(c) Are reservists performing training duty in excess of 30 days, of which only 30 days or less will be training duty with pay, entitled to the benefits granted by the Naval Aviation Personnel Act of 1940 and the Act of March 17, 1941, or merely to the medical treatment and hospitalization provided for under Article H-7303 of the Bureau of Naval Personnel Manual? (d) Are reservists performing training duty for 30 days or less, but who are hospitalized before release to inactive duty and remain on training duty, even though without pay, in excess of 30 days, entitled to the benefits granted by the two above-named Acts or merely to the medical treatment and hospitalization provided for in Article H-7303, supra? (e) Are reservists who are hospitalized while performing training duty for 30 days or less entitled to pay and allowances beyond the date stated in their orders if their hopsitalization extends beyond such date? A contextual view of controlling laws will aid an understanding of the answers to the above questions. Pertinent provisions are accordingly quoted hereunder, with comment where indicated, prefatory to particularizing in reply. The basic law relating to Naval Reservists is of course the Naval Reserve Act of 1938 (52 Stat. 1175; 34 U. S. C. 852-856). Section 304 of the Act, as amended by the Act of August 7, 1946 (60 Stat. 892; 34 U. S. C. 855c) provides as follows: * * "If in time of peace any member of the Naval Reserve is physically injured in the line of duty while performing active military or naval service, or dies as the result of such physical injury, he or his beneficiaries shall be entitled to all the benefits prescribed by law for civil employees of the United States who are physically injured in the line of duty or who die as a result thereof, and the United States Employees' Compensation Commission shall have jurisdiction in such cases and shall perform the same duties with reference thereto as in the cases of civil employees of the United States so disabled: Provided, That where a person who is eligible for the benefits prescribed by this section is also eligible for pension under the provisions of the Act of June 23, 1937 (50 Stat. 305), he shall elect which benefit he shall receive, and for the purposes of this section and of said Act all members of the Naval Reserve shall be considered as performing active military or naval service while performing active duty with or without pay, training duty with or without pay, drills, equivalent instruction or duty, appropriate duty, or other prescribed duty, or while performing authorized travel to or from such duties: *** Provided further, That Naval Reservists who become ill or contract disease in line of duty during the performance of active duty or training duty with or without pay shall be entitled, at Government * expense, to such medical, hospital, or other treatment as is neces- Attention is invited to the proviso next last above, which was added by the Act of August 7, 1946, supra, and made effective as of 1 December 1945. First it will be noticed that the proviso makes the Section applicable to the period between cessation of hostilities and official termination of the war. In other words, this period is placed in the peace time category. Next it will be observed that the proviso covers every phase and type of service, except active duty extending beyond 30 days. Particular attention should be given to the unqualified phrase, "training duty with or without pay." The key to all the questions posed lies in the unlimited nature of this phrase. Although the proviso places a time limit of 30 days on active duty covered by the Section, no limit is included in the phrases relating to training duty, drills, instruction, et cetera. In short, the above Section of the Naval Reserve Act of 1938 covers limited periods of active duty up to and including 30 days, and all periods of training duty, regardless of the length of such service. The only phase of reservist service not included in the Naval Reserve Act of 1938 is covered in the Naval Aviation Personnel Act of 1940 (54 Stat. 864, as amended; 34 U. S. C. 855c-1), Section 4 of which provides in pertinent part as follows: "All officers, nurses, warrant officers, and enlisted men of the United States Naval Reserve or United States Marine Corps Reserve, who, if called or ordered into active naval or military service by the Federal Government for extended naval or military service in excess of thirty days, suffer disability or death in line of duty from disease or injury while so employed shall be deemed to have been in the active naval service during such period, and they or their beneficiaries shall be in all respects entitled to receive the same pensions, compensation, retirement pay, and hospital benefits as are now or may hereafter be provided by law or regulation for officers, warrant officers, nurses, and enlisted men of corresponding grades and length of service of the Regular Navy or Marine Corps * 66 By the Act of March 17, 1941 (55 Stat. 43), the above provision was extended as of 27 August 1940, to include a death gratuity as follows: the benefits provided by section 4 of the Act approved August 27, 1940 shall include payment of the gratuity authorized by the Act of June 4, 1920 (41 Stat. 824), as amended by the Act of May 22, 1928 (45 Stat. 710; U. S. C. title 34, sec. 943)." Although the active service contemplated may, of course, include some training duty, the above provision of the Naval Aviation Personnel Act of 1940 relates to actual service in the military or naval forces and has no application to tours of training duty or duty exclusively of a training nature. The implications of the provision are summed up by the Comptroller General in decision B-17775 of 12 August 1941 (21 Comp. Gen. 121, 123) as follows: "The language was undoubtedly designed for the benefit of all members of the Naval Reserve or Marine Corps Reserve who are called into active service for a period in excess of thirty days and necessarily would include those members who are or will be called to active duty for an indefinite period during the existing national emergency. Where the orders calling such members of the Reserve to active duty do not in terms limit the period thereof to less than thirty-one days and do not otherwise show that the active duty ordered shall be for a period of less than thirtyone days or are indefinite as to duration and otherwise show the ordered duty is during the emergency, such members are within the provisions of section 4 of the act of August 27, 1940, as amended, regardless of the date of the happening of the disability or