B-166852, MAY 27, 1969

B-166852, MAY 27, 1969

TO LIEUTENANT COLONEL J. R. KELLIHER, USAF:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1969, REQUESTING A DECISION CONCERNING THE PAYMENT OF PAY AND ALLOWANCES ON ACCOUNT OF DISABILITY TO CAPTAIN DONALD C. COBAN, FG03088230, SMSGT ALLAN D. MCCORMACK, AF3754 7940, AND SSGT ROBERT A. VANDERHEYDEN AF2739 3716, MEMBERS OF THE AIR NATIONAL GUARD. THE REQUEST FOR DECISION HAS BEEN ASSIGNED NO. DO-AF-1036 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT CAPTAIN COBAN WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD JANUARY 6 THROUGH 11, 1968. HE REPORTED TO THE 401ST TAC HOSPITAL, TORREJON AB, SPAIN, ON JANUARY 10 FOR TREATMENT OF AN INFECTED SCALP, AND WAS TREATED IN AN OUTPATIENT STATUS BECAUSE OF LACK OF BED SPACE TO HOSPITALIZE HIM. ON JANUARY 17 HE WAS RELEASED AND RETURNED TO HIS HOME STATION WHERE TREATMENT WAS CONTINUED. HE WAS DECLARED MEDICALLY UNFIT TO PERFORM NORMAL MILITARY DUTIES FROM JANUARY 10 THROUGH 28, 1968. HIS CLAIM COVERS THE PERIOD JANUARY 12 TO 28, 1968.

THE COPY OF AF FORM 348 DATED JANUARY 21, 1968, ACCOMPANYING YOUR REQUEST FOR DECISION IS IN LARGE PART ILLEGIBLE, BUT IT APPEARS FROM LEGIBLE PORTIONS THEREOF THAT CAPTAIN COBAN SUFFERED AN ANAPHYLACTIC REACTION TO A PENICILLIN SHOT, MANIFESTED BY EDEMA OF FACE, BACK, AND NECK, APPROXIMATELY 15 HOURS AFTER THE INJECTION.

SERGEANT MCCORMACK WAS INJURED IN LINE OF DUTY WHILE PARTICIPATING IN A SCHEDULED FLYING TRAINING PERIOD ON JUNE 21, 1967. HE WAS DECLARED MEDICALLY UNFIT TO PERFORM NORMAL MILITARY DUTIES DURING THE PERIODS JUNE 21 THROUGH JUNE 27, AND FROM JULY 6 THROUGH JULY 14, 1967. HE WAS TREATED IN AN OUTPATIENT STATUS AT THE MINNEAPOLIS VETERANS ADMINISTRATION HOSPITAL AND WAS NOT HOSPITALIZED. PRESUMABLY HE WAS NOT DISABLED DURING THE PERIOD JUNE 28 THROUGH JULY 5, 1967, BUT WAS DISABLED DURING THE FIRST PERIOD ON ACCOUNT OF THE IMMEDIATE EFFECTS OF THE INJURY AND WAS DISABLED DURING THE PERIOD JULY 6 THROUGH 14, 1967, ON ACCOUNT OF AN INFECTION ON THE SITE OF THE PRIOR INJURY, PRESUMABLY BECAUSE OF THE INJURY. HE CLAIMS PAY AND ALLOWANCES FROM JUNE 21 TO 27 AND JULY 6 TO 14, 1967.

SERGEANT VANDERHEYDEN WAS INJURED IN LINE OF DUTY WHILE ON AN OVERSEAS FLIGHT AS A FLIGHT ENGINEER ON AUGUST 16, 1968, DURING AN ACTIVE DUTY TRAINING PERIOD FROM AUGUST 10 THROUGH 19, 1968. HE WAS DECLARED MEDICALLY UNFIT TO PERFORM FLIGHT ENGINEER DUTIES FOR THE PERIOD AUGUST 16 THROUGH 19, 1968, AND AT HIS HOME STATION ON AUGUST 20, 1968, HE WAS DECLARED MEDICALLY UNFIT TO PERFORM NORMAL MILITARY DUTIES. HE WAS SUBSEQUENTLY HOSPITALIZED AT THE VETERANS ADMINISTRATION HOSPITAL FROM AUGUST 26 THROUGH OCTOBER 9, 1968. HE CLAIMS PAY AND ALLOWANCES FOR THE PERIOD AUGUST 20 THROUGH OCTOBER 10, 1968.

THE PAY AND ALLOWANCE PROVISIONS IN 10 U.S.C. 8687 QUOTED IN YOUR LETTER ARE NOW CODIFIED IN 37 U.S.C. 204 (G). SUBSECTION (H) PROVIDES SIMILARLY AS FOLLOWS:

"/H) 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 OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER HE IS CALLED OR ORDERED TO PERFORM TRAINING UNDER SECTION 502, 503, 504, OR 505 OF TITLE 32---

"/1) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

"/2) FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.'

