B-198173.OM, NOV 10, 1980

B-198173.OM, NOV 10, 1980

SUBJECT: CLAIM OF JANE A. DAVIS FOR FUNERAL AND BURIAL EXPENSES UNDER 10, U.S.C. 1482, Z-2818766

OGC:

WE ARE FORWARDING MRS. DAVIS'S CLAIM. HER HUSBAND, COL. FRANK E. DAVIS, WAS ON INACTIVE DUTY TRAINING ON AUGUST 19, 1979. WHILE ON A FOUR MILE WALK, SCHEDULED FOR 8 TO 9 AM, COL. DAVIS COMPLAINED OF CHEST PAINS. WAS EXAMINED AND CONTINUED THE WALK. AFTER RETURNING TO THE RESERVE CENTER, HE BECAME ILL AGAIN. HE WENT HOME AND WAS TAKEN TO A HOSPITAL WHERE LATER HE DIED. THE DEPARTMENT OF THE ARMY HAS PROVIDED TWO CASUALTY REPORTS WITH CONFLICTING INFORMATION. ONE STATES COL. DAVIS WAS DISMISSED AT 2 PM. THE OTHER INDICATES THAT HE WENT HOME FOR LUNCH SOMETIME BEFORE 12:35 PM.

THE COMPTROLLER GENERAL HAS HELD THAT MEMBERS KILLED RETURNING TO THEIR HOMES FOR REQUIRED EQUIPMENT WERE NOT CONSIDERED EMPLOYED UNDER TITLE 27, U.S. CODE, SECTION 204. 52 COMP.GEN. 28. HOWEVER, THE COMPTROLLER GENERAL HAS ALSO HELD THAT AN EMPLOYEE ORDERED TO RETURN HOME TO OBTAIN A RECORD NOT USUALLY REQUIRED IS CONSIDERED TO BE EMPLOYED UNDER THE SECTION. 54 COMP.GEN. 165.

WE ARE UNABLE TO DETERMINE COL. DAVIS'S STATUS WHEN HE RETURNED TO HIS RESIDENCE. THEREFORE, WE REQUEST YOUR ADVICE CONCERNING COL. DAVIS'S DUTY STATUS WHILE AT HOME FOR LUNCH. THE ADJUDICATOR HANDLING THE MATTER IS ARTHUR JAMES WHOSE EXTENSION IS 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE FILE INDICATES THAT COLONEL DAVIS WAS SCHEDULED TO ATTEND INACTIVE DUTY TRAINING WITH HIS RESERVE UNIT ON AUGUST 19, 1979, FROM 5 A.M. TO 3:30 P.M., WHICH INCLUDED PARTICIPATION IN A 4-MILE WALK IN CONJUNCTION WITH AN ORDERED ALERT. ALTHOUGH CONFLICTING CASUALTY REPORTS WERE SUBMITTED DATED AUGUST 20, 1979, AND OCTOBER 11, 1979, THE RECORD SHOWS CONCLUSIVELY THAT HE INCURRED CHEST PAINS DURING THE COURSE OF THE WALK WHICH REQUIRED HIM TO STOP AND REST. RETURNING TO THE RESERVE CENTER, HE AGAIN BECAME ILL. THEREAFTER IT IS UNCLEAR WHETHER HE WAS RELEASED AT 2 P.M. AND RETURNED HOME OR WAS AUTHORIZED TO RETURN HOME FOR LUNCH WITH THE INTENTION OF LATER RETURNING TO THE RESERVE CENTER TO COMPLETE HIS TRAINING. AFTER ARRIVING HOME, HIS CONDITION BECAME WORSE AND HE WAS TRANSPORTED TO THE RIVERSIDE HOSPITAL WHERE HE WAS PRONOUNCED DEAD AT 2:35 P.M. ON AUGUST 19, 1979.

THE INITIAL CASUALTY REPORT INDICATES THAT HE WAS DISMISSED FROM THE EXERCISE AT 2 P.M. HOWEVER, A SUPPLEMENTARY REPORT INDICATES THAT HE WAS NOT DISMISSED FROM THE DRILL BUT MERELY WAS AUTHORIZED TO GO HOME FOR LUNCH WITH THE EXPECTATION HE WOULD RETURN TO THE DRILL. ON THE BASIS OF THE SUPPLEMENTARY REPORT IT SEEMS CLEAR THAT HE WAS NOT DISMISSED AT 2 P.M., SINCE THAT REPORT PROVIDES DETAILS CONCERNING THE TIME HE WAS TRANSPORTED AND ARRIVED AT THE HOSPITAL, 1:29 P.M. AND 1:37 P.M., RESPECTIVELY. IN VIEW OF THIS, IT IS OUR VIEW THAT THE SECOND REPORT PRESENTS A MORE ACCURATE DESCRIPTION OF WHAT HAPPENED AND WAS BASED ON A MORE THOROUGH INVESTIGATION.

ENTITLEMENT OF ARMY RESERVE PERSONNEL TO DEATH BENEFITS IS GOVERNED BY 10 U.S.C. 1481 WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) THE SECRETARY CONCERNED MAY PROVIDE FOR THE RECOVERY, CARE, AND DISPOSITION OF THE REMAINS OF -

"(2) ANY RESERVE OF AN ARMED FORCE UNDER HIS JURISDICTION WHO DIES WHILE *** (C) ON AUTHORIZED INACTIVE-DUTY TRAINING ***"

IN CONSTRUING SIMILAR PROVISIONS OF LAW APPLICABLE TO RESERVES WHEN INJURY OR DEATH OCCURS INCIDENT TO INACTIVE DUTY TRAINING, WE HAVE CONCLUDED THAT IF THE MEMBER IS UNDER MILITARY CONTROL WHEN INJURY OR DEATH OCCURS, THEN ENTITLEMENT TO CERTAIN BENEFITS EXISTS. SEE 54 COMP. GEN. 165 AND 523 (1974).

IN THIS CASE AS NOTED ABOVE THE SCHEDULED PERIOD OF DUTY WAS FROM 5 A.M. TO 3:30 P.M. FURTHER THE RECORD SHOWS THAT COLONEL DAVIS WAS AT HOME ON A LUNCH BREAK WHEN HE SUFFERED THE HEART ATTACK AND COULD NOT HAVE BEEN DISMISSED FROM DUTY AT 2 P.M. THUS, IT IS OUR VIEW THAT HE WAS STILL UNDER MILITARY CONTROL AT THE TIME HE SUFFERED THE HEART ATTACK AND DIED SINCE THE SCHEDULED DUTY PERIOD HAD NOT BEEN CONCLUDED.

ACCORDINGLY, PAYMENT OF THE BENEFITS IS AUTHORIZED TO HIS WIDOW IN ACCORDANCE WITH 10 U.S.C. 1482, IF OTHERWISE CORRECT.

DIGEST

ARMY RESERVE MEMBER ON AUTHORIZED INACTIVE DUTY TRAINING WHO WHILE ON LUNCH BREAK AT HOME SUSTAINED AN APPARENT HEART ATTACK AND DIED IS CONSIDERED UNDER MILITARY CONTROL AND PAYMENT OF BURIAL BENEFITS UNDER 10 U.S.C. 1481 (A)(2)(C) IS PROPER.