A-38831, NOVEMBER 16, 1931, 11 COMP. GEN. 191

A-38831: Nov 16, 1931

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IS NOT ENTITLED TO PAYMENT OF RETIRED PAY UNDER THE ACT OF JUNE 20. FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A PAY ROLL TRANSMITTED THEREWITH IN THE AMOUNT OF $97.50. IS ANNOUNCED. IT IS STATED THAT LIEUTENANT THORSEN IS THE FIRST RESERVE NURSE IN THE ARMY NURSE CORPS TO BE RETIRED UNDER THE ACT OF JUNE 20. THE QUESTION ARISES WHETHER SHE IS ENTITLED TO RETIREMENT PAY IN VIEW OF THE FACT THAT SHE IS A RESERVE NURSE. NURSES (FEMALE) WERE PREVIOUS TO 1901 EMPLOYED IN THE ARMY AS CIVILIAN EMPLOYEES UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF MARCH 16. THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY WAS CREATED BY SECTION 19 OF THE ACT OF FEBRUARY 2. SHALL RECEIVE NO COMPENSATION EXCEPT WHEN ON SUCH DUTY. * * * THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY WAS CONSTITUTED THE ARMY NURSE CORPS BY THE ACT OF JULY 9.

A-38831, NOVEMBER 16, 1931, 11 COMP. GEN. 191

PAY - RETIRED - RESERVE NURSE, ARMY NURSE CORPS A RESERVE NURSE, ARMY NURSE CORPS, RETIRED ON ACCOUNT OF PHYSICAL DISABILITY INCURRED WHILE ON ACTIVE DUTY, IN THE ABSENCE OF ANY SPECIFIC AUTHORIZATION IN THE LAW TO INCLUDE RESERVE NURSES, IS NOT ENTITLED TO PAYMENT OF RETIRED PAY UNDER THE ACT OF JUNE 20, 1930, 46 STAT. 790.

COMPTROLLER GENERAL MCCARL TO MAJ. J. B. HARPER, UNITED STATES ARMY, NOVEMBER 16, 1931:

THERE HAS BEEN RECEIVED YOUR REQUEST OF SEPTEMBER 16, 1931, FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A PAY ROLL TRANSMITTED THEREWITH IN THE AMOUNT OF $97.50, CONSTITUTING THE CLAIM OF SECOND LIEUT. EDITH C. THORSEN, RESERVE NURSE, ARMY NURSE CORPS, FOR RETIRED PAY, SHE HAVING BEEN, WHILE DETAILED TO ACTIVE DUTY, FOUND BY A RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE ON ACCOUNT OF DISABILITY, AS ANNOUNCED BY PARAGRAPH 10, SPECIAL ORDERS NO. 203, WAR DEPARTMENT, DATED AUGUST 29, 1931, AS FOLLOWS:

10. SECOND LIEUTENANT EDITH C. THORSEN, RESERVE NURSE, ARMY NURSE CORPS, HAVING BEEN FOUND BY A RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE ON ACCOUNT OF DISABILITY INCIDENT THERETO, AND SUCH FINDING HAVING BEEN APPROVED BY THE SECRETARY OF WAR, THE RETIREMENT OF SECOND LIEUTENANT THORSEN FROM ACTIVE SERVICE ON AUGUST 31, 1931, UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED JUNE 20, 1930, AS AMENDED, AND THE ACT OF CONGRESS APPROVED APRIL 23, 1930, IS ANNOUNCED.

IT IS STATED THAT LIEUTENANT THORSEN IS THE FIRST RESERVE NURSE IN THE ARMY NURSE CORPS TO BE RETIRED UNDER THE ACT OF JUNE 20, 1930, 46 STAT. 790, AND THE QUESTION ARISES WHETHER SHE IS ENTITLED TO RETIREMENT PAY IN VIEW OF THE FACT THAT SHE IS A RESERVE NURSE.

NURSES (FEMALE) WERE PREVIOUS TO 1901 EMPLOYED IN THE ARMY AS CIVILIAN EMPLOYEES UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF MARCH 16, 1802, 2 STAT. 133. THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY WAS CREATED BY SECTION 19 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 753, WHICH PROVIDED THAT:

THE NURSE CORPS (FEMALE) SHALL CONSIST OF ONE SUPERINTENDENT, * * * AND OF AS MANY CHIEF NURSES, NURSES, AND RESERVE NURSES, AS MAY BE NEEDED. RESERVE NURSES MAY BE ASSIGNED TO ACTIVE DUTY WHEN THE EMERGENCY OF THE SERVICE DEMANDS, BUT SHALL RECEIVE NO COMPENSATION EXCEPT WHEN ON SUCH DUTY. * * *

THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY WAS CONSTITUTED THE ARMY NURSE CORPS BY THE ACT OF JULY 9, 1918, 40 STAT. 879; SECTIONS 1 AND 4 ARE AS FOLLOWS:

THAT THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY SHALL HEREAFTER BE KNOWN AS THE ARMY NURSE CORPS, AND SHALL CONSIST OF ONE SUPERINTENDENT, * * *; OF AS MANY CHIEF NURSES, NURSES, AND RESERVE NURSES AS MAY FROM TIME TO TIME BE NEEDED AND PRESCRIBED OR ORDERED BY THE SECRETARY OF WAR, * * *

* * * RESERVE NURSES, WHEN UPON ACTIVE DUTY, WILL RECEIVE THE SAME PAY AS NURSES WHO HAVE SERVED IN THE CORPS FOR PERIODS CORRESPONDING TO THE FULL PERIOD OF THEIR ACTIVE SERVICE; * * *

ORIGINAL APPOINTMENTS IN THE REGULAR ARMY NURSE CORPS ARE UNDER ARMY REGULATIONS 40-20, PARAGRAPH 3, MADE IN THE GRADE OF NURSE. THEY MUST BE BETWEEN 22 AND 32 YEARS OF AGE, UNMARRIED, REGISTERED NURSES, AND CITIZENS OF THE UNITED STATES, SHALL SATISFACTORILY PASS THE PRESCRIBED PHYSICAL EXAMINATION, AND THEY MUST AGREE TO SERVE FOR A PERIOD OF THREE YEARS. RESERVE NURSES, WHO ARE REQUIRED UNDER THE LAW TO SERVE ONLY WHEN THE EMERGENCY OF THE SERVICE DEMANDS, ARE SELECTED FROM THE ROSTER OF THE ENROLLED NURSES OF THE AMERICAN NATIONAL RED CROSS NURSING SERVICE OR FROM OTHER SOURCES; ARMY REGULATIONS 40-20, PARAGRAPH 23-A (5) PROVIDING THAT--

WHENEVER RESERVE NURSES ARE NEEDED IN TIME OF PEACE OR WAR FOR ASSIGNMENT TO ACTIVE DUTY BY THE WAR DEPARTMENT, THE SURGEON GENERAL MAY REQUEST THE PROPER OFFICIAL OF THE AMERICAN NATIONAL RED CROSS, HEADQUARTERS AT WASHINGTON, D.C., TO SELECT AND FURNISH HIM THE REQUISITE NUMBER OF NAMES FROM THE ROSTER OF THE ENROLLED NURSES OF THE AMERICAN NATIONAL RED CROSS NURSING SERVICE.

