B-128984, SEPTEMBER 28, 1956, 36 COMP. GEN. 246

B-128984, SEPTEMBER 28, 1956, 36 COMP. GEN. 246

MILITARY PERSONNEL - DISABILITY, RETIRED PAY - RESERVISTS INJURED EN ROUTE TO DUTY STATION A RESERVIST WHO WAS AUTHORIZED TO TRAVEL BY PRIVATELY-OWNED AUTOMOBILE TO DUTY FOR A PERIOD OF LESS THAN THIRTY DAYS, AND WHO WAS INJURED IN AN AUTOMOBILE ACCIDENT EN ROUTE ON THE DAY ON WHICH IT WOULD HAVE BEEN NECESSARY TO DEPART BY RAIL TO REACH THE DUTY STATION ON THE REPORTING DATE, WOULD BE ENTITLED TO ACTIVE DUTY PAY FOR THE COMPLETE DAY OF TRAVEL REGARDLESS OF WHETHER THE INJURY OCCURRED BEFORE OR AFTER THE NECESSARY DEPARTURE TIME BY RAIL, AND, THEREFORE, THE MEMBER MAY BE CONSIDERED ON ACTIVE DUTY FOR DISABILITY RETIREMENT PAY. A NAVAL RESERVIST WHO, AFTER DENIAL OF DISABILITY RETIREMENT PAY FOR AN INJURY WHICH OCCURRED EN ROUTE TO TRAINING, RECEIVED BENEFITS UNDER FEDERAL EMPLOYEES' COMPENSATION ACT MAY NOT BE REGARDED AS HAVING MADE AN ELECTION UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 34 U.S.C. 855 C-3, AND, THEREFORE, THE MEMBER ON DETERMINATION OF ELIGIBILITY FOR DISABILITY RETIREMENT PAY UNDER SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949 MAY ELECT TO RECEIVE DISABILITY RETIREMENT PAY FROM THE DATE HIS NAME IS PLACED ON THE RETIRED LIST PROVIDED THE COMPENSATION PAYMENTS RECEIVED FOR SUCH PERIOD ARE REFUNDED.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 28, 1956:

REFERENCE IS MADE TO LETTER OF AUGUST 11, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), REQUESTING DECISION ON CERTAIN QUESTIONS STATED BELOW.

IT APPEARS THAT BY ORDERS DATED FEBRUARY 15, 1952, AND ADDRESSED TO HIM AT HIS HOME IN SAN DIEGO, CALIFORNIA, LIEUTENANT RALPH W. OTTERSTROM, UNITED STATES NAVAL RESERVE, WAS DIRECTED TO REPORT PRIOR TO 11:00 A.M. ON MARCH 3, 1952, TO TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA, FOR FIVE DAYS' TRAINING DUTY WITH PAY. IT IS STATED THAT TRAVEL BY PRIVATE AUTOMOBILE WAS AUTHORIZED UNDER ARTICLE C-5317 (2), BUREAU OF NAVAL PERSONNEL MANUAL. PARAGRAPH 3 OF THE ORDERS IS AS FOLLOWS:

YOU ARE ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES FOR THE NUMBER OF DAYS TRAINING DUTY SPECIFIED ABOVE, PLUS THE TIME ACTUALLY EMPLOYED IN TRAVEL IN REPORTING TO AND UPON DETACHMENT FROM TRAINING DUTY. PAY AND ALLOWANCES FOR TIME ACTUALLY EMPLOYED IN TRAVEL MAY NOT EXCEED THE TIME NORMALLY REQUIRED TO TRAVEL, VIA THE SHORTEST USUALLY TRAVELED ROUTE, FROM THE PLACE FROM WHICH ORDERED TO TRAINING DUTY TO THE PLACE OF REPORTING FOR TRAINING DUTY, AND FROM THE PLACE OF DETACHMENT TO THE PLACE FROM WHICH ORDERED TO TRAINING DUTY.

