B-163755, JUNE 7, 1968, 47 COMP. GEN. 716

B-163755, JUNE 7, 1968, 47 COMP. GEN. 716

PAY - RETIRED - DISABILITY - BASIC PAY REQUIREMENT FOR ENTITLEMENT AN ENLISTED MAN RELEASED FROM ACTIVE DUTY FOR TRAINING ON APRIL 22, 1966, AS NOT FIT FOR FULL DUTY DUE TO AN ANKLE INJURY INCURRED ON APRIL 15 IN LINE OF DUTY WHO FAILED TO REPORT FOR FOLLOW-UP MEDICAL TREATMENT AND PERFORMED REGULAR INACTIVE DUTY TRAINING DRILLS PRIOR TO PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST ON DECEMBER 15, 1967 UNDER 10 U.S.C. 1202, MAY NOT BE PAID DISABILITY RETIRED PAY UNDER 10 U.S.C. CHAPTER 61, THE RIGHT OF THE NON-REGULAR MEMBER TO PAY AND ALLOWANCES NOT HAVING BEEN ESTABLISHED BY A SHOWING OF THE CONTINUED EXISTENCE OF A DISABILITY, THE REQUISITE OF A BASIC PAY STATUS WAS ABSENT AT THE TIME THE DISABILITY DETERMINATION WAS MADE.

TO C. C. GORDON, UNITED STATES COAST GUARD, JUNE 7, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 29, 1968, REQUESTING A DECISION WHETHER FIREMAN FORD M. MEYERS, 2065 087, USCGR, MAY BE PAID DISABILITY RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 61, TITLE 10, U.S.C.

FIREMAN MEYERS ENLISTED IN THE U.S. COAST GUARD RESERVE ON OCTOBER 7, 1965, FOR A PERIOD OF 6 YEARS. ON OCTOBER 25, 1965, HE WAS ASSIGNED INITIAL 6 MONTHS ACTIVE DUTY FOR TRAINING. ON APRIL 15, 1966, HE INJURED HIS ANKLE, WHICH WAS DETERMINED TO HAVE BEEN INCURRED IN THE LINE OF DUTY AND NOT AS A RESULT OF MISCONDUCT. HE WAS RELEASED FROM ACTIVE DUTY FOR TRAINING ON APRIL 22, 1966, FOLLOWING A RECOMMENDATION OF AN INVESTIGATING OFFICER THAT HE BE RELEASED FROM ACTIVE DUTY FOR TRAINING AS NOT FIT FOR DUTY. AN ENDORSEMENT ON THE ORDERS RELEASING FIREMAN MEYERS FROM ACTIVE DUTY STATED THAT HE WAS NOT PHYSICALLY FIT FOR FULL DUTY, ALTHOUGH FIT FOR TRAVEL TO HIS HOME.

YOU SAY THAT ADMINISTRATIVE REGULATIONS OF THE COAST GUARD REQUIRE ENDORSEMENT OF ACTIVE DUTY FOR TRAINING ORDERS TO SHOW TERMINATION OF DUTY AND THAT CONTINUED TREATMENT AND/OR HOSPITALIZATION IS BEING RENDERED PURSUANT TO 10 U.S.C. 6148; THAT A NOTICE OF ELIGIBILITY FOR BENEFITS THERE PROVIDED FOR WAS ISSUED ON NOVEMBER 3, 1966; AND THAT THE RECORD DOES NOT SHOW THE DATE HOSPITALIZATION WAS TERMINATED. A LETTER OF NOVEMBER 21, 1966, FROM THE MEDICAL OFFICER IN CHARGE OF THE USPHS HOSPITAL AT MEMPHIS, TENNESSEE, INDICATES THAT MEYERS WAS TREATED FOR HIS INJURY ON JUNE 2, 1966; THAT HE WAS ADVISED TO RETURN TO THAT HOSPITAL AGAIN ON JUNE 13, 1966, WHICH HE FAILED TO DO, AND AGAIN ON OCTOBER 31, 1966; AND THAT MEYERS' CONDITION OR SYMPTOMS BETWEEN JUNE 3 AND OCTOBER 31, 1966, ARE UNKNOWN, AS HE WAS NOT UNDER TREATMENT THERE AND HE DID NOT RETURN AS REQUESTED FOR FOLLOW-UP EVALUATION. THAT MEDICAL OFFICER'S LETTER RECOMMENDED THAT MEYERS BE ORDERED TO APPEAR BEFORE A BOARD OF MEDICAL SURVEY.

