B-156403, MAY 11, 1965, 44 COMP. GEN. 701

B-156403: May 11, 1965

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GRATUITIES - SIX MONTHS' DEATH - RESERVISTS KILLED EN ROUTE TO OR FROM PHYSICAL EXAMINATIONS AN INACTIVE NAVAL RESERVIST WHO WAS KILLED IN AN AUTOMOBILE ACCIDENT RETURNING HOME FROM A PHYSICAL EXAMINATION PURSUANT TO ORDERS WHICH DID NOT PLACE THE MEMBER IN AN ACTIVE DUTY STATUS BUT MERELY REQUIRED HIM TO REPORT FOR EXAMINATION TO DETERMINE HIS PHYSICAL QUALIFICATIONS FOR ACTIVE DUTY AT A LATER DATE IN THE AVIATION OFFICER CANDIDATE PROGRAM MAY NOT BE REGARDED AS HAVING BEEN IN AN ACTIVE DUTY STATUS OR ANY OTHER STATUS FOR EXPENSES INCIDENT TO THE MEMBER'S DEATH AND DEATH GRATUITY BENEFITS IN 10 U.S.C. 1475-1480. DEATH BENEFITS ARE NOT PAYABLE IN THE ABSENCE OF A CORRECTION OF RECORD TO SHOW THAT THE MEMBER HAD BEEN ORDERED TO TEMPORARY ACTIVE DUTY FOR A PHYSICAL EXAMINATION INCIDENT TO ORDERS TO ACTIVE DUTY.

B-156403, MAY 11, 1965, 44 COMP. GEN. 701

GRATUITIES - SIX MONTHS' DEATH - RESERVISTS KILLED EN ROUTE TO OR FROM PHYSICAL EXAMINATIONS AN INACTIVE NAVAL RESERVIST WHO WAS KILLED IN AN AUTOMOBILE ACCIDENT RETURNING HOME FROM A PHYSICAL EXAMINATION PURSUANT TO ORDERS WHICH DID NOT PLACE THE MEMBER IN AN ACTIVE DUTY STATUS BUT MERELY REQUIRED HIM TO REPORT FOR EXAMINATION TO DETERMINE HIS PHYSICAL QUALIFICATIONS FOR ACTIVE DUTY AT A LATER DATE IN THE AVIATION OFFICER CANDIDATE PROGRAM MAY NOT BE REGARDED AS HAVING BEEN IN AN ACTIVE DUTY STATUS OR ANY OTHER STATUS FOR EXPENSES INCIDENT TO THE MEMBER'S DEATH AND DEATH GRATUITY BENEFITS IN 10 U.S.C. 1475-1480, 1482, OR 6148, AND, THEREFORE, DEATH BENEFITS ARE NOT PAYABLE IN THE ABSENCE OF A CORRECTION OF RECORD TO SHOW THAT THE MEMBER HAD BEEN ORDERED TO TEMPORARY ACTIVE DUTY FOR A PHYSICAL EXAMINATION INCIDENT TO ORDERS TO ACTIVE DUTY.

TO THE SECRETARY OF THE NAVY, MAY 11, 1965:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 22, 1965, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION AS TO THE ENTITLEMENT OF THE SURVIVORS OF GERALD F. EVERTON, 775 61 49, AOCNCPSA, USNR (R), TO RECEIVE THE DEATH GRATUITY PROVIDED IN 10 U.S.C. 1475-1480 AND EXPENSES INCIDENT TO DEATH PROVIDED IN 10 U.S.C. 1482. THE REQUEST FOR DECISION HAS BEEN ASSIGNED NO. SS-N-835 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

MR. EVERTON, AN INACTIVE RESERVIST, BY LETTER DATED DECEMBER 28, 1964 (A COPY OF WHICH WAS ENCLOSED), WAS DIRECTED TO PROCEED FROM HIS HOME IN TALLAHASSEE, FLORIDA, TO NAVAL AIR RESERVE TRAINING UNIT, NAVAL AIR STATION, JACKSONVILLE, FLORIDA, AND TO REPORT THERE ON DECEMBER 29, 1964, FOR A PHYSICAL EXAMINATION AND SUBSEQUENT TRANSFER, IF FOUND PHYSICALLY QUALIFIED, TO CHIEF OF NAVAL AIR BASIC TRAINING, NAVAL AIR STATION, PENSACOLA, FLORIDA, ON JANUARY 13, 1965. THE PURPOSE OF THE EXAMINATION WAS TO DETERMINE WHETHER EVERTON WAS PHYSICALLY QUALIFIED TO ENTER UPON ACTIVE DUTY ON JANUARY 13, 1965, AT PENSACOLA IN THE AVIATION OFFICER CANDIDATE PROGRAM (AOC).

IT IS STATED THAT EVERTON REPORTED FOR THE PHYSICAL EXAMINATION ON THE MORNING OF DECEMBER 29, 1964, WAS FOUND NOT QUALIFIED FOR THE AVIATION OFFICER CANDIDATE PROGRAM BUT QUALIFIED FOR THE NAVAL AVIATION OBSERVER CANDIDATE PROGRAM (NAOC-1355), AND WAS DIRECTED TO RETURN TO HIS HOME TO AWAIT ACTIVE DUTY ORDERS TO THE LATTER PROGRAM. HE DEPARTED NAVAL AIR STATION, JACKSONVILLE, AT :25 P.M., DECEMBER 29, 1964, AND DIED AS THE RESULT OF AN AUTOMOBILE COLLISION WHICH OCCURRED IN JACKSONVILLE AT APPROXIMATELY 4:50 P.M. ON THE SAME DATE.

