B-144832, JUNE 7, 1961, 40 COMP. GEN. 664

B-144832: Jun 7, 1961

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FOR SUCH TIME AS IS REQUIRED TO DETERMINE ELIGIBILITY FOR RETIREMENT OR DISABILITY RETIREMENT PAY OR TO COMPLETE THE NECESSARY PHYSICAL DISABILITY PROCESSING IN THE EVENT A DETERMINATION OF ELIGIBILITY IS MADE. SUCH RETENTION IS PROPER ALSO IN CASES WHERE THE DISABILITY OCCURS AT A TIME NEAR THE END OF THE ORDERED PERIOD OF DUTY. SUCH MEMBER IS ENTITLED TO BASIC PAY FOR ANY PERIOD BY WHICH THE ORDERED PERIOD OF ACTIVE DUTY IS SO EXTENDED. THE QUESTIONS UPON WHICH DECISION IS REQUESTED ARE STATED IN COMMITTEE ACTION NO. 276 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE. B. PENDING FINAL COMPLETION OF DISABILITY PROCEEDINGS BY PHYSICAL EVALUATION BOARD WHERE DISABILITY HAS BEEN DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY. 2.

B-144832, JUNE 7, 1961, 40 COMP. GEN. 664

MILITARY PERSONNEL - ACTIVE DUTY - TRAINING PERIODS - EXTENSION IN DISABILITY AND INJURY CASES A MEMBER OF THE UNIFORMED SERVICES WHO, WHILE ON ACTIVE DUTY FOR TRAINING FOR A SPECIFIED PERIOD UNDER 50 U.S.C. 1013 (C) OR OTHER AUTHORITY, BECOMES PHYSICALLY DISABLED TO PERFORM FURTHER ACTIVE DUTY MAY BE RETAINED ON ACTIVE DUTY, WITHOUT THE NECESSITY FOR ISSUANCE OF AMENDED ORDERS TO EXTEND THE ORDERED PERIOD OF ACTIVE DUTY, FOR SUCH TIME AS IS REQUIRED TO DETERMINE ELIGIBILITY FOR RETIREMENT OR DISABILITY RETIREMENT PAY OR TO COMPLETE THE NECESSARY PHYSICAL DISABILITY PROCESSING IN THE EVENT A DETERMINATION OF ELIGIBILITY IS MADE, AND SUCH RETENTION IS PROPER ALSO IN CASES WHERE THE DISABILITY OCCURS AT A TIME NEAR THE END OF THE ORDERED PERIOD OF DUTY, AND SUCH MEMBER IS ENTITLED TO BASIC PAY FOR ANY PERIOD BY WHICH THE ORDERED PERIOD OF ACTIVE DUTY IS SO EXTENDED.

TO THE SECRETARY OF DEFENSE, JUNE 7, 1961:

REFERENCES MADE TO LETTER DATED JANUARY 16, 1961, WITH ENCLOSURE, RECEIVED FROM THE FORMER ASSISTANT SECRETARY OF DEFENSE (1COMPTROLLER), REQUESTING DECISION WHETHER IN PHYSICAL DISABILITY CASES ACTIVE DUTY FOR TRAINING ORDERS ISSUED TO MEMBERS OF THE UNIFORMED SERVICES PURSUANT TO VARIOUS LAWS MAY BE AMENDED, PRIOR TO THE EXPIRATION DATE STATED IN SUCH ORDERS, TO EXTEND THE PERIOD OF ACTIVE DUTY PENDING FINAL COMPLETION OF LINE OF DUTY DETERMINATION OR PHYSICAL DISABILITY PROCEEDINGS. THE QUESTIONS UPON WHICH DECISION IS REQUESTED ARE STATED IN COMMITTEE ACTION NO. 276 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY THE ACTIVE DUTY FOR TRAINING ORDERS OF A MEMBER ORDERED TO ACTIVE DUTY UNDER 50 U.S.C. 1013 (C) (SIX-MONTH TRAINEES) BE AMENDED PRIOR TO THE EXPIRATION STATED THEREIN TO EXTEND THE PERIOD OF ACTIVE DUTY BEYOND SIX CALENDAR MONTHS WITH ENTITLEMENT TO BASIC PAY UNDER THE FOLLOWING CONDITIONS?

A. PENDING FINAL COMPLETION OF LINE OF DUTY DETERMINATION WHERE TENTATIVE DETERMINATION HAS BEEN MADE OF A DISABILITY INCURRED NOT IN LINE OF DUTY.

B. PENDING FINAL COMPLETION OF DISABILITY PROCEEDINGS BY PHYSICAL EVALUATION BOARD WHERE DISABILITY HAS BEEN DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY.

