B-165237, OCTOBER 18, 1968, 48 COMP. GEN. 219

B-165237: Oct 18, 1968

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COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - DISABILITY RETIREMENT - "ARMED CONFLICT" IN VIETNAM AS IT IS DIFFICULT TO APPLY THE EXEMPTION TO THE REDUCTION IN RETIRED PAY PROVISION PRESCRIBED BY SECTION 201 (B) OF THE DUAL COMPENSATION ACT TO AN OFFICER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES RETIRED FOR INJURY OR DISEASE AS A DIRECT RESULT OF ARMED CONFLICT IN VIETNAM WHO IS EMPLOYED IN A CIVILIAN POSITION UNDER THE UNITED STATES. DUE TO THE NATURE OF COMBAT OPERATIONS IN VIETNAM AND THE DIFFICULTY OF ESTABLISHING THAT THE INCEPTION OF A DISEASE OCCURRED WHILE AN OFFICER WAS ENGAGED IN ARMED CONFLICT. AN AFFIRMATIVE ADMINISTRATIVE FINDING THAT THERE WAS A DIRECT CASUAL RELATIONSHIP BETWEEN THE DISABILITY AND THE ENGAGEMENT IN ARMED CONFLICT WILL BE ACCEPTED UNLESS UNREASONABLE OR INSUFFICIENTLY SUPPORTED BY THE RECORD.

B-165237, OCTOBER 18, 1968, 48 COMP. GEN. 219

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - DISABILITY RETIREMENT - "ARMED CONFLICT" IN VIETNAM AS IT IS DIFFICULT TO APPLY THE EXEMPTION TO THE REDUCTION IN RETIRED PAY PROVISION PRESCRIBED BY SECTION 201 (B) OF THE DUAL COMPENSATION ACT TO AN OFFICER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES RETIRED FOR INJURY OR DISEASE AS A DIRECT RESULT OF ARMED CONFLICT IN VIETNAM WHO IS EMPLOYED IN A CIVILIAN POSITION UNDER THE UNITED STATES, DUE TO THE NATURE OF COMBAT OPERATIONS IN VIETNAM AND THE DIFFICULTY OF ESTABLISHING THAT THE INCEPTION OF A DISEASE OCCURRED WHILE AN OFFICER WAS ENGAGED IN ARMED CONFLICT, AN AFFIRMATIVE ADMINISTRATIVE FINDING THAT THERE WAS A DIRECT CASUAL RELATIONSHIP BETWEEN THE DISABILITY AND THE ENGAGEMENT IN ARMED CONFLICT WILL BE ACCEPTED UNLESS UNREASONABLE OR INSUFFICIENTLY SUPPORTED BY THE RECORD, OR IF THE DETERMINATION IS RENDERED DUBIOUS BY FURTHER EVIDENCE OR CIRCUMSTANCES NOT CONSIDERED, OR UNDULY GIVES A PERSON THE BENEFIT OF A REASONABLE DOUBT.

TO THE SECRETARY OF THE ARMY, OCTOBER 18, 1968:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 7, 1968, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION CONCERNING FINDINGS THAT A SERVICE MEMBER'S DISABILITY RESULTED FROM INJURY OR DISEASE RECEIVED AS A DIRECT RESULT OF ARMED CONFLICT OR WAS CAUSED BY AN INSTRUMENTALITY OF WAR DURING A PERIOD OF WAR.

SECTION 201 (A) OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, APPROVED AUGUST 19, 1964, NOW CODIFIED IN 5 U.S.C. 5532 (B), PROVIDES THAT A RETIRED OFFICER OF ANY REGULAR COMPONENT OF A UNIFORMED SERVICE WHO HOLDS A CIVILIAN POSITION UNDER THE UNITED STATES IS ENTITLED TO RECEIVE THE FULL PAY OF THAT POSITION, BUT DURING THE PERIOD FOR WHICH HE RECEIVES SUCH PAY HIS MILITARY SERVICE RETIRED PAY WILL BE REDUCED AS THERE PROVIDED.

