B-149990, OCT. 15, 1962

B-149990, OCT. 15, 1962

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 25, 1962, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE ENTITLEMENT OF PHYSICIANS AND DENTISTS TO THE SPECIAL PAY AUTHORIZED UNDER SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (NOW CODIFIED AS 37 U.S.C. 302 BY THE ACT OF SEPTEMBER 7,1962, PUB.L. 87-649, 76 STAT. 451), UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 310 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, AS FOLLOWS:

"1.MAY A MEMBER WHO IS CALLED TO EXTENDED ACTIVE DUTY FOR ONE YEAR OR LONGER, BUT WHO ACTUALLY SERVES FOR A PERIOD OF LESS THAN ONE YEAR BE CONSIDERED, UPON A SUBSEQUENT CALL TO EXTENDED ACTIVE DUTY OF LESS THAN ONE YEAR, AS HAVING BEEN "CALLED OR ORDERED TO EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER UNDER THE ORIGINAL ORDER" SO AS TO ENTITLE HIM, UPON REPORTING FOR ACTIVE DUTY UNDER THE SECOND SET OF ORDERS, TO THE SPECIAL PAY AUTHORIZED BY SECTION 203 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED?

"2. IF THE ANSWER TO QUESTION 1 IS THE NEGATIVE, MAY THE PERIOD THE MEMBER ACTUALLY SERVED ON ACTIVE DUTY UNDER THE ORIGINAL ORDERS BE ADDED TO A PERIOD ACTUALLY SERVED ON ACTIVE DUTY UNDER THE SECOND SET OF ORDERS (OR SUBSEQUENT ORDERS) FOR PERIODS OF LESS THAN ONE YEAR SO AS TO ENTITLE HIM TO THE SAID SPECIAL PAY FOLLOWING COMPLETION OF ONE YEAR OF ACTIVE DUTY?

"3. MAY PERIODS OF ACTIVE DUTY (NON-CONTINUOUS) PERFORMED UNDER TWO OR MORE SETS OF ORDERS CALLING A MEMBER TO ACTIVE DUTY FOR PERIODS OF LESS THAN ONE YEAR BE ADDED SO AS TO ENTITLE THE MEMBER TO SPECIAL PAY FOLLOWING THE COMPLETION OF ONE YEAR OF ACTIVE DUTY?

SUBSECTION (A) OF 37 U.S.C. 302 LISTS THE OFFICERS ENTITLED TO THE SPECIAL PAY AUTHORIZED FOR PHYSICIANS AND DENTISTS UNDER SUBSECTION (B). CLAUSE (2), SUBSECTION (A), RELATES TO MEDICAL AND DENTAL OFFICERS OF THE VARIOUS RESERVE COMPONENTS OF THE UNIFORMED SERVICES "ORDERED TO ACTIVE DUTY FOR A PERIOD OF AT LEAST ONE YEAR" AFTER SEPTEMBER 1, 1947, AND BEFORE JULY 1, 1963.

THE PRINCIPAL PURPOSE FOR AUTHORIZING THE ADDITIONAL PAY WAS TO PROVIDE AN INDUCEMENT FOR QUALIFIED MEDICAL AND DENTAL PERSONNEL TO SERVE ON ACTIVE DUTY IN THE UNIFORMED SERVICES BECAUSE OF THE DIFFICULTY EXPERIENCED IN SECURING AND RETAINING ON ACTIVE DUTY AN ADEQUATE NUMBER OF PHYSICIANS, SURGEONS AND DENTISTS. ALL THAT IS NECESSARY FOR A MEDICAL OR DENTAL OFFICER TO QUALIFY FOR THE ADDITIONAL PAY IS THAT HE BE ORDERED TO ACTIVE DUTY FOR A PERIOD OF AT LEAST ONE YEAR. IT IS THE OFFICER'S OBLIGATION TO SERVE FOR AT LEAST ONE YEAR UNDER SUCH AN ORDER WHICH PLACES HIM IN THE CATEGORY OF AN "OFFICER" ENTITLED TO THE SPECIAL PAY AUTHORIZED BY SUBSECTION (B). THE FACT THAT THE OFFICER MAY ACTUALLY SERVE FOR A PERIOD OF LESS THAN A YEAR UNDER AN ORDER CALLING FOR SERVICE FOR MORE THAN A YEAR IS IMMATERIAL AND WOULD NOT AFFECT HIS RIGHT TO THE SPECIAL PAY ASSUMING THAT THE FAILURE TO COMPLETE A YEAR'S SERVICE WAS NOT DUE TO HIS FAULT. WHEN AN OFFICER REPORTS FOR DUTY OF AT LEAST ONE YEAR, HE IS ENTITLED TO BE PAID THE AUTHORIZED SPECIAL PAY ON THE BASIS OF HIS OBLIGATED PROSPECTIVE SERVICE AND WHERE HE REMAINS READY, WILLING, AND ABLE TO COMPLETE HIS OBLIGATION TO SERVE FOR AT LEAST A YEAR EVEN THOUGH HE IS RELEASED AT SOME EARLIER TIME, HE REMAINS QUALIFIED FOR THE SPECIAL PAY RECEIVED AND IS THEREAFTER ENTITLED TO THE SPECIAL PAY FOR ANY FUTURE PERIOD OF ACTIVE DUTY HE MAY PERFORM. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 2 REQUIRES NO ANSWER.

SINCE THE LAW REQUIRES AN ORDER TO ACTIVE DUTY "FOR A PERIOD OF AT LEAST ONE YEAR" BEFORE ITS CONDITIONS ARE MET, NO AMOUNT OF SERVICE UNDER ORDERS TO ACTIVE DUTY FOR PERIODS OF LESS THAN ONE YEAR MAY BE ADDED TOGETHER TO FIT THE STATUTORY REQUIREMENT. UNLESS AND UNTIL A MEDICAL OR DENTAL OFFICER IN A RESERVE COMPONENT IS OBLIGATED TO SERVE ON ACTIVE DUTY FOR "A PERIOD" OF AT LEAST A YEAR UNDER A PROPER ORDER, HE IS NOT ENTITLED TO THE SPECIAL PAY. 38 COMP. GEN. 211 AND PESQUERA V. UNITED STATES, 133 CT.CL. 899. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE NEGATIVE.