B-136059, JUL. 18, 1958

B-136059: Jul 18, 1958

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WHEN THE BRAKES LOCKED ON A CIVILIAN VEHICLE IN WHICH HE WAS RIDING AND HE WAS THROWN HEAD FIRST INTO THE WINDSHIELD OF THE VEHICLE. IT WAS DETERMINED BY PROPER AUTHORITY ON SEPTEMBER 12. - WAS INCURRED IN LINE OF DUTY. THERE IS NO SHOWING THAT HIS INJURY DISABLED HIM IN THE PERFORMANCE OF HIS MILITARY DUTIES. HE WAS EXAMINED BY A CIVILIAN DOCTOR ON JUNE 14. - APPARENTLY AFTER HE WAS RELEASED FROM ACTIVE DUTY . WHILE THE COMPRESSION FRACTURE WAS REVEALED. HE WAS TREATED WITHOUT IMMOBILIZATION AND ACCORDING TO THE DOCTOR "HAS SUBSEQUENTLY DONE WELL.'. HE WAS DIRECTED TO PROCEED TO INDIANTOWN GAP MILITARY RESERVATION TO ATTEND A PRE-CAMP CONFERENCE ON FEBRUARY 21. RETURN TO HIS HOME WHERE HE WAS TO REVERT TO AN INACTIVE STATUS NOT LATER THAN MIDNIGHT FEBRUARY 23.

B-136059, JUL. 18, 1958

TO THE LIEUTENANT COLONEL J. B. REGAN, FC:

BY SECOND INDORSEMENT OF MAY 5, 1958, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF APRIL 15, 1958, REQUESTING ADVANCE DECISION AS TO THE LEGALITY OF PAYING MAJOR GENERAL WILLIAM H. STOKES, JR., USAR, ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD FEBRUARY 24 TO APRIL 15, 1958, AND TRAVEL ALLOWANCE AT THE RATE OF SIX CENTS PER MILE FROM HIS HOME AT LYNCHBURG, VIRGINIA, TO WASHINGTON, D.C., UNDER THE CIRCUMSTANCES DISCUSSED BELOW.

IT APPEARS THAT WHILE SERVING ON ACTIVE DUTY IN 1956 GENERAL STOKES SUFFERED AN INJURY TO HIS CERVICAL SPINE ON MAY 9, 1956, WHEN THE BRAKES LOCKED ON A CIVILIAN VEHICLE IN WHICH HE WAS RIDING AND HE WAS THROWN HEAD FIRST INTO THE WINDSHIELD OF THE VEHICLE. IT WAS DETERMINED BY PROPER AUTHORITY ON SEPTEMBER 12, 1956, THAT THE INJURY- - COMPRESSION FRACTURE OF THE FOURTH AND FIFTH CERVICAL VERTEBRAE--- WAS INCURRED IN LINE OF DUTY. SINCE THE INJURY SEEMED TO BE SUPERFICIAL, HE CONTINUED HIS ACTIVE DUTY WITHOUT HAVING THE CONDITION INVESTIGATED AT THAT TIME. THERE IS NO SHOWING THAT HIS INJURY DISABLED HIM IN THE PERFORMANCE OF HIS MILITARY DUTIES. HE WAS EXAMINED BY A CIVILIAN DOCTOR ON JUNE 14, 1956, WHILE SUFFERING FROM ACUTE TORTICOLLIS--- APPARENTLY AFTER HE WAS RELEASED FROM ACTIVE DUTY -- AND WHILE THE COMPRESSION FRACTURE WAS REVEALED, HE WAS TREATED WITHOUT IMMOBILIZATION AND ACCORDING TO THE DOCTOR "HAS SUBSEQUENTLY DONE WELL.'

BY ORDERS OF FEBRUARY 6, 1958, HE WAS DIRECTED TO PROCEED TO INDIANTOWN GAP MILITARY RESERVATION TO ATTEND A PRE-CAMP CONFERENCE ON FEBRUARY 21,1958, AND RETURN TO HIS HOME WHERE HE WAS TO REVERT TO AN INACTIVE STATUS NOT LATER THAN MIDNIGHT FEBRUARY 23, 1958. HE STATES THAT DURING THIS TOUR OF ACTIVE DUTY "A FLARE UP OF PREVIOUSLY INJURED NECK CONDITION OCCURRED. DURING THE DAY, 22 FEBRUARY, SOME MORE THAN NORMAL RESTRICTION WAS NOTED, HOWEVER, BETWEEN TIME OF DEPARTURE IGMR ABOUT 1500 HOURS AND ARRIVAL LYNCHBURG BY COMMERCIAL AIR, ABOUT 1930 HOURS, THE CONDITION BECAME TREMENDOUSLY ACUTE AND PAINFUL.' UPON ARRIVING AT HIS HOME THE SAME DOCTOR WAS CALLED AND HE CONTINUED UNDER THAT DOCTOR'S TREATMENT PRESUMABLY UNTIL HE REPORTED AT WALTER REED HOSPITAL, WASHINGTON, D.C., ON APRIL 4, 1958. AUTHROIZATION DATED APRIL 3, 1958, AUTHORIZED HIS ADMISSION TO THAT HOSPITAL FOR THE PURPOSE OF MEDICAL TREATMENT, EVALUATION, AND IF WARRANTED, APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD. IT WAS INDICATED THEREIN THAT TRAVEL WOULD BE AT GOVERNMENT EXPENSE.

IN A LETTER TO THE COMMANDING GENERAL, SECOND UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND, THE CIVILIAN DOCTOR REPORTED THAT THE OFFICER HAD SUFFERED A PERIOD OF TEMPORARY TOTAL DISABILITY WHICH HAD CONTINUED FROM FEBRUARY 22, 1958. YOU REPORT THAT THE STATEMENT REQUIRED BY PARAGRAPH 20-7B, ARMY REGULATIONS 35-104, DECEMBER 2, 1957, PERTAINING TO LINE OF DUTY DETERMINATION FOR AN INJURY OCCURRED ON FEBRUARY 23, 1958, CANNOT BE FURNISHED BY THE HOSPITAL COMMANDER AT THIS TIME.

THE AUTHORIZATION OF APRIL 3, 1958, MENTIONED A SECOND INDORSEMENT OF MARCH 24, 1958, FROM THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY. IT IS STATED IN SUCH INDORSEMENT THAT HOSPITALIZATION IS AUTHORIZED UNDER THE PROVISIONS OF 10 U.S.C. 3722. SUCH PROVISIONS OF LAW AUTHORIZE (1) HOSPITALIZATION, REHOSPITALIZATION, AND TREATMENT FOR INJURIES INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY BY EACH MEMBER OF THE ARMY RESERVE, TO THE EXTENT THERE PROVIDED, (2) BASIC PAY AND ALLOWANCES DURING THE PERIOD OF HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN A TOTAL OF SIX MONTHS AFTER THE END OF HIS TOUR OF DUTY OR TRAINING DUTY AND (3) NECESSARY TRANSPORTATION INCIDENT TO THE HOSPITALIZATION, REHOSPITALIZATION, AND RETURN TO HIS HOME.

IT HAS BEEN HELD THAT EXCEPT IN CASES INVOLVING CONTAGIOUS OR INFECTIOUS DISEASES, HOME TREATMENT IS NOT CONSIDERED TO BE HOSPITALIZATION OR REHOSPITALIZATION WITHIN THE MEANING AND INTENT OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507--- FROM WHICH 10 U.S.C. 3722 WAS DERIVED--- FOR THE PURPOSE OF CONTINUATION OF PAY AFTER TERMINATION OF AN ACTIVE-DUTY STATUS. 34 COMP. GEN. 275; ID. 533. HENCE, NO RIGHT TO PAY AND ALLOWANCES ACCRUED TO THE OFFICER UNDER 10 U.S.C. 3722 FOR THE PERIOD FEBRUARY 24 TO APRIL 3, 1958.

AS TO THE PERIOD ON AND AFTER APRIL 4, 1958, THE OFFICER IS ENTITLED TO PAY AND ALLOWANCES DURING PERIODS OF HOSPITALIZATION AND REHOSPITALIZATION NECESSARY FOR THE TREATMENT OF HIS LINE OF DUTY INJURY FOR A TOTAL OF NOT MORE THAN SIX MONTHS. IN THIS CONNECTION, IT IS NOTED THAT WHEN HE WAS EXAMINED BY HIS DOCTOR IN 1956, AN X-RAY SHOWED A FUSION OF THE THIRD AND FOURTH CERVICAL VERTEBRAE WHICH WAS THOUGHT TO BE CONGENITAL. ALSO, ADVANCED HYPERTROPIC CHANGES WERE FOUND AROUND THE BODIES OF THE FIFTH, SIXTH, AND SEVENTH CERVICAL VERTEBRAE. THE CONNECTION, IF ANY, BETWEEN THE FRACTURE AND THE HYPERTROPIC CONDITION, IS NOT SHOWN. AN X-RAY EXAMINATION BY THE SAME DOCTOR IN 1958 REVEALED ESSENTIALLY THE SAME CONDITION EXCEPT FOR "A MODERATE ADVANCE OF THE HYPERTROPIC SPURRING OF C- 5-6 AND 7.' THE PRESENT RECORD DOES NOT SHOW WHETHER OR NOT HIS HOSPITALIZATION WAS NECESSARY FOR TREATMENT OF THE INJURY SUSTAINED IN 1956, OR OF A HYPERTROPIC CONDITION WHICH IS UNRELATED TO THAT INJURY, AND SINCE THERE IS NO FINDING THAT HE WAS INJURED IN LINE OF DUTY ON FEBRUARY 21 22, 1958, THERE IS NO EVIDENCE WARRANTING THE PAYMENT OF PAY AND ALLOWANCES AT THE PRESENT TIME. IF IT IS DETERMINED THAT HOSPITALIZATION IS NECESSARY FOR CONDITIONS RESULTING FROM HIS INJURY IN 1956, PAY AND ALLOWANCES ARE PAYABLE UNDER THE PROVISIONS OF 10 U.S.C. 3722 FOR A TOTAL PERIOD OF NOT MORE THAN SIX MONTHS.

