B-166861, JAN 27, 1971

B-166861: Jan 27, 1971

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THE MEDICAL EXPENSES INCURRED BY HIS DEPENDENT DAUGHTER SUBSEQUENT TO THIS DATE ARE ALSO DISALLOWED. A RESERVISTS RIGHT TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES DUE TO PERIOD OF TEMPORARY DISABILITY DUE TO INJURY INCURRED IN THE LINE OF DUTY ARE NOT CONSIDERED TO BE COMPENSATION FOR LOSS OF CIVILIAN EARNINGS OR FOR EXPENSES INCURRED IN CONNECTION WITH REGAINING CIVILIAN EMPLOYMENT. RHUDA: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 31. YOU STATE THAT NO MILITARY TRANSPORTATION WAS AVAILABLE FOR SUCH TRAVEL. THAT YOU WERE INSTRUCTED TO USE YOUR OWN VEHICLE. THAT YOU WERE REFUSED WRITTEN TRAVEL ORDERS. IT APPEARS TO BE YOUR BELIEF THAT THE EXISTENCE OF AN ACTIVE DUTY STATUS ALSO SHOULD PERMIT REIMBURSEMENT FOR MEDICAL TREATMENT EXPENSES INCURRED BY YOU IN A CIVILIAN HOSPITAL FOR YOUR DEPENDENT DAUGHTER AND THAT SINCE LOSS OF YOUR CIVILIAN EMPLOYMENT WAS A DIRECT RESULT OF YOUR IN-LINE-OF- DUTY INJURY AND EXTENDED DISABILITY.

B-166861, JAN 27, 1971

MILITARY - REIMBURSEMENT OF EXPENSES - TEMPORARY DUTY DECISION DENYING CLAIM BY ROBERT R. RHUDA FOR REIMBURSEMENT FOR EXPENSES OF TRAVEL, FOR MEDICAL EXPENSES FOR DEPENDENT DAUGHTER, AND FOR LOST INCOME AND RE-EMPLOYMENT EXPENSES INCIDENT TO AN INJURY AND TEMPORARY DISABILITY INCURRED WHILE SERVING ON RESERVE TRAINING DUTY. WHEN CLAIMANT BECAME ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES UNDER 37 U.S.C. 204(G)(2) AS A RESULT OF AN INJURY SUSTAINED WHILE IN THE PERFORMANCE OF RESERVE TRAINING, THE RECOMMENDATION OF THE ARMY HOSPITAL THAT CLAIMANT CONTINUE PHYSICAL THERAPY ON AN OUT-PATIENT BASIS CANNOT BE CONSTRUED AS "TRAVEL PERFORMED ... UNDER ORDERS" TO PERMIT REIMBURSEMENT OF EXPENSES OF TRAVEL BETWEEN CLAIMANT'S HOME AND THE HOSPITAL. SINCE CLAIMANT'S ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES TERMINATED FEBRUARY 14, 1968, THE MEDICAL EXPENSES INCURRED BY HIS DEPENDENT DAUGHTER SUBSEQUENT TO THIS DATE ARE ALSO DISALLOWED. FURTHER, A RESERVISTS RIGHT TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES DUE TO PERIOD OF TEMPORARY DISABILITY DUE TO INJURY INCURRED IN THE LINE OF DUTY ARE NOT CONSIDERED TO BE COMPENSATION FOR LOSS OF CIVILIAN EARNINGS OR FOR EXPENSES INCURRED IN CONNECTION WITH REGAINING CIVILIAN EMPLOYMENT.

TO MR. ROBERT R. RHUDA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 31, 1970, REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED JULY 8, 1970, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR EXPENSES OF TRAVEL BETWEEN YOUR HOME AT REYNOLDSBURG, OHIO, AND THE 840TH TAC HOSPITAL, LOCKBOURNE AIR FORCE BASE, COLUMBUS, OHIO, FOR MEDICAL EXPENSES FOR YOUR DEPENDENT DAUGHTER, FOR LOST INCOME AND FOR RE EMPLOYMENT EXPENSES INCIDENT TO AN INJURY AND TEMPORARY DISABILITY INCURRED BY YOU WHILE SERVING ON RESERVE TRAINING DUTY ON MAY 24, 1967.

IN SUPPORT OF YOUR CLAIM YOU CONTEND THAT LETTER ORDERS NO. 06-0595, DATED JUNE 22, 1967, ISSUED BY HEADQUARTERS, XX U.S. ARMY CORPS, PLACED YOU ON CONTINUOUS ACTIVE DUTY BY ORDERING YOU TO REPORT TO THE 840TH TAC HOSPITAL UNTIL YOUR MEDICAL DISQUALIFICATION NO LONGER EXISTED, THEREBY PERMITTING YOU TO RECEIVE REIMBURSEMENT FOR TRAVEL EXPENSES INCURRED BY YOU IN CONNECTION WITH TRAVEL PERFORMED TO AND FROM THAT HOSPITAL FOR MEDICAL TREATMENT. YOU STATE THAT NO MILITARY TRANSPORTATION WAS AVAILABLE FOR SUCH TRAVEL; THAT YOU WERE INSTRUCTED TO USE YOUR OWN VEHICLE; THAT YOU WERE REFUSED WRITTEN TRAVEL ORDERS; AND THAT FROM JULY 11 TO SEPTEMBER 30, 1967, IN RELIANCE UPON VERBAL ORDERS, YOU DROVE A TOTAL OF 1018 MILES FROM YOUR HOME TO THE HOSPITAL AND RETURN FOR MEDICAL TREATMENT.

