B-156628, JUN. 1, 1965

B-156628, JUN. 1, 1965

TO SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1965, REQUESTING A DECISION AS TO WHETHER A MEMBER OF THE NATIONAL GUARD WHO HAS BEEN ORDERED TO PERFORM INACTIVE DUTY TRAINING OVER A WEEK-END PERIOD AND IS INJURED DURING THE PERIOD AFTER THE SCHEDULED SATURDAY TRAINING HAS BEEN COMPLETED AND PRIOR TO COMMENCEMENT OF THE SUNDAY TRAINING, BUT IN THE TRAINING AREA WHERE HE WAS REQUIRED TO REMAIN, MAY BE DEEMED TO HAVE RECEIVED THE INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 32 U.S.C. 318 (2). YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-A-834 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON SATURDAY, JUNE 22, 1963, SPECIALIST FOUR JAMES E. WILLIAMS AND OTHER MEMBERS OF COMPANY A, 2ND BATTALION, 147TH INFANTRY, OHIO ARMY NATIONAL GUARD, PROCEEDED FROM THEIR HOME STATION AT BELLEFONTAINE, OHIO, TO BROWN RANGE, MORROW, OHIO, A DISTANCE OF APPROXIMATELY 90 MILES, FOR TWO DAYS OF SMALL ARMS FIRING AND OTHER TRAINING. A CAMP SITE WAS ESTABLISHED AT THE RANGE AND THE UNIT WAS REQUIRED TO BIVOUAC THERE OVERNIGHT.

THIS TRAINING, CONSISTING OF FOUR INACTIVE DUTY TRAINING ASSEMBLIES, WAS DULY AUTHORIZED BY 32 U.S.C. 502 (A) (1), NATIONAL GUARD REGULATIONS AND A UNIT TRAINING SCHEDULE PUBLISHED MAY 7, 1963. AFTER A SHORT PERIOD OF PHYSICAL TRAINING ON SATURDAY THE UNIT SPENT THE BALANCE OF THE DAY ON WEAPONS QUALIFICATIONS, WHICH ENDED AT APPROXIMATELY 5:00 P.M. THE TRAINING SCHEDULE PROVIDED FOR FURTHER PHYSICAL TRAINING AND WEAPONS QUALIFICATION ON SUNDAY. THE UNIT REMAINED ENCAMPED IN THE AREA OVERNIGHT. THE UNIT COMMANDER HAS STATED THAT "ALL PERSONNEL WERE REQUIRED TO BE PRESENT AND ON DUTY AT THE RANGE FOR THE ENTIRE TWO-DAY PERIOD.'

AT APPROXIMATELY 7:30 SATURDAY EVENING SPECIALIST WILLIAMS WAS PLAYING SOFTBALL IN THE BIVOUAC AREA WITH OTHER MEMBERS OF THE UNIT WHEN HE STEPPED INTO A HOLE, FELL AND SUSTAINED A COMPLETE FRACTURE OF THE RIGHT CLAVICLE. EMERGENCY MEDICAL TREATMENT WAS GIVEN AT CLINTON MEMORIAL HOSPITAL, A PRIVATE FACILITY IN WILMINGTON, OHIO. THE UNIT COMMANDER STATED THAT THE SOFTBALL GAME WAS NOT SCHEDULED, BUT THAT IT WAS ORGANIZED AND UNDER HIS CONTROL. ALTHOUGH THE SCHEDULED TRAINING FOR THE DAY HAD BEEN COMPLETED AT THE TIME OF THE INJURY, YOU SUGGEST THAT SPECIALIST WILLIAMS REMAINED IN A DUTY STATUS WITHIN THE PURVIEW OF 32 U.S.C. 318 (2), SINCE HE WAS REQUIRED TO REMAIN IN THE BIVOUAC AREA AND UNDER MILITARY CONTROL. YOU ALSO SAY THAT THIS CASE INVOLVES SOMEWHAT DIFFERENT FACTS THAN THOSE PRESENT IN OUR DECISION OF OCTOBER 25, 1963, B-148324, 43 COMP. GEN. 412, AND IS REPRESENTATIVE OF THE TYPE OF CASE THAT IS EXPECTED TO BE RECEIVED IN INCREASING NUMBERS.

SUBSECTION 204 (H) OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE WHENEVER HE IS CALLED OR ORDERED TO PERFORM TRAINING UNDER 32 U.S.C. 502 FOR ANY PERIOD OF TIME AND "IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.' THAT PROVISION OF LAW IS SIMILAR TO AND WAS DERIVED FROM 32 U.S.C. 318 (1958 ED.) AS THERE CODIFIED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 605, WHICH IN TURN WAS DERIVED FROM SECTION 3 OF THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 202, 32 U.S.C. 160A (1952 ED.).

THAT ACT HAS BEEN GIVEN EXTENSIVE CONSIDERATION BY THIS OFFICE IN THE PAST AND IT HAS BEEN HELD CONSISTENTLY THAT THE BENEFITS OF THE ACT ARE LIMITED, INSOFAR AS PERSONNEL ON INACTIVE DUTY TRAINING ARE CONCERNED, TO INJURIES INCURRED DURING PERIODS "WHILE SO EMPLOYED," THAT IS, BEGINNING WITH MUSTER AND ENDING WITH DISMISSAL FROM THE PARTICULAR DRILL OR OTHER TRAINING DUTY INVOLVED. SEE 38 COMP. GEN. 841, 843. IN MEISTER V. UNITED STATES, CT.CL. NO. 54-62, DECIDED JULY 12, 1963, THE COURT OF CLAIMS CONSIDERED A CASE INVOLVING A MEMBER OF THE NAVAL RESERVE WHO HAD BEEN ORDERED BY HIS EXECUTIVE OFFICER TO BE AT THE TRAINING CENTER NO LATER THAN 7:20 P.M. ON MARCH 8, 1961, AND WHO HAD ENTERED THE TRAINING CENTER COMPOUND WHEN HE SLIPPED AND FRACTURED HIS ANKLE WHILE PROCEEDING TOWARD THE DRILL HALL TO REPORT FOR INSPECTION AND DUTY. THE COURT HELD THAT HE WAS "WITHIN THE SCOPE OF HIS ASSIGNED DUTIES WHEN HE SLIPPED" AND THEREFORE WITHIN THE PURVIEW OF 10 U.S.C. 6148 (A), THE PERTINENT PROVISIONS OF WHICH WERE IDENTICAL TO THE ABOVE-CITED PROVISIONS OF LAW APPLICABLE TO THE NATIONAL GUARD.

IN DECISION OF OCTOBER 25, 1963, 43 COMP. GEN. 412, CONCERNING THE EFFECT OF THE COURT'S DECISION IN THE MEISTER CASE, WE CONSIDERED THE CASE OF JOSEPH PATRICK VOLPE, A MEMBER OF THE NAVAL RESERVE WHO WAS ORDERED TO PERFORM INACTIVE DUTY TRAINING AT A U.S. NAVAL RESERVE TRAINING CENTER DURING THE WEEK-END OF APRIL 20-21, 1963, AND WHO PARTICIPATED IN THE SCHEDULED MORNING DRILL FROM 8 A.M. TO 12 NOON ON APRIL 21, 1963. 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 MEISTER CASE THE COURT DID NOT ATTEMPT TO LAY DOWN A RULE FOR GENERAL APPLICATION, BUT LIMITED ITS DECISION TO THE PARTICULAR FACTS INVOLVED IN THAT CASE. HENCE, WE SAID THAT THE MEISTER CASE SHOULD NOT BE USED AS A PRECEDENT FOR FAVORABLE ADMINISTRATIVE ACTION IN ANY SIMILAR CASES. IN OUR DECISION OF OCTOBER 25, 1963, HOWEVER, WE STATED THAT IT COULD NOT BE SAID THAT DURING A SCHEDULED LUNCH BREAK VOLPE REVERTED TO HIS NORMAL CIVILIAN STATUS SO AS TO BE OUTSIDE THE PROTECTION OF THE STATUTE. WE NOTED THAT THE MEMBER HAD NOT BEEN RELEASED FROM MILITARY CONTROL AT THE TIME OF THE INJURY. WE THERE HELD THAT A RESERVIST WHO HAS REPORTED TO HIS TRAINING CENTER FOR INACTIVE DUTY AND INCURS AN INJURY DURING A SCHEDULED BREAK IN TRAINING DRILLS MAY BE DEEMED TO HAVE RECEIVED HIS INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PREVIEW OF 10 U.S.C. 6148 (A).

WHILE THE FACTS ARE NOT THE SAME, THE SITUATION INVOLVED IN THE CASE OF SPECIALIST WILLIAMS IS NOT ESSENTIALLY DIFFERENT THAN THAT INVOLVED IN THE VOLPE CASE IN THAT SPECIALIST WILLIAMS, LIKE SEAMAN VOLPE, HAD NOT BEEN RELEASED FROM MILITARY CONTROL, HAVING BEEN "REQUIRED TO REMAIN IN THE BIVOUAC AREA AND UNDER MILITARY CONTROL," THAT IS,"IN THE TRAINING AREA, WHERE HE WAS REQUIRED TO REMAIN," EVEN THOUGH "THE SCHEDULED TRAINING FOR THE DAY HAD BEEN COMPLETED.' IN SUCH CIRCUMSTANCES IT IS OUR OPINION THAT SPECIALIST WILLIAMS MAY BE DEEMED TO HAVE RECEIVED THE INJURY WHILE ENGAGED IN AN INACTIVE DUTY TRAINING DRILL WITHIN THE PURVIEW OF 32 U.S.C. 318 (A). ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.