A-31757, MAY 22, 1930, 9 COMP. GEN. 482

A-31757: May 22, 1930

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MEDICAL TREATMENT - NAVY ENLISTED MEN PAYMENT FOR CIVILIAN MEDICAL AND HOSPITAL TREATMENT RENDERED AN ENLISTED MAN OF THE NAVY WHILE ON LEAVE IS NOT AUTHORIZED IN THE ABSENCE OF THE PROCURING OF SUCH SERVICES BY PROPER NAVAL AUTHORITY. REQUESTING DECISION AS TO WHETHER THE PAYMENT OF THESE BILLS IS AUTHORIZED. ARE AS FOLLOWS: HUMANN WAS GRANTED LIBERTY AT SAN FRANCISCO. ON 2 FEBRUARY THE FOLLOWING DESPATCH WAS RECEIVED FROM THE COMMANDANT. BEFORE THE CLINIC WAS REACHED BY TELEPHONE A TELEGRAM WAS RECEIVED STATING THAT HUMANN HAD DIED AT 0708 ON 2 FEBRUARY. IT WAS SUBSEQUENTLY LEARNED THAT AT ABOUT 0230 ON 2 FEBRUARY HUMANN WAS FOUND BY CIVILIANS ON A HIGHWAY NEAR WOODLAND. IN WHICH IT WAS HELD THAT AN ENLISTED MAN OF THE ARMY ABSENT FROM DUTY ON A PASS FOR LESS THAN 24 HOURS IS NOT ON FURLOUGH WITHIN THE MEANING OF EXISTING LAW WITH RESPECT TO MEDICAL TREATMENT OF OFFICERS OR ENLISTED MEN OF THE ARMY ON FURLOUGH.

A-31757, MAY 22, 1930, 9 COMP. GEN. 482

MEDICAL TREATMENT - NAVY ENLISTED MEN PAYMENT FOR CIVILIAN MEDICAL AND HOSPITAL TREATMENT RENDERED AN ENLISTED MAN OF THE NAVY WHILE ON LEAVE IS NOT AUTHORIZED IN THE ABSENCE OF THE PROCURING OF SUCH SERVICES BY PROPER NAVAL AUTHORITY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 22, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 7, 1930, TRANSMITTING BILLS OF DR. L. P. BELL FOR $100, DR. CHARLES F. KEITH FOR $60, WOODLAND CLINIC WOODLAND, CALIFORNIA, FOR $68.55, AND MISS NELLIE ANUNDSON, R.N., FOR $6 COVERING PROFESSIONAL SERVICES AND HOSPITAL TREATMENT RENDERED HERBERT JULIUS HUMANN, MACHINIST'S MATE, SECOND CLASS, UNITED STATES NAVY, AND REQUESTING DECISION AS TO WHETHER THE PAYMENT OF THESE BILLS IS AUTHORIZED. THE FACTS AS STATED BY THE COMMANDING OFFICER OF THE U.S.S. NEW MEXICO, IN HIS LETTER OF MARCH 17, 1930, ARE AS FOLLOWS:

HUMANN WAS GRANTED LIBERTY AT SAN FRANCISCO, CALIFORNIA, ON 1 FEBRUARY 1930, TO EXPIRE AT 0700 ON 3 FEBRUARY. ON 2 FEBRUARY THE FOLLOWING DESPATCH WAS RECEIVED FROM THE COMMANDANT, TWELFTH NAVAL DISTRICT: "1702 FOLLOWING RECEIVED FROM WOODLAND CALIFORNIA QUOTE HERBERT JULIUS HUMANN SERIOUSLY INJURED IN HIT AND RUN ACCIDENT ON HIGHWAY IN COLUSA COUNTY NOW IN WOODLAND CLINIC WOODLAND, CALIFORNIA PLEASE ADVISE LEO P BELL MD UNQUOTE 0320.' THE COMMANDING OFFICER UPON RECEIPT OF THIS DESPATCH REVOKED HUMANN'S LIBERTY AND ORDERED AN OFFICER TO GO ASHORE AND TELEPHONE TO THE WOODLAND CLINIC AUTHORITY FOR CIVILIAN MEDICAL TREATMENT. BEFORE THE CLINIC WAS REACHED BY TELEPHONE A TELEGRAM WAS RECEIVED STATING THAT HUMANN HAD DIED AT 0708 ON 2 FEBRUARY. IT WAS SUBSEQUENTLY LEARNED THAT AT ABOUT 0230 ON 2 FEBRUARY HUMANN WAS FOUND BY CIVILIANS ON A HIGHWAY NEAR WOODLAND, CALIFORNIA, UNCONSCIOUS FROM THE RESULT OF INJURIES RECEIVED APPARENTLY BY BEING STRUCK BY AN AUTOMOBILE. CIVILIANS CONVEYED HIM TO THE WOODLAND CLINIC, WHERE HE DIED WITHOUT REGAINING CONSCIOUSNESS.

