B-40114, MAY 25, 1944, 23 COMP. GEN. 889

B-40114, MAY 25, 1944, 23 COMP. GEN. 889

PAY - LONGEVITY - CONTRACT SURGEONS CONTRACT SURGEONS SERVING FULL TIME, WHOSE PAY IS FIXED BY SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 AS THAT OF THE SECOND PERIOD, ARE NOT ENTITLED TO LONGEVITY INCREASES IN PAY FOR PRIOR MILITARY SERVICE AS AUTHORIZED FOR OFFICERS PAID UNDER THE PROVISIONS OF SAID SECTION. WHILE THE PAY READJUSTMENT ACT OF 1942, WHICH FIXES THE PAY OF CONTRACT SURGEONS SERVING FULL TIME AS THAT OF THE SECOND PERIOD, DID NOT CONTINUE, AS SUCH, THE SPECIFIC PROVISION IN THE ACT OF JUNE 10, 1922, FOR THE PAYMENT OF RENTAL AND SUBSISTENCE ALLOWANCES TO SUCH PERSONS, OTHERWISE PROPER PAYMENTS OF THE ALLOWANCES WILL NOT BE QUESTIONED IN THE AUDIT AND SETTLEMENT OF ACCOUNTS.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. R. B. CONNER, U.S. ARMY, MAY 25, 1944:

BY INDORSEMENT DATED FEBRUARY 5, 1944, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF DECEMBER 17, 1943, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF JOSEPH S. HART, CONTRACT SURGEON, U.S. ARMY, IN THE AMOUNT OF $2,037.07, REPRESENTING LONGEVITY INCREASE IN PAY AS A CONTRACT SURGEON, SERVING FULL TIME, FOR THE PERIOD OF OCTOBER 9, 1942, TO NOVEMBER 30, 1943, BASED ON OVER 30 YEARS OF PRIOR MILITARY SERVICE.

IN DECISION OF JULY 30, 1930, A-32297, CONSIDERING THE PROVISIONS OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 626, 627, IT WAS HELD THAT CONTRACT SURGEONS SERVING FULL TIME WERE NOT ENTITLED TO COUNT PRIOR SERVICE AS CONTRACT SURGEONS SERVING FULL TIME FOR LONGEVITY PAY PURPOSES, IT BEING STATED THAT SUCH CONTRACT SURGEONS WERE NOT ENTITLED TO LONGEVITY PAY IN ANY EVENT. THE PERTINENT PROVISIONS OF THE 1922 ACT WERE AS FOLLOWS:

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS * * *.

THE PROVISIONS OF THIS ACT SHALL APPLY EQUALLY TO THOSE PERSONS SERVING, NOT AS COMMISSIONED OFFICERS IN THE ARMY, OR IN THE OTHER SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT WHOSE PAY UNDER EXISTING LAW IS AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER OF ONE OF THE ABOVE GRADES, THOSE RECEIVING THE PAY OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT, BEING CLASSIFIED AS IN THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY. * * * CONTRACT SURGEONS SERVING FULL TIME SHALL HAVE THE PAY AND ALLOWANCES FOR SUBSISTENCE AND RENTAL AUTHORIZED FOR OFFICERS SERVING IN THEIR SECOND PAY PERIOD. * * * (ITALICS SUPPLIED).

THE DECISION REFERRED TO WAS BASED, INTER ALIA, ON THE FACT THAT SPECIFIC PROVISION HAVING BEEN MADE FOR THE PAY AND ALLOWANCES FOR RENTAL AND SUBSISTENCE FOR CONTRACT SURGEONS SERVING FULL TIME, SUCH PROVISION WAS EXCLUSIVE AND, SINCE LONGEVITY PAY WAS NOT EXPRESSLY AUTHORIZED FOR CONTRACT SURGEONS, THEY WERE NOT ENTITLED TO SUCH BENEFITS.

SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, PROVIDES, IN PART, THAT THE PAY OF THE SECOND PERIOD SHALL BE PAID, INTER ALIA, TO CONTRACT SURGEONS SERVING FULL TIME, AND FURTHER THAT EVERY OFFICER PAID UNDER THE PROVISIONS OF SUCH SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH 3 YEARS OF SERVICE UP TO 30 YEARS.

IT LONG HAS BEEN HELD THAT A CONTRACT SURGEON OF THE ARMY IS NOT AN OFFICER. BYRNES V. UNITED STATES, 26 C.1CLS. 302. HOWEVER, IT IS CONTENDED THAT THE FACT THAT DR. HART IS NOT AN OFFICER DOES NOT PRECLUDE HIM FROM RECEIVING LONGEVITY PAY IN VIEW OF THE PROVISIONS OF THE TWELFTH PARAGRAPH OF THE SAID SECTION 1 OF THE 1942 ACT, WHICH PROVIDES THAT---

THE PROVISIONS OF THIS ACT SHALL APPLY EQUALLY TO THOSE PERSONS SERVING, NOT AS COMMISSIONED OFFICERS IN THE ARMY OR IN THE OTHER SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT WHOSE PAY UNDER EXISTING LAW IS AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER OF ONE OF THE ABOVE GRADES, THOSE RECEIVING THE PAY OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT, BEING CLASSIFIED AS IN THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY.

THE EFFECT OF THE ABOVE-QUOTED PROVISION OF THE 1942 ACT IS TO MAKE ALL THE PROVISIONS OF SUCH ACT APPLICABLE TO THOSE PERSONS WHO ARE NOT COMMISSIONED OFFICERS BUT WHOSE PAY IS FIXED BY ASSIMILATION TO THE PAY OF COMMISSIONED OFFICERS. HOWEVER, THE PAY OF A CONTRACT SURGEON SERVING FULL TIME IS NOT FIXED BY ASSIMILATION, BUT IS FIXED, EXPRESSLY AS THE PAY OF THE SECOND PERIOD WHICH, UNDER THE ACT, IF $2,000 PER ANNUM. IT IS THE SAME AS THOUGH THE ACT HAD PROVIDED THAT CONTRACT SURGEONS, SERVING FULL TIME, WOULD BE ENTITLED TO PAY AT THE RATE OF $2,000 PER ANNUM. FURTHERMORE, IT IS SIGNIFICANT TO NOTE THAT, EXCEPT FOR OFFICERS WHO WERE IN THE SERVICE ON JUNE 30, 1922, SERVICE AS A CONTRACT SURGEON SERVING FULL TIME MAY NOT BE COUNTED FOR LONGEVITY PAY PURPOSES. SEE THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037. IT APPEARS OBVIOUS THAT THERE WAS NO PURPOSE TO PERMIT THE CREDITING OF PRIOR COMMISSIONED SERVICE AND THUS CREATE A SITUATION WHERE THEY COULD COUNT ALL KINDS OF SERVICE HAVING LITTLE OR NO RELATION TO THE DUTIES THEY ARE CURRENTLY PERFORMING TO THE EXCLUSION OF THEIR CONTRACT SURGEON SERVICE. THAT FACT ALONE WOULD TEND TO NEGATIVE THE IMPLICATION THAT CONGRESS INTENDED CONTRACT SURGEONS TO RECEIVE LONGEVITY PAY. PAYMENT ON THE VOUCHER SUBMITTED WITH YOUR LETTER IS NOT AUTHORIZED, THE VOUCHER IS BEING RETAINED IN THIS OFFICE.

THE QUESTION ARISES AS TO WHETHER CONTRACT SURGEONS SERVING FULL TIME NOW ARE ENTITLED TO RENTAL AND SUBSISTENCE ALLOWANCES SINCE THE SPECIFIC PROVISION THEREFOR CONTAINED IN THE 1922 PAY ACT WAS NOT CONTINUED, AS SUCH, IN THE 1942 PAY ACT. WHILE THE MATTER IS NOT ALTOGETHER FREE FROM DOUBT, VIEWING THE ACT AS A WHOLE AND THE EVIDENT PURPOSE AND INTENT SOUGHT TO BE ACCOMPLISHED BY TRANSPOSITION OF THE PAY AND ALLOWANCE PROVISION APPLICABLE TO CONTRACT SURGEONS AS CONTAINED IN THE 1922 PAY ACT TO THE "SECOND PAY PERIOD" PROVISION APPLICABLE GENERALLY TO OFFICERS CONTAINED IN THE PRESENT LAW, THE CONCLUSION APPEARS WARRANTED THAT PAYMENT OF RENTAL AND SUBSISTENCE ALLOWANCES TO SUCH CONTRACT SURGEONS IS NOT AFFECTED BY SUCH CHANGE IN LANGUAGE. ACCORDINGLY, OTHERWISE PROPER PAYMENTS OF RENTAL AND SUBSISTENCE ALLOWANCES TO CONTRACT SURGEONS WILL NOT BE QUESTIONED IN THE AUDIT AND SETTLEMENT OF ACCOUNTS.