SOON AFTER THE enactment of Public Law

1081 by the Eighty-first Congress, Lieutenant Colonel O. V. Bergren, USMC, writing in the JAG Journal said:

This innocuous-appearing statute . . . gives Reservists who are injured or killed while on any kind of duty the same rights and benefits as Regulars enjoy... Many officers in the Navy Department practically threw up their hands, declaring that it was impossible to administer.'

Now, eleven years later, it is possible to voice some degree of optimism and state that many of the original areas of ambiguity and total silence in the statute have been resolved into rules which can be applied with considerable certainty.

BY WAY OF introduction, the benefits provided under the statute (now codified as 10 USC 6148) can be divided into three general areas. These are disability or death from injury, disability or death from disease where ordered to active duty for more than 30 days, and illness or disease while on active duty or inactive duty training (drill) for a period not in excess of 30 days. These are contained in subsections (a), (b), and (d) of 10 USC 6148, respectively. Below is a short summary of the benefits and requirements contained in each subsection.5

10 USC 6148 (a) provides benefits for disability or death occurring in line of duty from

*Lieutenant (junior grade) Dale A. Simonson, USNR is presently assigned to the General Affairs Branch of the Administrative Law Division in the Office of the Judge Advocate General. He received the B.S.L. degree from the University of Minnesota and the LL.B. degree from the University of Minnesota Law School. Admitted to the Minnesota Bar in 1959, Lieutenant Simonson is a member of the American Bar Association and the Navy-Marine Corps Junior Bar Association.

1. Sec. 1, Act 20 June 1949, Pub. Law 108, 63 Stat. 201, amending sec. 4, Naval Aviation Personnel Act of 1940.

2. Bergren, Disabled Reservists and the Law, Part I, JAG Journal, April 1950, p. 13.

3. "Active duty" means full-time duty in the active military service of the United States. It includes duty on the active list, fulltime training duty, annual training duty, and attendance while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. 10 USC 101(22).

4. "Inactive duty training" or "inactive duty for training" includes training drills, both paid and without pay.

5. See Nav Compt Manual, Pars. 044750 et seq. for applicable regulations and a listing of available benefits.

injury while employed for any period of time on active duty or inactive duty training. This section provides "the same pension, compensation, death gratuity, hospital benefits and pay and allowances as are provided by law or regulation in the case of a member of the Regular Navy or the Regular Marine Corps of the same grade and length of service."

10 USC 6148 (b) provides benefits for disability or death occurring in line of duty from disease while employed on active duty for a period of more than 30 days. The same benefits are provided as for disability from injury. Reservists ordered to active duty for training under 10 USC 270 (b) are excluded from coverage under this subsection.

10 USC 6148 (d) provides limited benefits for Reservists who become ill or contract disease in line of duty while on active duty or while performing inactive duty training for a period of 30 days or less. These benefits consist of appropriate medical, hospital and other treatment until the disability resulting from the illness or disease cannot be materially improved by further treatment. Also provided are necessary transportation and subsistance incident to treatment and return to the member's home upon discharge from treatment. Except upon the recommendation of a board of medical survey, or an authorization from the Bureau of Medicine and Surgery based on the certificate of a reputable physician that further treatment will be of benefit, the treatment under this subsection is limited to a period of ten weeks.

As noted above, the beneficiary of a Reservist who dies from an injury or disease is entitled to the same benefits as the beneficiary of a Regular member, but only if the deceased Reservist was himself eligible under 10 USC 6148 (a) or (b). These subsections entitle the beneficiaries of an eligible Reservist to receive the same death gratuity as would the beneficiaries of a Regular member of the Navy or Marine Corps. In addition, the death gratuity may be paid under the authority of 10 USC 1475 in certain cases even when the member would not have been eligible

for benefits under 10 USC 6148. A death gratuity is equal to six months' pay at the rate to which the decedent was entitled on the date of his death, except that the gratuity may not be less than $800 or more than $3,000. It is payable if death occurs while on active duty or most inactive duty training, or while performing authorized travel to or from active duty for training which the Reservist is obligated to perform. It is also payable if death occurs within 120 days of discharge or release from active duty or most obligated inactive duty training. But death must result from injury or disease incurred or aggravated during such duty or during authorized travel directly to or from such duty."

