B-152361, OCTOBER 11, 1963, 43 COMP. GEN. 380

B-152361, OCTOBER 11, 1963, 43 COMP. GEN. 380

INSANE AND INCOMPETENTS - MILITARY PERSONNEL - PAY, ETC., BENEFITS - AFTER EXPIRATION OF ENLISTMENT AN ENLISTED RESERVIST WHO SUBSEQUENT TO THE SCHEDULED TERMINATION OF HIS ACTIVE DUTY TOUR UNDER 10 U.S.C. 263 NOTE WAS DECLARED MENTALLY INCOMPETENT DUE TO AN ILLNESS THAT EXISTED PRIOR TO THE TOUR OF DUTY AND RETAINED AS A HOSPITAL PATIENT UNTIL HONORABLY DISCHARGED FOR PHYSICAL DISABILITY WITHOUT SEVERANCE PAY IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES OR LEAVE CREDIT FOR ANY PERIOD AFTER THE TERMINATION OF HIS ACTIVE DUTY IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE, FOR A PERSON SUFFERING FROM MENTAL ILLNESS NOT INCURRED IN LINE OF DUTY ACCRUES NO GREATER RIGHT TO PAY AND ALLOWANCES THAN HE WOULD ACCRUE IF HE WERE SUFFERING FROM A PHYSICAL ILLNESS NOT INCURRED IN LINE OF DUTY, AND THE GENERAL RULE THAT PAY AND ALLOWANCES DO NOT ACCRUE TO AN ENLISTED MAN HELD BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT OR SCHEDULED TOUR OF DUTY UNLESS SUCH HOLDING IS FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST APPLIES.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, OCTOBER 11, 1963:

REFERENCE IS MADE TO YOUR REQUEST, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NUMBER A-721, FOR AN ADVANCE DECISION ON TWO VOUCHERS SUBMITTED THEREWITH IN FAVOR OF PAUL M. BURGESS, FORMER SPECIALIST-4, UNITED STATES ARMY RESERVE, COVERING ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 1, 1962, TO FEBRUARY 14, 1963, WHILE RECEIVING HOSPITAL TREATMENT FOLLOWING THE SCHEDULED TERMINATION DATE OF HIS ACTIVE DUTY TOUR. THE DOUBT AS TO ENTITLEMENT AROSE BY REASON OF THE FACT THAT THE DISABILITY SUFFERED, MENTAL ILLNESS, WAS NOT INCURRED IN LINE OF DUTY.

SPECIALIST BURGESS WAS SERVING UNDER ORDERS ISSUED PURSUANT TO THE ACT OF AUGUST 1, 1961, PUBLIC LAW 87-117, 75 STAT. 242, 10 U.S.C. 263 NOTE, WHICH REQUIRED HIM TO PERFORM 12 MONTHS OF ACTIVE DUTY, BEGINNING OCTOBER 14, 1961. HE WAS ABSENT OVER LEAVE 2 DAYS WHICH EXTENDED HIS SCHEDULED TOUR OF DUTY TO OCTOBER 15, 1962. ON JUNE 8, 1962, HE WAS ADMITTED TO THE VALLEY FORGE GENERAL HOSPITAL WHERE, IT IS INDICATED, HE REMAINED AS A PATIENT UNTIL HE WAS HONORABLY DISCHARGED ON FEBRUARY 14, 1963, FOR PHYSICAL DISABILITY WITHOUT SEVERANCE PAY. A MEDICAL BOARD DECLARED HIM MENTALLY INCOMPETENT ON OCTOBER 25, 1962, AND DETERMINED THAT THE ILLNESS EXISTED PRIOR TO HIS THEN CURRENT TOUR OF ACTIVE DUTY AND WAS NOT INCURRED IN LINE OF DUTY. REGULAR PAYMENTS OF PAY AND ALLOWANCES WERE MADE TO HIM THROUGH OCTOBER 31, 1962, ALTHOUGH HIS SCHEDULED TOUR OF ACTIVE DUTY HAD EXPIRED PRIOR TO THE DECLARATION OF INCOMPETENCY ON OCTOBER 25, 1962.

