[IRS Employee's Claim for Transportation Expenses]

A-41468, MAY 10, 1932, 11 COMP. GEN. 420

MEDICAL TREATMENT - NAVAL RESERVIST THE EXPENSES INCURRED IN THE TREATMENT IN A CIVILIAN HOSPITAL OF A NAVAL RESERVIST AS A RESULT OF A DISEASE INCURRED DURING A 15 DAYS' PERIOD OF TRAINING DUTY ARE NOT CHARGEABLE TO THE GOVERNMENT BEYOND THE PERIOD OF SUCH TRAINING DUTY, AND THE ISSUE OF AN ORDER BY THE COMMANDANT OF A NAVAL DISTRICT TWO DAYS AFTER TERMINATION OF THE TRAINING PERIOD PURPORTING TO CONTINUE THE RESERVIST ON ACTIVE DUTY WITHOUT PAY FOR AN INDEFINITE PERIOD FOR THE PURPOSE OF RECEIVING MEDICAL TREATMENT DOES NOT PLACE SUCH MEMBER ON ACTIVE DUTY SO AS TO OBLIGATE THE GOVERNMENT TO PAY SUCH EXPENSES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 10, 1932:

THERE HAS BEEN RECEIVED BY YOUR DECISION A REQUEST FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR REVIEW OF THE ACTION OF THE AUDIT DIVISION OF THIS OFFICE IN REFUSING CERTIFICATION FOR PAYMENT OF A VOUCHER IN FAVOR OF MRS. CARLYSLE VON THOMAS, SR., FOR $182, AS REIMBURSEMENT OF THE AMOUNT PAID FOR NURSE SERVICES FOR HER SON, CARLYSLE VON THOMAS, JR., YEO. 3 CL. (F-1), UNITED STATES NAVAL RESERVE, COVERING THE PERIOD AUGUST 8, TO SEPTEMBER 2, 1931, INCIDENT TO AN OPERATION FOR APPENDICITIS, AUGUST 8, 1931, AT ST. LUKE'S HOSPITAL, CHICAGO, ILL.

THE FACTS OF RECORD SHOW THAT THE RESERVIST WAS ORDERED TO 15 DAYS' TRAINING DUTY ON BOARD THE U.S.S. WILMINGTON BY ORDERS OF THE COMMANDANT, NINTH NAVAL DISTRICT, DATED JUNE 29, 1931, FOR THE PERIOD JULY 25 TO AUGUST 8, 1931, INCLUSIVE, THAT HE WAS TAKEN SUDDENLY ILL ON THE NIGHT OF AUGUST 8, 1931, AND THAT DUE TO THE EMERGENCY OF THE CASE AND THE DANGER IN TRANSPORTING THE MAN BY AMBULANCE TO THE GREAT LAKES HOSPITAL, ABOUT 35 MILES DISTANT, HE WAS IMMEDIATELY TAKEN TO THE ST. LUKES' HOSPITAL WHERE AN OPERATION WAS PERFORMED AUGUST 8, 1931, BY DR. HAROLD E. JONES OF CHICAGO, ILL. IT IS FURTHER OF RECORD THAT THE ORDERS TO ACTIVE DUTY OF JUNE 29, 1931, WERE SUBSEQUENTLY EXTENDED FOR AN INDEFINITE PERIOD COMMENCING AUGUST 9, 1931, WITHOUT PAY OR ALLOWANCES TO COVER SUCH TIME AS THE RESERVIST WAS BEING TREATED IN THE CIVILIAN HOSPITAL, IT BEING STATED THAT THE TOTAL ACTIVE DUTY PERFORMED COVERED THE PERIOD JULY 25 TO SEPTEMBER 13, 1931, THE LATTER DATE BEING THE DATE OF THE RESERVIST'S DISCHARGE FROM THE HOSPITAL. THE COPY OF THE ORDER EXTENDING THE PERIOD OF ACTIVE DUTY BEYOND AUGUST 8, 1931, WAS NOT FURNISHED BUT IT IS INDICATED THAT THIS ORDER WAS ISSUED AUGUST 10, 1931, OR TWO DAYS AFTER THE 15 DAYS' TRAINING PERIOD HAD TERMINATED. SECTIONS 10 AND 14 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1083, 1084, PROVIDE:

