B-119981, FEBRUARY 3, 1955, 34 COMP. GEN. 369

B-119981, FEBRUARY 3, 1955, 34 COMP. GEN. 369

PAY - ACTIVE DUTY - MEMBERS OF THE NATIONAL GUARD A MEMBER OF THE NATIONAL GUARD WHO UNDER COMPETENT ORDERS REPORTED FOR ACTIVE MILITARY SERVICE OF THE UNITED STATES AT AN ASSIGNED STATION WHERE HE WAS ON DETACHED SERVICE UNTIL DISCHARGED BECAUSE OF PHYSICAL DISQUALIFICATION FOR FEDERAL SERVICE IS ENTITLED UNDER SECTION 201 (E), CAREER COMPENSATION ACT OF 1949, TO RECEIVE ACTIVE DUTY PAY FOR THE PERIOD BETWEEN DATE OF REPORTING FOR ACTIVE DUTY AND DATE OF DISCHARGE FROM SERVICE. 29 COMP. GEN. 402, MODIFIED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO HARRY W. LEHMAN, FEBRUARY 3, 1955:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1954, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 13, 1953, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AS SERGEANT, FIRST CLASS, NATIONAL GUARD OF THE UNITED STATES ( SOUTH DAKOTA NATIONAL GUARD) FOR THE PERIOD FROM AUGUST 22, 1950, TO SEPTEMBER 1, 1950, INCLUSIVE. YOUR CLAIM IS BASED ON SERVICE AT EDGEMONT, SOUTH DAKOTA, PURSUANT TO THE PROVISIONS OF PARAGRAPH 18, SPECIAL ORDERS NO. 167, ISSUED AUGUST 22, 1950, BY HEADQUARTERS, FIFTH ARMY, CHICAGO, ILLINOIS, WHICH, BY DIRECTION OF THE PRESIDENT UNDER AUTHORITY OF THE SELECTIVE SERVICE EXTENSION ACT OF 1950 ( PUBLIC LAW 599, 81ST CONGRESS), 64 STAT. 318, ORDERED CERTAIN OFFICERS AND ENLISTED MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES (INCLUDING YOU) WITH THEIR CONSENT INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO SERVE FOR A PERIOD OF 21 MONTHS OR SUCH OTHER PERIOD AS MIGHT BE AUTHORIZED BY LAW, UNLESS SOONER RELIEVED. YOU WERE ORDERED TO ACTIVE DUTY EFFECTIVE AUGUST 22, 1950, AND CONCURRENTLY WERE RELIEVED FROM DUTY WITH THE SOUTH DAKOTA NATIONAL GUARD.

PARAGRAPH 2, SPECIAL ORDERS NO. 52, DATED AUGUST 22, 1950, ISSUED BY HEADQUARTERS, 196TH REGIMENTAL COMBAT TEAM, SOUTH DAKOTA NATIONAL GUARD, PIERRE, SOUTH DAKOTA, ADVANCED YOU FROM SERGEANT TO THE GRADE OF SERGEANT, FIRST CLASS (E-6). COPIES OF THE MORNING REPORTS ( WD ARGO FORM 1) IN THE FILE DISCLOSE THAT YOU WERE ON DETACHED SERVICE AT YOUR ASSIGNED STATION, EDGEMONT, SOUTH DAKOTA, FROM AUGUST 22, 1950, TO SEPTEMBER 1, 1950, INCLUSIVE, PURSUANT TO THE ORDERS OF AUGUST 22, 1950. YOUR ASSIGNMENT ON DETACHED SERVICE WAS TERMINATED EFFECTIVE SEPTEMBER 1, 1950, AND YOU WERE DISCHARGED THE SAME DAY PURSUANT TO PARAGRAPH 8, SPECIAL ORDERS NO. 1, HEADQUARTERS, 196 REGIMENTAL COMBAT TEAM, SEPTEMBER 1, 1950, WHICH STATED THAT YOU WERE "DISCHARGED FROM THE MILITARY SERVICE OF THE UNITED STATES NOT BY REASON OF PHYSICAL DISABILITY BUT HAVING BEEN FOUND PHYSICALLY DISQUALIFIED FOR ENTRY INTO ACTIVE FEDERAL SERVICE.'

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 232 (E), PROVIDES THAT:

ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST, WHEN ON ACTIVE DUTY, OR WHEN PARTICIPATING IN * * * OTHER FULL-TIME DUTY (PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED * * * OR IN OTHER PROVISIONS OF LAW * * * ( * * * SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED OR IN WHICH DISTRIBUTED * * * IN ACCORDANCE WITH CUMULATIVE YEARS OF SERVICE.

IT IS CLEAR FROM THE FACTS RELATED THAT YOU, A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES, WERE BY COMPETENT ORDERS ISSUED BY DIRECTION OF THE PRESIDENT ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES EFFECTIVE AUGUST 22, 1950, AND REPORTED FOR ACTIVE DUTY ON THAT DAY. HENCE, AS A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY, YOUR STATUS DURING THE PERIOD AUGUST 22, 1950, TO SEPTEMBER 1, 1950, INCLUSIVE, COMES WITHIN THE SCOPE OF THE QUOTED PROVISIONS OF SECTION 201 (E) OF THE 1949 ACT. IT FOLLOWS THAT YOU ARE ENTITLED TO RECEIVE THE BASE PAY OF A SERGEANT, FIRST CLASS, IN ACCORDANCE WITH THE CUMULATIVE YEARS OF SERVICE TO YOUR CREDIT FOR THAT PERIOD. SEE 4 COMP. GEN. 872. TO THE EXTENT THAT THE DECISION OF APRIL 12, 1950, 29 COMP. GEN. 402, MAY BE INCONSISTENT WITH THIS DECISION, IT NO LONGER WILL BE FOLLOWED.

A SETTLEMENT WILL ISSUE ACCORDINGLY FOR THE AMOUNT OF ACTIVE DUTY PAY DUE YOU FOR THE PERIOD AUGUST 22, 1950, TO SEPTEMBER 1, 1950, INCLUSIVE.