Collester, Lynch and Michels. The opinion of the court was delivered by Lynch, J.A.D.
[129 NJSuper Page 151] This is an action pursuant to the compensation provisions of the Military and Veterans Law (N.J.S.A. 38A:13-1 et seq.). It is brought on behalf of the widow and daughter of Sergeant Stephen G. Doerr, a member of the New Jersey National Guard, who died as a result of an explosion of one or more dud rounds of ammunition at Camp Pickett, Virginia, during Doerr's two week stint in the National Guard service. The claim filed alleged that decedent suffered his death "in line of duty" and therefore compensation was payable to his dependents as provided in the statute.
The pertinent statute, N.J.S.A. 38A:13-1, provides that injury or death is compensable if it was incurred "in the performance of duty ordered by competent authority, and such injury, disease or disability is determined to be in line of duty * * *." It further provides:
As used in this chapter "in line of duty" means that the injury, disease, disability or death has been sustained in the discharge of duty and is not due to any voluntary act or traceable to willful neglect, fault or his own vicious habits.
Following the statutory procedure (N.J.S.A. 38A:13-4), a board of five officers was appointed to inquire into the merits of the claim. Following a hearing the board reported its findings and conclusions by a divided vote of 3 to 2, the majority concluding that the death did not arise "out of and in the course of employment."*fn1 The claim was therefore rejected. The minority, concluding that the accident occurred "in the course of employment, and was not due to willful neglect," would have allowed the claim. Pursuant to the statute (N.J.S.A. 38A:13-4), the chief of staff reviewed the respective findings and approved the majority report.
On Saturday, August 19, 1972, while at Camp Pickett, Sergeant Doerr in the company of Privates First Class Kuhn, Havrilchak and Hughes, went to the firing range area, intending to pick up parachutes from artillery illumination rounds. Because the range was active, no attempt was made to pick up parachutes and the party returned to the motor pool to which they were attached.
On Sunday, August 20, 1972, Sergeant Doerr and Privates First Class Kuhn and Havrilchak returned to the range area, but Private First Class Hughes did not join them. While they were in the range area, there was an explosion of one or more dud rounds (3.5" rockets, 40 mm. grenades, or possibly rifle grenades), resulting in the deaths of Doerr, Kuhn and Havrilchak.
The majority concluded that decedent was in the firing range to collect souvenirs; that to do so
The majority also concluded that Doerr's death was traceable to willful neglect because:
a. Sergeant Doerr was present in the impact area of a firing range, knowing it was an impact area, was the leader in the activity, and in so doing exhibited a reckless disregard for his own personal safety as well as the safety of others;
b. Evidence shows that Sergeant Doerr was engaged in collecting some type of ammunition souvenirs while in the impact area despite the inherent dangers of such activity. Whether he had specific knowledge of the type of ammunition involved could not be determined; however, as a soldier of about nine years, including membership on a rifle team, it must be presumed that he had a general knowledge of the dangerous qualities of ammunition to be found in an impact area. His act of handling rounds found in the impact area, or permitting these actions by subordinates, indicates reckless conduct which endangered his safety as well as the safety of others.
The minority held that since the National Guard had brought Sergeant Doerr to an area away from home, the State should be ...