B-182156, MAY 6, 1975, 54 COMP GEN 952

B-182156: May 6, 1975

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WHO WAS OBLIGATED TO SERVE ON ACTIVE DUTY FOR 30 DAYS OR MORE BUT WHO WAS RELEASED FROM THE SERVICE BEFORE PERFORMING SUCH ACTIVE DUTY FOR AT LEAST 30 DAYS. IS ENTITLED TO RECEIVE PAY AND ALLOWANCES ON A DAY-TO-DAY BASIS. 1975: THIS ACTION IS IN RESPONSE TO A LETTER DATED AUGUST 27. REQUESTING A DECISION CONCERNING ENTITLEMENT TO PAY AND ALLOWANCES OF MEMBERS WHO WERE OBLIGATED TO SERVE ON ACTIVE DUTY FOR 30 DAYS OR MORE BUT WHO WERE SEPARATED BEFORE SERVING ON ACTIVE DUTY FOR AT LEAST 30 DAYS. THE CIRCUMSTANCES PERTAINING TO THIS REQUEST ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 514. THE COMMITTEE PRESENTS THIS QUESTION: IS A MEMBER WHO WAS OBLIGATED TO SERVE ON ACTIVE DUTY FOR 30 DAYS OR MORE BUT WHO WAS SEPARATED BEFORE SERVING ON ACTIVE DUTY FOR AT LEAST 30 DAYS ENTITLED TO PAY AND ALLOWANCES ON A DAY FOR DAY BASIS OR A MONTHLY BASIS?

B-182156, MAY 6, 1975, 54 COMP GEN 952

PAY - ACTIVE DUTY - DUTY PERFORMANCE PART OF MONTH - PAYMENT BASIS A MEMBER OF A UNIFORMED SERVICE, WHO WAS OBLIGATED TO SERVE ON ACTIVE DUTY FOR 30 DAYS OR MORE BUT WHO WAS RELEASED FROM THE SERVICE BEFORE PERFORMING SUCH ACTIVE DUTY FOR AT LEAST 30 DAYS, IS ENTITLED TO RECEIVE PAY AND ALLOWANCES ON A DAY-TO-DAY BASIS, INCLUDING THE 31ST DAY OF THE MONTH, COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF 37 U.S.C. 1004 (1970) AND NOT UNDER THE PROVISIONS OF 5 U.S.C. 5505, SINCE THESE LATTER PROVISIONS ESTABLISH THE GENERAL RULE RELATIVE TO THE COMPUTATION OF PAY FOR THOSE INDIVIDUALS WHO PERFORMED SUCH ACTIVE DUTY FOR 30 DAYS OR MORE BEFORE BEING RELEASED.

IN THE MATTER OF COMPUTATION OF PAY AND ALLOWANCES, MAY 6, 1975:

THIS ACTION IS IN RESPONSE TO A LETTER DATED AUGUST 27, 1974, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION CONCERNING ENTITLEMENT TO PAY AND ALLOWANCES OF MEMBERS WHO WERE OBLIGATED TO SERVE ON ACTIVE DUTY FOR 30 DAYS OR MORE BUT WHO WERE SEPARATED BEFORE SERVING ON ACTIVE DUTY FOR AT LEAST 30 DAYS. THE CIRCUMSTANCES PERTAINING TO THIS REQUEST ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 514.

THE COMMITTEE PRESENTS THIS QUESTION:

IS A MEMBER WHO WAS OBLIGATED TO SERVE ON ACTIVE DUTY FOR 30 DAYS OR MORE BUT WHO WAS SEPARATED BEFORE SERVING ON ACTIVE DUTY FOR AT LEAST 30 DAYS ENTITLED TO PAY AND ALLOWANCES ON A DAY FOR DAY BASIS OR A MONTHLY BASIS?

TO ILLUSTRATE THIS QUESTION, THE COMMITTEE PROVIDES THE FOLLOWING EXAMPLES WHICH SHOW THAT THE AMOUNT OF PAY AND ALLOWANCES A MEMBER IN THE ABOVE CIRCUMSTANCES IS ENTITLED TO RECEIVE DEPENDS UPON WHETHER HIS PAY AND ALLOWANCES ACCRUE ON A MONTHLY OR DAILY BASIS:

A. ENLISTED FOR 4 YEARS ON THE 31ST OF JANUARY AND WAS SEPARATED ON 28 FEBRUARY (NOT LEAP YEAR) OF THE SAME YEAR.

B. ENLISTED FOR 4 YEARS ON THE 16TH OF JANUARY AND WAS SEPARATED ON THE 10TH OF FEBRUARY OF THE SAME YEAR.

C. ENLISTED FOR 4 YEARS ON THE 1ST OF FEBRUARY (NOT LEAP YEAR) AND WAS SEPARATED ON THE 1ST OF MARCH OF THE SAME YEAR.

D. COMMISSIONED ON THE 31ST OF MARCH AND WAS SEPARATED ON THE 28TH OF APRIL OF THE SAME YEAR.

E. ENLISTED FOR 4 YEARS ON THE 31ST OF JANUARY AND WAS SEPARATED ON 28 FEBRUARY (LEAP YEAR) OF THE SAME YEAR.

NUMBER OF DAYS PAY AND ALLOWANCES

ABOVE EXAMPLES ACCRUED

DAILY BASIS MONTHLY BASIS

A 29 30

B 26 25

C 29 31

D 29 28

E 29 28

THE COMMITTEE ACTION STATES THAT THE GENERAL RULE FOR COMPUTING PAY IS FOUND IN SECTION 5505 OF TITLE 5, U.S. CODE, WHICH IN EFFECT PROVIDES THAT, FOR THE PURPOSES OF COMPUTING PAY FOR SERVICES PERFORMED BY PERSONS PAID ON A MONTHLY BASIS, EACH CALENDAR MONTH CONSISTS OF 30 DAYS AND THE 31ST DAY OF A MONTH IS EXCLUDED FROM THE COMPUTATION OF PAY AND FEBRUARY IS TREATED AS IF IT HAD 30 DAYS.

THE COMMITTEE ACTION FURTHER STATES THAT AN EXCEPTION TO THE GENERAL RULE OF COMPUTATION OF PAY IS CONTAINED IN SECTION 1004 OF TITLE 37, U.S. CODE, WHICH PROVIDES AS FOLLOWS:

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 ALLOWANCES 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 THE COMPUTATION UNDER THIS SECTION.

THE COMMITTEE ACTION ALSO STATES THAT OUR DECISIONS AT 46 COMP. GEN. 100 (1966) AND 47 ID. 575 (1968), WHICH APPLIED SECTION 1004 TO CERTAIN REGULAR AND RESERVE MEMBERS WHO WERE ORDERED TO ACTIVE DUTY FOR LESS THAN 30 DAYS, HELD THAT THE COMPUTATION OF PAY ON A DAILY BASIS IN SUCH INSTANCES IS CLEARLY AN EXCEPTION TO THE GENERAL RULE ESTABLISHED IN 5 U.S.C. 5505. FURTHER, THAT THESE DECISIONS SEEM TO IMPLY THAT WHEN A MEMBER IS ORDERED TO ACTIVE DUTY FOR 30 DAYS OR MORE, PAY SHALL BE COMPUTED ON A MONTHLY BASIS IN ACCORDANCE WITH THE GENERAL RULE AND THAT OUR DECISION 45 COMP. GEN. 395 (1966) APPEARS TO LEND SUPPORT TO THIS VIEW.

THE COMMITTEE STATES THAT AFTER REVIEWING THE LAW AND IMPLEMENTING REGULATIONS (PARAGRAPH 10211 OF THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM)), DOUBT EXISTS AS TO THE APPROPRIATE METHOD OF COMPUTING PAY FOR (A) A REGULAR COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER, OR (B) ANY RESERVE MEMBER WHO IS ORDERED TO ACTIVE DUTY FOR 30 DAYS OR MORE, WHO IS SEPARATED BEFORE SERVING 30 DAYS ON ACTIVE DUTY.

IN OUR DECISION 46 COMP. GEN. 100, SUPRA, WE EXAMINED THE MEANING OF THE PHRASE "A MEMBER OF A UNIFORMED SERVICE" AS THAT PHRASE IS USED IN 37 U.S.C. 1004. WE CONCLUDED THEREIN THAT THE WORD "MEMBER" INCLUDED A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON OF THE UNIFORMED SERVICES AND THAT THE TERM "UNIFORMED SERVICES" INCLUDED THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, AND ALL REGULAR AND RESERVE COMPONENTS THEREOF. THEREFORE, THE METHOD OF COMPUTING PAY IS THE SAME FOR A REGULAR COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER OR ANY RESERVE MEMBER.

IN OUR DECISION 47 COMP. GEN. 515, SUPRA, WE CONSIDERED THE MEANING OF THE PHRASE "FOR A CONTINUOUS PERIOD OF LESS THAN ONE MONTH" AS THAT PHRASE IS USED IN 37 U.S.C. 1004. AFTER EXAMINING THE LEGISLATIVE HISTORY OF THAT SECTION, WE CONCLUDED THAT THERE WAS NO INTENTION ON THE PART OF CONGRESS IN ANY REENACTMENT OF WHAT IS NOW 37 U.S.C. 1004 TO LIMIT THE EFFECT OF OUR EARLIER DECISION A-71273, MARCH 2, 1936, WHICH HELD THAT THE TERM "MONTH" IN THE ABOVE-QUOTED PHRASE MEANT "THIRTY DAYS." THEREFORE, A MEMBER WHO IS ENTITLED TO PAY AND ALLOWANCES FOR A CONTINUOUS PERIOD OF LESS THAN 30 DAYS, SHALL HAVE HIS PAY AND ALLOWANCES COMPUTED BY THE METHOD OUTLINED IN 37 U.S.C. 1004.

IN OUR DECISION 45 COMP. GEN. 395, SUPRA, WE CONSIDERED THE CLAIM FOR SUBMARINE DUTY PAY FOR 4 DAYS (ONE OF WHICH WAS THE 31ST DAY OF A MONTH) OF A MEMBER, WHO WAS IN AN ACTIVE DUTY PAY STATUS FOR A PERIOD IN EXCESS OF 30 DAYS. WE HELD THAT THE LAW WHICH AUTHORIZED SUBMARINE DUTY PAY DID SO ON A MONTHLY BASIS PREDICATED ON THE RIGHT TO RECEIVE PAY AND ALLOWANCES; THEREFORE, UNDER THE RULES SET FORTH IN 24 COMP. GEN. 131 (1944), SINCE PAY AND ALLOWANCES DO NOT ACCRUE ON THE 31ST DAY OF A MONTH FOR A MEMBER ENTITLED TO PAY AND ALLOWANCES FOR A CONTINUOUS PERIOD OF 30 DAYS OR MORE, THE 31ST DAY OF A MONTH IS EXCLUDED FROM THE COMPUTATION OF SUBMARINE DUTY PAY.

WE ALSO STATED IN 45 COMP. GEN. 395, SUPRA, THAT 37 U.S.C. 1004 IS NOT APPLICABLE TO A MEMBER SERVING ON EXTENDED ACTIVE DUTY. CLEARLY, THIS STATEMENT, IN THE FULL CONTEXT OF THE FACTS IN THAT DECISION, SIMPLY MEANT THAT A MEMBER, WHO HAS ACTUALLY SERVED IN AN ACTIVE DUTY PAY STATUS FOR A PERIOD IN EXCESS OF 30 DAYS, WAS NOT ENTITLED TO HAVE THE 31ST DAY OF THE MONTH INCLUDED IN THE COMPUTATION OF HIS BASIC PAY. IT IS OUR VIEW, THEREFORE, THAT 45 COMP. GEN. 395, SUPRA, DOES NOT LEND SUPPORT FOR THE POSITION SUGGESTED BY THE COMMITTEE THAT IN ALL CASES WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FOR 30 DAYS OR MORE, PAY SHALL BE COMPUTED ON A MONTHLY BASIS IN ACCORDANCE WITH THE GENERAL RULE.

OUR EXAMINATION OF THE LEGISLATIVE HISTORY OF 37 U.S.C. 1004 INDICATES THAT CONGRESS INTENDED THAT THE PHRASE "WHO IS ENTITLED TO PAY AND ALLOWANCES UNDER THIS TITLE," IS TO BE GIVEN ITS ORDINARY AND USUAL MEANING. ORDINARILY, A MEMBER IS ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES BEGINNING ON THE DATE OF HIS ENLISTMENT OR THE FIRST DAY OF SERVICE ON A CALL-UP FOR ACTIVE DUTY AND THAT SUCH ENTITLEMENT CONTINUES UNTIL HE IS RELEASED FROM SUCH DUTY, PLUS ALLOWABLE TRAVEL TIME, OR UNTIL DISCHARGED, UNLESS SUCH DISCHARGE INVOLVES A FRAUDULENT ENLISTMENT. SEE TABLES 1-2-1, 1-2-3 AND 1-2-4, DODPM.

SINCE 5 U.S.C. 5505 RULES ARE BASED UPON "SERVICES PERFORMED" WHEN A PERIOD OF SERVICE IS 30 DAYS OR MORE, IT IS OUR VIEW THAT, WHERE A MEMBER'S ORDERED PERIOD OF ACTIVE DUTY IS IN EXCESS OF 30 DAYS, IF THE DATE HE WAS RELEASED, PLUS ALLOWABLE TRAVEL TIME IS WITHIN 30 DAYS OF HIS ENTRANCE UPON THAT DUTY, THEN HE IS ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES ON A DAILY BASIS COMPUTED IN ACCORDANCE WITH 37 U.S.C. 1004.

YOUR QUESTION IS ANSWERED ACCORDINGLY.