B-130694, JANUARY 6, 1960, 39 COMP. GEN. 498

B-130694, JANUARY 6, 1960, 39 COMP. GEN. 498

MILITARY PERSONNEL - PAY - PERIODS OF RE-HOSPITALIZATION - NATIONAL GUARD THE RIGHT OF MEMBERS OF THE NATIONAL GUARD TO PAY AND ALLOWANCES FOR PERIODS OF HOSPITALIZATION FOR DISABILITIES OR INJURIES INCURRED IN LINE OF DUTY, PURSUANT TO 82 U.S.C. 318, IS NOT LIMITED TO INITIAL HOSPITALIZATION PERIODS BUT INCLUDES ANY PERIODS OF RE-HOSPITALIZATION NECESSARY FOR TREATMENT OF IN-LINE-OF-DUTY INJURIES, AND AN ADMINISTRATIVE DETERMINATION AT THE END OF AN INITIAL PERIOD OF HOSPITALIZATION THAT THE MEMBER IS ABLE TO PERFORM MILITARY DUTIES WHILE TERMINATING THE RIGHT TO PAY AND ALLOWANCES AT THAT TIME WILL NOT BAR PAY AND ALLOWANCES FOR ANY SUBSEQUENT PERIODS OF RE-HOSPITALIZATION NECESSARY FOR TREATMENT OF THE INJURIES AND, WHILE THE BENEFITS FOR HOSPITALIZATION DO NOT HAVE TO BE RESTRICTED TO A TOTAL OF 6 MONTHS, ADMINISTRATIVE ACTION SHOULD BE TAKEN WITH REASONABLE PROMPTNESS TO MAKE FINAL DISPOSITION OF THE CASES TO PREVENT THE ACCRUAL OF PAY AND ALLOWANCES FOR AN INDEFINITE NUMBER OF PERIODS OF HOSPITALIZATION.

TO THE SECRETARY OF DEFENSE, JANUARY 6, 1960:

REFERENCE IS MADE TO LETTER OF AUGUST 19, 1959, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION ON QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 247 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE RELATING TO THE RIGHT OF MEMBERS OF THE NATIONAL GUARD AND MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY AND AIR FORCE OTHER THAN THE NATIONAL GUARD TO PAY AND ALLOWANCES WHILE HOSPITALIZED FOR TREATMENT OF LINE OF DUTY DISEASES OR INJURIES.

COMMITTEE ACTION NO. 247 SETS FORTH THE FOLLOWING QUESTIONS:

1. ARE MEMBERS OF THE NATIONAL GUARD WHO ARE INJURED OR CONTRACT A DISEASE IN LINE OF DUTY WHILE PERFORMING EITHER ACTIVE DUTY TRAINING OR INACTIVE DUTY TRAINING AND ARE HOSPITALIZED, RETURNED TO DUTY, AND RE HOSPITALIZED FOR FURTHER TREATMENT OF THE ORIGINAL INJURY OR DISEASE, ENTITLED TO PAY DURING THE SECOND PERIOD OF HOSPITALIZATION?

2. IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE, ARE PAY AND ALLOWANCES FOR THE PERIOD OF HOSPITALIZATION AND RE-HOSPITALIZATION LIMITED TO A TOTAL OF SIX MONTHS?

3. WOULD THE ANSWER BE THE SAME FOR MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY AND AIR FORCE, OTHER THAN THE NATIONAL GUARD?

AN EXAMPLE OF THE COMMITTEE'S PROBLEM IS SET FORTH AS FOLLOWS:

A MEMBER OF THE NATIONAL GUARD INCURRED AN INJURY IN LINE OF DUTY ON 17 MARCH 1957 WHILE PERFORMING INACTIVE DUTY TRAINING. HE WAS HOSPITALIZED FROM THAT DATE UNTIL HIS RELEASE FROM THE HOSPITAL ON 18 OCTOBER 1957. PARTICIPATED IN TRAINING WITH HIS ORGANIZATION UNTIL 5 FEBRUARY 1958, AT WHICH TIME HE WAS RE-HOSPITALIZED, WITH NATIONAL GUARD APPROVAL, FOR FURTHER TREATMENT, (REMOVAL OF FORM BODY CLOVER LEAF NAIL) REQUIRED BY REASON OF THE LINE OF DUTY INJURY. HE WAS RELEASED FROM HOSPITALIZATION ON 23 FEBRUARY 1958.

TITLE 32 U.S.C. 318 PROVIDES THAT A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE HOSPITAL BENEFITS, PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION PROVIDED FOR MEMBERS OF THE REGULAR ARMY OR REGULAR AIR FORCE OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER PERFORMING ACTIVE OR INACTIVE DUTY TRAINING UNDER SECTIONS 502, 503, 504, OR 505 OF THAT TITLE (1) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED, OR (2) FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED. A RIGHT TO PAY AND ALLOWANCES UNDER THOSE PROVISIONS IS BASED ON THE INCURRENCE IN LINE OF DUTY OF A PHYSICAL DISABILITY TO PERFORM MILITARY DUTY. A REFERENCE TO THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 20, 1949, 63 STAT. 202, 32 U.S.C. 160A, FROM WHICH SECTION 318 WAS DERIVED (SEE PAGE 4, SENATE REPORT NO. 95, 81ST CONGRESS, REGARDING THE BILL ENACTED INTO LAW AS THE ACT OF JUNE 20, 1949) INDICATES THAT THE CONGRESS INTENDED THAT THAT RIGHT SHOULD CONTINUE UNTIL THE DISABLED MEMBERS' ,HOSPITALIZATION IS COMPLETED AND THEIR CASE FINALLY SETTLED," A WHEN INJURED WHILE SERVING EITHER WITH OR WITHOUT PAY THEY SHOULD BE PAID WHILE IN THE HOSPITAL IN EXACTLY THE SAME MANNER AS IS A HOSPITALIZED MEMBER OF THE REGULAR SERVICE.

IN VIEW OF THE MANIFEST INTENT THAT THE RIGHT TO PAY UNDER SECTION 318 SHOULD CONTINUE THROUGH ANY PERIOD OR PERIODS OF HOSPITALIZATION WHICH WOULD ACCRUE TO THE REGULAR MEMBER, IT IS CONSIDERED THAT SUCH RIGHT APPLIES NOT ONLY TO THE PERIODS OF INITIAL HOSPITALIZATION BUT ALSO EXTENDS THROUGH ANY PERIOD OF RE-HOSPITALIZATION FOUND NECESSARY IN THE TREATMENT OF THE LINE OF DUTY INJURY. SEE 29 COMP. GEN. 535 AND 30 COMP. GEN. 185. THE CONCLUSION IN 36 COMP. GEN. 692 AND 37 COMP. GEN. 558 THAT AN ADMINISTRATIVE DETERMINATION, UPON TERMINATION OF HOSPITALIZATION OF A MEMBER OF THE NATIONAL GUARD FOR AN INJURY INCURRED IN LINE OF DUTY, OF HIS ABILITY TO PERFORM HIS MILITARY DUTY WOULD CONSTITUTE A FINAL DECISION IN THIS CASE SO AS TO TERMINATE HIS RIGHT TO PAY AND ALLOWANCES UNDER SECTION 318 WAS CONCERNED ONLY WITH PAYMENT OF PAY AND ALLOWANCES SUBSEQUENT TO A RELEASE FROM HOSPITALIZATION. THERE WAS NO INTENTION IN THOSE DECISIONS TO INFER THAT A RIGHT TO PAY AND ALLOWANCES AS PROVIDED IN SECTION 318 WOULD NOT ACCRUE INCIDENT TO ANY HOSPITALIZATION FOUND NECESSARY IN THE TREATMENT OF THE LINE OF DUTY INJURY, WHETHER DURING THE PERIOD OF INITIAL HOSPITALIZATION OR UPON RE-HOSPITALIZATION, THE DISABILITY STATUS CONTEMPLATED BY THAT SECTION CLEARLY EXISTING DURING ANY HOSPITALIZATION PERIOD. THERE WOULD APPEAR TO EXIST NO BASIS TO RESTRICT SUCH BENEFITS TO A PERIOD TOTALING 6 MONTHS.

ACCORDINGLY, THE FIRST AND THIRD QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE AND THE SECOND QUESTION IN THE NEGATIVE. IT SHOULD BE OBSERVED, HOWEVER, THAT THE CONGRESS DID NOT CONTEMPLATE THAT THE LAW SHOULD BE CONSTRUED TO COVER AN INDEFINITE NUMBER OF PERIODS OF HOSPITALIZATION OR RE-HOSPITALIZATION FOR PAY PURPOSES, BUT RATHER THAT APPROPRIATE ADMINISTRATIVE ACTION SHOULD BE TAKEN WITH REASONABLE PROMPTNESS TO MAKE A FINAL DISPOSITION OF THE MEMBER'S CASE. SEE THE SENATE REPORT CITED ABOVE AND 33 COMP. GEN. 339 AT 346.