B-44525, MAY 9, 1945, 24 COMP. GEN. 809

B-44525: May 9, 1945

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IN VIEW OF THE FACT THAT THE PUBLIC HEALTH SERVICE AND ITS RESERVE COMPONENT IS NOT A MILITARY OR NAVAL ORGANIZATION. IT IS NOT BELIEVED THAT COMMISSION THUS ACCEPTED WAS RENDERED INVALID BY REASON OF THE INSTRUCTIONS IN REFERENCE (A) (SECTION 4 OF THE NAVAL RESERVE ACT OF 1938). COPHER IS NOT ENTITLED TO COUNT CONCURRENT COMMISSIONED SERVICE IN THE PUBLIC HEALTH SERVICE RESERVE AND THE NAVAL RESERVE. IT IS CONSIDERED THAT HE IS ENTITLED TO COUNT SERVICE IN THE NAVAL RESERVE FROM DATE FOLLOWING DATE OF TERMINATION OF SERVICE IN THE PUBLIC HEALTH SERVICE RESERVE. GEN. 173) REGARDING RATIFICATION OF A PURPORTED ACCEPTANCE OF A NAVAL RESERVE COMMISSION BY ENTRANCE ON ACTIVE DUTY AFTER REMOVAL OF DISQUALIFICATION TO ACCEPTANCE IS NOT APPLICABLE IN THIS CASE.

B-44525, MAY 9, 1945, 24 COMP. GEN. 809

NAVAL RESERVISTS - PROHIBITION AGAINST CONCURRENT MEMBERSHIP IN MILITARY OR NAVAL ORGANIZATIONS AS APPLIED TO COMMISSION IN PUBLIC HEALTH SERVICE RESERVE A PERSON'S COMMISSION IN THE PUBLIC HEALTH SERVICE RESERVE DID NOT CONSTITUTE HIM A MEMBER OF A ,MILITARY OR NAVAL ORGANIZATION" WITHIN THE PROHIBITION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938 AGAINST NAVAL RESERVISTS BEING MEMBERS OF SUCH ORGANIZATIONS, SO AS TO PRECLUDE THE COUNTING, FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OF HIS INACTIVE SERVICE UNDER A NAVAL RESERVE COMMISSION FROM DATE OF ACCEPTANCE PRIOR TO TERMINATION OF THE PUBLIC HEALTH SERVICE RESERVE COMMISSION; ALTERNATIVELY, SERVICE IN THE PUBLIC HEALTH SERVICE RESERVE PRIOR TO TERMINATION OF COMMISSION, PLUS NAVAL RESERVE SERVICE THEREAFTER, MAY BE COUNTED--- DOUBLE CREDIT FOR CONCURRENT SERVICE NOT BEING AUTHORIZED. 23 COMP. GEN. 173, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 9, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 13, 1944 (FILE JAG:II:WJG:Z/P20-2/4) (, REQUESTING A DECISION AS TO WHETHER LIEUTENANT HARRY OLIVER COPHER, DC-V/G), USNR, MAY COUNT CERTAIN SERVICE FOR PAY PURPOSES IN ACCORDANCE WITH THE VIEWS OF THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, SET FORTH IN THE SECOND PARAGRAPH OF HIS LETTER OF SEPTEMBER 2, 1944, WITH REFERENCE TO SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AND DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, THE SAID PARAGRAPH BEING AS FOLLOWS:

2. LT. COPHER ACCEPTED COMMISSION IN THE NAVAL RESERVE ON 14 MAY 1942, PRIOR TO TERMINATION OF HIS COMMISSION IN THE PUBLIC HEALTH SERVICE RESERVE, BUT IN VIEW OF THE FACT THAT THE PUBLIC HEALTH SERVICE AND ITS RESERVE COMPONENT IS NOT A MILITARY OR NAVAL ORGANIZATION, BUT A QUASI- MILITARY SERVICE, IT IS NOT BELIEVED THAT COMMISSION THUS ACCEPTED WAS RENDERED INVALID BY REASON OF THE INSTRUCTIONS IN REFERENCE (A) (SECTION 4 OF THE NAVAL RESERVE ACT OF 1938). LT. COPHER IS NOT ENTITLED TO COUNT CONCURRENT COMMISSIONED SERVICE IN THE PUBLIC HEALTH SERVICE RESERVE AND THE NAVAL RESERVE, BUT IT IS CONSIDERED THAT HE IS ENTITLED TO COUNT SERVICE IN THE NAVAL RESERVE FROM DATE FOLLOWING DATE OF TERMINATION OF SERVICE IN THE PUBLIC HEALTH SERVICE RESERVE, AND THAT THE RULING IN REFERENCE (B) (23 COMP. GEN. 173) REGARDING RATIFICATION OF A PURPORTED ACCEPTANCE OF A NAVAL RESERVE COMMISSION BY ENTRANCE ON ACTIVE DUTY AFTER REMOVAL OF DISQUALIFICATION TO ACCEPTANCE IS NOT APPLICABLE IN THIS CASE.

IN THE DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, IT WAS HELD (QUOTING LAST PARAGRAPH OF SYLLABUS):

THE FACT THAT A PERSON WHILE SERVING AS A MEMBER OF THE INACTIVE NATIONAL GUARD IS DISQUALIFIED BY THE PROVISION IN THE NAVAL RESERVE ACT OF 1938 FROM ACCEPTING A COMMISSION IN THE NAVAL RESERVE WHILE A MEMBER OF A MILITARY ORGANIZATION DOES NOT OPERATE TO INVALIDATE THE COMMISSION IN THE NAVAL RESERVE NOR PREVENT A VALID ACCEPTANCE THEREOF UPON REMOVAL OF THE DISQUALIFICATION BY DISCHARGE FROM THE INACTIVE NATIONAL GUARD, BUT, IN ORDER FOR THE COMMISSION TO BECOME VESTED IN SUCH A PERSON, THERE IS REQUIRED SOME AFFIRMATIVE ACT SUBSEQUENT TO REMOVAL OF THE DISQUALIFICATION--- SUCH AS REPORTING FOR ACTIVE DUTY-- INDICATING HIS INTENTION TO ACCEPT THE COMMISSION.

IN THE PRESENT CASE IT APPEARS THAT LIEUTENANT COPHER ACCEPTED A COMMISSION AS AN ASSISTANT DENTAL SURGEON IN THE PUBLIC HEALTH SERVICE RESERVE ON JANUARY 12, 1941, WHILE SERVING HIS DENTAL INTERNSHIP UNDER A CIVIL SERVICE APPOINTMENT AT THE UNITED STATES MARINE HOSPITAL, SAN FRANCISCO, CALIFORNIA; THAT THE SAID COMMISSION WAS TERMINATED JUNE 30, 1942, COINCIDENT WITH THE TERMINATION OF HIS CIVILIAN APPOINTMENT UPON COMPLETION OF HIS INTERNSHIP; AND THAT ON MAY 14, 1942, WHILE STILL HOLDING THE COMMISSION IN THE PUBLIC HEALTH SERVICE RESERVE, HE ACCEPTED A COMMISSION IN THE NAVAL RESERVE, UNDER WHICH HE REPORTED FOR PHYSICAL EXAMINATION ON JULY 20, 1942, AND FOR ACTIVE DUTY ON JULY 27, 1942.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES, IN PART:

* * * THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA * * *.

THE PUBLIC HEALTH SERVICE RESERVE WAS ESTABLISHED PURSUANT TO THE JOINT RESOLUTION OF OCTOBER 27, 1918, 40 STAT. 1017 (42 U.S.C. 18), WHICH PROVIDED:

