B-158753, MAY 31, 1966, 45 COMP. GEN. 740

B-158753: May 31, 1966

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RETURN A MEMBER OF THE UNITED STATES ARMY RESERVE WHO WAS STRUCK AND KILLED BY AN AUTOMOBILE BEFORE REPORTING FOR INACTIVE DUTY TRAINING BUT SUBSEQUENT TO ARRIVING AT THE RESERVE CENTER. WITH THE KNOWLEDGE AND CONSENT OF HIS COMMANDING OFFICER TO PREPARE FOR A DRILL CLASS HE WAS TO INSTRUCT. WAS IN A STATUS THAT ENTITLES HIS ELIGIBLE SURVIVORS TO THE DEATH GRATUITY PAYMENT PRESCRIBED BY 10 U.S.C. 1475 (A) (3) WHEN A MEMBER DIES FROM INJURIES RECEIVED "WHILE TRAVELING DIRECTLY" TO INACTIVE DUTY TRAINING. THE MEMBER HAVING COMPLETED TRAVEL TO HIS INACTIVE DUTY TRAINING STATION AT THE RESERVE CENTER EARLIER THAN WAS NECESSARY TO REPORT FOR SCHEDULED DUTIES WAS FREE TO GO TO THE DAIRY BAR ACROSS THE STREET FROM THE CENTER.

B-158753, MAY 31, 1966, 45 COMP. GEN. 740

GRATUITIES - SIX MONTHS' DEATH - INACTIVE DUTY TRAINING - DEATH WHILE TRAVELING TO DUTY STATION - EARLY ARRIVAL, DEPARTURE, AND RETURN A MEMBER OF THE UNITED STATES ARMY RESERVE WHO WAS STRUCK AND KILLED BY AN AUTOMOBILE BEFORE REPORTING FOR INACTIVE DUTY TRAINING BUT SUBSEQUENT TO ARRIVING AT THE RESERVE CENTER, WITH THE KNOWLEDGE AND CONSENT OF HIS COMMANDING OFFICER TO PREPARE FOR A DRILL CLASS HE WAS TO INSTRUCT, LEAVING TO CROSS THE STREET TO A DAIRY BAR, WAS IN A STATUS THAT ENTITLES HIS ELIGIBLE SURVIVORS TO THE DEATH GRATUITY PAYMENT PRESCRIBED BY 10 U.S.C. 1475 (A) (3) WHEN A MEMBER DIES FROM INJURIES RECEIVED "WHILE TRAVELING DIRECTLY" TO INACTIVE DUTY TRAINING, THE MEMBER HAVING COMPLETED TRAVEL TO HIS INACTIVE DUTY TRAINING STATION AT THE RESERVE CENTER EARLIER THAN WAS NECESSARY TO REPORT FOR SCHEDULED DUTIES WAS FREE TO GO TO THE DAIRY BAR ACROSS THE STREET FROM THE CENTER; THEREFORE, IT CANNOT BE CONCLUDED AS A MATTER OF LAW THAT HE WAS NOT "TRAVELING DIRECTLY" TO HIS INACTIVE DUTY TRAINING STATION WITHIN THE MEANING OF SECTION 1475 (A) (3) WHEN HE RE-CROSSED THE STREET TO RETURN TO THE CENTER. MILITARY PERSONNEL - REMAINS - BURIAL EXPENSES UPON THE DEATH OF AN ARMY RESERVIST STRUCK AND KILLED BY AN AUTOMOBILE WHILE RETURNING TO THE RESERVE CENTER TO REPORT FOR INACTIVE DUTY FOLLOWING AN EARLY ARRIVAL TO PREPARE FOR A DRILL CLASS, LEAVING TO GO TO A DAIRY BAR LOCATED ACROSS THE STREET FROM THE CENTER, THE BURIAL EXPENSES PRESCRIBED BY 10 U.S.C. 1481 (A) (2) (C) WHEN A RESERVIST DIES WHILE "ON AUTHORIZED INACTIVE DUTY TRAINING" MAY NOT BE PAID, THE MEMBER HAVING LEFT THE PLACE WHERE HIS SCHEDULED INACTIVE DUTY TRAINING WAS TO BE PERFORMED BEFORE BEING MUSTERED IN FOR DUTY, THE REQUIREMENTS OF SECTION 1481 (A) (2) HAVE NOT BEEN MET, AND THE STATUS OF THE MEMBER AT THE TIME OF HIS DEATH DOES NOT ENTITLE HIS NEXT OF KIN TO REIMBURSEMENT FOR BURIAL EXPENSES.

TO THE SECRETARY OF THE ARMY, MAY 31, 1966:

BY LETTER DATED MARCH 10, 1966, THE CHIEF, CASUALTY BRANCH, OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, REQUESTED A DECISION CONCERNING THE PROPRIETY OF PAYMENT OF DEATH GRATUITY UNDER THE PROVISIONS OF 10 U.S.C. 1475 ET SEQ., AND BURIAL EXPENSES, IN CONNECTION WITH THE DEATH OF A MEMBER OF THE UNITED STATES ARMY RESERVE WHO HAD BEEN DIRECTED TO PERFORM INACTIVE DUTY TRAINING. SUCH LETTER WILL BE VIEWED AS A REQUEST FOR AN ADVANCE DECISION UNDER 31 U.S.C. 74 AND ANSWERED ACCORDINGLY.