REFERRING TO 23 COMP. DEC. 543, IN WHICH IT WAS HELD THAT AN ENLISTED MAN OF THE ARMY ABSENT FROM DUTY ON A PASS FOR LESS THAN 24 HOURS IS NOT ON FURLOUGH WITHIN THE MEANING OF EXISTING LAW WITH RESPECT TO MEDICAL TREATMENT OF OFFICERS OR ENLISTED MEN OF THE ARMY ON FURLOUGH, AND TO 26 COMP. DEC. 408, IN WHICH IT WAS HELD THAT THE PRINCIPLE OF THE ABOVE DECISION WAS APPLICABLE TO ENLISTED MEN OF THE NAVY AND MARINE CORPS, YOU STATE:

IT IS TRUE THAT, AT THE TIME OF HUMANN'S INJURIES AND DEATH AS AFORESAID, HE WAS ON AUTHORIZED LIBERTY IN EXCESS OF 24 HOURS, BUT AT THE SAME TIME ATTENTION IS INVITED TO THE FACT THAT SUCH INJURIES AND DEATH OCCURRED WITHIN A PERIOD OF 24 HOURS FOLLOWING HIS AUTHORIZED GRANT OF LIBERTY. WOULD THEREFORE APPEAR THAT, IN VIEW OF THE UNUSUAL CIRCUMSTANCES IN THIS CASE, IT MIGHT JUSTLY BE TREATED AS ONE COMING WITHIN THE RULE ANNOUNCED IN THE DECISIONS QUOTED ABOVE.

THE BROAD HOLDING OF THE CITED DECISION, 23 COMP. DEC. 543, WAS MODIFIED IN 1 COMP. GEN. 440, IN WHICH, CONSIDERING THE CASE OF TWO ARMY OFFICERS PERMITTED TO BE ABSENT FROM THEIR STATION 63 1/2 HOURS, WHO HAVING LEFT THEIR STATION IN AN AUTOMOBILE AND ABOUT 4 HOURS THEREAFTER AND HAVING TRAVELED ABOUT 80 MILES, WERE INJURED IN AN ACCIDENT, IT WAS STATED:

IN THESE CASES OF CIVILIAN MEDICAL AND HOSPITAL TREATMENT OF ARMY PERSONNEL WHILE VOLUNTARILY AWAY FROM POSTS OF DUTY THE THEORY OF A CONSTRUCTIVE DUTY STATUS WHEN ABSENT ON A "PASS" OF SHORT DURATION IS PREDICATED ON THE AVAILABILITY OF THE MAN AND THE PRESUMPTION THAT HE WOULD RETURN TO HIS POST OF DUTY BEFORE THE EXPIRATION OF HIS PASS SHOULD AN EMERGENCY REQUIRING HIS PRESENCE ARISE. WHEN, THEREFORE, THE PROSPECTIVE DURATION OF THE ABSENCE AND THE DISTANCE FROM THE POST OF DUTY TO THE PLACE OR PLACES ACTUALLY OR IMPLIEDLY AUTHORIZED TO BE VISITED INDICATES THAT NO SERVICE IS EXPECTED AND THAT NONE CAN BE RENDERED, THE THEORY OF A CONSTRUCTIVE DUTY STATUS FALLS. THE PROVISO ATTACHED TO THE APPROPRIATION FOR CIVILIAN MEDICAL TREATMENT IN THE ARMY IS:

"THAT THIS SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH.'

