B-127842, AUGUST 6, 1956, 36 COMP. GEN. 87

B-127842: Aug 6, 1956

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MILITARY PERSONNEL - RESERVIST INJURED WHILE ON TRAINING DUTY - PAY AND ALLOWANCES PENDING RETIREMENT AN INJURED NAVAL RESERVIST WHOSE COMPENSATION AWARD BY THE BUREAU OF EMPLOYEES COMPENSATION WAS DISCONTINUED WHEN HE WAS FOUND ABLE TO RESUME CIVILIAN OCCUPATION WITHOUT LOSS OF EARNING CAPACITY. IS NOT THEREAFTER ENTITLED TO MILITARY PAY AND ALLOWANCES WHILE AWAITING ACTION ON DISABILITY RETIREMENT. 29 COMP. 1956: REFERENCE IS MADE TO YOUR LETTER OF APRIL 13. IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 15. IF IT IS HELD THAT HE IS NOT ENTITLED TO SUCH ACTIVE-DUTY PAY AND ALLOWANCES. DECISION IS REQUESTED WHETHER HE IS ENTITLED TO RETIRED PAY ON AND AFTER FEBRUARY 1.

B-127842, AUGUST 6, 1956, 36 COMP. GEN. 87

MILITARY PERSONNEL - RESERVIST INJURED WHILE ON TRAINING DUTY - PAY AND ALLOWANCES PENDING RETIREMENT AN INJURED NAVAL RESERVIST WHOSE COMPENSATION AWARD BY THE BUREAU OF EMPLOYEES COMPENSATION WAS DISCONTINUED WHEN HE WAS FOUND ABLE TO RESUME CIVILIAN OCCUPATION WITHOUT LOSS OF EARNING CAPACITY, BY REASON OF AN INJURY RECEIVED DURING RESERVE TRAINING, IS NOT THEREAFTER ENTITLED TO MILITARY PAY AND ALLOWANCES WHILE AWAITING ACTION ON DISABILITY RETIREMENT. 29 COMP. GEN. 509, MODIFIED.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, AUGUST 6, 1956:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1956, WITH ENCLOSURES, REQUESTING DECISION WHETHER LIEUTENANT COMMANDER GEORGE E. DEMETZ, UNITED STATES NAVAL RESERVE ( RETIRED), IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 15, 1953, TO JANUARY 31, 1955, LESS COMPENSATION PAID HIM BY THE BUREAU OF EMPLOYEES' COMPENSATION, DEPARTMENT OF LABOR, FOR THE PERIOD AUGUST 15, 1953 TO DECEMBER 3, 1953. IF IT IS HELD THAT HE IS NOT ENTITLED TO SUCH ACTIVE-DUTY PAY AND ALLOWANCES, DECISION IS REQUESTED WHETHER HE IS ENTITLED TO RETIRED PAY ON AND AFTER FEBRUARY 1, 1955.

IT APPEARS THAT BY ORDERS DATED MAY 3, 1953, LIEUTENANT COMMANDER GEORGE E. DEMETZ, USNR, WAS ORDERED TO ACTIVE DUTY FOR TRAINING IN A FLYING STATUS, WITH PAY, FOR A PERIOD OF 14 DAYS; THAT HE REPORTED FOR SUCH DUTY ON MAY 11, 1953; THAT HE WAS INJURED IN AN AVIATION ACCIDENT ON MAY 17, 953; AND THAT HE WAS DISCHARGED FROM HOSPITAL TREATMENT ON AUGUST 14, 1953, AFTER BEING FOUND FIT FOR DUTY.

IT FURTHER APPEARS THAT COMMANDER DEMETZ WAS CREDITED WITH ACTIVE DUTY PAY AND ALLOWANCES FROM MAY 11 TO AUGUST 14, 1953. ALSO, HE WAS PAID COMPENSATION BY THE BUREAU OF EMPLOYEES' COMPENSATION FOR THE PERIOD AUGUST 15 TO DECEMBER 3, 1953. SUCH COMPENSATION WAS DISCONTINUED EFFECTIVE AS OF THE LATTER DATE ON THE BASIS THAT ON DECEMBER 4, 1953, THE OFFICER WAS ABLE TO RESUME FULL DUTY, HAVING SUFFERED NO LOSS OF WAGE- EARNING CAPACITY BY REASON OF HIS INJURY ON MAY 17, 1953.

