B-100262, MARCH 5, 1952, 31 COMP. GEN. 444

B-100262, MARCH 5, 1952, 31 COMP. GEN. 444

RETIRED PAY - DISABILITY RETIREMENT PAY - MEMBERS OF THE ARMY OF THE UNITED STATES AN OFFICER OF THE ARMY OF THE UNITED STATES RELEASED FROM ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 WHO, SUBSEQUENT TO THAT DATE, WAS AUTHORIZED TO BE HOSPITALIZED IN AN INACTIVE STATUS AND WHO THEREAFTER APPEARED BEFORE A PHYSICAL EVALUATION BOARD AND WAS FOUND TO BE PHYSICALLY DISABLED FROM THE TIME OF RELEASE FROM ACTIVE DUTY, IS NOT ENTITLED TO DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 415 OF SAID ACT, WHICH GRANTS THE RIGHT OF ELECTION AS TO BENEFITS UNDER PRIOR LAWS TO CERTAIN MEMBERS OF THE UNIFORMED SERVICES HOSPITALIZED ON THE EFFECTIVE DATE OF SAID ACT WHO WERE SUBSEQUENTLY RETIRED FOR PHYSICAL DISABILITY. A FEDERALLY-RECOGNIZED OFFICER OF A STATE NATIONAL GUARD WHO HAD NOT BEEN APPOINTED AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES AT THE TIME HE WAS INJURED IN LINE OF DUTY WHILE PERFORMING INACTIVE DUTY TRAINING (ARMORY DRILL), WAS NOT A MEMBER OF THE UNIFORMED SERVICES WITHIN THE MEANING OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO BE ENTITLED TO THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY. AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES WHO SUFFERS A DISABILITY AS A RESULT OF A DISEASE INCURRED IN LINE OF DUTY WHILE SERVING ON TRAINING DUTY FOR 90 DAYS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, MAY NOT BE GRANTED DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, AUTHORIZING SUCH PAY TO MEMBERS OF THE UNIFORMED SERVICES FOR A DISABILITY RESULTING FROM AN INJURY. AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS, SUBSEQUENT TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, AND WHO WAS THEREAFTER RELEASED FROM SUCH DUTY, NOT BY REASON OF PHYSICAL DISABILITY, IS NOT ENTITLED, UPON THE PRESENTATION OF EVIDENCE THAT HE WAS IN FACT DISABLED AT THE TIME OF RELEASE, TO DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 402 (C) OF THE SAID ACT. OFFICERS OF THE ARMY OF THE UNITED STATES, ENLISTED RESERVE CORPS, OR NATIONAL GUARD OF THE UNITED STATES, WHO WERE ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS, AND WHO WERE RELEASED FROM SUCH DUTY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, ARE NOT ENTITLED, UPON PRESENTATION OF EVIDENCE THAT THEY WERE IN FACT DISABLED AT THE TIME OF RELEASE, TO DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 402 (C) OF THE SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MARCH 5, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1951, REQUESTING DECISION ON THE QUESTIONS DISCUSSED IN AN ENCLOSURE THEREWITH REGARDING THE DISABILITY RETIREMENT PAY RIGHTS OF CERTAIN MEMBERS OF THE ARMY OF THE UNITED STATES OTHER THAN MEMBERS OF THE REGULAR ARMY.

YOU REFER TO DECISION OF THIS OFFICE DATED APRIL 25, 1951, 30 COMP. GEN. 409 (B-100262), WHEREIN IT WAS HELD THAT THE MEMBERS OF THE ARMY OF THE UNITED STATES CONSIDERED THEREIN--- NONE OF WHOM WERE MEMBERS OF THE REGULAR ARMY--- WHO WERE RELEASED FROM ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND WHO, SUBSEQUENT TO THAT DATE, UPON APPEARING BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS WERE FOUND TO BE SUFFERING FROM A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY PRIOR TO SUCH RELEASE FROM ACTIVE DUTY, ARE NOT ENTITLED TO DISABILITY RETIREMENT PAY EITHER UNDER THE PROVISIONS OF THE SAID CAREER COMPENSATION ACT OF 1949 OR UNDER THE PROVISIONS OF LAW IN EFFECT PRIOR TO THE ENACTMENT OF SUCH ACT.

THE FIRST QUESTION STATED IN YOUR PRESENT REQUEST FOR DECISION RELATES TO AN OFFICER OF THE ARMY OF THE UNITED STATES, OTHER THAN OF THE REGULAR ARMY, WHO SERVED ON ACTIVE DUTY FROM JANUARY 1, 1943 TO DECEMBER 31, 1948, ON WHICH DATE HE WAS RELEASED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY. ON SEPTEMBER 1, 1949, HE WAS AUTHORIZED TO ENTER AN ARMY HOSPITAL IN AN INACTIVE STATUS TO APPEAR BEFORE A RETIRING BOARD BECAUSE OF A DISABILITY STATED TO BE THE RESULT OF A DISEASE INCURRED IN LINE OF DUTY WHILE HE WAS SERVING ON ACTIVE DUTY. AFTER CONTINUOUS HOSPITALIZATION HE APPEARED BEFORE A PHYSICAL EVALUATION (RETIRING) BOARD ON NOVEMBER 1, 1949, AND WAS FOUND QUALIFIED FOR PHYSICAL DISABILITY BENEFITS UNDER BOTH THE CAREER COMPENSATION ACT OF 1949 AND THE LAWS IN EFFECT PRIOR TO THE ENACTMENT OF THAT ACT. YOU STATE THAT HE CHOSE DISABILITY RETIREMENT PAY UNDER SUCH PRIOR LAWS AND YOU REQUEST DECISION AS TO WHETHER IT WAS PROPER TO GRANT HIM SUCH BENEFITS AND, IF SO, FROM WHAT DATE THE BENEFITS SHOULD HAVE BEEN EFFECTIVE. YOUR REQUEST FOR DECISION INDICATES THAT YOU ARE OF THE OPINION THAT THIS OFFICER MAY BE ENTITLED TO SUCH RETIREMENT BENEFITS IN VIEW OF THE PROVISIONS OF SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825. THE SAID SECTION 415 PROVIDES:

ANY MEMBER, WHO ON THE EFFECTIVE DATE OF THIS ACT ( OCTOBER 1, 1949) IS A HOSPITAL PATIENT AND WHO WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ACT IS RETIRED AS A RESULT OF A PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS HOSPITALIZED AS OF THE DATE OF ENACTMENT OF THIS ACT, MAY ELECT TO RECEIVE BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON THE DATE PRECEDING THE DATE OF ENACTMENT OF THIS ACT. SUCH SECTION WAS AMENDED BY THE ACT OF MAY 10, 1950, PUBLIC LAW 511, 64 STAT. 158, SO THAT ITS BENEFITS WERE GRANTED TO MEMBERS OTHERWISE COVERED THEREBY IF THEY WERE RETIRED PRIOR TO JANUARY 1, 1951.

SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, IS NOT A RETIREMENT STATUTE--- THAT IS, IT DOES NOT GRANT A RIGHT TO RETIREMENT- - IT MERELY GRANTS A RIGHT OF ELECTION AS TO BENEFITS TO CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO ARE RETIRED AS A RESULT OF A SPECIFIED PHYSICAL DISABILITY. THE SAID SECTION 415 IS FOR CONSIDERATION ONLY AFTER A MEMBER'S RIGHT TO RETIREMENT HAS BEEN DETERMINED AND SINCE, UNDER THE SAID DECISION OF APRIL 25, 1951, AN OFFICER, UNDER THE CIRCUMSTANCES RELATED IN YOUR FIRST QUESTION, CANNOT QUALIFY FOR DISABILITY RETIREMENT PAY, SECTION 415 HAS NO APPLICATION TO HIM. ACCORDINGLY, THE FIRST PART OF THE QUESTION IS ANSWERED IN THE NEGATIVE, THUS MAKING AN ANSWER TO THE SECOND PART UNNECESSARY.

YOUR SECOND QUESTION IS THE SAME AS THE FIRST EXCEPT THAT THE OFFICER REFERRED TO THEREIN WAS RELIEVED FROM ACTIVE DUTY PRIOR TO THE EFFECTIVE DATE ( AUGUST 14, 1945) OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 202. THE ONLY PART OF THAT ACT WHICH APPEARS PERTINENT TO YOUR QUESTION IS SECTION 2 THEREOF WHICH AMENDED, INTER ALIA, THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, RELATING TO DISABILITY RETIREMENT PAY OF MEMBERS OF THE ARMY OF THE UNITED STATES, OTHER THAN MEMBERS OF THE REGULAR ARMY. YOUR QUESTION DOES NOT INDICATE THE BASIS FOR SUGGESTING A DISTINCTION BETWEEN THE OFFICERS INVOLVED IN YOUR FIRST AND SECOND QUESTIONS, BUT IT MAY BE STATED THAT THE AMENDING ACT OF JUNE 20, 1949, MADE NO CHANGE IN THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, WHICH WOULD APPEAR TO AFFECT, EITHER FAVORABLY OR UNFAVORABLY, THE DISABILITY RETIREMENT PAY RIGHTS OF AN OFFICER SITUATED AS THE OFFICER MENTIONED IN YOUR SECOND QUESTION. HENCE, THE FACT THAT THE OFFICER REFERRED TO WAS RELEASED FROM ACTIVE DUTY BEFORE THE EFFECTIVE DATE OF THE ACT OF JUNE 20, 1949, DOES NOT DISTINGUISH HIS CASE FROM THE ONE CONSIDERED IN THE FIRST QUESTION. ACCORDINGLY, THE ANSWER TO THE SECOND QUESTION ALSO IS IN THE NEGATIVE.

THE THIRD QUESTION CONCERNS THE PROVISIONS OF SECTION 3 OF THE SAID ACT OF JUNE 20, 1949, 63 STAT. 202, WHICH READS AS FOLLOWS:

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD OF THE UNITED STATES, BOTH GROUND AND AIR, THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA---

(1) IF ENGAGED FOR PERIODS IN EXCESS OF THIRTY DAYS IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SECTIONS 5, 81, 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO ENGAGED; OR

(2)IF ENGAGED FOR ANY PERIOD OF TIME IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SUCH SECTIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.

YOU REFER TO A FEDERALLY-RECOGNIZED OFFICER OF THE NATIONAL GUARD OF NEW YORK, WHO HAD NOT YET BEEN APPOINTED AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES, AND WHO WAS INJURED IN LINE OF DUTY WHILE PERFORMING AUTHORIZED INACTIVE DUTY TRAINING (ARMORY DRILL) ON APRIL 1, 1951, AND YOU REQUEST DECISION AS TO WHETHER HE MAY BE GRANTED DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY IF OTHERWISE FOUND QUALIFIED THEREFOR UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816.

IT IT ASSUMED THAT THE OFFICER IN QUESTION DID NOT MEET THE REQUIREMENTS OF SECTION 71 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED BY SECTION 530 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 837, SO AS TO BE CONSIDERED AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES, EVEN THOUGH NOT ACTUALLY APPOINTED THEREIN, AND THE ANSWER TO THE QUESTION IS BASED ON THAT ASSUMPTION.

SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 817, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION * * *

(B) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH MEMBER HAS COMPLETED AT LEAST EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE, AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBERS SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION:

(C) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF THE UNIFORMED SERVICES, OTHER THAN THOSE MEMBERS COVERED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF PHYSICAL DISABILITY RESULTING FROM AN INJURY; (2) THAT SUCH INJURY WAS NOT THE RESULT OF THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH INJURY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, FULL- TIME TRAINING DUTY, OTHER FULL-TIME DUTY, OR INACTIVE DUTY TRAINING, AS THE CASE MAY BE; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE.

AS POINTED OUT IN THE SAID DECISION OF APRIL 25, 1951, THE CAREER COMPENSATION ACT IN EFFECT SET UP A WHOLLY NEW AND RADICALLY DIFFERENT RETIREMENT SYSTEM FOR PHYSICAL DISABILITY, APPARENTLY INTENDED TO OCCUPY THE ENTIRE FIELD, WITH MANY RESTRICTIONS AND LIMITATIONS NOT CONTAINED IN PRIOR LAWS. HENCE, IT WAS CONCLUDED THAT TO THE EXTENT THAT THE PROVISIONS OF THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED BY SECTION 2 OF THE ACT OF JUNE 20, 1949, AUTHORIZED RETIREMENT PAY ON ACCOUNT OF PHYSICAL DISABILITY THEY HAVE BEEN WHOLLY SUPERSEDED SINCE OCTOBER 1, 1949, BY THE SAID PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, EXCEPT AS THEY MAY BE MATERIAL IN RELATION TO THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED. THAT SAME CONCLUSION NECESSARILY IS REQUIRED WITH RESPECT TO THE DISABILITY RETIREMENT PAY PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 20, 1949.

WHILE SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, MAKES PROVISION FOR THE PAYMENT OF DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY TO PERSONS WHO ARE DISABLED AS THE RESULT OF HAVING BEEN INJURED WHILE PERFORMING INACTIVE DUTY TRAINING, SUCH PROVISIONS ARE APPLICABLE ONLY TO MEMBERS OF THE UNIFORMED SERVICES. SECTION 102 (B) OF THE ACT, 63 STAT. 804, DEFINES THE TERM ,MEMBER" AS INCLUDING, INTER ALIA, A COMMISSIONED OFFICER AND SECTION 102 (A), INSOFAR AS HERE PERTINENT, DEFINES THE TERM "UNIFORMED SERVICES" AS INCLUDING THE ARMY OF THE UNITED STATES. SECTION 301 OF THE ARMY ORGANIZATION ACT OF 1950, PUBLIC LAW 581, APPROVED JUNE 28, 1950, 64 STAT. 268, PROVIDES: THE ARMY INCLUDES THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, AND THE ORGANIZED RESERVE CORPS; ALL PERSONS APPOINTED, ENLISTED, OR INDUCTED IN THE ABOVE- NAMED COMPONENTS; ALL PERSONS APPOINTED, ENLISTED, OR INDUCTED IN THE ARMY WITHOUT SPECIFICATION OF COMPONENT; AND ALL PERSONS SERVING IN THE ARMY UNDER CALL OR CONSCRIPTION UNDER ANY PROVISION OF LAW INCLUDING MEMBERS OF THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA WHEN IN THE SERVICE OF THE UNITED STATES PURSUANT TO CALL AS PROVIDED BY LAW. COMPARE SECTION 1 OF THE NATIONAL DEFENSE ACT OF 1916, 39 STAT. 166, AS AMENDED, 10 U.S.C. 2, REPEALED BY SECTION 401 (A) OF THE SAID ARMY ORGANIZATION ACT OF 1950, 64 STAT. 271.

SINCE THE OFFICER REFERRED TO WAS NOT AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES AND WAS NOT IN THE SERVICE OF THE UNITED STATES, IT IS EVIDENT THAT HE WAS NOT A MEMBER OF THE ARMY OF THE UNITED STATES (NOW DESIGNATED AS THE " ARMY") AND, THEREFORE, HE WAS NOT A MEMBER OF THE UNIFORMED SERVICES WITHIN THE DEFINITION OF THAT TERM AS USED IN SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949. HENCE, HE IS NOT ENTITLED TO THE BENEFITS OF SUCH SECTION AND YOUR THIRD QUESTION IS, THEREFORE, ANSWERED IN THE NEGATIVE.

THE FOURTH QUESTION RELATES TO AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES WHO SUFFERS A DISABILITY WHICH IS THE RESULT OF A DISEASE INCURRED IN LINE OF DUTY WHILE SERVING ON TRAINING DUTY FOR 90 DAYS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT OF 1916, 39 STAT. 207, AS AMENDED, 10 U.S.C. 146. YOU REQUEST DECISION AS TO WHETHER HE MAY BE GRANTED DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY IF OTHERWISE FOUND QUALIFIED THEREFOR UNDER THE CAREER COMPENSATION ACT OF 1949.

UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 20, 1959, OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES WERE ENTITLED TO RECEIVE THE SAME RETIREMENT PAY AS OFFICERS OF THE REGULAR ARMY IF THEY SUFFERED DISABILITY RESULTING FROM DISEASE WHILE ENGAGED IN TRAINING DUTY FOR A PERIOD IN EXCESS OF 30 DAYS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT OF 1916, SUPRA, OR IF THEY SUFFERED DISABILITY IN LINE OF DUTY FROM INJURY WHILE ENGAGED IN SUCH DUTY FOR ANY PERIOD OF TIME. HOWEVER, AS INDICATED ABOVE, THOSE PROVISIONS WERE SUPERSEDED BY THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. THE ONLY PROVISIONS MADE IN SUCH SECTION 402 FOR THE PAYMENT OF DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY TO MEMBERS OF THE UNIFORMED SERVICES WHO ARE DISABLED WHILE SERVING ON TRAINING DUTY, AS DISTINGUISHED FROM EXTENDED ACTIVE DUTY, ARE THOSE CONTAINED IN SUBSECTION (C) THEREOF AND THEY AUTHORIZE SUCH PAY ONLY WHEN THE DISABILITY IS THE RESULT OF AN INJURY. SINCE IN THE INSTANT CASE THE DISABILITY WAS THE RESULT OF DISEASE THERE WOULD BE NO AUTHORITY OF LAW FOR THE PAYMENT OF DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY. ACCORDINGLY, THE FOURTH QUESTION IS ANSWERED IN THE NEGATIVE.

THE FIFTH QUESTION INVOLVES A MEMBER OF THE ARMY OF THE UNITED STATES, OTHER THAN OF THE REGULAR ARMY, WHO WAS ORDERED TO AND ENTERED UPON ACTIVE DUTY ON JULY 1, 1950. ON NOVEMBER 1, 1950, HE WAS WOUNDED IN KOREA. APRIL 1, 1951, HE WAS RELEASED FROM ACTIVE DUTY FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY. ON JUNE 1, 1951, HE PRESENTED EVIDENCE THAT HE WAS, IN FACT, DISABLED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. SINCE HE WAS NOT ENTITLED TO RECEIVE BASIC PAY AT THE TIME THE EVIDENCE WAS PRESENTED TO SHOW THAT HE WAS DISABLED, HE COULD NOT QUALIFY FOR DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY UNDER SUBSECTIONS (A) AND (B) OF SECTION 402 OF CAREER COMPENSATION ACT OF 1949.

DECISION

IT WILL BE NOTED THAT SUBSECTION (C) OF SECTION 402 APPLIES ONLY TO THOSE MEMBERS OF THE UNIFORMED SERVICES NOT COVERED BY SUBSECTIONS (A) OR (B), I.E., THOSE WHO ARE NOT MEMBERS OF A REGULAR COMPONENT OR OF A RESERVE COMPONENT ENTITLED TO RECEIVE BASIC PAY WHO HAVE BEEN CALLED OR ORDERED TO "EXTENDED ACTIVE DUTY" FOR A PERIOD IN EXCESS OF 30 DAYS. IN OTHER WORDS, SUBSECTION (C) COVERS THOSE MEMBERS OF THE UNIFORMED SERVICES, OTHER THAN MEMBERS OF A REGULAR COMPONENT, WHO ARE DISABLED WHILE PERFORMING ACTIVE DUTY FOR PERIODS OF 30 DAYS OR LESS, TRAINING DUTY, OR INACTIVE DUTY TRAINING. WHILE THE TERMS "ACTIVE DUTY" AND "FULL-TIME DUTY" ARE USED IN SUCH SECTION, IT APPEARS THAT THEY WERE USED OUT OF AN ABUNDANCE OF CAUTION TO INSURE AGAINST ANY MEMBER ON TRAINING DUTY NOT BEING COVERED BY ITS PROVISIONS. SEE, IN THAT CONNECTION, THE REPORT OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON THE BILL, H.R. 2553, THE BILL WHICH WAS THE FORERUNNER OF THE BILL, H.R. 5007, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949, WHEREIN IT IS STATED (PAGE 2034/---

MR. COLE. MR. CHAIRMAN, I WOULD LIKE TO ASK A QUESTION.

IF SUBPARAGRAPH (C) REFERS ONLY TO RESERVISTS ON TRAINING DUTY, WHY DO YOU SAY THAT "SUCH INJURY RESULTED DIRECTLY FROM THE PERFORMANCE OF ACTIVE DUTY, FULL-TIME TRAINING DUTY, OR OTHER FULL-TIME DUTY.' WHY DON-T YOU SAY "DIRECT PERFORMANCE OF FULL-TIME TRAINING DUTY OR INACTIVE-DUTY TRAINING," AS THE CASE MAY BE?

COMMANDER MARTINEAU. THE REASON FOR THAT, MR. COLE, IS THAT IT WAS CONSIDERED NECESSARY TO CONFORM TO THE NATIONAL DEFENSE ACT OF 1916 AND THE NAVAL RESERVE ACT OF 1938, WHICH SETS FORTH THE VARIOUS KINDS OF TRAINING DUTY, AND IN ORDER NOT TO EXCLUDE ANY PERSONS FROM THE BENEFITS THE VARIOUS TYPES OF DUTY WERE SPECIFIED IN THIS SUBSECTION.

MR. COLE. WHAT KIND OF DUTY COULD THERE POSSIBLY BE BEYOND ACTIVE DUTY, FULL-TIME TRAINING DUTY, OR INACTIVE-DUTY TRAINING?

COMMANDER MARTINEAU. WELL, YOU ARE ABSOLUTELY CORRECT, SIR. BUT, NEVERTHELESS, THERE ARE PEOPLE WHO ARE ORDERED TO DUTY IN CONFORMANCE WITH THE NATIONAL DEFENSE ACT WHERE IT IS SPECIFIED IN THE SET OF ORDERS THAT IT IS FULL-TIME TRAINING DUTY, AND YET THE COMPTROLLER, MAY WELL RULE THAT SUCH A PERSON WOULD NOT BE COVERED BECAUSE IT ISN-T THE SAME WORDS THAT ARE USED IN THE ACT. WE HAD EXPERIENCES LIKE THAT BEFORE.

GENERAL DAHLQUIST. AND NOT ONLY TRAINING. A MAN MIGHT BE CALLED TO DUTY FOR 2 WEEKS FOR CONSULTATION.

MR. KILDAY. DON-T YOU HAVE BOARDS SET UP UNDER THE NATIONAL DEFENSE ACT WHERE RESERVES AND NATIONAL GUARDSMEN ARE BROUGHT IN, AND THEY SERVE FOR A WEEK OR 2 WEEKS OR 3 WEEKS, BUT IT IS ACTUALLY ACTIVE DUTY AND DOESN-T INVOLVE TRAINING? IT INVOLVES THE ESTABLISHMENT OF POLICY AND THINGS OF THAT KIND. THEN, OF COURSE, THERE ARE SOME MEN WHO GO ON DUTY WITH THE GENERAL STAFF. I DON-T KNOW WHETHER THEY EVER BRING THEM DOWN TO LESS THAN 30 DAYS' DUTY?

GENERAL DAHLQUIST. YES. WE HAVE A GROUP THAT COMES IN THREE TIMES A YEAR FOR ANYWHERE FROM 2 DAYS TO 3 WEEKS.

SEE, ALSO, REPORT NO. 779 OF THE HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES TO ACCOMPANY H.R. 5007 WHEREIN IT IS STATED (PAGE 34/ --

SUBSECTION 402 (C) PROVIDES THE QUALIFICATIONS FOR THOSE MEMBERS OF THE UNIFORMED SERVICE WHO ARE NOT MENTIONED IN SUBSECTIONS 402 (A) AND (B) ABOVE; THAT IS TO SAY, THE PART-TIME SERVICE MEMBERS. * * * TO THE SAME EFFECT IS REPORT NO. 733 OF THE SENATE COMMITTEE ON ARMED SERVICES TO ACCOMPANY H.R. 5007. SEE PAGE 26 OF THE REPORT.

IN REVIEW OF THE FOREGOING, THE CONCLUSION IS REQUIRED THAT SUBSECTION (C) OF SECTION 402 DOES NOT APPLY TO MEMBERS CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS. IT FOLLOWS THAT THE FIFTH QUESTION MUST LIKEWISE BE ANSWERED IN THE NEGATIVE.

THE SIXTH QUESTION IS THE SAME AS THE FIFTH EXCEPT THAT IT INVOLVES AN OFFICER WHOSE ENTIRE PERIOD OF ACTIVE DUTY WAS PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949. NO BASIS IS PERCEIVED UPON WHICH IT COULD BE CONCLUDED THAT ANY DIFFERENT RULE COULD BE APPLIED IN THIS CASE, THAN THAT APPLIED TO THE PRECEDING QUESTION, MERELY BECAUSE THE PERIOD OF ACTIVE DUTY ANTEDATED THE CAREER COMPENSATION ACT OF 1949. ACCORDINGLY, THIS QUESTION ALSO IS ANSWERED IN THE NEGATIVE.

THE LAST QUESTION IS WHETHER THE ANSWER TO THE SIXTH QUESTION WOULD BE THE SAME IF THE PERSON HAD BEEN A MEMBER OF THE ENLISTED RESERVE CORPS OR OF THE NATIONAL GUARD OF THE UNITED STATES. FOR THE REASONS INDICATED IN ANSWER TO QUESTION 5, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. WITH RESPECT TO THE GENERAL EFFECT OF THE CAREER COMPENSATION ACT IN CASES WHERE THE RIGHT TO DISABILITY RETIREMENT PAY HAD NOT BEEN PERFECTED PRIOR THERETO, SEE THE ANSWER TO THE THIRD QUESTION.