B-166883, JULY 29, 1969, 49 COMP. GEN. 54

B-166883: Jul 29, 1969

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WHO NEITHER BEFORE NOR AFTER ENTERING INTO THE SERVICE HAD COMPLETED THE INTERNSHIP TRAINING PRESCRIBED BY PARAGRAPH 10503B OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL IS. THAT HE WAS NOT REQUIRED TO UNDERGO INTERNSHIP TRAINING TO PERFORM THE DUTIES ASSIGNED TO HIM AS A RESEARCH PHYSICIAN. 1969: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. YOUR REQUEST WAS FORWARDED HERE BY THE OFFICE. CAPTAIN NAMEROFF WAS ORDERED TO ACHIEVE DUTY WITH HIS CONSENT FOR 2 YEARS AS A RESERVE OFFICER IN THE MEDICAL CORPS AND ASSIGNED TO THE ARMED FORCES INSTITUTE OF PATHOLOGY. AS IT WAS DETERMINED THAT HE WAS NOT ENTITLED TO MEDICAL PAY PRIOR TO COMPLETION OF AN INTERNSHIP.

B-166883, JULY 29, 1969, 49 COMP. GEN. 54

PAY -- MEDICAL AND DENTAL OFFICERS -- INTERNSHIP PAYMENT PROHIBITION AN ARMY RESERVE OFFICER DESIGNATED AS HAVING THE MILITARY OCCUPATIONAL SPECIALTY OF A GENERAL MEDICAL OFFICER, WHO NEITHER BEFORE NOR AFTER ENTERING INTO THE SERVICE HAD COMPLETED THE INTERNSHIP TRAINING PRESCRIBED BY PARAGRAPH 10503B OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL IS, NEVERTHELESS, ENTITLED FROM THE DATE OF ENTERING ON ACTIVE DUTY TO THE SPECIAL PAY PRESCRIBED BY 37 U.S.C. 302(A) FOR MEDICAL AND DENTAL OFFICERS. THE STATUTE DOES NOT REQUIRE INTERNSHIP IN EVERY CASE BEFORE ENTITLEMENT TO THE SPECIAL PAY, AND THE ARMY SURGEON GENERAL HAD DETERMINED THAT THE OFFICER MET THE EDUCATIONAL AND PROFESSIONAL REQUIREMENTS FOR APPOINTMENT TO THE ARMY MEDICAL CORPS, AND THAT HE WAS NOT REQUIRED TO UNDERGO INTERNSHIP TRAINING TO PERFORM THE DUTIES ASSIGNED TO HIM AS A RESEARCH PHYSICIAN.

TO MAJOR CURTIS D. LEE, DEPARTMENT OF THE ARMY, JULY 29, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1969 (FILE REFERENCE MEDEC-CFA), WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN FAVOR OF CAPTAIN MARK A. NAMEROFF, 05 255 011, COVERING THE PERIOD SEPTEMBER 10, 1967, TO MARCH 31, 1969, REPRESENTING SPECIAL PAY AS A MEDICAL OFFICER UNDER THE CIRCUMSTANCES DISCLOSED. YOUR REQUEST WAS FORWARDED HERE BY THE OFFICE, CHIEF OF FINANCE AND ACCOUNTING, UNDER DATE OF MAY 5, 1969, AND HAS BEEN ASSIGNED D.O. NO. A-1037 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD INDICATES THAT BY LETTER ORDER A-09-3259, DEPARTMENT OF THE ARMY, HEADQUARTERS, FIRST U.S. ARMY, FORT GEORGE G. MEADE, MARYLAND, DATED SEPTEMBER 1, 1967, AS AMENDED, CAPTAIN NAMEROFF WAS ORDERED TO ACHIEVE DUTY WITH HIS CONSENT FOR 2 YEARS AS A RESERVE OFFICER IN THE MEDICAL CORPS AND ASSIGNED TO THE ARMED FORCES INSTITUTE OF PATHOLOGY, WASHINGTON, D.C., WITH TEMPORARY DUTY EN ROUTE AT FORT SAM HOUSTON, TEXAS. THE ORIGINAL ORDERS REQUIRED HIM TO REPORT ON SEPTEMBER 11, 1967. PARAGRAPH 2, SPECIAL ORDERS NO. 190, HEADQUARTERS, ARMED FORCES INSTITUTE OF PATHOLOGY, WASHINGTON, D.C., DATED OCTOBER 23, 1967, SHOWS HIS MILITARY OCCUPATIONAL SPECIALITY AS A GENERAL MEDICAL OFFICER.

