B-140087, OCT. 15, 1959

B-140087: Oct 15, 1959

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DECISION IS REQUESTED REGARDING THE CONSTRUCTIVE SERVICE CREDIT TO WHICH MAJOR JAMES C. IS ENTITLED FOR PAY PURPOSES BY VIRTUE OF HIS MEDICAL EDUCATION AND TRAINING UNDER THE PROVISIONS OF CLAUSE (7) OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949. YOUR REQUEST WAS ALLOCATED D.O. IT IS STATED. BECAUSE HE WAS PERMITTED TO ENTER A RESIDENCY IN PATHOLOGY AT FITZSIMMONS ARMY HOSPITAL. THE SERVICE TO BE INCLUDED IN COMPUTING BASIC PAY IS THAT PROVIDED IN SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949. CLAUSE (7) OF WHICH (AS ADDED BY THE 1956 ACT) IS IN PERTINENT PART AS FOLLOWS: "/7) FOR EACH OFFICER OF THE MEDICAL CORPS OR THE DENTAL CORPS OF THE ARMY OR NAVY. A MEDICAL OFFICER IS ENTITLED UNDER THE QUOTED PROVISIONS TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS ON THE BASIS OF HIS PROFESSIONAL EDUCATION.

B-140087, OCT. 15, 1959

TO LIEUTENANT COLONEL A. W. MORSE, FC:

IN YOUR LETTER OF JUNE 1, 1959, FORWARDED BY INDORSEMENT OF THE OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED JUNE 30, 1959, DECISION IS REQUESTED REGARDING THE CONSTRUCTIVE SERVICE CREDIT TO WHICH MAJOR JAMES C. BEYER, MC, IS ENTITLED FOR PAY PURPOSES BY VIRTUE OF HIS MEDICAL EDUCATION AND TRAINING UNDER THE PROVISIONS OF CLAUSE (7) OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF APRIL 30, 1956, 70 STAT. 121, 37 U.S.C. 233 (A) (7). YOUR REQUEST WAS ALLOCATED D.O. NO. 429 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT THE ADJUTANT GENERAL HAS FURNISHED A STATEMENT OF SERVICE FOR BASIC PAY WHICH REFLECTS THAT MAJOR BEYER HAS CREDIT FOR ENLISTED SERVICE IN THE ARMY FROM MAY 17, 1943, TO JUNE 22, 1945, AND COMMISSIONED SERVICE IN THE ARMY FROM DECEMBER 2, 1950, TO THE PRESENT AND, ALSO, ADDITIONAL CREDIT FOR MEDICAL SCHOOLING FROM APRIL 19, 1943, TO MARCH 27, 1946, AND INTERNSHIP FROM JULY 1 TO OCTOBER 5, 1946. MAJOR BEYER, IT IS STATED, HAS CLAIMED FURTHER CONSTRUCTIVE SERVICE ON THE BASIS OF ATTENDANCE IN THE GRADUATE DEPARTMENT AT LOYOLA MEDICAL SCHOOL, CHICAGO, ILLINOIS, DURING THE PERIOD JULY 1, 1947, TO JUNE 14, 1950, WHICH RESULTED IN THE RECEIPT OF A M.S. DEGREE IN ANATOMY, WHICH HE CONSIDERS THE EQUIVALENT OF AN INTERNSHIP, BECAUSE HE WAS PERMITTED TO ENTER A RESIDENCY IN PATHOLOGY AT FITZSIMMONS ARMY HOSPITAL, DENVER, COLORADO, ON THE SECOND YEAR LEVEL COMMENCING JULY 1, 1955, ON THE STRENGTH OF THAT TRAINING.

THE SERVICE TO BE INCLUDED IN COMPUTING BASIC PAY IS THAT PROVIDED IN SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, CLAUSE (7) OF WHICH (AS ADDED BY THE 1956 ACT) IS IN PERTINENT PART AS FOLLOWS:

"/7) FOR EACH OFFICER OF THE MEDICAL CORPS OR THE DENTAL CORPS OF THE ARMY OR NAVY, EACH OFFICER OF THE AIR FORCE DESIGNATED AS A MEDICAL OR DENTAL OFFICER, AND EACH OFFICER OF THE PUBLIC HEALTH SERVICE COMMISSIONED AS A MEDICAL OR DENTAL OFFICER, FOUR YEARS; AND FOR EACH SUCH MEDICAL OFFICER WHO HAS COMPLETED ONE YEAR OF MEDICAL INTERNSHIP OR THE EQUIVALENT THEREOF, ONE ADDITIONAL YEAR; EXCEPT THAT THE SERVICE AUTHORIZED TO BE CREDITED TO AN OFFICER UNDER THIS CLAUSE SHALL BE REDUCED BY THE AMOUNT OF ANY SERVICE OTHERWISE CREDITED UNDER THIS SECTION WHICH COVERS ANY PART OF THE PERIOD OF THE OFFICER'S PROFESSIONAL EDUCATION OR INTERNSHIP; * * *.'

A MEDICAL OFFICER IS ENTITLED UNDER THE QUOTED PROVISIONS TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS ON THE BASIS OF HIS PROFESSIONAL EDUCATION. THE ADDITIONAL YEAR'S CREDIT IS PROVIDED ON THE BASIS OF THE COMPLETION OF AT LEAST ONE YEAR OF INTERNSHIP OR ITS EQUIVALENT.

AN INTERN IS A RESIDENT PHYSICIAN OR SURGEON IN A HOSPITAL, ENGAGED IN THE ACTUAL PRACTICAL APPLICATION OF HIS MEDICAL EDUCATION. IT IS CLEAR, THEREFORE, THAT A PERSON ATTENDING A MEDICAL SCHOOL IS NOT AN INTERN. WHILE THE PHRASE "OR THE EQUIVALENT THEREOF" USED IN THE QUOTED LANGUAGE IS NOT FURTHER DEFINED, IT SEEMS APPARENT THAT THE CONGRESS IN PROVIDING FOR THE GRANTING OF A CONSTRUCTIVE CREDIT FOR TRAINING IN THE TWO SEPARATE AND DISTINCT CATEGORIES OF PROFESSIONAL EDUCATION AND INTERNSHIP DID NOT CONTEMPLATE THAT THE TRAINING PROVIDING QUALIFICATION FOR THE FIRST CATEGORY ALSO COULD BE USED AS QUALIFICATION FOR THE SECOND CATEGORY ON THE BASIS THAT IT IS "THE EQUIVALENT" OF THAT REQUIRED AS QUALIFICATION FOR SUCH SECOND CATEGORY. SEE PAGES 5908-5911 AND 5945 OF HOUSE OF REPRESENTATIVES COMMITTEE ON ARMED SERVICES HEARINGS ON H.R. 8500, 84TH CONGRESS, AND PAGE 6042 OF SIMILAR HEARINGS ON H.R. 9428, 84TH CONGRESS, WHICH CLEARLY INDICATE THAT THE TERM "EQUIVALENT" RELATES TO THE PRACTICAL TRAINING IN A HOSPITAL UNDER SUPERVISION REQUIRED FOR LICENSURE PURPOSES RATHER THAN EDUCATIONAL TRAINING OR ACTUAL PROFESSIONAL PRACTICE. THE CONSTRUCTIVE CREDIT FOR INTERN TRAINING AND MEDICAL AND DENTAL EDUCATION WAS GRANTED TO BRING PHYSICIANS AND DENTISTS UP TO THE RANK AND PAY LEVEL OF THEIR CONTEMPORARIES OF THE LINE.

MAJOR BEYER APPEARS TO BE ENTITLED UNDER THE QUOTED STATUTORY PROVISIONS TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS AS AN OFFICER OF THE MEDICAL CORPS (LESS THE PERIOD OF ENLISTED SERVICE FROM MAY 17, 1943, TO JUNE 22, 1945, WHILE HE WAS ATTENDING MEDICAL SCHOOL) ON THE BASIS OF HIS PROFESSIONAL EDUCATION GAINED IN MEDICAL SCHOOL. THAT PORTION OF THE SCHOOLING ATTENDED IN THE GRADUATE DEPARTMENT OF THE LOYOLA MEDICAL SCHOOL, HOWEVER, MAY NOT PROPERLY BE CONSIDERED AS ,THE EQUIVALENT" OF A MEDICAL INTERNSHIP WITHIN THE CONTEMPLATION OF THE STATUTE. CONSEQUENTLY, SINCE THE PERIOD OF INTERNSHIP WHICH HE OTHERWISE HAS COMPLETED IS LESS THAN THE REQUIRED YEAR IN DURATION, THE OFFICER MAY NOT BE CREDITED WITH THE ADDITIONAL YEAR'S CONSTRUCTIVE CREDIT PROVIDED BY THE STATUTE FOR INTERNSHIP TRAINING OR ITS EQUIVALENT.