B-134430, DECEMBER 13, 1957, 37 COMP. GEN. 403

B-134430, DECEMBER 13, 1957, 37 COMP. GEN. 403

MILITARY PERSONNEL - RESERVISTS - SERVICE CREDITS - HOSPITALIZATION DURING TWO-WEEK TRAINING PERIOD ALTHOUGH A RESERVIST WHO, DURING A TWO-WEEK ACTIVE DUTY TRAINING PERIOD, IS INJURED AND HOSPITALIZED MAY RECEIVE RETIREMENT POINT CREDIT UNDER 10 U.S.C. 1332 FOR EACH DAY OF ACTIVE DUTY COVERED BY THE ORDERS, EVEN THOUGH HE WAS HOSPITALIZED FOR A PORTION OF THE PERIOD, RETIREMENT POINT CREDIT MAY NOT BE GIVEN FOR A PERIOD OF HOSPITALIZATION SUBSEQUENT TO THE DUTY PERIOD PRESCRIBED IN THE ORDERS.

TO THE SECRETARY OF DEFENSE, DECEMBER 13, 1957:

REFERENCE IS MADE TO LETTER OF NOVEMBER 18, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION AS TO WHETHER A RESERVE MEMBER OF THE ARMED FORCES, WHO IS ORDERED TO ACTIVE DUTY FOR TRAINING FOR A 2-WEEK PERIOD AND IS INJURED AND HOSPITALIZED PRIOR TO THE EXPIRATION OF SUCH PERIOD, MAY BE CREDITED WITH POINTS IN THE COMPUTATION OF RETIRED PAY UNDER 10 U.S.C. 1331, 1332, FOR (1) THE ENTIRE 2-WEEK PERIOD COVERED BY HIS ORDERS AND (2) THE PERIOD OF HOSPITALIZATION SUBSEQUENT TO SUCH PERIOD. ENCLOSED WITH THE LETTER OF NOVEMBER 18 WAS A COPY OF COMMITTEE ACTION NO. 198 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, REGARDING THIS MATTER.

UNDER THE PROVISIONS OF SECTION 1331 OF TITLE 10 OF THE U.S.C. A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY IF (1) HE IS AT LEAST 60 YEARS OF AGE, (2) HAS PERFORMED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332, THE LAST 8 YEARS OF SUCH QUALIFYING SERVICE BEING PERFORMED AS A MEMBER OF A RESERVE COMPONENT, INCLUDING THE ARMY OR AIR FORCE WITHOUT COMPONENT OR ANY OTHER CATEGORY NAMED IN SECTION 1332 (A) (WITH CERTAIN EXCEPTIONS NOT MATERIAL IN THIS CASE), AND (3) HE IS NOT OTHERWISE ENTITLED TO RETIRED OR RETAINER PAY. PERSONS WHO WERE MEMBERS OF SUCH RESERVE COMPONENTS PRIOR TO AUGUST 16, 1945, EXCEPT A REGULAR COMPONENT, MUST HAVE PERFORMED ACTIVE DUTY DURING WORLD WAR I OR WORLD WAR II TO BE ELIGIBLE FOR THIS RETIRED PAY.

INSOFAR AS HERE MATERIAL SECTION 1332 PROVIDES THAT:

(A) EXCEPT AS PROVIDED IN SUBSECTION (B), FOR THE PURPOSE OF DETERMINING WHETHER A PERSON IS ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE, HIS YEARS OF SERVICE ARE COMPUTED BY ADDING---

(1) HIS YEARS OF SERVICE, BEFORE JULY 1, 1949, IN---

(A) THE ARMED FORCES;

(B) THE FEDERALLY RECOGNIZED NATIONAL GUARD BEFORE JUNE

15, 1933;

(C) A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD

BEFORE JUNE 15, 1933;

(D) THE NAVAL RESERVE FORCE;

(E) THE NAVAL MILITIA THAT CONFORMED TO THE STANDARDS

PRESCRIBED BY THE SECRETARY OF THE NAVY; AND

(F) THE NATIONAL NAVAL VOLUNTEERS; AND (2) EACH

ONE-YEAR PERIOD, AFTER JULY 1, 1949, IN WHICH HE HAS

BEEN CREDITED WITH AT LEAST 50 POINTS ON THE FOLLOWING BASIS---

(A) ONE POINT FOR EACH DAY OF--- (I) ACTIVE SERVICE; OR

(II) SERVICE UNDER SECTIONS 316, 503, 504, AND 505 OF

TITLE 32 WHILE PERFORMING ANNUAL TRAINING DUTY OR WHILE

ATTENDING A PRESCRIBED COURSE OF INSTRUCTION AT A SCHOOL

DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY

CONCERNED;

IF THAT SERVICE CONFORMED TO REQUIRED STANDARDS AND

QUALIFICATIONS;

(B) ONE POINT FOR EACH ATTENDANCE AT A DRILL OR PERIOD OF

EQUIVALENT INSTRUCTION THAT WAS PRESCRIBED FOR THAT YEAR BY THE

SECRETARY CONCERNED AND CONFORMED TO THE REQUIREMENTS PRESCRIBED

BY LAW, INCLUDING ATTENDANCE UNDER SECTION 502 OF TITLE 32 * * *.

FOR THE PURPOSES OF SECTION 1332, THE TERM "ACTIVE SERVICE" MEANS ACTIVE DUTY AND "ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, INCLUDING DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. SEE 10 U.S.C. 101 (22) (24).

