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OR FLEET MARINE CORPS RESERVE ORDERED TO ACTIVE DUTY OR INACTIVE DUTY TRAINING IS TEMPORARILY DISABLED FROM AN INJURY SUSTAINED IN LINE OF DUTY. IS HIS PHYSICAL DISABILITY TO PERFORM MILITARY DUTIES AND NOT NORMAL CIVILIAN PURSUITS. ALTHOUGH THE PERIOD OF DISABILITY IS FOR ADMINISTRATIVE DETERMINATION ON THE BASIS OF THE STANDARDS APPLIED TO MEMBERS OF THE REGULAR SERVICE. 1964: REFERENCE IS MADE TO LETTER OF JANUARY 15. OR FLEET MARINE CORPS RESERVE ORDERED TO ACTIVE DUTY OR INACTIVE DUTY TRAINING WHO BECOMES DISABLED FROM INJURY SUSTAINED IN LINE OF DUTY IS ENTITLED TO THE SAME PENSION. DEATH GRATUITY (PAY AND ALLOWANCES) AND HOSPITAL BENEFITS AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR NAVY OR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE.

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B-148324, MAY 19, 1964, 43 COMP. GEN. 733

PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - DISABILITY DETERMINATION WHEN A MEMBER OF THE NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE, OR FLEET MARINE CORPS RESERVE ORDERED TO ACTIVE DUTY OR INACTIVE DUTY TRAINING IS TEMPORARILY DISABLED FROM AN INJURY SUSTAINED IN LINE OF DUTY, THE TEST OF DISABILITY TO DETERMINE THE MEMBER'S RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER 10 U.S.C. 6148 (A), AUTHORIZING THE SAME PENSION, COMPENSATION, DEATH GRATUITY, PAY AND ALLOWANCES, AND HOSPITAL BENEFITS PROVIDED BY LAW OR REGULATION FOR REGULAR NAVY AND MARINE CORPS MEMBERS OF THE SAME GRADE AND LENGTH OF SERVICE, IS HIS PHYSICAL DISABILITY TO PERFORM MILITARY DUTIES AND NOT NORMAL CIVILIAN PURSUITS, AND, ALTHOUGH THE PERIOD OF DISABILITY IS FOR ADMINISTRATIVE DETERMINATION ON THE BASIS OF THE STANDARDS APPLIED TO MEMBERS OF THE REGULAR SERVICE, THE CONTINUED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES AFTER THE RETURN OF THE MEMBER TO A LIMITED OR RESTRICTED RESERVE DUTY STATUS WOULD BE TOO DOUBTFUL TO WARRANT APPROVAL OF SUCH PAYMENTS.

TO THE SECRETARY OF THE NAVY, MAY 19, 1964:

REFERENCE IS MADE TO LETTER OF JANUARY 15, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION AS TO THE PROPER TEST FOR DISABILITY TO BE EMPLOYED IN CASES ARISING UNDER 10 U.S.C. 6148 (A), WHICH PROVIDES THAT A MEMBER OF THE NAVAL RESERVE, FLEET RESERVE, MARINE CORPS RESERVE, OR FLEET MARINE CORPS RESERVE ORDERED TO ACTIVE DUTY OR INACTIVE DUTY TRAINING WHO BECOMES DISABLED FROM INJURY SUSTAINED IN LINE OF DUTY IS ENTITLED TO THE SAME PENSION, COMPENSATION, DEATH GRATUITY (PAY AND ALLOWANCES) AND HOSPITAL BENEFITS AS ARE PROVIDED BY LAW OR REGULATION IN THE CASE OF A MEMBER OF THE REGULAR NAVY OR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE.

THE REQUEST FOR DECISION (ASSIGNED MPAC CLEARANCE NUMBER SS-N 743) STATES THAT THE QUESTIONS ARISE BECAUSE IN DECISIONS RELATING TO MEMBERS OF THE NATIONAL GUARD WE SAID THAT UNDER SIMILAR STATUTORY PROVISIONS THE ELIGIBILITY OF A MEMBER OF THE NATIONAL GUARD TO RECEIVE THE PRESCRIBED BENEFITS IS DEPENDENT UPON WHETHER THE MEMBER'S INJURY DISABLED HIM FROM PERFORMING MILITARY DUTIES EVEN IN A "LIMITED" OR "RESTRICTED" STATUS, WHEREAS IN DECISIONS RELATING TO MEMBERS OF THE NAVAL RESERVE WE SAID THAT SUCH ELIGIBILITY IS DETERMINED BY WHETHER THE MEMBER IS ABLE TO RETURN TO HIS "NORMAL CIVILIAN PURSUITS.' IT IS SUGGESTED THAT THESE TESTS "INVOLVE MARKEDLY DIFFERENT CRITERIA" AND "FREQUENTLY RESULT IN CONTRARY CONCLUSIONS WHEN APPLIED TO A GIVEN CASE.' THE LETTER STATES THAT:

THE DISPARITY OF RESULTS ACHIEVED THROUGH USING ONE TEST OR THE OTHER STEMS FROM THE VERY NATURE OF MILITARY LIFE. THE RANGE OF POSSIBLE DUTIES WHICH MAY BE ASSIGNED A MEMBER OF THE MILITARY SERVICE IS SO BROAD THAT A DETERMINATION THAT HE COULD PERFORM ALL OF THEM WOULD PROBABLY JUSTIFY A CONCLUSION THAT HE COULD PERFORM HIS NORMAL CIVILIAN PURSUITS. BUT THE RULE * * * THAT A MEMBER FOUND ABLE TO PERFORM ANY MILITARY DUTY "WITHOUT REGARD TO AMOUNT OR DEGREE" DEMANDS A CONCLUSION THAT HE IS NOT DISABLED. FOR THE VERY REASON THAT THE RANGE OF MILITARY DUTIES IS SO GREAT, AND MIGHT INCLUDE SUCH SEDENTARY OR PASSIVE TASKS AS SITTING AT AN INFORMATION BOOTH OR OVERSEEING TICKET SALES, A DETERMINATION THAT A MEMBER IS FIT TO PERFORM LIMITED DUTY SUCH AS THIS WOULD BE WHOLLY INADEQUATE PROOF THAT HE IS ABLE TO PERFORM HIS NORMAL DUTIES, CIVILIAN OR MILITARY.

FOR GUIDANCE IN THE DISPOSITION OF FUTURE CASES DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) ARE NATIONAL GUARD CASES TO BE DECIDED ON A "FIT FOR LIMITED MILITARY DUTY" TEST AND NAVY CASES ON THE BASIS OF FITNESS FOR "NORMAL CIVILIAN PURSUITS?

(B) IS THE LIMITED MILITARY DUTY TEST ENUNCIATED IN THE NATIONAL GUARD CASES DISPOSITIVE OF THE QUESTION OF ELIGIBILITY FOR DISABILITY BENEFITS, OR IS IT MERELY A RULE OF EVIDENCE, WHICH MAY BE CONSIDERED ALONG WITH OTHER INDICIA OF FITNESS OR DISABILITY?

(C) WHAT CRITERIA MAY BE CONSIDERED IN APPLYING THE NORMAL CIVILIAN PURSUITS TEST ENUNCIATED IN THE NAVY CASES, ESPECIALLY WITH RESPECT TO MORE SPECIALIZED CIVILIAN OCCUPATIONS; FOR EXAMPLE, A WATCHMAKER WHO HAS BROKEN HIS FINGER OR A PROFESSIONAL ATHLETE WHO HAS BROKEN HIS LEG?

(D) A SPECIFIC DECISION IS REQUESTED WHETHER ON THE BASIS OF THE ENCLOSURES ACCOMPANYING THE LETTER OF JANUARY 15, 1964, CHARLES A. SCOTT, 457 12 30, AME3, USNR-R, SHOULD BE CONSIDERED TO HAVE BEEN DISABLED FOR ANY PERIOD AFTER FEBRUARY 17, 1963, SO AS TO BE ENTITLED TO BENEFITS AS PRESCRIBED BY 10 U.S.C. 6148 (A) DURING SUCH PERIOD OF DISABILITY.

THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 201, 10 U.S.C. 456 (1952 ED.), 34 U.S.C. 855C-1 (1952 ED.), PROVIDED THAT MEMBERS OF THE NAVAL RESERVE, MARINE CORPS RESERVE, ARMY OF THE UNITED STATES AND AIR FORCE OF THE UNITED STATES OTHER THAN MEMBERS OF THE REGULAR ARMY OR THE REGULAR AIR FORCE WHO, IF CALLED OR ORDERED INTO ACTIVE MILITARY OR NAVAL SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE-DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY SHOULD BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY OR NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHOULD BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATIONS, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS "ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION" RESPECTIVELY FOR MEMBERS OF THE REGULAR ARMY, REGULAR AIR FORCE, REGULAR NAVY, OR REGULAR MARINE CORPS. SIMILAR PROVISIONS WERE MADE FOR MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES AND THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES. SEE 32 U.S.C. 160A (1952 ED.). THE PROVISIONS OF THE 1949 ACT WERE MADE EFFECTIVE FROM AUGUST 14, 1945. THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 212, 214, 383, 536, 538, 605, 606, THE 1949 ACT WAS CODIFIED IN 10 U.S.C. 3687, 3721, 6148, 8687, AND 8721, AND IN 32 U.S.C. 318, 321. THE PROVISIONS OF TITLES 10 AND 32 PROVIDING FOR CONTINUATION OF PAY AND ALLOWANCES IN DISABILITY CASES WERE REMOVED THEREFROM AND CODIFIED IN SECTION 204 OF TITLE 37, U.S. CODE, BY THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, 76 STAT. 458, 494, 495.

AMONG THE ILLUSTRATIVE CASES CITED TO THE CONGRESS IN THE HEARINGS TO SHOW THE NEED FOR THE 1949 LEGISLATION WAS THAT OF LIEUTENANT FINNEGAN. IN TESTIFYING BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, U.S. SENATE, ON S. 213, 81ST CONGRESS, 1ST SESS., WHICH BECAME THE 1949 ACT, COLONEL MAAS (AT PAGE 21 OF THE HEARINGS) SAID:

I JUST WANT TO CITE AN ILLUSTRATION. WE HAD A BOY IN THE MARINE CORPS, AN AVIATOR, FIGHTER PILOT, WHO WENT IN THE RESERVES AND 2 YEARS AGO AT CHERRY POINT IN A SERVICE CRASH HAD HIS HAND CUT OFF. HE WAS A PILOT FOR AN AIR LINE. OF COURSE, THAT IMMEDIATELY DESTROYED HIS CIVILIAN OCCUPATION. HE COULD NO LONGER PILOT--- AND DESTROYED HIS MILITARY CAREER AS WELL, OF COURSE. ALL HE COULD GET WAS A VERY SMALL EMPLOYEE'S COMPENSATION WHICH DIDN-T EVEN BEGIN TO COMPENSATE HIM FOR THE LOSS OF CIVILIAN EMPLOYMENT AS A PILOT WITH AN AIR LINE * * *. HIS RIGHTS UNDER THE 1949 ACT WERE CONSIDERED LATER IN 29 COMP. GEN. 509.

WITH RESPECT TO THE ADMINISTRATION OF THE BILL, IN TESTIMONY BEFORE THE SENATE SUBCOMMITTEE, AFTER STATING THAT UNDER THE BILL THE SAME RULES THEN APPLICABLE TO MEMBERS OF THE REGULAR SERVICES WOULD BE APPLIED TO MEMBERS OF THE RESERVES, GENERAL DAHLQUIST (AT PAGE 10 OF THE HEARINGS) SAID:

* * * FIRST OF ALL, WE HAVE TO DETERMINE THAT THE INJURY IS PERMANENT; SECOND, THAT IT WAS INCURRED IN LINE OF DUTY; AND THIRD, THAT IT IS DISABLING FROM A MILITARY STANDPOINT.

WITH RESPECT TO THE THIRD ELEMENT, WHICH IS THAT IT MUST BE DISABLING FROM A MILITARY SERVICE POINT OF VIEW, IT MEANS THAT RESERVISTS WHO HAVE A CIVILIAN OCCUPATION MAY BE INJURED AND NOT ENTITLED TO RETIREMENT BECAUSE THE INJURY THEY HAVE WOULD NOT BE CAUSE FOR RETIREMENT IN THE MILITARY SERVICE. WE HAVE OFFICERS ON DUTY WITH ONE EYE, DEFORMITY OF THE ARM, A NUMBER HAVE DISABILITIES WHICH DO NOT DISABLE THEM FROM MILITARY SERVICE BUT WHICH, IF THEY HAD HAPPENED TO A CIVILIAN IN TRAINING FOR A SHORT TIME, IS A REAL DISABILITY TO HIM IN HIS CIVILIAN OCCUPATION.

