B-163296, APRIL 8, 1968, 47 COMP. GEN. 531

B-163296: Apr 8, 1968

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PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - RETURN TO CIVILIAN OCCUPATION WHILE DISABLED A NON-REGULAR MEMBER OF THE ARMED FORCES WHO IS DISABLED BY INJURY INCURRED WHILE PERFORMING ACTIVE DUTY TRAINING MAY CONTINUE TO RECEIVE THE PAY AND ALLOWANCES AUTHORIZED BY 37 U.S.C. 204 (G/-/I) WHEN HE RESUMES A CIVILIAN OCCUPATION. NOTWITHSTANDING THE MEMBER IS AWAITING FINAL ACTION ON RETIREMENT PROCEEDINGS. 1968: FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 9. SUBMITTING FOR ADVANCE DECISION THREE QUESTIONS CONCERNING THE PROPER DATE ON WHICH ACTIVE DUTY PAY AND ALLOWANCES SHOULD BE TERMINATED IN THE CASE OF NON REGULAR MEMBERS OF THE ARMED FORCES WHO ARE INJURED WHILE PERFORMING ACTIVE DUTY FOR TRAINING.

B-163296, APRIL 8, 1968, 47 COMP. GEN. 531

PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - RETURN TO CIVILIAN OCCUPATION WHILE DISABLED A NON-REGULAR MEMBER OF THE ARMED FORCES WHO IS DISABLED BY INJURY INCURRED WHILE PERFORMING ACTIVE DUTY TRAINING MAY CONTINUE TO RECEIVE THE PAY AND ALLOWANCES AUTHORIZED BY 37 U.S.C. 204 (G/-/I) WHEN HE RESUMES A CIVILIAN OCCUPATION, UPON THE DETERMINATION, PREFERABLY BY A SERVICE MEDICAL PERSONNEL AND MADE IN ACCORDANCE WITH STANDARDS ESTABLISHED FOR REGULAR MEMBERS, THAT THE INJURY PRECLUDES THE RESERVIST FROM PERFORMING THE NORMAL MILITARY DUTIES OF HIS GRADE OR RANK, NOTWITHSTANDING THE MEMBER IS AWAITING FINAL ACTION ON RETIREMENT PROCEEDINGS, OR THAT HE DID NOT RESUME HIS NORMAL CIVILIAN OCCUPATION BUT BECAUSE OF HIS DISABILITY TOOK OTHER EMPLOYMENT.

TO THE SECRETARY OF DEFENSE, APRIL 8, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 9, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), SUBMITTING FOR ADVANCE DECISION THREE QUESTIONS CONCERNING THE PROPER DATE ON WHICH ACTIVE DUTY PAY AND ALLOWANCES SHOULD BE TERMINATED IN THE CASE OF NON REGULAR MEMBERS OF THE ARMED FORCES WHO ARE INJURED WHILE PERFORMING ACTIVE DUTY FOR TRAINING. THE QUESTIONS AND DISCUSSION RELATING THERETO APPEAR IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 404, A COPY OF WHICH WAS RECEIVED AS AN ENCLOSURE TO THE LETTER OF JANUARY 9, 1968.

THE FOLLOWING QUESTIONS ARE PRESENTED:

1. A MEMBER OF A RESERVE COMPONENT IS DISABLED IN LINE OF DUTY AND ENTITLED TO PAY AND ALLOWANCES AS AUTHORIZED BY 37 U.S.C. 204 (G/-/I). HIS SERVICE HAS DETERMINED THAT HE HAS NOT RECOVERED SUFFICIENTLY TO PERFORM HIS NORMAL MILITARY DUTIES, ALTHOUGH NO RETIREMENT PROCEEDINGS ARE INITIATED OR CONTEMPLATED. DOES HIS ENTITLEMENT TO PAY AND ALLOWANCES CONTINUE IF HE RESUMES HIS NORMAL CIVILIAN OCCUPATION?

