B-116906, FEBRUARY 8, 1954, 33 COMP. GEN. 339

B-116906: Feb 8, 1954

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A MEMBER WHO WAS PARALYZED BY POLIOMYELITIS AFTER RELEASE FROM ACTIVE DUTY. WHO WAS MEDICALLY DETERMINED TO HAVE CONTRACTED THE DISEASE PRIOR TO SUCH RELEASE. A DETERMINATION BY THE NAVY THAT THE VIRUS WHICH CAUSED A RESERVE OFFICER'S POLIOMYELITIS ENTERED THE OFFICER'S SYSTEM PRIOR TO MIDNIGHT OF THE DAY OFFICER WAS DETACHED FROM COMMAND BY ORDERS DIRECTING RELEASE FROM ACTIVE DUTY TAKE EFFECT AS OF MIDNIGHT FOUR DAYS LATER. A DETERMINATION THAT THE VIRUS ENTERED THE SYSTEM DURING TRAVEL TIME PERIOD IS NOT SUFFICIENT TO BRING CASE WITHIN TERMS OF THE ACT. ONLY OF THOSE MEMBERS OF THE RESERVE WHO ARE PHYSICALLY QUALIFIED THEREFOR. ARE ORDERED TO "ACTIVE DUTY" FOR MEDICAL TREATMENT. POSSIBLE CONSIDERATION OF RETIREMENT PROCEEDINGS ARE NOT EMPLOYED ON ACTIVE DUTY AND NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES.

B-116906, FEBRUARY 8, 1954, 33 COMP. GEN. 339

PAY - ACTIVE DUTY, DISABILITY RETIREMENT AND DISABILITY SEVERANCE - DISEASE OR DISABILITY INCURRED PRIOR TO RELEASE FROM ACTIVE DUTY BUT NOT EVIDENT UNTIL AFTER RELEASE UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, WHICH PROVIDES THAT ALL MEMBERS OF THE NAVAL AND MARINE CORPS RESERVE ORDERED ON EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED SHALL BE ENTITLED TO SAME BENEFITS REGULAR MEMBERS. A MEMBER WHO WAS PARALYZED BY POLIOMYELITIS AFTER RELEASE FROM ACTIVE DUTY, BUT WHO WAS MEDICALLY DETERMINED TO HAVE CONTRACTED THE DISEASE PRIOR TO SUCH RELEASE, MAY BE CONSIDERED AS HAVING SUFFERED A DISABILITY WHILE EMPLOYED ON ACTIVE DUTY. A DETERMINATION BY THE NAVY THAT THE VIRUS WHICH CAUSED A RESERVE OFFICER'S POLIOMYELITIS ENTERED THE OFFICER'S SYSTEM PRIOR TO MIDNIGHT OF THE DAY OFFICER WAS DETACHED FROM COMMAND BY ORDERS DIRECTING RELEASE FROM ACTIVE DUTY TAKE EFFECT AS OF MIDNIGHT FOUR DAYS LATER--- FOUR DAYS REPRESENTING TIME ALLOWED FOR TRAVEL TO HOME--- WOULD ENTITLE THE OFFICER TO ACTIVE DUTY PAY AND ALLOWANCES UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR THE PERIODS DURING WHICH HOSPITALIZED; HOWEVER, A DETERMINATION THAT THE VIRUS ENTERED THE SYSTEM DURING TRAVEL TIME PERIOD IS NOT SUFFICIENT TO BRING CASE WITHIN TERMS OF THE ACT. THE NAVAL RESERVE ACT OF 1938 CONTEMPLATES ASSIGNMENT TO ACTIVE DUTY, WITH PAY AND ALLOWANCES, ONLY OF THOSE MEMBERS OF THE RESERVE WHO ARE PHYSICALLY QUALIFIED THEREFOR, SO THAT OFFICERS OF THE NAVAL RESERVE WHO, SUBSEQUENT TO RELEASE FROM ACTIVE DUTY, ARE ORDERED TO "ACTIVE DUTY" FOR MEDICAL TREATMENT, HOSPITALIZATION, AND POSSIBLE CONSIDERATION OF RETIREMENT PROCEEDINGS ARE NOT EMPLOYED ON ACTIVE DUTY AND NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES. AN OFFICER OF THE NAVAL RESERVE ENTITLED UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, TO ACTIVE DUTY PAY AND ALLOWANCES BECAUSE OF A DISABILITY SUFFERED WHILE EMPLOYED ON ACTIVE DUTY MAY PROPERLY BE CONSIDERED A "MEMBER * * * ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS" WITHIN THE MEANING OF THE DISABILITY RETIREMENT AND DISABILITY SEVERANCE PAY PROVISIONS OF SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, AND THUS ELIGIBLE TO HAVE RIGHT TO DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY CONSIDERED UNDER SUCH SECTION.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, FEBRUARY 8, 1954:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 2, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, REQUESTING DECISION ON SEVERAL QUESTIONS RELATIVE TO WHETHER LIEUTENANT LEONARD CARL VOGEL, UNITED STATES NAVAL RESERVE, MAY BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AND RETIREMENT PAY UNDER THE CIRCUMSTANCES SET FORTH THEREIN. THERE HAS BEEN RECEIVED, ALSO, THE ASSISTANT SECRETARY'S LETTER OF DECEMBER 15, 1953, REQUESTING EARLY CONSIDERATION OF SUCH QUESTIONS.