SINCE THE ACT OF JUNE 20, 1949 WAS RETROACTIVE TO 1945 AND SOME RESERVISTS HAD BEEN INJURED WHILE ON INACTIVE DUTY TRAINING OR ACTIVE DUTY TRAINING AND HAD RETURNED TO CIVILIAN LIFE WITHOUT DISABILITY RETIREMENT PROCEEDINGS AND WITHOUT COMPLETION OF MEDICAL AND HOSPITAL CARE, THERE WERE CASES WHERE THE RECORD BEFORE US DID NOT ACCURATELY REFLECT THE EXACT DISABILITY STATUS OF THE RESERVIST CONCERNED. IN SUCH CASES AND IN LATER CASES WHERE THE OPTIMUM SERVICE MEDICAL EVIDENCE WAS NOT AVAILABLE, IT BECAME NECESSARY TO DETERMINE FROM AVAILABLE DATA THE DISABILITY STATUS OF THE INJURED RESERVIST AFTER HE HAD RETURNED HOME. IN SOME INSTANCES INFORMATION WAS AVAILABLE CONCERNING THE INJURED MEMBER'S ABILITY OR INABILITY TO RESUME HIS NORMAL CIVILIAN EMPLOYMENT. WHERE THAT INFORMATION WAS SUFFICIENT TO ARRIVE AT A REASONABLY TENABLE CONCLUSION CONCERNING THE MEMBER'S INABILITY TO PERFORM MILITARY DUTIES, SUCH INFORMATION WAS UTILIZED IN ESTABLISHING A PRESUMPTIVE DISABILITY FOR MILITARY DUTY. SEE 36 COMP. GEN. 692, 693. THIS TEST WAS USED BY THIS OFFICE IN CASES INVOLVING ALL OF THE SERVICES, INCLUDING ARMY RESERVE AND NATIONAL GUARD CASES. SEE, FOR EXAMPLE, 30 COMP. GEN. 476; 34 ID. 275.

IN CASES OF THE TYPE CITED ABOVE, THE COGNIZANT SERVICES HAD NOT HOSPITALIZED THE MEMBER UNTIL RECOVERY AND HAD NOT UNDERTAKEN DISABILITY RETIREMENT PROCEEDINGS, AND THEREFORE THERE WAS NO DIRECT OR SERVICE- ESTABLISHED MEDICAL EVIDENCE OF THE MEMBER'S DISABILITY STATUS OR OF THE DURATION OF HIS INABILITY TO PERFORM MILITARY DUTIES. AS WE OBSERVED IN LIEUTENANT FINNEGAN'S CASE--- WHO WAS NOT IN FACT IN THE STATUS OF AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS FROM THE DATE OF HIS RELEASE FROM THE HOSPITAL SINCE AT THAT TIME THERE WAS NO AUTHORITY TO PAY HIM RETIREMENT PAY--- IN ORDER TO GIVE EFFECT TO THE RETROACTIVE PROVISIONS OF THE ACT "IT MUST BE CONSIDERED THAT HE OCCUPIED THAT STATUS (AWAITING RETIREMENT PROCEEDINGS), AT LEAST CONSTRUCTIVELY, AFTER SUCH DATE OF RELEASE.' 29 COMP. GEN. 509. WE THERE SUMMARIZED THE INTENT OF THE 1949 LAW IN PERTINENT PART AS FOLLOWS:

* * * THE INTENT WAS TO PLACE RESERVISTS COVERED BY THE ACT IN A STATUS COMPARABLE TO THAT OF MEMBERS OF THE REGULAR SERVICE WHO, WHEN THEY SUFFER DISABILITY IN LINE OF DUTY FROM INJURY, ARE AUTHORIZED TO CONTINUE IN RECEIPT OF THEIR PAY AND ALLOWANCES WHILE HOSPITALIZED AS A RESULT THEREOF AND ALSO WHILE AWAITING ACTION ON THEIR RETIREMENT PROCEEDINGS OF SUCH PROCEEDINGS ARE INITIATED.

THAT CONCLUSION WAS BASED UPON THE LEGISLATIVE HISTORY OF THE ACT AS IN PART EVIDENCED BY STATEMENTS IN THE SENATE REPORT ON THE BILL (S. 213), WHICH BECAME THE 1949 ACT, AS FOLLOWS:

* * * IT IS INTENDED THAT PERSONS WHO ARE COVERED BY THE BENEFITS OF THIS BILL WILL BE KEPT IN A PAY STATUS UNTIL THEIR HOSPITALIZATION IS COMPLETED AND THEIR CASE FINALLY SETTLED.

