B-128984, SEPTEMBER 4, 1958, 38 COMP. GEN. 181

B-128984, SEPTEMBER 4, 1958, 38 COMP. GEN. 181

MILITARY PERSONNEL - ACTIVE DUTY PAY - RESERVISTS INJURED ON DUTY - ABILITY TO PERFORM CIVILIAN DUTIES AFTER HOSPITALIZATION A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO IS INJURED IN CONNECTION WITH MILITARY DUTY AND WHO, IMMEDIATELY FOLLOWING A PERIOD OF HOSPITALIZATION AND CONVALESCENCE, RETURNS TO HIS FORMER CIVILIAN POSITION OR OCCUPATION ON A FULL-TIME BASIS AND WITHOUT ANY SUBSTANTIAL IMPAIRMENT ABILITY TO PERFORM THE DUTIES OF SUCH POSITION OR OCCUPATION MAY NOT BE REGARDED AS BEING DISABLED FOR NORMAL CIVILIAN PURSUITS FOR CONTINUATION OF MILITARY PAY AND ALLOWANCES AFTER RETURN TO FULL-TIME EMPLOYMENT EVEN THOUGH PARTIAL DISABILITY COMPENSATION PAYMENTS WERE MADE AFTER A RETURN TO FULL-TIME DUTY.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, SEPTEMBER 4, 1958:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1958, TO WHICH IT IS STATED THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, HAS ASSIGNED " SUBMISSION NO. 357.' YOUR LETTER REQUESTS DECISION AS TO THE PERIODS DURING WHICH ACTIVE-DUTY PAY AND ALLOWANCES MAY BE CREDITED TO LIEUTENANT RALPH W. OTTERSTROM, UNITED STATES NAVAL RESERVE, RETIRED, AND COMMANDER ARTHUR J. SEAVEY, UNITED STATES NAVAL RESERVE, RETIRED, UNDER THE FOLLOWING PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C-1:

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 OR THEIR BENEFICIARIES 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, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE BUREAU OF EMPLOYEES' COMPENSATION, FEDERAL SECURITY AGENCY, UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181) OR RETIRED PAY UNDER THE PROVISIONS OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.

IT APPEARS THAT COMMANDER SEAVEY AND LIEUTENANT OTTERSTROM, DENTAL OFFICERS, WERE ORDERED TO REPORT PRIOR TO 11:00 A.M., MARCH 3, 1952, TO THE COMMANDING OFFICER, U.S. NAVAL DISPENSARY, TREASURE ISLAND, CALIFORNIA, FOR FIVE DAYS' TRAINING DUTY WITH PAY; THAT ON MARCH 2, 1952, WHILE EN ROUTE FROM THEIR HOMES TO TREASURE ISLAND THEY WERE INVOLVED IN AN AUTOMOBILE ACCIDENT, SUSTAINING INJURIES WHICH RESULTED IN THEIR BEING ADMITTED AS PATIENTS AT THE U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, ON THAT DAY; AND THAT COMMANDER SEAVEY WAS HOSPITALIZED UNTIL MARCH 23, 1953, AND LIEUTENANT OTTERSTROM, UNTIL MARCH 3, 1953. ALSO, IT APPEARS THAT BOTH OFFICERS WERE PAID COMPENSATION AND MEDICAL EXPENSES BY THE BUREAU OF EMPLOYEES' COMPENSATION. THE PERIOD OR PERIODS FOR WHICH COMMANDER SEAVEY WAS PAID COMPENSATION CANNOT BE DETERMINED FROM THE FILE BEFORE US, THE ONLY PERTINENT INFORMATION THEREIN BEING REFERENCES IN A COPY OF A LETTER TO HIM DATED MARCH 6, 1956, FROM THE BUREAU OF EMPLOYEES' COMPENSATION, TO AN ERRONEOUS AWARD OF SEPTEMBER 8, 1954, TO HIS "FUTURE BENEFITS" AND TO AN APPROPRIATE DETERMINATION IN THE NEAR FUTURE AS TO HIS ,DISFIGUREMENT AND LOSS OF WAGE-EARNING CAPACITY.' AS TO LIEUTENANT OTTERSTROM, THE FILE CONTAINS A COPY OF A LETTER DATED APRIL 3, 1958, FROM THE BUREAU OF EMPLOYEES' COMPENSATION TO THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, IN WHICH IT WAS STATED THAT:

DR. OTTERSTROM WAS PAID TOTAL DISABILITY COMPENSATION BY OUR BUREAU AT THE RATE OF $332.76 EACH FOUR WEEKS FROM MARCH 2, 1952 TO MARCH 31, 1954, INCLUSIVE.

