B-169738, MAY 22, 1970, 49 COMP. GEN 796

B-169738, MAY 22, 1970, 49 COMP. GEN 796

PAY -- INCREASES -- COMPARABLE TO CLASSIFIED EMPLOYEES -- ADJUSTMENT THE RETROACTIVE APPLICATION OF THE COMPARABLE UPWARD ADJUSTMENT AUTHORIZED BY PUBLIC LAW 90-207, IN THE MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES HAVING BEEN PRESCRIBED FOR MEMBERS "ON ACTIVE DUTY ON THE DATE OF ENACTMENT" OF ANY COMPENSATION INCREASE RECEIVED BY FEDERAL CLASSIFIED EMPLOYEES, THE ADJUSTMENT IS NOT AUTHORIZED FOR MEMBERS OF THE NATIONAL GUARD OR A RESERVE COMPONENT PERFORMING DRILLS AND OTHER INACTIVE DUTY COMPENSABLE UNDER 37 U.S.C. 206. THEREFORE, THE RETROACTIVE EFFECTIVE DATE OF JANUARY 1, 1970 PRESCRIBED BY EXECUTIVE ORDER NO. 11525 FOR APPLICATION OF THE COMPENSATION INCREASE AUTHORIZED FOR CIVILIANS BY PUBLIC LAW 91-231, ENACTED APRIL 15, 1970, TO MEMBERS OF THE UNIFORMED SERVICES, DOES NOT APPLY TO A MEMBER IN A DRILL STATUS ON THAT DATE WHO HAD PERFORMED IN A STATUS DIFFERENT THAN PRESCRIBED IN 37 U.S.C. 206 PRIOR TO THAT DATE OR TO A MEMBER WHO PERFORMED DRILLS DURING THE RETROACTIVE PERIOD BUT WAS NOT IN A DRILL STATUS ON APRIL 15, 1970.

TO THE SECRETARY OF DEFENSE, MAY 22, 1970:

REFERENCE IS MADE TO LETTER DATED MAY 1, 1970, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING TWO QUESTIONS WHICH HAVE ARISEN IN THE IMPLEMENTATION OF THE MILITARY PAY INCREASE OF 1970. THE QUESTIONS, TOGETHER WITH A DISCUSSION PERTAINING THERETO, ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 441 WHICH WAS ENCLOSED.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

1. IS A MEMBER WHO WAS IN A "DRILL PAY STATUS" ON APRIL 15, 1970, AND WHO PERFORMED ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PRIOR TO THAT DATE BUT SUBSEQUENT TO DECEMBER 31, 1969, ENTITLED TO A RETROACTIVE INCREASE IN BASIC PAY FOR SUCH ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING?

2. IS A MEMBER WHO WAS ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING ON APRIL 15, 1970 BUT WHO WAS NOT IN A DRILL PAY STATUS ON THAT DATE ENTITLED TO A RETROACTIVE INCREASE FOR DRILLS PERFORMED AFTER DECEMBER 31, 1969 BUT PRIOR TO APRIL 15, 1970

SECTION 2(A)(1) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APRIL 15, 1970, 84 STAT. 195, AUTHORIZED A 6 PERCENT INCREASE IN THE RATES OF COMPENSATION FOR GENERAL SCHEDULE FEDERAL CLASSIFIED EMPLOYEES, AND OTHER EMPLOYEES THERE MENTIONED. THE INCREASE WAS MADE RETROACTIVE TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AS PROVIDED IN SECTION 9(A) OF THAT ACT. SECTION 5(A) OF THE 1970 ACT PROVIDES AS FOLLOWS:

(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, EXCEPT THAT SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID--

(1) TO AN OFFICER OR EMPLOYEE WHO RETIRED, DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, FOR SERVICES RENDERED DURING SUCH PERIOD; AND

(2) IN ACCORDANCE WITH SUBCHAPTER VIII OF CHAPTER 55 OF TITLE 5, U.S.C. RELATING TO SETTLEMENT OF ACCOUNTS, FOR SERVICES RENDERED, DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, BY AN OFFICER OR EMPLOYEE WHO DIED DURING SUCH PERIOD. SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL NOT BE CONSIDERED AS BASIC PAY FOR THE PURPOSES OF SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, U.S.C. RELATING TO CIVIL SERVICE RETIREMENT, OR ANY OTHER RETIREMENT LAW OR RETIREMENT SYSTEM, IN THE CASE OF ANY SUCH RETIRED OR DECEASED OFFICER OR EMPLOYEE.

