A-21545, MARCH 15, 1928, 7 COMP. GEN. 570

A-21545: Mar 15, 1928

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PAYMENT OF BURIAL EXPENSES FOR SUCH PERSONS IS NOT AUTHORIZED UNLESS THEY WERE IN RECEIPT OF. THE RECORD DISCLOSES THAT JESSE MCGRADY WAS INDUCTED AUGUST 17. WAS DISCHARGED AT CAMP HUMPHREYS. AS FOLLOWS: THE CIRCUMSTANCES IN THIS CASE ARE SUCH THAT IT IS BELIEVED THAT THE CONTRACTOR IS ENTITLED TO THE FULL AMOUNT CLAIMED IN THIS CASE ALTHOUGH THE BODY WAS BURIED LOCALLY. CLAIMANT WAS ADMITTED TO HOSPITAL SEPTEMBER 18TH UNDER AUTHORITY OF SECTION 202 (10) WORLD WAR VETERANS' ACT BY THE CHARLESTON. AS THERE WAS SOME DOUBT AS TO WHETHER OR NOT HE WAS ENTITLED TO BURIAL AT GOVERNMENT EXPENSE. THE CHARLESTON OFFICE WAS WIRED FOR ADVICE. THE REGIONAL MANAGER REPLIED THAT HE WAS NOT ENTITLED TO BURIAL AT GOVERNMENT EXPENSE.

A-21545, MARCH 15, 1928, 7 COMP. GEN. 570

BURIAL EXPENSES - DISCHARGED DRAFTEES DISCHARGED DRAFTEES WHO NEVER ACTUALLY SERVED IN THE MILITARY OR NAVAL SERVICES DURING ANY WAR MAY NOT BE CONSIDERED AS "VETERANS OF ANY WAR," WITHIN THE PURVIEW OF THAT PHRASE AS IT APPEARS IN SECTION 201 OF THE WORLD WAR VETERANS' ACT AUTHORIZING PAYMENT OF BURIAL EXPENSES, AND PAYMENT OF BURIAL EXPENSES FOR SUCH PERSONS IS NOT AUTHORIZED UNLESS THEY WERE IN RECEIPT OF, OR ENTITLED TO, DISABILITY COMPENSATION OR OTHER BENEFITS UNDER THE STATUTE AUTHORIZING BURIAL EXPENSES AS INCIDENT THERETO AT TIME OF DEATH.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 15, 1928:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF CLARK, BESHEAR AND CLARK, UNDERTAKERS, FOR $122 FOR PREPARATION FOR SHIPMENT AND BURIAL EXPENSES INCIDENT TO THE BURIAL OF JESSE MCGRADY, WHO DIED SEPTEMBER 21, 1927, IN UNITED STATES VETERANS' BUREAU HOSPITAL AT OUTWOOD, KY. THE CLAIM HAS BEEN ADMINISTRATIVELY APPROVED BY THE VETERANS' BUREAU.

THE RECORD DISCLOSES THAT JESSE MCGRADY WAS INDUCTED AUGUST 17, 1918, BY THE LOCAL DRAFT BOARD OF TAZEWELL COUNTY, VA., AND WAS DISCHARGED AT CAMP HUMPHREYS, VA., AUGUST 20, 1918, BECAUSE OF PHYSICAL DISABILITY, WITHOUT EVER HAVING BEEN ACCEPTED FOR MILITARY SERVICE.

THE BUSINESS MANAGER OF THE HOSPITAL STATES IN HIS REPORT OF OCTOBER 13, 1927, AS FOLLOWS:

