B-164204, JUL. 12, 1968

B-164204, JUL. 12, 1968

TO CAPTAIN D. L. FULLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4, 1967, FORWARDED HERE BY LETTER DATED MAY 1, 1968, FROM THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF CERTAIN VOUCHERS IN FAVOR OF CORPORAL WALTER B. SMITH, NG 24 943 924, REPRESENTING REIMBURSEMENT OF MEDICAL AND HOSPITAL EXPENSES INCURRED BY HIM IN THE CIRCUMSTANCES SET FORTH BELOW.

IN ACCORDANCE WITH UNIT QUARTERLY TRAINING SCHEDULE, SECOND QUARTER FISCAL YEAR 1967, CORPORAL SMITH AND ALL MEMBERS OF COMPANY E, 20TH SPECIAL FORCES GROUP (AIRBORNE), FIRST SPECIAL FORCES, JACKSON, MISSISSIPPI, PROCEEDED ON OCTOBER 8, 1966, FROM THEIR HOME STATION TO CAMP SHELBY, MISSISSIPPI, A DISTANCE OF APPROXIMATELY 100 MILES, FOR TWO DAYS OF ANNUAL RANGE FIRING UNDER AUTHORITY OF 32 U.S.C. 502. THE TRAINING SCHEDULE PROVIDED FOR AN "ADMINISTRATIVE BIVOUAC" AT CAMP SHELBY FROM 5 P.M. OCTOBER 8, 1966, TO 5:30 A.M. OCTOBER 9, 1966, WHEN FIRING WOULD CONTINUE.

CORPORAL SMITH PARTICIPATED IN THE TRAINING OF HIS UNIT ON OCTOBER 8, 1966, AND WAS AUTHORIZED BY HIS UNIT COMMANDER TO BE ABSENT FOR THE PERIOD FROM 6 P.M. OCTOBER 8 TO 5 A.M. OCTOBER 9, IN ORDER TO SPEND THE NIGHT IN HATTIESBURG, MISSISSIPPI. WHILE DRIVING HIS OWN AUTOMOBILE TOWARD HATTIESBURG, HE WAS INVOLVED IN AN ACCIDENT WITH ANOTHER VEHICLE, THE DRIVER OF WHICH WAS CHARGED WITH FAILURE TO YIELD THE RIGHT OF WAY. SUSTAINED INJURIES REQUIRING HIS HOSPITALIZATION, WAS TAKEN TO METHODIST HOSPITAL, HATTIESBURG, MISSISSIPPI, BY AMBULANCE AND HE REMAINED THERE UNDER TREATMENT UNTIL OCTOBER 14, 1966. THE INVESTIGATING OFFICER FOUND THAT HIS INJURIES WERE SUSTAINED IN LINE OF DUTY AND THAT FINDING WAS APPROVED BY HIS COMMANDING OFFICER AND BY THE ADJUTANT GENERAL OF MISSISSIPPI. VOUCHERS SUBMITTED COVERING THE MEDICAL AND HOSPITALIZATION EXPENSES INCURRED AMOUNT TO $760.19.

SECTION 318 (2) OF TITLE 32, U.S. CODE, PROVIDES THAT A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE HOSPITAL BENEFITS, PENSION, AND OTHER COMPENSATION PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER HE IS CALLED OR ORDERED TO PERFORM TRAINING UNDER 32 U.S.C. 502 FOR ANY PERIOD OF TIME AND "IS DISABLED IN LINE OF DUTY WHILE SO EMPLOYED.' IT HAS BEEN CONSISTENTLY HELD THAT THE BENEFITS OF THE SOURCE STATUTE OF THAT PROVISION -- SECTION 3 OF THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 202 -- ARE LIMITED INSOFAR AS PERSONNEL ON INACTIVE DUTY TRAINING ARE CONCERNED, TO INJURIES INCURRED DURING PERIODS "WHILE SO EMPLOYED," THAT IS, BEGINNING WITH MUSTER AND ENDING WITH DISMISSAL FROM THE PARTICULAR DRILL OR OTHER TRAINING DUTY INVOLVED. 38 COMP. GEN. 841, 843.

