B-28760, OCTOBER 6, 1942, 22 COMP. GEN. 320

B-28760, OCTOBER 6, 1942, 22 COMP. GEN. 320

PAY - LONGEVITY - REGULAR ARMY RESERVE PRIOR INACTIVE SERVICE IN THE REGULAR ARMY RESERVE, ESTABLISHED BY THE ACT OF APRIL 25, 1938, MAY NOT BE COUNTED BY AN ENLISTED MAN THEREOF, ON ACTIVE DUTY, IN COMPUTING HIS LONGEVITY PAY UNDER SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. D. J. CRAGUN, U.S. ARMY, OCTOBER 6, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 4, 1942, IN WHICH YOU REQUEST ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER, FORWARDED THEREWITH, IN FAVOR OF CORPORAL SAMUEL B. WHITMIRE, REGULAR ARMY RESERVE, FOR THE DIFFERENCE BETWEEN PAY OF A CORPORAL WITH OVER 6 YEARS' SERVICE, AND PAY RECEIVED AS A CORPORAL WITH OVER 3 AND LESS THAN 6 YEARS' SERVICE FOR THE PERIOD JUNE 1, 1942, TO JULY 31, 1942. IS STATED ON THE VOUCHER THAT WHITMIRE SERVED AS AN ENLISTED MAN IN THE REGULAR ARMY FROM APRIL 24, 1934, TO APRIL 23, 1937, ENLISTED IN THE REGULAR ARMY RESERVE APRIL 4, 1939, AND WAS CALLED TO ACTIVE DUTY FEBRUARY 10, 1941. APPARENTLY THIS ACTIVE DUTY HAS BEEN CONTINUOUS TO DATE. THE CLAIMANT CONTENDS THAT FULL CREDIT SHOULD BE ALLOWED HIM FOR ALL TIME SERVED IN THE REGULAR ARMY RESERVE, WHICH WOULD GIVE HIM 6 YEARS' SERVICE AS OF APRIL 3, 1942.

THE REGULAR ARMY RESERVE, ABOLISHED BY THE ACT OF JUNE 4, 1920, 41 STAT. 775, WAS REESTABLISHED BY THE ACT OF APRIL 25, 1938, 52 STAT. 221. THE LATTER ACT READS AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THERE SHALL BE ORGANIZED AND MAINTAINED AS A PART OF THE REGULAR ARMY AND IN ADDITION TO THE AUTHORIZED STRENGTH THEREOF OTHERWISE PROVIDED A REGULAR ARMY RESERVE. ANY PERSON WHO HAS SERVED IN THE REGULAR ARMY AND WHO HAS BEEN HONORABLY DISCHARGED THEREFROM, AND WHO IS LESS THAN THIRTY-SIX YEARS OF AGE MAY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE REENLISTED FOR THE REGULAR ARMY RESERVE. EACH SOLDIER THUS REENLISTED SHALL BE ENTITLED TO RECEIVE, DURING EACH YEAR OF HIS SERVICE IN THE REGULAR ARMY RESERVE, AN ENLISTMENT ALLOWANCE OF $24 PER ANNUM PAYABLE IN INSTALLMENTS UNDER SUCH REGULATIONS AND CONDITIONS AS THE PRESIDENT MAY PRESCRIBE. SERVICE IN THE REGULAR ARMY RESERVE NOT ON ACTIVE DUTY SHALL CONFER NO RIGHT TO PAY, LONGEVITY PAY, RETIREMENT OR RETIRED PAY, OR ANY OTHER EMOLUMENTS UPON MEMBERS THEREOF EXCEPT AS PROVIDED IN THIS SECTION; AND MEMBERS OF THE REGULAR ARMY RESERVE SHALL BECOME ENTITLED TO PENSIONS ONLY DUE TO DISABILITY INCURRED WHILE ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. ACTIVE DUTY FOR SUCH PURPOSES SHALL BE DEEMED TO BEGIN ON THE DATE OF ACCEPTANCE FOR SUCH DUTY FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY AND SHALL TERMINATE WHEN RELIEVED OR DISCHARGED FROM SUCH DUTY. MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION AND SUBSISTENCE ALLOWANCES AT GOVERNMENT EXPENSE FROM THEIR HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY. IN ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE BUT NOT TO EXCEED $150. WHILE ON ACTIVE DUTY THEY SHALL HAVE THE SAME STATUS AND RECEIVE ONLY THE SAME PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, TIME SPENT ON ACTIVE DUTY ONLY WILL BE COUNTED. WITHIN SIX MONTHS AFTER THE TERMINATION OF AN EMERGENCY DECLARED BY THE PRESIDENT, THEY SHALL BE PLACED IN AN INACTIVE STATUS OR DISCHARGED, WHICHEVER IS APPROPRIATE.

MEMBERS OF THE REGULAR ARMY RESERVE SHALL BE SUBJECT TO MILITARY LAW ONLY FROM THE DATE THEY ARE REQUIRED TO OBEY AN ORDER TO REPORT FOR ACTIVE DUTY.

SECTION 14 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, PUBLIC LAW 607, 77TH CONGRESS, EFFECTIVE JUNE 1, 1942, PROVIDES IN PART:

OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY, NAVY, MARINE CORPS, COAST GUARD, OR PUBLIC HEALTH SERVICE.

SECTION 9 OF THE ABOVE ACT, 56 STAT. 363, ESTABLISHES RATES OF PAY FOR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, AND FURTHER PROVIDES:

EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS. SUCH SERVICE SHALL BE ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE ENLISTED RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE.

THE ACT OF APRIL 25, 1938, HEREINBEFORE QUOTED, PROVIDES:

* * * SERVICE IN THE REGULAR ARMY RESERVE NOT ON ACTIVE DUTY SHALL CONFER NO RIGHT TO PAY, LONGEVITY PAY, RETIREMENT OR RETIRED PAY, OR ANY OTHER EMOLUMENTS UPON MEMBERS THEREOF EXCEPT AS PROVIDED IN THIS SECTION; * * * WHILE ON ACTIVE DUTY THEY SHALL HAVE THE SAME STATUS AND RECEIVE ONLY THE SAME PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, TIME SPENT ON ACTIVE DUTY ONLY WILL BE COUNTED. * * * (ITALICS SUPPLIED.)

HERE IS A CLEAR AND EXPLICIT RESTRICTION OF LONGEVITY CREDIT FOR REGULAR ARMY RESERVE SERVICE TO TIME SPENT ON ACTIVE DUTY. THIS RESTRICTION IS CONTINUED IN THE ACT OF JUNE 16, 1942, INSOFAR AS ENLISTED MEN OF THE REGULAR ARMY ARE CONCERNED, BY THE PROVISION IN SECTION 9 OF THAT ACT THAT SUCH MEN MAY COUNT, FOR LONGEVITY, ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT OR THE RESERVE COMPONENTS THEREOF. THE ARMY IS ONE OF THE SERVICES SO MENTIONED; THE REGULAR ARMY RESERVE IS A RESERVE COMPONENT THEREOF. ACT OF APRIL 25, 1938, SUPRA. THUS AN ENLISTED MAN OF THE REGULAR ARMY MAY NOT COUNT, FOR LONGEVITY PAY PURPOSES, PRIOR INACTIVE SERVICE IN THE REGULAR ARMY RESERVE.

SECTION 14 OF THE ACT OF JUNE 16, 1942, SUPRA, PLACES MEMBERS OF THE REGULAR ARMY RESERVE, WHILE ON ACTIVE DUTY, ON A PARITY, AS TO PAY AND ALLOWANCES, WITH MEMBERS OF THE REGULAR ARMY OF CORRESPONDING GRADES AND LENGTH OF SERVICE. THE LATTER MAY NOT INCLUDE, IN COMPUTING LENGTH OF SERVICE, INACTIVE SERVICE IN THE REGULAR ARMY RESERVE. ACCORDINGLY, THE FORMER MAY NOT BE CREDITED WITH SUCH INACTIVE SERVICE. TO HOLD OTHERWISE WOULD BE TO ALLOW A MEMBER OF THE RESERVE MORE LONGEVITY PAY THAN ACCRUES TO AN ENLISTED MAN OF THE REGULAR ARMY WITH EXACTLY THE SAME LENGTH AND KIND OF PRIOR SERVICE. OBVIOUSLY, THIS IS NOT THE INTENT OF SECTION 14.

ACCORDINGLY, YOU ARE ADVISED THAT IN THE COMPUTATION OF LONGEVITY PAY OF AN ENLISTED MAN OF THE REGULAR ARMY RESERVE, ON ACTIVE DUTY, PRIOR INACTIVE SERVICE IN THE RESERVE MAY NOT BE INCLUDED. THE VOUCHER TRANSMITTED BY YOU MAY NOT BE PAID, AND IS RETAINED IN THIS OFFICE.