IT APPEARS THAT LIEUTENANT VOGEL ENLISTED IN THE NAVAL RESERVE ON NOVEMBER 21, 1942, AND WAS ORDERED TO ACTIVE DUTY EFFECTIVE JULY 1, 1943. HE WAS APPOINTED MIDSHIPMAN, U.S.N.R., ON MARCH 28, 1944, WAS CONTINUED ON ACTIVE DUTY AND ACCEPTED APPOINTMENT AS ENSIGN, U.S.N.R., ON JUNE 29, 1946. HE ACTIVELY PARTICIPATED IN ORGANIZED RESERVE ACTIVITIES DURING THE PERIOD 1946-50, WAS INVOLUNTARILY ORDERED INTO THE ACTIVE NAVAL SERVICE, REPORTING FOR EXTENDED ACTIVE DUTY ON OCTOBER 1, 1950. HE ACCEPTED APPOINTMENT AS LIEUTENANT FOR TEMPORARY SERVICE EFFECTIVE JULY 5, 1951, HAVING BEEN ADVANCED TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) PREVIOUS TO HIS ENTRY ON ACTIVE DUTY.

BY ORDERS DATED JUNE 30, 1952, THE CHIEF OF NAVAL PERSONNEL DIRECTED HIS RELEASE FROM ACTIVE DUTY TO BE EFFECTED PRIOR TO OCTOBER 1, 1952, THE DATE OF COMPLETION OF 24 MONTHS' ACTIVE SERVICE. HE WAS IN FACT RELEASED FROM ACTIVE DUTY PURSUANT TO SUCH ORDERS, HIS RELEASE PROCESSING INCLUDING A PHYSICAL EXAMINATION AT THE ADMINISTRATIVE COMMAND, NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, ON SEPTEMBER 11, 1952, WHICH REVEALED NO RELEVANT PHYSICAL DEFECT OR DISORDER. BY ENDORSEMENT ON HIS ORDERS HE WAS DETACHED FROM THAT COMMAND ON SEPTEMBER 11, 1952, AND HIS RELEASE FROM ACTIVE DUTY WAS DIRECTED TO TAKE EFFECT AS OF MIDNIGHT ON SEPTEMBER 15, 1952, THE ADDITIONAL FOUR DAYS REPRESENTING TIME ALLOWED FOR TRAVEL TO GOLDEN, COLORADO, THE PLACE FROM WHICH HE HAD BEEN ORDERED TO ACTIVE DUTY.

UPON DETACHMENT HE COMMENCED TRAVEL HOME BY PRIVATE AUTOMOBILE BY A CIRCUITOUS ROUTE, CONSULTING A PRIVATE PHYSICIAN AT TRAVERSE CITY, MICHIGAN, ON SEPTEMBER 18, 1952, PRIMARILY BECAUSE OF THE ILLNESS OF HIS SON, BUT THE PHYSICIAN HAS SUBMITTED AN AFFIDAVIT TO THE EFFECT THAT LIEUTENANT VOGEL HIMSELF COMPLAINED OF A SORE THROAT WHILE IN HIS OFFICE. ON SEPTEMBER 22, 24, AND 25, 1952, AT HARRISON, ARKANSAS, LIEUTENANT VOGEL CONSULTED A PRIVATE PHYSICIAN WHO, IN AN AFFIDAVIT DATED OCTOBER 14, 1952, INDICATED THAT PHYSICAL AND SPINAL FLUID FINDINGS WERE TYPICAL OF A SPINAL TYPE OF ANTERIOR POLIOMYELITIS AND THAT HE HAD REFERRED LIEUTENANT VOGEL TO DOCTOR JOHN GREUTTER AT ST. VINCENT'S INFIRMARY, LITTLE ROCK, ARKANSAS, FOR FURTHER TREATMENT. LIEUTENANT VOGEL WAS ADMITTED TO ST. VINCENT'S INFIRMARY IN LITTLE ROCK ON SEPTEMBER 26, 1952, AND REMAINED UNDER TREATMENT THERE UNTIL OCTOBER 15, 1952, WHEN HE WAS TRANSFERRED BY AIRPLANE TO FITZSIMMONS VETERANS ADMINISTRATION HOSPITAL IN DENVER, COLORADO. A TRANSCRIPT OF THE HOSPITAL RECORD AT ST. VINCENT'S AND AN AFFIDAVIT BY A PHYSICIAN CONSULTANT INDICATE A FINAL DIAGNOSIS OF ACUTE SPINAL PARALYTIC POLIOMYELITIS, INVOLVING VERY MARKED PARALYSIS OF THE LEFT LOWER EXTREMITY, MILD WEAKNESS OF THE ABDOMINAL MUSCLES, AND MODERATE WEAKNESS OF THE MUSCLES ABOUT THE RIGHT HIP. ON TRANSFER TO FITZSIMMONS HOSPITAL HE WAS SUFFERING FROM RESIDUAL PARALYSIS. THE DATE OF HIS RELEASE FROM SUCH HOSPITAL IS NOT SHOWN. IN A LETTER DATED JULY 6, 1953, TO THE CHIEF OF NAVAL PERSONNEL, LIEUTENANT VOGEL STATED THAT THE WAS STILL PHYSICALLY DISABLED DUE TO THE PARALYSIS HE INCURRED, AND THAT HE WAS UNABLE TO BE EMPLOYED IN THE POSITION WHICH HE HELD WHEN ORDERED INTO THE ACTIVE NAVAL SERVICE IN 1950.

ON THE BASIS OF INFORMATION AVAILABLE, THE CHIEF OF BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, HAS EXPRESSED AN OPINION THAT THE CLINICAL MANIFESTATIONS OF POLIOMYELITIS BEGAN SUBSEQUENT TO SEPTEMBER 15, 1952, THE EFFECTIVE DATE OF LIEUTENANT VOGEL'S RELEASE FROM ACTIVE DUTY, BUT THAT THE VIRUS WHICH CAUSED THE DISEASE ACTUALLY ENTERED HIS SYSTEM PRIOR TO MIDNIGHT ON THAT DATE. AS A BASIS FOR SUCH OPINION IT WAS STATED:

THE INCUBATION PERIOD OF POLIOMYELITIS IS GENERALLY HELD TO BE VARIABLE, RANGING FROM AS SHORT AS FIVE DAYS TO AS LONG AS THIRTY-FIVE OR MORE DAYS. IT IS GENERALLY CONSIDERABLE THAT THE INCUBATION PERIOD IS ABOUT SEVEN TO TEN DAYS IN DURATION WITH THE VIRUS GAINING ACCESS TO THE TISSUES OF THE BODY SEVEN TO TEN DAYS PRIOR TO THE ONSET OF SYMPTOMS WHICH REPRESENT THE FIRST PHASE OF THE CLINICAL ILLNESS.

