B-117730, MARCH 29, 1954, 33 COMP. GEN. 411

B-117730: Mar 29, 1954

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ARE CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR PERIODS IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952 AND WHO. SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE ARE ENTITLED. TO PAY AND ALLOWANCES FROM THE DATE THE DISEASE IS CONTRACTED. EVEN THOUGH HOSPITALIZATION IS NOT COMMENCED ON THAT DATE. PROVIDED THE DISABILITY IS SUFFICIENTLY SERIOUS TO REQUIRE HOSPITALIZATION UNDER ORDINARY CIRCUMSTANCES AND THE DELAY IN HOSPITALIZATION RESULTS FROM LACK OF HOSPITAL FACILITIES OR FROM OTHER GOOD CAUSE. ARE CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR ANY PERIOD OF TIME UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952.

B-117730, MARCH 29, 1954, 33 COMP. GEN. 411

PAY AND ALLOWANCES - RETIREMENT AND DEATH GRATUITY BENEFITS - MEMBERS OF RESERVE COMPONENTS OF ARMED FORCES - DISABILITY OR DEATH SUFFERED FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY WITHOUT PAY MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES WHO, WITH THEIR CONSENT, ARE CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR PERIODS IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952 AND WHO, WHILE SO EMPLOYED, SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE ARE ENTITLED, UNDER THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES DURING HOSPITALIZATION. MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR PERIODS IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, WHO WHILE SO EMPLOYED, SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE, GENERALLY MAY BE CONSIDERED ENTITLED, UNDER THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES FROM THE DATE THE DISEASE IS CONTRACTED, AS DETERMINED BY APPROPRIATE AUTHORITY, EVEN THOUGH HOSPITALIZATION IS NOT COMMENCED ON THAT DATE, PROVIDED THE DISABILITY IS SUFFICIENTLY SERIOUS TO REQUIRE HOSPITALIZATION UNDER ORDINARY CIRCUMSTANCES AND THE DELAY IN HOSPITALIZATION RESULTS FROM LACK OF HOSPITAL FACILITIES OR FROM OTHER GOOD CAUSE. MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES WHO, WITH THEIR CONSENT, ARE CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR ANY PERIOD OF TIME UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, AND WHO, WHILE SO EMPLOYED, SUFFER DISABILITY IN LINE OF DUTY FROM INJURY ARE ENTITLED, UNDER THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES DURING HOSPITALIZATION. MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR ANY PERIOD OF TIME UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952 WHO, WHILE SO EMPLOYED, SUFFER DISABILITY IN LINE OF DUTY FROM AN INJURY, GENERALLY MAY BE CONSIDERED ENTITLED, UNDER THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES FROM THE DATE UPON WHICH THE INJURY IS SUSTAINED, EVEN THOUGH HOSPITALIZATION IS NOT COMMENCED ON THAT DATE, PROVIDED THE DISABILITY IS SUFFICIENTLY SERIOUS TO REQUIRE HOSPITALIZATION UNDER ORDINARY CIRCUMSTANCES AND THE DELAY IN HOSPITALIZATION