A-23965, SEPTEMBER 13, 1928, 8 COMP. GEN. 112

A-23965: Sep 13, 1928

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

OR OTHER DISTURBANCES IN WHICH ARMED FORCES OF THE UNITED STATES HAVE BEEN CALLED TO DUTY OCCURRING AFTER THE TERMINATION OF THE WORLD WAR. BURIAL EXPENSES UNDER THE STATUTE ARE PAYABLE IF THE VETERAN WAS RECEIVING DISABILITY COMPENSATION OR VOCATIONAL TRAINING BY REASON OF SERVICE FROM WHICH HONORABLY DISCHARGED. OR IF THE LAST DISCHARGE FROM WAR SERVICE WAS HONORABLE. BURIAL EXPENSES ARE NOT PAYABLE IF THE VETERAN WAS NOT RECEIVING DISABILITY COMPENSATION OR VOCATIONAL TRAINING AND THE LAST DISCHARGE FROM WAR SERVICE WAS DISHONORABLE. THE SAME RULE IS APPLICABLE WHERE THE VETERAN DIES WHILE RECEIVING HOSPITAL TREATMENT UNDER SECTION 202 (10) OF THE WORLD WAR VETERANS' ACT. BURIAL EXPENSES ARE NOT PAYABLE IN THE CASE OF A MAN WHO HAD NO SERVICE IN ANY WAR BUT DIES RECEIVING HOSPITAL TREATMENT BY VIRTUE OF AN ACCRUED RIGHT UNDER SECTION 13 OF THE ACT OF AUGUST 9.

A-23965, SEPTEMBER 13, 1928, 8 COMP. GEN. 112

BURIAL EXPENSES - VETERANS OF ANY WAR THE TERM "VETERANS OF ANY WAR" APPEARING IN SECTION 201 (1) OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 966, AUTHORIZING REIMBURSEMENT FOR BURIAL EXPENSES, MAY BE BROADENED BY PHRASEOLOGY TO INCLUDE VETERANS ACTUALLY PARTICIPATING IN MILITARY OCCUPATIONS, EXPEDITIONS, CAMPAIGNS, OR OTHER DISTURBANCES IN WHICH ARMED FORCES OF THE UNITED STATES HAVE BEEN CALLED TO DUTY OCCURRING AFTER THE TERMINATION OF THE WORLD WAR. WHERE A VETERAN HAS AN HONORABLE DISCHARGE FROM ONE PERIOD OF WAR SERVICE, AND A DISHONORABLE DISCHARGE FROM ANOTHER PERIOD OF WAR SERVICE, BURIAL EXPENSES UNDER THE STATUTE ARE PAYABLE IF THE VETERAN WAS RECEIVING DISABILITY COMPENSATION OR VOCATIONAL TRAINING BY REASON OF SERVICE FROM WHICH HONORABLY DISCHARGED, OR IF THE LAST DISCHARGE FROM WAR SERVICE WAS HONORABLE; BUT BURIAL EXPENSES ARE NOT PAYABLE IF THE VETERAN WAS NOT RECEIVING DISABILITY COMPENSATION OR VOCATIONAL TRAINING AND THE LAST DISCHARGE FROM WAR SERVICE WAS DISHONORABLE. THE SAME RULE IS APPLICABLE WHERE THE VETERAN DIES WHILE RECEIVING HOSPITAL TREATMENT UNDER SECTION 202 (10) OF THE WORLD WAR VETERANS' ACT, AS AMENDED. BURIAL EXPENSES ARE NOT PAYABLE IN THE CASE OF A MAN WHO HAD NO SERVICE IN ANY WAR BUT DIES RECEIVING HOSPITAL TREATMENT BY VIRTUE OF AN ACCRUED RIGHT UNDER SECTION 13 OF THE ACT OF AUGUST 9, 1921, 42 STAT. 152, EXCEPT AS A SANITARY MEASURE IF THE BODY SHOULD NOT BE CLAIMED AND THE DECEDENT HAS NO AVAILABLE FUNDS AGAINST WHICH CLAIM MAY BE MADE FOR BURIAL.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, SEPTEMBER 13, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 31, 1928, REQUESTING DECISION OF SEVERAL QUESTIONS UNDER, AND REQUESTING CONSIDERATION AND APPROVAL OF PROPOSED REGULATIONS PURSUANT TO, SECTION 201 (1) OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF MAY 29,1928, 45 STAT. 966, RELATIVE TO REIMBURSEMENT FOR BURIAL EXPENSES OF VETERANS OF ANY WAR.

