B-130269, MARCH 18, 1957, 36 COMP. GEN. 651

B-130269, MARCH 18, 1957, 36 COMP. GEN. 651

MILITARY PERSONNEL - RETIRED PAY - RESERVISTS FOUND UNFIT BY REASON OF DISEASE - INITIAL TRAINING PERIOD MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES WHO, WHILE PERFORMING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER THE ARMED FORCES RESERVE ACT OF 1952, ARE FOUND UNFIT BY REASON OF PHYSICAL DISABILITY DUE TO DISEASE ARE ENTITLED TO DISABILITY RETIREMENT PAY BENEFITS PRESCRIBED IN SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949 OR IN 10 U.S.C. 1201, 1202 AND 1203, DEPENDING ON THE DATE INVOLVED IN EACH CASE.

TO THE SECRETARY OF DEFENSE, MARCH 18, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 7, 1957, WITH ENCLOSURES, RECEIVED FROM THE ASSISTANT SECRETARY OF DEFENSE C ( COMPTROLLER), REQUESTING DECISION WHETHER A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES WHO IS FOUND UNFIT BY REASON OF PHYSICAL DISABILITY DUE TO DISEASE WHILE PERFORMING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER THE PROVISIONS OF SECTION 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 1013 (C), IS ENTITLED TO THE DISABILITY RETIREMENT PAY BENEFITS WHICH WERE PROVIDED IN SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (A), AND ARE NOW PRESCRIBED IN SECTIONS 1201, 1202 AND 1203, TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 91-93. A DISCUSSION OF THE MATTER IS SET FORTH IN COPIES OF MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 165 AND OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY AND THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE RECEIVED AS ENCLOSURES WITH THE LETTER OF JANUARY 7, 1957.

TO ANSWER THE QUESTION PRESENTED IT IS NECESSARY TO CONSIDER THE PROVISIONS OF SECTION 262 (D), ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY SECTION 2 (I) OF THE ACT OF AUGUST 9, 1955, 69 STAT. 600, 50 U.S.C. 1952 USED., SUPP. III, 1013 (D), AND THE EFFECT OF THE DELETION OF SECTION 262 (D) BY SECTION 1, ACT OF APRIL 23, 1956, 70 STAT. 115, 50 U.S.C. 1013, COUPLED WITH THE CONCURRENT ADDITION OF SECTION 264 TO THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 1015 (SEE SECTION 2, ACT OF APRIL 23, 1956). IT IS ALSO NECESSARY TO CONSIDER THE DISABILITY RETIREMENT PAY PROVISIONS OF PUBLIC LAW 108, ACT OF JUNE 20, 1949, 63 STAT. 201, 10 U.S.C. 1952 USED., 456; SECTION 402 (A), TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 1952 USED., 272 (A); AND SECTIONS 1201, 1202, AND 1203, TITLE 10, U.S.C. CODE, AS ENACTED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 91-93.

SECTION 2 (I), ACT OF AUGUST 9, 1955, 69 STAT. 600, ADDED CHAPTER 8 TO PART II OF THE ARMED FORCES RESERVE ACT OF 1952, CONSISTING OF NEW SECTIONS 261, 262, AND 263, RELATING TO THE ESTABLISHMENT OF SPECIAL ENLISTMENT PROGRAMS IN SPECIFIED RESERVE COMPONENTS OF THE ARMED FORCES. SUBSECTION (C) OF SECTION 262 IN PERTINENT PART PROVIDES THAT EACH ENLISTMENT UNDER THAT SECTION SHALL BE FOR A PERIOD OF EIGHT YEARS AND THAT EACH PERSON SO ENLISTED (WITH CERTAIN EXCEPTIONS WHICH ARE NOT HERE MATERIAL) "SHALL BE REQUIRED DURING SUCH ENLISTMENT (1) TO PERFORM AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF NOT LESS THAN THREE MONTHS OR MORE THAN SIX MONTHS.'

SUBSECTION (D) OF SECTION 262 PROVIDED AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY PERSON PERFORMING THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C) OF THIS SECTION SHALL---

(1) DURING SUCH PERIOD, AND DURING ANY PERIOD OF HOSPITALIZATION INCIDENT TO THE PERFORMANCE OF SUCH DUTY, RECEIVE PAY AT THE RATE OF $50 PER MONTH;

(2) BE DEEMED TO BE SERVING IN PAY GRADE E-1 (UNDER FOUR MONTHS) FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY TO RECEIVE ALLOWANCES FOR SUBSISTENCE OF FOR TRAVEL AND TRANSPORTATION, OR TO RECEIVE ANY BENEFIT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED; AND

(3) BE DEEMED TO BE A MEMBER OF A RESERVE COMPONENT CALLED OR ORDERED INTO ACTIVE SERVICE FOR EXTENDED SERVICE IN EXCESS OF THIRTY DAYS FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR ANY BENEFIT MADE AVAILABLE TO MEMBERS OF RESERVE COMPONENTS BY THE ACT ENTITLED " AN ACT TO PROVIDE FOR MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES WHO SUFFER DISABILITY OR DEATH FROM INJURIES INCURRED WHILE ENGAGED IN ACTIVE DUTY TRAINING FOR PERIODS OF LESS THAN THIRTY DAYS OR WHILE ENGAGED IN ACTIVE DUTY TRAINING," APPROVED JUNE 20, 1949 (63 STAT. 201), EXCEPT THAT (A) NO SUCH PERSON SHALL BE ENTITLED TO ANY BENEFIT UNDER SECTION 621 OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, AS AMENDED, AND (B) THE INDEMNITY ACCORDED TO SUCH PERSON UNDER THE SERVICEMEN'S INDEMNITY ACT OF 1951, AS AMENDED, SHALL TERMINATE THIRTY DAYS AFTER THE RELEASE OF SUCH PERSON FROM SUCH PERIOD OF ACTIVE DUTY FOR TRAINING.

EXCEPT AS SPECIFICALLY PROVIDED BY THIS SUBSECTION, NO PERSON SHALL BECOME ENTITLED, BY REASON OF HIS PERFORMANCE OF A PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1) OF SUBSECTION (C) OF THIS SECTION, TO ANY RIGHT, BENEFIT, OR PRIVILEGE PROVIDED BY LAW FOR PERSONS WHO HAVE PERFORMED ACTIVE DUTY IN THE ARMED FORCES.

PUBLIC LAW 108, ACT OF JUNE 20, 1949, REFERRED TO IN CLAUSE (3) OF SECTION 262 (D), 50 U.S.C. 1013 (D) (3), PROVIDED IN PERTINENT PART AS FOLLOWS:

* * * THAT ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OR THE AIR FORCE OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, OR THE REGULAR AIR FORCE WHO--- (1) IF CALLED OR ORDERED INTO THE ACTIVE SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR (2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING 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 MILITARY SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND 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 ARMY OR THE REGULAR AIR FORCE. ( ITALICS ADDED.)

IT APPEARS THAT DOUBT ARISES AS TO THE EFFECT PROPERLY TO BE GIVEN TO THE PROVISIONS OF CLAUSE (3), SECTION 262 (D), AS ADDED BY THE 1955 LAW, BECAUSE IT WAS HELD IN OUR DECISION OF APRIL 25, 1951, 30 COMP. GEN. 409, THAT THE DISABILITY RETIREMENT PAY PROVISIONS OF PUBLIC LAW 108 WERE SUPERSEDED, EFFECTIVE OCTOBER 1, 1949, BY THE NEW PROVISIONS CONTAINED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. THAT CONCLUSION RESTED ON THE VIEW THAT A DISABILITY RETIREMENT PAY STATUS WHICH THERETOFORE WOULD HAVE BEEN WITHIN THE SCOPE OF CLAUSE (2) IN PUBLIC LAW 108, 10 U.S.C. 456 (2), THEREAFTER CAME WITHIN THE PURVIEW OF SUBSECTION (C), SECTION 402 OF THE 1949 LAW, 37 U.S.C. 272 (C). SIMILARLY, THAT A DISABILITY RETIREMENT PAY STATUS WHICH PREVIOUSLY WOULD HAVE FALLEN WITHIN THE SCOPE OF CLAUSE (1) IN PUBLIC LAW 108, 10 U.S.C. 456 (1), THENCE FORTH CAME WITHIN THE PURVIEW OF SUBSECTION (A) OR SUBSECTION (B), 37 U.S.C. 272 (B), AS THE CASE MIGHT BE, OF SECTION 402 OF THE 1949 LAW.

THE INTENT OF SECTION 262 (D) IS INDICATED, TO SOME EXTENT, BY THE PROVISIONS OF CLAUSE (2) OF THAT SECTION, 50 U.S.C. 1013 (D) (2), WHICH PROVIDED THAT ANY PERSON PERFORMING THE PERIOD OF ACTIVE DUTY FOR TRAINING REQUIRED BY CLAUSE (1), SECTION 262 (C), 50 U.S.C. 1013 (C) (1), WAS TO BE DEEMED TO BE SERVING IN PAY GRADE E-1 (UNDER FOUR MONTHS) FOR THE PURPOSE OF DETERMINING ELIGIBILITY TO RECEIVE ANY BENEFIT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. THE PROVISIONS OF CLAUSES (2) AND (3) IN SECTION 262 (D), WHEN VIEWED TOGETHER, AND IN THE LIGHT OF THEIR LEGISLATIVE HISTORY, LEAVE LITTLE DOUBT THAT THE CONGRESS DESIRED TO EXTEND TO THESE SPECIAL ENLISTED TRAINEES PERFORMING THEIR INITIAL PERIOD OF TRAINING, ALL THE DISABILITY RETIREMENT PAY BENEFITS PROVIDED FOR MEMBERS OF THE REGULAR COMPONENTS AND FOR MEMBERS OF THE RESERVE COMPONENTS ON EXTENDED ACTIVE DUTY AND, OF COURSE, IN 1955 THE CURRENT PROVISIONS COVERING SUCH DISABILITY RETIREMENT BENEFITS WERE THOSE IN TITLE IV OF THE 1949 ACT. HENCE, IT IS OUR VIEW THAT BY VIRTUE OF CLAUSE (3) IN SECTION 262 (D) OF THE 1955 LAW, SPECIAL ENLISTED TRAINEES PERFORMING THE INITIAL PERIOD OF TRAINING WERE ENTITLED TO THE DISABILITY RETIREMENT PAY BENEFITS PROVIDED IN SUBSECTION (A) OR (B), AS THE CASE MIGHT BE, OF SECTION 402, CAREER COMPENSATION ACT OF 1949.

THE ACT OF APRIL 23, 1956, 70 STAT. 115, DELETED SUBSECTION (D) OF SECTION 262 OF THE ARMED FORCES RESERVE ACT OF 1952 AND ADDED NEW SECTION 264 TO THAT ACT. THE NEW SECTION PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY PERSON CALLED OR ORDERED TO PERFORM A PERIOD OF ACTIVE DUTY FOR TRAINING IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SUBSECTIONS 233 (D) OR 262 (C) OF THIS ACT, SHALL DURING SUCH PERIOD BE DEEMED TO HAVE BEEN CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR ANY BENEFIT PRESCRIBED UNDER PUBLIC LAW 108, EIGHTY-FIRST CONGRESS (63 STAT. 201).

SECTION 264 CLEARLY PROVIDES THAT ANY PERSON CALLED OR ORDERED TO PERFORM A PERIOD OF ACTIVE DUTY FOR TRAINING IN EXCESS OF THIRTY DAYS UNDER THE AUTHORITY OF SECTION 233 (D) OR 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 490, 50 U.S.C. 961 (D), AND 69 STAT. 600, RESPECTIVELY, IS REQUIRED, DURING SUCH PERIOD, TO BE DEEMED TO HAVE BEEN CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY FOR ANY BENEFIT PRESCRIBED UNDER PUBLIC LAW 108. THUS THE IDENTICAL DISABILITY RETIREMENT PAY BENEFITS THERETOFORE PRESCRIBED IN CLAUSE (3) OF DELETED SECTION 262 (D), FOR SPECIAL ENLISTED TRAINEES, WERE AGAIN SPECIFICALLY PRESCRIBED IN NEW SECTION 264 FOR SUCH SPECIAL ENLISTED TRAINEES. THERE CAN BE LITTLE DOUBT THAT UNDER THIS EXPRESS STATUTORY PROVISION THE DISABILITY RETIREMENT PAY STATUS OF A PERSON PERFORMING A PERIOD OF ACTIVE DUTY FOR TRAINING IN EXCESS OF THIRTY DAYS UNDER THE AUTHORITY OF SECTION 233 (D) OR 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952 AND SUFFERING DISABILITY FROM DISEASE OR INJURY WAS INTENDED TO BE BROUGHT DIRECTLY WITHIN THE PURVIEW OF SECTION 402 OF THE 1949 LAW.

THE PROVISIONS OF PUBLIC LAW 108 NOW APPEAR, WITH RESPECT TO THE ARMY, IN SECTION 3687, TITLE 10, U.S. CODE, 70A STAT. 212; AND WITH RESPECT TO THE AIR FORCE IN SECTION 8687, TITLE 10, U.S. CODE, 70A STAT. 536. SECTION 3687 PROVIDES THAT A MEMBER OF THE ARMY, OTHER THAN OF THE REGULAR ARMY, IS ENTITLED TO THE PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER:

(1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

PROVISIONS CORRESPONDING TO THE FOREGOING ARE CONTAINED IN SECTION 8687, WHICH SECTION IS APPLICABLE TO ANY MEMBER OF THE AIR FORCE OTHER THAN OF THE REGULAR AIR FORCE.

THE PROVISIONS OF PUBLIC LAW 108 RELATING TO DISABILITY "RETIREMENT PAY" HAVE BEEN OMITTED FROM SECTIONS 3687 AND 8687 OF NEW TITLE 10, U.S. CODE, FOR THE REASON THAT SUCH FORMER DISABILITY RETIREMENT PAY PROVISIONS, AS WELL AS THE PROVISIONS OF SECTIONS 402 (A), 402 (B), AND 402 (C), OF THE CAREER COMPENSATION ACT OF 1949, HAVE BEEN WHOLLY REPLACED AND SUPERSEDED BY THE PROVISIONS NOW CONTAINED IN SECTIONS 1201 TO 1206, U.S. CODE, TITLE 10, ACT OF AUGUST 10, 1956, 70A STAT. 91 94. THE BENEFITS PRESCRIBED IN SECTIONS 1201, 1202, AND 1203 IN NEW TITLE 10, U.S. CODE, ACCRUE TO MEMBERS WHOSE STATUS BRINGS THEM WITHIN THE SCOPE OF THESE SECTIONS AND WHO HAVE "BEEN CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD OF MORE THAN 30 DAYS.' THE BENEFITS PRESCRIBED IN SECTIONS 1204, 1205, AND 1206 ACCRUE ONLY IN THE CASE OF PHYSICAL DISABILITY ,RESULTING FROM AN INJURY.' THEREFORE, IF BASED SOLELY ON THE PROVISIONS OF LAW NOW CONTAINED IN NEW TITLE 10, U.S. CODE, A PERSON PERFORMING A PERIOD OF ACTIVE DUTY FOR TRAINING IN EXCESS OF THIRTY DAYS UNDER AUTHORITY OF SECTION 233 (D) OR 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952 AND WHO INCURS A PHYSICAL DISABILITY RESULTING FROM A "DISEASE" (AS DISTINGUISHED FROM AN INJURY) WOULD NOT BE ENTITLED TO THE DISABILITY RETIREMENT PAY BENEFITS PRESCRIBED IN SECTION 1201, 1202, OR 1203, DUE TO HIS "TRAINING DUTY" STATUS, AND NO RIGHT TO THE DISABILITY RETIREMENT PAY BENEFITS PRESCRIBED IN SECTION 1204, 1205, OR 1206, WOULD ARISE IN SUCH A CASE DUE TO THE FACT THAT THE PHYSICAL DISABILITY HAD RESULTED FROM A "DISEASE.' HOWEVER, SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, IN PERTINENT PART, EXPRESSLY PROVIDES THAT "* * * LAWS EFFECTIVE AFTER MARCH 31, 1955, THAT ARE INCONSISTENT WITH THIS ACT SHALL BE CONSIDERED AS SUPERSEDING IT TO THE EXTENT OF THE INCONSISTENCY.' THUS THE PROVISIONS OF THE ACT OF APRIL 23, 1956, PROPERLY ARE TO BE CONSTRUED AS SUPERSEDING THE PROVISIONS OF SECTIONS 3687 AND 8687 TO THE EXTENT OF ANY INCONSISTENCY. ACCORDINGLY, YOU ARE ADVISED THAT A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES FOUND TO BE UNFIT BY REASON OF PHYSICAL DISABILITY DUE TO "DISEASE" WHILE PERFORMING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER AUTHORITY OF SECTION 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952 IS ENTITLED TO THE DISABILITY RETIREMENT PAY BENEFITS PRESCRIBED IN SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, OR TO THE BENEFITS PRESCRIBED IN SECTIONS 1201, 1202, AND 1203, TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 91-93, WHICHEVER PROVISIONS OF LAW ARE APPLICABLE DEPENDENT UPON THE DATE INVOLVED IN THE PARTICULAR CASE.