B-26483, AUGUST 26, 1942, 22 COMP. GEN. 158

B-26483: Aug 26, 1942

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PROCEEDS TO HIS DUTY STATION AND IS IMMEDIATELY HOSPITALIZED AND "RELIEVED FROM ACTIVE DUTY" AT THE TIME OF HIS DISCHARGE FROM THE HOSPITAL MAY NOT BE CONSIDERED AS HAVING BEEN IN AN ACTIVE DUTY STATUS ENTITLING HIM TO ACTIVE DUTY PAY AND ALLOWANCES. YOUR DECISION IS REQUESTED AS TO WHAT PERIOD OF TIME ACTIVE DUTY PAY AND ALLOWANCES MAY BE PROPERLY CREDITED IN THE CASE OF A RETIRED OFFICER. "YOU ARE HEREBY ORDERED TO ACTIVE DUTY. IT WILL BE NOTED FROM ENCLOSURES (A). REPORTED FOR DUTY BUT IN SUCH POOR HEALTH THAT HE WAS IMMEDIATELY HOSPITALIZED. THIS OFFICER WAS SUBSEQUENTLY DISCHARGED FROM TREATMENT ON 7 APRIL 1942. HAS HELD THAT A RETIRED OFFICER OF THE NAVY DETACHED FROM DUTY AND ORDERED TO REPORT TO A NAVAL HOSPITAL FOR TREATMENT IS NOT.

B-26483, AUGUST 26, 1942, 22 COMP. GEN. 158

PAY - HOSPITALIZATION DURING ENTIRE PERIOD BETWEEN DATE OF REPORTING AND RELIEF FROM ACTIVE DUTY A RETIRED NAVY OFFICER WHO, PURSUANT TO ORDERS TO REPORT FOR ACTIVE DUTY, PROCEEDS TO HIS DUTY STATION AND IS IMMEDIATELY HOSPITALIZED AND "RELIEVED FROM ACTIVE DUTY" AT THE TIME OF HIS DISCHARGE FROM THE HOSPITAL MAY NOT BE CONSIDERED AS HAVING BEEN IN AN ACTIVE DUTY STATUS ENTITLING HIM TO ACTIVE DUTY PAY AND ALLOWANCES.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 26, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 2, 1942, WITH WHICH YOU FORWARDED A LETTER FROM THE OFFICER-IN-1CHARGE, OFFICERS' ACCOUNTS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

REFERENCE: (A) COMPT. DECISION OF 21 DECEMBER 1910; ART. 2142-15, S. AND A. MEMO. SELECTED DECISIONS. (B) COMP. GEN. DEC: A-14138 OF 17 JUNE 1926; ART. 2142-15 S. AND A. MEMO. SELECTED DECISIONS.

ENCLOSURE: (A) COPY OF BUNAV ORDERS 14478 OF 26 DEC. 1941. (B) COPY OF BUNAV ORDERS T-17444 OF 27 JAN. 1942. (C) COPY OF BUNAV ORDERS 28202 OF 31 MAR. 1942. (D) STATEMENT OF RETIRED PAY ACCOUNT.

1. YOUR DECISION IS REQUESTED AS TO WHAT PERIOD OF TIME ACTIVE DUTY PAY AND ALLOWANCES MAY BE PROPERLY CREDITED IN THE CASE OF A RETIRED OFFICER, WHO, UPON RECEIPT OF ORDERS WHICH READ,"YOU ARE HEREBY ORDERED TO ACTIVE DUTY," DOES IN FACT REPORT FOR DUTY IN COMPLIANCE THEREWITH; BUT WHO IMMEDIATELY THEREAFTER UNDERGOES EXTENDED HOSPITALIZATION, FOLLOWED BY DISCHARGE FROM TREATMENT AND RELEASE FROM ACTIVE DUTY.

2. IT WILL BE NOTED FROM ENCLOSURES (A), (B), AND (C), THAT THE CLAIMANT LIEUT. JOSEPH E. MCNANAMY, CHC, U.S.N., RETIRED, RECEIVED ACTIVE DUTY ORDERS ON 27 DECEMBER 1941; PROCEEDED IN COMPLIANCE THEREWITH ON 28 DECEMBER 1941; AND ON 29 DECEMBER 1941, REPORTED FOR DUTY BUT IN SUCH POOR HEALTH THAT HE WAS IMMEDIATELY HOSPITALIZED. THIS OFFICER WAS SUBSEQUENTLY DISCHARGED FROM TREATMENT ON 7 APRIL 1942, AND RELEASED FROM ALL ACTIVE DUTY.

3. THE COMPTROLLER, IN REFERENCE (A), HAS HELD THAT A RETIRED OFFICER OF THE NAVY DETACHED FROM DUTY AND ORDERED TO REPORT TO A NAVAL HOSPITAL FOR TREATMENT IS NOT, WHILE BEING TREATED THEREIN, PERFORMING DUTY WITHIN THE MEANING OF THE STATUTE. THIS DECISION IS NOT STRICTLY APPLICABLE TO THE CASE OF CHAPLAIN MCNANAMY SINCE HERE, WE HAVE NO DETACHMENT FROM ACTIVE DUTY PRIOR TO TREATMENT. FURTHER, BY THE ISSUANCE OF SUBSEQUENT ORDERS DIRECTING RELEASE FROM ACTIVE DUTY UPON DISCHARGE FROM TREATMENT, A PRIOR ACTIVE DUTY STATUS IS PRESUPPOSED AND RECOGNIZED.

4. IN REFERENCE (B), THE COMPTROLLER GENERAL HELD THAT ORDERS ALONE DO NOT GIVE A RETIRED OFFICER RIGHT TO ACTIVE DUTY PAY; AND THAT A MERE FORMAL ASSIGNMENT TO DUTY WHEN A RETIRED OFFICER IS UNDERGOING HOSPITAL TREATMENT AND HIS PHYSICAL CONDITION IS SUCH THAT HE CANNOT PERFORM ACTIVE DUTY, DOES NOT ENTITLE HIM TO ACTIVE DUTY PAY. CHAPLAIN MCNANAMY CONTENDS THAT THIS DECISION IS LIKEWISE NOT APPLICABLE IN VIEW OF THE FACT THAT HIS ACTIVE DUTY STATUS COMMENCED ON DATE OF RECEIPT OF ORDERS, THAT HE PROCEEDED AND REPORTED AT HIS DUTY STATION IN COMPLIANCE WITH THE DIRECTIVES CONTAINED THEREIN, AND THAT HOSPITALIZATION COMMENCED SUBSEQUENTLY THERETO.

5. AS WILL BE NOTED IN ENCLOSURE (D), THIS ACTIVITY HAS CREDITED THE ACCOUNT OF CHAPLAIN MCNANAMY WITH STRAIGHT RETIREMENT PAY FOR THE PERIOD OF TIME IN QUESTION, WHICH PROCEDURE WILL BE CONTINUED PENDING RECEIPT OF YOUR OPINION. RETURN OF ENCLOSURES IS REQUESTED.

THE ACT OF JULY 1, 1918, 40 STAT. 704, 717, AS AMENDED BY SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632 (34 U.S.C. 423), PROVIDES THAT DURING THE EXISTENCE OF WAR OR A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST ANY COMMISSIONED OR WARRANT OFFICER OF THE NAVY OR MARINE CORPS ON THE RETIRED LIST MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE ORDERED TO ACTIVE DUTY AT SEA OR ON SHORE. SECTION 17 OF THE ACT OF JUNE 10, 1922, SUPRA, AS AMENDED BY THE ACT OF MAY 26, 1928, 45 STAT. 774, PROVIDES IN PART AS FOLLOWS:

* * * RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE AND RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES, AND WHEN ON ACTIVE-DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST * * *.

ORDERS DATED DECEMBER 26, 1941, FROM THE CHIEF OF THE BUREAU OF NAVIGATION, ADDRESSED TO THE OFFICER AT LEECHBURG, PA., ARE AS FOLLOWS:

SUBJECT: TO DUTY, NAVAL TRAINING SCHOOL ( AVIATION), NAVY PIER, CHICAGO, ILL.

1. YOU ARE HEREBY RECALLED TO ACTIVE DUTY.

2. HAVING BEEN FOUND PHYSICALLY QUALIFIED FOR SHORE DUTY, YOU WILL PROCEED TO CHICAGO, ILL., AND ON DECEMBER 27, 1941, REPORT TO THE COMMANDING OFFICER, NAVAL TRAINING SCHOOL ( AVIATION), NAVY PIER, FOR DUTY.

3. REPORT ALSO BY LETTER TO THE COMMANDANT, NINTH NAVAL DISTRICT, FOR THIS DUTY.

4. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

INDORSEMENTS THEREON INDICATE THAT THE OFFICER RECEIVED THE ORDERS ON DECEMBER 27, 1941; THAT HE DEPARTED BY PRIVATELY OWNED CONVEYANCE FOR HIS STATION ON DECEMBER 28, ARRIVING AT CHICAGO THE SAME DAY; AND THAT HE "REPORTED" FOR DUTY ON DECEMBER 29 AT THE NAVY PIER BUT, BECAUSE OF ILLNESS, WAS TRANSFERRED TO THE NAVAL HOSPITAL, GREAT LAKES, ILL. BY ORDERS DATED JANUARY 27, 1942, THE OFFICER WAS TRANSFERRED FEBRUARY 2, 1942, ACCOMPANIED BY THE NECESSARY ATTENDANTS TO THE NAVAL HOSPITAL, WASHINGTON, D.C., AND IT IS INDICATED THAT HE REPORTED AT THAT PLACE AND WAS ADMITTED FOR TREATMENT ON FEBRUARY 3, 1942. TREATMENT AT THIS HOSPITAL WAS CONTINUED UNTIL APRIL 7, 1942, WHEN HE WAS DISCHARGED FROM THE HOSPITAL AND RELIEVED FROM ACTIVE DUTY. SEE ORDERS DATED MARCH 31, 1942, BUREAU OF NAVIGATION. THE QUESTION YOU PRESENT IS WHETHER OR NOT PAYMENTS OF ACTIVE DUTY PAY AND ALLOWANCES TO THE OFFICER ARE AUTHORIZED DURING ANY PART OF THE ABOVE PERIOD.

THE STATUTE AUTHORIZING THE ORDERING OF RETIRED OFFICERS TO ACTIVE DUTY DURING WAR OR NATIONAL EMERGENCY DECLARED BY THE PRESIDENT CONTEMPLATES THE PERFORMANCE OF ACTIVE DUTY BY THE OFFICER SO ORDERED. MERE ORDERS ISSUED PURSUANT TO STATUTORY AUTHORITY PLACING RETIRED MILITARY OR NAVAL OFFICERS ON ACTIVE DUTY DO NOT ENTITLE AN OFFICER TO ACTIVE DUTY PAY AND ALLOWANCES IF NO ACTIVE DUTY IS PERFORMED. SEE FOR EXAMPLE 21 COMP. GEN. 781; B-25296, JUNE 19, 1942; A-14138, JUNE 17, 1926. IN OTHER WORDS, UNTIL AN OFFICER HAS COMPLIED WITH HIS ORDERS BY REPORTING AND ACTUALLY ENTERING UPON ACTIVE DUTY PURSUANT TO HIS ORDERS, HE IS NOT IN AN ACTIVE DUTY STATUS ENTITLING HIM TO ACTIVE DUTY PAY AND ALLOWANCES OR WITHIN THE MEANING OF SECTION 17 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 26, 1928, AUTHORIZING PAY AND ALLOWANCES FOR RETIRED OFFICERS WHILE SICK "WHEN ON ACTIVE-DUTY STATUS.'

THE MERE ISSUANCE OF AN ORDER CANNOT CREATE THE STATUS OF ACTIVE DUTY OF A RETIRED OFFICER, OTHERWISE THE PROVISION FOR A REDUCED PAY UPON RETIREMENT FROM THE ACTIVE LIST COULD BE DEFEATED BY THE ISSUANCE OF ORDERS TO ACTIVE DUTY. THE AUTHORITY TO PLACE A RETIRED OFFICER ON ACTIVE DUTY IS TO SECURE TO THE GOVERNMENT THE BENEFIT OF ACTIVE SERVICE BY ONE NOT OTHERWISE REQUIRED TO RENDER ANY SERVICE FOR THE GOVERNMENT; AND WHEN NO ACTIVE SERVICES ARE PERFORMED THE ORDER TO ACTIVE DUTY NEVER BECOMES EFFECTIVE. HERE THERE WAS TRAVEL BY THE OFFICER TO AND FROM THE PLACES DESIGNATED AND MILEAGE HAS BEEN PAID TO THE OFFICER FOR THE TRAVEL PERFORMED BY HIM IN HIS ENDEAVOR TO COMPLY WITH HIS ORDERS, BUT THOSE PROPER PAYMENTS FOR SUCH TRAVEL UNDER THE ORDERS, IN THIS CASE, IN VIEW OF THE OTHER FEATURES, DO NOT CREATE AN ACTIVE DUTY STATUS. IT IS CLEAR THAT THE OFFICER IN THE PRESENT CASE PERFORMED NO DUTY AND IN FACT DID NOT ENTER UPON ACTIVE DUTY PURSUANT TO HIS ORDERS AT ANY TIME DURING THE PERIOD HERE INVOLVED. ACCORDINGLY, PAYMENT OF PAY AND ALLOWANCES TO THE OFFICER DURING SUCH PERIOD IS NOT AUTHORIZED.