2. WOULD THE ANSWER TO QUESTION 1 DIFFER IF RETIREMENT PROCEEDINGS HAD BEEN INITIATED AND THE MEMBER WAS AWAITING FINAL ACTION THEREON?

3. WOULD THE ANSWERS TO QUESTIONS 1 OR 2 DIFFER IF THE MEMBER DID NOT RESUME HIS NORMAL CIVILIAN OCCUPATION, BUT BECAUSE OF DISABILITY, TOOK OTHER EMPLOYMENT?

AS INDICATED IN THE FIRST QUESTION AND IN THE DISCUSSION SET FORTH IN COMMITTEE ACTION NO. 404 THESE QUESTIONS ARISE IN ADMINISTERING THE PROVISIONS OF SUBSECTIONS (G), (H) AND (I), SECTION 204, TITLE 37, U.S. CODE, WHICH ARE AS FOLLOWS:

(G) A MEMBER OF THE ARMY OR THE AIR FORCE (OTHER THAN THE REGULAR ARMY OR THE REGULAR AIR FORCE) IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER---

(1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF TITLE 10) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(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.

(H) A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER HE IS CALLED OR ORDERED TO PERFORM TRAINING UNDER SECTION 502, 503, 504, OR 505 OF TITLE 32---

(1) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

(I) A MEMBER OF THE NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE, FLEET MARINE CORPS RESERVE, OR COAST GUARD RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR NAVY, REGULAR MARINE CORPS, OR REGULAR COAST GUARD, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, UNDER THE SAME CONDITIONS AS THOSE DESCRIBED IN CLAUSES (1) AND (2) OF SUBSECTION (G) OF THIS SECTION.

THE ABOVE-QUOTED STATUTORY PROVISIONS REFLECT THE CONGRESSIONAL PURPOSE INITIATED IN THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 201, 10 U.S.C. 6148, NAMELY, THAT A NON-REGULAR MEMBER WHO IS DISABLED BY INJURY INCURRED IN LINE OF DUTY SHALL RECEIVE THE SAME ACTIVE DUTY PAY AND ALLOWANCES AS PRESCRIBED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR COMPONENT OF HIS UNIFORMED SERVICE OF CORRESPONDING GRADE AND LENGTH OF SERVICE.

IN DECISION OF MAY 19, 1964, 43 COMP. GEN. 733, IT WAS STATED THAT:

THE STATUTE CONTEMPLATES THAT THE SERVICES WILL PROVIDE THE NECESSARY HOSPITAL AND MEDICAL CARE TO INJURED RESERVISTS AND TO EXTEND TO THEM THE SAME TREATMENT, RIGHTS, AND BENEFITS EXTENDED TO REGULARS BY STATUTE OR REGULATION, INCLUDING IF APPROPRIATE THE INSTITUTION OF DISABILITY RETIREMENT PROCEEDINGS, AND, OF COURSE, MAKING THE REQUISITE DETERMINATIONS. AS WE POINTED OUT IN 33 COMP. GEN. 339, 346, THE NECESSARY ADMINISTRATIVE OR OTHER DETERMINATIONS SHOULD BE MADE WITH REASONABLE PROMPTNESS FOLLOWING THE INJURY.

IT WAS ALSO STATED IN THE DECISION OF MAY 19, 1964:

IT SEEMS REASONABLY CLEAR THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER THE ABOVE-CITED PROVISIONS OF LAW WHILE THE MEMBER CONCERNED IS TEMPORARILY DISABLED BY INJURY INCURRED IN LINE OF DUTY, IS BASED UPON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUIT, AND THAT THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE EXERCISE OF A SOUND ADMINISTRATIVE JUDGMENT. IF, DESPITE HIS INJURY, THE SERVICE CONCERNED SHOULD ACTUALLY RETURN HIM TO A LIMITED OR RESTRICTED RESERVE DUTY STATUS WHERE HE WOULD BE SUBJECT TO BEING CALLED UPON TO PERFORM SUCH DUTY AS HIS PHYSICAL CONDITION WOULD PERMIT, WE WOULD REGARD THE CONTINUED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IN SUCH CIRCUMSTANCES OF BEING TOO DOUBTFUL TO WARRANT OUR APPROVAL OF SUCH PAYMENT. 37 COMP. GEN. 558. IN EACH CASE, THE SERVICE CONCERNED SHOULD DETERMINE WHEN THE INJURED RESERVIST RECOVERS SUFFICIENTLY TO BE FIT TO PERFORM HIS NORMAL MILITARY DUTIES. IN MAKING THAT DETERMINATION, THE SERVICE SHOULD APPLY THE SAME STANDARDS IT WOULD APPLY IN THE CASE OF A MEMBER OF THE REGULAR SERVICE.

IT APPEARS FROM THE DISCUSSION AND THE QUESTIONS POSED THAT THERE IS DOUBT AS TO THE PROPER ADMINISTRATIVE ACTION TO BE TAKEN IN CERTAIN CASES IN WHICH THE PROVISIONS OF SUBSECTIONS (G), (H) OR (I) OF SECTION 204, TITLE 37, U.S. CODE, ARE APPLICABLE. WE AGREE WITH THE COMMITTEE ACTION STATEMENTS THAT THE RETURN OF AN INJURED RESERVIST OR NON-REGULAR TO A LIMITED OR RESTRICTED DUTY STATUS TO PERFORM SUCH DUTY AS HIS PHYSICAL CONDITION PERMITS WOULD BE INCONSISTENT WITH THE DISABILITY STATUS CONTEMPLATED IN SUBSECTIONS (G), (H) AND (I).

WHETHER THE RESUMPTION OF HIS NORMAL CIVILIAN OCCUPATION BY THE INJURED RESERVIST OR NON-REGULAR CONCERNED LIKEWISE SHOULD BE VIEWEDAS INCONSISTENT SO AS TO RAISE A DOUBT AS TO THE PROPRIETY OF CONTINUATION OF ACTIVE DUTY PAY AND ALLOWANCES IS ANOTHER MATTER. AS AN EXAMPLE OF THE LATTER SITUATION QUESTION 1 IS STATED TO HAVE BEEN FRAMED TO COVER A CASE IN WHICH THE MEMBER HAS SUFFERED A SEVERE FRACTURE OF HIS LEG IN LINE OF DUTY. HE IS ON CRUTCHES AND HIS SERVICE HAS DETERMINED THAT HE HAS NOT RECOVERED SUFFICIENTLY TO PERFORM HIS NORMAL MILITARY DUTIES. THE MATTER IS FURTHER DISCUSSED AS FOLLOWS:

BUT, SUPPOSE HE IS A SALESMAN WHO NORMALLY ATTENDS TO HIS SELLING BUSINESS FROM A HOME OFFICE BY TELEPHONE, SO THAT WITH LITTLE INCONVENIENCE HE IS ABLE TO RESUME HIS NORMAL CIVILIAN OCCUPATION. OR, SUPPOSE HE IS AN OFFICE WORKER WHO IS SOMEHOW ABLE TO COMMUTE TO HIS OFFICE DESPITE HIS INJURY AND CARRY ON HIS NORMAL CIVILIAN OCCUPATION PART TIME. IT IS DIFFICULT TO APPLY AN ANSWER CATEGORICALLY NEGATIVE TO QUESTION 1 BECAUSE OF APPARENT INJUSTICES IN SPECIAL CASES WHICH COULD CONCEIVABLY ARISE AND WHICH ARE AN IMPORTANT CONSIDERATION. AN INJURED MEMBER COULD ATTEMPT RESUMPTION OF HIS NORMAL CIVILIAN OCCUPATION ON A PART TIME BASIS ONLY TO FIND AFTER A FEW DAYS THAT HE WAS NOT PHYSICALLY ABLE TO DO THE WORK. THE RESUMPTION, ALTHOUGH TEMPORARY, WOULD SEEMINGLY AFFECT HIS ENTITLEMENT TO MILITARY PAY AND ALLOWANCES FOR THE DURATION OF HIS DISABILITY. THE DIFFICULTY OF FORMULATING A PRACTICABLE RULE WHICH WOULD OPERATE EQUITABLY IN ALL CIRCUMSTANCES IS READILY APPARENT.

IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, IT WAS STATED WITH RESPECT TO THE PROVISIONS OF THE ACT OF JUNE 20, 1949 (NOW FOUND IN SUBSECTIONS (G), (H) AND (I), SECTION 204, TITLE 37, U.S. CODE) THAT:

APPARENTLY, INSOFAR AS HERE PERTINENT, THE INTENT WAS TO PLACE RESERVISTS COVERED BY THE SET IN A STATUS COMPARABLE TO THAT OF MEMBERS OF THE REGULAR SERVICE WHO, WHEN THEY SUFFER DISABILITY IN LINE OF DUTY FROM INJURY, ARE AUTHORIZED TO CONTINUE IN RECEIPT OF THEIR PAY AND ALLOWANCES WHILE HOSPITALIZED AS A RESULT THEREOF AND ALSO WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INITIATED.

MAKING SPECIFIC REFERENCE TO THE DECISION OF JUNE 19, 1950, IT WAS STATED IN DECISION OF AUGUST 6, 1956, 36 COMP. GEN. 87:

THE CONCLUSION IN THAT DECISION THAT AN INJURED RESERVE MEMBER IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES WHILE AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS WAS GROUNDED ON THE PROVISIONS OF THE ACT OF JUNE 20, 1949, ASSIMILATING THE DEATH AND DISABILITY BENEFITS OF RESERVISTS TO THOSE OF REGULAR MEMBERS. THE LATTER INDIVIDUALS, WHO SUFFER DISABILITY IN LINE OF DUTY, CONTINUE IN RECEIPT OF PAY AND ALLOWANCES WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED. HOWEVER, MEMBERS OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS HAVE NOT BEEN CONSIDERED AS HAVING THE RIGHT OR OPPORTUNITY TO PURSUE FULL-TIME CIVILIAN OCCUPATIONS WHILE AWAITING RETIREMENT. THE LAW INTENDS PARITY OF MONETARY BENEFITS, AS NEARLY AS POSSIBLE, BETWEEN THE RESERVIST AND THE REGULAR; IT DOES NOT INTEND THAT THE FORMER MAY BE ABLE TO RECEIVE INCOME FROM TWO OCCUPATIONS, MILITARY OR NAVAL, AND CIVILIAN, WHILE THE LATTER, UNDER COMPARABLE CIRCUMSTANCES, IS RESTRICTED TO HIS MILITARY OR NAVAL PAY. HENCE, THE LAW DOES NOT CONTEMPLATE THE GRANTING OF ACTIVE-DUTY PAY AND ALLOWANCES, WHILE AWAITING ACTION ON RETIREMENT PROCEEDINGS, IF THE MEMBER IS NOT DISABLED FOR THE PURSUIT OF HIS CIVILIAN OCCUPATION.

