B-32302, JULY 28, 1943, 23 COMP. GEN. 52

B-32302, JULY 28, 1943, 23 COMP. GEN. 52

PAY - RETIRED - COUNTING OF ADDITIONAL SERVICE AUTHORIZED TO BE CREDITED IN TIME OF WAR; INACTIVE ARMY MEDICAL RESERVE CORPS SERVICE THE PROVISION IN SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AUTHORIZING OFFICERS PAID UNDER SECTIONS 1 AND 3 OF THE SAID ACT TO COUNT FOR PAY PURPOSES DURING THE WAR PERIOD ALL PERIODS DURING WHICH THEY WERE ENLISTED, HELD APPOINTMENTS AS WARRANT OFFICERS, ETC., OF ARMY NURSES SHALL BE ASSIMILATED DURING THE WAR PERIOD TO THOSE OF COMMISSIONED OFFICERS, ARE, IN EFFECT, MERELY PROVISIONS FOR TEMPORARY INCREASES IN ACTIVE DUTY PAY IN TIME OF WAR AND DO NOT AFFECT THE COMPUTATION OF RETIRED PAY OF RETIRED PERSONNEL NOT PERFORMING ACTIVE DUTY. INACTIVE SERVICE IN THE NOW-ABOLISHED MEDICAL RESERVE CORPS OF THE ARMY MAY NOT BE INCLUDED IN THE SERVICE OF A RETIRED OFFICER TO BE COUNTED FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY ON THE BASIS OF PAY PROVIDED IN SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. CARL WITCHER, U.S. ARMY, JULY 28, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 13, 1943, SUBMITTING FOR DECISION A PAY ROLL STATED IN FAVOR OF SEVERAL RETIRED OFFICERS AND A RETIRED NURSE FOR INCREASED RETIRED PAY, AS FOLLOWS:

CAPTAIN JOHN W. BOLLENBECK: DIFFERENCE IN LONGEVITY BETWEEN OVER 17 AND 21 YEARS OF SERVICE FOR THE PERIOD JUNE 1 TO DECEMBER 31, 1942, BY REASON OF ENLISTED SERVICE IN THE NATIONAL GUARD.

MAJOR CASPAR R. BYARS: DIFFERENCE IN LONGEVITY AND PAY PERIOD BETWEEN OVER 21 AND 27 YEARS' SERVICE FOR THE PERIOD JUNE 1 TO DECEMBER 31, 1942, DUE TO INACTIVE SERVICE IN THE MEDICAL RESERVE CORPS.

ST LIEUT. ROWLAND KIEBURTZ: DIFFERENCE IN PAY PERIOD BETWEEN OVER 9 AND OVER 10 YEARS' SERVICE FOR THE PERIOD JUNE 1, TO DECEMBER 31, 1942, DUE TO ENLISTED SERVICE AS A FLYING CADET.

ST LIEUT. WILLIAM J. O-BRIEN: DIFFERENCE IN RETIRED PAY OF A W.O., JR. GRADE, BETWEEN OVER 24 AND OVER 30 YEARS' SERVICE FOR THE PERIOD JUNE 1 TO DECEMBER 31, 1942, BY REASON OF ENLISTED SERVICE IN THE ORGANIZED MILITIA.

CHARLOTTE E. BUCKER, A.N.C.: DIFFERENCE IN RETIRED PAY OF A NURSE AND THE RETIRED PAY OF A 2ND LIEUT. FOR THE PERIOD DECEMBER 22 TO 31, 1942.

THE BASIS FOR THE PROPOSED INCREASED RETIRED PAY, AND THE QUESTIONS ARISING, ARE STATED AS FOLLOWS:

SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, PROVIDES IN COMPUTING SERVICE FOR ALL PAY PURPOSES FULL TIME FOR ALL PERIOD DURING WHICH OFFICERS HELD COMMISSIONS BE CREDITED. SECTION 3A OF THE LATTER ACT PROVIDES THAT FOR THE PERIOD DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR 6 MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, CERTAIN ADDITIONAL SERVICES MAY BE CREDITED WHETHER AS AN OFFICER OR AN ENLISTED MAN.

