B-119765, MAY 14, 1954, 33 COMP. GEN. 551

B-119765, MAY 14, 1954, 33 COMP. GEN. 551

PAY - ACTIVE DUTY AND DISABILITY RETIREMENT - RESERVIST INJURED WHILE TRAVELING INCIDENT TO REPORTING FOR TEMPORARY ACTIVE DUTY THE DECISION RENDERED BY THE COURT OF CLAIMS IN ADAMS V. UNITED STATES, FEBRUARY 2, 1954, WHICH HELD THAT UNDER SECTION 4 OF THE NAVAL PERSONNEL ACT OF 1940, AS AMENDED, A NAVAL RESERVE OFFICER ORDERED TO TEMPORARY DUTY FOR PURPOSE OF TAKING PHYSICAL EXAMINATION INCIDENT TO ASSIGNMENT TO ACTIVE DUTY, WHO WAS INJURED WHILE TRAVELING TO TEMPORARY ACTIVE DUTY STATION, IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES DURING PERIOD OF DISABILITY RESULTING FROM SUCH INJURY, WILL BE FOLLOWED BY THE GENERAL ACCOUNTING OFFICE IN SIMILAR CASES, AND IN GENERAL, NO DISTINCTION WILL BE MADE IN SUCH CASES WHETHER THE TRAVEL WAS PERFORMED PRIOR OR SUBSEQUENT TO THE DATE OF SUCH DECISION.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, MAY 14, 1954:

REFERENCE IS MADE TO LETTER DATED APRIL 17, 1954, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION AS TO WHETHER THE RULE ENUNCIATED BY THE COURT OF CLAIMS IN THE CASE OF MILTON C. ADAMS V. UNITED STATES, C.1CLS. NO. 29-53, DECIDED FEBRUARY 2, 1954, WILL BE FOLLOWED BY THE GENERAL ACCOUNTING OFFICE IN DETERMINATIONS OF ELIGIBILITY OF RESERVE MEMBERS OF THE ARMED FORCES TO QUALIFY FOR PAY, ALLOWANCES, DEATH GRATUITY, AND PHYSICAL DISABILITY RETIREMENT PAY IN CASES WHERE MEMBERS ARE INJURED OR KILLED WHILE TRAVELING TO OR FROM ACTIVE DUTY OR ACTIVE DUTY TRAINING. A DISCUSSION OF THE MATTER IS CONTAINED IN COMMITTEE ACTION NO. 97 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER. SUCH COMMITTEE ACTION IT IS INDICATED THAT, IF THE RULE ENUNCIATED IN THE COURT'S DECISION IN THE ADAMS CASE IS TO BE FOLLOWED BY THE MILITARY SERVICES IN THE FUTURE, ADVICE IS DESIRED "AS TO WHAT EFFECT SUCH RULE WILL HAVE ON CLAIMS FOR PAY, ALLOWANCES, DEATH GRATUITY AND PHYSICAL DISABILITY RETIREMENT PAY UPON MEMBERS WHO WERE INJURED OR KILLED WHILE TRAVELING PRIOR TO THE DECISION IN THE ADAMS CASE.'

IN THE OPINION OF FEBRUARY 2, 1954, IN THE ADAMS CASE, THE COURT FOUND THAT BY ORDERS RECEIVED ON SEPTEMBER 20, 1950, THE PLAINTIFF, A RESERVE OFFICER IN THE UNITED STATES NAVY, WAS PLACED ON TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF REPORTING TO THE SENIOR MEDICAL OFFICER, UNITED STATES NAVAL RECRUITING STATION, ALBUQUERQUE, NEW MEXICO, FOR PHYSICAL EXAMINATION INCIDENT TO HIS ASSIGNMENT TO ACTIVE DUTY; THAT WHILE PROCEEDING UNDER SUCH ORDERS FROM HIS HOME IN HEREFORD, TEXAS, THE PLAINTIFF'S CARE WAS INVOLVED IN A COLLISION SOME DISTANCE EAST OF ALBUQUERQUE, AND THAT THE PLAINTIFF SUFFERED INJURIES WHICH HE ALLEGED RESULTED IN HIS PERMANENT DISABILITY AND INCAPACITY FOR THE PERFORMANCE OF ACTIVE DUTY IN THE NAVY. IT WAS FURTHER FOUND THAT THE PLAINTIFF WAS HOSPITALIZED IN A VETERANS ADMINISTRATION HOSPITAL AND IN A U.S. NAVAL HOSPITAL FROM SEPTEMBER 26, 1950, TO FEBRUARY 9, 1951, WHEN HE WAS DISCHARGED FROM THE HOSPITAL AS HAVING RECEIVED MAXIMUM BENEFITS FROM HOSPITALIZATION.

