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PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - DISABILITY DETERMINATION WHEN A MEMBER OF THE UNIFORMED SERVICES INJURED IN LINE OF DUTY WHILE PERFORMING ANNUAL FIELD TRAINING UNDER 32 U.S.C. 503 IS PERMITTED AFTER EXAMINATION AND MEDICAL TREATMENT ON TWO OCCASIONS TO RETURN TO DUTY AND ONLY AFTER RELEASE FROM MILITARY SERVICE DOES HE LEARN FROM A CIVILIAN DOCTOR THAT THE NATURE AND EXTENT OF HIS INJURIES WOULD HAVE PREVENTED THE PERFORMANCE OF MILITARY DUTY. 1965: REFERENCE IS MADE TO YOUR LETTER OF APRIL 29. HE WAS EXAMINED AND RECEIVED MEDICAL TREATMENT AT CAMP GRAYLING ON JULY 24 AND AUGUST 4. IT WAS THEN DETERMINED BY X-RAY THAT HE HAD FRACTURED FOUR RIBS AS A RESULT OF THE ACCIDENT WHICH OCCURRED ON JULY 22 AND HE RECEIVED A CERTIFICATE FROM THE PHYSICIAN THAT HE WAS NOT ABLE TO PERFORM HIS MILITARY DUTY DURING THE PERIOD AUGUST 10 TO 31.

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B-148324, AUG. 3, 1965, 45 COMP. GEN. 54

PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - DISABILITY DETERMINATION WHEN A MEMBER OF THE UNIFORMED SERVICES INJURED IN LINE OF DUTY WHILE PERFORMING ANNUAL FIELD TRAINING UNDER 32 U.S.C. 503 IS PERMITTED AFTER EXAMINATION AND MEDICAL TREATMENT ON TWO OCCASIONS TO RETURN TO DUTY AND ONLY AFTER RELEASE FROM MILITARY SERVICE DOES HE LEARN FROM A CIVILIAN DOCTOR THAT THE NATURE AND EXTENT OF HIS INJURIES WOULD HAVE PREVENTED THE PERFORMANCE OF MILITARY DUTY, THE CLAIM OF THE MEMBER FOR PAY AND ALLOWANCES TO COVER THE PERIOD BETWEEN DATE OF RELEASE FROM ACTIVE DUTY AND RETURN TO HIS CIVILIAN POSITION MAY BE PAID, NEITHER THE EXISTENCE NOR THE EXTENT OF THE INJURIES BECOMING MANIFEST UNTIL AFTER RELEASE OF THE MEMBER FROM ACTIVE DUTY, TO DENY HIS ENTITLEMENT TO THE BENEFITS OF 37 U.S.C. 204 (H) BECAUSE HE IN IGNORANCE OF THE SERIOUSNESS OF HIS INJURIES PERFORMED MILITARY DUTY IN THE INTERIM BETWEEN INJURY AND RELEASE FROM ACTIVE DUTY WOULD IN EFFECT DEPRIVE HIM OF THE BENEFITS CONGRESS INTENDED TO GRANT.

TO CAPTAIN G. L. BARBER, DEPARTMENT OF THE ARMY, AUGUST 3, 1965:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1965, FORWARDED BY THE OFFICE, CHIEF OF FINANCE, BY FIRST INDORSEMENT DATED JULY 7, 1965, REQUESTING A DECISION WHETHER PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES MAY BE MADE TO RALPH W. OTTO, E-7, NG 35 848 146, DURING THE PERIOD AUGUST 10 TO 31, 1964, IN THE CIRCUMSTANCES RELATED. YOUR REQUEST FOR DECISION HAS BEEN ALLOCATED D.O. NUMBER A-860 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT SERGEANT OTTO INCURRED AN INJURY ON JULY 22, 1964, IN LINE OF DUTY WHILE PERFORMING ANNUAL FIELD TRAINING DURING THE PERIOD JULY 22 TO AUGUST 9, 1964 (HAVING BEEN INJURED IN A TRUCK ACCIDENT WHILE EN ROUTE TO CAMP GRAYLING AS A MEMBER OF THE ADVANCE DETACHMENT). HE WAS EXAMINED AND RECEIVED MEDICAL TREATMENT AT CAMP GRAYLING ON JULY 24 AND AUGUST 4, 1964, AS A RESULT OF THE INJURY. YOU SAY THAT RECORDS INDICATE THAT THE MEDICAL AUTHORITIES AT CAMP GRAYLING RELEASED THE MEMBER TO DUTY AFTER EACH TREATMENT.

UPON RELEASE FROM ACTIVE DUTY SERGEANT OTTO CONTACTED HIS FAMILY PHYSICIAN ON AUGUST 10, 1964. IT WAS THEN DETERMINED BY X-RAY THAT HE HAD FRACTURED FOUR RIBS AS A RESULT OF THE ACCIDENT WHICH OCCURRED ON JULY 22 AND HE RECEIVED A CERTIFICATE FROM THE PHYSICIAN THAT HE WAS NOT ABLE TO PERFORM HIS MILITARY DUTY DURING THE PERIOD AUGUST 10 TO 31, 1964.

YOU SAY THAT DOUBT EXISTS AS TO THE VALIDITY OF THIS CLAIM IN VIEW OF DECISION OF MAY 19, 1964, B-148324, 43 COMP. GEN. 733, THAT ONCE AN INDIVIDUAL IS RETURNED TO LIMITED OR RESTRICTED DUTY STATUS ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES IS TOO DOUBTFUL TO WARRANT OUR APPROVAL OF PAYMENT THEREOF. YOU STATE FURTHER THAT IN THIS CASE SERGEANT OTTO WAS RETURNED TO A DUTY STATUS, BUT THAT IT WAS LATER DETERMINED BY A CIVILIAN PHYSICIAN THAT HE WAS NOT ABLE TO PERFORM HIS MILITARY DUTY.

IT APPEARS FROM THE RECORD FORWARDED WITH YOUR REQUEST FOR DECISION THAT DURING THE PERIOD OF HIS ANNUAL FIELD TRAINING HE WAS RETURNED TO DUTY ON JULY 24 AND AUGUST 4 AFTER A PHYSICAL EXAMINATION ON EACH OF THESE DATES, THAT HE WAS NOT HOSPITALIZED AT ANY TIME AS A RESULT OF THE INJURY, THAT HE WAS UNDER MEDICAL CARE FROM AUGUST 10 TO AUGUST 31, 1964, AND THAT HE WAS PERMITTED TO RETURN TO HIS CIVILIAN WORK AS AN ADMINISTRATIVE SUPPLY TECHNICIAN FOR COMPANY A, 2N BN, 137TH ARMOR, OHIO ARMY NATIONAL GUARD, ON SEPTEMBER 1, 1964.

THE VOUCHER SUBMITTED WITH YOUR REQUEST FOR DECISION RECITES THAT SERGEANT OTTO--- WAS TOTALLY DISABLED FOR PERFORMANCE OF HIS MILITARY DUTIES AND HIS NORMAL CIVILIAN PURSUITS DURING THE PERIOD FROM 10 AUGUST TO 31 AUGUST 1964, INCLUSIVE, DUE TO AN INJURY RECEIVED ON 22 JULY 1964 WHILE ENGAGED IN TRAINING DUTY UNDER 32 U.S.C. 503, WHICH WAS FOUND TO BE IN LINE OF DUTY AND WHICH FINDING WAS APPROVED BY THE FINAL APPROVING AUTHORITY (DEPT. OF ARMY) ON 30 OCTOBER 1964. HE HAS NOT BEEN RETIRED NOR SEPARATED FOR PHYSICAL DISABILITY.

IN OUR DECISION OF MAY 19, 1964, 43 COMP. GEN. 733, 737, WE SAID:

IT SEEMS REASONABLY CLEAR THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES * * * WHILE THE MEMBER CONCERNED IS TEMPORARILY DISABLED BY INJURY INCURRED IN LINE OF DUTY, IS BASED UPON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY * * * AND THAT THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE EXERCISE OF A SOUND ADMINISTRATIVE JUDGMENT. IF, DESPITE HIS INJURY, THE SERVICE CONCERNED SHOULD ACTUALLY RETURN HIM TO A LIMITED OR RESTRICTED RESERVE DUTY STATUS WHERE HE WOULD BE SUBJECT TO BEING CALLED UPON TO PERFORM SUCH DUTY AS HIS PHYSICAL CONDITION WOULD PERMIT, WE WOULD REGARD THE CONTINUED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IN SUCH CIRCUMSTANCES AS BEING TOO DOUBTFUL TO WARRANT OUR APPROVAL OF SUCH PAYMENT. 37 COMP. GEN. 558. IN EACH CASE, THE SERVICE CONCERNED SHOULD DETERMINE WHEN THE INJURED RESERVIST RECOVERS SUFFICIENTLY TO BE FIT TO PERFORM HIS NORMAL MILITARY DUTIES.

IN 37 COMP. GEN. 558 THERE WAS CONSIDERED THE EFFECT OF A "CONDITIONAL" RELEASE FROM A MILITARY HOSPITAL BY A SERVICE MEDICAL BOARD WITH THE RECOMMENDATION THAT THE MEMBER BE RETURNED TO A DUTY STATUS WITH TEMPORARY RESTRICTED DUTY OR WITH LIMITED ACTIVITIES AND THE FURTHER REQUIREMENT OF PERIODICALLY REPORTING FOR REEVALUATION OF PHYSICAL CONDITION. WHERE THE INJURY IS SUCH AS NOT TO WARRANT OR SUGGEST THE INSTITUTION OF DISABILITY RETIREMENT PROCEEDINGS AT THE DATE OF TERMINATION OF HOSPITALIZATION, WE SAID:

* * * THE DETERMINATION AS TO HOW LONG A MEMBER CONTINUES TO BE "DISABLED" APPEARS TO HAVE BEEN LEFT TO THE EXERCISE OF SOUND ADMINISTRATIVE DISCRETION. SINCE THERE ARE VARYING DEGREES OF ,TEMPORARILY RESTRICTED DUTY" AND "LIMITED ACTIVITIES" WHICH MAY BE APPLICABLE IN DIFFERENT CASES OF THE TYPE HERE INVOLVED, WHERE A MEMBER IS RETURNED TO A NATIONAL GUARD DUTY STATUS, WE BELIEVE THAT THE MATTER OF HIS RIGHT TO ACTIVE-DUTY PAY AND ALLOWANCES SHOULD BE DECIDED ON THE BASIS OF WHETHER OR NOT HE IS RETURNED TO A DUTY STATUS AND WITHOUT REGARD TO THE AMOUNT OR DEGREE OF RESTRICTED OR LIMITED DUTY IT IS RECOMMENDED THAT HE PERFORM AFTER HIS RETURN.

THE SITUATION HERE INVOLVED IS ESSENTIALLY DIFFERENT FROM THOSE INVOLVED IN THE ABOVE DECISIONS. IN THOSE SITUATIONS THE INABILITY OF THE MEMBER TO PERFORM MILITARY DUTY AT THE TIME OF THE INJURY OR IMMEDIATELY THEREAFTER WAS APPARENT AND THE MEMBER IN FACT HAD UNDERGONE HOSPITALIZATION OR MEDICAL TREATMENT FOR THE DISABILITY. HERE NEITHER THE EXISTENCE NOR THE EXTENT OF THE INJURIES WAS RECOGNIZED UNTIL AFTER THE MEMBER'S ACTUAL RELEASE FROM ACTIVE DUTY; IT WAS ALMOST A WEEK (6 DAYS) AFTER HIS LAST EXAMINATION BY THE SERVICE MEDICAL OFFICERS BEFORE THE DIAGNOSIS OF THE INJURIES BY A CIVILIAN DOCTOR WAS MADE. JUST AS THERE ARE MANY DISEASES THAT DO NOT IMMEDIATELY MANIFEST THEMSELVES WHEN FIRST CONTRACTED (SEE, FOR EXAMPLE, 33 COMP. GEN. 339 (1954) (, SO THERE ARE MANY INJURIES THAT DO NOT MANIFEST THEMSELVES OR THE EXTENT OF THE DAMAGE INVOLVED UNTIL SOME TIME AFTER THE INJURIES ARE INCURRED. TO DENY A MEMBER THE BENEFITS OF THE STATUTE BECAUSE HE PERFORMED MILITARY DUTY IN THE INTERIM IN HIS IGNORANCE OF THE EXISTENCE OR OF THE EXTENT OF THE INJURIES INCURRED, BECAUSE THE INJURIES DID NOT BECOME FULLY MANIFEST UNTIL AFTER THE MEMBER HAD THEREAFTER PERFORMED ACTIVE MILITARY DUTY AND HAD BEEN RELEASED THEREFROM WOULD IN EFFECT DEPRIVE HIM OF THE BENEFITS WHICH THE CONGRESS CLEARLY INTENDED TO GRANT IN SUCH CASES.

ACCORDINGLY, SINCE SERGEANT OTTO WAS DISABLED FOR PERFORMANCE OF HIS MILITARY DUTIES DURING THE PERIOD FROM AUGUST 10 TO AUGUST 31, 1964, INCLUSIVE, DUE TO AN INJURY RECEIVED ON JULY 22, 1964, IN LINE OF DUTY WHILE ENGAGED IN TRAINING DUTY UNDER THE PROVISIONS OF 32 U.S.C. 503, HE IS ENTITLED TO PAY AND ALLOWANCES FOR THAT PERIOD UNDER THE PROVISIONS OF 37 U.S.C. 204 (H). IF OTHERWISE CORRECT, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS PROPER.

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