B-120573, DECEMBER 3, 1954, 34 COMP. GEN. 275

B-120573, DECEMBER 3, 1954, 34 COMP. GEN. 275

PAY - ACTIVE DUTY - HOSPITALIZATION, MEDICAL TREATMENT, ETC. - NATIONAL GUARD NATIONAL GUARD ENLISTED MEMBERS ORDERED TO ACTIVE DUTY FOR TRAINING FOR LESS THAN THIRTY DAYS WHO ARE INJURED WHILE RETURNING FROM THE PLACE OF FIELD TRAINING ARE ENTITLED UNDER SECTION 3 OF THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES FOR PERIOD EXTENDING BEYOND ORDER TRAINING PERIOD DURING WHICH THEY ARE CONFINED TO HOMES UNDER MEDICAL TREATMENT AND ARE TOTALLY INCAPACITATED AND UNABLE TO PURSUE THEIR CIVILIAN OCCUPATIONS.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN E. F. PATTERSON, DEPARTMENT OF THE ARMY, DECEMBER 3, 1954:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE OFFICE CHIEF OF FINANCE, YOUR LETTER OF JUNE 4, 1954, TRANSMITTING TWO FIELD TRAINING PAYROLLS OF COMPANY A, 293RD INFANTRY ( INDIANA NATIONAL GUARD), ACCOMPANIED BY SUPPORTING PAPERS, COVERING PROPOSED PAYMENTS TO RICHARD K. EGE, SERGEANT, FIRST CLASS, 35 584 142, AND JOHN P. MEYERS, PRIVATE, FIRST CLASS, 23 1016 726. YOU REQUEST A DECISION WHETHER SUCH MEMBERS ARE ENTITLED TO PAY AND ALLOWANCES (UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507, 32 U.S.C. 164A) BEYOND THE FIFTEEN DAYS ( JULY 26, 1953, TO AUGUST 9, 1953), FOR WHICH THEY WERE ORDERED TO ACTIVE DUTY FOR TRAINING AND BEYOND THE TIME THEY WERE ACTUALLY HOSPITALIZED FOR CERTAIN INJURIES BUT WHILE STILL RECEIVING MEDICAL TREATMENT AT THEIR HOMES.

IT APPEARS THAT THE TWO MEMBERS OF THE INDIANA NATIONAL GUARD RECEIVED INJURIES ON AUGUST 8, 1953, WHILE TRAVELING FROM ACTIVE DUTY FOR TRAINING OF LESS THAN 30 DAYS; THAT SERGEANT EGE WAS HOSPITALIZED FROM AUGUST 8 TO 20, 1953, INCLUSIVE, AND WAS RELEASED ON LEAVE STATUS FROM THE HOSPITAL FOR FURTHER HOME TREATMENT FROM AUGUST 21 TO OCTOBER 25, 1953, INCLUSIVE; THAT HE WAS RETURNED TO DUTY STATUS ON OCTOBER 26, 1953; AND THAT THE PAYROLL COVERS PAY AND ALLOWANCES PROPOSED TO BE PAID TO HIM FOR THE PERIOD AUGUST 10 TO OCTOBER 25, 1953. IT APPEARS FURTHER THAT PRIVATE FIRST CLASS MYERS WAS HOSPITALIZED FROM AUGUST 8 TO OCTOBER 18, 1953, AND WAS RELEASED ON LEAVE STATUS FROM THE HOSPITAL FOR FURTHER HOME TREATMENT ON OCTOBER 19, 1953; THAT THE TREATMENT WAS BEING CONTINUED AS OF FEBRUARY 5, 1954; AND THAT THE PAYROLL COVERS PAY AND ALLOWANCES PROPOSED TO BE PAID TO HIM FOR THE PERIOD FROM AUGUST 10 TO NOVEMBER 30, 1953.

THE CITED ACT OF JUNE 15, 1936, INSOFAR AS PERTINENT HERE PROVIDES THAT ENLISTED MEN OF THE NATIONAL GUARD WHO SUFFER PERSONAL INJURY IN LINE OF DUTY WHILE EN ROUTE TO OR FROM, OR DURING THEIR ATTENDANCE AT ENCAMPMENTS OR MANEUVERS SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED, AT GOVERNMENT EXPENSE, TO SUCH HOSPITALIZATION, REHOSPITALIZATION, MEDICAL AND SURGICAL CARE, IN HOSPITAL AND AT THEIR HOMES, AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH INJURY AND DURING THE PERIOD OF SUCH HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN AN AGGREGATE OF SIX MONTHS AFTER THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY OR TRAINING IN ANY CASE, TO THE PAY AND ALLOWANCES THEY WERE ENTITLED TO RECEIVE AT THE TIME THE INJURY WAS SUFFERED. SECTION 3 OF THE ACT OF JUNE 20, 1949, 63 STAT. 202, 32 U.S.C. 160A, INSOFAR AS PERTINENT HERE, PROVIDES THAT ALL ENLISTED MEN OF THE NATIONAL GUARD OF THE UNITED STATES, BOTH GROUND AND AIR, AND THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES, WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE ENGAGED FOR ANY PERIOD OF TIME IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SECTIONS 5, 81, 92, 94, 97 OR 99 OF THE NATIONAL DEFENSE ACT, 39 STAT. 167, 203, 206, 207, SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME COMPENSATION, HOSPITAL BENEFITS, PAY AND ALLOWANCES, ETC., AS MAY BE PROVIDED BY LAW FOR ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.

ALTHOUGH THE PROVISIONS OF THE ACT OF JUNE 20, 1949, APPEAR TO BE BROADER IN SCOPE THAN THOSE OF THE 1936 ACT, THE LATTER ACT WAS NOT EXPRESSLY REPEALED BY THE 1949 ACT. WHILE THE QUESTION YOU PRESENT IS WHETHER PAYMENT IS PROPER IN THIS CASE UNDER THE PROVISIONS OF THE 1936 ACT, IT IS DEEMED NECESSARY TO CONSIDER, ALSO, WHETHER PAYMENT IS AUTHORIZED BY THE 1949 ACT.

IN A DECISION DATED JUNE 3, 1938, A-93330, THIS OFFICE HELD THAT, EXCEPT IN CASES INVOLVING CONTAGIOUS OR INFECTIOUS DISEASES,"HOME TREATMENT MAY NOT BE CONSIDERED HOSPITALIZATION OR REHOSPITALIZATION WITHIN THE LANGUAGE OR INTENT OF THE ACT OF JUNE 15, 1936, FOR PURPOSE OF CONTINUATION OF PAY AFTER TERMINATION OF ENCAMPMENT.' A SIMILAR CONCLUSION WAS REACHED IN B- 2116, MARCH 20, 1939. THE RULE ESTABLISHED IN THOSE DECISIONS WOULD SEEM TO REQUIRE THE CONCLUSION THAT THE 1936 ACT DOES NOT AUTHORIZE THE PAYMENTS HERE INVOLVED. HOWEVER, IT HAS BEEN HELD, IN CASES COMING WITHIN THE SCOPE OF SECTIONS 1 AND 2 OF THE 1949 ACT, 63 STAT. 201, 202, THAT THE PAY AND ALLOWANCES AUTHORIZED BY SUCH SECTIONS, FOR A MEMBER SUFFERING DISABILITY IN LINE OF DUTY WHILE ON ACTIVE OR TRAINING DUTY, ACCRUE NOT ONLY DURING HIS HOSPITALIZATION BUT ALSO AFTER HIS DISCHARGE FROM THE HOSPITAL TO THE DATE THE PROPER AUTHORITIES DETERMINE THAT HE CONTINUES TO BE DISABLED FOR HIS CIVILIAN PURSUITS. SEE 33 COMP. GEN. 339 AND CASES THERE CITED AT PAGE 343. THE PROVISIONS OF SECTIONS 1 AND 2 OF THE SAID 1949 ACT, CONSIDERED IN THAT DECISION AND WHICH PERTAIN TO NAVY, MARINE CORPS AND ARMY PERSONNEL, DO NOT DIFFER MATERIALLY FROM THE PROVISIONS OF SECTION 3 OF SUCH ACT PERTAINING TO NATIONAL GUARD PERSONNEL, INSOFAR AS THEY MAY BE PERTINENT IN THIS CASE. THE NEXT QUESTION, THEN, IS WHETHER THE ENLISTED MEMBERS HERE INVOLVED WERE INJURED WHILE ENGAGED OR EMPLOYED "FOR ANY PERIOD OF TIME IN ANY TYPE OF TRAINING OR ACTIVE DUTY" UNDER SECTIONS 5, 81, 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, IT BEING INDICATED IN THE ENCLOSURES WITH YOUR LETTER THAT THE SAID MEMBERS WERE INJURED WHILE TRAVELING BACK TO THEIR HOME STATION FROM A PLACE OF PARTICIPATION IN FIELD TRAINING OF THE TYPE CONTEMPLATED BY SECTIONS 92 AND 94 OF THE NATIONAL DEFENSE ACT, AS AMENDED.

IN THE CASE OF MILTON C. ADAMS, V. UNITED STATES, C.1CLS. NO. 29 53, DECIDED FEBRUARY 2, 1954, 127 C.1CLS. 470, IT WAS HELD THAT A RESERVIST WHO WAS INJURED WHILE TRAVELING FROM HIS HOME TO A PLACE TO WHICH HE WAS DIRECTED TO REPORT FOR PHYSICAL EXAMINATION INCIDENT TO ASSIGNMENT TO ACTIVE DUTY WAS ENTITLED, UNDER SECTION 1 OF THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES OF AN OFFICER OF HIS RANK AND SERVICE WHILE HOSPITALIZED FOR HIS INJURIES. BY DECISION OF THIS OFFICE DATED MAY 14, 1954, 33 COMP. GEN. 551, THE SECRETARY OF DEFENSE WAS 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 RULE ESTABLISHED BY THE COURT'S OPINION OF FEBRUARY 2, 1954, IN THAT CASE AND THAT, GENERALLY, IN APPLYING SUCH RULE, NO DISTINCTION WILL BE MADE BETWEEN CASES OF MEMBERS WHO WERE INJURED OR KILLED WHILE TRAVELING PRIOR TO THE SAID DECISION AND CASES OF MEMBERS INJURED OR KILLED WHILE TRAVELING SUBSEQUENT TO SUCH DECISION.

WHILE THE COURT OF CLAIMS HAS DEFERRED FINAL JUDGMENT IN THE ADAMS CASE PENDING SUBMISSION OF A STATEMENT OR STIPULATION WITH RESPECT TO THE PERCENTAGE OF PLAINTIFF'S DISABILITY, IT NEVERTHELESS IS EVIDENT THAT THE COURT VIEWS THE ACT OF JUNE 20, 1949, AS AUTHORIZING PAY, ALLOWANCES AND OTHER BENEFITS IN OTHERWISE PROPER CASES OF MEMBERS WHO ARE INJURED IN LINE OF DUTY WHILE ENGAGED IN TRAVEL TO OR FROM ACTIVE DUTY OR FULL-TIME TRAINING DUTY.

ACCORDINGLY, AND SINCE THE VOUCHERS ARE SUPPORTED BY CERTIFICATES FROM A SERVICE MEDICAL OFFICER THAT THE MEMBERS WERE TOTALLY INCAPACITATED AND UNABLE TO PURSUE THEIR CIVILIAN OCCUPATIONS DURING THE PERIODS INVOLVED, SUCH VOUCHERS ARE RETURNED HEREWITH AND PAYMENTS THEREON TO SERGEANT FIRST CLASS EGE AND PRIVATE FIRST CLASS MYERS ARE AUTHORIZED IF AND WHEN YOU SHALL HAVE RECEIVED OFFICIAL INFORMATION FROM THE CHIEF CLERK, COURT OF CLAIMS, TO THE EFFECT THAT THE JUDGMENT IN THE ADAMS CASE HAS BECOME FINAL, IF THE PAYMENTS ARE CORRECT IN OTHER RESPECTS.