ON FEBRUARY 10, 1967, THE BOARD OF MEDICAL SURVEY RECOMMENDED THAT HE APPEAR BEFORE A PHYSICAL EVALUATION BOARD, WHICH RECOMMENDATION WAS APPROVED BY THE COMMANDANT ON MARCH 9, 1967. YOU SAY THAT THE RECORD FAILS TO INDICATE THE DATE ON WHICH MEYERS WAS "FIT FOR DUTY" OR RESUMED HIS NORMAL CIVILIAN PURSUITS, AND THAT HE TESTIFIED DURING THE PHYSICAL EVALUATION BOARD PROCEEDINGS THAT HE WAS UNABLE TO RETAIN HIS CIVILIAN OCCUPATION FOLLOWING HIS RELEASE TO INACTIVE DUTY AND THAT HE HAD DIFFICULTY IN OBTAINING WORK FOR ANY REASONABLE PERIOD OF TIME ON ACCOUNT OF HIS DISABILITY. THE RECORD INDICATES, HOWEVER, THAT HE PERFORMED INACTIVE DUTY TRAINING (DRILLS) ON MAY 4, JUNE 2, JULY 3, AUGUST 4, SEPTEMBER 2, OCTOBER 4, NOVEMBER 4, AND DECEMBER 4, 1966, BUT THERE IS NO RECORD THAT HE PERFORMED ANY DRILLS DURING THE CALENDAR YEAR 1967.

ACTIVE DUTY FOR TRAINING ORDERS WERE ISSUED TO MEYERS FOR THE PERIOD FEBRUARY 1 TO 10, APRIL 25 TO 26 AND MAY 3, 1967, TO APPEAR BEFORE THE PHYSICAL EVALUATION BOARD. ON NOVEMBER 30, 1967, THE COMMANDANT APPROVED HIS TEMPORARY DISABILITY RETIREMENT EFFECTIVE DECEMBER 15, 1967, AND ORDERS ISSUED DECEMBER 5, 1967, INFORMED MEYERS OF HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 15, 1967, UNDER THE PROVISIONS OF 10 U.S.C. 1202. YOUR REQUEST FOR DECISION IS MADE BECAUSE OF THE DOUBT THAT MEYERS COULD BE CONSIDERED ENTITLED TO RECEIVE BASIC PAY WHEN THE DETERMINATION OF HIS QUALIFICATION TO BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WAS MADE.

YOUR LETTER RECOGNIZES THE NECESSITY UNDER THE PROVISIONS OF 10 U.S.C. 1201, 1202, AND 1203 THAT THE SECRETARY MAKE THE REQUISITE DISABILITY RETIREMENT DETERMINATIONS WHILE THE MEMBER IS ENTITLED TO RECEIVE BASIC PAY. 30 COMP. GEN. 409, 414; 46 ID. 867. A MEMBER WHO INCURS A DISABILITY IN LINE OF DUTY UNDER THOSE PROVISIONS OF LAW WHICH ENTITLE HIM TO PAY AND ALLOWANCES DURING HIS DISABILITY UNDER THE PROVISIONS OF 37 U.S.C. 204 (G), (H), OR (I), IS REGARDED AS ,ENTITLED TO BASIC PAY" WITHIN THE MEANING OF 10 U.S.C. 1201, 1202, AND 1203. 33 COMP. GEN. 339. HAVE CONSISTENTLY HELD, HOWEVER, THAT A MEMBER IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES SOLELY BY VIRTUE OF ORDERS RECALLING A MEMBER TO ACTIVE DUTY FOR THE PURPOSE OF PROVIDING MEDICAL TREATMENT, HOSPITALIZATION, AND INSTITUTION OF RETIREMENT PROCEEDINGS AND THAT SUCH ORDERS DO NOT SATISFY THE BASIC PAY STATUS REQUIREMENT FOR DISABILITY RETIREMENT PROCEEDINGS. SEE 26 COMP. GEN. 107; 27 ID. 490; 33 ID. 339.

THE PROVISIONS OF 37 U.S.C. 204 (G), (H) AND (I) STEM FROM THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 201, WHICH PROVIDED THAT A NON REGULAR MEMBER OF THE ARMED SERVICES WHO IS DISABLED BY INJURY INCURRED IN LINE OF DUTY SHOULD RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS AND PAY AND ALLOWANCES AS PRESCRIBED BY LAW OR REGULATION FOR MEMBERS OF THE REGULAR SERVICES. THE STATUTE CONTEMPLATED THAT THE SERVICES WILL PROVIDE THE NECESSARY HOSPITAL AND MEDICAL CARE AND DISABILITY RETIREMENT OR SEVERENCE BENEFITS TO NON- REGULAR MEMBERS AS ARE EXTENDED TO REGULARS AND TO THAT END SHOULD MAKE THE NECESSARY DETERMINATIONS WITH REASONABLE PROMPTNESS FOLLOWING THE INJURY. 43 COMP. GEN. 733; 33 ID. 339, 346; 47 ID. 531.

