B-148509, MAY 8, 1962

B-148509: May 8, 1962

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XIV UNITED STATES ARMY CORPS: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 28. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER FOR PAY AND ALLOWANCES IN FAVOR OF FIRST LIEUTENANT ROBERT G. IT APPEARS FROM YOUR LETTER AND ENCLOSURES THAT LIEUTENANT BONESTALL WAS INJURED WHILE PERFORMING ANNUAL ACTIVE DUTY FOR TRAINING IN AUGUST 1960. THAT THE RETURN TO DUTY STATUS WAS RECOMMENDED WITH CERTAIN LIMITATIONS INVOLVING THE USE OF THE MEMBER'S UPPER EXTREMITIES. SINCE A SERVICE PHYSICIAN WAS NOT READILY AVAILABLE. THAT THE MEMBER WAS EXAMINED BY A CIVILIAN PHYSICIAL ON APRIL 22. THAT HE WAS UNABLE TO RESUME HIS CIVILIAN OCCUPATION. CONTINUATION OF PAY AND ALLOWANCES WAS GRANTED PROVIDED DISABILITY TO RESUME CIVILIAN PURSUITS WAS DETERMINED BY A SERVICE PHYSICIAN.

B-148509, MAY 8, 1962

TO FINANCE AND ACCOUNTING OFFICER, HEADQUARTERS, XIV UNITED STATES ARMY CORPS:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 28, 1962, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER FOR PAY AND ALLOWANCES IN FAVOR OF FIRST LIEUTENANT ROBERT G. BONESTALL, USAR, SERVICE NUMBER 04041850, IN THE AMOUNT OF $1,314.56, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM OCTOBER 19, 1961, THROUGH JANUARY 3, 1962. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NUMBER A 639 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM YOUR LETTER AND ENCLOSURES THAT LIEUTENANT BONESTALL WAS INJURED WHILE PERFORMING ANNUAL ACTIVE DUTY FOR TRAINING IN AUGUST 1960; THAT HIS INJURY RENDERED HIM UNABLE TO PURSUE HIS CIVILIAN OCCUPATION; THAT MEDICAL BOARD PROCEEDINGS, FITZSIMMONS GENERAL HOSPITAL, MARCH 20, 1961; SHOW THAT THE MEMBER RETURNED TO A DUTY STATUS AT HOME ON MARCH 14, 1961, BUT THAT THE RETURN TO DUTY STATUS WAS RECOMMENDED WITH CERTAIN LIMITATIONS INVOLVING THE USE OF THE MEMBER'S UPPER EXTREMITIES. FURTHER APPEARS THAT BY LETTER DATED MARCH 28, 1961, HEADQUARTERS XIV U.S. ARMY CORPS REQUESTED AUTHORIZATION FOR THE EXAMINATION OF THE MEMBER BY A CIVILIAN PHYSICIAN, SINCE A SERVICE PHYSICIAN WAS NOT READILY AVAILABLE, TO DETERMINE WHEN THE MEMBER COULD RESUME HIS CIVILIAN OCCUPATION; THAT ON MARCH 30, 1961, HEADQUARTERS FIFTH U.S. ARMY APPROVED TREATMENT FROM CIVILIAN SOURCES; THAT THE MEMBER WAS EXAMINED BY A CIVILIAN PHYSICIAL ON APRIL 22, 1961, AND VETERANS ADMINISTRATION PHYSICIANS (FOR CONSULTATION) IN MAY 1961; THAT LOSS OF MOTION AND STRENGTH OF ARM, FOREARM AND HAND STILL EXISTED TO A MARKED DEGREE, AND THAT HE WAS UNABLE TO RESUME HIS CIVILIAN OCCUPATION. IT APPEARS ALSO THAT ON JUNE 29, 1961, CONTINUATION OF PAY AND ALLOWANCES WAS GRANTED PROVIDED DISABILITY TO RESUME CIVILIAN PURSUITS WAS DETERMINED BY A SERVICE PHYSICIAN; THAT ON NOVEMBER 9, 1961, THE MEMBER WAS EXAMINED BY A SERVICE PHYSICIAN WHO CONCLUDED THAT THE MEMBER HAD A MARKED DISABILITY FOR HIS OCCUPATION, PROBABLY PERMANENT, BUT FURTHER REHABILITATIVE MEASURES WERE INDICATED; THAT BY LETTER DATED NOVEMBER 9, 1961, THE VETERANS ADMINISTRATION ADVISED THAT THE MEMBER HAD FILED A CLAIM FOR DISABILITY COMPENSATION, AND THAT ON DECEMBER 15, 1961, HEADQUARTERS FIFTH U.S. ARMY, DIRECTED THE IMMEDIATE DISCONTINUANCE OF PAY AND ALLOWANCE CREDIT. THE CREDIT OF PAY AND ALLOWANCES WAS DISCONTINUED EFFECTIVE JANUARY 3, 1962, AND NO PAYMENT HAS BEEN MADE FOR THE PERIOD OCTOBER 19, 1961, THROUGH JANUARY 3, 1962. IT IS STATED THAT VETERANS ADMINISTRATION PAYMENTS WOULD BE INITIATED UPON TERMINATION OF PAY AND ALLOWANCES. OBSERVATION IS MADE THAT THE MEMBER COULD HAVE DRAWN DISABILITY PAY FROM THE VETERANS ADMINISTRATION AT AN EARLIER DATE, HAD APPLICATION BEEM MADE.

