B-164443, AUGUST 29, 1969, 48 COMP. GEN. 122

B-164443: Aug 29, 1969

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1969: FURTHER REFERENCE IS MADE TO LETTER OF MAY 24. AN OFFICER OF THE AIR FORCE WHO IS DESIGNATED AS A MEDICAL OFFICER OR DENTAL OFFICER. - (1) IS SERVING ON ACTIVE DUTY IN A CRITICAL SPECIALTY DESIGNATED BY THE SECRETARY. (B) AN OFFICER WHO DOES NOT SERVE ON ACTIVE DUTY FOR THE ENTIRE PERIOD FOR WHICH HE WAS PAID UNDER THIS SECTION SHALL REFUND THAT PERCENTAGE OF THE PAYMENT THAT THE UNSERVED PART OF THE PERIOD IS OF THE TOTAL PERIOD FOR WHICH THE PAYMENT WAS MADE. THE PROPOSAL WAS TO OFFER "CONTINUATION PAY" TO CERTAIN PHYSICIANS IN THE UNIFORMED SERVICES SERVING ON ACTIVE DUTY IN CRITICAL MEDICAL CATEGORIES WHO HAVE NO FURTHER OBLIGATION TO REMAIN ON ACTIVE DUTY. IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF SECTION 311 THAT THE REASONS FOR AUTHORIZING .

B-164443, AUGUST 29, 1969, 48 COMP. GEN. 122

PAY - MEDICAL AND DENTAL OFFICERS - "CONTINUATION PAY" - ACTIVE DUTY REQUIREMENT THE ENTITLEMENT TO THE "CONTINUATION PAY" AUTHORIZED BY 37 U.S.C. 311 FOR MEDICAL AND DENTAL OFFICERS WHO BY WRITTEN AGREEMENT CONSENT TO EXTEND THEIR ACTIVE SERVICE--- PAYMENT TO BE MADE IN INSTALLMENTS FOR EACH ADDITIONAL YEAR OF COMMITTED SERVICE, CONTINGENT UPON THE PERFORMANCE OF ACTIVE DUTY--- CEASES UPON THE DEATH, WHETHER BY MISCONDUCT OR OTHERWISE, OF A MEDICAL SPECIALIST WHO HAD EXTENDED HIS SERVICE, AND THE INSTALLMENTS OF "CONTINUATION PAY" DUE AND PAYABLE TO THE OFFICER HAD HE LIVED MAY NOT BE PAID TO ANY OTHER PERSON, SECTION 311 (B) PERMITTING NO EXCEPTION TO THE REQUIREMENT FOR THE PERFORMANCE OF ACTIVE DUTY FOR ENTITLEMENT TO THE SPECIAL PAY AUTHORIZED FOR CONTINUED ACTIVE SERVICE OF MEDICAL SPECIALISTS.

TO THE SECRETARY OF DEFENSE, AUGUST 29, 1969:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 24, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF MAKING CERTAIN PAYMENTS OF "CONTINUATION PAY" AS AUTHORIZED BY 37 U.S.C. 311 IN THE CIRCUMSTANCES SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 415.

SECTION 311, TITLE 37, U.S. CODE, AS ADDED BY SECTION 1 (2) (A) OF PUBLIC LAW 90-207, DECEMBER 16, 1967, 81 STAT. 651, PROVIDES IN PART AS FOLLOWS: SEC. 311. SPECIAL PAY: CONTINUATION PAY FOR PHYSICIANS AND DENTISTS WHO EXTEND THEIR SERVICE ON ACTIVE DUTY

(A) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE OR BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, AS APPROPRIATE, AN OFFICER OF THE ARMY OR NAVY, IN THE MEDICAL OR DENTAL CORP, AN OFFICER OF THE AIR FORCE WHO IS DESIGNATED AS A MEDICAL OFFICER OR DENTAL OFFICER, OR A MEDICAL OR DENTAL OFFICER OF THE PUBLIC HEALTH SERVICE WHO---

(1) IS SERVING ON ACTIVE DUTY IN A CRITICAL SPECIALTY DESIGNATED BY THE SECRETARY;

(2) HAS COMPLETED ANY OTHER DEFINITIVE ACTIVE DUTY OBLIGATION THAT HE HAS UNDER LAW OR REGULATION; AND

(3) EXECUTES A WRITTEN AGREEMENT TO REMAIN ON ACTIVE DUTY FOR AT LEAST ONE ADDITIONAL YEAR; MAY BE PAID NOT MORE THAN FOUR MONTHS BASIC PAY AT THE RATE APPLICABLE TO HIM WHEN HE EXECUTES THAT AGREEMENT FOR EACH ADDITIONAL YEAR THAT HE AGREES TO REMAIN ON ACTIVE DUTY. PAY UNDER THIS SECTION SHALL BE PAID IN EQUAL ANNUAL OR SEMIANNUAL INSTALLMENTS, AS DETERMINED BY THE SECRETARY OF DEFENSE OR THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, AS APPROPRIATE, IN EACH ADDITIONAL YEAR COVERED BY AN AGREEMENT TO REMAIN ON ACTIVE DUTY. HOWEVER, IN MERITORIOUS CASES, THE PAY MAY BE PAID IN FEWER INSTALLMENTS IF THE SECRETARY DETERMINES IT TO BE IN THE BEST INTEREST OF THE OFFICER.

