B-94890, JUNE 19, 1950, 29 COMP. GEN. 509

B-94890: Jun 19, 1950

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PAY AND ALLOWANCES - RESERVISTS INJURED WHILE ON TRAINING DUTY A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED UNDER THE NAVAL AVIATION PERSONNEL ACT OF/1940. THERE WAS RECEIVED YOUR LETTER OF THAT SAME DATE REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER WHICH. WAS SUBMITTED THEREWITH. LIEUTENANT FINNEGAN WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD AUGUST 15 THROUGH AUGUST 29. ON AUGUST 17 HE WAS INJURED IN AN AIRPLANE ACCIDENT WHILE PERFORMING TRAINING DUTY AS A RESULT OF WHICH HE WAS HOSPITALIZED AT THE NAVAL HOSPITAL. WHEN HE WAS TRANSFERRED TO THE UNITED STATES MARINE HOSPITAL. HE WAS RELEASED FROM SUCH LATTER HOSPITAL DURING THE MONTH OF DECEMBER 1947.

B-94890, JUNE 19, 1950, 29 COMP. GEN. 509

PAY AND ALLOWANCES - RESERVISTS INJURED WHILE ON TRAINING DUTY A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED UNDER THE NAVAL AVIATION PERSONNEL ACT OF/1940, AS AMENDED, TO CONTINUE IN RECEIPT OF ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD OF HOSPITALIZATION AND WHILE AWAITING ACTION ON HIS DISABILITY RETIREMENT PROCEEDINGS.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. J. W. ELDRIDGE, UNITED STATES MARINE CORPS, JUNE 19, 1950:

BY ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS, DATED APRIL 19, 1950, THERE WAS RECEIVED YOUR LETTER OF THAT SAME DATE REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER WHICH, TOGETHER WITH SUPPORTING PAPERS, WAS SUBMITTED THEREWITH, IN FAVOR OF FIRST LIEUTENANT GEORGE E. FINNEGAN, UNITED STATES MARINE CORPS RESERVE, IN THE NET AMOUNT OF $1,534.25, REPRESENTING THE DIFFERENCE BETWEEN DISABILITY COMPENSATION RECEIVED BY HIM FROM THE VETERANS ADMINISTRATION AND ACTIVE- DUTY PAY AND ALLOWANCES AS A FIRST LIEUTENANT DURING THE PERIOD AUGUST 30, 1947, TO JUNE 30, 1948.

IT APPEARS THAT BY ORDERS DATED AUGUST 7, 1947, FROM THE COMMANDER, MARINE AIR RESERVE TRAINING CENTER, NAVAL AIR STATION, GLENVIEW, ILLINOIS, LIEUTENANT FINNEGAN WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD AUGUST 15 THROUGH AUGUST 29, 1947, AND THAT HE ENTERED ON DUTY ON AUGUST 15, 1947, PURSUANT TO THOSE ORDERS. ON AUGUST 17 HE WAS INJURED IN AN AIRPLANE ACCIDENT WHILE PERFORMING TRAINING DUTY AS A RESULT OF WHICH HE WAS HOSPITALIZED AT THE NAVAL HOSPITAL, CAMP LEJEUNE, NORTH CAROLINA, UNTIL SEPTEMBER 17, 1947, WHEN HE WAS TRANSFERRED TO THE UNITED STATES MARINE HOSPITAL, BOSTON, MASSACHUSETTS. HE WAS RELEASED FROM SUCH LATTER HOSPITAL DURING THE MONTH OF DECEMBER 1947. IT IS STATED THAT HE NOW IS AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS AND THAT IT IS EXPECTED HE WILL BE RETIRED IN THE NEAR FUTURE. HE HAS BEEN PAID ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 15 TO 29, 1947.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 201, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE WHO---

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY * * * SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME * * * PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES AND ENLISTED MENOF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *.

SECTION 4 OF THE SAID ACT OF JUNE 20, 1949, 63 STAT. 202, PROVIDES THAT--

THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM AUGUST 14, 1945, BUT NO BACK PAY, PENSION, COMPENSATION, DEATH GRATUITY, OR RETIREMENT PAY SHALL BE HELD TO HAVE ACCRUED AS THE RESULT OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO SUCH DATE; PROVIDED, THAT IN THE CASE OF PERSONS ELECTING TO RECEIVE THE BENEFITS OF THIS ACT, THE AMOUNT OF ANY MONETARY BENEFITS RECEIVED FOR ANY PERIOD SUBSEQUENT TO AUGUST 14, 1945, UNDER ANY PROVISIONS OF LAW PROVIDING BENEFITS FOR DISABILITY OR DEATH INCIDENT TO THE SERVICE DESCRIBED IN SECTION 1, 2, AND 3 OF THIS ACT, SHALL BE DEDUCTED FROM THE MONETARY BENEFITS PROVIDED FOR HEREIN.

THE SIGNIFICANCE OF THE USE OF THE WORDS "PAY AND ALLOWANCES" IN THE SAID SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, IS NOT ENTIRELY CLEAR. APPARENTLY, INSOFAR AS HERE PERTINENT, THE INTENT WAS TO PLACE RESERVISTS COVERED BY THE ACT IN A STATUS COMPARABLE TO THAT OF MEMBERS OF THE REGULAR SERVICE WHO, WHEN THEY SUFFER DISABILITY IN LINE OF DUTY FROM INJURY, ARE AUTHORIZED TO CONTINUE IN RECEIPT OF THEIR PAY AND ALLOWANCES WHILE HOSPITALIZED AS A RESULT THEREOF AND ALSO WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INITIATED. THAT SUCH WAS THE INTENT IS BORNE OUT BY THE LEGISLATIVE HISTORY OF THE SAID ACT OF JUNE 20, 1949. SEE, FOR EXAMPLE, REPORT NO. 95 OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, 81ST CONGRESS, ST SESSION, TO ACCOMPANY S. 213 (THE BILL WHICH BECAME THE ACT OF JUNE 20, 1949), WHEREIN IT IS STATED AS FOLLOWS (PAGE 4):

* * * IT IS INTENDED THAT PERSONS WHO ARE COVERED BY THE BENEFITS OF THIS BILL WILL BE KEPT IN A PAY STATUS UNTIL THEIR HOSPITALIZATION IS COMPLETED AND THEIR CASE FINALLY SETTLED. * * *

AMENDMENTS 2, 3, 10, AND 11 WERE MADE TO PREVENT A STRICT INTERPRETATION OF THE WORD ,COMPENSATION" FROM EXCLUDING DEATH BENEFITS OR PAYING A MAN WHILE HOSPITALIZED OR AWAITING FINAL DECISION OF HIS CASE. * * * ( ITALICS SUPPLIED.)

THERE IS OTHER EVIDENCE IN THE LEGISLATIVE HISTORY OF THE ACT WHICH MIGHT INDICATE THAT IT WAS INTENDED TO AUTHORIZE ACTIVE-DUTY PAY AND ALLOWANCES FOR PERSONS IN LIEUTENANT FINNEGAN'S SITUATION ONLY FOR THE PERIOD OF THEIR HOSPITALIZATION. SEE, FOR INSTANCE, PAGE 2 OF REPORT NO. 582 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TO ACCOMPANY S. 213. HOWEVER, CONSIDERING THE LEGISLATIVE HISTORY OF THE ACT AS A WHOLE, THE BASIC IDEA APPEARS TO HAVE BEEN, TO THE EXTENT POSSIBLE, TO PLACE PERSONS LIKE LIEUTENANT FINNEGAN ON A PAR WITH MEMBERS OF THE REGULAR SERVICE WHO, AS NOTED ABOVE, ARE ENTITLED TO THEIR PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS. IN VIEW OF THE BENEFICIAL NATURE OF SUCH LEGISLATION IT SHOULD BE GIVEN A LIBERAL CONSTRUCTION AND, HENCE, I THINK THE CONCLUSION IS WARRANTED THAT A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON TRAINING DUTY FOR ANY PERIOD OF TIME IS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE HE IS AWAITING ACTION ON HIS DISABILITY RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED.

STRICTLY SPEAKING, LIEUTENANT FINNEGAN COULD NOT BE SAID TO HAVE BEEN IN THE STATUS OF AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS FROM THE DATE OF HIS RELEASE FROM THE HOSPITAL SINCE AT THAT TIME THERE WAS NO AUTHORITY OF LAW TO PAY HIM RETIREMENT PAY. HOWEVER, SINCE SUCH PROCEEDINGS NOW HAVE BEEN INSTITUTED, AND IN ORDER TO GIVE EFFECT TO THE RETROACTIVE PROVISIONS OF THE ACT, IT MUST BE CONSIDERED THAT HE OCCUPIED THAT STATUS, AT LEAST CONSTRUCTIVELY, AFTER SUCH DATE OF RELEASE. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH, TOGETHER WITH THE SUPPORTING PAPERS, IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.