B-63233, FEBRUARY 21, 1947, 26 COMP. GEN. 621

B-63233: Feb 21, 1947

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ALTHOUGH THEY MAY HAVE COMPLETED THE SERVICE NECESSARY TO ENTITLE THEM WHEN IN FEDERAL SERVICE TO THE PAY OF A HIGHER PERIOD. 1947: I HAVE YOUR LETTER OF JANUARY 22. THERE HAS ARISEN A QUESTION IN REGARD TO THE COMPUTATION OF ARMORY DRILL PAY AS TO WHICH IT IS DEEMED ADVISABLE TO REQUEST YOUR DECISION. IN PART: "WHEN OFFICERS OF THE NATIONAL GUARD * * * ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY. THE SPECIFIC QUESTION WHICH ARISES AT THIS TIME IS IN REGARD TO THE RATE OF PAY ON WHICH THE ONE-THIRTIETH IS TO BE COMPUTED. IS A CAPTAIN. ENTITLED TO HAVE HIS ARMORY DRILL PAY COMPUTED AT 1/30 OF THE BASE PAY OF THE FOURTH PAY PERIOD. IS HE LIMITED TO 1/30 OF THE MONTHLY BASE PAY OF THE THIRD PAY PERIOD?

B-63233, FEBRUARY 21, 1947, 26 COMP. GEN. 621

DRILL PAY - NATIONAL GUARD OFFICERS IN VIEW OF "ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY" IN SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, PERTAINING TO THE PAY OF NATIONAL GUARD OFFICERS WHEN IN FEDERAL SERVICE, THE ARMORY DRILL PAY AUTHORIZED BY SECTION 14 OF SAID ACT FOR NATIONAL GUARD OFFICERS SHOULD BE COMPUTED ON THE BASIS OF THE PAY PROVIDED BY SECTION 1 OF THE ACT, AS AMENDED, FOR THE PAY PERIOD APPLICABLE GENERALLY TO OFFICERS OF THE GRADE INVOLVED, ALTHOUGH THEY MAY HAVE COMPLETED THE SERVICE NECESSARY TO ENTITLE THEM WHEN IN FEDERAL SERVICE TO THE PAY OF A HIGHER PERIOD.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, FEBRUARY 21, 1947:

I HAVE YOUR LETTER OF JANUARY 22, 1947, AS FOLLOWS:

IN CONNECTION WITH THE EXTENSIVE TRAINING PROGRAM OF THE NATIONAL GUARD NOW UNDER CONSIDERATION, THERE HAS ARISEN A QUESTION IN REGARD TO THE COMPUTATION OF ARMORY DRILL PAY AS TO WHICH IT IS DEEMED ADVISABLE TO REQUEST YOUR DECISION.

SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, PRESCRIBES THE RATES OF PAY FOR OFFICERS SERVING IN THE VARIOUS PAY PERIODS AND PROVIDES FOR THE ADVANCEMENT IN PAY PERIODS FOR COMMISSIONED OFFICERS AFTER COMPLETION OF THE REQUIRED YEARS OF SERVICE.

SECTION 3 OF THE PAY READJUSTMENT ACT, AS AMENDED, PROVIDES, IN PART:

"WHEN OFFICERS OF THE NATIONAL GUARD * * * ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, THEY SHALL RECEIVE PAY AS PROVIDED IN SECTION 1 OF THIS ACT, * * *.' (ITALICS SUPPLIED.)

SECTION 14 OF THE SAME ACT PROVIDES FOR THE PAYMENT OF ARMORY DRILL PAY AS FOLLOWS:

"UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE OFFICERS OF THE NATIONAL GUARD, OTHER THAN GENERAL OFFICERS, AND WARRANT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD, SHALL RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE MONTHLY PAY AUTHORIZED FOR SUCH PERSONS WHEN IN THE FEDERAL SERVICE, FOR EACH REGULAR DRILL, PERIOD OF APPROPRIATE DUTY, OR OTHER EQUIVALENT PERIOD OF TRAINING * * *.'

THE SPECIFIC QUESTION WHICH ARISES AT THIS TIME IS IN REGARD TO THE RATE OF PAY ON WHICH THE ONE-THIRTIETH IS TO BE COMPUTED; FOR EXAMPLE, IS A CAPTAIN, WITH OVER 17 YEARS' SERVICE, WHO WOULD BE ENTITLED TO RECEIVE PAY OF THE FOURTH PAY PERIOD IF IN FEDERAL SERVICE, ENTITLED TO HAVE HIS ARMORY DRILL PAY COMPUTED AT 1/30 OF THE BASE PAY OF THE FOURTH PAY PERIOD, OR, UNDER THE RESTRICTIVE CLAUSE CONTAINED IN SECTION 3, QUOTED ABOVE, IS HE LIMITED TO 1/30 OF THE MONTHLY BASE PAY OF THE THIRD PAY PERIOD?

YOUR DECISION, B-29464, PUBLISHED IN 22 COMP. GEN. 411, IN WHICH IT WAS HELD THAT THE LONGEVITY INCREASE IN PAY MAY NOT BE INCLUDED IN THE COMPUTATION OF ARMORY DRILL PAY, HAS BEEN NOTED. IT IS RECOGNIZED THAT THE 5 PERCENT INCREASE FOR EACH THREE YEARS OF SERVICE MAY NOT BE INCLUDED. HOWEVER, AT THE TIME SUCH DECISION WAS RENDERED, NATIONAL GUARD OFFICERS, WHILE ENTITLED TO SUCH LONGEVITY INCREASE, WERE NOT ENTITLED TO ADVANCE TO A HIGHER PAY PERIOD UPON COMPLETION OF THE REQUISITE SERVICE, AS NOW AUTHORIZED UNDER EXISTING AMENDMENTS TO THE PAY READJUSTMENT ACT OF 1942.

SINCE THE WAR DEPARTMENT DESIRES TO ISSUE NEW REGULATIONS COVERING NATIONAL GUARD PAY AS SOON AS POSSIBLE, YOUR EARLY REPLY WILL BE APPRECIATED.

THE DECISION OF THIS OFFICE TO WHICH YOU REFER, 22 COMP. GEN. 411 (B 29464, DATED OCTOBER 29, 1942), IS, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM PAGE 415):

THE STATUTE IN EFFECT PRIOR TO THE ACT OF JUNE 16, 1942, AUTHORIZING ARMORY DRILL PAY FOR OFFICERS OF THE NATIONAL GUARD, CLEARLY PROVIDED THAT SUCH PAY WAS TO BE "ONE-THIRTIETH OF THE MONTHLY BASE PAY PRESCRIBED FOR THEM IN SECTION 3 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 627. INCREASES IN PAY AUTHORIZED BECAUSE OF LENGTH OF SERVICE, WERE NOT CONSIDERED IN COMPUTING ARMORY DRILL PAY UNDER THIS ACT OR THE PRIOR ACTS. SEE SECTION 47 OF THE ACT OF JUNE 4, 1920, 41 STAT. 783, AND SECTION 3 OF THE ACT OF JUNE 3, 1924, 43 STAT. 364. IN SECTION 14 OF THE ACT OF JUNE 16, 1942, ARMORY DRILL PAY FOR OFFICERS OF THE NATIONAL GUARD IS AUTHORIZED AT THE RATE OF "ONE THIRTIETH OF THE MONTHLY PAY AUTHORIZED FOR SUCH PERSONS WHEN IN THE FEDERAL ERVICE; " HOWEVER, THE CHANGE IN LANGUAGE IS NOT MATERIAL INSOFAR AS LONGEVITY PAY IS CONCERNED. LONGEVITY PAY FOR NATIONAL GUARD OFFICERS IS AUTHORIZED IN SECTION 3 OF THE ACT AND IT IS THERE EXPRESSLY PROVIDED THAT SUCH OFFICERS SHALL RECEIVE THE PRESCRIBED ADDITION TO THEIR BASE PAY WHENEVER ENTITLED TO FEDERAL PAY,"EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY.' THE LANGUAGE IN SECTION 14 OF THE ACT, WHEN CONSIDERED WITH THE SPECIFIC PROVISIONS OF SECTION 3, MAKES IT CLEAR THAT THE "PAY" TO WHICH REFERENCE IS MADE IN SECTION 14, IS THE BASE PAY TO WHICH NATIONAL GUARD PERSONNEL ARE ENTITLED WHEN IN FEDERAL SERVICE AND NOT BASE PAY PLUS LONGEVITY INCREASES. * * *

SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, WAS AMENDED, AFTER THE DATE OF THE ABOVE-QUOTED DECISION, BY SECTION 2 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AND (WITH RESPECT TO MATTERS NOT MATERIAL TO THE QUESTION HERE INVOLVED), IT WAS FURTHER AMENDED BY SECTION 4 AND 7 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, 37 U.S.C., SUPP. V, 103. THE RELEVANT PART OF THE SAID SECTION 3, AS AMENDED, IS AS QUOTED IN YOUR LETTER ABOVE. PRIOR TO ITS AMENDMENT, SECTION 3 WAS, IN PERTINENT PART, AS FOLLOWS:

WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE OFFICERS, ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, THOSE SERVING IN GRADES CORRESPONDING TO THOSE OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT OF THE ARMY SHALL RECEIVE THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY, UNLESS ENTITLED TO THE PAY OF A HIGHER PERIOD UNDER THE PROVISIONS OF SECTION 14 OF THIS ACT. SUCH OFFICERS WHENEVER ENTITLED TO FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, SHALL RECEIVE AS LONGEVITY PAY, IN ADDITION TO BASE PAY, AN INCREASE THEREOF AT THE PERCENTUM AND TIME RATES UP TO THIRTY YEARS PROVIDED IN SECTION 1 OF THIS ACT. * * *

BRIEFLY, AND IN PERTINENT SUBSTANCE, SECTION 3, AS ORIGINALLY ENACTED, PROVIDED THAT WHEN NATIONAL GUARD OFFICERS WERE "ENTITLED TO FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY," THEY SHOULD RECEIVE LONGEVITY PAY,"IN ADDITION TO BASE PAY," AT THE RATES "PROVIDED IN SECTION 1 OF THIS ACT.' IT SEEMS CLEAR THAT SUCH PROVISION CONTEMPLATED THAT ARMORY DRILL PAY WOULD BE ON THE BASIS OF BASE PAY ONLY. 22 COMP. GEN. 411. WHILE SECTION 3, AS AMENDED, PROVIDES THAT WHEN SUCH OFFICERS ARE ENTITLED TO " FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY," THEY SHALL RECEIVE PAY "AS PROVIDED IN SECTION 1 OF THIS ACT," THE EXCEPTION WITH RESPECT TO ARMORY DRILL PAY WAS CONTINUED AND IT DOES NOT APPEAR THAT THE CONGRESS INTENDED BY SUCH AMENDMENT TO CHANGE THE BASIS FOR COMPUTING ARMORY DRILL PAY.

THE HISTORY OF THE LEGISLATION RELATING TO DRILL PAY INDICATES THAT, FOR MANY YEARS, THE CONGRESS HAS TAKEN THE VIEW THAT, GENERALLY AND UNDER NORMAL CONDITIONS OF PARTICIPATION IN DRILLS, A MEMBER OF THE NATIONAL GUARD IS AMPLY COMPENSATED WHEN HE RECEIVES ONE-THIRTIETH OF THE MONTHLY BASE PAY OF HIS GRADE FOR PARTICIPATING IN A DRILL OF "AT LEAST ONE AND ONE-HALF HOURS' DURATION" (AS SPECIFIED IN SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C. 62) AND IT IS TO BE OBSERVED THAT WHILE THE CONGRESS HAS SEEN FIT TO AUTHORIZE THE INCLUSION OF FLYING PAY IN THE COMPUTATION OF DRILL PAY, IT HAS USED CLEAR AND UNMISTAKABLE TERMS IN DOING SO AND HAS PLACED SPECIFIC CONDITIONS AND LIMITATIONS UPON SUCH INCLUSION. SEE SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C. SUPP. V, 118; ALSO, SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782. THAT THE CONGRESS HAD NO INTENTION OF CHANGING THE ESTABLISHED RULE OF LONG STANDING, BASED ON THE SPECIFIC PROVISIONS OF THE PRIOR STATUTES RELATING TO DRILL PAY (SEE SECTIONS 109 AND 110 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C. 143, 154, AND SECTION 14 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 631), THAT LENGTH OF SERVICE WOULD NOT BE CONSIDERED FOR ANY PURPOSE IN COMPUTING DRILL PAY, IS SHOWN NOT ONLY BY THE FACT THAT THE PHRASE "EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY" WAS RETAINED IN THE AMENDED SECTION 3, BUT ALSO BY THE CIRCUMSTANCE THAT THE SPONSORS OF THE BILL WHICH BECAME THE SAID ACT OF DECEMBER 2, 1942, APPARENTLY WERE NOT CONCERNED ABOUT ARMORY DRILL PAY BUT WERE MOTIVATED PRIMARILY BY A PURPOSE TO AUTHORIZE THE INCLUSION OF INACTIVE SERVICE OF NATIONAL GUARD AND RESERVE OFFICERS FOR THE PURPOSE OF DETERMINING THE PERIOD PAY OF SUCH OFFICERS WHEN IN THE FEDERAL SERVICE, AND THUS TO SUPPLEMENT THE AUTHORITY, ALREADY EXISTING, FOR THE INCLUSION OF INACTIVE SERVICE IN COMPUTING THE LONGEVITY PAY OF SUCH OFFICERS IN THE FEDERAL SERVICE. THIS CONNECTION SEE 22 COMP. GEN. 33.

SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C., SUPP. V, 114, QUOTED IN YOUR LETTER, IS THE SECTION WHICH PROVIDES FOR THE PAYMENT OF ARMORY DRILL PAY. THAT SECTION HAS NOT BEEN AMENDED AND AS SECTION 1, AS AMENDED, SUPRA, IS THE ONLY SECTION (OR STATUTORY PROVISION) TO WHICH REFERENCE MAY BE HAD FOR A "MONTHLY PAY" FOR OFFICERS AS CONTEMPLATED BY SECTION 14, AND AS SECTION 3 REFERS TO SECTION 1 TO DETERMINE THE PAY OF NATIONAL GUARD OFFICERS IN FEDERAL SERVICE, IT IS NECESSARY TO REFER TO THE SAID SECTION 1, AS AMENDED, TO FIND THE RATE OF "MONTHLY PAY" CONTEMPLATED BY SECTION 14 TO BE USED IN COMPUTING THE ARMORY DRILL PAY OF NATIONAL GUARD OFFICER. HOWEVER, SINCE THE TERM "MONTHLY PAY" USED IN SECTION 14 ORIGINALLY MEANT MONTHLY BASE PAY, AS DEMONSTRATED BY THE ORIGINAL PROVISIONS OF SECTION 3, AND SINCE SECTION 14 HAS NOT BEEN AMENDED AND THE AMENDMENTS IN SECTION 3 DO NOT APPEAR TO HAVE BEEN INTENDED TO CHANGE THE BASIS OF COMPUTING ARMORY DRILL PAY (THE EXCEPTION AS TO ARMORY DRILL PAY HAVING BEEN CONTINUED), OR AS INTENDED TO CHANGE THE ORIGINAL MEANING OF THE TERM "MONTHLY PAY" IN SECTION 14, WHEN READ IN CONJUNCTION WITH SECTION 3, THE CONCLUSION IS REQUIRED THAT SUCH TERM IN SECTION 14 STILL MEANS WHAT IT ORIGINALLY MEANT, THAT IS, MONTHLY BASE PAY.

FOR SUCH REASONS, IT MUST BE HELD THAT, AS USED IN SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, THE PHRASE "ONE-THIRTIETH OF THE MONTHLY PAY AUTHORIZED FOR SUCH PERSONS WHEN IN THE FEDERAL SERVICE" MEANS ONE THIRTIETH OF THE MONTHLY BASE PAY OF THE GRADE HELD BY THE PERSON CONCERNED, SUCH MONTHLY BASE PAY, IN THE CASE OF AN OFFICER, BEING ONE TWELFTH OF THE ANNUAL PAY PROVIDED IN SECTION 1 OF THE SAID ACT, AS AMENDED, FOR THE PAY PERIOD APPLICABLE GENERALLY TO OFFICERS OF THE GRADE INVOLVED AND NOT THE PAY OF A HIGHER PERIOD PROVIDED ONLY FOR CERTAIN OFFICERS OF SUCH GRADE, IN THE REGULAR ESTABLISHMENTS OR IN THE FEDERAL SERVICE, WHO HAVE COMPLETED A SPECIFIED NUMBER OF YEARS OF SERVICE.

ACCORDINGLY, ANSWERING THE QUESTION PRESENTED IN THE EXAMPLE STATED IN YOUR LETTER, AND ASSUMING THE CONDITIONS TO PAYMENT OF DRILL PAY HAVE BEEN MET, A CAPTAIN OF THE NATIONAL GUARD IS ENTITLED TO ONE-THIRTIETH OF THE MONTHLY BASE PAY OF THE THIRD PERIOD, ONLY, FOR EACH REGULAR DRILL, ETC., WHETHER HE HAS OR HAS NOT COMPLETED SEVENTEEN YEARS' SERVICE.