UNDER THE PROVISIONS OF 10 U.S.C. 3687, A MEMBER OF THE ARMY, OTHER THAN THE REGULAR ARMY, IS ENTITLED TO PAY AND ALLOWANCES PROVIDED BY LAW AND REGULATION FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER HE IS CALLED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

PARAGRAPH 20-26C (7) OF AR 37-104 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/7) MEMBER INJURED WHILE ON TRAINING DUTY.

A MEMBER WHO IS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE DUTY PAY AND ALLOWANCES---

1. FOR THE PERIOD OF HOSPITALIZATION, INCLUDING THE PERIOD AFTER HE IS DISCHARGED FROM THE HOSPITAL TO THE DATE PROPER AUTHORITIES DETERMINED HE CONTINUED TO BE DISABLED FOR HIS CIVILIAN PURSUITS.'

IT HAS BEEN HELD THAT THE PAY AND ALLOWANCE AUTHORIZED FOR A MEMBER SUFFERING DISABILITY IN LINE OF DUTY, WHILE ON ACTIVE OR TRAINING DUTY, CONTINUE UNTIL THE DATE THAT PROPER AUTHORITIES DETERMINE THE MEMBER IS ABLE TO RESUME HIS CIVILIAN PURSUITS. 33 COMP. GEN. 411, 415; 34 ID. 75; 36 ID. 692. IN 36 COMP. GEN. 692, IT WAS STATED:

"IT HAS BEEN ASSUMED IN SUCH CASES THAT A DISABILITY PREVENTING RESUMPTION OF NORMAL PURSUITS WOULD LIKEWISE DISABLE THE PERSON CONCERNED FROM PERFORMING MILITARY DUTIES. HOWEVER, IF UPON TERMINATION OF HOSPITALIZATION, IT IS DETERMINED THAT A MEMBER * * * IS ABLE TO PERFORM HIS MILITARY DUTY, SUCH FINDING WOULD APPEAR TO CONSTITUTE A FINAL DECISION IN HIS CASE. IF HIS RIGHT TO CONTINUATION OF PAY AND ALLOWANCES IS TERMINATED AT THAT TIME, SUCH RIGHT APPARENTLY WOULD CORRESPOND AS NEARLY AS IT WOULD BE MADE TO CORRESPOND WITH THE RIGHT OF A MEMBER OF THE REGULAR SERVICE WHO WOULD BE PERFORMING MILITARY DUTY FOR HIS PAY AND ALLOWANCES AFTER A DEGREE OF RECOVERY FROM HIS INJURY WHICH WOULD JUSTIFY A DETERMINATION OF HIS FITNESS FOR MILITARY DUTY.'

IN 37 COMP. GEN. 558, 559, IT WAS STATED:

"THAT STATUTE CONTAINS NO PROVISION INDICATING THE EXACT TIME, DURING THE PERIOD OF CONVALESCENCE FROM A DISABLING INJURY INCURRED IN LINE OF DUTY, WHEN THE RIGHT TO ACTIVE-DUTY PAY AND ALLOWANCES SHOULD BE CONSIDERED TO TERMINATE. THE DETERMINATION AS TO HOW LONG A MEMBER CONTINUES TO BE "DISABLED" APPEARS TO HAVE BEEN LEFT TO THE EXERCISE OF SOUND ADMINISTRATIVE DISCRETION. SINCE THERE ARE VARYING DEGREES OF "TEMPORARILY RESTRICTED DUTY" AND "LIMITED ACTIVITIES" WHICH MAY BE APPLICABLE IN DIFFERENT CASES OF THE TYPE HERE INVOLVED, WHERE A MEMBER IS RETURNED TO A NATIONAL GUARD DUTY STATUS, WE BELIEVE THAT THE MATTER OF HIS RIGHT TO ACTIVE-DUTY PAY AND ALLOWANCES SHOULD BE DECIDED ON THE BASIS OF WHETHER OR NOT HE IS RETURNED TO A DUTY STATUS AND WITHOUT REGARD TO THE AMOUNT OR DEGREE OF RESTRICTED OR LIMITED DUTY IT IS RECOMMENDED THAT HE PERFORM AFTER HIS RETURN.'

WHILE THE RECORD OF LIEUTENANT BONESTELL'S DISABILITY AND PHYSICAL EXAMINATIONS IS SOMEWHAT CONFUSED, IT DOES NOT APPEAR THAT THERE WAS A FINAL DETERMINATION THAT HE WAS ABLE TO PERFORM HIS MILITARY DUTIES OR THAT HE COULD RESUME HIS NORMAL CIVILIAN PURSUITS UNTIL THE DETERMINATION MADE ON DECEMBER 15, 1961, BY HEADQUARTERS FIFTH U.S. ARMY CORPS. THAT DETERMINATION THAT PAY AND ALLOWANCES SHOULD BE DISCONTINUED WAS REACHED ON THE BASIS OF REPORTS AS TO THE OFFICER'S PHYSICAL EXAMINATIONS AND APPEARS TO BE A FINAL DETERMINATION AS TO HIS RIGHTS BY A PROPER ADMINISTRATIVE AUTHORITY.

ACCORDINGLY, THE SUBMITTED VOUCHER IS RETURNED AND MAY BE PAID, PROVIDED THE TERMINAL DATE FOR PAY AND ALLOWANCES IS ADJUSTED TO DECEMBER 15, 1961, AND A COPY OF THIS DECISION ATTACHED.