B-112407, SEP. 16, 1963, 43 COMP. GEN. 265

B-112407, SEP. 16, 1963, 43 COMP. GEN. 265

UNIFORMS - MILITARY PERSONNEL - RESERVISTS - QUALIFICATIONS - EXTENDED ACTIVE DUTY ALLOWANCE THE ENTRANCE ON ACTIVE DUTY AS A NON-REGULAR OFFICER LESS THAN 2 YEARS AFTER RELEASE FROM ACTIVE DUTY AS A REGULAR OFFICER OR ENLISTED MAN, OR AS AN ENLISTED MEMBER OF A RESERVE COMPONENT DOES NOT DENY THE OFFICER THE EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE OF $100 THAT IS IN ADDITION TO THE INITIAL UNIFORM ALLOWANCE, THE 2-YEAR RESTRICTION IN 37 U.S.C. 416 (B) (2) BARRING PAYMENT WHEN A TOUR OF DUTY COMMENCES WITHIN 2 YEARS AFTER COMPLETING A PERIOD OF ACTIVE DUTY OF MORE THAN 90 DAYS' DURATION HAVING REFERENCE TO ACTIVE DUTY ORDERED IN A NON-REGULAR OFFICER STATUS FOR MORE THAN 90 DAYS; THEREFORE, THE RESTRICTION IS NOT FOR APPLICATION WHEN LESS THAN 2 YEARS HAS ELAPSED FROM THE TIME THE NON-REGULAR OFFICER WAS RELEASED FROM ACTIVE DUTY AS A REGULAR OFFICER OR ENLISTED MAN, OR AS AN ENLISTED MEMBER OF A RESERVE COMPONENT.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 16, 1963:

REFERENCE IS MADE TO LETTER DATED JUNE 26, 1963, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION ON A MATTER DISCUSSED IN COMMITTEE ACTION NO. 322 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS TO WHETHER RESTRICTION (2) OF 37 U.S.C. 416 (B) APPLIES TO A TOUR OF ACTIVE DUTY ENTERED INTO BY A RESERVE OFFICER, OR BY AN OFFICER OF THE ARMY OR AIR FORCE WITHOUT SPECIFICATION OF COMPONENT, WITHIN 2 YEARS AFTER COMPLETING A PERIOD OF ACTIVE SERVICE OF MORE THAN 90 DAYS' DURATION (A) AS AN OFFICER OF A REGULAR COMPONENT OF THE ARMED FORCES, OR (B) AS AN ENLISTED MEMBER OF A REGULAR OR RESERVE COMPONENT OF THE ARMED FORCES.

IN OUR DECISION OF MARCH 29, 1963, B-112407, 42 COMP. GEN. 550, WE HELD THAT THE 2-YEAR RESTRICTION FORMERLY IMPOSED AGAINST ANY INDIVIDUAL WHO HAD SERVED ON ACTIVE DUTY AS AN OFFICER OF A REGULAR COMPONENT BEFORE QUALIFICATION FOR ENTITLEMENT TO ANY OF THE UNIFORM ALLOWANCES GRANTED NON -REGULAR OFFICERS--- INITIAL, QUADRENNIAL MAINTENANCE OR EXTENDED ACTIVE- DUTY UNIFORM ALLOWANCES--- APPLIES ONLY TO THE INITIAL UNIFORM ALLOWANCE PROVIDED IN 37 U.S.C. 415 AFTER NOVEMBER 1, 1962, AND THAT SUCH FORMER REGULAR OFFICERS BECOME ENTITLED TO THE $50 QUADRENNIAL MAINTENANCE AND THE $100 EXTENDED ACTIVE-DUTY UNIFORM ALLOWANCE IN THE SAME MANNER AS ANY OTHER NON REGULAR OFFICER WHO MEETS THE CONDITIONS PRESCRIBED IN 37 U.S.C. 416.

SINCE THE EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE OF $100 IS "IN ADDITION TO" THE INITIAL UNIFORM ALLOWANCE, IT IS ASSUMED THAT THE MEMBERS HERE INVOLVED HAVE BEEN PAID THE INITIAL UNIFORM ALLOWANCE.

IT IS STATED IN THE COMMITTEE ACTION DISCUSSION THAT THE STATUTORY PROVISIONS REPLACED BY RESTRICTION (2/--- SEE LAST PROVISO OF SECTION 243 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, CH. 608, 66 STAT. 493, 50 U.S.C. 974 (C/--- WERE CONSIDERED TO BE APPLICABLE ONLY TO NON REGULAR OFFICER SERVICE. WE AGREE WITH THAT CONCLUSION AND, SINCE WE FIND NO LANGUAGE IN THOSE PROVISIONS AS CODIFIED IN 37 U.S.C. 416 (B) (2) (ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, 76 STAT. 478), CLEARLY EFFECTING A CHANGE IN THE LAW, NO REASON IS PERCEIVED WHY THE LEGISLATIVE PURPOSE OF RESTATING THE OLD LAW "WITHOUT SUBSTANTIVE CHANGE"--- SEE SECTION 12 (A) OF THE 1962 ACT, 76 STAT. 497--- SHOULD NOT BE GIVEN EFFECT.

THE APPARENT PURPOSE OF THE RESTRICTION IN 37 U.S.C. 416 (B) (2) BARRING PAYMENT OF THE ADDITIONAL UNIFORM ALLOWANCE OF $100 IF THE OFFICER "ENTERS ON THAT TOUR WITHIN TWO YEARS AFTER COMPLETING A PERIOD OF ACTIVE DUTY OF MORE THAN 90 DAYS' DURATION" WAS TO FIX A MINIMUM 2-YEAR INTERVAL BETWEEN THE PERIODS OF ACTIVE DUTY WHICH WOULD GIVE RISE TO A RIGHT TO SUCH ALLOWANCE. SINCE SUCH ACTIVE DUTY MUST BE ORDERED IN A NON-REGULAR OFFICER STATUS FOR MORE THAN 90 DAYS, AND SERVICE IN A REGULAR COMPONENT IS NOT OTHERWISE MENTIONED IN SECTION 416, IT WOULD SEEM THAT, IN LINE WITH THE PURPOSE AND INTENT OF THE PROVISIONS OF LAW FROM WHICH SECTION 416 WAS DERIVED, THE PHRASE "ACTIVE DUTY OF MORE THAN 90 DAYS' DURATION" IN SECTION 416 (B) (2) SHOULD BE INTERPRETED AS MEANING ACTIVE DUTY AS A NON-REGULAR OFFICER. THE FACT THAT THE DEFINITION OF THE TERM ,ACTIVE DUTY" IN 37 U.S.C. 101 (18) IS BROAD ENOUGH TO INCLUDE THE DUTY PERFORMED BY A REGULAR OFFICER OR ENLISTED MAN OR BY AN ENLISTED MEMBER OF A RESERVE COMPONENT WOULD NOT SEEM TO FURNISH SUFFICIENT BASIS FOR A CONTRARY CONCLUSION. HENCE, IT IS OUR VIEW THAT IF A NON-REGULAR OFFICER OTHERWISE QUALIFIES FOR THE $100 ADDITIONAL UNIFORM ALLOWANCE, IT IS A MATTER OF NO CONSEQUENCE THAT LESS THAN 2 YEARS HAS ELAPSED SINCE HIS RELEASE FROM ACTIVE DUTY AS A REGULAR OFFICER OR ENLISTED MAN OR AS AN ENLISTED MEMBER OF A RESERVE COMPONENT.