RESULTS FROM UNAVAILABILITY OF HOSPITAL FACILITIES OR FROM OTHER GOOD CAUSE. THE DEATH GRATUITY BENEFITS PROVIDED FOR BENEFICIARIES OF MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES BY THE ACT OF JUNE 20, 1949, IN CASE OF DEATH OF THE MEMBER WHILE ON ACTIVE DUTY, ARE NOT PREDICATED UPON THE EXISTENCE OF A PAY STATUS AT DATE OF DEATH, AND THEREFORE SUCH DEATH GRATUITY IS PAYABLE IN THE CASE OF A MEMBER WHO IS ORDERED TO ACTIVE DUTY WITHOUT PAY FOR A PERIOD IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, AND WHO, WHILE SO EMPLOYED, SUFFERS DEATH IN LINE OF DUTY FROM A DISEASE ON THE DATE THE DISEASE IS CONTRACTED OR THEREAFTER DURING THE PERIOD PAY AND ALLOWANCES ACCRUE UNDER THE 1949 ACT, REGARDLESS OF WHETHER THE MEMBER IS HOSPITALIZED FOR THE DISEASE RESULTING IN DEATH. THE DEATH GRATUITY BENEFITS PROVIDED FOR BENEFICIARIES OF MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES BY THE ACT OF JUNE 20, 1949, IN CASE OF DEATH OF THE MEMBER WHILE ON ACTIVE DUTY, ARE NOT PREDICATED UPON THE EXISTENCE OF A PAY STATUS AT DATE OF DEATH, AND THEREFORE SUCH DEATH GRATUITY IS PAYABLE IN THE CASE OF MEMBER WHO IS ORDERED TO ACTIVE DUTY WITHOUT PAY FOR ANY PERIOD OF TIME UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952 AND WHO, WHILE SO EMPLOYED, SUFFERS DEATH IN LINE OF DUTY FROM AN INJURY ON THE DATE THE INJURY OCCURRED OR THEREAFTER DURING THE PERIOD PAY AND ALLOWANCES ACCRUE UNDER THE 1949 ACT, REGARDLESS OF WHETHER THE MEMBER IS HOSPITALIZED FOR THE DISEASE RESULTING IN DEATH. MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES WHO, WITH THEIR CONSENT, ARE CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, AND WHO, WHILE SO EMPLOYED, SUFFER DISABILITY IN LINE OF DUTY FROM INJURY, ARE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY UNDER SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949 ONLY IN THOSE CASES WHERE THE PERIOD OF ACTIVE DUTY IS FOR THIRTY DAYS OR LESS, IF OTHERWISE QUALIFIED. MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES WHO, WITH THEIR CONSENT, ARE CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR PERIODS IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952 AND WHO, WHILE SO EMPLOYED, SUFFER DISABILITY IN LINE OF DUTY FROM INJURY ARE TO BE REGARDED AS ENTITLED TO DISABILITY RETIREMENT PAY UNDER SECTION 402 (A) OR 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS THE CASE MAY BE, IF OTHERWISE QUALIFIED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, MARCH 29, 1954:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 13, 1953, AND ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION ON CERTAIN QUESTIONS INVOLVING PAY AND ALLOWANCE, RETIREMENT AND DEATH GRATUITY BENEFITS WHICH MAY ACCRUE TO MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES (AND THEIR BENEFICIARIES) INCIDENT TO DISABILITY OR DEATH SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY WITHOUT PAY UNDER AUTHORITY OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492. THE QUESTIONS ARE PARAPHRASED AS FOLLOWS:

QUESTION 1

A. ARE SUCH RESERVISTS WHO SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE WHILE PERFORMING ACTIVE DUTY WITHOUT PAY WITH THEIR CONSENT UNDER ORDERS PROVIDING FOR DUTY IN EXCESS OF THIRTY DAYS ENTITLED TO PAY AND ALLOWANCES DURING HOSPITALIZATION?

B. IF SUCH ENTITLEMENT EXISTS, DOES IT COMMENCE ON THE DATE THE RESERVIST ENTERS ON ACTIVE DUTY, OR THE DATE HE IS HOSPITALIZED?

QUESTION 2

A. ARE SUCH RESERVISTS WHO SUFFER DISABILITY IN LINE OF DUTY FROM INJURY WHILE PERFORMING ACTIVE DUTY WITHOUT PAY WITH THEIR CONSENT UNDER ORDERS COVERING ANY PERIOD OF TIME ENTITLED TO PAY AND ALLOWANCES DURING HOSPITALIZATION?

B. IF THEY ARE SO ENTITLED, DOES ENTITLEMENT COMMENCE ON (1) THE DATE OF ENTRY ON ACTIVE DUTY, (2) THE DATE OF INJURY, OR (3) THE DATE THE RESERVIST IS HOSPITALIZED?

QUESTION 3

A. IF SUCH RESERVISTS WHO SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE WHILE PERFORMING ACTIVE DUTY WITHOUT PAY WITH THEIR CONSENT UNDER ORDERS PROVIDING FOR DUTY IN EXCESS OF THIRTY DAYS ARE NOT ENTITLED TO PAY AND ALLOWANCES DURING HOSPITALIZATION, ARE THEIR BENEFICIARIES ENTITLED TO THE SIX MONTHS' DEATH GRATUITY IF THE MEMBERS DIE WHILE ON ACTIVE DUTY OR WHILE HOSPITALIZED AFTER THE PERIOD FOR WHICH ORDERED TO ACTIVE DUTY?

B. IF THE BENEFICIARIES ARE ENTITLED TO THE DEATH GRATUITY UNDER SUCH CIRCUMSTANCES, WOULD THE FACT THAT DEATH OCCURRED WITHOUT HOSPITALIZATION PRECLUDE ENTITLEMENT?

QUESTION 4

A. IF SUCH RESERVISTS WHO SUFFER DISABILITY IN LINE OF DUTY FROM INJURY WHILE PERFORMING ACTIVE DUTY WITHOUT PAY WITH THEIR CONSENT UNDER ORDERS COVERING ANY PERIOD OF TIME ARE NOT ENTITLED TO PAY AND ALLOWANCES DURING HOSPITALIZATION, ARE THEIR BENEFICIARIES ENTITLED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY IF THE MEMBERS DIE WHILE ON ACTIVE DUTY OR WHILE HOSPITALIZED AFTER THE PERIOD FOR WHICH ORDERED TO ACTIVE DUTY?

B. IF SO, WOULD THE FACT THAT DEATH OCCURRED FROM INJURY WITHOUT HOSPITALIZATION PRECLUDE ENTITLEMENT?

QUESTION 5

ARE SUCH RESERVISTS WHO SUFFER DISABILITY IN LINE OF DUTY FROM INJURY WHILE PERFORMING ACTIVE DUTY WITHOUT PAY WITH THEIR CONSENT UNDER ORDERS COVERING ANY PERIOD OF TIME ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF SECTIONS 402 (C) AND 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, IF OTHERWISE QUALIFIED?

THE SAID SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952 PROVIDES THAT:

SUBJECT TO THE PROVISIONS OF THIS ACT, MEMBERS OF THE RESERVE COMPONENTS MAY BE ORDERED TO ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR OTHER DUTY WITH PAY AND ALLOWANCES AS PROVIDED BY LAW, OR, WITH THEIR CONSENT, WITHOUT PAY. DUTY WITHOUT PAY SHALL BE COUNTED FOR ALL PURPOSES THE SAME AS LIKE DUTY WITH PAY. ( ITALICS SUPPLIED.)

SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, FURTHER AMENDED SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED, 34 U.S.C. 855C-1, TO PROVIDE 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: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE BUREAU OF EMPLOYEES' COMPENSATION, FEDERAL SECURITY AGENCY, UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181) OR RETIRED PAY UNDER THE PROVISIONS OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.

SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, WAS FURTHER AMENDED BY SECTION 2 OF THE SAID ACT OF JUNE 20, 1949, 63 STAT. 202, TO MAKE SUBSTANTIALLY IDENTICAL PROVISIONS FOR OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY AND AIR FORCE OF THE UNITED STATES, OTHER THAN OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY AND REGULAR AIR FORCE, AND SECTION 3 OF THE SAID 1949 ACT, 63 STAT. 202, CONTAINS SIMILAR PROVISIONS COVERING OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY AND AIR NATIONAL GUARDS OF THE UNITED STATES AND THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES AND THE DISTRICT OF COLUMBIA ENGAGED IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SECTIONS 5, 81, 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, 39 STAT. 167, 203, 206, 207, AS AMENDED.

IN SENATE REPORT NO. 95, 81ST CONGRESS, ST SESSION, MARCH 5, 1949, TO ACCOMPANY S. 213, WHICH BECAME THE ACT OF JUNE 20, 1949, IT IS STATED THAT " THE EFFECT OF THIS BILL, AS AMENDED, WOULD BE TO GIVE A RESERVIST OR NATIONAL GUARDSMAN SERVING UNDER COMPETENT ORDERS, WITH OR WITHOUT PAY, THE SAME COVERAGE FOR INJURIES RECEIVED WHILE ON SHORT PERIODS OF TRAINING OR DUTY THAT HE WOULD HAVE IF SERVING FOR A PERIOD IN EXCESS OF 30 DAYS.' HOWEVER, THERE WAS CONTINUED THE REQUIREMENT IN THE LAW THERETOFORE EXISTING, AS A CONDITION PRECEDENT TO ACCRUAL OF BENEFITS, THAT THE MEMBER BE CALLED OR ORDERED FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS IN CASE OF DISABILITY OR DEATH RESULTING FROM DISEASE.

THUS, THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 20, 1949, SUPPORTS THE VIEW, AND THE LANGUAGE OF THE ACT IS CONSISTENT WITH THE VIEW, THAT IT WAS NOT THE LEGISLATIVE INTENT TO MAKE ANY DISTINCTION BETWEEN DUTY WITH PAY AND DUTY WITHOUT PAY AND THAT IT WAS INTENDED THAT THE ACT SHOULD COVER PERIODS OF SERVICE WITHOUT PAY IF PERFORMED IN RESPONSE TO COMPETENT ORDERS. MOREOVER, THE LAST SENTENCE OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, QUOTED ABOVE, GIVES A CLEAR INDICATION THAT THE CONGRESS INTENDED THAT BENEFITS SUCH AS THOSE AUTHORIZED BY THE ACT OF JUNE 20, 1949, SHOULD ACCRUE, SUBJECT TO SPECIFIED CONDITIONS, TO RESERVISTS SERVING ON ACTIVE DUTY, TRAINING DUTY, OR INACTIVE DUTY TRAINING, WITH OR WITHOUT PAY, UNDER COMPETENT ORDERS. HENCE, IT IS CONCLUDED THAT BENEFITS UNDER THE SAID ACT MAY ACCRUE INCIDENT TO DEATH OR DISABILITY SUFFERED WHILE THE RESERVIST IS EMPLOYED ON ACTIVE DUTY WITHOUT PAY. COMPARE 29 COMP. GEN. 397; AND 31 COMP. GEN. 44. QUESTIONS A AND 2A ARE ANSWERED IN THE AFFIRMATIVE.

WITH REFERENCE TO QUESTIONS B AND 2B, THIS OFFICE HAS HELD, IN CASES INVOLVING MEMBERS OF THE MARINE CORPS RESERVE AND NAVAL RESERVE WHO WERE INJURED IN LINE OF DUTY WHILE ON TRAINING DUTY, THAT SUCH MEMBERS ARE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES (1) WHILE HOSPITALIZED BECAUSE OF DISABILITY RESULTING FROM THEIR INJURY; (2) DURING PERIODS AFTER RELEASE FROM HOSPITAL IF IT BE DETERMINED THAT THEY CONTINUE TO BE DISABLED FOR NORMAL PURSUITS BY THE DISABILITY FOR WHICH ORIGINALLY HOSPITALIZED; AND (3) WHILE AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED. SEE DECISIONS OF JUNE 19, 1950, 29 COMP. GEN. 509, AND NOVEMBER 15, 1950, 30 COMP. GEN. 185. AND, IN DECISION OF FEBRUARY 8, 1954, B-116906, 33 COMP. GEN. 339, IT WAS IMPLIED THAT, IN A CASE INVOLVING DISABILITY FROM DISEASE, THE PAY AND ALLOWANCE BENEFITS OF THE ACT OF JUNE 20, 1949, ARE TO BE REGARDED AS COMMENCING WITH THE DAY DETERMINED BY APPROPRIATE AUTHORITY TO BE THE DATE THE DISEASE IS CONTRACTED, IF THAT SHOULD BE NECESSARY TO MAINTENANCE OF AN UNINTERRUPTED PAY STATUS THROUGH AND BEYOND THE PERIOD OF DUTY CONTEMPLATED IN THE ORDERS, EVEN THOUGH THE MEMBER CONCERNED WAS NOT HOSPITALIZED FOR SUCH DISEASE UNTIL SOME DAYS THEREAFTER. THAT VIEW IS EQUALLY APPLICABLE IN THE CASE OF INJURY. WHILE THE MEMBERS CONCERNED IN THE CASES CONSIDERED IN THE CITED DECISIONS WERE ON TRAINING DUTY WITH PAY, NO BASIS IS PERCEIVED FOR ANY DIFFERENT CONCLUSION IN CASES INVOLVING ACTIVE DUTY WITHOUT PAY. IN SUCH CONNECTION, IT IS THE VIEW OF THIS OFFICE THAT THE LEGISLATIVE REPORT QUOTED IN THE DECISION OF JUNE 19, 1950 (IN SUPPORT OF THE CONCLUSION THAT THE MEMBER THERE CONCERNED WAS ENTITLED TO BE "KEPT" IN A PAY STATUS UNTIL HIS CASE WAS FINALLY DISPOSED OF), WAS NOT INTENDED AS IMPLYING THAT MEMBERS OF THE RESERVE COMPONENTS MUST BE IN A DUTY STATUS WITH PAY AND ALLOWANCES WHEN THE DISABILITY IS INCURRED TO BE ENTITLED TO THE BENEFITS OF THE STATUTE. HOWEVER, IN A CASE WHERE THE MEMBER WAS IN A DUTY STATUS WITH PAY WHEN THE DISABILITY WAS INCURRED, IT WAS HELD THAT THE PAY AND ALLOWANCE BENEFITS PROVIDED BY THE ACT OF JUNE 20, 1949, DID NOT BEGIN TO ACCRUE UNTIL HE NO LONGER WAS ENTITLED TO PAY AND ALLOWANCES UNDER HIS ORDERS. 31 COMP. GEN. 456.

UNDER THE PRINCIPLES OF THE DECISIONS CITED ABOVE, MEMBERS OF THE RESERVE COMPONENTS CALLED OR ORDERED TO ACTIVE DUTY WITHOUT PAY FOR PERIODS IN EXCESS OF THIRTY DAYS UNDER COMPETENT ORDERS WHO, WHILE EMPLOYED ON SUCH DUTY, SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE GENERALLY MAY BE CONSIDERED ENTITLED, UNDER THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES FROM THE DATE THE DISEASE IS CONTRACTED, AS DETERMINED BY APPROPRIATE AUTHORITY, EVEN THOUGH HOSPITALIZATION IS NOT COMMENCED ON THAT DATE PROVIDED THE DISABILITY IS SUFFICIENTLY SERIOUS TO REQUIRE HOSPITALIZATION UNDER ORDINARY CIRCUMSTANCES AND THE DELAY IN HOSPITALIZATION RESULTS FROM LACK OF HOSPITAL FACILITIES OR FROM OTHER GOOD CAUSE. LIKEWISE SUCH MEMBERS WHO, WHILE PERFORMING ACTIVE DUTY WITHOUT PAY FOR ANY PERIOD OF TIME, SUFFER DISABILITY FROM AN INJURY GENERALLY MAY BE CONSIDERED ENTITLED, UNDER THE STATUTE, TO PAY AND ALLOWANCES FROM THE DATE UPON WHICH THE INJURY IS SUSTAINED EVEN THOUGH HOSPITALIZATION IS NOT COMMENCED ON THAT DATE PROVIDED THE DISABILITY IS SUFFICIENTLY SERIOUS TO REQUIRE HOSPITALIZATION UNDER ORDINARY CIRCUMSTANCES AND THE DELAY IN HOSPITALIZATION RESULTS FROM UNAVAILABILITY OF HOSPITAL FACILITIES OR FROM OTHER GOOD CAUSE. IN EITHER CASE PAY AND ALLOWANCES CONTINUE TO ACCRUE TO THE MEMBERS UNTIL THEIR CASES ARE FINALLY DISPOSED OF, INCLUDING PERIODS WHILE HOSPITALIZED; AFTER RELEASE FROM HOSPITAL IF IT BE DETERMINED THAT THE MEMBERS CONTINUE TO BE DISABLED FOR NORMAL PURSUITS BY THE DISABILITY FOR WHICH HOSPITALIZED; AND WHILE AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. QUESTIONS B AND 2B ARE ANSWERED ACCORDINGLY.

RESPECTING QUESTIONS 3 AND 4, IT HAS BEEN HELD THAT THE SIX MONTHS' DEATH GRATUITY, AUTHORIZED TO BE PAID UPON THE DEATH OF A MEMBER OF THE ARMED FORCES AT THE RATE OF PAY RECEIVED AT DEATH, IS NOT PAYABLE IN THE CASE OF MEMBERS WHO DIE WHILE PAY IS NOT ACCRUING TO THEIR CREDIT. 27 COMP. GEN. 269; 29 COMP. GEN. 294; 31 COMP. GEN. 645. HOWEVER, SINCE THE MEMBERS CONTEMPLATED BY QUESTIONS 3 AND 4 GENERALLY WOULD BE ENTITLED TO PAY AT DATE OF DEATH (SEE ANSWERS TO QUESTIONS 1 AND 2), THE RULE JUST STATED GENERALLY WOULD NOT PRECLUDE PAYMENT OF THE GRATUITY TO THEIR BENEFICIARIES EVEN THOUGH SUCH MEMBERS MAY HAVE BEEN ORDERED TO ACTIVE DUTY WITHOUT PAY. NEITHER WOULD SUCH RULE PRECLUDE PAYMENT OF THE GRATUITY IN CASES OF DEATH WITHOUT HOSPITALIZATION WHERE DEATH OCCURS SUBSEQUENT TO THE DAY ON WHICH THE DISEASE WAS CONTRACTED OR THE DAY ON WHICH THE INJURY WAS SUSTAINED, THE MEMBERS CONCERNED THEN BEING IN A PAY STATUS (SEE ANSWERS TO QUESTIONS B AND 2B). AND EVEN IN CASES WHERE DEATH OCCURS ON THE DATE OF THE INJURY OR THE DATE THE DISEASE IS CONTRACTED THE SAID RULE SHOULD NOT BE INVOKED TO DENY PAYMENT OF THE GRATUITY SINCE THE BENEFITS PROVIDED BY THE ACT OF JUNE 20, 1949, IN CASE OF DEATH, ARE NOT PREDICATED UPON THE EXISTENCE OF A PAY STATUS AT DATE OF DEATH. HENCE, A CONCLUSION THAT PAYMENT OF THE GRATUITY WOULD NOT BE AUTHORIZED WHERE DEATH OCCURS ON THE DATE OF THE INJURY OR THE DATE THE DISEASE IS CONTRACTED WOULD TEND TO NULLIFY TO SOME EXTENT THE PROVISIONS OF THE STATUTE. FOR SUCH REASONS AND IN VIEW OF THE LAST SENTENCE OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, ABOVE QUOTED, IT IS CONCLUDED, IN ANSWER TO QUESTIONS 3 AND 4, THAT, IF OTHERWISE PROPER, THE GRATUITY IS PAYABLE WHERE DEATH OCCURS ON THE DATE OF THE INJURY OR THE DATE THE DISEASE IS CONTRACTED OR THEREAFTER DURING THE PERIOD WHEN PAY AND ALLOWANCES CONTINUE TO ACCRUE UNDER THE ACT OF JUNE 20, 1949, REGARDLESS OF WHETHER THE MEMBER CONCERNED IS HOSPITALIZED FOR THE DISEASE OR INJURY RESULTING IN HIS DEATH.

QUESTION 5 INVOLVES THE APPLICATION OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, WHICH PROVIDES, IN PERTINENT PART, 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 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 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 * * * .

