B-147477, APR. 30, 1969

B-147477, APR. 30, 1969

TO MR. WAULDRON D. LEACH:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 26, 1969, WITH ENCLOSURES, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED MARCH 11, 1969, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE FOR THE PERIOD DECEMBER 8, 1967, TO FEBRUARY 16, 1968, INCIDENT TO YOUR SERVICE AS A MEMBER OF THE U.S. ARMY RESERVE.

BY ORDERS DATED OCTOBER 11, 1967, YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING AT FORT SAM HOUSTON, TEXAS, FOR A PERIOD OF 5 DAYS COMMENCING OCTOBER 15, 1967. IT APPEARS THAT YOU WERE HOSPITALIZED AT BROOKE GENERAL HOSPITAL AT FORT SAM HOUSTON ON OCTOBER 19, 1967, FOR TREATMENT OF AN EYE CONDITION DIAGNOSED AS UVEITIS. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE DECLARED TO BE FIT FOR MILITARY DUTY EFFECTIVE DECEMBER 7, 1967, AND YOU WERE NOT THEREAFTER HOSPITALIZED FOR THE EYE DISORDER.

IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED COPIES OF VARIOUS DOCUMENTS, INCLUDING A COPY OF DA FORM 31,"REQUEST AND AUTHORITY FOR LEAVE" , WHICH INDICATES THAT YOU WERE PLACED ON CONVALESCENT LEAVE FROM DECEMBER 8, 1967, TO DECEMBER 13, 1967. YOU SUGGEST THAT HAD THESE DOCUMENTS BEEN CONSIDERED BY THIS OFFICE, A DIFFERENT CONCLUSION WOULD HAVE BEEN REACHED.

SECTIONS 3721 AND 3722, TITLE 10, U.S. CODE, PROVIDE IN PERTINENT PART, AS FOLLOWS:

"SECS. 3721. MEMBERS OF ARMY, OTHER THAN OF REGULAR ARMY

"A MEMBER OF THE ARMY, OTHER THAN OF THE REGULAR ARMY, IS ENTITLED TO THE HOSPITAL BENEFITS PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER --

"/1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF THIS TITLE) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

"/2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE-DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.'

"SECS. 3722. MEMBERS OF C.M.T.C.; MEMBERS OF ARMY NOT COVERED BY SECTION 3721 OF THIS TITLE

"/A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE FOLLOWING PERSONS ARE ENTITLED TO THE BENEFITS OF SUBSECTION (B):

"/1) EACH RESERVE OF THE ARMY, AND EACH OFFICER WHO HAS NO REGULAR OR RESERVE APPOINTMENT AND WHO IS INJURED, OR CONTRACTS A DISEASE, IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE.

"/B) SO FAR AS ANY BENEFIT NAMED IN THIS SUBSECTION IS NOT PROVIDED FOR HIM UNDER SECTION 3721 OF THIS TITLE, ANY PERSON NAMED IN SUBSECTION (A) IS ENTITLED TO---

"/1) THE HOSPITALIZATION, REHOSPITALIZATION, AND MEDICAL AND SURGICAL CARE IN A HOSPITAL AND AT HIS HOME APPROPRIATE FOR THE TREATMENT OF HIS INJURY OR DISEASE UNTIL THE RESULTING DISABILITY CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT;

"/2) THE BASIC PAY AND ALLOWANCES, WHETHER IN MONEY OR IN KIND, TO WHICH HE WAS ENTITLED AT THE TIME WHEN THE INJURY WAS INCURRED OR THE DISEASE CONTRACTED, DURING THE PERIOD OF HIS HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN A TOTAL OF SIX MONTHS AFTER THE END OF HIS PRESCRIBED TOUR OF DUTY OR TRAINING.' SECTION 204 (G), TITLE 37, U.S. CODE, PROVIDES THAT:

"/G) A MEMBER OF THE ARMY OR THE AIR FORCE (OTHER THAN OF THE REGULAR ARMY OR THE REGULAR AIR FORCE) IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER---

"/1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF TITLE 10) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

"/2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.'

IT IS NOT ENTIRELY CLEAR FROM THE RECORD WHETHER YOUR DISABILITY WAS CAUSED BY AN INJURY OR BY DISEASE. SHOULD YOUR CONDITION HAVE BEEN CAUSED BY INJURY, YOUR ENTITLEMENT TO PAY AND ALLOWANCES WOULD BE GOVERNED BY 10 U.S.C. 3721 AND 37 U.S.C. 204 (G). THE TEST OF DISABILITY FOR DETERMINING THE RIGHT OF A RESERVIST TO CONTINUE TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES UNDER SUCH STATUTORY PROVISIONS FOR INJURY INCURRED WHILE SERVING ON ACTIVE DUTY OR INACTIVE DUTY TRAINING, IS HIS PHYSICAL INABILITY TO PERFORM HIS NORMAL MILITARY DUTIES.

IF YOUR DISABILITY RESULTED FROM DISEASE, YOU WOULD NOT BE ENTITLED TO THE BENEFITS OF 10 U.S.C. 3721 AND 37 U.S.C. 204 (G) SINCE YOU WERE ORDERED TO ACTIVE DUTY FOR ONLY 5 DAYS. UNDER SUCH CIRCUMSTANCES,WHATEVER ENTITLEMENT YOU HAVE TO ACTIVE DUTY PAY AND ALLOWANCES WOULD ACCRUE BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 3722. UNDER THE PROVISIONS OF THAT SECTION, A MEMBER OF THE ARMY RESERVE WHO INCURS A DISABILITY FROM DISEASE OR INJURY WHILE ON ACTIVE DUTY IN TIME OF PEACE IS ENTITLED TO HOSPITALIZATION AND MEDICAL CARE UNTIL THE DISABILITY CANNOT BE IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT, AND TO BASIC PAY AND ALLOWANCES DURING THE PERIOD OF SUCH HOSPITALIZATION OR REHOSPITALIZATION BUT NOT FOR MORE THAN A TOTAL OF SIX MONTHS AFTER THE END OF HIS PRESCRIBED TOUR OF DUTY OR TRAINING.

THE TEST FOR DETERMINING THE RIGHT OF A RESERVIST TO CONTINUE TO RECEIVE PAY AND ALLOWANCES UNDER THE PROVISIONS OF 10 U.S.C. 3722 IS NOT A TECHNICAL RECORD STATUS AS A "PATIENT" IN A HOSPITAL, BUT RATHER, THE CONTINUANCE OF THE DISABILITY. THE SERVICE MEDICAL OFFICER WHO ATTENDED YOU HAS CERTIFIED THAT YOU HAD RECOVERED FROM UVEITIS AS OF DECEMBER 7, 1967, AND THAT YOU WERE THEN FIT FOR MILITARY DUTY. IN SPITE OF THE FACT THAT A DA FORM 31 WAS ISSUED INDICATING A GRANT OF CONVALESCENT LEAVE TO YOU COMMENCING DECEMBER 8, 1967, A CONCURRENCE IN THAT MEDICAL OPINION HAS BEEN STATED BY THE DIRECTOR OF PROFESSIONAL SERVICES OF THE OFFICE OF THE SURGEON GENERAL OF THE ARMY IN A COMMUNICATION DATED NOVEMBER 6, 1968, IN WHICH HE CONCLUDED THAT YOU WERE "FIT FOR DUTY OR PURSUIT OF HIS (YOUR) NORMAL OCCUPATION ON DECEMBER 7, 1967.'

YOU WERE ORDERED TO ACTIVE DUTY FOR A PERIOD OF BUT 5 DAYS. YOU WERE ENTITLED TO PAY AND ALLOWANCES AFTER THAT TIME ONLY DURING THE PERIOD YOUR DISABILITY PREVENTED YOU FROM PERFORMING FURTHER MILITARY DUTIES. THAT DISABILITY ENDED ON DECEMBER 7, 1967.

IN THE CIRCUMSTANCES, AND SINCE YOU WERE NOT IN FACT HOSPITALIZED FOR MEDICAL CARE OF UVEITIS AFTER DECEMBER 7, 1967, AND PERFORMED NO FURTHER ACTIVE DUTY OR INACTIVE DUTY TRAINING DURING THE PERIOD IN QUESTION, NO RIGHT TO PAY AND ALLOWANCES ACCRUED TO YOU AFTER THAT DATE. THE FACT THAT AN OFFICER AT BROOKE GENERAL HOSPITAL PURPORTED TO GRANT YOU CONVALESCENT LEAVE COMMENCING ON THE FOLLOWING DAY DID NOT ADD TO YOUR RIGHTS IN ANY WAY.