B-140782, OCT. 19, 1959

B-140782: Oct 19, 1959

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REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF SECOND LIEUTENANT JAMES O. WAS ORDERED TO ACTIVE DUTY FOR A PERIOD OF TWO YEARS COMMENCING APRIL 2. HE WAS DIRECTED TO UNDERGO FINAL-TYPE PHYSICAL EXAMINATION UPON REPORTING TO HIS FIRST DUTY STATION. IT IS REPORTED THAT LIEUTENANT TIMBERLAKE WAS EXAMINED APRIL 14. WAS NOT CONSIDERED PHYSICALLY QUALIFIED FOR ACTIVE DUTY BY THE LOCAL MEDICAL AUTHORITIES. HIS CASE WAS REFERRED TO THE SURGEON GENERAL FOR FINAL DETERMINATION AND IT APPEARS THAT HE REMAINED AT HIS STATION UNTIL AUGUST 5. AT WHICH TIME HE WAS RELIEVED FROM ACTIVE DUTY PURSUANT TO A DETERMINATION BY THE SURGEON GENERAL THAT HE WAS NOT QUALIFIED FOR ACTIVE DUTY.

B-140782, OCT. 19, 1959

TO MAJOR R. E. ELLIS, FINANCE AND ACCOUNTING OFFICER:

YOUR LETTER OF AUGUST 18, 1959, FORWARDED HERE BY SECOND ENDORSEMENT DATED SEPTEMBER 14, 1959, FROM THE FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, UNDER D.O. NO. 455 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF SECOND LIEUTENANT JAMES O. TIMBERLAKE, 05 402 787, REPRESENTING PAYMENT OF UNIFORM ALLOWANCE UNDER THE PROVISIONS OF SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, 37 U.S.C. 255.

LIEUTENANT TIMBERLAKE, AS AN ROTC GRADUATE, WAS ORDERED TO ACTIVE DUTY FOR A PERIOD OF TWO YEARS COMMENCING APRIL 2, 1959, IN ACCORDANCE WITH LETTER ORDER 9-39, HEADQUARTERS, FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, DATED SEPTEMBER 10, 1958, AS AMENDED. HE WAS DIRECTED TO UNDERGO FINAL-TYPE PHYSICAL EXAMINATION UPON REPORTING TO HIS FIRST DUTY STATION, THE UNITED STATES ARMY ORDNANCE SCHOOL, ABERDEEN PROVING GROUND, MARYLAND. IT IS REPORTED THAT LIEUTENANT TIMBERLAKE WAS EXAMINED APRIL 14, 1959, AND WAS NOT CONSIDERED PHYSICALLY QUALIFIED FOR ACTIVE DUTY BY THE LOCAL MEDICAL AUTHORITIES. HIS CASE WAS REFERRED TO THE SURGEON GENERAL FOR FINAL DETERMINATION AND IT APPEARS THAT HE REMAINED AT HIS STATION UNTIL AUGUST 5, 1959, AT WHICH TIME HE WAS RELIEVED FROM ACTIVE DUTY PURSUANT TO A DETERMINATION BY THE SURGEON GENERAL THAT HE WAS NOT QUALIFIED FOR ACTIVE DUTY. YOU FURTHER REPORT THAT DURING THAT PERIOD LIEUTENANT TIMBERLAKE ATTENDED CLASSES AND WAS REQUIRED TO REPORT IN UNIFORM WHILE ATTENDING THE UNITED STATES ARMY ORDNANCE SCHOOL. YOU EXPRESS DOUBT AS TO WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED IN VIEW OF OUR DECISION OF DECEMBER 7, 1953, B-116870, 33 COMP. GEN. 242, CONCERNING A SIMILAR QUESTION.

IN 33 COMP. GEN. 242, AT PAGE 245, A QUESTION WAS PRESENTED AS TO WHETHER UNDER THE PROVISIONS OF SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492, THE STATUTORY PROVISIONS WHICH PRECEDED SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, NOW IN EFFECT, AN ARMY RESERVE OFFICER ORDERED TO ACTIVE DUTY FOR ONE YEAR AND REQUIRED TO UNDERGO A FINAL-TYPE PHYSICAL EXAMINATION UPON FIRST REPORTING AND WHO, UPON SO REPORTING, WAS FOUND NOT PHYSICALLY QUALIFIED AND WAS RELIEVED FROM ACTIVE DUTY, WOULD BE ENTITLED TO A UNIFORM ALLOWANCE OF $200, TOGETHER WITH AN ACTIVE DUTY ALLOWANCE OF $100. THE OFFICER WAS ENTITLED TO AND WAS PAID ACTIVE DUTY PAY AND ALLOWANCES FROM DATE OF ENTRY TO DATE OF RELIEF FROM ACTIVE DUTY. WE HELD, HOWEVER, THAT PHYSICAL FITNESS NECESSARILY WAS A CONDITION PRECEDENT TO EXTENDED ACTIVE DUTY AND UNDER THE ORDER CITED, THE OFFICER COULD NOT BE CONSIDERED TO HAVE REPORTED FOR EXTENDED ACTIVE DUTY UNTIL HIS PHYSICAL FITNESS HAD BEEN DETERMINED. ALSO, IT WAS POINTED OUT THAT IT HAS BEEN HELD THAT UNTIL AN OFFICER'S PHYSICAL FITNESS FOR ACTIVE DUTY HAS BEEN DETERMINED, THE OFFICER HAS NOT PERFORMED ANY DUTY "REQUIRING THE WEARING OF THE UNIFORM.'

SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, 37 U.S.C. 255, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A)AN OFFICER OF A RESERVE COMPONENT IS ENTITLED TO AN INITIAL SUM NOT TO EXCEED $200 AS REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS AND EQUIPMENT, EITHER---

"/1) UPON FIRST REPORTING FOR ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD IN EXCESS OF 90 DAYS; OR

"/3) AFTER THE PERFORMANCE OF 14 PERIODS OF NOT LESS THAN TWO HOURS' DURATION EACH, OF INACTIVE-DUTY TRAINING AS A MEMBER IN THE READY RESERVE OF A RESERVE COMPONENT: PROVIDED, THAT ONLY DUTY REQUIRING THE WEARING OF THE UNIFORM SHALL BE COUNTED FOR THE PURPOSE OF THIS SECTION: * * *

"/C) AN OFFICER OF A RESERVE COMPONENT ENTERING ON ACTIVE DUTY IS ENTITLED, FOR EACH TIME OF SUCH ENTRY OR REENTRY ON ACTIVE DUTY OF MORE THAN NINETY DAYS' DURATION TO A FURTHER SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY:

THESE PROVISIONS ARE DERIVED FROM SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492, REPEALED BY THE 1956 ACT, PROVIDING FOR REIMBURSEMENT FOR THE PURCHASE OF "REQUIRED IFORMS.' WITH RESPECT TO THE NAVAL RESERVE, EARLIER UNIFORM ALLOWANCE PROVISIONS APPEARED IN SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180.

PHYSICAL FITNESS HAS ALWAYS BEEN REQUIRED AS A CONDITION PRECEDENT TO EXTENDED ACTIVE DUTY AND MEMBERS OF THE RESERVE COMPONENTS ARE REQUIRED TO UNDERGO PHYSICAL EXAMINATIONS UPON REPORTING FOR ACTIVE DUTY IF NOT SO EXAMINED WITHIN 120 DAYS PRIOR TO ENTRY ON ACTIVE DUTY. ALTHOUGH MEMBERS REPORTING FOR ACTIVE DUTY UNDER ORDERS FOR PHYSICAL EXAMINATION ARE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FOR SUCH PERIOD, WE HELD IN DECISION DATED JUNE 1, 1944, B-38654, THAT UNDER THE PROVISIONS OF SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, GRANTING UNIFORM ALLOWANCES OF $100 AND $150 FOR "REQUIRED UNIFORMS," THERE WAS NO SHOWING OF A NECESSITY OR REQUIREMENT FOR THE PURCHASE OF A UNIFORM IN CONTEMPLATION OF SERVICE FOR WHICH, IMMEDIATELY UPON REPORTING FOR ACTIVE DUTY, A RESERVE OFFICER HAD BEEN FOUND PHYSICALLY UNFIT. IN DECISION OF FEBRUARY 26, 1945, B-45468, IT WAS STATED FURTHER THAT A NAVAL RESERVE OFFICER IS NOT REQUIRED TO WEAR OR TO POSSESS UNIFORMS WHILE HIS PHYSICAL FITNESS FOR ACTIVE DUTY IS BEING ASCERTAINED. OUR HOLDING IN 33 COMP. GEN. 242, 245, APPLIED THIS PRINCIPLE TO THE PROVISIONS OF SECTION 243 OF THE ARMED FORCES RESERVE ACT AND IT IS OUR OPINION THAT THE CONGRESS MADE NO SUBSTANTIAL CHANGE IN THAT RESPECT IN REENACTING THE PROVISIONS OF SECTION 243 AS SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949.

DURING THE PERIOD LIEUTENANT TIMBERLAKE WAS AT HIS DUTY STATION, FROM APRIL 2 THROUGH AUGUST 5, 1959, AWAITING THE DETERMINATION OF THE SURGEON GENERAL REGARDING HIS PHYSICAL QUALIFICATION, HE WAS ENTITLED TO PAY AND ALLOWANCES. HOWEVER, HE WAS NOT PERFORMING DUTY REQUIRING THE WEARING OF A UNIFORM WITHIN THE CONTEMPLATION OF THE UNIFORM ALLOWANCE PROVISIONS UNTIL HE WAS FOUND PHYSICALLY FIT. UNDER THESE CIRCUMSTANCES, LIEUTENANT TIMBERLAKE IS NOT ENTITLED TO A UNIFORM ALLOWANCE. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.

YOU PRESENT A FURTHER QUESTION AS FOLLOWS:

"IF THE OFFICER IS NOT ENTITLED TO PAYMENT IN THE INSTANT CASE, WOULD OTHER OFFICERS IN THE SAME CIRCUMSTANCES, EXCEPT THAT THE SURGEON GENERAL DETERMINED THEM TO BE PHYSICALLY QUALIFIED AND THEY REMAINED ON ACTIVE DUTY, BE ENTITLED TO PAYMENT FROM THE DATE OF COMPLETION OF OVER NINETY DAYS ACTIVE DUTY OR FROM THE DATE THE SURGEON GENERAL DETERMINES THAT THEY ARE PHYSICALLY QUALIFIED FOR ACTIVE DUTY.'

YOU ARE ADVISED THAT A DISBURSING OFFICER IS ENTITLED TO A DECISION ONLY ON A QUESTION SPECIFICALLY INVOLVED IN A VOUCHER WHICH IS PROPERLY BEFORE HIM FOR PAYMENT, AND THEN ONLY WHEN THE VOUCHER IS SUBMITTED HERE ACCOMPANIED BY A COMPLETE STATEMENT OF FACTS. 22 COMP. GEN. 588. HENCE, AN AUTHORITATIVE DECISION MAY NOT BE RENDERED ON THE QUESTION AS PRESENTED. IT MAY BE STATED GENERALLY, HOWEVER, THAT WHERE A MEMBER IS ORDERED TO EXTENDED ACTIVE DUTY SUBJECT TO A DETERMINATION THAT HE IS PHYSICALLY QUALIFIED, AND SUCH DETERMINATION IS NOT MADE BY THE SURGEON GENERAL UNTIL SOME TIME AFTER THE MEMBER REPORTED FOR ACTIVE DUTY, THE DETERMINATION MAY BE CONSIDERED FOR UNIFORM ALLOWANCE PURPOSES, AS RELATING BACK TO THE DATE OF ENTRANCE ON ACTIVE DUTY, PROVIDED THERE HAS BEEN NO CHANGE IN THE MEMBER'S PHYSICAL QUALIFICATIONS DURING THE INTERVENING PERIOD. IN THIS CONNECTION, SEE 32 COMP. GEN. 502, 511, ANSWER TO QUESTION 9.