B-125760, FEBRUARY 1, 1956, 35 COMP. GEN. 439

B-125760, FEBRUARY 1, 1956, 35 COMP. GEN. 439

RIGHTS, PAY AND BENEFITS - ENLISTED TRAINEES - RESERVE FORCES ACT OF 1955 AN ENLISTED TRAINEE WHO IS PERFORMING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER SECTION 262 OF THE RESERVE FORCES ACT OF 1955 IS PRECLUDED BY SECTION 262 (D) FROM RECEIVING THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946, INCLUDING LUMP-SUM PAYMENT FOR UNUSED ACCRUED LEAVE ON COMPLETION OF THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING AND RELEASE THEREFROM. AN ENLISTED TRAINEE WHO IS PERFORMING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER SECTION 262 (C) (1) OF THE RESERVE FORCES ACT OF 1955 IS ENTITLED TO ACTIVE DUTY TRAINING PAY PRESCRIBED IN SECTION 262 (D) FOR SHORT PERIODS OF AUTHORIZED LEAVE WHEN THE MEMBER IS ADMINISTRATIVELY EXCUSED FOR EMERGENCY OR OTHER REASONS DURING THE INITIAL PERIOD OF TRAINING. AN ENLISTED TRAINEE UNDER THE RESERVE FORCES ACT OF 1955 IS PRECLUDED BY SECTION 262 (D) FROM RECEIVING A REENLISTMENT BONUS BASED ON PERFORMANCE OF ACTIVE DUTY TRAINING AS REQUIRED BY SECTION 262 (C) (1) OF THE ACT. THE INITIAL PERIOD OF ACTIVE DUTY TRAINING PERFORMED BY ENLISTED TRAINEES PURSUANT TO SECTION 262 (C) (1) MAY NOT BE COUNTED FOR PURPOSES OF DETERMINING THE MEMBER'S ELIGIBILITY FOR RETIREMENT, OR FOR COMPUTING RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. THE RIGHT OF ELECTION AND THE BENEFITS PRESCRIBED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 DO NOT ACCRUE TO ENLISTED TRAINEES FOR THE INITIAL PERIOD OF ACTIVE DUTY REQUIRED BY SECTION 262 (C) (1) OF THE RESERVE FORCES ACT OF 1955. DISABILITY RETIREMENT, OR DISABILITY SEVERANCE PAY, WHICH MAY ACCRUE TO AN ENLISTED TRAINEE SERVING AN INITIAL PERIOD OF ACTIVE DUTY TRAINING UNDER THE RESERVE FORCES ACT OF 1955 IS FOR COMPUTATION ON THE MONTHLY RATE OF PAY PRESCRIBED FOR MEMBERS SERVING IN ENLISTED PAY GRADE E-1 (UNDER FOUR MONTHS). PENSION BENEFITS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS AND PAY AND ALLOWANCES WHICH WOULD ACCRUE UNDER SECTION 262 (D) (3) OF THE RESERVE FORCES ACT OF 1955 TO ENLISTED TRAINEES ARE TO BE COMPUTED ON THE $50 MONTHLY RATE OF PAY PRESCRIBED IN SECTION 262 (D) (1) OF THE ACT. AN ENLISTED TRAINEE WHO WAS RETIRED, SEPARATED OR DIED AFTER COMPLETION OF THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY SECTION 262 (C) (1) OF THE RESERVE FORCES ACT OF 1955 IS NOT LIMITED TO THE SPECIFIC BENEFITS PROVIDED IN SECTION 262 (D) (1), (2) AND (3); HOWEVER, THE INITIAL PERIOD OF TRAINING COULD NOT BE COUNTED TO INCREASE ANY "RIGHT, BENEFIT, OR PRIVILEGE" WHICH ACCRUED IN A SUBSEQUENT PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING.

TO THE SECRETARY OF DEFENSE, FEBRUARY 1, 1956:

REFERENCE IS MADE TO LETTER OF OCTOBER 10, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON A NUMBER OF QUESTIONS PERTAINING TO THE ADMINISTRATION OF THE RESERVE FORCES ACT OF 1955 ( PUBLIC LAW 305, 84TH CONGRESS) APPROVED AUGUST 9, 1955, 69 STAT. 598-605.

SECTION 2 (I) OF THE RESERVE FORCES ACT OF 1955, 50 U.S.C. APP. 451, FURTHER AMENDED PART II OF THE ARMED FORCES RESERVE ACT OF 1952 (AS AMENDED BY THE PRECEDING SUBSECTIONS OF SECTION 2) BY ADDING SECTIONS 261, 262, AND 263, RELATING TO THE ESTABLISHMENT OF SPECIAL ENLISTMENT PROGRAMS IN SPECIFIED RESERVE COMPONENTS OF THE ARMED FORCES. THE QUESTIONS PRESENTED, TOGETHER WITH AN EXPRESSION OF VIEWS CONCERNING THE STATUS OF ENLISTED PERSONS PERFORMING THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING PRESCRIBED IN CLAUSE (1), SUBSECTION (C), OF SECTION 262, ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 129, RECEIVED WITH THE LETTER OF OCTOBER 10, 1955. SUBSECTION (A) OF SECTION 262 PROVIDES THAT " UNTIL AUGUST 1, 1949, WHENEVER THE PRESIDENT DETERMINES THAT THE ENLISTED STRENGTH OF THE READY RESERVE OF THE ARMY RESERVE, NAVAL RESERVE, MARINE CORPS RESERVE, AIR FORCE RESERVE, OR COAST GUARD RESERVE CANNOT BE MAINTAINED AT THE LEVEL WHICH HE DETERMINES TO BE NECESSARY IN THE INTEREST OF NATIONAL DEFENSE, HE MAY AUTHORIZE THE ACCEPTANCE OF ENLISTMENTS IN UNITS OF SUCH READY RESERVE PURSUANT TO THE PROVISIONS OF THIS SECTION UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE.' THE PRESIDENT, IN EXECUTIVE ORDER NO. 10629, AUGUST 13, 1955, 20 F.R. 5911, ISSUED BY VIRTUE OF THE AUTHORITY VESTED IN HIM BY THAT SUBSECTION, AUTHORIZED THE ACCEPTANCE OF ENLISTMENTS IN UNITS OF THE READY RESERVE OF THE ARMY RESERVE AND THE MARINE CORPS RESERVE.

SUBSECTION (C) OF SECTION 262, IN PERTINENT PART PROVIDES THAT EACH ENLISTMENT UNDER THAT SECTION SHALL BE FOR A PERIOD OF EIGHT YEARS AND THAT EACH PERSON SO ENLISTED (WITH CERTAIN EXCEPTIONS WHICH ARE NOT HERE MATERIAL) "SHALL BE REQUIRED DURING SUCH ENLISTMENT (1) TO PERFORM AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF NOT LESS THAN THREE MONTHS OR MORE THAN SIX MONTHS, AND (2) THEREAFTER TO PERFORM SATISFACTORILY ALL TRAINING DUTY PRESCRIBED BY SECTION 208 (F) OF THIS ACT.' SUBSECTION (D) OF SECTION 262 PROVIDES AS FOLLOWS:

(D) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY PERSON PERFORMING THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C) OF THIS SECTION SHALL---

(1) DURING SUCH PERIOD, AND DURING ANY PERIOD OF HOSPITALIZATION INCIDENT TO THE PERFORMANCE OF SUCH DUTY, RECEIVE PAY AT THE RATE OF $50 PER MONTH;

(2) BE DEEMED TO BE SERVING IN PAY GRADE E-1 (UNDER FOUR MONTHS) FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY TO RECEIVE ALLOWANCES FOR SUBSISTENCE OR FOR TRAVEL AND TRANSPORTATION, OR TO RECEIVE ANY BENEFIT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED; AND

(3) BE DEEMED TO BE A MEMBER OF A RESERVE COMPONENT CALLED OR ORDERED INTO ACTIVE SERVICE FOR EXTENDED SERVICE IN EXCESS OF THIRTY DAYS FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR ANY BENEFIT MADE AVAILABLE TO MEMBERS OF RESERVE COMPONENTS BY THE ACT ENTITLED " AN ACT TO PROVIDE FOR MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES WHO SUFFER DISABILITY OR DEATH FROM INJURIES INCURRED WHILE ENGAGED IN ACTIVE DUTY TRAINING FOR PERIODS OF LESS THAN THIRTY DAYS OR WHILE ENGAGED IN ACTIVE DUTY TRAINING FOR PERIODS OF LESS THAN THIRTY DAYS OR WHILE ENGAGED IN ACTIVE DUTY TRAINING," APPROVED JUNE 20, 1949 (63 STAT. 201), EXCEPT THAT (A) NO SUCH PERSON SHALL BE ENTITLED TO ANY BENEFIT UNDER SECTION 621 OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, AS AMENDED, AND (B) THE INDEMNITY ACCORDED TO SUCH PERSON UNDER THE SERVICEMEN'S INDEMNITY ACT OF 1951, AS AMENDED, SHALL TERMINATE THIRTY DAYS AFTER THE RELEASE OF SUCH PERSON FROM SUCH PERIOD OF ACTIVE DUTY FOR TRAINING.

EXCEPT AS SPECIFICALLY PROVIDED BY THIS SUBSECTION, NO PERSON SHALL BECOME ENTITLED, BY REASON OF HIS PERFORMANCE OF A PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C) OF THIS SECTION, TO ANY RIGHT; BENEFIT, OR PRIVILEGE PROVIDED BY LAW FOR PERSONS WHO HAVE PERFORMED ACTIVE DUTY IN THE ARMED FORCES. ( ITALICS SUPPLIED.)

IT IS STATED ON PAGE 5 OF PAY AND ALLOWANCE COMMITTEE ACTION NO. 129, THAT IN VIEW OF THE PHRASE "WHO HAVE PERFORMED" APPEARING IN THE LAST SENTENCE OF SUBSECTION (D), ABOVE QUOTED, THAT SENTENCE ,IS OPEN TO THE INTERPRETATION THAT THE CONGRESS SPECIFICALLY INTENDED TO EXCLUDE ONLY BENEFITS OR PRIVILEGES AUTHORIZED BY LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, VIZ., SCHOOLING, JOB PREFERENCE, ETC.' IN THAT CONNECTION IT IS NOTED THAT STATEMENTS APPEAR IN SENATE REPORT NO. 840, 84TH CONGRESS, ST SESSION (QUOTED IN PERTINENT PART IN COMMITTEE ACTION NO. 129) WHICH ARE TO THE EFFECT THAT THE PARTICULAR CLASS OF ENLISTED TRAINEES HERE INVOLVED, THAT IS, THOSE INDIVIDUALS WHO ENLIST UNDER THE SPECIAL ENLISTMENT PROGRAM ESTABLISHED BY SECTION 262, WILL NOT ACCRUE, INCIDENT TO THEIR INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF NOT LESS THAN THREE OR MORE THAN SIX MONTHS, AND BENEFITS UNDER TITLE V OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, 38 U.S.C. 951 (MUSTERING-OUT PAYMENT), OR ANY OTHER BENEFITS UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, EXCEPT THE SERVICEMEN'S INDEMNITY ACT OF 1951, 38 U.S.C. 851, AS AMENDED. THE REPORT ALSO STATES, HOWEVER, THAT SUCH SPECIAL ENLISTED TRAINEES WILL NOT BE ENTITLED (WITH RESPECT TO THEIR INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING) TO ANY VETERANS PREFERENCE, OR TO QUARTERS ALLOWANCES, OR TO ANY BENEFITS UNDER THE DEPENDENTS ASSISTANCE ACT OF 1950, 37 U.S.C. 231, OR TO ANY INCENTIVE PAY. IT THEREFORE REASONABLY APPEARS THAT THE CONGRESS DID INTEND TO DENY THESE SPECIAL ENLISTED TRAINEES NOT ONLY VETERANS BENEFITS BUT OTHER TYPES OF PAYMENTS AND BENEFITS, SUCH AS QUARTERS ALLOWANCES (NOT SPECIFICALLY NAMED IN CLAUSES (1), (2), AND (3), OF SECTION 262 (D) (, WHICH NORMALLY ACCRUE, WHEN THE BASIC STATUTORY CONDITIONS GOVERNING SUCH ALLOWANCES OR BENEFITS ARE MET, TO ENLISTED PERSONS SERVING ON ACTIVE DUTY IN THE ARMED FORCES.

QUESTIONS 1A, 1B, 1C, AND 1D, AS STATED IN COMMITTEE ACTION NO. 129, ARE AS FOLLOWS:

1. IS A MEMBER OF THE UNIFORMED SERVICES, ENLISTED UNDER THE PROVISIONS OF SEC. 262 (A) OF THE RESERVE FORCES ACT OF 1955 ( P.L. 305, 84TH CONGRESS), WHO IS PERFORMING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER CLAUSE (1) OF SUBSECTION (C) OF SECTION 262 OF SAID ACT ENTITLED O:

A. THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946, INCLUDING LUMP-SUM PAYMENT FOR ANY UNUSED ACCRUED LEAVE UPON COMPLETION OF SUCH PERIOD OF DUTY AND RELEASE FROM SUCH TRAINING PERIOD?

(1) IF YOUR ANSWER IS IN THE NEGATIVE, IS SUCH A MEMBER ENTITLED TO THE PAY AND ALLOWANCES AUTHORIZED BY SECTION 262 (D) OF SAID ACT DURING PERIOD OF AUTHORIZED LEAVE?

B. A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (68 STAT. 488), (1) UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY FOR TRAINING AND IMMEDIATE REENLISTMENT IN THE REGULAR COMPONENT OF THE SERVICE CONCERNED, OR (2) UPON DISCHARGE OR RELEASE FROM DUTY UPON COMPLETION OF SUCH PERIOD OF ACTIVE DUTY FOR TRAINING AND REENLISTMENT IN THE REGULAR COMPONENT OF THE SERVICE CONCERNED WITHIN 90 DAYS AFTER SUCH DISCHARGE?

C. COUNT SUCH PERIOD OF SERVICE IN DETERMINING "YEARS' SERVICE" IN DETERMINING ELIGIBILITY FOR RETIREMENT, (INCLUDING TITLE III OF P.L. 810), AND FOR RETIRED PAY PURPOSES?

D. MAKE AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (67 STAT. 501) DURING SUCH PERIOD OF DUTY?

SUBSECTION (D) OF SECTION 262 EXPRESSLY PROVIDES THAT, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY PERSON PERFORMING THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C) OF THAT SECTION SHALL BE ENTITLED TO THE BENEFITS ENUMERATED IN CLAUSES (1), (2), AND (3) OF SUBSECTION (D). CLAUSE (1) PRESCRIBES PAY AT THE RATE OF $50 PER MONTH FOR SUCH INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING, INCLUDING ANY PERIOD OF HOSPITALIZATION INCIDENT TO THE PERFORMANCE OF SUCH DUTY; CLAUSE (2) PROVIDES THAT FOR THE PURPOSES THEREIN SPECIFIED ANY SUCH ENLISTED TRAINEE ON INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING SHALL BE DEEMED TO BE SERVING IN PAY GRADE E-1 (UNDER FOUR MONTHS); AND CLAUSE (3), INSOFAR AS HERE PERTINENT, PROVIDES THAT, FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR THE BENEFITS PRESCRIBED THEREIN, SUCH AN ENLISTED TRAINEE ON INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING SHALL BE DEEMED TO BE A MEMBER OF A RESERVE COMPONENT CALLED OR ORDERED INTO ACTIVE SERVICE FOR EXTENDED SERVICE IN EXCESS OF THIRTY DAYS. WHEN THE EXPLICIT TERMS OF CLAUSES (1), (2), AND (3), SUBSECTION (D), ENUMERATING THE PARTICULAR BENEFITS AND PRIVILEGES DESIRED AND INTENDED TO BE CONFERRED ON THESE ENLISTED TRAINEES INCIDENT TO THEIR PERFORMANCE OF THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C), ARE CONSIDERED IN CONJUNCTION WITH THE LAST SENTENCE OF SUBSECTION (D) AND THE DEFINITE STATEMENTS FOUND IN SENATE REPORT NO. 840, IT SEEMS REASONABLY EVIDENT THAT IT WAS THE LEGISLATIVE INTENT TO PRECLUDE THE ALLOWANCE TO SUCH TRAINEES (DURING THEIR INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING) OF ANY BENEFIT OR PRIVILEGE NOT EXPRESSLY PRESCRIBED IN SUBSECTION (D).

CLAUSE (2) OF SECTION 262 (D) IS EXPRESSLY LIMITED IN ITS APPLICATION TO THE PURPOSE OF DETERMINING ELIGIBILITY TO RECEIVE ALLOWANCES FOR SUBSISTENCE OR FOR TRAVEL AND TRANSPORTATION, OR TO RECEIVE ANY BENEFIT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 271, AS AMENDED. THUS, NO PROPER BASIS IS PRESENTED TO EXTEND TO AN ENLISTED TRAINEE PERFORMING THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C), THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 32, AS AMENDED, INCLUDING THE LUMP-SUM LEAVE PAYMENT PROVIDED FOR IN THAT ACT. QUESTION 1A IS ANSWERED IN THE NEGATIVE.

THE "PERIOD OF AUTHORIZED LEAVE" REFERRED TO IN QUESTION 1A (1) EVIDENTLY REFERS TO AN ENLISTED TRAINEE MAY, IN ADMINISTRATIVE DISCRETION, BE EXCUSED FROM PARTICIPATING IN ACTIVE DUTY FOR TRAINING BECAUSE OF AN EMERGENCY OR FOR OTHER REASONS. NO BASIC OBJECTION IS PERCEIVED TO THE PAYMENT OF ACTIVE DUTY TRAINING PAY AT THE RATE OF $50 PER MONTH AS PRESCRIBED IN CLAUSE (1), SECTION 262 (D), TO ENLISTED TRAINEES WHILE THEY MAY BE ADMINISTRATIVELY EXCUSED FROM DUTY FOR SHORT PERIODS OF TIME DURING THEIR PERFORMANCE OF THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SECTION 262 (C). IT IS ASSUMED, HOWEVER, THAT ANY SUCH ABSENCES DURING THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING WILL BE KEPT TO A REASONABLE MINIMUM, NOT ONLY BECAUSE SUCH ENLISTED TRAINEES ARE NOT ENTITLED TO THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, BUT ALSO BECAUSE OF THE SHORT AND INTENSIVE PERIOD OF TRAINING DUTY APPARENTLY CONTEMPLATED FOR PERSONS ENLISTING UNDER THE PROVISIONS OF SECTION 262. QUESTION 1A (1) IS ANSWERED ACCORDINGLY.

THE REENLISTMENT BONUS PRESCRIBED IN SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2, ACT OF JULY 16, 1954, 68 STAT, 488, 489, IS A RIGHT OR BENEFIT "PROVIDED BY LAW FOR PERSONS WHO HAVE PERFORMED ACTIVE DUTY IN THE ARMED FORCES.' CONSEQUENTLY, THE BENEFIT OF A REENLISTMENT BONUS IS EXCLUDED BY THE EXCEPTION CLAUSE CONTAINED IN SECTION 262 (D) FOR ANY INDIVIDUAL WHOSE CLAIM THEREFOR IS BASED IN PART ON THE PERFORMANCE OF THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C). QUESTIONS 1B (1) AND 1B (2) ARE ANSWERED IN THE NEGATIVE.

AN ENLISTED TRAINEE IS NOT ENTITLED BY REASON OF THE PERFORMANCE OF THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1), SUBSECTION (C), SUBSEQUENTLY TO COUNT SUCH PERIOD OF SERVICE IN DETERMINING ELIGIBILITY FOR RETIREMENT, OR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY, INCLUDING RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036, INASMUCH AS THE COUNTING OF THAT PERIOD FOR SUCH PURPOSES IS NOT SPECIFICALLY AUTHORIZED BY SECTION 262 (D) AND, THEREFORE, WOULD BE CONTRARY TO THE TERMS AND INTENT OF THE EXCEPTION CLAUSE CONTAINED IN THAT SECTION. QUESTION 1C IS ANSWERED IN THE NEGATIVE.

SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, 37 U.S.C. 372, IN PERTINENT PART PROVIDES " WHERE THE ACTIVE MEMBER IS AWARDED RETIRED PAY BY HIS UNIFORMED SERVICE FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF * * * EIGHTEEN YEARS OF SERVICE, THE ELECTION MAY BE MADE AT THE TIME OF RETIREMENT.' THE RIGHT OF ELECTION AND THE BENEFITS PRESCRIBED IN THAT ACT CONSTITUTE RIGHTS, BENEFITS, OR PRIVILEGES PROVIDED BY LAW "FOR PERSONS WHO HAVE PERFORMED ACTIVE DUTY IN THE ARMED FORCES.' CONSEQUENTLY, THE BENEFITS OF THE ACT DO NOT ACCRUE TO ENLISTED TRAINEES INCIDENT TO THEIR INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1), SECTION 262 (C) OF THE 1955 ACT. QUESTION 1D IS ANSWERED IN THE NEGATIVE. QUESTIONS 2A, 2B, AND 2C, ARE AS FOLLOWS:

2. ARE THE FOLLOWING BENEFITS WHICH ARE AUTHORIZED FOR PERSONS SERVING ON AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER CLAUSE (1) OF SEC. 262, SUPRA, IF OTHERWISE ENTITLED THERETO TO BE BASED ON THE $50 PER MONTH RATE OF PAY; ON THE MONTHLY RATE OF PAY AUTHORIZED FOR PAY GRADE E-1 (UNDER FOUR MONTHS); OR THE RATE OF PAY OF THE GRADE ACTUALLY HELD?

A. DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY ( TITLE IV, CAREER COMPENSATION ACT OF 1949/?

B. PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY AND PAY AND ALLOWANCES ( ACT OF 20 JUNE 1949, 63 STAT. 201/?

C. WOULD YOUR ANSWER BE THE SAME IF HE WAS RETIRED, SEPARATED, OR DIED AFTER THE COMPLETION OF THE INITIAL PERIOD OF SIX-MONTHS' ACTIVE DUTY FOR TRAINING?

CLAUSE (2), SUBSECTION (D) OF SECTION 262 EXPRESSLY PROVIDES THAT ENLISTED TRAINEES PERFORMING THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C) OF THAT SECTION ARE TO "BE DEEMED AS SERVING IN PAY GRADE E-1 (UNDER FOUR MONTHS)" FOR THE PURPOSE OF DETERMINING THEIR "ELIGIBILITY TO RECEIVE ALLOWANCES FOR SUBSISTENCE OR FOR TRAVEL AND TRANSPORTATION, OR TO RECEIVE ANY BENEFIT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED.' IN VIEW OF SUCH SPECIFIC STATUTORY PROVISION, THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY WHICH MAY THUS ACCRUE TO SUCH AN ENLISTED TRAINEE PROPERLY IS TO BE COMPUTED ON THE MONTHLY RATE OF PAY PRESCRIBED FOR AN INDIVIDUAL SERVING IN ENLISTED PAY GRADE E-1 (UNDER FOUR MONTHS). QUESTION 2A IS ANSWERED ACCORDINGLY.

CLAUSE (3), SUBSECTION (D) OF SECTION 262 PROVIDES THAT AN ENLISTED TRAINEE PERFORMING THE PERIOD OF ACTIVE DUTY FOR TRAINING PRESCRIBED IN CLAUSE (1) OF SUBSECTION (C) OF THAT SECTION IS TO "BE DEEMED TO BE A MEMBER OF A RESERVE COMPONENT CALLED OR ORDERED INTO ACTIVE SERVICE FOR EXTENDED SERVICE IN EXCESS OF THIRTY DAYS" FOR THE PURPOSE OF DETERMINING HIS "ELIGIBILITY" FOR THE BENEFITS PRESCRIBED FOR MEMBERS OF RESERVE COMPONENTS BY THE ACT OF JUNE 20, 1949 ( PUBLIC LAW 108, 81ST CONGRESS), 63 STAT. 201, 34 U.S.C. 855C-1. THE PROVISIONS OF CLAUSE (3) RELATE EXCLUSIVELY TO THE QUESTION OF AN INDIVIDUAL'S ELIGIBILITY TO RECEIVE THE BENEFITS THEREIN AUTHORIZED AND DO NOT GOVERN THE AMOUNT OR EXTENT OF THOSE BENEFITS. UNLIKE CLAUSE (2), THIS CLAUSE DOES NOT INDICATE A DIFFERENT RATE OF PAY. THUS, EXCEPT WITH RESPECT TO THE COMPUTATION OF DISABILITY RETIREMENT PAY UNDER TITLE IV, CAREER COMPENSATION ACT OF 1949 (SEE ANSWER TO QUESTION 2A), THE "PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES" TO WHICH ENTITLEMENT MAY ARISE BY VIRTUE OF CLAUSE (3), SECTION 262 (D), ARE TO BE COMPUTED, IN ANY CASE WHERE SUCH BENEFITS ARE FOR DETERMINATION ON THE BASIS OF THE INDIVIDUAL'S RATE OF PAY, ON THE $50 MONTHLY RATE PRESCRIBED IN CLAUSE (1) OF SECTION 262 (D). QUESTION 2B IS ANSWERED ACCORDINGLY.

AFTER A PERSON SERVING IN AN ENLISTMENT UNDER SECTION 262 COMPLETES THE INITIAL PERIOD OF TRAINING REQUIRED BY CLAUSE (1), SUBSECTION (C) OF THAT SECTION, HE NO LONGER IS SUBJECT TO THE PROVISIONS OF CLAUSES (1), (2), AND (3) OF SUBSECTION (D) OF THE SECTION EXCEPT THAT IT WOULD APPEAR THAT, GENERALLY, SUCH INITIAL PERIOD OF TRAINING COULD NOT BE COUNTED TO INCREASE ANY ,RIGHT, BENEFIT, OR PRIVILEGE" ACCRUING IN CONNECTION WITH A SUBSEQUENT PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING IN VIEW OF THE LAST SENTENCE OF SUBSECTION (D). QUESTION 2C IS ANSWERED ACCORDINGLY.