B-104374, SEPTEMBER 21, 1951, 31 COMP. GEN. 95

B-104374: Sep 21, 1951

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DISABILITY RETIREMENT PAY - MEMBERS OF THE NAVAL RESERVE ON TRAINING DUTY A MEMBER OF THE NAVAL RESERVE ON EXTENDED TRAINING DUTY WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST FOR A DISABILITY NOT THE RESULT OF AN INJURY IN THE PERFORMANCE OF SUCH DUTY IS NOT ENTITLED TO THE RETIREMENT BENEFITS PROVIDED IN SUBSECTIONS 402 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS. NEITHER IS SUCH MEMBER ENTITLED TO THE RETIREMENT BENEFITS PROVIDED IN SUBSECTION 402 (C) OF THE ACT FOR MEMBERS DISABLED AS THE RESULT OF AN INJURY IN THE PERFORMANCE OF DUTY. IS ENTITLED TO RETIREMENT PAY.

B-104374, SEPTEMBER 21, 1951, 31 COMP. GEN. 95

DISABILITY RETIREMENT PAY - MEMBERS OF THE NAVAL RESERVE ON TRAINING DUTY A MEMBER OF THE NAVAL RESERVE ON EXTENDED TRAINING DUTY WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST FOR A DISABILITY NOT THE RESULT OF AN INJURY IN THE PERFORMANCE OF SUCH DUTY IS NOT ENTITLED TO THE RETIREMENT BENEFITS PROVIDED IN SUBSECTIONS 402 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS, NEITHER IS SUCH MEMBER ENTITLED TO THE RETIREMENT BENEFITS PROVIDED IN SUBSECTION 402 (C) OF THE ACT FOR MEMBERS DISABLED AS THE RESULT OF AN INJURY IN THE PERFORMANCE OF DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO J. B. WARNER, DEPARTMENT OF THE NAVY, SEPTEMBER 21, 1951:

THE JUDGE ADVOCATE GENERAL OF THE NAVY, BY DIRECTION OF THE SECRETARY OF THE NAVY, HAS FORWARDED TO THIS OFFICE YOUR LETTER OF APRIL 24, 1951, REQUESTING DECISION AS TO WHETHER MACHINIST LAWRENCE J. WALKER, USNR, IS ENTITLED TO RETIREMENT PAY, BEGINNING FEBRUARY 1, 1951, COMPUTED UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818.

IT APPEARS THAT BY ORDERS OF HEADQUARTERS SIXTH NAVAL DISTRICT, UNITED STATES NAVAL BASE, NAVAL BASE, SOUTH CAROLINA, DATED JUNE 28, 1948, MR. WALKER WAS DIRECTED, UNDER THE AUTHORITY OF ARTICLE H-5306, BUREAU OF NAVAL PERSONNEL MANUAL (TRAINING DUTY OF NAVAL RESERVE PERSONNEL), TO REPORT TO A REPRESENTATIVE OF THE COMMANDANT, SIXTH NAVAL DISTRICT, UNITED STATES NAVAL BASE, CHARLESTON, SOUTH CAROLINA,"FOR FURTHER ASSIGNMENT TO TRAINING DUTY BY HIM FOR A PERIOD OF INDEFINITE TIME; " THAT HE REPORTED IN ACCORDANCE WITH THE SAID ORDERS ON JULY 1, 1948; THAT ON JULY 14, 1948, THE ABOVE ORDERS OF JUNE 28, 1948, WERE MODIFIED SO AS TO DIRECT TERMINATION OF HIS TRAINING DUTY ON OR BEFORE SEPTEMBER 30, 1948; THAT ON SEPTEMBER 30, 1948, THE SAID ORDERS OF JUNE 28, 1948, WERE MODIFIED SO AS TO DIRECT RELEASE FROM "ACTIVE DUTY" ON DECEMBER 30, 1948; AND THAT BY SUCCESSIVE MODIFICATIONS OF THE ORDERS OF JUNE 28, 1948, MR. WALKER'S PERIOD OF TRAINING DUTY WAS FURTHER EXTENDED TO MARCH 30, 1949, TO JUNE 30, 1949, TO SEPTEMBER 30, 1949, TO OCTOBER 31, 1949, AND TO DECEMBER 31, 1949. IT FURTHER APPEARS THAT BY ORDERS OF U.S. NAVAL HOSPITAL, CHARLESTON NAVAL BASE, NAVAL BASE, SOUTH CAROLINA, DATED DECEMBER 8, 1949, MR. WALKER WAS DIRECTED TO PROCEED AND REPORT TO U.S. NAVAL HOSPITAL, NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MARYLAND, FOR FURTHER TREATMENT AND DISPOSITION; THAT HE REPORTED IN ACCORDANCE WITH SAID ORDERS AND WAS ADMITTED FOR TREATMENT ON DECEMBER 9, 1949; AND THAT HE WAS DISCHARGED FROM TREATMENT, NO FURTHER HOSPITALIZATION INDICATED, ON AUGUST 18, 1950. ALSO, IT APPEARS THAT ON JANUARY 23, 1951, THE CHIEF OF NAVAL PERSONNEL ADVISED MR. WALKER THAT ON FEBRUARY 1, 1951, HE WOULD BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH DISABILITY OF 80 PERCENTUM, IN THE RANK OF MACHINIST, WITH NINE YEARS' ACTIVE SERVICE, AND WITH ENTITLEMENT TO RETIRED PAY COMPUTED UNDER TITLE 37, SECTION 272 (D), U.S.C. (SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 SUPRA). IT FURTHER APPEARS THAT ORDERS OF THE CHIEF OF NAVAL PERSONNEL DATED JANUARY 24, 1951, DIRECTED MR. WALKER TO REPORT TO THE COMMANDING OFFICER, NAVAL RECEIVING STATION, NAVAL BASE, CHARLESTON, SOUTH CAROLINA, IN CONNECTION WITH PROCEDURES INCIDENT TO HIS RELEASE FROM "ACTIVE DUTY" AND, UPON COMPLETION, TO PROCEED TO HIS HOME IN CONNECTION WITH RETIREMENT, AND UPON HIS BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE UNITED STATES NAVY ON FEBRUARY 1, 1951, TO REGARD HIMSELF AS RELIEVED OF ALL "ACTIVE DUTY" AS OF THAT DATE.

THE LETTER OF THE JUDGE ADVOCATE GENERAL FORWARDING THE REQUEST FOR DECISION IN THIS CASE IS IN PART AS FOLLOWS:

IT IS NOTED THAT THE BASIC CORRESPONDENCE OMITS ANY REFERENCE TO THE FACT THAT THE SECRETARY OF THE NAVY CONSIDERED THIS CASE ON 4 OCTOBER 1950 AND FOUND AS FOLLOWS:

"IN REVIEWING THE RECORD IN THIS MEMBER'S CASE, IT IS NOTED THAT HE WAS ORDERED TO EXTENDED TRAINING DUTY ON 28 JUNE 1948 AND, THROUGH SUCCESSIVE MODIFICATIONS OF ORDERS, WAS CONTINUED ON THE SAME TYPE OF EXTENDED TRAINING DUTY UNTIL HOSPITALIZED ON 8 DECEMBER 1949. HIS DISABILITY IS THE RESULT OF DISEASE ( EPILEPSY, GRAND MAL--- CODE NO. 3531) AND IS RATED 80 PERCENTUM. THIS CASE PRESENTS THE QUESTION WHETHER THIS MEMBER'S DUTY WAS "EXTENDED ACTIVE DUTY" WITHIN THE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, OR WHETHER IT WAS ONLY ,TRAINING DUTY" SINCE HIS ORDERS CONTAINED THE STATEMENT,"ISSUED IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN ARTICLE H-5306, BUREAU OF NAVAL PERSONNEL MANUAL.'

" ARTICLE H-5306 OF THE BUREAU OF NAVAL PERSONNEL MANUAL REFERS ONLY TO SHORT PERIODS OF TRAINING DUTY. A PORTION OF THIS ARTICLE, SUBPARAGRAPH (2), READS," NO INDIVIDUAL OR ORGANIZATION SHALL BE GIVEN IN EXCESS OF 14 DAYS' TRAINING DUTY WITH PAY, EXCLUSIVE OF TRAVEL TIME, ANNUALLY, WITHOUT AUTHORITY OF THE BUREAU OF NAVAL PERSONNEL.' THE MEMBER IN THIS CASE WAS RETAINED ON ACTIVE SERVICE FOR A PERIOD OF APPROXIMATELY 18 MONTHS PRIOR TO HOSPITALIZATION AND PERFORMED SUCH DUTIES AS NORMALLY ASSIGNED MEMBERS OF THE REGULAR NAVY. HIS EMPLOYMENT INCLUDED , ASSISTANT FOR NAVAL RESERVE MATERIAL--- LAYOUTS," "CHECKING MACHINE TOOLS FOR REHABILITATION OF NAVAL RESERVE TRAINING CENTERS ( SHOP MACHINES)" AND " ASSISTANT FOR MATERIAL AND INSTALLATIONS.' THREE SEMI-ANNUAL FITNESS REPORTS WERE SUBMITTED ON THIS MEMBER COVERING THIS PERIOD OF EMPLOYMENT.'

THE CASE WAS AGAIN CONSIDERED BY THE SECRETARY OF THE NAVY ON 17 JANUARY 1951 AND IT WAS FURTHER FOUND:

"* * * IT IS TO BE NOTED THAT THE CONTROLLING CIRCUMSTANCE IN THE PRESENT CASE * * * IS THAT THIS MEMBER, ALTHOUGH ORDERED TO TRAINING DUTY, ACTUALLY PERFORMED WHAT AMOUNTED TO EXTENDED ACTIVE DUTY.'

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 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 --

(1) IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(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 * * *. THOSE PROVISIONS OF THE SAID 1940 ACT, AS AMENDED, WHICH PERTAIN TO RETIREMENT--- EXCEPT AS THEY MAY BE MATERIAL IN RELATION TO THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287--- WERE WHOLLY SUPERSEDED BY SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816. COMPARE B-100262, APRIL 25, 1951, 30 COMP. GEN. 409.

THE SAID SECTION 402 OF THE CAREER COMPENSATION ACT PROVIDES IN PERTINENT PART THAT:

(A) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES, ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE 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 DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; 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: PROVIDED FURTHER, THAT ANY DISABILITY SHOWN TO HAVE BEEN INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY.

(B) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE 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 MEMBER HAS COMPLETED AT LEAST EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE; 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 MEMBERS 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: AND PROVIDED FURTHER, THAT REGARDLESS OF THE PERCENTAGE OF DISABILITY DETERMINED TO HAVE BEEN INCURRED, IF CONDITION (4) ABOVE IS NOT MET BECAUSE THE MEMBER CONCERNED HAS COMPLETED LESS THAN EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE AT THE TIME HE WOULD OTHERWISE HAVE BEEN RETIRED PURSUANT TO THIS SUBSECTION, 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.

(C) 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 OR 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. (D) 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 * * *.

