B-168276, DEC. 16, 1969

B-168276, DEC. 16, 1969

PAY--RESERVISTS--INJURED ON INACTIVE DUTY TRAINING--OVERPAYMENT WHERE UNITED STATES COAST GUARD RESERVE MEMBER SUSTAINED INJURY IN LINE OF DUTY WHILE PARTICIPATING IN SCHEDULED DRILL AND, BEFORE DISCOVERING INJURY WAS DISABLING, PARTICIPATED IN REGULARLY SCHEDULED DRILLS, EVEN THOUGH MEMBER'S COMMANDING OFFICER STATED THAT DUE TO MISLEADING INSTRUCTIONS HE WAS UNAWARE THAT RETURN TO LIMITED PAY STATUS WOULD TERMINATE ENTITLEMENT TO DISABILITY PAY AND ALLOWANCES, PAY ACCOUNT MAY NOT BE RECREDITED WITH WITHHELD OVERPAYMENT AMOUNTS, SINCE MEMBER IS NOT ENTITLED TO FULL ACTIVE DUTY PAY AND ALLOWANCES SUBSEQUENT TO RETURN TO LIMITED DUTY STATUS UNDER COMPTROLLER GENERAL DECISIONS WHICH CLEARLY STATE THAT RETURN TO RESERVE DUTY IS DETERMINING FACTOR IN ESTABLISHING TERMINATION DATE UNDER PROVISIONS IN 37 U.S.C. 204 (G), (H), (I), WHICH AUTHORIZE ACTIVE DUTY PAY AND ALLOWANCES DURING PERIOD OF DISABILITY RESULTING FROM INJURY INCURRED IN LINE OF DUTY.

TO ADMIRAL WILLARD J. SMITH:

FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 10, 1969, SIGNED BY J. E. GARVEY, AUTHORIZED CERTIFYING OFFICER, REQUESTING REVIEW AND DETERMINATION AS TO THE PROPRIETY OF RECREDITING THE PAY ACCOUNT OF CHIEF PETTY OFFICER LONNIE L. CROW, 2005843, U. S. COAST GUARD RESERVE, WITH AMOUNTS WITHHELD FROM HIS PAY BECAUSE OF OVERPAYMENT OF PAY AND ALLOWANCES DURING THE PERIOD DECEMBER 4, 1968, TO JANUARY 2, 1969, INCIDENT TO AN INJURY INCURRED ON NOVEMBER 13, 1968, WHILE PARTICIPATING IN A REGULARLY SCHEDULED COAST GUARD RESERVE DRILL.

IT APPEARS FROM THE INFORMATION CONTAINED IN THE REQUEST THAT ON NOVEMBER 13, 1968, MR. CROW SUSTAINED AN INJURY WHILE ATTENDING INACTIVE DUTY TRAINING (DRILL) AND THAT SUCH INJURY WAS DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY, NOT DUE TO HIS OWN MISCONDUCT. APPARENTLY, THE SEVERITY AND DISABLING NATURE OF THE INJURY WAS NOT DISCOVERED UNTIL LATER, AT WHICH TIME HIS PERSONAL PHYSICIAN DIRECTED HIS HOSPITALIZATION IN A CIVILIAN HOSPITAL. AS A RESULT OF THE INJURY AND SUBSEQUENT DISABILITY A CERTIFICATE OF ELIGIBILITY FOR DISABILITY PAY (ACTIVE-DUTY PAY DURING DISABILITY) WAS ISSUED ON DECEMBER 16, 1968. BASED UPON A MEDICAL CERTIFICATION BY HIS PERSONAL PHYSICIAN DATED JANUARY 15, 1969, IN WHICH IT WAS STATED THAT THE MEMBER HAD RESUMED HIS CIVILIAN OCCUPATION ON JANUARY 3, 1969, BUT WAS STILL UNDERGOING MEDICAL TREATMENT, THE MEMBER WAS PAID FULL ACTIVE DUTY PAY AND ALLOWANCES FROM NOVEMBER 14, 1968, TO JANUARY 2, 1969.

IT APPEARS THAT SUBSEQUENT TO MR. CROW'S RETURN TO HIS CIVILIAN OCCUPATION, IT WAS DISCOVERED THAT HE HAD ATTENDED AND PARTICIPATED IN THREE REGULARLY SCHEDULED DRILLS ON DECEMBER 4, 11 AND 18, 1968, FOR WHICH HE WAS PAID. AS A RESULT, IT HAS NOW BEEN ADMINISTRATIVELY DETERMINED THAT HE ENTERED A PAID DRILL STATUS EFFECTIVE DECEMBER 4, 1968, AND ADMINISTRATIVE STEPS HAVE BEEN TAKEN TO RECOVER THE OVERPAYMENT OF THE FULL PAY AND ALLOWANCES PAID FOR THE PERIOD SUBSEQUENT TO DECEMBER 3, 1968. SUCH DETERMINATION APPARENTLY WAS BASED ON OUR DECISIONS, 37 COMP. GEN. 588 (1958); 43 COMP. GEN. 733 (1964) AND 47 COMP. GEN. 716 (1968).

IT IS REPORTED THAT THE INSTRUCTIONS INCLUDED WITH THE "NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS," FURNISHED THE MEMBER, STATED THAT ENTITLEMENT WOULD CONTINUE ON SUBMISSION OF "A CERTIFICATION BY THE COGNIZANT MILITARY OR CIVILIAN MEDICAL AUTHORITY THAT BECAUSE OF CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH THE MEMBER WAS HOSPITALIZED, HE CONTINUES TO BE UNFIT FOR FULL MILITARY DUTY OR FULL TIME NORMAL CIVILIAN PURSUITS." HIS COMMANDING OFFICER STATES THAT DUE TO DEFECTIVE PROCEDURES AND MISLEADING INSTRUCTIONS, HE WAS UNAWARE THAT THE RETURN OF THE MEMBER TO A LIMITED DUTY STATUS WOULD TERMINATE HIS ENTITLEMENT TO DISABILITY PAY AND ALLOWANCES AND HAD THAT FACT BEEN KNOWN THE MEMBER WOULD NOT HAVE BEEN PERMITTED TO ATTEND THE INDICATED DRILLS IN DECEMBER 1968.

PROVISIONS RELATING TO ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES AFTER AN ORDERED PERIOD OF ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR A MEMBER OF THE COAST GUARD 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(I) PROVIDES IN PERTINENT PART:

"A MEMBER OF THE * * * COAST GUARD RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE * * * REGULAR COAST GUARD * * * OF CORRESPONDING GRADE AND LENGTH OF SERVICE, UNDER THE SAME CONDITIONS AS THOSE DESCRIBED IN CLAUSES (1) AND (2) OF SUBSECTION (G) OF THIS SECTION." SUBSECTION (G) PROVIDES FOR SUCH ENTITLEMENT WHENEVER THE MEMBER "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."

IN OUR DECISION OF MAY 19, 1964, 43 COMP. GEN. 733 (AT PAGE 737), IT WAS STATED THAT:

"IT SEEMS REASONABLY CLEAR THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER THE ABOVE-CITED PROVISIONS OF LAW WHILE THE MEMBER CONCERNED IS TEMPORARILY DISABLED BY INJURY INCURRED IN LINE OF DUTY, IS BASED UPON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUIT, AND THAT THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE EXERCISE OF A SOUND ADMINISTRATIVE JUDGMENT. IF, DESPITE HIS INJURY, THE SERVICE CONCERNED SHOULD ACTUALLY RETURN HIM 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, WE WOULD REGARD THE CONTINUED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IN SUCH CIRCUMSTANCES AS BEING TOO DOUBTFUL TO WARRANT OUR APPROVAL OF SUCH PAYMENT. 37 COMP. GEN. 558. IN EACH CASE, THE SERVICE CONCERNED SHOULD DETERMINE WHEN THE INJURED RESERVIST RECOVERS SUFFICIENTLY TO BE FIT TO PERFORM HIS NORMAL MILITARY DUTIES. IN MAKING THAT DETERMINATION, THE SERVICE SHOULD APPLY THE SAME STANDARDS IT WOULD APPLY IN THE CASE OF A MEMBER OF THE REGULAR SERVICE."

THE ABOVE-QUOTED LANGUAGE APPEARS IN SEVERAL SUBSEQUENT DECISIONS, NAMELY, 45 COMP. GEN. 54 (1965); 47 COMP. GEN. 531 (1968) AND 48 COMP. GEN. 1 (1968). THUS FOR A NUMBER OF YEARS THE DECISIONS OF THIS OFFICE HAVE CLEARLY STATED THAT THE ACTUAL RETURN OF A RESERVE MEMBER TO A RESERVE DUTY STATUS IS THE DETERMINING FACTOR IN ESTABLISHING THE TERMINATION DATE FOR PAY AND ALLOWANCES AUTHORIZED BY SUBSECTIONS (G), (H) OR (I) OF SECTION 204, TITLE 37, U.S.C. IN THE CIRCUMSTANCES, THERE APPEARS TO BE NO BASIS FOR CONCLUDING THAT MR. CROW CONTINUED TO BE ENTITLED TO RECEIVE PAY AND ALLOWANCES UNDER 37 U.S.C. 204(I) FOR THE PERIOD SUBSEQUENT TO DECEMBER 3, 1968.

CONCERNING THE COMMANDING OFFICER'S STATMENT CONTAINED IN FIRST INDORSEMENT OF AUGUST 13, 1969, THAT MR. CROW IS BEING "DENIED COMPENSATION FOR TIME LOST IN HIS CIVILIAN OCCUPATION DUE TO AN INJURY SUSTAINED DURING A REGULARLY SCHEDULED DRILL", IT SHOULD BE NOTED THAT THE AMOUNTS PAYABLE UNDER 37 U.S.C. 204(G), (H), (I), ARE NOT INTENDED IN ANY WAY TO BE COMPENSATION FOR LOSS OF CIVILIAN EARNINGS. THE PURPOSE OF THE LAW 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 IN SIMILAR CIRCUMSTANCES.

IT IS UNFORTUNATE THAT THE ADMINISTRATIVE INSTRUCTIONS AND REGULATIONS IN THIS CASE DID NOT ACCURATELY REFLECT THE PROVISIONS OF LAW UPON WHICH THEY WERE BASED. HOWEVER, A MEMBER'S RIGHTS ARE GOVERNED BY APPLICABLE PROVISIONS OF LAW.