WE SAID IN DECISION OF OCTOBER 25, 1963, B-148324, 43 COMP. GEN. 412, 415, THAT WHEN A RESERVIST IS ORDERED TO INACTIVE DUTY TRAINING INVOLVING MULTIPLE DRILLS, THE PERIOD OF TRAINING EXTENDS FROM THE TIME THE MAN IS FIRST MUSTERED IN UNTIL THE END OF HIS SCHEDULED INACTIVE DUTY ON THAT DAY. THUS, WE HELD THAT RESERVISTS INJURED AT THE PLACE OF TRAINING DURING A SCHEDULED LUNCH BREAK, OR AT A TIME WHEN NO ACTUAL DUTY IS BEING PERFORMED DURING A DRILL, ARE ENTITLED TO THE BENEFITS OF 10 U.S.C. 6148 (A), A PROVISION OF LAW SIMILAR TO THE 1949 ACT, SINCE IN NEITHER OF THE CASES HAD THE MEN BEEN RELEASED FROM MILITARY CONTROL AT THE TIME THE INJURIES WERE SUSTAINED.

IN OUR DECISION OF JUNE 1, 1965, B-156628, INVOLVING A MEMBER WHO WAS ORDERED TO TRAINING CONSISTING OF FOUR INACTIVE DUTY TRAINING ASSEMBLIES ON CONSECUTIVE DAYS, AND WHO WAS INJURED AFTER COMPLETION OF THE DRILLS SCHEDULED FOR THE FIRST DAY WHILE PLAYING SOFTBALL IN THE BIVOUAC AREA, IT WAS HELD THAT HE MAY BE DEEMED TO HAVE RECEIVED THE INJURIES WHILE IN AN INACTIVE DUTY TRAINING STATUS WITHIN THE PURVIEW OF 32 U.S.C. 318. THAT CASE DIFFERS FROM THE PRESENT CASE IN THAT CORPORAL SMITH WAS INJURED ON A PUBLIC HIGHWAY WHILE HE WAS AUTHORIZED TO BE ABSENT FROM THE BIVOUAC AREA BETWEEN THE END OF DRILLS ON THE FIRST DAY AND THE BEGINNING OF DRILLS ON THE SECOND DAY.

IN DECISION OF JUNE 17, 1959, 38 COMP. GEN. 841, A MEMBER OF THE U.S. MARINE CORPS RESERVE PROCEEDED FROM HIS HOME IN NORTH CAROLINA TO THE U.S. NAVAL AIR STATION, NORFOLK, VIRGINIA, IN ORDER TO BE PRESENT FOR WEEKEND DRILL AND MUSTER AT 0730 ON DRILL DAY. QUARTERS WERE PROVIDED IN THE BARRACKS AT THE NAVAL AIR STATION INCIDENT TO THE PERFORMANCE OF DRILLS. SHORTLY AFTER HIS ARRIVAL AT THE BARRACKS AT THE NAVAL AIR STATION AT 0200 ON DRILL DAY THE MEMBER SUFFERED AN INJURY WHICH WAS DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT. WE THERE HELD THAT, EVEN THOUGH RESERVISTS RECEIVE DRILL PAY AND ALLOWANCES BASED ON THE ENTIRE DRILL DAY AND MAY BE PERMITTED ON THE PREMISES AND FURNISHED GOVERNMENT QUARTERS OR TRANSPORTATION PRIOR TO SUCH TRAINING DUTY, THE MEMBER WAS NOT ENTITLED TO THE BENEFITS OF SECTION 1 OF THE ACT OF JUNE 20, 1949, WHICH WERE SUBSTANTIALLY THE SAME BENEFITS PROVIDED NOW IN 32 U.S.C. 318.

IN THE PRESENT CASE, THE RESERVIST, AFTER PERFORMANCE OF THE INACTIVE DUTY TRAINING SCHEDULED FOR OCTOBER 8, 1966, WAS GIVEN PERMISSION TO ABSENT HIMSELF FROM THE DUTY AREA IN ORDER TO VISIT HATTIESBURG, MISSISSIPPI, FOR HIS OWN CONVENIENCE. IT WAS DURING THIS PERIOD OF AUTHORIZED ABSENCE FROM MILITARY DUTY AND WHEN HE WAS MANY MILES FROM HIS TRAINING AREA THAT HE WAS INJURED IN AN AUTOMOBILE ACCIDENT. IN SUCH CIRCUMSTANCES, WE CANNOT CONCLUDE THAT DURING THE PERIOD OF HIS ABSENCE FROM THE TRAINING AREA AND FROM MILITARY SUPERVISION HE CONTINUED IN AN INACTIVE DUTY TRAINING STATUS AND "WAS SO EMPLOYED" WITHIN THE MEANING OF 32 U.S.C. 318 WHEN HE WAS INJURED.

ACCORDINGLY, PAYMENT ON THE VOUCHERS, WHICH WILL BE RETAINED HERE, IS NOT AUTHORIZED.