IT FURTHER APPEARS THAT LIEUTENANT OTTERSTROM LEFT HIS HOME AT 5:00 A.M., MARCH 2, 1952, BY AUTOMOBILE FOR SAN FRANCISCO, AND THAT HE WAS INJURED WHEN HIS AUTOMOBILE COLLIDED WITH ANOTHER CAR ABOUT 5:30 A.M. THAT DAY. IT IS STATED THAT THERE IS NO EVIDENCE OF MISCONDUCT ON THE OFFICER'S PART. IT IS FURTHER STATED THAT HE WAS HOSPITALIZED AFTER THE ACCIDENT IN THE NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, BUT THE DURATION OF HIS HOSPITALIZATION IS NOT SHOWN. IT ALSO APPEARS THAT HE MADE APPLICATION--- DATE NOT STATED--- TO THE DEPARTMENT OF THE NAVY FOR "RETIREMENT AND DISABILITY PAYMENTS; " THAT HE WAS REFERRED TO THE BUREAU OF EMPLOYEES' COMPENSATION FROM WHICH HE HAS RECEIVED DISABILITY PAYMENTS AS FOLLOWS: FOR THE PERIOD MARCH 9, 1952, TO OCTOBER 9, 1955, $10,097.18, AND FROM THE LATTER DATE UNTIL THE PRESENT TIME, $50.72 EVERY FOUR WEEKS ON THE BASIS OF 15 PERCENT LOSS OF WAGE-EARNING CAPACITY, TOGETHER WITH MEDICAL EXPENSES TOTALING $4,427.99. FINALLY, IT APPEARS THAT THE OFFICERS' APPLICATION FOR DISABILITY RETIREMENT WAS DENIED BY THE DEPARTMENT OF THE NAVY ON DECEMBER 18, 1952, ON THE BASIS THAT UNDER OUR DECISIONS HE WAS NOT ON ACTIVE DUTY WHILE TRAVELING TO REPORT FOR TRAINING DUTY.

THE ASSISTANT SECRETARY'S LETTER CITES SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, AND SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949; REFERS TO THE HOLDING IN ADAMS V. UNITED STATES, 127 C.1CLS. 470, AND TO OUR DECISIONS 33 COMP. GEN. 551 AND 33 COMP. GEN. 559 (599); AND SUBMITS THE FOLLOWING QUESTIONS:

TWO QUESTIONS ARE PRESENTED ON THESE FACTS:(1) AT THE TIME OF THE ACCIDENT WAS LIEUTENANT OTTERSTROM ENGAGED IN AUTHORIZED TRAVEL PURSUANT TO HIS ORDERS SO THAT HE MAY BE CONSIDERED ON ACTIVE DUTY WITHIN THE MEANING OF THE CITED STATUTES? AND (2) ASSUMING THAT A PHYSICAL EVALUATION BOARD FINDS THAT LIEUTENANT OTTERSTROM IS DISABLED, AND/OR FINDS THAT HE WAS DISABLED AS OF SOME PRIOR DATE (FOR EXAMPLE, SOMETIME IN 1952 OR 1953), IS HE ENTITLED TO DISABILITY RETIREMENT PAY AS OF THAT PRIOR DATE IF HE MEETS ALL THE OTHER REQUIREMENTS OF SECTION 402 OF THE CAREER COMPENSATION ACT, SUPRA? IT IS ASSUMED THAT IF LIEUTENANT OTTERSTROM IS ENTITLED TO THE BENEFITS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, SUPRA, THE DATE ON WHICH ACTIVE DUTY PAY AND ALLOWANCES MUST BE TERMINATED SHOULD BE FIXED IN ACCORD WITH YOUR DECISION OF NOVEMBER 15, 1950. (30 COMP. GEN. 185) * * * .