AMENDMENTS * * * WERE MADE TO PREVENT A STRICT INTERPRETATION OF THE WORD "COMPENSATION" FROM EXCLUDING DEATH BENEFITS OR PAYING A MAN WHILE HOSPITALIZED OR AWAITING FINAL DECISION ON HIS CASE. A REGULAR IS PAID WHILE IN THE HOSPITAL AND THE COMMITTEE INTENDS RESERVES, INJURED WHILE SERVING EITHER WITH OR WITHOUT PAY, TO BE TREATED IN EXACTLY THE SAME MANNER.

SEE S.REPT. NO. 95, 81ST CONG., 1ST SESS. 4.

THE UTILIZATION OF SECONDARY EVIDENCE OF THE DISABILITY STATUS OF AN INJURED RESERVIST IN THE PAST BECAUSE OF THE UNAVAILABILITY OF DIRECT SERVICE MEDICAL EVIDENCE OR DETERMINATION OF THAT STATUS WAS NOT INTENDED AS ESTABLISHING A GENERAL RULE FOR GUIDANCE OF THE SERVICES IN FUTURE CASES. THE STATUTE CONTEMPLATES THAT THE SERVICES WILL PROVIDE THE NECESSARY HOSPITAL AND MEDICAL CARE TO INJURED RESERVISTS AND TO EXTEND TO THEM THE SAME TREATMENT, RIGHTS, AND BENEFITS EXTENDED TO REGULARS BY STATUTE OR REGULATION, INCLUDING IF APPROPRIATE THE INSTITUTION OF DISABILITY RETIREMENT PROCEEDINGS, AND, OF COURSE, MAKING THE REQUISITE DETERMINATIONS. AS WE POINTED OUT IN 33 COMP. GEN. 339, 346, THE NECESSARY ADMINISTRATIVE OR OTHER DETERMINATIONS SHOULD BE MADE WITH REASONABLE PROMPTNESS FOLLOWING THE INJURY.

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 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 MAKING THAT DETERMINATION, THE SERVICE SHOULD APPLY THE SAME STANDARDS IT WOULD APPLY IN THE CASE OF A MEMBER OF THE REGULAR SERVICE. YOUR QUESTIONS (A), (B) AND (C) ARE ANSWERED ACCORDINGLY.

WITH RESPECT TO THE SPECIFIC CASE INVOLVED IN QUESTION (D), THE RECORD INDICATES THAT SCOTT'S INJURY MAY HAVE BEEN SUCH THAT HE COULD NOT PERFORM THE DUTIES OF HIS GRADE, RATING AND MILITARY SPECIALTY. HE WAS RELEASED FROM INACTIVE DUTY TRAINING APPARENTLY ON FEBRUARY 17, 1963. THE MEDICAL OFFICER AT THE STATION WHERE THE INJURY WAS INCURRED REPORTED ON MARCH 27, 1963, THAT THE THUMB BONE FRACTURE SUFFERED ON FEBRUARY 16, 1963, HAD HEALED "TO A SUFFICIENT DEGREE TO PERMIT HIM TO RETURN TO HIS PRESENT DUTIES AND REMOVAL OF SPLINT ON 24 MARCH 1963.' SUCH INFORMATION PROPERLY WAS FOR CONSIDERATION BY THE BUREAU OF MEDICINE AND SURGERY IN DETERMINING WHETHER SCOTT'S INJURY DISABLED HIM FROM PERFORMING HIS ASSIGNED MILITARY DUTIES FOR THE PERIOD UP TO AND INCLUDING MARCH 23, 1963. WHILE THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY IN FIFTH INDORSEMENT OF APRIL 9, 1963, TO THE JUDGE ADVOCATE GENERAL, EXPRESSED THE OPINION THAT "SCOTT WAS NOT DISABLED WITHIN THE MEANING OF 10 U.S.C. 6148 (A)," SUCH OPINION MAY HAVE BEEN BASED ON A MISINTERPRETATION OF THE CONCLUSIONS REACHED IN 36 COMP. GEN. 692 AND 37 COMP. GEN. 558. SCOTT WAS NOT RETURNED TO A DUTY STATUS AFTER HE WAS RELEASED FROM INACTIVE DUTY TRAINING. AFTER CONSIDERATION OF THE VIEWS EXPRESSED HEREIN, THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY MAY WISH TO RECONSIDER HIS OPINION IN SCOTT'S CASE. IF HE CONFIRMS HIS PRIOR OPINION THAT SCOTT WAS NOT DISABLED WITHIN THE MEANING OF 10 U.S.C. 6148 (A), HE, OF COURSE, SHOULD NOT BE CONSIDERED TO HAVE BEEN SO DISABLED. QUESTION (D) IS ANSWERED ACCORDINGLY.

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