THE SAID SUBSECTION 402 (C) COVERS MEMBERS OF THE UNIFORMED SERVICES OTHERWISE WITHIN ITS PROVISIONS IRRESPECTIVE OF WHETHER THEY ARE IN A PAY STATUS AT THE TIME THEY SUFFER PHYSICAL DISABILITY FROM INJURY. DECISION OF MARCH 5, 1952, 31 COMP. GEN. 445, 449 (ANSWER TO QUESTION 5), IT WAS HELD THAT SUBSECTION 402 (C) COVERS THOSE MEMBERS OF THE UNIFORMED SERVICES, OTHER THAN MEMBERS OF A REGULAR COMPONENT, WHO ARE DISABLED FROM INJURY WHILE PERFORMING ACTIVE DUTY FOR PERIODS OF 30 DAYS OR LESS, TRAINING DUTY, OR INACTIVE DUTY TRAINING PROVIDED THEY OTHERWISE COME WITHIN ITS PROVISIONS. IT FOLLOWS THAT MEMBERS OF THE RESERVE COMPONENTS WHO SUFFER DISABILITY IN LINE OF DUTY FROM INJURY WHILE PERFORMING ACTIVE DUTY WITHOUT PAY MAY BE ENTITLED TO DISABILITY RETIREMENT UNDER THE SAID SUBSECTION (C) ONLY IN THOSE CASES WHERE THE PERIOD OF ACTIVE DUTY IS FOR 30 DAYS OR LESS. HOWEVER, SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, QUOTED ABOVE, PROVIDES EXPRESSLY THAT " DUTY WITHOUT PAY SHALL BE COUNTED FOR ALL PURPOSES THE SAME AS LIKE DUTY WITH PAY," AND THE LEGISLATIVE HISTORY OF THAT SECTION SHOWS THAT SUCH PROVISION WAS INCLUDED THEREIN,"IN ORDER TO AVOID ADMINISTRATIVE INTERPRETATIONS THAT DUTIES PERFORMED WITHOUT PAY DO NOT EQUALLY COUNT FOR RETIREMENT OR OTHER BENEFITS.' SEE THE EXPLANATION OF SUCH SECTION, THEN NUMBERED 235, AT PAGE 30 OF SENATE REPORT NO. 1795, JUNE 19, 1952, TO ACCOMPANY H.R. 5426. THUS IT SEEMS PLAIN THAT ONE OF THE PURPOSES OF SUCH PROVISION IS TO SAVE TO INDIVIDUALS SERVING IN A NONPAY STATUS UNDER AUTHORITY OF SECTION 240 THE RETIREMENT RIGHTS WHICH WOULD HAVE ACCRUED TO THEM IF THEY HAD BEEN ENTITLED TO RECEIVE BASIC PAY AT THE TIME OF INCURRENCE OF PHYSICAL DISABILITY. ACCORDINGLY, NOTWITHSTANDING THEIR NONPAY STATUS, MEMBERS OF THE UNIFORMED SERVICES ORDERED TO EXTENDED ACTIVE DUTY WITHOUT PAY FOR PERIODS IN EXCESS OF 30 DAYS PURSUANT TO THE SAID SECTION 240 ARE TO BE REGARDED AS HAVING BEEN "ENTITLED TO RECEIVE BASIC PAY" DURING THEIR ACTIVE-DUTY PERIOD FOR THE PURPOSES OF SECTION 402 OF THE CAREER COMPENSATION ACT. THEREFORE, IF THE MEMBERS CONCERNED ARE ENTITLED TO PAY AND ALLOWANCES UNDER THE ACT OF JUNE 20, 1949, AT THE TIME THE DISABILITY DETERMINATION IS MADE, THEY ARE TO BE REGARDED AS ENTITLED TO DISABILITY RETIREMENT PAY UNDER SUBSECTIONS 402 (A) OR 402 (B) OF THE CAREER COMPENSATION ACT, 63 STAT. 816, AS THE CASE MAY BE, IF OTHERWISE QUALIFIED. SEE B-116906, FEBRUARY 8, 1954, 33 COMP. GEN. 339. QUESTION 5 IS ANSWERED ACCORDINGLY.