B-100838, MAY 22, 1951, 30 COMP. GEN. 476

B-100838: May 22, 1951

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PAY AND ALLOWANCES - RESERVIST INJURED WHILE ON TRAINING DUTY A MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS WHO IS ALSO A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND WHO WAS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED UNDER THE ACT OF MAY 12. NOT FOR PERIODS HE WAS NOT ACTUALLY CONFINED IN A HOSPITAL. WHERE THE FAILURE TO DISCHARGE HIM FROM THE HOSPITAL WAS BECAUSE OF THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED. 1951: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21. ENLISTED MEMBERS OF THE ARMY AND THE AIR FORCE RESERVES WHO ARE DISABLED BY INJURIES INCURRED WHILE ON TRAINING DUTY ARE ENTITLED TO RECEIVE COMPENSATION. IT IS ASSUMED THAT YOU REFER TO MEMBERS OF THE OFFICERS' RESERVE CORPS AND THE ENLISTED RESERVE CORPS AND YOUR QUESTION WILL BE ANSWERED ON THAT BASIS.

B-100838, MAY 22, 1951, 30 COMP. GEN. 476

PAY AND ALLOWANCES - RESERVIST INJURED WHILE ON TRAINING DUTY A MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS WHO IS ALSO A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND WHO WAS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED UNDER THE ACT OF MAY 12, 1917, AS AMENDED, TO ACTIVE-DUTY PAY AND ALLOWANCES, PLUS THE COMPENSATION OF HIS CIVILIAN POSITION, WHILE ON ANNUAL OR SICK LEAVE THEREFROM DURING PERIODS OF HOSPITALIZATION RESULTING FROM SUCH INJURY, BUT NOT FOR PERIODS HE WAS NOT ACTUALLY CONFINED IN A HOSPITAL, IN THE ABSENCE OF AN AFFIRMATIVE DETERMINATION BY THE PROPER AUTHORITY OF THE SERVICE CONCERNED THAT HE CONTINUED TO BE DISABLED FOR HIS NORMAL CIVILIAN PURSUITS, AND WHERE THE FAILURE TO DISCHARGE HIM FROM THE HOSPITAL WAS BECAUSE OF THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED.

ASSISTANT COMPTROLLER GENERAL YATES TO ADMINISTRATOR OF VETERANS AFFAIRS, MAY 22, 1951:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1951, WHEREIN YOU REQUEST DECISION AS TO WHETHER OFFICERS, WARRANT OFFICERS, AND ENLISTED MEMBERS OF THE ARMY AND THE AIR FORCE RESERVES WHO ARE DISABLED BY INJURIES INCURRED WHILE ON TRAINING DUTY ARE ENTITLED TO RECEIVE COMPENSATION, WHILE ON ANNUAL OR SICK LEAVE FROM A CIVILIAN POSITION WITH THE GOVERNMENT DURING THE PERIOD OF THEIR DISABILITY, CONCURRENTLY WITH FULL MILITARY PAY AND ALLOWANCES.

IT IS ASSUMED THAT YOU REFER TO MEMBERS OF THE OFFICERS' RESERVE CORPS AND THE ENLISTED RESERVE CORPS AND YOUR QUESTION WILL BE ANSWERED ON THAT BASIS. THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED BY SECTION 2 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 202, EFFECTIVE AUGUST 14, 1945, READS, IN PERTINENT PART, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OR THE AIR FORCE OF THE UNITED STATES WHO---

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE 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 MILITARY SERVICE DURING SUCH PERIOD AND 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 AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY OR THE REGULAR AIR FORCE.

IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, THERE WERE CONSIDERED PROVISIONS OF LAW RELATING TO THE NAVAL RESERVE AND THE MARINE CORPS RESERVE, ALMOST IDENTICAL TO THOSE CONTAINED IN THE SAID LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AND IT WAS HELD THAT A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON TRAINING DUTY FOR ANY PERIOD OF TIME IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED BECAUSE OF SUCH INJURY AND WHILE AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. THAT SAME CONCLUSION IS REQUIRED WITH RESPECT TO THE 1939 ACT, AS AMENDED; HOWEVER, SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, READS AS FOLLOWS:

UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM.

UNDER THIS LATTER PROVISION OF LAW A MEMBER OF THE ARMY OF THE UNITED STATES OR OF THE AIR FORCE OF THE UNITED STATES AS A GENERAL PROPOSITION WOULD NOT BE ENTITLED TO RECEIVE HIS MILITARY PAY AND ALLOWANCES AND AT THE SAME TIME RECEIVE COMPENSATION AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT. SEE DECISION OF NOVEMBER 15, 1950, 30 COMP. GEN. 185. BUT, IN THAT CONNECTION, THE ACT OF MAY 12, 1917, 40 STAT. 72, AS AMENDED BY SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 238, 10 U.S.C. 371B, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCE TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS * * *.

IN VIEW OF SUCH PROVISIONS OF LAW THERE WOULD BE NO PROPER BASIS FOR DENYING MEMBERS OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS THE COMPENSATION OF THEIR CIVILIAN POSITIONS, WHILE ON ANNUAL OR SICK LEAVE THEREFROM, MERELY BECAUSE AT THE SAME TIME THEY WERE IN RECEIPT OF THEIR MILITARY PAY AND ALLOWANCES WHILE HOSPITALIZED BECAUSE OF THEIR INJURIES OR AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. OF COURSE, IF SUCH AN EMPLOYEE IS NOT ACTUALLY CONFINED IN A HOSPITAL, EVEN THOUGH HE IS NOT DISCHARGED THEREFROM, HE WOULD NOT BE ENTITLED TO HIS MILITARY PAY AND ALLOWANCES IN THE ABSENCE OF AN AFFIRMATIVE DETERMINATION BY THE PROPER AUTHORITIES OF THE SERVICE CONCERNED THAT HE CONTINUED TO BE DISABLED FOR HIS NORMAL CIVILIAN PURSUITS AND THE FAILURE TO DISCHARGE HIM FROM THE HOSPITAL WAS BECAUSE OF THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED. DECISION OF NOVEMBER 15, 1950, SUPRA. ..END :