ACCORDING TO THE INFORMATION PROVIDED THIS OFFICE, SERGEANT BOBBY L. DILLARD, ER 24525230, WAS TO REPORT FOR A RESERVE DRILL WITH HIS UNIT AT THE RESERVE CENTER, TALLASSEE, ALABAMA, AT 7:15 M., ON SEPTEMBER 27, 1965, WHERE HE WAS SCHEDULED TO INSTRUCT A CLASS AT THE DRILL. IT APPEARS THAT HE ARRIVED AT THE CENTER APPROXIMATELY 1 HOUR BEFORE HIS INSTRUCTION DUTIES WERE TO BEGIN, FOR THE PURPOSE OF PREPARING FOR A FUTURE DRILL WHICH HE WAS ALSO TO CONDUCT. THIS ACTIVITY WAS WITH THE KNOWLEDGE AND CONSENT OF HIS COMMANDING OFFICER, AS SUCH PREPARATION REQUIRED THE USE OF CERTAIN REFERENCE MATERIALS AVAILABLE ONLY IN THE RESERVE CENTER, IT APPEARING THAT THE DRILLS WERE CONDUCTED IN SUCH A MANNER AS TO PREVENT ADVANCE PREPARATION FOR FUTURE DRILLS DURING A DRILL PERIOD.

INFORMATION FURNISHED INDICATES THAT AFTER SPENDING APPROXIMATELY 15 MINUTES AT THE CENTER, SERGEANT DILLARD WALKED ACROSS THE STREET TO A DAIRY BAR. WHILE RECROSSING THE STREET A SHORT TIME LATER, ON HIS WAY BACK TO THE CENTER, HE WAS STRUCK AND KILLED BY AN AUTOMOBILE BEING OPERATED AT A HIGH RATE OF SPEED.

THE BASIC QUESTION TO BE DECIDED IS WHETHER THE MEMBER WAS IN SUCH A STATUS AT THE TIME OF HIS DEATH AS TO ENTITLE HIS NEXT OF KIN TO THE DEATH GRATUITY UNDER THE PROVISIONS OF 10 U.S.C. 1475. SUBSECTION (A) (3) OF THAT SECTION AUTHORIZES PAYMENT OF A DEATH GRATUITY WHEN THE MEMBER INVOLVED DIES FROM INJURIES RECEIVED "WHILE TRAVELING DIRECTLY TO * * * INACTIVE DUTY TRAINING.'

HAVING COMPLETED HIS TRAVEL TO HIS INACTIVE DUTY TRAINING STATION AT THE RESERVE CENTER AT AN EARLIER TIME THAN WAS NECESSARY IN ORDER TO REPORT FOR HIS SCHEDULED DUTIES, THERE WAS NO NEED FOR SERGEANT DILLARD TO REMAIN AT THAT PLACE AND HE WAS FREE TO LEAVE IF HE ELECTED TO DO SO. SINCE THE DAIRY BAR WAS LOCATED ACROSS THE STREET FROM THE CENTER AND HE DECIDED TO GO TO THAT PLACE, IT CANNOT BE CONCLUDED AS A MATTER OF LAW THAT HE WAS NOT "TRAVELING DIRECTLY" TO HIS INACTIVE DUTY TRAINING STATION WITHIN THE MEANING OF THOSE WORDS AS USED IN THE STATUTE WHEN HE WAS RECROSSING THE STREET IN RETURNING TO THE CENTER.

ACCORDINGLY, IT IS CONCLUDED THAT SERGEANT DILLARD WAS IN A STATUS ENTITLING HIS ELIGIBLE SURVIVOR TO THE DEATH GRATUITY UNDER 10 U.S.C. 1475 (A) (3).

WITH RESPECT TO THE MATTER OF BURIAL EXPENSES, THE EXPENSES COVERED BY 10 U.S.C. 1482 ARE AUTHORIZED TO BE PAID UNDER SECTION 1481 (A) (2) IN CONNECTION WITH THE DEATH OF A RESERVE WHO DIES "WHILE (A) ON ACTIVE DUTY, (B) PERFORMING AUTHORIZED TRAVEL TO OR FROM THE DUTY, (C) ON AUTHORIZED INACTIVE DUTY TRAINING * * *.' INACTIVE DUTY TRAINING HAS BEEN VIEWED BY THIS OFFICE AS COMMENCING WHEN THE RESERVE IS MUSTERED IN FOR SUCH DUTY, 38 COMP. GEN. 841, 43 COMP. GEN. 412. BLACK'S LAW DICTIONARY, THIRD EDITION, DEFINES "MUSTER" AS ASSEMBLING "TOGETHER TROOPS AND THEIR ARMS, WHETHER FOR INSPECTION, DRILL, OR SERVICE IN THE FIELD.' SINCE SERGEANT DILLARD LEFT THE PLACE WHERE HIS SCHEDULED INACTIVE DUTY TRAINING WAS TO BE PERFORMED, BEFORE REPORTING FOR SUCH DUTY, THERE APPEARS TO BE NO BASIS FOR CONCLUDING THAT HE WAS MUSTERED IN FOR THAT DUTY BEFORE HIS DEATH AND HIS SITUATION THUS DOES NOT MEET THE REQUIREMENTS OF SECTION 1481 (A) (2). AT THE TIME OF HIS DEATH HE WAS NOT IN A STATUS WHICH ENTITLED HIS NEXT OF KIN TO ANY REIMBURSEMENT OF HIS BURIAL EXPENSES.