B-136909, SEPTEMBER 16, 1958, 38 COMP. GEN. 211

B-136909, SEPTEMBER 16, 1958, 38 COMP. GEN. 211

MILITARY PERSONNEL - MEDICAL AND DENTAL OFFICERS - SPECIAL PAY - ONE YEAR SERVICE REQUIREMENT - EXTENSIONS MEDICAL AND DENTAL OFFICERS WHOSE ORDERS TO ACTIVE DUTY FOR PERIODS OF LESS THAN A YEAR ARE SUBSEQUENTLY AMENDED TO EXTEND THE ACTIVE DUTY PERIOD TO A TOTAL OF ONE YEAR OR MORE HAVE MET THE ONE-YEAR PRESCRIBED SERVICE REQUIREMENT IN SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 234, FOR ENTITLEMENT TO SPECIAL PAY FROM THE DATE THE AMENDED ORDERS INCREASE THE TOTAL ACTIVE DUTY TO MORE THAN ONE YEAR.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 16, 1958:

REFERENCE IS MADE TO LETTER DATED JULY 22, 1958, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON QUESTIONS STATED IN COMMITTEE ACTION NO. 211 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, CONCERNING THE DETERMINATION OF DATE OF ENTITLEMENT TO THE SPECIAL PAY FOR MEDICAL AND DENTAL OFFICERS PROVIDED BY SECTION 203 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 234 (A) AND (B), IN CASES OF RESERVE MEDICAL AND DENTAL OFFICERS WHEN FIRST ORDERED TO ACTIVE DUTY FOR PERIODS OF LESS THAN A YEAR SUBSEQUENT TO SEPTEMBER 1, 1947, BUT PRIOR TO JULY 1, 1959.

THE CIRCUMSTANCES UPON WHICH DECISION IS REQUESTED IN COMMITTEE ACTION NO. 211 ARE AS TO WHEN CREDIT FOR THE SPECIAL PAY MAY BE MADE FOR SUCH AN OFFICER IF (A) HIS ORDERS ARE FIRST AMENDED TO EXTEND HIS PERIOD OF ACTIVE DUTY TO BECOME 10 MONTHS; (B) HIS ORDERS ARE AMENDED A SECOND TIME TO EXTEND HIS ACTIVE DUTY TO BECOME 15 MONTHS; (C) HIS ORDERS ARE AMENDED A THIRD TIME TO EXTEND HIS PERIOD OF ACTIVE DUTY TO BECOME 30 MONTHS; AND (D) HIS ORDERS ARE FIRST AMENDED TO EXTEND HIS PERIOD OF ACTIVE DUTY TO BECOME 19 MONTHS. IT IS STATED THAT DOUBT IN THE MATTER EXISTS BECAUSE OF THE APPARENT CONFLICT BETWEEN OUR DECISION OF JANUARY 4, 1954, B-116996, INVOLVING THE RIGHT OF LIEUTENANT COLONEL GILBERTO S. PESQUERA, MC. USAR, TO THE SPECIAL PAY INCIDENT TO ACTIVE DUTY PERFORMED DURING THE PERIOD OCTOBER 22, 1941, TO JULY 31, 1953, AND THE DECISION OF THE U.S. COURT OF CLAIMS IN GILBERTO S. PESQUERA V. UNITED STATES, 133 C.1CLS. 899, CONCERNING THE SAME QUESTION.

IN OUR DECISION OF JANUARY 4, 1954, IT WAS HELD THAT THE PROVISIONS OF SECTION 203 OF THE 1949 ACT, AS AMENDED, 37 U.S.C. 234, IN PROVIDING SPECIAL PAY TO MEDICAL AND DENTAL RESERVE OFFICERS WHO DURING THE PERIOD SEPTEMBER 1, 1947, TO JUNE 30, 1953, ARE "CALLED OR ORDERED TO EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER," CONTEMPLATED THAT QUALIFICATION FOR THE SPECIAL PAY WOULD DEPEND UPON THE RESERVE OFFICER BEING ORDERED TO ACTIVE DUTY FOR AT LEAST ONE YEAR OR OTHERWISE BEING OBLIGATED PROSPECTIVELY TO SERVE ON ACTIVE DUTY FOR A PERIOD OF LESS THAN ONE YEAR WOULD NOT QUALIFY FOR THE PAY UPON EXTENSION OF THE PERIOD UNLESS HE THEN WAS REQUIRED TO SERVE ON ACTIVE DUTY FOR AT LEAST ONE YEAR FROM THE DATE OF ISSUANCE OF THE ORDER DIRECTING THE EXTENSION. CONSEQUENTLY, AUTHORITY TO PAY THE SPECIAL PAY ITEM TO COLONEL PESQUERA WAS DENIED FOR THE PERIOD IN QUESTION BECAUSE THE INITIAL ORDERS INVOLVED DIRECTED ACTIVE DUTY FOR A PERIOD OF BUT SIX MONTHS, AND NONE OF THE VARIOUS EXTENSIONS TO THE ACTIVE DUTY PERIOD EFFECTED BY SUBSEQUENTLY ISSUED ORDERS RESULTED IN AN OBLIGATION THAT THE OFFICER SERVE PROSPECTIVELY FOR AT LEAST A YEAR ON ACTIVE DUTY.

IN THE CITED COURT OF CLAIMS DECISION, RENDERED ON JANUARY 31, 1956, IT WAS HELD THAT THE REQUIREMENTS OF THE STATUTE WERE MET FOR THE PAYMENT OF THE SPECIAL PAY UPON THE ISSUANCE OF THE AMENDMENT THAT FIRST INCREASED THE ACTIVE DUTY PERIOD TO A TOTAL OF ONE YEAR OR MORE. CONSEQUENTLY COLONEL PESQUERA WAS HELD TO BE ENTITLED TO THE SPECIAL PAY COMMENCING JUNE 10, 1952, THE DATE OF THE SECOND AMENDMENT TO HIS BASIC ORDERS OF OCTOBER 12, 1951, SUCH AMENDMENT FIRST INCREASING THE TOTAL ACTIVE DUTY DIRECTED TO MORE THAN ONE YEAR.

WE WERE OF THE OPINION, IN RENDERING THE DECISION OF JANUARY 4, 1954, THAT THE CITED PROVISIONS OF SECTION 203 OF THE 1949 ACT, AS AMENDED, HAD AS THEIR PURPOSE THE OFFERING OF AN INCENTIVE PAY AS INDUCEMENT TO THE RESERVE OFFICERS TO OBLIGATE THEIR SERVICES IN ADVANCE FOR AT LEAST THE PRESCRIBED ONE-YEAR PERIOD AS A MEANS OF INSURING AN ADEQUATE OPERATIONAL FORCE OF MEDICAL AND DENTAL OFFICERS. WE DO NOT FEEL, HOWEVER, THAT THE CONCLUSION OF THE COURT OF CLAIMS IN ITS DECISION OF JANUARY 31, 1956, WAS WITHOUT SOME LEGAL BASIS IN THE MATTER. CONSEQUENTLY, WE WILL NOT OBJECT TO OTHERWISE PROPER PAYMENTS ON THE BASIS OF THE RULE SET FORTH BY THE COURT IN THAT CASE, AND WE WILL FOLLOW SUCH RULE HEREAFTER IN THE AUDIT OF MILITARY PAY ACCOUNTS.

WITH RESPECT TO THE SPECIFIC QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 211, THEREFORE, YOU ARE ADVISED THAT THE MEDICAL OR DENTAL OFFICER FIRST ORDERED TO ACTIVE DUTY FOR LESS THAN A YEAR IN THE EXAMPLE GIVEN WOULD NOT BE ENTITLED TO CREDIT FOR SPECIAL PAY UNDER THE BASIC ORDERS AS FIRST AMENDED TO EXTEND THE ACTIVE DUTY PERIOD TO 10 MONTHS. HE WOULD BE ENTITLED TO CREDIT, HOWEVER, FROM THE DATE OF ISSUANCE OF THE SECOND AMENDING ORDERS EXTENDING THE ACTIVE DUTY PERIOD TO 15 MONTHS, CONTINUING THROUGH THE PERIOD OF ACTIVE DUTY FURTHER EXTENDED BY THE THIRD AMENDING ORDERS; AND HAD HIS ORDERS BEEN FIRST AMENDED TO EXTEND THE PERIOD OF ACTIVE DUTY TO BECOME 19 MONTHS, HE THEN WOULD BE ENTITLED TO THE CREDIT FROM THE DATE OF ISSUANCE OF SUCH FIRST AMENDMENT.