B-139855, SEPTEMBER 25, 1959, 39 COMP. GEN. 223

B-139855, SEPTEMBER 25, 1959, 39 COMP. GEN. 223

MILITARY PERSONNEL - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - FIVE YEARS OF SERVICE - TRAINING DUTY THE INCLUSION IN THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22), WHICH WAS ENACTED INTO POSITIVE LAW BY THE ACT OF AUGUST 10, 1956, OF "FULL TIME TRAINING DUTY" REQUIRES THE APPLICATION OF SUCH DEFINITION TO SERVICE PERFORMED BY MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES AFTER SUCH DATE RATHER THAN A MORE RESTRICTIVE DEFINITION IN SECTION 101 (B) OF THE ARMED FORCES RESERVE ACT OF 1952; THEREFORE, A MEMBER OF A RESERVE COMPONENT MAY HAVE PERIODS OF ACTIVE DUTY FOR TRAINING PERFORMED ON OR AFTER AUGUST 190, 1956, CREDITED AS PART OF THE CONTINUOUS ACTIVE DUTY NECESSARY FOR ELIGIBILITY FOR LUMP-SUM READJUSTMENT PAYMENT PRESCRIBED IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, AND, SINCE ACTIVE SERVICE MEANS SERVICE ON ACTIVE DUTY (10 U.S.C. 101 (24) (, HE MAY HAVE SUCH SERVICE INCLUDED FOR USE AS A MULTIPLIER IN COMPUTATION OF THE AMOUNT OF READJUSTMENT PAY. 36 COMP. GEN. 129, MODIFIED. ALTHOUGH ACTIVE DUTY FOR TRAINING PERFORMED ON OR AFTER AUGUST 10, 1956, BY A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES MAY BE CONSIDERED AS ACTIVE DUTY TO DETERMINE ELIGIBILITY FOR, OR THE AMOUNT OF, LUMP-SUM READJUSTMENT PAY UNDER THE ACT OF JULY 9, 1956, SUCH DUTY PERFORMED PRIOR TO AUGUST 10, 1956, MAY NOT BE CONSIDERED AS ACTIVE DUTY FOR THOSE PURPOSES BECAUSE THE CHANGE IN THE DEFINITION OF ACTIVE DUTY TO INCLUDE TRAINING DUTY CONTAINED IN THE ACT OF AUGUST 10, 1956, DOES NOT APPLY RETROACTIVELY.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 25, 1959:

REFERENCE IS MADE TO LETTER OF JUNE 5, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION AS TO WHETHER A MEMBER OF THE RESERVE COMPONENT OF THE ARMED FORCES MAY COUNT 1952 ACT WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 682, 32 U.S.C. 53, AND SINCE 10 U.S.C. 101 (22) ENACTED BY THE LATTER ACT, 70A STAT. 5, 10 U.S.C. 101 (24), DEFINES "ACTIVE DUTY" AS INCLUDING "FULL-TIME TRAINING DUTY," SUCH FULL-TIME TRAINING DUTY MAY NOW BE REGARDED AS "ACTIVE SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. SECTION 101 (24) OF TITLE 10, 70A STAT. 5, DEFINES "ACTIVE SERVICE" AS SERVICE ON ACTIVE DUTY. THE COMMITTEE PRESENTS THESE QUESTIONS TO CLARIFY OUR INTERPRETATION IN 36 COMP. GEN. 129 IN VIEW OF THE APPARENT CONFLICT WITH OUR LATER HOLDING.

IN 36 COMP. GEN. 129, WE CONSIDERED SECTION 265, 50 U.S.C. 1016, AS PART OF THE ARMED FORCES RESERVE ACT OF 1952, THEN IN EFFECT, AND STATED THAT WHILE THE TERM "ACTIVE DUTY" HAS IN COME CONTEXTS BEEN CONSIDERED BROAD ENOUGH TO INCLUDE ACTIVE DUTY FOR TRAINING, IT APPEARS TO HAVE BEEN USED IN A MORE RESTRICTIVE SENSE IN THAT ACT, AS DEFINED IN SECTION 101 (B). FURTHERMORE, SECTION 265 (B) (2), 50 U.S.C. 1016 (B) (2), WHICH BARS PAYMENT TO MEMBERS RELEASED FROM ACTIVE DUTY FOR TRAINING, WAS IN LINE WITH THE RESTRICTIVE DEFINITION CONTAINED IN SECTION 101, AND IN THE SAME MANNER, THE TERM "ACTIVE SERVICE" CONTAINED IN SECTION 265, 10 U.S.C. 101, WHICH IS SYNONYMOUS WITH THE TERM "ACTIVE DUTY," IS ALSO SO RESTRICTIVE. HOWEVER, THE PROVISIONS OF THE ARMED FORCES RESERVE ACT AS ENACTED IN 1952, WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE, WERE REENACTED AS PART OF THE ACT OF AUGUST 10, 1956, AND ARE CONTAINED IN MOST PART IN TITLE 10 AND GENERALLY ARE UNCHANGED IN SUBSTANCE. WE DID POINT OUT IN 37 COMP. GEN. 264 AT PAGE 265, HOWEVER, THAT THE DEFINITION OF "ACTIVE DUTY," AS CONTAINED IN SECTION 101 OF THE ARMED FORCES RESERVE ACT, WAS CHANGED BY THE ACT OF AUGUST 10, 1956, AS PART OF 10 U.S.C. 101 (22) TO INCLUDE FULL- TIME TRAINING DUTY.

