B-132744, SEPTEMBER 17, 1957, 37 COMP. GEN. 193

B-132744, SEPTEMBER 17, 1957, 37 COMP. GEN. 193

MILITARY PERSONNEL - NATIONAL GUARD - DUTY IN LIEU OF DRILLS - TRAINING SCHOOL ATTENDANCE NATIONAL GUARD OFFICER WHO PERFORMS EQUIVALENT TRAINING IN LIEU OF DRILLS HELD BY HIS UNIT WHILE HE IS ON ACTIVE DUTY FOR TRAINING AT A SERVICE SCHOOL MAY HAVE SUCH DUTY CONSIDERED FOR PAY PURPOSES UNDER CURRENT REGULATIONS WHICH DO NOT PRECLUDE PAYMENT FOR EQUIVALENT TRAINING FOR ACTIVE DUTY TRAINING, PROVIDED THE OFFICER IS IN AN ARMORY DRILL STATUS AND WRITTEN ORDERS AUTHORIZE SUCH TRAINING.

TO V. R. PLOGER, DEPARTMENT OF THE ARMY, SEPTEMBER 17, 1957:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 28, 1957, ALVFI 240, FORWARDED HERE BY SECOND ENDORSEMENT OF THE CHIEF OF FINANCE DATED JULY 26, 1957, WHEREIN YOU REQUEST A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED SUPPLEMENTAL ARMORY DRILL PAYROLL OF HEADQUARTERS, 47TH INFANTRY DIVISION, MINNESOTA NATIONAL GUARD.

THE PAYROLL COVERS THE CLAIM OF MAJOR CLAYTON P. FELIX, 101 585 437, FOR THREE PERIODS OF EQUIVALENT TRAINING PERFORMED ON APRIL 2, 3, AND 29, 1957, IN LIEU OF DRILLS HELD BY HIS UNIT ON APRIL 8, 15, AND 22, 1957, WHILE HE WAS ATTENDING A SERVICE SCHOOL AS DIRECTED BY PARAGRAPH 7, SPECIAL ORDERS NO. 52, DATED MARCH 15, 1957. YOUR DOUBT IN THE MATTER APPEARS TO ARISE BECAUSE OF OUR DECISION DATED JUNE 17, 1955, 34 COMP. GEN. 679, AND THE CURRENT PROVISIONS OF PARAGRAPH 11C, NATIONAL GUARD REGULATIONS NO. 58.

PAY FOR ATTENDANCE AT ASSEMBLIES, INCLUDING EQUIVALENT DUTIES, IS AUTHORIZED, TO THE EXTENT PROVIDED FOR BY APPROPRIATIONS, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE. SEE SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, AS AMENDED, 37 U.S.C. 301.

TRAINING REGULATIONS IN EFFECT AT THE TIME THE DUTY WAS PERFORMED ARE INCLUDED IN NATIONAL GUARD REGULATIONS NO. 45, DATED AUGUST 3, 1956, EFFECTIVE OCTOBER 1, 1956, AND PROVIDE, IN PART, AS FOLLOWS:

4. DEFINITIONS. THE FOLLOWING DEFINITIONS ARE APPLICABLE IN THIS REGULATION:

A. INACTIVE DUTY TRAINING. ANY OF THE TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES OR EQUIVALENT TRAINING, OR HAZARDOUS DUTY PERFORMED WITH OR WITHOUT PAY BY MEMBERS OF THE NATIONAL GUARD, WHILE IN AN ARMORY DRILL STATUS PURSUANT TO SECTION 92, NATIONAL DEFENSE ACT, OR SECTION 501, CAREER COMPENSATION ACT OF 1949. * * *

C. ARMORY DRILL ASSEMBLY. A DULY AUTHORIZED AND SCHEDULED DRILL ASSEMBLY CONDUCTED BY A NATIONAL GUARD UNIT AT AN ARMORY OR OTHER DESIGNATED TRAINING SITE, THE DURATION OF WHICH INCLUDES A MINIMUM OF TWO HOURS OF INSTRUCTION OR TRAINING.

G. EQUIVALENT TRAINING. A MINIMUM OF TWO HOURS OF TRAINING, INSTRUCTION, DUTY, OR APPROPRIATE DUTY, AUTHORIZED FOR INDIVIDUAL MEMBERS OF THE UNIT IN LIEU OF ATTENDING, OR IN ADDITION TO, A DULY ORDERED FORMATION WITH PARENT UNIT.

14. TRAINING AUTHORIZATION. A. PAY OR NON-PAY STATUS. COMMANDERS ARE REQUIRED TO ISSUE ORDERS GOVERNING TRAINING IN A PAY OR NON-PAY STATUS, IN ORDER TO PROTECT THE INTERESTS OF THE INDIVIDUAL AND THOSE OF THE GOVERNMENT.

