B-153488, MAY 6, 1964, 43 COMP. GEN. 724

B-153488: May 6, 1964

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FOR TRANSFER TO THE ARMY MEDICAL CORPS IS NOT ELIGIBLE 1 YEAR AFTER TRANSFER TO INCLUDE THE PERIOD OF INTERNSHIP IN THE "AT LEAST TWO YEARS OF ACTIVE DUTY" REQUIRED FOR ELIGIBILITY TO RECEIVE THE $150 PER MONTH RATE OF SPECIAL MEDICAL PAY PROVIDED BY 37 U.S.C. 302 (B) (2). NOTWITHSTANDING THE REGULATION REQUIRING THE INTERNSHIP WAS AMENDED TO AUTHORIZE APPOINTMENT IN THE MEDICAL CORPS IMMEDIATELY UPON GRADUATION FROM MEDICAL SCHOOL. THE OFFICER NOT HAVING COMPLETED AT LEAST 2 YEARS OF ACTIVE DUTY AS A MEDICAL CORPS OFFICER IS ONLY ENTITLED TO SPECIAL PAY AT THE RATE OF $100 PER MONTH PRESCRIBED BY SECTION 302 (B) (1) WHEN THE PERIOD OF ACTIVE DUTY SERVICE IS UNDER 2 YEARS. THE PERIOD COVERED BY THE VOUCHER IS FROM JULY 7.

B-153488, MAY 6, 1964, 43 COMP. GEN. 724

PAY - MEDICAL AND DENTAL OFFICERS - SPECIAL PAY - SERVICE REQUIREMENTS AN ARMY OFFICER WHO UPON GRADUATION FROM MEDICAL SCHOOL SERVED THE 1 YEAR PERIOD OF MILITARY INTERNSHIP PRESCRIBED BY AR 601-124, DATED JULY 13, 1960, FOR TRANSFER TO THE ARMY MEDICAL CORPS IS NOT ELIGIBLE 1 YEAR AFTER TRANSFER TO INCLUDE THE PERIOD OF INTERNSHIP IN THE "AT LEAST TWO YEARS OF ACTIVE DUTY" REQUIRED FOR ELIGIBILITY TO RECEIVE THE $150 PER MONTH RATE OF SPECIAL MEDICAL PAY PROVIDED BY 37 U.S.C. 302 (B) (2), NOTWITHSTANDING THE REGULATION REQUIRING THE INTERNSHIP WAS AMENDED TO AUTHORIZE APPOINTMENT IN THE MEDICAL CORPS IMMEDIATELY UPON GRADUATION FROM MEDICAL SCHOOL; THEREFORE, THE PERIOD OF INTERNSHIP SERVED BY THE OFFICER PRIOR TO RECEIVING HIS COMMISSION IN THE ARMY MEDICAL CORPS MAY NOT BE CREDITED AS QUALIFYING SERVICE, AND THE OFFICER NOT HAVING COMPLETED AT LEAST 2 YEARS OF ACTIVE DUTY AS A MEDICAL CORPS OFFICER IS ONLY ENTITLED TO SPECIAL PAY AT THE RATE OF $100 PER MONTH PRESCRIBED BY SECTION 302 (B) (1) WHEN THE PERIOD OF ACTIVE DUTY SERVICE IS UNDER 2 YEARS.

TO LIEUTENANT COLONEL C. E. JONES, DEPARTMENT OF THE ARMY, MAY 6, 1964:

BY SECOND INDORSEMENT DATED FEBRUARY 12, 1964, THE OFFICE OF THE CHIEF OF FINANCE FORWARDED YOUR LETTER DATED SEPTEMBER 27, 1963, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT ON A VOUCHER IN FAVOR OF CAPTAIN PAUL T. LENIO, 072 123, FOR THE DIFFERENCE BETWEEN THE SPECIAL PAY AUTHORIZED BY 37 U.S.C. 302 FOR AN OFFICER ENTITLED TO COUNT OVER 1 YEAR OF SERVICE FOR THE PURPOSES OF THAT SECTION AND THAT AUTHORIZED FOR AN OFFICER ENTITLED TO COUNT OVER 2 YEARS OF SERVICE FOR THE PURPOSES OF THAT SECTION. THE PERIOD COVERED BY THE VOUCHER IS FROM JULY 7, 1963, THROUGH AUGUST 31, 1963. YOUR REQUEST WAS ASSIGNED D.O. NO. A-744 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FOLLOWING ARE REPORTED AS THE PERTINENT FACTS IN CAPTAIN LENIO'S CASE. WHILE SERVING AS A SECOND LIEUTENANT IN THE REGULAR ARMY, INFANTRY, HE TOOK EXCESS LEAVE WITHOUT PAY OR ALLOWANCES BETWEEN SEPTEMBER 1, 1956, AND JULY 1, 1960, FOR THE PURPOSE OF OBTAINING A DEGREE AS A DOCTOR OF MEDICINE. HE WAS SELECTED FOR THE SENIOR MEDICAL STUDENT PROGRAM OF THE DEPARTMENT OF THE ARMY AND FROM JULY 1, 1960, UNTIL JULY 6, 1961, HE RECEIVED FULL PAY AND ALLOWANCES AS AN INFANTRY OFFICER. HE WAS SELECTED FOR THE MEDICAL INTERN PROGRAM AND FOLLOWING HIS GRADUATION FROM CORNELL UNIVERSITY MEDICAL COLLEGE ON JULY 6, 1961, HE WAS DETAILED TO THE MEDICAL CORPS AND ASSIGNED TO THE STUDENT DETACHMENT, WALTER REED GENERAL HOSPITAL, FOR A 1-YEAR MILITARY INTERNSHIP COMMENCING JULY 7, 1961. PARAGRAPH 138, SPECIAL ORDERS NO. 141, JUNE 14, 1962, HE WAS TRANSFERRED TO THE MEDICAL CORPS EFFECTIVE UPON EXECUTION OF THE OATH OF OFFICE.