HOUSE REPORT NO. 970, DATED JUNE 28, 1955, ON H.R. 7049, 84TH CONGRESS, WHICH SUBSEQUENTLY BECAME THE ACT OF AUGUST 10, 1956, REVISING AND ENACTING INTO LAW TITLES 10 AND 32, UNITED STATES CODE, NOTED THAT CERTAIN LAWS RELATING TO THE SAME SUBJECT WERE NOT UNIFORM AND EXPLAINED THAT IN RESTATING THE LAWS IN THE NEW TITLE, FOR CONSISTENCY AND CLARITY, THE DRAFTSMEN HAVE MADE EVERY EFFORT TO MAKE THE RESULT AN UP-TO-DATE AND UNIFIED WHOLE. TO THIS END, A STANDARD GLOSSARY TERMS WAS ADOPTED (SEE SECTION 101, TITLE 10 AND SECTION 101, TITLE 32). ON PAGE 23 OF THE REPORT, IN DISCUSSING THE DEFINITION OF "ACTIVE DUTY" AS SUBSEQUENTLY CONTAINED IN 10 U.S.C. 101 (22), IT WAS SAID TO BE BASED ON THE DEFINITION OF "ACTIVE FEDERAL SERVICE" CONTAINED IN SECTION 306 (D), TITLE III, PUBLIC LAW 810, 62 STAT. 1090, 10 U.S.C. 1036E (D) 1952 USED., SINCE THAT WAS CONSIDERED TO BE CLOSER TO 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 ALSO TABLE 2A, PAGE 1107, OF THE REPORT WHICH GIVES THE REASON FOR OMISSION OF 50 U.S.C. 901. THE SENATE REPORT 2484 ON H.R. 7049 DATED JULY 9, 1956, CONTAINS SIMILAR EXPLANATIONS.

WITH RESPECT TO SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, 32 U.S.C. 49 (A), WHICH PROVIDES IN PERTINENT PART THAT LAWS EFFECTIVE AFTER MARCH 31, 1955, THAT WERE INCONSISTENT WITH THAT ACT SHALL BE CONSIDERED AS SUPERSEDING IT TO THE EXTENT OF THE INCONSISTENCY, IT HAS BEEN HELD THAT STATUTES ENACTED AT THE SAME SESSION OF CONGRESS SHOULD RECEIVE THE CONSTRUCTION, IF POSSIBLE, WHICH WILL GIVE EFFECT TO EACH. SEE MOSS V. UNITED STATES, 29 APP. D.C. 188; UNITED STATES V. BURNETT, 65 F.2D 195. ALSO, WHERE CONGRESS AMENDS ONE PORTION OF A LAW, LEAVING ANOTHER UNTOUCHED, THE ASSUMPTION IS THAT THE TWO WERE DESIGNED TO FUNCTION AS PARTS OF AN INTEGRATED WHOLE AND THE COURTS SHOULD GIVE EACH AS FULL PLAY AS POSSIBLE. MARKHAM V. CABELL, 326 U.S. 404. THE TEXT OF PUBLIC LAW 676, 84TH CONGRESS, 70 STAT. 517, 50 U.S.C. 1016, STANDING ALONE IS NOT INCONSISTENT WITH THE PROVISIONS IN THE REVISED CODE PERTAINING TO RESERVE PERSONNEL AND, THEREFORE, THE TERMS "ACTIVE DUTY" AND "ACTIVE SERVICE" APPEARING THEREIN SHOULD, SUBSEQUENT TO AUGUST 10, 1956, BE REGARDED AS INCLUDING FULL-TIME TRAINING DUTY. CF. 37 COMP. GEN. 264-265. THE RESTRICTION CONTAINED IN SECTION 265B (2) IS NOT REGARDED AS BEING IN CONFLICT WITH OR INCONSISTENT WITH THAT VIEW.