(B) AN OFFICER WHO DOES NOT SERVE ON ACTIVE DUTY FOR THE ENTIRE PERIOD FOR WHICH HE WAS PAID UNDER THIS SECTION SHALL REFUND THAT PERCENTAGE OF THE PAYMENT THAT THE UNSERVED PART OF THE PERIOD IS OF THE TOTAL PERIOD FOR WHICH THE PAYMENT WAS MADE.

THE PROVISIONS OF SECTION 311 STEM FROM A DEPARTMENT OF DEFENSE PROPOSAL AND RECOMMENDATION TO THE CONGRESS RELATING TO THE SERIOUS PROBLEM OF RETAINING COMPETENT MEDICAL OFFICERS IN ACTIVE MILITARY SERVICE. THE PROPOSAL WAS TO OFFER "CONTINUATION PAY" TO CERTAIN PHYSICIANS IN THE UNIFORMED SERVICES SERVING ON ACTIVE DUTY IN CRITICAL MEDICAL CATEGORIES WHO HAVE NO FURTHER OBLIGATION TO REMAIN ON ACTIVE DUTY.

IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF SECTION 311 THAT THE REASONS FOR AUTHORIZING ,CONTINUATION PAY" TO CERTAIN MEDICAL SPECIALISTS "TO REMAIN ON ACTIVE DUTY FOR AT LEAST ONE ADDITIONAL YEAR" ARE NOT UNLIKE THE REASONS WHICH PROMPTED THE ENACTMENT OF THE PROVISIONS RELATING TO VARIABLE REENLISTMENT BONUS AS PRESCRIBED IN SECTION 308 (G), TITLE 37, U.S. CODE, FOR THE PURPOSE OF INDUCING CERTAIN ENLISTED MEMBERS HAVING CRITICAL MILITARY SKILLS TO REMAIN ON ACTIVE DUTY.

COMMITTEE ACTION NO. 415 PRESENTS THE FOLLOWING TWO QUESTIONS:

1. IN ACCORDANCE WITH 37 U.S.C. 311 AN ELIGIBLE MEDICAL OFFICER MAY BE PAID CONTINUATION PAY IN INSTALLMENTS IN EACH ADDITIONAL YEAR COVERED BY HIS AGREEMENT TO REMAIN ON ACTIVE DUTY. IN THE EVENT OF HIS DECEASE, NO MISCONDUCT INVOLVED, WOULD ALL INSTALLMENTS OTHERWISE DUE AND PAYABLE TO HIM HAD HE LIVED, BE PROPERLY PAYABLE TO ANY PERSON OR PERSONS AS PROVIDED UNDER 10 U.S.C. 2771?

2. WOULD IT MAKE ANY DIFFERENCE IF HIS DEATH RESULTED FROM HIS OWN MISCONDUCT?

THE DISCUSSION SET FORTH IN COMMITTEE ACTION NO. 415 REVOLVES ENTIRELY AROUND SUBSECTION (B) OF SECTION 311 WHICH PROVIDES THAT AN OFFICER WHO DOES NOT SERVE ON ACTIVE DUTY FOR THE ENTIRE PERIOD FOR WHICH HE WAS PAID "CONTINUATION PAY" UNDER SECTION 311 SHALL REFUND THAT PERCENTAGE OF THE PAYMENT THAT THE UNSERVED PART OF THE PERIOD IS OF THE TOTAL PERIOD FOR WHICH THE PAYMENT WAS MADE. IT IS SOUGHT, BY ANALOGY, TO TREAT THE MATTER OF THE UNSERVED PERIOD FOR WHICH ,CONTINUATION PAY" HAS ACCRUED OR BEEN PAID, IN THE SAME MANNER THAT REFUND OF THE VARIABLE REENLISTMENT BONUS PRESCRIBED IN SECTION 308 (G) WAS TREATED IN DECISION OF JANUARY 4, 1966, 45 COMP. GEN. 379.

