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THE EFFECTS OF AN ADVERSE CONDUCT-LINE OF DUTY DETERMINATION

LT GALEN D. POWERS, USNR*

INCE 1799 the concept of "line of duty" has been vital in the administration of regulations and Federal statutes delineating the obligations of and benefits available to naval personnel.1 Those statutory and regulatory provisions which impose obligations upon or deny benefits to naval personnel in the event of their subjection to an adverse conduct-line of duty 2 determination are collected and examined herein. Although this article focuses on laws and regulations applicable to personnel of the Navy and Marine Corps, similar regulatory and generally the same statutory provisions are germane in the administration of the Army and Air Force.

Payment of the death gratuity has not depended on a conduct-line of duty determination since 1959, but any question of whether or not such a determination in the event of disability still has a vital and substantial impact upon a member of the naval service must be answered with nothing less than flat affirmation.

The concept of line of duty is limited in this discussion to the artful, technical meaning it has acquired under applicable opinions and regulations, particularly the Manual of the Judge Advocate General. The elemental requirements, however, of an adverse conduct-line of duty determination may vary not only among the separate agencies concerned, but also among the statutes and regulations administered within each agency.

Where the elements constituting misconduct or not in the line of duty are not set

*Lieutenant Galen D. Powers, USNR, is presently assigned to the Investigations Division in the Office of the Judge Advocate General. He received his A.B. degree from the University of Michigan in 1959 and the degree of LL.B. from the University of Michigan in 1962. He is a member of the Michigan State Bar and the American Bar Association.

1. For a history of the development of the concept see: Roberts, Line of Duty Status-Part 1, JAG J., Dec. 1949, p. 10.

2. See JAG Manual, sec. 0806(b) for the relationship between misconduct and line of duty. Where not otherwise qualified, an “adverse conduct-line of duty determination" herein means either a finding of "misconduct-not in the line of duty" or a finding of "not misconduct-not in the line of duty." Although an adverse conduct-line of duty determination is not a punitive measure [JAG Manual sec. 0806 (a)], the provisions recited will demonstrate that it may have results quite as consequential as those of punitive measures.

3. 10 U.S.C. 1475-1480 were amended by act, 2 Sept. 1958, Pub. Law 85-861, 72 Stat. 1452.

4. JAGINST P5800.7; see in particular Chapter VIII.

out here, it should be assumed that they are the same as those prescribed in the Manual. The limited meaning here ascribed to the operative words excludes consideration of the preliminary but vital problem of "employment" "-"line of duty" in its broadest sense; i.e., whether or not a person is a member of the naval service on active duty or inactive duty training at the time he incurs or aggravates his disability. The Judge Advocate General's determination of personnel status vis-à-vis employment is final and binding within the naval establishment and also is accepted by the Veterans Administration.

Regulations and statutes relative to the effects of an adverse conduct-line of duty determination have been arbitrarily divided into three groups: (1) those administered by the naval service; (2) those administered by the Veterans Administration; and (3) those administered by other governmental agencies.

I

PROVISIONS ADMINISTERED
BY THE NAVAL SERVICE

Hospitalization and medical care

Entitlement to hospitalization and medical care does not generally depend on a conduct-line of duty determination. Any member of the naval service disabled while on active duty is entitled to receive the maximum benefits of hospitalization and medical care at naval expense regardless of his conduct-line of duty status at the time the disability was incurred. Reservists on active duty for training or attending an inactive duty drill and contract NROTC students, without reserve or enlisted status, attending a training course or cruise, who are disabled during such duty from an injury or disease not incurred while they were so "employed", are not entitled to medical care or hospitalization beyond the scheduled period of the duty, drill,

5. Similar to the problem governed by the familiar phrase of workmen's compensation legislation: "arising out of and in the course of employment"; e.g., Ariz. Rev. Stat. Ann., tit. 23, § 1021.

6. The problem is most acute with disabled reservists, in which case the governing statute is 10 U.S.C. 6148, as amended.

7. 10 U.S.C. 1074; see also BUMEDINST 6320.31. sec. A1.

