B-216578, FEB 19, 1985, 85-1 CPD 220

B-216578, FEB 19, 1985, 85-1 CPD 220

MILITARY PERSONNEL - RESERVISTS - DEATH OR INJURY - DISABILITY BENEFITS - AUTHORITY OF SECRETARIES TO DECIDE DIGESTS: 1. BY STATUTE, THE SECRETARY OF THE APPROPRIATE MILITARY OR NAVAL DEPARTMENT HAS ALL POWERS, FUNCTIONS, AND DUTIES RELATIVE TO DETERMINATIONS OF SERVICE MEMBERS' FITNESS FOR DUTY AND THEIR PERCENTAGE OF DISABILITY, IF ANY. THUS, THE COMPTROLLER GENERAL HAS NO BASIS TO QUESTION A NAVY DEPARTMENT ACTION ASSIGNING A MARINE CORPS RESERVIST A PERMANENT 10-PERCENT DISABILITY RATING AND SEPARATING HIM FROM SERVICE WITH SEVERANCE PAY, NOTWITHSTANDING THE RESERVIST'S CONTENTION THAT HIS DISABILITY SHOULD HAVE BEEN RATED AT 30 PERCENT OR MORE AND THAT HE SHOULD THEREFORE HAVE BEEN AWARDED A DISABILITY RETIREMENT. PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - PAY AND LEAVE ENTITLEMENT 2. MARINE CORPS RESERVIST INJURED WHILE PERFORMING 2 WEEKS OF REQUIRED ANNUAL TRAINING BECAME ENTITLED BY SPECIFIC PROVISION OF STATUTE OF PAYMENT OF AMOUNTS EQUAL TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A MEMBER OF THE REGULAR MARINE CORPS DURING THE SUBSEQUENT PERIOD OF DISABILITY. THE RESERVIST WAS NOT ACTUALLY ON ACTIVE DUTY DURING THAT PERIOD, HOWEVER. HENCE, THERE IS NO BASIS TO QUESTION DETERMINATION MADE BY MILITARY AUTHORITIES THAT HE WAS NOT ENTITLED TO THE ADDITIONAL BENEFITS THAT ACCRUE TO SERVICE MEMBERS ORDERED TO ACTIVE DUTY FOR MORE THAN 30 DAYS, INCLUDING COVERAGE FOR DEPENDENTS UNDER THE CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS). PAY - ENTITLEMENT - BASED ON APPLICABLE LAWS 3. IT IS FUNDAMENTAL THAT THE ENTITLEMENT OF SERVICE MEMBERS TO PAY IS WHOLLY DEPENDENT UPON RIGHTS PRESCRIBED BY STATUE. HENCE, MARINE CORPS RESERVIST INJURED DURING ANNUAL 2-WEEK TRAINING DUTY PERIOD WAS ENTITLED TO MILITARY PAY AND ALLOWANCES AUTHORIZED BY STATUE FOR SUBSEQUENT PERIOD OF DISABILITY, BUT WAS NOT ENTITLED TO ADDITIONAL PAYMENTS EQUAL TO CIVILIAN EARNINGS HE CLAIMED TO HAVE LOST BECAUSE OF THE INJURY SINCE SUCH ADDITIONAL PAYMENTS ARE NOT AUTHORIZED BY STATUTE.

THE HONORABLE NORMAN F. LENT: HOUSE OF REPRESENTATIVES

DEAR MR. LENT:

WE REFER FURTHER TO YOUR LETTERS DATED APRIL 3 AND JULY 18, 1984, WITH ENCLOSURES, REQUESTING OUR REVIEW OF MR. LEWIS R. TOLLEY'S ENTITLEMENT TO FEDERAL BENEFITS BASED ON THE INJURY HE SUSTAINED ON MAY 12, 1982, WHILE PARTICIPATING IN A 2-WEEK PERIOD OF ANNUAL TRAINING WITH THE MARINE CORPS RESERVE. IN LIGHT OF THE FACTS PRESENTED, WE ARE UNABLE TO CONCLUDE THAT MR. TOLLEY IS ENTITLED TO PAYMENTS FROM THE DEPARTMENT OF THE NAVY BEYOND THOSE HE HAS ALREADY RECEIVED. ANY FURTHER CLAIMS FOR FEDERAL BENEFITS HE MAY NOW HAVE BASED ON THE INJURY WOULD APPEAR TO BE PRIMARILY WITHIN THE EXCLUSIVE JURISDICTION OF THE VETERANS ADMINISTRATION.

