B-46342, FEBRUARY 27, 1945, 24 COMP. GEN. 634

B-46342: Feb 27, 1945

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1941 OFFICERS OF THE PUBLIC HEALTH SERVICE RESERVE CORPS WHO WERE ON ACTIVE DUTY PRIOR TO DECEMBER 7. WERE CONTINUED ON ACTIVE DUTY UNDER NEW COMMISSIONS ISSUED EITHER BECAUSE OF EXPIRATION OF THE STATUTORY 5-YEAR PERIOD OF THEIR COMMISSIONS OR BECAUSE OF PROMOTION ARE NOT TO BE REGARDED AS HAVING BEEN "CALLED TO ACTIVE DUTY * * * SINCE DECEMBER 7. 1944 (58 STAT. 682) READS AS FOLLOWS: "EACH COMMISSIONED OFFICER OF THE SERVICE WHO WAS APPOINTED TO THE REGULAR CORPS OR CALLED TO ACTIVE DUTY IN THE RESERVE CORPS SINCE DECEMBER 7. WAS ON ACTIVE DUTY IN THE GRADE OF JUNIOR ASSISTANT. OR PASSED ASSISTANT AND WAS RECEIVING THE PAY OF THE FIRST. WHOSE RESERVE COMMISSION IS TERMINATED BUT WHO.

B-46342, FEBRUARY 27, 1945, 24 COMP. GEN. 634

UNIFORM ALLOWANCE - PUBLIC HEALTH SERVICE RESERVE CORPS OFFICERS ON ACTIVE DUTY PRIOR TO DECEMBER 7, 1941 OFFICERS OF THE PUBLIC HEALTH SERVICE RESERVE CORPS WHO WERE ON ACTIVE DUTY PRIOR TO DECEMBER 7, 1941, AND WHO, AFTER THAT DATE, WERE CONTINUED ON ACTIVE DUTY UNDER NEW COMMISSIONS ISSUED EITHER BECAUSE OF EXPIRATION OF THE STATUTORY 5-YEAR PERIOD OF THEIR COMMISSIONS OR BECAUSE OF PROMOTION ARE NOT TO BE REGARDED AS HAVING BEEN "CALLED TO ACTIVE DUTY * * * SINCE DECEMBER 7, 1941," WITHIN THE MEANING OF SECTION 607 OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, SO AS TO BE ENTITLED TO A UNIFORM ALLOWANCE THEREUNDER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE FEDERAL SECURITY ADMINISTRATOR, FEBRUARY 27, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 14, 1944, AS FOLLOWS:

SECTION 607 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944 (58 STAT. 682) READS AS FOLLOWS:

"EACH COMMISSIONED OFFICER OF THE SERVICE WHO WAS APPOINTED TO THE REGULAR CORPS OR CALLED TO ACTIVE DUTY IN THE RESERVE CORPS SINCE DECEMBER 7, 1941, AND PRIOR TO THE ENACTMENT OF THIS ACT, AND WHO ON OR AFTER NOVEMBER 11, 1943, WAS ON ACTIVE DUTY IN THE GRADE OF JUNIOR ASSISTANT, ASSISTANT, OR PASSED ASSISTANT AND WAS RECEIVING THE PAY OF THE FIRST, SECOND, OR THIRD PAY PERIOD, SHALL BE ENTITLED TO RECEIVE AN ALLOWANCE OF $250 FOR UNIFORMS AND EQUIPMENT.'

THE QUESTION HAS ARISEN WHETHER UNDER THE PROVISIONS OF THIS SECTION A COMMISSIONED OFFICER, ORIGINALLY CALLED TO ACTIVE DUTY IN THE RESERVE PRIOR TO DECEMBER 7, 1941, AND WHOSE RESERVE COMMISSION IS TERMINATED BUT WHO, WITHOUT BREAK IN SERVICE, IS PLACED UPON ACTIVE DUTY IN THE RESERVE CORPS IN A GRADE FOR WHICH THE UNIFORM ALLOWANCE MAY BE PAID, IS ENTITLED TO THE UNIFORM ALLOWANCE.

