B-130694, APRIL 4, 1957, 36 COMP. GEN. 692

B-130694, APRIL 4, 1957, 36 COMP. GEN. 692

MILITARY PERSONNEL - PAY - NATIONAL GUARD - AFTER HOSPITALIZATION AND PRIOR TO RESUMPTION OF CIVILIAN DUTY THE PAY AND ALLOWANCES DUE NATIONAL GUARD MEMBERS UNDER 32 U.S.C. 318, WHICH EXTENDS BENEFITS APPLICABLE TO CORRESPONDING GRADES OF THE REGULAR ARMY OR REGULAR AIR FORCE TO GUARDSMEN WHO ARE DISABLED BY DISEASE OR INJURY WHILE IN TRAINING, MAY NOT BE CONTINUED BEYOND TERMINATION OF HOSPITALIZATION IF IT IS DETERMINED THAT NATIONAL GUARD MEMBERS ARE ABLE TO PERFORM THEIR MILITARY DUTIES, NOTWITHSTANDING THEIR INCAPACITY TO RESUME THE DUTIES OF THEIR CIVILIAN PURSUITS. ALTHOUGH A CERTIFICATION BY A NONSERVICE PHYSICIAN OF THE PHYSICAL CONDITION OF A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO SUFFERED A DISABILITY DURING TRAINING DUTY MAY BE ACCEPTED TO ESTABLISH THE MEMBER'S INABILITY TO PERFORM MILITARY DUTY, SUCH EVIDENCE IN LIEU OF A CERTIFICATION BY A SERVICE MEDICAL OFFICER SHOULD BE DISCOURAGED AND ONLY PERMITTED UNDER CLOSELY CIRCUMSCRIBED REGULATIONS.

TO THE SECRETARY OF DEFENSE, APRIL 4, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 12, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON CERTAIN QUESTIONS DISCUSSED IN COMMITTEE ACTION NO. 166 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, RELATING TO PAY AND ALLOWANCES BEYOND THE PERIOD OF HOSPITALIZATION AND TREATMENT IN THE CASE OF MEMBERS OF THE NATIONAL GUARD WHO ARE ORDERED TO ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY FOR TRAINING AND WHO ARE INJURED IN LINE OF DUTY.

TITLE 32, SECTION 318, U.S.C. 70A STAT. 605, CODIFIED FROM SECTION 3 OF THE ACT OF JUNE 20, 1949, 63 STAT. 202, PROVIDES AS FOLLOWS:

A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE HOSPITAL BENEFITS, PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER HE IS IN TRAINING UNDER SECTION 502, 503, 504, OR 505 OF THIS TITLE---

(1) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

THE FIRST TWO QUESTIONS ARE AS FOLLOWS:

1. UNDER THE PROVISIONS OF SECTION 318 OF TITLE 32, UNITED STATES CODE, IS A MEMBER OF THE NATIONAL GUARD, ORDERED TO ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING WHO IS INJURED IN LINE OF DUTY, ENTITLED TO PAY AND ALLOWANCES BEYOND THE PERIOD OF HOSPITALIZATION AND TREATMENT:

(A) FOR SUCH TIME AS HE IS INCAPACITATED FROM DISCHARGING THE RESPONSIBILITIES OF HIS CIVILIAN EMPLOYMENT, AS CERTIFIED BY A CIVILIAN PHYSICIAN, ALTHOUGH RELEASED BY A SERVICE MEDICAL BOARD AS CURED, NOT INCAPACITATED, AND CAPABLE OF PERFORMING FULL MILITARY DUTY

(B) IF HE IS TOTALLY INCAPACITATED FROM RESUMING THE DUTIES OF HIS CIVILIAN PURSUITS TEMPORARILY, BUT IS CONSIDERED ABLE TO PERFORM FULL MILITARY DUTY

(C) IF HE IS TOTALLY AND PERMANENTLY INCAPACITATED FROM PERFORMING HIS USUAL CIVILIAN DUTIES BUT IS CAPABLE OF PERFORMING FULL MILITARY DUTY

(D) IF HE WAS UNEMPLOYED IMMEDIATELY PRIOR TO INJURY, IS CAPABLE OF RETURNING TO MILITARY DUTY BUT IS NOT CAPABLE OF IMMEDIATELY OBTAINING CIVILIAN EMPLOYMENT DUE TO THE INJURY?

2. IF ANY OR ALL OF THE ABOVE QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE, FOR HOW LONG ARE PAY AND ALLOWANCES PAYABLE IN EACH CASE?

SECTIONS 1 AND 2 OF THE ACT OF JUNE 20, 1949, 34 U.S.C. 855C-1 AND 10 U.S.C. 456, RESPECTIVELY, CONTAINED PROVISIONS APPLICABLE TO RESERVE PERSONNEL OF THE ARMY, AIR FORCE, AND NAVY, WHICH WERE SIMILAR TO THOSE OF SECTION 3 AND THE CONCLUSIONS REACHED AS TO THE LENGTH OF TIME ACTIVE-DUTY PAY AND ALLOWANCES ARE PAYABLE UNDER SECTIONS 1 AND 2 AFTER INJURY IN LINE OF DUTY, ARE APPLICABLE TO MEMBERS OF THE NATIONAL GUARD UNDER SECTION 3. 34 COMP. GEN. 275. CONCERNING THE INTENT OF THE CONGRESS WITH RESPECT TO SUCH LEGISLATION, IT IS STATED ON PAGE 4, REPORT NO. 95 OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, 81ST CONGRESS, ST SESSION, TO ACCOMPANY S. 213, 81ST CONGRESS (LATER ENACTED INTO LAW AS THE ACT OF JUNE 20, 1949), THAT:

IT IS INTENDED THAT PERSONS WHO ARE COVERED BY THE BENEFITS OF THIS BILL WILL BE KEPT IN A PAY STATUS UNTIL THEIR HOSPITALIZATION IS COMPLETED AND THEIR CASE FINALLY SETTLED. * * *

AMENDMENTS 2, 3, 10, AND 11 WERE MADE TO PREVENT A STRICT INTERPRETATION OF THE WORD ,COMPENSATION" FROM EXCLUDING DEATH BENEFITS OR PAYING A MAN WHILE HOSPITALIZED OR AWAITING FINAL DECISION OF HIS CASE. A REGULAR IS PAID WHILE IN THE HOSPITAL AND THE COMMITTEE INTENDS RESERVES, INJURED WHILE SERVING EITHER WITH OR WITHOUT PAY, TO BE TREATED IN EXACTLY THE SAME MANNER. * * * ( ITALICS SUPPLIED.)

THE LIMITS OF A NATIONAL GUARD MEMBER'S RIGHT TO PAY AND ALLOWANCES UNDER 32 U.S.C. 318 ARE FIXED BY THE RIGHTS OF A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE. IF THE INJURY IS SUCH AS MIGHT RESULT IN RETIREMENT FOR PHYSICAL DISABILITY AND DISABILITY PROCEEDINGS ARE INITIATED, A RIGHT TO PAY AND ALLOWANCES CONTINUES WHILE AWAITING ACTION ON SUCH PROCEEDINGS. IF HOSPITALIZATION ONLY IS REQUIRED IN CONNECTION WITH A TEMPORARY DISABILITY, A RESERVIST OR A MEMBER OF THE NATIONAL GUARD, LIKE A MEMBER OF THE REGULAR ARMY OR REGULAR AIR FORCE, RECEIVES PAY DURING THE PERIOD OF HOSPITALIZATION. APPLICATION OF THE CITED PROVISIONS OF LAW IS MORE DIFFICULT FOR THE PERIOD AFTER COMPLETION OF HOSPITALIZATION AND PRIOR TO RETURN TO CIVILIAN EMPLOYMENT DURING WHICH SOME DISABILITY EXISTS, SINCE THERE IS NO COMPARABLE SITUATION APPLICABLE TO MEMBERS OF THE REGULAR SERVICES, ACTIVE-DUTY PAY AND ALLOWANCES BEING PAYABLE TO THEM AT ALL TIMES UP TO THE TIME OF RETIREMENT OR OTHER SEPARATION. IT HAS BEEN HELD THAT A RIGHT TO ACTIVE-DUTY PAY AND ALLOWANCES ACCRUES UNDER THE 1949 ACT AS LONG AS ELIGIBLE PERSONNEL CONTINUE TO BE DISABLED FOR "NORMAL" PURSUITS BY THE DISABILITY FOR WHICH ORIGINALLY HOSPITALIZED. 33 COMP. GEN. 411, 415. IT HAS BEEN ASSUMED IN SUCH CASES THAT A DISABILITY PREVENTING RESUMPTION OF NORMAL PURSUITS WOULD LIKEWISE DISABLE THE PERSON CONCERNED FROM PERFORMING MILITARY DUTIES. HOWEVER, IF UPON TERMINATION OF HOSPITALIZATION, IT IS DETERMINED THAT A MEMBER OF THE NATIONAL GUARD IS ABLE TO PERFORM HIS MILITARY DUTY, SUCH FINDING WOULD APPEAR TO CONSTITUTE A FINAL DECISION IN HIS CASE. HIS RIGHT TO CONTINUATION OF PAY AND ALLOWANCES IS TERMINATED AT THAT TIME, SUCH RIGHT APPARENTLY WOULD CORRESPOND AS NEARLY AS IT COULD BE MADE TO CORRESPOND WITH THE RIGHT OF A MEMBER OF THE REGULAR SERVICE WHO WOULD BE PERFORMING MILITARY DUTY FOR HIS PAY AND ALLOWANCES AFTER A DEGREE OF RECOVERY FROM HIS INJURY WHICH WOULD JUSTIFY A DETERMINATION OF HIS FITNESS FOR MILITARY DUTY. ACCORDINGLY, QUESTIONS 1 (A), 1 (B), 1 (C), AND 1 (D) ARE ANSWERED IN THE NEGATIVE AND NO ANSWER IS REQUIRED TO QUESTION 2.

