B-113897, JUNE 19, 1953, 32 COMP. GEN. 554

B-113897, JUNE 19, 1953, 32 COMP. GEN. 554

PAY - ACTIVE DUTY - RETIRED - RESERVISTS INJURED OR KILLED EN ROUTE TO OR FROM INACTIVE DUTY TRAINING A RESERVE OFFICER OF THE ARMY OR AIR FORCE WHO IS INJURED OR KILLED WHILE EMPLOYED IN AUTHORIZED TRAVEL TO OR FROM INACTIVE-DUTY TRAINING IS NOT ENTITLED TO THE BENEFITS OF THE ACT OF APRIL 3, 1939, AS AMENDED, OR TO THE DISABILITY RETIREMENT BENEFITS OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949 REGARDLESS OF THE METHOD OF TRAVEL EMPLOYED, THE POINT OF DEPARTURE (HEADQUARTERS OR HOME), OR THE PAY OR NON-PAY STATUS OF THE OFFICER, EVEN THOUGH SUCH TRAVEL MAY BE PRESCRIBED IN ORDERS AS A PART OF HIS INACTIVE DUTY TRAINING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JUNE 19, 1953:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1953, REQUESTING DECISION ON SEVERAL QUESTIONS--- LISTED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 61, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE --- CONCERNING BENEFITS IN THE CASE OF RESERVE OFFICERS WHO ARE KILLED OR INJURED IN LINE OF DUTY WHILE PERFORMING TRAVEL WHICH IS A PRESCRIBED PART OF THEIR INACTIVE DUTY TRAINING.

IN THE ABOVE COMMITTEE ACTION IT IS STATED THAT RESERVE TRAINING PROGRAMS OF THE ARMY REQUIRE THAT RESERVE OFFICERS IN COMMAND OF RESERVE UNITS, AND THEIR STAFFS, INSPECT AND SUPERVISE THE INACTIVE DUTY TRAINING OF SUBORDINATE ELEMENTS OF THEIR UNITS ON A SYSTEMATIC BASIS; THAT APPROPRIATED FUNDS ARE AVAILABLE TO DEFRAY THE EXPENSES OF TRANSPORTATION, SUBSISTENCE, AND QUARTERS, INCURRED IN CONNECTION WITH THESE DUTIES WHEN THE SUBORDINATE ELEMENT OF THE UNIT IS LOCATED AT SUCH DISTANCE FROM THE PARENT HEADQUARTERS AS TO REQUIRE SUCH EXPENDITURE; AND THAT COMPETENT ORDERS ARE ISSUED TO COVER THE PERFORMANCE OF THIS DUTY ON AN INACTIVE DUTY TRAINING STATUS WITHOUT PAY, EXCEPT FOR THE ABOVE-STATED ALLOWANCES. ALSO, IT IS STATED THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS EXPRESSED THE OPINION THAT IF THE ORDERS STIPULATED THAT "ALL TRAVEL PERFORMED SHALL BE A PART OF THE INACTIVE DUTY TRAINING HEREIN DIRECTED," BENEFITS WOULD ACCRUE IN THE EVENT THAT THE OFFICER WAS KILLED OR INJURED WHILE PERFORMING SUCH TRAVEL, THAT THE DEPARTMENT OF THE ARMY DESIRES TO CLARIFY PERTINENT REGULATIONS BY AN AMENDMENT TO INCLUDE PROTECTION FOR INJURIES INCURRED DURING TRAVEL WHICH IS A PRESCRIBED PART OF THE INACTIVE DUTY TRAINING UNDER ORDERS, IF SUCH AMENDMENT IS AUTHORIZED BY THE ACT OF JUNE 20, 1949, 63 STAT. 202, AND THE CAREER COMPENSATION ACT OF 1949; BUT THAT IN VIEW OF THE DECISION OF THIS OFFICE DATED MAY 14, 1952, B-106846, 31 COMP. GEN. 597, DOUBT EXISTS AS TO THE PROPRIETY OF SUCH ACTION.

THE SPECIFIC QUESTIONS PRESENTED ARE SEPARATELY QUOTED AND DISCUSSED BELOW.

QUESTION 1

IF A RESERVE OFFICER IS INJURED OR KILLED IN LINE OF DUTY WHILE TRAVELING AND SUCH TRAVEL IS A PRESCRIBED PART OF HIS INACTIVE DUTY TRAINING IN A NON-PAY STATUS UNDER PROPER ORDERS, IS THE RESERVIST ENTITLED TO THE BENEFITS PROVIDED IN SECTION 5 OF THE ACT OF 3 APRIL 1939 (53 STAT. 557) AS AMENDED BY THE ACTS OF 25 JULY 1939 (53 STAT. 1079), 10 DECEMBER 1941 (55 STAT. 796), AND (63 STAT. 202) (10 U.S.C. 456); AND, WHEN APPLICABLE, SECTION 402 (C) THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 817, 37 U.S.C. 272/?

SECTION 2 OF THE ACT OF JUNE 20, 1949, 63 STAT. 202, PROVIDES THAT:

THE LAST PROVISO TO SECTION 5 OF THE ACT ENTITLED "AN ACT TO PROVIDE MORE EFFECTIVELY FOR THE NATIONAL DEFENSE BY CARRYING OUT THE RECOMMENDATIONS OF THE PRESIDENT IN HIS MESSAGE OF JANUARY 12, 1939, TO THE CONGRESS," APPROVED APRIL 3, 1939, AS AMENDED, IS AMENDED TO READ 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, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, OR THE REGULAR AIR FORCE WHO---

(1) IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED 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 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.

SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, PROVIDES THAT:

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: 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. (ITALICS SUPPLIED.)

SECTION 501 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 826, PROVIDES THAT:

MEMBERS OF THE NATIONAL GUARD, AIR NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD OF THE UNITED STATES, ORGANIZED RESERVE CORPS, NAVAL RESERVE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED, WITH THEIR CONSENT, AND WHEN SUCH AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED THEY MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY, WITH SUBSISTENCE EN ROUTE, AND, DURING THE PERFORMANCE OF SUCH DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY CONCERNED. (ITALICS SUPPLIED.)

IN 31 COMP. GEN. 597, SUPRA, IT WAS HELD THAT AN OFFICER OF THE NAVAL RESERVE, INJURED WHILE TRAVELING TO A TEMPORARY DUTY STATION, WAS NOT ENTITLED TO BENEFITS UNDER SECTION 1 OF THE ACT OF JUNE 20, 1949, SIMILAR IN WORDING TO SECTION 2 OF THAT ACT HEREINBEFORE QUOTED, OR TO BENEFITS UNDER SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. THAT HOLDING WAS PREDICATED ON THE FACT THAT, INSOFAR AS THERE PERTINENT, SUCH BENEFITS WERE RESTRICTED TO MEMBERS OF THE RESERVE INJURED WHILE "EMPLOYED" ON ACTIVE DUTY, ETC. SINCE SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED--- THE THEN AUTHORITY FOR THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO MEMBERS OF THE NAVAL RESERVE--- EXPRESSLY DISTINGUISHED BETWEEN BEING "EMPLOYED ON ACTIVE OR TRAINING DUTY" AND BEING "EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY," IT WAS CONCLUDED THAT MEMBERS WHO WERE INJURED WHILE IN THE LATTER STATUS DID NOT COME WITHIN THE PURVIEW OF THE STATUTORY PROVISIONS IN QUESTION.