(1) PAY STATUS. THE ISSUANCE OF THE UNIT TRAINING SCHEDULE IN ADVANCE MEETS THE REQUIREMENTS OF WRITTEN AUTHORIZATION OF COMPETENT AUTHORITY PROVIDED THE DATE, PLACE AND TIME ARE SHOWN THEREON AND SUCH SCHEDULES ARE ISSUED IN THE FORM OF AN ORDER CONTAINING A PHRASE TO THE EFFECT: ,ALL MEMBERS OF COMPANY A, 176TH INFANTRY, ARE HEREBY ORDERED TO ATTEND THE PERIODS OF TRAINING SHOWN ON THIS TRAINING SCHEDULE.' * * *

(2) NON-PAY STATUS. A WRITTEN AUTHORIZATION WILL BE PREPARED IN ADVANCE FOR ANY TRAINING WITHOUT PAY TO BE CONDUCTED BY THE UNIT OR INDIVIDUAL MEMBER THEREOF * * *.

17. EQUIVALENT TRAINING. A. AUTHORIZATION. AN OFFICER, WARRANT OFFICER, OR ENLISTED MAN MAY BE AUTHORIZED BY THE UNIT COMMANDER TO PERFORM EQUIVALENT TRAINING IN A PAY STATUS, AS A SUBSTITUTE FOR ATTENDANCE WITH THE UNIT TO WHICH ASSIGNED OR ATTACHED AT A SCHEDULED ASSEMBLY. THIS METHOD OF TRAINING IS PROVIDED TO PERMIT FLEXIBILITY TO THE UNIT COMMANDER IN THE CONDUCT OF TRAINING. IT IS ESSENTIAL THAT PROCEDURES BE ESTABLISHED TO INSURE THAT SUCH PERIODS ARE NOT AUTHORIZED TO THE EXTENT THAT THE PRACTICE INTERFERES WITH THE PROPER FUNCTIONING OF THE UNIT OR THE TRAINING OF THE UNIT AND THE MEMBERS THEREOF. IN ORDER TO QUALIFY FOR PAY PURPOSES, THE INDIVIDUAL MUST WEAR THE PRESCRIBED UNIFORM, AND THE TRAINING OR DUTY MUST BE EQUIVALENT TO OR APPROPRIATE TO THE POSITION OF THE INDIVIDUAL, SUCH AS:

(1) STAFF DUTY CONSISTING OF PLANNING, SUPERVISING, INSPECTING, TRAINING, ADMINISTRATION, OR SUPPLY OF UNITS.

(6) TRAINING PERFORMED AT THE FACILITY WHERE STATIONED AT A TIME OR DATE OTHER THAN THAT OF A SCHEDULED ASSEMBLY.

B. LIMITATIONS. THIS TRAINING IS NOT AUTHORIZED:

(1) WHEN PERFORMED AT THE PLACE OF RESIDENCE OF THE INDIVIDUAL.

(2) WHEN PERFORMED AT THE PLACE OF EMPLOYMENT OF THE INDIVIDUAL, IN CONNECTION WITH HIS EARNING A LIVELIHOOD, EVEN THOUGH THE MILITARY DUTIES AND CIVILIAN OCCUPATION ARE THE SAME.

(3) FOR WORK OR STUDY IN CONNECTION WITH EXTENSION COURSES OF THE ARMED FORCES.

C. PROCEDURE. EQUIVALENT TRAINING IN A PAY STATUS, EXCEPT THAT REQUIRED IN AIRCRAFT ( AR 95-31 AND AR 95-32), AND EXCEPT AS OTHERWISE AUTHORIZED BY THE CHIEF, NATIONAL GUARD BUREAU, WILL BE PERFORMED WITHIN THE SAME STATE. THE UNIT COMMANDER WILL ISSUE WRITTEN AUTHORIZATION IN ADVANCE CONTAINING THE INFORMATION SHOWN IN PARAGRAPH 14A (2), BUT WITH A STATEMENT TO THE EFFECT THAT THE TRAINING IS AUTHORIZED IN A PAY STATUS. IT WILL BE ADDRESSED TO THE INDIVIDUAL CONCERNED, OR IF APPROPRIATE TO THE COMMANDING OFFICER OF THE UNIT OR ACTIVITY WITH WHOM THE TRAINING WILL BE PERFORMED, WITH COPIES TO THE INDIVIDUAL.

D. REPORTING. * * * PERFORMANCE OF EQUIVALENT TRAINING TO AN INDIVIDUAL WILL BE COUNTED IN THE ATTENDANCE OF THE UNIT TO WHICH HE IS ASSIGNED OR ATTACHED, AND HE WILL BE ENTITLED TO RECEIVE FEDERAL PAY THEREFOR.

PAY REGULATIONS IN FORCE AT THE TIME INVOLVED IN THIS CASE ARE CONTAINED IN NATIONAL GUARD REGULATIONS NO. 58, DATED DECEMBER 5, 1956, AND, IN PART, INCLUDE THE FOLLOWING:

10. ARMORY DRILL PAY. A. GENERAL. ARMORY DRILL PAY CONSISTS ONLY OF BASIC PAY FOR INACTIVE DUTY TRAINING AND PERIODS OF EQUIVALENT TRAINING.

B. ARMORY DRILL PAY STATUS. 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.

(2) WHEN ABSENT ON AUTHORIZED LEAVE.

(3) WHEN ABSENT WITHOUT LEAVE FROM HOME STATION.

11. RATE OF PAY AND REQUIREMENTS. EACH OFFICER, WARRANT OFFICER AND ENLISTED MAN IN AN ARMORY DRILL PAY STATUS SHALL BE ENTITLED TO RECEIVE COMPENSATION FOR EACH TRAINING PERIOD AT THE RATE OF ONE THIRTIETH OF THE MONTHLY BASIC PAY AUTHORIZED FOR MEMBERS OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF SERVICE ( AR 35-1310). IN ORDER TO QUALIFY FOR SUCH PAY, THE FOLLOWING CONDITIONS MUST BE MET:

B. PERFORMING "EQUIVALENT TRAINING.' UPON COMPLETION OF SATISFACTORY PERFORMANCE OF SUCH DUTY AS AUTHORIZED AND REPORTED IN ACCORDANCE WITH NGR 45 AND CERTIFIED THERETO ON THE PAYROLL. PAY FOR OFFICERS PERFORMING EQUIVALENT TRAINING WILL NOT BE DEPENDENT UPON THE PERCENTAGE OF ATTENDANCE OF ENLISTED PERSONNEL AS REQUIRED FOR OFFICERS ATTENDING DRILLS WITH THEIR UNITS. EQUIVALENT TRAINING FOR PAY PURPOSES IN LIEU OF AN ASSEMBLY MUST BE PERFORMED WITHIN THE SAME CALENDAR MONTH AS THE ASSEMBLY FOR WHICH SUBSTITUTED.

C. MEMBERS PERFORMING ACTIVE DUTY FOR TRAINING. AN INDIVIDUAL MAY RECEIVE PAY FOR EQUIVALENT TRAINING PERFORMED IN LIEU OF A DRILL HELD BY HIS UNIT ON A DATE ON WHICH HE WAS ON ACTIVE DUTY, OR ACTIVE DUTY FOR TRAINING, PROVIDED HE IS IN AN ARMORY DRILL STATUS AT THE TIME SUCH TRAINING IS PERFORMED.

THE REGULATIONS CONSIDERED IN 34 COMP. GEN. 679--- PARTICULARLY PARAGRAPH 22D, NGR 45--- SPECIFICALLY PROVIDED THAT NOTHING IN SUCH REGULATIONS WOULD BE CONSTRUED AS AUTHORIZING PERFORMANCE OF "APPROPRIATE DUTIES" FOR THE PURPOSE OF QUALIFYING FOR PAY IN ANTICIPATION OF ABSENCES OR FOR NONATTENDANCE AT DRILLS ALREADY CONDUCTED, SUCH AS ATTENDANCE AT SERVICE SCHOOLS, SICKNESS, ETC. THE CURRENT REGULATIONS, IN EFFECT AT THE TIME INVOLVED, HOWEVER, DO NOT CONTAIN SUCH LIMITATION AND SPECIFICALLY PROVIDE FOR PERFORMANCE OF "EQUIVALENT TRAINING" IN LIEU OF SCHEDULED DRILLS PERFORMED OR TO BE PERFORMED WHILE THE MEMBER IS ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PROVIDED THE MEMBER IS IN AN ARMORY DRILL STATUS WHEN HE PERFORMS THE "EQUIVALENT INING.' IN VIEW OF THE PROVISIONS OF THE CURRENT REGULATIONS, AND ACCEPTING THE CERTIFICATE DATED APRIL 30, 1957, AS INDICATING THAT WRITTEN ORDERS WERE ACTUALLY ISSUED TO AUTHORIZE THE OFFICER TO PERFORM EQUIVALENT TRAINING ON THE DATES INVOLVED IN ACCORDANCE WITH REGULATIONS THEN IN FORCE, WE ARE NOT REQUIRED TO OBJECT TO PAYMENT OF THE AMOUNT CLAIMED ON THE SUPPLEMENTAL PAYROLL, WHICH IS RETURNED HEREWITH WITH ALL SUPPORTING PAPERS.