SECTION 201 (B) OF THAT ACT (SEE 5 U.S.C. 5532 (C) FOR SIMILAR PROVISIONS CURRENTLY IN EFFECT) PROVIDES THAT SUCH REDUCTION IN RETIRED PAY DOES NOT APPLY TO A RETIRED OFFICER---

* * * WHOSE RETIREMENT WAS BASED ON DISABILITY (1) RESULTING FROM INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR * * *. SUCH PERIOD OF WAR IS DEFINED IN 38 U.S.C. 101 AS INCLUDING THE "VIETNAM ERA" BEGINNING AUGUST 5, 1964, AND ENDING ON SUCH DATE AS SHALL HEREAFTER BE DETERMINED BY PRESIDENTIAL PROCLAMATION OR CONCURRENT RESOLUTION OF THE CONGRESS.

SECTION 202 OF THE DUAL COMPENSATION ACT, NOW 5 U.S.C. 3501, INCLUDES AMONG PREFERENCE ELIGIBLE EMPLOYEES A RETIRED MEMBER OF THE UNIFORMED SERVICE RETIRED FOR DISABILITY FOR THE REASONS STATED ABOVE, AND SECTION 203 OF THAT ACT, NOW 5 U.S.C. 6303, ALLOWS CREDIT TO SUCH A MEMBER FOR ACTIVE MILITARY SERVICE FOR THE PURPOSES OF ANNUAL LEAVE AS A CIVILIAN EMPLOYEE.

SECTION 212 (B) OF THE ECONOMY ACT OF 1932, CH. 314, 47 STAT. 406, 5 U.S.C. 59A (B) (1952 ED.), PROVIDED THAT THE DUAL COMPENSATION PROVISIONS OF SECTION 212 (A) OF THAT ACT, 5 U.S.C. 59A (A) (1952 ED.), DID NOT APPLY TO OFFICERS "RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.' SECTION 3 OF THE ACT OF JULY 15, 1940, CH. 626, 54 STAT. 761, 5 U.S.C. 59A (1952 ED.), ADDED AN EXEMPTION FOR OFFICERS RETIRED---

* * * FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I. THE ACT OF FEBRUARY 20, 1954, CH. 13, 68 STAT. 18, 5 U.S.C. 59A (B) (1958 ED.), SUBSTITUTED THE LANGUAGE "CAUSED BY AN INSTRUMENTALITY OF WAR" FOR THAT ADDED BY THE 1940 LAW, ELIMINATING THE LIMITATION TO DISABILITIES RESULTING FROM AN "EXPLOSION" OF AN INSTRUMENTALITY OF WAR.

THE PURPOSE OF THE 1954 ACT WAS TO "ELIMINATE THE UNJUSTIFIED PREFERENTIAL TREATMENT ACCORDED BY A 1932 -DUAL COMPENSATION- STATUTE TO ONE GROUP OF COMMISSIONED OFFICERS WHO ARE RETIRED FOR DISABILITY OVER OTHER SUCH OFFICERS.' SEE H.REPT. NO. 884, 83D CONG., 1ST SESS. 1. THE COMMITTEE REPORTS POINTED OUT THAT UNDER THE 1932 LAW AS AMENDED BY THE 1940 LAW AN OFFICER DISABLED FROM AN AIRCRAFT EXPLOSION FOLLOWING AN AIRPLANE CRASH COULD DRAW BOTH HIS DISABILITY RETIRED PAY AND SALARY AS A FEDERAL EMPLOYEE REGARDLESS OF THE COMBINED AMOUNT, BUT AN OFFICER RETIRED FOR AN IDENTICAL DISABILITY INCURRED WHEN HIS AIRCRAFT CRASHED BUT DID NOT EXPLODE WAS SUBJECT TO THE MONETARY LIMITATIONS OF THE 1932 DUAL COMPENSATION LAW. SEE H.REPT. NO. 884 AND S.REPT. NO. 885, 83D CONG., 2D SESS.

AS POINTED OUT IN THE DEPUTY ASSISTANT SECRETARY'S LETTER, THE 1964 DUAL COMPENSATION ACT SUBSTITUTED THE PHRASE "AS A DIRECT RESULT OF ARMED CONFLICT" FOR THE PHRASE "IN COMBAT WITH AN ENEMY OF THE UNITED STATES," CONTAINED IN SECTION 212 (B) OF THE ECONOMY ACT OF 1932. THE COMMITTEE REPORTS ON THE 1964 LAW POINT OUT THAT THE EXEMPTION FOR MEMBERS WHOSE RETIREMENT WAS BASED ON DISABILITY "INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES" WAS CHANGED IN ORDER---

* * * TO INCLUDE THOSE RETIRED MEMBERS WHOSE DISABILITY RESULTS "FROM AN INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT.' THIS CHANGE WOULD EXTEND THE EXEMPTION TO THOSE DISABLED IN THE KIND OF COLD WAR CONFLICTS IN WHICH AMERICAN MILITARY PERSONNEL ARE NOW ENGAGED. SEE H.REPT. NO. 890, 88TH CONG., 1ST SESS. 16 AND S.REPT. NO. 935, 88TH CONG., 2D SESS. 12. THUS THE EXEMPTION IN THE 1964 LAW INCLUDES MEMBERS DISABLED INCIDENT TO ARMED CONFLICT DURING A "COLD WAR" CONFLICT.

THE DEPUTY ASSISTANT SECRETARY SAYS THAT, IN APPLYING SECTION 212 (B) OF THE ECONOMY ACT OF 1932, THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS CONSISTENTLY STATED THAT A DISABILITY MAY BE INCURRED "IN COMBAT" IF (A) IT WAS INCURRED WHILE THE MEMBER WAS ENGAGED IN COMBAT WITH THE ENEMY OR AN OPERATION OR INCIDENT INVOLVING COMBAT OR THE LIKELIHOOD OF COMBAT AND (B) A DIRECT CASUAL RELATIONSHIP EXISTS BETWEEN THE COMBAT OR THE INCIDENT OR OPERATION AND THE DISABILITY. IF THE ABOVE CRITERIA ARE MET, A DISABILITY HAS BEEN CHARACTERIZED AS INCURRED IN COMBAT EVEN IF IT DID NOT RESULT FROM DIRECT HOSTILE ACTION. THIS OFFICE DOES NOT QUESTION SUCH VIEWS.

THE DEPUTY ASSISTANT SECRETARY FURTHER STATES THAT THE PHRASE "DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT"IN THE DUAL COMPENSATION ACT HAS RESULTED IN DIFFICULTIES OF APPLICATION UNDER CONDITIONS PECULIAR TO ANY PREVALENT IN VIETNAM EXCEPT WITH RESPECT TO DISEASES WHICH ARE SECONDARY TO OR RESIDUALS OF INJURIES RECEIVED UNDER THE REQUIRED CIRCUMSTANCES, SINCE SUCH DISEASES WOULD BE CONSIDERED AS HAVING BEEN ACQUIRED UNDER THE SAME CONDITIONS AS THE ORIGINAL INJURY.

COMBAT OPERATIONS IN VIETNAM ARE SAID TO CONSIST OF INTENSE BUT SPORADIC CONTACTS WITH AN ELUSIVE ENEMY, AND ARE UNLIKE THOSE EXPERIENCED DURING WORLD WARS I AND II AND THE KOREAN CONFLICT. ONE TYPE OF "ARMED CONFLICT" OCCURS AS A RESULT OF OUR TACTICS WHERE WE SEEK OUT THE HIDDEN ENEMY IN HIS JUNGLE STRONGHOLDS, TEMPORARY ENCAMPMENTS, AND WHILE HE IS ON THE MOVE, SUCH ,SEARCH AND DESTROY" MISSIONS USUALLY COVERING CONSIDERABLE GROUND WHILE LASTING ONLY A FEW DAYS. OUR SOLDIERS ARE ALSO SUBJECTED TO SUDDEN AND UNEXPECTED ATTACKS BY THE ENEMY. SUCH HIT AND RUN ENGAGEMENTS INITIATED BY THE ENEMY USUALLY LAST ONLY A SHORT TIME AND MAY BE PERIODICALLY RENEWED WITHOUT NOTICE. CONSEQUENTLY IT IS INDICATED THAT ALMOST EVERY MEMBER OF THE ARMY IN VIETNAM MAY AT SOME TIME BE DIRECTLY INVOLVED IN "ARMED CONFLICT.'

THE DEPUTY ASSISTANT SECRETARY THEN STATES THE ADMINISTRATIVE PROBLEM ASSOCIATED WITH COMBAT-INCURRED DISABILITIES AS FOLLOWS:

* * * BECAUSE OF THE FLUCTUATING NATURE OF THESE OPERATIONS AND BECAUSE OF THE RAPID MEDICAL EVACUATION OF MANY PATIENTS FROM VIETNAM, IT IS ALMOST IMPOSSIBLE TO OBTAIN SUFFICIENT EVIDENCE TO ESTABLISH THAT THE INCEPTION OF A DISEASE OCCURRED WHILE THE EVALUEE WAS ACTUALLY ENGAGED IN ONE OF THE FOREGOING TYPES OF ARMED CONFLICTS. THE PROBLEM OF TRYING TO DETERMINE THE DATE OF THE INCEPTION OF A DISEASE IS FURTHER AGGRAVATED IN THE INSTANCE OF SOME DISEASES BECAUSE OF THEIR INCUBATION PERIOD AND BECAUSE OF THE USE OF PROPHYLACTIC DRUGS. SPECIFICALLY INCLUDED AMONG THE DISEASES UNDER DISCUSSION ARE THOSE MENTAL CONDITIONS (PSYCHONEUROSES) HAVING THEIR ORIGIN IN OR AGGRAVATED BY SOME TRAUMATIC OCCURRENCE DURING "ARMED CONFLICT.' EXCLUDED FROM ANY CONSIDERATION ARE FUNCTIONAL PSYCHOSES, CHARACTER AND BEHAVIOR DISORDERS, AND VENEREAL DISEASES OF ALL KINDS AND ASSOCIATED RESIDUALS.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

BECAUSE OF THE FOREGOING DIFFICULTIES, AND BECAUSE OF THE LACK OF LEGISLATIVE HISTORY CLEARLY INDICATING THE INTENT OF CONGRESS, WOULD IT BE PERMISSIBLE FOR ARMY ADJUDICATIVE AGENCIES TO DETERMINE THAT ANY UNFITTING DISEASE, OR THE RESIDUAL/S) THEREOF, EXCLUDING PYSCHOSES, CHARACTER AND BEHAVIOR DISORDERS AND VENEREAL DISEASES, ACQUIRED BY ARMY PERSONNEL IN ANY AREA OF COMBAT OPERATIONS, IS WITHIN THE DEFINITION OF "DIRECT RESULT OF ARMED CONFLICT," PROVIDED IT IS DEFINITELY ESTABLISHED THAT:

A. THE ONSET OR AGGRAVATION OF THE DISEASE COMMENCED WHILE THE INDIVIDUAL WAS A MEMBER OF THE ARMY IN AN AREA OF COMBAT OPERATIONS, OR DURING ANY PERIOD OF DETAINMENT BY HOSTILE FORCES, TO INCLUDE CONDITIONS WHERE MANIFESTATIONS FIRST OCCUR OUTSIDE THE AREA OF COMBAT OPERATIONS BUT WHICH, ON THE BASIS OF ACCEPTED MEDICAL PRINCIPLES, HAD THEIR ONSET WHILE IN THIS AREA.

B. THE LIKELIHOOD OF HAVING DEVELOPED SUCH A DISEASE, OR AGGRAVATION OF EXISTING DISEASE, IN OTHER THAN THE COMBAT ZONE ENVIRONMENT IS REMOTE,

C. THE LINE OF DUTY IS DETERMINED TO BE YES, AND,

D. THE DISEASE IS NOT THE NATURAL PROGRESSION OF AN UNDERLYING CONDITION WHICH HAD ITS ORIGIN OR INCEPTION PRIOR TO ENTRY INTO THE COMBAT ZONE ENVIRONMENT?

THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE DUAL COMPENSATION ACT OF 1964 TO SUGGEST THAT THE CONGRESS INTENDED THAT THE CHANGE IN PHRASEOLOGY FROM "IN COMBAT WITH AN ENEMY OF THE UNITED STATES" TO "AS A DIRECT RESULT OF ARMED CONFLICT" SHOULD CHANGE THE BASIC REQUIREMENT THAT THE DISABILITY SHOULD DIRECTLY RESULT FROM ARMED CONFLICT. IT SEEMS DOUBTFUL THAT THE CONGRESS INTENDED THAT THE MERE INCURRING OF A DISEASE IN A GENERAL AREA WHERE COMBAT OPERATIONS MIGHT OCCUR SHOULD IN ITSELF BE REGARDED AS "A DIRECT RESULT" OF ARMED CONFLICT. IN OTHER WORDS, WE THINK THAT THE LAW CONTEMPLATES THAT AN OFFICER IS WITHIN THE EXEMPTION ONLY IF THE DISABILITY FOR WHICH RETIRED IS "A DIRECT RESULT OF ARMED CONFLICT" IN WHICH THE RETIRED OFFICER HIMSELF WAS PERSONALLY ENGAGED RATHER THAN MERELY INCURRED IN THE GENERAL AREA IN WHICH THE UNITED STATES IS INVOLVED IN AN ARMED CONFLICT. THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS HELD THAT IN ORDER TO BE REGARDED AS "RETIRED FOR DISABILITY INCURRED IN COMBAT WITH THE ENEMY," IT MUST AFFIRMATIVELY APPEAR THAT THE DISABILITY RESULTED FROM ACTUAL CONTACT WITH THE ENEMY, AND THE MERE FACT THAT THE UNITED STATES WAS AT WAR WHEN AN OFFICER INCURRED THE DISABILITY FOR WHICH HE WAS RETIRED, DOES NOT BRING HIM WITHIN THE EXCEPTION. DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-1940, PAGE 118. IN A LATER OPINION THE JUDGE ADVOCATE GENERAL OF THE ARMY HELD THAT THE DETERMINATION OF WHETHER DISABILITY WAS INCURRED IN COMBAT MUST DEPEND UPON A SHOWING OF (1) ENGAGEMENT IN COMBAT WITH THE ENEMY AND (2) A DIRECT CASUAL RELATIONSHIP BETWEEN THE COMBAT AND THE DISABILITY, WHICH IS PRIMARILY A MATTER FOR DETERMINATION BY THE MEDICAL AUTHORITY. II BULL. JAGA 301, AUGUST 1943. THE JUDGE ADVOCATE GENERAL LATER HELD THAT A SERVICE MEMBER WHO DEVELOPED SEVERE MIGRAINE HEADACHES AS A RESULT OF LONG HOURS, LACK OF REST AND PROPER DIET WHILE SERVING IN COMBAT IN KOREA, WAS NOT ENTITLED TO EXEMPTION FOR COMBAT-INCURRED DISABILITY IN THE ABSENCE OF A SHOWING OF A DIRECT CASUAL RELATIONSHIP BETWEEN THE COMBAT AND THE DISABILITY. 2 DIG. OPS. JAGAF 721. DISABILITY FROM FROSTBITE SUFFERED WHILE ATTEMPTING TO RETURN TO FRIENDLY TERRITORY AFTER THE OFFICER'S PLANE WAS SHOT DOWN OVER FRANCE BY ENEMY ACTION WAS HELD TO BE COMBAT-INCURRED (VI BULL. JAGA 54, MARCH-APRIL 1947), AS WAS A DISABILITY ARISING OUT OF A VEHICULAR COLLISION IN A COMBAT AREA UNDER "BUZZ-BOMB" ATTACK (VI BULL. JAGA 4, JANUARY-FEBRUARY 1947).

IN OUR OPINION SUCH VIEWS ARE SUPPORTED BY THE LEGISLATIVE HISTORY OF THE COMBAT DISABILITY PROVISION. AS APPROVED BY THE HOUSE OF REPRESENTATIVES THE BILL WHICH BECAME THE 1932 LAW EXEMPTED FROM THE DUAL COMPENSATION LAW OFFICERS ON THE EMERGENCY OFFICERS' RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, AND ANY PERSON RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY. THE SENATE COMMITTEE RECOMMENDED THAT SUCH EXEMPTION PROVISION BE STRICKEN FROM THE BILL. S.REPT. NO. 756, 72D CONG., 1ST SESS. 9.

HOWEVER, SENATOR FLETCHER OFFERED AN AMENDMENT ON THE FLOOR OF THE SENATE TO LIMIT THE EXEMPTION TO "ANY PERSON RETIRED FOR INJURIES RECEIVED IN BATTLE" ON THE BASIS THAT "AN OFFICER WHO HAS BEEN ACTUALLY WOUNDED IN BATTLE OUGHT NOT TO BE DEPRIVED OF HIS RETIRED PAY.' SENATOR REED THEN STATED THAT SUCH AN OFFICER "IS NOT ENTITLED TO ONE PARTICLE MORE SYMPATHY THAN A FELLOW OFFICER OR FELLOW SOLDIER RIGHT BESIDE HIM WHO GETS PNEUMONIA FROM LIVING IN THE TRENCHES" AND SUGGESTED THAT THE EXEMPTION BE BROADENED TO INCLUDE "INJURIES RECEIVED OR DISABILITY SUFFERED IN LINE OF DUTY," TO WHICH SUGGESTION SENATOR FLETCHER AGREED, BUT NO ACTION WAS THEN TAKEN ON THE PROPOSED AMENDMENT. SEE 75 CONG. REC. 12146-7. LATER AN AMENDMENT WAS SUGGESTED THAT WOULD HAVE EXEMPTED "ANY PERSON RETIRED FOR INJURIES RECEIVED IN BATTLE OR DISABILITY INCURRED IN LINE OF DUTY.' CONG. REC. 12177.

SUBSEQUENTLY SENATOR BINGHAM SUGGESTED THAT THE EXEMPTION APPLY TO "EMERGENCY OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.' SENATOR REED EXPRESSED THE OPINION THAT AN OFFICER WHO WAS DISABLED BY FROZEN FEET, FOR EXAMPLE, IN THE TRENCHES IS AS MUCH DESERVING OF SYMPATHY AS AN OFFICER WOUNDED BY AN ENEMY BULLET. 75 CONG. REC. 12349. THE SENATE ADOPTED SENATOR BINGHAM'SAMENDMENT. THE HOUSE CONFEREES ACCEPTED THE SENATE AMENDMENT BUT SUGGESTED INCLUDING "REGULAR OFFICERS RETIRED FOR COMBAT DISABILITY" IN THE EXEMPTION. H.REPT. NO. 1657, 72D CONG., 1ST SESS. 10. AS ENACTED INTO LAW THE BILL INCLUDED SENATOR BINGHAM'S AMENDMENT WITH THE FURTHER AMENDMENT SUGGESTED BY THE HOUSE CONFEREES TO EXEMPT REGULAR AND EMERGENCY OFFICERS "RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES," THAT IS, WITH SUCH LIMITED EXEMPTIONS AND WITHOUT BROADER EXEMPTION SUGGESTED IN THE SENATE FOR ,DISABILITY INCURRED IN LINE OF DUTY.'

WHILE IT IS DOUBTFUL THAT THERE WAS A MAJOR SUBSTANTIVE CHANGE IN THE LEGISLATIVE INTENT IN ADOPTING THE 1964 LANGUAGE REQUIRING THAT THE DISABILITY BE "A DIRECT RESULT OF ARMED CONFLICT" IN PLACE OF "DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES," THE DIFFERENCE IN THE NATURE OF MILITARY OPERATIONS IN THE PRESENT VIETNAM CONFLICT AND COMBAT CONDITIONS EXISTING IN WORLD WAR I (WHICH FORMED THE BASIS FOR THE COMBAT DISABILITY PROVISION IN THE PRIOR LAW) MUST BE RECOGNIZED. THE NEW LANGUAGE WAS ADOPTED WHILE THE VIETNAM CONFLICT WAS IN PROGRESS AND THE CONGRESS WAS WELL AWARE OF THE DIFFERENCES IN THE MILITARY OPERATIONS AND THE HIT AND RUN TACTICS PRACTICED THERE AND CONVENTIONAL WARFARE.

IN MANY OF THE "SEARCH AND DESTROY" MISSIONS THERE NECESSARILY ARE INVOLVED INSTANCES WHERE THE ENEMY IS NOT ENCOUNTERED IN A SUSPECTED LOCATION EVEN THOUGH INTELLIGENCE INFORMATION INDICATED HIS PROBABLE PRESENCE THERE. IN A SITUATION WHERE THE ENEMY IS ACTUALLY LOCATED IN THE SUSPECTED AREA THERE SHOULD BE NO QUESTION THAT A DISABLING INJURY OR DISEASE SUFFERED INCIDENT TO SUCH A MISSION SHOULD BE REGARDED AS HAVING BEEN "INCURRED AS A DIRECT RESULT OF ARMED CONFLICT" EVEN THOUGH IT WAS INCURRED WHILE "MOVING UP" TOWARD THE ENEMY AND THE MEMBER WAS EVACUATED SHORTLY PRIOR TO THE TIME ACTUAL CONTACT WITH THE ENEMY WAS EFFECTED.

SIMILARLY THE FAILURE TO MAKE A CONTACT WITH THE ENEMY IN SUCH A "SEARCH AND DESTROY" MISSION SHOULD NOT OF ITSELF BE REGARDED AS PRECLUDING A FINDING THAT A DISABILITY CAUSED BY AN INJURY INCURRED WHILE "MOVING UP" WAS "A DIRECT RESULT OF ARMED CONFLICT.'

THIS OFFICE HAS HELD THAT AN OFFICER WHO SUSTAINED AN INJURY IN ATTEMPTING TO ESCAPE FROM THE ENEMY WHILE A PRISONER OF WAR INCURRED DISABILITY IN COMBAT WITH AN ENEMY OF THE UNITED STATES. A-84384, MAY 20, 1937. HENCE, IT IS OUR OPINION THAT THE FACT THAT AN INJURY OR DISEASE IS INCURRED DURING A PERIOD OF DETAINMENT BY HOSTILE FORCES IN ITSELF DOES NOT PRECLUDE A FINDING THAT THE DISABILITY WAS INCURRED AS A DIRECT RESULT OF ARMED CONFLICT. UNDER THE CONDITIONS STATED IN THE QUESTION IT IS REASONABLE TO VIEW A DISABILITY INCURRED DURING A PRISONER-OF-WAR STATUS AS A DIRECT RESULT OF ARMED CONFLICT, AND HENCE THIS OFFICE IS NOT REQUIRED TO OBJECT TO SUCH A FINDING.

THE TERM "AREA OF COMBAT OPERATIONS" IS NOT DEFINED OR EXPLAINED IN THE DISCUSSION IN THE LETTER OF SEPTEMBER 7, 1968. IN A BROAD SENSE PRACTICALLY THE WHOLE OF SOUTH VIETNAM MIGHT BE CONSIDERED TO BE IN AN AREA OF COMBAT OPERATIONS. IN VIEW OF THE LEGISLATIVE HISTORY OF THE LAW, HOWEVER, WE DOUBT THAT IT WOULD BE PROPER TO REGARD ADMINISTRATIVE, SUPPLY, AND OTHER SUPPORT PERSONNEL DISABLED IN REAR STATION AREAS AS HAVING A COMBAT-INCURRED DISABILITY UNLESS THE INJURY IS ACTUALLY INCURRED DURING AN ENEMY ATTACK IN THE IMMEDIATE AREA AND AS A DIRECT RESULT THEREOF. HOWEVER, IN OUR OPINION, PERSONNEL DISABLED IN THE IMMEDIATE AREA OF ACTUAL HOSTILITIES DURING A PERIOD OF HOSTILITIES OR WHILE ON A "SEARCH AND DESTROY" MISSION PROPERLY MAY BE REGARDED AS MEETING THE CONDITION THAT THE DISABILITY WAS INCURRED AS A DIRECT RESULT OF ARMED CONFLICT, IF IT IS ADMINISTRATIVELY SO DETERMINED.

IT IS IMPOSSIBLE TO GIVE A DEFINITE UNQUALIFIED AFFIRMATIVE ANSWER TO THE QUESTION PRESENTED, IN THE ABSENCE OF CLEAR DEFINITIONS OF THE TERMS EMPLOYED AND A CLEAR UNDERSTANDING OF THE LIMITATIONS WITH RESPECT TO TIME AND GEOGRAPHICAL AREAS WHICH WOULD BE OBSERVED IN MAKING THE DETERMINATIONS THAT THE DISABILITY WAS INCURRED AS A DIRECT RESULT OF ARMED CONFLICT. THE NATURE OF THE QUESTION OF COMBAT CONNECTION MAKES IT ONE PRIMARILY FOR ADMINISTRATIVE DETERMINATION. WHILE AN ADMINISTRATIVE FINDING IN THAT RESPECT DOES NOT PRECLUDE AN INDEPENDENT DETERMINATION THEREOF BY THIS OFFICE, IT HAS BEEN THE PRACTICE OF THIS OFFICE NOT TO DISREGARD THE ADMINISTRATIVE FINDING UNLESS A CLEAR CASE CAN BE MADE OUT THAT THE ADMINISTRATIVE CONCLUSION IS UNREASONABLE, OR IS NOT SUFFICIENTLY SUPPORTED BY THE RECORD, OR IS RENDERED DUBIOUS BY FURTHER EVIDENCE OR CIRCUMSTANCES NOT ADMINISTRATIVELY CONSIDERED, OR UNDULY GIVES A PERSON THE BENEFIT OF A REASONABLE DOUBT. 34 COMP. GEN. 72, 74. IT SHOULD BE UNDERSTOOD, OF COURSE, THAT THE STATUTE REQUIRES THAT THERE BE AN AFFIRMATIVE FINDING THAT THERE WAS A DIRECT CASUAL RELATIONSHIP BETWEEN THE DISABILITY AND ENGAGEMENT IN ARMED CONFLICT. CF. CAMPBELL V UNITED STATES, 132 CT. CL. 122 (1955).