THE LETTER OF THE JUDGE ADVOCATE GENERAL SUGGESTS THAT MR. WALKER MAY HAVE BEEN ELIGIBLE FOR RETIREMENT UNDER THE ABOVE-QUOTED SUBSECTION 402 (B). HOWEVER, THERE IS NO SHOWING IN THE CASE OF A DETERMINATION BY THE SECRETARY OF THE NAVY--- AS WOULD BE REQUIRED UNDER THAT SUBSECTION--- THAT MR. WALKER INCURRED EPILEPSY WHILE ENTITLED TO RECEIVE BASIC PAY. MOREOVER, SUBSECTION 402 (A) AND 402 (B), SUPRA, PERTAIN ONLY TO MEMBERS OF THE REGULAR COMPONENTS AND TO MEMBERS OF RESERVE COMPONENTS WHO HAVE BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS. SUBSECTION 402 (C) PERTAINS TO MEMBERS OF THE UNIFORMED SERVICES OTHER THAN THOSE COVERED BY SUBSECTIONS (A) AND (B) AND AUTHORIZES RETIREMENT, UNDER SPECIFIED CONDITIONS, FOR SUCH MEMBERS WHO BECOME PHYSICALLY DISABLED FROM AN INJURY WHICH IS 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. WHILE MR. WALKER'S ORDERS CALLED FOR AND DOUBTLESS CONTEMPLATED THE PERFORMANCE OF FULL-TIME TRAINING DUTY, AS DISTINGUISHED FROM EXTENDED ACTIVE DUTY, IT IS URGED THAT HE ACTUALLY PERFORMED WHAT AMOUNTED TO ACTIVE DUTY. HOWEVER, THE STATUTE MAKES NO EXCEPTION IN THE CASE OF TRAINING DUTY WHICH MIGHT BE CONSIDERED THE EQUIVALENT OF ACTIVE DUTY. INSTEAD, THE STATUTE CLEARLY DIFFERENTIATES BETWEEN RESERVISTS ON EXTENDED ACTIVE DUTY AND THOSE IN OTHER CATEGORIES, INCLUDING THOSE ON FULL-TIME TRAINING DUTY, REGARDLESS OF ITS DURATION. COMPARE NAVY DEPARTMENT COURT MARTIAL ORDER NO. 4-1948, PAGES 134, 139, HOLDING THAT RESERVISTS PERFORMING TRAINING DUTY IN EXCESS OF 30 DAYS ARE NOT "CALLED OR ORDERED INTO ACTIVE NAVAL * * * SERVICE" WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864. ALSO, COMPARE NAVY DEPARTMENT COURT MARTIAL ORDER NO. 5-1950, PAGE 209, HOLDING THAT A WARRANT OFFICER OF THE NAVAL RESERVE HOSPITALIZED WHILE SERVING ON TRAINING DUTY DIRECTED TO BE OF SOME NINE MONTHS' DURATION, AND SUBSEQUENTLY FOUND TO BE PERMANENTLY UNFIT BY REASON OF DISEASE FOR THE PERFORMANCE OF ANY DUTY IN THE NAVAL SERVICE, WAS NOT ELIGIBLE FOR PHYSICAL DISABILITY RETIREMENT UNDER ANY PROVISION OF LAW.

THE LETTER OF THE JUDGE ADVOCATE GENERAL QUOTES FROM A DECISION OF THIS OFFICE DATED APRIL 13, 1948, B-74143, TO THE EFFECT THAT ORDERS SHOULD NOT BE GIVEN AN EFFECT DIAMETRICALLY OPPOSITE TO THAT WHICH WAS INTENDED BY THE ISSUING AUTHORITY, AND CONTRARY TO WHAT THE OFFICER UNDERSTOOD THE ORDERS TO REQUIRE. THAT CASE INVOLVED ATTENDANCE AT A TWO WEEKS' SEMINAR- -- UNQUESTIONABLY TRAINING DUTY--- UNDER ORDERS WHICH, APPARENTLY THROUGH SUBTERFUGE, OSTENSIBLY REQUIRED THE PERFORMANCE OF ACTIVE DUTY. IT DOES NOT APPEAR THAT THERE WAS ANY SUBTERFUGE OR ANY MISTAKE IN THE PHRASING OF MR. WALKER'S ORDERS, OR THAT THE ISSUING AUTHORITY INTENDED, WHEN DIRECTING HIM TO PERFORM TRAINING DUTY, THAT HE ACTUALLY WOULD PERFORM SOME OTHER TYPE OF DUTY, OR THAT MR. WALKER, HIMSELF, UNDERSTOOD THAT HIS ORDERS TO TRAINING DUTY WERE NOT INTENDED TO DIRECT HIM TO PERFORM TRAINING DUTY. HENCE, IT MUST BE CONCLUDED THAT MR. WALKER IS NOT ENTITLED TO RETIREMENT BENEFITS UNDER SUBSECTIONS 402 (A) OR 402 (B) OF THE CAREER COMPENSATION ACT, SINCE HE WAS NOT ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS, AND THAT HE IS NOT ENTITLED TO RETIREMENT BENEFITS UNDER SUBSECTION 402 (C) SINCE HIS DISABILITY WAS NOT THE RESULT OF AN INJURY. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.