B-217875, JUN 25, 1985
Highlights
PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - ADMINISTRATIVE DETERMINATION DIGEST: MEDICAL OPINIONS WERE IN CONFLICT AS TO WHETHER A MEMBER'S DISABILITY WAS INCURRED AS A RESULT OF DISEASE OR INJURY WHILE ON ACTIVE DUTY. THE FACT THAT THE MEMBER WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST BY ORDER OF THE SECRETARY OF THE ARMY BECAUSE OF A DISABILITY INCURRED AS A RESULT OF INJURY IS DETERMINATIVE OF THE ISSUE. HE IS ENTITLED TO THE RESULTING BENEFITS. THE HONORABLE DAN DANIEL: HOUSE OF REPRESENTATIVES THIS IS FURTHER REFERENCE TO YOUR LETTER DATED MARCH 11. HIS CLAIM WAS DISALLOWED BY OUR CLAIMS GROUP BY SETTLEMENT DATED JANUARY 28. THE LAST INCIDENT INVOLVING HIS DISABILITY OCCURRED WHILE HE WAS PERFORMING A 2-WEEK PERIOD OF ACTIVE DUTY IN AUGUST 1978.
B-217875, JUN 25, 1985
PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - ADMINISTRATIVE DETERMINATION DIGEST: MEDICAL OPINIONS WERE IN CONFLICT AS TO WHETHER A MEMBER'S DISABILITY WAS INCURRED AS A RESULT OF DISEASE OR INJURY WHILE ON ACTIVE DUTY, FOR THE PURPOSES OF ENTITLEMENT TO PAY AND ALLOWANCES DURING A PERIOD OF INCAPACITATION. THE FACT THAT THE MEMBER WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST BY ORDER OF THE SECRETARY OF THE ARMY BECAUSE OF A DISABILITY INCURRED AS A RESULT OF INJURY IS DETERMINATIVE OF THE ISSUE, AND HE IS ENTITLED TO THE RESULTING BENEFITS.
THE HONORABLE DAN DANIEL: HOUSE OF REPRESENTATIVES
THIS IS FURTHER REFERENCE TO YOUR LETTER DATED MARCH 11, 1985, CONCERNING THE CLAIM OF CAPTAIN WILLIAM G. KENNEDY, AUS, RETIRED, FOR PAY AND ALLOWANCES DURING A PERIOD OF INCAPACITATION RESULTING FROM A DISABILITY INCURRED WHILE PERFORMING ACTIVE DUTY. HIS CLAIM WAS DISALLOWED BY OUR CLAIMS GROUP BY SETTLEMENT DATED JANUARY 28, 1985. UPON REVIEW WE FIND THAT HIS CLAIM MAY BE ALLOWED.
CAPTAIN KENNEDY HAS A HISTORY OF BACK PROBLEMS, WHICH CULMINATED IN HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON DECEMBER 16, 1982. THE LAST INCIDENT INVOLVING HIS DISABILITY OCCURRED WHILE HE WAS PERFORMING A 2-WEEK PERIOD OF ACTIVE DUTY IN AUGUST 1978. HE WAS PAID PAY AND ALLOWANCES FOR A 6-MONTH PERIOD FOLLOWING THE INJURY BUT THIS ENTITLEMENT WAS TERMINATED AFTER 6 MONTHS PURSUANT TO 32 U.S.C. SEC. 319, SINCE A DETERMINATION WAS MADE BY THE NATIONAL GUARD THAT HIS DISABILITY WAS THE RESULT OF DISEASE RATHER THAN INJURY.
CAPTAIN KENNEDY CONTENDS THAT HIS DISABILITY WAS THE RESULT OF INJURY RATHER THAN DISEASE AND THAT HE WAS ENTITLED TO PAY AND ALLOWANCES UNTIL HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST.
THE MEDICAL OPINIONS IN THE RECORD CONFLICT AS TO WHETHER THE DISABILITY WAS INCURRED AS A RESULT OF DISEASE OR INJURY. HOWEVER, IT IS OUR VIEW THAT THE FACT THAT CAPTAIN KENNEDY WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST BY ORDER OF THE SECRETARY OF THE ARMY FOR A DISABILITY INCURRED AS A RESULT OF INJURY OF THE ISSUE.
ACCORDINGLY, WE ARE INSTRUCTING OUR CLAIMS GROUP THAT HIS CLAIM SHOULD BE PAID.