B-155974, MAR. 1, 1965, 44 COMP. GEN. 521

B-155974: Mar 1, 1965

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ETC. - PHYSICAL EXAMINATION AN ENLISTED RESERVIST IN AN INACTIVE STATUS WHO TRAVELED AT HIS OWN EXPENSE INCIDENT TO ORDERS TO REPORT FOR 1 DAY OF "ACTIVE DUTY FOR TRAINING" FOR THE PURPOSE OF A PHYSICAL EVALUATION TO DETERMINE HIS FITNESS FOR RETENTION IN THE RESERVE MAY NOT HAVE THE COMPLIANCE WITH THE ORDERS REGARDED AS "ACTIVE DUTY" FOR ENTITLEMENT TO PAY AND ALLOWANCES WHERE THE MEMBER PERFORMED NO ACTIVE DUTY AND NONE WAS CONTEMPLATED. THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES AND POINT CREDIT FOR RETIREMENT. THORN WAS DIRECTED TO REPORT TO THE COAST GUARD REPRESENTATIVE. TRAVEL AT HIS OWN EXPENSE WITH REIMBURSEMENT IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS WAS AUTHORIZED FROM RICHMOND.

B-155974, MAR. 1, 1965, 44 COMP. GEN. 521

PAY - ACTIVE DUTY - HOSPITALIZATION, MEDICAL TREATMENT, ETC. - PHYSICAL EXAMINATION AN ENLISTED RESERVIST IN AN INACTIVE STATUS WHO TRAVELED AT HIS OWN EXPENSE INCIDENT TO ORDERS TO REPORT FOR 1 DAY OF "ACTIVE DUTY FOR TRAINING" FOR THE PURPOSE OF A PHYSICAL EVALUATION TO DETERMINE HIS FITNESS FOR RETENTION IN THE RESERVE MAY NOT HAVE THE COMPLIANCE WITH THE ORDERS REGARDED AS "ACTIVE DUTY" FOR ENTITLEMENT TO PAY AND ALLOWANCES WHERE THE MEMBER PERFORMED NO ACTIVE DUTY AND NONE WAS CONTEMPLATED; THEREFORE, THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES AND POINT CREDIT FOR RETIREMENT.

TO R. H. MILLS, UNITED STATES COAST GUARD, MARCH 1, 1965:

BY INDORSEMENT DATED JANUARY 18, 1965, THE CHIEF, PAYMENTS AND CLAIMS DIVISION, UNITED STATES COAST GUARD, FORWARDED YOUR LETTER OF THE SAME DATE, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT OF THE CLAIM OF JAMES L. THORN (2017-169), BM3, USCGR-R, FOR PAY AND ALLOWANCES FOR NOVEMBER 9, 1964.

BY ACTIVE DUTY FOR TRAINING ORDERS OF THE COMMANDER, FIFTH COAST GUARD DISTRICT, DATED OCTOBER 27, 1964, MR. THORN WAS DIRECTED TO REPORT TO THE COAST GUARD REPRESENTATIVE, U.S. PUBLIC HEALTH SERVICE HOSPITAL, HAMPTON BOULEVARD, NORFOLK, VIRGINIA, PRIOR TO 8 A.M., NOVEMBER 9, 1964, FOR ONE DAY OF"ACTIVE DUTY FOR TRAINING FOR THE PURPOSE OF PHYSICAL EVALUATION. TRAVEL AT HIS OWN EXPENSE WITH REIMBURSEMENT IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS WAS AUTHORIZED FROM RICHMOND, VIRGINIA, TO NORFOLK, VIRGINIA, AND RETURN. THE RECORD SHOWS THAT IN COMPLIANCE WITH HIS ORDERS, MR. THORN REPORTED AS DIRECTED AND RETURNED HOME AT 6 P.M., NOVEMBER 9, 1964.

SINCE MR. THORN WAS A MEMBER OF THE RESERVE IN AN INACTIVE STATUS, QUESTION IS RAISED AS TO WHETHER HIS COMPLIANCE WITH THE ORDERS FOR ACTIVE DUTY FOR TRAINING RESULTED IN A RIGHT TO PAY AND ALLOWANCES AND POINT CREDIT FOR RETIREMENT, THE SOLE PURPOSE OF THE ORDERS BEING A PHYSICAL EXAMINATION TO DETERMINE HIS PHYSICAL FITNESS FOR RETENTION IN THE RESERVE.

