B-168441, MAR. 3, 1970

B-168441: Mar 3, 1970

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WHICH IS BEING RECOUPED BY NAVY AS ERRONEOUS PAYMENT. MAY NOT BE ALLOWED NOTWITHSTANDING INTERNSHIP WAS VOLUNTARY AND CLAIMANT REGARDS PROGRAM AS "POST FELLOWSHIP" RATHER THAN INTERNSHIP. LEGISLATIVE HISTORY OF SOURCE STATUTE- -CAREER COMPENSATION ACT OF 1949- CLEARLY ESTABLISHES STATUTORY PROHIBITION AGAINST PAYMENT OF SPECIAL PAY TO MEDICAL AND DENTAL OFFICERS WHILE SERVING INTERNSHIP WAS INTENDED TO APPLY IRRESPECTIVE OF WHETHER INTERNSHIP WAS COMPULSORY OR VOLUNTARY. VAN NESS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30. YOUR LETTER WILL BE CONSIDERED AS A CLAIM FOR THE AMOUNT NOW BEING COLLECTED FROM YOU. YOU EXPLAINED IN EFFECT THAT YOU HAVE NOT BEEN REQUIRED TO REFUND SUCH SPECIAL PAY FOR THE PERIOD JUNE 9 TO 30.

B-168441, MAR. 3, 1970

PAY--MEDICAL AND DENTAL OFFICERS--INTERNSHIP PAYMENT PROHIBITION CLAIM FOR $1,200, PAID TO NAVAL DENTAL INTERN FROM JULY 1, 1966 TO JUNE 30, 1967, WHICH IS BEING RECOUPED BY NAVY AS ERRONEOUS PAYMENT, MAY NOT BE ALLOWED NOTWITHSTANDING INTERNSHIP WAS VOLUNTARY AND CLAIMANT REGARDS PROGRAM AS "POST FELLOWSHIP" RATHER THAN INTERNSHIP, INASMUCH AS 37 U.S.C. 202 (A) EXPRESSLY PROHIBITS PAYMENT OF SPECIAL PAY TO NAVAL MEDICAL OR DENTAL OFFICERS DURING PERIOD OF INTERNSHIP, AND NAVY REGARDS PROGRAM CONCERNED AS INTERNSHIP. MOREOVER, LEGISLATIVE HISTORY OF SOURCE STATUTE- -CAREER COMPENSATION ACT OF 1949- CLEARLY ESTABLISHES STATUTORY PROHIBITION AGAINST PAYMENT OF SPECIAL PAY TO MEDICAL AND DENTAL OFFICERS WHILE SERVING INTERNSHIP WAS INTENDED TO APPLY IRRESPECTIVE OF WHETHER INTERNSHIP WAS COMPULSORY OR VOLUNTARY.

TO LIEUTENANT COMMANDER ALLAN L. VAN NESS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1969, AND ENCLOSURES, PROTESTING THE ACTION OF THE U.S. NAVY FINANCE OFFICE, YOKOSUKA, JAPAN, IN RECOUPING THE AMOUNT OF $1,200 PAID TO YOU AS SPECIAL PAY INCIDENT TO YOUR SERVICE AS A DENTAL INTERN DURING THE PERIOD JULY 1, 1966, TO JUNE 30, 1967. YOUR LETTER WILL BE CONSIDERED AS A CLAIM FOR THE AMOUNT NOW BEING COLLECTED FROM YOU.

THE RECORD SHOWS THAT UNDER DATE OF JULY 18, 1969, YOU ADDRESSED A LETTER TO THIS OFFICE VIA COMMAND CHANNELS REQUESTING A DECISION CONCERNING THE PROPRIETY OF A PROPOSED WITHHOLDING FROM YOUR PAY OF THE AMOUNT OF $1,200, REPRESENTING SPECIAL PAY PAID TO YOU FOR THE PERIOD OF YOUR VOLUNTARY INTERNSHIP, JULY 1, 1966, TO JUNE 30, 1967. YOU EXPLAINED IN EFFECT THAT YOU HAVE NOT BEEN REQUIRED TO REFUND SUCH SPECIAL PAY FOR THE PERIOD JUNE 9 TO 30, 1966, DURING WHICH YOU SERVED ON ACTIVE DUTY IMMEDIATELY PRIOR TO THE BEGINNING OF YOUR INTERNSHIP, AND THAT THE WITHHOLDING ACTION FOR THE PERIOD OF INTERNSHIP WAS BASED UPON ADVICE CONTAINED IN A LETTER DATED JULY 2, 1969, FROM THE DIRECTOR, NAVY MILITARY PAY SYSTEM.