ON JUNE 30, 1954, COMMANDER DEMETZ WAS EXAMINED AND FOUND NOT PHYSICALLY QUALIFIED FOR FLYING IN CONTROL OF AIRCRAFT. ON JULY 27, 1954, HE APPLIED FOR RETIREMENT UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C. HE WAS PLACED ON THE RETIRED LIST ON FEBRUARY 1, 1955, SUCH ACTION BEING STATED TO BE UNDER THE PROVISIONS OF THAT ACT AND OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 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---

(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 PROVISION OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.

THE ABOVE PROVISIONS WERE MADE EFFECTIVE AS OF AUGUST 14, 1945, BY SECTION 4 OF THE ACT, 63 STAT. 202, 32 U.S.C. 160A.

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.

IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, THERE WAS CONSIDERED THE CASE OF AN OFFICER OF THE MARINE CORPS RESERVE WHO WAS INJURED IN AN AVIATION ACCIDENT ON AUGUST 17, 1947, WHILE SERVING UNDER ORDERS TO 15 DAYS' ACTIVE DUTY FOR TRAINING. THERE WAS, ON AUGUST 17, 1947, NO STATUTORY AUTHORITY FOR THE CONTINUANCE OF THE OFFICER'S ACTIVE-DUTY PAY AND ALLOWANCES BEYOND THE TERMINATION DATE OF HIS TRAINING-DUTY ORDERS, AND NO AUTHORITY FOR GRANTING HIM DISABILITY RETIREMENT PAY, THE RIGHT TO SUCH BENEFITS FIRST ARISING UNDER SECTION 1 OF THE ACT OF JUNE 20, 1949. AFTER ENACTMENT OF THAT STATUTE THE OFFICER MADE TIMELY APPLICATION FOR RETIREMENT. HE HAD BEEN AN AIRPLANE PILOT IN CIVILIAN LIFE AND HAD LOST HIS RIGHT FOREARM AS A RESULT OF THE AVIATION ACCIDENT. HENCE, IT WAS REASONABLY OBVIOUS THAT HE WAS DISABLED FOR THE PERFORMANCE OF THE DUTIES OF HIS CIVILIAN OCCUPATION. IT WAS HELD IN THE DECISION OF JUNE 19, 1950, THAT, THE OFFICER'S INJURY HAVING BEEN SUSTAINED SUBSEQUENT TO AUGUST 14, 1945, HE WAS ENTITLED, UNDER THE RETROACTIVE PROVISIONS OF THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES WHILE HOSPITALIZED, AND FROM THAT DATE HE WAS AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS. IT WAS SAID IN THE DECISION THAT "A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON TRAINING DUTY FOR ANY PERIOD OF TIME IS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE HE IS AWAITING ACTION ON HIS DISABILITY RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED.'

THE CONCLUSION IN THAT DECISION THAT AN INJURED RESERVE MEMBER IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES WHILE AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS WAS GROUNDED ON THE PROVISIONS OF THE ACT OF JUNE 20, 1949, ASSIMILATING THE DEATH AND DISABILITY BENEFITS OF RESERVISTS TO THOSE OF REGULAR MEMBERS. THE LATTER INDIVIDUALS, WHO SUFFER DISABILITY IN LINE OF DUTY, CONTINUE IN RECEIPT OF PAY AND ALLOWANCES WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED. HOWEVER, MEMBERS OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS HAVE NOT BEEN CONSIDERED AS HAVING THE RIGHT OR OPPORTUNITY TO PURSUE FULL-TIME CIVILIAN OCCUPATIONS WHILE AWAITING RETIREMENT. THE LAW INTENDS PARITY OF MONETARY BENEFITS, AS NEARLY AS POSSIBLE, BETWEEN THE RESERVIST AND THE REGULAR; IT DOES NOT INTEND THAT THE FORMER MAY BE ABLE TO RECEIVE INCOME FROM TWO OCCUPATIONS, MILITARY OR NAVAL, AND CIVILIAN, WHILE THE LATTER, UNDER COMPARABLE CIRCUMSTANCES, IS RESTRICTED TO HIS MILITARY OR NAVAL PAY. HENCE, THE LAW DOES NOT CONTEMPLATE THE GRANTING OF ACTIVE-DUTY PAY AND ALLOWANCES, WHILE AWAITING ACTION ON RETIREMENT PROCEEDINGS, IF THE MEMBER IS NOT DISABLED FOR THE PURSUIT OF HIS CIVILIAN OCCUPATION. COMPARE 30 COMP. GEN. 185; 30 COMP. GEN. 476; 33 COMP. GEN. 411. THE GENERAL RULE LAID DOWN IN 29 COMP. GEN. 509 IS QUALIFIED ACCORDINGLY.

