B-157124, JUL. 28, 1965

B-157124: Jul 28, 1965

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ER 54 331 974: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 10. YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 13 DAYS. IT WAS DETERMINED THAT THIS INJURY WAS INCURRED IN LINE OF DUTY AND YOU WERE TREATED BY MILITARY DOCTORS. THAT YOU WERE ABLE TO RETURN TO WORK ON AUGUST 25. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR RIGHT TO CONTINUATION OF PAY BECAUSE OF YOUR INJURY HAD NOT BEEN ESTABLISHED UNDER THE LAW. IS ENTITLED TO THE PAY AND ALLOWANCES. - "/2) HE IS CALLED OR ORDERED TO ACTIVE DUTY. IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.'. WE HAVE HELD THAT THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES DURING A PERIOD OF TEMPORARY DISABILITY RESULTING FROM AN INJURY INCURRED IN LINE OF DUTY IS BASED UPON A MEMBER'S PHYSICAL DISABILITY TO PERFORM MILITARY DUTY RATHER THAN INABILITY TO PERFORM HIS NORMAL CIVILIAN WORK. 43 COMP.

B-157124, JUL. 28, 1965

TO PRIVATE FIRST CLASS DENNIS J. MCINERNEY, ER 54 331 974:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 10, 1965, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED MAY 26, 1965, WHICH DISALLOWED YOUR CLAIM FOR PAY FOR THE PERIOD AUGUST 16 TO 24, 1964, INCIDENT TO YOUR SERVICE AS A MEMBER OF THE ARMY RESERVE.

BY LETTER ORDER NO. 6-440, XIX, HEADQUARTERS, XIX U.S. ARMY CORPS, FORT CHAFFEE, ARKANSAS, DATED JUNE 23, 1964, YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 13 DAYS, PLUS TRAVEL TIME, AT FORT CHAFFEE, ARKANSAS, BEGINNING AUGUST 1, 1964. ON AUGUST 3, 1964, WHILE PARTICIPATING IN ANNUAL FIELD TRAINING, YOU SPRAINED YOUR RIGHT ANKLE GETTING OUT OF A TRUCK. IT WAS DETERMINED THAT THIS INJURY WAS INCURRED IN LINE OF DUTY AND YOU WERE TREATED BY MILITARY DOCTORS. THE RECORD SHOWS THAT ON AUGUST 10, 1964, YOUR UNIT COMMANDER AND THE MEDICAL OFFICER RETURNED YOU TO DUTY WITH THE PROVISION THAT YOU RETURN AUGUST 11, 1964, FOR A CAST CHECK. NO OTHER INFORMATION RELATING TO THE CAST HAS BEEN FURNISHED OTHER THAN YOUR STATEMENTS. YOU REVERTED TO INACTIVE STATUS ON AUGUST 15, 1964.

ON THE BASIS OF A STATEMENT DATED NOVEMBER 20, 1964, BY DR. ANTHONY DELUCCA, A CIVILIAN CHIROPODIST, THAT YOU WERE ABLE TO RETURN TO WORK ON AUGUST 25, 1964, YOU CLAIMED ACTIVE DUTY PAY FOR THE PERIOD AUGUST 16 TO 24, 1964. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR RIGHT TO CONTINUATION OF PAY BECAUSE OF YOUR INJURY HAD NOT BEEN ESTABLISHED UNDER THE LAW.

SECTION 3687, TITLE 10, U.S. CODE, PROVIDES, AS PERTINENT TO YOUR CASE, THAT:

"A MEMBER OF THE ARMY, OTHER THAN OF THE REGULAR ARMY, IS ENTITLED TO THE PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER---

"/2) HE IS CALLED OR ORDERED 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.'

UNDER THAT PROVISION OF LAW, WE HAVE HELD THAT THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES DURING A PERIOD OF TEMPORARY DISABILITY RESULTING FROM AN INJURY INCURRED IN LINE OF DUTY IS BASED UPON A MEMBER'S PHYSICAL DISABILITY TO PERFORM MILITARY DUTY RATHER THAN INABILITY TO PERFORM HIS NORMAL CIVILIAN WORK. 43 COMP. GEN. 733. IT HAS BEEN HELD, ALSO, THAT THE DETERMINATION AS TO THE EXTENT TO WHICH A MEMBER IS DISABLED AND HOW LONG THE DISABILITY CONTINUES IN ANY PARTICULAR CASE IS LEFT TO THE EXERCISE OF SOUND ADMINISTRATIVE JUDGMENT, THAT IS, THE JUDGMENT OF THE APPROPRIATE OFFICIALS OF THE BRANCH OF THE SERVICE INVOLVED. IT APPEARS THAT YOU WERE NEVER HOSPITALIZED ON ACCOUNT OF YOUR INJURY AND THAT YOU REMAINED IN A DUTY STATUS THROUGHOUT YOUR PERIOD OF ACTIVE DUTY FOR TRAINING. WE HAVE BEEN FURNISHED NO DETERMINATION FROM EITHER A MILITARY OR A CIVILIAN PHYSICIAN THAT YOU WERE UNABLE, BECAUSE OF THE INJURY INVOLVED, TO PERFORM YOUR MILITARY DUTIES ON AND AFTER YOUR RELEASE FROM ACTIVE DUTY FOR TRAINING AND RETURN TO YOUR HOME. DR. DELUCCA'S STATEMENT DOES NOT MEET THE REQUIREMENTS OF THE STATUTE BECAUSE IT RELATES ONLY TO YOUR ABILITY TO RETURN TO CIVILIAN WORK ON A PARTICULAR DAY. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, YOU ARE ENTITLED TO BE PAID ACTIVE DUTY PAY FOR A PERIOD AFTER YOUR ACTIVE DUTY FOR TRAINING TERMINATED.

FOR THE REASONS INDICATED ABOVE THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.