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ETC. - ABILITY TO PERFORM LIMITED DUTY UNDER 37 U.S.C. 204 (I) A RESERVE MEMBER OF THE NAVAL SERVICE WHO IS DISABLED BY DISEASE INCURRED IN LINE OF ACTIVE DUTY OR INJURED WHILE IN THE PERFORMANCE OF ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME IS ENTITLED TO THE SAME PAY AND ALLOWANCES WHICH WOULD BE PAYABLE IN THE SAME CIRCUMSTANCES TO A MEMBER OF THE REGULAR NAVY OF CORRESPONDING GRADE AND LENGTH OF SERVICE. WHETHER A DISABLED RESERVIST WHO IS PHYSICALLY QUALIFIED TO PERFORM DUTY OF A LIMITED OR RESTRICTED NATURE IS ENTITLED TO PAY AND ALLOWANCES. IF SO WHETHER THE ENTITLEMENT WOULD CONTINUE UNTIL HE IS QUALIFIED TO PERFORM HIS FULL AND SPECIALIZED DUTIES. PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - ABILITY TO PERFORM LIMITED DUTY EFFECT A RESERVE OFFICER INJURED IN LINE OF DUTY WHO IS NOT PHYSICALLY CAPABLE OF PERFORMING HIS NORMAL DUTIES AS AN AVIATION PILOT AND WHO ALTHOUGH ABLE TO PERFORM IS NOT PLACED IN A LIMITED OR RESTRICTED RESERVE DUTY STATUS UPON RELEASE FROM HOSPITALIZATION IS NEVERTHELESS ENTITLED TO PAY AND ALLOWANCES UNTIL HE IS PHYSICALLY FIT TO PERFORM HIS FULL AND SPECIALIZED NAVAL DUTIES.

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B-148324, JULY 2, 1968, 48 COMP. GEN. 1

MILITARY PERSONNEL - RESERVISTS - DEATH OR INJURY - INACTIVE DUTY TRAINING, ETC. - ABILITY TO PERFORM LIMITED DUTY UNDER 37 U.S.C. 204 (I) A RESERVE MEMBER OF THE NAVAL SERVICE WHO IS DISABLED BY DISEASE INCURRED IN LINE OF ACTIVE DUTY OR INJURED WHILE IN THE PERFORMANCE OF ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME IS ENTITLED TO THE SAME PAY AND ALLOWANCES WHICH WOULD BE PAYABLE IN THE SAME CIRCUMSTANCES TO A MEMBER OF THE REGULAR NAVY OF CORRESPONDING GRADE AND LENGTH OF SERVICE, BUT WHETHER A DISABLED RESERVIST WHO IS PHYSICALLY QUALIFIED TO PERFORM DUTY OF A LIMITED OR RESTRICTED NATURE IS ENTITLED TO PAY AND ALLOWANCES, AND IF SO WHETHER THE ENTITLEMENT WOULD CONTINUE UNTIL HE IS QUALIFIED TO PERFORM HIS FULL AND SPECIALIZED DUTIES, CANNOT BE ANSWERED CATEGORICALLY, SINCE THE ANSWER TO EACH QUESTION WOULD DEPEND UPON THE FACTS OF THE PARTICULAR CASE TO WHICH THE QUESTION RELATES. PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - ABILITY TO PERFORM LIMITED DUTY EFFECT A RESERVE OFFICER INJURED IN LINE OF DUTY WHO IS NOT PHYSICALLY CAPABLE OF PERFORMING HIS NORMAL DUTIES AS AN AVIATION PILOT AND WHO ALTHOUGH ABLE TO PERFORM IS NOT PLACED IN A LIMITED OR RESTRICTED RESERVE DUTY STATUS UPON RELEASE FROM HOSPITALIZATION IS NEVERTHELESS ENTITLED TO PAY AND ALLOWANCES UNTIL HE IS PHYSICALLY FIT TO PERFORM HIS FULL AND SPECIALIZED NAVAL DUTIES, O7 U.S.C. 204 (I) AUTHORIZING PAYMENT OF PAY AND ALLOWANCES TO DISABLED RESERVE OFFICERS IN THE SAME CIRCUMSTANCES UNDER WHICH REGULAR OFFICERS WOULD RECEIVE PAY AND ALLOWANCES. WHEN A DISABLED RESERVE MEMBER IS FOUND PHYSICALLY FIT TO PERFORM MILITARY OR NAVAL DUTIES WITHOUT QUALIFICATION, THE BASIS OF ENTITLEMENT TO PAY AND ALLOWANCES UNDER 37 U.S.C. 204 (G), (H), OR (I) IS EXTINGUISHED.

