B-5025, JULY 26, 1939, 19 COMP. GEN. 112

B-5025: Jul 26, 1939

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO WAS INJURED WHILE EN ROUTE. - SEVERAL DAYS BEFORE ANY TRAVEL WAS REQUIRED BY HIS ORDERS AND ARRIVED AT THE PIER FROM WHICH THE TRAINING VESSEL DEPARTED TOO LATE TO REPORT ON BOARD BUT REPORTED TWO DAYS LATER. TO THE COMMANDANT OF THE NAVAL DISTRICT CONCERNED WHERE HE WAS REEXAMINED AND FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE TRAINING DUTY. ON OR ABOUT 1 JULY 1939 YOU WILL REPORT TO MED. 6 OF THIS ORDER WILL BE CANCELLED. YOU WILL RETURN TO YOUR HOME. 3. IF FOUND PHYSICALLY QUALIFIED YOU WILL PROCEED TO NEW YORK. YOU WILL BE EXAMINED PHYSICALLY. WILL RETURN TO YOUR HOME. UPON ARRIVAL AT YOUR HOME YOU WILL CONSIDER YOURSELF RELEASED FROM TRAINING DUTY. 5. YOU ARE ENTITLED TO ACTIVE-DUTY PAY OF YOUR RANK AS INDICATED IN THESE ORDERS DURING THIS TRAINING DUTY AND FOR THE TIME REQUIRED IN TRAVELING (BY THE SHORTEST USUALLY TRAVELED ROUTE) FROM YOUR HOME TO THE PLACE OF REPORTING.

B-5025, JULY 26, 1939, 19 COMP. GEN. 112

PAY, MILEAGE, ETC. - NAVAL RESERVE OFFICER ORDERED TO ACTIVE DUTY FOR TRAINING - INJURY EN ROUTE A NAVAL RESERVE OFFICER WHO COMMENCED TRAVEL FOR ACTIVE DUTY FOR TRAINING SOME TIME PRIOR TO THAT REQUIRED OR NECESSARY TO COMPLY WITH HIS ORDERS. AND WHO WAS INJURED WHILE EN ROUTE--- CIRCUMSTANCES NOT SHOWN--- SEVERAL DAYS BEFORE ANY TRAVEL WAS REQUIRED BY HIS ORDERS AND ARRIVED AT THE PIER FROM WHICH THE TRAINING VESSEL DEPARTED TOO LATE TO REPORT ON BOARD BUT REPORTED TWO DAYS LATER, AS DIRECTED, TO THE COMMANDANT OF THE NAVAL DISTRICT CONCERNED WHERE HE WAS REEXAMINED AND FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE TRAINING DUTY, CANNOT BE REGARDED AS TRAVELING UNDER ORDER WHEN INJURED WITHIN THE MEANING OF THE DISABILITY, ETC., BENEFIT PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1181, NOR ENTITLED TO ACTIVE DUTY PAY OR MILEAGE FOR THE INVOLVED TRAVEL.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 26, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 19, 1939, TRANSMITTING THE REQUEST OF THE CHIEF OF THE BUREAU OF NAVIGATION (FILE NAV-162-GT 76331-8) FOR DECISION ON THE DUTY AND PAY STATUS OF ENSIGN DONALD OWEN VAN NESS, DE -V (G), U.S. NAVAL RESERVE, UNDER ORDERS, HEADQUARTERS NINTH NAVAL DISTRICT, GREAT LAKES, ILL, AS FOLLOWS:

FROM: COMMANDANT, NINTH NAVAL DISTRICT.

TO: ENS. DONALD OWEN VAN NESS, DE-VG USNR, 43 E. OHIO ST., IN CARE OF BAKELITE CO., CHICAGO, ILL.

SUBJECT: ORDERS TO TRAINING DUTY WITH PAY: COMMISSIONED OR CHIEF WARRANT OFFICERS.

ENCLOSURES: S. AND A. FORM 201 AND HEALTH RECORD.

1. ON OR ABOUT 1 JULY 1939 YOU WILL REPORT TO MED. OFF. USNR ARMORY, CHICAGO, ILL., FOR PHYSICAL EXAMINATION.

2. IF FOUND NOT PHYSICALLY QUALIFIED, PARAGRAPH 3, 4, 5, 6 OF THIS ORDER WILL BE CANCELLED, AND YOU WILL RETURN TO YOUR HOME.

3. IF FOUND PHYSICALLY QUALIFIED YOU WILL PROCEED TO NEW YORK, N.Y., AND REPORT TO THE COMMANDING OFFICER OF THE U.S.S. QUINCY BEFORE NOON ON 8 JULY 1939 FOR TRAINING DUTY FOR A PERIOD OF 14 DAYS.

4. UPON COMPLETION OF THIS TRAINING DUTY, YOU WILL BE EXAMINED PHYSICALLY, AND WILL RETURN TO YOUR HOME. UPON ARRIVAL AT YOUR HOME YOU WILL CONSIDER YOURSELF RELEASED FROM TRAINING DUTY.

5. BRING THESE ORDERS WITH YOU UPON REPORTING FOR TRAINING DUTY. INABILITY TO COMPLY WITH THESE ORDERS MUST BE REPORTED TO THE COMMANDANT IMMEDIATELY.

6. YOU ARE ENTITLED TO ACTIVE-DUTY PAY OF YOUR RANK AS INDICATED IN THESE ORDERS DURING THIS TRAINING DUTY AND FOR THE TIME REQUIRED IN TRAVELING (BY THE SHORTEST USUALLY TRAVELED ROUTE) FROM YOUR HOME TO THE PLACE OF REPORTING, AND FROM PLACE OF DETACHMENT TO YOUR HOME UPON COMPLETION OF TRAINING DUTY, AND MILEAGE TO PLACE OF REPORTING FOR TRAINING AND FROM PLACE OF DETACHMENT FROM SAME.

THE DESPATCH 10110-1045 OF JULY 10, 1939, FROM THE COMMANDANT, NINTH NAVAL DISTRICT, TO THE COMMANDANT, THIRD NAVAL DISTRICT, IS AS FOLLOWS:

10110 ENSIGN D. O. VAN NESS NAVAL RES UNDER ORDERS REPORT QUINCY PRIOR NOON SATURDAY EIGHT JULY REPORTED UNABLE TO COMPLY BECAUSE SPRAINED ANKLE GAVE ADDRESS SEVEN SEVEN NINE EAST AND EIGHT THREE STREET NEW YORK CITY WAS DIRECTED REPORTED YOU BY TELEPHONE AND REQUEST INSTRUCTIONS. REQUEST YOU MODIFY HIS ORDERS AS NECESSARY TO PERMIT HIM COMPLETE FOURTEEN DAYS TRAINING DUTY AND ADVISE COMBINE ACTION TAKEN AND BY LETTER CIRCUMSTANCES CONCERNING INJURY 1045

THE COMMANDANT, THIRD NAVAL DISTRICT, ON JULY 11, 1939, ADDRESSED THE FOLLOWING COMMUNICATION TO THE CHIEF, BUREAU OF NAVIGATION:

FROM: COMMANDANT, THIRD NAVAL DISTRICT.

TO: THE CHIEF OF THE BUREAU OF NAVIGATION.

SUBJECT: REQUEST FOR DECISION ON DUTY AND PAY STATUS OF ENSIGN DONALD OWEN VAN NESS, DE-V (G), USNR.

REFERENCE: (A) ARTICLE H-7301 (1), (2), AND (3), BULNAV MANUAL.

ENCLOSURE: (A) ORDERS TO TRAINING DUTY WITH PAY--- ND9 4 LMM (19678-39 76331 OF 20 JUNE 1939. (B) HEALTH RECORD, U.S. NAVY FORM H, OF ENSIGN DONALD OWEN VAN NESS, DE-V (G), USNR. (C) COMBINE DESPATCH 10110 1045 OF 10 JULY 1939.

1. ENSIGN DONALD OWEN VAN NESS, DE-V/G), USNR, REPORTED AT THIS DISTRICT HEADQUARTERS ON THE MORNING OF 10 JULY 1939 AND STATED THAT HE HAD FAILED TO REPORT ON BOARD THE U.S.S. QUINCY DUE TO CERTAIN UNUSUAL CIRCUMSTANCES.

2. ENSIGN VAN NESS STATED THAT---

(A) HE IS A TRAVELING SALESMAN AND THAT HE HAD REQUESTED THE COMMANDANT'S OFFICE, 9TH NAVAL DISTRICT, TO WORK HIS ORDERS IN SUCH MANNER AS TO PERMIT HIM TO TAKE HIS PHYSICAL EXAMINATION IN CHICAGO DURING A TIME CONVENIENT TO HIMSELF.

(B) HE LEFT CHICAGO FOR NEW YORK BY PRIVATE AUTOMOBILE ON 1 JULY 1939.

(C) HE SPRAINED HIS ANKLE BADLY AT A POINT IN PENNSYLVANIA ON 3 JULY 1939.

(D HE ARRIVED IN NEW YORK ON 4 JULY 1939 AND RECEIVED MEDICAL ATTENTION, INCLUDING X-RAY TREATMENT FROM A PRIVATE PHYSICIAN.

(E) HE INTENDED TO REPORT ON BOARD THE QUINCY ON CRUTCHES ON 8 JULY 1939, IN OBEDIENCE TO HIS ORDERS, AND AS A PRELIMINARY MEASURE HAD GONE TO THE MAIN GATE OF THE NAVY YARD AND HAD BEEN INFORMED BY THE SENTRY AT THE GATE THAT THE QUINCY WOULD BERTH AT THE NAVY YARD AND SAIL FROM THAT POINT.

(F) HE WENT TO THE NAVY YARD ON THE MORNING OF 8 JULY AND WAS INFORMED THAT SHIP WAS ANCHORED OFF 135TH STREET, NORTH RIVER, AND WOULD SAIL FROM THAT POINT.

(G) HE REACHED THE BOAT LANDING OF USNRTS ILLINOIS AT 1230, AT WHICH TIME THE QUINCY WAS GETTING UNDERWAY. HE CONVERSED WITH LIEUT. COMDR. R. V. DOLAN, USNR, WHO WAS ON DUTY AT THE BOAT LANDING, AND WAS ADVISED BY THAT OFFICER TO REPORT AT DISTRICT HEADQUARTERS AT 91 CHURCH STREET ON THE MORNING OF 10 JULY.

(H) ENSIGN VAN NESS REPORTED AT DISTRICT HEADQUARTERS ON 10 JULY 1939 AND RECEIVED A MEDICAL EXAMINATION AND MEDICAL ATTENTION AS PER ENTRY IN HIS HEALTH RECORD, ENCLOSURE (B).

(I) THIS MATTER WAS DISCUSSED BY TELEPHONE CONVERSATION BETWEEN CAPTAIN LACKEY OF THIS OFFICE AND CAPTAIN SCHOFIELD OF THE RESERVE SECTION, BUREAU OF NAVIGATION, AND THE OPINION WAS EXPRESSED THAT MR. VAN NESS IS NOT ENTITLED TO TRANSPORTATION, HOSPITALIZATION, OR ACTIVE DUTY PAY.

THE COMMANDANT IS UNABLE TO AGREE TO THIS INTERPRETATION. IN HIS OPINION ENSIGN VAN NESS IS ENTITLED TO HOSPITALIZATION, TO ACTIVE-DUTY PAY DURING THE TIME HE WOULD NORMALLY HAVE BEEN IN A PAY STATUS, AND TO TRANSPORTATION, BECAUSE OF THE FACT THAT HE WAS PERFORMING TRAVEL IN OBEDIENCE TO PROPER ORDERS AT THE TIME OF HIS ACCIDENT.

REFERENCE (A) IS EXPLICIT IN PROVIDING FOR HOSPITALIZATION, EVEN IN CASES IN WHICH INJURY IS INCURRED WHILE IN A NON-PAY STATUS. IN THE OPINION OF THE COMMANDANT IT IS THE INTENT OF THE VARIOUS INSTRUCTIONS COVERING CASES OF INJURY THAT NO LOSS SHALL ACCRUE TO A RESERVE OFFICER BY REASON OF AN INJURY INCURRED WHILE IN A DUTY STATUS.

3. IN VIEW OF THE FACT THAT ENSIGN VAN NESS WILL BE UNABLE TO TAKE PART IN THE TRAINING CRUISE AS PLANNED, IT IS THE COMMANDANT'S INTENTION TO ORDER HIM TO THE NAVAL HOSPITAL, WITH THE UNDERSTANDING THAT HE WILL RECEIVE DUTY PAY FOR THE PERIOD THAT HE WOULD NORMALLY HAVE BEEN IN A PAY STATUS, AND TRANSPORTATION FOR THE TRAVEL INVOLVED. CONFIRMATION OF THIS UNDERSTANDING IS REQUESTED.

4. RETURN OF ALL PAPERS IS REQUESTED.

THE FIRST INDORSEMENT OF JULY 14, 1939, FORWARDING THE REQUEST, IS AS FOLLOWS:

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: THE SECRETARY OF THE NAVY.

SUBJECT: REQUEST FOR DECISION ON DUTY AND PAY STATUS OF ENSIGN DONALD OWEN VAN NESS, DE-V/G), USNR.

REFERENCE: (A) SECTION 304 OF THE NAVAL RESERVE ACT OF 1938.

ENCLOSURES (HEREWITH): (A) ORDERS TO TRAINING DUTY WITH PAY ISSUED BY COMDT., 9TH N.D., ND9 4 LMM (19678-39) 76331 OF 20 JUNE, 1939. (B) HEALTH RECORD, U.S. NAVY FORM H, OF ENSIGN DONALD OWEN VAN NESS, DE-V (G), USNR. (C) COMBINE DISPATCH 10110 1045 OF 10 JULY, 1939.

1. FORWARDED, REQUESTING A DECISION FROM THE JUDGE ADVOCATE GENERAL AS TO WHETHER THE ABOVE-NAMED OFFICER IS ENTITLED TO HOSPITALIZATION AS A RESULT OF THE INJURY SUSTAINED BY HIM UNDER THE CIRCUMSTANCES SET FORTHIN BASIC LETTER.

2. A DECISION IS ALSO REQUESTED AS TO WHETHER HE IS ENTITLED TO ACTIVE- DUTY PAY AND ALLOWANCES FOR THE PERIOD THAT HE WOULD NORMALLY HAVE BEEN IN A PAY STATUS AND TRANSPORTATION FOR THE TRAVEL INVOLVED.

3. IT APPEARS TO BE THE VIEW OF THE COMMANDANT, THIRD NAVAL DISTRICT, THAT THE ABOVE-OFFICER WAS IN THE STATUS OF PERFORMING AUTHORIZED TRAVEL TO THE TRAINING DUTY TO WHICH ORDERED, AT THE TIME THE INJURY WAS SUSTAINED, AND THAT THEREFORE UNDER THE PROVISIONS OF REFERENCE (A) HE IS ENTITLED TO THE ABOVE BENEFITS.

4. THIS BUREAU DOES NOT CONCUR IN THE ABOVE VIEW. IT IS FELT THAT IN ORDER TO BE ENTITLED TO BENEFITS ON ACCOUNT OF INJURY SUSTAINED WHILE PERFORMING AUTHORIZED TRAVEL TO OR FROM TRAINING DUTY, THE TRIP MUST BE A DIRECT TRIP TO OR FROM SUCH DUTY, AND NOT BY A CIRCUITOUS ROUTE OR WITH DELAYS EN ROUTE NOT CONNECTED WITH THE DUTY. IT WILL BE NOTED THAT THE ABOVE OFFICER, ALTHOUGH NOT REQUIRED TO REPORT ON BOARD THE QUINCY FOR TRAINING DUTY UNTIL 8 JULY, LEFT CHICAGO BY PRIVATE AUTOMOBILE ON JULY AND SPRAINED HIS ANKLE AT A POINT IN PENNSYLVANIA ON 3 JULY. HE ARRIVED IN NEW YORK ON 4 JULY, BUT DID NOT REPORT TO ANY NAVY OFFICIAL UNTIL THE DATE HE WAS ORDERED TO DO SO, NAMELY 8 JULY.

5. IN THE EVENT IT SHOULD BE CONSIDERED THAT THIS IS A QUESTION FOR THE COMPTROLLER GENERAL TO DECIDE, IT IS REQUESTED THAT APPROPRIATE ACTION BE TAKEN TO SECURE SUCH DECISION.

SECTION 304 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1181, PROVIDES, INSOFAR AS IS HERE MATERIAL, AS FOLLOWS:

IF IN TIME OF PEACE ANY MEMBER OF THE NAVAL RESERVE IS PHYSICALLY INJURED IN THE LINE OF DUTY WHILE PERFORMING ACTIVE MILITARY OR NAVAL SERVICE, OR DIES AS THE RESULT OF SUCH PHYSICAL INJURY, HE OR HIS BENEFICIARIES SHALL BE ENTITLED TO ALL THE BENEFITS PRESCRIBED BY LAW FOR CIVIL EMPLOYEES OF THE UNITED STATES WHO ARE PHYSICALLY INJURED IN THE LINE OF DUTY OR WHO DIE AS A RESULT THEREOF, AND THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION SHALL HAVE JURISDICTION IN SUCH CASES AND SHALL PERFORM THE SAME DUTIES WITH REFERENCE THERETO AS IN THE CASES OF CIVIL EMPLOYEES OF THE UNITED STATES SO DISABLED: PROVIDED, THAT WHERE A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS SECTION IS ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE PENSION LAWS FOR PEACETIME SERVICE TO INCLUDE RESERVE OFFICERS AND MEMBERS OF THE ENLISTED RESERVES" (50 STAT. 305), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE, AND FOR THE PURPOSES OF THIS SECTION AND OF SAID ACT ALL MEMBERS OF THE NAVAL RESERVE SHALL BE CONSIDERED AS PERFORMING ACTIVE MILITARY OR NAVAL SERVICE WHILE PERFORMING ACTIVE DUTY WITH OR WITHOUT PAY, TRAINING DUTY WITH OR WITHOUT PAY, DRILLS, EQUIVALENT INSTRUCTION OR DUTY, APPROPRIATE DUTY, OR OTHER PRESCRIBED DUTY, OR WHILE PERFORMING AUTHORIZED TRAVEL TO OR FROM SUCH DUTIES: PROVIDED FURTHER, THAT FOR THE PURPOSE OF DETERMINING THE BENEFITS TO WHICH ENTITLED UNDER THE PROVISIONS OF THIS SECTION NAVAL RESERVISTS SO PHYSICALLY INJURED WHILE PERFORMING THE FOREGOING DUTIES IN A NONPAY STATUS WILL BE HELD AND CONSIDERED AS RECEIVING THE PAY AND ALLOWANCES THEY WOULD HAVE RECEIVED IF IN A PAY STATUS * * *

THIS RESERVE OFFICER'S MEDICAL RECORD SHOWS HE WAS EXAMINED ON THE U.S.S. WILLAMETTE JUNE 26, 1939, AND FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY FOR TRAINING. IT IS STATED HE LEFT CHICAGO JULY 1, 1939, BY PRIVATE AUTOMOBILE FOR NEW YORK AND THAT HE SPRAINED HIS ANKLE JULY 3, 1939, AT A POINT IN PENNSYLVANIA. THE CIRCUMSTANCES UNDER WHICH THE INJURY WAS SUSTAINED ARE NOT SHOWN. HE ARRIVED IN NEW YORK JULY 4, 1939, FOUR DAYS IN ADVANCE OF THE DATE HE WAS AUTHORIZED TO REPORT TO THE COMMANDING OFFICER OF THE U.S.S. QUINCY. THE RADIOGRAM OF JULY 10, 1939, STATES HE WAS UNABLE TO COMPLY WITH HIS ORDERS BECAUSE OF A SPRAINED ANKLE BUT THE REPORT OF THE COMMANDANT SHOWS HE ARRIVED AT THE PIER FROM WHICH THE U.S.S. QUINCY SAILED TOO LATE TO REPORT ON BOARD AS DIRECTED IN HIS ORDERS DUE TO MISINFORMATION HE RECEIVED FROM THE SENTRY AT THE NAVY YARD GATE. HE REPORTED JULY 10, 1939, AS INSTRUCTED, AFTER FAILING TO REPORT IN ACCORDANCE WITH HIS ORDERS, TO THE COMMANDANT, THIRD NAVAL DISTRICT, FOR THE PURPOSE OF RECEIVING MODIFIED ORDERS. HE WAS THEN REEXAMINED AND FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE TRAINING DUTY. IT DOES NOT APPEAR HIS ACTIVE DUTY ORDERS WERE MODIFIED.

THE TIME REQUIRED IN TRAVELING BY THE SHORTEST USUALLY TRAVELED ROUTE FROM THE OFFICER'S HOME TO PLACE OF REPORTING INVOLVED LESS THAN ONE DAY'S TRAVEL, AND COMMENCEMENT TO COMPLY WITH THE ORDERS PRIOR TO JULY 7, 1939, WAS NOT NECESSARY OR REQUIRED. THE CIRCUMSTANCES OF THE INJURY ARE NOT SHOWN; THE INJURY OCCURRED SEVERAL DAYS BEFORE ANY TRAVEL WAS REQUIRED BY HIS ORDERS; UNDER THE CIRCUMSTANCES THE OFFICER CANNOT BE REGARDED AS TRAVELING UNDER ORDERS WHEN INJURED, NECESSARY TO BRING HIS CLAIM WITHIN THE STATUTE, AND, NOT HAVING REPORTED FOR DUTY AS DIRECTED, HE IS NOT ENTITLED TO ACTIVE DUTY PAY OR TO MILEAGE FOR TRAVEL INCIDENT TO REPORTING JULY 10, 1939, TO THE COMMANDANT, THIRD NAVAL DISTRICT.

THE ENCLOSURES ENUMERATED IN THE LETTER OF JULY 11, 1939, FROM THE COMMANDANT, THIRD NAVAL DISTRICT, ARE RETURNED HEREWITH.