THE CIRCUMSTANCES IN THIS CASE ARE SUCH THAT IT IS BELIEVED THAT THE CONTRACTOR IS ENTITLED TO THE FULL AMOUNT CLAIMED IN THIS CASE ALTHOUGH THE BODY WAS BURIED LOCALLY. CLAIMANT WAS ADMITTED TO HOSPITAL SEPTEMBER 18TH UNDER AUTHORITY OF SECTION 202 (10) WORLD WAR VETERANS' ACT BY THE CHARLESTON, W.VA., REGIONAL OFFICE AND DIED THREE DAYS LATER. THE RECORDS SHOW THAT HE HAD ONLY THREE DAYS' SERVICE IN THE ARMY, AND AS THERE WAS SOME DOUBT AS TO WHETHER OR NOT HE WAS ENTITLED TO BURIAL AT GOVERNMENT EXPENSE, THE CHARLESTON OFFICE WAS WIRED FOR ADVICE. THE REGIONAL MANAGER REPLIED THAT HE WAS NOT ENTITLED TO BURIAL AT GOVERNMENT EXPENSE, CITING DIGEST OF LEGAL OPINIONS FOR NOVEMBER, 1926. CENTRAL OFFICE WAS THEN WIRED FOR ADVICE AS TO DISPOSITION OF BODY, AND REPLIED THAT CLAIMANT WAS ENTITLED TO BURIAL IN ACCORDANCE WITH REGULATION 151, SECTION 8104. THE MEANTIME THE BODY HAD BEEN EMBALMED AS IT COULD NOT BE HELD FOR ANY LENGTH OF TIME WITHOUT THIS SERVICE BEING PERFORMED. UPON RECEIPT OF ADVICE FROM CENTRAL OFFICE, THE BODY WAS FULLY PREPARED FOR SHIPMENT AND BURIAL IN THE NATIONAL CEMETERY, LOUISVILLE, KENTUCKY, SINCE THERE WERE NO RELATIVES OR FRIENDS TO CLAIM THE BODY, AND THE SUPERINTENDENT OF THE CEMETERY WAS CONTRACTED BY TELEPHONE WITH REGARD TO BURIAL OF THE DECEASED. HE ADVISED THAT HE COULD NOT ACCEPT THE BODY FOR BURIAL AS DISCHARGE WAS FROM DRAFT AND NOT FROM THE ARMY. CONSEQUENTLY, THERE WAS NOTHING TO DO BUT TO BURY BODY LOCALLY.

THE CONTRACTOR PERFORMED ALL THE SERVICES REQUIRED IN PREPARING A BODY FOR SHIPMENT, WITH THE EXCEPTION OF TRANSPORTATION OF BODY FROM HIS UNDERTAKING ESTABLISHMENT TO COMMON CARRIER. HOWEVER, HE CLAIMS TO HAVE BEEN PUT TO CONSIDERABLE ADDITIONAL EXPENSE ON ACCOUNT OF HAVING PREPARED THE BODY FOR SHIPMENT AND THEN BURIED SAME LOCALLY. ALSO BODY WAS HELD FOR FOUR DAYS IN HIS ESTABLISHMENT BEFORE MAKING FINAL DISPOSITION OF SAME.

ALTHOUGH LOCAL BURIAL CONTRACT DOES NOT PROVIDE FOR A CHARGE OF $122.00, THE CONTRACTOR FURNISHED SERVICES IN THIS AMOUNT UPON AUTHORITY FROM THIS HOSPITAL ON ACCOUNT OF THE CIRCUMSTANCES STATED ABOVE AND IS ENTITLED TO PAYMENT IN FULL.

SECTION 202 (10) OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 796, AUTHORIZES THE HOSPITALIZATION OF HONORABLY DISCHARGED VETERANS OF CERTAIN SPECIFIED WARS, INCLUDING THE WORLD WAR, SUFFERING FROM SPECIFIED DISEASES, INCLUDING TUBERCULOSIS, AND ALSO IN THE SECOND PART OF THE SUBSECTION AUTHORIZES HOSPITALIZATION OF "VETERANS OF ANY WAR" WITHOUT REGARD TO THE NATURE OR ORIGIN OF THEIR DISEASE. SUCH VETERANS MAY BE GIVEN HOSPITALIZATION UNDER THIS SECTION ALTHOUGH NOT ENTITLED TO OR IN RECEIPT OF DISABILITY COMPENSATION OR ANY OTHER BENEFIT UNDER THE STATUTE. SECTION 201 (1) OF SAID ACT, 44 STAT. 794, AUTHORIZES PAYMENT OF BURIAL EXPENSES OF "VETERANS OF ANY WAR" UNDER CERTAIN PRESCRIBED CONDITIONS, INCLUDING THE FOLLOWING:

* * * PROVIDED FURTHER, THAT WHERE SUCH PERSON, WHILE RECEIVING FROM THE BUREAU MEDICAL, SURGICAL, OR HOSPITAL TREATMENT, OR VOCATIONAL TRAINING, DIES AWAY FROM HOME AND AT THE PLACE TO WHICH HE WAS ORDERED BY THE BUREAU, OR WHILE TRAVELING UNDER ORDERS OF THE BUREAU, THE ABOVE BENEFITS SHALL BE PAYABLE IN ALL CASES AND IN ADDITION THERETO THE ACTUAL AND NECESSARY COST OF THE TRANSPORTATION OF THE BODY OF THE PERSON (INCLUDING PREPARATION OF THE BODY) TO THE PLACE OF BURIAL, WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, ITS TERRITORIES, OR POSSESSIONS, AND INCLUDING ALSO, IN THE DISCRETION OF THE DIRECTOR, THE ACTUAL AND NECESSARY COST OF TRANSPORTATION OF AN ATTENDANT: * * *.

