B-111821, DEC 17, 1952

B-111821, DEC 17, 1952

PRECIS-UNAVAILABLE

GROVER T. BRECKENRIDGE:

REFERENCE IS MADE TO YOUR REQUEST OF SEPTEMBER 4, 1952, FOR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 12, 1952, WHICH DISALLOWED YOUR CLAIM FOR AMOUNTS BELIEVED TO HAVE ACCRUED TO YOU AS FIRST LIEUTENANT, U. S. AIR FORCE RESERVE, BETWEEN APRIL 5, 1951, TO MAY 14, 1951, INCLUSIVE.

THE RECORD SHOWS THAT BY ORDERS OF APRIL 16, 1950 (AIR FORCE RESERVE ORDERS NO. 41, ISSUED BY 2584TH AIR FORCE RESERVE TRAINING CENTER, MEMPHIS, TENNESSEE), YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 15 DAYS AT MEMPHIS, TENNESSEE, EFFECTIVE APRIL 30, 1950. APPEARS THAT ON MAY 8, 1950, WHILE IN THE PERFORMANCE OF AN AUTHORIZED FLIGHT DURING SAID TRAINING DUTY, YOU WERE IN AN AIRCRAFT ACCIDENT AND THAT YOU WERE HOSPITALIZED ON ACCOUNT OF THE INJURIES RESULTING FROM SUCH ACCIDENT AT THE UNITED STATES NAVAL HOSPITAL, WILLINGTON, TENNESSEE. THEREAFTER, ON JULY 28, 1950, WHILE STILL UNDER TREATMENT FOR THE SAID INJURIES AND WHILE ON AN AUTHORIZED PASS FROM THE UNITED STATES NAVAL HOSPITAL, WILLINGTON, TENNESSEE, YOU WERE IN AN AUTOMOBILE ACCIDENT WHICH RESULTED IN ADDITIONAL INJURIES NECESSITATING HOSPITALIZATION AND MEDICAL TREATMENT. THE MEDICAL REVIEW BOARD, UNITED STATES NAVAL HOSPITAL, WILLINGTON, TENNESSEE, REPORTS THAT YOU WOULD OTHERWISE HAVE BEEN DISCHARGED FROM HOSPITALIZATION ON "ABOUT 10 NOVEMBER 1950" FOR THE INJURIES INCURRED IN THE AIRCRAFT ACCIDENT OF MAY 8, 1950.

IN VIEW OF THE HOSPITALIZATION AND MEDICAL TREATMENT NECESSITATED BY THE INJURIES YOU HAD RECEIVED AND FOR THE EXPRESS PURPOSE OF CONTINUING YOU IN AN ACTIVE TRAINING DUTY STATUS, THERE WAS ISSUED BY THE 2584TH AIR FORCE RESERVE TRAINING CENTER, MEMPHIS, TENNESSEE, PARAGRAPH 7, AIR FORCE RESERVE ORDERS NO. 58, DATED MAY 18, 1950 (CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER OF MAY 14, 1950), PURPORTING TO EXTEND THE 15 DAY PERIOD OF YOUR ACTIVE DUTY FOR TRAINING FOR AN INDEFINITE PERIOD. SUBSEQUENT AIR FORCE RESERVE ORDERS DATED SEPTEMBER 13, 1950, THE PERIOD OF ACTIVE TRAINING DUTY PRESCRIBED IN THE ORDERS OF MAY 18, 1950, WAS CHANGED TO SIX MONTHS WITH EFFECTIVE DATE OF RELEASE FROM TRAINING AS OF NOVEMBER 14, 1950.

SPECIAL ORDERS NO. 218, HEADQUARTERS 2584TH AIR FORCE RESERVE TRAINING CENTER, MEMPHIS, TENNESSEE, DATED NOVEMBER 12, 1950, DIRECTED YOU TO PROCEED ON OR ABOUT NOVEMBER 14, 1950, TO DETACHMENT OF PATIENTS, MAXWELL AIR FORCE BASE HOSPITAL, ALABAMA, ON APPROXIMATELY THREE DAYS' TEMPORARY DUTY FOR THE PURPOSE OF PHYSICAL EXAMINATION AND TREATMENT AND UPON COMPLETION THEREOF TO RETURN TO YOUR STATION AT MEMPHIS, TENNESSEE, AND BY SPECIAL ORDERS NO. 222, SAME HEADQUARTERS, DATED NOVEMBER 18, 1950, THE PERIOD OF TEMPORARY DUTY PRESCRIBED IN SPECIAL ORDERS NO. 218, SUPRA, WAS EXTENDED TO MAY 16, 1951, "UNLESS SOONER RELIEVED." AIR FORCE RESERVE ORDERS NO. 108, OF NOVEMBER 19, 1950 (CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER OF NOVEMBER 15, 1950), FURTHER PURPORTED TO EXTEND THE 15 DAY PERIOD OF YOUR ACTIVE DUTY FOR TRAINING TO MAY 14, 1951.

IT APPEARS THAT YOU HAVE BEEN PAID ACTIVE DUTY PAY AND ALLOWANCES NOT ONLY FOR THE 15 DAY PERIOD OF ACTIVE TRAINING DUTY (APRIL 30 TO MAY 14, 1950, INCLUSIVE), PRESCRIBED IN AIR FORCE RESERVE ORDERS OF APRIL 16, 1950, BUT ALSO FOR THE PERIOD FROM MAY 15, 1950, TO APRIL 30, 1951, INCLUSIVE, PAYMENTS FOR THE LATTER PERIOD HAVING BEEN MADE ON THE BASIS OF THE AIR FORCE RESERVE ORDERS, ABOVE REFERRED TO ISSUED FOR THE PURPOSE OF EXTENDING THE PERIOD OF YOUR ACTIVE DUTY FOR TRAINING TO MAY 14, 1951. YOU NOW CLAIM MILEAGE AT THE RATE OF FIVE CENTS PER MILE FOR TRAVEL PERFORMED BY YOU APRIL 5, 1951, FROM MAXWELL AIR FORCE BASE HOSPITAL, ALABAMA, TO MEMPHIS, TENNESSEE, UNDER SPECIAL ORDERS NO. 218 AND 222, SUPRA; ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD MAY 1 TO 14, 1951 (BASED ON THE CONTENTION THAT YOU WERE ON ACTIVE TRAINING DUTY DURING SAID PERIOD), AND A LUMP-SUM LEAVE PAYMENT FOR 17 DAYS' UNUSED LEAVE BELIEVED TO HAVE ACCRUED TO YOU FOR THE PERIOD APRIL 30, 1950, TO MAY 14, 1951, INCLUSIVE. YOU ALSO CLAIM A MILEAGE ALLOWANCE FOR TRAVEL YOU PERFORMED APRIL 22 AND 23, 1951, BY COMMERCIAL BUS FROM ROBINS AIR FORCE BASE, GEORGIA, TO MEMPHIS, TENNESSEE, AND A PER DIEM ALLOWANCE FOR THE PERIOD APRIL 18 TO 23, 1951, INCLUSIVE, UNDER THE PROVISIONS OF SPECIAL ORDERS NO. 92, DATED APRIL 27, 1951 (CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER OF APRIL 18, 1951), WHICH DIRECTED YOU TO PROCEED FROM MEMPHIS, TENNESSEE, TO ROBINS AIR FORCE BASE, GEORGIA, ON OR ABOUT APRIL 18, 1951, ON TEMPORARY DUTY FOR APPROXIMATELY 5 DAYS FOR THE PURPOSE OF PHYSICAL EXAMINATION AND UPON COMPLETION THEREOF TO RETURN TO YOUR STATION MEMPHIS, TENNESSEE.

A DEFINITE AND FIXED PERIOD OF ACTIVE TRAINING DUTY, DIRECTED BY PROPER ORDERS, IS NOT EXTENDED BY REASON OF PHYSICAL DISABILITY (2 COMP. GEN. 692; 9 ID. 236), AND SUCH AN ORDER MAY NOT BE AMENDED OR MODIFIED SO AS TO EXTEND SUCH PERIOD OF ACTIVE TRAINING DUTY BEYOND THE PERIOD EXPRESSLY FIXED WHERE THE SOLE PURPOSE OF SUCH ACTION IS TO CONTINUE THE INDIVIDUAL IN AN ACTIVE PAY AND ALLOWANCE STATUS. 29 COMP. GEN. 535, 537. ACCORDINGLY, THE AIR FORCE RESERVE ORDERS, ABOVE REFERRED TO, PURPORTING TO EXTEND THE 15 DAY PERIOD OF YOUR ACTIVE DUTY FOR TRAINING BEYOND THE PERIOD (APRIL 30, 1950, TO MAY 14, 1950, INCLUSIVE) EXPRESSLY FIXED IN THE BASIC ACTIVE TRAINING DUTY ORDERS OF APRIL 16, 1950, WERE WITHOUT EFFECT. HENCE YOU WERE NOT IN AN AUTHORIZED ACTIVE TRAINING DUTY STATUS DURING THE PERIOD MAY 15, 1950, TO MAY 14, 1951, INCLUSIVE.

SECTION 2 OF THE ACT APPROVED JUNE 20, 1949, 63 STAT. 202, 10 U.S.C. 456, AMENDING PRIOR PROVISIONS OF LAW PROVIDES, INTER ALIA, THAT OFFICERS OF THE AIR FORCE OF THE UNITED STATES (OTHER THAN OFFICERS OF THE REGULAR AIR FORCE) CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO PERFORM ACTIVE DUTY FOR TRAINING FOR ANY PERIOD OF TIME WHO SUFFER DISABILITY "IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED" SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND 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 *** OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE *** REGULAR AIR FORCE." UNDER THE FOREGOING STATUTORY PROVISIONS YOU ARE ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD THAT YOU WERE HOSPITALIZED AS A RESULT OF THE INJURIES THAT WERE INCURRED BY YOU IN THE AIRCRAFT ACCIDENT ON MAY 8, 1950. 29 COMP. GEN. 509. HOWEVER, SINCE YOU WERE NOT IN AN AUTHORIZED ACTIVE TRAINING DUTY STATUS DURING THE PERIOD MAY 15, 1950, TO MAY 14, 1951, THE ADDITIONAL INJURIES INCURRED BY YOU IN THE AUTOMOBILE ACCIDENT OF JULY 28, 1950, DO NOT COME WITHIN THE SCOPE OF THE SAID ACT OF JUNE 20, 1949. HENCE, YOU ARE NOT ENTITLED TO HOSPITAL BENEFITS, OR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD OF YOUR HOSPITALIZATION EXTENDING BEYOND THAT REQUIRED FOR THE INJURIES YOU INCURRED IN THE AIRCRAFT ACCIDENT OF MAY 8, 1950.

ON THE BASIS OF THE FACTS ABOVE SET FORTH AND IN VIEW OF THE PERTINENT PROVISIONS OF APPLICABLE LAW AND REGULATIONS YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD MAY 1 TO 14, 1951, INCLUSIVE, MAY NOT BE ALLOWED. YOUR CLAIM FOR 17 DAYS' UNUSED LEAVE BELIEVED TO HAVE ACCRUED TO YOU DURING THE PERIOD APRIL 30, 1950, TO MAY 14, 1951, MUST BE DISALLOWED SINCE UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 60 STAT. 963, 37 U.S.C. 31A, ET. SEQ, LEAVE ACCRUES ONLY FOR "EACH MONTH OF ACTIVE SERVICE." ALSO, IN VIEW OF THE FACT THAT YOU WERE NOT IN AN AUTHORIZED ACTIVE DUTY OR ACTIVE TRAINING DUTY STATUS DURING THE PERIOD MAY 15, 1950, TO MAY 14, 1951, NO PROPER BASIS IS PRESENTED FOR THE PAYMENT TO YOU OF THE MILEAGE ALLOWANCE CLAIMED FOR THE TRAVEL YOU PERFORMED APRIL 5, 1951, OR THE MILEAGE AND PER DIEM CLAIMED FOR TRAVEL AND TEMPORARY DUTY DURING THE PERIOD APRIL 18 TO 23, 1951. THE SETTLEMENT OF AUGUST 12, 1952, IS ACCORDINGLY SUSTAINED.

INASMUCH AS THE REPORT SUBMITTED BY THE MEDICAL REVIEW BOARD, UNITED STATES NAVAL HOSPITAL, WILLINGTON, TENNESSEE, DISCLOSES THAT YOUR DISCHARGE FROM HOSPITALIZATION ON ACCOUNT OF THE INJURIES THAT YOU SUSTAINED IN THE AIRCRAFT ACCIDENT ON MAY 8, 1950, WOULD HAVE BEEN "ABOUT 10 NOVEMBER 1950" AND IN VIEW OF THE FACT THAT YOU APPEAR TO HAVE BEEN RELEASED FROM THE UNITED STATES NAVAL HOSPITAL, WILLINGTON, TENNESSEE, PURSUANT TO THE PROVISIONS OF SPECIAL ORDERS NO. 218, SUPRA, WHICH PLACED YOU ON TEMPORARY DUTY ON OR ABOUT NOVEMBER 14, 1950, WITH DETACHMENT OF PATIENTS AT THE MAXWELL AIR FORCE BASE STATION HOSPITAL, ALABAMA, FOR THE PURPOSE OF PHYSICAL EXAMINATION AND TREATMENT AT THAT PLACE, IT APPEARS THAT YOUR STATUS FOR HOSPITAL BENEFITS AND PAY AND ALLOWANCES UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 20, 1949, SUPRA, TERMINATED NOT LATER THAN NOVEMBER 14, 1950. ACCORDINGLY, THE CONCLUSION IS REQUIRED THAT YOU HAVE BEEN ERRONEOUSLY PAID ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 15, 1950, TO APRIL 30, 1951, INCLUSIVE.