ACCORDINGLY, IN ANSWER TO THE FIRST QUESTION, UNDER THE PROVISIONS OF THE ACT OF JULY 9, 1956, PUBLIC LAW 676, 84TH CONGRESS, 70 STAT. 517, AND THE ACT OF AUGUST 10, 1956, PUBLIC LAW 1028, 84TH CONGRESS, 70A STAT. 1, 10 U.S.C. 101, A MEMBER OF THE RESERVE COMPONENT OF THE ARMED FORCES MAY, WITH RESPECT TO ACTIVE DUTY FOR TRAINING PERFORMED ON OR AFTER AUGUST 10, 1956, 50 U.S.C. 1016, COUNT PERIODS OF ACTIVE DUTY FOR FULL-TIME TRAINING AS PART OF THE CONTINUOUS ACTIVE DUTY NECESSARY TO DETERMINE ELIGIBILITY FOR LUMP-SUM READJUSTMENT PAY, AND, SINCE "ACTIVE SERVICE" MEANS SERVICE ON ACTIVE DUTY (SEE 10 U.S.C. 101 (24) 70A STAT. 5), HE MAY INCLUDE SUCH SERVICE FOR USE AS A MULTIPLIER.

GENERALLY, LAWS ARE NOT CONSIDERED AS APPLYING TO PAST TRANSACTIONS IN THE ABSENCE OF A CLEAR INDICATION OF LEGISLATIVE INTENT THAT THEY WERE INTENDED TO SO OPERATE. 50 AMERICAN JURISPRUDENCE, STATUTES, SECTIONS 476, 478; 5 COMP. GEN. 381; 21 COMP. GEN. 870. THERE IS NO INDICATION IN THE ACT OF AUGUST 10, 1956, OR ITS LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED THAT THE DEFINITION OF ACTIVE DUTY IN SECTION 101 (22) OR ACTIVE SERVICE IN SECTION 101 (24) SHOULD APPLY TO TRAINING DUTY PERFORMED PRIOR TO AUGUST 10, 1956. ON THE CONTRARY IT APPEARS THAT TO APPLY THAT DEFINITION TO TRAINING DUTY PERFORMED PRIOR TO AUGUST 10, 1956, WOULD BE INCONSISTENT WITH THE PROVISIONS OF SECTION 49 (F) OF THE 1956 ACT, 70A STAT. 640, 32 U.S.C. 49 (F), WHEN CONSIDERED IN CONJUNCTION WITH THE PROVISIONS OF 10 U.S.C. 1402 (A). THE LATTER PROVISION AUTHORIZES INCREASES IN RETIRED AND RETAINER PAY ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE, WHEREAS SECTION 49 (F) PROVIDES THAT ENACTMENT OF THE ACT OF AUGUST 10, 1956, DOES NOT INCREASE PAY, ACTIVE, RETIRED, OR RETAINER. IN 38 COMP. GEN. 251, WE HELD THAT THE DEFINITION OF ACTIVE DUTY CONTAINED IN 10 U.S.C. 101 (22) AS INCLUDING TRAINING DUTY DOES NOT APPLY TO TRAINING DUTY PERFORMED PRIOR TO AUGUST 10, 1956, IN COMPUTING THE SPECIAL PAY OF CERTAIN MEDICAL AND DENTAL OFFICERS. THE PROVISIONS OF SECTION 49 (F) REQUIRE THAT CONCLUSION. A SIMILAR CONCLUSION IS REQUIRED WITH RESPECT TO THE READJUSTMENT PAYMENT AUTHORIZED BY THE ACT OF JULY 9, 1956.

ACCORDINGLY, QUESTION 2 IS ANSWERED BY SAYING THAT ACTIVE DUTY FOR TRAINING PERFORMED PRIOR TO AUGUST 10, 1956, MAY NOT BE CONSIDERED AS ACTIVE DUTY IN DETERMINING ELIGIBILITY FOR OR THE AMOUNT OF THE READJUSTMENT PAYMENT, BUT THAT SUCH TRAINING DUTY PERFORMED AFTER AUGUST 9, 1956, MAY BE CONSIDERED AS ACTIVE DUTY FOR THOSE PURPOSES.