B-64409, MAY 15, 1947, 26 COMP. GEN. 875

B-64409, MAY 15, 1947, 26 COMP. GEN. 875

PAY - ACTIVE DUTY - THIRTY-FIRST DAY OF MONTH - INTERMITTENT ACTIVE DUTY A NAVAL RESERVE OFFICER WHO, UNDER PROPER ORDERS, PERFORMED INTERMITTENT ACTIVE DUTY FOR 1 OR 2 DAYS PER WEEK FOR A TOTAL OF 40 DAYS' ACTIVE DUTY DURING A 4 1/2-MONTH PERIOD, BUT NOT MORE THAN 11 DAYS DURING ANY 1 MONTH, IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FOR THE 31ST DAY OF A MONTH IN VIEW OF THE PROVISION IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, EXEMPTING MEMBERS OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY FOR A PERIOD OF LESS THAN 30 DAYS FROM THE RESTRICTION AGAINST THE PAYMENT OF COMPENSATION FOR THE 31ST DAY OF A MONTH PRESCRIBED BY SECTION 6 OF THE ACT OF JUNE 6, 1906, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 15, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 28, 1947, REQUESTING DECISION ON THE FOLLOWING QUESTIONS BASED ON CIRCUMSTANCES STATED IN AN ENCLOSED LETTER DATED DECEMBER 5, 1946, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS:

(1) IS COMMANDER PAVIAN ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR MAY 31, 1946, AND AUGUST 31, 1946, UNDER THE CONDITIONS STATED IN THE ENCLOSURE?

(2) WOULD ACTIVE DUTY PAY AND ALLOWANCES HAVE BEEN PAYABLE FOR MAY 31, 1946, AND AUGUST 31, 1946, IF COMMANDER PAVIAN HAD PERFORMED INTERMITTENT ACTIVE DUTY TOTALING 29 DAYS OR LESS DURING THE PERIOD MAY 21, 1946, TO SEPTEMBER 16, 1946?

(3) IS THE APPROPRIATION " PAY AND SUBSISTENCE OF NAVAL PERSONNEL" AS PROVIDED IN THE ANNUAL NAVAL APPROPRIATION ACTS FOR THE FISCAL YEARS 1946 AND 1947 PROPERLY CHARGEABLE WITH THE AMOUNT DUE COMMANDER PAVIAN AS ACTIVE DUTY PAY AND ALLOWANCES, EVEN THOUGH SUCH ACTIVE DUTY WAS DENOMINATED "INTERMITTENT ACTIVE DUTY" AND WAS PERFORMED PRIMARILY ON SATURDAYS AND SUNDAYS SO AS TO AVOID INTERFERENCE WITH HIS CIVILIAN OCCUPATION WHICH HE HAD RESUMED AFTER HIS RELEASE FROM CONTINUOUS ACTIVE DUTY?

THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IS AS FOLLOWS:

1.THE SUBJECT NAMED OFFICER, BY ORIGINAL OF THE ENCLOSURE, WAS DIRECTED TO REPORT TO THE COMMANDING OFFICER, NAVAL TORPEDO STATION, NEWPORT, RHODE ISLAND FOR INTERMITTENT ACTIVE DUTY FOR APPROXIMATELY ONE OR TWO DAYS PER WEEK IN CONNECTION WITH WIND TUNNEL AND TORPEDO MOTION AND CONTROL RESEARCH AS DIRECTED BY SUCH COMMANDING OFFICER. THE DATE FIXED FOR THE COMPLETION OF SUCH INTERMITTENT ACTIVE DUTY WAS 1 SEPTEMBER 1946, BUT WAS SUBSEQUENTLY EXTENDED TO 16 SEPTEMBER 1946 BY BUREAU OF NAVAL PERSONNEL DESPATCH ORDERS OF 30 AUGUST 1946. THIS OFFICER WAS FOUND PHYSICALLY QUALIFIED ON 21 MAY 1946, FOR PERFORMANCE OF ACTIVE DUTY AND, ACCORDING TO INFORMATION ON ENDORSEMENT 1 DATED 16 SEPTEMBER 1946, HE PERFORMED INTERMITTENT ACTIVE DUTY, PRIMARILY ON SATURDAYS AND SUNDAYS, TOTALING 40 DAYS DURING THE PERIOD 21 MAY TO 16 SEPTEMBER 1946. UPON COMPLETION OF SUCH INTERMITTENT ACTIVE DUTY COMMANDER PAVIAN REQUESTED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES FOR THE DAYS EMPLOYED ON INTERMITTENT ACTIVE DUTY AND FILED SANDA FORM 531 CLAIMING INCREASED RENTAL AND SUBSISTENCE FOR DEPENDENTS FOR THE DAYS ENUMERATED IN ENDORSEMENT 2 OF THE ENCLOSURE. DURING THE PERIOD 21 MAY TO 7 AUGUST 1946 COMMANDER PAVIAN WAS ENTITLED TO PAY AND ALLOWANCES PRESCRIBED FOR A COMMANDER WITH OVER 6 YEARS SERVICE, AND FROM 8 AUGUST TO 16 SEPTEMBER 1946, HE WAS ENTITLED TO PAY AND ALLOWANCES OF A COMMANDER WITH OVER 9 YEARS SERVICE.

ORDERS WERE ISSUED TO COMMANDER PAVIAN UNDER DATE OF MAY 1, 1946, IN PART, AS FOLLOWS:

3. IF FOUND PHYSICALLY QUALIFIED, YOU WILL REPORT TO THE COMMANDING OFFICER NAVAL TORPEDO STATION, FOR INTERMITTENT ACTIVE DUTY FOR APPROXIMATELY ONE OR TWO DAYS PER WEEK IN CONNECTION WITH WIND TUNNEL AND TORPEDO MOTION AND CONTROL RESEARCH AS DIRECTED BY THE COMMANDING OFFICER, NAVAL TORPEDO STATION, NEWPORT, R.I. FROM AN ENDORSEMENT ON SUCH ORDERS IT APPEARS THAT COMMANDER PAVIAN PERFORMED ACTIVE DUTY DURING THE PERIOD MAY 21 TO SEPTEMBER 16, 1946, AS FOLLOWS:

TOTAL DAYS MAY 21, 22, 23, 24, 31 -------------------------------- 5 JUNE 1, 2, 8, 9, 15, 22, 23, 29, 30 ------------------- JULY 13, 14, 20, 21, 27, 28 ---- ----------------------- 6 AUGUST 2, 3, 4, 10, 14, 20, 21, 27, 28 --- ------------ 11 SEPT. 4, 5, 6, 7, 8, 13, 14, 15, 16 --------------- - -- 9

TOTAL DAYS ON DUTY ---------------------------- 40

SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, AS AMENDED BY SECTION 604C OF THE ACT OF JUNE 30, 1945, 59 STAT. 303, 5 U.S.C., SUPP. V, 84, PROVIDES AS FOLLOWS:

WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED STATES (EXCEPT PERSONS WHOSE COMPENSATION IS COMPUTED IN ACCORDANCE WITH SECTION 944 OF THIS TITLE) IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE STABLISHED: ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE-THIRTIETH OF ONE OF SUCH INSTALLMENTS, OR OF A MONTHLY COMPENSATION, SHALL BE THE DAILY RATE OF PAY. FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF THIRTY DAYS, WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD THIRTY DAYS. ANY SUCH PERSON ENTERING THE SERVICE OF THE UNITED STATES DURING A THIRTY-ONE DAY MONTH AND SERVING UNTIL THE END THEREOF SHALL BE ENTITLED TO PAY FOR THAT MONTH FROM THE DATE OF ENTRY TO THE 30TH DAY OF SAID MONTH, BOTH DAYS INCLUSIVE; AND ANY PERSON ENTERING SAID SERVICE DURING THE MONTH OF FEBRUARY AND SERVING UNTIL THE END THEREOF SHALL BE ENTITLED TO ONE MONTH'S PAY, LESS AS MANY THIRTIETHS THEREOF AS THERE WERE DAYS ELAPSED PRIOR TO DATE OF ENTRY: PROVIDED, THAT FOR ONE DAY'S UNAUTHORIZED ABSENCE ON THE 31ST DAY OF ANY CALENDAR MONTH ONE DAY'S PAY SHALL BE FORFEITED.

THE PROVISION IN SECTION 7 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1176, QUOTED IN THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES ACCOUNTS, AUTHORIZING PAYMENT FOR THE 31ST DAY OF A MONTH TO OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY "FOR A PERIOD OF LESS THAN 30 DAYS," IS A REENACTMENT OF A SIMILAR PROVISION IN THE ACT OF SEPTEMBER 14, 1922, 42 STAT. 841, AS AMENDED BY THE ACT OF MAY 11, 1926, 44 STAT. 531, WHICH AUTHORIZES PAYMENT FOR THE 31ST DAY OF A MONTH TO OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD AND RESERVES OF THE ARMY WHEN ON ACTIVE DUTY OR WHEN ENTITLED TO FEDERAL PAY "FOR A CONTINUOUS PERIOD OF LESS THAN ONE MONTH.' THE OBVIOUS PURPOSE OF SUCH PROVISIONS IN THE NAVAL RESERVE ACT AND THE ARMY ACT OF SEPTEMBER 14, 1922, AS AMENDED, WAS TO EXEMPT SUCH PERSONNEL FROM THE RESTRICTION AGAINST THE PAYMENT OF COMPENSATION FOR THE 31ST DAY OF A MONTH PRESCRIBED IN THE ACT OF JUNE 30, 1906, SUPRA, WHEN ON ACTIVE DUTY FOR A PERIOD NOT IN EXCESS OF THAT PRESCRIBED IN THE SAID ACTS.

IN THE APPLICATION OF SUCH PROVISIONS IT HAS BEEN CONSIDERED THAT AN OFFICER OR ENLISTED MAN WHO PERFORMS ACTIVE DUTY OR TRAINING DUTY FOR COMBINED PERIODS IN EXCESS OF THAT PRESCRIBED IN THE SAID ACTS IS NOT ENTITLED TO PAYMENT FOR THE 31ST DAY OF A MONTH UNDER CIRCUMSTANCES WHERE THERE WAS NO BREAK IN THE CONTINUITY OF SUCH DUTY, EVEN THOUGH THE DUTY WAS NOT ALL OF THE SAME CHARACTER AND MAY HAVE BEEN DIRECTED UNDER SEPARATE ORDERS. SEE 5 COMP. GEN. 309; ID. 581; A-17624, OCTOBER 9, 1928; B-16723, JUNE 3, 1941.

IN THE PRESENT CASE, HOWEVER, THE OFFICER WAS DIRECTED BY ORDERS DATED MAY 1, 1946, TO PERFORM ,INTERMITTENT" ACTIVE DUTY FOR 1 OR 2 DAYS PER WEEK AS DIRECTED BY THE COMMANDING OFFICER, NAVAL TORPEDO STATION, NEWPORT, RHODE ISLAND, AND ALTHOUGH THE OFFICER ACTUALLY PERFORMED 40 DAYS' ACTIVE DUTY DURING A 4 1/2-MONTH PERIOD, HE DID NOT PERFORM IN EXCESS OF 11 DAYS' ACTIVE DUTY DURING ANY ONE MONTH. THUS, IT WOULD APPEAR THAT THE ORDERS OF MAY 1, 1946, CONTEMPLATED THAT FURTHER ORDERS--- EITHER WRITTEN OR ORAL--- WOULD BE ISSUED FROM TIME TO TIME DIRECTING THE OFFICER TO REPORT FOR ACTIVE DUTY ON SPECIFIED DAYS EACH WEEK OR INTERMITTENTLY AND, IN EFFECT, RELEASING HIM FROM ACTIVE DUTY UPON COMPLETION OF EACH SUCH ASSIGNMENT; PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO BE MADE FOR EACH DAY HE ACTUALLY PERFORMED ACTIVE DUTY. THAT RESPECT COMMANDER PAVIAN'S EMPLOYMENT ON SUCH "INTERMITTENT" ACTIVE DUTY WAS SUBSTANTIALLY SIMILAR TO THAT OF CIVILIAN EMPLOYEES COMPENSATED ON SUCH BASIS ARE ENTITLED TO COMPENSATION FOR WORK ON SUNDAYS, HOLIDAYS AND THE 31ST DAY OF A MONTH. SEE 23 COMP. GEN. 13, 15. ACCORDINGLY, UNDER THE CIRCUMSTANCES HERE INVOLVED, QUESTION NUMBERS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE.

THE ACTS OF MAY 29, 1945, 59 STAT. 201, 207, AND JULY 8, 1946, 60 STAT. 481, 486, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1946, AND JUNE 30, 1947, RESPECTIVELY, UNDER THE HEADING "1PAY AND SUBSISTENCE OF NAVAL PERSONNEL" PROVIDE AS FOLLOWS:

FOR PAY AND ALLOWANCES AND SUBSISTENCE PRESCRIBED BY LAW FOR NAVAL PERSONNEL, INCLUDING RESERVES ON ACTIVE DUTY * * *

THE APPROPRIATIONS, SUPRA, ARE AVAILABLE FOR THE PAY AND ALLOWANCES OF RESERVE OFFICERS ON ACTIVE DUTY, AND THE FACT THAT COMMANDER PAVIAN, A RESERVE OFFICER, SERVED ON "INTERMITTENT" ACTIVE DUTY IS IMMATERIAL INSOFAR AS CONCERNS THE QUESTION OF THE APPROPRIATION PROPERLY CHARGEABLE WITH THE PAY AND ALLOWANCES TO WHICH HE OTHERWISE IS ENTITLED. THEREFORE, QUESTION (3) LIKEWISE IS ANSWERED IN THE AFFIRMATIVE, IT BEING ASSUMED THAT DURING THE PERIOD IN QUESTION THE OFFICER WAS NOT A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND THAT NO QUESTION ON THAT SCORE IS INVOLVED. SEE 20 COMP. GEN. 282, AND DECISION OF MARCH 13, 1947, B-63737, 26 COMP. GEN. 674.