It is believed that this situation was due to the early announcement that the Congress was not expected to extend Selective Service induction and the desire of such graduates immediately to establish civilian practice, for had they applied for and accepted such appointments they would have been ordered to active duty in accordance with Procurement Directive 1-47. After 31 March 1947, Selective Service registrants were no longer eligible for induction into the armed forces. However, all applicants who accepted appointments as lieutenant (j. g), DCR, USNR, were still ordered to active duty in accordance with the Bureau of Naval Personnel letter of 15 June 1946. In view of the small number of such graduates who applied for appointment and in order to procure a larger number of junior officers in the Naval Reserve, the Bureau of Naval Personnel dispatch of 19 May 1947 was promulgated, placing active duty orders on a voluntary basis.

(h) Dental students who received any part of their training at Government expense were not required to obligate themselves to apply for a commission upon graduation or for any period of service after being commissioned. However, any dental student who reported for active duty as a Naval Reserve dental officer subsequent to 29 May 1946, is being retained on active duty under the provisions of Alnav 281-46 as modified by Alnav 556-46.

Title I of the Army-Navy-Public Health Service Medical Officer Procurement Act of 1947, above cited, which was approved on 5 August 1947, provides, in pertinent part, as follows:

SEC. 101. The Pay Readjustment Act of 1942 (56 Stat. 359), as amended, is hereby further amended by inserting immediately after section 1 thereof the following new section:

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* (3) such

* Dental who may, dur

"SEC. 1A. (a) The term 'commissioned officers', as used in this section, shall be interpreted to mean only officers, now or hereafter commissioned in the Corps of * * * the Naval Reserve * * * ing the 5-year period immediately following the effective date of this section, volunteer and be accepted for extended active duty of one year or longer;

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"(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: ** * * 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."

SEC. 102. This title shall become effective on the first day of the first calendar month following its enactment, and the payments herein provided shall not accrue for any period prior thereto. Reserve dental officers now being retained on active duty pursuant to the provisions of Alnav 281-46, as modified by Alnav 556-46, may be grouped as follows: (a) those who were serving on active duty on 29 May 1946 when Alnav 281-46 was promulgated and who have not yet completed 2 years of active duty as dental officers; (b) those who accepted commissions and were ordered to active duty during the periods subsequent to 29 May 1946 when Selective Service induction (1) was effective, (2) was effective but expected to expire, and (3) had expired; and (c) those who accepted commissions and were ordered to active duty subsequent to 19 May 1947, when acceptance of active duty orders was placed on a voluntary basis.

It was suggested that officers who accepted commissions after the early announcement that Congress would permit Selective Service induction to expire may be considered as serving in a volunteer duty status and that a stronger case for such consideration is presented by those officers who accepted commissions after such induction provisions had expired. It was suggested further that group (c) may be considered as in a volunteer duty status because they accepted commissions after the induction provisions had expired and were ordered to active duty only with their consent.

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The foregoing suggestions cannot stand against the language of Title I of the Army-Navy-Public Health Service Medical Officer Procurement Act of 1947, above quoted, which provides that such Reserve dental officers "who may, during the 5-year period immediately following (1 September 1947), volunteer and be accepted for extended active duty * shall be entitled to (the additional pay) for each month of active service And provided further, That (they) shall receive the pay only during periods of volunteer service.” None of the officers in any of the groups described above has volunteered and been accepted for extended active duty subsequent to 1 September 1947. Granting, for the sake of argument, that the officers in any or all of such groups could be said to have volunteered for active duty, the provisions of Alnav 281-46, as modified by Alnav 556-46, apply equally to the officers of all of such groups and each of such officers is obligated thereby to serve for a period of 2 years, computed from the date of his reporting for active duty. During such period that a Reserve dental officer is thus obligated to serve, he cannot be considered to be performing months of active service "during periods of volunteer service" within the meaning of the act.

A review of the legislative history of the Army-Navy-Public Health Service Medical Officer Procurement Act of 1947, above cited, demonstrates quite clearly that the Congress intended to exclude from the additional pay benefits of the act all of those Reserve dental officers who received some or all of their professional education at Government expense and are being retained on active duty pursuant to the provisions of Alnav 281-46, as modified by Alnav 556-46.

Title I of H. R. 3851, Eightieth Congress, first session, as amended and favorably reported to the House of Representatives by the House Committee on Armed Services, contained the same provisions as Title I of the act as above set forth, except that the eligibility period was set at 2 years. The report of the Committee (H. R. Rep. No. 703, 80th Cong., 1st sess.) contained the following statement:

The proposed bill also contains a provision limiting the pay increase to volunteer service insofar as Reserve officers are concerned * * * the increase will not apply to those doctors who are under obligation to serve for stated periods. It was felt that since these doctors received some or all of their education at Government expense and since they are obligated to serve for stated periods, there is no justification for granting them the $100 pay increase unless they apply for Regular commissions. Title I of S. 1661, Eightieth Congress, first session, prepared and favorably reported to the Senate by the Senate Committee on Armed Services after a consideration of several bills, including H. R. 3851, above cited, retained Title I of H. R. 3851 unchanged except that the eligibility period was extended from 2 years to 5 years. S. 1661 was passed by the Senate and the House of Representatives without amendment and, upon approval by the President on August 5, 1947, became the Army-Navy-Public Health Service Medical Officer Procurement Act of 1947, above cited.

Senator Morse, of the Senate Committee on Armed Services, stated on the floor of the Senate (93 Cong. Rec. 10032 (July 23, 1947)):

This bill (S. 1661) does not cover the trainees. In fact, it does not cover the V-12 trainees who have received great benefits from the Army and Navy in connection with their medical courses.

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And Mr. Blackney, of the House Committee on Armed Services, stated on the floor of the House of Representatives (93 Cong. Rec. 10553 (July 26, 1947)):

A further proviso states that the Reserve officers mentioned in the act (S. 1661) shall only receive the pay increase during periods of voluntary service. This provision specifically prohibits the pay

increase from applying to those Reserve doctors now on active duty who are obligated to serve for stated periods of time because all or part of their education was paid for by the Government.

In view of the foregoing, it was held by the Judge Advocate General that referral of the question raised by the Bureau of Medicine and Surgery to the Comptroller General was not necessary since none of the officers of the Dental Corps of the United States Naval Reserve, who are now being retained on active duty pursuant to the provisions of Alnav 281-46, as modified by Alnav 556-46, may be considered as serving in a volunteer duty status as contemplated by the provisions of Title I of the Army-Navy-Public Health Service Medical Officer Procurement Act of 1947, above cited, and none of such officers may become eligible for the additional compensation provided for by the act while so retained on active duty.

Attention was invited to Alnav 184–47, promulgated 26 August 1947, the following provisions of which were considered a correct interpretation of the act:

2. It is to be particularly noted that Reserve medical and dental officers performing obligated service in accordance provisions Alnav 281-46 are specifically excluded from the benefits of this law by virtue of their involuntary status. Personnel in this category may establish eligibility for added compensation by appointment to permanent commissioned status in Regular Navy at any time during period of their obligated service.

(File: JAG: II: GSS: ap, 16 Jan. 1948.)

Pay status of officer awaiting retirement.

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The question presented was whether an officer of the regular service under orders placing him in a waiting status pending retirement proceedings, but providing for release to inactive duty on a given date, was released to inactive duty on the date specified or whether he continued in a waiting and active duty status until placed on the retired list.

By letter of 25 July 1946 to the Secretary of the Navy, Captain A requested retirement upon the completion of 30 years' service on 16 September 1946. On 20 September 1946, the Bureau of Naval Personnel issued processing orders which directed him, on detachment from duty station and discharge from any necessary hospitalization or treatment, to "await orders pending retirement." One of the concluding paragraphs of the orders advised Captain A that "you will regard yourself relieved of all active duty in the U. S. Navy on 1 January 1947. A letter from the Secretary of the Navy formally placing you on the retired list as of that date will be forwarded to you shortly thereafter." It should be particularly noted that the provision for release from

active duty on 1 January 1947, was stated in conjunction with a notification of and presupposed retirement on that date.

It appeared further that, pursuant to the report of a board of medical survey and a recommendation from the Bureau of Medicine and Surgery, the Secretary of the Navy issued orders to Captain A on 6 December 1946, canceling his previous orders of 20 September 1946, and ordering him to appear before a Naval Retiring Board for examination and thereafter to "await orders pending action on the proceedings of the Naval Retiring Board." These orders, however, also carried the provision for release to inactive duty on 1 January 1947, in the same words and connection quoted above from the orders of 20 September 1946. Early in February 1947, the Naval Retiring Board found that Captain A was not eligible for disability retirement, and on 12 February 1947, the Bureau of Naval Personel recommended that he be retired for 30 years' service under the provisions of the act of May 13, 1908 (34 U. S. C. 383), as originally requested, effective 1 March 1947.

In line with the Bureau's recommendation of 12 February 1947, the Chief of Naval Personnel issued a correction of orders to Captain A on 14 February 1947, which purported to correct the orders issued by the Secretary of the Navy on 6 December 1946, by changing the date of release to inactive duty from 1 January 1947 to 1 March 1947. The Chief of the Bureau of Supplies and Accounts questioned the legal authority of the Chief of Naval Personnel to correct or modify the Secretary's orders of 6 December 1946. He recognizes Captain A's right, however, to active duty pay and allowances during the waiting period prior to retirement and, accordingly, suggested that the Secretary of the Navy issue superseding orders for the purpose of correcting the "administrative error" in the orders of 6 December 1946, in order to clear the records and enable Captain A to receive active duty pay and allowance for the indicated period.

There was no error in either the orders of the Bureau of Naval Personnel of 20 September 1946 or the Secretary's orders of 6 December 1946. The provisions for Captain A's release to inactive duty on 1 January 1947, were consistent and proper when those orders were issued. Although modification would have been in order, any action for the "correction" of the orders was inappropriate. It was, therefore, unnecessary to consider the effect of the correction of orders of 14 February 1947, or the authority of the Chief of Naval Personnel in the premises.

The failure to consummate Captain A's retirement by 1 January 1947 created an ambiguity in his orders. The provision for release to inactive duty on 1 January 1947, was no longer consistent with the direction to await orders pending action of the Naval Retiring Board.