Claim by Member of National Guard Disabled in Line of Duty

B-193386: Jun 8, 1979

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An Army Finance and Accounting Officer, Fort McCoy, Wisconsin, requested an advance decision as to the propriety of making payment on a voucher for disability pay and allowances over a 5-month period to an enlisted member of the Minnesota National Guard. The member was injured in the line of duty when struck by a falling tree while performing his 2-week annual active duty for training with his National Guard unit. He completed the tour in a limited duty status but suffered continuing pain and was referred to the Veterans Hospital at Fargo, North Dakota. After a few days, he was discharged with the notation "advised to try working," and he received disability pay through that date. However, physical discomfort prevented the member from performing his civilian occupation as a self-employed farmer and he sought further medical treatment from private physicians. Five months after his injury, the member's civilian physician stated that a degree of residual disability was to be expected and no prediction of a return to active duty status could be made. Eight months after his mishap, the member was evaluated at Fitzsimmons Army Medical Center, Denver, Colorado, and was pronounced fit to return to active duty with no limitations. Between the date of injury and his medical clearance by Fitzsimmons, the member was excused from attending his unit training meetings. The requester expressed doubt that the member was entitled to disability pay for any period beyond his initial release from the Fargo Veterans Hospital. Federal statute provides for payment for disabilities incurred by service members while performing active duty for training and Department of Defense regulations exist to implement this policy. Statements by a member's civilian physicians are to be accepted as equivalent to those of military physicians in determining a member's fitness for duty. Furthermore, the equivocal remarks accompanying the member's discharge from the Fargo Veterans facility constituted merely a conditional release and could not be interpreted as a determination of fitness for service. Accordingly, the member was allowed disability pay from the time of his injury through his final examination at, and release from, Fitzsimmons Army Medical Center.