SEC. 10. OFFICERS AND MEN OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY, AUTHORIZED TRAINING DUTY, WITH OR WITHOUT PAY, DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, DRILL, OR INSTRUCTION, OR DURING SUCH TIME AS THEY MAY BY LAW BE REQUIRED TO PERFORM ACTIVE DUTY IN ACCORDANCE WITH THEIR OBLIGATIONS, OR WHILE WEARING A UNIFORM PRESCRIBED FOR THE NAVAL RESERVE, SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY: * * *

SEC. 14. THAT IF IN TIME OF PEACE ANY OFFICER OR ENLISTED MAN OF THE NAVAL RESERVE IS PHYSICALLY INJURED IN THE LINE OF DUTY WHILE PERFORMING ACTIVE DUTY, AUTHORIZED TRAINING DUTY WITH OR WITHOUT PAY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, OR DIES AS THE RESULT OF SUCH PHYSICAL INJURY, HE OR HIS BENEFICIARY 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 THE 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 INJURED: PROVIDED, THAT IN NO CASE SHALL SICKNESS OR DISEASE BE REGARDED AS AN INJURY WITHIN THE MEANING OF THIS SECTION RELATING TO THE NAVAL RESERVE.

THE MANUAL OF THE MEDICAL DEPARTMENT, UNITED STATES NAVY, 1927, PROVIDES:

3168. ON ACTIVE DUTY; ENTITLED TO MEDICAL TREATMENT.--- MEMBERS OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY BEING SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE REGULAR NAVY AND BEING ENTITLED TO THE SAME PAY AND ALLOWANCES, ARE SUBJECT TO THE 20 CENT DEDUCTION AUTHORIZED BY SECTION 4808, REVISED STATUTES (HOSPITAL TAX), AND ARE ENTITLED TO MEDICAL TREATMENT UNDER THE SAME CONDITIONS AS MEMBERS OF THE REGULAR NAVY. (3 COMP. GEN. 301; 4 COMP. GEN. 783, 4 COMP. GEN. 1005.)

3169. INACTIVE; NOT ENTITLED TO TREATMENT.--- WHILE IN AN INACTIVE STATUS, MEMBERS OF THE NAVAL RESERVE (WITH THE EXCEPTION NEXT NOTED) ARE NOT ENTITLED TO MEDICAL OR HOSPITAL TREATMENT. (4 COMP. GEN. 934.)

3170. ENLISTED MEN, CLASSES F-3, F-4, AND F-5; TREATMENT.--- ENLISTED MEN OF CLASSES F-3, F-4, AND F-5, ON INACTIVE DUTY, ARE ENTITLED TO NAVAL- HOSPITAL TREATMENT AND TO MEDICAL TREATMENT WHENEVER THEY RESIDE IN LOCALITIES WHERE MEDICAL OFFICERS OF THE NAVY ARE ON DUTY. SUCH TREATMENT WILL BE GIVEN UNDER THE SAME LOCAL RULES AS APPLY TO THE TREATMENT OF ENLISTED PERSONNEL OF THE NAVY. (NAVAL RESERVE REGULATIONS, H 1515.) THEY ARE NOT ENTITLED TO TREATMENT BY OTHER THAN NAVAL MEDICAL OFFICERS OR IN OTHER THAN NAVAL HOSPITALS. WHEN ADMITTED TO A NAVAL HOSPITAL, RATION NOTICES WILL BE EXECUTED PROMPTLY AND IN THE SAME MANNER AS FOR RETIRED ENLISTED MEN. THESE NOTICES WILL BE MAILED TO THE BUREAU OF SUPPLIES AND ACCOUNTS (RETAINER PAY DIVISION.) ENLISTED MEN OF CLASSES F-3, F-4, AND F -5 ARE NOT ENTITLED TO RATIONS OR SUBSISTENCE AT THE EXPENSE OF THE GOVERNMENT WHEN IN INACTIVE STATUS. (COMP. GEN. JUNE 19, 1926.)

3171. TREATMENT BY OTHER THAN NAVY FACILITIES, OR BEYOND ACTIVE DUTY PERIOD.--- WHEN MEDICAL OFFICERS AND MEDICAL FACILITIES OF THE NAVY ARE NOT AVAILABLE, TREATMENT MAY BE PROCURED FROM SOURCES OUTSIDE OF THE NAVY EXTENDING ONLY DURING THE PERIOD THE RESERVIST HAS BEEN ORDERED TO CONTINUE ON ACTIVE DUTY. NO EXPENSE FOR HIS CARE AND TREATMENT (FOR DISABILITY OTHER THAN INJURY IN THE LINE OF DUTY) WILL BE PAID BY THE GOVERNMENT AFTER THE EXPIRATION OF THE PERIOD OF ACTIVE DUTY. (COMP. GEN. AUG. 5, 1926, NO. A-14470.) WHEN THE DISABILITY OF A RESERVIST (OTHER THAN INJURY), INCURRED WHILE ON ACTIVE DUTY, NECESSITATES HIS RETENTION IN NAVAL OR OTHER HOSPITAL BEYOND THE PERIOD OF ACTIVE DUTY, THE FACTS WILL BE REPORTED TO THE BUREAU BY DISPATCH.

UNDER THE LAW AND REGULATIONS ABOVE QUOTED MEMBERS OF THE NAVAL RESERVE SUFFERING FROM A DISABILITY OTHER THAN INJURY IN LINE OF DUTY ARE ENTITLED TO TREATMENT AT GOVERNMENT EXPENSE ONLY DURING THE PERIOD THEY ARE ON ACTIVE DUTY.

THE RESERVIST IN THIS CASE WAS ORDERED TO 15 DAYS' TRAINING DUTY WHICH TERMINATED AUGUST 8, 1931. BY ORDERS OF THE COMMANDANT, NINTH NAVAL DISTRICT, DATED AUGUST 10, 1931, THE "ACTIVE DUTY" WAS EXTENDED FOR AN INDEFINITE PERIOD COMMENCING AUGUST 9, 1931, TO COVER SUCH A TIME AS HE WAS BEING TREATED IN A CIVILIAN HOSPITAL FOR A DISABILITY OTHER THAN INJURY INCURRED IN LINE OF DUTY. OBVIOUSLY SUCH A CONTINUATION OF ACTIVE DUTY BEYOND THE PERIOD OF TRAINING DUTY WAS INOPERATIVE AND WITHOUT EFFECT TO ACCOMPLISH A TRANSFER OF EXPENSES FOR MEDICAL TREATMENT AFTER AUGUST 8, 1931, TO THE GOVERNMENT IN DIRECT AND SPECIFIC VIOLATION OF THE LIMITATIONS CONTAINED IN THE STATUTE. THE ACTIVE DUTY CONTEMPLATED IS THE PERFORMANCE OF THE ORDINARY ROUTINE AND USUAL DUTY EXPECTED OF A NAVAL RESERVIST AND AS A CONDITION PRECEDENT TO WHICH HE IS REQUIRED TO PASS A PHYSICAL EXAMINATION SHOWING HIS FITNESS TO PERFORM SUCH DUTIES. THE CONDITION OF VON THOMAS AT THE TIME OF THE ISSUANCE OF ORDERS OF AUGUST 10, 1931, AFTER THE PERIOD OF TRAINING DUTY HAD EXPIRED WAS SUCH AS OBVIOUSLY NEGATIVING THE PERFORMANCE OF THE NORMAL DUTIES OF A NAVAL RESERVIST. SEE MORROW V. UNITED STATES, 65 CT.CLS. 35; A-41319, DATED APRIL 1, 1932, 128 MS. COMP. GEN. 62; A-14470, DATED JUNE 19, 1926, 58 ID. 880; 60 ID. 152. SO MUCH OF THE HOSPITAL BILL AS COVERED A PERIOD SUBSEQUENT TO AUGUST 8, 1931, WAS NOT CHARGEABLE TO THE UNITED STATES AND ITS CERTIFICATION WAS ERRONEOUS. SEE 27 COMP. DEC. 631.

WITHIN THE MEANING OF THE LAW AND REGULATIONS CONCERNING THE TREATMENT OF MEMBERS OF THE NAVAL RESERVE, THE PERIOD OF ACTIVE DUTY OF CARLYSLE VON THOMAS, JR., YEO. 3 CL., (F-1), TERMINATED AUGUST 8, 1931, AND IN VIEW OF THE CIRCUMSTANCES SURROUNDING THE PAYMENT OF THE NURSE'S BILLS BY HIS MOTHER, THERE WILL BE CERTIFIED DUE HER IN A SETTLEMENT TO ISSUE, THE SUM OF $14 REPRESENTING THE EXPENSES INCURRED FOR AUGUST 8, 1931, ONLY. PAYMENT OF THE BALANCE MUST BE AND IS DENIED.