A COMPARABLE UPWARD ADJUSTMENT IN THE MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS ADJUSTED UPWARDS, IS AUTHORIZED BY SECTION 8(A) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 649, 654, 37 U.S.C. 203 NOTE. SECTION 8(B)(2) PROVIDES THAT ANY SUCH ADJUSTMENT SHALL CARRY THE SAME EFFECTIVE DATE AS THAT APPLYING TO THE COMPENSATION ADJUSTMENTS PROVIDED GENERAL SCHEDULE EMPLOYEES. IT IS INDICATED THAT, COMPUTED UNDER THE FORMULA IN SECTION 8, THE "COMPARABLE UPWARD ADJUSTMENT" IN BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES AMOUNTS TO 8.1 PERCENT. SECTION 7 OF THE 1967 ACT PROVIDES AS FOLLOWS:

SEC. 7. THIS ACT BECOMES EFFECTIVE AS OF OCTOBER 1, 1967. HOWEVER, A MEMBER, EXCEPT AS PROVIDED IN SECTION 6 OF THIS ACT, IS NOT ENTITLED TO ANY INCREASES IN HIS PAY AND ALLOWANCES UNDER SECTION 1 OR SECTION 4 FOR ANY PERIOD BEFORE THE DATE OF ENACTMENT OF THIS ACT UNLESS HE IS ON ACTIVE DUTY ON THE DATE OF ENACTMENT OF THIS ACT. IN ADDITION, A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO IS ON DRILL PAY STATUS ON THE EFFECTIVE DATE OF THIS ACT IS ENTITLED TO HAVE ANY COMPENSATION TO WHICH HE HAS BECOME ENTITLED UNDER SECTION 206 OF TITLE 37, U.S.C. AFTER SEPTEMBER 30, 1967, COMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 1(1) OF THIS ACT.

SECTION 206 OF TITLE 37, U.S. CODE, REFERRED TO IN SECTION 7 OF THE 1967 ACT, AUTHORIZES PAY FOR INACTIVE DUTY TRAINING (DRILLS OR OTHER EQUIVALENT PERIODS OF TRAINING, INSTRUCTION, DUTY, OR APPROPRIATE DUTIES) FOR MEMBERS OF THE NATIONAL GUARD AND OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES. SECTION 206(A) PROVIDES AS FOLLOWS: RESERVES; MEMBERS OF NATIONAL GUARD: INACTIVE-DUTY TRAINING

(A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, AND TO THE EXTENT PROVIDED FOR BY APPROPRIATIONS, A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO IS NOT ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE, IS ENTITLED TO COMPENSATION, AT THE RATE OF 1/30 OF THE BASIC PAY AUTHORIZED FOR A MEMBER OF A UNIFORMED SERVICE OF A CORRESPONDING GRADE ENTITLED TO BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH HE IS ENGAGED FOR AT LEAST TWO HOURS, INCLUDING THAT PERFORMED ON A SUNDAY OR HOLIDAY, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, DUTY, OR APPROPRIATE DUTIES, AS THE SECRETARY MAY PRESCRIBE.

IN IMPLEMENTING THE 1970 ACT, IN CONJUNCTION WITH THE 1967 ACT, THE PRESIDENT ADJUSTED UPWARDS THE RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES, THE NEW RATES BEING SET FORTH IN SECTION 1 OF EXECUTIVE ORDER NO. 11525 DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970. SECTION 2 OF THE SAME EXECUTIVE ORDER PROVIDES AS FOLLOWS:

(A) A PERSON WHO BECAME ENTITLED AFTER DECEMBER 31, 1969, BUT BEFORE THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, TO PAYMENT FOR ITEMS SUCH AS LUMP-SUM LEAVE, REENLISTMENT AND VARIABLE REENLISTMENT BONUS, CONTINUATION PAY, ANY TYPE OF SEPARATION PAY, OR SIX MONTHS DEATH GRATUITY, SHALL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THIS ORDER.

(B) AUTHORITY TO PRESCRIBE OTHER RULES FOR PAYMENT OF RETROACTIVE COMPENSATION SHALL BE EXERCISED FOR THE UNIFORM SERVICES BY THE SECRETARY OF DEFENSE. ENTITLEMENT TO RETROACTIVE PAY UNDER SUCH RULES SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654.