THE PRIMARY QUESTION PRESENTED IN THIS CASE IS WHETHER THE DECEDENT WAS A VETERAN OF THE WORLD WAR, OR A "VETERAN OF ANY WAR," WITHIN THE PURVIEW OF THE SECTION OF THE STATUTE AUTHORIZING FURNISHING OF MEDICAL TREATMENT IN A GOVERNMENT HOSPITAL AND BURIAL EXPENSES AT THE EXPENSE OF THE GOVERNMENT.

SECTION 24 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 614, PROVIDES AS FOLLOWS:

THAT IF AFTER INDUCTION BY THE LOCAL DRAFT BOARD, OR AFTER BEING CALLED INTO FEDERAL SERVICE AS A MEMBER OF THE NATIONAL GUARD, BUT BEFORE BEING ACCEPTED AND ENROLLED FOR ACTIVE SERVICE, THE PERSON DIED OR BECAME DISABLED AS A RESULT OF DISEASE CONTRACTED OR INJURY SUFFERED IN THE LINE OF DUTY AND NOT DUE TO HIS OWN WILFUL MISCONDUCT INVOLVING MORAL TURPITUDE, OR AS A RESULT OF THE AGGRAVATION, IN THE LINE OF DUTY AND NOT BECAUSE OF HIS OWN WILFUL MISCONDUCT INVOLVING MORAL TURPITUDE, OF AN EXISTING DISEASE OR INJURY, HE OR THOSE ENTITLED THERETO SHALL RECEIVE THE BENEFITS OF COMPENSATION PAYMENT UNDER TITLE II; AND ANY INSURANCE APPLICATION MADE BY SUCH PERSON AFTER INDUCTION BY THE LOCAL DRAFT BOARD BUT BEFORE BEING ACCEPTED AND ENROLLED FOR ACTIVE SERVICE SHALL BE DEEMED VALID.

SEE ALSO SECTION 25 GRANTING THE SAME RIGHTS OF DISABILITY COMPENSATION AND INSURANCE TO PERSONS WHO APPLIED FOR AND WERE PROVISIONALLY ACCEPTED FOR ENLISTMENT OR ENROLLMENT BETWEEN APRIL 16, 1917, AND NOVEMBER 11, 1918, BUT FINALLY REJECTED FOR SERVICE.

WHILE UNDER THESE PROVISIONS OF LAW REJECTED DRAFTEES AND OTHERS IN A SIMILAR STATUS AS SPECIFIED IN THE TWO SECTIONS ARE ENTITLED TO DISABILITY COMPENSATION IF THE DISEASE OR DISABILITY FOR WHICH COMPENSATION IS PAYABLE IS DETERMINED TO BE A RESULT OF THE SHORT PERIOD OF TIME SPENT AT THE CAMP, POST, ETC., BETWEEN THE DATE OF INDUCTION OR PROVISIONAL ENLISTMENT OR ENROLLMENT AND THE DATE OF FINAL REJECTION FROM THE DRAFT OR FOR SERVICE (2 COMP. GEN. 409; 3 ID. 229; DECISION OF AUGUST 1, 1927, A- 19122), THERE IS NOTHING IN THESE SECTIONS OF THE STATUTE REASONABLY TO JUSTIFY THE CONSTRUCTION THAT REJECTED DRAFTEES OR OTHERS IN A SIMILAR STATUS ARE TO BE CONSIDERED AS "VETERANS OF ANY WAR" WITHIN THE PURVIEW OF THE PROVISIONS OF THE LAW AUTHORIZING THE FURNISHING OF HOSPITALIZATION AND BURIAL EXPENSES BY THE GOVERNMENT, IF SUCH PERSONS WERE NOT ACTUALLY IN RECEIPT OF OR ENTITLED TO DISABILITY COMPENSATION OR OTHER BENEFITS UNDER THE STATUTE. INDEED, IT WOULD SEEM TO BE A MOST UNREASONABLE CONSTRUCTION TO HOLD THAT THE PHRASE ,VETERANS OF ANY WAR" COULD BE SO FAR ENLARGED AS TO INCLUDE A PERSON WHO WAS INDUCTED AS A DRAFTEE AND DISCHARGED THEREFROM TWO DAYS LATER FOR PHYSICAL DISABILITY WITHOUT EVER HAVING BEEN ACCEPTED FOR MILITARY SERVICE. IT WILL BE NOTED THAT THE SUPERINTENDENT OF THE NATIONAL CEMETERY, TO WHICH IT WAS PROPOSED TO SEND THE BODY IN THIS CASE, REFUSED TO ACCEPT THE BODY FOR THE REASON THAT HE WAS DISCHARGED FROM THE DRAFT AND NOT FROM THE ARMY. THERE WOULD APPEAR TO BE NO SOUND REASON WHY THE SAME ACTION SHOULD NOT BE TAKEN BY THE VETERANS' BUREAU IN DETERMINING WHETHER PERSONS ARE ACCEPTABLE FOR HOSPITALIZATION UNDER SECTION 202 (10) AND IN DETERMINING WHETHER PAYMENT OF BURIAL EXPENSES AT THE EXPENSE OF THE GOVERNMENT IS AUTHORIZED.

WITH THE RECORD THERE APPEARS AN OPINION OF THE ACTING GENERAL COUNSEL OF THE VETERANS' BUREAU WHEREIN IT IS STATED:

A MAN INDUCTED DURING THE WORLD WAR, WHO WAS DISCHARGED BEFORE BEING ACCEPTED FOR SERVICE WITH THE MILITARY FORCES OF THE UNITED STATES, HAS ALWAYS BEEN CONSIDERED A VETERAN WITHIN THE MEANING OF SECTION 201 (1) AS CONSTRUED BY THE COMPTROLLER GENERAL JUNE 11, 1923, HOLDING THAT ANY MAN WHO SERVED WITH THE FEDERAL FORCES DURING THE WORLD WAR WAS WITHIN THE MEANING OF THAT TERM. * *

THE DECISION TO WHICH REFERENCE IS MADE, 2 COMP. GEN. 791, DEFINED IN A GENERAL WAY THE MEANING OF THE PHRASE "VETERANS OF ANY WAR" BUT DID NOT CONSIDER PERSONS HAVING THE STATUS OF A REJECTED DRAFTEE OR OTHER PERSONS IN A SIMILAR STATUS MENTIONED IN SECTIONS 24 AND 25 OF THE STATUTE, AND THERE IS NOTHING IN THE DECISION WHICH REASONABLY MAY BE INTERPRETED AS INCLUDING PERSONS OF THIS CLASS WITHIN THE PURVIEW OF THE TERM "VETERANS OF ANY WAR.' SEE IN THIS CONNECTION 6 COMP. GEN. 327.

IT IS HELD, THEREFORE, THAT DISCHARGED DRAFTEES AND OTHERS IN A SIMILAR STATUS WHO NEVER ACTUALLY SERVED IN THE MILITARY OR NAVAL FORCES DURING ANY WAR MAY NOT BE CONSIDERED AS "VETERANS OF ANY WAR" WITHIN THE PURVIEW OF THE PROVISIONS OF THE STATUTE AUTHORIZING PAYMENT OF BURIAL EXPENSES, AND THE PAYMENT OF BURIAL EXPENSES FOR SUCH PERSONS IS NOT AUTHORIZED IF THEY ARE NOT IN RECEIPT OF OR ENTITLED TO DISABILITY COMPENSATION OR OTHER BENEFITS UNDER THE STATUTE AUTHORIZING BURIAL EXPENSES AS INCIDENT THERETO AT TIME OF DEATH.

THE PRESENT CLAIM WILL BE ALLOWED IN THE AMOUNT OF $100, THE MAXIMUM AUTHORIZED FOR A LOCAL BURIAL BY THE CONTROLLING STATUTE AND THE CONTRACT BETWEEN THE CLAIMANT AND THE GOVERNMENT, FOR THE REASON THAT THE SERVICES WERE FURNISHED BY THE CONTRACTOR IN GOOD FAITH UNDER EXPRESS AUTHORITY OF THE BUREAU TO A PERSON WHO WAS RECEIVING FROM THE BUREAU MEDICAL, SURGICAL, OR HOSPITAL TREATMENT.

CLAIMS HEREAFTER ARISING SHOULD BE ADJUDICATED IN ACCORDANCE WITH THIS DECISION.