B-167558, OCT. 15, 1969

B-167558, OCT. 15, 1969

NATIONAL GUARD--DEATH OR INJURY--WHILE ON TRAINING DUTY--PERFORMANCE OF LIMITED DUTY CLAIM FOR MILITARY PAY AND ALLOWANCES INCIDENT TO INJURY AND DISABILITY INCURRED WHILE ATTENDING ANNUAL NATIONAL GUARD FIELD TRAINING IS DENIED, AS NATIONAL GUARD MEMBER'S RIGHT TO CONTINUE RECEIVING ACTIVE DUTY PAY AND ALLOWANCES DURING PERIODS OF TEMPORARY DISABILITY RESULTING FROM LINE OF DUTY INJURY IS BASED UPON PHYSICAL INABILITY TO PERFORM MILITARY DUTY, NOT NORMAL CIVILIAN PURSUITS; ABSENT INFORMATION FROM OFFICIAL MEDICAL SOURCE SHOWING CLAIMANT'S DISABILITY PREVENTED PERFORMANCE OF LIMITED DUTIES REQUIRED UPON HIS RETURN TO DUTY STATUS, AND SINCE CLAIMANT ATTENDED TWO DRILL SESSIONS DURING PERIOD COVERED BY CLAIM FOR WHICH HE WAS PAID, INJURY APPARENTLY DID NOT INTERFERE WITH PERFORMANCE OF HIS DRILL SESSION DUTIES, AND NO BASIS FOR PAYMENT IS SEEN.

TO MR. JAMES S. HENRY:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 29, 1969, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR MILITARY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 3, 1968, THROUGH OCTOBER 28, 1968, INCIDENT TO AN INJURY AND DISABILITY INCURRED BY YOU ON JULY 25, 1968, WHILE ATTENDING ANNUAL FIELD TRAINING AS A MEMBER OF THE MICHIGAN ARMY NATIONAL GUARD.

PROVISIONS RELATING TO ENTITLEMENT TO THE CONTINUATION OF ACTIVE DUTY PAY AND ALLOWANCES, BEYOND THE ORDERED PERIOD OF TRAINING DUTY, FOR A MEMBER OF THE NATIONAL GUARD DURING A PERIOD OF DISABILITY RESULTING FROM AN INJURY INCURRED IN LINE OF DUTY, ARE CONTAINED IN 37 U.S.C. 204. SUBSECTION 204 (H) PROVIDES IN PERTINENT PART:

"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 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---

* * * * * * * "/2) FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.' SEE, ALSO, 32 U.S.C. 318, PROVIDING FOR HOSPITAL BENEFITS ETC., DURING PERIODS OF DISABILITY INCURRED DURING TRAINING.

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 CONTINUE 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. IF, DESPITE THE INJURY, THE MEMBER SHOULD ACTUALLY BE RETURNED 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, HIS RIGHT TO PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES AFTER RETURN TO SUCH STATUS HAS BEEN VIEWED AS BEING TOO DOUBTFUL TO WARRANT OUR APPROVAL OF SUCH PAYMENT. 37 COMP. GEN. 558; 43 COMP. GEN. 733; AND 48 COMP. GEN. 1.

ALTHOUGH IT WAS RECOMMENDED AT THE TIME OF YOUR DISCHARGE FROM THE NAVAL HOSPITAL AT GREAT LAKES, ILLINOIS, ON JULY 30, 1968, THAT YOU "BE FOLLOWED BY * * * (YOUR) NATIONAL GUARD PHYSICIAN," NO INFORMATION HAS BEEN FURNISHED FROM AN OFFICIAL MEDICAL SOURCE WHICH SHOWS THAT YOUR DISABILITY WAS SUCH AS TO PREVENT YOU FROM PERFORMING ANY LIMITED DUTIES REQUIRED UPON YOUR RETURN TO A DUTY STATUS ON AUGUST 2, 1968. THE LETTER OF AUGUST 15, 1969, FROM YOUR CIVILIAN DOCTOR THROWS NO LIGHT ON THIS MATTER. SUCH CIRCUMSTANCES AND SINCE YOU STATE THAT YOU ATTENDED TWO DRILL SESSIONS AT THE NATIONAL GUARD ARMORY IN SEPTEMBER AND OCTOBER 1968, FOR WHICH YOU WERE PAID, IT APPEARS THAT YOUR INJURY DID NOT INTERFERE WITH THE PERFORMANCE OF THE DUTIES REQUIRED OF YOU AT SUCH DRILL SESSIONS. THE PRESENT RECORD THUS APPEARS TO FURNISH NO BASIS FOR ALLOWING PAYMENT FOR ANY PERIOD SUBSEQUENT TO AUGUST 2, 1968.

IF YOU BELIEVE THAT YOU HAVE NOT BEEN TREATED JUSTLY, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF 10 U.S.C. 1552 WHICH AUTHORIZE THE SECRETARY OF THE ARMY THROUGH THE PROCEDURE THERE PROVIDED, TO CORRECT A MILITARY RECORD WHEN THE SECRETARY CONSIDERS SUCH ACTION NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' SUBSECTION (C) PROVIDES FOR THE PAYMENT OF THE AMOUNT FOUND DUE AS A RESULT OF SO CORRECTING A MILITARY RECORD.