2. MAY THE ACTIVE DUTY FOR LESS THAN 90 DAYS OR ACTIVE DUTY FOR TRAINING ORDERS OF MEMBERS OTHER THAN THOSE AUTHORIZED UNDER 50 U.S.C. 1013 (C) (SIX-MONTH TRAINEES) BE EXTENDED WITH ENTITLEMENT TO PAY AND ALLOWANCES UNDER THE FOLLOWING CONDITIONS?

A. PENDING FINAL COMPLETION OF LINE OF DUTY DETERMINATION WHERE TENTATIVE DETERMINATION HAS BEEN MADE OF A DISABILITY INCURRED NOT IN LINE OF DUTY.

B. PENDING FINAL COMPLETION OF DISABILITY PROCEEDINGS BY PHYSICAL EVALUATION BOARD WHERE DISABILITY HAS BEEN DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY.

WHILE THE ABOVE QUESTIONS ARE ADDRESSED SOLELY TO THE MATTER OF ACTIVE DUTY PAY AND ALLOWANCES, IT APPEARS THAT ENTITLEMENT TO SUBSEQUENTLY ACCRUING PHYSICAL DISABILITY BENEFITS ALSO IS INVOLVED. IN THE DISCUSSION OF THE ABOVE QUESTIONS IN THE COMMITTEE ACTION NO. 276, IT IS STATED THAT THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, ON FEBRUARY 16, 1960 (1JAGA 1960/3518), RULED THAT ALTHOUGH MEMBERS INITIALLY ORDERED TO ACTIVE DUTY FOR TRAINING FOR SIX MONTHS MAY BE HOSPITALIZED WITH PAY AND ALLOWANCES AFTER EXPIRATION OF SELF EXECUTING ORDERS, THE PAY AND ALLOWANCES ARE NOT CONSIDERED "BASIC PAY" FOR THE PURPOSES OF SECTION 1201, 1202 AND 1203, TITLE 10, UNITED STATES CODE. IT IS FURTHER STATED THAT IN VIEW OF THE RULING A CHANGE IN REGULATIONS WAS DEEMED NECESSARY IN ORDER TO RETAIN A MEMBER IN A "BASIC PAY" STATUS, AND THAT CHANGES IN ARMY REGULATIONS WERE PUBLISHED AUTHORIZING INSTALLATION COMMANDERS AND COMMANDERS OF MEDICAL TREATMENT FACILITIES TO VOLUNTARILY EXTEND THE ORDERED SIX MONTHS' TRAINING DUTY PERIOD, FOR THE PURPOSE OF COMPETING DETERMINATION OF LINE OF DUTY STATUS OR FOR COMPLETING PHYSICAL DISABILITY PROCESSING IN CONNECTION WITH DETERMINING RIGHTS TO DISABILITY BENEFITS.

SECTION 1013 (C) OF TITLE 50, U.S.C. PROVIDES AS FOLLOWS:

EACH ENLISTMENT UNDER THIS SECTION SHALL BE FOR A PERIOD OF EIGHT YEARS. EACH PERSON SO ENLISTED SHALL BE REQUIRED SUCH ENLISTMENT (1) TO PERFORM AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF NOT LESS THAN THREE MONTHS OR MORE THAN SIX MONTHS, AND (2) THEREAFTER TO PERFORM SATISFACTORILY ALL TRAINING DUTY PRESCRIBED BY SECTION 928F OF THIS TITLE

WHILE THE STATEMENT IS MADE IN THE COMMITTEE ACTION CITED ABOVE, THAT THE STATUTE SETS FORTH A MAXIMUM PERIOD OF ACTIVE DUTY FOR TRAINING OF SIX MONTHS AND THAT ANY ATTEMPT TO EXTEND SUCH A PERIOD OF SERVICE BEYOND SIX MONTHS WOULD APPEAR TO BE IN CONFLICT WITH THE LAW, IT APPEARS UNNECESSARY TO CONSIDER THIS MATTER IN ANY CASE INVOLVING DISABILITY OR INJURY INCURRED IN LINE OF DUTY SINCE THE ISSUANCE OF ORDERS EXTENDING THE TRAINING DUTY BEYOND SIX MONTHS IS NOT NECESSARY IN SUCH A CASE IN ORDER TO RETAIN A RESERVIST IN A STATUS OF BEING ENTITLED TO CONTINUE TO RECEIVE BASIC PAY AFTER THE PERIOD EXPIRES. IN DECISION OF OUR OFFICE DATED FEBRUARY 8, 1954, 33 COMP. GEN. 339, IT WAS RECOGNIZED THAT SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949 (NOW CODIFIED AS 10 U.S.C. 1201) REQUIRES,"AS A CONDITION PRECEDENT TO RETIREMENT OR PAYMENT OF DISABILITY RETIREMENT PAY, THAT THE SECRETARY MAKES THE NECESSARY DISABILITY RETIREMENT DETERMINATIONS WHILE THE MEMBER CONCERNED IS ENTITLED TO RECEIVE BASIC PAY.' THE OFFICER IN THAT CASE, A MEMBER OF THE U.S. NAVAL RESERVE, HAD BECOME PHYSICALLY INCAPACITATED BY REASON OF POLIO VIRUS WHICH MIGHT HAVE ENTERED HIS SYSTEM DURING A PERIOD OF ACTIVE SERVICE. THE EFFECTS OF IT, HOWEVER, DID NOT BECOME DISABLING UNTIL SHORTLY AFTER HIS RELEASE FROM ACTIVE SERVICE. IT WAS THERE POINTED OUT THAT NOTWITHSTANDING THE OFFICER'S ACTIVE DUTY STATUS UNDER HIS BASIC ACTIVITY DUTY HAD TERMINATED, IF IT SHOULD BE DETERMINED THAT THE DISEASE HAD ITS BEGINNING PRIOR TO SUCH RELEASE AND HE THUS BECAME ENTITLED TO RECEIVE ACTIVE DUTY PAY BY VIRTUE OF THE PROVISIONS OF LAW NOW CODIFIED WITH RESPECT TO THE ARMY IN 10 U.S.C. 3687 AND 3721 DURING A PERIOD OF INCAPACITY OR HOSPITALIZATION RESULTING DIRECTLY FROM SUCH DISEASE, HIS STATUTE WOULD BE SUFFICIENT, WHEN CONSIDERED IN CONJUNCTION WITH HIS EARLIER ACTIVE DUTY STATUS, TO JUSTIFY THE CONCLUSION THAT HE COULD BE CONSIDERED A MEMBER "ENTITLED TO RECEIVE BASIC PAY" WITHIN THE MEANING OF SECTION 402 (A) AND THEREFORE AS ELIGIBLE TO HAVE HIS CASE CONSIDERED UNDER SUCH SECTION. THIS CONCLUSION WOULD SEEM TO BE EQUALLY APPLICABLE TO INCAPACITY OR HOSPITALIZATION RESULTING FROM AN INJURY. WHILE THE OFFICER IN THAT CASE HAD BEEN SERVING ON EXTENDED ACTIVE DUTY RATHER THAN ACTIVE DUTY FOR TRAINING, THE SAME CONCLUSION WOULD BE WARRANTED IN CONNECTION WITH ACTIVE DUTY FOR TRAINING, UNDER THE PROVISIONS OF 10 U.S.C. 3687 CURRENTLY IN EFFECT. COMPARE IN THIS CONNECTION 36 COMP. GEN. 651.

IT APPEARS CLEAR THAT IF ANY MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO PERFORM ACTIVE DUTY, UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED, BECOMES PHYSICALLY DISABLED TO PERFORM FURTHER ACTIVE DUTY, HE MAY BE RETAINED ON ACTIVE DUTY FOR ANY PART OF THE ORDERED PERIOD OF ACTIVE DUTY WHICH IS NECESSARY TO DETERMINE WHETHER HE IS ELIGIBLE FOR RETIREMENT OR PAYMENT OF DISABILITY RETIREMENT PAY BECAUSE OF SUCH DISABILITY, OR TO COMPLETE THE NECESSARY PHYSICAL DISABILITY PROCESSING IN THE EVENT IT IS DETERMINED THAT HE IS SO ELIGIBLE. WE SEE NO BASIS FOR A DIFFERENT CONCLUSION MERELY BECAUSE THE DISABILITY, WHICH PREVENTED THE PERFORMANCE OF HIS OFFICIAL DUTIES, OCCURRED AT A TIME SO NEAR THE END OF THE ORDERED PERIOD OF ACTIVE DUTY THAT SUCH MATTERS COULD NOT BE FINALLY DECIDED OR COMPLETED BEFORE THE EXPIRATION OF THAT PERIOD. IT IS BELIEVED THAT THE PERIOD OF ACTIVE DUTY MAY BE EXTENDED TO THE EXTENT NECESSARY TO ACCOMPLISH THAT PURPOSE. COMPARE 26 COMP. GEN. 107; 27 COMP. GEN. 490.

WITH THE OBSERVATION THAT THE AMENDMENT OF ORDERS TO EXTEND THE ORDERED PERIOD OF ACTIVE DUTY IS NOT NECESSARY, IN AN OTHERWISE PROPER SITUATION INVOLVING A DISABILITY OR INJURY INCURRED IN LINE OF DUTY, THE QUESTIONS SUBMITTED ARE ANSWERED IN THE AFFIRMATIVE.