UPON COMPLIANCE WITH ORDERS TO ACTIVE DUTY A RESERVIST IS IN ACTIVE SERVICE FOR PURPOSES OF SECTION 1332 AND PERIODS OF HOSPITALIZATION FALLING WITHIN THE PERIOD COVERED BY A RESERVIST'S ORDERS TO DUTY HAVE NOT BEEN VIEWED AS AFFECTING HIS DUTY STATUS UNDER THOSE ORDERS. COMPARE 31 COMP. GEN. 456; 33 COMP. GEN. 239. ACCORDINGLY, WE PERCEIVE NO REASON WHY A RESERVIST SHOULD NOT BE CREDITED WITH ONE DAY OF ACTIVE SERVICE FOR EACH DAY OF ACTIVE DUTY COVERED BY HIS ORDERS FOR PURPOSES OF SECTION 1332 EVEN THOUGH HE MAY BE HOSPITALIZED FOR A PORTION OF SUCH PERIOD. UPON TERMINATION OF A RESERVISTS'S ACTIVE-DUTY ORDERS, HOWEVER, HE IS ENTITLED ONLY TO SUCH BENEFITS DURING A SUBSEQUENT PERIOD OF HOSPITALIZATION AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE.

IN SUCH CONNECTION 10 U.S.C. 3687 PROVIDES THAT A MEMBER OF THE ARMY, OTHER THAN THE REGULAR ARMY, IS ENTITLED TO THE PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER HE IS CALLED OR ORDERED TO ACTIVE DUTY FOR ANY PERIOD OF TIME AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED. SUBSTANTIALLY SIMILAR PROVISIONS RELATING TO THE NAVY AND MARINE CORPS AND THE AIR FORCE ARE CONTAINED IN 10 U.S.C. 6148 AND 8687, AND 32 U.S.C. 318 MAKES LIKE PROVISIONS FOR THE NATIONAL GUARD. THOSE PROVISIONS ARE A REVISION AND CODIFICATION OF THE ACT OF JUNE 20, 1949, 63 STAT. 201. IN DECISION OF FEBRUARY 6, 1951, 30 COMP. GEN. 338, WE POINTED OUT THAT THERE WAS NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF THE ACT OF JUNE 20, 1949, WHICH WOULD FORM A PROPER BASIS FOR CONCLUDING THAT CONGRESS INTENDED TO AUTHORIZE ANY BENEFIT OR PAYMENT OTHER THAN THOSE SPECIFICALLY NAMED IN THE ACT. THE CODIFICATION DID NOT ENLARGE THE SCOPE OF THE ACT BUT APPARENTLY RESTATED ITS PROVISIONS IN THE MANNER IN WHICH THEY HAD BEEN APPLIED.

WHILE THE 1949 ACT DID NOT BECOME LAW FOR ALMOST A YEAR AFTER THE ENACTMENT OF THE PROVISIONS CODIFIED IN 10 U.S.C. 1331, 1332 (ACT OF JUNE 29, 1948, 62 STAT. 1087), IT CONTAINED NO PROVISION FOR CREDITING POINTS FOR RESERVE RETIREMENT PURPOSES TO RESERVISTS WHO ARE CONTINUED IN A PAY STATUS UNDER ITS PROVISIONS WHILE HOSPITALIZED AFTER TERMINATION OF A PERIOD OF ORDERED ACTIVE DUTY AND THE SUPERSEDING CODE PROVISIONS DO NOT SO PROVIDE. MOREOVER, THE LAW ASSIMILATES THE INJURED RESERVIST TO A MEMBER OF THE REGULAR COMPONENTS FOR ITS PURPOSES AND MEMBERS OF THE REGULAR COMPONENTS ARE NOT ENTITLED AS SUCH TO THE RETIREMENT BENEFITS OF 10 U.S.C. 1331 AND 1332. ALSO, WHILE THE 1949 ACT PROVIDED THAT THE INJURED RESERVIST "SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY (OR NAVAL) SERVICE DURING SUCH PERIOD," SUCH PROVISION DID NOT RELATE TO THE PERIOD WHILE A RESERVIST IS IN RECEIPT OF PAY AND ALLOWANCES UNDER THE ACT BUT HAD REFERENCE TO THE PERIOD OF ORDERED DUTY DURING WHICH THE INJURY IS INCURRED; AND EVEN THAT PROVISION WAS OMITTED IN THE CODIFICATION OF THE STATUTE. HENCE, THE 1949 ACT DID NOT HAVE THE EFFECT OF CONTINUING THE ACTIVE-DUTY STATUS OF A RESERVIST, INJURED WHILE ON DUTY, BEYOND THE TERMINAL DATE SPECIFIED IN HIS ORDERS TO ACTIVE DUTY. COMPARE 33 COMP. GEN. 339, ANSWER TO QUESTION (D). IT SEEMS APPARENT THAT THE CODIFICATION OF THAT ACT WAS NOT INTENDED TO CHANGE ITS EFFECT IN THAT RESPECT. FOLLOWS THAT A RESERVIST IS NOT IN ACTIVE SERVICE WHILE HE IS RECEIVING PAY AND ALLOWANCES UNDER SUCH PROVISIONS AFTER THE TERMINATION DATE SPECIFIED IN HIS ORDERS.

ACCORDINGLY, SINCE THE TERM "PAY AND ALLOWANCES," AS USED IN THE 1949 ACT AND ITS CODIFICATION, PLAINLY DOES NOT INCLUDE THE RETIREMENT POINT CREDIT AUTHORIZED BY SECTION 1332 OR ITS ANTECEDENT, THE CONCLUSION IS REQUIRED THAT A RESERVIST IS NOT ENTITLED TO SUCH RETIREMENT POINT CREDIT FOR ANY PERIOD AFTER THE EXPIRATION OF HIS ACTIVE-DUTY ORDERS.

IN VIEW OF THE FOREGOING, THE FIRST PART OF YOUR ANSWER IS ANSWERED IN THE AFFIRMATIVE AND THE SECOND PART IS ANSWERED IN THE NEGATIVE.