THE QUESTIONS MAY BE STATED AS FOLLOWS:

1. WHETHER THE DEFINITION OF THE TERM "VETERAN OF ANY WAR" MAY BE BROADENED BY PHRASEOLOGY TO INCLUDE VETERANS OF MILITARY OCCUPATIONS, EXPEDITIONS, CAMPAIGNS, OR OTHER DISTURBANCES IN WHICH ARMED FORCES OF THE UNITED STATES HAVE BEEN CALLED TO DUTY, NOT INCLUDED AMONG THOSE SPECIFICALLY NAMED IN PRIOR DECISIONS OF THIS OFFICE AND INCLUDED IN THE FIRST PART OF THE DEFINITION APPEARING IN SECTION 8101 OF THE PROPOSED REGULATIONS, SUCH AS THE PRESENT ACTIVITIES IN NICARAGUA OR OTHER MILITARY ENTERPRISES OR EXPEDITIONS IN WHICH THE MILITARY OR NAVAL FORCES HEREAFTER MAY BE ENGAGED.

2. WHETHER PAYMENT OF BURIAL EXPENSES IS PERMISSIBLE IN THE FOLLOWING CASES (QUOTING FROM YOUR SUBMISSION):

(A) WHERE THE VETERAN HAS AN HONORABLE DISCHARGE FROM ONE PERIOD OF WAR SERVICE, AND A DISHONORABLE DISCHARGE FROM ANOTHER PERIOD OF WAR SERVICE.

(B) WHERE THE MAN HAS AN HONORABLE DISCHARGE FROM ONE PERIOD OF WAR SERVICE, AND A DISHONORABLE DISCHARGE FROM ANOTHER PERIOD OF WAR SERVICE, AND DIES WHILE RECEIVING HOSPITAL TREATMENT UNDER SECTION 202, SUBDIVISION (10), OF THE WORLD WAR VETERANS' ACT, AS AMENDED.

3. (QUOTING FROM YOUR SUBMISSION:)

* * * WHETHER THE BUREAU IS AUTHORIZED AS AN ADMINISTRATIVE MEASURE TO DEFRAY THE COST OF BURIAL IN A CASE WHERE THE MAN HAD NO SERVICE IN ANY WAR, BUT DIES WHILE RECEIVING HOSPITAL TREATMENT BY VIRTUE OF AN ACCRUED RIGHT UNDER SECTION 13 OF THE ACT OF AUGUST 9, 1921.

THE REMAINDER OF YOUR SUBMISSION CONSISTS OF COMMENTS ON THE VARIOUS PROVISIONS OF THE PROPOSED REGULATION.

THE QUESTIONS WILL BE CONSIDERED AND ANSWERED IN THE ORDER STATED.

1. THE TERM "VETERAN OF ANY WAR" WAS FIRST GENERALLY DEFINED IN DECISION OF THIS OFFICE DATED JUNE 11, 1923, 2 COMP. GEN. 791, WHEREIN IT WAS HELD THAT THE TERM MIGHT INCLUDE (QUOTING FROM THE SYLLABUS):

* * * PERSONS WHO SERVED IN ANY OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES DURING THE MEXICAN WAR, THE CIVIL WAR, THE SPANISH AMERICAN WAR, OR THE WORLD WAR, OR WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACTUALLY PARTICIPATING IN THE BOXER EXPEDITION, CUBAN PACIFICATION, NICARAGUAN CAMPAIGN, VERA CRUZ EXPEDITION, OR THE PUNITIVE EXPEDITION INTO MEXICO.

A DISTINCTION WAS DRAWN BETWEEN THOSE WHO SERVED DURING A PERIOD OF GENERAL WARFARE AND THOSE WHO SERVED DURING A PERIOD OF LIMITED WARFARE. THE FORMER INCLUDED ALL PERSONS WHO SERVED IN ANY OF THE MILITARY OR NAVAL FORCES WHETHER OR NOT PARTICIPATING IN THE ACTUAL CONFLICT, WHILE THE LATTER INCLUDED ONLY THOSE WHO WERE MEMBERS OF THE FORCES ACTUALLY PARTICIPATING IN THE LIMITED WARFARE. IT IS ONLY ON THIS BASIS THAT THE ADDITION TO THE DEFINITION PROPOSED MAY BE ACCEPTED. THE TERM AS DEFINED IN SAID DECISION WAS OBVIOUSLY LIMITED TO THE END OF THE WORLD WAR FOR THE REASON THAT THERE HAD BEEN NO PERIODS OF GENERAL OR LIMITED WARFARE SUBSEQUENT THERETO. BUT THE AUTHORITY IN THE STATUTE TO REIMBURSE FOR BURIAL EXPENSES OF A "VETERAN OF ANY WAR" UNDER THE CONDITIONS THEREIN PRESCRIBED, IS NOT LIMITED TO THE PERIOD OF THE WORLD WAR, EITHER PRIOR OR SUBSEQUENT THERETO. ACCORDINGLY, IT IS PROPER TO SO WORD THE DEFINITION OF THE TERM "VETERAN OF ANY WAR" IN THE REGULATIONS AS TO INCLUDE PERSONS WHO SERVED IN PERIODS OF LIMITED WARFARE SUBSEQUENT TO THE EXPIRATION OF THE WORLD WAR, SUCH AS THE PRESENT ACTIVITIES IN NICARAGUA OR OTHER MILITARY ENTERPRISES OR EXPEDITIONS IN WHICH THE MILITARY OR NAVAL FORCES MAY HEREAFTER BE ENGAGED. ACCORDINGLY, THE PROPOSED PHRASEOLOGY IS PROPER. SEE, HOWEVER, 4 COMP. GEN. 995, 6 ID. 327, ID. 495, 7 ID. 570.

