B-159524, JULY 28, 1966, 46 COMP. GEN. 100

B-159524: Jul 28, 1966

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ATTENDED A CIVILIAN EDUCATIONAL INSTITUTION ON EXCUSED LEAVE FOR THE OTHER PART OF THE MONTH IS ENTITLED TO PAY AND ALLOWANCES FOR THE 31ST DAY OF A MONTH. THE REGULAR ARMY OFFICER IS ENTITLED TO PAY AND ALLOWANCES FOR EACH 31ST DAY WITHIN THE 6 CALENDAR MONTH PERIOD DURING WHICH HE PERFORMED ACTIVE DUTY FOR PART OF THE MONTH. 1966: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17. IS ENTITLED TO PAY AND ALLOWANCES FOR THE 31ST DAY OF 6 CALENDAR MONTHS. FOR THE OTHER PART OF THE MONTH HE WAS ON EXCESS LEAVE AND ATTENDING A CIVILIAN EDUCATIONAL INSTITUTION. PROVIDES: A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO PAY AND ALLOWANCES UNDER THIS TITLE FOR A CONTINUOUS PERIOD OF LESS THAN ONE MONTH IS ENTITLED TO HIS PAY AND ALLOWANCE FOR EACH DAY OF THAT PERIOD AT THE RATE OF 1/30 OF THE MONTHLY AMOUNT OF HIS PAY AND ALLOWANCES.

B-159524, JULY 28, 1966, 46 COMP. GEN. 100

PAY - THIRTY-FIRST DAY OF THE MONTH - ACTIVE DUTY FOR PART OF MONTH. A REGULAR ARMY OFFICER WHO DURING A 6 CALENDAR MONTH PERIOD PERFORMED ACTIVE DUTY FOR PART OF EACH MONTH, REPORTING FOR DUTY ON OTHER THAN THE FIRST DAY OF THE MONTH, AND ATTENDED A CIVILIAN EDUCATIONAL INSTITUTION ON EXCUSED LEAVE FOR THE OTHER PART OF THE MONTH IS ENTITLED TO PAY AND ALLOWANCES FOR THE 31ST DAY OF A MONTH, 37 U.S.C. 1004 PRESCRIBING FOR "A MEMBER OF A UNIFORMED SERVICE" PAY AND ALLOWANCES FOR EACH DAY OF A CONTINUOUS PERIOD OF LESS THAN 1 MONTH'S SERVICE, INCLUDING THE 31ST, AT 1/30 OF THE MONTHLY AMOUNT OF PAY AND ALLOWANCES, APPLYING TO MEMBERS OF ALL COMPONENTS, AND THE TERM "MEMBER" DEFINED TO INCLUDE A COMMISSIONED OFFICER AND THE TERM "UNIFORMED SERVICE" TO INCLUDE THE ARMY, BOTH REGULAR AND RESERVE MEMBERS PURSUANT TO 10 U.S.C. 3062/C), THE REGULAR ARMY OFFICER IS ENTITLED TO PAY AND ALLOWANCES FOR EACH 31ST DAY WITHIN THE 6 CALENDAR MONTH PERIOD DURING WHICH HE PERFORMED ACTIVE DUTY FOR PART OF THE MONTH.

TO LIEUTENANT COLONEL K. M. STEWART, DEPARTMENT OF THE ARMY, JULY 28, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1966, FORWARDED HERE BY LETTER DATED JUNE 22, 1966, OFFICE OF THE CHIEF OF FINANCE, REQUESTING A DECISION WHETHER CAPTAIN JEROME X. LEWIS, II, A REGULAR ARMY OFFICER, IS ENTITLED TO PAY AND ALLOWANCES FOR THE 31ST DAY OF 6 CALENDAR MONTHS. DURING THOSE MONTHS HE PERFORMED ACTIVE DUTY FOR PART OF THE MONTH, REPORTING FOR DUTY ON OTHER THAN THE FIRST DAY OF THE MONTH. FOR THE OTHER PART OF THE MONTH HE WAS ON EXCESS LEAVE AND ATTENDING A CIVILIAN EDUCATIONAL INSTITUTION. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NUMBER A 914 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 1004 OF TITLE 37, U.S.C. PROVIDES:

A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO PAY AND ALLOWANCES UNDER THIS TITLE FOR A CONTINUOUS PERIOD OF LESS THAN ONE MONTH IS ENTITLED TO HIS PAY AND ALLOWANCE FOR EACH DAY OF THAT PERIOD AT THE RATE OF 1/30 OF THE MONTHLY AMOUNT OF HIS PAY AND ALLOWANCES. THE THIRTY-FIRST DAY OF A CALENDAR MONTH MAY NOT BE EXCLUDED FROM A COMPUTATION UNDER THIS SECTION.

