B-102723, NOVEMBER 2, 1951, 31 COMP. GEN. 160

B-102723, NOVEMBER 2, 1951, 31 COMP. GEN. 160

PAY - RETIRED - NAVAL RESERVIST INJURED PRIOR TO ATTENDING DRILL A MEMBER OF THE NAVAL RESERVE WHO IS INJURED AT HOME PRIOR TO ATTENDING A WEEKLY DRILL, EVEN THOUGH THE INJURY MAY BE INCURRED INCIDENT TO PREPARATION FOR SUCH DRILL, IS NOT ENTITLED TO THE RETIRED PAY AND ALLOWANCE BENEFITS PRESCRIBED BY SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR NAVAL RESERVISTS WHO SUFFER DISABILITY WHILE EMPLOYED ON INACTIVE-DUTY TRAINING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 2, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1951, WITH ENCLOSURES, REQUESTING DECISION WHETHER CHIEF SHIP'S CLERK SAMUEL KELLER ZARFOSS, USNR (RETIRED) IS ENTITLED TO RETIRED PAY UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES; AND, IF SO, THE LAW OR LAWS UNDER WHICH HIS RETIRED PAY IS TO BE COMPUTED.

IT APPEARS FROM A LETTER DATED JUNE 20, 1951, OF THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, THAT THE OFFICER SUSTAINED AN EYE INJURY AT 5:00 P. M. ON JUNE 18, 1947, AT HIS HOME WHILE OPENING A CRATE CONTAINING A GOVERNMENT TYPEWRITER DELIVERED TO HIM ON MAY 14, 1947, FOR OFFICIAL USE AND THAT THE NAVAL RESERVE UNIT OF WHICH HE WAS A MEMBER WAS SCHEDULED TO HOLD A DRILL COMMENCING AT 7:30 P. M. ON JUNE 18, 1947, AT THE NAVAL RESERVE ARMORY, HARRISBURG, PENNSYLVANIA. IT IS FURTHER STATED THAT THE OFFICER WAS ENTITLED TO DRILL PAY FOR EACH REGULARLY SCHEDULED DRILL. BY LETTER DATED SEPTEMBER 1, 1950, THE OFFICER WAS ADVISED THAT THE SECRETARY OF THE NAVY DETERMINED ON AUGUST 15, 1950, THAT HIS INJURY WAS SUFFERED "WHILE EMPLOYED ON INACTIVE DUTY TRAINING" AND DIRECTED THAT HE BE RETIRED FOR PHYSICAL DISABILITY IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 417 AND 855C-1.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 4. ALL OFFICERS, NURSES, WARRANT OFFICERS AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO---

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE

NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING

OR INACTIVE-DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY

OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS.

SECTION 1453, REVISED STATUTES, 34 U.S.C. 417, PROVIDES THAT WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE THE OFFICER SHALL, IF THE DECISION IS APPROVED BY THE SECRETARY OF THE NAVY, BE RETIRED WITH RETIRED PAY.

IT WILL BE NOTED THAT UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT, SUPRA, A MEMBER OF THE NAVAL RESERVE IS NOT ENTITLED TO THE BENEFITS THEREOF UNLESS HE IS CALLED OR ORDERED TO PERFORM, INTER ALIA,"INACTIVE- DUTY TRAINING" AND SUFFERS DISABILITY "WHILE SO EMPLOYED.' THE TERM ,INACTIVE-DUTY TRAINING" IS DEFINED IN PARAGRAPH 5 (C), DEPARTMENT OF THE NAVY JOINT LETTERS 49-949, APPROVED BY THE SECRETARY OF THE NAVY DECEMBER 20, 1949, TO INCLUDE "DRILLS, EQUIVALENT INSTRUCTION OR DUTY, APPROPRIATE DUTY, AND GROUP TRAINING DUTY," PERFORMED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES H-5302, H-5304, H-5305 AND H-5308, BUREAU OF NAVAL PERSONNEL MANUAL. IN THE LETTER JUNE 20, 1951, THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS STATED THAT AT THE TIME OF THE INJURY THE OFFICER WAS NOT ASSIGNED APPROPRIATE DUTY, EQUIVALENT INSTRUCTION OR DUTY, NOR WAS HE ENTITLED TO COMPENSATION FOR ADMINISTRATIVE DUTIES AS AUTHORIZED IN ARTICLES H-5304, H-5305 OR H- 7204, BUREAU OF NAVAL PERSONNEL MANUAL.

IN DECISION OF OCTOBER 14, 1949, 29 COMP. GEN. 183, TO THE SECRETARY OF THE NAVY, IT WAS CONCLUDED THAT MEMBERS OF THE NAVAL RESERVE WHO ARE ORDERED TO TRAINING AND ARE INJURED WHILE EMPLOYED IN TRAVEL TO TRAINING DUTY OR WHO ARE HOSPITALIZED AT THE PLACE OF DUTY FOR AN INJURY NOT INCURRED WHILE EMPLOYED ON TRAINING DUTY ARE NOT ENTITLED TO THE PAY AND ALLOWANCE BENEFITS PRESCRIBED BY SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR A NAVAL RESERVIST WHO SUFFERED DISABILITY WHILE "EMPLOYED" ON ACTIVE DUTY OR TRAINING DUTY. AND, IN AN OPINION DATED JANUARY 16, 1950, COURT MARTIAL ORDER NO. 4 1950, PAGE 153, THE JUDGE ADVOCATE GENERAL OF THE NAVY CONCLUDED THAT AN INACTIVE NAVAL RESERVIST IS NOT EMPLOYED ON "INACTIVE-DUTY TRAINING" WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, WHILE ENROUTE TO OR FROM A WEEKLY DRILL. IN THE SAID OPINION, IT WAS STATED---

* * * IT IS QUITE CLEAR THAT TO CONSIDER AN INACTIVE RESERVIST WHO IS INJURED WHILE ENROUTE TO OR FROM A WEEKLY DRILL AS BEING "EMPLOYED" OR "ENGAGED" OR "RENDERING SERVICE" IN THAT DRILL AT THE TIME OF THE INJURY WOULD REQUIRE A STRAINED AND UNREASONABLE CONSTRUCTION OF THE LANGUAGE OF THE STATUTE. * * *

AN ANALOGOUS QUESTION WAS RECENTLY RAISED IN CONNECTION WITH THE QUESTION OF BENEFITS ALLOWABLE TO A GROUP OF ORGANIZED RESERVISTS INJURED IN AN AUTO ACCIDENT WHILE RETURNING HOME FROM A DRILL PERIOD. THE JUDGE ADVOCATE GENERAL WAS OF THE OPINION THAT INJURIES SO INCURRED WERE NOT WITHIN THE PURVIEW OF THE STATUTE WHICH PROVIDED CERTAIN BENEFITS FOR RESERVISTS INJURED "WHILE PERFORMING ACTIVE DUTY WITH OR WITHOUT PAY, TRAINING DUTY WITH OR WITHOUT PAY, DRILLS, EQUIVALENT INSTRUCTION OR DUTY, APPROPRIATE DUTY, OR OTHER PRESCRIBED DUTY, OR WHILE PERFORMING AUTHORIZED TRAVEL TO OR FROM SUCH DUTIES.' ( NAVAL RESERVE ACT OF 1938, 52 STAT. 1188, AS AMENDED, 34 U.S.C. 855C.) SPECIFICALLY, THE JUDGE ADVOCATE GENERAL HELD THAT RESERVIST TRAVEL TO OR FROM DRILLS DOES NOT COME WITHIN THE DEFINITION OF "AUTHORIZED TRAVEL" AS USED THAT STATUTE, AND FOR INFORMATIONAL PURPOSES POINTED OUT THAT,

