B-148645, MAY 18, 1962, 41 COMP. GEN. 770

B-148645, MAY 18, 1962, 41 COMP. GEN. 770

PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - EDUCATION ALLOWANCES COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE WHO HAVE THEIR PAY AND ALLOWANCES FIXED UNDER LAWS APPLICABLE TO MEMBERS OF THE UNIFORMED SERVICES MAY NOT BE CONSIDERED AS "EMPLOYED IN THE CIVILIAN SERVICE" AS THAT PHRASE IS USED IN SECTION 111 (3) OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT FOR PURPOSES OF ENTITLING PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS STATIONED IN FOREIGN COUNTRIES TO EDUCATIONAL ALLOWANCES PROVIDED UNDER TITLE II OF THE ACT WHEN THE OTHER BENEFITS UNDER THE ACT ARE CLEARLY NOT FOR APPLICATION TO SUCH PERSONNEL.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, MAY 18, 1962:

ON APRIL 11, 1962, YOU REQUESTED OUR DECISION UPON THE QUESTION WHETHER THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, MAY BE CONSIDERED TO BE "CIVILIAN SERVICE OF A GOVERNMENT AGENCY" AS THAT TERM IS USED IN SECTION 111 (3) OF PUBLIC LAW 86-707, 74 STAT. 792, 5 U.S.C. 3032 (3), SO THAT OFFICERS OF THE COMMISSIONED CORPS WOULD BE ELIGIBLE FOR THE EDUCATIONAL ALLOWANCES AUTHORIZED BY PART C OF TITLE II OF THAT ACT. 5 U.S.C. 3037.

AS YOU SAY IN YOUR LETTER, THE TERM "EMPLOYES" IS DEFINED IN SECTION 111 (3) OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT AS FOLLOWS:

" EMPLOYEE" MEANS AN INDIVIDUAL EMPLOYED IN THE CIVILIAN SERVICE OF A GOVERNMENT AGENCY AND MORE SPECIFICALLY DEFINED IN REGULATIONS PRESCRIBED BY THE PRESIDENT, BUT INCLUDING AMBASSADORS, MINISTERS, AND OFFICERS OF THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE.

IN EFFECT, YOU URGE THAT THE CONGRESS, IN ENACTING PUBLIC LAW 86 707, BY IMPLICATION INTENDED THAT THE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE SHOULD BE REGARDED AS CIVILIAN EMPLOYEES FOR THE PURPOSE OF ANY ALLOWANCES AUTHORIZED BY THAT LAW WHICH ARE NOT AUTHORIZED BY THE CAREER COMPENSATION ACT. YOUR CONCLUSION IN SUPPORT OF THE AFFIRMATIVE VIEW IN THAT REGARD IS SUMMARIZED ON PAGE 3 OF YOUR LETTER AS FOLLOWS:

* * * FROM THIS IT IS REASONABLE TO CONCLUDE THAT WHERE AN ACT OF GENERAL APPLICATION ESTABLISHES BENEFITS TO WHICH THE COMMISSIONED CORPS IS NOT ENTITLED ELSEWHERE, AND DOES NOT EXCLUDE THE COMMISSIONED CORPS, THE INTENT OF CONGRESS WAS TO INCLUDE THE COMMISSIONED CORPS.

WE DO NOT CONCUR IN THE QUOTED PREMISE. IT MIGHT WITH EQUAL FORCE BE URGED, IN THE ABSENCE OF EVIDENCE THAT THE PUBLIC HEALTH SERVICE SOUGHT COVERAGE IN THE ACT, THAT THE CONGRESS HAD NO INTENT WHATEVER CONCERNING THE COMMISSIONED CORPS OF THAT SERVICE IN ENACTING PUBLIC LAW 86-707. SIMILAR CONCLUSION MIGHT BE WARRANTED CONCERNING THE QUESTION WHICH YOU SAY HAS ARISEN REGARDING THE COVERAGE OF PUBLIC LAW 87-304, 75 STAT. 622, 5 U.S.C. 3071.

ADMITTEDLY, THE TERM "CIVILIAN SERVICE OF A GOVERNMENT AGENCY" APPEARING IN SECTION 111 (3) OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT COULD, IN THE BROADEST SENSE, BE VIEWED AS INCLUDING SERVICE IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE, EXCEPT WHEN IN TIME OF WAR OR EMERGENCY INVOLVING NATIONAL DEFENSE THE PRESIDENT DECLARES THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE AS AUTHORIZED BY 42 U.S.C. 217. HOWEVER, WE DO NOT BELIEVE THAT THE TERM "CIVILIAN SERVICE OF A GOVERNMENT AGENCY" SHOULD BE ACCORDED SUCH BROAD MEANING ON THE BASIS OF THE REASONS SET FORTH IN YOUR LETTER.

