PAY-Continued

Aviation duty-Continued

ceived injury as result of "aviation acci-
dent" within meaning of term as used in
sec. 1 (c), E. O. No. 10618, to be entitled
to flying pay during period of incapacity;
nor may assignment as participant in
low-pressure chamber be considered as-
signment as instructor-observer, as used
in sec. 9 (e) of order, to be entitled to
incentive pay for low-pressure chamber
duty for three-month period following
injury....

Aviation Reserve officers' lump-sum pay-
ments Navy Reserve officer who,
incident to release from active duty, is
eligible for both readjustment payment
and aviation lump-sum payment is re-
quired under sec. 265 (b) (5) of Armed
Forces Reserve Act of 1952, 50 U. S. C.
1016 (b) (5), to make election to receive
one or other, and there is no authority
incident to single release from service to
permit member to take all of one and
part of other even though service period
applicable to one of severance payments
is excluded...

Flights as crew member-noncrew credit
application-aviation medical officer who
did not participate in any aerial flights
as noncrew member during first 12 days
of month prior to receipt of orders, which
changed his rating to flight surgeon and
required frequent and regular flight par-
ticipation as crew member, may not
have flights performed after issuance of
orders considered for entitlement to
hazardous duty pay at rate for noncrew
members for first 12 days of month;
however, hazardous duty pay as crew
member may be allowed for balance of
month following receipt of orders.......

Flight deficiencies:

Inactive duty flight credit-members of
reserve components of uniformed
services who have flight deficiencies
during parts of complete period of ac-
tive duty or active duty for training
covering portions of 2 consecutive
calendar months may not make up
deficiencies by flights performed on
inactive duty training during other
portions of such months; however,
under flight deficiency provisions of
E. O. No. 10681 right to flying pay for
fractions of 2 consecutive months is not
subject to restriction that flight re-
quirements for both fractions must be
met or flight pay is lost, and, therefore,
members who have excess inactive
duty training flights may apply them
to active duty flight deficiencies oc-
curring in same month......

Aviation duty-Continued

Page

Flight deficiencies-Continued
Short active duty periods in one month-
flying time performed during any
short tour of active duty or active duty
for training within same calendar
month may be applied toward flight
requirements for any prior or subse-
quent short tour of active duty or
active duty for training performed
within same calendar month provided
member is under continuous flight
orders for calendar month involved...
Three-month grace period-when 3-
month grace period established pur-
suant to E. O. No. 10152 for compliance
with flight requirements expires with-
out member meeting requirements for
entire period but performing only
required flights for last month of
period, period of flight deficiencies is
merely extended so that new 3-month
period does not begin next month but
rather begins in first month in which
flight deficiencies occur following
month in which flight requirements
have been met after expiration of first
3-month period....
Suspension from flying duty-administra-
tive action required-flight officer who,
after transfer to naval hospital for treat-
ment of illness determined to be "physi-
cally incapacitating to such extent as to
disqualify him for actual control of air-
craft," performed sufficient flights during
intervals between treatments to qualify
for aviation pay may not have hospital
admission regarded as automatic sus-
pension of flight orders in absence of
suspension of member's flight status by
commanding officer pursuant to regula-
tions in par. 044087-1, Navy Comptroller
Manual, promulgated pursuant to E. O.
No. 10152, and, therefore, officer is en-
titled to aviation pay during period
flight requirements were met..
Court-martial sentences:
Duty pending review:

Enlistment expiration-Navy enlisted
man who, after expiration of his en-
listment and while restricted to his
station awaiting appellate review of
court-martial sentence of bad conduct
discharge, was assigned to post control
office to "perform duties of his rate"
is entitled to pay and allowances for
period of such duty upon transfer to
Naval Reserve and release to inactive
duty, and member is entitled to lump-
sum payment for any accrued leave
which had not been used on date of
normal expiration of enlistment, plus
such leave as may have accrued during
period of duty after expiration of his
enlistment....

