B-148324, OCTOBER 25, 1963, 43 COMP. GEN. 412

B-148324, OCTOBER 25, 1963, 43 COMP. GEN. 412

MILITARY PERSONNEL - RESERVISTS - DEATH OR INJURY - INACTIVE DUTY TRAINING - INJURY WITHIN SCOPE OF DUTIES. MILITARY PERSONNEL - RESERVISTS - DEATH OR INJURY - INACTIVE DUTY TRAINING - INJURY WITHIN SCOPE OF DUTIES. MILITARY PERSONNEL - RESERVISTS - DEATH OR INJURY - INACTIVE DUTY TRAINING - INJURED WHILE TRAVELING IN VIEW OF THE FACT THAT THE COURT REFRAINED FROM FORMULATING A RULE FOR GENERAL APPLICATION IN MEISTER V. UNITED STATES, CT.CL.NO. 54-62, DECIDED JULY 12, 1963, IN WHICH IT HELD THAT A RESERVIST ORDERED TO PERFORM INACTIVE DUTY AT A TRAINING CENTER WHO WHILE PROCEEDING TO THE DRILL HALL TO REPORT FOR INSPECTION AND DUTY SLIPPED AND FRACTURED HIS ANKLE WAS "WITHIN THE SCOPE OF HIS ASSIGNED DUTIES WHEN HE SLIPPED" AND, THEREFORE, WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A), AND ENTITLED TO THE DISABILITY BENEFITS PRESCRIBED BY THAT SECTION, THE MEISTER CASE SHOULD NOT BE USED AS A PRECEDENT FOR FAVORABLE ADMINISTRATIVE ACTION IN SIMILAR CASES, AND ANY CLAIM INVOLVING FACTS WHICH MIGHT BE VIEWED AS COMING WITHIN THE PURVIEW OF THE MEISTER CASE SHOULD BE FORWARDED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT. WHEN A RESERVIST ORDERED TO INACTIVE DUTY TRAINING SUFFERS A PHYSICAL INJURY DURING A SCHEDULED LUNCH BREAK, OR WHILE DURING A LULL IN HIS DUTIES HE ENGAGES IN SOME INDEPENDENT ACTIVITY, HE IS DEEMED TO HAVE RECEIVED THE INJURY WHILE ENGAGED IN THE INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A), AND, THEREFORE, IS ENTITLED TO THE DISABILITY BENEFITS PRESCRIBED BY THAT SECTION, THE RESERVIST HAVING BEEN ORDERED TO PERFORM INACTIVE DUTY TRAINING IS EMPLOYED FROM THE TIME HE FIRST MUSTERS IN FOR THAT DUTY UNTIL THE END OF THE ORDERED PERIOD OF SUCH DUTY FOR THAT DAY. WHERE FOR THE MUTUAL CONVENIENCE OF A NAVAL RESERVIST AND THE GOVERNMENT, HE IS PERMITTED TO UTILIZE GOVERNMENT TRANSPORTATION AS A PERMISSIVE TRAVELER TO AND FROM A TRAINING CENTER BEFORE OR AFTER A PERIOD OF INACTIVE DUTY TRAINING, THE RESERVIST WHILE SO TRAVELING IS NOT "EMPLOYED" IN INACTIVE DUTY TRAINING WITHIN THE MEANING OF 10 U.S.C. 6148 (A), PRESCRIBING DISABILITY AND DEATH BENEFITS, THE TRAVEL PURSUANT TO PARAGRAPH 6002 (2) OF THE JOINT TRAVEL REGULATIONS, WHETHER ACCOMPLISHED BY PRIVATE OR GOVERNMENT CONVEYANCE, NOT BEING PART OF THE INACTIVE DUTY TRAINING IS OUTSIDE THE CONTEMPLATION OF 10 U.S.C. 6148, AND THE RESERVIST, THEREFORE, IS NOT ENTITLED TO THE DISABILITY BENEFITS PROVIDED BY SECTION 6148 (A), AND PERMISSION TO TRAVEL BY GOVERNMENT TRANSPORTATION TO THE DRILL STATION DURING A PART OF THE PERIOD ASSIGNED FOR THE PERFORMANCE OF THE DRILL WOULD NOT INCREASE THE RIGHTS OF THE RESERVIST.

TO THE SECRETARY OF THE NAVY, OCTOBER 25, 1963:

BY LETTER DATED SEPTEMBER 4, 1963, THE UNDER SECRETARY OF THE NAVY REQUESTED DECISION ON VARIOUS QUESTIONS CONCERNING THE EFFECT OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF MEISTER V. UNITED STATES, CT.CL.NO. 54-62, DECIDED JULY 12, 1963, ON THE APPLICATION OF 10 U.S.C. 6148 (A) TO CERTAIN CASES INVOLVING INJURIES SUFFERED BY MEMBERS OF THE UNITED STATES NAVAL RESERVE WHO HAVE BEEN ORDERED TO PERFORM INACTIVE DUTY TRAINING. THE REQUEST FOR DECISION WAS ASSIGNED NO. SS-N-720 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

MEISTER HAD BEEN ORDERED BY HIS EXECUTIVE OFFICER TO BE AT THE TRAINING CENTER NO LATER THAN :20 P.M., ON MARCH 8, 1961. AFTER HE HAD PARKED HIS CAR AT THE CURB, ENTERED THE TRAINING CENTER COMPOUND AND WHILE PROCEEDING TOWARD THE DRILL HALL TO REPORT FOR INSPECTION AND DUTY, HE SLIPPED AND FRACTURED HIS ANKLE. THE COURT HELD THAT THE PLAINTIFF WAS "WITHIN THE SCOPE OF HIS ASSIGNED DUTIES WHEN HE SLIPPED" AND THEREFORE HE WAS HELD TO BE WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A). DOUBT IS EXPRESSED AS TO THE SCOPE OF THE RULE ANNOUNCED IN THE MEISTER CASE AND IT IS STATED THAT GUIDELINES AS TO THE AUTHORIZED APPLICATION OF THE MEISTER RULE WOULD BE EXTREMELY HELPFUL. THE FOLLOWING FACTS OF TWO CASES ARE RECITED AS ILLUSTRATIVE OF THE TYPES OF CASES IN WHICH QUESTION HAS ARISEN AS TO THE APPLICABILITY OF 10 U.S.C. 6148 (A).

IN THE FIRST CASE, JOSEPH PATRICK VOLPE, SA, USNR-R, WAS ORDERED TO PERFORM INACTIVE DUTY TRAINING AT THE UNITED STATES NAVAL RESERVE TRAINING CENTER, MCKEESPORT, PENNSYLVANIA, DURING THE WEEK END OF APRIL 20-21, 1963. ON APRIL 21, 1963, HE PARTICIPATED IN THE SCHEDULED MORNING DRILL WHICH WAS FROM 8 A.M. TO 12 NOON. A LUNCH BREAK WAS SCHEDULED FROM 12 TO 1:15 P.M., AND THE AFTERNOON DRILL SESSION WAS SCHEDULED TO EXTEND FROM 1:15 P.M., UNTIL 4:30 P.M. AT APPROXIMATELY 12:50 P.M., DURING THE SCHEDULED LUNCH BREAK, HE FELL WHILE PLAYING BASKETBALL ON THE GROUNDS OF THE TRAINING CENTER AND SPRAINED HIS HAND.

IN THE SECOND CASE, CHARLES A. SCOTT, AME3, USNR-R, WAS ORDERED TO PERFORM 2 DAYS OF INACTIVE DUTY TRAINING OF FEBRUARY 16 AND 17, 1963, AT THE UNITED STATES NAVAL AIR STATION, ALAMEDA, CALIFORNIA. ON FEBRUARY 16, 1963, HE REPORTED FOR TRAINING AT 8 A.M. FROM APPROXIMATELY 1:30 P.M., UNTIL 2 P.M., HE PARTICIPATED WITH HIS SQUADRON IN LAUNCHING A SCHEDULED ANTI-SUBMARINE WARFARE HELICOPTER FLIGHT. UPON COMPLETION OF THE LAUNCHING, SCOTT AND THREE OTHER MEN FROM HIS SQUADRON PROCEEDED TO THE STATION'S GYMNASIUM TO PLAY HANDBALL WHILE AWAITING THE RETURN OF THE FLIGHT SQUADRON. AT APPROXIMATELY 2:30 P.M., WHILE PLAYING HANDBALL, SCOTT SUSTAINED A FRACTURE OF HIS RIGHT THUMB.

THE SUBMISSION POSES FOR DECISION THE FOLLOWING QUESTIONS:

(A) MAY A RESERVIST WHO HAS BEEN ORDERED TO PERFORM INACTIVE DUTY TRAINING AND WHO SUSTAINS AN INJURY AFTER HE HAS REACHED HIS TRAINING CENTER BUT BEFORE HE HAS ACTUALLY MUSTERED FOR DUTY, AS ILLUSTRATED BY THE MEISTER CASE, BE DEEMED TO HAVE RECEIVED HIS INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A/?

(B) MAY A RESERVIST WHO HAS REPORTED TO HIS TRAINING CENTER FOR INACTIVE DUTY (AND HAS ACTUALLY MUSTERED) AND INCURS AN INJURY DURING A SCHEDULED BREAK IN TRAINING DRILLS, AS ILLUSTRATED BY THE VOLPE CASE, HE DEEMED TO HAVE RECEIVED HIS INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A/?

(C) MAY A RESERVIST WHO HAS REPORTED TO HIS TRAINING CENTER FOR INACTIVE DUTY AND SUSTAINS AN INJURY DURING THE PERIOD OF A SCHEDULED TRAINING DRILL BUT AS THE DIRECT RESULT OF SOME INDEPENDENT ACTIVITY THAT IS NOT PART OF HIS TRAINING DUTIES, AS ILLUSTRATED BY THE SCOTT CASE, BE DEEMED TO HAVE RECEIVED HIS INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A/?

(D) IF THE ANSWER TO QUESTION (A), ABOVE, IS IN THE AFFIRMATIVE, WOULD THE ANSWER BE THE SAME IN A CASE CONTAINING FACTUAL ELEMENTS SUCH AS THOSE IN THE CASE OF THE U.S. MARINE CORPS SERGEANT DISCUSSED IN 38 COMP. GEN. 841?

(E) MAY A RESERVIST WHO SUFFERS A DISABLING INJURY WHILE BEING TRANSPORTED (NO REIMBURSEMENT INVOLVED) BY GOVERNMENT AIR, LAND OR WATER TRANSPORTATION INCIDENT TO THE PERFORMANCE OF ORDERED OR AUTHORIZED INACTIVE DUTY TRAINING, TO OR FROM SUCH DUTY, PRIOR TO MUSTER OR FOLLOWING THE TERMINATION OF SUCH PERIOD OF DUTY, BE DEEMED TO HAVE RECEIVED HIS INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A/?

(F) IF THE ANSWER TO QUESTION (E), ABOVE, IS IN THE NEGATIVE, WOULD THE ANSWER BE THE SAME IF THE TRAVEL WAS AUTHORIZED TO BE PERFORMED AND WAS PERFORMED DURING THE PERIOD OF TIME ASSIGNED FOR THE PERFORMANCE OF THE DRILL?

(G) IF THE ANSWER TO QUESTION (E), ABOVE, IS IN THE AFFIRMATIVE, WOULD THE ANSWER BE THE SAME IF THE RESERVIST WERE TO INCUR A DISABLING INJURY WHILE PERFORMING TRAVEL TO OR FROM THE PLACE OF PERFORMANCE OF INACTIVE DUTY TRAINING BY A MEANS OTHER THAN GOVERNMENT AIR, LAND OR WATER TRANSPORTATION, WITH THE EXPRESS AUTHORIZATION OF HIS COMMANDING OFFICER?

BEFORE ANSWERING THE SPECIFIC QUESTIONS, WE CONSIDER IT NECESSARY TO SAY THAT WE DO NOT AGREE WITH THE COURT'S CONCLUSION IN THE MEISTER CASE. THE DECISION IN THAT CASE IS INCONSISTENT WITH OUR VIEW OF SECTION 1 OF THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 201 (NOW 10 U.S.C. 6148 (A) ( AS EXPRESSED IN 38 COMP. GEN. 841, THAT CONGRESS INTENDED TO PROVIDE COVERAGE FOR INJURIES SUFFERED BY INACTIVE DUTY TRAINEES ONLY WHILE ACTUALLY PERFORMING INACTIVE DUTY TRAINING. THE COURT STATED THAT IT WOULD NOT ATTEMPT TO "LAY DOWN A RULE OF GENERAL APPLICATION" AND IT IS CLEAR THAT THE COURT LIMITED ITS DECISION TO THE PARTICULAR FACTS INVOLVED IN THAT CASE. THE COURT DID NOT INDICATE THE DEGREE OF PHYSICAL PROXIMITY "BETWEEN THE EMPLOYEE AND EMPLOYER" REQUIRED IN SUCH CASES AND IT IS NOT CLEAR FROM THE COURT'S OPINION WHAT ACTION IT MIGHT TAKE IN A SIMILAR CASE IN WHICH SOME OF THE FACTS PRESENT IN THE MEISTER CASE ARE MISSING. WHILE WE DID NOT RECOMMEND FURTHER ACTION IN THE MEISTER CASE TO THE DEPARTMENT OF JUSTICE SINCE, AS A PRACTICAL MATTER, WE DOUBTED THAT ANY USEFUL PURPOSE WOULD BE SERVED BY FURTHER PROCEEDINGS, IT IS OUR VIEW THAT A SIMILAR CASE BASED ON FACTS A LITTLE MORE FAVORABLE TO THE GOVERNMENT SHOULD BE VIGOROUSLY DEFENDED.

IN VIEW OF THE FACT THAT THE COURT REFRAINED FROM FORMULATING A RULE FOR GENERAL APPLICATION IN THE MEISTER CASE, IT SHOULD NOT BE USED AS A PRECEDENT FOR FAVORABLE ADMINISTRATIVE ACTION IN ANY SIMILAR CASE. ANY CLAIM INVOLVING FACTS WHICH MIGHT BE VIEWED AS COMING WITHIN THE PURVIEW OF THAT CASE SHOULD BE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT. QUESTION (A) IS ANSWERED ACCORDINGLY AND QUESTION (D) REQUIRES NO ANSWER.

WHEN A RESERVIST IS ORDERED TO INACTIVE DUTY TRAINING IN SITUATIONS SIMILAR TO THE VOLPE AND SCOTT CASES, THE PERIOD OF TRAINING EXTENDS FROM THE TIME THE MAN IS FIRST MUSTERED IN UNTIL THE END OF HIS SCHEDULED INACTIVE DUTY TRAINING ON THAT DAY. IT CANNOT BE SAID THAT DURING A SCHEDULED LUNCH BREAK (VOLPE CASE) OR A TIME WHEN NO ACTUAL DUTY IS BEING PERFORMED DURING A DRILL (SCOTT CASE) THE MAN REVERTS TO HIS NORMAL CIVILIAN STATUS SO AS TO BE OUTSIDE THE PROTECTION OF 10 U.S.C. 6148 (A) DURING THOSE TIMES. IN NEITHER OF THE CASES DESCRIBED HAD THE MEN BEEN RELEASED FROM MILITARY CONTROL AT THE TIME THE INJURIES WERE SUSTAINED. WHILE IT MAY NOT BE CONCLUDED THAT A RESERVIST IS EMPLOYED ON INACTIVE DUTY FOR THE ENTIRE DAY ON WHICH A DRILL OR DRILLS ARE PERFORMED, IT IS OUR VIEW THAT, WHEN A RESERVIST IS ORDERED TO PERFORM INACTIVE DUTY TRAINING, HE IS SO EMPLOYED FROM THE TIME HE FIST MUSTERS IN FOR THAT DUTY UNTIL THE END OF THE ORDERED PERIOD OF SUCH DUTY FOR THAT DAY. QUESTIONS (B) AND (C) ARE ANSWERED IN THE AFFIRMATIVE.