WHILE MEYERS WAS RELEASED FROM ACTIVE DUTY AS NOT FIT FOR FULL DUTY, HE WAS DIRECTED UPON ARRIVAL AT HIS HOME TO CONTACT COMMANDER, SECOND COAST GUARD DISTRICT IN ST. LOUIS, MISSOURI, FOR INSTRUCTIONS REGARDING FURTHER MEDICAL TREATMENT. HOWEVER, NOTWITHSTANDING SUCH INDICATIONS OF A PHYSICAL DISABILITY, HE WAS PERMITTED TO AND DID PERFORM INACTIVE DUTY TRAINING DUTY DRILLS ONCE A MONTH FROM MAY THROUGH DECEMBER 1966, AND FAILED TO FOLLOW THE DIRECTIVE THAT HE REPORT TO THE USPHS HOSPITAL IN MEMPHIS ON JUNE 13, 1966.

IN DECISION OF MARCH 4, 1958, 37 COMP. GEN. 558, WE SAID THAT---

* * * WHERE THE INJURY IS SUCH AS NOT TO WARRANT OR SUGGEST THE INSTITUTION OF DISABILITY RETIREMENT PROCEEDINGS AT THE DATE OF TERMINATION OF HOSPITALIZATION, PAYMENT OF PAY AND ALLOWANCES AFTER THAT DATE WOULD NOT APPEAR TO BE JUSTIFIED IN THE ABSENCE OF A SHOWING OF PHYSICAL DISABILITY TO PERFORM MILITARY DUTY. WE THERE CONCLUDED THAT WHEN SUCH A MEMBER IS RETURNED TO A DUTY STATUS, THE MATTER IS TOO DOUBTFUL TO WARRANT OUR APPROVAL OF PAYMENT OF PAY AND ALLOWANCES EVEN THOUGH THE DUTY RECOMMENDED BE OF A LIMITED OR RESTRICTED NATURE.

HERE THE MEMBER NOT ONLY FAILED TO UNDERGO ALL OF THE SERVICE PROVIDED MEDICAL TREATMENT HE WAS DIRECTED TO RECEIVE, BUT HE ALSO PERFORMED REGULAR INACTIVE DUTY TRAINING DRILLS. WHILE THE STATUTE CONTEMPLATES THAT THE NON-REGULAR MEMBERS OF THE ARMED SERVICES WILL BE ENTITLED TO THE SAME MEDICAL CARE AND DISABILITY RETIREMENT BENEFITS ACCORDED REGULARS, WE DOUBT THAT THE CONGRESS INTENDED THAT A CONTINUING PAY STATUS, THE EXTENT OF MEDICAL CARE AND THE INSTITUTION OF RETIREMENT PROCEEDINGS SHOULD BE INFLUENCED IN ANY WAY BY THE DISCRETION AND CONVENIENCE OF THE NON-REGULAR MEMBER.

IN THE CASE OF REGULAR MEMBERS THE DUTY STATUS, TREATMENT, AND THE INSTITUTION OF RETIREMENT PROCEEDINGS IS ENTIRELY WITHIN THE CONTROL OF THE MILITARY SERVICES. WE DO NOT THINK THAT THE CONGRESS INTENDED THAT NON-REGULAR MEMBERS SHOULD, BY POSTPONING TREATMENT OR EXAMINATION, EXTEND THE PERIOD OF ENTITLEMENT TO FULL PAY AND ALLOWANCES THUS PERMITTING THE CONTINUED PAYMENT OF SUCH COMPENSATION WHEN THE RIGHT THERETO HAS NOT BEEN CLEARLY ESTABLISHED BY A SHOWING OF THE CONTINUED EXISTENCE OF THE DISABILITY. THE CONGRESS INTENDED THAT PROMPT ACTION BE TAKEN TO INSTITUTE DISABILITY RETIREMENT PROCEEDINGS IF APPROPRIATE OR THAT A FINAL DETERMINATION DISPOSING OF THE CASE BE MADE WITHIN A REASONABLE TIME UNDER CONDITIONS WHERE THE SERVICES MAY PROPERLY UNDERTAKE APPROPRIATE ACTION.

IN THE CIRCUMSTANCES OF THIS CASE WE THINK THAT THE DISABILITY STATUS OF THE NON-REGULAR MEMBER IS NOT SUFFICIENTLY ESTABLISHED TO WARRANT A CONCLUSION THAT HE CONTINUED TO BE ENTITLED TO PAY AND ALLOWANCES UNTIL A DETERMINATION WAS MADE THAT HE MET THE REQUIREMENTS OF THE LAW ENTITLING HIM TO BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH DISABILITY RETIREMENT PAY. SINCE IT IS NOT ESTABLISHED THAT HE WAS IN A BASIC PAY STATUS AT THE TIME SUCH DETERMINATION WAS MADE, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.