SUCH ADVICE WAS TO THE EFFECT THAT THE GOVERNING REGULATIONS PROVIDE FOR THE PAYMENT OF SPECIAL PAY TO A QUALIFIED DENTAL OFFICER UPON ASSUMPTION OF FULL PROFESSIONAL DUTIES EVEN IF HE LATER SERVES A VOLUNTARY INTERNSHIP, BUT NOT DURING THE PERIOD OF SUCH INTERNSHIP. YOU EXPRESSED THE VIEW THAT THOSE REGULATIONS APPLY ONLY TO MEDICAL AND DENTAL OFFICERS SERVING IN REQUIRED INTERNSHIPS AND THAT THE REGULATIONS HAVE BEEN INCORRECTLY INTERPRETED IN CASES INVOLVING DENTAL OFFICERS SERVING IN VOLUNTARY INTERNSHIPS.

BY LETTER DATED SEPTEMBER 15, 1969, THE DIRECTOR, NAVY MILITARY PAY SYSTEM, ADVISED YOU THAT YOUR REQUEST HAD NOT BEEN FORWARDED TO THIS OFFICE FOR THE REASON THAT YOUR QUESTION COULD BE ANSWERED ON THE BASIS OF CURRENT REGULATIONS AND THAT THE GOVERNING LAW PRECLUDES MEDICAL AND DENTAL OFFICERS FROM ENTITLEMENT TO SPECIAL PAY WHILE SERVING AS INTERNS.

IN YOUR LETTER OF OCTOBER 30, 1969, YOU EXPRESS DISAGREEMENT WITH THE OPINION OF THE DIRECTOR, NAVY MILITARY PAY SYSTEM. YOU SAY THAT IT IS YOUR OPINION THAT THE GOVERNING LAW, 37 U.S.C. 302 (A), HAS BEEN MISINTERPRETED BECAUSE YOU BELIEVE THAT IT WAS NOT THE ORIGINAL INTENT OF CONGRESS TO PROHIBIT PAYMENT OF SPECIAL PAY TO "FULLY QUALIFIED DENTAL OFFICERS WHO HAVE BEEN SELECTED TO SERVE THE NAVY IN A HIGHLY COMPETITIVE PROGRAM SUCH AS ITS VOLUNTARY ROTATION DENTAL INTERNSHIP."

IN SUPPORT OF YOUR VIEW YOU SAY THAT A MEDICAL INTERNSHIP IS IN REALITY THE FINAL YEAR OF A PHYSICIAN'S GENERAL TRAINING WHEREAS A DENTIST HAS COMPLETED HIS GENERAL TRAINING ON COMPLETION OF DENTAL SCHOOL, THAT WHILE THE NAVY REQUIRES ITS MEDICAL OFFICERS TO HAVE A COMPLETED MEDICAL INTERNSHIP BEFORE THEY CAN BE CONSIDERED AS FULLY QUALIFIED PHYSICIANS IN THE NAVY THIS IS NOT THE CASE WITH DENTAL OFFICERS, THAT THE DENTAL INTERNSHIP IS VOLUNTARY, AND THAT THE ROTATING DENTAL INTERNSHIP GIVES A DENTAL OFFICER ADDITIONAL EXPERIENCE AND TRAINING IN ALL THE SPECIALTIES OF DENTISTRY AS WELL AS IN HOSPITAL PROCEDURES. ALSO, YOU EXPRESS THE OPINION THAT THE VOLUNTARY INTERNSHIP PROGRAM IN WHICH YOU PARTICIPATED SHOULD HAVE BEEN LABELED "POST FELLOWSHIP IN GENERAL DENTISTRY" RATHER THAN AN "INTERNSHIP."

QUALIFIED MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES ARE AUTHORIZED TO RECEIVE SPECIAL PAY PURSUANT TO 37 U.S.C. 302 (A), WHICH IN PERTINENT PART READS 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--

"(1) A COMMISSIONED OFFICER--

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

* * * * * 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 SPECIFIES THAT AN OFFICER COVERED BY SUBSECTION (A) IS ENTITLED TO $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 IMPLEMENTING THE ABOVE PROVISIONS OF LAW ARE CONTAINED IN THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCES ENTITLEMENTS MANUAL. NOTE 1 OF TABLE 1-5-1 OF THAT MANUAL STIPULATES THAT A MEDICAL OR DENTAL OFFICER IS NOT ENTITLED TO SPECIAL PAY WHILE SERVING AS A MEDICAL OR DENTAL INTERN.

THE PRESENT STATUTE, 37 U.S.C. 302 (A), EXPRESSLY PROHIBITS THE PAYMENT OF SPECIAL PAY TO A NAVAL MEDICAL OR DENTAL OFFICER DURING THE PERIOD OF HIS INTERNSHIP. THE SOURCE STATUTE, SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 809, LIKE SECTION 101 OF THE ACT OF AUGUST 5, 1947, CH. 494, 61 STAT. 776, AUTHORIZED ADDITIONAL PAY OF $100 TO CERTAIN MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES, BUT UNLIKE THE PRIOR LAW IT EXPRESSLY PROHIBITED THE PAYMENT OF SUCH SPECIAL PAY TO A COMMISSIONED OFFICER "WHILE HE IS SERVING AS A MEDICAL OR DENTAL INTERN." THAT PROVISION WAS RECOMMENDED BY THE ADVISORY COMMISSION ON SERVICE PAY (HOOK COMMISSION).

IT WAS DISCUSSED IN THE HEARINGS CONDUCTED BY THE SENATE COMMITTEE ON ARMED SERVICES (SEE PAGES 214 AND 215 OF THE SENATE HEARINGS ON H.R. 5007, 81ST CONGRESS, FIRST SESSION, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949), IN PART AS FOLLOWS (PAGE 215):

"SENATOR SALTONSTALL. IS THAT NOT VIOLATING THE LAW THAT WE PASSED 2 YEARS AGO?

GENERAL DAHLQUIST. THAT IS A CHANGE IN THE LAW.

MR. HOEN. IT IS A CHANGE, SIR. IN THE LAW THAT EXISTS TODAY, THE PEOPLE WHO ARE EDUCATED AT GOVERNMENT EXPENSE AND WERE FORCED TO SERVE A PERIOD OF 1 YEAR IN THE SERVICES DID NOT GET THE $100 BECAUSE IT WAS NOT ON A VOLUNTARY BASIS. THE $100 ONLY WENT TO THOSE ON A VOLUNTARY BASIS.

NOW THIS AGAIN, EVEN IF VOLUNTEERED AS AN INTERNE, IT WOULD BE DENIED TO THEM. IF THEY TOOK THEIR INTERNSHIP ON THE OUTSIDE AND CAME IN A YEAR AFTER, THEN THEY WOULD GET $100. I DO NOT BELIEVE IT IS A VIOLATION BECAUSE IT IS A MATTER OF VOLUNTEERING UNDER THE LAW.

THE CHAIRMAN. LET ME ASK YOU THIS SO THE RECORD WILL BE COMPLETE ON IT. IF A MAN HAS SERVED AN INTERNSHIP IN A HOSPITAL PRIOR TO GOING INTO THE SERVICE, THEN HE WOULD GET HIS $100.

MR. HOEN. HE WOULD GET HIS $100."

THUS, THE STATUTORY PROHIBITION AGAINST THE PAYMENT OF THE SPECIAL PAY TO MEDICAL AND DENTAL OFFICERS WHILE SERVING AS INTERNS APPLIES TO ANY PERIOD OF INTERNSHIP SERVICE PERFORMED WHILE ON ACTIVE DUTY, IRRESPECTIVE OF WHETHER SUCH INTERNSHIP WAS REQUIRED OR WAS ENTERED INTO VOLUNTARILY BY THE MEDICAL OR DENTAL OFFICER. ACCORDINGLY, THE REGULATIONS WHICH PRECLUDE THE PAYMENT OF THE SPECIAL PAY TO DENTAL OFFICERS DURING A PERIOD OF INTERNSHIP WERE PROMULGATED IN ACCORDANCE WITH THE INTENT AND PURPOSE OF THE LAW.

WHILE IT IS YOUR CONTENTION THAT THE NAVAL INTERNSHIP PROGRAM IN WHICH YOU PARTICIPATED WAS NOT AN "INTERNSHIP," IT WAS SO REGARDED BY THE NAVY AND THERE APPEARS NO BASIS ON WHICH THIS OFFICE MAY CONCLUDE THAT YOU DID NOT IN FACT SERVE AN INTERNSHIP--IT BEING IMMATERIAL WHETHER IT WAS VOLUNTARY OR INVOLUNTARY.

SINCE YOU WERE NOT ENTITLED TO THE SPECIAL PAY WHILE SERVING AS AN INTERN THE PAYMENTS WERE ERRONEOUS AND THE RECOUPMENT ACTION OF THE NAVY IS CORRECT. ACCORDINGLY, NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM.