B-85693, NOVEMBER 15, 1949, 29 COMP. GEN. 223

B-85693, NOVEMBER 15, 1949, 29 COMP. GEN. 223

PAY - INACTIVE DUTY TRAINING - ORGANIZED RESERVE CORPS IN VIEW OF THE AUTHORITY NOW VESTED IN THE SECRETARY OF THE ARMY TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE ORGANIZED RESERVE CORPS, PAYMENT OF INACTIVE DUTY TRAINING PAY MAY BE MADE TO MEMBERS OF ORGANIZED RESERVE CORPS UNITS, UNLESS PROHIBITED BY REGULATIONS, WHEN ONLY ONE INDIVIDUAL IS ASSIGNED TO A UNIT OR WHEN ONLY ONE INDIVIDUAL OF THE UNIT IS PRESENT AT A REGULARLY SCHEDULED AUTHORIZED PAY ASSEMBLY OF A UNIT TO WHICH MORE THAN ONE MEMBER IS ASSIGNED. 8 COMP. GEN. 373, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. E. G. DOYLE, DEPARTMENT OF THE ARMY, NOVEMBER 15, 1949:

BY INDORSEMENT DATED APRIL 21, 1949, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF MARCH 4, 1949, ENCLOSING VOUCHERS COVERING INACTIVE DUTY TRAINING PAY OF FOUR SEPARATE ORGANIZED RESERVE CORPS UNITS, AND REQUESTING DECISION ON QUESTIONS ARISING IN CONNECTION THEREWITH WHICH MAY BE STATED BRIEFLY, AS FOLLOWS: IS PAYMENT OF INACTIVE DUTY TRAINING PAY AUTHORIZED TO BE MADE TO MEMBERS OF THE ORGANIZED RESERVE CORPS (1) IN CASES WHERE ONLY ONE INDIVIDUAL IS ASSIGNED TO THE UNIT, AND (2) IN CASES WHERE ONLY ONE INDIVIDUAL OF THE UNIT IS PRESENT AT A REGULARLY SCHEDULED AUTHORIZED PAY ASSEMBLY OF A UNIT WITH MORE THAN ONE MEMBER ASSIGNED THERETO?

THE DOUBT IN THE MATTER IS STATED TO STEM FROM A DECISION OF THIS OFFICE DATED JANUARY 19, 1929, 8 COMP. GEN. 373, WHEREIN IT WAS HELD, WITH RESPECT TO THE NATIONAL GUARD, THAT THERE CAN BE NO DULY ORDERED FORMATION OF A SINGLE INDIVIDUAL WITHIN THE MEANING OF SECTION 92 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED BY THE ACT OF JUNE 3, 1924, 43 STAT. 363.

SECTION 55A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, WAS FURTHER AMENDED BY SECTION 4 OF THE ACT OF MARCH 25, 1948, PUBLIC LAW 460, 62 STAT. 89, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

ORGANIZED RESERVE CORPS--- ORGANIZATION AND TRAINING.--- THE ORGANIZED RESERVE CORPS SHALL INCLUDE THE PERSONNEL AND UNITS OF THE OFFICERS RESERVE CORPS, THE ENLISTED RESERVE CORPS, AND THE ORGANIZED RESERVES. THE SECRETARY OF THE ARMY SHALL PRESCRIBE ALL NECESSARY AND PROPER REGULATIONS FOR THE RECRUITING, ORGANIZATION, GOVERNMENT, ADMINISTRATION, TRAINING, INSPECTION, AND MOBILIZATION OF THE ORGANIZED RESERVE CORPS, AND SHALL DETAIL SUCH OFFICERS AND ENLISTED PERSONNEL OF THE REGULAR ARMY AND ORGANIZED RESERVE CORPS, AND SHALL MAKE AVAILABLE SUCH MATERIAL, UNIFORMS, ARMS, SUPPLIES, EQUIPMENT, AND OTHER FACILITIES OF THE ARMY, OR PROCURED FROM FUNDS APPROPRIATED FOR THE PURPOSE AS HE MAY DEEM NECESSARY AND ADVISABLE FOR THE DEVELOPMENT, TRAINING, INSTRUCTION, AND ADMINISTRATION OF THE ORGANIZED RESERVE CORPS AND THE CARE OF GOVERNMENT PROPERTY ISSUED TO THE MEMBERS AND UNITS OF THE ORGANIZED RESERVE CORPS. ANY OR ALL MEMBERS OF THE ORGANIZED RESERVE CORPS MAY BE FORMED INTO MILITARY ORGANIZATIONS, WHICH IN TURN MAY BE SPONSORED BY CIVILIAN ORGANIZATIONS AS AFFILIATED UNITS.

ORGANIZED RESERVE CORPS UNITS WILL BE OF THREE CLASSES, VARYING IN DEGREE OF ORGANIZATION, AS FOLLOWS:

1. THOSE COMBAT AND SERVICE TYPES ORGANIZED WITH A FULL COMPLEMENT OF OFFICERS AND MEN. PROVIDED, THAT THERE WILL BE INCLUDED IN THIS CATEGORY ONLY THOSE UNITS WHICH ARE CONSIDERED NECESSARY FOR PROMPT MOBILIZATION.

2. THOSE COMBAT AND SERVICE TYPES GENERALLY ORGANIZED WITH A FULL COMPLEMENT OF OFFICERS AND AN ENLISTED CADRE.

3. THOSE COMBAT AND SERVICE TYPES GENERALLY ORGANIZED WITH A FULL COMPLEMENT OF OFFICERS ONLY.

UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, PERSONNEL OF THE ORGANIZED RESERVE CORPS SHALL ASSEMBLE FOR DRILL, TRAINING, INSTRUCTION, OR OTHER DUTY AND SHALL PARTICIPATE IN ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES. PROVIDED, THAT ASSEMBLIES FOR SUCH DUTY UNDER SUCH REGULATIONS FOR MEMBERS OF THE ORGANIZED RESERVE CORPS ASSIGNED TO FULLY ORGANIZED UNITS SHALL BE ON THE SAME MINIMUM BASIS AS NOW OR HEREAFTER PRESCRIBED FOR THE NATIONAL GUARD: PROVIDED FURTHER, THAT OTHER UNITS OF THE ORGANIZED RESERVE CORPS MAY BE ASSEMBLED, UNDER SUCH REGULATIONS, FOR SUCH DUTY; HOWEVER, PERSONNEL OF THESE UNITS MAY NOT RECEIVE PAY IN ANY ONE FISCAL YEAR FOR A TOTAL NUMBER OF REGULAR PERIODS OF INSTRUCTION, OR PERIODS OF APPROPRIATE DUTY, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR NOT LESS THAN TWO HOURS, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY OF THE ARMY IN ACCORDANCE WITH SUBSECTION (C) SECTION 14, PAY READJUSTMENT ACT OF 1942, AS AMENDED, IN EXCESS OF 50 PERCENTUM OF THE NUMBER OF SUCH ASSEMBLIES AUTHORIZED FOR PERSONNEL ASSIGNED TO SIMILAR POSITIONS IN THE NATIONAL GUARD: PROVIDED FURTHER, THAT MEMBERS OF THE ORGANIZED RESERVE CORPS NOT ASSIGNED TO TABLE OF ORGANIZATION UNITS MAY BE REQUIRED TO PERFORM DUTIES AS PRESCRIBED BY SUCH REGULATIONS AND RECEIVE CREDIT FOR REGULAR PERIODS OF INSTRUCTION OR DUTY, FOR PAY PURPOSES, UP TO THE SAME MAXIMUM AS PRESCRIBED HEREIN FOR MEMBERS OF UNITS OF THE ORGANIZED RESERVE CORPS, OTHER THAN FULLY ORGANIZED TYPE UNITS: AND PROVIDED FURTHER, THAT MEMBERS OF THE ORGANIZED RESERVE CORPS CLASSIFIED IN SCIENTIFIC OR SPECIALIST CATEGORIES, OR MEMBERS OF THE ORGANIZED RESERVE CORPS, WHETHER OR NOT ASSIGNED TO A UNIT, WHO, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE ARMY, ARE DESIGNATED FOR A MOBILZATION DAY ASSIGNMENT, MAY BE REQUIRED TO PERFORM DUTIES AS PRESCRIBED BY SUCH REGULATIONS AND RECEIVE CREDIT FOR REGULAR DRILL PERIODS FOR PAY PURPOSES ON THE SAME MINIMUM BASIS AS PRESCRIBED HEREIN FOR MEMBERS OF THE ORGANIZED RESERVE CORPS IN FULLY ORGANIZED TYPE UNITS.

THE PROVISIONS THUS MADE FOR TRAINING AND DRILLING THE ORGANIZED RESERVE CORPS ARE SIMILAR IN MANY RESPECTS TO THOSE RELATING TO THE NATIONAL GUARD AND WHILE THE LANGUAGE OF SECTION 92 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, SUPRA, HAS NOT BEEN MATERIALLY CHANGED SINCE THE DECISION OF JANUARY 19, 1929, WAS RENDERED, IMPORTANT CHANGES HAVE BEEN MADE IN THE STATUTORY PROVISIONS FOR PAY FOR DRILLS, ETC., FOR MEMBERS OF RESERVE COMPONENTS, INCLUDING THE NATIONAL GUARD.

THE THIRD PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, AS ORIGINALLY ENACTED, 56 STAT. 367, PROVIDED, IN PERTINENT PART, 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, AUTHORIZED BY THE SECRETARY OF WAR, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR THE ENTIRE PRESCRIBED PERIOD OF TIME * * *.

THAT SECTION WAS AMENDED BY SECTION 3 OF THE ACT OF MARCH 25, 1948, 62 STAT. 88, SUBSECTION (C) OF THE AMENDED SECTION 14 READING AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE, AND TO THE EXTENT PROVIDED FOR BY LAW AND BY APPROPRIATIONS, OFFICERS, WARRANT OFFICERS, AND ENLISTED PERSONNEL OF THE NATIONAL GUARD OF THE UNITED STATES, ORGANIZED RESERVE CORPS, NAVAL RESERVE, AND MARINE CORPS RESERVE, SHALL RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE MONTHLY BASE PAY INCLUDING LONGEVITY PAY, AUTHORIZED FOR SUCH PERSONS WHEN ON ACTIVE DUTY IN THE ARMED FORCES OF THE UNITED STATES, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR NOT LESS THAN TWO HOURS, INCLUDING THOSE PERFORMED ON SUNDAYS AND HOLIDAYS, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED: PROVIDED, THAT PERSONNEL REQUIRED TO PERFORM AERIAL FLIGHTS, PARACHUTE JUMPING, GLIDER FLIGHTS, OR SUBMARINE DUTY SHALL RECEIVE THE INCREASES IN PAY PROVIDED FOR BY LAW FOR PERSONNEL IN SUCH STATUS: PROVIDED FURTHER, THAT FOR EACH OF THE SEVERAL CLASSES OF ORGANIZATIONS PRESCRIBED FOR THE NATIONAL GUARD OF THE UNITED STATES, THE ORGANIZED RESERVE CORPS, NAVAL RESERVE, AND MARINE CORPS RESERVE, THE RULES APPLICABLE TO EACH OF WHICH SERVICES AND CLASSES WITHIN SERVICES MAY DIFFER, THE HEAD OF THE DEPARTMENT CONCERNED: (1) SHALL PRESCRIBE MINIMUM STANDARDS WHICH MUST BE MET BEFORE AN ASSEMBLY FOR DRILL OR OTHER EQUIVALENT PERIOD OF TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES MAY BE CREDITED FOR PAY PURPOSES, WHICH MINIMUM STANDARDS MAY REQUIRE THE PRESENCE FOR DUTY OF OFFICERS AND ENLISTED PERSONNEL EQUAL TO OR IN EXCESS OF A MINIMUM NUMBER OR PERCENTAGE OF UNIT STRENGTH FOR A SPECIFIED PERIOD OF TIME WITH PARTICIPATION IN A PRESCRIBED CHARACTER OF TRAINING; (2) SHALL PRESCRIBE THE MAXIMUM NUMBER OF ASSEMBLIES OR PERIODS OF OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES, WHICH MAY BE COUNTED FOR PAY PURPOSES IN EACH FISCAL YEAR; (3) SHALL PRESCRIBE THE MAXIMUM NUMBER OF ASSEMBLIES, OR PERIODS OF OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES WHICH CAN BE COUNTED FOR PAY PURPOSES IN LESSER PERIODS OF TIME; AND (4) SHALL PRESCRIBE THE MINIMUM NUMBER OF ASSEMBLIES OR PERIODS OF OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES, WHICH MUST BE COMPLETED IN STATED PERIODS OF TIME BEFORE THE PERSONNEL OF ORGANIZATIONS OR UNITS CAN QUALIFY FOR PAY: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT APPLY WHEN SUCH PERSONS ARE ENTITLED TO RECEIVE FULL PAY AND ALLOWANCES AS PROVIDED FOR IN PARAGRAPHS (A) AND (B) OF THIS SECTION.

SIMILAR PROVISIONS CURRENTLY ARE CONTAINED IN SECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 825.

IT WILL BE NOTED THAT THE ABOVE-QUOTED PROVISIONS OF LAW VEST BROAD AUTHORITY IN THE COGNIZANT SECRETARY TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE ACTIVITIES OF THE VARIOUS RESERVE COMPONENTS AND SUCH BROAD AUTHORITY IS CONTINUED BY THE SAID SECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949. AMONG OTHER THINGS, THE COGNIZANT SECRETARY IS AUTHORIZED TO PRESCRIBE MINIMUM STANDARDS WHICH MUST BE MET BEFORE AN ASSEMBLY FOR DRILL, ETC., MAY BE CREDITED FOR PAY PURPOSES, WHICH MINIMUM STANDARDS "MAY REQUIRE THE PRESENCE FOR DUTY OF OFFICERS AND ENLISTED PERSONNEL EQUAL TO OR IN EXCESS OF A MINIMUM NUMBER OR PERCENTAGE OF UNIT STRENGTH.' TO APPLY THE PRINCIPLE OF THE DECISION OF JANUARY 19, 1929, 8 COMP. GEN. 373, SUPRA, IN CASES OF THE TYPE INVOLVED IN YOUR QUESTIONS WOULD BE TO INTERFERE WITH THE FREE EXERCISE OF THE AUTHORITY VESTED IN THE HEADS OF CERTAIN DEPARTMENTS BY THE STATUTORY PROVISIONS REFERRED TO ABOVE. ACCORDINGLY, UNDER EXISTING LAW, THE QUESTION WHETHER A MEMBER OF A RESERVE COMPONENT CAN QUALIFY FOR DRILL PAY, ETC., IN CASES WHERE ONLY ONE INDIVIDUAL IS ASSIGNED TO A UNIT, OR IN CASES WHERE ONLY ONE INDIVIDUAL OF THE UNIT IS PRESENT AT A REGULARLY SCHEDULED PAY ASSEMBLY OF A UNIT WITH MORE THAN ONE MEMBER ASSIGNED THERETO, WILL BE CONSIDERED AS PRIMARILY FOR DETERMINATION IN ACCORDANCE WITH THE APPLICABLE ADMINISTRATIVE REGULATIONS. AND SINCE NOTHING IS FOUND IN THE CURRENT REGULATIONS WHICH WOULD PROHIBIT PAYMENT TO ENLISTED PERSONNEL IN CASES OF THE TYPE HERE INVOLVED, PAYMENT OF SUCH PERSONNEL IS AUTHORIZED IN SUCH CASES IN THE ABSENCE OF OTHER OBJECTION. THE SAME RULE PRESENTLY IS APPLICABLE TO OFFICERS EXCEPT THAT IN A CASE WHERE A UNIT HAS MORE THAN ONE MEMBER ASSIGNED THERETO, THE REQUIREMENT OF THE APPLICABLE REGULATIONS (PARAGRAPH 9, CIRCULAR NO. 201, DEPARTMENT OF THE ARMY, JULY 7, 1948) WITH RESPECT TO PERCENTAGE OF ATTENDANCE MUST BE MET BEFORE AN OFFICER IS ENTITLED TO PAY FOR HIS ATTENDANCE AT A TRAINING ASSEMBLY.

THE FOUR VOUCHERS RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH AND PAYMENT THEREOF, IN ACCORDANCE WITH THE FOREGOING, IS AUTHORIZED IF OTHERWISE CORRECT.