B-132517, SEP. 13, 1957

B-132517, SEP. 13, 1957

TO MR. CLARK R. CORDELL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1957, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED AUGUST 6, 1956, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JULY 9 THROUGH SEPTEMBER 1, 1954, WHILE YOU WERE UNDER HOSPITALIZATION AT THE ARMY-NAVY GENERAL HOSPITAL, HOT SPRINGS, ARKANSAS, AND SUBSEQUENT TO YOUR RELEASE FROM ACTIVE-DUTY TRAINING AS LIEUTENANT COLONEL, UNITED STATES AIR FORCE RESERVE. YOU STATE THAT DURING THAT PERIOD YOU WERE HOSPITALIZED BECAUSE OF OSTEOARTHRITIS.

IN ORDER FOR A MEMBER TO QUALIFY FOR ACTIVE-DUTY PAY AND ALLOWANCES DURING A PERIOD OF HOSPITALIZATION UNDER THE PROVISIONS OF THE ACTS OF JUNE 15, 1936, 49 STAT. 1507, AS AMENDED, 10 U.S.C. 455A, AND OF JUNE 20, 1949, 63 STAT. 202, PUBLIC LAW 108, 81ST CONGRESS, THE DISEASE FOR WHICH THE MEMBER WAS HOSPITALIZED MUST HAVE BEEN INCURRED "IN LINE OF DUTY.'

IN THE SETTLEMENT OF AUGUST 6, 1956, YOU WERE ADVISED THAT, IN THE ABSENCE OF A DETERMINATION BY HEADQUARTERS, UNITED STATES AIR FORCE, YOUR HOSPITALIZATION WAS THE RESULT OF AN ILLNESS INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY AND A CERTIFICATE AS REQUIRED BY PARAGRAPH 80827D, AIR FORCE MANUAL 173-20, THERE IS NO AUTHORITY OF LAW FOR PAYMENT OF YOUR CLAIM.

IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION, YOU ENCLOSED A COPY OF ORDERS DATED JULY 19, 1954, ISSUED AFTER YOUR RELEASE FROM ACTIVE DUTY, PURPORTING TO ORDER YOU TO REMAIN ON ACTIVE DUTY FOR COMPLETION OF HOSPITALIZATION AND TREATMENT AND THEN TO PROCEED TO YOUR HOME AT HOLDENVILLE, OKLAHOMA, AT WHICH TIME YOU WERE TO REVERT TO AN INACTIVE STATUS. ALSO ENCLOSED WAS A LETTER DATED MAY 13, 1957, FROM THE VETERANS ADMINISTRATION REGIONAL OFFICE, MUSKOGEE, OKLAHOMA, FURNISHING INFORMATION TO THE EFFECT THAT YOUR INDUCTION EXAMINATION FOR INITIAL ENTRY INTO ACTIVE SERVICE WAS NEGATIVE FOR ARTHRITIS; THAT SERVICE CLINICAL RECORDS DATED FEBRUARY 26, 1950, SHOWED DIAGNOSIS OF OSTEOARTHRITIS, LEFT UPPER EXTREMITY, CHRONIC, MILD; SERVICE CLINICAL RECORDS DATED JUNE 18 TO JULY 7, 1954, SHOWED DIAGNOSIS OF OSTEOARTHRITIS, MILD, INTERPHALANGEAL JOINT; AND THAT "SERVICE CONNECTION HAS BEEN ESTABLISHED AS BEING INCURRED IN YOUR SERVICE FOR THE PERIOD OF TIME FROM JANUARY 14, 1954, TO SEPTEMBER 1, 1954, FOR OSTEOARTHRITIS, HANDS AND LEFT UPPER EXTREMITY.'

OUR RECORDS SHOW THAT UNDER DATE OF MAY 15, 1956, THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, REFERRED YOUR CLAIM TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT, WITH THE RECOMMENDATION THAT NO ALLOWANCE BY MADE IN THE ABSENCE OF A DETERMINATION BY HEADQUARTERS, UNITED STATES AIR FORCE, THAT YOUR HOSPITALIZATION WAS THE RESULT OF AN ILLNESS INCURRED IN LINE OF DUTY AND A CERTIFICATE AS REQUIRED BY PARAGRAPH 80827D, AIR FORCE MANUAL 173-20. THE RECORD BEFORE US DOES NOT DISCLOSE SUCH A DETERMINATION BY HEADQUARTERS, UNITED STATES AIR FORCE, NOR HAS THE REQUIRED CERTIFICATE BEEN FURNISHED. ON THE CONTRARY, THE RECORD CONTAINS A CERTIFICATE OF THE AIR RESERVE RECORDS CENTER, CONTINENTAL AIR COMMAND, DENVER, COLORADO, ISSUED UNDER DATE OF FEBRUARY 25, 1955, AS FOLLOWS:

"I CERTIFY THAT LIEUTENANT COLONEL CLARK R. CORDELL, AO 194 346, A MEMBER OF HEADQUARTERS OKLAHOMA CITY AIR MATERIEL AREA (AMC), TINKER AIR FORCE BASE, OKLAHOMA CITY, OKLAHOMA, AIR FORCE RESERVE WAS FOUND BY PROPER AUTHORITY TO HAVE INCURRED AN ILLNESS ON 18 JUNE 1954, WHILE SERVING UNDER ORDERS FOR ACTIVE DUTY IN EXCESS OF 30 DAYS, WHICH TRAINING WAS AUTHORIZED BY COMPETENT AUTHORITY. FINAL DETERMINATION MADE BY HEADQUARTERS UNITED STATES AIR FORCE, WAS THAT LIEUTENANT COLONEL CORDELL'S ILLNESS OF BURSITIS AND OSTEOARTHRITIS WAS INCURRED NOT IN LINE OF DUTY, EXISTED PRIOR TO TRAINING SERVICE, AND WAS NOT DUE TO MISCONDUCT. IT WAS FURTHER DETERMINED THAT THE CONDITIONS OF HERPES ZOSTER AND NEURALGIA WERE IN LINE OF DUTY, NOT DUE TO MISCONDUCT. THE PERSON NAMED ABOVE WAS HOSPITALIZED DURING THE PERIOD FROM 18 JUNE 1954 TO 7 JULY 1954, LUSIVE.'

THE RECORDS ALSO CONTAINS A COPY OF A LETTER DATED FEBRUARY 9, 1955, FROM HEADQUARTERS, UNITED STATES AIR FORCE, TO THE COMMANDER, AIR UNIVERSITY, MAXWELL AIR FORCE BASE, ALABAMA, IN PART, AS FOLLOWS:

"2. THE INVESTIGATION REVEALS THAT COLONEL CORDELL WAS TREATED, AND SUBSEQUENTLY HOSPITALIZED ON MORE THAN ONE OCCASION FOR HERPES ZOSTER, NEURALGIA, BURSITIS AND OSTEOARTHRITIS. ON THE BASIS OF THE EVIDENCE COMPILED IN THIS CASE, THE INVESTIGATING OFFICER'S FINDING OF IN LINE OF DUTY, NOT DUE TO MISCONDUCT WAS APPROVED BY THE APPOINTING AND REVIEWING AUTHORITIES.

"3. THIS HEADQUARTERS DOES NOT CONCUR IN THE FINDING THAT ATTACKS OF BURSITIS AND OSTEOARTHRITIS OCCURRED IN LINE OF DUTY. COLONEL CORDELL'S STATEMENT INDICATES THAT THE BURSITIS EXISTED PRIOR TO 14 JANUARY 1954, THE DATE HE WAS LAST CALLED TO ACTIVE DUTY. SINCE OSTEOARTHRITIS IS A SLOWLY PROGRESSIVE, DEGENERATIVE PROCESS, IT IS EXTREMELY UNLIKELY THAT IT DEVELOPED IN SUCH A SHORT PERIOD OF TIME. BECAUSE THESE CONDITIONS EXISTED PRIOR TO HIS LATEST TOUR OF ACTIVE DUTY AND WERE NOT AGGRAVATED BY THE SERVICE, A FINDING TO NOT IN LINE OF DUTY IS MANDATORY.

"4. HELD BY THE DEPARTMENT OF THE AIR FORCE THAT COLONEL CORDELL'S ILLNESS OF BURSITIS AND OSTEOARTHRITIS WAS NOT IN LINE OF DUTY, EPTS, NOT DUE TO MISCONDUCT. IT IS FURTHER HELD THAT THE CONDITIONS OF HERPES ZOSTER AND NEURALGIA WERE IN LINE OF DUTY, NOT DUE TO MISCONDUCT.'

IN VIEW OF THAT DETERMINATION BY HEADQUARTERS, UNITED STATES AIR FORCE, THAT THE OSTEOARTHRITIS WAS NOT INCURRED IN LINE OF DUTY, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF AUGUST 6, 1956, IS SUSTAINED.

WITH RESPECT TO THE ORDERS OF JULY 19, 1954, DIRECTING YOU TO CONTINUE ON ACTIVE DUTY FOR COMPLETION OF HOSPITALIZATION AND TREATMENT, THE DECISIONS OF THIS OFFICE CONSISTENTLY HAVE HELD THAT THE INACTIVE STATUS OF A RESERVIST RELEASED FROM ACTIVE DUTY BECOMES EFFECTIVE ON THE DATE STATED IN THE MEMBER'S RELEASE FROM ACTIVE-DUTY ORDERS UNLESS PRIOR TO SUCH DATE COMPETENT ORDERS ARE ISSUED WHICH AMEND OR MODIFY THE ORDERS RELIEVING THE MEMBER FROM A DUTY STATUS SO AS TO POSTPONE OR CANCEL THE RELEASE FROM ACTIVE DUTY. 27 COMP. GEN. 333; 33 COMP. GEN. 239. YOUR RELEASE FROM ACTIVE DUTY HAD BECOME EFFECTIVE PRIOR TO THE ISSUANCE OF THE ORDERS OF JULY 19, 1954, AND HENCE SUCH ORDERS COULD NOT CONTINUE YOU IN AN ACTIVE- DUTY STATUS FOR PAY AND ALLOWANCE PURPOSES, NOR COULD SUCH ORDERS BE REGARDED AS COMPETENT FOR THE PURPOSE OF ORDERING YOU TO ACTIVE DUTY FOR PAY AND ALLOWANCE PURPOSES. SEE 26 COMP. GEN. 107; 27 COMP. GEN. 490, 492 -3; B-111821, DECEMBER 17, 1952; B-56272, NOVEMBER 14, 1946. COMPARE 29 COMP. GEN. 535. ACCORDINGLY, THE ORDERS OF JULY 19, 1954, DO NOT PROVIDE A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

THE LETTER OF MAY 13, 1957, FROM THE VETERANS ADMINISTRATION REGIONAL OFFICE CONCERNING THE FINDINGS OF THE VETERANS ADMINISTRATION OF SERVICE CONNECTION OF THE DISEASE ARE NOT CONCLUSIVE OF YOUR RIGHTS IN THIS MATTER, THE FINDINGS OF THAT AGENCY HAVING BEEN MADE UNDER A DIFFERENT LAW. SEE HOLLIDAY V. UNITED STATES, 128 C.CLS. 647, AND WALES V. UNITED STATES, 132 C.CLS. 765. ..END :