2. SECTION 201 (1) OF THE STATUTE, AS AMENDED, FIXES AS A CONDITION PRECEDENT FOR REIMBURSEMENT OF BURIAL EXPENSES OF A "VETERAN OF ANY WAR" THAT HE "WAS NOT DISHONORABLY DISCHARGED.' THE STATUTE DOES NOT EXPRESSLY COVER A SITUATION WHERE THERE HAS BEEN TWO DISCHARGES FROM WAR SERVICE, ONE HONORABLE AND THE OTHER DISHONORABLE, SO THAT IT BECOMES NECESSARY TO REFER TO OTHER PORTIONS OF THE STATUTE AND ANALOGOUS SITUATIONS TO DETERMINE THE APPARENT INTENT IN THIS CONNECTION. SECTION 23 OF THE STATUTE, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1303, 1304, PROVIDES:

* * * PROVIDED FURTHER, THAT DISCHARGE OR DISMISSAL OR FINDING OF GUILT FOR ANY OF THE OFFENSES SPECIFIED IN THIS SECTION SHALL NOT AFFECT THE PAYMENT OF COMPENSATION OR MAINTENANCE AND SUPPORT ALLOWANCE FOR DISABILITIES INCURRED IN OR AGGRAVATED BY SERVICE IN ANY PRIOR OR SUBSEQUENT ENLISTMENT: * * *.

SECTION 201 (1) OF THE STATUTE, AS AMENDED BY THE ACT OF MAY 29, 1928, SUPRA, AUTHORIZING PAYMENT OF BURIAL EXPENSES OF "VETERAN OF ANY WAR," PROVIDES:

* * * PROVIDED, THAT WHEN SUCH PERSON DIES WHILE RECEIVING FROM THE BUREAU COMPENSATION OR VOCATIONAL TRAINING THE ABOVE BENEFITS SHALL BE PAYABLE IN ALL CASES; * * *.

THEREFORE, IF A PERSON WHO HAS BEEN BOTH HONORABLY AND DISHONORABLY DISCHARGED FROM TWO SEPARATE WAR ENLISTMENTS IS RECEIVING COMPENSATION OR VOCATIONAL TRAINING ON THE BASIS OF DISABILITY INCURRED OR AGGRAVATED BY WAR SERVICE IN THE ENLISTMENT FROM WHICH HONORABLY DISCHARGED, REIMBURSEMENT OF BURIAL EXPENSES AND TRANSPORTATION OF THE BODY WOULD BE AUTHORIZED.