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, PUBLIC LAW 108, 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 NOT 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 * * * .

THE JUDGE ADVOCATE GENERAL OF THE NAVY HAS RENDERED AN OPINION TO THE EFFECT THAT, CONSIDERING THE LEGISLATIVE HISTORY OF THE ACT, THE TERM "SUFFER" SHOULD BE CONSTRUED SO AS TO INCLUDE THE TERM "INCUR" AND A DISEASE MAY BE CONSIDERED AS INCURRED WHEN IT IS CONTRACTED, AND HENCE THAT THE DISABILITY RESULTING THEREFROM MAY BE CONSIDERED AS INCURRED WHEN CONTRACTED. ACCORDINGLY, HE CONCLUDED THAT THE DISABILITY OF LIEUTENANT VOGEL RESULTING FROM POLIOMYELITIS WAS SUFFERED PRIOR TO SEPTEMBER 15, 1952. THIS OFFICE DOES NOT DISAGREE WITH THAT CONCLUSION.

IT IS STATED THAT CONSIDERATION OF THE CASE OF LIEUTENANT VOGEL UNDER REGULATIONS PRESCRIBED PURSUANT TO TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 803, IS CONTEMPLATED TO ASCERTAIN THE EXISTENCE AND EXTENT OF HIS ELIGIBILITY FOR DISABILITY RETIREMENT OR SEVERANCE BENEFITS UNDER THAT ACT, WHICH REQUIRES DETERMINATION BY THE APPROPRIATE SECRETARY THAT THE MEMBER IS "ENTITLED TO RECEIVE BASIC PAY" AND THAT, IF A RESERVIST, HE "HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS.' DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) IN THE ABSENCE OF ANY FURTHER ADMINISTRATIVE ACTION BY THE DEPARTMENT AT THIS TIME, WOULD DISBURSEMENT TO LIEUTENANT VOGEL OF PROPERLY COMPUTED ACTIVE DUTY PAY AND ALLOWANCES FROM 16 SEPTEMBER 1952, OR FROM ANY DATE SUBSEQUENT THERETO, TO THE PRESENT, REPRESENT A VALID EXPENDITURE OF APPROPRIATED FUNDS?

(B) IF THE ANSWER TO (A) IS IN THE NEGATIVE, WHAT, IF ANY, ORDERS, CERTIFICATE, OR OTHER TYPE OF ADMINISTRATIVELY ISSUED DOCUMENT WOULD VALIDATE DISBURSEMENTS OF THE NATURE INDICATED, AND TO WHAT EXTENT? THE ANSWER TO (A) IS IN THE AFFIRMATIVE, SUGGESTIONS OF YOUR OFFICE WOULD BE APPRECIATED AS TO ANY TYPE OF EVIDENTIARY DOCUMENT WHICH WOULD FACILITATE EITHER OR BOTH DISBURSEMENTS AND AUDIT IN SUCH A CONNECTION.

(C) WOULD DISBURSEMENTS OF ACTIVE DUTY PAY AND ALLOWANCES, PROPERLY COMPUTED, ON THE BASIS OF EXECUTED CURRENT ORDERS DIRECTING LIEUTENANT VOGEL TO REPORT FOR ACTIVE DUTY, WHICH ORDERS REQUIRED NO PHYSICAL EXAMINATION OR DIRECTED REPORTING NOTWITHSTANDING PHYSICAL DISQUALIFICATION BY REASON OF RESIDUAL PARALYSIS, REPRESENT VALID EXPENDITURES OF APPROPRIATED FUNDS?

(D) WOULD DISBURSEMENTS OF DISABILITY RETIREMENT PAY, PROPERLY COMPUTED, REPRESENT VALID EXPENDITURES OF APPROPRIATED FUNDS IF---

(1) PAID FROM 1 OCTOBER 1952 ON THE BASIS OF A DETERMINATION BY THE SECRETARY, ABSENT ANY BOARD PROCEEDINGS, THAT ALL CONDITIONS OF TITLE IV OF THE CAREER COMPENSATION ACT WERE MET AS OF 15 SEPTEMBER 1952?

(2) PAID FROM THE FIRST DAY OF THE MONTH FOLLOWING THAT WITHIN WHICH A DETERMINATION, AS IN (1) ABOVE, WAS MADE?

(3) PAID AS IN (1) ABOVE, BUT ON THE BASIS OF A DETERMINATION BY THE SECRETARY PURSUANT TO BOARD RECOMMENDATIONS IN ACCORDANCE WITH THE NORMAL PROCEDURE FOLLOWED IN PHYSICAL DISABILITY RETIREMENT CASES?

(4) PAID AS IN (2) ABOVE, BUT ABSENT ANY DETERMINATION THAT LIEUTENANT VOGEL IS ENTITLED TO BASIC PAY OR HAS CURRENTLY BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS?

(5) PAID AS IN (4) ABOVE, BUT ABSENT ANY DETERMINATION THAT LIEUTENANT VOGEL IS ENTITLED TO BASIC PAY OR HAS CURRENTLY BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS?

(E)WOULD THE ANSWERS TO QUESTIONS PROPOUNDED UNDER (D) ABOVE BE EQUALLY APPLICABLE TO DISBURSEMENTS OF DISABILITY SEVERANCE PAY, PROPERLY COMPUTED, IF A DETERMINATION OF ENTITLEMENT TO THAT BENEFIT, RATHER THAN DISABILITY RETIREMENT PAY, WERE RENDERED?

SUBSECTION (A) OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816-817, READS AS FOLLOWS:

(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 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.

THE DISABILITY RETIREMENT BENEFITS AUTHORIZED BY THE SAID SECTION 402 WHOLLY SUPERSEDED THE DISABILITY RETIREMENT BENEFITS PROVIDED FOR IN PUBLIC LAW 108, EXCEPT AS THE LATTER MAY BE MATERIAL IN RELATION TO THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED. 30 COMP. GEN. 409.

IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, INVOLVING A MEMBER OF THE MARINE CORPS RESERVE WHO WAS INJURED WHILE ON TRAINING DUTY, THIS OFFICE HELD THAT UNDER PUBLIC LAW 108, ABOVE QUOTED, THE MEMBER WAS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE HE WAS AWAITING ACTION ON HIS DISABILITY RETIREMENT PROCEEDINGS. AND IN SEVERAL DECISIONS OF THIS OFFICE THE VIEW HAS BEEN EXPRESSED THAT A RESERVIST COMING WITHIN THE PURVIEW OF PUBLIC LAW 108 AND HOSPITALIZED FOR DISABILITY SUFFERED IN LINE OF DUTY IS ENTITLED TO ACTIVE -DUTY PAY AND ALLOWANCES NOT ONLY DURING HOSPITALIZATION BUT ALSO AFTER DISCHARGE FROM THE HOSPITAL TO THE DATE THE PROPER AUTHORITIES DETERMINE THAT HE CONTINUED TO BE DISABLED FOR HIS CIVILIAN PURSUITS. SEE 30 COMP. GEN. 185; 30 COMP. GEN. 476; AND B 109544, FEBRUARY 12, 1953. THE RESULTS WHICH WOULD FLOW FROM THE APPLICATION OF THESE PRINCIPLES IN THE CASE OF LIEUTENANT VOGEL ARE NOT CLEAR ON THE PRESENT RECORD. SUCH RECORD INDICATES THAT RETIREMENT PROCEEDINGS HAVE NOT BEEN INSTITUTED IN HIS CASE BECAUSE OF DOUBT WHETHER SUCH PROCEEDINGS WOULD BE LEGAL AND NO ADEQUATE INFORMATION HAS BEEN FURNISHED AS TO THE DATE WHEN HE WAS DISCHARGED FROM FITZSIMMONS HOSPITAL; THE TRUE EXTENT OF HIS PHYSICAL DISABILITY OR THE PERIODS OF HIS CIVILIAN EMPLOYMENT SINCE THAT TIME; THE NATURE OF HIS DUTIES DURING SUCH PERIODS OF EMPLOYMENT; THE EXTENT OF ANY IMPROVEMENT OR CHANGE IN HIS PHYSICAL CONDITION SINCE HE LEFT FITZSIMMONS HOSPITAL; AND THE NATURE OF ANY DETERMINATIONS WHICH MAY HAVE BEEN MADE BY THE BUREAU OF MEDICINE AND SURGERY OR OTHER AGENCY OF THE NAVY DEPARTMENT RESPECTING HIS PHYSICAL CONDITION SINCE THE TERMINATION OF SUCH HOSPITALIZATION. MOREOVER, WHILE IT HAS BEEN DETERMINED THAT LIEUTENANT VOGEL SUFFERED DISABILITY PRIOR TO MIDNIGHT SEPTEMBER 15, 1952, SUCH DETERMINATION IS NOT SUFFICIENT TO BRING HIS CASE WITHIN THE TERMS OF THE ABOVE-QUOTED PUBLIC LAW 108 SINCE HE WAS DETACHED FROM THE NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS ON SEPTEMBER 11, 1952, AND THE PERIOD FROM SEPTEMBER 12, 1952, TO SEPTEMBER 15, 1952, WAS A PERIOD OF TRAVEL HOME FROM ACTIVE DUTY RATHER THAN A PERIOD DURING WHICH HE WAS "EMPLOYED" ON ACTIVE NAVAL OR MILITARY SERVICE WITHIN THE MEANING OF THE SAID STATUTE. IN THAT CONNECTION SEE 29 COMP. GEN. 183 AND DECISION OF NOVEMBER 29, 1951, B-104934. ACCORDINGLY, NO FIRM DETERMINATION OF LIEUTENANT VOGEL'S RIGHTS MAY BE MADE AT THIS TIME. HOWEVER, SHOULD THE BUREAU OF MEDICINE AND SURGERY DETERMINE THAT THE VIRUS WHICH CAUSED HIS POLIOMYELITIS ENTERED HIS SYSTEM PRIOR TO MIDNIGHT ON SEPTEMBER 11, 1952, THEN HE WOULD BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR AT LEAST THE PERIODS DURING WHICH HE WAS HOSPITALIZED IN ST. VINCENT'S INFIRMARY, LITTLE ROCK, ARKANSAS, AND FITZSIMMONS VETERANS ADMINISTRATION HOSPITAL, DENVER, COLORADO, FOR THE DISABILITY RESULTING FROM SUCH DISEASE. QUESTIONS (A) AND (B) ARE ANSWERED ACCORDINGLY.

RESPECTING QUESTION (C), THIS OFFICE CONSISTENTLY HAS HELD THAT OFFICERS OF THE NAVAL RESERVE WHO, SUBSEQUENT TO RELEASE FROM ACTIVE DUTY, ARE ORDERED TO "ACTIVE DUTY" FOR MEDICAL TREATMENT, HOSPITALIZATION, AND POSSIBLE CONSIDERATION OF RETIREMENT PROCEEDINGS, ARE NOT EMPLOYED ON ACTIVE DUTY SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, BUT ARE ENTITLED TO ACTIVE-DUTY PAY ONLY IF ORDERED TO ACTIVE DUTY FOR THE ACTUAL PERFORMANCE OF SOME DUTY, SINCE IT IS CLEAR THAT THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175---

* * * CONTEMPLATED AN ASSIGNMENT TO ACTIVE DUTY, WITH PAY AND ALLOWANCES, ONLY OF THOSE MEMBERS OF THE RESERVE WHO ARE PHYSICALLY QUALIFIED THEREFOR AND THAT CLEARLY IT DID NOT CONTEMPLATE SUCH ASSIGNMENT TO "ACTIVE DUTY" FOR HOSPITALIZATION, ETC., OF MEMBERS WHO BY REASON OF THEIR PHYSICAL CONDITION WERE NOT EXPECTED TO, AND PROBABLY COULD NOT, PERFORM ACTIVE DUTY. * * * 26 COMP. GEN. 107, 108. SEE 21 COMP. GEN. 781; 29 COMP. GEN. 535, 537; AND COMPARE 22 COMP. GEN. 158; 27 ID. 490. ACCORDINGLY, QUESTION (C) IS ANSWERED IN THE NEGATIVE.

REGARDING THE SEVERAL SUBDIVISIONS OF QUESTION (D) IT IS RECOGNIZED IN THE ASSISTANT SECRETARY'S PRESENTATION THAT SECTION 402 (A) OF THE CAREER COMPENSATION ACT REQUIRES, AS A CONDITION PRECEDENT TO RETIREMENT OR PAYMENT OF DISABILITY RETIREMENT PAY, THAT THE SECRETARY MAKE THE NECESSARY DISABILITY RETIREMENT DETERMINATIONS WHILE THE MEMBER CONCERNED IS ENTITLED TO RECEIVE BASIC PAY. 30 COMP. GEN. 409, 414. ACCORDINGLY, ASSUMING THAT IT IS DETERMINED BY COMPETENT NAVAL AUTHORITY THAT THE POLIOMYELITIS VIRUS ENTERED LIEUTENANT VOGEL'S SYSTEM PRIOR TO MIDNIGHT ON SEPT. 11, 1952, THE PROPRIETY OF THEIR CONSIDERING HIS CASE UNDER THE RETIREMENT AND SEVERANCE PAY PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, WOULD DEPEND UPON WHETHER, UNDER THE PROVISIONS OF PUBLIC LAW 108 AS INTERPRETED AND APPLIED IN DECISIONS OF THIS OFFICE (29 COMP. GEN. 509, 30 COMP. GEN. 185, AND 30 COMP. GEN. 476) HE WOULD PRESENTLY BE ENTITLED TO ACTIVE DUTY PAY AND, IF SO, WHETHER SUCH ENTITLEMENT, DEPENDING AS IT NECESSARILY WOULD ON THE PROVISIONS OF THE SAID PUBLIC LAW 108 AND NOT DIRECTLY ON CURRENT ACTIVE-DUTY STATUS UNDER COMPETENT ORDERS, WOULD BE SUFFICIENT, WHEN CONSIDERED IN CONJUNCTION WITH HIS EARLIER ACTIVE-DUTY STATUS, TO JUSTIFY THE CONCLUSION THAT HE PRESENTLY COULD BE CONSIDERED A MEMBER "ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS" WITHIN THE MEANING OF THE SAID SECTION 402. AS INDICATED ABOVE, THE FACTS NOW BEFORE THIS OFFICE WOULD NOT JUSTIFY A FIRM CONCLUSION THAT LIEUTENANT VOGEL PRESENTLY IS ENTITLED TO ACCRUE ACTIVE- DUTY PAY AND ALLOWANCES FROM DAY TO DAY. HOWEVER, THE ASSISTANT SECRETARY'S LETTER OF DECEMBER 15, 1953, STATES THAT " SINCE HIS ILLNESS, LIEUTENANT VOGEL HAS BEEN PHYSICALLY HANDICAPPED AND, AS A RESULT THEREOF, IS APPARENTLY UNABLE TO BE GAINFULLY EMPLOYED" CAUSING "HIM AND HIS FAMILY TO UNDERGO EXTREME PERSONAL HARDSHIP.' IF IT SHOULD DEVELOP THAT THE FACTS ARE SUCH AS TO ENTITLE HIM TO ACTIVE-DUTY PAY AND ALLOWANCES AT THE PRESENT TIME THEN IT IS BELIEVED THAT, WHILE SO ENTITLED, HE PROPERLY COULD BE CONSIDERED A "MEMBER * * * ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS" WITHIN THE MEANING OF SECTION 402 (A) OF THE CAREER COMPENSATION ACT AND THUS ELIGIBLE TO HAVE HIS CASE CONSIDERED UNDER SUCH SECTION. WHILE THIS CONCLUSION IS NOT THE ONLY ONE WHICH MIGHT REASONABLY BE DRAWN FROM THE LANGUAGE OF THE SAID SECTION 402 (A), IT IS BELIEVED THAT IT IS THE ONE MOST CONSONANT WITH THE PURPOSE AND INTENT OF THE STATUTE AND THAT IT IS PERMISSIBLE UNDER THE LANGUAGE OF THE STATUTE WHEN IT IS CONSIDERED THAT ANY PAY OR RETIREMENT RIGHTS LIEUTENANT VOGEL MAY HAVE STEM FROM HIS ACTIVE-DUTY STATUS UNDER ORDERS CONTEMPLATING ACTIVE DUTY FOR MORE THAN THIRTY DAYS AND THAT HE CURRENTLY WOULD BE "ENTITLED TO RECEIVE BASIC PAY IF THE FACTS ARE SUCH AS TO ENTITLE HIM, UNDER PUBLIC LAW 108, TO ACTIVE-DUTY PAY CONTINUOUSLY SINCE THE DATE OF HIS RELEASE FROM ACTIVE DUTY.

