B-134200, JANUARY 3, 1958, 37 COMP. GEN. 455

B-134200, JANUARY 3, 1958, 37 COMP. GEN. 455

MILITARY PERSONNEL - SERVICE CREDITS - METHOD OF COMPUTATION - THIRTY/DAY/MONTH FORMULA V. DAY-FOR-DAY BASIS IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES WHEN TIME LOST HAS BEEN MADE UP TO COMPLETE ENLISTMENT CONTRACTS PURSUANT TO 10 U.S.C. 629A, THE TIME SHOULD BE ACCOUNTED FOR ON A DAY-FOR-DAY BASIS IN THOSE CASES WHERE THE THIRTY/DAY/MONTH METHOD WOULD NOT BE TO THE MEMBER'S ADVANTAGE BY VIRTUE OF SERVICE IN MONTHS WITH LESS OR MORE THAN THIRTY DAYS.

TO THE SECRETARY OF DEFENSE, JANUARY 3, 1958:

FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 23, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON THE FOLLOWING QUESTION, WHICH IS STATED AND DISCUSSED IN COMMITTEE ACTION NO. 194 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE:

WHAT IS THE PROPER METHOD OF COMPUTATION OF SERVICE FOR LONGEVITY PAY PURPOSES WHEN TIME LOST HAS BEEN MADE UP TO COMPLETE ENLISTMENT CONTRACTS AND EITHER THE TIME LOST OR THE TIME MADE GOOD INCLUDES THE 31ST OF A MONTH OR THE 28TH OR 29TH OF FEBRUARY?

UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JULY 24, 1956, 70 STAT. 631, 10 U.S.C. 629A, AN ENLISTED MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, IS LIABLE, AFTER HIS RETURN TO FULL DUTY, TO SERVICE FOR A PERIOD WHICH, WHEN ADDED TO THE PERIOD THAT HE SERVED BEFORE HIS ABSENCE FROM DUTY, AMOUNTS TO THE TERM FOR WHICH HE WAS ENLISTED OR INDUCTED. SECTION 1 OF THE ACT PRESCRIBES THE CONDITIONS UNDER WHICH A MEMBER IS REQUIRED TO MAKE GOOD LOST TIME, AS FOLLOWS:

(1) DESERTS;

(2) IS ABSENT FROM HIS ORGANIZATION, STATION, OR DUTY FOR MORE THAN ONE DAY WITHOUT PROPER AUTHORITY, AS DETERMINED BY COMPETENT AUTHORITY;

(3) IS CONFINED FOR MORE THAN ONE DAY WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE, AND WHOSE CONVICTION HAS BECOME FINAL;

(4) IS CONFINED FOR MORE THAN ONE DAY UNDER A SENTENCE WHICH HAS BECOME FINAL; OR

(5) IS UNABLE FOR MORE THAN ONE DAY, AS DETERMINED BY COMPETENT AUTHORITY, TO PERFORM HIS DUTIES BECAUSE OF INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR, OR BECAUSE OF DISEASE OR INJURY RESULTING FROM HIS MISCONDUCT.

PRIOR TO THE ACT OF JULY 24, 1956, SIMILAR STATUTORY AUTHORITY, PERTAINING TO THE ARMY, WAS CONTAINED IN SECTION 1 ( ARTICLE 107), OF THE ACT OF JUNE 4, 1920, 41 STAT. 809, AS AMENDED BY SECTION 6 (A) OF THE ACT OF MAY 5, 1950, 10 U.S.C. 629. THE NAVY AND MARINE CORPS WERE GOVERNED BY THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, AS AMENDED, 34 U.S.C. 183, AND THE ACT OF MAY 21, 1928, 34 U.S.C. 183A. THOSE STATUTES WERE EXPRESSLY REPEALED BY SECTION 2 OF THE ABOVE ACT OF JULY 24, 1956, PUBLIC LAW 780, 70 STAT. 631.

IT IS POINTED OUT IN COMMITTEE ACTION NO. 194 THAT CREDITABLE SERVICE FOR BASIC PAY PURPOSES GENERALLY IS COMPUTED ON A 30-DAY-MONTH BASIS IN ACCORDANCE WITH THE ACT OF JUNE 30, 1906, PUBLIC LAW 383, AS AMENDED BY THE ACT OF JUNE 30, 1945, 5 U.S.C. 84. THAT ACT PROVIDES THAT FOR THE PURPOSE OF COMPUTING COMPENSATION AND 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 30 DAYS, THUS EXCLUDING THE 31ST DAY OF ANY CALENDAR MONTH FROM THE COMPUTATION (EXCEPT IN THE CASE OF UNAUTHORIZED ABSENCE ON THAT DAY ALONE) AND TREATING FEBRUARY AS IF IT ACTUALLY HAD 30 DAYS.

IT IS STATED IN COMMITTEE ACTION NO. 194, THAT IT IS IN THE PARTICULAR AREA OF TIME LOST UNDER THE ACT OF JULY 24, 1956 ( PUBLIC LAW 780), THAT DIFFICULTIES ARISE IN THE COMPUTATION OF CREDITABLE SERVICE FOR LONGEVITY PURPOSES. THERE ARE CITED DECISIONS OF MAY 7, 1932, A-41619, AND AUGUST 9, 1934, A-56806, 14 COMP. GEN. 111, TO THE THEN SECRETARY OF THE NAVY. IN CONSIDERING A-41619, DATED MAY 7, 1932, THERE IS FOR NOTING THAT THE QUESTION SUBMITTED INVOLVED PROPOSED CHANGES IN THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL WITH RESPECT TO "COMPUTATIONS OF LONGEVITY SERVICE" OF ENLISTED MEN. IN APPROVING THE PROPOSED CHANGES, THE DECISION APPLIED THE RULE FOR COUNTING LONGEVITY IN ACCORDANCE WITH SECTION 6 OF THE ACT OF JUNE 30, 1906, 5 U.S.C. 84, FOR COMPUTING PAY GENERALLY, UNDER WHICH EACH AND EVERY MONTH IS CONSIDERED TO CONSIST OF 30 DAYS, ETC.

THE 30-DAY-MONTH METHOD OF COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES WHEN TIME LIST IS MADE GOOD ON A DAY-FOR-DAY BASIS IS ILLUSTRATED IN THE EXAMPLES SET FORTH IN COMMITTEE ACTION NO. 194, WITH A DIFFERENT RESULT IN EACH EXAMPLE, DEPENDING UPON THE TIME OF THE YEAR INVOLVED, AS FOLLOWS:

A. MEMBER ENLISTED 26 OCTOBER 1951 FOR FOUR YEARS AND WAS AWOL 31 DAYS FROM 3 FEBRUARY TO INCLUDE 5 MARCH 1953. IN ACCORDANCE WITH PUBLIC LAW 780, 84TH CONGRESS, THE MEMBER MAY BE REQUIRED TO MAKE UP 31 DAYS IN ORDER TO COMPLETE HIS TERM OF ENLISTMENT. FURTHER, IN MAKING UP TIME AT THE END OF HIS ENLISTMENT, HE WOULD BE CREDITED WITH HAVING MADE UP 6 DAYS FROM 26 -31 OCTOBER 1955 AND 25 DAYS IN NOVEMBER 1955, A TOTAL OF 31 DAYS. DATE OF DISCHARGE WOULD BE 25 NOVEMBER 1955. FOR PAY PURPOSES HE WOULD BE CHARGED FOR 33 DAYS, AND CREDITABLE SERVICE WOULD BE COMPUTED AS FOLLOWS:

1955-11-25

1951-10-26

4- 1- 10 LESS AWOL 1- 3

3-11-27 CREDITABLE SERVICE ON DATE OF DISCHARGE.

B. MEMBER ENLISTED 24 FEBRUARY 1951 FOR FOUR YEARS AND WAS AWOL 28 JULY TO INCLUDE 3 SEPTEMBER 1954, A TOTAL OF 38 DAYS. MEMBER WOULD BE REQUIRED TO MAKE UP 38 DAYS IN ORDER TO COMPLETE TERM OF ENLISTMENT, AND DATE OF DISCHARGE WOULD BE 2 APRIL 1955. FOR PAY PURPOSES HE WOULD BE CHARGED WITH 36 DAYS AND CREDITABLE SERVICE WOULD BE COMPUTED AS FOLLOWS:

1955-4- 2

1951-2-24

4-1- 9 LESS AWOL 1- 6

4-0- 3 CREDITABLE SERVICE ON DATE OF DISCHARGE.

SINCE THE UNIT OF LOST SERVICE TO BE MADE GOOD IS A DAY, IT HAS BEEN HELD THAT, FOR THE PURPOSE OF COMPLETING AN ENLISTMENT UNDER STATUTES REQUIRING OR PERMITTING MAKING UP THE TIME LOST, THE TIME LOST AND TIME MADE GOOD SHOULD BE COMPUTED ON AN ACTUAL DAY-FOR-DAY BASIS, SERVICE ON THE 31ST DAY OF THE MONTH BEING REGARDED AS MUCH A DAY OF SERVICE AS ANY OTHER DAY FOR THAT PURPOSE. THE 1906 ACT IS CONCERNED WITH THE METHOD OF COMPUTING TIME FOR SERVICE IN CONNECTION WITH COMPENSATION AND NOT FOR SERVICE IN CONNECTION WITH MAKING UP LOST TIME AND, HENCE, IS INAPPLICABLE IN DETERMINING WHEN AN ENLISTMENT IS COMPLETED. SEE SECTION 465 (5), DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-1940, AND A- 20756, JANUARY 18, 1928.

IN DECISION OF AUGUST 9, 1934, A-56806, 14 COMP. GEN. 111, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN OF THE MARINE CORPS WHO ENLISTED ON JULY 13, 1925, FOR 4 YEARS, LOST TIME FOR THE PERIOD FEBRUARY 1 TO 28, 1926, AND WAS HELD IN THE SERVICE TO MAKE GOOD THE TIME LOST FOR 28 DAYS FROM JULY 13, TO AUGUST 9, 1929, ON WHICH DATE HE WAS DISCHARGED. IN THAT DECISION IT WAS HELD THAT "WHEN TIME LOST IN AN ENLISTMENT * * * IS MADE GOOD DAY BY DAY THE MAN IS ENTITLED TO INCREASED PAY FOR LENGTH OF SERVICE OF THE ENLISTMENT, SO COMPLETED, AS IF NO TIME HAD BEEN LOST.'

IF A MEMBER IS HELD IN THE SERVICE TO MAKE GOOD TIME LOST AND COMPLETES HIS ENLISTMENT ON A DAY-FOR-DAY BASIS, THEREFORE, HE MAY BE REGARDED AS HAVING COMPLETED HIS ENLISTMENT FOR PAY PURPOSES AND HIS LENGTH OF SERVICE MAY BE COMPUTED ACCORDINGLY. ON THAT BASIS, IN EXAMPLE A, QUOTED ABOVE, THE MEMBER MAY BE CREDITED WITH 4 YEARS' SERVICE FOR PAY PURPOSES. EACH OF THE ABOVE EXAMPLES THE MEMBER SERVED FOR 4 YEARS (1461 DAYS). EXAMPLE A, THE MEMBER IS ENTITLED TO CREDIT FOR THE 1461 DAYS (4 YEARS) HE SERVED. ALTHOUGH THE MEMBER IN EXAMPLE B SERVED FOR THE SAME NUMBER (1461) OF DAYS, HE WOULD BE CREDITED WITH 4 YEARS AND 3 DAYS OF SERVICE UNDER THE 30-DAY-MONTH METHOD OF COMPUTING LENGTH OF SERVICE. SINCE THAT METHOD OF COMPUTING LENGTH OF SERVICE IS CLEARLY AUTHORIZED BY THE 1906 ACT, THE FACT THAT SUCH MEMBER WOULD BE CREDITED WITH 3 DAYS MORE SERVICE THAN THE MEMBER IN EXAMPLE A WOULD NOT MAKE THE CREDIT FOR SUCH 3 DAYS OF SERVICE LEGALLY OBJECTIONABLE.

ACCORDINGLY, IT IS OUR VIEW THAT IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, THE TIME LOST OR THE TIME MADE GOOD UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1956, SHOULD BE COMPUTED ON A DAY-FOR-DAY BASIS IN THOSE CASES WHERE IT WOULD NOT BE TO THE MEMBER'S ADVANTAGE TO COMPUTE THE TERM OF HIS SERVICE ON THE 30-DAY-MONTH BASIS.