MEMBERS OF THE REGULAR COMPONENTS OF THE MILITARY SERVICES ORDINARILY DO NOT HAVE A CIVILIAN OCCUPATION AND, IN NORMAL CIRCUMSTANCES, THEY PERFORM NO CIVILIAN DUTIES FOR HIRE. HENCE, THE DIFFICULTY, IF NOT THE IMPOSSIBILITY, OF EVOLVING A RULE OF COMPARABILITY WITH RESPECT TO MONETARY BENEFITS BETWEEN RESERVISTS AND MEMBERS OF THE REGULAR SERVICES IN DISABILITY SITUATIONS SUCH AS ARE HERE INVOLVED BECOMES APPARENT. WHILE IT WAS AT ONE TIME BELIEVED THAT THE LAW DOES NOT CONTEMPLATE THE GRANTING OF ACTIVE DUTY PAY AND ALLOWANCES WHILE AWAITING ACTION ON RETIREMENT PROCEEDINGS IF THE MEMBER IS NOT DISABLED FROM THE PURSUIT OF HIS CIVILIAN OCCUPATION, RECOGNITION OF THE FACT THAT THE WIDE VARIETY OF CIVILIAN OCCUPATIONS OFTEN MADE POSSIBLE THE PERFORMANCE OF ALL OR A PART OF THE DUTIES OF SUCH OCCUPATIONS WITH VARYING DEGREES OF COMPLETENESS BY A RESERVIST WHO WAS PHYSICALLY DISABLED FROM PERFORMING HIS MILITARY DUTIES, SUGGESTED A REVISION OF THE RULES APPLICABLE IN SUCH CASES.

ACCORDINGLY, IT WAS CONCLUDED IN OUR DECISION OF MAY 19, 1964, THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES IN SUCH DISABILITY SITUATIONS SHOULD BE BASED ON PHYSICAL DISABILITY TO PERFORM MILITARY DUTIES, NOT NORMAL CIVILIAN PURSUITS. THUS, ENTITLEMENT OF A SERVICE DISABLED NON- REGULAR MEMBER TO ACTIVE DUTY PAY AND ALLOWANCES UNDER AUTHORITY OF SUBSECTIONS (G), (H) OR (I) DEPENDS UPON A DETERMINATION BY THE UNIFORMED SERVICE CONCERNED THAT SUCH INJURY PRECLUDES THE INJURED PERSON FROM PERFORMING THE NORMAL MILITARY DUTIES OF HIS GRADE OR RANK. SUCH AN ADMINISTRATIVE DETERMINATION SHOULD, WHENEVER POSSIBLE, BE BASED UPON THE FINDINGS AND CONCLUSIONS OF SERVICE MEDICAL PERSONNEL (AS DISTINGUISHED FROM CIVILIAN PHYSICIANS) CLEARLY SETTING FORTH THE PERIOD OF INABILITY TO PERFORM NORMAL MILITARY DUTIES BECAUSE OF THAT PARTICULAR DISABILITY. ALSO, IT SHOULD REASONABLY APPEAR THAT IN ARRIVING AT SUCH MEDICAL FINDINGS AND ULTIMATE ADMINISTRATIVE DETERMINATION IN THE MATTER THAT THE SAME STANDARDS WERE FOLLOWED THAT THE UNIFORMED SERVICE CONCERNED WOULD HAVE APPLIED IN SIMILAR CIRCUMSTANCES IF THE DISABLED NON-REGULAR MEMBER HAD BEEN A REGULAR MEMBER OF THAT UNIFORMED SERVICE.

SERVICE MEDICAL PROCEEDINGS AND FINAL ADMINISTRATIVE DETERMINATIONS IN THE CASE OF A DISABLED NON-REGULAR MEMBER SHOULD BE MADE PROMPTLY THUS AVOIDING AS MUCH AS POSSIBLE PERIODS DURING WHICH THE STATUS OF THE RESERVIST IS UNCERTAIN AND HIS RIGHT TO PAY AND ALLOWANCES IS IN DOUBT. ONLY THE MOST DILIGENT ATTENTION TO SUCH MATTERS CAN PRODUCE AN APPLICATION OF THE LAW WHICH WILL RESULT IN FAIRNESS TO BOTH THE RESERVIST AND THE GOVERNMENT.

UNDER THE GUIDE LINES ABOVE SET FORTH THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE AND QUESTIONS 2 AND 3 ARE ANSWERED IN THE NEGATIVE.