B-19829, SEPTEMBER 26, 1941, 21 COMP. GEN. 262

B-19829: Sep 26, 1941

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A MEMBER OF THE REGULAR ARMY RESERVE IS ENTITLED TO PAY FOR ACTIVE DUTY ONLY FROM THE DATE ON WHICH HE IS ACCEPTED FOR ACTIVE DUTY AND MAY NOT BE PAID FROM DATE OF REPORTING FOR ACTIVE DUTY EVEN THOUGH HIS ACCEPTANCE IS DELAYED THROUGH NO FAULT OF HIS OWN. A MEMBER OF THE REGULAR ARMY RESERVE IS NOT ENTITLED TO PAY AS FOR ACTIVE DUTY FOR THE TIME HE LOSES FROM HIS CIVIL OCCUPATION WHERE HE REPORTS IN GOOD FAITH FOR ACTIVE DUTY BUT IS REJECTED BY THE MEDICAL BOARD. PROVIDES THAT A MEMBER OF THE REGULAR ARMY RESERVE WILL BE TAKEN UP ON THE PAY ROLLS OF THE ORGANIZATION TO WHICH HE IS ASSIGNED OR ATTACHED AS OF THE DATE ACCEPTED AND SWORN IN FOR ACTIVE DUTY. REGULAR ARMY RESERVISTS ARE SWORN IN WHEN THEY ENLIST FOR THE REGULAR ARMY RESERVE AND DO NOT TAKE A SECOND OATH WHEN CALLED TO ACTIVE DUTY.

B-19829, SEPTEMBER 26, 1941, 21 COMP. GEN. 262

PAY - ACTIVE DUTY - REGULAR ARMY RESERVISTS - PERIODS PRIOR TO ACCEPTANCE OR REJECTION FOR ACTIVE DUTY UNDER SECTION 30 OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF APRIL 25, 1938, A MEMBER OF THE REGULAR ARMY RESERVE IS ENTITLED TO PAY FOR ACTIVE DUTY ONLY FROM THE DATE ON WHICH HE IS ACCEPTED FOR ACTIVE DUTY AND MAY NOT BE PAID FROM DATE OF REPORTING FOR ACTIVE DUTY EVEN THOUGH HIS ACCEPTANCE IS DELAYED THROUGH NO FAULT OF HIS OWN. UNDER SECTION 30 OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF APRIL 25, 1938, A MEMBER OF THE REGULAR ARMY RESERVE IS NOT ENTITLED TO PAY AS FOR ACTIVE DUTY FOR THE TIME HE LOSES FROM HIS CIVIL OCCUPATION WHERE HE REPORTS IN GOOD FAITH FOR ACTIVE DUTY BUT IS REJECTED BY THE MEDICAL BOARD.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, SEPTEMBER 26, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED AUGUST 15, 1941, AS FOLLOWS:

SECTION 30 OF THE ACT OF JUNE 3, 1916 (39 STAT. 187), AS AMENDED BY THE ACT OF APRIL 25, 1938 (52 STAT. 221), REESTABLISHING THE REGULAR ARMY RESERVE, PROVIDES IN PART AS FOLLOWS:

"ACTIVE DUTY FOR SUCH PURPOSES SHALL BE DEEMED TO BEGIN ON THE DATE OF ACCEPTANCE FOR SUCH DUTY FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY AND SHALL TERMINATE WHEN RELIEVED OR DISCHARGED FROM SUCH DUTY.'

PARAGRAPH 27A, AR 155-5, AS AMENDED BY SECTION I, CIRCULAR NO. 91, WAR DEPARTMENT, MAY 6, 1941, PROVIDES THAT A MEMBER OF THE REGULAR ARMY RESERVE WILL BE TAKEN UP ON THE PAY ROLLS OF THE ORGANIZATION TO WHICH HE IS ASSIGNED OR ATTACHED AS OF THE DATE ACCEPTED AND SWORN IN FOR ACTIVE DUTY, AFTER PHYSICAL EXAMINATION. REGULAR ARMY RESERVISTS ARE SWORN IN WHEN THEY ENLIST FOR THE REGULAR ARMY RESERVE AND DO NOT TAKE A SECOND OATH WHEN CALLED TO ACTIVE DUTY. ALTHOUGH PARAGRAPH 25, AR 155-5, AS AMENDED BY CIRCULAR NO. 105, WAR DEPARTMENT, SEPTEMBER 18, 1940, REQUIRES THAT ,MEMBERS OF THE REGULAR ARMY RESERVE WILL BE GIVEN A PHYSICAL EXAMINATION IMMEDIATELY AFTER THEY REPORT FOR ACTIVE DUTY * * *," IT HAS BEEN DEMONSTRATED THAT IN PRACTICE PHYSICAL EXAMINATIONS HAVE SOMETIMES BEEN DELAYED SEVERAL DAYS. AS THIS DELAY IS THROUGH NO FAULT OF THE RESERVIST, IT APPEARS THAT HE SHOULD NOT BE PENALIZED AS TO HIS PAY, BUT SHOULD, IF HE IS ACCEPTED, BE PAID FROM THE DATE OF REPORTING.

THERE IS ALSO FOR CONSIDERATION THE QUESTION WHETHER A RESERVIST WHO FAILS OF ACCEPTANCE BECAUSE HE CANNOT PASS A PHYSICAL EXAMINATION SHOULD BE PAID FOR THE TIME HE IS IN CAMP. IT WOULD APPEAR THAT A RESERVIST WHO REPORTS IN GOOD FAITH AND IS REJECTED BY THE MEDICAL BOARD SHOULD BE COMPENSATED FOR THE TIME HE LOSES FROM HIS CIVIL OCCUPATION. IN THIS CONNECTION IT WILL BE NOTED THAT THE ABOVE CITED ACT PROVIDES FOR TRANSPORTATION TO AND FROM THE CAMP AND SUBSISTENCE WHILE IN CAMP. SINCE HE IS ENTITLED TO THESE ALLOWANCES, IT WOULD APPEAR THAT HE SHOULD ALSO RECEIVE PAY FOR THIS PERIOD.

ACCORDINGLY, YOUR DECISION IS REQUESTED AS TO WHAT CONSTITUTES THE "DATE OF ACCEPTANCE" FOR PAY PURPOSES UNDER THE PROVISIONS OF THE ACT OF APRIL 25, 1938 (52 STAT. 221).

SECTION 30 OF THE ACT OF JUNE 3, 1916, 39 STAT. 187, AS AMENDED BY SECTION 30 OF THE ACT OF JUNE 4, 1920, 41 STAT. 775, AND BY THE ACT OF APRIL 25, 1938, 52 STAT. 221, IS AS FOLLOWS:

SEC. 30. THE REGULAR ARMY RESERVE.--- UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THERE SHALL BE ORGANIZED AND MAINTAINED AS A PART OF THE REGULAR ARMY AND IN ADDITION TO THE AUTHORIZED STRENGTH THEREOF OTHERWISE PROVIDED A REGULAR ARMY RESERVE. ANY PERSON WHO HAS SERVED IN THE REGULAR ARMY AND WHO HAS BEEN HONORABLY DISCHARGED THEREFROM, AND WHO IS LESS THAN THIRTY-SIX YEARS OF AGE MAY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE REENLISTED FOR THE REGULAR ARMY RESERVE. EACH SOLDIER THUS REENLISTED SHALL BE ENTITLED TO RECEIVE, DURING EACH YEAR OF HIS SERVICE IN THE REGULAR ARMY RESERVE, AN ENLISTMENT ALLOWANCE OF $24 PER ANNUM PAYABLE IN INSTALLMENTS UNDER SUCH REGULATIONS AND CONDITIONS AS THE PRESIDENT MAY PRESCRIBE. SERVICE IN THE REGULAR ARMY RESERVE NOT ON ACTIVE DUTY SHALL CONFER NO RIGHT TO PAY, LONGEVITY PAY, RETIREMENT OR RETIRED PAY, OR ANY OTHER EMOLUMENTS UPON MEMBERS THEREOF EXCEPT AS PROVIDED IN THIS SECTION; AND MEMBERS OF THE REGULAR ARMY RESERVE SHALL BECOME ENTITLED TO PENSIONS ONLY DUE TO DISABILITY INCURRED WHILE ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. ACTIVE DUTY FOR SUCH PURPOSES SHALL BE DEEMED TO BEGIN ON THE DATE OF ACCEPTANCE FOR SUCH DUTY FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY AND SHALL TERMINATE WHEN RELIEVED OR DISCHARGED FROM SUCH DUTY. MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION AND SUBSISTENCE ALLOWANCES AT GOVERNMENT EXPENSE FROM THEIR HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY. ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER, THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE BUT NOT TO EXCEED $150. WHILE ON ACTIVE DUTY THEY SHALL HAVE THE SAME STATUS AND RECEIVE ONLY THE SAME PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, TIME SPENT ON ACTIVE DUTY ONLY WILL BE COUNTED. WITHIN SIX MONTHS AFTER THE TERMINATION OF AN EMERGENCY DECLARED BY THE PRESIDENT, THEY SHALL BE PLACED IN AN INACTIVE STATUS OR DISCHARGED, WHICHEVER IS APPROPRIATE.

