B-105191, MARCH 10, 1952, 31 COMP. GEN. 456

B-105191, MARCH 10, 1952, 31 COMP. GEN. 456

PAY AND ALLOWANCES - RESERVIST INJURED WHILE ON TRAINING DUTY A NAVAL RESERVIST WHO IS INJURED WHILE ON TRAINING DUTY IS ENTITLED ONLY TO THE QUARTERS ALLOWANCE PRESCRIBED IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS ORIGINALLY ENACTED, UNTIL THE TERMINATION DATE FIXED IN HIS TRAINING DUTY ORDERS; HOWEVER, UNDER SECTION 4 OF THE NAVAL AVIATION ACT OF 1940, AS AMENDED, WHICH PERMITS INJURED NAVAL RESERVISTS TO RECEIVE DURING A PERIOD OF DISABILITY THE SAME PAY AND ALLOWANCES AS MEMBERS OF THE REGULAR NAVY, THE RESERVIST IS ENTITLED UPON TERMINATION OF SAID ORDERS TO THE INCREASED QUARTERS ALLOWANCES PRESCRIBED IN SECTION 3 OF THE DEPENDENTS ASSISTANCE ACT OF 1950 FOR THE PERIOD HE CONTINUES TO BE DISABLED. A NAVAL RESERVIST WHO IS INJURED IN LINE OF DUTY WHILE PARTICIPATING IN INACTIVE DUTY TRAINING (DRILLS) IS ENTITLED UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, TO THE SAME PAY AND ALLOWANCES ALLOWED ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR NAVY, AND THEREFORE, SAID RESERVIST IS ENTITLED TO RECEIVE THE INCREASED QUARTERS ALLOWANCE PRESCRIBED IN SECTION 3 OF THE DEPENDENTS ASSISTANCE ACT OF 1950.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MARCH 10, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1951, REQUESTING DECISION ON CERTAIN QUESTIONS SET FORTH IN AN ENCLOSURE SIGNED BY THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, ON JULY 2, 1951. THE QUESTIONS ARE AS FOLLOWS:

(A) A RESERVIST (ENLISTED MEMBER WITH DEPENDENTS) IS ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF FOURTEEN DAYS DURING MAY 1951 AND SUFFERS DISABILITY IN LINE OF DUTY FROM AN INJURY WHILE SO EMPLOYED, AND IT IS DETERMINED THAT HE IS ENTITLED TO THE BENEFITS OF REFERENCE (A). SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED (34 U.S.C. 855C-1 AND AS FURTHER AMENDED BY PUBLIC LAW 108--- 81ST CONGRESS, APPROVED 20 JUNE 1949.) IS THE RESERVIST ENTITLED TO BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 ( PUBLIC LAW 351--- 81ST CONGRESS), AS AMENDED BY THE DEPENDENTS ASSISTANCE ACT OF 1950 ( PUBLIC LAW 771--- 81ST CONGRESS) OR, BY REASON OF SECTION 7 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, IS THE RESERVIST ENTITLED TO BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS ORIGINALLY ENACTED:

(1) WHEN THE PERIOD OF DISABILITY IS WHOLLY WITHIN THE TRAINING DUTY PERIOD?

(2) WHEN THE PERIOD OF DISABILITY COMMENCES DURING THE TRAINING DUTY PERIOD AND CONTINUES BEYOND THE EXPIRATION OF SUCH PERIOD?

(B) WHEN A DISABILITY IS INCURRED IN LINE OF DUTY FROM AN INJURY SUSTAINED WHILE THE RESERVIST WAS PARTICIPATING IN INACTIVE DUTY TRAINING (DRILLS) AND IT IS DETERMINED THAT SUCH RESERVIST IS ELIGIBLE FOR THE BENEFITS OF REFERENCE (A), IS HE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 ( PUBLIC LAW 351--- 81ST CONGRESS), AS AMENDED BY THE DEPENDENTS ASSISTANCE ACT OF 1950 ( PUBLIC LAW 771--- 81ST CONGRESS) OR, BY REASON OF SECTION 7 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, IS THE RESERVIST ENTITLED TO BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT AS ORIGINALLY ENACTED?

UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS ORIGINALLY ENACTED, MEMBERS OF THE UNIFORMED SERVICES, INCLUDING RESERVE COMPONENTS THEREOF, ENTITLED TO RECEIVE BASIC PAY ARE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS UNDER CERTAIN CIRCUMSTANCES AND AT RATES PRESCRIBED THEREIN. WHILE SECTION 3 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, PUBLIC LAW 771, APPROVED SEPTEMBER 8, 1950, 64 STAT. 794, 795, AMENDED THE SAID SECTION 302, BY INCREASING GENERALLY THE MONTHLY BASIC ALLOWANCE FOR QUARTERS FOR ENLISTED MEMBERS WITH DEPENDENTS IN PAY GRADES E-1 TO E-7, SECTION 7 OF THE SAID ACT OF SEPTEMBER 8, 1950, 64 STAT. 796, PROVIDES IN PART AS FOLLOWS:

SEC. 7. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE PROVISIONS OF THIS ACT SHALL APPLY TO ENLISTED MEMBERS ON TRAINING DUTY, * * *. SUCH PERSONS SHALL CONTINUE TO BE ENTITLED TO THE APPROPRIATE ALLOWANCES PRESCRIBED BY THE ACT OF OCTOBER 12, 1949 ( PUBLIC LAW 351, EIGHTY-FIRST CONGRESS), ON THE DAY PRIOR TO THE EFFECTIVE DATE OF THIS ACT.