THE QUESTION ARISES, THEREFORE, AS TO WHETHER MAJOR CASPAR R. BYARS MAY BE CREDITED WITH SERVICE IN THE MEDICAL RESERVE CORPS, WHICH IS NOT SPECIFICALLY MENTIONED IN EITHER SECTION 1 OR 3A OF THE ACT OF DECEMBER 2, 1942. IN THE CASES OF CAPTAIN BOLLENBECK, ST LIEUTENANTS KIEBURTZ AND O- BRIEN, THE QUESTION ARISES AS TO WHETHER RETIRED PAY SHOULD BE COMPUTED UNDER SECTION 3A OF THE ABOVE MENTIONED LAW.

THE ACT OF DECEMBER 22, 1942, PROVIDES THAT MEMBERS OF THE ARMY NAVY CORPS SHALL HAVE RELATIVE RANK AND RECEIVE THE PAY AS IS NOW OR HEREAFTER PROVIDED BY LAW FOR COMMISSIONED OFFICERS WITHOUT DEPENDENTS OF THE REGULAR ARMY. THE QUESTION ARISES AS TO WHETHER THIS ACT IS APPLICABLE TO FORMER NURSES OF THE ARMY NURSE CORPS RETIRED PRIOR TO THE DATE OF THE ACT AND WHO ARE NOW ON THE NURSE CORPS RETIRED LIST. THE ATTACHED VOUCHER IS STATED FOR THE DIFFERENCE IN PAY FOR NURSE CHARLOTTE E. BUCKER.

FOR CONVENIENCE, THE STATUTES RELEVANT TO CONSIDERATION OF THE QUESTIONS PRESENTED ARE QUOTED BELOW, IN PERTINENT PART:

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT * * *.

THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037:

IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF THIS SECTION, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS' RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE OF COAST AND GEODETIC SURVEY OFFICERS AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY-SEVENTH CONGRESS): PROVIDED, THAT FOR OFFICERS IN SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION, IN ADDITION TO THE SERVICE SET FORTH ABOVE, ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME. LONGEVITY PAY FOR OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES WHICH IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES UNDER THE PROVISIONS OF THIS ACT OR AS MAY OTHERWISE BE PROVIDED BY LAW.

SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY THE ACT OF DECEMBER 2, 1942, SUPRA:

DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 OR 3 OF THIS ACT, SUCH OFFICERS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY SUCH SECTIONS, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE REGULAR ARMY RESERVE, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE ENLISTED RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT ANY COMMISSIONED OFFICER TO RECEIVE PAY AND ALLOWANCES IN EXCESS OF THE MAXIMUM LIMITATIONS IMPOSED UPON THE TOTAL PAY AND ALLOWANCES OF ANY RANK OR GRADE BY ANY OF THE PROVISIONS OF THIS ACT.

SECTION 1 OF THE ACT OF DECEMBER 22, 1942, 56 STAT. 1072:

THAT HEREAFTER, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, THE MEMBERS OF THE ARMY NURSE CORPS SHALL HAVE RELATIVE RANK AND RECEIVE PAY AND MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES, AS NOW OR HEREAFTER PROVIDED BY LAW, FOR COMMISSIONED OFFICERS WITHOUT DEPENDENTS, OF THE REGULAR ARMY IN THE SIXTH TO THE FIRST PAY PERIODS, RESPECTIVELY.

THE ADDITIONAL SERVICE PROPOSED TO BE CREDITED IN THE COMPUTATION OF THE RETIRED PAY OF CAPTAIN BOLLENBECK, LIEUTENANT KIEBURTZ AND LIEUTENANT O- BRIEN, IF AUTHORIZED TO BE CREDITED AT ALL, WOULD BE CREDITED BY VIRTUE OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AND THE PROPOSED PAYMENT OF THE RETIRED PAY OF A SECOND LIEUTENANT TO NURSE BUCKER WOULD BE BY VIRTUE OF SECTION 1 OF THE ACT OF DECEMBER 22, 1942. IT WILL BE NOTED, HOWEVER, THAT BOTH OF THESE STATUTORY PROVISIONS ARE LIMITED IN THEIR APPLICATION TO THE DURATION OF WAR AND SIX MONTHS THEREAFTER. THEY MAKE NO CHANGE IN THE BASIS OF COMPUTING THE PERMANENT PAY OF OFFICERS AND NURSES ON THE ACTIVE LIST BUT ARE, IN EFFECT, MERELY PROVISIONS FOR A TEMPORARY INCREASE IN ACTIVE DUTY PAY IN TIME OF WAR. THE GENERAL RULE IS THAT EXCEPTIONAL PAY OR INCREASES OF PAY GIVEN FOR SPECIAL SERVICES ON ACTIVE DUTY OR UNDER SPECIAL CIRCUMSTANCES INCIDENT TO ACTUAL SERVICE, SUCH AS TEMPORARY INCREASES OF ACTIVE DUTY PAY IN TIME OF WAR, DO NOT ENTER INTO THE COMPUTATION OF RETIRED PAY. IN MURPHY V. UNITED STATES, 38 C.1CLS. 511, IT WAS HELD THAT A RETIRED ENLISTED MAN WAS NOT, IN THE COMPUTATION OF HIS RETIRED PAY, ENTITLED TO BE CREDITED WITH THE 20 PERCENT INCREASE IN PAY GIVEN TO ENLISTED MEN IN TIME OF WAR BY THE ACT OF APRIL 26, 1898, 30 STAT. 364, 365. SEE, ALSO, 6 COMP. DEC. 182; 24 ID. 116. CF. 4 ID. 374; 9 ID. 41; 13 ID. 759 AND 26 ID. 478. NOTHING IN THE STATUTORY PROVISION HERE INVOLVED DENOTES A LEGISLATIVE INTENT TO CHANGE THAT LONG ESTABLISHED RULE. THE TEMPORARY INCREASES OF PAY RESULTING FROM SUCH STATUTORY PROVISIONS ARE FOR WARTIME ACTIVE SERVICE UNDER CONDITIONS NOT AFFECTING PERSONNEL ON THE RETIRED LIST NOT PERFORMING ACTIVE DUTY. ACCORDINGLY, YOU ARE ADVISED THAT THE QUESTIONS STATED WITH RESPECT TO THE RETIRED PAY OF CAPTAIN BOLLENBECK, LIEUTENANTS KIEBURTZ AND O-BRIEN, AND NURSE BUCKER MUST BE ANSWERED IN THE NEGATIVE. SEE DECISION OF TODAY, B- 32730, 23 COMP. GEN. 59, TO THE SECRETARY OF THE NAVY.

YOUR FURTHER QUESTION IS AS TO WHETHER MAJOR CASPER R. BYARS MAY BE CREDITED WITH INACTIVE SERVICE IN THE MEDICAL RESERVE CORPS IN THE COMPUTATION OF HIS RETIRED PAY. WHILE MAJOR BYARS' SERVICE RECORD IS NOT SET FORTH ON THE PAY ROLL OR IN YOUR LETTER, SUCH RECORD, AS IT APPEARS IN THE OFFICIAL ARMY REGISTER ISSUED JANUARY 1, 1942, IS AS FOLLOWS:

( FEDERAL: CONT. SURG. 20 MAR. 100 TO 3 MAR. 103 AND FROM 29 MAR. 105 TO 3 MAY 107./--- 1 LT. M.R.C. 28 APR. 11; ACCEPTED 13 JUNE 11; ACTIVE DUTY 18 JULY 16; 1 LT. MED. SEC., O.R.C. 24 MAR. 17; ACCEPTED 6 APR. 17; MAJ. MED. SEC., O.R.C. 20 JUNE 17; ACCEPTED 5 JULY 17; VACATED 10 SEPT. 20--- MAJ. M.C. JULY 20; ACCEPTED 10 SEPT. 20; RETIRED 30 NOV. 33. IT IS ASSUMED YOU HAVE REFERENCE TO THE OFFICER'S INACTIVE COMMISSIONED SERVICE IN THE MEDICAL RESERVE CORPS FROM JUNE 13, 1911, TO JULY 17, 1916.

UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, MAJOR BYARS IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF PAY PROVIDED IN THAT ACT. THE RETIRED PAY TO WHICH HE IS THUS ENTITLED IS BASED ON WHAT HIS ACTIVE DUTY PAY WOULD HAVE BEEN HAD THE PERMANENT PAY PROVISIONS OF THAT ACT BEEN IN EFFECT WHEN HE WAS RETIRED. HENCE, THE QUESTION IS WHETHER TIME IN AN INACTIVE STATUS IN THE MEDICAL RESERVE CORPS IS AUTHORIZED TO BE COUNTED AS PRIOR SERVICE IN COMPUTING ACTIVE DUTY PAY UNDER THE PERMANENT PAY PROVISIONS OF THE SAID PAY READJUSTMENT ACT OF 1942.

THE MEDICAL RESERVE CORPS OF THE ARMY WAS ESTABLISHED BY SECTION 7 OF THE ACT OF APRIL 23, 1908, 35 STAT. 68. UNDER THE TERMS OF THAT ACT OFFICERS APPOINTED IN SUCH RESERVE CORPS MIGHT BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF WAR IN TIMES OF EMERGENCY, BUT ONLY IF THEN WILLING TO SERVE. THE ACT FURTHER PROVIDED THAT SUCH OFFICERS, WHEN ON ACTIVE DUTY, WOULD BE ENTITLED TO THE PAY AND ALLOWANCES OF FIRST LIEUTENANTS OF THE MEDICAL CORPS WITH INCREASE FOR LENGTH OF SERVICE THEN ALLOWED BY LAW, SAID INCREASE TO BE COMPUTED ONLY FOR TIME OF ACTIVE DUTY. THE MEDICAL RESERVE CORPS AS THUS CONSTITUTED WAS ABOLISHED IN 1917 PURSUANT TO SECTION 37 OF THE NATIONAL DEFENSE ACT OF 1916, 39 STAT. 189, WHICH ACT ESTABLISHED THE OFFICERS' RESERVE CORPS OF WHICH THE PRESENT MEDICAL CORPS RESERVE IS A COMPONENT. THIS LATER ACT PROVIDED THAT MEMBERS OF THE FORMER MEDICAL RESERVE CORPS MIGHT BE COMMISSIONED IN THE OFFICERS' RESERVE CORPS OR HONORABLY DISCHARGED FROM THE SERVICE.

AS STATED ABOVE, MAJOR BYARS' RIGHT TO COUNT INACTIVE SERVICE IN THE MEDICAL RESERVE CORPS ESTABLISHED BY THE ACT OF APRIL 23, 1908, SUPRA, IS DEPENDENT ON WHETHER SUCH SERVICE MAY BE COUNTED UNDER THE PROVISIONS OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 FOR ACTIVE DUTY PAY. PARAGRAPH 11 OF THE SAID SECTION 1 OF THE 1942 PAY ACT, QUOTED ABOVE, SPECIFICALLY ENUMERATES THOSE ORGANIZATIONS IN WHICH SERVICE MAY BE COUNTED FOR PAY PURPOSES. THE SAID MEDICAL RESERVE CORPS IS NOT INCLUDED IN SUCH ENUMERATION, ALTHOUGH VARIOUS OTHER RESERVE ORGANIZATIONS, PAST AND PRESENT, OF THE DIFFERENT MILITARY SERVICES ARE EXPRESSLY MENTIONED AND INCLUDED. UNDER SETTLED RULES OF STATUTORY INTERPRETATION, THE SPECIFIC ENUMERATION OF SUCH ORGANIZATIONS PRECLUDES THE VIEW THAT THE INCLUSION OF OTHERS NOT SO ENUMERATED WAS INTENDED; IT BEING PRESUMED, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT THE EXCLUSION OF SUCH OTHER ORGANIZATIONS WAS INTENTIONAL. AND EVEN THOUGH IT BE ASSUMED THAT THE OMISSION OF THE MEDICAL RESERVE CORPS WAS INADVERTENT, SUCH AN OMISSION IN THE STATUTE MAY NOT BE CURED BY INTERPRETATION BUT MUST BE LEFT TO CORRECTION BY THE CONGRESS. 59 C.J. 974. CF. 16 COMP. GEN. 870; 19 ID. 418.

IT FOLLOWS THAT THE QUESTION STATED WITH RESPECT TO THE SERVICE TO BE COUNTED IN THE COMPUTATION OF MAJOR BYARS' PAY MUST BE ANSWERED IN THE NEGATIVE IF, AS HEREIN ASSUMED, THE SERVICE REFERRED TO WAS INACTIVE SERVICE IN THE ARMY MEDICAL RESERVE CORPS ESTABLISHED BY THE ACT OF APRIL 23, 1908, SUPRA. SEE DECISION OF TODAY, B-32508, 23 COMP. GEN. 56, TO THE SECRETARY OF THE NAVY.

THE PAY ROLL SUBMITTED WITH YOUR LETTER IS RETAINED IN THE FILES OF THIS OFFICE, PAYMENT THEREON NOT BEING AUTHORIZED.