PURSUANT TO SECTION 2(B) OF EXECUTIVE ORDER NO. 11525, THE DEPUTY SECRETARY OF DEFENSE IN A MEMORANDUM FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) DATED APRIL 21, 1970, PRESCRIBED CERTAIN RULES IMPLEMENTING THAT ORDER. RULE 2 IN THE DEPUTY SECRETARY'S MEMORANDUM READS, IN PERTINENT PART, AS FOLLOWS:

2. A PERSON IS NOT ENTITLED TO ANY INCREASE IN HIS BASIC PAY BY VIRTUE OF THAT ORDER FOR ANY PERIOD BEFORE APRIL 15, 1970 UNLESS HE WAS ON ACTIVE DUTY ON THAT DATE. *** IN ADDITION, A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO WAS IN A DRILL PAY STATUS ON APRIL 15, 1970 IS ENTITLED TO HAVE ANY COMPENSATION TO WHICH HE BECAME ENTITLED UNDER SECTION 206 OF TITLE 37, U.S.C. AFTER DECEMBER 31, 1969, COMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 1 OF THAT ORDER.

IT IS STATED IN THE COMMITTEE ACTION DISCUSSION THAT AS TO MEMBERS IN A "DRILL PAY STATUS" ON APRIL 15, 1970, DOUBT HAS ARISEN AS TO WHETHER SUCH MEMBERS ALSO ARE ENTITLED TO A RETROACTIVE ADJUSTMENT FOR ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PERFORMED AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970. IT IS POINTED OUT THAT UNDER SECTION 7 OF THE 1967 ACT, A MEMBER IN A DRILL PAY STATUS WAS ENTITLED TO A RETROACTIVE ADJUSTMENT IN ANY COMPENSATION TO WHICH HE BECAME ENTITLED "UNDER SECTION 206 OF TITLE 37, UNITED STATES CODE," WHICH RELATES TO INACTIVE DUTY TRAINING DRILLS. THE VIEW IS EXPRESSED THAT THE REFERENCE TO "SECTION 206" WAS NOT INTENDED AS A LIMITATION BUT RATHER WAS MERELY INTENDED TO IDENTIFY THE PROVISION OF LAW UNDER WHICH A MEMBER IF IN A DRILL PAY STATUS WAS PAID.

THE PHRASE "IN THE SERVICE OF THE UNITED STATES *** ON THE DATE OF ENACTMENT OF THIS ACT" AS USED IN SECTION 5(A) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970 IS SUBSTANTIALLY THE SAME AS THE LANGUAGE USED IN SECTION 218(A) OF THE FEDERAL SALARY ACT OF 1967, PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, 81 STAT. 624, 638. IN THIS CONNECTION AND IN SUPPORT OF THE COMMITTEE'S VIEW THAT THE QUESTIONS PRESENTED SHOULD BE ANSWERED IN THE AFFIRMATIVE, THERE IS CITED 47 COMP. GEN. 386 (1968), INVOLVING THE CASE OF A CIVILIAN EMPLOYEE WHO RESIGNED FROM ONE AGENCY ON FRIDAY, DECEMBER 15, 1967, AND ENTERED ON DUTY WITH ANOTHER AGENCY ON MONDAY, DECEMBER 18, 1967.

IN THAT DECISION WE CONCLUDED THAT IN VIEW OF THE INTERVENING PERIOD OF NONWORKDAYS BETWEEN SEPARATION IN ONE AGENCY BY RESIGNATION AND APPOINTMENT IN ANOTHER, THE EMPLOYEE MAY BE CONSIDERED "IN THE SERVICE OF THE UNITED STATES" WITHIN THE PURVIEW OF SECTION 218(A) OF THE 1967 ACT. SINCE THE HOLDING IN 47 COMP. GEN. 386 (1968) WAS NOT CONCERNED WITH THE SPECIFIC PROVISIONS OF SECTION 7 OF THE 1967 MILITARY PAY ACT, WE FIND LITTLE IN THAT DECISION WHICH WOULD FORM A BASIS FOR DECIDING THE QUESTIONS IN THE COMMITTEE ACTION.

AS POINTED OUT ABOVE, SECTION 2(B) OF EXECUTIVE ORDER NO. 11525 REQUIRES THAT ENTITLEMENT TO RETROACTIVE PAY SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE 1970 ACT AND "SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654." UNDER SECTION 7 OF THE 1967 ACT AND RULE 2, OF THE MEMORANDUM OF THE DEPUTY SECRETARY OF DEFENSE, DATED APRIL 21, 1970, A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT WHO WAS IN A "DRILL PAY STATUS" ON APRIL 15, 1970, IS ENTITLED TO HAVE ANY COMPENSATION TO WHICH HE BECAME ENTITLED UNDER "SECTION 206 OF TITLE 37, UNITED STATES CODE," AFTER DECEMBER 31, 1969, COMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 1 OF EXECUTIVE ORDER NO. 11525.

SECTION 206 OF TITLE 37 DOES NOT PROVIDE FOR PAYMENT OF COMPENSATION OR BASIC PAY FOR THE PERFORMANCE OF "ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING." RATHER, THAT SECTION AUTHORIZES THE PAYMENT OF BASIC PAY FOR INACTIVE DUTY TRAINING DRILLS, ETC., PERFORMED IN COMPLIANCE WITH REGULATIONS ISSUED UNDER ITS PROVISIONS. IT SEEMS TO US THAT HAD CONGRESS INTENDED TO ENLARGE THE SCOPE OF SECTION 7 OF THE 1967 ACT TO INCLUDE A PAY INCREASE FOR MEMBERS OF THE NATIONAL GUARD OR RESERVE COMPONENTS WHO PERFORMED ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING AFTER OCTOBER 1, 1967, AND BEFORE DECEMBER 15, 1967 (DECEMBER 31, 1969, AND BEFORE APRIL 15, 1970, UNDER THE 1970 ACT) AND WHO WERE IN A "DRILL PAY STATUS" ON DECEMBER 15, 1967 (HERE APRIL 15, 1970), APPROPRIATE LANGUAGE WOULD HAVE BEEN USED TO ACCOMPLISH SUCH A RESULT. SUCH INCREASE IN BASIC PAY FOR ACTIVE DUTY WAS AUTHORIZED ONLY WHEN THE MEMBER INVOLVED WAS "ON ACTIVE DUTY ON THE DATE OF ENACTMENT OF THIS ACT."

IN SUPPORT OF THE ABOVE CONCLUSION SEE THE REMARKS OF THE CHAIRMAN OF THE HOUSE ARMED SERVICES COMMITTEE ON PAGE 5434 OF COMMITTEE HEARINGS (NO. 27) DATED OCTOBER 17, 1967, ON H. R. 8197 AND H. R. 13510--WHICH BECAME THE ACT OF DECEMBER 16, 1967--THAT "THERE HAS ALSO BEEN INCLUDED LANGUAGE WHICH WILL MAKE CLEAR THAT RESERVISTS WILL BE ENTITLED TO DRILL PAY COMPUTED AT THE HIGHER BASIC PAY TABLES FOR DRILLS PERFORMED ON OR AFTER OCTOBER 1, 1967." SEE, ALSO, THE ANALYSIS OF SECTION 8(7) ON PAGE 35 OF H. REPT. NO. 787 DATED OCTOBER 17, 1967, TO ACCOMPANY H. R. 13510, AND THE ANALYSIS OF SECTION 7 ON PAGE 21 OF S. REPT. NO. 808 DATED NOVEMBER 28, 1967, ON THE SAME BILL.

IN THE LIGHT OF THE ABOVE, IT IS OUR VIEW THAT IN THE ABSENCE OF SOME OTHER SPECIFIC STATUTORY AUTHORITY, THERE IS NO BASIS TO AUTHORIZE A RETROACTIVE INCREASE IN BASIC PAY, OTHER THAN THAT RECEIVED UNDER SECTION 206 OF TITLE 37, FOR A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT WHO WAS IN A "DRILL PAY STATUS" ON APRIL 15, 1970, BUT WHO PERFORMED ACTIVE DUTY PRIOR TO THAT DATE (JANUARY 1 TO APRIL 14, 1970) IN A STATUS DIFFERENT FROM THAT PRESCRIBED IN SECTION 206 OF TITLE 37. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE. FOR THE SAME REASONS, AND SINCE THE MEMBER IN QUESTION 2 WAS NOT IN A "DRILL PAY STATUS" ON APRIL 15, 1970, THAT QUESTION IS ALSO ANSWERED IN THE NEGATIVE.