FOR REASONS WHICH ARE EVIDENT FROM THE FOREGOING, QUESTIONS (D) (1), (D) (2), AND (D) (3), ARE ANSWERED IN THE NEGATIVE. QUESTIONS (D) (4) AND (D) (5) ARE ANSWERED BY STATING THAT IF, IN ACCORDANCE WITH THE USUAL RETIREMENT PROCEDURES UNDER SECTION 402 OF THE CAREER COMPENSATION ACT AND THE PRINCIPLES STATED ABOVE, IT SHOULD BE AUTHORITATIVELY DETERMINED THAT LIEUTENANT VOGEL MEETS ALL THE REQUIREMENTS FOR ENTITLEMENT TO DISABILITY RETIREMENT PAY, SUCH PAY WOULD BE PAYABLE FROM THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THE DETERMINATION IS MADE. QUESTION (E) IS ANSWERED IN THE AFFIRMATIVE.

IT IS BELIEVED THAT AFTER ASCERTAINMENT AND DETERMINATION OF ALL PERTINENT MATTERS, AS INDICATED ABOVE, IT WILL BE REASONABLY APPARENT WHETHER, UNDER PUBLIC LAW 108 AND THE PRINCIPLES OF THE DECISIONS CITED ABOVE, LIEUTENANT VOGEL IS CURRENTLY ENTITLED TO ACTIVE-DUTY PAY. IF, HOWEVER, THERE IS ANY DOUBT ON THAT SCORE THE MATTER SHOULD BE SUBMITTED FOR FURTHER DECISION. IF SUCH A REQUEST SHOULD BE RECEIVED EVERY EFFORT WILL BE MADE TO GIVE IT EARLY CONSIDERATION.

IT IS REALIZED THAT THE DELAY IN DETERMINING LIEUTENANT VOGEL'S RIGHTS HAS RESULTED LARGELY FROM THE UNCERTAINTY WITH REGARD TO THE EXTENT OF SUCH RIGHTS AND THAT IT IS UNLIKELY SIMILAR DELAY WILL OCCUR IN ANY SIMILAR CASE ARISING HEREAFTER. IT IS, OF COURSE, APPARENT THAT IN THE ADMINISTRATION OF LAWS SUCH AS PUBLIC LAW 108 AND SECTION 402 OF THE CAREER COMPENSATION ACT ANY ADMINISTRATIVE OR OTHER DETERMINATIONS NECESSITATED BY SUCH PROVISIONS SHOULD BE MADE WITH REASONABLE PROMPTNESS.