FACTS

IT APPEARS THAT MR. TOLLEY INITIALLY ENLISTED IN THE REGULAR MARINE CORPS IN SEPTEMBER 1965 AT THE AGE OF 18, AND HE SERVED CONTINUOUSLY ON ACTIVE DUTY DURING THE FOLLOWING 6 YEARS UNTIL DISCHARGED IN SEPTEMBER 1971. HELD NO MILITARY STATUS DURING THE NEXT 10 YEARS. IN AUGUST 1981 HE ENLISTED IN THE MARINE CORPS RESERVE WITH THE RANK OF SERGEANT (PAY GRADE E-5), AND HE WAS ASSIGNED TO A RESERVE UNIT LOCATED NEAR HIS HOME IN THE STATE OF NEW YORK.

THE MEMBERS OF THIS MARINE CORPS RESERVE UNIT WERE SUBSEQUENTLY ORDERED TO PERFORM 14 DAYS OF ANNUAL TRAINING DUTY AT QUANTICO, VIRGINIA, FROM MAY 9 THROUGH MAY 22, 1982. MR. TOLLEY WAS INJURED IN A FALL ON AN OBSTACLE COURSE ON MAY 12, 1982, WHILE PARTICIPATING IN THIS 14-DAY ACTIVE DUTY ASSIGNMENT.

THE LASTING SYMPTOMS OF MR. TOLLEY'S INJURY INCLUDED BACK PAIN RADIATING DOWN INTO THE LEFT LEG AND FOOT. DURING THE 2 YEARS FOLLOWING THE INJURY HE WAS TREATED AND EVALUATED AT NAVY AND VETERAN ADMINISTRATION HOSPITALS. THE FINAL DIAGNOSIS REACHED BY THE NAVY MEDICAL BOARD CONVENED IN HIS CASE IN JANUARY 1984 WAS "MECHANICAL BACK PAIN" WITH A POSSIBILITY OF LUMBAR RADICULOPATHY. THE NAVY'S CENTRAL PHYSICAL EVALUATION BOARD THEN CONCLUDED THAT HE WAS PHYSICALLY UNFIT FOR MILITARY DUTY AND ASSIGNED HIM A PERMANENT DISABILITY RATING OF 10 PERCENT. HE ACCEPTED THE BOARD'S FINDINGS ON FEBRUARY 27, 1984, ELECTING NOT TO SUBMIT STATEMENTS IN REBUTTAL OR TO REQUESTS A FORMAL HEARING. HE RECEIVED HIS FINAL DISCHARGE FROM THE MARINE CORPS RESERVE ON MARCH 29, 1984.

THE PAYMENTS THAT MR. TOLLEY HAS RECEIVED IN THIS MATTER FROM THE DEPARTMENT OF THE NAVY HAVE APPARENTLY INCLUDED (1) HIS ACTIVE DUTY PAY AND ALLOWANCES AS A SERGEANT (E-5) FOR THE PERIOD MAY 9-22, 1982; (2) AMOUNTS EQUAL TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A SERGEANT (E-5) OF THE REGULAR MARINE CORPS FOR THE PERIOD FROM MAY 23, 1982, TO MARCH 29, 1984; AND (3) FINAL DISABILITY SEVERANCE PAY IN THE AMOUNT OF $11,000.

ISSUES

MR. TOLLEY INDICATES THAT IN MAY 1982 HE HELD CIVILIAN EMPLOYMENT PROVIDING HIM A YEARLY INCOME OF ABOUT $40,000 IN SALARY AND BONUSES. HAD TO RESIGN FROM HIS CIVILIAN POSITION THAT SUMMER BECAUSE OF HIS INJURY, AND HE WAS UNEMPLOYED MOST OF THE TIME DURING THE NEXT 2 YEARS. HE SUGGESTS THAT THE PAYMENTS MADE TO HIM BY THE DEPARTMENT OF THE NAVY WERE INADEQUATE TO REIMBURSE HIM FOR HIS LOSS OF CIVILIAN INCOME, AND IN EFFECT HE QUESTIONS WHETHER HE MAY BE ALLOWED ADDITIONAL AMOUNTS AS COMPENSATION FOR LOST CIVILIAN EARNINGS.

MR. TOLLEY ALSO INDICATES THAT WHILE HE DID NOT CONTEST THE CORRECTNESS OF THE 10-PERCENT DISABILITY RATING ASSIGNED TO HIM BY THE CENTRAL PHYSICAL EVALUATION BOARD, HE DOES NOT ACTUALLY AGREE WITH THAT RATING. IN EFFECT, HE QUESTIONS WHETHER THE RATING CAN BE INCREASED TO 30 PERCENT OR MORE, SO THAT HE MIGHT BECOME ELIGIBLE FOR MONTHLY DISABILITY RETIREMENT PAYMENTS.

FURTHER, MR. TOLLEY INDICATES THAT BETWEEN MAY 1982 AND MARCH 1984 HE SPENT $6,000 TO PROVIDE MEDICAL CARE FOR THE MEMBERS OF HIS FAMILY. QUESTIONS WHETHER HE MAY BE ELIGIBLE FOR REIMBURSEMENT OF THAT AMOUNT UNDER THE CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS).

IN ADDITION, YOU ASK FOR OUR GENERAL REVIEW OF THIS MATTER, AND FOR OUR ADVICE CONCERNING ANY FURTHER BENEFITS THAT MIGHT BE AVAILABLE TO MR. TOLLEY.

ACTIVE DUTY MILITARY PAY - LOST CIVILIAN EARNINGS

IT IS FUNDAMENTAL THAT THE ENTITLEMENT OF SERVICE MEMBERS TO PAY IS WHOLLY DEPENDENT UPON RIGHTS PRESCRIBED BY STATUTE, AND NEITHER EQUITABLE CONSIDERATION NOR COMMON LAW CONTRACT PRINCIPLES HAVE A PLACES IN THE DETERMINATION OF THEIR PAY ENTITLEMENTS. SEE, FOR EXAMPLE, UNITED STATES V. LARIONOFF, 431 U.S. 864, 869 (1977); BELL V. UNITED STATES, 366 U.S. 393, 401 (1961); ABBOTT V. UNITED STATES, 492 F.2D 834, 200 CT.CL. 384 (1973), CERT. DENIED 414 U.S. 1024 (1973); PETTY OFFICER JOHN R. BLAYLOCK, USN, 60 COMP.GEN. 257, 259 (1981); VETERINARY AND OPTOMETRY OFFICERS, 56 COMP.GEN. 943, 950 (1977).

PROVISIONS OF STATUTE CODIFIED IN CHAPTERS 3 AND 7 OF TITLE 37, U.S.C. GENERALLY AUTHORIZE PAYMENT OF BASIC PAY AND ALLOWANCES TO SERVICE MEMBERS WHO ARE ON ACTIVE DUTY, COMPUTED IN ACCORDANCE WITH THEIR PAY GRADES. SEE, GENERALLY, 37 U.S.C. SECS. 204(A), 402, AND 403. HENCE, MR. TOLLEY WAS ENTITLED TO BASIC PAY AND ALLOWANCES AS A MARINE CORPS RESERVE SERGEANT (E-5) DURING THE 14-DAY PERIOD HE WAS ON ACTIVE DUTY UNDER ORDERS DURING THE PERIOD FROM MAY 9 THROUGH MAY 22, 1982.

IN ADDITION, UNDER 37 U.S.C. SEC. 204(I) AND 10 U.S.C. SEC. 6148(A) A MEMBER OF THE MARINE CORPS RESERVE WHO IS ORDERED TO ACTIVE DUTY FOR ANY PERIOD OF TIME, AND WHO IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR A MEMBER OF THE REGULAR MARINE CORPS OF CORRESPONDING GRADE. WE HAVE EXPRESSED THE VIEW THAT UNDER THESE AND SIMILAR STATUTORY PROVISIONS APPLICABLE TO RESERVE COMPONENTS OF THE OTHER UNIFORMED SERVICE, ENTITLEMENT TO PAY AND ALLOWANCES IS BASED UPON A RESERVIST'S PHYSICAL DISABILITY TO PERFORM NORMAL MILITARY DUTY WITHOUT REGARD TO THE RESERVIST'S CAPABILITY OF ENGAGING IN CIVILIAN EMPLOYMENT, AND THE DETERMINATION CONCERNING HOW LONG THE DISABILITY CONTINUES IS TO BE LEFT TO THE EXERCISE OF SOUND ADMINISTRATIVE JUDGMENT. IN EACH CASE THE SERVICE CONCERNED IS TO DETERMINE WHEN THE INJURED RESERVIST HAS RECOVERED SUFFICIENTLY TO PERFORM NORMAL MILITARY DUTIES OR TO DETERMINE THAT THE INDIVIDUAL SHOULD BE SEPARATED FOR DISABILITY. LANCE CORPORAL MICHAEL A. CURTIS, USMCR, 54 COMP.GEN. 33, 36 (1974); 52 COMP.GEN. 99 (1972); 43 COMP.GEN. 733, 737 (1964). WE HAVE ALSO CONSISTENTLY HELD, HOWEVER, THAT ALTHOUGH A RESERVIST INJURED WHILE PERFORMING A SHORT TOUR OF ACTIVE DUTY HAS THIS SPECIFIC STATUTORY ENTITLEMENT TO CONTINUED PAY AND ALLOWANCES DURING THE SUBSEQUENT PERIOD OF DISABILITY, THE RESERVIST'S ACTIVE MILITARY STATUS OTHERWISE TERMINATES ON THE LAST DAY OF DUTY PRESCRIBED BY THE ORIGINAL ACTIVE SERVICES ORDERS. SEE DOD MILITARY PAY AND ALLOWANCE SUBMISSION NO. SS A-1272, 57 COMP.GEN. 305, 309-310 (1978). SEE ALSO LANCE CORPORAL MICHAEL A. CURTIS, USMCR, 54 COMP.GEN. AT 37; 41 COMP.GEN. 706 (1962); AND 37 COMP.GEN. 403 (1957). COMPARE LANIGHAM V. UNITED STATES, 5 CL. CT. 146, 157 (1984). IN THIS CASE, THEREFORE, OUR VIEW IS THAT MR. TOLLEY HAS A RIGHT TO AMOUNTS EQUAL TO THE PAY AND ALLOWANCES OF A SERGEANT (E-5) OF THE REGULAR MARINE CORPS FROM MAY 23, 1982, TO MARCH 29, 1984. SINCE HIS STATUS WAS THAT OF A DISABLED RESERVIST NOT ON ACTIVE DUTY DURING THAT PERIOD, HOWEVER, WE FIND THAT WE OTHERWISE INELIGIBLE FOR THE BENEFITS ASSOCIATED WITH ACTIVE MILITARY SERVICE, FOR EXAMPLE, LEAVE ACCRUAL AND PAYMENT FOR UNUSED ACCRUED LEAVE.

MOREOVER, WE ARE UNAWARE OF ANY PROVISION OF STATUTORY LAW THAT AUTHORIZES PAYMENT FROM APPROPRIATED FUNDS TO REIMBURSE SERVICE MEMBERS FOR CIVILIAN EARNINGS BELIEVED LOST ON ACCOUNT OF PHYSICAL INJURIES SUSTAINED IN THE PERFORMANCE OF ACTIVE MILITARY DUTY. OUR VIEW IS THAT IN THE ABSENCE OF SUCH STATUTORY AUTHORITY, MR. TOLLEY MAY NOT BE ALLOWED REIMBURSEMENT BASED ON A CLAIMED LOSS OF CIVILIAN INCOME IN THIS MATTER.