THE ARMY CONSISTS OF---

BY LETTER OF OCTOBER 7, 1965, THE ARMY DISALLOWED CAPTAIN LEWIS' CLAIM FOR THE REASON THAT PARAGRAPH 10254, SECTION F, ARMY REGULATIONS 37-104, STATES THAT THAT PROVISION OF LAW APPLIES TO MEMBERS OF THE RESERVE FORCES AND NOT TO MEMBERS OF THE REGULAR ARMY. THAT PROVISION IS A CODIFICATION OF SECTION 510 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 828, 37 U.S.C. 310 (1958 ED.), THE LEGISLATIVE HISTORY OF WHICH INDICATES THAT IT WAS SIMPLY A RESTATEMENT OF "EXISTING LAW;, PRESUMABLY THE REGULATIONS WERE BASED UPON THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 360, 37 U.S.C. 232 (1958 ED.), WHICH BY ITS SPECIFIC TERMS WAS LIMITED TO MEMBERS OF THE RESERVE FORCES. IT APPEARS, HOWEVER, THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS ISSUED AN OPINION THAT THE PROVISIONS OF 37 U.S.C. 1004 ARE APPLICABLE TO MEMBERS OF ALL COMPONENTS.

THE LANGUAGE OF SECTION 510 OF THE CAREER COMPENSATION ACT OF 1949 IS SUBSTANTIALLY THE SAME AS THAT OF 37 U.S.C. 1004. SECTION 102/B) OF THE 1949 LAW, 37 U.S.C. 231/B) (1958 ED.), PROVIDED THAT THE TERM "MEMBER", UNLESS OTHERWISE QUALIFIED, MEANT A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON OF THE UNIFORMED SERVICES. THE TERM "UNIFORMED SERVICES", UNLESS OTHERWISE QUALIFIED, MEANT THE ARMY OF THE UNITED STATES, NAVY, AIR FORCE OF THE UNITED STATES, ETC; "AND ALL REGULAR AND RESERVE COMPONENTS THEREOF;, THE TERM "MEMBER" IS DEFINED IN 37 U.S.C. 101/23) AS "A PERSON APPOINTED OR ENLISTED IN, OR CONSCRIPTED INTO, A UNIFORMED SERVICE" AND THE TERM "UNIFORMED SERVICES" IS DEFINED IN 37 U.S.C. 101/3) AS "THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD", ETC. SECTION 3062/C) OF TITLE 10, U.S. CODE, PROVIDES THAT:

(1) THE REGULAR ARMY, THE ARMY NATIONAL GUARD OF THE UNITED STATES, THE ARMY NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES AND THE ARMY RESERVE; AND

(2) ALL PERSONS APPOINTED OR ENLISTED IN, OR CONSTRIPTED INTO, THE ARMY WITHOUT COMPONENT.

IN VIEW OF THE BROAD LANGUAGE OF SECTION 510 OF THE CAREER COMPENSATION ACT AND THE DEFINITIONS OF THE TERMS "MEMBER" AND "UNIFORMED SERVICES" IN THAT STATUTE "UNLESS OTHERWISE QUALIFIED", AS WELL AS THE BROAD LANGUAGE OF 37 U.S.C. 1004 AND THE APPLICABLE DEFINITIONS OF THE TERMS "MEMBER" AND "ARMY" CITED ABOVE, THE CONCLUSION THAT A MEMBER OF THE REGULAR ARMY WAS INTENDED TO BE INCLUDED IN THE TERM "MEMBER" AS USED IN SECTION 1004 APPEARS REQUIRED. IT IS TO BE NOTED, HOWEVER, THAT SECTION 1004 APPLIES ONLY TO "A CONTINUOUS PERIOD OF LESS THAN ONE MONTH" AND SINCE A STATEMENT AS TO THE EXACT PERIODS FOR WHICH CAPTAIN LEWIS HAS BEEN PAID PAY AND ALLOWANCES WAS NOT RECEIVED WITH YOUR REQUEST HIS RIGHT TO PAY FOR THE PARTICULAR DAYS IN QUESTION REMAINS IN DOUBT. IF THE 31ST DAY OF THE MONTH IN EACH CASE COVERED BY THE VOUCHERS WAS INCLUDED IN A CONTINUOUS PERIOD OF LESS THAN 1 MONTH FOR WHICH HE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, PAYMENT ON THE SUBMITTED VOUCHERS, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.