QUESTION 3 IS AS FOLLOWS:

3. WHEN A MEMBER OF A RESERVE COMPONENT, INJURED IN LINE OF DUTY DURING A PERIOD OF ACTIVE DUTY FOR TRAINING ON INACTIVE DUTY FOR TRAINING IS ENTITLED TO PAY AND ALLOWANCES PURSUANT TO THE PROVISIONS OF 32 U.S.C. 318, WHO MAY BE CONSIDERED THE "PROPER AUTHORITY" (AS USED IN 34 COMP. GEN. 275), FOR CERTIFYING THE DISABILITY---

(A) A NONSERVICE PHYSICIAN (1) IN INSTANCES OF EMERGENCY, (2) FOR RESUMING THE DUTIES OF HIS CIVILIAN OCCUPATION; OR

(B) A SERVICE MEDICAL OFFICER, IN ALL CASES?

IT WAS STATED IN 34 COMP. GEN. 275 THAT A RIGHT TO PAY AND ALLOWANCES UNDER SECTIONS 1 AND 2 OF THE 1949 ACT ACCRUES TO THE MEMBER CONCERNED AFTER HE IS DISCHARGED FROM THE HOSPITAL AND UNTIL THE PROPER AUTHORITY DETERMINES THAT HE IS ABLE TO RESUME HIS CIVILIAN PURSUITS. AS INDICATED ABOVE, A RIGHT TO PAY AND ALLOWANCES UNDER 32 U.S.C. 318 IS BASED ON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY AND THE INCURRENCE OF SUCH PHYSICAL DISABILITY IN LINE OF DUTY. A SERVICE PHYSICIAN GENERALLY WOULD BE THE PROPER AUTHORITY TO DETERMINE ABILITY TO PERFORM MILITARY DUTY. NONSERVICE PHYSICIAN, OF COURSE, MUST TREAT A MEMBER OF THE NATIONAL GUARD FOR A SERVICE-CONNECTED INJURY IN CIRCUMSTANCES WHERE A SERVICE PHYSICIAN IS NOT AVAILABLE. HOWEVER, IT IS THE DISPOSITION OF A MEMBER'S CASE BY THE MILITARY AUTHORITIES WHICH FIXES HIS RIGHT TO PAY AND ALLOWANCES AFTER SUFFERING A DISABILITY FROM AN INJURY INCURRED IN LINE OF DUTY AND SUCH DISABILITY, INVOLVING AS IT DOES HIS PHYSICAL ABILITY TO PERFORM MILITARY DUTY, GENERALLY SHOULD BE BASED ON A DETERMINATION OF HIS PHYSICAL CONDITION BY A SERVICE MEDICAL OFFICER. WHILE THERE MAY BE CIRCUMSTANCES IN WHICH A NONSERVICE PHYSICIAN'S CERTIFICATE OF A MEMBER'S PHYSICAL CONDITION WOULD BE ACCEPTABLE TO ESTABLISH THE MEMBER'S INABILITY TO PERFORM MILITARY DUTY, IT IS OUR VIEW THAT THE PRACTICE OF ACCEPTING SUCH EVIDENCE, IN LIEU OF CERTIFICATION BY A SERVICE MEDICAL OFFICER, SHOULD BE DISCOURAGED AND THAT USE OF SUCH EVIDENCE SHOULD BE CLOSELY CIRCUMSCRIBED BY REGULATION. IN ANY EVENT, IF A MEMBER IS INJURED IN LINE OF DUTY AND THERE HAS BEEN NO DETERMINATION BY A SERVICE MEDICAL OFFICER THAT HE HAS REGAINED HIS CAPABILITY TO PERFORM MILITARY DUTY, A DETERMINATION BY A NONSERVICE PHYSICIAN THAT HE IS ABLE TO RESUME NORMAL CIVILIAN PURSUITS WOULD SERVE AS A PROPER BASIS FOR DISCONTINUING FURTHER PAYMENTS OF PAY AND ALLOWANCES TO THE MEMBER.