B-86312, OCTOBER 14, 1949, 29 COMP. GEN. 183

B-86312, OCTOBER 14, 1949, 29 COMP. GEN. 183

PAY; TRANSPORTATION, ETC. - NAVAL RESERVISTS ORDERED TO TRAINING DUTY OFFICERS OR ENLISTED MEN OF THE NAVAL RESERVE WHO, PURSUANT TO TRAINING DUTY ORDERS, COMMENCED TRAVEL TO THEIR DUTY STATIONS FOR TRAINING, BUT WHO WERE UNABLE TO REPORT FOR, OR PERFORM, TRAINING DUTY BECAUSE OF INJURY OR ILLNESS, MAY NOT BE CONSIDERED AS ACTUALLY "EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY" WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SO AS TO BE ENTITLED THEREUNDER TO PAY AND ALLOWANCES FOR THE ORDERED PERIOD OF TRAINING DUTY. UNDER SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AUTHORIZING ACTIVE-DUTY PAY AND ALLOWANCES FOR MEMBERS OF THE NAVAL RESERVE ON TRAINING DUTY "WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY," A NAVAL RESERVE OFFICER WHO WAS HOSPITALIZED EN ROUTE TO HER TRAINING DUTY STATION AS A RESULT OF AN ACCIDENT, THE EMPLOYEES' COMPENSATION COMMISSION THEREAFTER ASSUMING RESPONSIBILITY FOR HER CARE, ETC., WOULD BE ENTITLED ONLY TO PAY AND ALLOWANCES FOR THE TIME REQUIRED TO TRAVEL FROM HER HOME TO THE PLACE OF HOSPITALIZATION, AND ALSO TO ONE-WAY MILEAGE BETWEEN SUCH POINTS. A NAVAL RESERVE ENLISTED MAN ORDERED TO TRAINING DUTY WHO PERFORMED TRAVEL FROM HIS HOME TO THE TRAINING DUTY STATION, BUT WHO PERFORMED NO ACTUAL TRAINING DUTY BECAUSE OF ILLNESS REQUIRING HOSPITALIZATION AT THE PLACE OF DUTY, IS TO BE REGARDED AS HAVING PERFORMED AUTHORIZED TRAVEL TO AND FROM TRAINING DUTY WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SO AS TO BE ENTITLED THEREUNDER TO PAY AND ALLOWANCES FOR THE TIME REQUIRED TO TRAVEL FROM HIS HOME TO THE PLACE OF TRAINING DUTY AND RETURN, AND TO REIMBURSEMENT FOR SUCH ROUND-TRIP TRAVEL AS AUTHORIZED BY LAW. MEMBERS OF THE NAVAL RESERVE ORDERED TO TRAINING DUTY WHO ARE INJURED WHILE EMPLOYED IN TRAVEL TO TRAINING DUTY, OR WHO ARE HOSPITALIZED AT PLACE OF DUTY FOR INJURY NOT INCURRED WHILE EMPLOYED ON TRAINING DUTY, ARE NOT ENTITLED TO THE PAY AND ALLOWANCE BENEFITS PRESCRIBED BY SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, FOR NAVAL RESERVISTS WHO SUFFER DISABILITY WHILE "EMPLOYED" ON ACTIVE DUTY OR TRAINING DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 14, 1949*

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 12, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS PRESENTED THEREIN WHICH ARE PREMISED ON THE FACTS APPEARING IN THE TWO EXAMPLES SET FORTH BELOW.

LIEUTENANT COMMANDER CARRIE M. ROSE, UNITED STATES NAVAL RESERVE, WAS DIRECTED BY ORDERS DATED OCTOBER 1, 1948, FROM THE COMMANDANT, NINTH NAVAL DISTRICT, ADDRESSED TO HER AT BATTLE CREEK, MICHIGAN, TO PROCEED AND REPORT TO THE MEDICAL OFFICER, NAVAL RESERVE TRAINING CENTER, BATTLE CREEK, MICHIGAN, FOR A PHYSICAL EXAMINATION. IF FOUND PHYSICALLY QUALIFIED SHE WAS TO PROCEED IN TIME TO REPORT TO THE MEDICAL OFFICER IN COMMAND, NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, ON OCTOBER 10, 1948, FOR FURTHER ASSIGNMENT TO TRAINING DUTY BY HIM FOR A PERIOD OF 14 DAYS. UPON COMPLETION OF SUCH TRAINING SHE WAS TO BE PROCESSED FOR RELEASE, PROCEED TO HER HOME, AND UPON ARRIVAL THERE SHE WAS TO CONSIDER HERSELF RELEASED FROM TRAINING DUTY.

LIEUTENANT COMMANDER ROSE WAS FOUND PHYSICALLY QUALIFIED ON OCTOBER 6, 1948, AND ON OCTOBER 10, 1948, WHILE PROCEEDING TO GREAT LAKES IN ACCORDANCE WITH HER ORDERS, SHE WAS INJURED IN AN AUTOMOBILE ACCIDENT REQUIRING HER HOSPITALIZATION AT A CIVILIAN HOSPITAL IN MICHIGAN CITY, INDIANA. IT IS STATED THAT THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION ASSUMED JURISDICTION OVER HER CASE ON OCTOBER 25, 1948, AND THAT ON NOVEMBER 30, 1948, SHE WAS TRANSFERRED TO THE NAVAL HOSPITAL, GREAT LAKES, TO CONTINUE TREATMENT AS AN EMPLOYEES' COMPENSATION COMMISSION PATIENT. IT IS REPORTED THAT SHE WAS STILL A PATIENT AT THIS LATTER HOSPITAL AS OF APRIL 9, 1949.

IN THE OTHER CASE IT APPEARS THAT BY ORDERS DATED DECEMBER 16, 1947, FROM THE COMMANDANT, NINTH NAVAL DISTRICT, HAROLD FRANKLIN COURTNEY, SEAMAN, FIRST CLASS, UNITED STATES NAVAL RESERVE, WAS DIRECTED TO PROCEED AND REPORT TO THE NAVAL RESERVE ARMORY, LEXINGTON, KENTUCKY, FOR A PHYSICAL EXAMINATION. IF FOUND PHYSICALLY QUALIFIED HE WAS TO PROCEED AND REPORT TO THE COMMANDANT, NINTH NAVAL DISTRICT, GREAT LAKES, ILLINOIS, ON OR ABOUT DECEMBER 22, 1947, FOR TRAINING DUTY FOR A PERIOD OF 14 DAYS. UPON COMPLETION OF SUCH TRAINING DUTY HE WAS TO BE PROCESSED FOR RELEASE, PROCEED TO HIS HOME ( LEXINGTON, KENTUCKY), AND UPON ARRIVAL THERE TO CONSIDER HIMSELF RELEASED FROM TRAINING DUTY.

MR. COURTNEY WAS FOUND PHYSICALLY QUALIFIED ON DECEMBER 23, 1947, AND ON DECEMBER 25, 1947, HE DEPARTED FROM LEXINGTON IN ACCORDANCE WITH HIS ORDERS. ON DECEMBER 26, WHILE ABOARD A TRAIN EN ROUTE TO GREAT LAKES, HE BECAME ILL AND UPON ARRIVAL THEREAT HE WAS ADMITTED TO THE NAVAL HOSPITAL AT THAT PLACE WHERE HE REMAINED AS A PATIENT UNTIL FEBRUARY 3, 1948, ON WHICH DATE HE REPORTED TO HEADQUARTERS, NINTH NAVAL DISTRICT, WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE, AND WAS DETACHED ON THAT DATE.

THE QUESTIONS PRESENTED FOR DECISION ARE AS FOLLOWS:

(A) IS LIEUTENANT COMMANDER CARRIE M. ROSE, 445286, HW, USNR-V, ENTITLED TO PAY AND ALLOWANCES FOR ALL OR ANY PART OF THE TRAINING DUTY PERIOD SPECIFIED IN HER ORDERS?

(B) IF NEGATIVE, IS LIEUTENANT COMMANDER ROSE ENTITLED TO PAY AND ALLOWANCES FOR THE TIME REQUIRED TO TRAVEL FROM HER HOME TO MICHIGAN CITY, INDIANA, AND RETURN?

(C) IS LIEUTENANT COMMANDER ROSE ENTITLED TO MILEAGE FROM HER HOME TO MICHIGAN CITY, INDIANA, AND RETURN; OR FROM HER HOME TO GREAT LAKES, ILLINOIS, AND RETURN, LESS COST OF TRANSPORTATION FURNISHED BY THE GOVERNMENT?

(D) IS HAROLD F. COURTNEY, SN, 6353832, 10-1, USNR, ENTITLED TO PAY AND ALLOWANCES FOR ALL OR ANY PART OF THE TRAINING DUTY PERIOD SPECIFIED IN HIS ORDERS?

(E) IF NEGATIVE, IS COURTNEY ENTITLED TO PAY AND ALLOWANCES FOR FEBRUARY 3, 1948, PLUS TIME REQUIRED TO TRAVEL FROM LEXINGTON, KENTUCKY, TO GREAT LAKES, ILLINOIS, AND RETURN?

(F) IS COURTNEY ENTITLED TO MILEAGE FROM LEXINGTON, KENTUCKY, TO GREAT LAKES, ILLINOIS, AND RETURN, LESS COST OF TRANSPORTATION FURNISHED BY THE GOVERNMENT?

(G) ASSUMING THE SAME CIRCUMSTANCES, WOULD LIEUTENANT COMMANDER ROSE BE ENTITLED TO CONTINUOUS PAY AND ALLOWANCES FROM THE DATE OF HER DEPARTURE FROM HOME, AND HER ORDERS SPECIFIED ACTIVE DUTY OF INDEFINITE DURATION RATHER THAN TRAINING DUTY FOR A PERIOD OF 14 DAYS?

(H) ASSUMING THE SAME CIRCUMSTANCES, WOULD COURTNEY BE ENTITLED TO PAY AND ALLOWANCES FROM THE DATE OF HIS DEPARTURE FROM HOME UNTIL FEBRUARY 3, 1948, THE DATE OF REPORTING, HAD HIS ORDERS SPECIFIED ACTIVE DUTY OF INDEFINITE DURATION RATHER THAN TRAINING DUTY FOR A PERIOD OF 14 DAYS?

SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED, 34 U.S.C. 853E, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

COMMISSIONED OFFICERS EXCLUSIVE OF CHIEF WARRANT OFFICERS OF THE NAVAL RESERVE * * * WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY * * * SHALL RECEIVE THE PAY AND ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES, AND SHALL WHEN TRAVELING UNDER ORDERS OR UNDER COMPETENT AUTHORITY RECEIVE TRANSPORTATION IN KIND, MILEAGE, OR ACTUAL EXPENSES AS PROVIDED BY LAW FOR TRAVEL PERFORMED BY OFFICERS OF THE REGULAR NAVY. * * * NURSES, AND ENLISTED MEN OF THE NAVAL RESERVE * * * WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY * * * NURSES, AND ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE * * *. ( ITALICS SUPPLIED.)

IT WILL BE NOTED THAT THE ABOVE-QUOTED PROVISIONS OF LAW EXPRESSLY DISTINGUISH BETWEEN BEING ,EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY" AND BEING "EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.' AND, WHILE BOTH THE RESERVISTS REFERRED TO HEREIN ACTUALLY BEGAN TRAVEL TO THEIR STATION TO REPORT FOR TRAINING DUTY, THEY WERE UNABLE TO REPORT FOR, OR PERFORM, TRAINING DUTY BECAUSE OF THEIR PHYSICAL CONDITION. HENCE, THEY NEVER ACTUALLY WERE "EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY" WITHIN THE PROVISION OF THE LAW SO AS TO ENTITLE THEM TO PAY AND ALLOWANCES FOR THE ORDERED PERIOD OF TRAINING DUTY. CF. 22 COMP. GEN. 158. ACCORDINGLY, QUESTIONS (A) AND (D) ARE ANSWERED IN THE NEGATIVE.

WITH RESPECT TO QUESTIONS (B), (C), (E), AND (F), AS NOTED ABOVE, IN ADDITION TO AUTHORIZING ACTIVE-DUTY PAY AND ALLOWANCES FOR MEMBERS OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY, SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, AUTHORIZES ACTIVE-DUTY PAY AND ALLOWANCES FOR SUCH MEMBERS "WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.' FROM THE FACTS STATED IN COMMANDER ROSE'S CASE, I THINK IT IS APPARENT THAT THE ONLY TRAVEL PERFORMED BY HER WHICH COULD BE CONSIDERED AS TRAVEL TO OR FROM TRAINING DUTY WAS THE TRAVEL FROM BATTLE CREEK, MICHIGAN, TO MICHIGAN CITY, INDIANA, SINCE RESPONSIBILITY FOR HER CARE, ETC., THEREAFTER WAS UNDERTAKEN BY THE EMPLOYEES' COMPENSATION COMMISSION. THEREFORE, SHE WOULD BE ENTITLED ONLY TO PAY AND ALLOWANCES FOR TIME REQUIRED TO TRAVEL FROM BATTLE CREEK TO MICHIGAN CITY, INDIANA, AND ALSO TO ONE-WAY MILEAGE BETWEEN THOSE POINTS. QUESTIONS (B) AND (C) ARE ANSWERED ACCORDINGLY.

AS TO MR. COURTNEY, IT LIKEWISE IS APPARENT THAT THE TRAVEL PERFORMED BY HIM FROM LEXINGTON, KENTUCKY, TO GREAT LAKES, ILLINOIS, WAS TRAVEL TO TRAINING DUTY AND, WHILE HE NEVER ACTUALLY PERFORMED ANY TRAINING DUTY, SINCE HE DID ARRIVE AT GREAT LAKES IN TIME TO PERFORM SUCH DUTY, THE RETURN TRAVEL PERFORMED BY HIM FROM GREAT LAKES TO LEXINGTON REASONABLY MAY BE CONSIDERED AS TRAVEL FROM TRAINING DUTY WITHIN THE CONTEMPLATION OF THE STATUTE. THEREFORE, HE IS ENTITLED TO PAY AND ALLOWANCES FOR THE TIME REQUIRED TO TRAVEL FROM LEXINGTON, KENTUCKY, TO GREAT LAKES, ILLINOIS, AND RETURN TO LEXINGTON, AND ALSO TO REIMBURSEMENT FOR SUCH ROUND-TRIP TRAVEL AS AUTHORIZED BY LAW. QUESTIONS (E) AND (F) ARE ANSWERED ACCORDINGLY.

QUESTIONS (G) AND (H) ARE ANSWERED IN THE NEGATIVE, SINCE THE DURATION OF THE DUTY TO BE PERFORMED HAS NO BEARING ON THE MATTER UNDER THE SAID PROVISIONS OF THE NAVAL RESERVE ACT OF 1938.

IN CONNECTION WITH THE FOREGOING THERE HAVE NOT BEEN OVERLOOKED THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 201, WHICH READ, IN PERTINENT PART, AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE WHO- -

(1) 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 WHILE SO EMPLOYED; OR

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY * * * SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME * * * PAY AND ALLOWANCES 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 * * *. (ITALICS SUPPLIED.)

IT WILL BE NOTED THAT COMMANDER ROSE COULD NOT BE ENTITLED TO THE BENEFITS OF THE ABOVE-QUOTED PROVISIONS OF LAW UNLESS HER INJURY COULD BE CONSIDERED TO HAVE BEEN INCURRED WHILE "EMPLOYED" ON ACTIVE DUTY OR ON TRAINING DUTY. HOWEVER, AS NOTED ABOVE, SHE NEVER WAS SO EMPLOYED BUT WAS EMPLOYED IN TRAVEL TO TRAINING DUTY WHEN INJURED. THE ANSWER WOULD NECESSARILY BE THE SAME HAD SHE BEEN EMPLOYED IN TRAVEL TO ACTIVE DUTY WHEN THE INJURY WAS SUSTAINED. SEE SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, WHICH, AS NOTED, CLEARLY DISTINGUISHES EMPLOYMENT ON ACTIVE DUTY OR TRAINING DUTY FROM TRAVEL TO AND FROM SUCH DUTY. AS TO MR. COURTNEY, IT MAY BE STATED THAT, IN ADDITION TO THE FACT THAT HIS INCAPACITY WAS NOT INCURRED WHILE HE WAS EMPLOYED ON TRAINING DUTY, SUCH INCAPACITY WAS NOT INCURRED AS THE RESULT OF AN INJURY. THEREFORE, NEITHER COMMANDER ROSE NOR MR. COURTNEY WOULD APPEAR TO BE ENTITLED TO THE BENEFITS OF THE SAID SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED. REFERRING TO YOUR QUESTION (H), THE ANSWER WOULD BE THE SAME IF THE ORDERS HAD SPECIFIED ACTIVE DUTY OF INDEFINITE DURATION, SINCE IN NEITHER CASE WOULD THE DISABILITY HAVE BEEN SUFFERED WHILE EMPLOYED ON SUCH DUTY.