B-70988, DECEMBER 19, 1947, 27 COMP. GEN. 333

B-70988, DECEMBER 19, 1947, 27 COMP. GEN. 333

PAY - ACTIVE DUTY - NAVAL RESERVE OFFICERS - DURING PERIOD OF HOSPITALIZATION SUBSEQUENT TO RELEASE FROM ACTIVE DUTY A NAVAL RESERVE OFFICER RETIRED FOR DISABILITY WHO WAS HOSPITALIZED BEFORE EXPIRATION OF HIS AUTHORIZED LEAVE GRANTED UNDER ORDERS DETACHING HIM FROM ACTIVE DUTY AND DIRECTING HIM TO PROCEED HOME AND, UPON EXPIRATION OF HIS LEAVE, TO REGARD HIMSELF RELEASED FROM ACTIVE DUTY IS NOT ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES SUBSEQUENT TO THE DATE HE REVERTED TO INACTIVE DUTY, BY REASON OF THE PROVISIONS IN SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, WHICH, WHILE GRANTING RESERVE OFFICER THE SAME HOSPITAL BENEFITS AS REGULAR NAVY OFFICERS DO NOT EXTEND TO THE STATUTORY ENTITLEMENT OF DISABLED REGULAR OFFICERS TO FULL PAY AND ALLOWANCES WHILE HOSPITALIZED OR AWAITING RETIREMENT ACTION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 19, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 4, 1947, WITH ENCLOSURES, WHEREIN YOU REQUEST A DECISION AS TO WHETHER COMMANDER ARTHUR J. LOEFFLER, MEDICAL CORPS, UNITED STATES NAVAL RESERVE ( RETIRED), IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 26, 1945, TO AUGUST 31, 1946, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT BY ORDERS DATED NOVEMBER 1, 1945, FROM THE MEDICAL OFFICER IN COMMAND, UNITED STATES NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, LIEUTENANT COMMANDER ARTHUR J. LOEFFLER WAS DISCHARGED FROM TREATMENT ON THAT DATE AND DIRECTED TO REPORT TO THE COMMANDANT, ELEVENTH NAVAL DISTRICT, SAN DIEGO, FOR FURTHER TRANSPORTATION TO THE U.S.S. BOTTINEAU ( APA 235). BY ENDORSEMENT 1, DATED NOVEMBER 1, 1945, FROM THE COMMANDANT, ELEVENTH NAVAL DISTRICT, THOSE ORDERS WERE MODIFIED TO THE EXTENT THAT THE OFFICER WAS THEREBY DETACHED FROM DUTY ON BOARD THE U.S.S. BOTTINEAU AND HE WAS DIRECTED TO PROCEED IMMEDIATELY TO LOS ANGELES, CALIFORNIA, AND REPORT, ON NOVEMBER 2, 1945, TO THE COMMANDING OFFICER, OFFICER PERSONNEL SEPARATION CENTER, FOR RELEASE TO INACTIVE DUTY. ENDORSEMENT 2, DATED NOVEMBER 2, 1945, INDICATES THAT HE REPORTED ON THAT DATE AS DIRECTED AND THAT HE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY. ACCORDINGLY, HE WAS DETACHED AND DIRECTED TO PROCEED TO HIS HOME, BEING GRANTED ONE MONTH AND TWENTY-THREE DAYS' LEAVE UPON THE EXPIRATION OF WHICH, AT MIDNIGHT, DECEMBER 25, 1945, HE WAS TO REGARD HIMSELF AS RELEASED FROM ALL ACTIVE DUTY.

APPARENTLY THE OFFICER PROCEEDED IN ACCORDANCE WITH HIS ORDERS BUT IT IS STATED THAT ON DECEMBER 12, 1945, PRIOR TO THE EXPIRATION OF THE LEAVE GRANTED HIM, HE WAS ADMITTED TO THE NAVAL HOSPITAL, CAMP WHITE, OREGON, FOR TREATMENT; THAT HE REMAINED HOSPITALIZED FOR SEVERAL MONTHS AND THAT ON SEPTEMBER 1, 1946, HE WAS PLACED ON THE RETIRED LIST ON ACCOUNT OF DISABILITY.

IN AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED AUGUST 5, 1947, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER, THE CONCLUSION IS REACHED THAT IN VIEW OF THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, AS AMENDED BY THE ACT OF OCTOBER 10, 1942, 56 STAT. 780, THE ORDERS ISSUED TO THE OFFICER, INSOFAR AS THEY PURPORTED TO EFFECT HIS RELEASE FROM ACTIVE DUTY ON DECEMBER 25, 1945, WERE IN CONTRAVENTION OF LAW AND THEREFORE INVALID. THAT CONCLUSION IS BASED ON THE PREMISE THAT OFFICERS OF THE NAVAL RESERVE, UNDER THE CONDITIONS STATED IN THE STATUTE, ARE ENTITLED, IN ALL RESPECTS, TO THE SAME BENEFITS AS OFFICERS OF THE REGULAR NAVY AND THAT SINCE OFFICERS OF THE REGULAR NAVY, DISABLED IN LINE OF DUTY, ARE ENTITLED UNDER STATUTE (SECTION 1265, REVISED STATUTES, AND PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, 37 U.S.C. SUPP. V. 105, 106) TO FULL PAY AND ALLOWANCES WHILE HOSPITALIZED OR AWAITING THE ACTION OF A RETIRING BOARD, A RESERVE OFFICER DISABLED IN LINE OF DUTY LIKEWISE IS ENTITLED TO SUCH BENEFITS. ON SUCH BASIS IT IS CONCLUDED THAT LIEUTENANT COMMANDER LOEFFLER, HAVING BEEN DISABLED IN LINE OF DUTY, WAS ENTITLED BY LAW TO BE RETAINED ON ACTIVE DUTY UNTIL HIS RETIREMENT WAS EFFECTED AND THAT ORDERS DEPRIVING HIM OF SUCH STATUTORY RIGHT COULD NOT BE LAWFULLY ISSUED AND PREVIOUS ORDERS TO THAT EFFECT COULD NOT BE LAWFULLY EXECUTED.

THE SAID SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, PROVIDES:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVED, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181) OR RETIRED PAY UNDER THE PROVISION OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE: PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM SEPTEMBER 6, 1939. ( ITALICS SUPPLIED.)

IT WILL BE NOTED THAT, CONTRARY TO WHAT IS STATED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL, THE STATUTE DOES NOT GRANT TO THE RESERVE OFFICERS DESCRIBED THEREIN THE "SAME BENEFITS" GRANTED OFFICERS OF THE REGULAR NAVY BUT GRANTS TO THEM ONLY THE SAME "PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS" GRANTED OFFICERS OF THE REGULAR NAVY. NO MENTION IS MADE THEREIN RELATIVE TO THE ACTIVE DUTY PAY AND ALLOWANCES OF RESERVE OFFICERS, NOR NEED THERE HAVE BEEN, SINCE THEIR ACTIVE DUTY PAY AND ALLOWANCES ARE GOVERNED BY OTHER STATUTORY PROVISIONS. SEE, GENERALLY, THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AS AMENDED, AND THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED. IT LONG HAS BEEN SETTLED THAT THE RIGHT OF AN OFFICER OF THE NAVAL RESERVE TO ACTIVE DUTY PAY AND ALLOWANCES IS CONTINGENT UPON HIS BEING ON ACTIVE DUTY AND IN TIME OF PEACE OR IN TIME OF WAR THE SECRETARY OF THE NAVY HAS AUTHORITY TO RELEASE ANY NAVAL RESERVE OFFICER FROM ACTIVE DUTY. SEE SECTIONS 5 AND 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED. THIS AUTHORITY WAS NOT IMPAIRED BY THE SAID SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940 AND THAT FACT APPARENTLY HERETOFORE HAS BEEN RECOGNIZED BY THE NAVY DEPARTMENT. SEE, FOR EXAMPLE, THE CASE OF ENSIGN CHARLES N. COLLIER, CONSIDERED IN DECISION OF MARCH 20, 1944, 23 COMP. GEN. 700, AND ALSTACON 312032 OF OCTOBER 31, 1945, WHICH PROVIDED THAT OFFICERS ON TERMINAL LEAVE INCIDENT TO THEIR RELEASE FROM ACTIVE DUTY COULD BE ADMITTED TO NAVY OR ARMY HOSPITALS BUT MADE NO PROVISION FOR THEIR CONTINUANCE ON ACTIVE DUTY BEYOND THE EXPIRATION OF THEIR TERMINAL LEAVE ON WHICH DATE THEY WERE TO BE RELEASED FROM ACTIVE DUTY. ALSO, SEE ALSTACON 222258 OF MARCH 22, 1946, PROVIDING THAT OFFICERS WHO ARE ADMITTED TO A NAVAL HOSPITAL WHILE ON TERMINAL LEAVE MAY HAVE THEIR ORDERS MODIFIED SO AS TO CONTINUE THEM ON ACTIVE DUTY DURING THE PERIOD OF THEIR HOSPITALIZATION, THUS RECOGNIZING THE BASIC NECESSITY FOR AMENDING THE ORDERS OF SUCH OFFICERS IN ORDER TO RETAIN THEM IN AN ACTIVE DUTY STATUS.

