B-156486, JUN. 4, 1965

B-156486, JUN. 4, 1965

TO MAJOR CHARLES B. HOLLIS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1965, REQUESTING RECONSIDERATION OF SETTLEMENT DATED DECEMBER 15, 1964, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD FROM JUNE 10 TO SEPTEMBER 8, 1963, BASED ON AN INJURY SUSTAINED MAY 27, 1963, WHILE PERFORMING ACTIVE DUTY FOR TRAINING.

BY ORDERS DATED MARCH 26, 1963, XXI UNITED STATES ARMY CORPS, INDIANTOWN GAP MILITARY RESERVATION, ANNVILLE, PENNSYLVANIA, YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 12 DAYS AND WERE ATTACHED TO FOREIGN SERVICE INSTITUTE, DEPARTMENT OF STATE, WASHINGTON, D.C., FOR REGIONAL AREA STUDIES, THE REPORTING DATE BEING MAY 27, 1963.

THE RECORD INDICATES THAT ON MAY 27, 1963, YOU SLIPPED AND FELL ON THE STAIRCASE IN THE FOREIGN INSTITUTE BUILDING, RESULTING IN YOUR HOSPITALIZATION AT THE WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C., ON JUNE 2, 1963, FOR INJURY TO YOUR RIGHT EYE. AT THAT TIME, YOU EXPRESSED YOUR DESIRE TO GO TO THE JOHNS HOPKINS HOSPITAL, BALTIMORE, MARYLAND, FOR TREATMENT AND OPERATION BY A PRIVATE SURGEON AND ON JUNE 9, 1963, YOU WENT TO THAT HOSPITAL. WHILE YOU WERE AT WALTER REED HOSPITAL YOU WERE ADVISED THAT THE HOSPITAL HAD FACILITIES FOR THE SURGERY INDICATED AND WOULD NOT ASSUME ANY FINANCIAL OBLIGATIONS UPON YOUR TRANSFER TO JOHNS HOPKINS HOSPITAL. YOU WERE PAID PAY AND ALLOWANCES FOR THE PERIOD FROM MAY 27 TO JUNE 9, 1963, THE DATE OF DISCHARGE FROM THE WALTER REED HOSPITAL.

IN YOUR LETTER OF APRIL 29, 1964, YOU STATED THAT YOU WERE ADVISED AT THE TIME YOU LEFT WALTER REED HOSPITAL THAT YOUR DISABILITY WOULD BE RECORDED AS "IN LINE OF DUTY.' YOU STATED FURTHER THAT YOU WERE ADMITTED AT JOHNS HOPKINS HOSPITAL ON JUNE 9, UNDERWENT AN OPERATION ON JUNE 11, AND REMAINED AT THAT HOSPITAL UNTIL JULY 7, 1963, AT WHICH TIME YOU RETURNED HOME TO RECUPERATE UNTIL SEPTEMBER 9, 1963, ON WHICH DATE YOU RETURNED TO YOUR WORK. YOU THEREFORE CLAIMED PAY AND ALLOWANCES FOR THE PERIOD FROM JUNE 10 TO SEPTEMBER 8, 1963.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 15, 1964, FOR THE REASON THAT ON JUNE 9, 1963, YOU REFUSED FURTHER CARE AT WALTER REED HOSPITAL, REFERENCE BEING MADE TO 10 U.S.C. 3687. IN YOUR LETTER OF MARCH 29, 1965, YOU SAY THAT YOUR CLAIM SHOULD BE CONSIDERED UNDER THE PROVISIONS OF 10 U.S.C. 3721 OR 3722, RATHER THAN UNDER 10 U.S.C. 3687, AND THAT UNDER 10 U.S.C. 3722 (B) (2), THE QUESTION PRESENTED IS WHETHER THE PHRASE "DURING THE PERIOD OF HIS HOSPITALIZATION," FOR WHICH A MEMBER IS ENTITLED TO PAY AND ALLOWANCES, CAN BE INTERPRETED TO MEAN HOSPITALIZATION AT A MILITARY HOSPITAL ONLY. YOU CITE THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 20, 1949, AS THE SOURCE STATUTE FOR 10 U.S.C. 3721 AND REFER TO A DECISION BY OUR OFFICE, B-148324, MAY 19, 1964 (43 COMP. GEN. 733), IN WHICH WE STATED THAT THE INTENT OF THE 1949 ACT WAS TO PLACE RESERVISTS COVERED BY THAT ACT IN A STATUS COMPARABLE TO THAT OF MEMBERS OF THE REGULAR SERVICE, WHO, WHEN THEY SUFFER DISABILITY IN LINE OF DUTY FROM INJURY, ARE AUTHORIZED TO CONTINUE IN RECEIPT OF THEIR PAY AND ALLOWANCES WHILE HOSPITALIZED AS A RESULT THEREOF. YOU ALSO REFER TO THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507, THE SOURCE STATUTE FOR 10 U.S.C. 3722, WHICH INDICATED THAT THE ACT WOULD AUTHORIZE THE CONTINUATION OF PAY AND ALLOWANCES OF MEMBERS OF THE ORGANIZED RESERVES DURING HOSPITALIZATION FOR A PERIOD NOT TO EXCEED 6 MONTHS AFTER EXPIRATION OF THE PERIOD FOR WHICH THE PERSON IS ORDERED TO ACTIVE DUTY. FOR THAT REASON, YOU EXPRESS THE BELIEF THAT A REGULAR OFFICER WOULD BE ENTITLED TO PAY AND ALLOWANCES WHILE TREATED AT A CIVILIAN HOSPITAL AT HIS OWN REQUEST AND THAT A RESERVE OFFICER WOULD BE ENTITLED TO SIMILAR BENEFITS. YOU THEREFORE CONTEND THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF HOSPITALIZATION AND TREATMENT IN A CIVILIAN HOSPITAL FOR AS LONG AS WAS NECESSARY TO COMPLETE THE TREATMENT. YOU ALSO REQUEST AN OPPORTUNITY TO APPEAR PERSONALLY TO CLARIFY OR ELABORATE ON YOUR LETTER BEFORE A DETERMINATION IS REACHED IN THE MATTER.

BY LETTER OF MAY 11, 1965, YOU FORWARDED A STATEMENT BY YOUR CIVILIAN DOCTOR, DATED MAY 7, 1965, REGARDING YOUR CONDITION AND A LETTER FROM THE CHIEF, OPHTHALMOLOGY SERVICE SECTION, WALTER REED GENERAL HOSPITAL, DATED DECEMBER 13, 1963. YOUR DOCTOR'S STATEMENT INDICATES THAT A RETINAL DETACHMENT OPERATION HAD BEEN PERFORMED ON YOUR RIGHT EYE AT THE JOHNS HOPKINS HOSPITAL, BALTIMORE, MARYLAND, ON JUNE 11, 1963. THE DOCTOR STATED FURTHER THAT HE HAD CHECKED THE PROGRESS OF YOUR RECOVERY FROM TIME TO TIME AND THAT ON SEPTEMBER 6, 1963, HE DETERMINED THAT YOU COULD RETURN TO YOUR CIVILIAN POSITION ON MONDAY, SEPTEMBER 9, 1963. HE STATED FURTHER THAT YOUR VISION IMPROVED THEREAFTER UNTIL EARLY IN DECEMBER, WHEN IT BECAME APPARENT THAT A CATARACT IN THE RIGHT EYE WAS PROGRESSING AND ON JANUARY 16, 1964, THE CATARACT WAS EXTRACTED. THE LETTER FROM THE CHIEF, OPHTHALMOLOGY SERVICE SECTION, WALTER REED GENERAL HOSPITAL DATED DECEMBER 13, 1963, STATED THAT SINCE YOU HAD A HISTORY OF BILATERAL RETINAL DETACHMENT YOU WERE NO LONGER FIT FOR MILITARY DUTY. IT STATED FURTHER THAT INASMUCH AS YOU HAD A CATARACT DEVELOPING IN YOUR EYE WHICH WAS TO BE OPERATED ON, YOU SHOULD NOT REPORT FOR YOUR PHYSICAL EXAMINATION UNTIL ALL YOUR EYE CARE WAS COMPLETED.

IN YOUR LETTER OF MARCH 29, 1965, YOU BASE YOUR ENTITLEMENT TO PAY AND ALLOWANCES FOR THE PERIOD OF YOUR CLAIM ON THE FACT THAT YOU WERE DISABLED DURING A PERIOD OF HOSPITALIZATION UNDER THE PROVISIONS OF 10 U.S.C. 3721 AND 3722, RATHER THAN THE ENTITLEMENT UNDER THE GENERAL PROVISIONS OF 10 U.S.C. 3687. YOU INDICATE FURTHER THAT UNDER THE PROVISIONS OF 10 U.S.C. 3722, YOU ARE ENTITLED TO PAY AND ALLOWANCES DURING HOSPITALIZATION FOR A PERIOD NOT TO EXCEED 6 MONTHS AFTER EXPIRATION OF THE PERIOD FOR WHICH YOU WERE ORDERED TO ACTIVE DUTY, AND YOU CLAIM THAT TREATMENT AT A CIVILIAN HOSPITAL IS ACCEPTABLE AS HOSPITALIZATION, SINCE A REGULAR OFFICER WOULD BE ENTITLED TO PAY AND ALLOWANCES WHILE BEING TREATED AT A CIVILIAN HOSPITAL AND A RESERVE OFFICER SHOULD BE ENTITLED TO SIMILAR BENEFITS. HOWEVER, THE RECORD INDICATES YOU WERE NOT IN A HOSPITAL, MILITARY OR CIVILIAN, FOR THE ENTIRE PERIOD OF YOUR CLAIM AND WE HELD IN 34 COMP. GEN. 275; ID. 533, THAT EXCEPT IN CASES INVOLVING CONTAGIOUS OR INFECTIOUS DISEASES, HOME TREATMENT IS NOT CONSIDERED TO BE HOSPITALIZATION OR REHOSPITALIZATION WITHIN THE MEANING AND INTENT OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507, FROM WHICH 10 U.S.C. 3722 WAS DERIVED, FOR THE PURPOSE OF CONTINUATION OF PAY AFTER TERMINATION OF AN ACTIVE DUTY STATUS. THEREFORE, IT WOULD APPEAR THAT THE PROVISIONS GOVERNING YOUR ENTITLEMENT ARE CONTAINED IN 10 U.S.C. 3687, COVERING HOSPITALIZATION AND IN 37 U.S.C. 402 (G), PERTAINING TO PAY AND ALLOWANCES FOR THE PERIOD OF YOUR CLAIM.

IN 43 COMP. GEN. 733 AT PAGE 736, WE RECOGNIZED THAT SECONDARY EVIDENCE OF THE DISABILITY STATUS OF AN INJURED RESERVIST HAD BEEN ACCEPTED IN THE PAST BECAUSE OF THE UNAVAILABILITY OF DIRECT SERVICE MEDICAL EVIDENCE, BUT STATED THAT THE STATUTE CONTEMPLATES THAT THE SERVICES WILL PROVIDE THE NECESSARY HOSPITAL AND MEDICAL CARE TO INJURED RESERVISTS AND MAKE THE REQUISITE DETERMINATIONS. WE HELD THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES WHILE THE MEMBER IS TEMPORARILY DISABLED BY AN INJURY INCURRED IN LINE OF DUTY, IS BASED UPON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUIT, AND THAT THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE EXERCISE OF A SOUND ADMINISTRATIVE JUDGMENT. WE SAID THAT IN EACH CASE, THE SERVICE CONCERNED SHOULD DETERMINE WHEN THE INJURED RESERVIST RECOVERS SUFFICIENTLY TO BE FIT TO PERFORM HIS NORMAL MILITARY DUTIES.

THE RECORD INDICATES THAT WITH THE EXCEPTION OF THE LETTER DATED DECEMBER 13, 1963, THERE APPARENTLY HAS BEEN NO SERVICE DETERMINATION MADE WITH RESPECT TO YOUR FITNESS FOR MILITARY DUTY. INASMUCH AS THAT LETTER APPEARS TO BE IN CONNECTION WITH THE REQUEST MADE DECEMBER 4, 1963, THAT YOU REPORT AS A MEMBER OF THE READY RESERVE FOR THE PHYSICAL EXAMINATION REQUIRED ONCE EVERY 4 YEARS, THE LETTER DOES NOT CONSTITUTE A SERVICE DETERMINATION WITH RESPECT TO YOUR FITNESS TO PERFORM MILITARY DUTIES DURING THE PERIOD COVERED BY YOUR CLAIM. FURTHERMORE, THE LETTER FROM YOUR CIVILIAN DOCTOR, DATED MAY 7, 1965, MAY NOT BE CONSIDERED AS A DETERMINATION OF YOUR FITNESS FOR MILITARY DUTY BY THE SERVICE CONCERNED IN CONNECTION WITH YOUR DISABILITY. ACCORDINGLY, IN THE ABSENCE OF THE REQUIRED ADMINISTRATIVE DETERMINATION CONCERNING YOUR PHYSICAL DISABILITY DURING THE PERIOD INVOLVED, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, AND ON THAT BASIS THE DISALLOWANCE OF DECEMBER 15, 1964, IS SUSTAINED. YOUR CLAIM WILL RECEIVE FURTHER CONSIDERATION, HOWEVER, IF YOU SHOULD FURNISH US A REPORT SHOWING THAT A DETERMINATION HAS BEEN MADE BY THE PROPER ADMINISTRATIVE OFFICIALS AS TO WHETHER YOU WERE UNABLE TO PERFORM NORMAL MILITARY DUTIES DURING SUCH PERIOD AS A RESULT OF THE INJURY SUSTAINED WHILE ON TRAINING DUTY.

THE PAPERS WHICH YOU FORWARDED TO US ON MAY 11, 1965, ARE RETURNED FOR SUCH USE AS YOU DEEM APPROPRIATE.