B-66688, SEPTEMBER 2, 1947, 27 COMP. GEN. 142

B-66688, SEPTEMBER 2, 1947, 27 COMP. GEN. 142

PAY - ADDITIONAL - EXPERT INFANTRYMAN, COMBAT INFANTRYMAN, AND MEDICAL BADGES - ENTITLEMENT OF MEMBERS OF NATIONAL GUARD MEMBERS OF THE NATIONAL GUARD WHO HAD BEEN AWARDED THE EXPERT INFANTRYMAN OR THE COMBAT INFANTRYMAN BADGE ARE NOT ENTITLED, ON THE BASIS OF THE ASSIMILATING PROVISION IN THE SECOND PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, WHILE PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PROVIDED BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, TO THE ADDITIONAL COMPENSATION TEMPORARILY AUTHORIZED BY THE ACT OF JUNE 30, 1944, TO BE PAID WEARERS OF SUCH BADGES WHILE THEY REMAIN ON ACTIVE DUTY IN THE FEDERAL SERVICE AS MEMBERS OF THE COMBAT GROUND FORCES. MEMBERS OF THE NATIONAL GUARD WHO HAD BEEN AWARDED THE MEDICAL BADGE ARE NOT ENTITLED, ON THE BASIS OF THE ASSIMILATING PROVISION IN THE SECOND PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, WHILE PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PROVIDED BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, TO THE ADDITIONAL COMPENSATION TEMPORARILY AUTHORIZED BY THE ACT OF JULY 6, 1945, TO BE PAID "ANY ENLISTED MAN OF THE ARMY WHO IS ENTITLED * * * TO WEAR THE MEDICAL BADGE" WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 2, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1947, AS FOLLOWS:

THE WAR DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION AS TO WHETHER MEMBERS OF THE NATIONAL GUARD, WHO WERE AWARDED THE MEDICAL BADGE OR THE COMBAT OR EXPERT INFANTRYMAN BADGE, WHILE SERVING IN THE ARMY OF THE UNITED STATES, ARE ENTITLED, IF OTHERWISE QUALIFIED, TO THE ADDITIONAL PAY ON ACCOUNT OF SUCH AWARDS FOR THE PRESENT WAR AND SIX MONTHS THEREAFTER, FOR ATTENDANCE AT ARMORY DRILLS AND WHILE IN PERFORMANCE OF DUTIES OR PARTICIPATING IN EXERCISES, UNDER SECTIONS 92, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT (39 STAT. 166), AS AMENDED.

SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 367), PROVIDES, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM THE SECOND AND THIRD PARAGRAPHS, RESPECTIVELY):

"OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD, WHEN IN THE FEDERAL SERVICE OR WHEN PARTICIPATING IN EXERCISES OR PERFORMING THE DUTIES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY.

"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, AUTHORIZED BY THE SECRETARY OF WAR, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR THE ENTIRE PRESCRIBED PERIOD OF TIME: PROVIDED, THAT SUCH PAY SHALL BE IN ADDITION TO COMPENSATION FOR ATTENDANCE AT FIELD OR COAST-DEFENSE INSTRUCTION OR MANEUVERS * * *"

SECTION 1 OF THE ACT OF 30 JUNE 1944 (58 STAT. 648) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, ANY ENLISTED MAN OF THE COMBAT GROUND FORCES OF THE ARMY WHO IS ENTITLED, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, TO WEAR THE EXPERT INFANTRYMAN BADGE OR THE COMBAT INFANTRYMAN BADGE, SHALL BE PAID ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH WHEN HE IS ENTITLED TO WEAR THE EXPERT INFANTRYMAN BADGE AND AT THE RATE OF $10PER MONTH WHEN HE IS ENTITLED TO WEAR THE COMBAT INFANTRYMAN BADGE * * *"

SECTION I OF THE ACT OF 6 JULY 1945 ( PUBLIC LAW 137--- 79TH CONGRESS), PROVIDES IN PERTINENT PART, AS FOLLOWS:

"* * * DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, ANY ENLISTED MAN OF THE ARMY WHO IS ENTITLED, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, TO WEAR THE MEDICAL BADGE SHALL BE PAID ADDITIONAL COMPENSATION AT THE RATE OF $10 PER MONTH * * *"

IT WAS HELD IN YOUR DECISION, B-62581, DATED 11 MARCH 1947, THAT, THE PROVISIONS OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 360), AS AMENDED, AND MADE PERMANENT LEGISLATION BY SECTION 12 OF THE ACT OF 6 OCTOBER 1945 (59 STAT. 542), AUTHORIZING THE PERCENTAGE INCREASE IN PAY FOR FOREIGN SERVICE, ARE NOT APPLICABLE IN THE COMPUTATION OF ARMORY DRILL PAY BUT THAT THE PERCENTAGE INCREASE IN PAY FOR FOREIGN SERVICE IS PAYABLE TO MEMBERS OF THE NATIONAL GUARD WHEN IN FEDERAL SERVICE OR WHEN PERFORMING DUTIES UNDER SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, SUPRA. HOWEVER, DOUBT EXISTS AS TO WHETHER THE PRINCIPLES OF THIS DECISION MAY BE APPLIED SO AS TO ENTITLE SUCH MEMBERS OF THE NATIONAL GUARD TO THE ADDITIONAL PAY PROVIDED FOR BY THE ACTS OF 30 JUNE 1944 AND 6 JULY 1945, SUPRA, FOR THE PRESENT WAR AND SIX MONTHS THEREAFTER.

YOUR DECISION IN THE PREMISES IS REQUESTED.

THE SECOND PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, QUOTED IN YOUR LETTER, PROVIDES THAT OFFICERS, WARRANT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD, WHEN IN THE FEDERAL SERVICE OR WHEN PARTICIPATING IN EXERCISES OR PERFORMING THE DUTIES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 206, 207, AS AMENDED, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR ARMY. SECTION 1 OF THE ACT OF JUNE 30, 1944, 58 STAT. 648, QUOTED IN PERTINENT PART IN YOUR LETTER, AUTHORIZES PAYMENT, DURING THE PRESENT WAR AND 6 MONTHS THEREAFTER, TO ANY ENLISTED MAN OF THE COMBAT GROUND FORCES OF THE ARMY WHO IS ENTITLED, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, TO WEAR THE EXPERT INFANTRYMAN BADGE OR THE COMBAT INFANTRYMAN BADGE, OF ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH WHEN ENTITLED TO WEAR THE EXPERT INFANTRYMAN BADGE AND AT THE RATE OF $10 PER MONTH WHEN ENTITLED TO WEAR THE COMBAT INFANTRYMAN BADGE. SECTION 1 OF THE ACT OF JULY 6, 1945, 59 STAT. 462, AUTHORIZES, UNDER SIMILAR CONDITIONS, THE PAYMENT OF ADDITIONAL COMPENSATION AT THE RATE OF $10 PER MONTH TO ENLISTED MEN OF THE ARMY WHO ARE ENTITLED TO WEAR THE MEDICAL BADGE. SECTION 2 OF THE SAID ACTS OF JUNE 30, 1944, 58 STAT. 648, AND JULY 6, 1945, 59 STAT. 462, READS AS FOLLOWS:

THE APPROPRIATIONS HERETOFORE OR HEREAFTER MADE FOR " FINANCE SERVICE, ARMY," SHALL BE AVAILABLE FOR CARRYING INTO EFFECT THE PROVISIONS OF THIS ACT.

THE REGULATION ISSUED BY THE SECRETARY OF WAR PURSUANT TO THE ACT OF JUNE 30, 1944, DEFINES "A MEMBER OF THE COMBAT GROUND FORCES" AS FOLLOWS:

4. DEFINITION OF MEMBER OF COMBAT GROUND FORCES.--- AN ENLISTED MAN IS "A MEMBER OF THE COMBAT GROUND FORCES" ONLY IF ASSIGNED TO ONE OF THE FOLLOWING:

(A) INFANTRY.

(B) THE 5TH, 7TH, 8TH, AND 12TH CAVALRY REGIMENTS OF THE ST CAVALRY DIVISION, SPECIAL.

(C) CONSTABULARY (ONLY PERSONNEL OCCUPYING POSITIONS WHEREIN NO ARM OR SERVICE IS SPECIFIED WITHIN UNITS ORGANIZED UNDER CONSTABULARY TABLES OF ORGANIZATION AND EQUIPMENT). PARAGRAPH 4A OF THE SAID REGULATION WAS AMENDED BY SECTION 5, WAR DEPARTMENT CIRCULAR NO. 16, DATED JANUARY 18, 1947, TO READ AS FOLLOWS:

V. PAY.--- FOR PAY PURPOSES, PARAGRAPH 4A, AR 35-1510, WHICH BECAME EFFECTIVE 1 JANUARY 1947, IS INTERPRETED AS FOLLOWS:

1. ANY ENLISTED MAN WHO HAS BEEN AWARDED THE COMBAT INFANTRYMAN BADGE OR THE EXPERT INFANTRYMAN BADGE AND WHOSE RIGHT TO WEAR THE BADGE HAS NOT BEEN REVOKED IS CONSIDERED AS BEING ASSIGNED TO THE INFANTRY WITHIN THE MEANING AND INTENT OF PARAGRAPH 4A, AR 35-1510 (CORRECTED COPY, EFFECTIVE 1 JANUARY 1947), 10 OCTOBER 1946, EXCEPT---

(A) THOSE INDIVIDUALS WHO HAVE BEEN TRANSFERRED TO A BASIC BRANCH OTHER THAN INFANTRY.

(B) THOSE INDIVIDUALS WHO HAVE ENLISTED OR REENLISTED SUBSEQUENT TO AWARD OF THE BADGE IN A BASIC BRANCH OTHER THAN INFANTRY.

2. THE TERM "ASSIGNED" IS NOT LIMITED TO ASSIGNMENT TO AN INFANTRY UNIT OR ORGANIZATION BUT INCLUDES ASSIGNMENT TO INFANTRY AS A BASIC BRANCH BY EITHER OF THE FOLLOWING METHODS:

(A) BY ENLISTMENT THEREIN FOR 3 YEARS.

(B) BY TRANSFER THERETO BY COMPETENT AUTHORITY.

3. ON PAY ROLLS OF ORGANIZATIONS COMPOSED OF SEVERAL BRANCHES, SUCH AS AN ARMY SERVICE UNIT, THE WORDS " BASIC ASSIGNMENT INFANTRY" WILL BE PLACED AFTER THE NAMES OF PERSONNEL ASSIGNED TO THE INFANTRY AND ENTITLED TO COMBAT AND EXPERT INFANTRY PAY, UNDER PARAGRAPHS 1 AND 2 ABOVE.

IT WILL BE NOTED THAT THE ADDITIONAL COMPENSATION TEMPORARILY AUTHORIZED UNDER THE ACT OF JUNE 30, 1944, FOR ENLISTED MEN ENTITLED TO WEAR THE EXPERT INFANTRYMAN BADGE OR THE COMBAT INFANTRYMAN BADGE IS RESTRICTED TO A PARTICULAR CLASS OF ENLISTED MEN OF THE ARMY DESIGNATED AS "COMBAT GROUND FORCES OF THE ARMY.' AT THE TIME THE SAID ACT OF JUNE 30, 1944, WAS ENACTED, THE NATIONAL GUARD WAS IN THE FEDERAL SERVICE AND, CONSEQUENTLY, ENLISTED MEN THEREOF, OTHERWISE MEETING THE CONDITIONS PRESCRIBED THEREIN, CONSTITUTED A PART OF THE COMBAT GROUND FORCES OF THE ARMY, AND, AS SUCH, WERE ENTITLED TO RECEIVE SUCH ADDITIONAL COMPENSATION. HOWEVER, THERE IS NOTHING IN THE SAID ACT, ITS LEGISLATIVE HISTORY, OR THE REGULATIONS ISSUED THEREUNDER, WHICH INDICATES AN INTENT THAT AN ENLISTED MAN IS TO BE CONSIDERED AS RETAINING HIS STATUS AS A MEMBER OF THE COMBAT GROUND FORCES OF THE ARMY, WITHIN THE MEANING OF THE SAID ACT, AFTER HE HAS BEEN RELEASED FROM THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AND REVERTS TO HIS NATIONAL GUARD STATUS PURSUANT TO SECTION 111 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 211, AS AMENDED, 32 U.S.C. 81, OR HAS BEEN RELEASED FROM ACTIVE DUTY IN THE ARMY AND ENLISTS OR REENLISTS IN THE NATIONAL GUARD. THE ADDITIONAL COMPENSATION AUTHORIZED UNDER THE SAID ACT OF JUNE 30, 1944, IS PAYABLE ONLY TO A PARTICULAR CLASS OF ENLISTED PERSONNEL OF THE ARMY ON ACTIVE DUTY IN THE FEDERAL SERVICE DESIGNATED AS MEMBERS OF THE COMBAT GROUND FORCES OF THE ARMY, AND SUCH ADDITIONAL COMPENSATION IS PAYABLE ONLY SO LONG AS THEY REMAIN MEMBERS OF THE COMBAT GROUND FORCES OF THE ARMY WITHIN THE MEANING OF SAID ACT OF JUNE 30, 1944. ALSO, IT WILL BE NOTED THAT SECTION 2 OF THE SAID ACT SPECIFICALLY PROVIDES THAT THE APPROPRIATION " FINANCE SERVICE, ARMY," SHALL BE AVAILABLE "FOR CARRYING INTO EFFECT THE PROVISIONS OF THIS ACT," WHICH IS A FURTHER INDICATION THAT THE CONGRESS INTENDED THAT SUCH ADDITIONAL COMPENSATION IS PAYABLE ONLY SO LONG AS THE ENLISTED MAN REMAINS IN THE FEDERAL SERVICE ON ACTIVE DUTY WITH THE ARMY. IT IS CONCLUDED, THEREFORE, THAT THE ASSIMILATING PROVISION IN THE SECOND PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942 DOES NOT AUTHORIZE THE PAYMENT OF SUCH ADDITIONAL COMPENSATION TO MEMBERS OF THE NATIONAL GUARD WHEN NOT IN THE FEDERAL SERVICE.

THE ACT OF JULY 6, 1945, PROVIDING THAT DURING THE PRESENT WAR AND 6 MONTHS THEREAFTER "ANY ENLISTED MAN OF THE ARMY" WHO IS ENTITLED TO WEAR THE MEDICAL BADGE SHALL BE PAID ADDITIONAL COMPENSATION AT THE RATE OF $10 PER MONTH, WAS ENACTED FOR THE PURPOSE OF EXTENDING TO SUCH NONCOMBAT PERSONNEL, WHO TAKE THE SAME RISK AS COMBAT SOLDIERS AND UNDERGO THE SAME HARDSHIPS, THE ADDITIONAL COMPENSATION PROVIDED FOR COMBAT GROUND FORCES OF THE ARMY UNDER THE ACT OF JUNE 30, 1944. HENCE, THE CONCLUSION REACHED WITH RESPECT TO THE ADDITIONAL COMPENSATION AUTHORIZED UNDER THE ACT OF JUNE 30, 1944, IS EQUALLY APPLICABLE TO THE ADDITIONAL COMPENSATION AUTHORIZED UNDER THE ACT OF JULY 6, 1945, IN THAT THE TERM "ANY ENLISTED MAN OF THE ARMY WHO IS ENTITLED * * * TO WEAR THE MEDICAL BADGE," AS USED IN THE SAID ACT, HAS REFERENCE TO A PARTICULAR CLASS OF ENLISTED MEN OF THE ARMY ON ACTIVE DUTY IN THE FEDERAL SERVICE, AND HAS NO APPLICATION, BY ASSIMILATION OR OTHERWISE, TO ENLISTED MEN OF THE NATIONAL GUARD WHEN NOT IN THE FEDERAL SERVICE.