MOREOVER, NEITHER SECTION 1265, REVISED STATUTES, NOR SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C., SUPP. V, 105, 106), CITED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL, GIVE AN OFFICER OF THE REGULAR NAVY, DISABLED IN LINE OF DUTY, ANY UNQUALIFIED RIGHT TO FULL PAY AND ALLOWANCES WHILE HOSPITALIZED OR AWAITING THE ACTION OF A RETIRING BOARD. THE SAID SECTION 1265, REVISED STATUTES, REPEALED BY SECTION 4 OF THE ACT OF AUGUST 4, 1947, PUBLIC LAW 350, 61 STAT. 749, PROVIDED, IN PERTINENT PART (10 U.S.C. 841):

OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, SHALL RECEIVE FULL PAY * * *. THAT PROVISION NECESSARILY CONTEMPLATED ONLY THOSE OFFICERS WHO WERE OTHERWISE IN A PAY STATUS AND THUS EXCLUDED OFFICERS NOT ON ACTIVE DUTY. OF COURSE, OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY, UNLIKE OFFICERS OF THE NAVAL RESERVE, DO NOT HAVE BOTH AN ACTIVE AND INACTIVE DUTY STATUS. HOWEVER, WERE SUCH AN OFFICER PROPERLY DISCHARGED, OR OTHERWISE SEPARATED FROM THE ACTIVE SERVICE, WHILE HE WAS HOSPITALIZED OR AWAITING RETIREMENT, THAT STATUTE WOULD NOT HAVE OPERATED TO CONTINUE HIM IN A PAY STATUS. A MORE CLEAR ANALOGY WOULD BE DRAWN BETWEEN OFFICERS OF THE REGULAR NAVY AND RESERVE OFFICERS WITH RESPECT TO THEIR RIGHT TO PAY AND ALLOWANCES DURING A PERIOD OF HOSPITALIZATION BY COMPARING THE RESERVE OFFICER TO A RETIRED OFFICER OF THE REGULAR NAVY, BOTH OF WHOM MAY BE EITHER ON ACTIVE OR INACTIVE DUTY, AND A RETIRED OFFICER IN THE SAME SITUATION AS THE RESERVE OFFICER HERE IN QUESTION WOULD NOT BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES SUBSEQUENT TO THE EFFECTIVE DATE OF HIS RELEASE FROM ACTIVE DUTY IN HIS ORDERS. CF. 23 COMP. GEN. 193.

SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, MERELY PROVIDE FOR THE PAYMENT TO OFFICERS OF RENTAL AND SUBSISTENCE ALLOWANCES, IN ADDITION TO THEIR PAY, WHILE ON THE ACTIVE LIST, OR ON ACTIVE DUTY, AND THUS WOULD HAVE NO APPLICATION TO AN OFFICER NOT ON THE ACTIVE LIST AND NOT ON ACTIVE DUTY.

AS NOTED ABOVE, LIEUTENANT COMMANDER LOEFFLER WAS DIRECTED TO PROCEED TO HIS HOME AND WAS GRANTED ONE MONTH AND TWENTY-THREE DAYS' LEAVE UPON THE EXPIRATION OF WHICH AT MIDNIGHT, DECEMBER 25, 1945, HE WAS TO REGARD HIMSELF RELEASED FROM ALL ACTIVE DUTY. SINCE THOSE ORDERS WERE COMPETENT AND WERE NEVER MODIFIED OR CANCELLED IT SEEMS CLEAR THAT AT MIDNIGHT ON DECEMBER 25, 1945, THEY BECAME FULLY EXECUTED AND HE REVERTED TO AN INACTIVE STATUS. SINCE HE WAS NO LONGER ON ACTIVE DUTY THERE APPEARS NO LEGAL BASIS TO HOLD THAT HE WAS THEREAFTER ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AND, THEREFORE, THE QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE.