B-69991, FEBRUARY 25, 1948, 27 COMP. GEN. 469

B-69991, FEBRUARY 25, 1948, 27 COMP. GEN. 469

PAY AND ALLOWANCES - ARMY RESERVISTS INJURED WHILE ON INACTIVE DUTY IN TIME OF WAR THE PROVISION IN THE ACT OF JUNE 15, 1936, ENTITLING ARMY RESERVISTS WHO SUFFER PERSONAL INJURY WHILE VOLUNTARILY PARTICIPATING, WHEN NOT ON ACTIVE DUTY, IN AERIAL FLIGHTS IN GOVERNMENT AIRCRAFT TO THE SAME PAY AND ALLOWANCES "AS IF" INJURED WHILE ON ACTIVE DUTY, WHEN CONSIDERED WITH THE PRECEDING PROVISION AUTHORIZING,"IN TIME OF PEACE," THE PAYMENT OF PAY AND ALLOWANCES TO RESERVISTS INJURED WHILE ON ACTIVE DUTY, DOES NOT ENTITLE RESERVISTS INJURED IN TIME OF WAR WHILE VOLUNTARILY PARTICIPATING IN AERIAL FLIGHTS, WHEN NOT ON ACTIVE DUTY, TO THE PAY AND ALLOWANCES AUTHORIZED THEREIN FOR A PERIOD OF HOSPITALIZATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, FEBRUARY 25, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 25, 1947, REQUESTING A DECISION WHETHER MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS OF THE ARMY WHO SUFFER PERSONAL INJURY IN LINE OF DUTY, IN TIME OF WAR, WHILE VOLUNTARILY PARTICIPATING, WHEN NOT ON ACTIVE DUTY, IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT BY PROPER AUTHORITY AS AN INCIDENT OF THEIR MILITARY TRAINING, ARE ENTITLED TO THE BENEFITS SET FORTH IN THE ACT OF JUNE 15, 1936, 49 STAT. 1507.

YOU ADVISE THAT UNDER THE CURRENT MILITARY TRAINING PROGRAM SEVERAL MEMBERS OF THE OFFICERS' RESERVE CORPS IN AN INACTIVE STATUS HAVE BEEN INJURED IN LINE OF DUTY WHILE PARTICIPATING IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT UNDER PROPER AUTHORITY, AND THAT THE QUESTION HAS ARISEN WHETHER, IN VIEW OF THE EXISTING STATE OF WAR, THESE INDIVIDUALS ARE ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF HOSPITALIZATION NOT TO EXCEED AN AGGREGATE OF SIX MONTHS. IN THAT CONNECTION YOU POINT OUT THAT IN THE SAID ACT OF JUNE 15, 1936, THE PHRASE "IN TIME OF PEACE" OCCURS ONLY IN THE CLAUSE RELATING TO MEMBERS OF THE OFFICERS' RESERVE CORPS AND THE ENLISTED RESERVE CORPS ON ACTIVE DUTY AND THAT SUCH QUALIFYING PHRASE IS NOT INCLUDED IN THE CLAUSE AUTHORIZING BENEFITS FOR MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS WHO SUFFER INJURIES WHILE VOLUNTARILY PARTICIPATING, WHEN NOT ON ACTIVE DUTY, IN INACTIVE DUTY TRAINING.

THE CITED ACT OF JUNE 15, 1936, 49 STAT. 1507, 10 U.S.C. 455A AND 455B, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

* * * MEMBERS OF THE OFFICERS' RESERVE CORPS AND OF THE ENLISTED RESERVE CORPS OF THE ARMY AND MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES WHO SUFFER INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS IN TIME OF PEACE; AND PERSONS HEREINBEFORE DESCRIBED WHO MAY NOW BE UNDERGOING HOSPITAL TREATMENT AT GOVERNMENT EXPENSE FOR INJURIES SO SUSTAINED; SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED, AT GOVERNMENT EXPENSE, TO SUCH HOSPITALIZATION, REHOSPITALIZATION, MEDICAL AND SURGICAL CARE, IN HOSPITAL AND AT THEIR HOMES, AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT, AND DURING THE PERIOD OF SUCH HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN AN AGGREGATE OF SIX MONTHS AFTER THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY OR TRAINING IN ANY CASE TO THE PAY AND ALLOWANCES, WHETHER IN MONEY OR IN KIND, THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED, AND TO THE NECESSARY TRANSPORTATION INCIDENT TO SUCH HOSPITALIZATION AND REHOSPITALIZATION AND RETURN TO THEIR HOMES WHEN DISCHARGED FROM HOSPITAL; AND FOR ANY PERIOD OF HOSPITALIZATION OR REHOSPITALIZATION WHEN THEY ARE NOT ENTITLED TO PAY AND ALLOWANCES UNDER THE PRECEDING PROVISION, THEY SHALL BE ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE. * * * MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS OF THE ARMY WHO SUFFER PERSONAL INJURY (AS DISTINGUISHED FROM DISEASE) IN LINE OF DUTY WHILE VOLUNTARILY PARTICIPATING, WHEN NOT ON ACTIVE DUTY, IN AERIAL FLIGHTS IN GOVERNMENT- OWNED AIRCRAFT BY PROPER AUTHORITY AS AN INCIDENT TO THEIR MILITARY TRAINING, SHALL, UNDER REGULATIONS PRESCRIBED AS AFORESAID, BE ENTITLED TO THE SAME HOSPITALIZATION, REHOSPITALIZATION, MEDICAL AND SURGICAL CARE, PAY AND ALLOWANCES, AND TRANSPORTATION AS IF SUCH INJURY HAD BEEN SUFFERED WHILE ON ACTIVE DUTY UNDER PROPER ORDERS. * * * ( ITALICS SUPPLIED.)

IN THE FIRST SENTENCE THE STATUTE AUTHORIZES, INTER ALIA, THE PAYMENT OF THE SAME PAY AND ALLOWANCES DURING THE PERIOD OF HOSPITALIZATION OR REHOSPITALIZATION IN THE CASE OF MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS OF THE ARMY WHO SUFFER INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS,"IN TIME OF PEACE," THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED, BUT FOR NOT MORE THAN SIX MONTHS AFTER THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY OR TRAINING. IN THE SECOND SENTENCE THE STATUTE PROVIDES, INTER ALIA, THAT MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS OF THE ARMY WHO SUFFER PERSONAL INJURY IN LINE OF DUTY WHILE VOLUNTARILY PARTICIPATING, WHEN NOT ON ACTIVE DUTY, IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT BY PROPER AUTHORITY, AS AN INCIDENT TO THEIR MILITARY TRAINING, SHALL BE ENTITLED TO THE SAME PAY AND ALLOWANCES "AS IF SUCH INJURY HAD BEEN SUFFERED WHILE ON ACTIVE DUTY UNDER PROPER ORDERS.' WHILE THIS LATTER PROVISION DOES NOT EXPRESSLY REPEAT THE WORDS "IN TIME OF PEACE" IT DOES NOT STAND ALONE IN FIXING THE CONDITIONS UNDER WHICH THE RIGHT TO PAY AND ALLOWANCES ACCRUES, NOT DOES IT PRESCRIBE THE PERIOD FOR WHICH THE PAY AND ALLOWANCES MAY BE PAID, BUT MAKES SUCH RIGHT DEPENDENT UPON THE CONDITIONS GOVERNING THE RIGHTS OF MEMBERS WHO ARE INJURED WHILE ON ACTIVE DUTY UNDER PROPER ORDERS, APPARENTLY HAVING REFERENCE TO THE RIGHTS EXPRESSLY DETAILED IN THE PRECEDING SENTENCE. UNDER THE PRECEDING SENTENCE, RESERVE PERSONNEL INJURED WHILE ON ACTIVE DUTY UNDER PROPER ORDERS ARE ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF HOSPITALIZATION OR REHOSPITALIZATION AFTER THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY OR TRAINING ONLY IF THE INJURY IS INCURRED "IN TIME OF PEACE.' IF A PERSON INJURED WHILE VOLUNTARILY PARTICIPATING IN AERIAL FLIGHTS HAD BEEN ON ACTIVE DUTY WHEN SO INJURED, HE WOULD NOT HAVE BEEN ENTITLED TO THE PAY AND ALLOWANCES AS AUTHORIZED IN THE STATUTE UNLESS THE INJURY OCCURRED "IN TIME OF PEACE.' IT SEEMS CLEARLY TO FOLLOW THAT MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS INJURED WHILE PARTICIPATING IN AERIAL FLIGHTS IN TIME OF WAR, WHEN NOT ON ACTIVE DUTY, ARE NOT ENTITLED UNDER THE ACT OF JUNE 15, 1936, TO THE PAY AND ALLOWANCES AUTHORIZED THEREIN. OTHERWISE, RESERVE PERSONNEL INJURED WHILE SO PARTICIPATING IN AERIAL FLIGHTS, WHEN NOT ON ACTIVE DUTY, WOULD BE ALLOWED DIFFERENT AND GREATER BENEFITS THAN ARE CONFERRED UPON RESERVE PERSONNEL WHO ARE INJURED WHILE ON ACTIVE DUTY UNDER PROPER ORDERS, CONTRARY TO THE EXPRESS PROVISION THAT THEY SHALL BE GIVEN THE SAME BENEFITS "AS IF" INJURED WHILE ON ACTIVE DUTY.

IT IS NOTED THAT THE ACT OF JULY 15, 1939, 53 STAT. 1042, WHICH EXTENDED THE BENEFITS OF THE UNITED STATES EMPLOYEES' COMPENSATION ACT TO MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS WHO,"IN TIME OF PEACE," ARE PHYSICALLY INJURED IN LINE OF DUTY WHILE PERFORMING ACTIVE DUTY OR ENGAGED IN AUTHORIZED TRAINING, WAS AMENDED BY SECTION 3 OF THE ACT OF AUGUST 7, 1946, 60 STAT. 892, 893, REFERRED TO IN YOUR LETTER, TO INCLUDE THE PERIOD AFTER SEPTEMBER 8, 1945, IN THE TERM "IN TIME OF PEACE.' THE SAID AMENDMENT, HOWEVER, RELATES ONLY TO THE ACT OF JULY 15, 1939,KAND DOES NOT AFFECT THE PROVISIONS OF THE ACT OF JUNE 15, 1936, SUPRA. IT MAY BE NOTED, ALSO, THAT THERE IS PENDING IN THE CONGRESS A BILL, H.R. 3906, TO AMEND THE SAID ACT OF JUNE 15, 1936, BY ADDING A NEW SECTION TO PROVIDE THAT THE TERM "IN TIME OF PEACE" SHALL INCLUDE THE PERIOD AFTER SEPTEMBER 8, 1945. IN TRANSMITTING THE DRAFT OF SUCH PROPOSED AMENDMENT TO THE CONGRESS, SECRETARY OF WAR PATTERSON, IN A LETTER DATED JUNE 6, 1947, TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, STATED:

THE PURPOSE OF THE PROPOSED LEGISLATION IS TO EXTEND THE MEDICAL CARE AND OTHER BENEFITS PROVIDED BY THE ACT OF JUNE 15, 1936, SO AS TO COVER PERSONS INCLUDED WITHIN THE PURVIEW OF THE CITED ACT DURING THE PERIOD AFTER SEPTEMBER 8, 1945, AND BEFORE THE FORMAL TERMINATION OF THE PRESENT WAR.

THERE IS AT PRESENT A GAP IN THE LAWS PROVIDING MEDICAL CARE AND CONTINUATION OF PAY OF RESERVISTS WHO SUFFER INJURY OR CONTRACT DISEASE IN THE PERFORMANCE OF DUTY. THE RESULT IS THAT IN TIMES OF WAR, MEMBERS OF THE RESERVE COMPONENTS MENTIONED HEREIN, WHO ARE ORDERED TO DUTY, ACTIVE, TRAINING OR OTHERWISE FOR 30 DAYS OR LESS, ARE NOT ENTITLED TO MEDICAL CARE AND CONTINUATION OF PAY. THE ACT, PUBLIC LAW 677, SEVENTY-FOURTH CONGRESS, APPROVED JUNE 15, 1936 (49 STAT. 1507), WAS DESIGNED TO FURNISH COVERAGE DURING PEACETIME FOR MEMBERS OF THE NATIONAL GUARD, ORGANIZED RESERVE, RESERVE OFFICERS' TRAINING CORPS, AND CITIZENS' MILITARY TRAINING CAMPS WHO ARE INJURED OR CONTRACT DISEASE WHILE ENGAGED IN MILITARY TRAINING, OR FOR OTHER PURPOSES * * * ADVERTING TO SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, PROVIDING FOR PERSONNEL OF THE ARMY OF THE UNITED STATES CALLED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR MORE THAN THIRTY DAYS AND INJURED WHILE EMPLOYED ON SUCH DUTY THE SAME HOSPITAL BENEFITS, ETC., PROVIDED BY LAW FOR OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, HE STATED:

FROM THE FOREGOING, IT IS APPARENT THAT ADEQUATE PROVISION FOR MEMBERS OF THE RESERVE IS MADE IN CASE OF INJURIES SUFFERED OR DISEASES CONTRACTED WHILE IN A DUTY STATUS IN TIME OF PEACE OR IF ORDERED TO DUTY FOR AT LEAST 31 DAYS, BUT THAT MEMBERS OF THE RESERVE WHO ARE CALLED TO ACTIVE DUTY FOR 30 DAYS OR LESS IN TIME OF WAR ARE NOT INCLUDED UNDER EITHER OF THE ABOVE- QUOTED STATUTES AND ARE, THEREFORE, NOT ELIGIBLE FOR MEDICAL CARE OR OTHER BENEFITS PRESCRIBED FOR PERSONS WHO SUFFER INJURY OR CONTRACT DISEASE WHILE ON ACTIVE DUTY.

THE RESERVE TRAINING PROGRAM HAS BEGUN AND THE NUMBER OF PERSONNEL ORDERED TO SHORT TRAINING DUTY TOURS WILL INCREASE. THE ACT, IN ITS PRESENT FORM, WILL NOT AFFORD THE PROTECTION INTENDED FOR PERSONNEL OF THE AFORE-MENTIONED COMPONENTS, SO LONG AS A STATE OF WAR EXISTS; THEREFORE, THE WAR DEPARTMENT RECOMMENDS ENACTMENT OF THE PROPOSED REMEDIAL LEGISLATION WHICH WILL INSURE THAT PERSONS RECEIVING TRAINING UNDER THE RESERVE PROGRAM WILL NOT BE DENIED, THROUGH A LEGAL TECHNICALITY, PEACETIME MEDICAL CARE AND OTHER BENEFITS. * * *

IN THE ABSENCE OF SOME SUCH REMEDIAL LEGISLATION, THERE WOULD APPEAR TO BE NO BASIS FOR APPLYING THE ACT OF JUNE 15, 1936, AS CONFERRING UPON THE RESERVE PERSONNEL OF THE ARMY, INJURED PRIOR TO THE TERMINATION OF THE PRESENT WAR WHILE VOLUNTARILY PARTICIPATING, WHEN NOT ON ACTIVE DUTY, IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT, A RIGHT TO THE ACTIVE DUTY PAY AND ALLOWANCES PROVIDED THEREIN FOR PERSONNEL INJURED IN TIME OF PEACE.