B-58623, AUGUST 12, 1946, 26 COMP. GEN. 107

B-58623, AUGUST 12, 1946, 26 COMP. GEN. 107

PAY - ACTIVE DUTY - NAVAL AND MARINE CORPS RESERVE OFFICERS - DURING HOSPITALIZATION, ETC., AFTER RELEASE FROM ACTIVE DUTY OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO, SUBSEQUENT TO RELEASE FROM ACTIVE DUTY, ARE ORDERED TO "ACTIVE DUTY" FOR MEDICAL TREATMENT, HOSPITALIZATION, ETC., AND POSSIBLE CONSIDERATION FOR RETIREMENT, ARE NOT "EMPLOYED ON ACTIVE DUTY" WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SO AS TO BE ENTITLED TO ACTIVE -DUTY PAY AND ALLOWANCES THEREUNDER DURING SUCH PERIOD OF HOSPITALIZATION, ETC.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, AUGUST 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 15, 1946, AS FOLLOWS:

THE NAVY DEPARTMENT IS CONCERNED WITH RESPECT TO THE STATUS OF A LIMITED NUMBER OF OFFICERS OF THE NAVAL AND MARINE CORPS RESERVE WHO HAVE BEEN, OR MAY BE RELEASED FROM ACTIVE DUTY, AND WHO MAY BE SUFFERING FROM SERVICE- CONNECTED DISABILITIES REQUIRING HOSPITALIZATION AND/OR POSSIBLE CONSIDERATION FOR THE BENEFITS OF RETIREMENT PROCEEDINGS. WHEN SUCH DISABILITIES ARE DISCOVERED, AND NECESSARY ADMINISTRATIVE ACTION TAKEN PRIOR TO THE DATE AN OFFICER GOES TO INACTIVE DUTY (EXPIRATION OF TERMINAL LEAVE), NO INJUSTICE RESULTS.

WHEN THE DISABILITY IS NOT DISCOVERED PRIOR TO THIS TIME (AS WHEN REVIEW OF CHEST X-RAY FILM IN BUREAU OF MEDICINE AND SURGERY DISCLOSES A CONDITION REQUIRING TREATMENT, FURTHER OBSERVATION AND REPORT, OR WHEN THROUGH ERROR OR LACK OF TIME AN OFFICER GOES TO INACTIVE DUTY BEFORE HIS TERMINAL LEAVE HAS BEEN CANCELLED AND HE HAS BEEN ORDERED TO CONTINUE TREATMENT, PREVIOUS RULINGS OF YOUR OFFICE PRECLUDE THE ASSIGNMENT OF SUCH AN OFFICER TO AN ACTIVE DUTY STATUS FOR THE PURPOSE OF HOSPITALIZATION, TREATMENT AND REPORT, AND SUCH SUBSEQUENT ACTION LOOKING TOWARD RETIREMENT AS MAY BE INDICATED.

IN THE INSTANCES SUCH AS ABOVE, I FEEL THAT THE GOVERNMENT HAS A MORAL OBLIGATION TO ENSURE THAT THE OFFICERS CONCERNED ARE AFFORDED FULL OPPORTUNITY FOR NECESSARY TREATMENT, OBSERVATION AND REPORT, AND THE ADVANTAGES OF SUCH RETIREMENT PROCEEDING AS MAY BE APPROPRIATE.

THEREFORE, IT IS REQUESTED THAT, IF POSSIBLE, YOU AUTHORIZE ACTIVE DUTY PAY WHERE THIS DEPARTMENT ISSUES ACTIVE DUTY ORDERS FOR THIS PURPOSE, WAIVING THE REQUIREMENT FOR PHYSICAL FITNESS FOR ACTIVE DUTY. * * *

THE NAVAL RESERVE, AS NOW CONSTITUTED, WAS ESTABLISHED BY THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AND UNDER SECTION 2 OF THAT ACT A MARINE CORPS RESERVE WAS ESTABLISHED UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THE ACT, OR WHICH MIGHT THEREAFTER BE ENACTED, PROVIDING FOR THE NAVAL RESERVE.

AUTHORITY FOR ORDERING MEMBERS OF THE NAVAL RESERVE AND, BY ASSIMILATION, MEMBERS OF THE MARINE CORPS RESERVE TO ACTIVE DUTY IS CONTAINED IN SECTION 5 OF THE SAID NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 4, 1942, 56 STAT. 739, WHICH PROVIDES:

ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309, TITLE III, OF THIS ACT, OR WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: PROVIDED, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

SECTION 7 OF SUCH ACT, 52 STAT. 1176, AUTHORIZES FOR RESERVE OFFICERS "WHEN EMPLOYED ON ACTIVE DUTY" THE SAME PAY AND ALLOWANCES AS AUTHORIZED FOR OFFICERS OF THE REGULAR NAVY.

PREVIOUS DECISIONS OF THIS OFFICE DENYING ACTIVE DUTY PAY AND ALLOWANCES FOR MEMBERS OF THE RESERVE WHO WERE ORDERED TO ACTIVE DUTY FOR THE PURPOSE OF HOSPITALIZATION, MEDICAL TREATMENT OR FOR CONSIDERATION FOR RETIREMENT, ETC., HAVE BEEN BASED ON THE PREMISE THAT THE SAID NAVAL RESERVE ACT OF 1938 CONTEMPLATED AN ASSIGNMENT TO ACTIVE DUTY, WITH PAY AND ALLOWANCES, ONLY OF THOSE MEMBERS OF THE RESERVE WHO ARE PHYSICALLY QUALIFIED THEREFOR AND THAT CLEARLY IT DID NOT CONTEMPLATE SUCH ASSIGNMENT TO "ACTIVE DUTY" FOR HOSPITALIZATION, ETC., OF MEMBERS WHO BY REASON OF THEIR PHYSICAL CONDITION WERE NOT EXPECTED TO, AND PROBABLY COULD NOT, PERFORM ACTIVE DUTY. SEE 21 COMP. GEN. 781, AND DECISION OF JUNE 19, 1942, B-25296 CF. MORROW V. UNITED STATES, 65 C.1CLS. 35, AND 22 COMP. GEN. 158. THAT A LIKE VIEW OF THE MATTER HAS BEEN TAKEN BY THE NAVY DEPARTMENT IS SHOWN BY THE REPORT DATED MARCH 16, 1943, FROM THE SECRETARY OF THE NAVY TO THE CHAIRMAN OF THE COMMITTEE ON CLAIMS, UNITED STATES SENATE, ON THE BILL S. 426 FOR THE RELIEF OF MAJOR GEORGE E. GOLDING, U.S. MARINE CORPS RESERVE, QUOTED IN REPORT NO. 236 OF THE SENATE COMMITTEE ON CLAIMS, 78TH CONGRESS, FIRST SESSION, TO ACCOMPANY SUCH BILL, IN PART AS FOLLOWS:

WHILE THE ORDERS OF NOVEMBER 4, 1941, USED THE WORDS "ASSIGNED TO ACTIVE DUTY" IT APPEARS THAT MAJOR GOLDING HAS NOT ACTUALLY PERFORMED, AND PROBABLY COULD NOT PERFORM, ACTIVE-DUTY WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 PROVIDING FOR ACTIVE-DUTY PAY AND ALLOWANCES FOR OFFICERS OF THE MARINE CORPS RESERVE "WHEN EMPLOYED ON ACTIVE DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.'

IN A DECISION OF THE ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES, B-25296, DATED JUNE 19, 1942, IT WAS HELD THAT: "PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO MAJOR GOLDING UNDER THE ORDERS OF NOVEMBER 4, 1941, WAS UNAUTHORIZED. ACTIVE-DUTY PAY AND ALLOWANCES ARE CONTEMPLATED OF THOSE MEMBERS OF THE RESERVE WHO ARE PHYSICALLY CAPABLE OF SERVING, THAT IS, PERFORMING DUTY IN THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS. CLEARLY THE STATUTE DOES NOT CONTEMPLATE THE ASSIGNMENT TO ACTIVE DUTY OF THOSE MEMBERS WHO ARE KNOWN TO BE PHYSICALLY INCAPABLE OF PERFORMING DUTY.'

MAJOR GOLDING WAS ORDERED TO ACTIVE DUTY FOR THE SOLE PURPOSE OF ESTABLISHING THE ORIGIN OF HIS DISABILITY AND DETERMINING HIS RIGHT TO BE PLACED UPON THE RETIRED LIST.

THE ACT OF OCTOBER 30, 1941, PUBLIC LAW 287, PROVIDING FOR PAY AND ALLOWANCES TO RESERVE AND RETIRED PERSONNEL ON ACTIVE DUTY, PROVIDES AS FOLLOWS:

"THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE AND RETIRED OFFICERS AND ENLISTED MEN OF THE NAVY AND MARINE CORPS WHO WERE ORDERED TO ACTIVE DUTY ON OR AFTER SEPTEMBER 8, 1939, CONTINGENT ON PHYSICAL QUALIFICATION THEREFOR, AND WHO WERE FOUND PHYSICALLY QUALIFIED, AND REPORTED FOR DUTY UNDER SUCH ORDERS, SHALL BE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES AND TO TRANSPORTATION OR MILEAGE FOR THE TIME AND DISTANCES ACTUALLY REQUIRED TO PERFORM THE NECESSARY TRAVEL BY THE SHORTEST USUALLY TRAVELED ROUTE FROM HOME TO PLACE OF ACTIVE DUTY, VIA THE PLACE OF PHYSICAL EXAMINATION: PROVIDED, THAT SUCH PERSONNEL EXAMINED AND FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE DUTY AND WHO RETURNED TO THE PLACE DESIGNATED IN THEIR ORDERS SHALL BE ENTITLED ONLY TO TRANSPORTATION OR MILEAGE FROM HOME TO PLACE OF PHYSICAL EXAMINATION AND RETURN.'

IN VIEW OF THE FOREGOING, THE NAVY DEPARTMENT RECOMMENDS AGAINST ENACTMENT OF THE BILL S. 426.

IT MAY BE POINTED OUT, MOREOVER, THAT THE ORDERING OF RESERVE OFFICERS TO ACTIVE DUTY UNDER THE CIRCUMSTANCES HERE CONSIDERED WOULD BE INCONSISTENT IN PRINCIPLE WITH THE PROVISIONS OF SECTION 308 OF THE SAID NAVAL RESERVE ACT OF 1938, 52 STAT, 1182, WHICH PROVIDES THAT ALL OFFICERS OF THE NAVAL RESERVE SHALL BE EXAMINED PHYSICALLY ONCE EVERY FOUR YEARS, OR OFTENER, AND IF FOUND "NOT PHYSICALLY QUALIFIED FOR ACTIVE SERVICE" THEY SHALL BE HONORABLY DISCHARGED OR IN THE DISCRETION OF THE SECRETARY OF THE NAVY PLACED ON THE HONORARY RETIRED LIST. AND WERE THE MATTER OTHERWISE IN DOUBT IT WOULD APPEAR CLEARLY TO BE RESOLVED BY THE PROVISIONS OF SECTION 304 OF THE SAID NAVAL RESERVE ACT OF 1938, 52 STAT. 1181, WHICH PROVIDES IN PART AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NAVAL RESERVISTS WHO BECOME ILL OR CONTRACT DISEASE IN LINE OF DUTY DURING THE PERFORMANCE OF ACTIVE DUTY OR TRAINING DUTY WITH OR WITHOUT PAY SHALL BE ENTITLED, AT GOVERNMENT EXPENSE, TO SUCH MEDICAL, HOSPITAL, OR OTHER TREATMENT AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH ILLNESS OR DISEASE UNTIL THE DISABILITY RESULTING FROM SUCH ILLNESS OR DISEASE CANNOT BE MATERIALLY IMPROVED BY HOSPITALIZATION OR TREATMENT, AND TO THE NECESSARY TRANSPORTATION AND SUBSISTENCE INCIDENT TO SUCH MEDICAL AND HOSPITAL TREATMENT AND RETURN TO THEIR HOMES WHEN DISCHARGED THEREFROM: PROVIDED FURTHER, THAT NO TREATMENT OR HOSPITALIZATION FOR SUCH ILLNESS OR DISEASE SHALL BE CONTINUED FOR MORE THAN TEN WEEKS FOLLOWING DISCHARGE FROM ACTIVE OR TRAINING DUTY EXCEPT ON THE APPROVED RECOMMENDATION OF A BOARD OF MEDICAL SURVEY, CONSISTING OF ONE OR MORE MEDICAL OFFICERS OF THE NAVY OR ON AUTHORIZATION OF THE SURGEON GENERAL OF THE NAVY BASED ON THE CERTIFICATE OF A REPUTABLE PHYSICIAN THAT THE ILLNESS OR DISEASE IS A CONTINUATION OF THE ILLNESS OR DISEASE WHICH WAS SUSTAINED OR CONTRACTED DURING THE PERIOD OF ACTIVE OR TRAINING DUTY AND THAT FURTHER BENEFIT WILL RESULT FROM CONTINUED TREATMENT * * *.

PROVISION IS THUS MADE FOR SUCH MEDICAL AND HOSPITAL TREATMENT, WITH TRANSPORTATION AND SUBSISTENCE, AS MAY BE NECESSARY AFTER RELEASE FROM ACTIVE DUTY WHEN THE RESERVIST BECOMES ILL OR CONTRACTS DISEASE IN LINE OF DUTY BUT NO PROVISION IS MADE EITHER SPECIFICALLY OR BY IMPLICATION FOR THE PAYMENT OF PAY AND ALLOWANCES DURING SUCH TREATMENT. SPECIFIC PROVISION HAVING BEEN MADE FOR SUCH BENEFITS, WITHOUT PAY, SUBSEQUENT TO THE RESERVIST'S RELEASE FROM ACTIVE DUTY, A FORMAL REASSIGNMENT TO "ACTIVE DUTY" FOR MEDICAL TREATMENT, HOSPITALIZATION, ETC., WOULD BE IN DEROGATION OF THE STATUTE IN THAT RESPECT AND COULD NOT LAWFULLY REVIVE A PAY STATUS. AS POINTED OUT IN THE DECISION OF FEBRUARY 18, 1942, 21 COMP. GEN. 781, SUPRA, HAD SUCH PAY PROVISION BEEN CONTEMPLATED BY SECTION 304, THE CONGRESS UNDOUBTEDLY WOULD HAVE USED APT LANGUAGE TO EFFECT SUCH INTENTION.

FOR SUCH REASONS, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO MIGHT BE ISSUED ORDERS TO ACTIVE DUTY UNDER THE CIRCUMSTANCES OUTLINED IN YOUR LETTER WOULD BE "EMPLOYED ON ACTIVE DUTY" WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, SO AS TO ENTITLE THEM TO ACTIVE DUTY PAY AND ALLOWANCES.