B-169738, JUN 29, 1971, 50 COMP GEN 868

B-169738, JUN 29, 1971, 50 COMP GEN 868

PAY - DRILL - TRAINING ASSEMBLIES - INCREASES - RETROACTIVE ADJUSTMENT ENTITLEMENT A MEMBER OF THE ARMY NATIONAL GUARD WHO WAS ON ACTIVE DUTY FOR TRAINING ON APRIL 15, 1970, WHETHER OR NOT FULFILLING HIS REP 63, A TERM MEANING AN OBLIGATION INCURRED UNDER THE RESERVE ENLISTMENT PROGRAM OF 1963 TO SERVE ON ACTIVE DUTY TRAINING FOR A PERIOD OF AT LEAST 4 MONTHS AND TO SERVE IN A RESERVE COMPONENT UNTIL THE SIXTH ANNIVERSARY OF THE DATE OF ENLISTMENT, IS NOT ENTITLED TO A RETROACTIVE INCREASE IN BASIC PAY FOR INACTIVE DUTY TRAINING DRILLS ATTENDED SUBSEQUENT TO DECEMBER 31, 1969, AND BEFORE APRIL 15, 1970, SINCE BOTH UNDER THE PERTINENT PROVISIONS OF THE CAREER COMPENSATION ACT AND NATIONAL GUARD REGULATIONS A MEMBER OF THE NATIONAL GUARD ON FULL-TIME TRAINING DUTY CANNOT BE IN A "DRILL PAY STATUS" WHILE ON ACTIVE DUTY, AND THE ACTS OF DECEMBER 16, 1967, AND APRIL 15, 1970 ONLY AUTHORIZE A RETROACTIVE ADJUSTMENT IN BASIC PAY UNDER THE 1970 RATES IF THE MEMBER WAS IN A "DRILL PAY STATUS" ON APRIL 15, 1970.

TO MAJOR C. A. ANCHARSKI, DEPARTMENT OF THE ARMY, JUNE 29, 1971:

WE REFER FURTHER TO YOUR LETTER OF DECEMBER 24, 1970 (FILE REFERENCE AHBDB-F), FORWARDED HERE BY LETTER DATED MARCH 25, 1971, FROM THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING 15 MEMBERS OF THE ARMY NATIONAL GUARD, WHO WERE ON ACTIVE DUTY FOR TRAINING ON APRIL 15, 1970, A RETROACTIVE INCREASE IN BASIC PAY FOR INACTIVE DUTY TRAINING DRILLS ATTENDED SUBSEQUENT TO DECEMBER 31, 1969, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-A-1117 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN VIEW OF THE DEPARTMENT OF THE ARMY MESSAGES 161819Z AND 291649Z, APRIL 1970, CITED BY YOU, YOU SAY THAT DOUBT EXISTS AS TO THE VALIDITY OF MAKING PAYMENT ON THE SUPPLEMENTAL PAYROLL SINCE THE MESSAGES CONTAIN CERTAIN RESTRICTIONS TO THE EFFECT THAT "A MEMBER WHO WAS ON ACTIVE DUTY FOR TRAINING ON APRIL 15, 1970, BUT WHO WAS NOT IN A DRILL PAY STATUS ON THAT DATE, IS NOT ENTITLED TO ANY RETROACTIVE ADJUSTMENT FOR DRILLS PERFORMED AFTER DECEMBER 31, 1969." YOU EXPRESS FURTHER DOUBT IN THE MATTER IN THE LIGHT OF OUR DECISION OF MAY 22, 1970, 49 COMP. GEN. 796.

YOU SPECIFICALLY ASK:

A. IS A MEMBER OF THE ARMY NATIONAL GUARD CONSIDERED TO BE IN BOTH AN "ACTIVE DUTY FOR TRAINING STATUS" (BY REASON OF FULFILLING HIS REP 63 OBLIGATION) AND A "DRILL PAY STATUS" ON APRIL 15, 1970, THEREBY, ENABLING HIM TO QUALIFY FOR PAYMENT OF THE RETROACTIVE PORTION OF THE UNIFORMED SERVICES PAY INCREASE OF 1970, FOR INACTIVE DUTY TRAINING DRILLS ATTENDED SUBSEQUENT TO DECEMBER 31, 1969?

B. IS A MEMBER OF THE ARMY NATIONAL GUARD CONSIDERED TO BE IN BOTH AN "ACTIVE DUTY FOR TRAINING STATUS" (OTHER THAN FULFILLING HIS REP 63 OBLIGATION) AND A "DRILL PAY STATUS" ON APRIL 15, 1970, THEREBY ENABLING HIM TO QUALIFY FOR PAYMENT OF THE RETROACTIVE PORTION OF THE UNIFORMED SERVICES PAY INCREASE OF 1970, FOR INACTIVE DUTY TRAINING DRILLS ATTENDED SUBSEQUENT TO DECEMBER 31, 1969?

IN OUR DECISION OF MAY 22, 1970, 49 COMP. GEN. 796, WHICH YOU CITE, WE WERE ASKED THE FOLLOWING QUESTIONS:

1. IS A MEMBER WHO WAS IN A "DRILL PAY STATUS" ON APRIL 15, 1970, AND WHO PERFORMED ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PRIOR TO THAT DATE BUT SUBSEQUENT TO DECEMBER 31, 1969, ENTITLED TO A RETROACTIVE INCREASE IN BASIC PAY FOR SUCH ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING?

2. IS A MEMBER WHO WAS ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING ON APRIL 15, 1970 BUT WHO WAS NOT IN A DRILL PAY STATUS ON THAT DATE ENTITLED TO A RETROACTIVE INCREASE FOR DRILLS PERFORMED AFTER DECEMBER 31, 1969 BUT PRIOR TO APRIL 15, 1970?

AFTER CONSIDERING THE APPLICABLE PROVISIONS OF LAW, ITS LEGISLATIVE HISTORY AND IMPLEMENTING REGULATIONS, WE HELD IN THE DECISION OF MAY 22, 1970, THAT:

*** IN THE ABSENCE OF SOME OTHER SPECIFIC STATUTORY AUTHORITY, THERE IS NO BASIS TO AUTHORIZE A RETROACTIVE INCREASE IN BASIC PAY, OTHER THAN THAT RECEIVED UNDER SECTION 206 OF TITLE 37, FOR A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT WHO WAS IN A "DRILL PAY STATUS" ON APRIL 15, 1970, BUT WHO PERFORMED ACTIVE DUTY PRIOR TO THAT DATE (JANUARY 1 TO APRIL 14, 1970) IN A STATUS DIFFERENT FROM THAT PRESCRIBED IN SECTION 206 OF TITLE 37. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE. FOR THE SAME REASONS, AND SINCE THE MEMBER IN QUESTION 2 WAS NOT IN A "DRILL PAY STATUS" ON APRIL 15, 1970, THAT QUESTION IS ALSO ANSWERED IN THE NEGATIVE.

IN ASKING WHETHER A MEMBER MAY BE CONSIDERED IN AN "ACTIVE DUTY FOR TRAINING STATUS" AND IN A "DRILL PAY STATUS" ON THE SAME DAY, NAMELY, APRIL 15, 1970, YOUR QUESTIONS SEEM TO BE PREMISED ON WHETHER A MEMBER'S "ACTIVE DUTY FOR TRAINING STATUS" ON APRIL 15, 1970, IS AFFECTED IN ANY WAY "(BY REASON OF FULFILLING (OR NOT FULFILLING) HIS REP 63 OBLIGATION)."

THE TERM "REP 63 OBLIGATION" IS EXPLAINED IN PARAGRAPH 1-3D(1)(D), ARMY REGULATION 135-90, AS MEANING AN OBLIGATION INCURRED UNDER THE RESERVE ENLISTMENT PROGRAM OF 1963 (REP 63) (10 U.S.C. 511(D)) TO SERVE ON ACTIVE DUTY FOR TRAINING FOR A PERIOD OF AT LEAST 4 MONTHS AND TO SERVE IN A RESERVE COMPONENT UNTIL THE SIXTH ANNIVERSARY OF THE DATE OF ENLISTMENT. "ACTIVE DUTY FOR TRAINING" IS DEFINED IN ARMY REGULATION 310-25, AS FOLLOWS:

FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, WITH OR WITHOUT PAY FOR TRAINING PURPOSES. THIS INCLUDES THE INITIAL PERIOD OF TRAINING REQUIRED BY 10 U.S.C. 511(D) FOR ENLISTED MEMBERS OF THE ARMY NATIONAL GUARD OF THE UNITED STATES AND ARMY RESERVE AND, WITH RESPECT TO THE ARMY RESERVE, ANNUAL TRAINING, ATTENDANCE AT ARMY SERVICE SCHOOLS, PARTICIPATION IN SMALL ARMS COMPETITION, SHORT TOURS OF ACTIVE DUTY FOR SPECIAL PROJECTS, ATTENDANCE AT MILITARY CONFERENCES AND PARTICIPATION IN A COMMAND POST EXERCISE, FIELD TRAINING EXERCISE, OR MANEUVER, UNDER 10 U.S.C. 672(B), 672(D) OR 683.

IT APPEARS FROM THE ENCLOSURES FORWARDED WITH YOUR REQUEST FOR DECISION THAT ON APRIL 15, 1970, THE MEMBERS OF THE NATIONAL GUARD HERE INVOLVED WERE PARTICIPATING IN THE 4-MONTH MINIMUM ACTIVE DUTY FOR TRAINING ESTABLISHED BY THE ACT OF SEPTEMBER 3, 1963, PUBLIC LAW 88 110, 77 STAT. 134, 10 U.S.C. 511, WHICH YOU REFER TO AS "ACTIVE DUTY FOR TRAINING STATUS *** (REP 63 TRAINING)."

THAT 1963 LAW ESTABLISHED A 6-YEAR RESERVE ENLISTMENT PROGRAM ("REP 63") OF TRAINING, UNDER WHICH THE MEMBER ENLISTS IN THE READY RESERVE OF ANY RESERVE COMPONENT OF THE ARMED FORCES OR NATIONAL GUARD TO SERVE AS A MEMBER OF AN ORGANIZED UNIT THEREOF IN ACCORDANCE WITH 10 U.S.C. 270 OR 32 U.S.C. 502 AND IN ADDITION PERFORMS "ACTIVE DUTY FOR TRAINING WITH AN ARMED FORCE FOR NOT LESS THAN FOUR CONSECUTIVE MONTHS." SECTION 502 OF TITLE 32, U.S. CODE, ESTABLISHES THE PROGRAM OF INACTIVE DUTY TRAINING DRILLS AND TRAINING AT ENCAMPMENTS, MANEUVERS, OUTDOOR TARGET PRACTICE, OR OTHER EXERCISES, AT LEAST 15 DAYS EACH YEAR, FOR MEMBERS OF THE NATIONAL GUARD.

THE TERM "ACTIVE DUTY" IS DEFINED IN 10 U.S.C. 101, 32 U.S.C. 101, AND 37 U.S.C. 101, AS INCLUDING "FULL-TIME TRAINING DUTY." IT IS CLEAR THAT ACTIVE DUTY FOR TRAINING PURSUANT TO THE 1963 LAW AS WELL AS OTHER ACTIVE DUTY FOR TRAINING IS FULL-TIME TRAINING DUTY AND IS "ACTIVE DUTY" WITHIN THE MEANING OF TITLES 10, 32, AND 37, UNITED STATES CODE.

SECTION 501(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, 37 U.S.C. 301(A) (1958 ED.), THE PERTINENT PART OF WHICH IS NOW CODIFIED IN 37 U.S.C. 206, CONTAINED THE PROVISIONS OF LAW GOVERNING PAY ("DRILL PAY") FOR INACTIVE DUTY TRAINING OF MEMBERS OF THE NATIONAL GUARD, AND SECTION 201(E) OF THE 1949 LAW (NOW CODIFIED IN 37 U.S.C. 204(E)) CONTAINED THE PROVISIONS OF LAW AUTHORIZING THE PAYMENT OF "BASIC PAY" (ACTIVE DUTY PAY) AUTHORIZED IN SECTION 201(A) THEREOF TO MEMBERS OF THE NATIONAL GUARD WHEN ON ACTIVE DUTY, FULL-TIME TRAINING DUTY, AND WHEN SUCH MEMBERS ARE ENTITLED BY LAW TO RECEIVE THE SAME PAY AS THAT AUTHORIZED FOR MEMBERS OF THE REGULAR COMPONENTS OF THE ARMED SERVICES. SUBSECTION 501(E) OF THE 1949 PAY LAW, 37 U.S.C. 301(E), PROVIDED THAT THE PROVISIONS OF SUBSECTION 501(A) THEREOF "SHALL NOT APPLY WHEN SUCH MEMBERS ARE ENTITLED TO RECEIVE BASIC PAY AS PROVIDED FOR IN TITLE II OF THIS ACT," WHICH INCLUDED SECTION 201 OF THAT LAW GOVERNING "BASIC PAY."

THE PERTINENT PROVISIONS OF THE CAREER COMPENSATION ACT AS NOW CODIFIED IN TITLE 37, U.S. CODE, CONTAIN SIMILAR PROVISIONS. SECTION 204 THEREOF AUTHORIZES THE PAYMENT OF BASIC PAY PROVIDED IN 37 U.S.C. 203 TO MEMBERS OF THE NATIONAL GUARD WHEN PARTICIPATING IN FULL-TIME TRAINING OR TRAINING DUTY WITH PAY AND SUBSECTION 206(A) PROVIDES FOR THE PAYMENT OF "DRILL PAY" TO MEMBERS OF THE NATIONAL GUARD FOR INACTIVE DUTY TRAINING WHO ARE "NOT ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE." IN ADDITION SECTION 309 AUTHORIZES ADDITIONAL PAY FOR PERFORMANCE OF ADMINISTRATIVE DUTY TO CERTAIN OFFICERS OF THE NATIONAL GUARD, BUT PROVIDES THAT SUCH SECTION "DOES NOT APPLY TO AN OFFICER WHO IS ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE."

UNDER THOSE PROVISIONS THE MEMBERS CONCERNED CAN NOT BE IN AN ACTIVE DUTY STATUS AND AN INACTIVE DUTY TRAINING STATUS AT THE SAME TIME. NECESSARILY FOLLOWS, THEREFORE, THAT A MEMBER OF THE NATIONAL GUARD ON FULL-TIME TRAINING DUTY ("ACTIVE DUTY FOR TRAINING WITH AN ARMED FORCE FOR NOT LESS THAN FOUR CONSECUTIVE MONTHS") UNDER THE PROVISIONS OF PUBLIC LAW 88-110, 10 U.S.C. 511, OR OTHERWISE IN AN ACTIVE DUTY FOR TRAINING STATUS, CAN NOT BE IN A "DRILL PAY STATUS" UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT, AS CODIFIED IN TITLE 37, U.S. CODE, WHILE ON ACTIVE DUTY FOR TRAINING.

NATIONAL GUARD REGULATION 350-1 DEFINES "INACTIVE DUTY TRAINING" AND "ACTIVE DUTY FOR TRAINING" AS MEANING (QUOTING IN PART PARAGRAPHS 3A AND C):

A. INACTIVE DUTY TRAINING. TRAINING OR DUTY, OTHER THAN FULL TIME, PERFORMED BY UNITS OF THE ARMY NATIONAL GUARD AND MEMBERS THEREOF, IN STATE STATUS, WITH OR WITHOUT PAY, PURSUANT TO SECTION 502 OF TITLE 32, U.S.C. AND SECTION 1002 OF TITLE 37, UNITED STATES CODE. ***

C. ACTIVE DUTY FOR TRAINING. TRAINING UNDER SECTION 672(D) OF TITLE 10, U.S.C. IN FEDERAL STATUS, I.E., RESERVE ENLISTMENT PROGRAM (REP 1963) AND FERRYING OF AIRCRAFT.

UNDER THE PROVISIONS OF PARAGRAPH 10, NATIONAL GUARD REGULATION 37 104-2, CURRENTLY IN EFFECT, A FEDERALLY RECOGNIZED OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER OF THE NATIONAL GUARD IS CONSIDERED TO BE IN AN INACTIVE DUTY TRAINING STATUS EXCEPT, AS HERE MATERIAL, WHEN HE IS "(1) ON ACTIVE DUTY IN A FEDERAL STATUS" AND "(2) ON ACTIVE DUTY FOR TRAINING OR ON FULL- TIME TRAINING OR DUTY." PRIOR REGULATIONS ON THIS SUBJECT PROVIDED IN PARAGRAPH 10, NATIONAL GUARD REGULATION NO. 58, DATED DECEMBER 5, 1956, THAT A FEDERALLY RECOGNIZED OFFICER, WARRANT OFFICER OR ENLISTED MAN IS IN AN "ARMORY DRILL PAY STATUS" EXCEPT "(1) WHEN HE IS ENTITLED TO FEDERAL PAY FOR ACTIVE DUTY FOR TRAINING." SEE ALSO PARAGRAPH 26, NGR 58 DATED MARCH 30, 1961, AND PARAGRAPH 30, NGR 58, DATED FEBRUARY 15, 1964.

IT WILL BE SEEN THAT THE NATIONAL GUARD REGULATIONS DIFFERENTIATE BETWEEN A MEMBER ON "ACTIVE DUTY FOR TRAINING" AND A MEMBER IN A "DRILL PAY STATUS" - INACTIVE DUTY TRAINING STATUS. IN OTHER WORDS, THE REGULATIONS RECOGNIZED THAT A MEMBER CANNOT HOLD THOSE TWO STATUSES CONCURRENTLY ON THE SAME DAY FOR PAY PURPOSES.

SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654, 37 U.S.C. 203 NOTE, IN CONJUNCTION WITH SECTION 5 OF THE ACT OF APRIL 15, 1970, 84 STAT. 197, 5 U.S.C. 5332 NOTE, AND IMPLEMENTING REGULATIONS, EXPRESSLY AUTHORIZED A RETROACTIVE ADJUSTMENT IN BASIC PAY UNDER THE 1970 RATES FOR A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICE WHO WAS IN A "DRILL PAY STATUS" ON "APRIL 15, 1970." THE MEMBER IS EITHER IN A "DRILL PAY STATUS" OR IN AN "ACTIVE DUTY FOR TRAINING STATUS" ON APRIL 15, 1970. HE MAY NOT, AS YOUR QUESTIONS SUGGEST, BE CONSIDERED AS BEING IN BOTH STATUSES ON THE SAME DAY FOR RETROACTIVE PAY PURPOSES.

IN THE LIGHT OF THE ABOVE, AND SINCE, AS YOU STATE, THE MEMBERS IN QUESTION WERE IN AN "ACTIVE DUTY FOR TRAINING STATUS" ON APRIL 15, 1970 - NOT IN A "DRILL PAY STATUS" - THEIR SITUATION FALLS WITHIN QUESTION 2 AND THE ANSWER TO THAT QUESTION IN OUR DECISION OF MAY 22, 1970.

ACCORDINGLY, AS TO THE PERSONNEL HERE INVOLVED, THERE IS NO BASIS FOR AUTHORIZING A RETROACTIVE INCREASE IN BASIC PAY FOR INACTIVE DUTY TRAINING DRILLS PERFORMED SUBSEQUENT TO DECEMBER 31, 1969, AND BEFORE APRIL 15, 1970. THE VOUCHERS AND SUPPORTING PAPERS WILL BE RETAINED HERE.