* * * INACTIVE RESERVISTS STAND IN THE SAME RELATION TO THE GOVERNMENT AS CIVIL EMPLOYEES. CIVIL EMPLOYEES ENJOY PENSION AND COMPENSATION COVERAGE WHILE ON THE JOB. HOW THEY GET TO THE JOB OR WHAT THEY DO BEFORE COMING TO THE JOB IS THEIR OWN PRIVATE CONCERN. WHERE THEY GO OR WHAT THEY DO AFTER LEAVING THE JOB IS ALSO THEIR OWN BUSINESS. IT IS THIS FREEDOM FROM CONTROL AND DIRECTION WHICH PRECLUDES GOVERNMENTAL RESPONSIBILITY FOR MOVEMENT OR INACTIVITY BEYOND THE STATION. THE SAME PRINCIPLE APPLIES TO INACTIVE RESERVISTS. THEY ARE COVERED WHILE IN THE DRILL HALL UNDER GOVERNMENT SUPERVISION AND DIRECTION. BEFORE ARRIVING AND AFTER LEAVING, THEY ARE ON THEIR OWN AND BEYOND THE SCOPE OF GOVERNMENT RESPONSIBILITY. IT IS NOTED IN THIS CONNECTION THAT INACTIVE RESERVISTS ARE MORE FAVORABLY SITUATED IN ONE RESPECT THAT CIVILIAN EMPLOYEES. THE LATTER ARE REQUIRED TO BE IN DAILY ATTENDANCE EXCEPT FOR HOLIDAYS AND LEAVE. THE NUMBER OF DRILLS REQUIRED OF MEMBERS IN THE RESERVE MAY BE ATTENDED AT THE CONVENIENCE OF THE MEMBERS. ( C.M.O. 9,1949,215.) AS TO WHETHER OR NOT B --- WAS "SO EMPLOYED" ON DUTY AT THE TIME OF THE ACCIDENT, IT IS OBVIOUS THAT HE WAS AT MOST ENGAGED IN THE PRELIMINARY STEPS OF MAKING HIMSELF AVAILABLE FOR SUCH EMPLOYMENT. AT THIS STAGE B--- WAS A FREE AGENT, NOT SUBJECT TO ORDERS, DIRECTIONS, OR OTHER SPECIES OF GOVERNMENT CONTROL. HIS DISCRETION HE COULD AT ANY TIME WHILE ENROUTE TO THE ARMORY, HAVE ELECTED TO ATTEND A MOVIE OR INDULGE IN ANY PERSONAL DIVERSION IN LIEU OF ENTERING THE DRILL HALL AND ASSUMING A STATUS OF "EMPLOYMENT.'

IN VIEW OF THE FOREGOING, IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL THAT R--- (N) B---, LATE BAKER FIRST CLASS, U.S. NAVAL RESERVE, WAS NOT EMPLOYED ON INACTIVE-DUTY TRAINING AT THE TIME OF THE INJURY WHICH RESULTED IN HIS DEATH; THEREFORE, HIS BENEFICIARIES HAVE NO RIGHTS WITHIN THE PURVIEW OF PUBLIC LAW 108, 81ST CONGRESS. * * *

FOLLOWING THE REASONING IN THE SAID OPINION, IT SEEMS REASONABLY CLEAR THAT THE RESERVIST IN THE PRESENT CASE WAS NOT EMPLOYED ON "INACTIVE-DUTY TRAINING" AT THE TIME THE INJURY WAS INCURRED. IN OTHER WORDS, IT CANNOT BE CONCLUDED THAT HE WAS ENGAGED IN THE PERFORMANCE OF INACTIVE DUTY TRAINING AT THE TIME THE EYE INJURY WAS INCURRED ANY MORE THAN THE RESERVIST WHO WAS INJURED ENROUTE TO THE DRILL HALL. TO READ SUCH A CONCLUSION IN THE CASE OF AN INACTIVE RESERVIST WHO IS INJURED AT HOME PRIOR TO ATTENDING A WEEKLY DRILL, EVEN THOUGH THE INJURY MAY BE INCURRED INCIDENT TO PREPARATION FOR SUCH DRILL, WOULD, AS STATED IN THE SAID OPINION,"REQUIRE A STRAINED AND UNREASONABLE CONSTRUCTION OF THE LANGUAGE OF THE STATUTE.' ACCORDINGLY, IT MUST BE CONCLUDED THAT CHIEF SHIPS' CLERK ZARFOSS IS NOT ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED. THEREFORE, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE, MAKING AN ANSWER TO YOUR SECOND QUESTION UNNECESSARY.