IT APPEARS TO BE YOUR BELIEF THAT THE EXISTENCE OF AN ACTIVE DUTY STATUS ALSO SHOULD PERMIT REIMBURSEMENT FOR MEDICAL TREATMENT EXPENSES INCURRED BY YOU IN A CIVILIAN HOSPITAL FOR YOUR DEPENDENT DAUGHTER AND THAT SINCE LOSS OF YOUR CIVILIAN EMPLOYMENT WAS A DIRECT RESULT OF YOUR IN-LINE-OF- DUTY INJURY AND EXTENDED DISABILITY, YOU SHOULD ALSO BE REIMBURSED FOR SUCH LOSS OF INCOME AND REEMPLOYMENT EXPENSES.

THE RECORDS SHOW THAT YOU WERE AUTHORIZED TO REPORT FOR RESERVE DUTY TRAINING WITHOUT PAY AT CLINTON AIR FORCE BASE, WILMINGTON, OHIO, BY VERBAL ORDERS DATED MAY 21, 1967, FOR A 2-DAY PERIOD BEGINNING MAY 23, 1967, UNDER AUTHORITY OF 10 U.S.C. 270, WHICH PROVIDES FOR THE TRAINING REQUIREMENTS OF MEMBERS OF THE READY RESERVE. THOSE ORDERS WERE CONFIRMED BY LETTER ORDERS NO. T-05-0485, DATED MAY 29, 1967, ISSUED BY HEADQUARTERS, XX U.S. ARMY CORPS. THE SPECIAL INFORMATION PART OF THOSE ORDERS STATED THAT YOU WERE ENTITLED TO RETIREMENT POINT CREDIT FOR THIS TRAINING DUTY AS WELL AS REIMBURSEMENT FOR YOUR TRAVEL FOR THIS DUTY FROM YOUR "HOME STATION" TO YOUR TRAINING DUTY STATION "AND RETURN HOME."

AS A RESULT OF THE INJURY THAT YOU SUSTAINED ON MAY 24, 1967, WHILE IN THE PERFORMANCE OF THAT TRAINING DUTY AND YOUR SUBSEQUENT DISABILITY, YOU BECAME ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES UNDER THE PROVISIONS OF 37 U.S.C. 204(G)(2), WHICH PROVIDES THAT A MEMBER OF THE ARMY (OTHER THAN OF THE REGULAR ARMY) IS ENTITLED TO RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER HE IS CALLED OR ORDERED TO ACTIVE DUTY OR TO PERFORM INACTIVE-DUTY TRAINING AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

THE ORDERS DATED JUNE 22, 1967, DIRECTED YOU TO REPORT AT THE 840TH TAC HOSPITAL FOR "RE-EVALUATION OF INJURY, TREATMENT AND DISPOSITION" UNDER THE PROVISIONS OF 10 U.S.C. 3721 AND YOU WERE AUTHORIZED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES FROM MAY 24, 1967, UNDER THE PROVISIONS OF 37 U.S.C. 204(G). THE SPECIFIC INSTRUCTIONS CONTAINED IN THOSE ORDERS STATED THAT YOU WERE NOT ENTITLED TO RECEIVE RETIREMENT POINT CREDITS OR ACCRUAL OF LEAVE DURING THE PERIOD OF HOSPITALIZATION AND THAT TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED.

WHILE THE RECORD SHOWS THAT ON JULY 10, 1967, FOLLOWING EXAMINATION AND TREATMENT AT IRELAND ARMY HOSPITAL, FORT KNOX, KENTUCKY, THE MEDICAL BOARD AT THAT HOSPITAL RECOMMENDED THAT YOU CONTINUE ON PHYSICAL THERAPY TREATMENTS AS AN OUTPATIENT, NOTHING CONTAINED IN THAT REPORT, OR IN ANY OTHER DOCUMENT OF RECORD, COULD BE CONSTRUED AS DIRECTING YOU TO PERFORM OFFICIAL TRAVEL FROM YOUR HOME NEAR COLUMBUS, TO THE HOSPITAL AT LOCKBOURNE AIR FORCE BASE, AND RETURN, FOR A NUMBER OF OUTPATIENT TREATMENTS.

SECTION 404 OF TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES FOR "TRAVEL PERFORMED *** UNDER ORDERS" UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES OF THE SERVICES CONCERNED. PARAGRAPH M3002 OF THE JOINT TRAVEL REGULATIONS REQUIRES THE ISSUANCE OF WRITTEN ORDERS BY COMPETENT AUTHORITY - EITHER ISSUED INITIALLY OR IN CONFIRMATION OF EARLIER VERBAL ORDERS - IN ORDER TO PERMIT REIMBURSEMENT OF EXPENSES OF OFFICIAL TRAVEL. WHILE YOU STATE THAT YOU RECEIVED VERBAL ORDERS TO PERFORM THE TRAVEL IN QUESTION AND THAT YOUR REQUEST FOR WRITTEN ORDERS WAS DENIED, THIS OFFICE IS WITHOUT AUTHORITY TO ALLOW THIS PART OF YOUR CLAIM IN THE ABSENCE OF WRITTEN ORDERS AS REQUIRED BY THE CITED PROVISIONS OF LAW AND REGULATIONS.

ENTITLEMENT TO MEDICAL CARE FOR DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHO ARE "ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS" IS GOVERNED BY CHAPTER 55 OF TITLE 10, U.S.C. IMPLEMENTING REGULATIONS IN EFFECT DURING THE PERIOD HERE INVOLVED, CONTAINED IN ARMY REGULATION 40- 121, FEBRUARY 13, 1967, PROVIDED IN PARAGRAPH 4 THAT BOTH SPOUSES AND CHILDREN OF ACTIVE DUTY MEMBERS ARE ELIGIBLE FOR THESE BENEFITS. HOWEVER, PARAGRAPH 6A(1) PROVIDED THAT ELIGIBILITY ENDS "WHEN A MEMBER'S PERIOD OF ACTIVE DUTY ENDS." WHILE YOUR PERIOD OF ACTIVE DUTY FOR HOSPITALIZATION PURPOSES MAY HAVE BEEN INDEFINITE AT ITS INCEPTION, THE RECORD SHOWS THAT THE PERIOD OF ACTIVE DUTY FOR WHICH YOU WERE RECEIVING ACTIVE DUTY PAY AND ALLOWANCES UNDER 37 U.S.C. 204(G)(2) TERMINATED ON FEBRUARY 14, 1968, WHEN YOU WERE EXAMINED AT WALSON ARMY HOSPITAL, FORT DIX, NEW JERSEY, AND DECLARED FIT FOR FULL MILITARY DUTY. SINCE YOU STATE THAT YOUR DAUGHTER'S MEDICAL EXPENSES WERE INCURRED SUBSEQUENT TO THAT DATE AND IT IS CLEAR THAT YOU WERE NOT IN AN ACTIVE DUTY STATUS AT THAT TIME, THERE IS NO AUTHORITY FOR REIMBURSING YOU FOR YOUR DAUGHTER'S MEDICAL EXPENSES.

CONCERNING YOUR CLAIM FOR REEMPLOYMENT EXPENSES AND LOST INCOME SUBSEQUENT TO FEBRUARY 14, 1968, YOU ARE ADVISED THAT THE PURPOSE OF THE LAW UNDER WHICH YOU WERE PAID PAY AND ALLOWANCES IN CONNECTION WITH YOUR INJURY, IS TO EXTEND, AS NEARLY AS POSSIBLE, TO MEMBERS OF RESERVE COMPONENTS THE SAME PAY AND ALLOWANCES THAT A REGULAR MEMBER WOULD BE ENTITLED TO RECEIVE AS A RESULT OF AN IN-LINE-OF-DUTY INJURY FOR THE PERIOD OF SUCH DISABILITY.

UNDER THE FOREGOING AND OTHER SIMILAR STATUTORY PROVISIONS, IT HAS BEEN HELD THAT THE RIGHT OF A RESERVIST OR MEMBER OF THE NATIONAL GUARD TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES DURING PERIODS OF TEMPORARY DISABILITY DUE TO INJURY INCURRED IN LINE OF DUTY, IS BASED UPON HIS PHYSICAL INABILITY TO PERFORM MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUITS. SUCH PAYMENTS ARE NOT CONSIDERED TO BE COMPENSATION FOR A RESERVIST'S LOSS OF CIVILIAN EARNINGS DUE TO A LOSS OF CIVILIAN EMPLOYMENT OR FOR EXPENSES INCURRED IN CONNECTION WITH REGAINING CIVILIAN EMPLOYMENT.

WHILE YOU MAY HAVE BEEN ADVISED BY ADMINISTRATIVE SOURCES THAT PART OR ALL OF YOUR CLAIM IS PROPERLY PAYABLE, YOUR ATTENTION IS INVITED TO THE FACT THAT A MEMBER'S RIGHT TO PAY AND ALLOWANCES AND TO BE REIMBURSED FOR VARIOUS EXPENSES, IS GOVERNED BY APPLICABLE PROVISIONS OF LAW AND REGULATION, NOT BY CONTRARY INFORMATION WHICH MAY BE RECEIVED WITH RESPECT THERETO. THIS OFFICE IS WITHOUT AUTHORITY TO MAKE ANY EXCEPTION TO THE PROVISIONS OF LAW APPLICABLE TO A PARTICULAR CLAIM.

THERE BEING NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.