YOU STATE THAT PRIOR TO ENTERING INTO THE SERVICE CAPTAIN NAMEROFF HAD NOT COMPLETED AN INTERNSHIP, NOR DID HE PERFORM AN INTERNSHIP UPON ENTERING THE SERVICE. YOU FURTHER STATE THAT THE OFFICER HAS NOT BEEN PAID MEDICAL PAY DURING HIS PERIOD OF SERVICE, AS IT WAS DETERMINED THAT HE WAS NOT ENTITLED TO MEDICAL PAY PRIOR TO COMPLETION OF AN INTERNSHIP, CITING PARAGRAPH 10503B OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL.

SPECIAL PAY IS AUTHORIZED FOR CERTAIN MEDICAL AND DENTAL OFFICERS WHO ARE OTHERWISE QUALIFIED AS PROVIDED IN SECTION 302(A) OF TITLE 37, U.S. CODE, WHICH IS, 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:

(2) A COMMISSIONED OFFICER--

(A) OF A RESERVE COMPONENT OF THE ARMY OR NAVY WHO IS IN THE MEDICAL OR DENTAL CORPS OF THE ARMY OR THE NAVY, AS THE CASE MAY BE;

(B) OF A RESERVE COMPONENT OF THE AIR FORCE, OF THE ARMY OR THE AIR FORCE WITHOUT SPECIFICATION OF COMPONENT, OR OF THE NATIONAL GUARD, WHO IS DESIGNATED AS A MEDICAL OR DENTAL OFFICER OF THE ARMY OR THE AIR FORCE, AS THE CASE MAY BE; OR

* * * * * * * WHO, AFTER SEPTEMBER 1, 1947, AND BEFORE JULY 1, 1971, WAS ORDERED TO ACTIVE DUTY FOR A PERIOD OF AT LEAST ONE YEAR; AND

HOWEVER, AN OFFICER IS NOT ENTITLED TO THE SPECIAL PAY PROVIDED BY THIS SECTION WHILE HE IS SERVING AS A MEDICAL OR DENTAL INTERN.

SUBSECTION (B) OF SECTION 302 PRESCRIBES THE AMOUNT OF SPECIAL PAY TO WHICH AN OFFICER COVERED BY SUBSECTION (A) IS ENTITLED, AND INCLUDES

(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.

REGULATIONS GOVERNING THE PAYMENT OF THIS SPECIAL PAY FOR MEDICAL AND DENTAL OFFICERS INCLUDE A PROVISION (PARAGRAPH 10503B OF THE PAY AND ALLOWANCES MANUAL) THAT "A MEDICAL OFFICER IS NOT ENTITLED TO SPECIAL PAY FOR ANY ACTIVE DUTY PRECEDING HIS INTERNSHIP OR WHILE SERVING AS AN INTERN."

CAPTAIN NAMEROFF STATES THAT HE RECEIVED HIS M.D. DEGREE IN 1965 AND A PH. D. DEGREE IN 1966. HE FURTHER STATES THAT SUBSEQUENT TO RECEIVING HIS DEGREE HE WAS ENGAGED IN RESEARCH AND TEACHING AT THE SCHOOL OF MEDICINE, UNIVERSITY OF PENNSYLVANIA, AND THAT HIS COMBINED MEDICAL AND RESEARCH EXPERIENCE BEFORE ENTERING THE ARMY COVERED A PERIOD OF 7 YEARS. THE OFFICER POINTS OUT THAT THE ARMY HAS SEEN FIT TO CONSIDER HIM A MEMBER OF THE MEDICAL CORPS AND "HAS GIVEN ME THE MOS OF GENERAL MEDICAL OFFICER."

IN COMMENTING ON THE OFFICER'S DUTY ASSIGNMENT WHILE SERVING ON ACTIVE DUTY THE CHIEF, PERSONNEL DIVISION, ARMED FORCES INSTITUTE OF PATHOLOGY, IN FIRST ENDORSEMENT DATED FEBRUARY 20, 1969, STATED:

CPT NAMEROFF IS ASSIGNED PRIMARY DUTY AS A RESEARCH PHYSICIAN AT THIS INSTITUTE, IN THE LABORATORY OF SKELETAL MUSCLE RESEARCH, OFFICE OF THE DEPUTY DIRECTOR, USA. DUTIES INVOLVE RESEARCH IN CELL BIOLOGY DEALING WITH MUSCLE GENESIS AND REGENERATION AND PROBLEMS OF MILITARY MEDICAL IMPORTANCE SUCH AS MUSCLE REPAIR AND WOUND HEALING.

IN ANOTHER COMMENT ON THE OFFICER'S QUALIFICATIONS AND DUTIES THE DIRECTOR, PROFESSIONAL SERVICE, OFFICE OF THE SURGEON GENERAL, IN A MEMORANDUM DATED MARCH 17, 1969, STATED:

1. CAPTAIN NAMEROFF'S SPECIAL RESEARCH TRAINING AND EXPERIENCE (3 YEARS), EMINENTLY QUALIFIES HIM TO PERFORM THE HIGHLY PROFESSIONAL DUTIES CONTAINED WITHIN HIS PRESENT ASSIGNMENT.