TO THE SECRETARY OF THE NAVY, JULY 2, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 30, 1968, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION ON THREE QUESTIONS RELATING TO THE PROVISIONS OF SECTION 204 (I), TITLE 37, U.S.C. THE REQUEST WAS ASSIGNED CONTROL NUMBER SS-N 989 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 204 (I) PROVIDES AS FOLLOWS:

(I) A MEMBER OF THE NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE, FLEET MARINE CORPS RESERVE, OR COAST GUARD RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR NAVY, REGULAR MARINE CORPS, OR REGULAR COAST GUARD, AS THE CASE MAY BE, OR CORRESPONDING GRADE AND LENGTH OF SERVICE, UNDER THE SAME CONDITIONS AS THOSE DESCRIBED IN CLAUSES (1) AND (2) OF SUBSECTION (G) OF THIS SECTION.

CLAUSES (1) AND (2) OF SUBSECTION (G) ARE AS FOLLOWS:

(1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF TITLE 10) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

THUS, UNDER AUTHORITY OF SECTION 204 (I) A RESERVE MEMBER OF THE NAVAL SERVICE WHO BECOMES DISABLED BY REASON OF AN INJURY INCURRED IN LINE OF DUTY WHILE IN THE PERFORMANCE OF ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME IS ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHICH WOULD BE PAYABLE IN THE SAME CIRCUMSTANCES TO A MEMBER OF THE REGULAR NAVY OF CORRESPONDING GRADE AND LENGTH OF SERVICE.

THE DETAILS OF AN ACTUAL CASE ARE OUTLINED IN THE LETTER OF MARCH 30, 1968, FOR THE PURPOSE OF STRESSING THE NATURE OF THE ADMINISTRATIVE PROBLEMS REFLECTED IN THE THREE QUESTIONS SET FORTH BELOW. A NAVAL RESERVE OFFICER (AN AVIATION PILOT ENGAGED IN NAVAL AIR RESERVE TRAINING) SUSTAINED A BACK INJURY WHEN HE EJECTED FROM HIS AIRCRAFT DURING A SCHEDULED DRILL PERIOD ON MAY 17 (NO YEAR SHOWN). THE INJURY WAS INCURRED IN LINE OF DUTY. HE WAS HOSPITALIZED UNTIL MAY 21 AND THEN RELEASED FROM THE HOSPITAL WITH THE RECOMMENDATION THAT HE NOT RETURN TO WORK FOR ABOUT 6 WEEKS. IT APPEARS THAT THE RECOMMENDATION THAT HE NOT RETURN TO WORK FOR ABOUT 6 WEEKS HAD REFERENCE TO HIS CIVILIAN EMPLOYMENT.

IT IS STATED THAT FOLLOWING RELEASE FROM THE HOSPITAL THE OFFICER WAS EXAMINED PERIODICALLY AT THE NAVAL AIR STATION DISPENSARY. IT APPEARS THAT ALTHOUGH HE WAS NOT CONSIDERED AS PHYSICALLY QUALIFIED TO PERFORM HIS USUAL AND NORMAL DUTIES AS AN AVIATION PILOT, INCLUDING AERIAL FLIGHTS, PRIOR TO JULY 6 HE WAS, IN THE OPINION OF THE NAVAL MEDICAL AUTHORITIES, CONSIDERED AS PHYSICALLY FIT TO PERFORM NAVAL DUTIES OF A LIMITED OR RESTRICTED NATURE. THE INFORMATION FURNISHED INDICATES THAT THE OFFICER DID NOT PERFORM ANY INACTIVE DUTY TRAINING DRILLS DURING THE PERIOD FROM MAY 22 TO JULY 5, INCLUSIVE.

THERE IS NO QUESTION AS TO THE OFFICER'S ENTITLEMENT UNDER AUTHORITY OF 37 U.S.C. 204 (I) TO RECEIVE PAY AND ALLOWANCES FOR THE PERIOD THROUGH MAY 21. THE QUESTION AS TO HIS ENTITLEMENT TO PAY AND ALLOWANCES ARISES WITH RESPECT TO THE PERIOD FROM MAY 22 TO JULY 5, INCLUSIVE, WHEN HE WAS NOT PHYSICALLY CAPABLE OF PERFORMING THE FULL DUTIES OF AN AVIATION PILOT BUT WAS CONSIDERED AS BEING PHYSICALLY CAPABLE OF PERFORMING NAVAL DUTIES OF A LIMITED OR RESTRICTED NATURE. IN THAT CONNECTION THE DISCUSSION CONTAINED IN THE LETTER OF MARCH 30, 1968, OUTLINES THE ADMINISTRATIVE DIFFICULTIES AND THE PRACTICAL ASPECTS INVOLVED IN ENDEAVORING TO EXTEND TO RESERVE MEMBERS OF THE NAVAL SERVICE THE SAME PAY AND ALLOWANCES UNDER AUTHORITY OF 37 U.S.C. 204 (I) THAT A REGULAR MEMBER OF THE NAVAL SERVICE WOULD BE ENTITLED TO RECEIVE IN SIMILAR CIRCUMSTANCES.

IT IS POINTED OUT THAT WHEREAS NO PARTICULARLY ACUTE ADMINISTRATIVE PROBLEMS ORDINARILY ARE ENCOUNTERED IN ASSIGNING AN INJURED REGULAR MEMBER TO LIMITED OR RESTRICTED DUTIES, SUCH A COURSE OF ACTION MAY BE COMPLETELY IMPRACTICAL IN CERTAIN SITUATIONS INVOLVING RESERVE MEMBERS. FOR EXAMPLE, THE RESERVE OFFICER MENTIONED ABOVE IS AN AVIATION PILOT AND IT IS STATED THAT "IN THE AREA OF NAVAL AIR RESERVE TRAINING, THERE ARE PRACTICAL IMPEDIMENTS TO PLACEMENT OF AN AVIATION PILOT ON LIMITED DUTY WITH HIS UNIT WHEN THE PRIMARY MISSION OF THAT UNIT IS TRAINING IN THE FLIGHT OF AIRCRAFT.'

IN FURTHER REFERENCE TO THIS SAME OFFICER IT IS STATED:

OBVIOUSLY, IN THE CASE OF THE OFFICER PORTRAYED * * * HE WAS NOT PHYSICALLY QUALIFIED TO FLY FROM 17 MAY UNTIL 6 JULY BECAUSE HE WAS NOT FOUND FIT TO PERFORM FULL DUTIES, INCLUDING FLYING DUTIES, UNTIL THE LATER DATE. BUT HIS ENTITLEMENT TO THE CONTINUANCE OF PAY AUTHORIZED UNDER 37 U.S.C. 204 (I) WAS ADVERSELY AFFECTED FROM 21 MAY BECAUSE HE WAS CONSIDERED PHYSICALLY FIT TO PERFORM LIMITED DUTIES, REGARDLESS OF THE PRACTICABILITY OF HIS PLACEMENT TO PERFORM LIMITED DUTIES.