WITH RESPECT TO THE OFFICER'S RIGHT TO PAY AND ALLOWANCES FOR THE PERIOD FEBRUARY 24 TO APRIL 3, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 3687, RELATING TO THE PAYMENT OF PAY AND ALLOWANCES TO A MEMBER OF THE ARMY OTHER THAN THE REGULAR ARMY WHEN HE "IS DISABLED IN LINE OF DUTY FROM INJURY" WHILE EMPLOYED ON ACTIVE DUTY OR INACTIVE DUTY TRAINING (34 COMP. GEN. 275), IT SEEMS CLEAR THAT HE WAS NOT ACTUALLY DISABLED IN LINE OF DUTY WHEN HE WAS INJURED IN 1956. CONCERNING THE INTENT OF CONGRESS WITH RESPECT TO THAT PROVISION, IT IS STATED ON PAGE 4, SENATE REPORT NO. 95, 81ST CONGRESS, REGARDING THE BILL ENACTED INTO LAW AS THE ACT OF JUNE 20, 1949, FROM WHICH SECTION 3687 WAS DERIVED, THAT:

"IT IS INTENDED THAT PERSONS WHO ARE COVERED BY THE BENEFITS OF THIS BILL WILL BE KEPT IN A PAY STATUS UNTIL THEIR HOSPITALIZATION IS COMPLETED AND THEIR CASE FINALLY SETTLED. * * *

"* * * A REGULAR IS PAID WHILE IN THE HOSPITAL AND THE COMMITTEE INTENDS RESERVES, INJURED WHILE SERVING EITHER WITH OR WITHOUT PAY, TO BE TREATED IN EXACTLY THE SAME MANNER. * * *"

THUS IT REASONABLY APPEARS THAT THE INJURIES CONTEMPLATED BY THE STATUTE FOR PAY AND ALLOWANCE PURPOSES WERE THOSE WHICH RESULTED IN A CONTEMPORANEOUS DISABILITY RATHER THAN ONE RESULTING IN A DISABILITY THAT MIGHT BECOME MANIFEST ONLY LONG AFTER RELEASE FROM ACTIVE DUTY AT SOME DISTANT FUTURE DATE. COMPARE 33 COMP. GEN. 411, 415-416. WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT DOES NOT APPEAR THAT 10 U.S.C. 3687 CONTEMPLATES PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES DURING THE PERIOD FEBRUARY 24 TO APRIL 3, 1958, IN THE CIRCUMSTANCES OF THIS CASE. IN THE ABSENCE OF A DETERMINATION THAT HE WAS REINJURED IN LINE OF DUTY ON FEBRUARY 22, 1958, THAT PROVISION OF LAW FURNISHES NO BASIS FOR PAYMENT OF PAY AND ALLOWANCES DURING THAT PERIOD.

REIMBURSEMENT FOR EXPENSES OF TRAVEL MAY NOT BE MADE ON A COMMUTED BASIS UNLESS SPECIFICALLY AUTHORIZED FOR BY LAW. 10 U.S.C. 3722 (B) (4) PROVIDES THAT AN ELIGIBLE PERSON IS ENTITLED TO ,NECESSARY TRANSPORTATION" INCIDENT TO HOSPITALIZATION, REHOSPITALIZATION AND RETURN TO HIS HOME. GENERAL STOKES IS OTHERWISE ENTITLED TO THE BENEFITS OF 10 U.S.C. 3722, HE MAY BE REIMBURSED FOR THE COST OF HIS TRANSPORTATION FROM LYNCHBURG TO WASHINGTON. COMMUTED MILEAGE AT THE RATE OF SIX CENTS PER MILE IS NOT PAYABLE FOR SUCH TRAVEL.

PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AUTHORIZED UNDER THE CONDITIONS AND TO THE EXTENT INDICATED ABOVE.