IT APPEARS THAT FOLLOWING THE REDUCTIONS IN THE ARMY UNDER THE ACT OF JUNE 30, 1922, 42 STAT. 721, ALL MEMBERS OF THE ARMY NURSE CORPS WHO DID NOT MEET THE REQUIREMENTS FOR CONTINUED SERVICE WERE DISCHARGED, AND THEREAFTER RESERVE NURSES WHO HAD BEEN CONTINUED IN THE SERVICE SINCE THE WORLD WAR WERE, BY AN ARRANGEMENT ENTERED INTO WITH THE VETERANS' BUREAU, LARGELY EMPLOYED IN CONNECTION WITH THE HOSPITALIZATION OF VETERANS' BUREAU PATIENTS AT ARMY HOSPITALS, AND THEY WERE PAID FROM FUNDS APPROPRIATED FOR THE VETERANS' BUREAU. THIS ARRANGEMENT, IT WOULD SEEM, WAS PURSUANT TO A PROVISO FIRST CONTAINED IN THE APPROPRIATION FOR THE ARMY, ACT OF JUNE 30, 1921, 42 STAT. 74, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THE PAY AND ALLOWANCES OF SUCH ADDITIONAL OFFICERS AND NURSES OF THE MEDICAL RESERVE CORPS AS ARE REQUIRED TO SUPPLEMENT THE LIKE OFFICERS AND NURSES OF THE REGULAR ARMY IN THE CASE OF BENEFICIARIES OF THE BUREAU OF THE WAR RISK INSURANCE TREATED IN ARMY HOSPITALS MAY BE PAID FROM THE FUNDS ALLOTTED TO THE WAR DEPARTMENT BY THAT BUREAU UNDER EXISTING LAW.

SEE TO THE SAME EFFECT THE PROVISION UNDER "ORGANIZED RESERVES" IN THE CURRENT ARMY APPROPRIATION ACT, 46 STAT. 1298, AND THE PROVISION UNDER VETERANS' ADMINISTRATION, 46 STAT. 1374. SEE IN THIS CONNECTION STATEMENT REGARDING PAY OF NURSES QUOTED IN HEARINGS, WAR DEPARTMENT APPROPRIATION BILL, 1924, PAGE 296; ALSO HEARINGS FOR 1930, PAGE 165, WHERE IT WAS STATED:

COLONEL WHITCOMB. WE HAVE 550 IN THE REGULAR ESTABLISHMENT NOW. WE ARE EMPLOYING 190 RESERVE NURSES FOR THE VETERANS' BUREAU PATIENTS. WE MADE AN ARRANGEMENT WITH THEM THAT WE WOULD EMPLOY AND PAY FROM THEIR FUNDS, 1 NURSE FOR EACH 10 PATIENTS, AND WE HAVE A CONTRACT WITH THEM FOR 1,900 PATIENTS.

MR. BARBOUR. THEY PAY FOR THOSE NURSES?

COLONEL WHITCOMB. THEY PAY FOR 190. QUITE A GOOD MANY OF THOSE RESERVE NURSES ARE WOMEN WHO HAVE BEEN WITH THE ARMY EVER SINCE THE WAR, AND, ACCORDING TO OUR REGULATIONS FOR RECRUITING THE NURSE CORPS, THOSE WOMEN WHO WERE ELIGIBLE AT THE TIME THEY COMMENCED SERVICE IN THE ARMY ARE PREFERRED IN APPOINTMENTS TO THE REGULAR SERVICE, IF THEY HAVE BEEN IN THE SERVICE CONTINUALLY. SO THAT WHEN THIS INCREASE OCCURRED THIS YEAR, BEGINNING JULY 1, THOSE 50 WERE MADE UP ALMOST ENTIRELY BY TRANSFERS FROM THESE RESERVE NURSES WHO HAD BEEN WITH US EVER SINCE THE WAR, AND CAME IN DURING THE WAR.

MR. BARBOUR. AND WHO ARE ON VETERANS' BUREAU WORK?