THE CONCLUSION REACHED IN THE SENTENCE UNDERSCORED ABOVE SEEMS TO BE BASED ON THE STATEMENT CONTAINED IN OUR DECISION OF MAY 19, 1964, 43 COMP. GEN. 733, READING (AT PAGE 737) AS FOLLOWS:

IT SEEMS REASONABLY CLEAR THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER THE ABOVE-CITED PROVISIONS OF LAW WHILE THE MEMBER CONCERNED IS TEMPORARILY DISABLED BY INJURY INCURRED IN LINE OF DUTY, IS BASED UPON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUIT, AND THAT THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE EXERCISE OF A SOUND ADMINISTRATION 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 MAKING THAT DETERMINATION, THE SERVICE SHOULD APPLY THE SAME STANDARDS IT WOULD APPLY IN THE CASE OF A MEMBER OF THE REGULAR SERVICE.

THE FOLLOWING THREE QUESTIONS ARE PRESENTED FOR RESOLUTION:

1. SHOULD ENTITLEMENT CEASE WHEN A MEMBER IS PHYSICALLY QUALIFIED TO PERFORM DUTY OF A LIMITED OR RESTRICTED NATURE?;

2. SHOULD ENTITLEMENT CONTINUE UNTIL THE MEMBER IS PHYSICALLY QUALIFIED TO PERFORM HIS FULL AND SPECIALIZED DUTIES SUCH AS FLYING, DEEPSEA DIVING, OR UNDERWATER DEMOLITION?; AND

3. IN ADDITION TO BEING FOUND PHYSICALLY QUALIFIED FOR RETURN TO DUTY STATUS, IS IT NECESSARY THAT A MEMBER'S RETURN TO DUTY STATUS BE ACTUALLY ACCOMPLISHED ADMINISTRATIVELY BEFORE ENTITLEMENT CAN BE TERMINATED?

THE FIRST TWO QUESTIONS ARE NOT OPEN TO AN UNQUALIFIED REPLY. THEY MAY NOT BE ANSWERED CATEGORICALLY FOR THE REASON THAT THE ANSWER TO EACH QUESTION DEPENDS UPON THE FACTS OF THE PARTICULAR CASE TO WHICH THAT QUESTION RELATES. THEREFORE, THE ANSWERS TO THESE TWO QUESTIONS WILL BE BASED ON THE ASSUMPTION THAT THEY RELATE TO THE FACTS WHICH HAVE BEEN OUTLINED ABOVE IN THE CASE OF THE NAVAL RESERVE OFFICER WHO WAS INJURED DURING A SCHEDULED INACTIVE DUTY TRAINING DRILL ON MAY 17; WHO WAS RELEASED FROM HOSPITALIZATION ON MAY 21, PHYSICALLY FIT TO PERFORM NAVAL DUTIES OF A LIMITED OR RESTRICTED NATURE; BUT WHO WAS NOT ADMINISTRATIVELY CONSIDERED TO BE PHYSICALLY FIT TO PERFORM HIS FULL NAVAL DUTIES AS AN AVIATION PILOT UNTIL JULY 6.

THE OFFICER IN QUESTION APPEARS TO HAVE BEEN ENTITLED ON MAY 17 TO RECEIVE COMPENSATION (BASIC PAY) UNDER THE PROVISIONS AND AT THE RATE PRESCRIBED IN 37 U.S.C. 206 (A). IN ADDITION, UNDER THE PROVISIONS OF 37 U.S.C. 301 (F) HE APPEARS TO HAVE BEEN ENTITLED TO RECEIVE INCENTIVE (HAZARDOUS DUTY) PAY FOR DUTY INVOLVING AERIAL FLIGHTS. SECTION 110, EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, 29 F.R. 7973, PROVIDES THAT ANY MEMBER OF THE UNIFORMED SERVICES WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF ANY SUCH HAZARDOUS DUTY, BY AVIATION ACCIDENT OR OTHERWISE:

* * * SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF ALL HAZARDOUS DUTIES WHICH HE IS REQUIRED BY COMPETENT ORDERS TO PERFORM, FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY. IT SEEMS APPARENT FROM THE FACTS MENTIONED ABOVE THAT THE NAVAL RESERVE OFFICER IN QUESTION WAS NOT PHYSICALLY CAPABLE OF PERFORMING HIS NORMAL DUTIES AS AN AVIATION PILOT FROM THE DATE OF THE ACCIDENT ON MAY 17 THROUGH JULY 5, INCLUSIVE. THE RECORD FURTHER INDICATES THAT HE WAS NOT CALLED TO OR PLACED IN A LIMITED OR RESTRICTED RESERVE DUTY STATUS DURING THE PERIOD FROM MAY 22 TO JULY 5, INCLUSIVE.

ACCORDINGLY, QUESTION 1 AS IT RELATES TO THIS NAVAL RESERVE OFFICER OR OTHER RESERVE MEMBERS IN SIMILAR CIRCUMSTANCES IS ANSWERED IN THE NEGATIVE.

AS IT RELATES TO THE SAME NAVAL RESERVE OFFICER OR TO OTHER RESERVE MEMBERS IN SIMILAR CIRCUMSTANCES AND SUBJECT TO THE OBSERVATIONS MADE IN THE ANSWER TO THE FOLLOWING QUESTION AND TO THE LIMITATIONS PRESCRIBED ON THE PAYMENT OF INCENTIVE (HAZARDOUS DUTY) PAY IN EXECUTIVE ORDER NO. 11157, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

THE THIRD QUESTION IS BROAD ENOUGH TO BE OF MORE GENERAL APPLICATION. THE ADMINISTRATIVE DOUBT REFLECTED IN THIS QUESTION MAY STEM FROM THE SENTENCE WHICH PRECEDES THE CITATION TO 37 COMP. GEN. 558 CONTAINED IN THAT PART OF THE DECISION OF MAY 19, 1964, PREVIOUSLY QUOTED.

ALSO, IN DECISION OF MARCH 4, 1958, 37 COMP. GEN. 558, IT WAS STATED (AT PAGE 559) THAT:

THE STATUTE CONTAINS NO PROVISION INDICATING THE EXACT TIME, DURING THE PERIOD OF CONVALESCENCE FROM A DISABLING INJURY INCURRED IN LINE OF DUTY, WHEN THE RIGHT TO ACTIVE-DUTY PAY AND ALLOWANCES SHOULD BE CONSIDERED TO TERMINATE. 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.

IT IS TO BE OBSERVED THAT IN BOTH DECISIONS IT WAS INDICATED THAT, WHERE A RESERVE MEMBER IS CAPABLE OF PERFORMING RESTRICTED OR LIMITED DUTY, THE ACTUAL RETURN OF SUCH A RESERVE MEMBER TO A RESERVE DUTY STATUS WAS TO BE CONSIDERED AS THE DETERMINATIVE FACTOR IN ESTABLISHING THE CUTOFF DATE OF THE PAY AND ALLOWANCES AUTHORIZED BY THE PROVISIONS OF LAW NOW CODIFIED IN SUBSECTIONS (G), (H) AND (I) OF SECTION 204, TITLE 37, U.S.C. UNDER THE RULE SO ESTABLISHED THE PROVISIONS OF37 U.S.C. 204 (G), (H) OR (I) CEASE TO BE APPLICABLE WHEN SUCH A RESERVE MEMBER IS OFFICIALLY RETURNED TO A RESERVE DUTY STATUS.

ON THE OTHER HAND, WHEN A RESERVE MEMBER IS FOUND TO BE PHYSICALLY FIT TO PERFORM HIS MILITARY OR NAVAL DUTIES WITHOUT QUALIFICATION, IT SEEMS CLEAR THAT THE BASIS OF ENTITLEMENT TO PAY AND ALLOWANCES UNDER AUTHORITY OF 37 U.S.C. 204 (G), (H) OR (I) HAS BEEN EXTINGUISHED AND NO LONGER EXISTS. QUESTION 3 IS ANSWERED ACCORDINGLY.

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