ALTHOUGH THE QUESTION AS PRESENTED RELATES TO THE MATTER OF CREDITING COMMANDER DEMETZ WITH ACTIVE-DUTY PAY AND ALLOWANCES FROM AUGUST 15, 1953, TO JANUARY 31, 1955, LESS THE AMOUNTS OF EMPLOYEES' COMPENSATION RECEIVED BY HIM FOR THE PERIOD AUGUST 15 TO DECEMBER 3, 1953, THE FILE SHOWS THAT THE OFFICER IS CLAIMING ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM DECEMBER 4, 1953, TO JANUARY 31, 1955, HE HAVING RECEIVED--- APPARENTLY UNDER AN ELECTION AS PROVIDED IN SECTION 1 OF THE ACT OF JUNE 20, 1949--- COMPENSATION FROM THE BUREAU OF EMPLOYEES' COMPENSATION FOR THE PERIOD AUGUST 15 TO DECEMBER 3, 1953. HIS AWARD OF SUCH COMPENSATION WAS DISCONTINUED AS OF THE LATTER DATE ON THE BASIS THAT ON DECEMBER 4, 1953, HE WAS ABLE TO RESUME FULL DUTY, HAVING SUFFERED NO LOSS OF WAGE-EARNING CAPACITY BY REASON OF HIS INJURY OF MAY 17, 1953. IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE DISCONTINUANCE OF HIS AWARD BY THE BUREAU OF EMPLOYEES' COMPENSATION WAS ERRONEOUS, WE CAN PERCEIVE NO BASIS FOR THE ALLOWANCE TO HIM OF ACTIVE-DUTY PAY AND ALLOWANCES FOR ANY PART OF THE PERIOD FROM DECEMBER 4, 1953, TO JANUARY 31, 1955. HE ALREADY HAS RECEIVED EQUIVALENT BENEFITS FOR THE PERIOD AUGUST 15, TO DECEMBER 3, 1953. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

THE DETERMINATION WHETHER A PARTICULAR MEMBER OF THE UNIFORMED SERVICES, WHO IS WITHIN A CLASS COVERED BY SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, MEETS THE REQUIREMENTS OF THAT SECTION FOR DISABILITY RETIREMENT PAY IS A MATTER WITHIN THE PROVINCE OF THE SECRETARY CONCERNED. THE SECRETARY OF THE NAVY APPARENTLY HAS DETERMINED THAT COMMANDER DEMETZ MET SUCH REQUIREMENTS AND IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS, WE DO NOT PROPOSE TO QUESTION ITS LEGALITY. IT WILL BE NOTED THAT SUBSECTION (C) OF SECTION 402, UNLIKE SUBSECTIONS (A) AND (B) OF THAT SECTION, DOES NOT CONTAIN A REQUIREMENT THAT THE MEMBER BE IN A BASIC PAY STATUS WHEN THE SECRETARY MAKES HIS DETERMINATIONS RESPECTING THE MEMBER'S DISABILITY.

ACCORDINGLY, WE WILL NOT QUESTION PAYMENTS OF RETIRED PAY TO COMMANDER DEMETZ FOR PERIODS AFTER JANUARY 31, 1955, IF OTHERWISE CORRECT.