AT THE TIME OF THE OFFICER'S GRADUATION FROM MEDICAL COLLEGE THE REGULATIONS (AR 601-124 JULY 13, 1960, PARAGRAPH 12) PROVIDED THAT APPLICANTS FOR COMMISSIONS IN THE MEDICAL CORPS WERE REQUIRED TO HAVE COMPLETED A 1-YEAR INTERNSHIP OR ITS EQUIVALENT AFTER GRADUATION FROM MEDICAL SCHOOL. BY CHANGE NO. 2, DATED MAY 21, 1963, THE REGULATIONS WERE AMENDED TO PROVIDE THAT REGULAR ARMY OFFICERS SELECTED TO ENTER THE ARMY MEDICAL INTERN PROGRAM MAY BE APPOINTED IN THE MEDICAL CORPS IMMEDIATELY UPON GRADUATION FROM MEDICAL SCHOOL.

SECTION 302 OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART, AS FOLLOWS:

(A) IN ADDITION TO ANY OTHER BASIC PAY, SPECIAL PAY, INCENTIVE PAY, OR ALLOWANCES TO WHICH HE IS ENTITLED, EACH OF THE FOLLOWING OFFICERS IS ENTITLED TO SPECIAL PAY AT THE RATES SET FORTH IN SUBSECTION (B) OF THIS SECTION:

(B) THE AMOUNT OF SPECIAL PAY TO WHICH AN OFFICER COVERED BY SUBSECTION (A) OF THIS SECTION IS ENTITLED IS---

(1) $100 A MONTH FOR EACH MONTH OF ACTIVE DUTY IF HE HAS NOT COMPLETED TWO YEARS OF ACTIVE DUTY IN A CATEGORY NAMED IN THAT SUBSECTION;

(2) $150 A MONTH FOR EACH MONTH OF ACTIVE DUTY IF HE HAS COMPLETED AT LEAST TWO YEARS OF ACTIVE DUTY IN A CATEGORY NAMED IN THAT SUBSECTION.

THE RATE OF SPECIAL PAY IS THUS DEPENDENT UPON THE PERIOD SERVED ON ACTIVE DUTY IN A CATEGORY NAMED IN SUBSECTION (A). TIME SPENT AS AN INTERN MAY BE INCLUDED, IF IT IS OTHERWISE CREDITABLE (36 COMP. GEN. 770) AND CAPTAIN LENIO'S RIGHT TO THE PAY CLAIMED DEPENDS UPON HIS RIGHT TO COUNT HIS PERIOD OF INTERNSHIP IN DETERMINING THE RATE OF THAT PAY.

DURING THE PERIOD OF CAPTAIN LENIO'S INTERNSHIP HE WAS A REGULAR ARMY OFFICER ASSIGNED TO THE INFANTRY ON DETAIL TO THE MEDICAL CORPS AND IT APPEARS THAT HE COULD BE CREDITED WITH QUALIFYING SERVICE FOR THAT PERIOD FOR SPECIAL MEDICAL PAY PURPOSES ONLY IF HE WAS A COMMISSIONED OFFICER OF THE REGULAR ARMY IN THE MEDICAL CORPS. SEE 37 U.S.C. 302 (A) (1) (A). SINCE HE DID NOT BECOME A MEMBER OF THE MEDICAL CORPS UNTIL SPECIAL ORDERS NO. 141, JUNE 14, 1962, WERE ISSUED, HIS PERIOD OF INTERNSHIP MAY NOT BE CREDITED AS QUALIFYING SERVICE AND HE HAS NOT YET COMPLETED OVER 2 YEARS OF ACTIVE DUTY AS A MEDICAL CORPS OFFICER. HENCE HE IS NOT ENTITLED TO SPECIAL PAY AT THE RATE OF $150 PER MONTH FOR THE PERIOD HERE INVOLVED. ALTHOUGH THE APPLICABLE REGULATIONS HAVE BEEN AMENDED TO PROVIDE THAT AN OFFICER IN CAPTAINLENIO'S SITUATION MAY BE APPOINTED IN THE MEDICAL CORPS IMMEDIATELY UPON GRADUATION FROM MEDICAL SCHOOL, THE AMENDED REGULATIONS ARE NOT AND MAY NOT BE MADE RETROACTIVE. ACCORDINGLY, PAYMENT ON THE VOUCHER SUBMITTED WITH YOUR LETTER IS NOT AUTHORIZED AND SUCH VOUCHER WILL BE RETAINED HERE.