B-168076, NOV. 24, 1969 - CON.

B-168076, NOV. 24, 1969 - CON.

PAY--ACTIVE DUTY--RESERVISTS--INJURED IN LINE OF DUTY--RETURN TO CIVILIAN OCCUPATION WHILE DISABLED CLAIM FOR MILITARY PAY AND ALLOWANCES FOR PERIOD AUG. 26 THROUGH 31, 1968, INCIDENT TO INJURY AND DISABILITY INCURRED AUG. 23, WHILE ON INACTIVE DUTY TRAINING AS MEMBER OF UNITED STATES ARMY RESERVE (SUBSEQUENT TO WHICH CIVILIAN PHYSICIAN SUGGESTED CLAIMANT ABSTAIN FROM CIVILIAN EMPLOYMENT FOR 4 DAYS) IS AGAIN DENIED, AS NO INFORMATION HAS BEEN FURNISHED FROM OFFICIAL MEDICAL SOURCE SHOWING CLAIMANT'S DISABILITY WAS SUCH AS TO PREVENT PERFORMANCE OF MILITARY DUTIES, REASON HE DID NOT RECEIVE SERVICE MEDICAL TREATMENT FOR INJURY WAS APPARENTLY HIS FAILURE TO FOLLOW PRESCRIBED PROCEDURE FOR OBTAINING SUCH TREATMENT; AND WHEN CLAIMANT PERFORMED MILITARY DUTIES AUG. 25, 1968 WITHOUT COMPLAINT, COMMANDING OFFICER HAD NO REASON TO SUPPOSE HE NEEDED MEDICAL ATTENTION. MEDICAL TREATMENT--PRIVATE--RESERVIST--AFTER RELEASE FROM DUTY CLAIM FOR REIMBURSEMENT OF CIVILIAN MEDICAL AND X-RAY EXPENSES INCURRED IN CONNECTION WITH INJURY SUFFERED WHILE ON INACTIVE DUTY TRAINING AS MEMBER OF UNITED STATES ARMY RESERVE IS DENIED, AS MEDICAL CARE FOR ARMY PERSONNEL FROM CIVILIAN SOURCES IS AUTHORIZED AT ARMY EXPENSE ONLY WHEN SUCH CARE CANNOT BE PROVIDED BY MEDICAL FACILITIES OF ARMED FORCES OR BY OTHER FEDERAL MEDICAL TREATMENT FACILITIES (ARMY REGULATIONS 40-3, PAR. 83), AND CLAIMANT HAS FURNISHED NO INFORMATION SHOWING HE MADE ATTEMPT TO SECURE MEDICAL TREATMENT AT ARMED FORCES OR OTHER FEDERAL MEDICAL TREATMENT FACILITY AFTER RETURNING HOME FOLLOWING TERMINATION OF TRAINING DUTY.

TO MR. ANTHONY P. GONZALEZ, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 26, 1969, CONCERNING YOUR CLAIM FOR MILITARY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 26 THROUGH 31, 1968, INCIDENT TO AN INJURY AND DISABILITY INCURRED BY YOU ON AUGUST 23, 1968, WHILE ON INACTIVE DUTY TRAINING AS A MEMBER OF THE U.S. ARMY RESERVE.

IT APPEARS FROM THE INFORMATION FURNISHED THIS OFFICE THAT ON THE EVENING OF AUGUST 23, 1968, YOU SUSTAINED AN INJURY TO YOUR LEFT KNEE AND THAT SUCH INJURY WAS DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY. YOU STATE THAT YOU SOUGHT MEDICAL ATTENTION ON THE FOLLOWING DAY, BUT FOR REASONS NOT ENTIRELY CLEAR, SUCH TREATMENT WAS NOT MADE AVAILABLE TO YOU. YOU STATE ALSO THAT ON AUGUST 25, YOU AGAIN PERFORMED YOUR REQUIRED DUTIES AS A RESERVIST AND THAT YOU DID NOT SEEK MEDICAL ATTENTION THAT DAY, IT BEING STATED THAT YOUR LEG FELT BETTER. APPARENTLY, THE MEDICAL ATTENTION RECEIVED WAS THAT OF A CIVILIAN PHYSICIAN ON AUGUST 27, 1968, AFTER RELEASE FROM YOUR RESERVE DUTY, WHO SUGGESTED THAT YOU ABSTAIN FROM WORK (CIVILIAN EMPLOYMENT) "FOR THE NEXT 4 DAYS.'

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

"A MEMBER OF THE ARMY * * * (OTHER THAN OF THE REGULAR ARMY * * *) IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY * * *, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER---

"/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.'

UNDER THE FOREGOING STATUTORY PROVISIONS, IT HAS BEEN HELD THAT THE RIGHT OF A RESERVIST 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 (1958), 43 COMP. GEN. 733 (1964) AND 48 COMP. GEN. 1 (1968).

ALTHOUGH THE RECORD PROVIDES SOME INFORMATION FROM YOUR PERSONAL PHYSICIAN RELATIVE TO YOUR INABILITY TO PERFORM YOUR CIVILIAN PURSUITS, NO INFORMATION HAS BEEN FURNISHED FROM AN OFFICIAL MEDICAL SOURCE SHOWING THAT YOUR DISABILITY WAS SUCH AS TO PREVENT YOU FROM PERFORMING YOUR MILITARY DUTIES. WHILE YOU NOW STATE THAT YOU WERE REFUSED MEDICAL ATTENTION AT A SERVICE FACILITY, YOUR SWORN STATEMENT DATED MARCH 2, 1969, CONTAINS INFORMATION TO THE EFFECT THAT ON AUGUST 24, 1968, A MAJOR HEIDEN ORDERED A SERGEANT TO TAKE YOU TO THE AIR FORCE DISPENSARY AT FORT CUSTER, MICHIGAN -- APPARENTLY LOCATED NEAR THE AREA WHERE YOU WERE PERFORMING TRAINING DUTY -- FOR TREATMENT. ALTHOUGH YOU AVER THAT TREATMENT WAS REFUSED BECAUSE YOU DID NOT HAVE A "SICK SLIP" , IT APPEARS THAT YOU DID NOT THEREAFTER ATTEMPT TO SECURE THE REQUISITE SICK SLIP OR TRY TO OBTAIN MEDICAL TREATMENT AT AN ARMED FORCES MEDICAL FACILITY.

IT THUS APPEARS THAT THE REASON YOU DID NOT RECEIVE SERVICE MEDICAL TREATMENT FOR YOUR INJURY WAS DUE TO YOUR FAILURE TO FOLLOW THE PROCEDURE PRESCRIBED FOR OBTAINING SUCH TREATMENT. IN THE ABSENCE OF SUCH TREATMENT, THERE IS NO SERVICE MEDICAL OFFICER WHO WAS AWARE OF YOUR PHYSICAL CONDITION AT THAT TIME AND WHO CAN NOW EXPRESS AN OPINION AS TO WHETHER YOUR INJURY WAS SUCH AS TO PREVENT YOU FROM PERFORMING YOUR MILITARY DUTIES. WHEN YOU PERFORMED SUCH DUTIES ON AUGUST 25, 1968, WITHOUT COMPLAINT, THERE WAS NO REASON FOR YOUR COMMANDING OFFICER TO SUPPOSE THAT YOU NEEDED MEDICAL ATTENTION. IN THE ABSENCE OF EVIDENCE AS TO THE DISABLING EFFECT OF YOUR INJURY WITH RESPECT TO YOUR MILITARY DUTIES, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM AND OUR CLAIMS DIVISION DISALLOWANCE OF SEPTEMBER 23, 1969, IS SUSTAINED.

CONCERNING THE MATTER OF REIMBURSEMENT OF CIVILIAN MEDICAL AND X-RAY EXPENSES INCURRED IN CONNECTION WITH YOUR INJURY, YOU ARE ADVISED THAT MEDICAL CARE FOR ARMY PERSONNEL FROM CIVILIAN SOURCES IS AUTHORIZED AT ARMY EXPENSE ONLY WHEN SUCH CARE CANNOT BE PROVIDED BY MEDICAL FACILITIES OF THE ARMED FORCES OR BY OTHER FEDERAL MEDICAL TREATMENT FACILITIES. SEE PARAGRAPH 83, ARMY REGULATIONS 40-3. YOU HAVE FURNISHED NO INFORMATION WHICH SHOWS THAT YOU MADE ANY ATTEMPT TO SECURE MEDICAL TREATMENT AT AN ARMED FORCES OR OTHER FEDERAL MEDICAL TREATMENT FACILITY AFTER YOU RETURNED TO YOUR HOME IN DETROIT FOLLOWING THE TERMINATION OF YOUR TRAINING DUTY. IN THE ABSENCE OF EVIDENCE SHOWING THAT SUCH MEDICAL TREATMENT WAS NOT AVAILABLE FOR YOUR USE, PAYMENT OF CIVILIAN EXPENSES IS NOT AUTHORIZED.

WITH RESPECT TO YOUR INQUIRY AS TO THE APPEAL PROCEDURES OF THIS OFFICE, YOU ARE ADVISED THAT DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE FEDERAL DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN MATTERS. SEE 28 U.S.C. 1346, 1491.