A-32295, JULY 28, 1930, 10 COMP. GEN. 40

A-32295: Jul 28, 1930

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MEDICAL AND HOSPITAL TREATMENT - NAVAL OFFICERS WHETHER AN OFFICER OF THE NAVY IS "ON DUTY" WITHIN THE MEANING OF SECTION 1586. IS A QUESTION OF FACT AND MAY NOT BE DETERMINED SOLELY BY THE FACT THAT THE OFFICER HAS BEEN GIVEN ORAL PERMISSION TO LEAVE HIS SHIP OR STATION FOR A PERIOD OF 24 HOURS OR LESS. PROVIDED THE FACILITIES OF THE MEDICAL DEPARTMENT OF THE NAVY ARE NOT AVAILABLE. THE QUESTION WHICH YOU PRESENT IS STATED TO HAVE ARISEN BECAUSE OF A CONFLICT BETWEEN A CONCLUSION OF THE SECRETARY OF THE NAVY OF AUGUST 27. DEC. 383 IS STATED AS FOLLOWS: ENLISTED MEN ON LIBERTY GRANTED FOR A PERIOD OF 24 HOURS. OFFICERS WHO HAVE BEEN GIVEN PERMISSION TO LEAVE THEIR SHIP OR STATION FOR 24 HOURS OR LESS.

A-32295, JULY 28, 1930, 10 COMP. GEN. 40

MEDICAL AND HOSPITAL TREATMENT - NAVAL OFFICERS WHETHER AN OFFICER OF THE NAVY IS "ON DUTY" WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES, IS A QUESTION OF FACT AND MAY NOT BE DETERMINED SOLELY BY THE FACT THAT THE OFFICER HAS BEEN GIVEN ORAL PERMISSION TO LEAVE HIS SHIP OR STATION FOR A PERIOD OF 24 HOURS OR LESS; AND A CONSTRUCTIVE-DUTY STATUS DOES NOT EXIST WHEN THE PROSPECTIVE DURATION OF THE ABSENCE OR THE DISTANCE FROM THE POST OF DUTY TO THE PLACE VISITED NEGATIVES THE POSSIBILITY OF THE PERFORMANCE OF DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 28, 1930:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER UNDER SECTION 1586, REVISED STATUTES (U.S.C., TITLE 34, SEC. 921), AN OFFICER OF THE NAVY OR MARINE CORPS WHO HAS BEEN GIVEN PERMISSION TO LEAVE HIS SHIP OR STATION FOR A PERIOD OF 24 HOURS OR LESS MAY BE CONSIDERED IN A DUTY STATUS AND THEREFORE ENTITLED IN CASE OF NEED TO NECESSARY CIVILIAN MEDICAL AND HOSPITAL TREATMENT AT GOVERNMENT EXPENSE, PROVIDED THE FACILITIES OF THE MEDICAL DEPARTMENT OF THE NAVY ARE NOT AVAILABLE.

THE QUESTION WHICH YOU PRESENT IS STATED TO HAVE ARISEN BECAUSE OF A CONFLICT BETWEEN A CONCLUSION OF THE SECRETARY OF THE NAVY OF AUGUST 27, 1925, AS PUBLISHED ON PAGE 167 OF THE LAWS RELATING TO THE NAVY, ANNOTATED SUPPLEMENT 1929, AND BUREAU OF MEDICINE AND SURGERY CIRCULAR LETTER, DATED JANUARY 15, 1930.

THE CONCLUSION OF THE SECRETARY OF THE NAVY DATED AUGUST 27, 1925, FILE 9438-212, STATED AS APPLYING 1 COMP. GEN. 440, AND 23 COMP. DEC. 543 AND DISTINGUISHING 17 COMP. DEC. 472 AND 19 COMP. DEC. 383 IS STATED AS FOLLOWS:

ENLISTED MEN ON LIBERTY GRANTED FOR A PERIOD OF 24 HOURS, AND OFFICERS WHO HAVE BEEN GIVEN PERMISSION TO LEAVE THEIR SHIP OR STATION FOR 24 HOURS OR LESS, MAY BE CONSIDERED IN A DUTY STATUS AND THEREFORE ENTITLED TO NECESSARY CIVILIAN MEDICAL ATTENDANCE AND TREATMENT, PROVIDED THE FACILITIES OF THE MEDICAL DEPARTMENT OF THE NAVY ARE NOT AVAILABLE.

THE BUREAU OF MEDICINE AND SURGERY HAS STATED IN PARAGRAPH 2 OF THE CIRCULAR LETTER OF JANUARY 15, 1930, ITS INTERPRETATION OF THE HOLDING OF THE LAW OFFICERS OF THE GOVERNMENT UNDER SECTION 1586, REVISED STATUTES, AS FOLLOWS:

IN THE ABSENCE OF NAVAL MEDICAL FACILITIES, OFFICERS OF THE NAVY AND MARINE CORPS ARE ENTITLED TO CIVILIAN MEDICAL TREATMENT AT GOVERNMENT EXPENSE WHEN IN A DUTY STATUS. AN OFFICER IS NOT ON DUTY WITHIN THE PURVIEW OF SECTION 1586, REVISED STATUTES, WHEN HE IS ABSENT FROM HIS POST OF DUTY FOR HIS OWN PLEASURE OR CONVENIENCE, REGARDLESS OF THE TIME FOR WHICH HE IS ABSENT; NOR CAN AN OFFICER WHILE SO ABSENT BE PLACED IN A DUTY STATUS BY ACTION OF HIS SUPERIOR OFFICERS FOR THE PURPOSE OF HAVING HIS MEDICAL BILLS DEFRAYED BY THE GOVERNMENT. (SEE 5 COMP. GEN. 862 AND 7 COMP. GEN. 314.)

SO MUCH OF THE ABOVE-QUOTED CIRCULAR AS STATES AN OFFICER ON LEAVE OF ABSENCE CAN NOT BE PLACED IN A DUTY STATUS BY ACTION OF HIS SUPERIOR OFFICER FOR THE PURPOSE OF HAVING HIS MEDICAL BILLS DEFRAYED BY THE GOVERNMENT IS IN ACCORD WITH THE CITED DECISIONS: 5 COMP. GEN. 862 AND 7 COMP. GEN. 314, AND THE DECISION OF THE COURT OF CLAIMS FEBRUARY 20, 1928, IN THE CASE OF MORROW V. UNITED STATES, 65 CT.CLS. 35.

SECTION 1586, REVISED STATUTES, PROVIDES THAT:

EXPENSES INCURRED BY ANY OFFICER OF THE NAVY FOR MEDICINES AND MEDICAL ATTENDANCE SHALL NOT BE ALLOWED UNLESS THEY WERE INCURRED WHEN HE WAS ON DUTY, AND THE MEDICINES COULD NOT HAVE BEEN OBTAINED FROM NAVAL SUPPLIES, OR THE ATTENDANCE OF A NAVAL MEDICAL OFFICER COULD NOT HAVE BEEN HAD.

THE STATUTE PLAINLY AND POSITIVELY PROHIBITS THE ALLOWANCE FOR MEDICAL ATTENDANCE TO OFFICERS OF THE NAVY INCURRED WHEN NOT ON DUTY. THE QUESTION WHETHER AN OFFICER IS ON DUTY IS ONE OF FACT TO BE DETERMINED BY THE CIRCUMSTANCES IN EACH CASE.

THE THEORY OF A CONSTRUCTIVE-DUTY STATUS WHILE ABSENT ON "PASS" WAS EVOLVED IN THE ARMY AND APPLIED IN CONNECTION WITH BOUNTY CLAIMS GROWING OUT OF THE CIVIL WAR. A PASS PERMITTED ABSENCE FROM POST OF DUTY FOR A SHORT PERIOD NOT EXCEEDING 24 HOURS. THE BENEFICIARY OF THE PERMIT WAS NOT REMOVED FROM THE LIST OF MEN "PRESENT FOR DUTY" ON THE MUSTER ROLL, THE PERMISSION TO BE ABSENT FOR A SHORT TIME BEING OF SUCH A CHARACTER AS NOT TO INTERFERE WITH THE PERFORMANCE OF UTY; AS A MATTER OF FACT THE MAN OR OFFICER WAS USUALLY WITHIN REACH OF THE PROVOST MARSHALS WHO WOULD COMMUNICATE TO HIM THE NEED OF HIS PRESENCE WITH HIS ORGANIZATION, AS IS THE SITUATION NOW IN THE CASE OF A SHORE LIBERTY PARTY. HOWEVER, BY REASON OF THE PRESENT MEANS OF TRANSPORTATION TIME ALONE CAN NO LONGER BE ACCEPTED AS THE SOLE TEST OF A CONSTRUCTIVE-DUTY STATUS AND WHERE INJURY OR ILLNESS OCCURS AT SUCH A DISTANCE FROM STATION WHILE ON A PASS OF 24 HOURS OR LESS AS TO NEGATIVE THE POSSIBILITY OF THE PERFORMANCE OF DUTY, THERE IS NO CONSTRUCTIVE-DUTY STATUS. IN DECISION OF FEBRUARY 18, 1922, 1 COMP. GEN. 440, 441, IT WAS SAID:

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 (OR) 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. * * *.

IN THE CASE CONSIDERED IN 1 COMP. GEN. 440, THE ARMY OFFICERS WERE INJURED ABOUT 80 MILES FROM THEIR DUTY STATION. IN A-16739, JANUARY 6, 1927, WHERE THE RULE STATED IN 1 COMP. GEN. 440 WAS APPLIED, THE RESERVE OFFICER WAS INJURED WHILE ON AN ORAL PASS WITH PERMISSION TO GO TO HIS HOME, A DISTANCE OF 100 MILES. THE CASE CONSIDERED IN A 18078, DATED APRIL 14, 1928, WAS THAT OF AN ARMY OFFICER INJURED WHILE ABSENT FROM HIS POST OF DUTY BY ORAL PERMISSION OF HIS COMMANDING OFFICER WITH PERMISSION TO VISIT A POINT 38 MILES FROM HIS STATION. IN A RECENT DECISION, A- 31757, MAY 22, 1930 (9 COMP. GEN. 482), IT WAS HELD THAT AN ENLISTED MAN OF THE NAVY INJURED 86 MILES FROM HIS POST OF DUTY WHILE ON LIBERTY COULD NOT BE CONSIDERED AS IN A CONSTRUCTIVE DUTY STATUS WHEN INJURED.

IN VIEW OF THE FACT THAT OFFICERS OF THE NAVY ARE NOT CONTINUALLY IN THE PERFORMANCE OF ACTUAL DUTY AND MAY BE ORALLY GRANTED PERMISSION TO LEAVE THE SHIP OR STATION WITHOUT INTERFERENCE WITH THEIR ROUTING DUTIES FOR PERIODS NOT EXCEEDING 24 HOURS; IN CONSONANCE WITH THE CITED DECISIONS SUCH OFFICERS MAY BE CONSIDERED AS CONSTRUCTIVELY "ON DUTY" WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES, IF THE PERMITTED ABSENCE DOES NOT EXCEED 24 HOURS, AND IF DURING SUCH ABSENCE FROM SHIP OR STATION THEIR WHEREABOUTS ARE KNOWN AND IT IS FAIRLY PRACTICABLE TO SECURE THEIR RETURN FOR THE PERFORMANCE OF DUTY SHOULD THEIR PRESENCE BE REQUIRED. WHERE IN SUCH A CASE THE OFFICER'S WHEREABOUTS ARE UNKNOWN TO HIS COMMANDING OFFICER, OR HE HAS GONE BEYOND THE LIMITS OF THE CITY OR POST IN WHICH HIS SHIP OR STATION MAY BE, HE IS NOT IN FACT OR CONSTRUCTIVELY "ON DUTY.'

THE CIRCUMSTANCES NECESSITATING TREATMENT MAY BE FOR CONSIDERATION. (19 COMP. DEC. 635.) THE CAUSE OF AN ILLNESS OR THE CHARACTER OF AN ILLNESS MAY BE SUCH THAT IT WOULD HAVE NORMALLY MANIFESTED ITSELF AND HAS NO RELATION TO THE LEAVE OF ABSENCE, AND HENCE IS PROPERLY FOR THE GOVERNMENT. INJURY, ON THE OTHER HAND, PRIMARILY IS CONNECTED WITH THE LEAVE OF ABSENCE, AND IF THE FACTS SHOW THE OCCURRENCE AS RELATED EXCLUSIVELY TO THE LEAVE OF ABSENCE SUCH AS FROM THE NATURE OF WHAT ENGAGED IN AT THE TIME--- THE TREATMENT NECESSITATED IS NOT AUTHORIZED AT PUBLIC EXPENSE--- BUT IF THE OCCURRENCE IS A NORMAL HAPPENING--- SUCH AS AN ACCIDENT WHILE TRAVELING TO OR FROM POST OF DUTY, BY THE BREAKING OF EQUIPMENT, COLLISION WITHOUT NEGLIGENCE, ETC.--- THE TREATMENT AT PUBLIC EXPENSE APPEARS PROPER.

THE QUOTED PORTION OF THE CIRCULAR LETTER OF THE BUREAU OF MEDICINE AND SURGERY TO THE EXTENT INDICATED HEREIN HAS GIVEN THE DECISIONS OF THIS OFFICE TOO NARROW AN INTERPRETATION; ON THE OTHER HAND, THE CONCLUSION OF THE SECRETARY OF THE NAVY, AS STATED ON PAGE 167 OF THE LAWS RELATING TO THE NAVY, ANNOTATED SUPPLEMENT, 1929, HAS STATED THE EXCEPTION TOO BROADLY AND WITHOUT REFERENCE TO THE LIMITATIONS SUGGESTED BY 1 COMP. GEN. 440 AND SUBSEQUENT DECISIONS OF THIS OFFICE.