B-79776, MAY 4, 1949

B-79776, MAY 4, 1949

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL R. K. LEWIS, F.D., U.S. ARMY:

THERE HAS BEEN RECEIVED BY INDORSEMENT FORM THE CHIEF OF FINANCE, DATED AUGUST 27, 1948, YOUR LETTER OF APRIL 16, 1948, WITH ACCOMPANYING INDORSEMENTS, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN KATER DONELSON, MEDICAL CORPS, ARMY OF THE UNITED STATES, COVERING HIS CLAIM FOR PAYMENT OF ADDITIONAL PAY OF $100 PER MONTH FOR THE PERIOD FEBRUARY 24, 1948, TO APRIL 14, 1948, UNDER THE PROVISIONS OF SECTION 1A OR THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ARMY-NAVY PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, 61 STAT. 776.

THE STATUTORY PROVISION IN QUESTION READS IN PERTINENT PART, AS FOLLOWS:

"SEC. 1A. (A) THE TERM 'COMMISSIONED OFFICER' AS USED IN THIS SECTION SHALL BE INTERPRETED TO MEAN ONLY *** (3) SUCH OFFICERS, NOW OR HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE OFFICERS' RESERVE CORPS, THE NAVAL RESERVE, THE NATIONAL GUARD, THE ARMY OF THE UNITED STATES, OR AS MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, WHO MAY, DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION, VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER ***.

"(B) IN ADDITION TO ANY PAY, ALLOWANCES, OR EMOLUMENTS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED TO PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE FOLLOWING THE DATE OF ENACTMENT OF THIS SECTION: PROVIDED, THAT SUCH SUM SHALL NOT BE INCLUDED IN COMPUTING THE AMOUNT OF INCREASE IN PAY AUTHORIZED BY ANY OTHER PROVISION OF LAW OR IN COMPUTING RETIRED PAY: PROVIDED FURTHER, THAT THE TOTAL AMOUNT WHICH MAY BE PAID TO ANY ONE OFFICER UNDER THE AUTHORITY CONTAINED IN THIS SECTION SHALL NOT EXCEED $36,000: AND PROVIDED FURTHER, THAT THE COMMISSIONED OFFICERS DESCRIBED IN SUBSECTION (A)(3) OF THIS SECTION SHALL RECEIVE THE PAY PROVIDED BY THIS SUBSECTION ONLY DURING PERIODS OF VOLUNTEER SERVICE."

IT APPEARS THAT CAPTAIN DONELSON ENTERED ON ACTIVE DUTY AS AN OFFICER IN THE MEDICAL CORPS, ARMY OF THE UNITED STATES, ON APRIL 15, 1946. IT IS INDICATED THAT HE WAS A GRADUATE UNDER THE ARMY SPECIALIZED TRAINING PROGRAM AND, AS SUCH, HE WAS, BY ADMINISTRATIVE REGULATION, OBLIGATED TO SERVE ON ACTIVE DUTY FOR A PERIOD OF TWO YEARS FROM APRIL 15, 1946, THAT IS, UNTIL APRIL 14, 1948. HOWEVER, BY SUBSEQUENT ADMINISTRATIVE REGULATION (WCL 41027 OF NOVEMBER 26, 1947), OFFICERS IN HIS STATUS APPARENTLY WERE AUTHORIZED TO BE RELEASED FROM ACTIVE DUTY, AT THEIR REQUEST, IN ADVANCE OF THE EXPIRATION OF THE TWO YEAR PERIOD, THE NORMAL DATE OF ELIGIBILITY FOR RELEASE FROM ACTIVE DUTY BEING ADVANCED BY THE NUMBER OF DAYS OF UNUSED ACCRUED LEAVE STANDING TO THEIR CREDIT. UNDER THIS LATTER REGULATION, CAPTAIN DONELSON IS STATED TO HAVE BEEN ELIGIBLE FOR RELEASE FROM ACTIVE DUTY ON FEBRUARY 24, 1948, BUT INSTEAD OF REQUESTING HIS RELEASE, HE VOLUNTEERED FOR EXTENDED ACTIVE DUTY, PRESUMABLY FOR ONE YEAR OR LONGER, BEGINNING ON THAT DATE.

IT IS CLEAR, OF COURSE, THAT UNDER THE PROVISIONS OF SECTION 1A OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, PAYMENT OF THE ADDITIONAL PAY OF $100 PER MONTH MAY NOT BE MADE TO ANY OF THE OFFICERS REFERRED TO IN CATEGORY (3) OF SUCH SECTION, WHO ARE NOT VOLUNTARILY SERVING ON ACTIVE DUTY, AND THE DOUBT AS TO THE LEGALITY OF SUCH PAYMENT FOR THE PERIOD INVOLVED IN THIS CASE APPEARS TO ARISE FROM THE FACT THAT THE OFFICER ORIGINALLY WAS OBLIGATED TO SERVE ON ACTIVE DUTY UNTIL APRIL 14, 1948. HOWEVER, SUCH OBLIGATION WAS NOT IMPOSED BY ANY EXPRESS PROVISION OF LAW BUT WAS IMPOSED BY ADMINISTRATIVE REGULATION, AND IT WOULD APPEAR TO BE ENTIRELY COMPETENT FOR THE DEPARTMENT OF THE ARMY TO CHANGE OR MODIFY SUCH REGULATION AT ANY TIME. HENCE, IN AN OTHERWISE PROPER CASE, THERE WOULD BE NO PROHIBITION AGAINST THE PAYMENT OF THE ADDITIONAL PAY OF $100 PER MONTH BEGINNING WITH THE DAY FOLLOWING THE DAY THE PARTICULAR OFFICER MAY BE ELIGIBLE FOR RELEASE FROM ACTIVE DUTY, EVEN THOUGH SUCH OFFICER ORIGINALLY MAY HAVE BEEN ADMINISTRATIVELY OBLIGATED TO SERVE AN ACTIVE DUTY FOR A PERIOD BEYOND THAT DATE.

ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, AND YOU ARE ADVISED THAT PAYMENT THEREON, IF OTHERWISE CORRECT, IS AUTHORIZED.