B-170368, AUG 18, 1970, 50 COMP GEN 99

B-170368, AUG 18, 1970, 50 COMP GEN 99

PAY - INCREASES - COMPARABLE TO CLASSIFIED EMPLOYEES - ADJUSTMENT ALTHOUGH MEMBERS OF THE UNIFORMED SERVICES ARE AUTHORIZED PAY INCREASES BY PUBLIC LAW 90-207, DATED DECEMBER 16, 1967, WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS INCREASED, THE SECRETARY OF DEFENSE IN IMPLEMENTING THE FEDERAL EMPLOYEES SALARY ACT OF 1970, UNDER THE AUTHORITY OF SECTION 2(B) OF EXECUTIVE ORDER NO. 11525, HAVING DETERMINED THAT A MEMBER IS NOT ENTITLED TO AN INCREASE PURSUANT TO THE 1970 ACT UNLESS HE WAS IN AN ACTIVE DUTY STATUS ON THE DATE OF ITS ENACTMENT--APRIL 15, 1970--A NAVAL RESERVE OFFICER INJURED WHILE ON ACTIVE DUTY FOR TRAINING FROM MARCH 9, TO MARCH 22, 1970, WHO CONTINUES ON THE BASIS OF DISABILITY TO RECEIVE THE BENEFITS PROVIDED BY 10 U.S.C. 6148(A) AND 37 U.S.C. 204(I), THROUGH APRIL 14, 1970, NOT HAVING BEEN IN AN ACTIVE DUTY STATUS ON APRIL 15, 1970, IS NOT ENTITLED TO A RETROACTIVE INCREASE.

TO LIEUTENANT COMMANDER D. W. CROMER, DEPARTMENT OF THE NAVY, AUGUST 18, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 26, 1970, YOUR REFERENCE 7220 NFO:BSN DWC:SM, REQUESTING AN ADVANCE DECISION IN THE CASE OF LIEUTENANT COMMANDER DAVID W. JAYNES, USNR-R, 613645/1315, AS TO THE TREATMENT TO BE ACCORDED HIS PAY FOR ACTIVE DUTY FOR TRAINING FROM MARCH 9, 1970, THROUGH MARCH 22, 1970, AND SUBSEQUENT PAYMENTS BASED ON DISABILITY FROM MARCH 23, 1970, THROUGH APRIL 14, 1970, SAID TO HAVE BEEN UNDER THE AUTHORITY OF 10 U.S.C. 6148(A), IN APPLYING THE RETROACTIVE PROVISIONS OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APRIL 15, 1970, 84 STAT. 195. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY THE DIRECTOR, NAVY MILITARY PAY SYSTEM, UNDER SUBMISSION NO. DO-N-1085, ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTIONS ON WHICH A DECISION IS REQUESTED ARE AS FOLLOWS:

(A) MAY THE DISABILITY BENEFITS PAID LCDR JAYNES UNDER THE AUTHORITY OF REFERENCE (B) (10 U.S.C. 6148(A)) BE CONSIDERED "... PAY, COMPENSATION OR SALARY ... " TO AN " ... INDIVIDUAL IN THE SERVICE OF THE UNITED STATES ... " SO AS TO ENTITLE HIM TO A RETROACTIVE SALARY ADJUSTMENT FOR THE PERIOD 23 MARCH 1970-14 APRIL 1970?

(B) WILL AN AFFIRMATIVE ANSWER TO THE ABOVE SERVE TO ALSO AUTHORIZE RETROACTIVE ADJUSTMENT FOR THE PERIOD OF ACTIVE DUTY FOR TRAINING, 9 MARCH 1970-22 MARCH 1970?

YOU STATE THAT COMMANDER JAYNES WAS ORDERED TO PERFORM ACTIVE DUTY FOR TRAINING FROM MARCH 9, 1970, THROUGH MARCH 22, 1970. ENCLOSED WITH YOUR LETTER IS A COPY OF THE ORDERS DATED FEBRUARY 13, 1970, WHICH DIRECTED HIM TO REPORT FOR ACTIVE DUTY FOR TRAINING ON MARCH 9, 1970, FOR NOT TO EXCEED 14 DAYS. IN A COMMUNICATION FROM THE CHIEF OF NAVAL AIR RESERVE TRAINING TO COMMANDER JAYNES, DATED MARCH 31, 1970, ENCLOSED WITH YOUR LETTER, IT IS REPORTED THAT COMMANDER JAYNES WAS INJURED ON MARCH 14, 1970. THE COMMUNICATION ALSO STATES THAT UNDER THE PROVISIONS OF 10 U.S.C. 6148(A), IT HAD BEEN DETERMINED THAT HE SUFFERED A DISABILITY IN THE LINE OF DUTY, WHILE IN A STATUS OF ACTIVE DUTY FOR TRAINING, AND WAS DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE ON THE DATE THE INJURY WAS INCURRED. IT IS STATED FURTHER THAT DURING THE PERIOD OF HIS DISABILITY, COMMANDER JAYNES WAS ENTITLED TO RECEIVE THE BENEFITS PROVIDED BY 10 U.S.C. 6148(A) AND 37 U.S.C. 204(I). YOU REPORT THAT AN ADJUSTMENT WAS MADE IN HIS PAY FROM APRIL 15, 1970, "AT THE RATES ESTABLISHED BY" THE 1970 ACT.

10 U.S.C. 6148(A) PROVIDES AS FOLLOWS:

(A) A MEMBER OF THE NAVAL RESERVE, THE FLEET RESERVE, THE MARINE CORPS RESERVE, OR THE FLEET MARINE CORPS RESERVE WHO IS ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE-DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, OR THE BENEFICIARY OF SUCH A MEMBER WHO DIES FROM SUCH AN INJURY, IS ENTITLED TO THE SAME PENSION, COMPENSATION, DEATH GRATUITY, AND HOSPITAL BENEFITS AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE. FOR THE PURPOSE OF THIS SUBSECTION, A MEMBER WHO IS NOT IN A PAY STATUS SHALL BE TREATED AS THOUGH HE WERE RECEIVING THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY.

37 U.S.C. 204(I) PROVIDES:

(I) A MEMBER OF THE NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE, FLEET MARINE CORPS RESERVE, OR COAST GUARD RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR NAVY, REGULAR MARINE CORPS, OR REGULAR COAST GUARD, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, UNDER THE SAME CONDITIONS AS THOSE DESCRIBED IN CLAUSES (1) AND (2) OF SUBSECTION (G) OF THIS SECTION.

CLAUSES (1) AND (2) OF SUBSECTION (G) PROVIDE AS FOLLOWS:

(1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270(B) OF TITLE 10) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

IT APPEARS THAT COMMANDER JAYNES IS ENTITLED TO THE BENEFITS AND PAY AND ALLOWANCES GRANTED BY THE ABOVE-QUOTED STATUTORY PROVISIONS. HOWEVER, IT MUST BE NOTED THAT NEITHER OF THOSE SECTIONS PROVIDES THAT THOSE MEMBERS IN RECEIPT OF SUCH BENEFITS SHALL BE IN AN ACTIVE DUTY STATUS. THIS OFFICE, IN CONSIDERING THE STATUS OF MEMBERS OF RESERVE COMPONENTS IN SIMILAR CIRCUMSTANCES AND UNDER SIMILAR PROVISIONS OF LAW, HAS HELD THAT ALTHOUGH A MEMBER OF A RESERVE COMPONENT, WHO IS ORDERED TO ACTIVE DUTY AND WHO IS DISABLED IN THE LINE OF DUTY BY INJURY WHILE SO EMPLOYED, IS ENTITLED TO PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED, THE LAWS AUTHORIZING PAYMENT OF THESE BENEFITS DO NOT PLACE HIM IN ACTIVE MILITARY STATUS WHILE HE IS RECEIVING SUCH BENEFITS. SEE 41 COMP. GEN. 706 (1962), AND B-153332, MARCH 16, 1964.

COMMANDER JAYNES WAS ORDERED TO ACTIVE DUTY FOR TRAINING COMMENCING ON MARCH 9, 1970, FOR A PERIOD OF NOT TO EXCEED 14 DAYS. THEREFORE UNDER THE RULE IN THE CITED DECISIONS, HE HAD NO ACTIVE DUTY STATUS AFTER MARCH 22, 1970, EVEN THOUGH HE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AFTER THAT DATE AND SUCH ENTITLEMENT CONTINUED ON AND AFTER APRIL 15, 1970.