(3) IT IS FURTHER REQUESTED THAT YOUR DECISION STATE WHETHER THE TEST WHICH IS ADOPTED TO DETERMINE THE PERIOD OF COVERAGE DURING TRAVEL FROM HOME OF RECORD TO ACTIVE DUTY STATION MAY ALSO BE EMPLOYED TO LIMIT THE PERIOD OF COVERAGE DURING TRAVEL FROM ACTIVE DUTY STATION TO HOME OF RECORD IN CASES OF THIS TYPE.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C-3, PROVIDES, IN PERTINENT PART, THAT:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO --

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED;

SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS; PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE BUREAU OF EMPLOYEES' COMPENSATION, FEDERAL SECURITY AGENCY, UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181) OR RETIRED PAY UNDER THE PROVISIONS OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.

SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272, PROVIDES THAT:

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF THE UNIFORMED SERVICES, OTHER THAN THOSE MEMBERS COVERED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF PHYSICAL DISABILITY RESULTING FROM AN INJURY; (2) THAT SUCH INJURY WAS NOT THE RESULT OF THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH INJURY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, FULL- TIME TRAINING DUTY, OTHER FULL-TIME DUTY, OR INACTIVE DUTY TRAINING, AS THE CASE MAY BE; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED,THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE.

SECTION 402 (D) OF THAT ACT, 63 STAT. 818, 37 U.S.C. 272 (D), PROVIDES, IN PERTINENT PART, HAT:

A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SUBSECTIONS (A), (B), OR (C) OF THIS SECTION, FOR THE PERIOD DURING WHICH HIS NAME IS CARRIED ON SUCH TEMPORARY DISABILITY RETIRED LIST, BUT IN NO EVENT TO EXCEED A PERIOD OF FIVE YEARS, OR A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER: * * *. ( ITALICS SUPPLIED.)

IN THE ADAMS CASE, DECIDED FEBRUARY 2, 1954, THE COURT OF CLAIMS HELD THAT AN OFFICER OF THE NAVAL RESERVE WHO WAS INJURED IN AN AUTOMOBILE COLLISION WHILE TRAVELING UNDER ORDERS TO REPORT FOR A PHYSICAL EXAMINATION WAS ENTITLED TO THE BENEFITS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, SINCE HE WAS ON ACTIVE DUTY WHEN INJURED. IN OUR DECISION, B-119765, MAY 14, 1954, 33 COMP. GEN. 551, WE STATED THAT WE WOULD FOLLOW THE ADAMS DECISION. IN B-115236, JUNE 22, 1954, 33 COMP. GEN. 599, WE HELD, QUOTING FROM THE SYLLABUS, THAT "* * * A MEMBER OF THE UNIFORMED SERVICE WHOSE PERMANENT DISABILITY IS THE PROXIMATE RESULT OF AN INJURY IN THE PERFORMANCE OF TRAVEL TO OR FROM ACTIVE DUTY OR FULL-TIME TRAINING DUTY IS ENTITLED, IF AND WHEN THE JUDGMENT IN THE ADAMS CASE BECOMES FINAL, TO DISABILITY RETIREMENT PAY, AS PROVIDED UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, FROM THE DATE HE WAS ORIGINALLY PLACED ON THE RETIRED LIST.' IN THE CASE CONSIDERED IN THAT DECISION THE OFFICER HAD BEEN INJURED ON FEBRUARY 14, 1950, PLACED ON THE RETIRED LIST ON AUGUST 1, 1951, AND REMOVED FROM THE LIST ON JANUARY 31, 1953.

BOTH THE ADAMS CASE AND THE DECISION OF JUNE 22, 1954, WERE ON THE BASIS THAT THE INDIVIDUALS CONCERNED WERE ENTITLED TO ACTIVE-DUTY PAY WHEN THEIR INJURIES WERE SUSTAINED. THE FACT, HOWEVER, THAT AN INDIVIDUAL MAY BE TRAVELING BY AUTOMOBILE FROM HIS HOME TO HIS ORDERED DUTY STATION DOES NOT NECESSARILY ENTITLED HIM TO ACTIVE-DUTY PAY. WE LONG HAVE HELD THAT A RESERVE OFFICER TRAVELING BY AUTOMOBILE TO OR FROM ACTIVE DUTY WAS NOT ENTITLED TO ACTIVE-DUTY PAY FROM TRAVEL TIME IN EXCESS OF THE TIME WHICH WOULD HAVE BEEN REQUIRED FOR RAIL TRAVEL VIA THE SHORTEST USUALLY TRAVELED ROUTE. 20 COMP. GEN. 209, 28 COMP. GEN. 343. COMPARE ARTICLE C-5317 (1), BUREAU OF NAVAL PERSONNEL MANUAL, IN WHICH IT IS STATED THAT TRAVEL TIME "IS COUNTED IN WHOLE DAYS AND IS COMPUTED ON THE BASIS OF TRAVEL OVER A USUALLY TRAVELED ROUTE BY A FACILITY AFFORDING THROUGH SERVICE WHEN AVAILABLE.'

THE FIRST PROVISO IN SECTION 201 (D), 37 U.S.C. 231 (D), OF THE CAREER COMPENSATION ACT OF 1949 (AS REDESIGNATED BY SECTION 2 (2), 37 U.S.C. 232, OF THE ACT OF MARCH 31, 1955, 69 STAT. 19) OVERCOMES THE EFFECT OF THE LATTER TWO DECISIONS WHERE MEMBERS ARE ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS. THOSE DECISIONS STILL ARE APPLICABLE, HOWEVER, WHERE, AS HERE, THE ORDERS ARE FOR A SHORTER TIME, AND WE THINK THAT IN THAT SITUATION THEY ARE GOVERNING AS TO WHETHER AN INDIVIDUAL IS ENTITLED TO THE BENEFITS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, AND SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949. OTHER WORDS, IF AN INDIVIDUAL IS ENTITLED TO ACTIVE-DUTY PAY FOR THE DAY ON WHICH AN INJURY, OTHERWISE COVERED, IS SUSTAINED DURING TRAVEL, HE IS ENTITLED TO THE BENEFITS OF THOSE TWO SECTIONS; IF HE IS NOT ENTITLED TO ACTIVE-DUTY PAY, HE IS NOT WITHIN THEIR SCOPE. AS SAID BY THE COURT IN THE ADAMS SE," THE SUBSTANCE OF THE CASE DEPENDS PRIMARILY ON WHETHER PLAINTIFF WAS ON ACTIVE DUTY.' IT HELD THAT, " THE PLAINTIFF WAS ON ACTIVE DUTY FROM THE TIME THE JOURNEY BEGAN.'

IT IS RELATED THAT LIEUTENANT OTTERSTROM COULD HAVE LEFT SAN DIEGO BY TRAIN AT 3:15 P.M., MARCH 2, 1952, AND ARRIVED AT SAN FRANCISCO MARCH 3, 1952, AT 9:00 A.M. HE LEFT HIS HOME BY AUTOMOBILE AT 5:00 A.M., MARCH 2, 1952, AND WAS INJURED A HALF HOUR LATER. WAS HE ENTITLED TO ACTIVE-DUTY PAY WHEN THE INJURY WAS SUSTAINED?

IF THE OFFICER HAD TRAVELED BY RAIL LEAVING SAN DIEGO AT 3:15 P.M., MARCH 2, HE WOULD HAVE BEEN ENTITLED TO ACTIVE-DUTY PAY FOR THAT COMPLETED DAY, NOT FOR A PORTION OF A DAY BEGINNING AT 3:15 P.M. SINCE HE WAS ENTITLED TO PAY FOR THE WHOLE DAY, WE THINK IT IMMATERIAL WHETHER HIS INJURY, HAVING BEEN INCURRED AFTER BEGINNING HIS JOURNEY TO HIS DUTY STATION, WAS SUSTAINED BEFORE OR AFTER THE NECESSARY DEPARTURE TIME BY RAIL ON THAT DAY. IN EITHER EVENT, HE WOULD BE ENTITLED TO ACTIVE-DUTY PAY FOR THE WHOLE DAY ON WHICH THE INJURY WAS SUSTAINED.

ON THAT BASIS THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE ASSISTANT SECRETARY'S LETTER ENCLOSED A COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN WHICH IT WAS STATED THAT, SINCE LIEUTENANT OTTERSTROM MADE APPLICATION TO THE NAVY DEPARTMENT FOR RELIEF, WHICH WAS DENIED UNDER THE DECISIONS OF OUR OFFICE, HIS SUBSEQUENT APPLICATION FOR BENEFITS FROM THE BUREAU OF EMPLOYEES' COMPENSATION SHOULD NOT BE CONSIDERED TO BE AN ELECTION TO TAKE SUCH BENEFITS RATHER THAN ACTIVE-DUTY PAY AND ALLOWANCES, THE OFFICER ACTUALLY HAVING NO CHOICE IN THE MATTER. WE ARE INCLINED TO AGREE WITH THAT REASONING. COMPARE 32 COMP. GEN. 159, 162, ANSWER TO FIFTH QUESTION. IN OTHER WORDS, LIEUTENANT OTTERSTROM MAY NOW ELECT TO TAKE ACTIVE-DUTY PAY AND ALLOWANCES TO WHICH HE MAY BE OTHERWISE ENTITLED UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR SUCH PERIOD AS HE WAS DISABLED FOR NORMAL CIVILIAN PURSUITS DUE TO THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE ORIGINALLY WAS HOSPITALIZED, AND TO RETIREMENT PAY UNDER SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, IF HE OTHERWISE QUALIFIES FOR SUCH PAY. COMPARE 30 COMP. GEN. 185 AND 33 COMP. GEN. 339. TO BE ENTITLED TO SUCH ACTIVE-DUTY PAY AND ALLOWANCES AND RETIREMENT PAY, HOWEVER, THE OFFICER MUST REFUND ALL PAYMENTS RECEIVED FROM THE BUREAU OF EMPLOYEE'S COMPENSATION, SINCE SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, CONTEMPLATES AN ELECTION TO TAKE ONE OF TWO ALTERNATIVES, NOT A SHIFTING FROM ONE TO ANOTHER AS MAY BE FINANCIALLY ADVANTAGEOUS. THAT IS, AN ELECTION TO TAKE ANY BENEFIT UNDER ONE OF THE ALTERNATIVES PRECLUDES ANY RIGHT TO BENEFITS UNDER THE OTHER. TO THE EXTENT THAT DECISION B-127842, AUGUST 6, 1956, 36 COMP. GEN. 87, WHICH DID NOT PARTICULARLY CONSIDER THE POINT, MAY BE TAKEN AS INDICATING A DIFFERENT VIEW, IT WILL NOT BE CONSIDERED A PRECEDENT TO BE FOLLOWED IN THAT RESPECT.

WE FIND NO BASIS IN SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 FOR PAYING RETIREMENT PAY FOR ANY PERIOD PRIOR TO THE DATE THE INDIVIDUAL'S NAME IS PLACED ON THE RETIRED LIST. IN SITUATIONS LIKE THE PRESENT ONE THE ONLY RECOURSE WOULD APPEAR TO BE TO APPLY TO THE APPROPRIATE STATUTORY BOARD FOR THE CORRECTION OF MILITARY RECORDS.

ACCORDINGLY, THE SECOND QUESTION IS ANSWERED BY SAYING THAT IF THE SECRETARY OF THE NAVY DETERMINES THAT LIEUTENANT OTTERSTROM OTHERWISE MEETS THE REQUIREMENTS OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, AND HE REFUNDS ALL PAYMENTS FROM THE BUREAU OF EMPLOYEES' COMPENSATION, HE WILL BE ENTITLED TO DISABILITY RETIREMENT PAY, BUT ONLY FROM THE DATE HIS NAME IS PLACED ON THE RETIRED LIST.

THE THIRD QUESTION IS ANSWERED BY SAYING THAT WE CAN SEE NO REASON FOR SETTING UP A RULE FOR TRAVEL FROM ACTIVE OR TRAINING DUTY TO HOME WHICH DIFFERS IN ANY WAY FROM THE RULE FOR TRAVEL FROM HOME TO ACTIVE OR TRAINING DUTY.