UNDER SECTION 208 (A) (2) A RESERVE COMMISSION RUNS FOR A PERIOD OF NOT MORE THAN FIVE YEARS UNLESS SOONER TERMINATED BY THE PRESIDENT. IF IT IS DESIRED TO CONTINUE FOR ANOTHER PERIOD THE SERVICE OF THE OFFICER CONCERNED, ANOTHER COMMISSION IS ISSUED HIM EFFECTIVE AS OF THE DAY FOLLOWING THE DATE ON WHICH HIS PREVIOUS COMMISSION IS DUE TO EXPIRE, HIS SERVICE THEREBY BEING CONTINUOUS. IN THE CASE OF PROMOTION OF A RESERVE OFFICER, THE COMMISSION IN THE LOWER GRADE IS TERMINATED AS OF THE CLOSE OF ONE DAY AND A NEW COMMISSION IN THE HIGHER GRADE EFFECTIVE AS OF THE NEXT DAY IS ISSUED TO RUN FOR FIVE YEARS FROM DATE OF PROMOTION. THERE IS THEN NO BREAK IN THE PERIOD OF ACTIVE SERVICE.

YOUR DECISION IS REQUESTED WHETHER OR NOT A COMMISSIONED OFFICER UNDER THE FACTS STATED ABOVE IS ENTITLED TO THE UNIFORM ALLOWANCE.

THE EVIDENT PURPOSE OF SECTION 607 OF THE ACT OF JULY 1, 1944, 58 STAT. 713, QUOTED IN YOUR LETTER, WAS TO REMOVE THE UNCERTAINTY WITH RESPECT TO THE USE OF THE TERM "ALLOWANCE FOR UNIFORMS" CONTAINED IN SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, 57 STAT. 588 U.S.C. 1 (G) ( SUPP. 111), WHICH WAS SPECIFICALLY REPEALED BY SECTION 611 OF THE ACT OF JULY 1, 1944--- THEREIN DESIGNATED AS PUBLIC LAW 184, 78TH CONGRESS. IN THE SAID REPEALED SECTION 8 THE APPARENT PURPOSE WAS TO CONFER UPON OFFICERS OF THE PUBLIC HEALTH SERVICE CERTAIN BENEFITS PROVIDED UNDER "ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES," BUT EVIDENTLY THE DIFFICULTY IN THE ADMINISTRATION OF SAID SECTION 8 WAS IMMEDIATELY RECOGNIZED AND, AS A SUBSTITUTE FOR THE PROVISION CONTAINED THEREIN WITH RESPECT TO THE "ALLOWANCE FOR UNIFORMS," THERE WAS ENACTED THE SAID SECTION 607 AND IN ADDITION SECTION 213, 58 STAT. 689, WHICH PROVIDES AS FOLLOWS:

AN ALLOWANCE OF $250 FOR UNIFORMS AND EQUIPMENT IS AUTHORIZED TO BE PAID TO EACH COMMISSIONED OFFICER OF THE SERVICE WHO IS HEREAFTER, IN TIME OF WAR, APPOINTED TO THE REGULAR CORPS OR CALLED TO ACTIVE DUTY IN THE RESERVE CORPS, OR WHO IS HEREAFTER ON ACTIVE DUTY IN EITHER CORPS AT THE COMMENCEMENT OF ANY WAR, IF AT SUCH TIME THE OFFICER IS IN THE GRADE OF JUNIOR ASSISTANT, ASSISTANT, OR SENIOR ASSISTANT, AND IS RECEIVING THE PAY OF THE FIRST, SECOND, OR THIRD PAY ERIOD; EXCEPT THAT NO OFFICER WHO HAS RECEIVED SUCH AN ALLOWANCE FROM THE SERVICE SHALL AT ANY TIME THEREAFTER BE ENTITLED TO ANY FURTHER ALLOWANCE.

