B-113289, JANUARY 16, 1953, 32 COMP. GEN. 325

B-113289: Jan 16, 1953

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PAY - COMBAT DUTY PAY - KOREAN SERVICE - "INJURED" OR "WOUNDED" IN ACTION - FROSTBITE A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO SUFFERS OR SUFFERED FROSTBITE WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA AND WHO IS HOSPITALIZED FOR SUCH FROSTBITE. THEREFORE IS ENTITLED TO COMBAT PAY. 1953: REFERENCE IS MADE TO LETTER OF DECEMBER 24. REQUESTING DECISION AS TO WHETHER A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO SUFFERS OR SUFFERED FROSTBITE WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA AND WHO IS HOSPITALIZED FOR SUCH FROSTBITE. FOR WHICH HE WAS ENTITLED TO RECEIVE BASIC PAY AND IN WHICH HE WAS KILLED IN ACTION. FOR NOT MORE THAN THREE MONTHS THEREAFTER DURING WHICH HE WAS HOSPITALIZED FOR THE TREATMENT OF AN INJURY OR WOUND RECEIVED IN ACTION WHILE SO SERVING.'.

B-113289, JANUARY 16, 1953, 32 COMP. GEN. 325

PAY - COMBAT DUTY PAY - KOREAN SERVICE - "INJURED" OR "WOUNDED" IN ACTION - FROSTBITE A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO SUFFERS OR SUFFERED FROSTBITE WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA AND WHO IS HOSPITALIZED FOR SUCH FROSTBITE, MAY BE CONSIDERED AS HAVING BEEN "INJURED IN ACTION," OR "WOUNDED IN ACTION," WITHIN THE MEANING OF THOSE TERMS AS USED IN SECTION 704 (A) OF THE COMBAT DUTY PAY ACT OF 1952, AND THEREFORE IS ENTITLED TO COMBAT PAY.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JANUARY 16, 1953:

REFERENCE IS MADE TO LETTER OF DECEMBER 24, 1952, FROM THE DEPUTY SECRETARY OF DEFENSE, REQUESTING DECISION AS TO WHETHER A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO SUFFERS OR SUFFERED FROSTBITE WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA AND WHO IS HOSPITALIZED FOR SUCH FROSTBITE, MAY BE CONSIDERED AS HAVING BEEN "INJURED IN ACTION," OR "WOUNDED IN ACTION," WITHIN THE MEANING OF THOSE TERMS AS USED IN SECTION 704 (A) OF THE COMBAT DUTY PAY ACT OF 1952, 66 STAT. 539, SO AS TO BE ENTITLED TO PAYMENT OF COMBAT PAY.

SAID SECTION 704 (A) PROVIDES THAT EACH MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE COMBAT PAY IN THE AMOUNT OF $45 PER MONTH FOR EACH MONTH AFTER MAY 31, 1950, FOR WHICH HE WAS ENTITLED TO RECEIVE BASIC PAY AND IN WHICH HE WAS KILLED IN ACTION,"INJURED IN ACTION, OR WOUNDED IN ACTION WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA, AND FOR NOT MORE THAN THREE MONTHS THEREAFTER DURING WHICH HE WAS HOSPITALIZED FOR THE TREATMENT OF AN INJURY OR WOUND RECEIVED IN ACTION WHILE SO SERVING.'

THERE APPEARS TO BE NO QUESTION BUT THAT A PERSON WHO SUFFERS FROM FROSTBITE ACTUALLY INCURS A PHYSICAL INJURY OF SOME DEGREE AND THE COURTS HAVE RECOGNIZED THAT INJURIES FROM FREEZING OR FROSTBITE WHICH RESULT FROM EXPOSURE TO WEATHER CONDITIONS REQUIRED TO BE FACED BY REASON OF A PERSON'S EMPLOYMENT AND WHICH INVOLVED GREATER RISKS THAN THOSE TO WHICH THE GENERAL PUBLIC IS EXPOSED ARE INJURIES WHICH ARE WITHIN THE SCOPE OF THE VARIOUS WORKMEN'S COMPENSATION ACTS. SEE 58 AM. JUR. 760, 761, AND CASES CITED IN NOTE 6 AND ANNOTATIONS REFERRED TO THEREIN. THE WORDS ,INJURED IN ACTION * * * WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA," ARE BROAD AND UNLIMITED BY SPECIFIC EXCEPTIONS. HENCE, IN THE ABSENCE OF EVIDENCE/OF A CONTRARY INTENT IN THE LEGISLATIVE HISTORY OF THE ABOVE-CITED PROVISIONS OF LAW--- AND NONE HAS BEEN FOUND--- IT APPEARS REASONABLE TO CONCLUDE THAT THE CONGRESS DID NOT INTEND TO EXCLUDE FROM THE BENEFITS OF THE STATUTE PERSONS INJURED BY FROSTBITE. ACCORDINGLY, IT IS CONCLUDED THAT THE PERSONNEL HERE INVOLVED MAY BE CONSIDERED AS HAVING BEEN "INJURED IN ACTION" SO AS TO BE ENTITLED TO COMBAT PAY AS PROVIDED IN SAID COMBAT DUTY PAY ACT OF 1952. CF. 22 COMP. GEN. 1038.