UNDER THE FOREGOING FACTS THE COURT HELD THAT PURSUANT TO THE PROVISIONS OF SECTION 4 OF THE NAVAL PERSONNEL ACT OF 1940, 54 STAT. 864, AS AMENDED BY THE ACT OF JUNE 20, 1949, ( PUBLIC LAW 108), 63 STAT. 201, THE PLAINTIFF IS ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF AN OFFICER OF HIS RANK AND LENGTH OF SERVICE FROM SEPTEMBER 25, 1950, TO FEBRUARY 9, 1951. THE COURT DEFERRED JUDGMENT ON WHETHER PLAINTIFF IS ENTITLED TO RETIREMENT BENEFITS "IN ORDER FOR THE PROPER BOARD TO DETERMINE WHETHER PLAINTIFF'S DISABILITY IS AS MUCH AS 30 PERCENT, OR TO ALLOW FOR THE FILING OF A STATEMENT OR STIPULATION OF THE PARTIES SETTING FORTH THE FACTS PERTAINING TO THIS ISSUE.'

IN RESPONSE TO A REQUEST FROM THE DEPARTMENT OF JUSTICE FOR THE RECOMMENDATION OF THIS OFFICE AS TO FURTHER PROCEEDINGS, THE ATTORNEY GENERAL WAS ADVISED BY LETTER OF MARCH 8, 1954, B-106846, THAT SINCE THE DEPARTMENT OF JUSTICE MADE A THOROUGH AND PERSUASIVE PRESENTATION OF THE GOVERNMENT'S CASE TO THE COURT AND SINCE THE OPINION OF THE COURT IS NOT SO INCONSISTENT WITH THE STATUTES OR SO ADVERSE TO THE INTERESTS OF THE GOVERNMENT AS TO WARRANT A PETITION TO THE SUPREME COURT OF THE UNITED STATES FOR A WRIT OF CERTIORARI, THIS OFFICE DOES NOT RECOMMEND THAT THE GOVERNMENT TAKE ANY FURTHER PROCEEDINGS IN THE CASE.

REPLYING SPECIFICALLY TO THE QUESTION PRESENTED, YOU ARE ADVISED THAT IF AND WHEN THE JUDGMENT OF THE COURT OF CLAIMS IN THE ADAMS CASE BECOMES FINAL, ANY ACTION TAKEN BY THE GENERAL ACCOUNTING OFFICE IN SIMILAR CASES WILL BE CONSISTENT WITH THE RULES ESTABLISHED BY THE COURT'S OPINION OF FEBRUARY 2, 1954, IN SUCH CASE. YOU ARE FURTHER ADVISED THAT IN GENERAL, IN APPLYING SUCH RULE, NO DISTINCTION WILL BE MADE BETWEEN CASES OF RESERVISTS WHO WERE INJURED OR KILLED WHILE TRAVELING PRIOR TO THE SAID DECISION AND CASES OF RESERVISTS INJURED OR KILLED WHILE TRAVELING SUBSEQUENT TO SUCH DECISION. HOWEVER, CLAIMS FOR DISABILITY RETIREMENT PAY INCIDENT TO INJURY OR DISEASE INCURRED AFTER SEPTEMBER 30, 1949, WILL BE FOR DETERMINATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, AND IT WILL BE NOTED THAT SUBSECTIONS (A), 63 STAT. 816, AND (B), 63 STAT. 816, OF SUCH SECTION REQUIRE THAT THE SECRETARY MAKE THE NECESSARY DISABILITY RETIREMENT DETERMINATIONS THEREUNDER WHILE THE MEMBER CONCERNED IS ENTITLED TO RECEIVE BASIC PAY. SEE 30 COMP. GEN. 409, 414, AND B-116906, FEBRUARY 8, 1954, 33 COMP. GEN. 339. IN VIEW THEREOF, IT IS SUGGESTED THAT IF ANY CASE SHOULD ARISE INVOLVING DISABILITY RETIREMENT PROCEEDINGS AND A CLAIM FOR DISABILITY RETIREMENT PAY INCIDENT TO DISABILITY INCURRED BETWEEN SEPTEMBER 30, 1949, AND THE PRESENT, DURING TRAVEL TO OR FROM ACTIVE DUTY OR ACTIVE DUTY TRAINING, IT BE SUBMITTED TO THIS OFFICE FOR DECISION PRIOR TO PAYMENT.