THAT FOR THE PURPOSE OF SECURING A RESERVE FOR DUTY IN THE PUBLIC HEALTH SERVICE IN TIME OF NATIONAL EMERGENCY THERE SHALL BE ORGANIZED, UNDER THE DIRECTION OF THE SECRETARY OF THE TREASURY, UNDER SUCH RULES AND REGULATIONS AS THE PRESIDENT SHALL PRESCRIBE, A RESERVE OF THE PUBLIC HEALTH SERVICE. THE PRESIDENT ALONE SHALL BE AUTHORIZED TO APPOINT AND COMMISSION AS OFFICERS IN THE SAID RESERVE SUCH CITIZENS AS, UPON EXAMINATION PRESCRIBED BY THE PRESIDENT, SHALL BE FOUND PHYSICALLY, MENTALLY, AND MORALLY QUALIFIED TO HOLD SUCH COMMISSIONS, AND SAID COMMISSIONS SHALL BE IN FORCE FOR A PERIOD OF FIVE YEARS, UNLESS SOONER TERMINATED IN THE DISCRETION OF THE PRESIDENT, BUT COMMISSION IN SAID RESERVE SHALL NOT EXEMPT THE HOLDER FROM MILITARY OR NAVAL SERVICE: PROVIDED, THAT THE OFFICERS COMMISSIONED UNDER THIS ACT, NONE OF WHOM SHALL HAVE RANK ABOVE THAT OF ASSISTANT SURGEON GENERAL, SHALL BE DISTRIBUTED IN THE SEVERAL GRADES IN THE SAME PROPORTION AS NOW OBTAINS AMONG THE COMMISSIONED MEDICAL OFFICERS OF THE UNITED STATES PUBLIC HEALTH SERVICE AND SHALL AT ALL TIMES BE SUBJECT TO CALL TO ACTIVE DUTY BY THE SURGEON GENERAL AND WHEN ON SUCH ACTIVE DUTY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE NOW PROVIDED BY LAW AND REGULATION FOR THE COMMISSIONED MEDICAL OFFICERS IN THE SAID REGULAR COMMISSIONED MEDICAL CORPS. THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, 58 STAT. 682, 714, HAVING MADE SUBSTITUTE PROVISIONS, EXPRESSLY REPEALED THE SAID JOINT RESOLUTION OF OCTOBER 27, 1918, AMONG OTHER PRIOR LAWS RELATING TO THE PUBLIC HEALTH SERVICE. HOWEVER, SUCH STATUTES WERE IN EFFECT DURING THE PERIOD HERE INVOLVED AND, HENCE, THE MATTERS DISCUSSED HEREIN ARE BASED PRIMARILY THEREON.

THE RESERVE OF THE PUBLIC HEALTH SERVICE WAS CREATED DURING THE NATION- WIDE INFLUENZA EPIDEMIC OF 1918, AND WAS ESTABLISHED PRIMARILY FOR THE PURPOSE OF SECURING A RESERVE OF PHYSICIANS, SANITARY ENGINEERS, ETC., TO MEET ANY NATIONAL EMERGENCY--- INCLUDING WAR, EPIDEMICS, FLOODS, ETC.--- WHICH MIGHT REQUIRE THE SERVICES OF SUCH SPECIALLY QUALIFIED PERSONNEL. THE PUBLIC HEALTH SERVICE--- NOW UNDER THE FEDERAL SECURITY AGENCY--- IS CHARGED BY LAW WITH THE DUTIES OF PROVIDING MEDICAL CARE AND TREATMENT FOR SICK AND DISABLED SEAMEN, INCLUDING SEAMEN ON GOVERNMENT VESSELS NOT IN THE MILITARY AND NAVAL SERVICE, AND FOR PERSONNEL OF THE COAST GUARD AND COAST AND GEODETIC SURVEY. ITS FURTHER DUTIES AND FUNCTIONS INCLUDE RESEARCH IN THE CAUSE AND METHODS OF PREVENTION AND CONTROL OF DISEASE; CORPORATION WITH STATE HEALTH AGENCIES IN PREVENTING THE SPREAD OF DISEASE; ENFORCEMENT OF THE QUARANTINE LAWS; DISSEMINATION OF PUBLIC HEALTH INFORMATION; AND OTHER MATTERS RELATING TO THE PROTECTION AND IMPROVEMENT OF THE PUBLIC HEALTH.

