A-54325, SEPTEMBER 17, 1935, 15 COMP. GEN. 216

A-54325, SEPTEMBER 17, 1935, 15 COMP. GEN. 216

PAY AND ALLOWANCES - DURING DISABILITY - ARMY AIR CORPS RESERVE OFFICER THE BEGINNING OF THE SIX MONTHS' PERIOD DURING WHICH THE PERSONNEL COVERED BY THE ACT OF APRIL 26, 1928, 45 STAT. 461, MAY CONTINUE TO RECEIVE PAY AND ALLOWANCES, IS THE DATE FOLLOWING THAT ON WHICH THE DISABILITY OCCURRED, AND NOT THE DATE OF TERMINATION OF ACTIVE DUTY SPECIFIED IN THE ORDERS, NOTWITHSTANDING ACTIVE-DUTY ORDERS ISSUED SUBSEQUENT TO DATE OF, BUT DURING DISABILITY.

COMPTROLLER GENERAL MCCARL TO VINCENT FORD, SEPTEMBER 17, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 8, 1935, AGAIN REFERRING TO YOUR CLAIM FOR ADDITIONAL PAY AND ALLOWANCES UNDER THE ACT OF APRIL 26, 1928, 45 STAT. 461, BY REASON OF INJURIES SUSTAINED IN AN AIRPLANE CRASH APRIL 14, 1933, WHILE PERFORMING ACTIVE DUTY AS A SECOND LIEUTENANT, AIR CORPS RESERVE.

THE QUESTION AS TO THE BASIS FOR COMPUTING THE PAY AND ALLOWANCES DUE YOU WAS FIRST PRESENTED TO THIS OFFICE ON A VOUCHER SUBMITTED BY MAJ. W. M. DIXON, F.D., UNITED STATES ARMY, AND BY DECISION A-54325, DATED MAY 4, 1934, IT WAS HELD THAT YOU WERE ENTITLED, UNDER THE ACT OF APRIL 26, 1928, TO A CONTINUATION OF PAY AND ALLOWANCES EITHER IN MONEY OR IN KIND YOU WERE RECEIVING AT THE TIME THE INJURIES WERE INCURRED FOR THE 6-MONTHS' PERIOD BEGINNING APRIL 15, 1933, TO OCTOBER 14, 1933, AND THERE WAS INCLUDED IN SAID DECISION A STATEMENT OF ACCOUNT SHOWING THE AMOUNT DUE AS $174.87, WHICH AMOUNT APPARENTLY WAS PAID TO AND RECEIVED AND ACCEPTED BY YOU. SUBSEQUENTLY, YOU QUESTIONED THE DEBIT ITEM OF $172.27 IN THE STATEMENT OF ACCOUNT REPRESENTING RENTAL ALLOWANCE PAID YOU CURRENTLY FROM APRIL 29 TO SEPTEMBER 30, 1933, AND BY DECISION DATED AUGUST 6, 1934, YOU WERE ADVISED THAT THE ACT OF APRIL 26, 1928, PROVIDED FOR CONTINUATION OF PAY AND THE ALLOWANCES, WHETHER IN MONEY OR IN KIND, WHICH WERE BEING RECEIVED BY YOU AT THE TIME THE INJURIES WERE INCURRED, AND INASMUCH AS YOU WERE FURNISHED QUARTERS IN KIND WHEN YOU WERE INJURED, THE PAYMENT OF RENTAL ALLOWANCE THEREAFTER WAS NOT AUTHORIZED AND, THEREFORE, CONSTITUTED A PROPER CHARGE AGAINST THE CREDIT OTHERWISE DUE YOU.

THE CLAIM NOW ASSERTED FOR THE FIRST TIME APPEARS TO BE PREDICATED UPON THE THEORY THAT THE CONTINUATION OF PAY AND ALLOWANCES FOR A PERIOD NOT IN EXCESS OF 6 MONTHS AUTHORIZED BY THE ACT OF APRIL 26, 1928, SHOULD BEGIN TO RUN NOT FROM THE DATE OF INJURY BUT FROM THE DATE OF TERMINATION OF ACTIVE DUTY, AND THAT SINCE ORDERS BEARING DATE MAY 1, 1933, PURPORTED TO CONTINUE YOU IN AN ACTIVE-DUTY STATUS UNTIL OCTOBER 15, 1933, YOU SHOULD RECEIVE PAY AND ALLOWANCES THEREUNDER UNTIL OCTOBER 15, 1933, PYRAMIDED BY AN ADDITIONAL 6 MONTHS' PAY AND ALLOWANCES UNDER THE ACT OF APRIL 26, 1928, UNTIL APRIL 15, 1934.

WHILE NOT EXPRESSLY STATED IN THE DECISIONS OF MAY 4 OR AUGUST 6, 1934, THE SUBMISSIONS UPON WHICH THOSE DECISIONS WERE BASED NECESSARILY REQUIRED A CONSIDERATION OF THE VERY QUESTION WHICH YOU NOW PRESENT, AND HAD THERE BEEN ANY SUPPORT IN LAW SAID DECISIONS WOULD HAVE REFLECTED THAT CONCLUSION. IN EFFECT YOU INTIMATE THAT HAD THE ADMINISTRATIVE AUTHORITY WHICH ISSUED THE ORDER OF MAY 1, 1933, BEEN COGNIZANT OF THE SERIOUS INJURIES SUSTAINED THEY WOULD, NOTWITHSTANDING THE PROVISIONS OF APPLICABLE ARMY REGULATIONS, HAVE ORDERED YOU TO A CONTINUATION OF ACTIVE DUTY AS AN OFFICER OF THE AIR CORPS, DUTIES POSSIBLE OF PERFORMANCE ONLY BY OFFICERS WHO HAVE PREVIOUSLY PASSED RIGID PHYSICAL EXAMINATIONS REQUIRED IN THE HAZARDS OF AVIATION TRAINING.

THE REGULATIONS GOVERNING THE OFFICERS' RESERVE CORPS, ARMY REGULATIONS 140-5, DATED APRIL 16, 1931, PROVIDE:

57. PHYSICAL EXAMINATION WHEN ORDERED TO ACTIVE DUTY.--- A. IN JUSTICE TO THE GOVERNMENT AND TO INDIVIDUALS, IT IS ESSENTIAL THAT THE PHYSICAL FITNESS OF RESERVE OFFICERS BE DETERMINED WHEN THEY ARE PLACED ON ACTIVE DUTY. WHILE MINOR PHYSICAL DEFECTS MAY BE WAIVED IF THE NATURE OF THE CONTEMPLATED DUTY PERMITS, IT IS ESSENTIAL THAT FUTURE EXPENSE TO THE GOVERNMENT AND INTERFERENCE WITH MILITARY EFFICIENCY BE AVOIDED BY NOT PLACING OR RETAINING ON ACTIVE DUTY ANY OFFICER WHO MAY BECOME A BURDEN THROUGH DISABILITY AGGRAVATED BY SERVICE. ALL RESERVE OFFICERS WHEN ORDERED TO ACTIVE DUTY WILL BE GIVEN A THOROUGH PHYSICAL EXAMINATION IMMEDIATELY UPON REPORTING FOR DUTY. THE EXAMINATION WILL BE MADE COMPLETE IN ORDER THAT ALL PHYSICAL DISQUALIFICATIONS OR DEFECTS BE DISCOVERED AND RECORDED.

B. IN TIME OF PEACE.--- IF THE CALL BE FOR ACTIVE DUTY IN TIME OF PEACE A FULL REPORT OF PHYSICAL EXAMINATION WILL BE MADE ON W.D., A.G.O. FORM NO. 63, WHICH WILL BE DISPOSED OF AS FOLLOWS:

(1)IF THERE ARE NO DISQUALIFYING DEFECTS, THE REPORT WILL BE FORWARDED TO THE CORPS AREA COMMANDER, WHO WILL CAUSE IT TO BE NOTED AND FILED.

(2) IF THERE ARE DISQUALIFYING DEFECTS, THE REPORT WILL BE FORWARDED THROUGH CHANNELS TO THE CORPS AREA COMMANDER, BY WHOM IT WILL BE NOTED ON THE OFFICER'S RECORD AND FORWARDED TO THE ADJUTANT GENERAL WITH SUITABLE RECOMMENDATION. WHEN HE DEEMS SUCH ACTION ADVISABLE, THE CORPS AREA COMMANDER WILL, BEFORE FORWARDING THE REPORT, RELIEVE THE OFFICER FROM ACTIVE DUTY OR CAUSE HIM TO BE RELIEVED, AND REPORT THIS FACT IN FORWARDING THE REPORT.

IN VIEW OF THESE REGULATIONS AND THE PURPOSES SOUGHT TO BE ACCOMPLISHED THEREBY, IT IS NOT UNDERSTOOD THERE WAS ANY INTENT BY THE ISSUANCE OF THE ORDERS OF MAY 1, 1933, THAT THERE SHOULD BE A WAIVER OF PHYSICAL REQUIREMENTS IN YOUR INDIVIDUAL CASE, ESPECIALLY SINCE WAIVERS OF GENERAL REGULATIONS MADE IN PURSUANCE OF LAW ARE NOT AUTHORIZED IN INDIVIDUAL CASES. SEE 4 COMP. GEN. 363, 480. FURTHERMORE, THIS OFFICE CONSISTENTLY HAS HELD THAT THE BEGINNING OF THE SIX MONTHS' PERIOD DURING WHICH THE PERSONNEL COVERED BY THE ACT OF APRIL 26, 1928, MAY CONTINUE TO RECEIVE PAY AND ALLOWANCES IS THE DATE FOLLOWING THAT ON WHICH THE DISABILITY OCCURRED.

IN THIS CONNECTION THERE IS NOTED ALSO YOUR APPARENT RELIANCE UPON THE CONTENTS OF A LETTER FROM THE SECRETARY OF WAR TO HON. FLORENCE PRAG KAHN, DATED MAY 2, 1935, COPY OF PART OF WHICH YOU INCLOSED, WORDED AS FOLLOWS:

* * * IT IS THE OPINION OF THE WAR DEPARTMENT THAT THE SIX MONTHS' PERIOD FOR CONTINUATION OF PAY AND ALLOWANCES BECAUSE OF HOSPITALIZATION (AS DISTINGUISHED FROM ACTIVE DUTY PAY) PROVIDED BY THE ACT OF APRIL 26, 1928, REFERRED TO IN THE PRECEDING PARAGRAPH, BEGINS ON THE DAY FOLLOWING THE END OF THE PERIOD FOR WHICH THE RESERVE OFFICER WAS PLACED ON ACTIVE DUTY, WHICH, IN LIEUTENANT FORD'S CASE, WOULD MAKE THAT SIX MONTHS' PERIOD BEGIN ON OCTOBER 16, 1933, AND END APRIL 15, 1934. * * *

IT MAY BE STATED FOR YOUR INFORMATION THAT ARMY REGULATIONS UNDER PAY AND ALLOWANCES, OFFICERS' RESERVE CORPS (CONTINUATION OF PAY WHILE UNDERGOING HOSPITALIZATION), A.R. 35-3420, PARAGRAPH 1E (3), CHANGES NO. 1, DATED JUNE 20, 1932, PROVIDE THAT:

THE SIX MONTHS' PERIOD FOR PAY PURPOSES BEGINS THE DAY FOLLOWING THAT ON WHICH THE INJURY IS SUFFERED OR DISEASE CONTRACTED.

THE SAME PROVISION IS CARRIED INTO THE CURRENT ARMY REGULATIONS, EFFECTIVE MAY 1, 1935, A.R. 35-3420, PARAGRAPH 2E (3), CLEARLY IS THE CORRECT INTERPRETATION OF THE PLAIN PROVISIONS OF THE LAW THAT---

* * * NO PERSON HOSPITALIZED UNDER THE FOREGOING PROVISIONS OF THIS SECTION ON ACCOUNT OF ANY PERSONAL INJURY SUFFERED OR DISEASE CONTRACTED SHALL BE ENTITLED TO RECEIVE, IN CONNECTION WITH SUCH INJURY OR DISEASE, PAY OR ALLOWANCE OTHER THAN HOSPITAL TREATMENT, INCLUDING MEDICAL TREATMENT, AND TRANSPORTATION, AS HEREIN PROVIDED FOR MORE THAN SIX MONTHS; BUT FOR ANY REMAINING PERIOD OF SUCH HOSPITALIZATION HE SHALL BE ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE. * * *

SINCE THE DAY FOLLOWING THE DATE OF INJURY WAS USED IN THE COMPUTATION OF YOUR PAY AND ALLOWANCES UNDER THE ACT OF APRIL 26, 1928, THERE IS NO MERIT IN YOUR PRESENT CLAIM AND THE SAME IS NECESSARILY DISALLOWED.