IT IS STATED THAT DOUBT AS TO THE LEGALITY OF PAYMENTS TO SURVIVORS IN THIS CASE ARISES DUE TO THE UNCERTAINTY WHETHER EVERTON'S STATUS AT THE TIME OF HIS DEATH WAS SUCH AS TO BRING HIM WITHIN THE PURVIEW OF THE PERTINENT AUTHORIZING STATUTES, INCLUDING 10 U.S.C. 1475-1480, 1482, AND 6148.

THE LETTER OF DECEMBER 28, 1964, DIRECTED EVERTON TO "REPORT TO THE COMMANDING OFFICER OF NARTU, NAS, JACKSONVILLE, FLA ON 29 DECEMBER 1964 FOR PHYSICAL EXAMINATION AND SUBSEQUENT TRANSFER TO THE CHIEF OF NAVAL AIR BASIC TRAINING, NAVAL AIR STATION, PENSACOLA, FLORIDA, IF FOUND TO BE PHYSICALLY QUALIFIED" ON JANUARY 13, 1965. WHILE THE LETTER DENOMINATES THE PHYSICAL EXAMINATION AS "ACTIVE DUTY PHYSICAL," THERE IS NOTHING IN THE COMMUNICATION RECEIVED BY EVERTON WHICH PLACES HIM ON ACTIVE DUTY WHILE TAKING THE PHYSICAL EXAMINATION.

IN DECISION OF DECEMBER 20, 1948, 28 COMP. GEN. 370, WE SAID THAT ORDERS PLACING A MEMBER ON ACTIVE DUTY ARE CONTROLLING AND THAT IT IS WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED TO ADOPT THAT FORM OF ORDER WHICH, IF HE SO DESIRES, WILL PLACE A MEMBER IN AN ACTIVE DUTY STATUS FOR PURPOSES OF UNDERGOING A PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS TO PERFORM ACTIVE DUTY AND DURING THE TRAVEL TIME TO AND FROM THE PLACE OF THE EXAMINATION; IF THE ORDERS PLACE THE MEMBER IN AN ACTIVE DUTY STATUS, WE INDICATED THAT HE WOULD BE ENTITLED TO TRAVEL ALLOWANCE AND PAY WHILE TRAVELING.

IN DECISION OF MAY 14, 1952, 31 COMP. GEN. 597, HOWEVER, WE HELD THAT A NAVAL RESERVE OFFICER ORDERED TO TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS TO PERFORM ACTIVE DUTY BUT WHO WAS INJURED WHILE TRAVELING TO THE TEMPORARY ACTIVE DUTY STATION WHERE HE WAS TO UNDERGO THE PHYSICAL EXAMINATION MAY NOT BE CONSIDERED AS ACTUALLY ,EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY" WITHIN THE MEANING OF STATUTES AUTHORIZING THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES AND DISABILITY RETIREMENT FOR RESERVE PERSONNEL WHO SUFFER DISABILITY FROM INJURY WHILE EMPLOYED ON ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING.

IN DECISION OF FEBRUARY 2, 1954, IN ADAMS V. UNITED STATES, 127 CT.CL. 470, THE COURT OF CLAIMS HELD THAT THE NAVAL RESERVE OFFICER THERE CONCERNED "WAS ON ACTIVE DUTY FROM THE TIME THE JOURNEY BEGAN"WITHIN THE MEANING OF THE STATUTE INVOLVED, AND ENTERED JUDGMENT ACCORDINGLY. DECISION OF MAY 14, 1954, 33 COMP. GEN. 551, WE STATED THAT WE WOULD FOLLOW THE ADAMS DECISION IN DETERMINATIONS OF ELIGIBILITY OF RESERVE MEMBERS OF THE ARMED FORCES TO QUALIFY FOR PAY, ALLOWANCES, AND DEATH GRATUITY, IN CASES WHERE MEMBERS ARE INJURED OR KILLED WHILE TRAVELING TO OR FROM ACTIVE DUTY OR ACTIVE DUTY TRAINING.

BY THE ACT OF AUGUST 1, 1956, CONGRESS ENACTED THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, PUB.L. 881, 84TH CONGRESS, WHICH AUTHORIZED PAYMENT OF THE DEATH GRATUITY IN CASES WHERE A MEMBER OF THE ARMED FORCES DIES, WITHIN 120 DAYS FOLLOWING DISCHARGE OR RELEASE FROM DUTY, AS THE RESULT OF INJURY INCURRED OR AGGRAVATED WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING, INCLUDING THE PERIOD OF AUTHORIZED TRAVEL TO OR FROM ACTIVE DUTY OR ACTIVE DUTY TRAINING OR WHILE PROCEEDING DIRECTLY TO OR RETURNING DIRECTLY FROM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING. THOSE PROVISIONS OF LAW ARE NOW CONTAINED IN 10 U.S.C. 1475-1480. SIMILAR PROVISIONS ARE CONTAINED IN 10 U.S.C. 1481-1482 AUTHORIZING THE PAYMENT OF EXPENSES INCIDENT TO DEATH, AND IN 10 U.S.C. 6148 AUTHORIZING PAYMENT OF DISABILITY AND DEATH BENEFITS.

IN THE PRESENT CASE, HOWEVER, THE MEMBER WAS NOT PLACED IN AN ACTIVE DUTY STATUS OR ANY OTHER STATUS FOR WHICH THE PROVISIONS OF 10 U.S.C. 1475- 1480, 1482, OR 6148 AUTHORIZE THE PAYMENT OF THE BENEFITS THERE AUTHORIZED. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD AND IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF HIS RECORD (10 U.S.C. 1552) TO SHOW THAT HE HAD BEEN ORDERED TO TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION INCIDENT TO ORDERS TO ACTIVE DUTY, THERE IS NO AUTHORITY OF LAW FOR PAYMENT OF THE BENEFITS CONCERNED.