B-32508, JULY 28, 1943, 23 COMP. GEN. 56

B-32508, JULY 28, 1943, 23 COMP. GEN. 56

PAY - SERVICE CREDITS - INCLUSION OF SERVICE IN THE MEDICAL RESERVE CORPS OF THE ARMY, AND THE MEDICAL RESERVE CORPS AND THE DENTAL RESERVE CORPS OF THE NAVY UNDER SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AUTHORIZING THE COUNTING FOR PAY PURPOSES OF ALL PERIODS DURING WHICH OFFICERS PAID THEREUNDER HAVE HELD COMMISSIONS AS OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT AND IN CERTAIN OTHER SPECIFIED ORGANIZATIONS, RESERVE COMPONENTS NOT SPECIFICALLY ENUMERATED MAY NOT BE REGARDED AS INCLUDED IN THE TERM "SERVICES" MENTIONED IN THE TITLE OF THIS ACT.' IN COMPUTING SERVICE OF COMMISSIONED OFFICERS FOR PURPOSES OF PAY UNDER SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SERVICE IN THE NOW-ABOLISHED MEDICAL RESERVE CORPS OF THE ARMY, AND THE MEDICAL RESERVE CORPS AND THE DENTAL RESERVE CORPS OF THE NAVY--- WHICH ARE NOT NAMED IN EITHER OF SAID SECTIONS AS RESERVE ORGANIZATIONS IN WHICH SERVICE MAY BE COUNTED FOR PURPOSES OF PAY THEREUNDER--- MAY NOT BE COUNTED EXCEPT IN THE CASE OF OFFICERS IN SERVICE ON JUNE 30, 1922, WHOSE RIGHT TO CONTINUE TO COUNT ACTIVE SERVICE IN THOSE ORGANIZATIONS IS CONFERRED BY THE PROVISO TO THE ELEVENTH PARAGRAPH OF SAID SECTION 1

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 28, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 13, 1943, IN WHICH YOU REQUEST DECISION ON THE QUESTION WHETHER COMMISSIONED OFFICERS OF THE REGULAR NAVY (INCLUDING RETIRED OFFICERS ON ACTIVE DUTY) AND COMMISSIONED OFFICERS OF THE NAVAL RESERVE WHOSE PAY IS COMPUTED UNDER SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, MAY COUNT FOR PAY PURPOSES---

(A) INACTIVE SERVICE AS COMMISSIONED OFFICERS IN THE MEDICAL RESERVE CORPS OF THE ARMY, THE MEDICAL RESERVE CORPS OF THE NAVY, AND THE DENTAL RESERVE CORPS OF THE NAVY. AND ALSO,

(B) IN CASE SUCH INACTIVE SERVICE MAY BE COUNTED FOR PAY PURPOSES, MAY OFFICERS OF THE REGULAR NAVY, INCLUDING RETIRED OFFICERS ON ACTIVE DUTY, APPOINTED PRIOR TO MARCH 4, 1913, AND ENTITLED TO COUNT FIVE YEARS CONSTRUCTIVE SERVICE UNDER SECTION 13 OF THE ACT OF MARCH 3, 1899 (30 STAT. 1007), COUNT FOR PAY PURPOSES FULL TIME FOR ALL PERIODS OF INACTIVE SERVICE DURING WHICH THEY HELD COMMISSIONS IN THE MEDICAL RESERVE CORPS OF THE ARMY, THE MEDICAL RESERVE CORPS OF THE NAVY, AND THE DENTAL RESERVE CORPS OF THE NAVY DURING THE FIVE YEARS IMMEDIATELY PRECEDING APPOINTMENT TO THE REGULAR NAVY.

THE MEDICAL RESERVE CORPS OF THE ARMY WAS ESTABLISHED BY THE ACT OF APRIL 23, 1908, 35 STAT. 66, 68, IN PART, AS FOLLOWS:

SEC. 7. THAT FOR THE PURPOSE OF SECURING A RESERVE CORPS OF MEDICAL OFFICERS AVAILABLE FOR MILITARY SERVICE, THE PRESIDENT OF THE UNITED STATES IS AUTHORIZED TO ISSUE COMMISSIONS AS FIRST LIEUTENANTS THEREIN TO SUCH GRADUATES OF REPUTABLE SCHOOLS OF MEDICINE, CITIZENS OF THE UNITED STATES, AS SHALL FROM TIME TO TIME, UPON EXAMINATION TO BE PRESCRIBED BY THE SECRETARY OF WAR, BE FOUND PHYSICALLY, MENTALLY, AND MORALLY QUALIFIED TO HOLD SUCH COMMISSIONS, THE PERSONS SO COMMISSIONED TO CONSTITUTE AND BE KNOWN AS THE MEDICAL RESERVE CORPS. THE COMMISSIONS SO GIVEN SHALL CONFER UPON THE HOLDERS ALL THE AUTHORITY, RIGHTS, AND PRIVILEGES OF COMMISSIONED OFFICERS OF THE LIKE GRADE IN THE MEDICAL CORPS OF THE UNITED STATES PROVIDED, AND DURING THE PERIOD OF SUCH ACTIVE DUTY. * * *

SEC. 8. THAT IN EMERGENCIES THE SECRETARY OF WAR MAY ORDER OFFICERS OF THE MEDICAL RESERVE CORPS TO ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES IN SUCH NUMBERS AS THE PUBLIC INTERESTS MAY REQUIRE AND MAY RELIEVE THEM FROM SUCH DUTY WHEN THEIR SERVICES ARE NO LONGER NECESSARY: PROVIDED, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS AUTHORIZING AN OFFICER OF THE MEDICAL RESERVE CORPS TO BE ORDERED UPON ACTIVE DUTY AS HEREIN PROVIDED WHO IS UNWILLING TO ACCEPT SUCH SERVICE, NOT TO PROHIBIT AN OFFICER OF THE MEDICAL RESERVE CORPS NOT DESIGNATED FOR ACTIVE DUTY FROM SERVICE WITH THE MILITIA, OR WITH THE VOLUNTEER TROOPS OF THE UNITED STATES, OR IN THE SERVICE OF THE UNITED STATES IN ANY OTHER CAPACITY, BUT WHEN SO SERVING WITH THE MILITIA OR WITH VOLUNTEER TROOPS, OR WHEN EMPLOYED IN THE SERVICE OF THE UNITED STATES IN ANY OTHER CAPACITY, AN OFFICER OF THE MEDICAL RESERVE CORPS SHALL NOT BE SUBJECT TO CALL FOR DUTY UNDER THE TERMS OF THIS SECTION: * * * AND PROVIDED FURTHER, THAT ANY OFFICER OF THE MEDICAL RESERVE CORPS WHO IS SUBJECT TO CALL AND WHO SHALL BE ORDERED UPON ACTIVE DUTY AS HEREIN PROVIDED AND WHO SHALL BE UNWILLING AND REFUSE TO ACCEPT SUCH SERVICE SHALL FORFEIT HIS COMMISSION.

SEC. 9. THAT OFFICERS OF THE MEDICAL RESERVE CORPS WHEN CALLED UPON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, AS PROVIDED IN SECTION EIGHT OF THIS ACT, SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE REGULAR ARMY, AND DURING THE PERIOD OF SUCH SERVICE SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF FIRST LIEUTENANTS OF THE MEDICAL CORPS WITH INCREASE FOR LENGTH OF SERVICE NOW ALLOWED BY LAW, SAID INCREASE TO BE COMPUTED ONLY FOR TIME OF ACTIVE DUTY: * * *

THE MEDICAL RESERVE CORPS OF THE NAVY WAS ESTABLISHED BY THE ACT OF AUGUST 22, 1912, 37 STAT. 328, 344, AS A CONSTITUENT PART OF THE MEDICAL DEPARTMENT OF THE NAVY "UNDER THE SAME PROVISIONS, IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAID PROVISIONS TO THE NAVY)," AS THOSE SET FORTH IN THE SAID ACT OF APRIL 23, 1908, ESTABLISHING THE MEDICAL RESERVE CORPS OF THE ARMY. THE DENTAL RESERVE CORPS OF THE NAVY WAS AUTHORIZED BY THE ACT OF MARCH 4, 1913, 37 STAT. 891, 903, TO BE ORGANIZED AND OPERATED UNDER THE PROVISIONS OF THE SAID ACT OF AUGUST 22, 1912. SEE, ALSO, THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 574.

BY SECTION 37 OF THE ACT OF JUNE 3, 1916, 39 STAT. 189, 190, THE MEDICAL RESERVE CORPS OF THE ARMY WAS ABOLISHED ONE YEAR FROM THE DATE OF THE ACT. THAT ACT PROVIDED THAT THE MEMBERS OF SUCH CORPS COULD BE COMMISSIONED IN THE OFFICERS' RESERVE CORPS OR BE HONORABLY DISCHARGED FROM THE SERVICE. THE LAWS RELATING TO THE MEDICAL RESERVE CORPS AND DENTAL RESERVE CORPS OF THE NAVY WERE REPEALED BY THE ACT OF JULY 1, 1918, 40 STAT. 704, 708, WHICH PROVIDED THAT MEMBERS OF SUCH CORPS COULD BE ENROLLED IN THE NAVAL RESERVE FORCE IN THE GRADES AND RANKS HELD AT THAT TIME.

THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, AS AMENDED, 56 STAT. 1037, PROVIDES:

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 3 OF THE SAME ACT, AS AMENDED, PRESCRIBING THE PAY OF NATIONAL GUARD AND RESERVE OFFICERS ON ACTIVE DUTY, CONTAINS THE FOLLOWING PROVISION:

* * * IN COMPUTING THEIR SERVICE FOR PAY THEY 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 AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY- SEVENTH CONGRESS).

OFFICERS IN SERVICE ON JUNE 30, 1922, WERE AUTHORIZED TO INCLUDE PERIODS OF ACTIVE DUTY AS OFFICERS OF THE SAID MEDICAL RESERVE CORPS AND DENTAL RESERVE CORPS IN THE COMPUTATION OF THEIR LONGEVITY PAY AND, CONSEQUENTLY, SUCH OFFICERS ARE ENTITLED UNDER THE PROVISO IN THE QUOTED PART OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, TO CONTINUE TO COUNT SUCH SERVICE FOR PAY PURPOSES UNDER THE LATTER ACT. OTHERWISE, SECTIONS 1 AND 3 OF THE SAID PAY READJUSTMENT ACT OF 1942, AS AMENDED, AUTHORIZE THE COUNTING OF FULL TIME FOR ALL PERIODS DURING WHICH OFFICERS PAID THEREUNDER HAVE HELD COMMISSIONS AS OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THAT ACT AND IN CERTAIN OTHER SPECIFIED ORGANIZATIONS. SOME OF THE LATTER ORGANIZATIONS ARE PRESENTLY EXISTING RESERVE COMPONENTS OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT AND SOME ARE RESERVE COMPONENTS NO LONGER IN EXISTENCE. AS VARIOUS RESERVE COMPONENTS WERE THUS EXPRESSLY NAMED, IT IS EVIDENT THAT RESERVE COMPONENTS NOT NAMED WERE NOT INTENDED TO BE INCLUDED IN THE TERM "SERVICES MENTIONED IN THE TITLE OF THIS ACT.' THE THREE ABOLISHED RESERVE ORGANIZATIONS HERE IN QUESTION ARE NOT NAMED IN EITHER SECTION 1 OR SECTION 3 OF THE ACT. HENCE, AUTHORITY TO COUNT SERVICE THEREIN MAY NOT BE CONSIDERED AS INCLUDED WITHIN THE NAMED. HAVING IN MIND THE FAMILIAR RULE OF STATUTORY CONSTRUCTION THAT WHERE A STATUTE SPECIFICALLY ENUMERATES THE THINGS UPON WHICH IT IS TO OPERATE IT IS TO BE CONSTRUED, IN THE ABSENCE OF EVIDENCE OF A CONTRARY INTENT, AS EXCLUDING FROM ITS EFFECT ALL THOSE NOT EXPRESSLY MENTIONED, IT MUST BE HELD THAT--- WITH THE EXCEPTION OF OFFICERS IN SERVICE ON JUNE 30, 1922, WHO MAY CONTINUE TO COUNT THEIR ACTIVE SERVICE IN SUCH ORGANIZATIONS UNDER THE PROVISO IN SECTION 1--- THE COUNTING OF SERVICE IN THE MEDICAL RESERVE CORPS OF THE ARMY, THE MEDICAL RESERVE CORPS OF THE NAVY AND THE DENTAL RESERVE CORPS OF THE NAVY, ORGANIZED UNDER THE ACTS OF 1908, 1912 AND 1913, SUPRA, IS NOT AUTHORIZED UNDER SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, AS AMENDED. SEE DECISION OF TODAY, B- 32302, 23 COMP. GEN. 52, TO LIEUTENANT COLONEL CARL WITCHER, FINANCE DEPARTMENT, U.S. ARMY. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE NEGATIVE ANSWER TO QUESTION (A), QUESTION (B) REQUIRES NO REPLY.