B-125748, JANUARY 26, 1956, 35 COMP. GEN. 422

B-125748, JANUARY 26, 1956, 35 COMP. GEN. 422

PAY - MISSING, INTERNED OR CAPTURED PERSONS - RESERVISTS ON INACTIVE DUTY TRAINING A RESERVIST WHO BECOMES MISSING WHILE ON INACTIVE-DUTY TRAINING IS NOT ENTITLED TO CREDIT FOR PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT. A RESERVIST IN MISSING STATUS WHO SUBSEQUENTLY IS DETERMINED TO HAVE DIED IN LINE OF DUTY FROM INJURIES RECEIVED ON INACTIVE-DUTY TRAINING IS NOT ENTITLED TO CREDIT UNDER THE MISSING PERSONS ACT FOR PAY AND ALLOWANCES RETROACTIVE TO DATE OF COMMENCEMENT OF ABSENCE. A RESERVIST WHO IS IN A MISSING STATUS WHILE ON INACTIVE-DUTY TRAINING AND IS SUBSEQUENTLY DETERMINED TO HAVE DIED UNDER CONDITIONS WHICH DO NOT ESTABLISH THAT DEATH RESULTED FROM INJURIES INCURRED IN LINE OF DUTY IS NOT ENTITLED TO HAVE HIS ACCOUNT CREDITED RETROACTIVELY WITH PAY AND ALLOWANCES FROM DATE OF COMMENCEMENT OF ABSENCE AND UP TO DATE OF DETERMINED DEATH UNDER THE MISSING PERSONS ACT.

TO THE SECRETARY OF DEFENSE, JANUARY 26, 1956:

REFERENCE IS MADE TO LETTER OF OCTOBER 10, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON CERTAIN QUESTIONS INVOLVING THE CREDITING OF PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT, 50 U.S.C., APP. 1001-1015, TO MEMBERS OF THE RESERVE COMPONENTS WHO BECOME MISSING WHILE PARTICIPATING IN INACTIVE DUTY TRAINING, WITH OR WITHOUT PAY, PURSUANT TO COMPETENT ORDERS. THERE WAS RECEIVED WITH SUCH LETTER A COPY OF COMMITTEE ACTION NO. 130, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, SETTING FORTH THE QUESTIONS FOR DECISION AS FOLLOWS:

1. MAY THE ACCOUNT OF A RESERVE MEMBER BE CREDITED WITH PAY AND ALLOWANCES WHEN HE BECOMES MISSING WHILE PARTICIPATING IN INACTIVE DUTY TRAINING PURSUANT TO COMPETENT ORDERS?

2. IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, WOULD IT ALSO APPLY TO A RESERVE MEMBER PARTICIPATING IN INACTIVE DUTY TRAINING PURSUANT TO COMPETENT ORDERS WITHOUT PAY?

3. IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE AND THE ANSWER TO THE SECOND QUESTION IS IN THE NEGATIVE, WILL A RESERVE MEMBER BE CONSIDERED, FOR ALL INACTIVE DUTY TRAINING PERIODS PERFORMED DURING A QUARTER-YEAR PERIOD, TO BE IN A PAY OR IN A WITHOUT-PAY STATUS WHERE HE IS ENTITLED TO RECEIVE PAY ONLY FOR A GIVEN NUMBER OF INACTIVE DUTY TRAINING PERIODS DURING THE QUARTER (I.E., 12/?

4. IF THE ANSWER TO QUESTIONS 1 OR 2, OR BOTH, IS IN THE NEGATIVE AND THE DEPARTMENT CONCERNED SUBSEQUENTLY RECEIVES EVIDENCE THAT THE RESERVE OFFICER DIED IN LINE OF DUTY FROM INJURY WHILE EMPLOYED IN INACTIVE DUTY TRAINING, MAY SUCH MEMBER'S PAY ACCOUNT BE CREDITED WITH PAY AND ALLOWANCES FROM THE DATE OF COMMENCEMENT OF ABSENCE UNTIL THE DATE OF RECEIPT OF SUCH EVIDENCE?

5. MAY THE MEMBER'S PAY ACCOUNT BE CREDITED WITH PAY AND ALLOWANCES FROM THE DATE OF COMMENCEMENT OF ABSENCE UNTIL THE DATE OF DEATH PRESCRIBED OR DETERMINED UNDER THE PROVISIONS OF SECTION 5, OF THE MISSING PERSONS ACT, EVEN THOUGH IT IS NOT POSSIBLE TO DETERMINE THAT DEATH RESULTED FROM INJURIES INCURRED IN LINE OF DUTY?

SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, PROVIDES, IN PART, AS FOLLOWS (QUOTING FROM 50 U.S.C., APP. 1002):

ANY PERSON WHO IS IN ACTIVE SERVICE AND WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, BELEAGUERED OR BESIEGED SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER, AND ENTITLEMENT TO PAY AND ALLOWANCES SHALL TERMINATE UPON THE DATE OF RECEIPT BY THE DEPARTMENT CONCERNED OF EVIDENCE THAT THE PERSON IS DEAD OR UPON THE DATE OF DEATH PRESCRIBED OR DETERMINED UNDER PROVISIONS OF SECTION 5 OF THIS ACT * * *.

SUCH SECTION RELATES CLEARLY AND SPECIFICALLY TO PERSONS WHO ARE "IN ACTIVE SERVICE," AND THE TERM "ACTIVE SERVICE" IS DEFINED IN SUBSECTION 1 (B) OF THE STATUTE, 56 STAT. 143, AS AMENDED, 50 U.S.C., APP. 1001, TO MEAN "ACTIVE SERVICE IN THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES, INCLUDING ACTIVE FEDERAL SERVICE PERFORMED BY PERSONNEL OF THE RETIRED AND RESERVE COMPONENTS OF THESE FORCES.'

THE FOLLOWING CONCLUSIONS, WITH WHICH WE AGREE, ARE STATED IN COMMITTEE ACTION NO. 130:

FROM THE LANGUAGE OF THE MISSING PERSONS ACT IT APPEARS THAT ONLY THOSE RESERVISTS "IN ACTIVE SERVICE" FALL WITHIN THE PURVIEW THEREOF. IF A RESERVIST NOT IN ACTIVE SERVICE IS INCLUDED WITHIN THE PURVIEW OF THE MISSING PERSONS ACT IT WOULD APPEAR, THEREFORE, TO BE THROUGH THE OPERATION OF PUBLIC LAW 108 * * *. * * * SINCE A RESERVIST WHO IS CARRIED IN A MISSING STATUS IS NOT, INSOFAR AS IS KNOWN, DISABLED OR DEAD DUE TO INJURY IT WOULD APPEAR THAT HE IS NOT INCLUDED WITHIN THE PURVIEW OF PUBLIC LAW 108. ACCORDINGLY, IT IS DOUBTFUL THAT THE PAY ACCOUNT OF A RESERVE MEMBER SHOULD BE CREDITED WITH PAY AND ALLOWANCES DURING THE PERIOD ON WHICH HE IS CARRIED IN A MISSING STATUS.

SECTIONS 1 AND 2 OF THE ACT OF JUNE 20, 1949 ( PUBLIC LAW 108), 63 STAT. 201, 34 U.S.C. 855C, AND 10 U.S.C. 456, SPECIFICALLY AUTHORIZE, AMONG OTHER THINGS, PAY AND ALLOWANCES (THE SAME AS THOSE PROVIDED BY LAW FOR MEMBERS OF REGULAR COMPONENTS) FOR ANY MEMBER OF ANY OF THE RESERVE COMPONENTS INCLUDED IN THOSE SECTIONS WHO SUFFERS DEATH OR DISABILITY IN LINE OF DUTY FROM AN INJURY SUSTAINED WHILE EMPLOYED ON "ACTIVE NAVAL OR MILITARY SERVICE OR * * * ACTIVE DUTY FOR TRAINING OR INACTIVE-DUTY TRAINING.' NOTWITHSTANDING SUCH SECTIONS SAY THAT RESERVISTS WHO "SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE EMPLOYED, SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY (OR NAVAL) SERVICE" DURING THE PERIOD OF EMPLOYMENT ON "ACTIVE NAVAL OR MILITARY SERVICE OR * * * ACTIVE DUTY FOR TRAINING OR INACTIVE-DUTY TRAINING," IT IS OUR VIEW THAT, INSOFAR AS RESERVISTS INJURED DURING INACTIVE-DUTY TRAINING ARE CONCERNED, THE ACT MEANS THAT THEY SHALL BE "DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE" FOR CERTAIN LIMITED PURPOSES ONLY AND NOT FOR ALL PURPOSES UNDER ALL LAWS GRANTING RIGHTS AND BENEFITS OR IMPOSING DUTIES AND RESPONSIBILITIES FOR RESERVE PERSONNEL IN ACTIVE SERVICE. COMPARE 30 COMP. GEN. 338. UNDER A VIEW TO THE CONTRARY AN EXCEEDINGLY STRANGE DISTINCTION WOULD HAVE TO BE MADE, FOR THE PURPOSES OF APPLYING THE MISSING PERSONS ACT, BETWEEN RESERVISTS ON INACTIVE-DUTY TRAINING WHO BECOME MISSING WITHOUT BEING INJURED AND RESERVISTS ON SUCH TRAINING WHO BECOME MISSING AND SUSTAIN AN INJURY AT THE SAME TIME.

FROM AN ANALYSIS OF THE ACT OF JUNE 20, 1949, AS A WHOLE, AND A STUDY OF THE LEGISLATIVE HISTORY OF THE ACT, IT IS REASONABLY CLEAR THAT IT WAS THE INTENT OF THE CONGRESS TO AUTHORIZE THE ACCRUAL OF PAY AND ALLOWANCES FOR RESERVISTS, INJURED IN LINE OF DUTY DURING TRAINING, ONLY WHILE THE RESERVIST IS ALIVE AND THE DISABILITY RESULTING FROM HIS INJURY CONTINUES TO EXIST. THAT INTENT IS EVIDENCED BY THE REPORT OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES ( REPORT NO. 582, 81ST CONGRESS, ST SESSION), ON THE BILL WHICH BECAME THE ACT OF JUNE 20, 1949. IN THAT REPORT IT IS STATED (QUOTING FROM PAGE 2):

THUS, THE PROPOSED BILL WOULD EXTEND TO RESERVES ON SHORT TRAINING PERIODS THE FOLLOWING BENEFITS: HOSPITALIZATION WITH ACTIVE-DUTY PAY, RETIREMENT PAY WHERE DISABILITY RETIREMENT IS WARRANTED, AND PAYMENT TO BENEFICIARIES OF THE 6-MONTH DEATH GRATUITY WHERE DEATH RESULTS FROM INJURY.

IT IS OUR OPINION THAT TO CONCLUDE THAT THE PAY AND ALLOWANCE BENEFITS SPECIFICALLY AUTHORIZED BY THE ACT OF JUNE 20, 1949, FOR A RESERVIST DISABLED FROM INJURY, INCLUDE THE RIGHT TO A CONTINUATION OF PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT BEYOND THE PERIOD WHEN THE RESERVIST IS DISABLED FROM THE INJURY INVOLVED WOULD BE INCONSISTENT WITH THE PURPOSE AND INTENT OF THAT ACT. MOREOVER, IT IS UNDERSTOOD THAT ONE OF THE PRINCIPAL REASONS FOR THE ENACTMENT OF THE MISSING PERSONS ACT IN MARCH 1942 WAS TO PROVIDE AUTHORITY FOR MONTHLY PAYMENTS OF ALLOTMENTS FOR SUPPORT OF DEPENDENTS AND PAYMENT OF INSURANCE PREMIUMS DURING PERIODS WHEN PERSONS IN ACTIVE SERVICE WERE ABSENT IN A STATUS OF MISSING, ETC. THAT RESULT COULD BE ACCOMPLISHED IN FEW, IF ANY, CASES OF THE CATEGORY HERE INVOLVED SINCE IN VIRTUALLY NO CASE OF A RESERVIST BECOMING MISSING WOULD IT BE KNOWN, PRIOR TO THE TERMINATION OF HIS MISSING STATUS, WHETHER HE HAD SUFFERED ,DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE EMPLOYED" ON INACTIVE-DUTY TRAINING, AND, THEREFORE, WHETHER HE WAS ENTITLED TO BENEFITS UNDER THE ACT OF JUNE 20, 1949.

IN ADDITION TO THE MATTERS DISCUSSED ABOVE, IT SEEMS APPROPRIATE, IN CONSIDERING THE QUESTIONS PRESENTED, TO ADVERT TO THE FACT THAT IN CASES OF THE TYPE HERE INVOLVED, THAT IS, IN CASES OF RESERVISTS ON INACTIVE- DUTY TRAINING WHO BECOME INJURED AND MISSING WHILE ON SUCH DUTY, THE RESERVIST USUALLY WOULD BE ENTITLED TO PAY AND ALLOWANCES UNDER THE ACT OF JUNE 20, 1949 (WITHOUT AID OF THE MISSING PERSONS ACT), IN THE SAME AMOUNT AS THAT WHICH WOULD HAVE BEEN CREDITED TO HIS ACCOUNT AS PAY AND ALLOWANCES IF THE MISSING PERSONS ACT HAD BEEN APPLICABLE IN THE CASE. THAT CONNECTION, AND ALSO ON THE MATTER OF WHETHER THE PAY AND ALLOWANCE BENEFITS OF THE ACT OF JUNE 20, 1949, WOULD ACCRUE IN CASES OF RESERVISTS WHO ARE DISABLED FROM INJURIES SUSTAINED WHILE EMPLOYED ON INACTIVE-DUTY TRAINING IN A NONPAY STATUS, YOUR ATTENTION IS INVITED TO DECISION OF MARCH 20, 1954 (B-117730), 33 COMP. GEN. 411, WHICH IS, IN PART, AS FOLLOWS:

THUS, THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 20, 1949, SUPPORTS THE VIEW, AND THE LANGUAGE OF THE ACT IS CONSISTENT WITH THE VIEW, THAT IT WAS NOT THE LEGISLATIVE INTENT TO MAKE ANY DISTINCTION BETWEEN DUTY WITH PAY AND DUTY WITHOUT PAY AND THAT IT WAS INTENDED THAT THE ACT SHOULD COVER PERIODS OF SERVICE WITHOUT PAY IF PERFORMED IN RESPONSE TO COMPETENT ORDERS. MOREOVER, THE LAST SENTENCE OF SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, QUOTED ABOVE, GIVES A CLEAR INDICATION THAT THE CONGRESS INTENDED THAT BENEFITS SUCH AS THOSE AUTHORIZED BY THE ACT OF JUNE 20, 1949, SHOULD ACCRUE, SUBJECT TO SPECIFIED CONDITIONS, TO RESERVISTS SERVING ON ACTIVE DUTY, TRAINING DUTY, OR INACTIVE DUTY TRAINING, WITH OR WITHOUT PAY, UNDER COMPETENT ORDERS. HENCE, IT IS CONCLUDED THAT BENEFITS UNDER THE SAID ACT MAY ACCRUE INCIDENT TO DEATH OR DISABILITY SUFFERED WHILE THE RESERVIST IS EMPLOYED ON ACTIVE DUTY WITHOUT PAY. COMPARE 29 COMP. GEN. 397; AND 31 COMP. GEN. 44. QUESTIONS A AND 2A ARE ANSWERED IN THE AFFIRMATIVE.