COLONEL WHITCOMB. THEY HAVE BEEN ON THE VETERANS' BUREAU ROLLS. COURSE, THOSE NURSES HAD ALWAYS BEEN KEPT AT THE SIX BIG HOSPITALS WHERE WE HAVE VETERANS' BUREAU PATIENTS. THEY TOOK A TRANSFER INTO THE REGULAR CORPS, AS THE RETIREMENT PROPOSITION NOW MAKES IT MORE ATTRACTIVE THAN THE RESERVE CORPS, WHICH HAS NO SUCH PROVISION FOR THE FUTURE. * * *

THE ORDERS RETIRING LIEUTENANT THORSEN STATE THAT SHE WAS RETIRED FROM ACTIVE DUTY UNDER THE ACT OF JUNE 20, 1930. THAT ACT, 46 STAT. 790, READS:

AN ACT TO PROVIDE FOR THE RETIREMENT OF DISABLED NURSES OF THE ARMY AND THE NAVY.

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT PURSUANT TO REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AS THE CASE MAY BE, WHEN A MEMBER OF THE ARMY NURSE CORPS OR OF THE NAVY NURSE CORPS SHALL BE FOUND BY A BOARD OF MEDICAL OFFICERS TO HAVE BECOME DISABLED IN LINE OF DUTY FROM PERFORMING THE DUTIES OF A NURSE, AND SUCH FINDINGS ARE APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED, SHE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE NURSE CORPS RETIRED LIST OF THE APPROPRIATE DEPARTMENT IN THE GRADE TO WHICH SHE BELONGED AT THE TIME OF HER RETIREMENT AND WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE SERVICE PAY RECEIVED BY HER AT THE TIME OF HER TRANSFER TO THE RETIRED LIST.

NO SPECIFIC REFERENCE IS MADE IN THE STATUTE FOR THE RETIREMENT OF RESERVE NURSES, AND THE QUESTION IS WHETHER THE INTENT OF THE STATUTE INCLUDES RESERVE NURSES WITHIN THE TERM "MEMBER OF THE ARMY NURSE CORPS.' THE NURSE CORPS ORGANIZATION, KNOWN AS THE ARMY NURSE CORP UNDER THE ACT OF JULY 9, 1918, CITED, HAS SINCE ITS CREATION AS THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY, UNDER THE ACT OF FEBRUARY 2, 1901, CONSISTED OF ONE SUPERINTENDENT AND AS MANY CHIEF NURSES, NURSES, AND RESERVE NURSES AS MAY BE NEEDED. THIS ORGANIZATION UNDER THE LAWS, AND REGULATIONS PROMULGATED THEREUNDER, HAS TWO DISTINCT CLASSIFICATIONS, FIRST, THE REGULAR ARMY NURSE CORPS, CONSISTING OF NURSES, AND THE HIGHER RATINGS TO WHICH THEY ARE PROMOTED, CONSTITUTING THE PERMANENT, ACTIVE BODY SERVING CONTINUOUSLY IN TIME OF PEACE AND IN TIME OF WAR, AND SECONDLY, THE RESERVE NURSES, WHICH IS AN INACTIVE BODY RECRUITED AND SELECTED BY AN ORGANIZATION NOT A PART OF THE GOVERNMENT, AND AVAILABLE FOR USE IN THE ARMY NURSE CORPS AS OCCASION OR NEED ARISES AND SERVE ONLY AS THEIR SERVICES ARE REQUIRED, THAT IS,"WHEN THE EMERGENCY OF THE SERVICE DEMANDS.' IT IS IN CHARACTER THE SAME AS THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS, WHICH ORGANIZATIONS ARE ALSO CONSTITUTED, BY SECTION 1 OF THE NATIONAL DEFENSE ACT, A COMPONENT PART OF THE REGULAR ARMY. WHEN DETAILED TO ACTIVE DUTY THEY RECEIVE THE SAME PAY AND ALLOWANCES AS OFFICERS AND MEN OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE. IT IS, HOWEVER, SPECIFICALLY PROVIDED BY SECTION 37A OF THE NATIONAL DEFENSE ACT THAT THEY "SHALL NOT BE ENTITLED TO RETIREMENT OR RETIRED PAY.'