IT IS ASSUMED THAT QUESTIONS (E) THROUGH (G) ARE LIMITED TO SITUATIONS WHICH MAY ARISE IN CONNECTION WITH DRILLS OR OTHER SCHEDULED INACTIVE DUTY TRAINING AT THE MEMBER'S RESERVE COMPONENT UNIT HEADQUARTERS. PARAGRAPH 6002 (2) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER IS NOT ENTITLED TO TRAVEL OR TRANSPORTATION ALLOWANCES FOR ANY INACTIVE DUTY TRAINING AT THE CITY OR TOWN IN WHICH THE HEADQUARTERS OF HIS RESERVE COMPONENT UNIT IS LOCATED, INCLUDING TRAVEL BETWEEN HIS HOME AND THE HEADQUARTERS OF HIS RESERVE UNIT TOURS OF INACTIVE DUTY TRAINING ARE FOR SCHEDULED PERIODS OF TIME AND, WHERE SUCH DUTY IS TO BE PERFORMED AT THE HEADQUARTERS OF THE MEMBER'S RESERVE UNIT, DO NOT INCLUDE TRAVEL TO AND FROM HIS HOME AND HEADQUARTERS. SUCH TRAVEL, NO MATTER WHETHER IT IS ACCOMPLISHED BY PRIVATE OR GOVERNMENT CONVEYANCE, IS NOT A PART OF THE INACTIVE DUTY TRAINING AND IS OUTSIDE THE CONTEMPLATION OF 10 U.S.C. 6148. SEE IN THIS CONNECTION 38 U.S.C. 106 (D). IT IS OUR VIEW THAT IF CONGRESS HAD INTENDED TO EXTEND THE BENEFITS OF 10 U.S.C. 6148 TO COVER A RESERVIST WHILE TRAVELING IN CONNECTION WITH INACTIVE DUTY TRAINING AT THE LOCATION OF HIS RESERVE COMPONENT UNIT HEADQUARTERS, IT DOUBTLESS WOULD HAVE USED APPROPRIATE LANGUAGE TO MAKE THAT INTENTION CLEAR. THUS, WHERE A RESERVIST WAS INJURED WHILE PROCEEDING TO HIS HOME 65 MILES AWAY AS THE DRIVER OF A GOVERNMENT TRUCK AFTER COMPLETION OF A PERIOD OF INACTIVE DUTY TRAINING, WE CONCLUDED THAT IN THE ABSENCE OF A SHOWING THAT SUCH TRUCK DRIVING ACTIVITY WAS A PRESCRIBED PART OF HIS INACTIVE DUTY TRAINING AS A RESERVIST, HE WAS NOT ENTITLED TO THE BENEFITS OF 10 U.S.C. 3687 AND 3721 WHICH CONTAIN LANGUAGE SIMILAR TO THAT FOUND IN 10 U.S.C. 6148. ACCORDINGLY, WHERE FOR THE MUTUAL CONVENIENCE OF THE MEMBER AND THE GOVERNMENT, A MEMBER IS PERMITTED TO UTILIZE GOVERNMENT TRANSPORTATION AS A PERMISSIVE PASSENGER IN TRAVELING TO OR FROM HIS TRAINING CENTER BEFORE OR AFTER A PERIOD OF INACTIVE DUTY TRAINING, HE IS NOT ,EMPLOYED" IN INACTIVE DUTY TRAINING WITHIN THE MEANING OF 10 U.S.C. 6148 (A) WHILE SO TRAVELING. QUESTION (E) IS ANSWERED IN THE NEGATIVE AND QUESTION (G) REQUIRES NO ANSWER.

IT IS OUR VIEW THAT THE GRANTING OF PERMISSION TO TRAVEL BY GOVERNMENT TRANSPORTATION TO THE DRILL STATION DURING A PART OF THE PERIOD ASSIGNED FOR THE PERFORMANCE OF SUCH DRILL WOULD NOT INCREASE THE RIGHTS OF THE RESERVIST IN QUESTION (E) IN ANY WAY. SEE 32 COMP. GEN. 554, ANSWER TO QUESTION 1. ACCORDINGLY, QUESTION (F) IS ANSWERED IN THE AFFIRMATIVE.