B-162742, DECEMBER 21, 1967, 47 COMP. GEN. 351

B-162742, DECEMBER 21, 1967, 47 COMP. GEN. 351

PAY - AFTER EXPIRATION OF ENLISTMENT - HOSPITALIZATION AND MEDICAL CARE AN ARMY ENLISTED MAN WHO INCIDENT TO AN INJURY REPORTED TO BE DUE TO HIS OWN MISCONDUCT IS HOSPITALIZED FOR A PERIOD SUBSEQUENT TO THE EXPIRATION OF HIS TERM OF ENLISTMENT IS NEVERTHELESS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD, AN ADMINISTRATIVE DETERMINATION UNDER 10 U.S.C. 1216 THAT THE PHYSICAL CONDITION OF THE MEMBER WHICH RESULTED FROM CORRECTIVE SURGERY AT AN ARMY HOSPITAL AT THE TIME OF THE INJURY IS A DISABILITY INCURRED OR AGGRAVATED DURING ACTIVE SERVICE, NOT THE RESULT OF MISCONDUCT AND INCURRED IN LINE OF DUTY, GOVERNING HIS RIGHTS, AND THE MEMBER HAVING EXECUTED THE MEDICAL AND HOSPITALIZATION CARE AFFIDAVIT REQUIRED BY 10 U.S.C. 3262, AND HAVING BEEN RECOMMENDED FOR PHYSICAL DISABILITY RETIREMENT, MAY BE REGARDED AS BEING RETAINED IN THE SERVICE FOR MEDICAL TREATMENT AND HOSPITALIZATION WITHIN THE MEANING OF SECTION 3262 SO AS TO ENTITLE HIM TO PAY AND ALLOWANCES FOR THE PERIOD OF HOSPITALIZATION FOLLOWING THE EXPIRATION OF HIS ENLISTMENT.

TO MAJOR H. M. WAGENHEIM, DEPARTMENT OF THE ARMY, DECEMBER 21, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1967 (FILE REFERENCE MEDEO-CF), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $807.70 STATED IN FAVOR OF SPECIALIST FIVE ROBERT V. THORBERG, RA 17 494 291, REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 10, 1966, TO FEBRUARY 16, 1967, WHILE HE WAS HOSPITALIZED AFTER EXPIRATION OF HIS TERM OF ENLISTMENT UNDER THE CIRCUMSTANCES DISCLOSED BELOW. YOUR REQUEST WAS FORWARDED HERE UNDER DATE OF OCTOBER 18, 1967, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND HAS BEEN ASSIGNED D.O. NUMBER A-966 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM YOUR LETTER AND ENCLOSURES THAT SPECIALIST THORBERG WAS INJURED IN AN AUTOMOBILE ACCIDENT IN GERMANY ON OCTOBER 17, 1965, AND THAT A REPORT OF INVESTIGATION DATED NOVEMBER 12, 1965, INDICATES THAT THE INJURY WAS NOT INCURRED IN LINE OF DUTY BUT WAS DUE TO HIS OWN MISCONDUCT. A REPORT ISSUED BY THE ARMY HOSPITAL WHERE HE WAS ADMITTED ON OCTOBER 17, 1965, SHOWS THE NATURE OF HIS INJURY AS "FRACTURED BOTH FEMURS.'

YOU SAY THAT THE MEMBER WAS CONSIDERED IN A PAY STATUS UPON EVACUATION FROM GERMANY TO FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO, UNTIL THE EXPIRATION OF HIS SERVICE ON DECEMBER 9, 1966. AFTER THAT DATE YOU SAY HIS PAY WAS WITHHELD (CITING PARAGRAPH 12142, ARMY REGULATION 37-104) UNTIL HIS ASSIGNMENT FROM MEDICAL HOLDING COMPANY (PATIENT STATUS) TO MEDICAL COMPANY (DUTY STATUS), EFFECTIVE FEBRUARY 17, 1967. YOU EXPRESS THE VIEW THAT COMMENCING FEBRUARY 17, 1967, WHEN SPECIALIST THORBERG WAS RETURNED TO A DUTY STATUS, HE WAS MAKING UP TIME LOST FOR HOSPITALIZATION FOR INJURY DUE TO HIS OWN MISCONDUCT AND HENCE BECAME ENTITLED TO PAY AND ALLOWANCES FROM THAT DATE ON THE BASIS OF B-127193, JUNE 8, 1956.

YOU REPORT THAT ON FEBRUARY 22, 1967, THE MEMBER APPEALED THE LINE OF DUTY DETERMINATION,"LOD NO" AND THAT ON FEBRUARY 24, 1967, HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD. THE BOARD FOUND THAT FOLLOWING CORRECTIVE SURGERY ON OCTOBER 28, 1965--RESULTING FROM THE INJURIES SUSTAINED ON OCTOBER 17, 1965--THERE HAS BEEN AN IMPAIRMENT OF THE MEMBER'S RIGHT FEMUR (HIP/--RATED AT 30 PERCENT DISABLING--WHICH WAS CONSIDERED SERVICE AGGRAVATED AND NOT AS A RESULT OF INTENTIONAL MISCONDUCT. TWO ADDITIONAL DISABILITIES (KNEE AND ANKLE) OUTLINED IN THE PHYSICAL EVALUATION BOARD PROCCEEDINGS STEM FROM THE MEMBER'S ACCIDENT ON OCTOBER 17, 1965, AND WERE CONSIDERED "LOD NO" BY THE BOARD. IT APPEARS THAT THE BOARD PROCEEDINGS WERE APPROVED BY THE U.S. ARMY PHYSICAL REVIEW COUNCIL ON OCTOBER 17, 1967, AS SHOWN BY A COPY OF THE PROCEEDINGS RECENTLY FURNISHED US. ALSO, WE HAVE BEEN INFORMALLY ADVISED THAT ON SEPTEMBER 28, 1967, THE ADJUTANT GENERAL RETURNED THE MEMBER'S LINE OF DUTY APPEAL TO THE FIFTH ARMY DENYING HIS APPEAL AND CONCURRING IN THE ORIGINAL DETERMINATION "LOD NO.' APPARENTLY SUCH APPEAL HAD NOTHING TO DO WITH THE SERVICE AGGRAVATED CONDITION FOUND BY THE PHYSICAL EVALUATION BOARD.

YOU FURTHER STATE THAT THE ENLISTED MAN LEFT THE HOSPITAL ON MAY 10, 1967, ON PERMANENT CHANGE OF STATION TO HIS HOME TO AWAIT FINAL ACTION ON THE RETIREMENT PROCEEDINGS. IN THIS CONNECTION, THE RECORD NOW SHOWS THAT BY PARAGRAPH 271, SPECIAL ORDERS NO. 210, HEADQUARTERS, DEPARTMENT OF THE ARMY DATED OCTOBER 25, 1967, SPECIALIST THORBERG WAS RETIRED BY REASON OF PHYSICAL DISABILITY EFFECTIVE NOVEMBER 2, 1967.

YOU ASK WHETHER THE ENLISTED MAN WAS IN A PAY STATUS FROM DECEMBER 9(10), 1966, THE DAY FOLLOWING THE EXPIRATION OF HIS TERM OF SERVICE, THROUGH FEBRUARY 16, 1967, THE DAY PRECEDING THE DATE HE WAS TRANSFERRED FROM MEDICAL HOLDING COMPANY (PATIENT STATUS) TO MEDICAL COMPANY (DUTY STATUS). YOU ALSO ASK WHETHER THE "LOD YES" DETERMINATION MADE BY THE PHYSICAL EVALUATION BOARD ON ACCOUNT OF THE CORRECTIVE SURGERY PERFORMED ON OCTOBER 28, 1965, ENTITLES THE MEMBER TO PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 9 (10), 1966, TO FEBRUARY (16) 17, 1967, NOTWITHSTANDING THE ,LOD NO" DETERMINATION BY THE BOARD ON THE TWO DISABILITIES RESULTING DIRECTLY FROM THE ACCIDENT ON OCTOBER 17, 1965.

UNDER THE PROVISIONS OF 10 U.S.C. 972 AN ENLISTED MEMBER OF THE ARMED FORCES WHO IS UNABLE FOR MORE THAN ONE DAY, AS DETERMINED BY COMPETENT AUTHORITY, TO PERFORM HIS DUTIES BECAUSE OF DISEASE OR INJURY RESULTING FROM HIS OWN MISCONDUCT, IS LIABLE, AFTER HIS RETURN TO FULL DUTY TO SERVE FOR A PERIOD THAT, WHEN ADDED TO THE PERIOD THAT HE SERVED BEFORE HIS ABSENCE FROM DUTY, AMOUNTS TO THE TERM FOR WHICH HE WAS ENLISTED OR INDUCTED. IN THIS CONNECTION, A COMMUNICATION IN THE FILE DATED FEBRUARY 17, 1967, FROM FITZSIMONS GENERAL HOSPITAL TO THE ADJUTANT GENERAL, WASHINGTON, D. C., STATES, IN SUBSTANCE, THAT SPECIALIST THORBERG'S PERSONNEL RECORDS SHOW 419 DAYS LOST UNDER 10 U.S.C. 972 PRIOR TO NORMAL EXPIRATION OF HIS TERM OF SERVICE AND THAT HE WAS BEING HELD ON DUTY TO MAKE GOOD TIME LOST.

OUR DECISION OF JUNE 8, 1956, B-127193, CONSIDERED THE RIGHTS OF AN ENLISTED MAN WHO WAS INJURED NOT IN LINE OF DUTY DUE TO HIS OWN MISCONDUCT AND WHO WAS HOSPITALIZED BEYOND THE TERM OF HIS ENLISTMENT AND SUBSEQUENTLY RETURNED TO DUTY TO MAKE GOOD TIME LOST. WE HELD THAT SINCE HE WAS REQUIRED TO MAKE GOOD TIME LOST UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 580 (NOW IN 10 U.S.C. 972), HE WAS ENTITLED TO PAY FROM THE DATE HE WAS RESTORED TO DUTY UNTIL THE DATE HIS ENLISTMENT WAS COMPLETED. FURTHER HELD THAT SINCE THE MEMBER WAS RETAINED IN THE SERVICE WITH HIS CONSENT BEYOND THE COMPLETION OF HIS ENLISTMENT AS EXTENDED, PENDING ACTION OF A PHYSICAL EVALUATION BOARD, HIS RETENTION WAS REGARDED AS FOR THE CONVENIENCE OF THE GOVERNMENT SO AS TO ENTITLE HIM TO PAY AND ALLOWANCES UNTIL HIS DUTY STATUS ENDED.

SECTION 3262 OF TITLE 10, U.S. CODE, AUTHORIZES THE RETENTION ON ACTIVE DUTY OF AN ENLISTED MAN WITH HIS CONSENT, WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS SUFFERING FROM DISEASE OR INJURY INCIDENT TO SERVICE AND NOT DUE TO HIS OWN MISCONDUCT AND WHO NEEDS MEDICAL CARE OR HOSPITALIZATION. AMONG THE PAPERS SUBMITTED WITH YOUR LETTER IS AN AFFIDAVIT EXECUTED BY SPECIALIST THORBERG ON DECEMBER 9, 1966, AFFIRMING, IN SUBSTANCE, THAT HE DESIRED TO BE RETAINED ON ACTIVE DUTY BEYOND THE EXPIRATION OF HIS TERM OF SERVICE FOR THE PURPOSE OF CONTINUING MEDICAL CARE OR HOSPITALIZATION AND POSSIBLE RETIREMENT FOR PHYSICAL DISABILITY SHOULD A DETERMINATION BE MADE THAT HIS INJURY WAS INCURRED IN LINE OF DUTY.

PARAGRAPH 12142I, ARMY REGULATION 37-104, DATED FEBRUARY 15, 1965, PROVIDED THAT AN ENLISTED MEMBER IN THE ACTIVE SERVICE WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS SO HOSPITALIZED AS A RESULT OF INJURY OR DISEASE DUE TO HIS OWN MISCONDUCT, IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF HOSPITALIZATION AFTER EXPIRATION OF ENLISTMENT. SEE, ALSO, FOOTNOTE 3 TO RULE 3, TABLE 1-3-2, CHAPTER 3, MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (JANUARY 1, 1967). 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 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. 35 COMP. GEN.110 AND 35 ID. 366.

THE COURT OF CLAIMS IN THE CASE OF PEIFFER V. UNITED STATES, 96 CT. CL. 344 (1942), HELD THAT AN ENLISTED MAN OF THE NAVY RETAINED IN THE SERVICE AFTER THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT FOR TREATMENT OF A DISEASE NOT THE RESULT OF HIS OWN MISCONDUCT WAS ENTITLED TO PAY AND ALLOWANCES UNTIL THE DATE OF ACTUAL DISCHARGE.

THE RECORD INDICATES THAT BOTH THE INVESTIGATING OFFICER, WHOSE REPORT WAS FILED NOVEMBER 12, 1965, AND THE PHYSICAL EVALUATION BOARD IN PROCEEDINGS HELD ON FEBRUARY 24, 1967, HAVE DETERMINED THAT THE INITIAL INJURIES SUSTAINED BY SPECIALIST THORBERG ON OCTOBER 17, 1965, WERE INCURRED NOT IN LINE OF DUTY. HOWEVER, THE RECORD SHOWS THAT THE DEPARTMENT OF THE ARMY VIEWS THE PHYSICAL CONDITION WHICH RESULTED FROM THE CORRECTIVE SURGERY ON THE INJURED HIP ON OR ABOUT OCTOBER 28, 1965, AS A DISABILITY INCURRED OR AGGRAVATED DURING ACTIVE SERVICE, NOT THE RESULT OF MISCONDUCT AND INCURRED IN LINE OF DUTY. WHILE THIS LATTER LINE OF DUTY DETERMINATION HAS ELEMENTS OF INCONSISTENCY WITH THE INVESTIGATING OFFICER'S INITIAL DETERMINATION, IT APPARENTLY WAS MADE UNDER AUTHORITY CONTAINED IN 10 U.S.C. 1216 AND CONSTITUTES THE DEPARTMENT'S FINAL ACTION IN THIS MATTER. IT IS OUR VIEW THAT SUCH DETERMINATION GOVERNS THE ENLISTED MAN'S RIGHTS IN THIS CASE.

IN VIEW OF THE ABOVE-MENTIONED MEDICAL AND HOSPITALIZATION CARE AFFIDAVIT EXECUTED BY SPECIALIST THORBERG ON DECEMBER 9, 1966, AND IN THE LIGHT OF THE PHYSICAL EVALUATION BOARD'S APPROVED LINE OF DUTY DETERMINATION AND THE BOARD'S RECOMMENDATION THAT HE BE RETIRED BY REASON OF PHYSICAL DISABILITY, WHICH RETIREMENT WAS EFFECTED AS OF NOVEMBER 2, 1967, THE ENLISTED MAN MAY BE REGARDED AS BEING RETAINED IN THE SERVICE FOR MEDICAL TREATMENT AND HOSPITALIZATION WITHIN THE MEANING OF 10 U.S.C. 3262 SO AS TO ENTITLE HIM TO PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 10, 1966, TO FEBRUARY 16, 1967.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED THEREON, IF OTHERWISE CORRECT.