death." By way of rounding out the picture of laws providing benefits on service performed by members of the Naval Reserve, mention should be made of the Act of June 23, 1937 (50 Stat. 305), which is referred to in the Naval Reserve Act of 1938 as hereinbefore quoted in the third paragraph. The Act amends Veterans' Regulations to extend peace-time service pension benefits to members of the various Reserve forces as follows: "That Veterans' Regulation 1 (a), part II, paragraph 1 (a), be amended to read as follows: '1. (a) For disability resulting from personal injury or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted or suffered in line of duty when such disability was incurred in or aggravated by active military or naval service other than in a period of war service as provided in part I, the United States will pay to any person thus disabled and who was honorably discharged from such period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, a pension as hereinafter provided, but no pension shall be paid if the disability is the result of the person's own misconduct: Provided, That active service, including service for training purposes, performed by a Reserve officer or member of the Enlisted Reserves of the United States Army, Navy, or Marine Corps, shall be considered as active military or naval service for the purpose of granting benefits under part II hereof, and it shall not be required that such Reserve officer or enlisted man shall have been discharged from the service. Pension under this paragraph shall not be paid concurrently with active duty pay or employees' compensation. Where a person who is eligible for pension hereunder is also eligible for the benefits of Employees' Compensation Act, he shall elect which benefit he shall receive. * * The present regulation reads as above. By virtue of this provision reservists performing training duty in peace time have pension coverage under Veterans' Regulations for death or disability arising from either injury or disease. In the event of death or disability from injury, benefits are available and may be chosen from either the Veterans' Administration or the Employees' Compensation Commission. For death or disability resulting from disease, pension benefits may be obtained from the former. (Employees' compensation does not extend to death or disability resulting from illness or disease.) In general summation it appears that members of the Naval Reserve ordered into active service for an indefinite period or a specified period in excess of 30 days are entitled to the same pensions, compensation, retirement pay and hospitalization, including death gratuity benefits, provided for members of the regular service under the same circumstances. They receive active duty pay and allowances so long as they are retained on active duty. Disabled members are so retained until placed on the retired list or physically qualified for release. Members of the Naval Reserve ordered to active duty for 30 days or less, or training duty of any duration, receive hospitalization and medical attention during the period covered by their orders, and pay and allowances as specified or for the period designated therein. Neither illness nor injury is effective to extend the duty period, however, and reservists under such orders are discharged from active or training duty on expiration of the orders. Any member suffering from illness or disease at the end of such a tour, is entitled at government expense to hospitalization or medical care until the illness or disease cannot be materially improved, transportation and subsistence incident to such treatment, and return home upon discharge therefrom. Hospitalization or treatment for illness or disease cannot be extended beyond 10 weeks without the recommendation of a board of medical survey. In the event of death or disability resulting from illness or disease, pension benefits may be obtained from the Veterans' Administration. In the case of a reservist injured during a training tour or active duty for 30 days or less, the Employees' Compensation Commission assumes jurisdiction over such member on expiration of the period specified in his orders, and provides or arranges for hospitalization, medical treatment, compensation or other benefits as provided in regulations relating to civil employees. In the event of death or disability resulting from injury, benefits are available from either the Employees' Compensation Commission or the Veterans' Administration. The questions set forth above may be specifically answered as follows: (a) Naval reservists performing training duty in excess of 30 days are not "called or ordered into active naval * * service" within the meaning of Section 4 of the Naval Aviation Personnel Act of 1940, but are entitled to medical treatment, hospitalization, compensation or pension benefits as provided in Articles H-7301, H-7302, and H-7303 of BuPers Manual, Part H (Revised 1947). (b) The death gratuity follows only active service as contemplated in Section 4 of the Naval Aviation Personnel Act of 1940 and does not lie on tours of training duty. (c) Naval reservists performing training duty in excess of 30 days, with or without pay in part or in whole, are entitled only to benefits as indicated in (a) above. (d) Naval reservists performing training duty for 30 days or less, who are injured or become ill while training, come under the jurisdiction of the Employees' Compensation Commission after expiration of the time specified in their orders, or under Article H-7303 of BuPers Manual, and are entitled only as indicated in (a) above. (e) Naval reservists hospitalized while performing training duty for 30 days or less and who remain hospitalized are not entitled to pay and allowances beyond the date specified in their orders, but receive compensation and benefits as indicated in (a) above. (File: JAG:II: RDF :mh, 31 Mar. 1948.) Plea of “not guilty” to part of specification: effect. A general court martial convicted an accused of the charge of “Absence from station and duty after leave had expired" (specification proved by plea); Additional Charges (I) “Desertion"; (II) "Breaking arrest"; (III) "Stealing property of the United States intended for the naval service thereof" (specification proved by plea, except the words “and one rifle, U. S. caliber thirty, M-one, number two two three zero five seven, of the value of about eighty-one dollars ($81.00)", to which words the accused entered a plea of not guilty); (IV) “Knowingly and wilfully applying to his own use property of the United States intended for the naval service thereof" (specification proved by plea); |