2. AN INTERNSHIP WOULD HAVE CONTRIBUTED FAR LESS TOWARD ELIGIBILITY FOR HIS PRESENT DUTY THAN DID THE RESEARCH TRAINING HE TOOK IN ITS PLACE.

3. IN VIEW OF PARA 1 AND PARA 2 ABOVE, RECOMMEND THAT CPT NAMEROFF BE PROVIDED ENTITLEMENT TO SPECIAL PAY.

THE QUESTION OF WHETHER A MEDICAL OR DENTAL OFFICER IS ENTITLED TO SPECIAL PAY IN THE LIGHT OF THE INTERNSHIP PROHIBITION IN SECTION 203B OF THE CAREER COMPENSATION ACT OF 1949 (NOW CODIFIED IN 37 U.S.C. 302(A)) FROM THE DATE OF ENTERING ON ACTIVE DUTY UNTIL THE DAY PRIOR TO BEGINNING DUTY AS AN INTERN WAS CONSIDERED IN DECISION OF AUGUST 20, 1956, B-128285, 36 COMP. GEN. 135 (1956). IN CONCLUDING THAT THE MEMBER THERE MENTIONED WAS NOT ENTITLED TO THE SPECIAL PAY (JUNE 11 TO 30, 1955), WE SAID THAT IT REASONABLY APPEARED FROM THE DISCUSSION OF THE LEGISLATIVE HISTORY THERE QUOTED, WHEN CONSIDERED IN CONJUNCTION WITH THE LANGUAGE OF SECTION 203(B), THAT THE CONGRESS DID NOT INTEND THAT MEDICAL AND DENTAL OFFICERS SHOULD RECEIVE THE SPECIAL PAY OF $100 A MONTH UNTIL AFTER COMPLETION OF THEIR INTERNSHIP.

IT SHOULD BE NOTED, HOWEVER, THAT THE DECISION CITED CONSIDERED A CASE IN WHICH IT WAS CLEAR THAT AN INTERNSHIP WAS TO BE PERFORMED. WE THINK THE CONCLUSION REACHED IN THAT DECISION IS CONSISTENT WITH THE LAW. WE FIND NOTHING IN 37 U.S.C. 302(A) WHICH WOULD REQUIRE AN INTERNSHIP IN EVERY CASE BEFORE ENTITLEMENT TO THE SPECIAL PAY EXISTS. THE ARMY SURGEON GENERAL APPEARS TO BE VESTED WITH THE AUTHORITY TO DETERMINE WHETHER AN INDIVIDUAL HAS MET THE EDUCATIONAL AND PROFESSIONAL REQUIREMENTS FOR APPOINTMENT IN THE ARMY MEDICAL CORPS, INCLUDING THE REQUIREMENT OF COMPLETING A 1 YEAR INTERNSHIP OR ITS EQUIVALENT AFTER GRADUATION FROM MEDICAL SCHOOL. SEE PARAGRAPH 12, ARMY REGULATIONS 601-124, PERTAINING TO APPOINTMENT IN THE CORPS OF THE ARMY MEDICAL SERVICE, REGULAR ARMY. READ PARAGRAPH 10503B OF THE PAY ENTITLEMENTS MANUAL AS DENYING THE SPECIAL PAY AUTHORIZED BY 37 U.S.C. 302(A) IN THE CASE OF A MEDICAL OFFICER WHO IS NOT REQUIRED TO TAKE INTERNSHIP TRAINING WOULD GIVE IT A MEANING IN CONFLICT WITH THE LAW. ACCORDINGLY, THAT PARAGRAPH WILL BE READ AS DENYING THE SPECIAL PAY TO A MEDICAL OFFICER FOR ACTIVE DUTY "PRECEDING HIS INTERNSHIP" ONLY IN A CASE IN WHICH INTERNSHIP TRAINING IS INVOLVED.

SINCE IT APPEARS THAT CAPTAIN NAMEROFF WAS APPOINTED A MEDICAL OFFICER IN THE MEDICAL CORPS, USAR, THAT HE WAS ORDERED TO ACTIVE DUTY IN THAT CAPACITY AND THAT HE WAS NOT REQUIRED TO UNDERGO INTERNSHIP TRAINING TO PERFORM THE DUTIES ASSIGNED TO HIM AS A RESEARCH PHYSICIAN, IT IS OUR VIEW THAT HE IS ENTITLED TO SPECIAL PAY AS A MEDICAL OFFICER UNDER 37 U.S.C. 302(A)(B), COMMENCING WITH THE DATE OF ENTERING ON ACTIVE DUTY. CF. B- 136198, JULY 2, 1958.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED THEREON IF OTHERWISE CORRECT.