WHEN THE DURATION OF THE ABSENCE AND THE DISTANCE TO WHICH PERMITTED TO GO NEGATIVE THE POSSIBILITY OF THE PERFORMANCE OF DUTY, THE PERMISSION TO BE SO ABSENT IS A FURLOUGH WITHIN ANY ACCEPTED DEFINITION OF THE WORD AND THE PLAIN LANGUAGE OF THE STATUTE MUST APPLY. * * *

IT APPEARS THAT WOODLAND IS ABOUT 86 MILES FROM SAN FRANCISCO; HUMANN MAY NOT, THEREFORE, BE CONSIDERED AS IN A CONSTRUCTIVE DUTY STATUS WHEN INJURED.

IN THE DECISION OF MARCH 15, 1927, A-17403, 67 MS. COMP. GEN. 575, WITH REFERENCE TO THE CASE OF FRANK FALES, AN ENLISTED MAN OF THE NAVY WHO BECAME SERIOUSLY ILL WHILE AT HIS HOME ON A LEAVE OF ABSENCE, IT WAS STATED:

WHILE IT HAS BEEN A RULE LONG FOLLOWED THAT AN ENLISTED MAN OF THE NAVY ON FURLOUGH OR LEAVE OF ABSENCE IS NOT ENTITLED TO PROCURE MEDICAL SERVICE AT THE EXPENSE OF THE UNITED STATES, IT HAS NOT BEEN HELD THAT THE NAVY DEPARTMENT MAY NOT PROCURE SUCH SERVICES FOR HIM IN THE CIRCUMSTANCES HERE SHOWN. THE CASE OF AN ENLISTED MAN IN THE NAVY IS DIFFERENT FROM THAT OF AN OFFICER, AS UNDER SECTION 1586, REVISED STATUTES, EXPENSES OF MEDICINES OR MEDICAL ATTENDANCE MAY NOT BE ALLOWED FOR AN OFFICER WHILE NOT ON DUTY. HIS SITUATION IS ALSO DIFFERENT FROM THAT OF OFFICERS AND ENLISTED MEN OF THE ARMY; THE ANNUAL APPROPRIATION FOR THE MEDICAL DEPARTMENT OF THE ARMY PROHIBITING ITS USE FOR CIVILIAN MEDICAL CARE AND HOSPITAL TREATMENT FOR OFFICERS OR ENLISTED MEN ON FURLOUGH. THERE IS NO SUCH PROHIBITION ON THE USE OF THE NAVAL HOSPITAL FUND FOR THE PROCUREMENT OF MEDICAL SERVICES FOR ENLISTED MEN OF THE NAVY ON FURLOUGH UNDER THE CIRCUMSTANCES STATED.

THE ONLY QUESTION IN THIS CASE THEN IS, WHETHER THERE WAS A PROCURING OF THE SERVICES BY THE NAVY DEPARTMENT FOR FALES. * * *

IN OTHER WORDS, THE GOVERNMENT'S LIABILITY FOR CIVILIAN MEDICAL AND HOSPITAL TREATMENT OF AN ENLISTED MAN OF THE NAVY WHILE ON LEAVE RESTS ON CONTRACT AND NOT ON THE MAN'S NAVAL STATUS. 91 MS. COMP. GEN. 1095, A- 25833, MARCH 25, 1929.

IN THE INSTANT CASE THE SERVICES IN QUESTION HAD BEEN RENDERED AND THE MAN HAD DIED BEFORE HIS COMMANDING OFFICER WAS ADVISED OF THE INJURY AND IT WAS THEREFORE IMPOSSIBLE FOR HIM TO AUTHORIZE THE CIVILIAN MEDICAL TREATMENT AND THUS OBLIGATE THE GOVERNMENT THEREFOR.

PAYMENT OF THE BILLS, WHICH ARE RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.