IN THE DECISION OF JANUARY 4, 1966, IT WAS HELD IN ANSWER TO THE FIRST QUESTION THEREIN PRESENTED:

* * * THE REENLISTMENT OF A MEMBER ACCOMPLISHED PURSUANT TO REGULATIONS TO BE PRESCRIBED AS PROVIDED IN SUBSECTION (G) CONSTITUTES AN ACCEPTANCE OF THE GOVERNMENT'S OFFER AND AT THAT POINT THE GOVERNMENT BECOMES OBLIGATED TO PAY THE VARIABLE REENLISTMENT BONUS COMPUTED IN ACCORDANCE WITH THE PARTICULAR FACTS OF THE CASE. HENCE, IT IS OUR VIEW THAT THE RIGHT TO RECEIVE THE VARIABLE REENLISTMENT BONUS VESTS IN THE ENLISTED MEMBER CONCERNED UPON COMPLETION OF THE REENLISTMENT PROCEDURE. THEREFORE, IN THE CASE OF A MEMBER WHO DIES PRIOR TO RECEIVING THE FULL AMOUNT OF THE VARIABLE REENLISTMENT BONUS PAYABLE TO HIM, THE BALANCE REMAINING UNPAID WOULD BE PAYABLE (AS A LUMP SUM TO BE INCLUDED IN THE SETTLEMENT OF THE DECEASED MEMBER'S FINAL MILITARY PAY ACCOUNT) IN THE MANNER PRESCRIBED IN 10 U.S.C. 2771.

IT IS IMPORTANT TO NOTE THAT THE CONCLUSION SO REACHED WAS BASED UPON THE SPECIFIC LANGUAGE IN SUBSECTION (E) OF SECTION 308, TITLE 37, U.S. CODE, WHICH PROVIDES AS FOLLOWS:

(E) UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, OR BY THE SECRETARY OF THE TREASURY (TRANSPORTATION) WITH RESPECT TO THE COAST GUARD, A MEMBER WHO VOLUNTARILY, OR BECAUSE OF HIS MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH A BONUS WAS PAID TO HIM UNDER THIS SECTION SHALL REFUND THAT PERCENTAGE OF THE BONUS THAT THE UNEXPIRED PART OF HIS ENLISTMENT IS OF THE TOTAL ENLISTMENT PERIOD FOR WHICH THE BONUS WAS PAID.

UNDER SUBSECTION (E) REFUND IS REQUIRED ONLY IN A CASE WHERE A MEMBER VOLUNTARILY, OR BECAUSE OF HIS MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH THE BONUS WAS PAID. INASMUCH AS SUBSECTION (E) OF SECTION 308 ENUMERATES THE SPECIFIC CONDITIONS WHICH CONGRESS IMPOSED AS REQUIRING REFUND OF THE UNEARNED PORTION OF A VARIABLE REENLISTMENT BONUS, IT FOLLOWS THAT REFUND OF ANY UNEARNED PORTION OF SUCH BONUS IS NOT REQUIRED BY THE STATUTE WHEN A MEMBER FAILS FOR ANY OTHER REASON, INCLUDING DEATH, TO COMPLETE THE TERM OF ENLISTMENT FOR WHICH HE RECEIVED SUCH BONUS. HENCE, IN QUESTION 1, DECISION OF JANUARY 4, 1966, DEATH OF A MEMBER DID NOT AFFECT THE MEMBER'S VESTED RIGHT TO RECEIVE THE VARIABLE REENLISTMENT BONUS. CONSEQUENTLY THE UNPAID AMOUNT THEREOF PROPERLY WAS HELD TO BE PAYABLE AS A LUMP SUM IN THE SETTLEMENT OF THE DECEASED MEMBER'S FINAL MILITARY PAY ACCOUNT AS PRESCRIBED IN 10 U.S.C. 2771.

IN CONTRAST TO THE PROVISIONS OF SECTION 308 (E), SUBSECTION (B) OF SECTION 311 DOES NOT REQUIRE A PERCENTAGE REFUND ONLY IF THE INDIVIDUAL OFFICER VOLUNTARILY, OR BECAUSE OF HIS MISCONDUCT, DOES NOT COMPLETE THE PERIOD OF ACTIVE SERVICE FOR WHICH THE PAYMENT OF CONTINUATION PAY WAS MADE TO HIM. THE CLEAR AND UNAMBIGUOUS LANGUAGE OF SECTION 311 (B) PERMITS NO EXCEPTIONS AND BECOMES FULLY OPERATIVE IN ANY INSTANCE WHERE AN OFFICER WHO HAS RECEIVED CONTINUATION PAY DOES NOT SERVE ON ACTIVE DUTY FOR THE FULL PERIOD FOR WHICH SUCH CONTINUATION PAY WAS PAID, WITHOUT REGARD TO THE REASON OR REASONS WHY HE FAILS OR IS UNABLE TO FULFILL HIS WRITTEN COMMITMENT FOR ACTIVE DUTY SERVICE.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE AND NO REPLY IS REQUIRED TO QUESTION 2.