WE HAVE RECEIVED INFORMAL ADVICE THAT MR. THORN ENLISTED IN THE COAST GUARD RESERVE FOR EIGHT YEARS IN 1959; THAT HE SUFFERED INJURIES IN AN AUTOMOBILE ACCIDENT ON JULY 12, 1964; THAT HIS CIVILIAN DOCTOR CERTIFIED HIM TO BE INCAPABLE OF PERFORMING ACTIVE DUTY; THAT HIS CIVILIAN DOCTOR CERTIFIED HIM TO BE INCAPABLE OF PERFORMING ACTIVE DUTY; THAT ON NOVEMBER 9, 1964, HE WAS FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE DUTY; AND THAT THE RECOMMENDATION OF THE COMMANDER, FIFTH COAST GUARD DISTRICT, THAT HE BE ALLOWED SIX MONTHS IN WHICH TO CORRECT HIS PHYSICAL DEFECTS BY MEDICAL TREATMENT, WAS APPROVED BY THE COMMANDANT WITH THE PROVISO THAT DURING THAT PERIOD OF TIME THORN WOULD BE SUBJECT ONLY TO INACTIVE DUTY FOR TRAINING.

SECTION 755, TITLE 14, U.S.C. (SUPP. IV), PROVIDES IN PART AS FOLLOWS:

(A) PERSONNEL OF THE RESERVE WHEN ENGAGED ON ACTIVE DUTY, ON ACTIVE DUTY WHILE UNDERGOING TRAINING, ON TRAINING DUTY WITH PAY, OR WHEN ENGAGED IN AUTHORIZED TRAVEL TO OR FROM SUCH DUTY, SHALL RECEIVE THE SAME BENEFITS AS PROVIDED FOR PERSONNEL OF THE NAVAL RESERVE OF CORRESPONDING GRADE, RATING, AND LENGTH OF SERVICE.

WE FIND NOTHING IN THE LAW OR REGULATIONS (37 U.S.C. 101 (18), 33 CFR 8.1004 AND 33 CFR 8.1401-8.1413) WHICH SUGGESTS IN ANY WAY THAT THE CALLING UP OF A RESERVIST FOR THE SOLE PURPOSE OF PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR RETENTION IN THE RESERVE CONSTITUTES "ACTIVE DUTY" FOR THE PURPOSE OF ENTITLEMENT TO BASIC PAY AND ALLOWANCES AND NECESSARY TRAVEL IN CONNECTION THEREWITH. ON THE CONTRARY, APPLICABLE REGULATIONS APPEAR TO CONTEMPLATE THAT RESERVISTS NOT ON ACTIVE DUTY BE REQUIRED TO TAKE A PHYSICAL EXAMINATION EITHER APART FROM OR AS A PART OF ACTUAL ORDERED ACTIVE DUTY. 33 CFR 8.1404/A), 8.1406/A) (3) AND 8.1508/A).

WE HELD IN 21 COMP. GEN. 781 THAT UNDER A LAW SIMILAR TO 14 U.S.C. 755 AN INACTIVE RESERVE OFFICER WAS NOT ENTITLED TO PAY AND ALLOWANCES UNDER ORDERS ASSIGNING HIM TO "ACTIVE DUTY" TO DETERMINE HIS PHYSICAL FITNESS FOR RETENTION IN THE MARINE CORPS RESERVE. SEE ALSO 26 COMP. GEN. 107; 27 ID. 490, AND DECISIONS THERE CITED. SINCE MR. THORN PERFORMED NO ACTIVE DUTY AND NO ACTIVE DUTY WAS CONTEMPLATED (IN FACT HE WAS DETERMINED TO BE UNFIT TO PERFORM ACTIVE DUTY), THERE IS NO AUTHORITY OF LAW UNDER WHICH HE IS ENTITLED TO PAY AND ALLOWANCES FOR NOVEMBER 9, 1964.

ACCORDINGLY, NO AMOUNT IS FOUND DUE MR. THORN AND HE MAY NOT BE ALLOWED ANY POINT CREDIT FOR RETIREMENT IN CONNECTION WITH THE ACCOMPLISHMENT OF HIS PHYSICAL EVALUATION.