B-96057, NOVEMBER 15, 1950, 30 COMP. GEN. 185

B-96057: Nov 15, 1950

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PAY AND ALLOWANCES - RESERVIST INJURED WHILE ON TRAINING DUTY A MEMBER OF THE NAVAL RESERVE WHO WAS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED UNDER THE NAVAL AVIATION PERSONNEL ACT OF 1940. NOT FOR PERIODS HE WAS LIVING AT HOME AND REPORTING TO THE HOSPITAL FOR TREATMENT. IN THE ABSENCE OF AN AFFIRMATIVE DETERMINATION BY THE BUREAU OF MEDICINE AND SURGERY THAT HE CONTINUED TO BE DISABLED FOR NORMAL PURSUITS DUE TO THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED. A MEMBER OF THE NAVAL RESERVE WHO IS ALSO A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND WHO WAS HOSPITALIZED SUBSEQUENT TO A PERIOD OF TRAINING DUTY FOR AN INJURY SUSTAINED WHILE ON SUCH DUTY MAY NOT RECEIVE DURING THE PERIODS OF HOSPITALIZATION BOTH HIS NAVAL PAY AND ALLOWANCES AND THE COMPENSATION OF HIS CIVILIAN POSITION FROM WHICH HE WAS ABSENT IN A LEAVE WITH PAY STATUS.

B-96057, NOVEMBER 15, 1950, 30 COMP. GEN. 185

PAY AND ALLOWANCES - RESERVIST INJURED WHILE ON TRAINING DUTY A MEMBER OF THE NAVAL RESERVE WHO WAS INJURED WHILE ON AUTHORIZED TRAINING DUTY IS ENTITLED UNDER THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, TO ACTIVE-DUTY PAY AND ALLOWANCES FOR PERIODS OF HOSPITALIZATION RESULTING FROM SUCH INJURY, BUT NOT FOR PERIODS HE WAS LIVING AT HOME AND REPORTING TO THE HOSPITAL FOR TREATMENT, IN THE ABSENCE OF AN AFFIRMATIVE DETERMINATION BY THE BUREAU OF MEDICINE AND SURGERY THAT HE CONTINUED TO BE DISABLED FOR NORMAL PURSUITS DUE TO THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED. A MEMBER OF THE NAVAL RESERVE WHO IS ALSO A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND WHO WAS HOSPITALIZED SUBSEQUENT TO A PERIOD OF TRAINING DUTY FOR AN INJURY SUSTAINED WHILE ON SUCH DUTY MAY NOT RECEIVE DURING THE PERIODS OF HOSPITALIZATION BOTH HIS NAVAL PAY AND ALLOWANCES AND THE COMPENSATION OF HIS CIVILIAN POSITION FROM WHICH HE WAS ABSENT IN A LEAVE WITH PAY STATUS, IN CONTRAVENTION OF THE DUAL COMPENSATION RESTRICTIONS OF THE ACT OF MAY 10, 1916, AS AMENDED; HOWEVER, THE EMPLOYEE'S CIVILIAN LEAVE RECORD MAY BE CORRECTED TO SHOW HIS ABSENCE DURING THE PERIODS OF HOSPITALIZATION AS LEAVE WITHOUT PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 15, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1950, WITH ENCLOSURES, RELATIVE TO THE RIGHT OF CAPTAIN EDWARD N. DINGLEY, UNITED STATES NAVAL RESERVE, TO ACTIVE-DUTY PAY AND ALLOWANCES UNDER THE PROVISIONS OF 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.

IT APPEARS THAT BY ORDERS DATED JULY 6, 1949, FROM THE COMMANDANT, POTOMAC RIVER NAVAL COMMAND, CAPTAIN DINGLEY WAS DIRECTED TO PROCEED AND REPORT TO THE MEDICAL OFFICER AT THE DISPENSARY, NAVAL GUN FACTORY, WASHINGTON, D.C., FOR A PHYSICAL EXAMINATION. IF FOUND IN ALL RESPECTS QUALIFIED, HE WAS TO REPORT TO THE COMMANDING OFFICER, NAVAL COMMUNICATION STATION, CHELTENHAM, MARYLAND, FOR 14 DAYS' ACTIVE DUTY FOR TRAINING, COMMENCING ON OR ABOUT JULY 12, 1949. FROM ENDORSEMENTS ON HIS ORDERS IT APPEARS THAT HE WAS FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY FOR TRAINING AND THAT HE REPORTED THEREFOR, AS DIRECTED IN HIS ORDERS, ON JULY 12, 1949. ON JULY 25, 1949, UPON BEING GIVEN A PHYSICAL EXAMINATION, HE APPARENTLY WAS FOUND TO BE PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY FOR TRAINING--- THE ENDORSEMENT ON THE COPY OF HIS ORDERS BEFORE THIS OFFICE DOES NOT INDICATE ONE WAY OR THE OTHER--- AND HE WAS SO RELEASED ON THAT DATE. IT IS STATED, HOWEVER, THAT THE EXAMINING MEDICAL OFFICER MADE A NOTE TO THE EFFECT THAT THE OFFICER COMPLAINED OF A PAIN IN THE LUMBO- SACRAL REGION WHICH HE FIRST EXPERIENCED WHILE MOWING THE LAWN AT HOME ON JULY 23, 1949, TWO DAYS PRIOR TO HIS RELEASE FROM ACTIVE DUTY FOR TRAINING.

ON DECEMBER 27, 1949, HE WAS HOSPITALIZED AT THE NATIONAL NAVAL MEDICAL CENTER AS A VETERANS ADMINISTRATION BENEFICIARY FOR TREATMENT OF THE ABOVE -MENTIONED COMPLAINT AND HE WAS DISCHARGED THEREFROM ON JANUARY 6, 1950. HE WAS READMITTED TO SUCH HOSPITAL AS A VETERANS ADMINISTRATION BENEFICIARY ON FEBRUARY 7, 1950, AND HE REMAINED HOSPITALIZED UNTIL MAY 15, 1950, ON AND AFTER WHICH DATE, IT IS UNDERSTOOD, HE HAS BEEN LIVING AT HOME AND REPORTING TO THE HOSPITAL ONCE OR TWICE A WEEK FOR TREATMENT. MAY 12, 1950, HIS STATUS WAS CHANGED AT THE HOSPITAL FROM VETERANS ADMINISTRATION BENEFICIARY TO " CAPTAIN, USNR ( ACTIVE)" BY AUTHORITY OF NOTICE OF ELIGIBILITY, DATED MAY 11, 1950, ISSUED BY THE COMMANDANT, POTOMAC RIVER NAVAL COMMAND.

FROM A COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, CONTAINED IN THE FILE, IT APPEARS THAT UPON ADMISSION TO THE HOSPITAL ON DECEMBER 27, 1949, CAPTAIN DINGLEY'S AILMENT WAS DIAGNOSED AS " SPRAIN, ACUTE, LUMBO-SACRAL JOINT, NUMBER 8321" AND THAT THE CHIEF, BUREAU OF MEDICINE AND SURGERY, EXPRESSED THE MEDICAL OPINION THAT THE OFFICER'S DISABILITY WAS THE RESULT OF AN INJURY SUFFERED WHEN HE WAS MOWING HIS LAWN ON JULY 23, 1949. IT IS NOT INDICATED JUST HOW IT WAS DETERMINED THAT THE DISABILITY WAS DUE SOLELY TO THE OCCURRENCE ON JULY 23, 1949, AND NOT TO SOME SUBSEQUENT ACTIVITY OF THE OFFICER DURING THE PERIOD OF APPROXIMATELY FIVE MONTHS INTERVENING BETWEEN THE DATE AND DECEMBER 27, 1949, WHEN HE WAS HOSPITALIZED. IN ANY EVENT, THE JUDGE ADVOCATE GENERAL REACHED THE CONCLUSION THAT CAPTAIN DINGLEY'S DISABILITY WAS THE RESULT OF AN "INJURY" SUFFERED BY HIM ON JULY 23, 1949, WHILE HE WAS ON ACTIVE DUTY FOR TRAINING.

IT IS STATED THAT DURING THE ENTIRE PERIOD IN QUESTION CAPTAIN DINGLEY HAS BEEN A CIVILIAN EMPLOYEE OF THE GOVERNMENT. EVIDENCE IN THE FILE INDICATES THAT DURING THE PERIODS OF HIS HOSPITALIZATION HE WAS ABSENT FROM HIS CIVILIAN POSITION ON SICK LEAVE TWO HOURS ON DECEMBER 27, 1949; FROM DECEMBER 28, 1949, TO JANUARY 5, 1950; FIVE HOURS ON JANUARY 6, 1950; FEBRUARY 7 TO APRIL 14, 1950; TWO HOURS ON APRIL 17, 1950; AND THAT HE WAS ABSENT ON ANNUAL LEAVE SIX HOURS ON APRIL 17, 1950; AND APRIL 18 TO MAY 31, 1950. PRESUMABLY HE CONTINUED ON ANNUAL LEAVE UNTIL JUNE 8, 1950, WHEN HE ENTERED A LEAVE WITHOUT PAY STATUS. IT IS UNDERSTOOD INFORMALLY THAT THE COMPENSATION OF HIS CIVILIAN POSITION EXCEEDS $2,000 PER ANNUM.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, 63 STAT. 201, SUPRA, 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 OFFICER, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *. (ITALICS SUPPLIED.)

IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, IT WAS HELD THAT UNDER THE ABOVE PROVISIONS OF LAW A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON TRAINING DUTY FOR ANY PERIOD OF TIME IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED BECAUSE OF SUCH INJURY AND WHILE AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. SUCH DECISION, OF COURSE, IS ALSO APPLICABLE TO MEMBERS OF THE NAVAL RESERVE.

IT DOES NOT APPEAR FROM THE RECORD BEFORE THIS OFFICE THAT ANY DISABILITY RETIREMENT PROCEEDINGS HAVE BEEN INSTITUTED IN CAPTAIN DINGLEY'S CASE AND SINCE HE APPARENTLY HAS BEEN LIVING AT HOME SINCE MAY 15, 1950, HE MAY NOT, ON AND AFTER THAT DATE, BE CONSIDERED TO BE ENTITLED TO PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE SAID SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, IN THE ABSENCE OF AN AFFIRMATIVE DETERMINATION BY THE BUREAU OF MEDICINE AND SURGERY THAT HE CONTINUED TO BE DISABLED FOR NORMAL PURSUITS AFTER THAT DATE AND THAT THE FAILURE TO DISCHARGE THE OFFICER FROM HOSPITALIZATION ON MAY 15, 1950, WAS BECAUSE OF THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED AND NOT BECAUSE OF SOME OTHER DISEASE, INJURY, OR CONDITION.

AS TO THE PERIODS WHEN HE WAS ACTUALLY CONFINED TO THE HOSPITAL, I.E., DECEMBER 27, 1949, TO JANUARY 6, 1950, AND FEBRUARY 7 TO MAY 14, 1950, IT WILL BE NOTED THAT THE LAW AUTHORIZES HIM TO BE PAID ONLY THE "SAME" PAY AND ALLOWANCES AS ARE AUTHORIZED FOR OFFICERS OF THE REGULAR NAVY AND I THINK IT CLEAR THAT AN OFFICER OF THE REGULAR NAVY WOULD NOT LEGALLY BE ENTITLED TO RECEIVE HIS NAVAL PAY AND ALLOWANCES AND AT THE SAME TIME RECEIVE COMPENSATION AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT. SEE, IN THAT CONNECTION, SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, WHICH READS AS FOLLOWS:

UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM. ACCORDINGLY, CAPTAIN DINGLEY WOULD NOT BE ENTITLED TO BOTH HIS NAVAL PAY AND ALLOWANCES AND THE COMPENSATION OF HIS CIVILIAN POSITION DURING THE PERIODS IN QUESTION. SEE 16 COMP. GEN. 1103. IF HE DESIRES TO BE PAID HIS NAVAL PAY AND ALLOWANCES DURING SUCH PERIODS THERE WOULD BE NO OBJECTION TO CORRECTING HIS LEAVE RECORD AT THIS TIME TO SHOW HIS ABSENCE DURING THOSE PERIODS AS LEAVE WITHOUT PAY, IN WHICH EVENT THE NECESSARY STEPS WOULD HAVE TO BE TAKEN TO RECREDIT THE PROPER APPROPRIATION WITH THE AMOUNT OF THE CIVILIAN COMPENSATION HE WAS PAID. SEE 27 COMP. GEN. 353.