YOU SAY THAT PROVISION IS MADE IN 10 U.S.C. 8722 AND 32 U.S.C. 319 FOR ENTITLEMENT TO PAY AND ALLOWANCES DURING THE PERIOD OF THE MEMBER'S HOSPITALIZATION AND REHOSPITALIZATION, BUT NO MENTION IS MADE OF HOSPITALIZATION IN 10 U.S.C. 8687. YOU POINT OUT THAT THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES THAT IF A RESERVIST INJURED ON TRAINING DUTY CONTINUES TO BE DISABLED IN THE HOSPITAL BEYOND THE EXPIRATION OF THE TRAINING DUTY, OR IS RELEASED FROM THE HOSPITAL BUT IS UNFIT FOR NORMAL MILITARY DUTY PER MEDICAL AUTHORITY, HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AND MEDICAL BENEFITS COMMENSURATE WITH THE REGULAR FORCES.

YOU SAY THAT PREVIOUS DECISIONS DO NOT SHOW THAT HOSPITALIZATION IS A DEFINITE REQUIREMENT FOR CONTINUATION OF PAY AND ALLOWANCES BEYOND TERMINATION OF ORDERS, BUT THAT THERE IS DOUBT AS TO THE ACTUAL INTENT OF THE LAW, AND THEREFORE THE FOLLOWING GENERAL QUESTIONS ARE SUBMITTED:

"A. MUST A MEMBER OF THE RESERVE FORCES, INJURED IN LINE OF DUTY, BE, IN FACT, HOSPITALIZED TO BE ENTITLED TO PAY AND ALLOWANCES BEYOND TERMINATION OF HIS ORDERS? (APPLICABLE TO ALL THREE CLAIMS.)

"B. IF QUESTION A IS ANSWERED IN THE AFFIRMATIVE, MAY A MEMBER BE CONSIDERED IN A HOSPITAL FOR PURPOSES OF PAY ENTITLEMENT, WHEN BEING TREATED ON AN OUTPATIENT BASIS DUE TO NONAVAILABILITY OF BED SPACE IN THE HOSPITAL? (REFERENCE CLAIM OF CAPT COBAN.)

"C. IF QUESTION A IS ANSWERED IN THE AFFIRMATIVE, MUST INITIAL HOSPITALIZATION OCCUR ON OR BEFORE TERMINATION OF MEMBER'S ORDERS? (REFERENCE CLAIM OF SSGT VANDERHEYDEN.)

"D. IF QUESTION A IS ANSWERED IN THE NEGATIVE, WOULD A MEMBER BE ENTITLED TO PAY AND ALLOWANCES FOR A SUBSEQUENT PERIOD WHEREIN HE WAS DECLARED UNFIT TO PERFORM NORMAL MILITARY UTIES? (REFERENCE CLAIM OF SMSGT MCCORMACK.)

IT MAY BE NOTED THAT THE PROVISIONS OF 10 U.S.C. 8722 AND 32 U.S.C. 319 ORIGINATED IN THE ACT OF JUNE 15, 1936, CH. 547, 49 STAT. 1507, WHICH WAS ENACTED PRIMARILY TO PROVIDE HOSPITAL AND MEDICAL CARE AND TREATMENT OF RESERVE PERSONNEL OF THE ARMED SERVICES WHO WERE INJURED OR SUFFERED DISEASE WHILE IN MILITARY TRAINING. THE ABOVE-QUOTED PROVISIONS OF LAW, AS WELL AS 10 U.S.C. 8687, ORIGINATED IN THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 201, WHICH WAS ENACTED TO CONFER ON RESERVE PERSONNEL OF THE ARMED SERVICES THE SAME PENSION, DISABILITY COMPENSATION, DEATH GRATUITY, MEDICAL AND HOSPITAL BENEFITS, DISABILITY RETIREMENT PAY, AND PAY AND ALLOWANCES AS ARE PROVIDED BY LAW OR REGULATION FOR MEMBERS OF THE REGULAR COMPONENTS OF THE ARMED SERVICES. THE PAY AND ALLOWANCES PROVISIONS OF THE 1949 LAW ARE NOW CODIFIED IN 37 U.S.C. 204, AND THE HOSPITALIZATION BENEFITS PROVISIONS ARE CODIFIED IN 10 U.S.C. 8721 AND 32 U.S.C. 318.

THE PURPOSE OF THE 1949 ACT WAS TO PLACE RESERVISTS COVERED BY THE ACT IN A STATUS COMPARABLE TO THAT OF MEMBERS OF THE REGULAR SERVICES WHO, WHEN THEY SUFFER DISABILITY IN LINE OF DUTY FROM INJURY, ARE AUTHORIZED TO CONTINUE TO RECEIVE THEIR PAY AND ALLOWANCES WHILE HOSPITALIZED THEREFOR AND ALSO WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED.

WHILE THERE IS EVIDENCE IN THE LEGISLATIVE HISTORY OF THE 1949 ACT WHICH MIGHT INDICATE THAT IT WAS INTENDED TO AUTHORIZE ACTIVE-DUTY PAY AND ALLOWANCES ONLY FOR THE PERIOD OF HOSPITALIZATION, WE HAVE CONCLUDED THAT, CONSIDERING THE LEGISLATIVE HISTORY AS A WHOLE, RESERVISTS INJURED IN LINE OF DUTY ARE ENTITLED TO CONTINUE TO RECEIVE PAY AND ALLOWANCES UNTIL THEIR CASES ARE FINALLY DISPOSED OF BY RETIREMENT, DISCHARGE, OR SUFFICIENT RECOVERY FROM THE INJURIES TO RESUME NORMAL MILITARY DUTIES. 29 COMP. GEN. 509.

UNDER THE 1949 ACT THIS OFFICE HAS AUTHORIZED PAYMENT TO AN INJURED RESERVIST NOT ONLY DURING HOSPITALIZATION BUT ALSO AFTER DISCHARGE FROM THE HOSPITAL DURING THE PERIOD THE PROPER AUTHORITIES DETERMINE THAT THE RESERVIST CONTINUED TO BE DISABLED TO PERFORM HIS REGULAR MILITARY DUTIES. 47 COMP. GEN. 531.

QUESTION A IS ANSWERED IN THE NEGATIVE, MAKING AN ANSWER TO QUESTIONS B AND C UNNECESSARY. HOWEVER, AS TO QUESTION C, SEE 45 COMP. GEN. 54. QUESTION D IS ANSWERED IN THE AFFIRMATIVE.

THE FACTS IN THE CASE OF SERGEANT MCCORMACK ARE NOT CLEAR, BUT CONSIDERING THE FACTS DISCLOSED, IT IS ASSUMED THAT HE WAS PHYSICALLY ABLE TO PERFORM HIS MILITARY DUTIES DURING THE PERIOD FROM JUNE 28 THROUGH JULY 5, AND THAT BEGINNING JULY 6, 1967, AN INFECTION IN THE WOUND INCURRED ON JUNE 21, 1967, AGAIN DISABLED HIM FOR THE PERFORMANCE OF MILITARY DUTIES. IF SUCH BE THE CASE, THE FACT THAT THERE WAS A SHORT INTERVENING PERIOD WHEN THERE WAS AN APPARENT RECOVERY FROM THE INJURY DOES NOT, IN OUR OPINION, REQUIRE A HOLDING THAT HE IS NOT ENTITLED TO RESUME RECEIVING PAY AND ALLOWANCES DURING THE PERIOD WHEN THE ORIGINAL INJURY RESULTED IN A DISABILITY TO PERFORM REGULAR MILITARY DUTIES.

WHILE YOU REFER TO THE CONDITION FOR WHICH CAPTAIN COBAN RECEIVED TREATMENT AS "AN INFECTED SCALP INJURY," THE LEGIBLE PORTION OF THE COPY OF THE MEDICAL RECORD REFERS TO HIS CONDITION AS AN INFECTED SCALP. IT IS NOT CLEAR FROM THE RECORD WHETHER THE DISABILITY FOR WHICH HE ASSERTS CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD JANUARY 12 THROUGH 28, 1968, WAS THE INFECTED SCALP OR THE REACTION TO THE INJECTION, AND IF THE FORMER, WHETHER THE SCALP INFECTION WAS CAUSED BY AN INJURY OR BY A DISEASE, AND IF AN INJURY WHETHER IT WAS INCURRED WHILE ON TRAINING DUTY OR EXISTED PRIOR THERETO. IF CAPTAIN COBAN WAS INJURED WHILE ON TRAINING DUTY AND IT IS DETERMINED BY PROPER AUTHORITY THAT HE WAS DISABLED ON ACCOUNT OF SUCH INJURY FOR HIS REGULAR MILITARY DUTIES DURING THE PERIOD OF HIS CLAIM, SUCH CLAIM MAY BE ALLOWED.

SUBJECT TO THE FOREGOING RESERVATIONS AND CONDITIONS, PAYMENT OF PAY AND ALLOWANCES MAY BE MADE IN EACH CASE STATED ABOVE.