BETWEEN MAY 7, 1952 AND NOVEMBER, 1952, DR. OTTERSTROM RETURNED TO PART TIME WORK IN HIS PROFESSION. SHORTLY BEFORE MARCH 26, 1954, HE BEGAN WORKING IN HIS PROFESSION ON A FULL TIME BASIS.

OUR BUREAU FOUND THAT THE PARTIAL DISABILITY RESULTING FROM HIS INJURY DID AFFECT THE EARNING CAPACITY OF DR. OTTERSTROM ON AND AFTER APRIL 1, 1954. WE, THEREFORE, PAID HIM PARTIAL DISABILITY COMPENSATION FROM APRIL 1, 1954 TO MARCH 27, 1957, AT THE RATE OF $50.72 EACH FOUR WEEKS. PARTIAL DISABILITY COMPENSATION PAYMENTS WERE SUSPENDED EFFECTIVE MARCH 28, 1957 BECAUSE OF THE THIRD PARTY RECOVERY MADE BY DR. OTTERSTROM.

THE CASE OF COMMANDER SEAVEY HAS NOT BEEN BEFORE US PRIOR TO THE PRESENT SUBMISSION. WE CONSIDERED LIEUTENANT OTTERSTROM'S CASE IN OUR DECISION OF SEPTEMBER 28, 1956, B-128984, 36 COMP. GEN. 246, IN WHICH WE ADVISED THE SECRETARY OF THE NAVY THAT:

THE ASSISTANT SECRETARY'S LETTER ENCLOSED A COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN WHICH IT WAS STATED THAT, SINCE LIEUTENANT OTTERSTROM MADE APPLICATION TO THE NAVY DEPARTMENT FOR RELIEF, WHICH WAS DENIED UNDER THE DECISIONS OF OUR OFFICE, HIS SUBSEQUENT APPLICATION FOR BENEFITS FROM THE BUREAU OF EMPLOYEES' COMPENSATION SHOULD NOT BE CONSIDERED TO BE AN ELECTION TO TAKE SUCH BENEFITS RATHER THAN ACTIVE-DUTY PAY AND ALLOWANCES, THE OFFICER ACTUALLY HAVING NO CHOICE IN THE MATTER. WE ARE INCLINED TO AGREE WITH THAT REASONING. COMPARE 32 COMP. GEN. 159, 162, ANSWER TO FIFTH QUESTION. IN OTHER WORDS, LIEUTENANT OTTERSTROM MAY NOW ELECT TO TAKE ACTIVE-DUTY PAY AND ALLOWANCES TO WHICH HE MAY BE OTHERWISE ENTITLED UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR SUCH PERIOD AS HE WAS DISABLED FOR NORMAL CIVILIAN PURSUITS DUE TO THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE ORIGINALLY WAS HOSPITALIZED, AND TO RETIREMENT PAY UNDER SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949, IF HE OTHERWISE QUALIFIES FOR SUCH PAY. COMPARE 30 COMP. GEN. 185 AND 33 COMP. GEN. 339. TO BE ENTITLED TO SUCH ACTIVE-DUTY PAY AND ALLOWANCES AND RETIREMENT PAY, HOWEVER, THE OFFICER MUST REFUND ALL PAYMENTS RECEIVED FROM THE BUREAU OF EMPLOYEES' COMPENSATION, SINCE SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, CONTEMPLATES AN ELECTION TO TAKE ONE OF TWO ALTERNATIVES, NOT A SHIFTING FROM ONE TO ANOTHER AS MAY BE FINANCIALLY ADVANTAGEOUS.

IT APPEARS THAT COMMANDER SEAVEY AND LIEUTENANT OTTERSTROM WERE TRANSFERRED TO THE RETIRED LIST EFFECTIVE DECEMBER 1, 1957, FOR PERMANENT DISABILITY OF 60 PER CENTUM EACH, SUCH TRANSFERS APPARENTLY HAVING BEEN MADE UNDER THE PROVISIONS OF 10 U.S.C. 1204 (BASED ON SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949). WITH RESPECT TO THE EFFECTIVE DATE OF RETIREMENT FOR RETIRED PAY PURPOSES, WE STATED IN 36 COMP. GEN. 246 THAT "WE FIND NO BASIS IN SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 FOR PAYING RETIREMENT PAY FOR ANY PERIOD PRIOR TO THE DATE THE INDIVIDUAL'S NAME IS PLACED ON THE RETIRED LIST.'

YOUR LETTER REFERS TO A REPORT FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, DATED MARCH ( APRIL) 21, 1958, IN WHICH IT WAS STATED THAT THE BUREAU COULD NOT DETERMINE, FROM THE AVAILABLE EVIDENCE, THE INCLUSIVE DATES THE ABOVE TWO OFFICERS WERE DISABLED FOR NORMAL CIVILIAN PURSUITS. IN ADDITION TO THE MATTER OF THE PERIODS FOR WHICH THE OFFICERS MAY BE CREDITED WITH ACTIVE-DUTY PAY AND ALLOWANCES, YOU REQUEST A DECISION AS TO WHETHER THEY WERE DISABLED FOR NORMAL CIVILIAN PURSUITS CONTINUOUSLY FROM THE DATE THEY WERE INJURED, AND AN INTERPRETATION OF THE PHRASE "NORMAL CIVILIAN PURSUITS.'

WE HAVE HELD THAT A NAVAL RESERVE OFFICER WHO HAD BEEN INJURED IN CONNECTION WITH NAVAL DUTY WAS NOT ENTITLED TO PAY AND ALLOWANCES AFTER THE DATE OF HIS RELEASE FROM THE HOSPITAL IN THE ABSENCE OF A DETERMINATION BY THE BUREAU OF MEDICINE AND SURGERY, THAT HE CONTINUED TO BE DISABLED FOR ,NORMAL PURSUITS" AFTER THAT DATE (30 COMP. GEN. 185); THAT IF A MEMBER IS NOT ACTUALLY CONFINED TO A HOSPITAL, EVEN THOUGH HE IS NOT DISCHARGED THEREFROM, HE WOULD NOT BE ENTITLED TO PAY AND ALLOWANCES IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION THAT HE CONTINUED TO BE DISABLED FOR HIS "NORMAL CIVILIAN PURSUITS" (30 COMP. GEN. 476); THAT A RESERVIST IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES AFTER DISCHARGE FROM A HOSPITAL TO THE DATE THE PROPER AUTHORITIES DETERMINE THAT HE CONTINUED TO BE DISABLED FOR "NORMAL CIVILIAN PURSUITS" (B-109544, FEBRUARY 12, 1953); AND THAT PAY AND ALLOWANCES CONTINUE TO ACCRUE AFTER RELEASE FROM A HOSPITAL IF IT BE DETERMINED THAT THE MEMBER CONTINUES TO BE DISABLED FOR "NORMAL PURSUITS" BY THE DISABILITY FOR WHICH HOSPITALIZED (33 COMP. GEN. 411, ANSWER TO QUESTIONS 1 (B) AND 2 (B) ).

WITH RESPECT TO THE DURATION OF DISABILITY FOR "NORMAL CIVILIAN PURSUITS," THERE IS LITTLE OR NO DIFFICULTY IN DETERMINING THE LENGTH OF SUCH DISABILITY IN A CASE WHERE THE PERIOD OF THE MEMBER'S HOSPITALIZATION AND CONVALESCENCE IS FOLLOWED IMMEDIATELY BY A RETURN TO THE CIVILIAN POSITION OR OCCUPATION, WHICH HE HELD BEFORE HIS INJURY, ON A FULL-TIME BASIS AND WITHOUT ANY SUBSTANTIAL IMPAIRMENT OF ABILITY TO PERFORM THE DUTIES OF SUCH POSITION OR OCCUPATION. IN THE CASE OF LIEUTENANT OTTERSTROM, IT APPEARS THAT HE PRIVATELY PRACTICED HIS PROFESSION OF DENTISTRY ON A PART-TIME BASIS BETWEEN MARCH 3, 1953, AND THE LATTER PART OF MARCH 1954 WHEN HE RETURNED TO HIS PRIVATE PRACTICE OF DENTISTRY ON A FULL-TIME BASIS. HE WAS PAID TOTAL DISABILITY COMPENSATION BY THE BUREAU F EMPLOYEES' COMPENSATION THROUGH MARCH 31, 1954, AND PARTIAL DISABILITY COMPENSATION THEREAFTER TO MARCH 27, 1957. SINCE THE EMPLOYEES' COMPENSATION IS AN ALTERNATIVE (ELECTIVE) BENEFIT TO MILITARY PAY, ALLOWANCES, HOSPITALIZATION, ETC., AND IT WAS DETERMINED BY COMPETENT FEDERAL AUTHORITY THAT HE WAS ENTITLED TO SUCH COMPENSATION ON A TOTAL DISABILITY BASIS THROUGH MARCH 31, 1954, WE BELIEVE THE CONCLUSION IS JUSTIFIED THAT HE IS ENTITLED TO ACTIVE-DUTY MILITARY PAY AND ALLOWANCES THROUGH THAT DATE. IT IS OUR VIEW, HOWEVER, THAT ON THE PRESENT RECORD HE SHOULD NOT BE ALLOWED ACTIVE-DUTY PAY AND ALLOWANCES AFTER THAT DATE WHEN HE WAS PRIVATELY PRACTICING HIS PROFESSION ON A FULL-TIME BASIS EVEN THOUGH IT WAS DETERMINED THAT HE WAS ENTITLED TO PARTIAL DISABILITY COMPENSATION PAYMENTS AFTER THAT DATE PRESUMABLY ON THE BASIS THAT HIS EARNING CAPACITY WAS SOMEWHAT IMPAIRED BY HIS INJURIES. TO ALLOW HIM ACTIVE DUTY PAY AND ALLOWANCES AFTER MARCH 31, 1954, WHEN HE HAD FULL-TIME EARNINGS FROM HIS PRIVATE PRACTICE APPARENTLY WOULD RESULT IN PUTTING HIM IN A BETTER POSITION FINANCIALLY THAN AN OFFICER OF THE REGULAR NAVY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WOULD HAVE UNDER SIMILAR CIRCUMSTANCES, NOTWITHSTANDING LIEUTENANT OTTERSTROM'S RIGHT AS A RESERVIST TO ANY ACTIVE-DUTY PAY AND ALLOWANCES INCIDENT TO HIS INJURY MUST BE DETERMINED ON THE BASIS OF A STATUTORY PROVISION WHICH GRANTS ENTITLEMENT TO THE SAME "PAY AND ALLOWANCES * * * PROVIDED BY LAW OR REGULATION FOR OFFICERS * * * OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY.'

ACCORDINGLY, LIEUTENANT OTTERSTROM, UPON REFUND OF ALL PAYMENTS RECEIVED BY HIM FROM THE BUREAU OF EMPLOYEES' COMPENSATION, MAY BE CREDITED WITH ACTIVE-DUTY PAY AND ALLOWANCES FROM MARCH 2, 1952, THROUGH MARCH 31, 1954, AND WITH DISABILITY RETIREMENT PAY BEGINNING DECEMBER 1, 1957. WITH RESPECT TO HIS CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE INTERVENING PERIOD BETWEEN THE LATTER TWO DATES, THE QUESTION OF HIS RIGHT TO SUCH PAY AND ALLOWANCES IS OF SUCH DOUBTFUL NATURE AS TO PRECLUDE FAVORABLE CONSIDERATION OF THAT CLAIM ON THE PRESENT RECORD. IN THAT CONNECTION, IT IS NOTED THAT LIEUTENANT OTTERSTROM HAS FILED SUIT AGAINST THE GOVERNMENT FOR ACTIVE-DUTY PAY AND ALLOWANCES TO DECEMBER 1, 1957, AND RETIRED PAY AFTER THAT DATE. YOU REPORT THAT FURTHER ACTION IN THAT CASE IS BEING HELD IN ABEYANCE-- PRESUMABLY ON A MOTION TO DISMISS THE PETITION HELD IN ESCROW--- PENDING ADMINISTRATIVE DETERMINATION AS TO HIS RIGHTS IN THE PREMISES.

ON THE SAME BASIS AS ABOVE, COMMANDER SEAVEY, UPON REFUND BY HIM OF ALL PAYMENTS RECEIVED FROM THE BUREAU OF EMPLOYEES' COMPENSATION, MAY BE CREDITED WITH ACTIVE-DUTY PAY AND ALLOWANCES FROM MARCH 2, 1952, THROUGH MARCH 23, 1953, THE DATE OF TERMINATION OF HIS HOSPITALIZATION, AND FOR SUCH PERIOD THEREAFTER AS HE RECEIVED TOTAL DISABILITY PAYMENTS FROM THE BUREAU OF EMPLOYEES' COMPENSATION, TOGETHER WITH DISABILITY RETIREMENT PAY FROM DECEMBER 1, 1957.