MEMBERS OF THE REGULAR ARMY RESERVE SHALL BE SUBJECT TO MILITARY LAW ONLY FROM THE DATE THEY ARE REQUIRED TO OBEY AN ORDER TO REPORT FOR ACTIVE DUTY.

PARAGRAPH 27A, ARMY REGULATIONS NO. 155-5, AS AMENDED BY SECTION I OF WAR DEPARTMENT CIRCULAR 91 DATED MAY 6, 1941, PROVIDES:

A MEMBER OF THE REGULAR ARMY RESERVE WILL BE TAKEN UP ON THE PAY ROLLS OF THE ORGANIZATION TO WHICH HE IS ASSIGNED OR ATTACHED AS OF THE DATE ACCEPTED AND SWORN IN FOR ACTIVE DUTY, AFTER PHYSICAL EXAMINATION, * * *

IT IS STATED THAT WHEN MEMBERS OF THE REGULAR ARMY RESERVE ARE ORDERED TO ACTIVE DUTY THEY ARE NOT REQUIRED TO TAKE A SECOND OATH OF OFFICE AT THAT TIME, BUT IT IS REQUIRED THAT THEY BE PHYSICALLY EXAMINED TO DETERMINE WHETHER OR NOT THEY ARE QUALIFIED FOR ACTIVE DUTY, AND CERTAINLY THE STATUTE REQUIRES THIS, AS ACTIVE DUTY IS TO BEGIN "ON THE DATE OF ACCEPTANCE FOR SUCH DUTY FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY," AND AN ADDITIONAL PAYMENT (WITH A LIMIT) IS AUTHORIZED FOR TIME IN THE RESERVE "IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER.' PARAGRAPH 25, ARMY REGULATIONS NO. 155-5, AS AMENDED BY WAR DEPARTMENT CIRCULAR 105, DATED SEPTEMBER 18, 1940, PROVIDES:

MEMBERS OF THE REGULAR ARMY RESERVE WILL BE GIVEN A PHYSICAL EXAMINATION IMMEDIATELY AFTER THEY REPORT FOR ACTIVE DUTY UNDER PROPER ORDERS, TO DETERMINE WHETHER OR NOT THEY ARE QUALIFIED FOR ACTIVE DUTY. * * *

PARAGRAPH 29A OF THE REGULATIONS AS AMENDED BY THE SAME WAR DEPARTMENT CIRCULAR IS AS FOLLOWS:

MEMBERS OF THE REGULAR ARMY RESERVE, WHEN ORDERED TO ACTIVE DUTY IN CASE OF AN EMERGENCY DECLARED BY THE PRESIDENT, WILL BE FURNISHED COACH TRANSPORTATION AND SUBSISTENCE ALLOWANCE AT GOVERNMENT EXPENSE FROM THEIR LAST PROPERLY REPORTED HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE THEY ARE ORDERED TO REPORT FOR ACTIVE DUTY, AND FOR THE RETURN JOURNEY IF REJECTED FOR ACTIVE DUTY.

YOUR LETTER PRESENTS TWO QUESTIONS: (1) WHETHER OR NOT A MEMBER OF THE REGULAR ARMY RESERVE IS ENTITLED TO PAY FOR ACTIVE DUTY FROM THE DATE OF REPORTING THEREFOR IF HIS ACCEPTANCE IS DELAYED THROUGH NO FAULT OF THE RESERVIST; AND (2) WHETHER OR NOT A MEMBER OF THE REGULAR ARMY RESERVE IS ENTITLED TO PAY AS FOR ACTIVE DUTY FOR THE TIME HE LOSES FROM HIS CIVIL OCCUPATION WHERE HE REPORTS IN GOOD FAITH FOR ACTIVE DUTY BUT IS REJECTED BY THE MEDICAL BOARD.

THE STATUTE QUOTED ABOVE PROVIDES THAT SERVICE IN THE REGULAR ARMY RESERVE NOT ON ACTIVE DUTY CONFERS NO RIGHT TO PAY EXCEPT AS PROVIDED THEREIN, THAT IS $24 PER ANNUM, AND THAT ACTIVE DUTY BEGINS ON THE DATE OF ACCEPTANCE AFTER COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY. UNDOUBTEDLY WHERE A RESERVIST REPORTS FOR ACTIVE DUTY AND FOR REASONS NOT DISCLOSED HE IS NOT ACCEPTED UNTIL THE LAPSE OF SEVERAL DAYS, THEORETICALLY HE SUFFERS A LOSS. TO COMPENSATE HIM FOR THIS LOSS YOU SUGGEST THAT THE MAN BE PAID ACTIVE DUTY PAY FROM THE DATE OF REPORTING. THE STATUTE SEEMS TO PROVIDE A FORM OF REIMBURSEMENT WHEN ACCEPTED WHICH WOULD SEEM TO COVER SUCH SHORT DELAYS. IN THE CASE OF A RESERVIST WHO IS NOT ACCEPTED, IT IS SUGGESTED THAT HE BE PAID ACTIVE DUTY PAY SO THAT HE WOULD BE "COMPENSATED FOR THE TIME HE LOSES FROM HIS CIVIL OCCUPATION.' APPARENTLY, IT IS SUGGESTED THAT A REJECTED RESERVIST BE PAID ACTIVE DUTY PAY FOR NECESSARY TRAVEL TIME FROM HIS HOME TO THE PLACE WHERE HE IS ORDERED TO REPORT AND RETURN TO HIS HOME. IN OTHER WORDS YOUR SUGGESTION APPEARS TO BE TO PAY A REJECTED RESERVIST FOR NECESSARY TIME FOR TRAVEL WHEREAS, IN THE CASE OF AN ACCEPTED RESERVIST YOU SUGGEST PAY FROM THE DATE OF REPORTING ONLY. HOWEVER, IN BOTH CASES THE QUESTION IS WHETHER OR NOT A RESERVIST IS ENTITLED TO ACTIVE DUTY PAY PRIOR TO THE DATE ON WHICH HE IS ACCEPTED FOR ACTIVE DUTY.

THE LANGUAGE OF THE STATUTE IS CLEAR AND UNAMBIGUOUS. IT CONTEMPLATES AN ACCEPTANCE FOR ACTIVE DUTY BEFORE THE RESERVIST IS DEEMED TO BE IN AN ACTIVE DUTY STATUS. THE "DATE OF ACCEPTANCE" INSOFAR AS PAY PURPOSES ARE CONCERNED IS THE DATE ON WHICH UNDER THE REGULATIONS THE RESERVIST IS ACCEPTED FOR ACTIVE DUTY "FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY.' IF MORE IS BELIEVED TO BE JUSTIFIED THE MATTER SHOULD BE PRESENTED TO THE CONGRESS.