B-163610, MAR. 29, 1968

B-163610, MAR. 29, 1968

TO MAJOR EARL R. ENGLISH:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 8, 1968, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED JUNE 7, 1966, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD SEPTEMBER 22, 1964, TO OCTOBER 25, 1964.

BY LETTER ORDERS T (G) 04-906 (SS), DATED APRIL 9, 1964, YOU WERE DIRECTED TO REPORT, NOT LATER THAN 0800 HOURS APRIL 17, 1964, TO U.S. ARMY ORDNANCE SCHOOL, ABERDEEN PROVING GROUND, MARYLAND, FOR A PERIOD OF ACTIVE DUTY FOR TRAINING OF 154 DAYS. YOUR HEALTH RECORD DURING THE PERIOD OF YOUR ACTIVE DUTY FOR TRAINING DISCLOSES THAT YOU WERE TREATED FOR ATHLETE'S FOOT ON MAY 14, 1964, AND AGAIN ON SEPTEMBER 21, 1964, THE LAST DAY OF YOUR TOUR OF ACTIVE DUTY. YOU WERE NEVER HOSPITALIZED AND IT APPEARS THAT YOU PERFORMED YOUR FULL MILITARY DUTY DURING THE PERIOD FROM APRIL 17, 1964, THROUGH SEPTEMBER 21, 1964.

ON JANUARY 18, 1965, YOU CLAIMED ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM SEPTEMBER 22 TO OCTOBER 25, 1964, DURING WHICH TIME YOU SAY YOU WERE UNABLE TO PERFORM THE DUTIES OF YOUR CIVILIAN POSITION IN THE DEPARTMENT OF THE ARMY. AS A RESULT OF YOUR CLAIM, AN INVESTIGATION WAS CONDUCTED AND IT WAS DETERMINED THAT THE DISEASE, WHICH YOU CLAIM AS DISABLING, WAS NOT INCURRED IN LINE OF DUTY. ON THE BASIS OF THAT DETERMINATION, PAYMENT OF YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JUNE 7, 1966.

THEREAFTER, ON SEPTEMBER 21, 1966, YOU APPEALED THE LINE OF DUTY DETERMINATION AND BY LETTER DATED OCTOBER 12, 1967, THE ADJUTANT GENERAL ADVISED THAT THE DEPARTMENT OF THE ARMY HAD CONCLUDED THAT YOUR DERMATOPHYTOSIS WAS SERVICE CONNECTED AND IN LINE OF DUTY AND THAT ALL RECORDS SHOULD BE AMENDED ACCORDINGLY. YOU THEN RESUBMITTED YOUR CLAIM ON THE BASIS OF THE AMENDED LINE OF DUTY DETERMINATION.

YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD DURING WHICH YOU ALLEGE YOU WERE UNABLE TO PERFORM YOUR CIVILIAN DUTIES IS APPARENTLY BASED ON 37 U.S.C. 204 WHICH PROVIDES, IN PERTINENT PART, THAT:

"/G) A MEMBER OF THE ARMY OR THE AIR FORCE (OTHER THAN OF THE REGULAR ARMY OR THE REGULAR AIR FORCE) IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER --

"/1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF TITLE 10) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; * * *"

WE HAVE HELD THAT THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER THOSE STATUTORY PROVISIONS DURING A PERIOD OF TEMPORARY DISABILITY INCURRED IN LINE OF DUTY IS BASED UPON A MEMBER'S PHYSICAL DISABILITY TO PERFORM MILITARY DUTY RATHER THAN INABILITY TO PERFORM THE DUTIES OF HIS NORMAL CIVILIAN WORK. 43 COMP. GEN. 733. IT HAS BEEN HELD, ALSO, THAT THE DETERMINATION AS TO THE EXTENT TO WHICH A MEMBER IS DISABLED AND HOW LONG THE DISABILITY CONTINUES IN ANY PARTICULAR CASE IS LEFT TO THE EXERCISE OF SOUND ADMINISTRATIVE JUDGMENT, THAT IS, THE JUDGMENT OF THE APPROPRIATE OFFICIALS OF THE BRANCH OF SERVICE INVOLVED.

IT DOES NOT APPEAR THAT YOU WERE EVER HOSPITALIZED ON ACCOUNT OF YOUR DISEASE. APPARENTLY YOU REMAINED IN A DUTY STATUS THROUGHOUT YOUR PERIOD OF ACTIVE DUTY FOR TRAINING. THERE HAS BEEN FURNISHED NO DETERMINATION FROM A MILITARY SOURCE ESTABLISHING THAT YOU WERE UNABLE, BECAUSE OF THE DISEASE INVOLVED, TO PERFORM YOUR MILITARY DUTY ON AND AFTER YOUR RELEASE FROM ACTIVE DUTY FOR TRAINING AND RETURN TO YOUR HOME. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, YOU ARE NOT ENTITLED TO BE PAID ACTIVE DUTY PAY AND ALLOWANCES FOR A PERIOD AFTER YOUR ACTIVE DUTY FOR TRAINING TERMINATED.

FOR THE REASONS INDICATED ABOVE THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.