B-31606, FEBRUARY 5, 1943, 22 COMP. GEN. 759

B-31606, FEBRUARY 5, 1943, 22 COMP. GEN. 759

PAY - COMMISSIONED OFFICERS - SERVICE CREDITS A COMMISSIONED OFFICER OF THE COAST GUARD PAID UNDER SECTION 1 OR 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHO IS ENTITLED UNDER SECTION 3A TO COUNT FOR ALL PAY PURPOSES IN TIME OF WAR AND SIX MONTHS THEREAFTER FULL TIME FOR PERIODS DURING WHICH HE WAS ENLISTED MAY COUNT THE TIME DURING AN ENLISTMENT IN THE NAVY WHEN HE WAS ON FURLOUGH WITHOUT PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, AUTHORIZING THE SECRETARY OF THE NAVY TO GRANT SUCH FURLOUGHS TO ENLISTED MEN, SUBJECT TO THE CONDITIONS THEREIN, FOR A PERIOD COVERING THE UNEXPIRED PORTION OF THEIR ENLISTMENT. COMMISSIONED OFFICERS PAID UNDER SECTION 1 OR 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHO ARE ENTITLED UNDER SECTION 3A TO COUNT FOR ALL PAY PURPOSES IN TIME OF WAR AND SIX MONTHS THEREAFTER "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED" MAY COUNT TIME LOST, WHILE PREVIOUSLY SERVING AS ENLISTED MEN, ON ACCOUNT OF SICKNESS DUE TO THEIR OWN MISCONDUCT, ABSENCE WITHOUT LEAVE, ABSENCE OVER LEAVE, OR NON- PERFORMANCE OF DUTY BECAUSE OF IMPRISONMENT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 5, 1943:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 7, 1943 ( JAG:K: WJG:HW SO 1 4 139), AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER FROM THE COMMANDANT, U.S. COAST GUARD, DATED DECEMBER 19, 1942, WITH ACCOMPANYING ENDORSEMENT THEREON, RELATIVE TO THE RIGHT OF COMMISSIONED OFFICERS TO COUNT FOR LONGEVITY AND PERIOD PAY PURPOSES PERIODS OF FURLOUGH WITHOUT PAY AND SICK MISCONDUCT IN PRIOR ENLISTED STATUS.

YOUR DECISION IS REQUESTED ON THE QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE PROVISION CONTAINED IN SECTION 3A OF THE ACT APPROVED DECEMBER 2, 1942 ( PUBLIC LAW 785-77TH CONGRESS), TO THE EFFECT THAT IN COMPUTING SERVICE FOR ALL PAY PURPOSES, OFFICERS PAID UNDER THE PROVISIONS OF SECTIONS 1 AND 3 OF SAID ACT MAY COUNT "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE LISTED," AS FOLLOWS:

(A) WHETHER PRIOR SERVICE OF COMMANDER WILLIAM J. AUSTERMANN, U.S. COAST GUARD, AS AN ENLISTED MAN, RENDERED WHILE ON FURLOUGH WITHOUT PAY, MAY BE COUNTED FOR PAY PURPOSES?

(B) WHETHER ABSENCE DUE TO MISCONDUCT MAY BE INCLUDED IN COMPUTING ENLISTED SERVICE TO WHICH A COMMISSIONED OFFICER IS ENTITLED TO COUNT FOR PAY PURPOSES?

(C) WHETHER OR NOT OFFICERS PAID UNDER THE PROVISIONS OF SECTIONS 1 AND 3 OF THE CITED ACT OF DECEMBER 2, 1942, MAY ALSO INCLUDE IN THE FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED, TIME LOST DURING PERIODS OF ABSENCE OVER LEAVE, ABSENCE WITHOUT LEAVE, AND NON PERFORMANCE OF DUTY BECAUSE IMPRISONED AS AN ENLISTED MAN.

SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, PUBLIC LAW 785, PROVIDES:

THE PAY READJUSTMENT ACT OF 1942 ( PUBLIC LAW 607), APPROVED JUNE 16, 1942, IS AMENDED BY INSERTING AFTER SECTION 3 THEREOF THE FOLLOWING NEW SECTION:

SEC. 3A. DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 OR 3 OF THIS ACT, SUCH OFFICERS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY SUCH SECTIONS, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE REGULAR ARMY RESERVE, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE ENLISTED RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT ANY COMMISSIONED OFFICER TO RECEIVE PAY AND ALLOWANCES IN EXCESS OF THE MAXIMUM LIMITATIONS IMPOSED UPON THE TOTAL PAY AND ALLOWANCES OF ANY RANK OR GRADE BY ANY OF THE PROVISIONS OF THIS ACT.

IN THE LETTER FROM THE COMMANDANT, U.S. COAST GUARD, REFERRED TO IN YOUR LETTER, COMMANDER AUSTERMANN'S ENLISTED SERVICE IS STATED AS FOLLOWS: ENLISTED IN NAVY APRIL 25, 1914; DISCHARGED MARCH 12, 1918; REENLISTED MARCH 13, 1918; DISCHARGED MARCH 12, 1922; GRANTED FURLOUGH WITHOUT PAY FROM APRIL 24, 1919, TO MARCH 12, 1922. THE FURLOUGH WITHOUT PAY PRESUMABLY WAS UNDER THE AUTHORITY GRANTED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 580, WHICH PROVIDES:

THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO GRANT FURLOUGH WITHOUT PAY TO ENLISTED MEN FOR A PERIOD COVERING THE UNEXPIRED PORTION OF THEIR ENLISTMENT: PROVIDED, THAT SUCH FURLOUGH BE GRANTED UNDER THE SAME CONDITIONS AND IN LIEU OF DISCHARGE BY PURCHASE OR BY SPECIAL ORDER OF THE DEPARTMENT. ENLISTED MEN SO FURLOUGHED SHALL BE SUBJECT TO RECALL IN TIME OF WAR OR NATIONAL EMERGENCY TO COMPLETE THE UNEXPIRED PORTION OF THEIR ENLISTMENT, AND SHALL BE IN ADDITION TO THE AUTHORIZED NUMBER OF ENLISTED MEN OF THE NAVY.

SECTION 3 OF THE ACT OF DECEMBER 2, 1942, SUPRA, ENTITLES OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 OR 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 360, TO BE CREDITED FOR ALL PAY PURPOSES DURING WAR, INTER ALIA, WITH FULL TIME FOR "ALL PERIODS DURING WHICH THEY WERE ENLISTED.' WHETHER SUCH OFFICERS MAY BE CREDITED, FOR ALL PAY PURPOSES, WITH FULL TIME FOR PERIODS DURING WHICH THEY WERE ON FURLOUGH WITHOUT PAY UNDER THE PROVISIONS OF THE SAID ACT OF AUGUST 29, 1916, IS DEPENDENT UPON WHETHER THEY WERE "ENLISTED" DURING SUCH PERIODS WITHIN THE MEANING OF THE ACT. THAT IT WAS NOT INTENDED TO RESTRICT THE TIME TO ACTIVE SERVICE UNDER AN ENLISTMENT IS SHOWN BY THE EXPRESS INCLUSION OF OTHER INACTIVE SERVICE. SEE DECISION OF JANUARY 19, 1943, TO THE SECRETARY OF THE NAVY, B-31288, 22 COMP. GEN. 664, ANSWER TO THE SECOND QUESTION. WHILE A FURLOUGH WITHOUT PAY UNDER THE ACT OF AUGUST 29, 1916, SUSPENDED THE MAN'S ACTIVE DUTY STATUS, IT DID NOT TERMINATE HIS ENLISTMENT. HE WAS NOT DISCHARGED BUT, ON THE CONTRARY, HE WAS STILL SUBJECT TO RECALL TO ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. HIS ENLISTED STATUS CONTINUED UNTIL THE DATE ON WHICH HIS TERM OF SERVICE UNDER THE ENLISTMENT CONTRACT NORMALLY EXPIRED. SEE 1 COMP. GEN. 706. ACCORDINGLY, QUESTION (A), INSOFAR AS IT RELATES TO FURLOUGHS WITHOUT PAY UNDER THE ACT OF AUGUST 29, 1916, SUPRA, IS ANSWERED IN THE AFFIRMATIVE.

YOUR FURTHER QUESTIONS ARE AS TO WHETHER PERIODS DURING WHICH A COMMISSIONED OFFICER, WHILE PREVIOUSLY SERVING AS AN ENLISTED MAN, WAS ABSENT ON ACCOUNT OF SICKNESS DUE TO HIS OWN MISCONDUCT, ABSENT WITHOUT LEAVE, ABSENT OVER LEAVE, OR DID NOT PERFORM HIS DUTIES BECAUSE OF IMPRISONMENT, MAY BE COUNTED AS ENLISTED SERVICE BY SUCH COMMISSIONED OFFICER FOR ALL PAY PURPOSES UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 2, 1942, SUPRA.

THE QUESTIONS AS TO WHETHER AN ENLISTED MAN IS ENTITLED TO COUNT FOR PAY PURPOSES THE TIME LOST WHILE HE WAS ABSENT BY REASON OF SICKNESS DUE TO HIS OWN MISCONDUCT, ABSENT WITHOUT LEAVE, ETC., HAVE BEEN EXHAUSTIVELY CONSIDERED AND IT HAS BEEN UNIFORMLY HELD THAT SUCH PERIODS MAY NOT BE CONSIDERED AS ENLISTED SERVICE FOR PAY PURPOSES. SEE 2 COMP. GEN. 162; 4 ID. 336; 15 ID. 836; 20 ID. 218; B-8491, MARCH 8, 1940. CF. U STATES V. LANDERS, 92 U.S. 77. UNQUESTIONABLY, THAT RULE IS SOUND. LONGEVITY PAY GENERALLY HAS BEEN CONSIDERED AS AN INCREASE GRANTED FOR HONEST AND FAITHFUL SERVICE ON THE BASIS THAT THE SERVICEMAN BY HONEST AND FAITHFUL PERFORMANCE OF HIS DUTIES HAS FITTED HIMSELF BETTER FOR THE PERFORMANCE THEREOF AND HAS MADE HIMSELF MORE VALUABLE TO THE GOVERNMENT. WHILE THE PRESENT STATUTE DOES NOT RESTRICT THE SERVICE WHICH MAY BE COUNTED TO ACTIVE SERVICE BUT PERMITS THE INCLUSION OF PERIODS IN AN INACTIVE STATUS AS A RESERVIST, OR OTHERWISE, WHEN THE MAN WAS SUBJECT TO CALL FOR ACTIVE DUTY AND PRESUMABLY HELD HIMSELF IN READINESS TO SERVE, IT WOULD BE CONTRARY TO THE WHOLE SPIRIT AND PURPOSE OF SUCH PROVISIONS WERE HE TO RECEIVE THE BENEFITS THEREOF BY COUNTING PERIODS WHEN HE WAS NOT READY TO SERVE BECAUSE HE HAD DELIBERATELY ABSENTED HIMSELF FROM DUTY WITHOUT AUTHORITY OR BECAUSE HE WAS PHYSICALLY UNABLE TO PERFORM HIS DUTIES BY REASON OF HIS OWN MISCONDUCT. IN THE ABSENCE OF EXPRESS LANGUAGE CLEARLY AUTHORIZING THE INCLUSION OF PERIODS OF THAT CHARACTER, SUCH AN INTENTION MAY NOT BE IMPUTED TO THE CONGRESS. MOREOVER, IN VIEW OF THE LONG PERIOD OF TIME DURING WHICH THE RULE STATED ABOVE HAS BEEN IN EFFECT WITH REGARD TO ENLISTED MEN, IT MUST BE CONSIDERED THAT CONGRESS WAS COGNIZANT THEREOF, AND, IN ENACTING THE PROVISIONS CONTAINED IN SECTION 3 OF THE ACT OF DECEMBER 2, 1942, WITHOUT EXPRESSLY PROVIDING THAT SUCH SERVICE SHOULD BE COUNTED, INTENDED THAT THE ESTABLISHED RULE IN THAT RESPECT WOULD STILL APPLY. ACCORDINGLY, QUESTIONS (B) AND (C) ARE ANSWERED IN THE NEGATIVE.