WITH REFERENCE TO QUESTIONS B AND 2B, THIS OFFICE HAS HELD, IN CASES INVOLVING MEMBERS OF THE MARINE CORPS RESERVE AND NAVAL RESERVE WHO WERE INJURED IN LINE OF DUTY WHILE ON TRAINING DUTY, THAT SUCH MEMBERS ARE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES (1) WHILE HOSPITALIZED BECAUSE OF DISABILITY RESULTING FROM THEIR INJURY; (2) DURING PERIODS AFTER RELEASE FROM HOSPITAL IF IT BE DETERMINED THAT THEY CONTINUE TO BE DISABLED FOR NORMAL PURSUITS BY THE DISABILITY FOR WHICH ORIGINALLY HOSPITALIZED; AND (3) WHILE AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED. SEE DECISIONS OF JUNE 19, 1950, 29 COMP. GEN. 509, AND NOVEMBER 15, 1950, 30 COMP. GEN. 185. AND, IN DECISION OF FEBRUARY 8, 1954, B 116906, 33 COMP. GEN. 339, IT WAS IMPLIED THAT, IN A CASE INVOLVING DISABILITY FROM DISEASE, THE PAY AND ALLOWANCE BENEFITS OF THE ACT OF JUNE 20, 1949, ARE TO BE REGARDED AS COMMENCING WITH THE DAY DETERMINED BY APPROPRIATE AUTHORITY TO BE THE DATE THE DISEASE IS CONTRACTED, IF THAT SHOULD BE NECESSARY TO MAINTENANCE OF AN UNINTERRUPTED PAY STATUS THROUGH AND BEYOND THE PERIOD OF DUTY CONTEMPLATED IN THE ORDERS, EVEN THOUGH THE MEMBER CONCERNED WAS NOT HOSPITALIZED FOR SUCH DISEASE UNTIL SOME DAYS THEREAFTER. THAT VIEW IS EQUALLY APPLICABLE IN THE CASE OF INJURY. WHILE THE MEMBERS CONCERNED IN THE CASES CONSIDERED IN THE CITED DECISIONS WERE ON TRAINING DUTY WITH PAY, NO BASIS IS PERCEIVED FOR ANY DIFFERENT CONCLUSION IN CASES INVOLVING ACTIVE DUTY WITHOUT PAY. IN SUCH CONNECTION, IT IS THE VIEW OF THIS OFFICE THAT THE LEGISLATIVE REPORT QUOTED IN THE DECISION OF JUNE 19, 1950 (IN SUPPORT OF THE CONCLUSION THAT THE MEMBER THERE CONCERNED WAS ENTITLED TO BE ,KEPT" IN A PAY STATUS UNTIL HIS CASE WAS FINALLY DISPOSED OF), WAS NOT INTENDED AS IMPLYING THAT MEMBERS OF THE RESERVE COMPONENTS MUST BE IN A DUTY STATUS WITH PAY AND ALLOWANCES WHEN THE DISABILITY IS INCURRED TO BE ENTITLED TO THE BENEFITS OF THE STATUTE. * * *

SUBJECT TO QUALIFICATIONS WHICH ARE EVIDENT FROM THE ABOVE DISCUSSION, QUESTIONS 1, 4, AND 5 ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTIONS 2 AND 3.

AS A MATTER OF INTEREST IN CONNECTION WITH THE FOREGOING, IT MAY BE NOTED THAT AT LEAST TWO BILLS HAVE BEEN INTRODUCED IN CONGRESS TO AMEND SECTION 2 OF THE MISSING PERSONS ACT TO EXTEND ITS BENEFITS TO MEMBERS OF THE UNIFORMED SERVICES WHO ARE PERFORMING TRAINING DUTY OR INACTIVE DUTY TRAINING. SEE H.R. 7002, 82D CONGRESS, 2D SESSION; AND S.1643, 84TH CONGRESS, ST SESSION.