THE REMAINDER OF this article will deal primarily with problems which have arisen under 10 USC 6148 (a) and (b). As noted by Lieutenant Colonel Bergren in his article, the language of the statute sets forth four basic requirements or conditions precedent which must all be satisfied before a Reservist is eligible for benefits. Under 10 USC 6148 (a) these are (1) disability or death, (2) line of duty, (3) from injury, (4) while so employed.

Although there are rules and regulations applicable to all of these, there has been a comparative lack of information available to aid in the interpretation and application of the fourth requirement. Consequently, most of this article will be devoted to a discussion of some of the troublesome problems which have involved interpretation of "while so employed". It is only in recent years that adequate rules have been established to determine when a Reservist is "employed" on active duty or inactive duty for training.

Fortu

Of course, judging from past history, some of the presently applicable rules will be changed by judicial or administrative interpretation or by legislative action in years to come. nately, however, the over-all application of the Reserve Disability Benefits laws has been broadened in recent years.

ONE OF THE earliest problems which arose under Public Law 108 resulted from the fact that active duty for training was not included within the definition of active duty. Thus, a Reservist on active duty for training was not eligible for benefits under 10 USC 6148 (b) if he became disabled by disease, even if he was on such duty for more than 30 days." This short

6. 10 USC 1476.

7. 10 USC 1475.

8. Bergren, supra. Note 2, p. 14.

9. JAG:II:JCK:mmt of 10 Feb 1950.

coming was changed legislatively in 1956 by including active duty for training as part of the statutory definition of "active duty" in 10 USC 101 (22). Consequently, there is no longer any distinction between active duty and active duty for training for purposes of eligibility under 10 USC 6148. This is true even if the duty is to be performed without pay.10 Wherever the term "active duty" appears in this article it should be considered to mean active duty for training as well.

Some of the most troublesome areas of interpretation and application of the Reserve Disability Benefits laws have involved injuries or diseases incurred while a Reservist is traveling to or from active duty or inactive duty training. For several years the Comptroller General of the United States ruled that a Reservist was not "employed" on active duty or inactive duty training while traveling to or from such duty."1 This interpretation still holds true so far as travel to or from inactive training is concerned.12 However, in 1954, the United States Court of Claims, in the case of Adams v. United States, ruled that a Reservist traveling under authorized travel orders to or from active duty for training is on active duty while performing such travel.13 Consequently, the member would be "employed" on training duty within the meaning of the statute. The Comptroller General has subsequently followed this interpretation.14

It must be emphasized, however, that a member traveling to or from inactive duty for training still is not eligible for benefits under 10 USC 6148 if he is injured or becomes ill while traveling.15 The Comptroller General has stated:

Because of the obvious difficulties in administration, if Congress had intended to cover reservists on inactive duty training drills, when not actually performing training drills, it doubtless would have used appropriate language to make that intention clear. In the absence of clear language in the statute ... it is our view that Congress intended to provide coverage for injuries suffered by inactive duty trainees only while actually performing inactive duty training (32 Comp. Gen. 554) even though by custom reservists may be permitted on the premises and furnished quarters or government transportation prior to such training duty.10

10. 33 Comp. Gen. 411, 1954, citing sec. 240, Armed Forces Reserve Act of 1952, 66 Stat. 492, Act of July 9, 1952. (Pub. Law 476, 82nd Cong., 2nd Sess).

11. 31 Comp. Gen. 160, 1951.

12. JAG:II:2:WGA:mk of 10 Feb 1955; citing 31 Comp. Gen. 160, 1951; 38 Comp. Gen. 841, 1959.

13. Adams v. U.S., 127 Ct. Cls. 470, 1954.

14. 33 Comp. Gen. 551, 1954; 33 Comp. Gen. 599, 1954.

15. Supra., note 10.

16. 38 Comp. Gen. 841, 1959.

17

This strict interpretation of the "while so employed" requirement of subsections (a) and (b) has been applied to cases where Reservists were disabled after arriving at the training site, but before the drill commenced. Thus, in the decision quoted above the Comptroller General ruled there was no coverage for disability incurred while spending the night in a barracks on the station where the drill was to be held later the same day. The case arose when a Reservist spent the night before his scheduled drill at the station in order to be present for muster at 0730 the following morning. He was assigned a bunk and was injured, not as a result of his own misconduct, shortly after midnight on the day the drill was to be held. The Comptroller General ruled that although the injury was incident to the inactive duty training, it did not occur while the member was employed on such training, and thus was not covered by 10 USC 6148.

EVEN WHEN TRAVEL to inactive duty training is performed by means of government supplied transportation, Reserve members are not "employed" on the training duty until the drill itself actually commences and they are not eligible for benefits until that time.18 The method of travel, the starting point of the travel, the pay or non-pay status of the member while traveling, and the wording of the orders directing the travel will not change a member's status.19 It seems equally clear, however, that if travel were involved during the drill period as part of the training duties, any disability incurred during such travel would be covered, assuming that the other requirements of the statute were met.

The length of the drill period may vary, and the duties may be of an unusual nature without affecting coverage under the statute. The Judge Advocate General of the Navy held that a member was eligible for benefits where he was disabled while playing softball.20 The game had been ordered by the Commanding Officer of a Reserve squadron in order to promote morale and physical fitness. The game was played after the normal secure time, but it was within the Commanding Officer's authority to extend the drill period.

To be eligible, however, a member must incur his injury during the drill period. It is not enough that the disability occurred as a result of attending a drill. Thus, where a Reservist

17. 38 Comp. Gen. 841, 1959.

18. See 38 Comp. Gen. 841, 843, 1959.

19. 32 Comp. Gen. 554, 1953.

20. JAG:332.1:bme, Bnd #11695-60 of 16 Nov 1960.

was injured on a stairway while entering the building in which drill was to be held, he was denied benefits because he was injured prior to commencement of the drill, and thus was not employed on training duty at the time of his injury.21

In short, Reservists attending inactive duty training drills are eligible for benefits under 10 USC 6148 (a) only if they are disabled as a result of an injury occurring between muster and dismissal and if the injury is incurred in the line of duty and while actually engaged in training activities.

A MORE LIBERAL interpretation of "while so employed" has been applied to Reservists who are ordered to active duty. Since 1954 the Comptroller General has followed the reasoning of the Court of Claims in the Adams case.22 As a result, members who are disabled as a result of an injury incurred while traveling to active duty under authorized orders are eligible for benefits under 10 USC 6148 (a). The period of travel during which a Reservist is eligible for benefits commences at the time he begins travel from his home to the place he was ordered for duty, but not earlier than the day on which he would have to leave by rail on the shortest regularly traveled route. The same rule applies when he returns to his home at the expiration of the prescribed duty.23 However, if he is ordered to active duty for more than 30 days a Reservist is covered while traveling during the time required to travel by the mode of transportation authorized in his orders.24

For the purpose of determining the period of eligibility for benefits, travel time is computed in whole days. Thus, where a member would have had to leave his home at 1515 on a certain day in order to reach the reporting facility by rail travel, he was eligible for benefits when he was injured at 0530 the same day while traveling by private automobile as authorized by his orders.25

In order to be eligible for benefits under 10 USC 6148 (b) for a disability resulting from disease, a Reservist must be serving on active duty for a period in excess of 30 days. This means that his orders must not specify a period of active duty of 30 days or less.28 The Judge Advocate General of the Navy has ruled that authorized travel time may not be included when

21. JAG:33.1:pm, Bnd #10317-58 of 11 Apr 1961, citing 38 Comp. Gen. 841, 1959.

22. Adams v. U.S., 127 Ct. Cls. 470, 1954; 33 Comp. Gen. 551, 1944; 33 Comp. Gen. 599, 1954.

computing the period for which a member is ordered to active duty.27 If a Reservist is ordered to 30 days active duty for training, he may be eligible for benefits under 10 USC 6148 (a) if he suffers disability from injury while traveling or while on training duty. However, he is not eligible under 10 USC 6148 (b) if he is disabled from disease either during travel or while performing training activities since his orders specify a period of 30 days or less. This remains true even if his orders provide for processing and travel time in addition to the 30 days of training duty. Only if the orders do not specify a period of 30 days or less of actual training duty is the member eligible under 10 USC 6148 (b).

UNLESS A MEMBER is eligible for benefits under 10 USC 6148 (b) it is necessary to determine whether any disability which he incurs results from injury or from disease. If it results from disease, the member is entitled only to the limited benefits available under 10 USC 6148 (d). Normally, it is not difficult to distinguish between an injury and a disease, but occasionally problems do arise. These usually involve disabilities resulting from hernias, penicillin reactions, and similar cases where the disability is medically regarded as a disease, but where the disease was brought about by the effect of strenous physical effort, a fall or the injection of a drug. The Judge Advocate General of the Navy has, in the past, classed penicillin reaction as "resulting from injury" and on occasion has reached the same result with regard to hernias.29 Each case is individually considered and a decision made on the basis of regulations, the facts of the case, and competent medical opinion.

28

Occasionally, it is difficult to determine when an injury or disease is disabling. Although a determination that an injury suffered by a Reservist required hospitalization for treatment would provide an almost conclusive presumption of disability, hospitalization is not essential to granting other rights conferred by the statute.30 When the patient is living at home while receiving medical treatment a standard test is needed to determine whether he is disabled within the meaning of the statute. The Comptroller General has indicated that the proper test for the Navy to use is whether the member is disabled

27. JAG:131.4:DAS:ajn of 27 Mar 1961.

28. JAG:131.5:DJB:jb of 20 Dec 60; JAG:H:JCR:cew of 1 Aug 50. 29. CMO-3-1950 p. 94; JAG:331:eds, Bnd #18662-59 of 4 Nov 1959. 30. CMO 3-1950 p. 94.

31

for normal civilian pursuits. It is not clear whether "normal civilian pursuits" refers to the normal pursuits and occupation of the individual involved, or to those of the general population. Usually the result will be the same under either interpretation since most people regularly engage in occupations which are also "normal" for the population as a whole.

A member may be retained on active duty pending completion of any physical disability retirement proceedings resulting from his disability. He is entitled to active duty pay and allowances during such time.33 In the absence of physical disability retirement proceedings, however, a Reservist is not entitled to active duty pay and allowances unless he is actually confined in a hospital as a result of his disability or unless there has been an affirmative determination by the Chief, Bureau of Medicine and Surgery that the member is disabled for normal civilian pursuits due to the continued existence of the original disability."

Unless his orders were so modified prior to the expiration of his scheduled training duty, or unless he is eligible for benefits under 10 USC 6148 (a) or (b), a Reservist who is retained in the hospital is not eligible for pay and allowances past the scheduled date of his release.35 Neither is a member eligible for pay and allowances if he is ordered back to duty for the purpose of hospitalization or treatment.96

However, a member is entitled to pay and allowances, along with the other applicable benefits, past his period of training duty if he is eligible for the benefits provided under 10 USC 6148 (a) or (b). This is true even if he is released to inactive duty before his injury or disease becomes disabling." It must be determined, however, such injury or disease was the proximate cause of later disability.

The purpose of this article has been to review some of the more recent decisions and opinions which are gradually providing established and useful rules for applying the Reserve Disability Benefits Law.

Finally, it is of greatest importance that accurate and complete information be in the investigation reports prepared by reserve units, and others, in order that a reliable decision can be made as to entitlement of benefits.

31. 30 Comp. Gen. 185, 1950; 33 Comp. Gen. 339, 1954; MS. Comp. Gen. B-128984 of 4 Sep 1958. A "fit for military duties" test has not been used in Navy cases.

32. See JAG:134.2:ejs of 14 Jan 1959.

33. 29 Comp. Gen. 509, 1950; 33 Comp. Gen. 339, 1954; 34 Comp. Gen. 275, 1954.

34. 30 Comp. Gen. 185, 1950; 30 Comp. Gen. 476, 1951.

35. 30 Comp. Gen. 301, 1951; Nav. Comp. Manual, Pars. 044735-4, 044756.

36. 26 Comp. Gen. 107, 1946.

37. SecNav ltr of 6 Mar 1959 to Chief, BuMed; 33 Comp. Gen. 339, 1954.

I. ORIGIN AND DEVELOPMENT

Legislation concerning military retirement has a long history, antedating 1776, and a complicated development. The basis for the present system of military retirement is generally considered to be the Act for the better Administration of the Military Establishment, enacted in 1861.

The military retirement laws have envolved in piecemeal fashion, both within each service and among the various services. The acts and amendments affecting the military retirements number in the hundreds or more. The Senate

Armed Services Committee has contracted with the University of Michigan to prepare for the Committee a study of the military retirement systems; the study was considered too involved for the Committee Staff. The report of the study is expected in June 1961.

The basic goals determining the content of the retirement laws have been these:

1. The removal or retirement of the superannuated, the disabled, and the superfluous or inefficient member;

2. A guaranty of financial security after many years of faithful service, or in the event that the member is physically unable to continue on active duty;

3. An inducement for men of ability to remain in the service rather than seek more profitable employment in other careers;

4. A means of keeping the services young and vigorous through integration with a selective promotion system;

5. Sufficient flexibility to permit the retention or recall to active duty of the individual who is a capable leader despite his attained age; 6. Retirement benefits for members of the reserves which provide an incentive for a

*Lieutenant Donald J. Brown, USNR, is presently detailed to the General Affairs Branch of the Administrative Law Division in the Office of the Judge Advocate General. He attended Creighton University and graduated from the University of Iowa with the B.A. degree in 1956 and the J.D. from the College of Law in 1958. Lieutenant Brown is a member of the Iowa Bar and the Bar of the U.S. Court of Military Appeals. He is a member of the Iowa State Bar Association, the American Bar Association, and Secretary of the Navy-Marine Corps Junior Bar Association. He is presently serving as a vice-chairman of the Military Service Committee of the Junior Bar Conference of the American Bar Association.

large body of men to keep themselves prepared for a call to active duty in an emergency. At the present time there are no service-retirement provisions which apply uniformly to all military personnel except for the warrant officer group, disability retirement, and, with some exceptions, the reserve forces. Other retirement provisions differ in detail among the services but conform in general effect.

II. SOURCE OF FUNDS The uniformed services retirement system has always been noncontributory and without advance accruals or funding. Benefits are paid

directly from current Department of Defense appropriations on a pay-as-you-go basis. While it is noncontributory, Congress, in fixing rates of current compensation, has, of course, considered this feature and military pay has been fixed in this context.

In 1954 the Committee on Retirement Policy for Federal Personnel recommended as follows:

The Committee believes that there is no pressing need to place the military retirement system on other than the present pay-as-you-go basis. The uniqueness of military service, its traditional concepts of the function of its retirement policies, and the constantly fluctuating population of the service (more uncertain now than ever) do not altogether lend themselves to a financial plan other than meeting retirement obligations as they arise. We perceive that a time may come when it will be desirable to reconsider the methods of funding and financing the military retirement system. For the time being, however, we recommend no change in the present policy. (Part 4, p. 4 of

the Kaplan Report.)

The Kaplan Committee also considered the contributory versus non-contributory features of retirement systems. The reasons for each plan were enumerated in the report. Those reasons which would appear applicable in the effectuation of the basic goals of a military retirement system, set forth in the preceding section, are as follows.

1. Subtitle A of Title 10 of the United States Code contains those provisions of general applicability to the various services.

2. Retirement Policy for Federal Personnel, (The Kaplan Report) Letter from Chairman, Committee on Retirement Policy for Federal Personnel transmitting its Fourth Report Dealing with the Financial Status of the Federal Retirement Systems and Recommended Funding and Financing Policies, Pursuant to Public Law 555, 82d Congress, printed as Senate Document No. 89, Part 4, 83d Cong., 2d Sess., at p. 4.