AT THE TIME MR. BURGESS' TOUR OF ACTIVE DUTY TERMINATED A RESERVIST WAS ENTITLED TO CONTINUE RECEIVING BASIC PAY AND ALLOWANCES DURING THE PERIOD OF HIS HOSPITALIZATION OR REHOSPITALIZATION, LIMITED TO A TOTAL OF NOT MORE THAN 6 MONTHS AFTER THE END OF HIS PRESCRIBED TOUR OF DUTY, IF HE WAS INJURED OR CONTRACTED A DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE. 10 U.S.C. 3722. UNDER ANOTHER PROVISION OF LAW ALSO IN EFFECT AT THAT TIME, A NON-REGULAR MEMBER OF THE ARMY WAS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY IF HE WAS DISABLED IN LINE OF DUTY FROM A DISEASE WHILE SERVING ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS. 37 U.S.C. 204 (G). SINCE MR. BURGESS' ILLNESS WAS NOT INCURRED IN LINE OF DUTY, HE IS NOT ENTITLED TO THE BENEFITS OF EITHER OF THOSE PROVISIONS.

OUR DECISION OF MAY 4, 1960, 39 COMP. GEN. 742, DEALT WITH THE RIGHTS OF INDIVIDUALS WHO PERFORMED MILITARY SERVICE ALTHOUGH THEY WERE MENTALLY INCOMPETENT PRIOR TO ENLISTMENT OR INDUCTION. THE ANSWER TO QUESTION 7 BEGINNING ON PAGE 747 WAS TO THE EFFECT THAT AN INDIVIDUAL WHO HAD NOT BEEN JUDICIALLY DECLARED INCOMPETENT BUT AFTER ENTRANCE INTO SERVICE WAS FOUND BY QUALIFIED MEDICAL DOCTORS OF THE SERVICE CONCERNED TO HAVE BEEN MENTALLY INCOMPETENT ON THE DATE OF ENLISTMENT OR INDUCTION WOULD BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES "UNTIL THE DATE OF HIS RELEASE FROM MILITARY CONTROL.' HOWEVER, SINCE THE QUESTION OF RETENTION OF SUCH AN INDIVIDUAL BEYOND THE DATE OF TERMINATION OF HIS ENLISTMENT OR SCHEDULED TOUR OF ACTIVE DUTY WAS NOT INCLUDED IN THE SUBMISSION THERE CONSIDERED, THE ANSWER GIVEN SHOULD NOT BE INTERPRETED AS AUTHORITY TO PAY ACTIVE DUTY PAY AND ALLOWANCES TO A MENTALLY INCOMPETENT PERSON AFTER THE DATE OF TERMINATION OF HIS ENLISTMENT OR SCHEDULED TOUR OF ACTIVE DUTY. THE GENERAL RULE IN CASES INVOLVING RETENTION BEYOND THE PERIOD OF OBLIGATED SERVICE IS THAT PAY AND ALLOWANCES DO NOT ACCRUE TO AN ENLISTED MAN HELD BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT OR SCHEDULED TOUR OF ACTIVE DUTY UNLESS SUCH HOLDING IS FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST. SEE 35 COMP. GEN. 110; ID. 366.

IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE, A PERSON SUFFERING FROM MENTAL ILLNESS NOT INCURRED IN LINE OF DUTY ACCRUES NO GREATER RIGHT TO PAY AND ALLOWANCES BY REASON OF THE TYPE OF ILLNESS THAN HE WOULD ACCRUE IF HE WERE SUFFERING FROM A PHYSICAL ILLNESS NOT INCURRED IN LINE OF DUTY. THEREFORE, MR. BURGESS IS ENTITLED TO NO ACTIVE DUTY PAY AND ALLOWANCES OR LEAVE CREDIT FOR ANY PERIOD AFTER OCTOBER 15,1962. HE IS ENTITLED TO ANY PROPER CREDITS OR ADJUSTMENTS APPLICABLE TO THE PERIOD ENDING ON THAT DATE PLUS TRAVEL ALLOWANCE ON DISCHARGE AND PAYMENT FOR UNUSED LEAVE ACCRUED THROUGH OCTOBER 15, 1962, MINUS PROPER CHECK AGES AGAINST HIS ACCOUNT. THE VOUCHERS ARE NOT RETURNED SINCE PAYMENT THEREON IS NOT AUTHORIZED.