE

SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF DECEMBER 18, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), IN WHICH DECISION IS REQUESTED RELATIVE TO THE ENTITLEMENT OF CERTAIN MEMBERS OF THE UNIFORMED SERVICES TO UNIFORM ALLOWANCES UNDER SECTION 243(B) AND (C) OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, 66 STAT. 493, UNDER CIRCUMSTANCES DISCLOSED IN THREE QUESTIONS PRESENTED. IT IS STATED THAT THE REQUEST WAS ASSIGNED DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. 385.

SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492 - REENACTED AS SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 255, BY SECTION 20(D) OF THE ACT OF AUGUST 10, 1956, 7OA STAT. 628 - PROVIDED IN PERTINENT PART THAT:

"(B) AN OFFICER OF A RESERVE COMPONENT SHALL BE ENTITLED TO AN ADDITIONAL SUM OF NOT TO EXCEED $50 FOR REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS AND EQUIPMENT, UPON COMPLETION OF EACH PERIOD AFTER THE DATE OF ENACTMENT OF THIS ACT OF FOUR YEARS OF SATISFACTORY FEDERAL SERVICE AS PRESCRIBED IN TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED, PERFORMED IN AN ACTIVE STATUS IN A RESERVE COMPONENT AND WHICH SHALL INCLUDE AT LEAST TWENTY- EIGHT DAYS OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING: PROVIDED, THAT ANY PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING FOR A PERIOD IN EXCESS OF NINETY DAYS SHALL BE EXCLUDED IN DETERMINING THE PERIOD OF FOUR YEARS REQUIRED FOR ELIGIBILITY UNDER THIS SUBSECTION: PROVIDED FURTHER, THAT A PERSON WHO RECEIVES OR HAS HERETOFORE RECEIVED A UNIFORM REIMBURSEMENT OR ALLOWANCE AS AN OFFICER SHALL NOT BE ENTITLED TO THE REIMBURSEMENT PROVIDED IN THIS SUBSECTION UNTIL THE EXPIRATION OF NOT LESS THAN FOUR YEARS FROM THE DATE OF ENTITLEMENT TO THE LAST REIMBURSEMENT OR ALLOWANCE: AND PROVIDED FURTHER, THAT, UNTIL FOUR YEARS AFTER THE DATE OF ENACTMENT HEREOF, AN OFFICER MAY ELECT TO RECEIVE THE UNIFORM REIMBURSEMENT NOT TO EXCEED $50 TO WHICH HE MAY BE ENTITLED UNDER EXISTING REGULATIONS ISSUED PURSUANT TO SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR SECTION 11 OF THE ACT OF AUGUST 4, 1942, AS AMENDED.

"(C) AN OFFICER OF A RESERVE COMPONENT OR OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT OR OF THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT ENTERING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING ON OR AFTER JUNE 25, 1950, SHALL BE ENTITLED, FOR EACH TIME OF SUCH ENTRY OR REENTRY ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN NINETY DAYS' DURATION TO A FURTHER SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY: ***"

THE QUESTIONS PRESENTED ARE QUOTED AND CONSIDERED IN ORDER AS FOLLOWS:

QUESTION 1

"1. WHERE AN OFFICER REPORTED FOR ACTIVE DUTY ON OR AFTER JUNE 25, 1950, AND PRIOR TO THE EFFECTIVE DATE OF THE 1952 ACT, AND REMAINED ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 90 DAYS, WHAT IS THE DATE OF ENTITLEMENT TO THE $100 ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE UNDER SECTION 243(C) OF THE ARMED FORCES RESERVE ACT OF 1952:

"(A) THE EFFECTIVE DATE OF THE 1952 ACT, I.E., JULY 9, 1952?

"(B) THE DATE ON WHICH THE OFFICER REPORTED FOR ACTIVE DUTY?"

WHILE SECTION 243(C), SUPRA, AUTHORIZING PAYMENT OF A UNIFORM ALLOWANCE TO CERTAIN OFFICERS ENTERING ON ACTIVE DUTY ON OR AFTER JUNE 25, 1950, TECHNICALLY IS NOT RETROACTIVE IN THAT IT DOES NOT IN EXPRESS TERMS PROVIDE THAT IT SHALL BE EFFECTIVE FROM JUNE 25, 1950, OR RETROACTIVE TO THAT DATE, THE PRACTICAL EFFECT OF THE LANGUAGE USED IS THE SAME AS THOUGH THE SUBSECTION HAD BEEN EXPRESSLY MADE RETROACTIVE TO JUNE 25, 1950. SEE 32 COMP. GEN. 276. THE LEGISLATIVE HISTORY OF THE ARMED FORCES RESERVE ACT OF 1952 BEARS THIS OUT IN REFERRING TO THE SUBJECT $100 ADDITIONAL ACTIVE-DUTY ALLOWANCE AS BEING "RETROACTIVE TO PERIODS 'ON OR AFTER JUNE 27, 1950.'" IN THIS RESPECT, SEE PAGE 5, SENATE REPORT NO. 1795, ON H.R. 5426, 82D CONGRESS, 2D SESSION, WHICH BECAME THE 1952 ACT. ACCORDINGLY, IF OTHERWISE ENTITLED, THE DATE OF ENTITLEMENT TO THE $100 ALLOWANCE WAS THE DATE THE OFFICER REPORTED FOR ACTIVE DUTY ON OR AFTER JUNE 25, 1950.

QUESTION 2

"2. WHERE AN OFFICER REPORTED FOR ACTIVE DUTY ON OR AFTER JUNE 25, 1950, AND PRIOR TO EFFECTIVE DATE OF 1952 ACT, AND BECAME ENTITLED TO A $100 ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE UNDER SECTION 243(C) OF THE 1952 ACT, AND ACTUALLY RECEIVED SAID PAYMENT, MAY HE, PRIOR TO JULY 9, 1956, INVOKE THE SAVINGS PROVISIONS OF SECTION 243(B) OF THE 1952 ACT AND RECEIVE A $50 UNIFORM MAINTENANCE ALLOWANCE UNDER THE 1938 ACT FOUR (4) YEARS SUBSEQUENT TO DATE OF ENTITLEMENT TO THE $100 PAYMENT UNDER THE 1952 ACT?

THE SAVINGS PROVISIONS CONTAINED IN THE LAST PROVISO OF SUBSECTION 243(B) OF THE ARMED FORCES RESERVE ACT OF 1952 ARE IN ACCORD WITH THE GENERAL LEGISLATIVE INTENT EXPRESSED IN SECTION 810 OF THE ACT. SECTION 810 PROVIDED THAT "ANY RIGHT ACCRUED OR ANY PROCEEDING COMMENCED BEFORE THIS ACT TAKES EFFECT IS NOT AFFECTED BY THE PROVISIONS OF THIS ACT, BUT ALL PROCEDURE THEREAFTER TAKEN SHALL CONFORM TO THE PROVISIONS OF THIS ACT." THE RIGHT TO A $50 UNIFORM MAINTENANCE ALLOWANCE FOR AN OFFICER REPORTING AS SET FORTH IN THE SUBJECT QUESTION, ON OR AFTER JUNE 25, 1950, AND PRIOR TO THE EFFECTIVE DATE OF THE 1952 ACT, BEGAN TO ACCRUE BEFORE JULY 9, 1952, THE DATE OF ENACTMENT OF THE ARMED FORCES RESERVE ACT OF 1952. THE LAST PROVISO OF SECTION 243(B) SAVED TO SUCH AN OFFICER, IF HE SO ELECTED, THE RIGHT TO RECEIVE THE $50 UNIFORM MAINTENANCE ALLOWANCE HE OTHERWISE WOULD HAVE BEEN ENTITLED TO UNDER ADMINISTRATIVE REGULATIONS AS THERE PROVIDED, ISSUED PURSUANT TO THE 1938 ACT OR THE 1942 ACT, ASSUMING, OF COURSE, THAT THE REQUISITE FOUR YEARS HAD ELAPSED SINCE THE DATE OF HIS ENTITLEMENT TO THE $100 ADDITIONAL ACTIVE DUTY ALLOWANCE UNDER THE 1952 ACT. SEE ANSWER TO QUESTION 11, 32 COMP. GEN. 255. THE FACT THAT SUCH AN OFFICER RECEIVED THE $100 ADDITIONAL ALLOWANCE AUTHORIZED BY SUBSECTION 243(C) CONSTITUTED NO BAR TO HIS INVOKING THE LAST PROVISO OF SUBSECTION 243(B). YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3

"3. WHERE AN OFFICER REPORTED FOR ACTIVE DUTY ON OR AFTER JUNE 25, 1950, AND PRIOR TO THE EFFECTIVE DATE OF THE 1952 ACT, AND WAS ENTITLED TO A $100 ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE UNDER SECTION 243(C) OF THE 1952 ACT, BY VIRTUE OF HAVING REPORTED FOR ACTIVE DUTY IN EXCESS OF 90 DAYS, MAY ENTITLEMENT TO THE $50 UNIFORM MAINENANCE ALLOWANCE UNDER SECTION 243(B) BE COMPUTED, AT THE ELECTION OF THE INDIVIDUAL OFFICER, UNDER PROVISIONS OF 1938 ACT BY INCLUDING AS SATISFACTORY SERVICE, DAYS OF ACTIVE DUTY AFTER REPORTING FOR DUTY ON OR AFTER JUNE 25, 1950?"

THE DUTY WHICH MUST BE EXCLUDED FROM COMPUTATION UNDER THE FIRST PROVISO OF SUBSECTION 243(B) IS SPECIFIED AS CONSISTING OF PERIODS OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING IN EXCESS OF 90 DAYS. SUCH RESTRICTIVE PROVISO, HOWEVER, RELATES TO THE SERVICE REQUIRED TO BECOME ELIGIBLE TO RECEIVE THE $50 ALLOWANCE AUTHORIZED BY THE FIRST PART OF THAT SUBSECTION AND HAS NO APPLICATION TO AN OFFICER WHO ELECTED UNDER THE LAST PROVISO THEREOF TO RECEIVE THE ALLOWANCE TO WHICH HE WAS ENTITLED UNDER THE 1938 ACT. HIS RIGHT TO AN ALLOWANCE WAS FOR DETERMINATION UNDER REGULATIONS EXISTING ON JULY 9, 1952, ISSUED PURSUANT TO SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, NO REQUIREMENT AS TO THE EXCLUSION OF PERIODS OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING IN EXCESS OF 90 DAYS BEING INVOLVED. COMPARE 33 COMP. GEN. 242, 250, ANSWER TO QUESTION 6. ACCORDINGLY, UNDER THE CONDITIONS ASSUMED, YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE.