A-41619, B-134200, JUNE 8, 1959, 38 COMP. GEN. 824

A-41619, B-134200, JUNE 8, 1959, 38 COMP. GEN. 824

MILITARY PERSONNEL - SERVICE CREDITS - METHOD OF COMPUTATION - THIRTY/DAY/MONTH FORMULA V. DAY-FOR-DAY BASIS IN THE COMPUTATION OF LENGTH OF SERVICE FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE REQUIRED TO MAKE GOOD TIME LOST TO COMPLETE THEIR ENLISTMENT CONTRACTS, A PROPOSED RULE WHICH WOULD PERMIT THE COMPUTATION OF TIME LOST AND NOT MADE GOOD ON A DAY-FOR-DAY BASIS WOULD BE IN CONFLICT WITH THE ACT OF JUNE 30, 1906, 5 U.S.C. 84, WHICH REQUIRES COMPUTATION OF SERVICE ON A 30-DAY-MONTH BASIS.

TO THE SECRETARY OF DEFENSE, JUNE 8, 1959:

REFERENCE IS MADE TO LETTER OF FEBRUARY 24, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING RECONSIDERATION OF CERTAIN OF OUR DECISIONS RELATING TO COMPUTATION OF SERVICE FOR PAY PURPOSES, ELIGIBILITY FOR RETIREMENT, RETIRED PAY AND TRANSFER TO A RETAINER PAY STATUS IN CASES WHERE TIME LOST MAY, OR MAY NOT, HAVE BEEN MADE GOOD. ALSO DECISION IS REQUESTED AS TO WHETHER THE SERVICES MAY ADOPT CERTAIN PROPOSED UNIFORM RULES AS SET FORTH IN COMMITTEE ACTION NO. 233 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE PARTICULAR DECISIONS OF WHICH RECONSIDERATION IS REQUESTED ARE OUR DECISIONS OF MAY 7, 1932, A-41619, AND JANUARY 3, 1958, 37 COMP. GEN. 455. THERE ALSO IS INVOLVED OUR DECISION OF AUGUST 9, 1934, 14 COMP. GEN. 111.

IN THE DECISION OF MAY 7, 1932, A-41619, WE STATED THAT THE RULE FOR COMPUTING LENGTH OF SERVICE OF ENLISTED MEN---

* * * IS THAT PRESCRIBED BY SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763 (5 U.S.C. 84), FOR COMPUTING PAY GENERALLY, UNDER WHICH EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF 30 DAYS, THUS EXCLUDING THE 31ST DAY OF ANY CALENDAR MONTH FROM THE COMPUTATION, EXCEPT IN THE CASE OF UNAUTHORIZED ABSENCE ON THAT DAY ALONE, AND TREATING FEBRUARY AS IF IT ACTUALLY HAD 30 DAYS--- THAT IS, IN ANY CASE WHERE ABSENCE BEGINS ON THE 31ST DAY OF A MONTH, THAT DAY IS INCLUDED IN THE PERIOD OF ABSENCE, AND IN ANY CASE WHERE THE MAN IS ABSENT ON THE LAST DAY OF FEBRUARY, THE CONSECUTIVE DAYS ATTACHING TO THAT MONTH ARE INCLUDED IN THE ABSENT PERIOD.

IN THE DECISION OF AUGUST 9, 1934, 14 COMP. GEN. 111, RELATING TO COMPUTATION OF LONGEVITY PAY OF AN ENLISTED MAN, WE HELD THAT WHEN TIME LOST IN AN ENLISTMENT IS MADE GOOD DAY-FOR-DAY, THE MAN IS ENTITLED TO INCREASED PAY FOR LENGTH OF SERVICE FOR THE ENLISTMENT SO COMPLETED AS IF NO TIME HAD BEEN LOST.

THE QUESTION OF THE PROPER METHOD OF COMPUTATION OF LENGTH OF SERVICE FOR BASIC PAY PURPOSES WHEN TIME LOST HAS BEEN MADE UP TO COMPLETE ENLISTMENT CONTRACTS AND EITHER THE TIME LOST OR THE TIME MADE GOOD INCLUDES THE 31ST OF A MONTH OR THE 28TH OR 29TH OF FEBRUARY WAS CONSIDERED IN THE DECISION OF JANUARY 3, 1958, 37 COMP. GEN. 455. IN THAT DECISION WE CONCLUDED THAT, IN COMPUTING LENGTH OF SERVICE FOR BASIC PAY PURPOSES IN CASES WHERE THE TIME LOST IS MADE GOOD DAY-FOR DAY, THE TIME LOST AND TIME MADE GOOD UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1956, 70 STAT. 631, 10 U.S.C. 629A, SHOULD BE COMPUTED ON A DAY-FOR-DAY BASIS IN THOSE CASES WHERE IT WOULD NOT BE TO THE MEMBER'S ADVANTAGE TO COMPUTE THE TERM OF HIS SERVICE ON THE 30-DAY-MONTH BASIS.

IN THE COMMITTEE ACTION IT IS STATED THAT THE LATTER DECISION PRESCRIBES TWO RULES FOR COMPUTING SERVICE, AND THAT UNLESS PERIODS OF TIME LOST AND PERIODS OF TIME MADE GOOD ON A DAY-FOR-DAY BASIS ARE EXCLUDED FROM THE BASIC COMPUTATION OF SERVICE ON A 30-DAY-MONTH BASIS, A UNIFORM RESULT CANNOT BE ATTAINED BECAUSE OF THE MIXTURE OF UNLIKE ELEMENTS CAUSED BY CALENDAR FLUCTUATIONS. IT FURTHER IS STATED THAT COMMANDING OFFICERS PRESENTLY MAY BE REQUIRED TO KEEP TWO SETS OF BOOKS ON TIME LOST--- ONE ON MAKING UP LOST TIME AND ONE ON COMPUTATION OF SERVICE FOR PAY AND RETIREMENT PURPOSES, AND THAT THE PROPOSED UNIFORM RULES WILL SIMPLIFY THE KEEPING OF RECORDS. THE PROPOSED RULES ARE AS FOLLOWS:

A. THE ACTUAL NUMBER OF DAYS LOST UNDER THE ACT OF JULY 24, 1956, 10 U.S.C. 972, OR PRIOR LAWS, WILL BE DEDUCTED FROM THE OVERALL PERIOD OF SERVICE COMPUTED UNDER THE ACT OF JUNE 30, 1906, 5 U.S.C. 84, TO DETERMINE THE CREDITABLE SERVICE OF THE MEMBER AS OF ANY PARTICULAR DATE, EXCEPT THAT;

B. IF THE MEMBER HAS BEEN RETAINED BEYOND THE NORMAL DATE OF EXPIRATION OF ENLISTMENT OR OBLIGATED SERVICE TO MAKE UP TIME LOST, THE DIFFERENCE BETWEEN THE PERIOD OF TIME LOST AND THE PERIOD OF TIME MADE GOOD WILL BE DEDUCTED FROM THE NORMAL PERIOD THAT SERVICE WOULD HAVE BEEN RENDERED HAD NO TIME BEEN LOST. THE RESULT WILL BE THE CREDITABLE SERVICE OF THE MEMBER FOR THE PERIOD OF ENLISTMENT OR PERIOD OF OBLIGATED SERVICE.

THE PROPOSED RULES WOULD, IN EFFECT, COMPUTE TIME LOST AND MADE GOOD ON A DAY-FOR-DAY BASIS, BUT LOST TIME NOT MADE GOOD DETERMINED ON A DAY FOR-DAY BASIS WOULD BE CONVERTED ON A 30-DAY-MONTH BASIS, WITH THE RESULT THAT AS TO TIME LOST ON THE LAST DAY IN FEBRUARY THE RULES WOULD BE IN CONFLICT WITH THE ACT OF JUNE 30, 1906, 5 U.S.C. 84, AS CONSISTENTLY APPLIED BY THIS OFFICE IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES.

OUR DECISION OF JANUARY 3, 1958, WAS CONFINED SOLELY TO CASES WHERE THE TIME LOST HAD BEEN MADE GOOD DAY-FOR-DAY AND THE RULE THERE STATED FOR COMPUTING TIME LOST AND TIME MADE GOOD FOR LENGTH OF SERVICE PURPOSES WAS INTENDED TO BE APPLIED ONLY IN THAT SITUATION--- NAMELY, WHERE THE LOST TIME HAD BEEN MADE GOOD. THERE IS NOTHING IN THAT DECISION TO SUGGEST THAT THE DAY-FOR-DAY METHOD OF COMPUTING LOST TIME IS PERMISSIBLE IN SITUATIONS WHERE THE LOST TIME HAS NOT BEEN MADE GOOD. THE SOLE BASIS FOR THE DAY-FOR-DAY RULE IS THE STATUTORY PROVISION THAT WHERE TIME LOST IS IN FACT MADE GOOD THE ENLISTMENT SHALL BE REGARDED AS COMPLETED. IF THE LOST TIME IS NOT MADE UP, THE USUAL (30-DAY-MONTH) RULE IS FOR APPLICATION.

WE HAVE CAREFULLY CONSIDERED THE REPRESENTATIONS MADE IN THE COMMITTEE ACTION BUT WE CAN FIND NO LEGAL BASIS FOR SANCTIONING THE RULES THERE PROPOSED, WHICH WOULD BE IN CONFLICT WITH THE PROVISIONS OF THE 1906 ACT AS CONSISTENTLY APPLIED BY THIS OFFICE IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES. IN OUR DECISION OF JANUARY 3, 1958, WE GAVE FULL EFFECT TO THE PROVISIONS OF THE 1956 ACT, BUT WE WERE NOT UNMINDFUL OF THE FACT THAT MEMBERS ARE ENTITLED TO THE BENEFITS OF THE 1906 ACT WHERE APPLICABLE. BELIEVE THAT THAT DECISION IS PROPER UNDER THE PROVISIONS OF THE ACTS INVOLVED AND, IF ADMINISTRATIVE DIFFICULTIES ARE NOW BEING EXPERIENCED IN APPLYING THE LAW, IT APPEARS THAT CORRECTIVE LEGISLATION MAY BE INDICATED.