AN INCREASE IN THE MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS INCREASED, IS AUTHORIZED BY SECTION 8(A) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 649, 654, 37 U.S.C. 203 NOTE. SECTION 8(B)(2) OF THAT ACT PROVIDES THAT ANY SUCH INCREASE SHALL CARRY THE SAME EFFECTIVE DATE AS THAT APPLYING TO COMPENSATION ADJUSTMENTS PROVIDED GENERAL SCHEDULE EMPLOYEES. THEREFORE, WHEN THE FEDERAL EMPLOYEES SALARY ACT OF 1970 AUTHORIZED AN INCREASE IN THE RATES OF COMPENSATION FOR GENERAL SCHEDULE FEDERAL CLASSIFIED EMPLOYEES, THE PRESIDENT ISSUED EXECUTIVE ORDER 11525, DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970, WHICH IN SECTION 1 SET FORTH THE NEW RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES. SECTION 2 OF THE SAME EXECUTIVE ORDER PROVIDES AS FOLLOWS:

(A) A PERSON WHO BECAME ENTITLED AFTER DECEMBER 31, 1969, BUT BEFORE THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, TO PAYMENT FOR ITEMS SUCH AS LUMP-SUM LEAVE, REENLISTMENT AND VARIABLE REENLISTMENT BONUS, CONTINUATION PAY, AND TYPE OF SEPARATION PAY, OR SIX MONTHS DEATH GRATUITY, SHALL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THIS ORDER.

(B) AUTHORITY TO PRESCRIBE OTHER RULES FOR PAYMENT OF RETROACTIVE COMPENSATION SHALL BE EXERCISED FOR THE UNIFORMED SERVICES BY THE SECRETARY OF DEFENSE. ENTITLEMENT TO RETROACTIVE PAY UNDER SUCH RULES SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654.

SECTION 5(A) OF THE 1970 ACT PROVIDES AS FOLLOWS:

(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, EXCEPT THAT SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID--

(1) TO AN OFFICER OR EMPLOYEE WHO RETIRED DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, FOR SERVICES RENDERED DURING SUCH PERIOD AND

(2) IN ACCORDANCE WITH SUBCHAPTER VIII OF CHAPTER 55 OF TITLE 5, U.S.C. RELATING TO SETTLEMENT OF ACCOUNTS, FOR SERVICES RENDERED, DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, BY AN OFFICER OR EMPLOYEE WHO DIED DURING SUCH PERIOD.

SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL NOT BE CONSIDERED AS BASIC PAY FOR THE PURPOSES OF SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, U.S.C. RELATING TO CIVIL SERVICE RETIREMENT, OR ANY OTHER RETIREMENT LAW OR RETIREMENT SYSTEM, IN THE CASE OF ANY SUCH RETIRED OR DECEASED OFFICER OR EMPLOYEE.

IN ACCORDANCE WITH SECTION 2(B) OF EXECUTIVE ORDER 11525, THE DEPUTY SECRETARY OF DEFENSE ISSUED MEMORANDUM DATED APRIL 21, 1970, FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) PRESCRIBING RULES IMPLEMENTING THAT ORDER. RULE 2 OF THE MEMORANDUM PROVIDES, IN PERTINENT PART, THAT:

2. A PERSON IS NOT ENTITLED TO ANY INCREASE IN HIS BASIC PAY BY VIRTUE OF THAT ORDER FOR ANY PERIOD BEFORE APRIL 15, 1970 UNLESS HE WAS ON ACTIVE DUTY ON THAT DATE. ***

THE BENEFITS MENTIONED IN 10 U.S.C. 6148(A) DO NOT INCLUDE PAY AND ALLOWANCES. THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, 76 STAT. 494, ELIMINATED THE WORDS "PAY AND ALLOWANCES" FROM SECTION 6148(A) OF TITLE 10. THOSE BENEFITS WERE INCORPORATED IN 37 U.S.C. 204(I) BY VIRTUE OF SECTION 1 OF PUBLIC LAW 87-649.

IN THE CIRCUMSTANCES SHOWN ABOVE, IT APPEARS THAT COMMANDER JAYNES WAS PROPERLY FURNISHED HOSPITAL BENEFITS UNDER 10 U.S.C. 6148(A). HOWEVER, UNDER THE 1970 ACT AND THE REGULATIONS ISSUED THEREUNDER HE WAS ENTITLED TO A RETROACTIVE INCREASE IN PAY AND ALLOWANCES PRIOR TO APRIL 15, 1970, ONLY IF HE WAS IN AN ACTIVE MILITARY STATUS ON THAT DAY. NOTHING CONTAINED IN 37 U.S.C. 204 OR 10 U.S.C. 6148(A) WARRANTS A CONCLUSION THAT HE CONTINUED IN AN ACTIVE DUTY STATUS AFTER SUCH STATUS TERMINATED ON MARCH 22, 1970, UNDER THE ORDERS OF FEBRUARY 13, 1970. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.