B-106846, MAY 14, 1952, 31 COMP. GEN. 597

B-106846, MAY 14, 1952, 31 COMP. GEN. 597

PAY AND ALLOWANCES - RESERVISTS INJURED WHILE ON TEMPORARY ACTIVE DUTY FOR PHYSICAL EXAMINATION AN OFFICER OF THE NAVAL RESERVE ORDERED TO TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION WHO IS INJURED WHILE EMPLOYED IN TRAVEL TO THE TEMPORARY ACTIVE DUTY STATION IS NOT ENTITLED TO THE PAY AND ALLOWANCE BENEFITS PRESCRIBED BY SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR NAVAL RESERVISTS WHO SUFFER DISABILITY WHILE "EMPLOYED" ON ACTIVE DUTY OR TRAINING DUTY. A NAVAL RESERVE OFFICER ORDERED TO TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION BUT WHO IS INJURED WHILE EMPLOYED IN TRAVEL TO THE TEMPORARY ACTIVE DUTY STATION MAY NOT BE CONSIDERED AS ACTUALLY "EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY" WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SO AS TO BE ENTITLED TO DISABILITY RETIREMENT PAY, UNDER THE PROVISIONS OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, AUTHORIZING SUCH PAY TO MEMBERS OF THE UNIFORMED SERVICES FOR A DISABILITY RESULTING FROM AN INJURY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 14, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1951, WHEREIN YOU REQUEST DECISION AS TO THE RIGHT OF LIEUTENANT (JUNIOR GRADE) MILTON C. ADAMS, UNITED STATES NAVAL RESERVE, TO ACTIVE DUTY PAY AND ALLOWANCES AND TO DISABILITY RETIREMENT PAY UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT BY ORDERS DATED SEPTEMBER 19, 1950, FROM THE CHIEF OF NAVAL PERSONNEL, AND ENDORSEMENT THEREON, LIEUTENANT ADAMS WAS ORDERED TO ALBUQUERQUE, NEW MEXICO, FOR TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION. IF FOUND PHYSICALLY QUALIFIED HE WAS TO RETURN IMMEDIATELY TO THE PLACE TO WHICH THE ORDERS WERE ADDRESSED--- HEREFORD, TEXAS--- AND UPON ARRIVAL THEREAT TO CONSIDER HIMSELF RELEASED FROM ALL ACTIVE DUTY UNTIL SUCH TIME AS WOULD ENABLE HIM TO COMMENCE TRAVEL, WITHIN TEN DAYS AFTER COMPLETION OF HIS PHYSICAL EXAMINATION, AND PROCEED TO SAN DIEGO, CALIFORNIA, AND REPORT TO THE COMMANDING OFFICER, NAVY COMMUNICATION STATION, ELEVENTH NAVAL DISTRICT HEADQUARTERS, FOR TEMPORARY ACTIVE DUTY UNDER INSTRUCTION FOR A PERIOD OF ABOUT TEN DAYS. UPON COMPLETION OF SUCH TEMPORARY ACTIVE DUTY, AND WHEN DIRECTED BY HIS COMMANDING OFFICER, HE WAS TO REGARD HIMSELF DETACHED; PROCEED TO SAN FRANCISCO, CALIFORNIA; AND REPORT TO THE DEPUTY COMMANDER, MILITARY SEA TRANSPORTATION SERVICE, PACIFIC, FOR DUTY AFLOAT. TRAVEL VIA PRIVATE CONVEYANCE WAS AUTHORIZED. IF NOT FOUND PHYSICALLY QUALIFIED HE WAS TO RETURN IMMEDIATELY TO HEREFORD AND, UPON ARRIVAL, CONSIDER HIMSELF RELEASED FROM TEMPORARY ACTIVE DUTY.

IT FURTHER APPEARS THAT ON SEPTEMBER 26, 1950, WHILE EN ROUTE TO ALBUQUERQUE, NEW MEXICO, IN COMPLIANCE WITH HIS ORDERS, TO TAKE HIS PHYSICAL EXAMINATION, LIEUTENANT ADAMS WAS INJURED IN AN AUTOMOBILE ACCIDENT (BETWEEN TUCUMACARI AND ALBUQUERQUE, NEW MEXICO), AND YOU REQUEST DECISION AS TO WHETHER HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES DURING THE PERIOD OF HIS DISABILITY RESULTING FROM SUCH INJURY.

LIEUTENANT ADAMS' RIGHT, IF ANY, TO ACTIVE DUTY AND ALLOWANCES DURING THE PERIOD OF HIS DISABILITY DEPENDS UPON THE APPLICATION TO BE GIVEN THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, WHICH IS, IN PERTINENT PART, AS FOLLOWS:

"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 * * * 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 * * *.'

AS INDICATED IN DECISION OF OCTOBER 14, 1949, 29 COMP. GEN. 183, A MEMBER OF THE NAVAL RESERVE IN LIEUTENANT ADAMS' SITUATION COULD NOT BE ENTITLED TO THE BENEFITS OF THE ABOVE-QUOTED PROVISIONS LAW UNLESS HIS INJURY COULD BE CONSIDERED TO HAVE BEEN INCURRED WHILE HE WAS EMPLOYED ON ACTIVE DUTY WITHIN THE MEANING OF SUCH STATUTORY PROVISIONS. AND, AS NOTED IN SUCH DECISION, SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED, 34 U.S.C. 853E, EXPRESSLY DISTINGUISHES BETWEEN BEING "EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY" AND BEING "EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.' HENCE, IT WAS CONCLUDED THAT A PERSON INJURED WHILE EMPLOYED IN AUTHORIZED TRAVEL TO OR FROM TRAINING DUTY WOULD NOT BE ENTITLED TO SUCH BENEFITS AND NO SOUND REASON IS PERCEIVED WHY SUCH CONCLUSION WOULD NOT BE APPLICABLE IN THIS CASE. THE FACT THAT LIEUTENANT ADAMS' ORDERS EXPRESSLY PLACED HIM ON ACTIVE DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION AND STATED THAT HE WOULD BE CONSIDERED TO BE IN A "TEMPORARY ACTIVE DUTY STATUS DURING THE TIME REQUIRED FOR PHYSICAL EXAMINATION AND FOR TRAVEL NECESSARY FOR COMPLIANCE WITH THESE ORDERS" DOES NOT JUSTIFY A DIFFERENT CONCLUSION, SUCH PHRASEOLOGY HAVING HAD FOR ITS PURPOSE THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES FOR THE TIME SPENT IN GOING TO AND RETURNING FROM THE PHYSICAL EXAMINATION.

DECISION

YOU ALSO REQUEST DECISION AS TO WHETHER LIEUTENANT ADAMS WOULD BE ENTITLED TO BE RETIRED OR TO BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, WITH DISABILITY RETIREMENT PAY, PURSUANT TO THE PROVISIONS OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, IF OTHER CONDITIONS PRESCRIBED BY THAT SECTION ARE MET.

SECTION 402 (C) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/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 OF 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. * * *"

IN DECISION OF MARCH 5, 1952, B-100262, 31 COMP. GEN. 444, IT WAS HELD, INTER ALIA, THAT THE SAID SECTION 402 (C) DOES NOT APPLY TO MEMBERS CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS. HOWEVER, I THINK IT CLEAR THAT A MEMBER IS NOT ON SUCH EXTENDED ACTIVE DUTY DURING THE TIME HE IS ON ACTIVE DUTY FOR THE SHORT PERIOD REQUIRED FOR HIM TO TAKE A PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR ACTIVE DUTY. BUT, WHILE THE OFFICER HERE CONCERNED MIGHT NOT BE DISQUALIFIED FROM RECEIVING THE BENEFITS OF SECTION 402 (C) IN THAT RESPECT, THE FACT REMAINS, AS INDICATED ABOVE, THAT HIS INJURY COULD NOT HAVE BEEN THE PROXIMATE RESULT "OF THE PERFORMANCE OF ACTIVE DUTY" SINCE IT WAS INCURRED, NOT WHILE PERFORMING ACTIVE DUTY, BUT WHILE TRAVELING TO SUCH ACTIVE DUTY. AND, AS NOTED ABOVE, SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, EXPRESSLY DISTINGUISHES BETWEEN EMPLOYMENT ON ACTIVE DUTY ON THE ONE HAND AND AUTHORIZED TRAVEL TO AND FROM SUCH DUTY ON THE OTHER/HAND. ACCORDINGLY, THIS QUESTION ALSO IS ANSWERED IN THE NEGATIVE.

IN CONNECTION WITH THE FOREGOING IT IS POINTED OUT THAT THERE CURRENTLY ARE PENDING BEFORE THE CONGRESS AT LEAST TWO BILLS, H.R. 7002 AND S. 2876, WHICH CONTAIN PROVISIONS HAVING FOR THEIR PURPOSE THE AMENDMENT OF THE ACT OF JUNE 20, 1949, SUPRA, SO AS TO EXTEND ITS BENEFITS TO MEMBERS OF THE VARIOUS RESERVE COMPONENTS OF THE ARMED FORCES WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY OR DISEASE WHILE ENGAGED IN AUTHORIZED TRAVEL TO OR FROM ACTIVE DUTY, TRAINING DUTY, ETC. ..END :