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course, or cruise. Reservists so disabled will be furnished the medical treatment required but will be charged a regulation fee for care extending beyond the period of duty or drill. However, a reservist who becomes ill in line of duty while he is on active duty or performing inactive duty training is entitled to receive at naval expense medical, hospital, and other treatment appropriate for that illness; such treatment will be continued until the disability cannot be further materially improved. The records of contract NROTC students having no reserve or enlisted status will be transferred after the period of course or cruise to the Bureau of Employees Compensation, administered by the Labor Department, which will make its separate determination of the employment and line of duty status of the student at the time disability was incurred.10 His right to continued treatment at government expense is dependent on that determination.

Entitlement to pay and allowances

A disabled regular service member's entitlement to pay and allowances also does not depend on a favorable conduct-line of duty determination except in the following important class of cases. If any member of the naval service is absent from his regular duties for more than one day by reason of the effects of a disease caused by the intemperate use of alcoholic liquors or habit forming drugs, his pay is checked. This checkage includes basic pay, special pay, and incentive pay for the performance of hazardous duties. Allowances are not affected, except that enlisted members lose their clothing maintenance allowance. If pay is forfeited for a period in excess of one month at any one time by reason of this provision, the member will be paid five dollars per month for personal expenses for the remainder of the absence attributable to such disease.11 If the member has a Q allotment registered, and he loses more than two months by reason of such disease, his Q allotment is stopped at the end of the second month and a new Q allotment is registered solely in the amount of his basic allowance for quarters (the governmental contribution to the Q allotment).12

Completion of enlistment or obligated service (making up lost time)

An enlisted member who loses time from duty

8. BUMEDINST 6320.31, secs. C(2) (f), C(5) (g).

9. Ibid., sec. C(5) (g).

10. See: 5 U.S.C., Chapter 15, particularly secs. 751 and 802. 11. 37 U.S.C. 802 (formerly 10 U.S.C. 6111); NavCompt Manual, par. 044252.

12. NavCompt Manual, par. 044037-2e.

for a period in excess of twenty-four consecutive hours by reason of injury or disease incurred as a result of misconduct (sickness misconduct) " must, upon return to full duty, serve a period which, when added to the period served before his absence from duty, amounts to the term for which he enlisted or was inducted.14 His term of service is extended automatically to make up the time lost by reason of his misconduct. This regulation does not apply to officers. Medical treatment beyond expiration of enlistment

In light of the foregoing provisions, consider the problem of a disabled regular enlisted member who has not received, at the time of the expiration of his enlistment, the maximum benefits of hospitalization and medical care for physical disability. He may be retained on active duty with his consent 15 (and thus receive active duty pay and allowances) until he is able to meet the physical requirements for re-enlistment or until it is determined that he will not be able to meet those requirements (in which case he will be retired or separated under appropriate physical disability provisions). However, such retention on active duty is dependent on the disability having been incurred not as the result of his misconduct.16 If the disability was the result of his misconduct, and the disability is not permanent, he will be retained on active duty, and thus receive pay and allowances (if the disability was not caused by the intemperate use of alcoholic liquors or drugs) 17 during hospitalization and for the additional period required to make up the time lost.18 If the disability was the result of his own misconduct, or was incurred during a period of unauthorized absence, and is permanent (totally or partially), the member will not be entitled to pay and allowances beyond the expiration of his enlistment. Special rules govern the extension of

13. "Sickness misconduct" (SKMC) is an administrative expression for the concept of disability due to own misconduct developed by the applicable sections of the JAG Manual.

14. 10 U.S.C. 972 implemented by BuPers Manual, art. C-10304A and MarCorPersMan, par. 15111.3. A determination of “not misconduct-not in the line of duty" does not extend the term of service nor does it, per se, have any other substantial efficacy in time lost considerations. That is, if a member is disabled not due to his misconduct but during a period of unauthorized absence which materially interferes with the performance of his required military duties (not in the line of duty), the time lost due to his disability has no effect on extension of enlistment or any other significant time lost provision.

15. But not if his injury was incurred "not in the line of duty, not due to misconduct." BuPers Manual, art. C10304 (5) (f) (1). 16. 10 U.S.C. 5537; see also: BuPers Manual, art. C-1403 (8). 17. Supra, footnote 10.

18. Supra, footnote 13.

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duty of reservists who are disabled at the expiration of their active duty or drill period.1 Longevity (completion of cumulative years of enlisted service for basic pay purposes) Time lost by enlisted personnel in excess of twenty-four consecutive hours because of sickness misconduct is not included in the computation of cumulative years of enlisted service for basic pay purposes.20 Officers, however, do not lose time for longevity purposes because of sickness misconduct. This special regard for officers relative to several aspects of lost time has been of some interest to other branches of the government. In a pertinent decision the Comptroller General has stated,

.. it is our view that legislation would be required to change the long-standing rule as to officer service. While the trend of legislation in recent years generally has been to provide equal treatment for officers and enlisted members of the Armed Forces, we do not perceive in the applicable statutes a sufficient basis to warrant a change in the different existing rules applicable to officers and enlisted members ..

The differences have narrowed, however, even since the time of this decision.22

Computation of leave credit

Leave credit (two and one-half days for each month of active duty) does not accrue for any member of the naval service during periods of lost time due to sickness misconduct.23 Officers also are within this regulation even though they do not lose time by reason of sickness misconduct for purposes of longevity or completion of obligated service.

Computation of service eligibility for advancement

Time lost by nonperformance of duty due to sickness misconduct is excluded from the computation of service eligibility of enlisted personnel for advancement in rate.24 The Officer Personnel Act of 1947, however, contains no provision excluding such time from the computation of eligibility of officers for consideration for promotion.

19. See in this regard 41 Comp. Gen. 706 (1962).

20. NavCompt Manual, par. 044019-1C and MarCorPersMan, pars. 15111.3a (1) and 15111.3b (b) d.

21. 38 Comp. Gen. 352 at 353 (1958).

22. See footnote 26 citing the 1959 BuPers Manual which excludes SKMC time in computing time served for purposes of voluntary retirement of officers. The cited Comp. Gen. decision, supra, states that such time cannot be excluded.

23. BuPers Manual, art. C-6104; MarCorPersMan, par. 9050.b. 24. BUPERSINST P1430.7D, Pt. II, (h) (4).

Computation of service for transfer to the Fleet Reserve, Fleet Marine Corps Reserve, and retirement

Time lost through sickness misconduct is deducted from the active service of enlisted personnel in computing service time for purposes of transfer to the Fleet Reserve or the Fleet Marine Corps Reserve.25 The differences noted above in the time lost treatment of officers are inapplicable in this area; time lost because of nonperformance of duty by reason of sickness misconduct is deductible in computing creditable service for the voluntary retirement of officers.26 27

Severance pay for reservists under active duty contracts

If a reservist contracts with the Secretary of the Navy, under applicable provisions, to perform one to five years active duty, and is separated during the period of the agreement without his consent, 28 he will receive severance pay. If, however, he is released because of physical disability resulting from his misconduct, he is not entitled to severance pay.29

Recoupment of re-enlistment bonus

A re-enlistment bonus will be recouped on a pro rata basis for any period of time not served by reason of sickness misconduct.30 If a member is separated because of physical disability resulting from misconduct or incurred during a period of unauthorized absence, a pro rata portion of the re-enlistment bonus will be recouped. However, no member will be retained on active duty solely for the purpose of recouping a re-enlistment bonus.82

Posthumous warrants and commissions

There are statutory provisions for the award under strictly limited circumstances of posthumous warrants by the Secretary of the Navy and posthumous commissions by the President in the name of members of the naval service who die after September 8, 1939. The awarding of these warrants or commissions depends on death having occurred in the line of duty.33 Since the naval service no longer automatically determines the conduct-line of duty status of a

25. BuPers Manual, art. C-14301; MarCorPersMan, par. 13400.3 (also 13404.1d).

26. BuPers Manual, art. C-14401.

27. For a treatment of the concept of time lost see Garraty, Time Lost-Its Meaning and Effects, 15 JAG J. 123 (Sep. 1961). 28. 10 U.S.C. 679 (a).

29. 10 U.S.C. 689 (b) (2).

30. BuPers Manual, arts. A-4204 (2) (a) (5); C-10303.

31. Ibid., A-4204 (2) (b) (3).

32. Ibid., A-4204 (4).

33. 10 U.S.C. 1522 and 10 U.S.C. 1521.

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(1) Retirement. A member of a regular component of the naval service on active duty for thirty days or more who is found to be unfit to perform his duties because of a disability incurred while he is entitled to receive basic pay may be retired or placed on the temporary disability retired list with retired pay if (a) he has twenty years service, or (b) he has eight years service and his disability is rated thirty percent or more, or (c) his disability is rated thirty percent or more and it was incurred in line of duty during war, the Korean conflict or a national emergency," or is the proximate result of the performance of active duty.38 A member of the naval service on active duty for less than thirty days may qualify for disability retirement if his disability is permanent and is the proximate result of performing active duty or inactive duty training and either (a) the member has twenty years service, or (b) the disability is at least thirty percent.39 However, if the physical disability was incurred as a result of the member's intentional misconduct or willful neglect or during a period of unauthorized absence 40 he is not entitled to any of the benefits of retirement or of being placed on the temporary disability retired list.41

34. This is an extraordinarily complex subject. For a treatment of the provisions applicable to reservists see Albright, Retirement Benefits for Reservists Injured on Training Duty, 17 JAG Journal 14 (Jan. 1963). For an excellent essay on the financial implications of these provisions see Carraway, Disability Retirement or Separation-The Financial Aspects, 16 JAG Journal 91 (July-Aug. 1962) ; as to uniform implementation among the armed services see: DOD Dir. 1332.8 of 6 Dec 1962.

35. Disability Separation Manual (DSM) sec. 0216(a): "... encompasses all types of duty which entitled the party concerned to receive active duty pay, and any duty without pay which, by law, may be counted the same as like duty with pay."

36. The Standard Schedule of Rating Disabilities employed by the Veterans Administration is used by the naval service. See: VA Reg., par. 1321.

37. For purposes of these laws a national emergency now exists and has existed since 16 December 1950. Proc. 2914, 16 Dec. 1950, National Emergency 1950, 50 U.S.C. App. Prec. Sec. 1 note. 38. DSM sec. 0221; see particularly part (c).

39. 10 U.S.C. 1204. The possibility should be considered that the "proximate result" test may not be applicable because of the requirement of 10 U.S.C. 6148 that certain reservists are entitled to the same compensation as regulars.

40. Any unauthorized absence sufficient to constitute the offense under Article 86, UCMJ, is sufficient to sustain a not in line of duty determination and thus deprive a member of disability separation or retirement benefits. The test of JAG Manual section 0807 (d) is inapplicable in physical disability separation or retirement proceedings.

41. 10 U.S.C. 1201(2), 1202, 1207.

A member is placed on the temporary disability retired list if he would otherwise qualify for disability retirement except that the permanence of his disability is indeterminable for a period of time. A member carried on the temporary disability retired list will be given a physical examination at least once every eighteen months to determine the stability, permanence, and extent of his disability at that time," but the member will not remain on the list with pay for longer than five years.44 He will at some time during the five year period be (1) permanently retired, or (2) discharged with or without severance pay, or (3) returned to duty.45

(2) Separation. If a member of the naval service suffers a disability which is or may be permanent and is rated less than thirty percent and he has less than 20 years service and the disability was incurred as the proximate result of performing active duty or was incurred in line of duty in time of war or national emergency, he may be separated from the service with severance pay.46 If a member has a disability which is or may be permanent and is rated less than thirty percent and he has eight years service he may be separated with severance pay. If a member is or may be permanently disabled and has at least thirty percent disability but less than eight years service and his disability was neither the proximate result of performing active duty nor incurred in line of duty in time of war or national emergency he may be separated with severance pay. If a member is permanently disabled by an injury while on active duty for thirty days or less and he has less than twenty years service and his disability is less than thirty percent, but was the proximate result of performing active duty or inactive duty training, he may be separated with severance pay.48 However, none of the members described above is eligible for separation with severance pay if his disability resulted from his intentional misconduct or willful neglect, or was incurred during a period of unauthorized absence.19

47

Disability retirement or severance pay from the naval service does not exclude disability compensation from the Veterans Administration;

42. 10 U.S.C. 1202.

43. 10 U.S.C. 1210(a).

44. 10 U.S.C. 1210 (b), (h). See MS Comp. Gen. B-149025, 26 July 1962.

45. 10 U.S.C. 1210. He may be returned to duty only with his consent (10 U.S.C. 1211).

46. 10 U.S.C. 1203

47. Ibid.

48. 10 U.S.C. 1206.

49. 10 U.S.C. 1206 (2), 1207.

however, one cannot collect the whole amount of service retirement pay and Veterans Adminiscration disability compensation at the same time. Nevertheless, it is possible to make a choice which may combine under certain circumstances Income from both sources." 50 Compensation

paid by the Veterans Administration does not depend on having at least thirty percent disability; also, the percentage of disability as determined by the naval service is not binding on the Veterans Administration, which will conduct its own examination and independently decide the percentage of disability.

It is important to note that a career officer or enlisted person eligible for voluntary retirement may lose the opportunity to so retire and thereby lose all benefits of retirement or separation if he is disabled due to his own misconduct, and the disability separation or retirement proceedings in his case are completed.

Determinations of physical disability are made by Physical Evaluation Boards, and the decision of the Judge Advocate General as to a member's conduct-line of duty status at the time he incurred his disability is not controlling with the Board, but is advisory only. However, the standards of the Boards are very similar to those used by the Judge Advocate General.52 Additionally, the Judge Advocate General reviews the physical disability proceedings and either approves them for the Secretary or submits to him recommendations concerning the disposition of each case; and the Physical Review Council, which advises the Secretary on the disposition of the disability case if there is no disagreement between the Board and the Council, has a representative of the Judge Advocate General as one of its four members. 53

The general conclusions to be drawn from the foregoing discussion can be summarized as follows: (1) the principal effects of an adverse conduct-line of duty determination in the naval service are in two general areas (a) time lost, and (b) disability separation or retirement; (2) in general there is no loss of eligibility for medical care by reason of an adverse conductline of duty determination; (3) loss of eligibility

50. See NavPers 15963c, pp. 25, 27. See 38 U.S.C. 3104, 3105, which treat double payment and waiver of payment from the armed forces.

51. DSM sec. 0217(a). A Board of Medical Survey and its convening authority make the initial decision of the possibility of unfitness (DSM secs. 0306(c), 0308(a)).

52. Compare DSM, Chapter 2 with JAG Manual, Chapter VIII. 53. DSM secs. 0701, 0502. Only three members sit on the Council at any one time: a representative of the Commandant, Marine Corps, or of the Chief, Bureau of Naval Personnel, the JAG representative, and the representative of the Chief, Bureau of Medicine and Surgery.

for pay because of an adverse conduct-line of duty determination is generally limited to disability due to alcohol or drugs; (4) in the event of an adverse conduct-line of duty determination the ramifications of the time lost provisions are more extensive for an enlisted member, he "loses more," than for an officer; (5) in the event the injury or disease causes permanent disability the time lost provisions, of course, become insignificant, and the real purpose and effect of the adverse conduct-line of duty determination is to deny disability separation or retirement benefits from the naval service.

II

PROVISIONS ADMINISTERED BY THE

VETERANS ADMINISTRATION

The opinion of the Judge Advocate General vis-à-vis the conduct-line of duty status of a member of the naval service at the time he incurs disability is binding on the Veterans Administration to the following extent. Applicable regulations of the Veterans Administration provide that "a service department finding that an injury, disease or death was not due to misconduct will be binding on the VA unless it is patently inconsistent with the facts," 54 and that "a service department finding that injury, disease, or death occurred in line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA." 55 Conduct-line of duty requirements are met generally for the Veterans Administration if the injury or disease was incurred on active duty and was not the result of the member's own willful misconduct, or was not incurred while the member was in a status of desertion or unauthorized absence, or confined under sentence of a court-martial involving an unremitted dishonorable discharge, or confined under sentence of a civil court for a felony.5

A comparison of the effects listed in the foregoing section with those described infra will demonstrate that the purposes of conductline of duty determinations in the naval service vary considerably from the purposes of those in the Veterans Administration. Consequently, although pertinent provisions governing Veterans Administration determinations of conduct-line of duty status are outwardly sim

54. VA Reg., par. 1001 (N).

55. VA Reg., par. 1001 (M). The VA applies a test of "material interference" to determine if a disability incurred during a period of unauthorized absence was incurred "not in the line of duty". See: VA Reg., par. 1001 (M) (1).

56. 38 U.S.C. 105; see: VA Reg., par. 1301.

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