IN HOUSE REPORT NO. 1364 ON H.R. 4624, 78TH CONGRESS, WHICH BECAME THE ACT OF JULY 1, 1944, IT WAS SAID, PAGES 13 AND 31---

SECTION 213 DEALS WITH ALLOWANCES FOR UNIFORMS AND CONSTITUTES MERELY CLARIFICATION OF PUBLIC LAW 184, SEVENTY-EIGHTH CONGRESS, AS TO OFFICERS WHO ARE HEREAFTER APPOINTED OR CALLED TO ACTIVE DUTY IN TIME OF WAR, OR WHO ARE ON ACTIVE DUTY AT THE TIME OF COMMENCEMENT OF A FUTURE WAR. UNDER IT SUCH OFFICERS, IF IN THE GRADE OF JUNIOR ASSISTANT, ASSISTANT, OR SENIOR ASSISTANT RECEIVING PAY OF THE FIRST, SECOND, OR THIRD PAY PERIOD, WOULD RECEIVE $250 FOR UNIFORMS IF THEY HAD NOT PREVIOUSLY RECEIVED SUCH AN ALLOWANCE FROM THE SERVICE. ALLOWANCES FOR THOSE APPOINTED OR CALLED IN THE PAST, BUT AFTER DECEMBER 7, 1941, ARE PROVIDED IN SECTION 607.

SECTION 607 PROVIDES THE SAME UNIFORM ALLOWANCE TO OFFICERS APPOINTED OR CALLED TO ACTIVE DUTY AFTER DECEMBER 7, 1941, WHO WERE ON ACTIVE DUTY ON OR AFTER THE DATE OF ENACTMENT OF PUBLIC LAW 184, SEVENTY-EIGHTH CONGRESS, AS IS PROVIDED IN SECTION 213 FOR THOSE CALLED TO ACTIVE DUTY OR APPOINTED IN THE FUTURE.

WHILE SECTION 607, SUPRA, DOES NOT QUALIFY THE TERM "CALLED TO ACTIVE DUTY" THE PROVISION OF BOTH SECTIONS 213 AND 607, AS EXPLAINED BY THE ABOVE COMMITTEE REPORT, EVINCE A PURPOSE TO PLACE OFFICERS IN THE REGULAR CORPS AND THOSE IN THE RESERVE ON A PARITY BY LIMITING PAYMENT OF THE UNIFORM ALLOWANCE TO SUCH OFFICERS, OTHERWISE ENTITLED, WHOSE APPOINTMENT OR CALL TO ACTIVE DUTY OCCURRED SINCE DECEMBER 7, 1941. CONTINUOUS ACTIVE DUTY OF A RESERVE OFFICER FROM A DATE PRIOR TO DECEMBER 7, 1941, UNDER TWO APPOINTMENTS RESULTING FROM PROMOTION, OR BY TERMINATION OF A FIVE-YEAR PERIOD OF COMMISSION, IS NOT DIFFERENT FROM THE CONTINUOUS ACTIVE DUTY OF AN OFFICER OF THE REGULAR CORPS APPOINTED AT THE SAME TIME AND THEREAFTER CONTINUED ON ACTIVE DUTY. TO HOLD THAT A RESERVE CORPS APPOINTMENT, FOLLOWING EXPIRATION OF A PREVIOUS APPOINTMENT, IS A CALL TO ACTIVE DUTY WITHIN THE MEANING OF THE SAID SECTION 607 WOULD BE TO GRANT BENEFITS TO OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, WHICH WOULD NOT ACCRUE TO OFFICERS OF THE REGULAR CORPS WITH THE SAME GRADE AND LENGTH OF SERVICE. ALSO, SUCH A HOLDING WOULD CREATE A FURTHER DISPARITY AMONG RESERVE OFFICERS THEMSELVES.

IT MUST BE HELD THAT, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER, THE RESERVE OFFICER OF THE PUBLIC HEALTH SERVICE WAS NOT CALLED TO ACTIVE DUTY SINCE DECEMBER 7, 1941, AND IS NOT ENTITLED TO A UNIFORM ALLOWANCE UNDER SECTION 607 OF THE ACT OF JULY 1, 1944.