SECTION 10 OF THE ACT OF JUNE 4, 1920, 41 STAT. 767, PROVIDES THAT "MEMBERS OF THE ARMY NURSE CORPS" SHALL HAVE RANK AS THEREIN PRESCRIBED. RANKS FROM MAJOR TO SECOND LIEUTENANT ARE GIVEN THE VARIOUS GRADES IN THE REGULAR ARMY NURSE CORPS, BUT NO RANK IS GIVEN RESERVE NURSES. THE ONLY PROVISION OF LAW IS THAT "RESERVE NURSES, WHEN ON ACTIVE DUTY, WILL RECEIVE THE SAME PAY AS NURSES WHO HAVE SERVED IN THE CORPS FOR PERIODS CORRESPONDING TO THE FULL PERIOD OF THEIR ACTIVE RVICE.'

AT THE TIME OF THE CREATION OF THE ARMY NURSE CORPS IN 1901 AND AT THE TIME OF ITS REORGANIZATION IN 1918 THERE WAS NO PROVISION FOR RETIREMENT OF ARMY NURSES AND NO PROHIBITION AGAINST RETIREMENT OF RESERVE NURSES WAS INCLUDED IN THE BASIC ACTS, IT WAS, HOWEVER, PROVIDED THAT "RESERVE NURSES MAY BE ASSIGNED TO ACTIVE DUTY WHEN THE EMERGENCY OF THE SERVICE DEMANDS, BUT SHALL RECEIVE NO COMPENSATION EXCEPT WHEN ON SUCH DUTY.' A RESERVE NURSE RETIRED IS NOT ON ACTIVE DUTY AND PAYMENT OF RETIRED PAY WHICH IS IN THE NATURE OF COMPENSATION FOR SERVICES RENDERED IS PROHIBITED BY THE BASIC LAW THAT WHEN ON ACTIVE DUTY SHE SHALL RECEIVE THE SAME PAY AS A NURSE. THERE APPEARS NOTHING IN THE RETIREMENT ACT TO SHOW AN INTENTION OF THE CONGRESS TO AUTHORIZE THE PAY PRESCRIBED THEREIN FOR RESERVE NURSES WHO MIGHT BE RETIRED, AND THE HEARINGS NO. 383 ON H.R. 10375, MARCH 13, 1930, BEFORE THE HOUSE COMMITTEE ON NAVAL AFFAIRS AND THE DISCUSSION ON THE FLOOR OF THE HOUSE, PAGES 6972, 6973, 9165, AND 9166, CONGRESSIONAL RECORD, SEVENTY-FIRST CONGRESS, SECOND SESSION, WOULD INDICATE THAT THE ACT WAS CONSIDERED APPLICABLE ONLY TO THE REGULAR ARMY NURSE CORPS. SEE THE STATEMENTS AS TO THE NUMBER OF NURSES IN THE NAVY NURSE CORPS, PAGES 1476, 1478, 1483, AND 1491 OF "A HEARING ON (H.R. 10375) TO PROVIDE FOR THE RETIREMENT OF DISABLED NURSES IN THE NAVY," MARCH 13, 1930--- THE ORIGIN OF THE ACT NOW UNDER CONSIDERATION--- THE COMPUTATION AS TO COST IN LETTER OF THE SECRETARY OF THE NAVY OF SEPTEMBER 28, 1929, PAGES 1474 AND 1487, AS TO THE NUMBER OF THE ARMY NURSE CORPS, PAGE 1495. ON THE BASIS OF THE LAWS CITED, AND IN THE ABSENCE OF ANY SPECIFIC AUTHORIZATION TO INCLUDE THEM, I AM OF THE OPINION, THAT RESERVE NURSES ARE NOT ENTITLED TO PAYMENTS UNDER THE ACT OF JUNE 20, 1930.

IN VIEW OF THE FOREGOING, PAYMENT OF THE VOUCHER, WHICH WILL BE RETAINED HERE, IS NOT AUTHORIZED.

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