WE ARE THEREFORE UNABLE TO CONCLUDE THAT THE DEPARTMENT OF THE NAVY IS LIABLE TO MR. TOLLEY FOR ADDITIONAL MILITARY PAY AND ALLOWANCES FOR THE PERIOD FROM MAY 9, 1982, TO MARCH 29, 1984, BEYOND THE AMOUNTS HE HAS APPARENTLY ALREADY BEEN PAID, AND WE ALSO FIND THAT NO ADDITIONAL AMOUNTS ARE PAYABLE TO HIM AS REIMBURSEMENT FOR CIVILIAN EARNINGS BELIEVED LOST ON ACCOUNT OF THE INJURY DURING THAT PERIOD.

SEVERANCE PAY - DISABILITY RETIREMENT

PROVISIONS OF LAW GOVERNING THE SEPARATION OR RETIREMENT OF MEMBERS OF THE UNIFORMED SERVICES FOR REASONS OF PHYSICAL DISABILITY ARE CONTAINED IN CHAPTER 61 OF TITLE 10, U.S.C. (10 U.S.C. SECS. 1201 1221). UNDER 10 U.S.C. SEC. 1204, A SERVICE MEMBER WHO IS CALLED TO ACTIVE DUTY FOR 30 DAYS OR LESS, AND WHO SUSTAINS A PERMANENT DISABILITY RATED AT LEAST 30 PERCENT AS THE RESULT OF INJURY, IS ELIGIBLE FOR PERMANENT RETIREMENT WITH MONTHLY PAYMENTS OF MILITARY RETIRED PAY. ALTERNATIVELY, UNDER 10 U.S.C. SEC. 1206, A SERVICE MEMBER INJURED IN SUCH CIRCUMSTANCES WHO RECEIVES A PERMANENT DISABILITY RATING OF LESS THAN 30 PERCENT MAY BE SEPARATED FROM SERVICE WITH A SINGLE LUMP-SUM PAYMENT OF SEVERANCE PAY COMPUTED UNDER A PRESCRIBED FORMULA.

BY STATUTE, THE SECRETARY OF THE SERVICE CONCERNED HAS ALL POWERS, FUNCTIONS, AND DUTIES INCIDENT TO THE DETERMINATION OF THE FITNESS FOR DUTY OF ANY MEMBER OF THE ARMED FORCES UNDER THIS JURISDICTION AND THE PERCENTAGE OF DISABILITY OF ANY SUCH MEMBER. 10 U.S.C. SEC. 1216. THE FEDERAL COURTS HAVE REPEATEDLY HELD UNDER THIS STANDARD THE DISABILITY DETERMINATIONS OF MILITARY ADMINISTRATIVE BOARDS MAY NOT BE DISTURBED, ABSENT COGENT AND CLEARLY CONVINCING EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. SEE, FOR EXAMPLE, RUTHERFORD V. UNITED STATES, 573 F.2D 1224, 216 CT.CL. 163 (1978); AND POWELL V. MARSH, 560 F.SUPP. 636, 641 (D.D.C. 1983). WE DO NOT SEE A SUFFICIENT BASIS IN THE INFORMATION PRESENTED FOR QUESTIONING THE DETERMINATIONS MADE IN MR. TOLLEY'S CASE.

CHAMPUS BENEFITS

PROVISIONS OF STATUTE GOVERNING THE CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES, OR CHAMPUS, ARE CODIFIED IN CHAPTER 55 OF TITLE 10, U.S.C. (10 U.S.C. SECS. 1071-1092). CHAMPUS HAS BEEN DESIGNED GENERALLY AS A UNIFORM PROGRAM OF MEDICAL AND DENTAL CARE FOR ACTIVE DUTY AND RETIRED SERVICE MEMBERS, AND FOR THEIR DEPENDENTS. 10 U.S.C. SEC. 1071. CONCERNING THE DEPENDENTS OF ACTIVE DUTY SERVICE MEMBERS, COVERAGE IS LIMITED TO THE DEPENDENTS OF MEMBER WHO ARE "ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS." 10 U.S.C. SECS. 1076(A), 1079(A).

THIS LIMITATION IS DERIVED FROM SECTION 102 OF THE DEPENDENTS MEDICAL CARE ACT, PUBLIC LAW 569, 84TH CONG., 2D SESS., APPROVED JUNE 7, 1956, CH. 374, 70 STAT. 250. THE LEGISLATIVE HISTORY OF THE PROVISION REFLECTS THAT THE CONGRESS WAS PRIMARILY CONCERNED WITH PROVIDING A CAREER INCENTIVE FOR SERVICE MEMBERS ON EXTENDED ACTIVE DUTY, AND THAT THERE IS NO INTENT TO PROVIDE MEDICAL CARE FOR THE DEPENDENTS OF RESERVISTS CALLED OR ORDERED TO ACTIVE DUTY FOR PERIODS OF 30 DAYS OR LESS. SEE S. REP. NO. 1878, 84TH CONG., 2D SESS. 3, 12, REPRINTED IN 1956 U.S.C. CONG. & AD. NEWS 2698, 2700, 2709; H. R. REP NO. 1805, 84TH CONG., 2D SESS. 1-8, 28 (1956); 102 CONG. REC.3847-3858 (1956); DEPENDENT MEDICAL CARE: HEARINGS ON H. R. 9429 BEFORE THE SENATE COMM. ON ARMED SERVICES, 84TH CONG., 2D SESS. 15-16, 19 24-27 (1956).

UNDER 10 U.S.C. SEC. 1073 THE SECRETARY OF DEFENSE IS ASSIGNED THE PRIMARY RESPONSIBILITY FOR ADMINISTERING CHAMPUS FOR THE NAVY AND MARINE CORPS, AND MR. TOLLEY INDICATES THAT THE RESPONSIBLE OFFICIALS DECLINED TO AUTHORIZE CHAMPUS COVERAGE FOR HIS DEPENDENTS BETWEEN MAY 1982 AND MARCH 1984. WE HAVE NO BASIS TO QUESTION THAT DETERMINATION SINCE, AS INDICATED, HE WAS CALLED TO ACTIVE DUTY SERVICE FOR ONLY 14 DAYS IN MAY 1982. HIS MILITARY STATUS DURING THE REMAINDER OF THE PERIOD LASTING UNTIL MARCH 1984 WAS THAT OF A RESERVIST NOT ON ACTIVE DUTY. HENCE, IT DOES NOT APPEAR THAT HE EVER ESTABLISHED ELIGIBILITY FOR CHAMPUS BENEFITS UNDER THE APPLICABLE STATUTES SINCE HE WAS NOT A SERVICE MEMBER "ON ACTIVE DUTY FOR A PERIOD MORE THAN 30 DAYS."

CONCLUSION

OTHER FEDERAL BENEFITS FOR WHICH MR. TOLLEY MAY BE ELIGIBLE AS THE RESULT OF HIS INJURY WOULD APPEAR TO BE THOSE PRIMARILY WITHIN THE JURISDICTION OF THE VETERANS ADMINISTRATION. BY LAW, THE DECISIONS OF THE ADMINISTRATOR OF VETERAN'S AFFAIRS ON CLAIMS FOR VETERANS BENEFITS ARE "FINAL AND CONCLUSIVE," AND ARE NOT SUBJECT TO REVIEW BY ANY OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES. 38 U.S.C. SEC. 211(A). MR. TOLLEY HAS QUESTIONS CONCERNING HIS ELIGIBILITY FOR VETERANS BENEFITS, THE VETERANS ADMINISTRATION WILL BE ABLE TO PROVIDE HIM WITH FURTHER ADVICE IN THE MATTER.

IN ANSWER TO YOUR QUESTION CONCERNING LEGISLATION, IT IS OUR OPINION THAT NEW LEGISLATION WOULD BE NECESSARY BEFORE RESERVISTS WHO ARE INJURED IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN SERGEANT TOLLEY'S CASE COULD BE AUTHORIZED PAYMENTS AS COMPENSATION FOR LOST CIVILIAN EARNINGS, OR CHAMPUS BENEFITS FOR THEIR DEPENDENTS. WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY.