B-88967, JUNE 30, 1950, 29 COMP. GEN. 535

B-88967, JUNE 30, 1950, 29 COMP. GEN. 535

PAY - ACTIVE DUTY - MEMBERS OF THE NAVAL RESERVE - HOSPITALIZATION EXTENDING BEYOND PERIOD OF TRAINING DUTY A MEMBER OF THE NAVAL RESERVE WHO IS INJURED IN LINE OF DUTY WHILE EMPLOYED ON TRAINING DUTY IS ENTITLED, UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, TO RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AS A RESULT OF SUCH INJURY, EVEN THOUGH THE PERIOD OF SUCH HOSPITALIZATION EXTENDS BEYOND THE PERIOD OF HIS TRAINING DUTY. THE PLACE WHERE A MEMBER OF THE NAVAL RESERVE IS PERFORMING TEMPORARY TRAINING DUTY OF FIXED DURATION MAY NOT BE CONSIDERED A PERMANENT DUTY STATION WITHIN THE PURVIEW OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO AUTHORIZE THE PAYMENT OF QUARTERS ALLOWANCE DURING A PERIOD OF HOSPITALIZATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 30, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 31, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION AS TO THE PAY STATUS OF ROBERT EARL PREBLE, SEAMAN RECRUIT, 728 86 44, UNITED STATES NAVAL RESERVE, UNDER THE CIRCUMSTANCES RELATED BELOW.

IT APPEARS THAT BY ORDERS DATED DECEMBER 30, 1947, FROM THE COMMANDANT, NINTH NAVAL DISTRICT, MR. PREBLE WAS ORDERED TO REPORT TO THE COMMANDING OFFICER, NAVAL RESERVE ARMORY, CHICAGO, ILLINOIS, ON OR ABOUT JANUARY 2, 1948, FOR FURTHER ASSIGNMENT TO TRAINING DUTY FOR A PERIOD OF NINETY DAYS, SUCH ORDERS SPECIFICALLY PROVIDING THAT THE TRAINING DUTY WAS NOT TO EXTEND BEYOND MARCH 31, 1948. FROM THE EVIDENCE IN THE FILE IT FURTHER APPEARS THAT ON JANUARY 13, 1948, MR. PREBLE SUSTAINED A FRACTURE OF THE RIGHT HEEL WHICH IN THE OPINION OF THE BUREAU OF MEDICINE AND SURGERY, NAVY DEPARTMENT, WAS INCURRED IN LINE OF DUTY, ALTHOUGH NO OFFICIAL DETERMINATION HAS BEEN MADE IN THAT RESPECT. HE WAS ADMITTED TO THE NAVAL HOSPITAL AT GREAT LAKES, ILLINOIS, ON THAT SAME DAY FOR TREATMENT FROM WHERE HE WAS DISCHARGED ON APRIL 28, 1948, AND APPARENTLY HE RETURNED TO DUTY AT CHICAGO ON MAY 5, 1948. ON JUNE 3, 1948, HE AGAIN WAS ADMITTED TO THE NAVAL HOSPITAL AT GREAT LAKES FOR FURTHER TREATMENT OF HIS INJURED HEEL AND ON NOVEMBER 10, 1948, HE WAS FOUND TO BE FIT FOR DUTY INSOFAR AS HIS INJURY WAS CONCERNED. HOWEVER, IN THE MEANTIME, ON SEPTEMBER 10, 1948, HE HAD BEEN OBSERVED IN A TYPICAL EPILEPTIC SEIZURE. ACCORDINGLY, HE WAS RETAINED IN THE HOSPITAL FOR THE PURPOSE OF INVESTIGATING SUCH SEIZURES AND ON JANUARY 12, 1949, HE WAS DISCHARGED TO DUTY, REPORTING IN CHICAGO ON JANUARY 15, 1949.

IN THE MEANTIME, BY ORDERS DATED MARCH 25, 1948, FROM THE COMMANDANT, NINTH NAVAL DISTRICT, THE ORDERS OF DECEMBER 30, 1947, WERE MODIFIED TO EXTEND THE PERIOD OF TRAINING DUTY FOR NINETY-ONE DAYS COMMENCING APRIL 1, 1948, AND EXPIRING JUNE 30, 1948. BY SUBSEQUENT ORDERS DATED JUNE 25, 1948, JULY 2, 1948, SEPTEMBER 25, 1948, AND DECEMBER 1, 1948, THE PERIOD OF TRAINING DUTY WAS ULTIMATELY EXTENDED TO MARCH 31, 1949, ALTHOUGH HE ACTUALLY WAS NOT RELEASED FROM ACTIVE DUTY UNTIL JUNE 29, 1949, RECEIVING PAY AND ALLOWANCES THROUGH THAT DAY.

ON THE ABOVE STATEMENT OF FACTS, YOU REQUEST DECISION ON THE FOLLOWING QUESTIONS:

(1) IS PREBLE ENTITLED TO RETAIN THE AMOUNT PAID TO HIM AS PAY AND ALLOWANCES SUBSEQUENT TO MARCH 31, 1948, THE TERMINATING DATE SPECIFIED IN THE ORIGINAL EXTENDED TRAINING DUTY ORDERS, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSURE?

(2) IS PREBLE ENTITLED TO CREDIT, WHICH HAS NOT HERETOFORE BEEN MADE, OF RETROACTIVE QUARTERS ALLOWANCE, IN ACCORDANCE WITH PROVISIONS OF PARAGRAPH 54214-1, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, UPON HIS RETURN TO THE U.S. NAVAL RESERVE ARMORY, CHICAGO, ILLINOIS, SUBSEQUENT TO HIS RELEASE FROM U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, ON JANUARY 15, 1949, IF OTHERWISE ENTITLED?

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 201, READS, 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 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 OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME * * * HOSPITAL BENEFITS, AND 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.)

SECTION 4 OF THE SAID ACT OF JUNE 20, 1949, 63 STAT. 202, PROVIDES, IN PERTINENT PART, THAT---

THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM AUGUST 14, 1945, BUT NO BACK PAY, * * * SHALL BE HELD TO HAVE ACCRUED AS THE RESULT OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO SUCH DATE * * *.

THE LEGISLATIVE HISTORY OF THE SAID ACT OF JUNE 20, 1949, REVEALS THAT ONE OF ITS PURPOSES WAS TO PERMIT MEMBERS OF THE NAVAL RESERVE, WHO ARE INJURED IN LINE OF DUTY WHILE EMPLOYED ON TRAINING DUTY, TO RECEIVE ACTIVE -DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AS A RESULT OF SUCH INJURY NOTWITHSTANDING THE FACT THAT THE PERIOD OF SUCH HOSPITALIZATION EXTENDS BEYOND THE PERIOD OF THEIR TRAINING DUTY. HENCE, ASSUMING THAT IT WILL BE OFFICIALLY DETERMINED THAT MR. PREBLE'S INJURY WAS INCURRED IN LINE OF DUTY, HE WOULD BE ENTITLED UNDER THE SAID ACT TO ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIODS APRIL 1 TO APRIL 28, 1948, AND JUNE 3 TO NOVEMBER 10, 1948, EVEN THOUGH ORDERS HAD NOT BEEN ISSUED EXTENDING THE PERIOD OF TRAINING DUTY. SINCE HE PERFORMED TRAINING DUTY UNDER SUCH ORDERS DURING THE INTERIM APRIL 29 TO JUNE 2, 1948, HE WAS ENTITLED TO PAY AND ALLOWANCES UNDER SUCH ORDERS FOR THAT PERIOD AND, IN VIEW OF THE CIRCUMSTANCES, THIS OFFICE WILL NOT QUESTION HIS RIGHT TO RETAIN THE PAY AND ALLOWANCES RECEIVED BY HIM FOR THE PERIOD NOVEMBER 11 TO DECEMBER 31, 1948, SINCE THE EXTENSION OF HIS PERIOD OF TRAINING DUTY TO THAT DATE WAS THE DIRECT RESULT OF HIS INJURY.

AS TO THE PERIOD FROM AND AFTER JANUARY 1, 1949, THE RULE HAS BEEN THAT A MEMBER OF THE NAVAL RESERVE WHO IS ORDERED TO ACTIVE DUTY FOR MEDICAL TREATMENT, HOSPITALIZATION, ETC., IS NOT EMPLOYED ON ACTIVE DUTY SO AS TO ENTITLE HIM TO ACTIVE-DUTY PAY AND ALLOWANCES. 26 COMP. GEN. 107. AND, IT PREVIOUSLY HAS BEEN RECOGNIZED THAT WHERE A MEMBER OF THE RESERVE BECOMES ILL, OR CONTRACTS DISEASE WHILE ON TRAINING DUTY FOR A SPECIFIED PERIOD OF TIME, HE MAY NOT HAVE HIS ORDERS AMENDED TO EXTEND THE PERIOD OF TRAINING DUTY SO AS TO ENTITLE HIM TO PAY AND ALLOWANCES DURING A PERIOD OF HOSPITALIZATION OR TREATMENT SUBSEQUENT TO THE DATE ORIGINALLY FIXED FOR HIS RELEASE FROM ACTIVE DUTY. SEE NAVY DEPARTMENT COURT MARTIAL ORDER NO. 4-1948, PAGE 134, ET SEQ. IT WILL BE NOTED, ALSO, THAT THE ACT OF JUNE 20, 1949, SUPRA, DOES NOT AUTHORIZE BENEFITS FOR PERSONS SUFFERING DISABILITY OR DEATH FROM DISEASE (AS DISTINGUISHED FROM INJURIES) SUFFERED WHILE ON ACTIVE DUTY FOR TRAINING (AS DISTINGUISHED FROM EXTENDED NAVAL OR MILITARY SERVICE). HOWEVER, IN THE INSTANT CASE, WHILE IT WOULD APPEAR THAT THE AMENDING ORDERS OF DECEMBER 1, 1948, EXTENDING THE PERIOD OF MR. PREBLE'S TRAINING DUTY TO MARCH 31, 1949, WERE ISSUED PRIMARILY BECAUSE OF THE CONTINUED HOSPITALIZATION FOR DISEASE RATHER THAN ANY NEED TO CONTINUE TREATMENT FOR THE INJURY, SUCH CONTINUED HOSPITALIZATION MAY HAVE BEEN ATTRIBUTABLE TO SOME EXTENT TO THE INJURY AND SINCE HE ACTUALLY WAS HOSPITALIZED UNDER SUCH ORDERS ONLY UNTIL JANUARY 12 AND THEREAFTER PRESUMABLY PERFORMED SOME TRAINING DUTY, THE PAY AND ALLOWANCES RECEIVED BY HIM FOR THE PERIOD JANUARY 1 TO MARCH 31, 1949, WILL NOT BE QUESTIONED IN THE AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS, IF OTHERWISE CORRECT. IN THAT CONNECTION, AND AS NOTED ABOVE, IT APPEARS FROM A COPY OF MR. PREBLE'S NAVY PAY RECORD THAT HE ACTUALLY WAS PAID ACTIVE-DUTY PAY AND ALLOWANCES THROUGH JUNE 29, 1949, ON WHICH DATE HE WAS RELEASED FROM TRAINING DUTY. ASSUMING THAT FURTHER ORDERS WERE ISSUED AUTHORIZING HIM TO REMAIN ON TRAINING DUTY, AND THAT HE ACTUALLY PERFORMED SUCH DUTY, UNTIL THIS LATTER DATE, THERE WOULD APPEAR TO BE NO BASIS FOR DENYING HIM HIS ACTIVE-DUTY PAY AND ALLOWANCES DURING SUCH PERIOD.

WITH RESPECT TO YOUR SECOND QUESTION, THE THIRD PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 364, READS, IN PERTINENT PART, AS FOLLOWS:

ENLISTED MEN ENTITLED TO RECEIVE ALLOWANCES FOR QUARTERS * * * SHALL CONTINUE, WHILE THEIR PERMANENT STATIONS REMAIN UNCHANGED, TO RECEIVE SUCH ALLOWANCES WHILE SICK IN HOSPITAL OR ABSENT FROM THEIR PERMANENT/DUTY STATIONS IN A PAY STATUS * * *.

THE PURPOSE OF THE ABOVE-QUOTED PROVISION OF LAW WAS TO PERMIT AN ENLISTED MAN WHO WAS DRAWING A QUARTERS ALLOWANCE IN HIS OWN RIGHT AT HIS PERMANENT STATION TO CONTINUE TO DRAW SUCH ALLOWANCE WHILE HE WAS TEMPORARILY ABSENT THEREFROM, THE THEORY BEING THAT SUCH AN ENLISTED MAN WOULD, WHILE TEMPORARILY ABSENT FROM HIS PERMANENT STATION, CONTINUE TO MAINTAIN AND PAY FOR HIS QUARTERS AT THAT PLACE. THE PLACE WHERE A RESERVIST IS PERFORMING TEMPORARY TRAINING DUTY OF FIXED DURATION IS NOT A PERMANENT STATION WITHIN THE PURVIEW OF SUCH STATUTORY PROVISION AND THE PAYMENT OF THE QUARTERS ALLOWANCE DURING PERIOD OF HOSPITALIZATION IN SUCH CASES WOULD APPEAR TO BE NEITHER WITHIN THE LETTER NOR PURPOSE OF THE LAW. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.