B-134808, MAR. 6, 1958

B-134808, MAR. 6, 1958

TO MR. GEORGE W. HAYMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1957, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 29, 1957, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES.

ACCORDING TO THE RECORD, YOU ENLISTED ON APRIL 12, 1951, FOR THREE YEARS; ABSENTED YOURSELF FROM DUTY ON JULY 20, 1953; AND WERE DECLARED A DESERTER ON SEPTEMBER 9, 1953, AS OF JULY 20, 1953. AFTER APPREHENSION BY CIVIL AUTHORITIES ON FEBRUARY 24, 1955, YOU WERE RETURNED TO MILITARY CONTROL ON FEBRUARY 28, 1955. ON THE DATE WHEN YOUR ENLISTMENT CONTRACT TERMINATED (APRIL 11, 1954), YOU WERE IN ADESERTION STATUS, AND THERE IS NO INDICATION THAT YOUR ABSENCE WAS EXCUSED AS UNAVOIDABLE.

SECTION 4B OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33B, PROVIDES IN PERTINENT PART AS FOLLOWS:

"WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY (MEMBERS OF THE ARMED FORCES) SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS AVOIDABLE.'

PURSUANT TO THE STATUTE, THEREFORE, YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES WHILE IN A DESERTION STATUS FOR THE PERIOD JULY 20, 1953, TO FEBRUARY 28, 1955.

SUBSEQUENT TO YOUR RETURN TO MILITARY CONTROL ON FEBRUARY 28, 1955, YOU WERE ADMITTED TO A NAVAL HOSPITAL FOR MEDICAL TREATMENT AND THEN TRANSFERRED TO A VETERANS HOSPITAL AT LITTLE ROCK, ARKANSAS. DURING THE COURSE OF YOUR TREATMENT, A PHYSICAL EVALUATION BOARD CONVENED ON TWO OCCASIONS TO CONSIDER YOUR CASE. ON THE SECOND OCCASION, NOVEMBER 15, 1956, THE BOARD MADE RECOMMENDED FINDINGS, A COPY OF WHICH WAS FORWARDED BY YOU IN THE LETTER OF DECEMBER 16, 1957, TO THE EFFECT THAT YOUR DISABILITY WAS AN INCIDENT OF YOUR SERVICE. THE PHYSICAL REVIEW COUNCIL PROPOSED SUBSTITUTE FINDINGS, HOWEVER, AND TRANSMITTED THIS INFORMATION TO YOU, OR YOUR REPRESENTATIVE, BY A SPEEDLETTER DATED DECEMBER 27, 1956. FEBRUARY 14, 1957, THE PHYSICAL DISABILITY APPEAL BOARD (MARINE CORPS) SUBMITTED TO THE SECRETARY OF NAVY AN ADVISORY OPINION RECOMMENDING THAT THE PROPOSED SUBSTITUTE FINDINGS OF THE PHYSICAL REVIEW COUNCIL BE APPROVED. WE HAVE BEEN INFORMED THAT THE SUBSTITUTE FINDINGS DETERMINED THAT YOUR DISABILITY WAS NOT AN INCIDENT OF SERVICE. YOU WERE DISCHARGED ON APRIL 12, 1957, BY REASON OF PHYSICAL DISABILITY BUT WITHOUT DISABILITY BENEFITS.

SINCE YOUR TERM OF ENLISTMENT EXPIRED PRIOR TO THE MEDICAL CARE AND HOSPITALIZATION FURNISHED YOU, THERE ARE FOR APPLICATION THE TERMS OF OF 10 U.S.C. 5537 WHICH PROVIDE:

"AN ENLISTED MEMBER OF THE NAVAL SERVICE ON ACTIVE DUTY WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS SUFFERING FROM DISEASE OR INJURY INCIDENT TO SERVICE AND NOT DUE TO HIS MISCONDUCT, AND WHO NEEDS MEDICAL CARE OR HOSPITALIZATION, MAY BE RETAINED ON ACTIVE DUTY, WITH HIS CONSENT, UNTIL HE RECOVERS TO THE EXTENT THAT HE IS ABLE TO MEET THE PHYSICAL REQUIREMENTS FOR REENLISTMENT OR UNTIL IT IS DETERMINED THAT RECOVERY TO THAT EXTENT IS IMPOSSIBLE.

WHILE THE BENEFITS PROVIDED BY THIS STATUTE ARE BROAD ENOUGH TO INCLUDE CASES IN WHICH THE CONDITION CALLING FOR MEDICAL OR HOSPITAL CARE IS DISCOVERED AFTER THE EXPIRATION OF THE ENLISTMENT BUT PRIOR TO DISCHARGE, 35 COMP. GEN. 366, 368, THEY ARE NOT AVAILABLE, UNDER THE PLAIN TERMS OF THE STATUTE QUOTED ABOVE, TO INDIVIDUALS WHOSE DISEASE OR INJURY WAS NOT INCIDENT TO SERVICE. IN VIEW OF THE DECISION OF THE SECRETARY OF THE NAVY THAT YOUR DISABILITY WAS NOT AN INCIDENT OF SERVICE, YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD MARCH 1, 1955, TO APRIL 12, 1957, WHEN YOU WERE UNDERGOING MEDICAL TREATMENT AND WERE RETAINED IN THE SERVICE AFTER THE EXPIRATION OF YOUR ENLISTMENT.