B-116321, DECEMBER 3, 1953, 33 COMP. GEN. 239

B-116321, DECEMBER 3, 1953, 33 COMP. GEN. 239

ORDERS - MILITARY, NAVAL, ETC., PERSONNEL - RELEASE FROM ACTIVE DUTY - CANCELLATION OR REVOCATION AFTER EFFECTIVE DATE AN ENLISTED MEMBER OF THE NAVAL RESERVE DETACHED FROM ACTIVE DUTY STATION UNDER ORDERS GRANTING FOUR DAYS TRAVEL TIME FOR TRAVEL HOME, UPON THE TERMINATION OF WHICH MEMBER WAS TO REGARD HIMSELF AS RELEASED FROM ALL ACTIVE DUTY, WHO WAS INJURED IN AUTOMOBILE ACCIDENT WHILE EN ROUTE HOME AND ADMITTED TO NAVAL HOSPITAL FOR TREATMENT AND WHOSE ORDERS, SUBSEQUENT TO THE DATE RELEASE FROM ACTIVE DUTY WAS EFFECTIVE, WERE CANCELED AS TO THEIR UNEXECUTED PORTION PENDING DURATION OF HOSPITALIZATION AND RELEASE FROM ACTIVE DUTY, IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR ANY PERIOD SUBSEQUENT TO THE EFFECTIVE DATE OF RELEASE FROM ACTIVE DUTY AS FIXED IN THE ORIGINAL ORDERS. THE INACTIVE STATUS OF A RESERVIST RELEASED FROM ACTIVE DUTY AUTOMATICALLY BECOMES EFFECTIVE ON THE DATE STATED IN THE MEMBER'S RELEASE FROM ACTIVE DUTY ORDERS, UNLESS PRIOR TO SUCH DATE COMPETENT ORDERS ARE ISSUED WHICH AMEND OR MODIFY THE ORDERS RELIEVING THE MEMBER FROM A DUTY STATUS SO AS TO POSTPONE OR CANCEL THE DATE OF RELEASE FROM ACTIVE DUTY. UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, WHICH CONTEMPLATES THE PAYMENT OF PAY AND ALLOWANCES TO MEMBERS OF THE NAVAL RESERVE WHO ARE ORDERED TO ACTIVE DUTY AND SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED--- INCLUDING PAYMENT FOR PERIODS OF HOSPITALIZATION FROM SUCH INJURY--- A MEMBER OF THE NAVAL RESERVE MAY NOT BE REGARDED AS BEING "EMPLOYED ON ACTIVE DUTY" DURING PERIODS OF TRAVEL TO OR FROM ACTIVE OR TRAINING DUTY, AND THEREFORE A NAVAL RESERVIST WHO IS INJURED WHILE TRAVELING HOME IN CONNECTION WITH RELEASE FROM ACTIVE DUTY AND HOSPITALIZED FOR FIVE MONTHS, ACCRUES NO RIGHTS TO ACTIVE DUTY PAY AND ALLOWANCES UNDER THE 1940 ACT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, DECEMBER 3, 1953:

REFERENCE IS MADE TO LETTER OF JULY 20, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, REQUESTING DECISION AS TO THE PAY AND ALLOWANCES TO WHICH HERSCHELL JAMES PRICE, GUNNER'S MATE, FIRST CLASS, UNITED STATES NAVAL RESERVE, IS ENTITLED SUBSEQUENT TO DECEMBER 18, 1952.

IT APPEARS THAT THE ENLISTED MAN WAS DETACHED FROM U.S. NAVAL STATION SEPARATION CENTER, NEWPORT, RHODE ISLAND, ON DECEMBER 18, 1952, AND WAS GRANTED FOUR DAYS' TRAVEL TIME FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE TO HIS HOME AT METROPOLIS, ILLINOIS, UPON THE TERMINATION OF WHICH AT MIDNIGHT, DECEMBER 22, 1952, HE WAS TO REGARD HIMSELF RELEASED FROM ALL ACTIVE DUTY. IT FURTHER APPEARS THAT HE WAS PAID MILEAGE TO HIS HOME AND ALL ACTIVE DUTY PAY AND ALLOWANCES DUE HIM THROUGH DECEMBER 18, 1952. IS STATED THAT HE WAS INJURED IN AN AUTOMOBILE ACCIDENT ON DECEMBER 20, 1952, WHILE EN ROUTE TO HIS HOME, AND THAT HE WAS ADMITTED TO THE VETERANS ADMINISTRATION CENTER, MOUNTAIN HOME, TENNESSEE. ON JANUARY 14, 1953, HE WAS ADMITTED FOR TREATMENT AT THE U.S. NAVAL HOSPITAL, CHARLESTON, SOUTH CAROLINA, AND WAS DISCHARGED THEREFROM ON MAY 21, 1953. IT IS STATED THAT INSTEAD OF THEN PROCEEDING TO HIS HOME, HE TRAVELED TO MEADVILLE, MISSISSIPPI, WHERE HE ARRIVED ON MAY 22, 1953. PURSUANT TO A REQUEST FROM THE COMMANDING OFFICER AT THE CHARLESTON NAVAL HOSPITAL, THE COMMANDING OFFICER OF THE NAVAL STATION AT NEWPORT BY DISPATCH DATED JANUARY 16, 1953, CANCELED THE " UNEXECUTED PORTION" OF PRICE'S RELEASE FROM ACTIVE DUTY ORDERS " PENDING DURATION HOSPITALIZATION AND RELEASE ACTIVE DUTY.'

THE DECISIONS OF THIS OFFICE CONSISTENTLY HAVE HELD THAT THE INACTIVE STATUS OF A RESERVIST AUTOMATICALLY BECOMES EFFECTIVE ON THE DATE STATED IN HIS ORDERS UNLESS, AT SOME TIME PRIOR THERETO, OTHER COMPETENT ORDERS ARE ISSUED WHICH AMEND OR MODIFY THE ORDERS RELIEVING HIM FROM A DUTY STATUS, SO AS TO POSTPONE OR CANCEL THE DATE OF RELEASE FROM ACTIVE DUTY. SEE 27 COMP. GEN. 333. THE AMENDATORY ORDERS OF JANUARY 16, 1953, PURPORTED TO AFFECT ONLY THE UNEXECUTED PORTION OF THE PRIOR ORDERS AND SINCE THE LATTER ORDERS BECAME FULLY EXECUTED ON DECEMBER 22, 1952, THE AMENDATORY ORDERS WERE WITHOUT EFFECT TO CONTINUE HIM IN AN ACTIVE DUTY STATUS AFTER THAT DATE. THE DEPARTMENT OF THE NAVY APPARENTLY REGARDS SUCH ORDERS IN THE SAME LIGHT SINCE NO SUBSEQUENT ORDERS WERE ISSUED EFFECTING HIS RELEASE FROM ACTIVE DUTY EVEN THOUGH THE DISPATCH ORDERS APPARENTLY CONTEMPLATED SUCH ACTION.

AS TO THE MATTER OF HIS RIGHTS UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY THE ACT OF JUNE 20, 1949, 63 STAT. 201, WHICH CONTEMPLATES THE PAYMENT OF PAY AND ALLOWANCES TO MEMBERS OF THE NAVAL RESERVE WHO ARE ORDERED TO ACTIVE DUTY AND SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY "WHILE SO EMPLOYED"--- INCLUDING PAYMENT FOR PERIODS OF HOSPITALIZATION FROM SUCH INJURY--- IT IS WELL ESTABLISHED THAT A MEMBER OF THE NAVAL RESERVE MAY NOT BE REGARDED AS BEING "EMPLOYED ON ACTIVE DUTY" DURING PERIODS OF TRAVEL TO OR FROM ACTIVE OR TRAINING DUTY. SEE 29 COMP. GEN. 183; 31 ID. 597. SINCE PRICE WAS INJURED WHILE TRAVELING TOWARD HIS HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY, NO ADDITIONAL RIGHTS TO PAY AND ALLOWANCES ACCRUED TO HIM UNDER THE SAID 1940 ACT, AS AMENDED.

UNDER THE CIRCUMSTANCES INDICATED, AND SINCE THE ENLISTED MAN HAS BEEN PAID FOR THE PERIOD ENDING DECEMBER 18, 1952, HE IS ENTITLED TO PAY AND ALLOWANCES FOR THE FOUR DAYS, DECEMBER 19 TO 22, 1952.