THUS, IT IS CLEAR THAT ENLISTED MEMBERS ON TRAINING DUTY ARE RESTRICTED UNDER THE SAID SECTION 7 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, TO THE BASIC ALLOWANCES FOR QUARTERS PRESCRIBED IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS ORIGINALLY ENACTED, WHEREAS MEMBERS OF THE REGULAR NAVY ARE ENTITLED TO THE INCREASED QUARTERS ALLOWANCE PRESCRIBED IN THE 1950 ACT.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, AND AS FURTHER AMENDED BY SECTION 1 OF PUBLIC LAW 108, APPROVED JUNE 20, 1949, 63 STAT. 201, PROVIDES INTER ALIA, THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE WHO, IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO PERFORM ACTIVE DUTY FOR TRAINING, 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 SHALL BE ENTITLED TO RECEIVE THE "SAME * * * PAY AND ALLOWANCES" AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY. HENCE, SINCE MEMBERS OF THE NAVAL RESERVE INJURED ON TRAINING DUTY ARE ENTITLED UNDER THE PROVISIONS OF PUBLIC LAW 108 TO THE "SAME * * * PAY AND ALLOWANCES" AS MEMBERS OF THE REGULAR NAVY AND SINCE MEMBERS OF THE REGULAR NAVY ARE ENTITLED TO THE INCREASED QUARTERS ALLOWANCE PRESCRIBED IN THE DEPENDENTS ASSISTANCE ACT OF 1950, IT IS INDICATED THAT DOUBT EXISTS AS TO WHETHER A NAVAL RESERVIST INJURED DURING HIS 15-DAY TRAINING DUTY PERIOD IS ENTITLED TO SUCH INCREASED QUARTERS ALLOWANCE UNDER PUBLIC LAW 108, FROM THE DATE OF THE INJURY TO THE EXPIRATION DATE OF HIS TRAINING DUTY.

IN CONNECTION WITH THAT QUESTION IT IS NECESSARY TO DETERMINE WHEN A NAVAL RESERVIST BECOMES ENTITLED TO THE BENEFITS OF PUBLIC LAW 108 AND, ALSO, WHETHER SUCH RESERVIST, UPON BECOMING ENTITLED TO THOSE BENEFITS, IS ENTITLED TO SUCH INCREASED QUARTERS ALLOWANCE. AS IS POINTED OUT IN THE ENCLOSURE OF THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, ADMINISTRATIVE REGULATIONS ( JOINT LETTER OF DECEMBER 20, 1949--- NAVY DEPARTMENT BULLETIN, DECEMBER 30, 1949) PROVIDE THAT IN THE CASE OF A NAVAL RESERVIST WHO IS ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF SPECIFIED DURATION, WHO SUFFERS DISABILITY IN LINE OF DUTY FROM AN INJURY WHILE SO EMPLOYED AND WHO IS HOSPITALIZED AND RETURNED TO DUTY PRIOR TO EXPIRATION OF THE DATE SPECIFIED IN THE RESERVIST'S TRAINING DUTY ORDERS, NO " NOTICE OF ELIGIBILITY" WILL BE ISSUED, IT BEING CONSIDERED THAT SUCH A RESERVIST IS NOT ENTITLED TO THE BENEFITS OF PUBLIC LAW 108. IN SUCH A CASE THE RESERVIST IS ADMINISTRATIVELY CONSIDERED AS BEING ON TRAINING DUTY AND CONTINUES TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES AUTHORIZED FOR NAVAL RESERVISTS ON TRAINING DUTY DURING THE PERIOD OF HOSPITALIZATION. HOWEVER, SUCH ADMINISTRATIVE REGULATIONS PROVIDE THAT IF THE PERIOD OF HOSPITALIZATION CONTINUES BEYOND THE SPECIFIED TRAINING DUTY PERIOD, A " NOTICE OF ELIGIBILITY" WILL BE ISSUED AND A " DISABILITY" PAY RECORD WILL BE OPENED ON THE DAY FOLLOWING THE DAY THE TRAINING ORDERS TERMINATED. THE MEMBER THEN IS CREDITED WITH ACTIVE DUTY PAY AND ALLOWANCES ON THE " DISABILITY" PAY RECORD AS LONG AS HE CONTINUES TO BE ENTITLED TO THE BENEFITS OF PUBLIC LAW 108. IN THAT CONNECTION, SEE DECISION OF NOVEMBER 15, 1950, 30 COMP. GEN. 185. THUS, IT IS ADMINISTRATIVELY CONSIDERED THAT A RESERVIST INJURED ON TRAINING DUTY CONTINUES IN A TRAINING DUTY STATUS UNTIL THE TERMINATION DATE FIXED IN HIS TRAINING DUTY ORDERS AND IF, UPON EXPIRATION OF SUCH ORDERS, HE CONTINUES TO BE DISABLED, HE IS ENTITLED TO CONTINUE TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES, NOT BY REASON OF A TRAINING DUTY STATUS, BUT BY REASON OF THE PROVISIONS OF PUBLIC LAW 108. ONE OF THE PURPOSES OF PUBLIC LAW 108 WAS TO PERMIT SUCH INJURED NAVAL RESERVISTS TO CONTINUE, AFTER EXPIRATION OF THEIR TRAINING DUTY ORDERS, TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES AND THIS OFFICE IS NOT INCLINED TO DISAGREE WITH THE ADMINISTRATIVE VIEW THAT, IN A PROPER CASE, A NAVAL RESERVIST INJURED ON TRAINING DUTY WOULD BE ENTITLED, DURING THE ENTIRE TRAINING DUTY PERIOD SPECIFIED IN HIS ORDERS, ONLY TO THE PAY AND ALLOWANCES SPECIFICALLY AUTHORIZED FOR RESERVISTS ON TRAINING DUTY. THAT IS TO SAY, SUCH RESERVIST WOULD BE ENTITLED, DURING THE PERIOD OF TRAINING DUTY FIXED IN HIS ORDERS, TO THE QUARTERS ALLOWANCES PRESCRIBED IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS ORIGINALLY ENACTED, NOT TO THE INCREASED QUARTERS ALLOWANCES PRESCRIBED IN THE DEPENDENTS ASSISTANCE ACT OF 1950.

UPON TERMINATION OF A RESERVIST'S TRAINING DUTY ORDERS, HOWEVER, HE IS ENTITLED ONLY TO SUCH COMPENSATION DURING THE PERIOD OF DISABILITY AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE TO BE PAID DURING THAT PERIOD. THE STATUTE APPLICABLE TO THAT PERIOD (SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED) SPECIFICALLY PROVIDES THAT RESERVISTS INJURED WHILE PERFORMING TRAINING DUTY ARE ENTITLED TO THE "SAME * * * PAY AND ALLOWANCES" AS ARE NOW OR HEREAFTER MAY BE ALLOWED ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR NAVY AND, CONSEQUENTLY, SINCE ENLISTED MEMBERS OF THE REGULAR NAVY ARE ENTITLED UNDER CERTAIN CONDITIONS TO RECEIVE THE ADDITIONAL QUARTERS ALLOWANCE PRESCRIBED IN SECTION 3 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, IT FOLLOWS THAT A NAVAL RESERVIST ENTITLED TO THE BENEFITS OF PUBLIC LAW 108 IS LIKEWISE ENTITLED TO RECEIVE SUCH INCREASED QUARTERS ALLOWANCE, WHERE THE OTHER CONDITIONS UNDER THE SAID 1950 ACT ARE MET. COMPARE 30 COMP GEN. 185, 188. WHILE THAT CONCLUSION RECOGNIZES THAT A NAVAL RESERVIST IS ENTITLED TO GREATER QUARTERS ALLOWANCE UNDER THE PROVISIONS OF PUBLIC LAW 108 THAN HE RECEIVES WHILE ACTUALLY ON TRAINING DUTY, THAT DISCREPANCY RESULTS FROM THE SPECIFIC PROVISIONS OF THE PERTINENT STATUTES.

ENLISTED MEMBERS OF THE NAVAL RESERVE WHO ARE INJURED IN LINE OF DUTY WHILE PERFORMING INACTIVE DUTY TRAINING (DRILLS) ARE ENTITLED TO THE BENEFITS OF PUBLIC LAW 108 ON SUBSTANTIALLY THE SAME BASIS AS RESERVISTS WHO ARE INJURED ON TRAINING DUTY, AND THE ADMINISTRATIVE REGULATIONS, REFERRED TO ABOVE, ARE EXPRESSLY MADE APPLICABLE TO RESERVISTS INJURED IN LINE OF DUTY WHILE PARTICIPATING IN INACTIVE DUTY TRAINING. ACCORDINGLY, THE RULE STATED HEREIN WITH RESPECT TO NAVAL RESERVISTS INJURED WHILE PERFORMING TRAINING DUTY FOR A SPECIFIED PERIOD IS EQUALLY APPLICABLE TO NAVAL RESERVISTS INJURED IN LINE OF DUTY WHILE PARTICIPATING IN INACTIVE DUTY TRAINING (DRILLS). THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.