PAY-Continued

Court-martial sentences-Continued
Duty pending review-Continued

Unexecuted forfeiture-restoration of en-
listed member to duty awaiting appel-
late review of court-martial sentence
of forfeiture of all pay and allowances
makes inoperative total forfeiture sen-
tence, and member is entitled to pay
and allowances on restoration to duty.

Drill:

Duty in lieu of National Guard officer
who performs equivalent training in lieu
of drills held by his unit while he is on
active duty for training at service school
may have such duty considered for pay
purposes under current regulations
which do not preclude payment for
equivalent training for active duty tram-
ing provided officer is in armory drill
status and written orders authorize such
training......
More than one a day-members of reserve
components of uniformed services who
are entitled to pay and allowances for
two paid drills or equivalent periods of
instruction performed in one calendar
day of at least eight hours' duration,
pursuant to 37 U. S. C. 301 (a), are en-
titled for retirement purposes to credit of
one point for each drill under 10 U. S. C.
1332 and 1333 which authorize one point
eredit for each drill and one day credit
for each point...

Medical and dental officers:

Rate of pay:

Active duty:
Reserves:

Inasmuch as term "full-time training
duty" is included in definition of
"active duty" in 10 U. S. C. 101
(22), it may be regarded as "active
service" within meaning of sec.
203 (b) of Career Compensation
Act of 1949, 37 U. S. C. 234 (b),
which provides special pay for Re-
serve commissioned officers who
are recalled to duty after period of
1 year or more of active duty. 36
Comp. Gen. 179, modified...
Public Health Service Reserve medi-
cal or dental officers, who perform
active duty for period of one year
or more under call or order to ex-
tended active duty for 1 year or
more, are considered commissioned
officers under sec. 203 (a) of Career
Compensation Act of 1949, 37
U. S. C. 234 (a), and as officers are
entitled to special pay provided
in sec. 203 (b) of act, 37 U. S. C.
234 (b), on recall for second tour of
active duty for less than 1 year or
for period of full-time training duty
of less than 30 days between Sept.
1, 1917, and July 1, 1959.....

Page PAY-Continued

591

193

618

264

264

Medical and dental officers-Continued
Service credits:

Concurrent Reserve service during
Internship-Army Medical Corps off-
cer who attended medical school for 4
years and trained as intern for 2 years,
during which 2-year period he was also
member of Army Reserve on inactive
duty, is entitled, under sec. 202 (a) (7)
of Career Compensation Act of 1949,
37 U. S. C. 233 (a), to constructive
service credit of 4 years, based on his
4 years in attendance at medical school,
which period may not be reduced on
account of Reserve membership during
subsequent internship......................
Retired pay purposes-Army officer who,
incident to placement on temporary
disability retired list pursuant to 10
U. S. C. 1202 and 1372, is entitled to
include constructive service by virtue
of 37 U. S. C. 233 (a) in computation of
basic pay purposes, may also receive
constructive service credit in deter
mination of multiplier factor for retired
pay under formula B in 10 U. S. C.
3991 in view of 10 U. S. C. 1401, which
permits election of most favorable of
any of other three formulas, even
though constructive service credit may
not be included in determination of
multiplier factor under formula 2 of 10
U. S. C. 1401......

Missing, interned, etc., persons:
Philippine Scouts parole time:

Effective date benefits for Philippine
Scouts provided by act of Aug. 29,
1957, which amended Missing Persons
Act, are expressly made effective from
Sept. 8, 1939; and, therefore, person
who has been discharged from service
and who would have been qualified for
retirement by including credit for parole
time as Philippine Scout may now be
placed on retired list retroactive to
Idate of discharge and in accordance
with Uniform Retirement Date Act of

1930, 5 U. S. C. 473.........
Service credit:

Benefits provided by act of Aug. 29,

were

1957, which amended Missing Per
sons Act, 50 U. S. C. App. 1002 (b),
for Philippine Scouts, who
paroled prior to termination of
Japanese occupation of Philippine
Islands and who did not join guerilla
forces or participate in other anti-
Japanese activities, entitle members
of uniformed services now on active
duty or members who have been
discharged to qualify by reason of
service credit for parole time to retire-
ment and retired pay provided that
there is no valid determination under

