B-139006, JUNE 17, 1959, 38 COMP. GEN. 841

B-139006, JUNE 17, 1959, 38 COMP. GEN. 841

MILITARY PERSONNEL - PAY - ACTIVE DUTY - RESERVISTS INJURED PRIOR TO TRAINING DUTY INJURIES SUSTAINED BY RESERVISTS WHILE THEY ARE PERMITTED TO USE GOVERNMENT-FURNISHED QUARTERS OR GOVERNMENT TRANSPORTATION PRIOR TO THE PERFORMANCE OF INACTIVE DUTY TRAINING DRILLS MAY NOT BE REGARDED AS INJURIES SUFFERED WHILE ACTUALLY PERFORMING INACTIVE DUTY TRAINING FOR ENTITLEMENT TO COVERAGE UNDER THE ACT OF JUNE 20, 1949, 34 U.S.C. 855C 1, NOTWITHSTANDING THAT RESERVISTS RECEIVE DRILL PAY AND ALLOWANCES BASED ON THE ENTIRE DRILL DAY.

TO THE SECRETARY OF DEFENSE, JUNE 17, 1959:

REFERENCE IS MADE TO LETTER OF MARCH 14, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION AS TO WHETHER THE BENEFITS OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C 1, ARE LIMITED, INSOFAR AS CONCERNS PERSONNEL ON INACTIVE DUTY TRAINING, TO INJURIES INCURRED DURING PERIODS WHEN THEY ARE ACTUALLY PERFORMING TRAINING DUTIES, THAT IS, BEGINNING WITH MUSTER AND ENDING WITH DISMISSAL.

THE QUESTIONS ARE SET FORTH IN COMMITTEE ACTION NO. 240 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. IS THE "WHILE SO EMPLOYED" COVERAGE OF PUBLIC LAW 108, EIGHTY FIRST CONGRESS, OF INJURIES SUFFERED BY INACTIVE-DUTY TRAINEES LIMITED TO PERIODS OF PERFORMANCE OF SUCH TRAINING BEGINNING WITH MUSTER AND ENDING WITH DISMISSAL?

2. IF THE ANSWER TO QUESTION 1 IS NOT AFFIRMATIVE, WOULD SUCH COVERAGE EXTEND TO:

A. AN INJURY SUFFERED WHILE OCCUPYING GOVERNMENT QUARTERS INCIDENT TO SUCH TRAINING BUT NOT DURING SUCH A PERIOD THEREOF?

B. AN INJURY SUFFERED WHILE BEING SUBSISTED AT A GOVERNMENT MESS INCIDENT TO SUCH TRAINING BUT NOT DURING SUCH A PERIOD THEREOF?

C. AN INJURY SUFFERED WHILE BEING TRANSPORTED (NO REIMBURSEMENT INVOLVED) BY GOVERNMENT AIR TRANSPORTATION INCIDENT TO SUCH TRAINING BUT NOT DURING SUCH A PERIOD THEREOF?

3. IF QUESTION 2B SHOULD BE ANSWERED IN THE NEGATIVE, WOULD IT MAKE ANY DIFFERENCE IF THE INJURY WAS SUFFERED WHILE BEING SUBSISTED AT A GOVERNMENT MESS DURING A PERIOD OF INACTIVE-DUTY TRAINING BUT NOT WHILE PERFORMING SUCH TRAINING DUTIES?

IT APPEARS THAT QUESTIONS 1 AND 2A STEM DIRECTLY FROM AN ACTUAL CASE IN WHICH A SERGEANT, U.S. MARINE CORPS RESERVE (READY STATUS) AND A MEMBER OF A MARINE AIR RESERVE SQUADRON, IN DRILL PAY STATUS, PROCEEDED FROM HIS HOME IN NORTH CAROLINA (NO REIMBURSABLE TRAVEL INVOLVED) TO U.S. NAVAL AIR STATION, NORFOLK, VIRGINIA, IN ORDER TO BE PRESENT FOR WEEKEND DRILL AND MUSTER AT 10730 ON DRILL DAY. QUARTERS WERE PROVIDED IN THE BARRACKS AT THE NAVAL AIR STATION THUS ENABLING HIM, AS WELL AS OTHER DRILLING MEMBERS OF THE SQUADRON, TO SLEEP THERE PRIOR TO MUSTER INCIDENT TO THE PERFORMANCE OF DRILLS.

SHORTLY AFTER HIS ARRIVAL AT THE BARRACKS AT 10020 ON DRILL DAY, THE SERGEANT SUFFERED AN INJURY WHICH WAS DETERMINED TO HAVE BEEN INCURRED IN THE LINE OF DUTY AND NOT AS THE RESULT OF MISCONDUCT. IT IS POINTED OUT IN THE COMMITTEE ACTION THAT THE SERGEANT'S CASE HAS STRONG EQUITABLE FEATURES IN THAT HE WAS NOT A TRESPASSER; THAT THERE APPEARED NO LEGAL REASON TO PREVENT FURNISHING QUARTERS TO HIM PRIOR TO THE DRILL, AND THAT IF THE DRILL HAD BEEN ACCOMPLISHED, HIS PAY WOULD HAVE BEEN ON THE BASIS OF THE ENTIRE DAY.

THE ACT OF JUNE 20, 1949, 63 STAT. 201, PROVIDED, IN PERTINENT PART, THAT A MEMBER OF THE RESERVE WHO IS ORDERED TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY "WHILE SO EMPLOYED," IS ENTITLED TO THE SAME PENSION, COMPENSATION, DEATH GRATUITY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR SERVICES.

IN THE COMMITTEE ACTION IT IS STATED THAT WHILE WE HAVE INDICATED (SEE 33 COMP. GEN. 551, 33 COMP. GEN. 599, 34 COMP. GEN. 275) THAT WE WOULD FOLLOW THE HOLDING OF THE COURT OF CLAIMS IN MILTON C. ADAMS V. UNITED STATES, 127 C.1CLS. 470, THAT A RESERVIST TRAVELING TO AND FROM ACTIVE DUTY FOR TRAINING UNDER COMPETENT ORDERS IS IN AN ACTIVE DUTY STATUS WHILE TRAVELING, THE NAVY JUDGE ADVOCATE GENERAL HAS STATED IN AN OPINION OF JANUARY 17, 1956, THAT---

* * * HOWEVER, IN RESPECT TO PERIOD OF INACTIVE DUTY TRAINING (DRILLS), THE LIMITATION THAT THE DEATH OR INJURY MUST OCCUR DURING THE PERIODS "WHILE SO EMPLOYED" IS TO BE LITERALLY APPLIED. INSOFAR AS THE DRILLS TO BE PERFORMED ARE OF FIXED PERIODS OF DURATION AND DO NOT INCLUDE TRAVEL TO OR FROM THE SITE THEREOF, SUCH TRAVEL, NO MATTER WHETHER ACCOMPLISHED VIA PUBLIC OR PRIVATE CARRIER IS OUTSIDE THE CONTEMPLATION OF (10 U.S.C. 6148).

BECAUSE OF THE OBVIOUS DIFFICULTIES IN ADMINISTRATION, IF CONGRESS HAD INTENDED TO COVER RESERVISTS ON INACTIVE DUTY TRAINING DRILLS WHEN NOT ACTUALLY PERFORMING TRAINING DRILLS, IT DOUBTLESS WOULD HAVE USED APPROPRIATE LANGUAGE TO MAKE THAT INTENTION CLEAR. SEE, FOR EXAMPLE, SECTION 102 (6) (B) OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, APPROVED AUGUST 1, 1956, 70 STAT. 859, 38 U.S.C. 1101 (6) (B), WHERE THE CONGRESS EXPRESSLY PROVIDED THAT A RESERVIST SHOULD BE DEEMED TO BE ON INACTIVE DUTY TRAINING WHILE PROCEEDING DIRECTLY TO OR RETURNING DIRECTLY FROM INACTIVE DUTY TRAINING AND ESTABLISHED STANDARDS FOR THE DETERMINATION OF WHEN THE RESERVIST IS SO PROCEEDING. IN THAT CONNECTION H. REPT. NO. 993, PART I, 84TH CONGRESS, AT PAGE 30, STATES WITH RESPECT TO THAT PROVISION THAT---

SOME FEARS HAVE BEEN EXPRESSED TO THE COMMITTEE THAT THIS SUBPARAGRAPH WILL LEAD TO MANY CLAIMS BY PERSONS NOT ENTITLED TO BENEFITS. THE COMMITTEE HAS THEREFORE PROVIDED AS A SAFEGUARD THAT WHEN ANY CLAIM IS FILED BY REASON OF THIS SUBPARAGRAPH, THE BURDEN OF PROOF SHALL BE UPON THE CLAIMANT.

IN THE ABSENCE OF CLEAR LANGUAGE IN THE STATUTE, SUCH AS THAT CONTAINED IN THE 1956 ACT, IT IS OUR VIEW THAT THE CONGRESS INTENDED TO PROVIDE COVERAGE FOR INJURIES SUFFERED BY INACTIVE DUTY TRAINEES ONLY WHILE ACTUALLY PERFORMING INACTIVE DUTY TRAINING (32 COMP. GEN. 554) EVEN THOUGH BY CUSTOM RESERVISTS MAY BE PERMITTED ON THE PREMISES AND FURNISHED QUARTERS OR GOVERNMENT TRANSPORTATION PRIOR TO SUCH TRAINING DUTY. THE ANSWER TO QUESTION ONE BEING IN THE AFFIRMATIVE, NO SPECIFIC ANSWER IS REQUIRED FOR THE REMAINING QUESTIONS. THE FACT THAT BY LAW A RESERVIST'S PAY FOR ONE DRILL IS EQUAL TO ONE DAY'S PAY AND ALLOWANCES PROVIDES NO BASIS FOR CONCLUDING THAT A RESERVIST IS EMPLOYED ON INACTIVE DUTY TRAINING FOR THE ENTIRE DAY ON WHICH A DRILL IS PERFORMED.