IN AN OPINION DATED OCTOBER 29, 1921 (33 OP. ATTY. GEN. 56), THE ATTORNEY GENERAL CONCLUDED THAT THE PUBLIC HEALTH SERVICE WAS NOT A PART OF THE MILITARY FORCES OF THE UNITED STATES WITHIN THE MEANING OF THE TERM "MILITARY OR NAVAL FORCES OF THE UNITED STATES," APPEARING IN SECTION 1 OF THE REVENUE ACT OF 1918, 40 STAT. 1057, 1058. IN THAT OPINION IT WAS SAID:

THE CONFUSION, IF ANY THERE BE, CONCERNING THE STATUS OF THIS BODY, SEEMS TO HAVE ARISEN AS A RESULT OF OUR LATE WAR. SECTION 4 OF THE ACT OF CONGRESS OF JULY 1, 1902 (32 STAT. 713), ROVIDES:

"THE PRESIDENT IS AUTHORIZED, IN HIS DISCRETION, TO UTILIZE THE PUBLIC HEALTH AND MARINE HOSPITAL SERVICE IN TIMES OF THREATENED OR ACTUAL WAR TO SUCH EXTENT AND IN SUCH MANNER AS SHALL IN HIS JUDGMENT PROMOTE THE PUBLIC INTEREST WITHOUT, HOWEVER, IN ANY WISE IMPAIRING THE EFFICIENCY OF THE SERVICE FOR THE PURPOSES FOR WHICH THE SAME WAS CREATED AND IS MAINTAINED.'

AN ORDER PURPORTING TO HAVE BEEN GIVEN PURSUANT TO SUCH ACT, ISSUED APRIL 3, 1917, KNOWN AS EXECUTIVE ORDER NO. 2571, READS:

"IN TIMES OF THREATENED OR ACTUAL WAR THE PUBLIC HEALTH SERVICE SHALL CONSTITUTE A PART OF THE MILITARY FORCES OF THE UNITED STATES.'

THE WHOLE QUERY THEREFORE RESTS ON WHETHER BY SUCH EXECUTIVE ORDER THE NATURE OF THE PUBLIC HEALTH SERVICE WAS CHANGED FROM NONMILITARY TO A MILITARY BODY. CLEARLY THE AFFIRMATIVE OF SUCH QUESTION IS UNTENABLE BECAUSE THE CONGRESSIONAL ACT UNDER WHICH THE EXECUTIVE ORDER WAS ISSUED AUTHORIZED THE PRESIDENT TO "UTILIZE," NOT TO CONVERT, AND THEN TO LEAVE DOUBT AS TO THE EXTENT OF HIS POWER TO UTILIZE CONGRESS ADDED THE LIMITATION UPON THE EXECUTIVE IN THE FOLLOWING WORDS: ,WITHOUT, HOWEVER, IN ANY WISE IMPAIRING THE EFFICIENCY OF THE SERVICE FOR THE PURPOSE FOR WHICH THE SAME WAS CREATED AND IS MAINTAINED.'

THE POWER TO CREATE A MILITARY FORCE OUT OF A CIVILIAN SOURCE OR FROM ANY NONMILITARY BODY IS CLEARLY A DUTY RESIDING IN CONGRESS ALONE UNDER THE PROVISIONS OF OUR CONSTITUTION. NO INTENTION TO DELEGATE SUCH AUTHORITY COULD POSSIBLY BE INFERRED FROM THE LIMITED WORDING OF THE ACT (CITED SUPRA). THE PRESIDENT'S AUTHORITY, THEREFORE, TO UTILIZE THE PUBLIC HEALTH SERVICE WITHIN PRESCRIBED LIMITS BEING A STATUTORY ONE, HE IS IN SO DOING, BOUND BY "THE LETTER OF POSITIVE ENACTMENT.' ( MCBLAIR V. UNITED STATES, 19 CT.1CL. 528.)

I, THEREFOR, CONCLUDE THAT THE PUBLIC HEALTH SERVICE HAS AT NO TIME SINCE ITS CREATION PERFORMED, NOR WAS IT CREATED FOR THE PURPOSE OF PERFORMING MILITARY OR NAVAL DUTIES NOR HAS IT BEEN SUBJECT TO THE AUTHORITY OF OR REGULATED BY NAVAL OR MILITARY RULES, FOR WHICH REASONS IT HAS ALWAYS BEEN NONMILITARY IN CHARACTER, AND THE EXECUTIVE ORDER, NO. 2571, STATING THAT IT SHALL CONSTITUTE A PART OF THE MILITARY FORCES OF THE UNITED STATES DID NOT IN EFFECT CONVERT OR CHANGE IT INTO A MILITARY CLASSIFICATION WITHIN THE MEANING OF THE DEFINITION OF THE "MILITARY OR NAVAL FORCES OF THE UNITED STATES.'

IN A DECISION OF THIS OFFICE DATED JUNE 14, 1941, 20 COMP. GEN. 885, THE STATUS OF THE PUBLIC HEALTH SERVICE OFFICERS WAS CONSIDERED AND DISCUSSED AS FOLLOWS:

IT IS CLEAR THAT PRIOR TO THE ENACTMENT OF THE 1930 STATUTE QUOTED ABOVE, IT HAD NOT BEEN CONSIDERED THAT THE PUBLIC HEALTH SERVICE WAS A PART OF THE MILITARY FORCE, OR THAT ITS COMMISSIONED OFFICERS WERE AMENABLE TO MILITARY LAW. AS IT WAS STATED IN 3 COMP. GEN. 16,"THE PUBLIC HEALTH SERVICE IS NOT A PART OF THE MILITARY FORCES OF THE NATION, BUT IS A PART OF THE CIVIL GOVERNMENT, 27 COMP. DEC. 153; 24 ID. 98.' NOTWITHSTANDING THAT CERTAIN FORMS OF MILITARY ORGANIZATION HAVE BEEN ADOPTED BY THE PUBLIC HEALTH SERVICE, AND THAT "BOARDS OF INVESTIGATION" ARE CONVENED FOR THE ENFORCEMENT OF DISCIPLINE--- BUT WITHOUT POWER TO INFLICT CORPORAL PUNISHMENT, FINES, IMPRISONMENT OR FORFEITURES ( REGULATIONS OF 1931, PARAGRAPHS 316-389/--- THE ONLY EXTENT TO WHICH THE OFFICERS OF THE SERVICE WERE SUBJECTED TO THE RULES GOVERNING THE ARMY WOULD SEEM TO HAVE BEEN INDICATED BY THE JOINT RESOLUTION OF JULY 9, 1917, 40 STAT. 242 (42 U.S.C. 20), WHICH READS:

"THAT WHEN OFFICERS OF THE UNITED STATES PUBLIC HEALTH SERVICE ARE SERVING ON COAST GUARD VESSELS IN TIME OF WAR, OR ARE DETAILED IN TIME OF WAR FOR DUTY WITH THE ARMY OR NAVY IN ACCORDANCE WITH LAW, THEY SHALL BE ENTITLED TO PENSIONS FOR THEMSELVES AND WIDOWS AND CHILDREN, IF ANY, AS ARE NOT PROVIDED FOR OFFICERS OF CORRESPONDING GRADE AND LENGTH OF SERVICE OF THE COAST GUARD, ARMY OR NAVY, AS THE CASE MAY BE, AND SHALL BE SUBJECT TO THE LAWS PRESCRIBED FOR THE GOVERNMENT OF THE SERVICE TO WHICH THEY ARE RESPECTIVELY DETAILED.'

THUS, THE QUESTION IS WHETHER THE WORDS OF ASSIMILATION IN THE 1930 STATUTE,"SHALL RECEIVE THE SAME PAY AND ALLOWANCES," WERE INTENDED TO ALTER THE CIVILIAN STATUS OF THE OFFICERS OF THE PUBLIC HEALTH SERVICE, AND TO SUBJECT THEM TO SUCH RULES OF MILITARY DISCIPLINE AS MIGHT, IN THE ARMY, ULTIMATELY AFFECT THE ACCRUAL OF ARMY PAY AND ALLOWANCES. FOR PURPOSES INTIMATELY CONNECTED WITH SUCH PAYMENTS--- AS THE REQUIREMENTS AS TO SERVICE NEEDED FOR PROMOTION, MILEAGE AND SUBSISTENCE FOR TRAVEL, LEAVES OF ABSENCE, AND THE LIKE--- THE ARMY REGULATIONS PROPERLY GOVERN, IN VIEW OF THE LANGUAGE QUOTED. 12 COMP. GEN. 653; 11 ID. 356; A-42919, AUGUST 17, 1932; A-32607, AUGUST 4, 1930; AND A-90625, JANUARY 24, 1938. HOWEVER, AS TO MATTERS OF DISCIPLINE AND STATUS, THE LEGISLATIVE HISTORY OF THE STATUTE WOULD INDICATE OTHERWISE. H.R. 8807, WHICH BECAME THE ACT OF APRIL 9, 1930, WAS A REPETITION IN SUBSTANCE OF H.R. 11026 OF THE PREVIOUS (SEVENTIETH) CONGRESS, WHICH HAD RECEIVED A PRESIDENTIAL VETO, ONE OF THE GROUNDS FOR WHICH WAS STATED AS FOLLOWS:

" * * * THERE SHOULD BE ELIMINATED FROM THE LEGISLATION ANY PROVISION WHICH GIVES A MILITARY STATUS TO OFFICERS OR EMPLOYEES OF THE SERVICE ENGAGED IN SCIENTIFIC PURSUITS.'

THE COMMITTEE REPORTS ON THE NEW BILL ( HOUSE REPORT 542, SENATE REPORT 101, 71ST CONGRESS) EMPHASIZE THAT---

"THIS PHASE OF THE MEASURE HAS BEEN CORRECTED AND WE BELIEVE THAT ALL MILITARISM HAS BEEN ELIMINATED FROM THIS BILL.'

NO CONTRARY SUGGESTION APPEARS AND, IN VIEW OF THAT BACKGROUND, IT MAY BE CONCLUDED THAT THE ACT OF APRIL 9, 1930, DID NOT CONTEMPLATE THE ADOPTION FOR THE PUBLIC HEALTH SERVICE OF THE DIVERSE STATUTES AND REGULATIONS GOVERNING OFFICERS OF THE ARMY IN THEIR PURELY MILITARY STATUS, OTHER THAN TO THE LIMITED EXTENT ABOVE INDICATED.

IN THE HEARINGS HELD IN JANUARY, 1943, ON THE BILL H.R. 649, FOR WHICH WAS SUBSTITUTED S. 400, WHICH BECAME THE ACT OF NOVEMBER 11, 1943, 57 STAT. 587, RELATING TO THE ORGANIZATION AND FUNCTIONS OF THE PUBLIC HEALTH SERVICE, THE STATUS OF COMMISSIONED OFFICERS WAS DISCUSSED AS FOLLOWS: MR. BROWN. * * * MY QUESTION IS SIMPLY THIS: DOES THIS BILL PUT THE UNITED STATES PUBLIC HEALTH SERVICE UNDER THE MILITARY IN SUCH A WAY THAT IT BECOMES A MILITARY ORGANIZATION?

SURGEON GENERAL PARRAN. NO, SIR; IT DOES NOT CHANGE THE ADMINISTRATIVE CONTROL OF THE PUBLIC HEALTH SERVICE.

MR. BROWN. IT SIMPLY GIVES YOU THE OPPORTUNITY TO USE ALL OF THE MILITARY AID YOU MAY NEED DURING THIS EMERGENCY, IS THAT IT, AND THEN IN PEACETIME IT BECOMES MORE OF A PEACE ORGANIZATION, A CIVIL ORGANIZATION?

SURGEON GENERAL PARRAN. IT SIMPLY DOES THAT. * * * * * * * * * * *

MR. BROWN. THIS MAKES IT MORE POSSIBLE FOR YOUR DEPARTMENT TO COOPERATE WITH THE MILITARY AUTHORITIES IN TIME OF WAR, AND YET IT DOES NOT MAKE IT A MILITARY ORGANIZATION, STRICTLY SPEAKING, IN PEACETIME, IS THAT CORRECT?

SURGEON GENERAL PARRAN. THAT IS CORRECT.

THAT NO PART OF THE PUBLIC HEALTH SERVICE IS NORMALLY A MILITARY OR NAVAL ORGANIZATION CLEARLY APPEARS TO HAVE BEEN RECOGNIZED IN SECTION 216 OF THE PUBLIC HEALTH SERVICE ACT OF 1944, 58 STAT. 690, WHICH AUTHORIZES THE PRESIDENT, IN TIME OF WAR, BY EXECUTIVE ORDER, TO DECLARE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE, AND PROVIDES THAT UPON SUCH DECLARATION THE COMMISSIONED CORPS SHALL CONSTITUTE A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES. IT FOLLOWS THAT ONLY UNDER SUCH EXCEPTIONAL CIRCUMSTANCES WOULD EVEN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE BE REGARDED AS IN THE MILITARY SERVICE.

IN THE LIGHT OF THE FOREGOING, IT IS CONCLUDED THAT LIEUTENANT COPHER'S COMMISSION IN THE PUBLIC HEALTH SERVICE RESERVE DID NOT CONSTITUTE HIM A MEMBER OF A MILITARY OR NAVAL ORGANIZATION WITHIN THE PROHIBITION CONTAINED IN SECTION 4 OF THE NAVAL RESERVE ACT, SUPRA.

THE RULE SET FORTH IN THE DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, TO THE EFFECT THAT IN THE ABSENCE OF SOME AFFIRMATIVE ACTION EFFECTIVELY AND LEGALLY TERMINATING THE FIRST OFFICE, THE APPOINTMENT OR ACCEPTANCE OF THE SECOND OFFICE IS WITHOUT LEGAL EFFECT, IS EXPRESSLY STATED TO BE APPLICABLE IN CASES WHERE "THERE IS AN EXPRESS STATUTORY PROVISION PROHIBITING THE INCUMBENT OF ONE OFFICE FROM ACCEPTING APPOINTMENT TO ANOTHER.' I FIND NO STATUTORY PROVISION, OR REGULATION, WHICH PROHIBITS PUBLIC HEALTH SERVICE RESERVE OFFICERS ON INACTIVE DUTY FROM ACCEPTING A COMMISSION IN THE NAVAL RESERVE. ON THE CONTRARY, THE JOINT RESOLUTION OF OCTOBER 27, 1918, EXPRESSLY PROVIDED THAT A COMMISSION IN THE PUBLIC HEALTH SERVICE RESERVE SHOULD NOT EXEMPT THE HOLDER FROM MILITARY OR NAVAL SERVICE.

ACCORDINGLY, ON THE FACTS STATED IN THE PRESENT CASE, LIEUTENANT COPHER'S COMMISSION IN THE NAVAL RESERVE IS REGARDED AS EFFECTIVE FROM THE DATE OF ITS ACCEPTANCE AND, HENCE, THE OFFICER IS ENTITLED UNDER THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED, TO CREDIT FOR PAY PURPOSES FOR COMMISSIONED SERVICE IN THE NAVAL RESERVE FROM MAY 14, 1942, THE DATE HE ACCEPTED THE SAID COMMISSION, OR ALTERNATIVELY, AMOUNTING TO THE SAME THING, TO CREDIT FOR SERVICE IN THE PUBLIC HEALTH SERVICE RESERVE UNTIL JUNE 30, 1942, WHEN HIS COMMISSION THEREIN TERMINATED, AND TO CREDIT FROM JULY 1, 1942, FOR SERVICE IN THE NAVAL RESERVE, DOUBLE CREDIT FOR CONCURRENT SERVICE IN THE TWO ORGANIZATIONS NOT BEING AUTHORIZED.