B-199960.OM, FEB 18, 1981

B-199960.OM: Feb 18, 1981

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THE FOLLOWING PERSONS ARE ENTITLED TO THE BENEFITS OF SUBSECTION (B): "(1) EACH RESERVE OF THE AIR FORCE. WHO IS INJURED. IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE. "(1) SO FAR AS ANY BENEFIT NAMED IN THIS SUBSECTION IS NOT PROVIDED FOR HIM UNDER SECTION 8721 OF THIS TITLE. ANY PERSON NAMED IN SUBSECTION (A) IS ENTITLED TO - "(1) THE HOSPITALIZATION. TO WHICH HE WAS ENTITLED AT THE TIME WHEN THE INJURY WAS INCURRED OR THE DISEASE CONTRACTED. THERE ARE THREE ELEMENTS OF EVERY INJURY OR DISEASE SITUATION WHICH MUST BE PRESENT BEFORE ANY BENEFITS AUTHORIZED UNDER 10 U.S.C. 8722 CAN INURE TO A MILITARY MEMBER. THEY ARE: (A) THE MEMBER MUST BE IN AN ACTIVE DUTY STATUS WHEN THE INCIDENT OCCURRED.

B-199960.OM, FEB 18, 1981

PRECIS-UNAVAILABLE

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

INDORSEMENT

RETURNED. SECTION 8722, TITLE 10, U.S.C. PROVIDES IN PERTINENT PART:

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE FOLLOWING PERSONS ARE ENTITLED TO THE BENEFITS OF SUBSECTION (B):

"(1) EACH RESERVE OF THE AIR FORCE, AND EACH OFFICER WHO HAS NO REGULAR OR RESERVE APPOINTMENT, AND WHO IS INJURED, OR CONTRACTS A DISEASE, IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE.

"(1) SO FAR AS ANY BENEFIT NAMED IN THIS SUBSECTION IS NOT PROVIDED FOR HIM UNDER SECTION 8721 OF THIS TITLE, ANY PERSON NAMED IN SUBSECTION (A) IS ENTITLED TO -

"(1) THE HOSPITALIZATION, REHOSPITALIZATION, AND MEDICAL AND SURGICAL CARE IN A HOSPITAL AND AT HIS HOME APPROPRIATE FOR THE TREATMENT OF HIS INJURY OR DISEASE UNTIL THE RESULTING DISABILITY CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT;

"(2) THE BASIC PAY AND ALLOWANCES, WHETHER IN MONEY OR IN KIND, TO WHICH HE WAS ENTITLED AT THE TIME WHEN THE INJURY WAS INCURRED OR THE DISEASE CONTRACTED, DURING THE PERIOD OF HIS HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN A TOTAL OF SIX MONTHS AFTER THE END OF HIS PRESCRIBED TOUR OF DUTY OR TRAINING;"

AT A MINIMUM, THERE ARE THREE ELEMENTS OF EVERY INJURY OR DISEASE SITUATION WHICH MUST BE PRESENT BEFORE ANY BENEFITS AUTHORIZED UNDER 10 U.S.C. 8722 CAN INURE TO A MILITARY MEMBER. THEY ARE: (A) THE MEMBER MUST BE IN AN ACTIVE DUTY STATUS WHEN THE INCIDENT OCCURRED, (B) THE AFFLICTION MUST BE DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY - NOT DUE TO OWN MISCONDUCT, AND (C) THAT THE AFFLICTION PREVENTED HIM FROM PERFORMING HIS NORMAL MILITARY DUTY.

THE FIRST ASPECT IS CLEARLY A MATTER OF FACT. HE WAS EITHER IN AN ORDERED ACTIVE DUTY STATUS AT THE TIME OF THE OCCURRENCE OR HE WAS NOT. THE SECOND DETERMINATION REQUIRES AN INVESTIGATION BY THE SERVICE ADMINISTRATIVE AUTHORITY WHICH HAS BEEN DELEGATED THE RESPONSIBILITY TO DETERMINE THE FACTS OF THE HAPPENING AND RENDER A SOUND JUDGMENT BASED ON THAT FINDING. THE THIRD CALLS FOR A SERVICE MEDICAL DETERMINATION AS TO THE INCURRENCE OF A DISABILITY, IF ANY, WHICH THE MEMBER HAS SUFFERED AS A RESULT OF THE INCIDENT.

CLEARLY, ADMINISTRATIVE AND MEDICAL DETERMINATIONS MADE BY APPROPRIATE SERVICE AUTHORITY ARE AUTHORIZED UNDER LAW AND REGULATIONS. SINCE THIS OFFICE IS WITHOUT JURISDICTION TO QUESTION THOSE MATTERS, IF A MEMBER WAS ACTUALLY IN AN ORDERED ACTIVE DUTY STATUS WHEN THE INCIDENT OCCURRED, THEN ADMINISTRATIVE IN-LINE-OF-DUTY DETERMINATIONS AND SERVICE MEDICAL DETERMINATIONS OF INABILITY TO PERFORM MILITARY DUTY DUE TO DISABILITY AND THE PERIOD THEREOF, ARE EVIDENCE OF THOSE FACTS SUBJECT ONLY TO REBUTTAL BY APPROPRIATE HIGHER SERVICE AUTHORITY THAT SUCH DETERMINATIONS WERE ERRONEOUS.

IN THE PRESENT CASE, IT IS ARGUED BY THE STAFF JUDGE ADVOCATE THAT THE MEMBER'S CONDITION WAS NOT IN LINE OF DUTY BECAUSE MEDICAL RECORDS SHOWED IT ANTEDATED MAY 27, 1977, WHICH APPARENTLY WAS ONE DAY PRIOR TO THE DATE HIS ACTIVE DUTY TOUR BEGAN BUT WAS A LEGITIMATE TRAVEL DAY IN CONNECTION WITH THAT ORDERED DUTY.

WE GENERALLY AGREE WITH THE STAFF JUDGE ADVOCATE. WHILE THE INFORMATION IN THE FILE REFLECTS THAT THE INFECTION WAS DISCOVERED BY SERVICE MEDICAL PERSONNEL ON THAT DATE, NOTHING IN THE FILE SUGGESTS THAT IT WAS INCURRED THEN. ACCORDING TO THE FILE, THE SUGGESTED POSSIBLE ORIGIN OF THE DISEASE, OR ITS AGGRAVATION, WAS THE EVENT OF MAY 21, 1977, WHEN THE MEMBER'S EARS WERE FLUSHED OUT IN PREPARATION FOR THE ISSUANCE OF EAR PLUGS FOR HIS ANNUAL TRAINING DUTY, WHICH WAS TO COMMENCE ONE WEEK LATER. APPARENTLY, THE EAR CLEANING PROCEDURE WAS PERFORMED BY MEDICAL PERSONNEL AT THE MCCHORD AFB CLINIC IN CONJUNCTION WITH HIS ATTENDANCE AT A UNIT TRAINING ASSEMBLY (INACTIVE DUTY TRAINING), ON MAY 21, 1977. THUS, SINCE IT APPEARS THAT THE "DISEASE" WAS INCURRED BEFORE THE MEMBER ENTERED ON ACTIVE DUTY, HE IS NOT ENTITLED TO CONTINUATION PAY UNDER 37 U.S.C. 204(G). WHILE INJURIES INCURRED ON INACTIVE DUTY TRAINING MAY ENTITLE A MEMBER TO DISABILITY CONTINUATION PAY UNDER 37 U.S.C. 204(G)(2), DISEASES INCURRED DURING INACTIVE DUTY TRAINING ARE NOT COVERED. AND, EVEN IF IT WERE DETERMINED THAT DISEASE WAS INCURRED WHILE HE WAS ON ACTIVE DUTY, SINCE HE WAS CALLED TO ACTIVE DUTY ONLY FOR THE PERIOD OF MAY 28-JUNE 11, HE WOULD NOT BE ENTITLED TO CONTINUATION PAY UNDER 37 U.S.C. 204(G)(1) WHICH REQUIRES A CALL TO ACTIVE DUTY OF MORE THAN 30 DAYS.

WE WOULD ALSO LIKE TO POINT OUT THAT EVEN IF SERGEANT ROBERTS IS FOUND TO HAVE BEEN IN AN ACTIVE DUTY STATUS THAT DAY AND WOULD MEET ALL THE MINIMUM REQUIREMENTS FOR BENEFITS UNDER 10 U.S.C. 8722(B)(1), HIS ENTITLEMENT TO DISABILITY CONTINUATION PAY AUTHORIZED UNDER 10 U.S.C. 8722(B)(2) IS EXTREMELY DOUBTFUL. THAT SUBPARAGRAPH AUTHORIZES THE PAYMENT OF BASIC PAY AND ALLOWANCES "DURING THE PERIOD OF HIS HOSPITALIZATION OR REHOSPITALIZATION." IT IS SUGGESTED THAT A POSITIVE IN-LINE-OF-DUTY DETERMINATION ACCOMPANIED BY A MEDICAL DETERMINATION OF DISABILITY WOULD BE CONCLUSIVE AS TO SERGEANT ROBERTS' PAY ENTITLEMENT, REFERENCING NOTE 5 OF RULES 5 AND 6 OF TABLE 8-2-4 OF THE DEPARTMENT OF DEFENSE PAY MANUAL (DODPM). WE DISAGREE. NOTE 5 STATES THAT THE TERM "HOSPITALIZATION OR REHOSPITALIZATION" INCLUDES PERIODS OF DISABILITY WHILE UNDER MEDICAL TREATMENT AS AN OUTPATIENT. THIS NOTE WAS DERIVED FROM OUR DECISION B-147477, APRIL 30, 1969, IN WHICH WE RULED THAT THE TEST FOR DETERMINING THE RIGHT OF A RESERVIST TO CONTINUE TO RECEIVE PAY AND ALLOWANCES UNDER THE BEFORE-QUOTED PROVISIONS IS NOT BASED ON A TECHNICAL RECORD STATUS AS A "PATIENT" IN A HOSPITAL. RATHER, IT IS THE CONTINUANCE OF THE DISABILITY AFTER ENTITLEMENT TO PAY AND ALLOWANCES HAS BEEN ESTABLISHED. SEE ALSO B-181014, JULY 10, 1974. IT IS TO BE NOTED, THAT THE MEMBER IN THAT CASE BEGAN HIS DISABILITY PERIOD IN A HOSPITALIZED STATUS, AND WAS CONTINUED IN AN OUTPATIENT STATUS. IN VIEW OF THE SPECIFIC LANGUAGE OF THAT PROVISION AUTHORIZING PAYMENT OF PAY AND ALLOWANCES DURING THE PERIOD OF HOSPITALIZATION, IT IS OUR VIEW THAT AN INITIAL PERIOD OF HOSPITALIZATION MUST BE CONSIDERED AS A MINIMUM REQUIREMENT UNDER THE LAW. COMPARE 37 U.S.C. 204(G), (H) AND (I).

SINCE THERE IS NOTHING IN THE FILE TO SHOW THAT SERGEANT ROBERTS WAS HOSPITALIZED AT ANY TIME FOR THIS CONDITION, IT WOULD, THUS, APPEAR THAT THERE IS NO LEGAL BASIS UPON WHICH DISABILITY CONTINUATION PAY WOULD BE AUTHORIZED IN HIS CASE.

DIGEST 1

AN AIR FORCE RESERVIST APPARENTLY SUFFERED A DISABLING EAR INFECTION AS A RESULT OF A SERVICE MEDICALLY CONDUCTED EAR EXAMINATION AND CLEANSING PROCEDURE PERFORMED ONE WEEK PRIOR TO HIS ANNUAL ACTIVE DUTY TRAINING PERIOD. ON QUESTION OF CONCLUSIVENESS OF HIS RIGHTS TO DISABILITY BENEFITS UNDER 10 U.S.C. 8722 BASED ON POSITIVE IN LINE OF DUTY AND DISABILITY DETERMINATIONS, SUCH DETERMINATIONS DO NOT ESTABLISH THAT A MEMBER WAS SERVING IN A PERIOD OF ORDERED ACTIVE DUTY AT THE TIME OF OCCURRENCE. THAT IS A QUESTION OF FACT AND IS AN ADDITIONAL MINIMUM REQUIREMENT UNDER THE LAW IN THE ABSENCE OF WHICH BENEFITS UNDER 10 U.S.C. 8722 WOULD NOT INURE TO HIM.

DIGEST 2

AN AIR FORCE RESERVIST APPARENTLY SUFFERED A DISABLING EAR INFECTION AS A RESULT OF A SERVICE MEDICALLY CONDUCTED EAR EXAMINATION AND CLEANSING PROCEDURE PERFORMED DURING AN INACTIVE DUTY TRAINING PERIOD ONE WEEK PRIOR TO HIS ACTIVE DUTY TRAINING PERIOD. WHERE THE LAW AND REGULATIONS HAS EMPOWERED SERVICE ADMINISTRATIVE AND MEDICAL AUTHORITIES TO MAKE IN LINE OF DUTY AND DISABILITY DETERMINATIONS, SUCH FINDINGS ARE CONCLUSIVE AS TO THOSE FACTS UNLESS ON REVIEW BY PROPERLY AUTHORIZED HIGHER SERVICE AUTHORITY SUCH DETERMINATIONS ARE FOUND TO BE ERRONEOUS. SEE THE "DISEASE" WAS INCURRED DURING INACTIVE DUTY, MEMBER IS NOT ENTITLED TO DISABILITY CONTINUATION PAY UNDER 37 U.S.C. 204(G).

DIGEST 3

AN AIR FORCE RESERVIST APPARENTLY SUFFERED A DISABLING EAR INFECTION AS A RESULT OF A SERVICE MEDICALLY CONDUCTED EAR EXAMINATION AND CLEANSING PROCEDURE PERFORMED ONE WEEK PRIOR TO HIS ANNUAL ACTIVE DUTY TRAINING PERIOD. NOTWITHSTANDING FACT THAT A RESERVIST MAY MEET MINIMUM REQUIREMENTS FOR BENEFITS UNDER 10 U.S.C. 8722(B)(1), FOR PURPOSES OF SUBSECTION (B)(2) THEREOF, IN ORDER FOR A RESERVIST TO RECEIVE DISABILITY CONTINUATION PAY FOR THE PERIOD OF HIS INABILITY TO PERFORM HIS NORMAL MILITARY DUTY, HE MUST BE AT LEAST INITIALLY HOSPITALIZED FOR HIS CONDITION. MERE MEDICAL CARE EVEN FOR A PROTRACTED PERIOD IS INSUFFICIENT TO MEET THE STATUTORY REQUIREMENT. COMPARE B-147477, APRIL 30, 1969.