Page

237

794

424

PAY-Continued

Missing, Interned, etc., persons-Con.
Philippine Scouts parole time-Con.
Service credit-Continued

Page PAY-Continued

Missing Persons Act which would
show voluntary participation with
or for Japanese government to bring
them within prohibition against
receipt of benefits and provided that
initial determination had placed
them in casualty status....
Lump-sum leave benefits which have
accrued to members of Philippine
Scouts solely by virtue of act of Aug.
29, 1957, which amended Missing
Persons Act to provide benefits for
parole time, are not precluded by
time limitation in Armed Forces
Leave Act of 1946, and additional
amounts may be paid if claim is
made within 3 years after Aug. 29,
1957.....
Philippine Scouts who are in receipt of
retired pay may, by reason of bene-
fits provided by act of Aug. 29, 1957,
which amended Missing Persons
Act, have Philippine Scout parole
time credited for increased retired
pay...
Reservists on other than extended active
duty-reservists of uniformed services
who, when performing full-time training
duty, other full-time duty or inactive
duty training, with or without pay,
enter missing, etc., status covered by
sec. 2 (a) of Missing Persons Act, 50
U. S. C. App. 1002, are to be considered
as having entered such status as regular
and reserve members on extended active
duty and, therefore, are entitled to basic
allowance for quarters at increased rates
applicable to all reservists prescribed in
87 U. S. C. 231 for all periods in missing
status from date of entry into missing,
etc., status.........
Readjustment payment to reservists on in-
voluntary release:

Election requirement-Navy Reserve of
ficer who, incident to release from active
duty, is eligible for both readjustment
payment and aviation lump-sum pay-
ment is required under sec. 265 (b) (5)
of Armed Forces Reserve Act of 1952,
50 U. S. C. 1016 (b) (5), to make election
to receive one or other, and there is no
authority incident to single release from
service to permit member to take all of
one and part of other even though service
period applicable to one of severance
payments is excluded....
Five years of service combination of serv-
ice in different branches-five-year con-
tinuous active service requirement for
entitlement to lump-sum readjustment
payment provided in sec. 265 of Armed
Forces Reserve Act of 1952 does not

424

424

424

659

713

Readjustment payment to reservists on in-

voluntary release-Continued

specify that active duty be performed in
same military service, and, therefore,
active duty as Reserve in one service
may be combined with active duty in
another service.....
Subsequent service:

Page

357

Provision in sec. 265 of Armed Forces
Reserve Act of 1952 that acceptance
of lump-sum readjustment payment
shall not deprive person of any retired
pay to which he would "otherwise
become entitled" does not apply
solely to eligibility for retirement with
retired pay arising by operation of
law but is applicable also to retirement
resulting from voluntary act, and,
therefore, officer who, after receipt of
lump-sum readjustment payment on
involuntary release from active duty,
subsequently enlists and becomes
eligible for retirement on account of
enlistment does not need to refund
lump-sum readjustment payment..... 357
Reserve officer who, after involuntary
release from active duty following at
least 5 years of active service, enlists
in regular component or enters on
active duty as regular or reserve
officer in same or another military
service on next day or at any later
time may be regarded as released from
active duty for entitlement to lump-
sum readjustment payment provided
in sec. 265 of Armed Forces Reserve
Act of 1952...

Retired:

Advancement on retired list:

Enlisted members advanced to officer
grade-retired enlisted men who are
advanced on retired list to com-
missioned or warrant officer grade,
pursuant to 10 U. S. C. 3964, and who
have service as cadets in U. S. Mili-
tary Academy, or as midshipmen in
U. S. Naval Academy, or as cadets
in U. S. Coast Guard Academy retain
their enlisted status so that prohibition
in 10 U. S. C. 3682 against commis-
sioned officers counting cadet or mid-
shipman service is not applicable, and,
therefore, such cadet and midshipman
service is creditable for retired pay
purposes...
Highest temporary grade determina-
tions:

Any retired pay case considered simi-
lar to Grayson case, (Grayson v.
U. S., C. Cls. No. 248-54), which
was based on particular facts relating
to this member's military status,
should be submitted for advance
decision for consideration separately
on individual merits of each case.....

357

465

538

PAY-Continued

Retired-Continued

Advancement on retired list-Continued
Highest temporary grade determina-

tion-Continued

Army colonel who, after placement on
retired list on Dec. 31, 1952, was
appointed brigadier general in
National Guard of U. S. and sub-
sequently promoted to major general
but who was not ordered to active
duty by Federal Govt. and did not
serve on active duty in either of
higher grades does not meet require-
ments in 10 U. S. C. 3963 (a) for
advancement to grade of brigadier
general or major general on retired
list, nor does he come within scope
of 10 U. 8. C. 1005 (subsequently
repealed) applicable to officers who
are retired while serving on active
duty in higher temporary grades....

Annuity elections for dependents:
Annulment of widow's remarriage

effect of Calif. court decree annulling
Nev. marriage contracted by widow of
naval officer is governed, under Calif.
conflict of law rule, by law of place
where marriage is contracted and
under Nev. law such annulment is
effective from date of decree; there-
fore, widow who was in receipt of
annuity which was payable until her
death or remarriage and then went to
decedent's adopted son is not entitled
to resume receiving annuity in her own
right after date of decree...
Incompetente-time for election-an
nuity election proposed to be made,
on behalf of mentally incompetent
officer, pursuant to sec. 3 of Uniformed
Services Contingency Option Act of
1053, approximately 2 years after his
retirement and almost 1 and 4 years
after receipt of request from officer's
wife for approval of her election and
over 6 months after death of member
may not be regarded as having been
made at time of retirement to effect
valid clection.....
Validity-member of uniformed services
who, at time of appearance before phys-
ical evaluation board and before com
pletion of 18 yrs, service, signed paper
indicating desire to make election to
provide annuity for dependents, al-
though neither dependents nor amount
of benefits was indicated, but who did
not execute election option form until
several months after placement on
disability retired list may not be
regarded as having made valid election
at time of retirement as required in
10 U. 8. C. 1431...

Combat citations—rear admirals—McColl

case application-Navy captain who was

Page

Page PAY-Continued
Retired-Continued
transferred to retired list and advanced
to rank of rear admiral but who con-
tinued on active duty may have advance-
ment on retired list regarded as con-
ferring on him permanent grade of rear
admiral, in consonance with decision in
McColl v. U. 8., decided Jan. 16, 1957,
C. Cls. No. 137-56, and, therefore, officer
who served satisfactorily on active duty
for 2 years as rear admiral is entitled to
active duty pay and allowances of rear
admiral (upper half) under 10 U. S. C.
5507 (e). B-68965, July 19, 1955, modified. 226
Disability:

538

188

515

843

Cadets, midshipmen, etc.:
Temporary disability retirement after
August 10, 1956:

Express exclusion of aviation cadets
from disability retirement benefits
by 10 U. 8. C. 1217 precludes pay.
ment of physical disability retired
pay or severance pay to aviation
cadets subsequent to Aug. 10,
1956-effective date of enactment
into positive law of Title 10 of
U. S. Code and decision of Comp
troller General in 30 Cornp. Gen.
431, based on statute which was
substantially changed by codifica-
tion of Title 10, may not be re-
garded as precedent with respect
to aviation cadets not retired or
placed on temporary disability
retired list prior to Aug. 10, 1956.. 166
Aviation cadets whose names were
placed on temporary disability re-
tired list pursuant to Title IV of
Career Comp. Act of 1949, which
has been repealed and codified as
Chap. 61, Title 10, U. 8. Code and
which specifically excludes avia
tion cadets, may continue to be
carried on that list and be paid
retired pay after Aug. 10, 1956-
effective date of enactment of Title
10 into positive law-pursuant to
savings provision in sec. 53 of act
of Aug. 10, 1956, which continues
rights begun prior to Aug. 10,

1956...
Placement of aviation cadet on

temporary disability retired list
prior to Aug. 10, 1956-effective
date of enactment into positive
law of Title 10 of U. 8. Code,
which specifically excludes aviation
cadets from disability retirement
benefits-is regarded as initial step
in action which will lead elther to
return to duty, retirement or sep-
aration for physical disability 30
as to be considered a proceeding
begun prior to Aug. 10, 1956,
within savings provision in sec. 53

166

PAY-Continued

Retired-Continued
Disability-Continued

Cadets, midshipmen, etc.—Continued
Temporary disability retirement after
August 10, 1956-Continued
of act of Aug. 10, 1956, even though
disability determination is made
subsequent to Aug. 10, 1956...----
Disability found prior to physical exami-
nation for promotion-higher grade
retired pay-Coast and Geodetic Sur-
vey officer who was not given physical
examination for promotion from grade
of It. to It. comdr. because he was
undergoing medical treatment and at
time of release from hospital disquali-
fying nature of physical condition
practically eliminated need for pro-
motion physical examination and who
then was given physical examinations
to determine eligibility for disability
retirement may not have disqualifying
nature of disability regarded as having
been found to exist as result of physical
examination for promotion to be en-
titled to higher retired pay based on
grade of It. comdr. under 5th proviso
of sec. 402 (d) of Career Compensation
Act of 1949.--

Election of retired pay-finality—al-
though disability retired pay election
provisions of sec. 411 of Career Com-
pensation Act of 1949 do not specify
that election is final and binding,
election is required to be made within
5 years of Oct. 1, 1949-effective date
of act-and, unless member's status
has changed so that he did not have
opportunity to change first election
during 5-year period to take advantage
of new status, election once made is
final and binding on retired member..
Inactive time credit. (See Pay, service

credits, inactive time, on retired list,
retired pay increase purposes)
Members who served in higher rank
than at retirement-payment basis—in
computation of retired pay of members
of uniformed services retired for physi
cal disability who hold permanent Re-
serve grades which are higher than
temporary grades in which they are
serving on active duty at time of re-
tirement, rule established in case of
Tracy v. U. S., 136 C. Cls. 211, and
related cases, which authorized com-
putation of retired pay on basis of
higher Reserve grade, will be followed
by GAO not only with respect to ap-
plicability of 4th par. of sec. 15, Pay
Readjustment Act of 1942, to Reserve
officers retired for disability but also
with respect to disability retirement
pay under sec. 402 (d), Career Com-
pensation Act of 1949 or under 10

Page PAY-Continued
Retired-Continued
Disability-Continued

166

89

31

retired pay under one of methods
provided in sec. 511 of Career Com-
pensation Act of 1949 does not pre-
clude recomputation of retired pay
on basis of other method if conditions
change in such manner that retired
member's pay would increase by
such recomputation, secs. 5 and 6 of
Career Incentive Act of 1955, 37
U. S. C. 3218 and 322a, preclude fur-
ther recomputations of retired pay
under sec. 511 of 1949 act, and in that
respect method of computation of
retired pay is final and binding on
retired member......

Most favorable formula-Army officer
who, incident to placement on tem-
porary disability retired list pursuant
to 10 U. 8. O. 1202 and 1372, is entitled
to include constructive service by
virtue of 37 U. S. O. 233 (a) in com-
putation of basic pay purposes, may
also receive constructive service
credit in determination of multiplier
factor for retired pay under formula
B in 10 U. S. C. 3991 in view of 10
U. S. C. 1401, which permits election
of most favorable of any of other
three formulas, even though con-
structive service credit may not be
included in determination of multi-
plier factor under formula 2 of 10
U. S. C. 1401..

Other retirement benefits:
Although proviso in subsec. 402 (f) of
Career Compensation Act of 1949,
which permitted certain members of
uniformed services who were re-
quired to be retired for physical dis-
ability to be retired under laws
relating to voluntary and involun-
tary retirement, has not been re-
stated in Title 10 of U. S. Code
which reenacted into positive law
disability retirement provision of
sec. 402 of 1949 act, it continues to be