IT APPEARS ALSO THAT WHERE A PERSON IS DISHONORABLY DISCHARGED AND IS PERMITTED TO REENLIST, THE ACTION OF THE MILITARY OR NAVAL AUTHORITIES IN PERMITTING THE REENLISTMENT IS IN A MEASURE A CONDONING OF THE OFFENSE FOR WHICH THE DISHONORABLE DISCHARGE WAS MADE. IT HAS BEEN HELD THAT THE MAN DOES NOT LOSE ALL RIGHTS ATTACHING TO THE FORMER ENLISTMENT PERIOD FROM WHICH DISHONORABLY DISCHARGED IF THE PRIOR ENLISTMENT WAS NOT FRAUDULENT IN ITS INCEPTION. SEE 2 COMP. GEN. 165, 3 ID. 61. SEE ALSO 4 COMP. GEN. 171. ACCORDINGLY IT WOULD APPEAR REASONABLE TO CONSTRUE THE PRESENT STATUTE AS AUTHORIZING REIMBURSEMENT FOR BURIAL EXPENSES WHERE THE LAST DISCHARGE FROM A WAR SERVICE ENLISTMENT WAS HONORABLE NOTWITHSTANDING THAT THE VETERAN PREVIOUSLY HAD BEEN DISHONORABLY DISCHARGED FROM A WAR SERVICE ENLISTMENT. BUT WHERE THE LAST DISCHARGE FROM A WAR SERVICE ENLISTMENT WAS DISHONORABLE AND THERE IS NOTHING OF RECORD TO INDICATE ANY ADMINISTRATIVE ACTION CONDONING THE OFFENSE FOR WHICH THE DISHONORABLE DISCHARGE WAS MADE, AND THE VETERAN IS NOT RECEIVING ANY BENEFITS UNDER THE WORLD WAR VETERANS' ACT ON THE BASIS OF HIS PRIOR ENLISTMENT, REIMBURSEMENT FOR BURIAL EXPENSES IS NOT AUTHORIZED. QUESTION (A) UNDER QUESTION 2 IS ANSWERED ACCORDINGLY. ALSO, AS MEDICAL AND HOSPITAL TREATMENT FURNISHED UNDER SECTION 202 (10) OF THE STATUTE, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 796, IS AUTHORIZED ONLY FOR "HONORABLY DISCHARGED" VETERANS OF THE SPECIFIED WARS SUFFERING FROM THE SPECIFIED DISEASES, OR FOR "VETERANS OF ANY WAR * * * NOT DISHONORABLY DISCHARGED," THE SAME ANSWER APPLIES TO (B) UNDER QUESTION 2.

3. IT IS NOT APPARENT HOW SUCH A CASE AS PRESENTED IN THIS QUESTION COULD NOW ARISE. IT IS ASSUMED THE QUESTION DOES NOT RELATE TO DRAFTEES WHO WERE THE MATTER OF A DECISION RECENTLY AS TO BURIAL EXPENSES AND HOSPITALIZATION. SECTION 13 OF THE ACT OF AUGUST 9, 1921, 42 STAT. 152, AUTHORIZED MEDICAL AND HOSPITAL TREATMENT UNDER CERTAIN CONDITIONS FOR DISEASE OR DISABILITY INCURRED OR AGGRAVATED "WHILE IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER APRIL 6, 1917.' THIS HAS NOW BEEN SUPERSEDED BY SECTION 202 (9) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 620, AND AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1307, WHICH LIMITS THE PRIVILEGES OF THE SECTION TO THOSE WHOSE INJURIES OR DISEASES WERE INCURRED OR AGGRAVATED "WHILE IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER APRIL 6, 1917, AND BEFORE JULY 2, 1921.' THEREFORE IT WOULD APPEAR THAT ANY SUCH PERSON WOULD HAVE HAD WAR SERVICE. BUT IF IT HAS BEEN CONSTRUED THAT BY REASON OF SECTION 602 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 630, THAT A PERSON WHO HAD NO WORLD WAR SERVICE AND WAS DISCHARGED FROM THE MILITARY OR NAVAL FORCES AFTER JULY 2, 1921, STILL HAS AN ACCRUED RIGHT TO SUCH MEDICAL OR HOSPITAL TREATMENT, THERE WOULD BE FOR CONSIDERATION IN CONNECTION WITH SUCH CASES THE PROVISO IN SECTION 202 (1) OF THE ACT, WHICH IS AS FOLLOWS:

* * * 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 * * *.

THE WORDS "SUCH PERSON" REFER TO "VETERAN OF ANY WAR.' ACCORDINGLY, IF SUCH IS THE SITUATION, REIMBURSEMENT OF BURIAL EXPENSES WOULD NOT BE AUTHORIZED FOR THE REASON THAT THE DECEASED WOULD NOT HAVE BEEN A "VETERAN OF ANY WAR.' OF COURSE, THE BURIAL WOULD BE AUTHORIZED AT GOVERNMENT EXPENSE AS A SANITARY MEASURE IF THE BODY SHOULD NOT BE CLAIMED AND THE DECEDENT HAD NO AVAILABLE FUNDS AGAINST WHICH CLAIM MAY BE MADE FOR BURIAL. IF THIS OFFICE HAS NOT PROPERLY UNDERSTOOD THIS QUESTION, FURTHER CONSIDERATION WILL BE GIVEN THERETO UPON YOUR FURTHER SUBMISSION IN THE MATTER.

THE PROVISIONS OF THE PROPOSED REGULATIONS APPEAR TO BE WITHIN THE PURVIEW OF THE STATUTE AND THE DISCRETION THEREIN GRANTED TO THE DIRECTOR OF THE VETERANS' BUREAU.