B-172856, JUL 7, 1971

B-172856, JUL 7, 1971

MILITARY PERSONNEL - ACTIVE DUTY TRAINING - WHEN PAY COMMENCES ADVISING THAT STEPHEN R. ROSS, USNR, MAY BE PAID ACTIVE DUTY PAY STARTING ON AUGUST 13, 1970, THE DATE HE COMMENCED TRAVEL TO REPORT FOR ACTIVE DUTY TRAINING AUGUST 15, 1970 AT PORTLAND, OREGON. SINCE MR. ROSS WAS REQUIRED TO TRAVEL FROM HIS HOME TO HIS DUTY STATION ON THURSDAY, AUGUST 13, IN ORDER TO UTILIZE THE TRANSPORTATION AUTHORIZED (HE WOULD NOT HAVE BEEN ABLE TO USE THE RESERVED YOUTH FARE ON WEEK-END TRAVEL) HE IS ENTITLED TO ACTIVE DUTY PAY STARTING FROM THE TIME HE WAS REQUIRED TO BEGIN TRAVEL.

TO COMMANDER T. A. KELLY:

THIS REFERS TO YOUR LETTER DATED MARCH 31, 1971, FORWARDED HERE BY FIRST ENDORSEMENT DATED APRIL 30, 1971, OF THE DIRECTOR, NAVY MILITARY PAY SYSTEM, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF PAY AND ALLOWANCES TO GMG3 STEPHEN R. ROSS, USNR-R, UNDER THE CIRCUMSTANCES IN HIS CASE. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-1122 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY ORDER NO. 8210457, DATED JULY 28, 1970, MR. ROSS WAS DIRECTED, IF FOUND PHYSICALLY QUALIFIED, TO PROCEED TO USS BRAINE (DD-630) AT PORTLAND, OREGON, FOR ACTIVE DUTY FOR TRAINING AFLOAT NOT TO EXCEED 14 DAYS AND TO REPORT TO THE COMMANDING OFFICER OF THE VESSEL ON AUGUST 16, 1970, NOT LATER THAN 1600-2100. THE ORDERS PROVIDED THAT HE WOULD BE IN A DUTY STATUS FOR THE NUMBER OF DAYS OF ACTIVE DUTY FOR TRAINING PERFORMED, PLUS THE TIME NECESSARY TO TRAVEL TO AND FROM HIS DUTY STATION NOT IN EXCESS OF THE ALLOWABLE CONSTRUCTIVE TRAVEL TIME AS PRESCRIBED BY THE NAVY COMPTROLLER MANUAL. HE WAS ISSUED TRANSPORTATION REQUEST NO. P8903643, DATED AUGUST 3, 1970, FOR JET COACH 30 DAY EXCURSION FARE CAB NO. 90 AND RESERVATIONS WERE MADE FOR TRAVEL ON AUGUST 16, 1970.

ON AUGUST 7, 1970, MR. ROSS' ORDERS WERE MODIFIED REQUIRING HIM TO REPORT TO HIS SHIP PRIOR TO 1200 ON AUGUST 15, 1970, FOR TRAINING AFLOAT NOT TO EXCEED 16 DAYS. NO CHANGE OR ALTERATION OF HIS TRANSPORTATION REQUEST WAS MADE AND HE WAS REQUIRED TO MAKE NEW RESERVATIONS UTILIZING THE ORIGINAL REQUEST. HE ELECTED TO TRAVEL ON AUGUST 12, 1970, USING A TRANSPORTATION REQUEST TO PURCHASE RESERVED YOUTH CLASS SERVICE OVER THE SAME ROUTE ORIGINALLY PRESCRIBED. AT 1820 ON AUGUST 13, 1970, HE WAS INJURED WHILE IN PORTLAND, OREGON, AND WAS HOSPITALIZED FROM THAT DATE UNTIL OCTOBER 19, 1970. ON DECEMBER 10, 1970, IT WAS DETERMINED, PURSUANT TO 10 U.S.C. 6148(A), THAT HIS INJURY WAS SUFFERED IN LINE OF DUTY.

IT SEEMS CLEAR THAT THE SERVICE AUTHORIZED BY THE TRANSPORTATION REQUEST REQUIRED MR. ROSS TO USE CONTINENTAL AIRLINES FLIGHT 129 LEAVING MIDLAND, TEXAS, AT 8:25 A.M. TO CONNECT WITH WESTERN AIRLINES FLIGHT 543 FROM LOS ANGELES, CALIFORNIA, TO PORTLAND, OREGON, ARRIVING AT 2:00 P.M. THIS SCHEDULE COULD NOT HAVE BEEN TAKEN ON SATURDAY AUGUST 15, 1970, TO MEET HIS 12:00 NOON REPORTING TIME. WHILE THE 30 DAY EXCURSION FARE AUTHORIZED AND THE LESSER RESERVED YOUTH FARE ACTUALLY USED PERMIT TRAVEL ONLY IN JET COACH AND COULD NOT BE USED ON FLIGHTS SCHEDULED TO DEPART AFTER 1:00 P.M. ON FRIDAY, HE COULD HAVE TRAVELED THE SCHEDULED ROUTE ON FRIDAY IF ACCOMMODATIONS WERE AVAILABLE, SINCE THE FLIGHT OUT OF LOS ANGELES WAS SCHEDULED TO LEAVE BEFORE 1:00 P.M.