LIKE SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SECTION 501 (B) OF THE CAREER COMPENSATION ACT OF 1949, QUOTED ABOVE, EXPRESSLY DISTINGUISHES BETWEEN EMPLOYMENT ON DUTY WITHOUT PAY AND TRAVEL TO AND FROM SUCH DUTY, AND A MEMBER'S STATUS IN THAT RESPECT MAY NOT LEGALLY BE CHANGED BY AN ADMINISTRATIVE ATTEMPT TO PRESCRIBE HIS TRAVEL TO AND FROM INACTIVE DUTY TRAINING AS ACTUALLY BEING A PART OF SUCH INACTIVE DUTY TRAINING. ACCORDINGLY, SINCE UNDER THE CIRCUMSTANCES STATED THE OFFICER COULD NOT BE CONSIDERED AS HAVING BEEN INJURED OR KILLED WHILE EMPLOYED ON INACTIVE DUTY TRAINING, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

QUESTION 2

WOULD THE METHOD OF TRAVEL, I.E., WHETHER BY PRIVATELY OWNED VEHICLE, GOVERNMENT-OWNED VEHICLE, OR COMMON CARRIER, HAVE ANY BEARING ON THE ELIGIBILITY FOR COMPENSATION OR OTHER BENEFITS IN THE EVENT OF INJURY OR DEATH IN LINE OF DUTY WHILE IN A TRAVEL STATUS?

QUESTION 3

WOULD YOUR ANSWER BE THE SAME:

A. IF THE OFFICER PROCEEDED FROM HIS HEADQUARTERS TO THE POINT HE WAS REQUIRED TO VISIT IN THE PERFORMANCE OF HIS DUTY?

B. IF THE OFFICER PROCEEDED DIRECTLY FROM HIS HOME TO THE POINT HE WAS REQUIRED TO VISIT IN THE PERFORMANCE OF HIS DUTY?

IN VIEW OF THE ANSWER TO THE FIRST QUESTION, QUESTION 2 IS ANSWERED IN THE NEGATIVE AND QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4

WOULD YOUR ANSWER BE THE SAME IF THE OFFICER WERE PERFORMING TRAVEL AS A PRESCRIBED PART OF HIS INACTIVE DUTY TRAINING IN A WITH PAY STATUS?

NO BASIS IS PERCEIVED FOR MAKING ANY DISTINCTION BETWEEN THE CASE OF A MEMBER ENGAGED IN INACTIVE DUTY TRAINING IN A PAY STATUS AND A MEMBER ENGAGED IN SUCH TRAINING IN A NONPAY STATUS INSOFAR AS THE QUESTION HERE UNDER CONSIDERATION IS CONCERNED. SEE, IN THAT CONNECTION, SECTION 102 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, WHICH PROVIDES, IN PERTINENT PART, THAT:

THE TERM "INACTIVE DUTY TRAINING" SHALL BE INTERPRETED TO MEAN ANY OF THE TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES, OR EQUIVALENT TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES, OR HAZARDOUS DUTY PERFORMED WITH OR WITHOUT COMPENSATION BY MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED PURSUANT TO SECTION 501 OF THIS ACT OR ANY OTHER PROVISION OF LAW, AND IN ADDITION THERETO SHALL INCLUDE THE PERFORMANCE OF SPECIAL ADDITIONAL DUTIES, AS MAY BE AUTHORIZED BY COMPETENT AUTHORITY, BY SUCH MEMBERS ON A VOLUNTEER BASIS IN CONNECTION WITH THE PRESCRIBED TRAINING OR MAINTENANCE ACTIVITIES OF THE UNIT TO WHICH THE MEMBERS ARE ASSIGNED * * *. (ITALICS SUPPLIED.)

REGARDLESS OF WHETHER A MEMBER IS PERFORMING INACTIVE DUTY TRAINING IN A PAY STATUS OR IN A NONPAY STATUS, THE FACT REMAINS THAT HE IS NOT PERFORMING SUCH DUTY WHILE HE IS ENGAGED IN TRAVELING TO OR FROM THE PLACE WHERE HE IS REQUIRED TO PERFORM IT. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.