B-87300, OCTOBER 6, 1949, 29 COMP. GEN. 163

B-87300, OCTOBER 6, 1949, 29 COMP. GEN. 163

PAY - ADDITIONAL - NAVAL RESERVE OFFICERS OF THE MEDICAL AND DENTAL CORPS NAVAL RESERVE OFFICERS OF THE MEDICAL AND DENTAL CORPS WHO APPLY FOR AND ARE ACCEPTED FOR ACTIVE DUTY OF ONE YEAR OR MORE DURING THE FIVE YEAR PERIOD BEGINNING SEPTEMBER 1, 1947, MAY BE CONSIDERED AS HAVING VOLUNTEERED FOR SUCH ACTIVE DUTY SO AS TO BE ENTITLED TO THE ADDITIONAL PAY OF $100 PER MONTH AUTHORIZED BY SECTION A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ACT OF AUGUST 5, 1947, NOTWITHSTANDING THEIR FAILURE TO VOLUNTEER COULD OR WOULD RESULT IN THEIR INDUCTION INTO THE ARMED FORCES IN SOME OTHER CAPACITY PURSUANT TO THE PROVISIONS OF THE SELECTIVE SERVICE ACT OF 1948. NAVAL RESERVE OFFICERS ON ACTIVE DUTY AS INTERNS IN PRIVATE HOSPITALS WHO ARE PAID COMPENSATION BY THE HOSPITALS FOR THE PERFORMANCE OF THE VERY SERVICES REQUIRED OF THEM AS RESERVE OFFICERS ON ACTIVE DUTY ARE NOT ENTITLED, UNDER SECTION 4 (F) OF THE SELECTIVE SERVICE ACT OF 1948, TO RETAIN SUCH COMPENSATION AND, IN VIEW OF THE ADDITIONAL COMPENSATION RESTRICTIONS OF 18 U.S.C. 1914, COMPENSATION SO PAID SHOULD BE CONSIDERED AS RECEIVED FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT AND IS FOR COLLECTION AND COVERING INTO MISCELLANEOUS RECEIPTS. NAVAL RESERVE MEDICAL AND DENTAL OFFICERS ON ACTIVE DUTY AS INTERNS IN PRIVATE HOSPITALS WHO ARE FURNISHED QUARTERS AND SUBSISTENCE IN KIND BY SUCH HOSPITALS ARE TO BE CONSIDERED AS BEING FURNISHED QUARTERS AND SUBSISTENCE ON BEHALF OF THE GOVERNMENT IN CONNECTION WITH AND INCIDENT TO ACTIVE NAVAL SERVICE, AND SUCH OFFICERS MAY NOT BE PAID RENTAL OR SUBSISTENCE ALLOWANCE BY THE GOVERNMENT WHILE RECEIVING QUARTERS OR SUBSISTENCE IN KIND FROM THE HOSPITALS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 6, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 17, 1949, WITH ENCLOSURES, REQUESTING DECISION WHETHER CERTAIN NAVAL RESERVE MEDICAL AND DENTAL OFFICERS PRESENTLY ON VOLUNTARY ACTIVE DUTY OR WHO MAY HEREAFTER VOLUNTEER FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE, BUT WHO OTHERWISE WOULD BE SUBJECT TO POSSIBLE INDUCTION INTO THE ARMED FORCES PURSUANT TO THE PROVISIONS OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, ARE, OR WILL BE, ENTITLED TO RECEIVE THE ADDITIONAL PAY OF $100 PER MONTH WHICH IS AUTHORIZED BY THE ACT OF AUGUST 5, 1947 ( ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947), 61 STAT. 776, FOR SPECIFIED CLASSES OF MEDICAL AND DENTAL OFFICERS INCLUDING MEDICAL AND DENTAL OFFICERS OF THE NAVAL RESERVE WHO VOLUNTEER AND ARE ACCEPTED FOR ACTIVE DUTY OF ONE YEAR OR MORE DURING THE FIVE-YEAR PERIOD BEGINNING SEPTEMBER 1, 1947. DECISION ALSO IS REQUESTED AS TO WHETHER CERTAIN MEDICAL CORPS RESERVE OFFICERS LEGALLY MAY BE PAID RENTAL AND SUBSISTENCE ALLOWANCES INCIDENT TO THE PERFORMANCE OF ACTIVE DUTY AS INTERNS IN CIVILIAN HOSPITALS UNDER THE CIRCUMSTANCES SET FORTH IN A COMMUNICATION FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, DATED MARCH 11, 1949.

SECTION 101 OF THE ACT OF AUGUST 5, 1947, SUPRA, AMENDED THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, BY ADDING THERETO A NEW SECTION (NUMBERED A) WHICH, IN SUBPARAGRAPH (A), 61 STAT. 776, PROVIDES THAT "THE TERM "COMMISSIONED OFFICERS," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN," INTER ALIA,"SUCH OFFICERS, NOW OR HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE * * * NAVAL RESERVE * * * WHO MAY, DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION ( SEPTEMBER 1, 1947), VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER.' AND THE SAID SECTION, IN SUBPARAGRAPH (B), 61 STAT. 776, FURTHER PROVIDES AS FOLLOWS:

IN ADDITION TO ANY PAY, ALLOWANCES, OR EMOLUMENTS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED TO PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE FOLLOWING THE DATE OF ENACTMENT OF THIS SECTION: PROVIDED, THAT SUCH SUM SHALL NOT BE INCLUDED IN COMPUTING THE AMOUNT OF INCREASE IN PAY AUTHORIZED BY ANY OTHER PROVISION OF LAW OR IN COMPUTING RETIRED PAY: PROVIDED FURTHER, THAT THE TOTAL AMOUNT WHICH MAY BE PAID TO ANY ONE OFFICER UNDER THE AUTHORITY CONTAINED IN THIS SECTION SHALL NOT EXCEED $36,000: AND PROVIDED FURTHER, THAT THE COMMISSIONED OFFICERS DESCRIBED IN SUBSECTION (A) (3) OF THIS SECTION SHALL RECEIVE THE PAY PROVIDED BY THIS SUBSECTION ONLY DURING PERIODS OF VOLUNTEER SERVICE.

YOUR DOUBT AS TO THE ENTITLEMENT OF DRAFT-ELIGIBLE MEDICAL AND DENTAL OFFICERS OF THE NAVAL RESERVE TO ADDITIONAL PAY UNDER THE QUOTED PROVISIONS OF THE ACT OF AUGUST 5, 1947, IS BASED UPON A CONSIDERATION OF WHETHER OR NOT THEIR REQUEST FOR ACTIVE DUTY, WHEN THEY OTHERWISE ARE SUBJECT TO POSSIBLE INDUCTION, ACTUALLY IS OF A VOLUNTARY NATURE WITHIN THE MEANING AND INTENT OF SUCH PROVISIONS. THE SPECIFIC CATEGORIES OF CASES PRESENTED FOR CONSIDERATION, AS SET FORTH IN LETTER OF JANUARY 24, 1949, FROM THE CHIEF OF NAVAL PERSONNEL, ARE AS FOLLOWS:

THOSE WHO WERE, ARE, OR WILL BE ELIGIBLE FOR INDUCTION UNDER REFERENCE(B) ( SELECTIVE SERVICE ACT OF 1948) AND WHO VOLUNTEER FOR EXTENDED ACTIVE DUTY FOR ONE YEAR OR LONGER

(A) PRIOR TO RECEIVING NOTICE TO REPORT FOR PREINDUCTION PHYSICAL EXAMINATION.

(B) AFTER RECEIPT OF NOTICE TO REPORT FOR PREINDUCTION PHYSICAL EXAMINATION.

(C) AFTER HAVING REPORTED FOR PREINDUCTION PHYSICAL EXAMINATION.

(D) SAME AS GROUPING (C) ABOVE EXCEPT THOSE WHO REPORTED FOR PREINDUCTION PHYSICAL EXAMINATION DURING THE MONTH OF NOVEMBER 1948.

SECTION 4 (A) OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 605, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED IN THE ACT, EVERY MALE CITIZEN OF THE UNITED STATES, AND EVERY OTHER MALE PERSON RESIDING IN THE UNITED STATES, BETWEEN THE AGES OF 19 AND 26 SHALL BE LIABLE FOR TRAINING AND SERVICE IN THE ARMED FORCES AND SUBJECT TO INDUCTION FOR SERVICE FOR A PERIOD OF 21 CONSECUTIVE MONTHS UNLESS SOONER DISCHARGED. SECTION 6 (A) OF THAT ACT, 62 STAT. 609, HOWEVER, EXEMPTS MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES, THE COAST GUARD, AND THE PUBLIC HEALTH SERVICE, WHILE ON ACTIVE DUTY, FROM REGISTRATION, TRAINING, AND SERVICE UNDER THE SAID ACT. HENCE, A NAVAL RESERVE OFFICER ORDERED TO ACTIVE DUTY PRIOR TO INDUCTION IS RELIEVED FROM LIABILITY FOR TRAINING AND SERVICE UNDER THE SELECTIVE SERVICE ACT OF 1948 FOR THE DURATION OF THE ACTIVE- DUTY PERIOD.

TO BE ENTITLED TO THE ADDITIONAL PAY OF $100 PER MONTH UNDER THE PROVISIONS OF THE ACT OF AUGUST 5, 1947, SUPRA, RESERVE OFFICERS OF THE MEDICAL AND DENTAL CORPS MUST, DURING THE FIVE-YEAR PERIOD COMMENCING SEPTEMBER 1, 1947, VOLUNTEER AND BE ACCEPTED FOR ACTIVE DUTY FOR ONE YEAR OR LONGER. THE TERM "VOLUNTEER" IN ITS COMMONLY ACCEPTED MEANING REFERS TO A PERSON WHO OF HIS OWN FREE WILL ENTERS INTO OR OFFERS HIMSELF FOR ANY SERVICE. AND IT WOULD APPEAR PROPER, AND CONSISTENT WITH SUCH MEANING, TO CONSIDER THAT SO LONG AS A NAVAL RESERVE OFFICER OF THE MEDICAL CORPS OR DENTAL CORPS IS NOT ACTUALLY OBLIGATED TO SERVE ON ACTIVE DUTY AS A RESERVE OFFICER, AND OTHERWISE IS ABLE AND FREE TO ELECT WHETHER OR NOT HE SHALL ENTER UPON ACTIVE DUTY AS SUCH OFFICER, HIS ELECTION TO ENTER UPON SUCH ACTIVE DUTY WOULD BE OF A VOLUNTARY NATURE WITHIN THE CONTEMPLATION OF THE SAID ACT, REGARDLESS OF HIS MOTIVES FOR SO ELECTING AND REGARDLESS OF WHETHER HIS FAILURE TO SO ELECT COULD OR WOULD RESULT IN HIS INDUCTION INTO THE ARMED FORCES IN SOME OTHER CAPACITY OR STATUS.

IN EXPLANATION OF A POSSIBLE BASIS FOR DISTINCTION BETWEEN CATEGORIES (C) AND (D), AS SET FORTH IN THE ABOVE QUOTATION FROM LETTER OF THE CHIEF OF NAVAL PERSONNEL, THERE HAVE BEEN SUBMITTED COPIES OF LETTERS DATED OCTOBER 7, 1948 (PERS-1D7-DEC/SERIAL F-2013), AND NOVEMBER 4, 1948 (PERS-1D7- JMF/SERIAL F:2139), FROM THE CHIEF OF NAVAL PERSONNEL TO THE COMMANDANTS OF ALL NAVAL DISTRICTS AND OTHERS. THE SAID LETTER OF OCTOBER 7, 1948, SETTING FORTH THE PROCEDURE TO BE FOLLOWED TO OBTAIN APPLICATIONS OF RESERVE PERSONNEL FOR ACTIVE DUTY ON A VOLUNTARY BASIS, STATES THAT DRAFT- ELIGIBLE OFFICERS OF THE NAVAL RESERVE MUST REQUEST ACTIVE DUTY AS RESERVISTS PRIOR TO REPORTING FOR PREINDUCTION PHYSICAL EXAMINATION AND PROVIDES THAT OFFICERS WHO REQUEST SUCH ACTIVE DUTY SHALL SIGN AN AGREEMENT TO SERVE ON ACTIVE DUTY FOR 21 CONSECUTIVE MONTHS UNLESS SOONER RELEASED. THE SAID LETTER OF NOVEMBER 4, 1948, STATES THAT IN VIEW OF THE FACT THAT AT THAT TIME NOT ALL DRAFT-ELIGIBLE NAVAL RESERVE OFFICERS WOULD HAVE BEEN ADVISED OF THE PROVISIONS OF THE CITED LETTER OF OCTOBER 7, 1948, AGREEMENT HAD BEEN REACHED WITH THE DEPARTMENT OF THE ARMY THAT DURING THE MONTH OF NOVEMBER 1948 AND AFTER THE OFFICER HAD REQUESTED ACTIVE DUTY BY TELEGRAM TO THE APPROPRIATE COMMAND, THE INDUCTION STATIONS WOULD DELAY PROCESSING THE OFFICER CONCERNED FOR A PERIOD OF 15 DAYS SO THAT HE COULD BE PLACED ON ACTIVE DUTY WITH THE NAVY FOR A PERIOD OF 21 MONTHS.

SUBJECT TO THE EXCEPTION RESPECTING INDUCTIONS DURING NOVEMBER 1948, THE INSTRUCTIONS CONTAINED IN THE ABOVE-CITED LETTERS OF OCTOBER 7 AND NOVEMBER 4, 1948, DOUBTLESS WERE INTENDED TO PRECLUDE THE ACCEPTANCE OF A NAVAL RESERVE OFFICER'S APPLICATION FOR ACTIVE DUTY AFTER HE HAD REPORTED FOR PREINDUCTION PHYSICAL EXAMINATION IN ACCORDANCE WITH THE SELECTIVE SERVICE ACT OF 1948 AND THE PERTINENT REGULATIONS. IF, HOWEVER, NOTWITHSTANDING SUCH INSTRUCTIONS, SOME OFFICERS WHO REPORTED FOR PREINDUCTION PHYSICAL EXAMINATION BEFORE NOVEMBER 1, 1948, OR AFTER NOVEMBER 30, 1948 (CATEGORY (C) ABOVE), WERE IN FACT ORDERED TO ACTIVE DUTY AS NAVAL RESERVE OFFICERS UPON THEIR OWN APPLICATION--- AND THUS WERE NOT REQUIRED TO SERVE IN THE ARMED FORCES UNDER THE PROVISIONS OF THE SELECTIVE SERVICE ACT OF 1948--- IT WOULD APPEAR THAT THEIR SERVICE, AS WELL AS THE SERVICE OF THE OFFICERS IN THE OTHER CATEGORIES HERE INVOLVED, MUST BE CONSIDERED AS VOLUNTARY SERVICE. HENCE, IT MAY BE CONSIDERED THAT APPLICATIONS FOR ACTIVE DUTY OF ONE YEAR OR MORE MADE BY OFFICERS IN ALL FOUR CATEGORIES DESCRIBED IN THE ABOVE QUOTATION FROM THE CHIEF OF NAVAL PERSONNEL'S LETTER OF JANUARY 24, 1949, WOULD BE OF A VOLUNTARY NATURE, AND SUCH OFFICERS, THEREFORE, AFTER ACCEPTANCE FOR AND WHILE SERVING ON SUCH ACTIVE DUTY, WOULD BE ENTITLED TO RECEIVE THE MONETARY BENEFITS AUTHORIZED BY THE ACT OF AUGUST 5, 1947, SUPRA. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO YOUR QUESTION RELATING TO RENTAL AND SUBSISTENCE ALLOWANCES, THE CASES SET FORTH IN THE LETTER OF MARCH 11, 1949, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS ARE UNDERSTOOD TO INVOLVE GRADUATE MEDICAL STUDENTS COMMISSIONED AS LIEUTENANTS (JG), MCR, USNR, AND ORDERED TO ACTIVE DUTY AS INTERNS AT THE SAME HOSPITALS WHERE THEY HAD COMMENCED INTERN TRAINING AS CIVILIANS. IN OTHER WORDS IT IS UNDERSTOOD THAT AFTER THE OFFICERS INVOLVED ARE PLACED ON ACTIVE DUTY AS OFFICERS OF THE NAVAL RESERVE THEY CONTINUE TO PERFORM THE SAME SERVICES--- INTERN SERVICES IN CIVILIAN HOSPITALS--- AS THEY PERFORMED BEFORE BEING PLACED ON ACTIVE DUTY AND THAT SUCH SERVICES ALONE ARE CONSIDERED TO CONSTITUTE THEIR ACTIVE "NAVAL" DUTIES AS RESERVE OFFICERS. IN ALL THE EXAMPLES GIVEN QUARTERS AND SUBSISTENCE ARE AVAILABLE IN KIND, FURNISHED TO THE OFFICER BY THE CIVILIAN HOSPITAL, WITH VARYING REQUIREMENTS AS TO WHETHER THE OFFICER MUST LIVE ON THE HOSPITAL PREMISES. IN ADDITION TO THE QUARTERS AND SUBSISTENCE FURNISHED, THE OFFICERS IN THE EXAMPLES GIVEN, WITH ONE EXCEPTION, ARE PAID COMPENSATION RANGING FROM $50 TO $75 PER MONTH BY THE HOSPITALS.

IT IS UNUSUAL, AT THE LEAST, TO TREAT A PERSON'S SERVICE AS AN INTERN IN A CIVILIAN HOSPITAL AS ACTIVE NAVAL SERVICE BUT IT IS ASSUMED THAT THE DEPARTMENT OF THE NAVY, AFTER DUE CONSIDERATION OF THE MATTER, HAS CONCLUDED THAT THERE ARE SUFFICIENT AND PROPER MILITARY REASONS TO SO TREAT SUCH SERVICE IN THE CLASS OF CASES HERE INVOLVED. HOWEVER, IF THE SAID SERVICE IS TO BE CONSIDERED AS ACTIVE NAVAL SERVICE AND THE OFFICERS INVOLVED ARE TO BE CONSIDERED ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES INCIDENT TO THE PERFORMANCE OF SUCH SERVICE, THEN IT WOULD APPEAR TO BE UNLAWFUL FOR THE SAID OFFICERS TO RECEIVE THE BENEFIT OF ANY PAYMENT FOR SUCH SERVICE FROM A SOURCE OTHER THAN THE FEDERAL GOVERNMENT, UNLESS THE FUNDS USED FOR SUCH PAYMENT ARE "CONTRIBUTED OUT OF THE TREASURY OF STATE, COUNTY OR MUNICIPALITY," WITHIN THE MEANING OF THE PROVISIONS OF 18 U.S. CODE, SUPP. II, 1914 (SEE ACT OF JUNE 25, 1948, 62 STAT. 793), MAKING IT UNLAWFUL FOR "A GOVERNMENT OFFICIAL OR EMPLOYEE" TO RECEIVE "ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY OR MUNICIPALITY.' WHILE SECTION 4 (F) OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 608, PROVIDES THAT NOTHING CONTAINED IN THAT ACT OR ANY OTHER ACT SHALL BE CONSTRUED AS FORBIDDING THE PAYMENT OF COMPENSATION BY ANY PERSON, FIRM, OR CORPORATION TO MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES OF THE UNITED STATES ON ANY TYPE OF ACTIVE DUTY WHO PRIOR TO BEING ORDERED TO ACTIVE DUTY, WERE RECEIVING COMPENSATION FROM SUCH PERSON, FIRM, OR CORPORATION, IT IS REASONABLY APPARENT THAT SUCH PROVISION DOES NOT HAVE REFERENCE TO COMPENSATION PAID TO OFFICERS FOR THE PERFORMANCE OF THE VERY SERVICES REQUIRED OF THEM AS RESERVE OFFICERS ON ACTIVE DUTY AND THAT IT DOES NOT AFFECT THE APPLICATION OF THE ABOVE-QUOTED PROVISIONS OF 18 U.S. CODE, SUPP. II, 1914, TO THE CASES HERE INVOLVED. ACCORDINGLY, IT IS THE VIEW OF THIS OFFICE THAT ANY PAYMENT RECEIVED FROM A PRIVATE HOSPITAL BY AN OFFICER-INTERN INCIDENT TO THE SERVICE HE PERFORMS IN SUCH HOSPITAL WHILE A NAVAL RESERVE OFFICER ON ACTIVE DUTY SHOULD BE CONSIDERED AS RECEIVED FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT AND THAT THE AMOUNT OF ANY SUCH PAYMENT SHOULD BE COLLECTED FROM THE OFFICER, BY DEDUCTION FROM HIS PAY OR OTHERWISE, AND SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

RETURNING TO THE MATTER OF THE RECEIPT BY THE OFFICER-INTERNS OF QUARTERS AND SUBSISTENCE FURNISHED BY NON-GOVERNMENT HOSPITALS, I AM CONSTRAINED TO HOLD, IN VIEW OF THE FOREGOING AND OF SEVERAL DECISIONS OF THIS OFFICE INVOLVING SIMILAR OR ANALOGOUS SITUATIONS (B-87471, AUGUST 11, 1949, 29 COMP. GEN. 67; 21 COMP. GEN. 1065; 27 COMP. GEN. 479), THAT THE QUARTERS AND SUBSISTENCE IN SUCH CASES--- BEING FURNISHED IN CONNECTION WITH AND INCIDENT TO THE ACTIVE NAVAL SERVICE OF THE OFFICER CONCERNED--- MUST BE CONSIDERED AS FURNISHED ON BEHALF OF THE GOVERNMENT AND THAT, IN THE CIRCUMSTANCES, NO OFFICER-INTERN SHOULD BE PAID RENTAL ALLOWANCE WHILE SO RECEIVING QUARTERS IN KIND OR SUBSISTENCE ALLOWANCE WHILE SO RECEIVING SUBSISTENCE IN KIND. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.