IN THE FIRST PLACE THE TERM "CIVILIAN EMPLOYEE" APPEARING IN SECTION 111 (3) OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT IS AN ESSENTIAL ELEMENT IN DETERMINING ELIGIBILITY FOR EACH OF THE ALLOWANCES PROVIDED FOR IN TITLE II OF THAT ACT, 5 U.S.C. 3033-3038. WE FIND NO LEGAL OR LOGICAL BASIS FOR CONSTRUING THE TERM "CIVILIAN EMPLOYEE" TO INCLUDE A MEMBER OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY FOR ONLY ONE OF THE ALLOWANCES PROVIDED UNDER TITLE II BUT NOT FOR THE OTHERS PROVIDED UNDER THAT TITLE.

SECONDLY, THE PAY AND ALLOWANCES OF MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE ARE FIXED UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231, ET SEQ. THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT DOES NOT REPEAL OR AMEND THE CAREER COMPENSATION ACT OF 1949 EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION AND WE ARE REQUIRED TO CONSTRUE THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT IN A MANNER SUCH AS TO AVOID ANY INCONSISTENCY OR DUPLICATION OF BENEFITS BETWEEN THAT ACT AND THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. THAT RESULT BEST CAN BE ACCOMPLISHED BY CONSTRUING THE TERM "CIVILIAN EMPLOYEE, AS USED IN SECTION 111 (3) AS NOT INCLUDING MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE.

FINALLY, IT IS NOTEWORTHY THAT WHILE THE CAREER COMPENSATION ACT FIXES GENERALLY THE PAY AND ALLOWANCES OF THE REGULAR COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE, AS IT DOES OF THE OTHER UNIFORMED SERVICES AS DEFINED THEREIN, THAT ACT DOES NOT PROVIDE FOR THE EDUCATION OF MINOR DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES COVERED THEREBY. FUNDS FOR EDUCATION ALLOWANCES FOR THE ARMY, NAVY, AND AIR FORCE ARE DERIVED FROM THE ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF DEFENSE (SEE SECTION 606, PUBLIC LAW 87-144, APPROVED AUGUST 17, 1961, 75 STAT. 375) PURPORTEDLY BASED ON AUTHORITY IN 10 U.S.C. 7204. THE COAST GUARD, SIMILARLY, WHEN UNDER THE SECRETARY OF THE TREASURY, DERIVES FUNDS FOR EDUCATION ALLOWANCES FROM THE ANNUAL APPROPRIATION ACT FOR THAT DEPARTMENT. SEE PUBLIC LAW 87-159, APPROVED AUGUST 21, 1961, 75 STAT. 393. THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE LIKEWISE FOR THE PAST SEVERAL YEARS HAS OBTAINED ANNUAL APPROPRIATIONS AVAILABLE FOR EXPENSES OF PRIMARY AND SECONDARY SCHOOLING OF DEPENDENTS OF PUBLIC HEALTH SERVICE PERSONNEL STATIONED IN FOREIGN COUNTRIES.

YOU SAY THAT A LIKE PROVISION IS CONTAINED IN YOUR ANNUAL APPROPRIATION BILL FOR THE FISCAL YEAR 1963, BUT POINT OUT THAT IT IS SUBJECT TO A POINT OF ORDER, PRESUMABLY BECAUSE THERE IS NO LEGISLATIVE AUTHORITY FOR SUCH AN APPROPRIATION. THE SAME OBJECTION MIGHT BE INTERPOSED CONCERNING THE COAST GUARD WHICH HAS NO BASIC LEGISLATION REGARDING EDUCATION ALLOWANCES AND ALSO, REGARDING THE ARMY AND AIR FORCE SINCE THE LEGISLATIVE AUTHORITY (10 U.S.C. 7204) RELIED UPON IN DEPARTMENT OF DEFENSE APPROPRIATION ACTS EXTENDS ONLY TO THE NAVY.

THE CAREER COMPENSATION ACT, AS STATED, WAS DESIGNED TO PROVIDE FOR THE PAY AND ALLOWANCES OF MEMBERS OF THE UNIFORMED SERVICES INCLUDING THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE. THAT BEING SO, WE FIND IT MORE LOGICAL AND CONSISTENT WITH THE INTENT AND PURPOSE OF THE CONGRESS THAT THE PUBLIC HEALTH SERVICE SHOULD SEEK ITS REMEDY IN LEGISLATION RATHER THAN BY OUR ATTEMPTING TO DETERMINE ON PURELY SPECULATIVE GROUNDS, WHETHER MEMBERS OF THE COMMISSIONED CORPS ARE CIVILIAN EMPLOYEES FOR THE PURPOSE OF A PARTICULAR SUBSECTION OF A STATUTE WHICH CLEARLY IS NOT OTHERWISE APPLICABLE TO SUCH MEMBERS.

THEREFORE, THE QUESTION PRESENTED BY YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE.