B-72707, MARCH 3, 1948, 27 COMP. GEN. 490

B-72707, MARCH 3, 1948, 27 COMP. GEN. 490

ACTIVE-DUTY PAY AND ALLOWANCES; AVIATION LUMP-SUM PAYMENTS - AIR CORPS RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR HOSPITALIZATION, ETC. AN ARMY AIR CORPS RESERVE OFFICER WHO, AFTER RELEASE FROM ACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY, WAS ORDERED TO "ACTIVE DUTY" SOLELY FOR HOSPITALIZATION, MEDICAL TREATMENT, AND APPEARANCE BEFORE AN ARMY RETIRING BOARD, MAY NOT BE CONSIDERED AS ORDERED TO ACTIVE DUTY WITHIN THE MEANING OF SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED, SO AS TO BE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES THEREUNDER DURING SUCH PERIOD OF HOSPITALIZATION, ETC.; AND UPON RELEASE FROM SUCH DUTY, SUCH OFFICER MAY NOT BE PAID THE LUMP SUM AUTHORIZED BY SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, FOR AIR CORPS RESERVE OFFICERS UPON RELEASE FROM ACTIVE DUTY. COMPARE 26 COMP. GEN. 107.

DECISION BY ASSISTANT COMPTROLLER GENERAL YATES, MARCH 3, 1948:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF CAPTAIN JOHN G. TRAPANI, AIR CORPS, ARMY OF THE UNITED STATES, FOR LUMP-SUM PAYMENT UNDER SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, FOR THE PERIOD JANUARY 28, 1946, TO FEBRUARY 3, 1947.

THE ADJUTANT GENERAL OF THE ARMY HAS REPORTED THAT JOHN G. TRAPANI WAS APPOINTED A SECOND LIEUTENANT, INFANTRY RESERVE, JUNE 6, 1941, AND ACCEPTED APPOINTMENT JUNE 14, 1941; THAT HE WAS TRANSFERRED TO THE AIR CORPS RESERVE MARCH 25, 1943; THAT HE WAS PROMOTED TO FIRST LIEUTENANT, AC -AUS, MAY 27, 1944; AND THAT HE WAS RELIEVED FROM ACTIVE DUTY DECEMBER 24, 1945, BY REASON OF PHYSICAL DISABILITY. IT IS STATED THAT HE WAS PAID A LUMP SUM UNDER THE PROVISIONS OF THE ACT OF JUNE 16, 1936, AS AMENDED, SUPRA, INCIDENT TO SUCH RELIEF FROM ACTIVE DUTY.

SPECIAL ORDERS NO. 19, WAR DEPARTMENT, WASHINGTON, D.C., DATED JANUARY 23, 1946, ARE, IN PERTINENT PART, AS FOLLOWS:

20. DP FOLLOWING OFFICERS ORDERED TO AD WP FR HOME TO STA ON DATE INDICATED. TDN. PCS. 601-31 P 431-02, 103, 107, 108 A 212/60425. ALL DATES ARE 1946 AND PERSONNEL OF AUS UNLESS OTHERWISE INDICATED.

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SPECIAL ORDERS NO. 1, HEADQUARTERS, ARMY MEDICAL CENTER, WASHINGTON, D.C., DATED JANUARY 2, 1947, ARE, IN PERTINENT PART, AS FOLLOWS:

17. DP EACH OF THE FOLLOWING OFFS NOW AT WALTER REED GH IS HELD FR FURTHER OBSN AND TRTMT AT WALTER REED GH AND WP TO THEIR HOMES AND ARRIVE THEREAT ON DATES INDICATED, ON WHICH DATES OFFS ARE HELD FR FURTHER ASGMT AND DY AT DEPT OF PNTS WALTER REED GH AMC WASHINGTON DC AND WILL REVERT TO INACTIVE STATUS BY REASON OF PHYSICAL DISABILITY. AUS APMTS WILL CONTINUE IN FORCE DURING THE PD OF THE PRESENT EMERGENCY AND FOR SIX MOS THEREAFTER UNLESS SOONER TERMINATED DP. LV IS GTD FOR NUMBER OF DAYS INDICATED EFF 4 JAN 47. WDAGO FORM 53-98 AUTH.

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THE ADJUTANT GENERAL HAS REPORTED ALSO THAT THE OFFICER WAS PROMOTED TO CAPTAIN, AC-AUS, JANUARY 3, 1947, AND THAT HE WAS CERTIFIED FOR RETIREMENT BENEFITS BY THE VETERANS' ADMINISTRATION, EFFECTIVE FEBRUARY 4, 1947.

AS INDICATED ABOVE CAPTAIN TRAPANI WAS RELIVED FROM ACTIVE DUTY ON DECEMBER 24, 1945, BECAUSE OF PHYSICAL DISABILITY. THE QUOTED ORDERS OF JANUARY 28, 1946, BUT IT WILL BE NOTED THAT HE WAS NOT ASSIGNED TO A STATION FOR "ACTIVE DUTY" AS THAT TERM IS GENERALLY UNDERSTOOD, THE ORDERS DIRECTING HIM TO REPORT TO THE VALLEY FORGE GENERAL HOSPITAL, PHOENIXVILLE, PENNSYLVANIA, FOR FURTHER OBSERVATION, TREATMENT AND APPEARANCE BEFORE AN ARMY RETIRING BOARD. INFORMATION CONTAINED IN THE FILE INDICATES THAT THE OFFICER PERFORMED NO "ACTIVE DUTY" OTHER THAN THAT SPECIFICALLY MENTIONED IN THE SAID ORDERS OF JANUARY 23 AND, OVER A YEAR LATER, BY ORDERS DATED JANUARY 2, 1947, HE REVERTED TO AN INACTIVE STATUS EFFECTIVE FEBRUARY 3, 1947,"BY REASON OF PHYSICAL DISABILITY.'

SECTION 37 OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 351, PROVIDES, IN PERTINENT PART:

FOR THE PURPOSE OF PROVIDING A RESERVE OF OFFICERS AVAILABLE FOR MILITARY SERVICE WHEN NEEDED THERE SHALL BE ORGANIZED AN OFFICERS' RESERVE CORPS CONSISTING OF GENERAL OFFICERS AND OFFICERS ASSIGNED TO SECTIONS CORRESPONDING TO THE VARIOUS BRANCHES OF THE REGULAR ARMY AND SUCH ADDITIONAL SECTIONS AS THE PRESIDENT MAY DIRECT * * *.

SECTION 37A OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 369, PROVIDES:

TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE PRESIDENT MAY ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD; BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN FIFTEEN DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT.

THE SAID TWO PROVISIONS OF THE NATIONAL DEFENSE ACT, WOULD APPEAR TO CONTEMPLATE THE ESTABLISHMENT OF A RESERVE OFFICERS' ORGANIZATION CONSISTING OF OFFICERS PHYSICALLY QUALIFIED FOR SERVICE IN THE ARMED FORCES OF THE UNITED STATES AND THAT THAT WAS THE ADMINISTRATIVE VIEW OF THE LAW IS MADE CLEAR BY PERTINENT ARMY REGULATIONS. SEE PARAGRAPH 10, ARMY REGULATIONS 140-5, DATED JUNE 17, 1941, IN PART, AS FOLLOWS:

PHYSICAL EXAMINATIONS.--- A. OF WHOM REQUIRED.--- EXCEPT WHERE OTHERWISE EXPRESSLY PROVIDED, EVERY APPLICANT FOR APPOINTMENT IN THE OFFICERS' RESERVE CORPS, AND EVERY RESERVE OFFICER QUALIFYING FOR REAPPOINTMENT, RETENTION, PROMOTION, TRANSFER, OR ACTIVE DUTY, AS WELL AS EXTENSIONS OF TOUR THEREOF, AND UPON RELIEF FROM ACTIVE DUTY, WILL BE REQUIRED TO PASS SATISFACTORILY A PHYSICAL EXAMINATION OF THE SCOPE PRESCRIBED BY CURRENT WAR DEPARTMENT INSTRUCTIONS. ( ITALICS SUPPLIED.)

HENCE, THE FIRST QUESTION FOR DETERMINATION IS WHETHER CAPTAIN TRAPANI WAS ORDERED TO ACTIVE DUTY WITHIN THE MEANING OF THE SAID PROVISIONS OF LAW SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES INCLUDING THE LUMP-SUM PAYMENT CLAIMED. INSOFAR AS THAT QUESTION IS CONCERNED, THERE IS NO MATERIAL DIFFERENCE BETWEEN THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AND THE PROVISIONS APPLICABLE TO THE PRESENT CASE AND THIS OFFICE CONSISTENTLY HAS HELD THAT UNDER THE SAID NAVAL RESERVE ACT NO AUTHORITY EXISTED FOR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO AN OFFICER OF THE NAVAL RESERVE ORDERED TO "ACTIVE DUTY" FOR THE PURPOSE OF HOSPITALIZATION, MEDICAL TREATMENT OR FOR CONSIDERATION FOR RETIREMENT. SEE DECISION DATED AUGUST 12, 1946, 26 COMP. GEN. 107, AND CASES CITED THEREIN. THE REASONING USED IN THE SAID DECISION OF AUGUST 12, 1946, IN ARRIVING AT THE CONCLUSION STATED THEREIN IS EQUALLY APPLICABLE TO THE PRESENT CASE AND SINCE IT APPEARS THAT CAPTAIN TRAPANI WAS ORDERED TO ACTIVE DUTY ONLY FOR OBSERVATION, TREATMENT AND APPEARANCE BEFORE AN ARMY RETIRING BOARD, THIS OFFICE MUST CONCLUDE THAT HE WAS NOT ON ACTIVE DUTY DURING THE PERIOD JANUARY 28, 1946, TO FEBRUARY 3, 1947, SO AS TO BECOME ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES.

ACCORDINGLY, CAPTAIN TRAPANI'S CLAIM FOR LUMP-SUM PAYMENT AS AN OFFICER ON ACTIVE DUTY WILL BE DISALLOWED.