B-168403, FEBRUARY 19, 1970, 49 COMP. GEN. 507

B-168403: Feb 19, 1970

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HAVE REFERENCE TO "BATTLE CASUALTIES. " WHICH IS DEFINED IN CASUALTY REGULATIONS AS INCLUDING PERSONS WOUNDED OR INJURED "IN ACTION. EXCLUDING ONE WHO IS ILL FROM ILLNESS OR MEDICAL CAUSE OR RECEIVES INJURIES RESULTING FROM NONCOMBATANT ACCIDENT. ONLY WHEN A MEMBER IS CLASSIFIED AS A CASUALTY AS THE RESULT OF HOSTILE ACTION MAY HE BE PAID HOSTILE FIRE PAY FOR A PERIOD NOT TO EXCEED 3 MONTHS WHILE HOSPITALIZED. 1970: REFERENCE IS MADE TO LETTER DATED NOVEMBER 15. FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) IN WHICH DECISION IS REQUESTED ON QUESTIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 437. THE QUESTIONS STATED IN THE COMMITTEE ACTION ARE AS FOLLOWS: 1. IS A MEMBER WHO IS HOSPITALIZED FOR A WOUND RECEIVED FROM A FRIENDLY FIRE IN A DESIGNATED HOSTILE FIRE AREA ENTITLED TO HOSTILE FIRE PAY? 2.

B-168403, FEBRUARY 19, 1970, 49 COMP. GEN. 507

PAY -- ADDITIONAL -- HOSTILE FIRE PAY -- HOSPITALIZATION FOR TREATMENT OF INJURIES, ETC. -- ENTITLEMENT TO SPECIAL PAY DETERMINATIONS THE TERMS "HOSTITLE FIRE," "EXPLOSION OF A HOSTILE MINE," OR "OTHER HOSTILE ACTION" AS USED IN 37 U.S.C. 310(A)(3) AUTHORIZING 3 ADDITIONAL MONTHS OF HOSTILE FIRE PAY FOR A MEMBER OF THE UNIFORMED SERVICES HOSPITALIZED FOR TREATMENT OF AN INJURY OR WOUND, HAVE REFERENCE TO "BATTLE CASUALTIES," WHICH IS DEFINED IN CASUALTY REGULATIONS AS INCLUDING PERSONS WOUNDED OR INJURED "IN ACTION," EVEN IF WOUNDED MISTAKENLY OR ACCIDENTALLY BY FRIENDLY FIRE, AND EXCLUDING ONE WHO IS ILL FROM ILLNESS OR MEDICAL CAUSE OR RECEIVES INJURIES RESULTING FROM NONCOMBATANT ACCIDENT, FELONIOUS ASSAULT, ATTEMPTED SUICIDE, OR SELF INFLICTED WOUNDS. THEREFORE, ONLY WHEN A MEMBER IS CLASSIFIED AS A CASUALTY AS THE RESULT OF HOSTILE ACTION MAY HE BE PAID HOSTILE FIRE PAY FOR A PERIOD NOT TO EXCEED 3 MONTHS WHILE HOSPITALIZED.

TO THE SECRETARY OF DEFENSE, FEBRUARY 19, 1970:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 15, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) IN WHICH DECISION IS REQUESTED ON QUESTIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 437, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, RELATING TO THE PROPRIETY OF PAYING HOSTILE FIRE PAY FOR PERIODS OF HOSPITALIZATION UNDER AUTHORITY OF THE PROVISIONS OF 37 U.S.C. 310.

THE QUESTIONS STATED IN THE COMMITTEE ACTION ARE AS FOLLOWS: 1. IS A MEMBER WHO IS HOSPITALIZED FOR A WOUND RECEIVED FROM A FRIENDLY FIRE IN A DESIGNATED HOSTILE FIRE AREA ENTITLED TO HOSTILE FIRE PAY? 2. WOULD THE ANSWER BE THE SAME IF THE MEMBER IS INJURED OR WOUNDED FROM AN EXPLOSION OF A MINE EMPLACED BY FRIENDLY FORCES, OR FROM EXPLOSION OF ORDNANCE OF FRIENDLY FORCES, WHILE SUCH MEMBER IS SERVING IN A DESIGNATED HOSTILE FIRE AREA? 3. WOULD THE ANSWER BE THE SAME IF THE MEMBER IS HOSPITALIZED FOR AN ILLNESS OF ANY NATURE WHICH IS CONTRACTED IN A DESIGNATED HOSTILE FIRE AREA AND IS NOT THE RESULT OF HIS OWN MISCONDUCT? 4. IF SUCH A MEMBER IS NOT ENTITLED TO HOSTILE FIRE PAY UNDER EXISTING REGULATIONS, WOULD THERE BE ANY LEGAL OBJECTION TO AMENDING THE REGULATION SO AS TO PERMIT PAYMENT OF SUCH PAY UNDER THE CIRCUMSTANCES ENUMERATED UNDER THE DISCUSSION?

IN THE ACCOMPANYING DISCUSSION IT IS STATED THAT THE SPECIFIC MATTER IN QUESTION INVOLVES A MEMBER ASSIGNED TO AN ARMY COMPANY IN THE REPUBLIC OF VIETNAM, A DESIGNATED HOSTILE FIRE AREA, WHO, IN RETURNING TO HIS SQUAD'S LOCATION AFTER PARTICIPATING IN THE PREPARATION OF A NIGHT AMBUSH POSITION TO INCREASE SECURITY AROUND THE COMPANY LOCATION, WAS FIRED UPON BY A MEMBER OF HIS OWN SQUAD WITHOUT BEING CHALLENGED. HE RECEIVED WOUNDS IN HE STOMACH, BACK AND CHEST AND WAS SUBSEQUENTLY EVACUATED TO FITZSIMONS ARMY GENERAL HOSPITAL.

ALSO REFERRED TO IS A CASE, STATED TO HAVE ARISEN IN THE MARINE CORPS, INVOLVING A MEMBER IN VIETNAM WHO APPARENTLY WENT BERSERK AND KILLED A CAPTAIN AND SERIOUSLY INJURED TWO LIEUTENANTS AND AN ENLISTED MEMBER. THE INJURED ENLISTED MAN WAS TRANSFERRED TO A HOSPITAL IN THE UNITED STATES.

SECTION 310 OF TITLE 37, U.S.C. ADDED AS A NEW SECTION TO CHAPTER 5 OF THAT TITLE BY SECTION 9 OF THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 216, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) EXCEPT IN TIME OF WAR DECLARED BY CONGRESS, AND UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, A MEMBER OF A UNIFORMED SERVICE MAY BE PAID SPECIAL PAY AT THE RATE OF $65 A MONTH FOR ANY MONTH IN WHICH HE WAS ENTITLED TO BASIC PAY AND IN WHICH HE--

(1) WAS SUBJECT TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES;

(2) WAS ON DUTY IN AN AREA IN WHICH HE WAS IN IMMINENT DANGER OF BEING EXPOSED TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES AND IN WHICH, DURING THE PERIOD HE WAS ON DUTY IN THAT AREA, OTHER MEMBERS OF THE UNIFORMED SERVICES WERE SUBJECT TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES; OR

(3) WAS KILLED, INJURED, OR WOUNDED BY HOSTILE FIRE, EXPLOSION OF A HOSTILE MINE, OR ANY OTHER HOSTILE ACTION. A MEMBER COVERED BY CLAUSE (3) WHO IS HOSPITALIZED FOR THE TREATMENT OF HIS INJURY OR WOUND MAY BE PAID SPECIAL PAY UNDER THIS SECTION FOR NOT MORE THAN THREE ADDITIONAL MONTHS DURING WHICH HE IS SO HOSPITALIZED.

(C) ANY DETERMINATION OF FACT THAT IS MADE IN ADMINISTERING THIS SECTION IS CONCLUSIVE. SUCH DETERMINATION MAY NOT BE REVIEWED BY ANY OTHER OFFICE OR AGENCY OF THE UNITED STATES UNLESS THERE HAS BEEN FRAUD OR GROSS NEGLIGENCE. HOWEVER, THE DETERMINATION MAY BE CHANGED ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE.

THE HOSTILE FIRE PAY PROVISIONS CONTAINED IN 37 U.S.C. 310 WERE PROPOSED IN H. R. 3006, 88TH CONGRESS, SUPERSEDED BY H. R. 5555, 88TH CONGRESS, WHICH BECAME THE UNIFORMED SERVICES PAY ACT OF 1963. THE TESTIMONY TAKEN IN THE HEARINGS ON THE PROPOSAL (PAGES 1714 TO 1729, HEARINGS BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H. R. 3006, HELD MARCH 7, 1963) SHOWS THE INTENTION TO PROVIDE, ON A PERMANENT BASIS, TANGIBLE RECOGNITION OF THE DANGEROUS TASKS OF CERTAIN MEMBERS OF THE ARMED FORCES WHO, OTHER THAN IN TIME OF WAR DECLARED BY CONGRESS, ARE ASSIGNED DUTIES IN VARIOUS PARTS OF THE WORLD WHERE THEY ARE EXPOSED TO THE HAZARDS OF INJURY AND DEATH FROM HOSTILE FIRE.

THE COMBAT DUTY PAY ACT OF 1952, 66 STAT. 538 (REPEALED BY SECTION 9(B) OF THE 1963 ACT, 37 U.S.C. 310(B)) AUTHORIZED SPECIAL PAY FOR MEMBERS OF COMBAT UNITS IN KOREA, PROVIDED THEY WERE IN ACTION FOR SPECIFIED PERIODS OF TIME. IN 1963, HOWEVER, THE HOSTILITIES IN VIETNAM DID NOT INVOLVE CLEARLY DISTINGUISHABLE LINE OF DEMARCATION BETWEEN FRIENDLY AND ENEMY FORCES, AS IN KOREA. INSTEAD, THERE WAS THE POSSIBILITY OF EXPOSURE TO HOSTILE FIRE IN ALMOST ANY AREA OR LOCATION. THUS, THE CONCEPT OF EXPOSURE TO POSSIBLE HOSTILE ACTIVITY WAS USED AS THE BASIS FOR THE SPECIAL PAY AUTHORIZED IN SECTION 310. THIS SECTION IS LESS RESTRICTIVE IN THAT RESPECT THAN THE COMBAT DUTY PAY ACT OF 1952 WHICH LIMITED HOSTILE FIRE PAY TO COMBAT TROOPS IN ACTION.

HOSTILE FIRE PAY NOW IS AUTHORIZED FOR ALL MEMBERS OF THE UNIFORMED SERVICES SERVING IN VIETNAM ON THE BASIS OF ITS DESIGNATION AS A HOSTILE FIRE AREA BY THE SECRETARY OF DEFENSE PURSUANT TO THE STATUTE. SEE THE DISCUSSION RELATING TO HOSTILE FIRE PAY PROVISIONS AT PAGE 1716, HEARINGS BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H. R. 3006, 88TH CONGRESS, HELD MARCH 7, 1963.

THE TERMS "HOSTILE FIRE," "EXPLOSION OF A HOSTILE MINE," OR "OTHER HOSTILE ACTION" AS USED IN CLAUSE (3) AND THE LAST SENTENCE OF 37 U.S.C. 310(A)--WHICH SENTENCE AUTHORIZES A MAXIMUM OF THREE ADDITIONAL MONTHS' HOSTILE FIRE PAY WHILE A MEMBER IS HOSPITALIZED FOR THE TREATMENT OF INJURIES OR WOUNDS RESULTING FROM HOSTILE FIRE, EXPLOSION OF A HOSTILE MINE OR OTHER HOSTILE ACTION--ARE NOT DEFINED IN THE LAW. HOWEVER, CASUALTY REPORTING SYSTEMS WERE IN EXISTENCE IN THE ARMED SERVICES DURING AND PRIOR TO THE PERIOD OF THE CONGRESSIONAL CONSIDERATION OF SECTION 310. THESE ARE EXEMPLIFIED BY ARMY REGULATION 600-65, DATED MARCH 15, 1961, WHICH PROVIDED FOR NOTIFYING THE ADJUTANT GENERAL OF CASUALTIES AS THE BASIS FOR THE PAYMENT OF BENEFITS, DETERMINATION OF STATUS AND THE MAINTENANCE OF STATISTICS. A "BATTLE CASUALTY" INCLUDED A MEMBER WHO WAS WOUNDED "IN ACTION," THAT IS, ONE WHOSE WOUND WAS SUSTAINED IN COMBAT OR IN GOING TO OR RETURNING FROM A COMBAT MISSION WHEN THE OCCURRENCE WAS DIRECTLY RELATED TO ACTIONS OF A HOSTILE FORCE, OR ACTIONS OF OUR OWN OR ALLIED FORCES. INJURIES OR ILLNESSES DUE TO THE ELEMENTS, EXHAUSTION, OR SELF-INFLICTED WOUNDS WERE NOT CONSIDERED BATTLE CASUALTIES.

THE CURRENT ARMY CASUALTY SYSTEM, ARMY REGULATION 600-10, EFFECTIVE SEPTEMBER 1, 1966, DEFINES A "CASUALTY AS THE RESULT OF HOSTILE ACTION (BATTLE CASUALTY IN CASE OF DECLARED WAR)," TO INCLUDE A PERSON WOUNDED OR INJURED IN ACTION. EXCLUDED IS ONE WHO IS ILL FROM ILLNESS OR MEDICAL CAUSE OR RECEIVES INJURIES RESULTING FROM NONCOMBATANT ACCIDENT, FELONIOUS ASSAULT OR ATTEMPTED SUICIDE. "IN ACTION" CHARACTERIZES THE CASUALTY STATUS (WOUND) AS HAVING BEEN THE DIRECT RESULT OF HOSTILE ACTION; SUSTAINED IN COMBAT AND RELATED THERETO; OR SUSTAINED GOING OR RETURNING FROM A COMBAT MISSION PROVIDED THAT THE OCCURRENCE WAS DIRECTLY RELATED TO HOSTILE ACTION. INCLUDED ARE PERSONS WOUNDED MISTAKENLY OR ACCIDENTALLY BY FRIENDLY FIRE IN THE PRESENCE OF A HOSTILE FORCE OR WHILE IN ACTION IN THE FACE OF A HOSTILE FORCE. PERSONS SUFFERING INJURIES DUE TO THE ELEMENTS OR SELF INFLICTED WOUNDS ARE NOT CONSIDERED "CASUALTIES AS THE RESULT OF HOSTILE ACTION."

IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE STATUTE WE BELIEVE THAT THE TERMS USED IN CLAUSE 3 OF SECTION 310(A) ARE TO BE VIEWED AS HAVING REFERENCE TO "BATTLE CASUALTIES" AS DEFINED IN THOSE REGULATIONS. UNDER THE PROVISIONS OF THE REGULATIONS THE DECISION AS TO THE CLASSIFICATION OF A "CASUALTY AS THE RESULT OF HOSTILE ACTION" (BATTLE CASUALTY) IS MADE BY THE CASUALTY OFFICER OF THE UNIT TO WHICH THE MEMBER BELONGS, SO THAT DETERMINATION IS ORDINARILY MADE IN THE FIELD BY THOSE FAMILIAR WITH THE CIRCUMSTANCES.

ACCORDINGLY, WE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENT OF HOSTILE FIRE PAY WHILE HOSPITALIZED TO WOUNDED OR INJURED MEMBERS WHO ARE CLASSIFIED AS CASUALTIES AS THE RESULT OF HOSTILE ACTION UNDER APPLICABLE CASUALTY REGULATIONS. SEE, IN ADDITION TO AR600-10, C-9805 OF THE BUREAU OF NAVAL PERSONNEL MANUAL, MARINE CORPS ORDER 3040.4, AND AIR FORCE MANUAL 30-4.

EXISTING PAY REGULATIONS WHICH SIMPLY RESTATE THE LAW, RULE 9, TABLE 1-10 -1 DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, DO NOT DENY ENTITLEMENT IN SUCH CASES. IF, THEREFORE, THE MEMBERS CONCERNED IN THE QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 437, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, HAVE BEEN "6ASSIFIED AS CASUALTIES AS THE RESULT OF HOSTILE ACTION UNDER APPLICABLE CASUALTY REGULATIONS THEY MAY BE PAID HOSTILE FIRE PAY FOR NOT MORE THAN 3 "ADDITIONAL" MONTHS WHILE HOSPITALIZED.