B-111821, AUG. 4, 1961

B-111821, AUG. 4, 1961

TO CAPTAIN GROVER T. BRECKENRIDGE, USAF:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1961, AGAIN REQUESTING THAT WE RECONSIDER YOUR CLAIM FOR AMOUNTS BELIEVED TO HAVE ACCRUED TO YOU AS FIRST LIEUTENANT, UNITED STATES AIR FORCE RESERVE, BETWEEN APRIL 5, 1951 AND MAY 14, 1951. YOU SAY THAT THE ATTACHMENTS WHICH ACCOMPANIED YOUR LETTER CONTAIN EVIDENCE WHICH WAS NOT AVAILABLE WHEN YOUR CLAIM PREVIOUSLY WAS CONSIDERED BY US.ALSO, YOU CITE OUR DECISION OF JANUARY 6, 1960, B- 130694, 39 COMP. GEN. 498, AND YOU INDICATE THAT, ON THE BASIS OF OUR HOLDING IN THAT CASE, YOU BELIEVE WE SHOULD TAKE FAVORABLE ACTION ON YOUR CLAIM.

IT APPEARS FROM THE EVIDENCE OF RECORD IN YOUR CASE THAT, BY ORDERS OF APRIL 16, 1950, YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING WITH THE 346TH TROOP CARRIER SQUADRON, 2584TH AIR FORCE RESERVE TRAINING CENTER, MEMPHIS MUNICIPAL AIRPORT, MEMPHIS, TENNESSEE, FOR A 15-DAY PERIOD BEGINNING APRIL 30, 1950, AND ENDING MAY 14, 1950. IT ALSO APPEARS THAT ON MAY 8, 1950, WHILE FLYING ON AN AUTHORIZED FLIGHT, YOU WERE INVOLVED IN AN AIRCRAFT ACCIDENT AND THAT YOU WERE HOSPITALIZED ON ACCOUNT OF THE INJURIES RESULTING THEREFROM. ON JULY 28, 1950, WHILE STILL UNDER TREATMENT FOR THOSE INJURIES AND WHILE ON AN AUTHORIZED PASS FROM THE HOSPITAL YOU WERE INVOLVED IN AN AUTOMOBILE ACCIDENT AND SUSTAINED ADDITIONAL INJURIES WHICH NECESSITATED ADDITIONAL HOSPITALIZATION AND MEDICAL TREATMENT. BEGINNING MAY 18, 1950, SUCCESSIVE ORDERS WERE ISSUED PURPORTING TO EXTEND YOUR 15-DAY TOUR OF ACTIVE DUTY FOR TRAINING, THE LATEST OF THESE ORDERS, ISSUED IN NOVEMBER 1950, SPECIFYING MAY 14, 1951, AS EFFECTIVE DATE OF RELIEF FROM TRAINING. ON THE BASIS OF SUCH ORDERS YOU WERE PAID PAY AND ALLOWANCES NOT ONLY FOR THE 15-DAY PERIOD OF ACTIVE DUTY FOR TRAINING (APRIL 30 TO MAY 14, 1950), BUT ALSO FOR THE PERIOD FROM MAY 15, 1950, TO APRIL 30, 1951.

SO FAR AS IS HERE PERTINENT, THE REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED PROVIDED THAT SHORT TOURS OF ACTIVE DUTY FOR TRAINING WOULD BE OF 15 CONSECUTIVE DAYS' DURATION, INCLUDING TRAVEL TIME, AND THOSE REGULATIONS CONTAINED NO PROVISION FOR ANY EXTENSION OF TIME FOR ANY PURPOSE. UNDER THE PROVISIONS OF THE REGULATIONS ISSUED PURSUANT TO SECTION 2 OF THE ACT OF JUNE 20, 1949, 63 STAT. 202, HOWEVER, MEMBERS WHO WERE INJURED IN CONNECTION WITH PARTICIPATION IN ANY WAY IN THE RESERVE TRAINING PROGRAM WERE ENTITLED TO RECEIVE PAY AND ALLOWANCES AFTER THE EXPIRATION OF AUTHORIZED TRAINING PERIODS, IF OTHERWISE PROPER DURING A PERIOD WHILE HOSPITALIZED AS A RESULT OF INJURIES INCURRED IN LINE OF DUTY. THE ORDERS PURPORTING TO EXTEND YOUR 15-DAY PERIOD OF ACTIVE DUTY FOR TRAINING WERE WITHOUT EFFECT AND THE ADDITIONAL INJURIES SUSTAINED BY YOU ON JULY 28, 1950, WERE NOT INJURIES SUSTAINED IN LINE OF DUTY.

A MEDICAL REVIEW BOARD AT THE HOSPITAL WHERE YOU WERE FIRST HOSPITALIZED REPORTED THAT, HAD THE ACCIDENT OF JULY 28, 1950, NOT OCCURRED, YOU WOULD HAVE BEEN DISCHARGED FROM HOSPITALIZATION ABOUT NOVEMBER 10, 1950. ON THE BASIS OF THAT REPORT AND THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS, WE HELD IN OUR DECISIONS OF DECEMBER 17, 1952, AND FEBRUARY 17, 1954, B-111821, THAT YOUR STATUS FOR HOSPITAL BENEFITS AND PAY AND ALLOWANCES UNDER THE ACT OF JUNE 20, 1949, TERMINATED NOT LATER THAN NOVEMBER 14, 1950, THE DATE OF YOUR RELEASE FROM THAT HOSPITAL TO TRANSFER TO ANOTHER HOSPITAL. WE ALSO THERE HELD THAT YOU HAD BEEN ERRONEOUSLY PAID ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM NOVEMBER 14, 1950, THROUGH APRIL 30, 1951, AND THAT YOU WERE NOT ENTITLED TO THE ADDITIONAL AMOUNTS CLAIMED FOR THE PERIOD FROM APRIL 5, 1951, TO MAY 14, 1951.

WE ADVISED YOU IN THE DECISION OF FEBRUARY 17, 1954, HOWEVER, THAT, SINCE YOU STATED THAT ON APRIL 10, 1951, YOU WERE RETURNED TO DUTY STATUS AS A SUPPLY OFFICER IN CHARGE OF PERSONNEL ISSUING AIR FORCE CLOTHING TO THE NEWLY ACTIVATED 516TH TROOP CARRIER WING, WE WOULD GIVE FURTHER CONSIDERATION TO THE QUESTION OF WHETHER YOU ARE ENTITLED TO RETAIN THE ACTIVE DUTY PAY AND ALLOWANCES PAID YOU FOR THE PERIOD FROM APRIL 10, 1951, TO APRIL 30, 1951, UPON SUBMISSION BY YOU OF A CERTIFIED COPY OR EXTRACT OF THE PERTINENT AIR FORCE ORDERS ASSIGNING YOU TO SUCH DUTY, ACCOMPANIED BY A STATEMENT FROM THE AIR FORCE SHOWING, BY INCLUSIVE DATES, THE PERIOD THAT YOU DID IN FACT PERFORM SUCH DUTY.

YOU DO NOT FURNISH THE EVIDENCE MENTIONED IN THE PRECEDING PARAGRAPH, BUT YOU DO FURNISH A COPY OF A CERTIFICATE EXECUTED ON APRIL 11, 1955, BY LIEUTENANT COLONEL JERRED G. BLANCHARD, USAFR, WHO, YOU SAY, WAS YOUR IMMEDIATE COMMANDER FROM APRIL 10, 1951, THROUGH MAY 14, 1951. ALTHOUGH IT SEEMS EVIDENT THAT COLONEL BLANCHARD HAD NO DEFINITE KNOWLEDGE AS TO WHETHER OR NOT YOU WERE SERVING ON ACTIVE DUTY UNDER PROPER ORDERS, HE INDICATES, GENERALLY, THAT IT WAS HIS UNDERSTANDING THAT YOU WERE "ASSIGNED ON ORDERS" AND "AVAILABLE FOR DUTY; " THAT YOU WERE "IN THE UNITED STATES AIR FORCE; " AND THAT YOU WERE "AMENABLE TO MILITARY LAW.' HE ADMITS THAT NO ORDERS WERE ISSUED ASSIGNING YOU TO THE "CLOTHING SALES STORE," BUT STATES THAT YOU WERE ON DUTY, APPARENTLY AT MEMPHIS, FROM APRIL 10, 1951, TO MAY 14, 1951.

IN CONNECTION WITH YOUR CLAIM OF SUCH SERVICE, HOWEVER, YOU ARE ADVISED THAT AN EXAMINATION OF THE PAPERS IN YOUR CLAIM FILE DISCLOSES THAT IN YOUR LETTER OF JULY 30, 1951, YOU STATED THAT YOU REQUESTED 15 DAYS' "LEAVE" AND RETURNED FROM LEAVE ON MAY 14, 1951. IT IS ALSO NOTED THAT ORDERS DATED APRIL 27, 1951, PURPORT TO AUTHORIZE 15 DAYS' LEAVE EFFECTIVE APRIL 30, 1951. ALSO, YOU CLAIMED A MILEAGE ALLOWANCE FOR TRAVEL ALLEGEDLY PERFORMED ON APRIL 22 AND 23, 1951, FROM ROBINS AIR FORCE BASE, GEORGIA, TO MEMPHIS, TENNESSEE, AND YOU CLAIMED A PER DIEM ALLOWANCE FOR THE PERIOD FROM APRIL 18 TO 23, 1951, INCIDENT TO TRAVEL FROM MEMPHIS, TENNESSEE, TO ROBINS AIR FORCE BASE, GEORGIA, AND RETURN. IN VIEW OF SUCH FACTS COLONEL BLANCHARD'S CERTIFICATE MAY NOT BE ACCEPTED AS ESTABLISHING THAT YOU WERE ASSIGNED TO DUTY UNDER PROPER ORDERS FROM APRIL 10, 1951, TO MAY 14, 1951, AND THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES FOR THAT PERIOD.

WE HAVE CAREFULLY EXAMINED THE OTHER ATTACHMENTS RECEIVED WITH YOUR LETTER OF APRIL 19, 1961, AND OUR DECISION OF JANUARY 6, 1960, B 130694, 39 COMP. GEN. 498, BUT WE DO NOT FIND IN THEM ANYTHING WHICH WOULD WARRANT ANY MODIFICATION OR REVISION OF THE PRIOR ACTION TAKEN BY US IN YOUR CASE. THE DECISION OF JANUARY 6, 1960, CONCERNS THE RIGHT OF MEMBERS OF THE NATIONAL GUARD AND MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY AND THE AIR FORCE OTHER THAN THE NATIONAL GUARD TO PAY AND ALLOWANCES FOR PERIODS OF REHOSPITALIZATION FOR DISABILITIES OR INJURIES INCURRED IN LINE OF DUTY. THAT DECISION IS NOT FOR APPLICATION IN YOUR CASE, SINCE THE ADDITIONAL INJURIES INCURRED BY YOU ON JULY 28, 1950, WERE NOT INJURIES INCURRED IN LINE OF DUTY.