B-126876, APR. 16, 1956

B-126876, APR. 16, 1956

TO LIEUTENANT T. P. CONDON, SC, USN, THE JUDGE ADVOCATE GENERAL OF THE NAVY:

YOUR LETTER OF DECEMBER 7, 1955, XAMC:EAC:DJ L16-4, REQUESTS DECISION WHETHER PAYMENT OF A SIX MONTHS' DEATH GRATUITY MAY BE MADE IN THE CASE OF THE LATE TOM BLOSKI, LIEUTENANT, UNITED STATES NAVAL. RESERVE-R, WHO WAS KILLED IN A HELICOPTER CRASH ON OCTOBER 26, 1955. THE GRATUITY HAS BEEN CLAIMED BY MRS. ALTA G. BLOSKI, AS WIDOW OF THE DECEDENT.

ON JULY 2, 1953, THE BUREAU OF NAVAL PERSONNEL AUTHORIZED LIEUTENANT BLOSKI TO PERFORM INACTIVE-DUTY TRAINING WITH A PAY UNIT AS A PILOT AND COLLATERAL DUTY WITH H.U. SQUADRON 821, NAVAL AIR STATION, NEW ORLEANS, LOUISIANA. ON MAY 29, 1955, THE COMMANDING OFFICER, NAVAL AIR STATION, NEW ORLEANS, UNDER AUTHORITY OF ARTICLE H-4305, BUREAU OF NAVAL PERSONNEL MANUAL, ISSUED TO LIEUTENANT BLOSKI SPECIAL INACTIVE DUTY TRAINING ORDERS. BY SUCH ORDERS THE OFFICER WAS AUTHORIZED, FOR A PERIOD NOT TO EXCEED 12 MONTHS FROM THE DATE ON WHICH HE ACCEPTED THE ORDERS, TO PERFORM IN A NONPAY STATUS SPECIAL INACTIVE-DUTY TRAINING. THE ORDERS STATED THAT THEY CONSTITUTED THE OFFICER'S ASSIGNMENT TO DUTY IN A PART OF THE AERONAUTIC ORGANIZATION OF THE NAVY AND THAT HE WAS THEREBY "DETAILED TO DUTY IN A FLYING STATUS INVOLVING OPERATIONAL OR TRAINING FLIGHTS EFFECTIVE UPON REPORTING IN COMPLIANCE WITH THESE ORDERS.'

THE SPECIAL INACTIVE-DUTY TRAINING ORDERS WERE ACCEPTED BY LIEUTENANT BLOSKI ON MAY 29, 1955, AND ON OCTOBER 26, 1955, WHILE PERFORMING A PERIOD OF INACTIVE-DUTY TRAINING UNDER THE ORDERS, HE WAS KILLED WHEN THE HELICOPTER WHICH HE WAS PILOTING CRASHED. THE OPERATIONS OFFICER OF THE NAVAL AIR STATION, NEW ORLEANS, HAS CERTIFIED THAT, UNDER ORDERS OF COMPETENT AUTHORITY IN FORCE DURING THE PERIOD OF THE OFFICER'S FATAL FLIGHT, HE WAS IN A FLYING STATUS AND HAD FULFILLED ALL FLIGHT REQUIREMENTS AND CONDITIONS IN FORCE DURING SUCH PERIOD AND THAT HE PERFORMED THE FLIGHT WHILE IN A DUTY STATUS.

SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, PROVIDES THAT ALL OFFICERS OF THE NAVAL RESERVE WHO, IF ORDERED BY THE FEDERAL GOVERNMENT TO PERFORM ACTIVE DUTY 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, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY. THE ACT COVERS PERIODS OF SERVICE WITHOUT PAY IF PERFORMED IN RESPONSE TO COMPETENT ORDERS. 33 COMP. GEN. 411.

SINCE THE BENEFITS OF THE ACT OF JUNE 20, 1949, ACCRUE ONLY WHERE THE DUTY INVOLVED IS IMPOSED UPON THE INDIVIDUAL CONCERNED BY COMPETENT ORDERS, IT HAS BEEN HELD THAT MEMBERS OF THE VOLUNTEER NAVAL RESERVE AND VOLUNTEER MARINE CORPS RESERVE, INCLUDING MEMBERS ASSOCIATED WITH THE ORGANIZED RESERVE IN A VOLUNTARY STATUS, WHO SUFFER INJURY WHILE ON TRAINING DUTY, BUT HAVE NO ORDERS ASSIGNING THEM TO SUCH DUTY, AND ARE UNDER NO COMPULSION WHATEVER TO PERFORM TRAINING DUTY OF ANY KIND, ARE NOT ENTITLED TO THE BENEFITS OF THE STATUTE. 29 COMP. GEN. 397; 31 COMP. GEN. 44; B-104190, MARCH 4, 1952.

IN THIS CASE, HOWEVER, THE SITUATION IS DIFFERENT. THE DECEDENT WAS A MEMBER OF THE ORGANIZED RESERVE AND WAS ENGAGING IN INACTIVE-DUTY TRAINING UNDER COMPETENT ORDERS AT THE STATION FROM WHICH SUCH ORDERS EMANATED WHEN THE ACCIDENT OCCURRED WHICH RESULTED IN HIS DEATH. ALTHOUGH THE ORDERS FIXED NO PARTICULAR DATE OR DATES UPON WHICH THE INACTIVE-DUTY TRAINING WAS TO BE PERFORMED, THEIR PURPOSE BEING TO SUPPLEMENT TRAINING RECEIVED DURING OTHER TYPES OF INACTIVE-DUTY TRAINING (ARTICLE R-4305, BUREAU OF NAVAL PERSONNEL MANUAL), IT CANNOT BE SAID THAT THEY IMPOSED NO DUTY REQUIREMENTS ON THE OFFICER, OR THAT HE WAS NOT PERFORMING A PERIOD OF INACTIVE-DUTY TRAINING PURSUANT TO HIS ORDERS WHEN HE PRESENTED HIMSELF AT THE ORDERING ACTIVITY AND ENGAGED IN THE DUTY INVOLVING FLYING TO WHICH HE WAS DETAILED. IN SUCH CONNECTION IT MAY BE POINTED OUT THAT, IN THE CASE CONSIDERED IN 31 COMP. GEN. 44, SOMEWHAT SIMILAR ORDERS RELATING TO REPEATED PERIODS OF TRAINING DUTY HAD TERMINATED PRIOR TO THE TIME THE INJURY WAS SUSTAINED.

ACCORDINGLY, A SIX MONTHS' DEATH GRATUITY, COMPUTED ON THE BASIS OF ALL THE PAY, INCLUDING FLIGHT PAY, AUTHORIZED FOR A MEMBER OF THE REGULAR NAVY WHOSE GRADE AND LENGTH OF SERVICE CORRESPONDED TO THOSE OF THE DECEDENT AT THE TIME OF HIS DEATH, MAY BE PAID TO HIS WIDOW, IF OTHERWISE PROPER. SEE 33 COMP. GEN. 411; 7 COMP. GEN. 476.