B-198560.OM, JUN 30, 1980

B-198560.OM, JUN 30, 1980

SUBJECT: DISABILITY CONTINUATION PAY, MASTER SERGEANT JOHN M. ROE, USAFR B-198560-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED HEREWITH IS CLAIMS FILE NO. Z-2786896, CONCERNING THE ENTITLEMENT OF MASTER SERGEANT JOHN M. ROE, USAFR, TO RECEIVE CONTINUATION OF MILITARY PAY AND ALLOWANCES FOR THE PERIOD MARCH 11, 1974, THROUGH OCTOBER 19, 1974, INCIDENT TO AN INJURY HE SUSTAINED ON MARCH 10, 1974.

THE FILE REFLECTS THAT THE MEMBER, WHILE SERVING IN A PERIOD OF ACTIVE DUTY FOR TRAINING AS A LOADMASTER, SUSTAINED HEAD INJURIES. WHILE HE WAS INITIALLY EXAMINED AND TREATED BY SERVICE MEDICAL AUTHORITY THAT SAME DAY, IT APPEARS THAT THE REQUIRED DOCUMENTATION IN SUPPORT OF HIS ENTITLEMENT WAS NEITHER PREPARED REASONABLY CONTEMPORANEOUSLY WITH THE EVENT, NOR MAINTAINED DURING THE PERIOD OF RECOUPERATION. SUCH DOCUMENTATION WHICH EXISTS IN THE CASE WAS NOT PREPARED UNTIL AFTER HE WAS RETURNED TO FULL DUTY ON JULY 14, 1973.

THAT PORTION OF THE CLAIM COVERING THE PERIOD OCTOBER 20, 1974, THROUGH JULY 13, 1975, WAS PAID ADMINISTRATIVELY. THAT PORTION COVERING THE PRIOR PERIOD (MARCH 11, 1974, THROUGH OCTOBER 19, 1974) WAS DISALLOWED BY SETTLEMENT DATED MARCH 24, 1980. THE REASON GIVEN WAS THAT WHILE ALL THE NECESSARY DOCUMENTS (LINE-OF-DUTY DETERMINATION AND SERVICE MEDICAL DETERMINATIONS) EXIST IN THE FILE, THE FACT THAT THEY WERE NOT PREPARED UNTIL AT LEAST 6 MONTHS AFTER THE MEMBER WAS CERTIFIED FIT FOR DUTY AND THE FACT THAT THE MEMBER CONTINUED TO PERFORM PERIODS OF ACTIVE AND INACTIVE DUTY DURING THE PERIOD OF HIS SUPPOSED DISABILITY CREATED TOO MUCH DOUBT AS TO THE PROPRIETY OF PAYMENT.

SUBSECTION 204(G)(2) OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER OF THE AIR FORCE RESERVE IS ENTITLED TO PAY AND ALLOWANCES OF A MEMBER OF THE REGULAR AIR FORCE OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER THE MEMBER IS CALLED OR ORDERED TO PERFORM ACTIVE DUTY FOR ANY PERIOD AND IS DISABLED IN LINE OF DUTY FROM INJURY.

WHILE IT IS APPROPRIATE AND DESIRABLE THAT PROMPT IN-LINE-OF-DUTY DETERMINATIONS AND MEDICAL CERTIFICATIONS BY SERVICE MEDICAL AUTHORITY BE ISSUED, WE ARE NOT AWARE THAT DELAYS IN THEIR ISSUANCE, EVEN WELL AFTER THE MEMBER IS CERTIFIED AS FIT FOR DUTY, WOULD PRECLUDE RECOVERY. IT IS OUR VIEW THAT SO LONG AS SUBSTANTIVE AND PROPER CERTIFICATIONS ARE ISSUED BY PROPER SERVICE AUTHORITY, SUCH DOCUMENTATION IS SUFFICIENT FOR 37 U.S.C. 204(G)(2) PURPOSES.

WITH REGARD TO THE MEMBER'S PERFORMANCE OF SUBSEQUENT PERIODS OF ACTIVE AND INACTIVE DUTY, IN 52 COMP.GEN. 99 (1972), WE SAID THAT NEITHER THE PHYSICAL PRESENCE OF AN INJURED RESERVIST AT A REGULAR DRILL NOR A CONDITIONAL ASSIGNMENT TO LIMITED DUTY CONSTITUTES AN EVENT WHICH WOULD TERMINATE ENTITLEMENT TO PAY AND ALLOWANCES ON ACCOUNT OF AN INJURY INCURRED IN LINE OF DUTY WHILE PERFORMING MILITARY DUTY.

IN THE PRESENT CASE, THE MEMBER'S CONDITION WAS DETERMINED BY A SERVICE MEDICAL OFFICER TO BE ANXIETY REACTION AND MENTAL FATIGUE AS A RESULT OF HIS HEAD INJURY. WHILE THAT CONDITION MAY NOT HAVE PREVENTED HIM FROM PERFORMING SOME FORM OF MILITARY DUTY, THE FILE DOES REFLECT THAT AS LATE AS APRIL 15, 1975, IT WAS DETERMINED BY A SERVICE MEDICAL OFFICER THAT THE MEMBER WAS UNABLE TO PERFORM HIS LOADMASTER DUTIES, WHICH WE UNDERSTAND IS HIS PRIMARY MILITARY OCCUPATIONAL SPECIALTY.

IN VIEW OF ALL THE REPORTED CIRCUMSTANCES IN THIS CASE, IT APPEARS NOT UNREASONABLE TO CONCLUDE THAT HIS IN-LINE-OF-DUTY DISABILITY WITH AN ACCOMPANYING INABILITY TO PERFORM HIS FULL MILITARY DUTIES EXISTED DURING THE PERIOD FROM MARCH 11, 1974, THROUGH JULY 13, 1975. COMPARE B-166861- O.M., AUGUST 1, 1969, AND B-179120-O.M., OCTOBER 31, 1973.

ACCORDINGLY, SETTLEMENT SHOULD ISSUE IN SERGEANT ROE'S CASE FOR THE PERIOD MARCH 11, 1974, THROUGH OCTOBER 19, 1974, LESS ANY PAY RECEIVED FOR THE PERIODS OF ACTIVE AND INACTIVE DUTY PERFORMED, IF OTHERWISE CORRECT.