B-126240, APR. 4, 1956

B-126240: Apr 4, 1956

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YOU WERE DIRECTED TO REPORT. YOU SUFFERED DISABILITY IN THE LINE OF DUTY DUE TO INJURY SUSTAINED WHILE EMPLOYED ON SUCH ACTIVE DUTY TRAINING AND YOU WERE HOSPITALIZED AT THE U.S. YOU WERE RELEASED FROM THAT HOSPITAL ON FEBRUARY 1. YOUR 14 DAYS' TRAINING WAS COMPLETED ON FEBRUARY 2. YOU WERE RELEASED FROM ACTIVE DUTY ON THAT DAY. YOUR CLAIM WAS DISALLOWED BECAUSE DURING THE PERIOD NOVEMBER 1. YOU WERE NOT SERVING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN 90 DAYS' DURATION. IS DEFINED IN SUBSECTION 101 (B) OF THE ACT AS MEANING . OTHER THAN ACTIVE DUTY FOR TRAINING" AND THE TERM "ACTIVE DUTY FOR TRAINING" IS DEFINED IN SUBSECTION 101 (C) AS MEANING . WAS FURTHER AMENDED BY SECTION 1 OF THE ACT OF JUNE 20.

B-126240, APR. 4, 1956

TO MR. CLAIR S. CHRISTIAN:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE UNITED STATES NAVY FINANCE CENTER, CLEVELAND, OHIO, YOUR LETTER DATED OCTOBER 25, 1955, REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 21, 1954, WHICH DISALLOWED YOUR CLAIM FOR $100 UNIFORM ALLOWANCE BELIEVED TO BE DUE YOU UNDER SUBSECTION 243 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 493, INCIDENT TO YOUR SERVICE AS COMMANDER, UNITED STATES NAVAL RESERVE.

BY ORDERS DATED OCTOBER 13, 1950, YOU WERE DIRECTED TO REPORT, IF FOUND PHYSICALLY QUALIFIED, FOR ASSIGNMENT TO TRAINING DUTY FOR A PERIOD OF 14 DAYS. YOU REPORTED FOR SUCH DUTY ON NOVEMBER 1, 1950. ON NOVEMBER 11, 1950, YOU SUFFERED DISABILITY IN THE LINE OF DUTY DUE TO INJURY SUSTAINED WHILE EMPLOYED ON SUCH ACTIVE DUTY TRAINING AND YOU WERE HOSPITALIZED AT THE U.S. NAVAL HOSPITAL, GOCO SOLO, CANAL ZONE, ON NOVEMBER 13, 1950. YOU WERE RELEASED FROM THAT HOSPITAL ON FEBRUARY 1, 1951, AND RETURNED TO TRAINING DUTY THE SAME DAY. YOUR 14 DAYS' TRAINING WAS COMPLETED ON FEBRUARY 2, 1951, AND YOU WERE RELEASED FROM ACTIVE DUTY ON THAT DAY. YOUR CLAIM WAS DISALLOWED BECAUSE DURING THE PERIOD NOVEMBER 1, 1950, TO FEBRUARY 2, 1951, YOU WERE NOT SERVING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN 90 DAYS' DURATION.

THE CITED SUBSECTION 243 (C) PROVIDES THAT ON AND AFTER JUNE 25, 1950, A RESERVE OFFICER SHALL, UNDER THE LIMITATIONS SPECIFIED, BE ENTITLED FOR EACH TIME OF ENTRY OR REENTRY "ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN NINETY DAYS' DURATION" TO A FURTHER SUM OF $100 FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY. THE TERM "ACTIVE DUTY" AS USED IN THE ARMED FORCES RESERVE ACT OF 1952, IS DEFINED IN SUBSECTION 101 (B) OF THE ACT AS MEANING ,FULL TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, OTHER THAN ACTIVE DUTY FOR TRAINING" AND THE TERM "ACTIVE DUTY FOR TRAINING" IS DEFINED IN SUBSECTION 101 (C) AS MEANING ,FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR TRAINING PURPOSES.'

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, 34 U.S.C. 855C-1, WAS FURTHER AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"SEC. 4. ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO---

"/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 * * *.'

SINCE YOU WERE PERFORMING ACTIVE DUTY FOR TRAINING ON NOVEMBER 11, 1950, WHEN YOU SUFFERED DISABILITY IN LINE OF DUTY FROM INJURY, AS A RESULT OF WHICH YOU WERE HOSPITALIZED FOR THE PERIOD NOVEMBER 13,1950, TO FEBRUARY 1, 1951, YOU WERE, UNDER THE QUOTED PROVISIONS OF THE 1949 ACT, ENTITLED TO THE PAY, ALLOWANCES, AND OTHER BENEFITS MENTIONED IN THE QUOTED STATUTORY PROVISION WHICH ARE PROVIDED BY LAW AND REGULATIONS FOR AN OFFICER OF THE REGULAR NAVY OR CORRESPONDING GRADE AND LENGTH OF SERVICE DURING SUCH PERIOD. IT HAS BEEN HELD THAT THE 1949 ACT DOES NOT AUTHORIZE ANY BENEFIT OR PAYMENT OTHER THAN THOSE SPECIFICALLY NAMED IN THE STATUTE. 30 COMP. GEN. 338. THE ADDITIONAL UNIFORM ALLOWANCE AUTHORIZED BY SUBSECTION 243 (C) OF THE 1952 ACT IS NOT AN ALLOWANCE TO WHICH AN OFFICER OF THE REGULAR NAVY IS ENTITLED AND, HENCE, YOU ARE NOT ENTITLED TO SUCH ALLOWANCE BY REASON OF THE PROVISIONS OF THE 1949 ACT GRANTING TO YOU THE PAY AND ALLOWANCES THAT AN OFFICER OF THE REGULAR NAVY WOULD HAVE RECEIVED DURING THE PERIOD OF HOSPITALIZATION. MOREOVER, THE 1949 ACT DOES NOT PROVIDE THAT A RESERVIST WHO IS CONTINUED IN A PAY STATUS UNDER THE PROVISIONS OF THAT ACT WHILE HOSPITALIZED SHALL BE CONSIDERED TO BE IN AN ACTIVE DUTY STATUS WHILE IN RECEIPT OF SUCH BENEFITS. RATHER, THE PROVISION OF SECTION 1 THAT A MEMBER OF THE NAVAL RESERVE "SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD," APPEARS TO RELATE TO THE PERIOD OF DUTY DURING WHICH INJURY IS INCURRED. THEREFORE, SINCE YOUR ORDERS PROVIDED FOR ONLY 14 DAYS OF ACTIVE TRAINING DUTY, IT MAY NOT BE CONCLUDED THAT THE 1949 ACT OPERATED TO CONTINUE YOU IN AN ACTIVE TRAINING DUTY STATUS FOR THE ENTIRE PERIOD FROM NOVEMBER 1, 1950, TO FEBRUARY 2, 1951, EVEN THOUGH YOU WERE ENTITLED TO ACTIVE DUTY PAY FOR SUCH PERIOD. ON THE CONTRARY, IT APPEARS THAT YOU SERVED ON ACTIVE DUTY FOR TRAINING FOR A PERIOD OF ONLY 14 DAYS UNDER THE ORDERS OF OCTOBER 13, 1950, WITHIN THE MEANING OF THE 1952 ..END :