A-54810, APRIL 27, 1934, 13 COMP. GEN. 303

A-54810: Apr 27, 1934

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IS NOT ENTITLED TO PAY AND ALLOWANCES WHILE HOSPITALIZED ON ACCOUNT OF AN INJURY SUFFERED WHILE ATTACHED TO THE ARMY AT HIS OWN EXPENSE AND ON HIS VOLUNTARY APPLICATION FOR TRAINING AND INSTRUCTION. DURING WHICH YOU STATE YOU WERE HOSPITALIZED IN POST HOSPITAL. YOU WERE ORDERED TO ACTIVE DUTY. IS ATTACHED TO THE 76TH F.A. ANY OFFICER SO ATTACHED WILL RECEIVE NO PAY OR ALLOWANCES DURING THE PERIOD OF SUCH SERVICE. * * * THIS MERELY PERMITS A MEMBER OF THE OFFICERS' RESERVE CORPS TO PARTICIPATE IN ARMY TRAINING UNDER THE CONDITIONS STATED. THE STATUS OF A MEMBER SO PARTICIPATING IS NOT IN ANY WAY MODIFIED FROM THAT OF NOT ON ACTIVE DUTY. UNDER WHICH YOUR CLAIM IS ADVANCED. INSOFAR AS IS HERE MATERIAL.

A-54810, APRIL 27, 1934, 13 COMP. GEN. 303

PAY - SICK IN HOSPITAL - MEMBER OF OFFICERS' RESERVE CORPS A MEMBER OF THE OFFICERS' RESERVE CORPS, EXCEPT WHILE VOLUNTARILY PARTICIPATING IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT BY PROPER AUTHORITY AS AN INCIDENT TO HIS MILITARY TRAINING, IS NOT ENTITLED TO PAY AND ALLOWANCES WHILE HOSPITALIZED ON ACCOUNT OF AN INJURY SUFFERED WHILE ATTACHED TO THE ARMY AT HIS OWN EXPENSE AND ON HIS VOLUNTARY APPLICATION FOR TRAINING AND INSTRUCTION, AS AUTHORIZED BY PARAGRAPH 64 OF ARMY REGULATIONS 140-5 OF APRIL 16, 1931.

COMPTROLLER GENERAL MCCARL TO FIRST LIEUT. HARRY A. BALLF, UNITED STATES ARMY RESERVE, APRIL 27, 1934:

THERE HAS BEEN RECEIVED YOUR REQUEST OF MARCH 2, 1934, FOR REVIEW OF SETTLEMENT NO. 0406043, DATED MARCH 8, 1933, DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES AS PRESCRIBED FOR MEMBERS OF THE OFFICERS' RESERVE CORPS WHILE ON AUTHORIZED ACTIVE DUTY FOR TRAINING, FOR THE PERIOD JULY 28, 1932, TO OCTOBER 29, 1932, DURING WHICH YOU STATE YOU WERE HOSPITALIZED IN POST HOSPITAL, PRESIDIO OF MONTEREY, CALIF., AND IN LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIF., ON ACCOUNT OF AN INJURY SUFFERED, JULY 28, 1932, WHILE ATTACHED, UPON YOUR OWN APPLICATION, TO THE REGULAR ARMY FOR TRAINING AND INSTRUCTION AT YOUR OWN EXPENSE.

IT APPEARS THAT BY PARAGRAPH 1 OF SPECIAL ORDERS NO. 71, HEADQUARTERS FIRST RESERVE AREA, DATED JUNE 20, 1932, YOU WERE ORDERED TO ACTIVE DUTY, EFFECTIVE JULY 5, 1932, AT THE PRESIDIO OF MONTEREY, CALIF., AND FURTHER DIRECTED THAT ON JULY 18, 1932, YOU WOULD STAND RELIEVED FROM FURTHER ACTIVE DUTY. PARAGRAPH 3 OF THE SAME ORDER DIRECTED:

UNDER THE PROVISIONS OF PAR. 64, A.R. 140-5, 1ST LT. HARRY A. BALLF, FA- RES. (346TH FA), APT. 605, 155 HYDE ST., SAN FRANCISCO, CALIF., IS ATTACHED TO THE 76TH F.A., PRESIDIO OF MONTEREY, CALIF., FOR TRAINING AND INSTRUCTION ON AN INACTIVE STATUS FOR THE PERIOD JULY 19 AUGUST 4,1932, INCLUSIVE.

ARMY REGULATIONS 140-5, PARAGRAPH 64-C, PROVIDES AS FOLLOWS:

A RESERVE OFFICER, UPON HIS OWN APPLICATION, MAY BE ATTACHED FOR TRAINING AND INSTRUCTION AT HIS OWN EXPENSE TO THE REGULAR ARMY OR, WITH THE CONSENT, OF THE PROPER STATE OFFICIALS, TO A UNIT OF THE NATIONAL GUARD, BUT ANY OFFICER SO ATTACHED WILL RECEIVE NO PAY OR ALLOWANCES DURING THE PERIOD OF SUCH SERVICE. * * *

THIS MERELY PERMITS A MEMBER OF THE OFFICERS' RESERVE CORPS TO PARTICIPATE IN ARMY TRAINING UNDER THE CONDITIONS STATED; AND THE STATUS OF A MEMBER SO PARTICIPATING IS NOT IN ANY WAY MODIFIED FROM THAT OF NOT ON ACTIVE DUTY.

THE ACT OF APRIL 26, 1928, 45 STAT. 461, UNDER WHICH YOUR CLAIM IS ADVANCED, INSOFAR AS IS HERE MATERIAL, IS AS FOLLOWS:

THAT * * * MEMBERS OF THE OFFICERS' RESERVE CORPS AND OF THE ENLISTED RESERVE CORPS OF THE ARMY WHO SUFFER PERSONAL INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS; * * * SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, WHEN HOSPITAL TREATMENT IS NECESSARY FOR APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, BE ENTITLED TO HOSPITAL TREATMENT, INCLUDING MEDICAL TREATMENT AT GOVERNMENT EXPENSE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITAL TREATMENT, AND DURING THE PERIOD OF HOSPITALIZATION, TO THE SAME PAY AND ALLOWANCES WHETHER IN MONEY OR IN KIND THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED, * * * AND MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS OF THE ARMY INJURED IN LINE OF DUTY WHILE VOLUNTARILY PARTICIPATING IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT BY PROPER AUTHORITY AS AN INCIDENT TO THEIR MILITARY TRAINING, BUT NOT ON ACTIVE DUTY, SHALL, UNDER REGULATIONS PRESCRIBED AS AFORESAID, BE ENTITLED TO THE SAME HOSPITAL TREATMENT, INCLUDING MEDICAL TREATMENT, PAY AND ALLOWANCES, AND TRANSPORTATION TO THEIR HOMES; AND FURTHER MEDICAL TREATMENT AFTER ARRIVAL AT THEIR HOMES, AS IF SUCH INJURY HAD BEEN SUFFERED WHILE ON ACTIVE DUTY UNDER PROPER ORDERS. * * *

SECTION 37A OF THE ACT OF JUNE 4, 1920, 41 STAT. 776, AUTHORIZES THE SECRETARY OF WAR TO ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD, WITH CERTAIN LIMITATIONS, TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, AND THIS STATUTE ALSO PRESCRIBES THAT "A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY.' THE WAR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1933, UNDER THE HEADING "ORGANIZED RESERVES" (47 STAT. 684), LIMITS PAY FOR TRAINING TO A PERIOD NOT EXCEEDING 15 DAYS. A RESERVE OFFICER NOT ON ACTIVE DUTY, ON HIS VOLUNTARY APPLICATION FOR TRAINING AND INSTRUCTION UNDER ARMY REGULATIONS 140-5, CITED, IS ENTITLED TO NO PAY OR ALLOWANCES, IS NOT ON ACTIVE DUTY, ALTHOUGH PERMITTED TO PARTICIPATE IN ARMY TRAINING WITH THE REGULAR ARMY, AND CLEARLY HE IS NOT WITHIN THE PURVIEW OF THE ACT OF APRIL 26, 1928.

WERE THE CLAIM OTHERWISE ESTABLISHED BY APPROPRIATE EVIDENCE, IT IS NOT PAYABLE UNDER THE STATUTE. THE SETTLEMENT IS, THEREFORE, CORRECT, AND UPON REVIEW IT MUST BE AND IS SUSTAINED.