IT IS REPORTED BY CONTINENTAL AIRLINES THAT THE FLIGHT DISPATCH RECORDS FOR FRIDAY, AUGUST 14, 1970, FOR FLIGHT 129 SHOW THAT THE FLIGHT DID NOT ACTUALLY DEPART FROM MIDLAND, TEXAS, WITH ALL COACH SEATS FULL. HOWEVER, AFTER STOPS IN EL PASO, TEXAS, AND TUCSON, ARIZONA, THE COACH SECTION WAS FULL OUT OF TUCSON AND THEY COULD HAVE CONFIRMED MR. ROSS ONLY AS FAR AS TUCSON IF HE HAD CHOSEN TO TAKE THAT FLIGHT ON FRIDAY MORNING. WHILE THE RECORDS INDICATE THAT THERE WERE FIRST CLASS SEATS AVAILABLE, HE WOULD HAVE BEEN REQUIRED TO PAY AN ADDITIONAL AMOUNT HAD HE CHOSEN TO USE FIRST CLASS ACCOMMODATIONS.

IT IS ALSO STATED THAT FLIGHT 129 IS NORMALLY A HEAVILY TRAVELED FLIGHT ON FRIDAY AND IT IS HIGHLY PROBABLE THAT AT THE TIME HE CHECKED FOR RESERVATIONS THE FLIGHT COULD HAVE BEEN SHOWN FULL IN COACH OUT OF MIDLAND AND YET DEPARTED WITH COACH SEATS EMPTY DUE TO PEOPLE CANCELLING RESERVATIONS OR FAILING TO USE THEM. THUS, THE AIRLINE IS OF THE OPINION THAT IN ORDER FOR MR. ROSS TO HAVE BEEN ASSURED OF BEING IN PORTLAND PRIOR TO HIS SCHEDULED REPORTING TIME IT WOULD HAVE BEEN NECESSARY FOR HIM TO DEPART FROM MIDLAND, TEXAS, ON THURSDAY, AUGUST 13, 1970, AT THE LATEST.

UNDER SUCH CIRCUMSTANCES, YOU REQUEST A DECISION AS TO WHETHER MR. ROSS WAS IN AN ACTIVE DUTY STATUS ON AUGUST 13, 1970, SO AS TO BE ENTITLED TO PAY AND ALLOWANCES ON THAT DAY AND DURING THE PERIOD OF HIS DISABILITY.

SECTION 6148, TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"(A) A MEMBER OF THE NAVAL RESERVE, THE FLEET RESERVE, THE MARINE CORPS RESERVE, OR THE FLEET MARINE CORPS RESERVE WHO IS ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE-DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, OR THE BENEFICIARY OF SUCH A MEMBER WHO DIES FROM SUCH AN INJURY, IS ENTITLED TO THE SAME PENSION, COMPENSATION, DEATH GRATUITY, AND HOSPITAL BENEFITS AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE. FOR THE PURPOSE OF THIS SUBSECTION, A MEMBER WHO IS NOT IN A PAY STATUS SHALL BE TREATED AS THOUGH HE WERE RECEIVING THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY."

IT IS PROVIDED IN 37 U.S.C. 204(I) THAT:

"(I) A MEMBER OF THE NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE, FLEET MARINE CORPS RESERVE, OR COAST GUARD RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR NAVY, REGULAR MARINE CORPS, OR REGULAR COAST GUARD, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, UNDER THE SAME CONDITIONS AS THOSE DESCRIBED IN CLAUSES (1) AND (2) OF SUBSECTION (G) OF THIS SECTION."

"(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; OR

"(2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED."

PARAGRAPH 10241, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT RESERVE MEMBERS CALLED TO ACTIVE DUTY ARE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR TIME ALLOWED FOR NECESSARY TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME. RULE 11, TABLE 1-2-4, DCDPM, PROVIDES THAT IF ORDERED ACTIVE DUTY IS 30 DAYS OR LESS AND TRAVEL BY AIR TRANSPORTATION IS REASONABLY AVAILABLE THEN, TRAVEL TIME IS ALLOWED COMPUTED ON THE BASIS OF AIR TRANSPORTATION (NOT MORE THAN ONE DAY) (NOTE 7) USING ACTUAL COMMERCIAL AIR SCHEDULES. NOTE 7 PROVIDES THAT ADDITIONAL TIME MAY BE ALLOWED WHEN THERE IS AN ACTUAL DELAY IN AIR TRAVEL. THE DELAY MUST HAVE BEEN DUE TO REASONS BEYOND THE CONTROL OF THE MEMBER (SUCH AS MECHANICAL FAILURE, ADVERSE WEATHER CONDITIONS, EXCESS PASSENGER LOAD, CANCELLED FLIGHT, ILLNESS OF OTHER PASSENGERS, ETC.).

IT IS OUR VIEW THAT THE LAW AND REGULATIONS CONTEMPLATE THAT THE DATE ON WHICH PAY SHOULD BEGIN FOR A RESERVE MEMBER CALLED TO ACTIVE DUTY WILL BE BASED ON A DETERMINATION OF THE DATE HE NECESSARILY WAS REQUIRED TO BEGIN THE TRAVEL FROM HIS HOME BY THE MODE OF TRANSPORTATION AUTHORIZED AND ACTUALLY USED SO AS TO ARRIVE AT HIS DUTY STATION ON THE DESIGNATED REPORTING DATE.

SINCE IT HAS BEEN REASONABLY ESTABLISHED THAT MR. ROSS WOULD HAVE HAD TO TRAVEL FROM HIS HOME TO HIS DUTY STATION ON THURSDAY, AUGUST 13, 1970, IN ORDER TO REPORT BEFORE 12:00 NOON ON AUGUST 15, 1970, UTILIZING THE TRANSPORTATION AUTHORIZED IN HIS CASE, WE ARE OF THE VIEW THAT HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THAT DAY AND TO PAY AND ALLOWANCES DURING THE PERIOD HE WAS PHYSICALLY INCAPABLE OF PERFORMING HIS MILITARY DUTIES.