A-39061, NOVEMBER 16, 1933, 13 COMP. GEN. 140

A-39061: Nov 16, 1933

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" WITH A PROHIBITION ON THE USE OF THE FUNDS IN THE CASE OF OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH. WHETHER AN ENLISTED MAN IS ON DUTY OR IS ON FURLOUGH IS A QUESTION OF FACT TO BE DETERMINED BY THE EVIDENCE IN THE CASE AND NOT SOLELY BY THE REPORTS OF THE WAR DEPARTMENT. THERE WAS NOT A REPORTING TO A POST OR STATION SUCH AS WOULD TERMINATE THE FURLOUGH. THE APPROPRIATION IS NOT AVAILABLE FOR THE PAYMENT OF THE EXPENSES OF THE ENLISTED MAN'S TREATMENT IN A PRIVATE HOSPITAL AND BY A CIVILIAN PHYSICIAN. 12 COMP. ADMINISTRATIVE DETERMINATIONS OF FACT ARE NOT CONTROLLING UNLESS THE LAW HAS SPECIFICALLY MADE SUCH ADMINISTRATIVE DETERMINATION FINAL.

A-39061, NOVEMBER 16, 1933, 13 COMP. GEN. 140

MEDICAL TREATMENT - PRIVATE - ARMY ENLISTED MAN ON FURLOUGH - JURISDICTION OF GENERAL ACCOUNTING OFFICER UNDER THE PROVISIONS OF THE ANNUAL APPROPRIATION ACT FOR THE WAR DEPARTMENT PROVIDING FUNDS FOR ,MEDICAL CARE AND TREATMENT NOT OTHERWISE PROVIDED FOR," WITH A PROHIBITION ON THE USE OF THE FUNDS IN THE CASE OF OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH, WHETHER AN ENLISTED MAN IS ON DUTY OR IS ON FURLOUGH IS A QUESTION OF FACT TO BE DETERMINED BY THE EVIDENCE IN THE CASE AND NOT SOLELY BY THE REPORTS OF THE WAR DEPARTMENT. WHERE AN ENLISTED MAN OF THE INFANTRY ON FURLOUGH AT HIS HOME BECAME ACUTELY ILL AND COMMUNICATED WITH AN OFFICER OF THE ENGINEER CORPS OF THE ARMY ON DUTY ON RIVERS AND HARBORS WORK IN THAT VICINITY, WHO, WITH THE APPROVAL OF THE CORPS AREA COMMANDER, PROCURED MEDICAL ATTENTION FOR THE ENLISTED MAN, THERE WAS NOT A REPORTING TO A POST OR STATION SUCH AS WOULD TERMINATE THE FURLOUGH, AND THE APPROPRIATION IS NOT AVAILABLE FOR THE PAYMENT OF THE EXPENSES OF THE ENLISTED MAN'S TREATMENT IN A PRIVATE HOSPITAL AND BY A CIVILIAN PHYSICIAN. 12 COMP. DEC. 562, DISTINGUISHED. IN SETTLEMENTS BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 236, REVISED STATUTES (31 U.S.C. 71), OF CLAIMS ALLEGED TO BE PAYABLE UNDER AVAILABLE APPROPRIATIONS, ADMINISTRATIVE DETERMINATIONS OF FACT ARE NOT CONTROLLING UNLESS THE LAW HAS SPECIFICALLY MADE SUCH ADMINISTRATIVE DETERMINATION FINAL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, NOVEMBER 16, 1933:

THERE WAS DULY RECEIVED YOUR LETTER OF MARCH 24, 1933, RESPECTING THE SETTLEMENT BY THIS OFFICE OF THE CLAIM OF DR. PAUL DEWITT AND OF THE PROTESTANT HOSPITAL, NASHVILLE, TENN., FOR $251 AND $74.50, RESPECTIVELY, COVERING MEDICAL TREATMENT AND HOSPITAL CARE FURNISHED FRANK R. MANGRUM, PRIVATE, HEADQUARTERS COMPANY, EIGHTH UNITED STATES INFANTRY, DURING THE PERIOD JANUARY 20 TO FEBRUARY 6, 1931. SETTLEMENTS OF THIS OFFICE NOVEMBER 2, 1932 (CLAIM NO. 0332287), DISALLOWED THE CLAIMS.

IT APPEARS FROM THE DOCUMENTS YOU HAVE SUBMITTED THAT BY LETTER TO THE ADJUTANT GENERAL OF NOVEMBER 30, 1932, THE SURGEON GENERAL SUGGESTED ERROR IN THE SETTLEMENTS; THAT THE SETTLEMENTS WERE NOT CONSISTENT WITH PRIOR HOLDINGS OF THE ACCOUNTING OFFICERS, CITING PARTICULARLY 12 COMP. DEC. 562; 24 ID. 323, OR OF THE COURT OF CLAIMS IN MAGURN'S CASE, 39 CT.CLS. 416, WITH A FURTHER SUGGESTION THAT THE SETTLEMENTS NOT ONLY IGNORED THE AUTHORITY LODGED BY REGULATIONS IN COMMANDING OFFICERS TO INCUR CERTAIN OBLIGATIONS AS AGENTS OF THE UNITED STATES, BUT ARE ALSO IN DEROGATION OF THE AUTHORITY LODGED IN OFFICERS OF THE ARMY TO DIRECT AND CONTROL THE MOVEMENTS OF ENLISTED MEN SUBJECT TO THEIR BODILY CONTROL, AND STATED THE MATTER WAS BROUGHT TO ATTENTION FOR ,CONSIDERATION WHETHER ANY ACTION MAY APPROPRIATELY BE TAKEN BY THE DEPARTMENT IN THE PREMISES TO PROTECT AND PRESERVE THE PRINCIPLE OF THE INTEGRITY OF COMMAND.' AFTER REFERENCE TO THE CHIEF OF FINANCE AND TO THE SURGEON GENERAL, THE MATTER WAS REFERRED TO THE JUDGE ADVOCATE GENERAL, WHO, BY A SIXTH ENDORSEMENT, AFTER REVIEWING THE FACTS AS HE UNDERSTOOD THEM, REACHED THE CONCLUSION THAT THE SETTLEMENTS WERE NOT ONLY CONTRARY TO THE DECISIONS OF THE FORMER ACCOUNTING OFFICERS BUT ALSO OF THIS OFFICE, CITING PARTICULARLY 1 COMP. GEN. 137 AND 440; THAT AS NO LEGISLATION HAD BEEN ENACTED SINCE THE DATE OF THESE LATTER DECISIONS WHICH WOULD WARRANT A DIFFERENT CONCLUSION FROM THAT THERE REACHED, THE STATEMENT MADE IN THE SETTLEMENTS OF NOVEMBER 2, 1932, THAT "A FURLOUGH MAY NOT BE REVOKED FOR THE PURPOSE OF TRANSFERRING THE INDEBTEDNESS FOR SUCH (MEDICAL) EXPENSES TO THE UNITED STATES," "APPEARS TO BE CLEARLY ERRONEOUS VIEWED IN THE LIGHT OF HIS OWN PRIOR DECISIONS.' HE THEREFORE JOINED IN THE RECOMMENDATION OF THE SURGEON GENERAL THAT THE MATTER BE SUBMITTED BY YOU FOR MY CONSIDERATION. THE PAPERS WERE RETURNED TO THE JUDGE ADVOCATE GENERAL BY THE ADJUTANT GENERAL BY SEVENTH ENDORSEMENT "FOR DRAFT OF LETTER TO THE COMPTROLLER GENERAL AS RECOMMENDED IN THE SIXTH ENDORSEMENT" AND BY AN EIGHTH ENDORSEMENT TO THE ADJUTANT GENERAL THE JUDGE ADVOCATE GENERAL TRANSMITTED "DRAFT OF LETTER, PREPARED FOR THE SIGNATURE OF THE SECRETARY OF WAR.' YOUR LETTER IS AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH FILE RELATING TO CLAIM NO. 0332287 FOR HOSPITALIZATION AND MEDICAL TREATMENT FURNISHED FRANK R. MANGRUM, PRIVATE, HEADQUARTERS COMPANY, 8TH UNITED STATES INFANTRY, FROM JANUARY 20, 1931, TO FEBRUARY 6, 1931, AMOUNTING TO $325.50, AND WHICH WAS DISALLOWED BY YOUR OFFICE ON NOVEMBER 2, 1932.

IN VIEW OF THE IMPORTANCE OF THE QUESTIONS INVOLVED IN THIS CASE, AS AFFECTING THE PROPER ADMINISTRATION OF THE WAR DEPARTMENT AND THE ARMY, I AM CONSTRAINED TO REQUEST THE RECONSIDERATION OF YOUR DECISION OF NOVEMBER 2, 1932, CONTAINED IN LETTERS OF YOUR OFFICE TO THE CLAIMANTS IN THIS CASE. I HAVE OBTAINED AND AM INCLOSING WITH THE PAPERS, THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY ON THE QUESTIONS INVOLVED, IN PROPER SUBORDINATES, TO CHANGE, EITHER BY ORAL OR WRITTEN ORDERS, THE STATUS OF A SOLDIER FROM FURLOUGH TO DUTY, AND EXPRESSES THE OPINION THAT AS THE SOLDIER WAS, IN THIS CASE, LEGALLY PLACED ON A DUTY STATUS, PRIOR TO HIS TREATMENT AT THE HOSPITAL, THE CLAIMANTS ARE LEGALLY ENTITLED TO PAYMENT, AND THE CLAIMS, BEING REASONABLE, SHOULD BE ALLOWED AND PAID. I AM FULLY CONVINCED OF THE CORRECTNESS OF THE CONCLUSIONS REACHED BY THAT OFFICIAL. I SHALL GREATLY APPRECIATE IT IF YOU WILL RECONSIDER THE CASE IN THE LIGHT OF THE COURT DECISIONS, THOSE OF YOUR PREDECESSORS, AND YOURSELF, AS CITED AND DISCUSSED BY THE JUDGE ADVOCATE GENERAL, AND ADVISE ME OF THE RESULT AT AS EARLY A DATE AS MAY BE PRACTICABLE.

THE VOUCHER OF THE PROTESTANT HOSPITAL BEARS THE FOLLOWING CERTIFICATE OVER THE SIGNATURE OF F. S. BESSON, MAJOR, CORPS OF ENGINEERS:

I CERTIFY THAT THE ABOVE ACCOUNT IS CORRECT; THAT THE SERVICES WERE RENDERED AS STATED, AND WERE NECESSARY FOR THE PUBLIC SERVICE; THAT, OF THE SAID PERSONS, THE ENLISTED MEN WERE ON DUTY AT THE TIME AND PLACE OF TREATMENT SPECIFIED; THAT TREATMENT IN CIVIL HOSPITAL WAS NECESSARY, NO ARMY HOSPITAL BEING AVAILABLE, AND WAS ORDERED BY TELEPHONIC INSTRUCTIONS, HEADQUARTERS, 4TH CORPS AREA. PRIVATE FRANK MANGRUM (ARMY SERIAL NO. 6352380) WAS ON FURLOUGH WHEN TAKEN ILL ON JANUARY 21, 1931, AND WAS PLACED IN DUTY STATUS BY ME ON SAME DATE, BEFORE HIS OPERATION FOR APPENDICITIS, UNDER TELEPHONIC INSTRUCTIONS, HQ. 4TH CORPS AREA.

THE VOUCHER SHOWS SERVICES RENDERED BY THE HOSPITAL JANUARY 20, 1931, TO FEBRUARY 6, 1931, BUT THE CERTIFICATE QUOTED ABOVE SHOWS JANUARY 21, 1931, AS THE DATE MAJOR BESSON PLACED THE SOLDIER ,IN DUTY STATUS.' THERE IS THUS A DISCREPANCY IN DATES--- THE CLAIM BEING FROM JANUARY 20--- BUT THE OFFICER'S CERTIFICATE GIVES JANUARY 21 AS THE DATE THE MAN WAS TAKEN ILL AND WHEN THE OFFICER PLACED HIM IN A DUTY STATUS. IT IS ASSUMED THE CERTIFICATE IS IN ERROR, OTHERWISE THERE IS NO BASIS FOR THE CONTENTION MADE. MAJOR BESSON'S CERTIFICATE ON THE VOUCHER OF DR. PAUL DEWITT IS IN PART AS FOLLOWS:

PRIVATE FRANK MANGRUM (ARMY SERIAL NO. 6352380) WAS ON FURLOUGH FROM HQ.CO., 8TH INFT., FORT MOULTRIE, S.C., WHEN HE WAS TAKEN ILL IN NASHVILLE, TENN., ON JAN. 20, 1931, AND WAS PLACED IN DUTY STATUS ON SAME DATE BEFORE HE WAS OPERATED UPON FOR APPENDICITIS, UNDER TELEPHONE INSTRUCTIONS, HEADQUARTERS, 4TH CORPS AREA.

IT APPEARS FROM A REPORT OF THE ADJUTANT GENERAL OF APRIL 17, 1931, THAT FRANK R. MANGRUM, 6352380, WAS ORIGINALLY ACCEPTED FOR ENLISTMENT AT NASHVILLE, TENN., AND ENLISTED AT THAT PLACE APRIL 27, 1925. THERE IS NO QUESTION HE WAS ON FURLOUGH AT HOME WHEN HE BECAME ILL. IN LETTER OF FEBRUARY 26, 1931, TRANSMITTING THE VOUCHERS TO THE FINANCE OFFICE, 4TH CORPS AREA, MAJOR BESSON STATED THAT:

PRIVATE MANGRUM WAS FOUND IN FRONT OF MY OFFICE IN NASHVILLE, TENN., SUFFERING WITH ACUTE APPENDICITIS, AND WAS GIVEN HOSPITAL AND MEDICAL ATTENTION UNDER TELEPHONIC INSTRUCTIONS FROM THE SURGEON, 4TH CORPS AREA.

THIS APPARENTLY REPRESENTS THAT MAJOR BESSON, IN FRONT OF HIS OFFICE ON THE STREETS IN NASHVILLE, TENN., RECOGNIZED THE SUFFERER AS A SOLDIER ON FURLOUGH AND THAT MAJOR BESSON, AN ENGINEER OFFICER, IMMEDIATELY DETERMINED THAT THE SOLDIER WAS SUFFERING FROM ACUTE APPENDICITIS AND TOOK MEASURES TO SECURE MEDICAL TREATMENT FOR HIM.

THE APPROPRIATION UNDER "MEDICAL AND HOSPITAL DEPARTMENT" FOR THE FISCAL YEAR 1931, ACT OF MAY 28, 1930, 46 STAT. 445, APPROPRIATES FUNDS --

* * * FOR MEDICAL CARE AND TREATMENT NOT OTHERWISE PROVIDED FOR, INCLUDING CARE AND SUBSISTENCE IN PRIVATE HOSPITALS OF OFFICERS, ENLISTED MEN, AND CIVILIAN EMPLOYEES OF THE ARMY, OF APPLICANTS FOR ENLISTMENT, AND OF PRISONERS OF WAR AND OTHER PERSONS IN MILITARY CUSTODY OR CONFINEMENT, WHEN ENTITLED THERETO BY LAW, REGULATION, OR CONTRACT: PROVIDED, THAT THIS SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH; * * *.

THE APPROPRIATION HAS BEEN SUBSTANTIALLY IN THIS FORM SINCE THE ACT OF MARCH 2, 1907, 34 STAT. 1172, WHEN IT WAS CHANGED FROM ITS PRIOR FORM--- SEE ACT OF JUNE 12, 1906, 34 STAT. 255--- WHERE THE APPROPRIATION WAS MADE AVAILABLE "FOR MEDICAL CARE AND TREATMENT OF OFFICERS, ENLISTED MEN, AND CONTRACT SURGEONS ON DUTY * * *.' THE MEMBER OF THE COMMITTEE IN CHARGE OF THE BILL ON THE FLOOR OF THE HOUSE STATED THE PURPOSE OF THE CHANGE IN LANGUAGE TO BE (SEE PAGE 904, CONG.REC., VOL. 41, PT.I, 39TH CONG. 2D SESS./---

* * * WE PROVIDED SPECIFICALLY, AND THE SURGEON GENERAL, IN HIS STATEMENT, SAYS THAT THIS IS TO COVER AND ONLY COVER CASES WHERE THERE ARE RECRUITS GOING FROM ONE PLACE TO ANOTHER WHO ARE TAKEN SICK, IN ORDER TO GIVE THEM THAT ATTENDANCE; AND THE COMMITTEE IN ORDER TO PREVENT ANY OFFICER GETTING ANY MEDICAL ATTENDANCE, EXCEPT WHEN IN LINE OF DUTY, PUT IN FURTHER, IT SHALL NOT APPLY TO ANY OFFICER ON FURLOUGH OR ANY OFFICER BEING TREATED BY PRIVATE PHYSICIANS WHEN ON FURLOUGH, IN HOSPITALS, OR BY PRIVATE PHYSICIANS.

WHETHER AN OFFICER OR ENLISTED MAN IS ON FURLOUGH OR ON DUTY IS "NOT A MATTER OF DEFERENCE TO THE JUDGMENT OF" AN EXECUTIVE OFFICER; UNITED STATES V. ALLEN, 261 U.S. 317, AT PAGE 320; THE COURT FURTHER REMARKED:

THE CONCLUSION (OF THE COURT OF CLAIMS) WAS THAT THE PURPOSE OF THE ACT WAS "TO ESTABLISH UNIFORMITY IN THE PAY OF LIKE OFFICERS IN THE COAST GUARD AND THE NAVY," AND THAT IT COULD NOT BE DEFEATED BY AN ADMINISTRATIVE ORDER OF THE SECRETARY OF THE NAVY.

WE CONCUR, AND AFFIRM THE JUDGMENT.

THE CASE IN 12 COMP. DEC. 562, CITED, CONCERNED AN ENLISTED MAN ON FURLOUGH IN JAPAN WHO WAS INJURED AND REPORTED TO THE DEPOT QUARTERMASTER AT NAGASAKI, JAPAN, AN OFFICER WHO, UNDER WAR DEPARTMENT DIRECTIONS OR AUTHORITY, HAD CERTAIN CONTROL OVER ENLISTED MEN ON FURLOUGH IN OR EN ROUTE THROUGH JAPAN. SO FAR AS THAT DECISION IS APPLICABLE IN TERRITORY UNDER THE THE JURISDICTION OF THE UNITED STATES IT HAS BEEN APPLIED ONLY WHERE THE REPORTING WAS TO A MILITARY STATION. IT HAS NOT BEEN RECOGNIZED AS AUTHORIZING ANY CASUAL OFFICER OF THE ARMY TO SECURE CIVILIAN MEDICAL TREATMENT AT THE EXPENSE OF THE UNITED STATES FOR ANY ENLISTED MAN ON FURLOUGH WHOM HE MAY MEET. MAJOR BESSON WAS ON DUTY AS, OR IN THE OFFICE OF, THE DISTRICT ENGINEER, ROOM 322, CUSTOMHOUSE, NASHVILLE, TENN. IT IS OBVIOUS THAT PRIVATE MANGRUM BECAME ILL WHILE AT HOME ON FURLOUGH AND THAT A DIAGNOSIS OF ACUTE APPENDICITIS HAD BEEN MADE BEFORE MAJOR BESSON CAME INTO THE CASE, AND IN SOME UNDISCLOSED MANNER APPEARED IN FRONT OF MAJOR BESSON'S OFFICE. MAJOR BESSON HAD NO DUTY IN CONNECTION WITH ENLISTED MEN OF THE LINE OF THE ARMY CASUALLY IN NASHVILLE, WHETHER ON DUTY OR ON FURLOUGH. IT IS TO BE OBSERVED, ALSO, THAT FOR THE PURPOSE OF THE LAND- GRANT LAWS, WHEN ON RIVER AND HARBOR WORK, MAJOR BESSON IS NOT INCLUDED IN THE TERM "TROOPS OF THE UNITED STATES.' SOUTHERN PACIFIC CO. V. THE UNITED STATES, 285 U.S. 240. THE REPORTING FOR DUTY IN THIS CASE ON THE FACTS APPARENT NO MORE BRINGS THE CASE WITHIN THE LAW AS CONSTRUED, 12 COMP. DEC. 562, AND CASES FOLLOWING THAT DECISION, THAN DID THE VISIT OF A LIEUTENANT COLONEL ON DUTY WITH THE ORGANIZED RESERVES IN TOLEDO, OHIO, TO AN ENLISTED MAN WHO HAD BEEN OPERATED ON THE DAY BEFORE FOR THE PURPOSE OF HAVING THE PATIENT "REPORT" TO HIM BRING THAT CASE WITHIN THE LAW, A- 38611, DECEMBER 1, 1931.

IN MORROW V. UNITED STATES, 65 CT.CLS. 35, WHERE IT WAS CONTENDED THE CANCELATION OF A NAVAL OFFICER'S LEAVE AUTOMATICALLY PLACED HIM "ON DUTY" AND ENTITLED HIM TO MEDICAL TREATMENT AT THE EXPENSE OF THE UNITED STATES, THE COURT, AT PAGE 38, USED THE FOLLOWING LANGUAGE APPLICABLE TO THE CASE NOW UNDER CONSIDERATION:

* * * THE GOVERNMENT MAINTAINS WELL-EQUIPPED HOSPITALS AT POSTS AND STATIONS, WITH MEDICAL SUPPLIES AND A CORPS OF EFFICIENT AND CAPABLE MEDICAL OFFICERS. AN OFFICER, OR OTHER MEMBER OF THE SERVICE IN THE ARMY OR NAVY, WHEN ON DUTY AT SUCH POSTS OR STATIONS, IS ENTITLED TO MEDICINES AND TO MEDICAL TREATMENT FREE OF CHARGE. IF ON DETACHED DUTY AT A PLACE WHERE SUCH MEDICINES AND TREATMENT WERE NOT AVAILABLE HE MIGHT BE REIMBURSED FOR NECESSARY EXPENDITURES FOR SUCH SERVICES. IN NO CIRCUMSTANCES IS HE ENTITLED UNDER THE LAW TO REIMBURSEMENT UNLESS SUCH EXPENSES WERE INCURRED WHEN HE WAS ON DUTY. TO HAVE ORDERED PLAINTIFF TO HIS POST OF DUTY AT THE NORFOLK NAVAL HOSPITAL AT THE TIME OF CANCELLATION OF THE LEAVE OF ABSENCE WOULD HAVE BEEN A VAIN THING. HE WAS A DESPERATELY SICK MAN, COMPLETELY INCAPABLE OF PERFORMING ANY SERVICE WHATEVER, AND HAD BEEN IN THAT CONDITION SINCE APRIL 8, 1925. * * *

THE COURT HERE HAD NO DIFFICULTY IN DETERMINING THE OFFICER WAS NOT ON DUTY, NOTWITHSTANDING THERE WAS ADMINISTRATIVE ACTION WHICH PURPORTED, THROUGH THE CANCELATION OF THE GRANTED LEAVE, TO CREATE A STATUS OF "DUTY.'

THE SUGGESTION THAT THIS OFFICE IN THE SETTLEMENT OF CLAIMS AGAINST APPROPRIATIONS MAY NOT QUESTION THE DETERMINATION OF OFFICERS OF THE WAR DEPARTMENT AS TO THE STATUS OF PERSONNEL OF THE ARMY WHEN STATUS IS INVOLVED IN THE CLAIM AND OFFICERS OF THE WAR DEPARTMENT HAVE MADE A DETERMINATION THEREON SEEMS TO BE A VIEW UNSUPPORTED BY ANY JUDICIAL HOLDING, AND HOWEVER THAT MAY BE, SUCH MILITARY DETERMINATION MAY NOT BE CONTRARY TO THE FACTS. THE COURT OF CLAIMS IN THE MORROW CASE DETERMINED THE OFFICER WAS NOT ON DUTY NOTWITHSTANDING ADMINISTRATIVE ACTION TO GIVE A COLORABLE STATUS OF DUTY. THERE HAVE BEEN MANY CASES IN WHICH THE COURTS HAVE DETERMINED MILITARY STATUS CONTRARY TO THE EXECUTIVE DETERMINATION WHERE MILITARY STATUS WAS MATERIAL TO THE CASE. FOR EXAMPLE, THE FOLLOWING CASES ARE CITED AS TYPICAL OF THE JUDICIAL VIEW: UNITED STATES V. CORSON, 114 U.S. 619, WHERE AN OFFICER WAS "REINSTATED" IN THE ARMY BY THE REVOCATION BY THE PRESIDENT OF A VALID ORDER OF DISMISSAL BY THE PRESIDENT AND IT WAS HELD HE WAS NOT AN OFFICER OF THE ARMY NOTWITHSTANDING EXECUTIVE ACTION IN AND THROUGH THE WAR DEPARTMENT.

MIMMACK V. UNITED STATES, 97 U.S. 426, THE CASE OF AN OFFICER REINSTATED BY THE REVOCATION BY THE PRESIDENT OF THE ACCEPTANCE OF THE OFFICER'S RESIGNATION, WHERE IT WAS HELD HE WAS NOT AN OFFICER OF THE ARMY NOTWITHSTANDING EXECUTIVE ACTION IN AND THROUGH THE WAR DEPARTMENT.

MCELRATH V. UNITED STATES, 102 U.S. 426, WHERE IT WAS HELD THE REVOCATION BY THE SECRETARY OF THE NAVY OF AN ORDER OF DISMISSAL OF AN OFFICER DID NOT CONSTITUTE THE PERSON AN OFFICER.

BLAKE V. UNITED STATES, 103 U.S. 227, WHERE IT WAS HELD NOTWITHSTANDING THE PRESIDENT'S DETERMINATION THAT AN OFFICER OF THE ARMY WAS INSANE WHEN HE SUBMITTED HIS RESIGNATION, THAT THE RESIGNATION WAS THEREFORE VOID AND THE PERSON CONTINUED TO BE AN OFFICER OF THE ARMY, THE PERSON WAS NOT AN OFFICER OF THE ARMY.

UNITED STATES V. SYMONDS, 120 U.S. 46, 49, WHERE IT WAS HELD THAT THE DETERMINATION BY THE SECRETARY OF THE NAVY THAT A PARTICULAR DUTY WAS SHORE DUTY AND NOT SEA DUTY WAS NOT BINDING ON THE COURT, THE COURT REMARKING IN THAT CONNECTION:

* * * BUT THEY (SERVICES AT SEA) ARE TO BE DEEMED SUCH NOT BECAUSE THE SECRETARY OF THE NAVY HAS ANNOUNCED THAT THE DEPARTMENT WILL SO REGARD THEM BUT BECAUSE THEY ARE, IN FACT, SERVICES PERFORMED AT SEA, AND NOT ON SHORE. * * * BUT CONGRESS CERTAINLY DID NOT INTEND TO CONFER AUTHORITY UPON THE SECRETARY OF THE NAVY TO DIMINISH AN OFFICER'S COMPENSATION, AS ESTABLISHED BY LAW, BY DECLARING THAT TO BE SHORE SERVICE WHICH WAS, IN FACT, SEA SERVICE, OR TO INCREASE HIS COMPENSATION BY DECLARING THAT TO BE SEA SERVICE WHICH WAS, IN FACT, SHORE SERVICE. THE AUTHORITY OF THE SECRETARY TO ISSUE ORDERS, REGULATIONS, AND INSTRUCTIONS, WITH THE APPROVAL OF THE PRESIDENT, IN REFERENCE TO MATTERS CONNECTED WITH THE NAVAL ESTABLISHMENT, IS SUBJECT TO THE CONDITION, NECESSARILY IMPLIED, THAT THEY MUST BE CONSISTENT WITH THE STATUTES WHICH HAVE BEEN ENACTED BY CONGRESS IN REFERENCE TO THE NAVY. WE MAY, WITH THE APPROVAL OF THE PRESIDENT, ESTABLISH REGULATIONS IN EXECUTION OF OR SUPPLEMENTARY TO, BUT NOT IN CONFLICT WITH, THE STATUTES DEFINING HIS POWERS OR CONFERRING RIGHTS UPON OTHERS. THE CONTRARY HAS NEVER BEEN HELD BY THE COURT. * *

UNITED STATES V. PERKINS, 116 U.S. 483, WHERE IT WAS HELD THAT NOTWITHSTANDING AN HONORABLE DISCHARGE WAS ISSUED BY THE SECRETARY OF THE NAVY TO A CADET ENGINEER, HE REMAINED AN OFFICER OF THE NAVY AND WAS ENTITLED TO HIS PAY AS A CADET ENGINEER.

RUNKLE V. THE UNITED STATES, 122 U.S. 543, WHERE IT WAS HELD NOTWITHSTANDING A GENERAL ORDER ISSUED BY THE WAR DEPARTMENT (GENERAL ORDER NO. 7, SERIES OF 1873), THAT AN OFFICER HAD BEEN CASHIERED FROM THE MILITARY SERVICE OF THE UNITED STATES, THE OFFICER CONTINUED TO BE AN OFFICER OF THE ARMY.

UNITED STATES V. BARNETTE, 165 U.S. 174, WHERE IT WAS HELD THAT NOTWITHSTANDING ORDERS ISSUED FROM THE NAVY DEPARTMENT ASSIGNING AN OFFICER TO DUTY WHICH THE ORDER DENOMINATED SHORE DUTY, THE DUTY WAS IN FACT SEA DUTY.

BROWN V. UNITED STATES, 41 CT.CLS. 275 AND 515, AFFIRMED 206 U.S. 240, WHERE IT WAS HELD AN OFFICER OF VOLUNTEERS HAD BEEN ILLEGALLY DISCHARGED, THAT IS, THE WAR DEPARTMENT DETERMINED THAT HE WAS NOT AN OFFICER OF THE ARMY AFTER A PARTICULAR DATE, AND THE COURT DETERMINED THAT HE WAS ILLEGALLY DISCHARGED AND ALLOWED PAY TO THE DATE OF MUSTER OUT OF THE REGIMENT AND 2 MONTHS' ADDITIONAL PAY AS HAVING "SERVED STATES," 30 STAT. 784, REMARKING, PAGE 283:

THE GROUND OF HIS DISMISSAL APPEARING ON THE RECORD OF THE DEPARTMENT AS HONORABLE OR DISHONORABLE WOULD NOT AFFECT HIS RIGHT TO RECOVER THE PAY OF WHICH HE HAD BEEN ILLEGALLY DEPRIVED.

UNITED STATES V. GAY, 264 U.S. 353, WHERE NOTWITHSTANDING THE DETERMINATION OF THE NAVY DEPARTMENT THAT A PERSON WAS NOT A RETIRED OFFICER OF THE NAVY (SEE SAME CASE, 57 CT.CLS. 424, AT P. 428) IT WAS HELD SUCH PERSON WAS A RETIRED OFFICER OF THE NAVY AND ENTITLED TO PAY AS SUCH.

THE COURTS REGULARLY DETERMINE WHAT CONSTITUTES TROOPS OF THE UNITED STATES FOR THE PURPOSE OF THE LAND-GRANT ACTS, YET IT WOULD SEEM IF THERE IS ANY QUESTION AS TO WHICH THE WAR DEPARTMENT'S (OR NAVY DEPARTMENT-S) INTERPRETATION MAY BE CONSIDERED FINAL, THE QUESTION OF WHAT CONSTITUTES TROOPS WOULD BE SUCH A QUESTION. ALABAMA GREAT SOUTHERN RAILROAD V. UNITED STATES, 49 CT.CLS. 22; SOUTHERN PACIFIC CO. V. UNITED STATES, 268 U.S. 263, 265; UNITED STATES V. UNION PACIFIC RAILROAD, 249 U.S. 354; UNITED STATES V. LOUISVILLE AND NASHVILLE RAILROAD, 258 U.S. 374; CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD V. UNITED STATES, 58 CT.CLS. 33; OREGON- WASHINGTON RAILROAD V. THE UNITED STATES, 60 CT.CLS. 458; ILLINOIS CENTRAL RAILROAD V. THE UNITED STATES, 62 CT.CLS. 61; LOUISVILLE AND NASHVILLE RAILROAD V. THE UNITED STATES, 62 CT.CLS. 154; SOUTHERN PACIFIC CO. V. UNITED STATES, 285 U.S. 240.

IN ILLINOIS CENTRAL RAILROAD V. UNITED STATES, 52 CT.CLS. 57, IT WAS SAID:

THIS COURT HAS REPEATEDLY PASSED UPON THE EFFECT OF REGULATIONS OF THE EXECUTIVE DEPARTMENTS. IT HAS UNIFORMLY HELD THAT SUCH REGULATIONS COULD ONLY HAVE THE FORCE AND EFFECT OF LAW WHEN THEY ARE NOT IN CONTRAVENTION TO EXISTING LAW AND WHEN THEY ARE PROMULGATED FOR THE PURPOSE OF CARRYING INTO EFFECT THE LAW IN RESPECT TO WHICH THEY WERE PROMULGATED. CITED IN CONNECTION WITH ITS CONCLUSION IN THAT CASE HOLDING AN ARMY REGULATION WAS VOID AS CONTRARY TO LAW ARE SYMOND'S CASE, 21 CT.CLS. 148; ROMERO'S CASE, 24 CT.CLS. 331; LAWREY'S CASE, 32 CT.CLS. 259; DUNLAP'S CASE, 33 CT.CLS. 135; SHERLOCK'S CASE, 43 CT.CLS. 161; FREEMAN'S CASE, 3 HOW. 556; GLAVEY V. UNITED STATES 182 U.S. 595.

IN ATCHISON, TOPEKA AND SANTA FE RAILROAD V. UNITED STATES, 55 CT.CLS. 339, IT WAS SAID:

IT IS FUNDAMENTAL THAT THE POWER TO INCUR LIABILITY OR TO EXPEND MONEY BY OFFICERS OF THE GOVERNMENT MUST BE GIVEN BY LAW. AN OFFICER OF THE GOVERNMENT CANNOT BY PROMULGATING A REGULATION OR CREATING A PRACTICE IN HIS DEPARTMENT INCUR LIABILITY OR TAKE MONEY OUT OF THE TREASURY FOR THE EXPENDITURE OF WHICH THERE HAS BEEN NO APPROPRIATION.

JASPER V. THE UNITED STATES, 38 CT.CLS. 202, AT PAGE 205, WHERE IT WAS CONTENDED BY COUNSEL FOR THE UNITED STATES THAT WHETHER AN OFFICER WHO SERVED IN THE CIVIL WAR WAS ENTITLED TO PROMOTION ON RETIREMENT IN THE NEXT HIGHER GRADE WAS CONCLUSIVELY DETERMINED BY THE FINDING OF A RETIRING BOARD, WHICH WAS APPROVED BY THE SECRETARY OF THE NAVY, BUT THE COURT HELD THE QUESTION "TURNED UPON THE PROPER CONSTRUCTION OF AN ACT OF CONGRESS.'

IN CLOUD V. THE UNITED STATES, 43 CT.CLS. 69, THE COURT OF CLAIMS DETERMINED THE RANK OF AN OFFICER TO BE OTHER THAN DETERMINED BY THE WAR DEPARTMENT. IT WAS STRENUOUSLY ARGUED IN THAT CASE THAT THE EXECUTIVE DETERMINATION, BY OR UNDER THE AUTHORITY OF THE PRESIDENT, WAS CONCLUSIVE ON THE COURT. IN DISCUSSING THE JURISDICTIONAL QUESTION, THE COURT REMARKED, PAGE 85:

* * * AS SAID BY MR. JUSTICE MILLER IN A REVENUE CASE (107 U.S. 411), "IT IS THE LAW WHICH GIVES THE RIGHT; " AND HERE IT IS THE LAW WHICH FIXES THE OFFICER'S STATUS AND CONSEQUENT PAY AND NOT THE RECOMMENDATION OF A RETIRING BOARD, EVEN THOUGH SUPPLEMENTED BY ORDERS WHICH HAVE MET THE APPROVAL OF THE PRESIDENT.

MONTGOMERY V. THE UNITED STATES, 19 CT.CLS. 370, WHERE THE COURT DETERMINED THAT A PERSON REINSTATED IN THE ARMY BY THE REVOCATION OF THE ORDER OF DISMISSAL WAS NOT AN OFFICER OF THE ARMY NOTWITHSTANDING THE ACTION OF THE PRESIDENT, AND REMARKED, PAGE 375:

IT IS TRUE, AS IT IS SAID, THAT BY THE CONSTITUTION THE PRESIDENT HAS COMMAND OF THE ARMY, BUT BY THE SAME INSTRUMENT CONGRESS IS EMPOWERED TO MAKE RULES FOR ITS GOVERNMENT. * * *

MILLER V. THE UNITED STATES, 19 CT.CLS. 338, WHERE IT WAS HELD A PERSON ON THE RETIRED LIST OF THE ARMY WAS NOT A RETIRED OFFICER OF THE ARMY.

BENNETT V. THE UNITED STATES, 19 CT.CLS. 379, AND MCBLAIR V. THE UNITED STATES, 19 CT.CLS. 528, ARE TO THE SAME EFFECT. IN THE LATTER CASE THE COURT USED THE FOLLOWING LANGUAGE AT PAGE 541:

WHILE THE PRESIDENT IS MADE COMMANDER IN CHIEF BY THE CONSTITUTION, CONGRESS HAVE THE RIGHT TO LEGISLATE FOR THE ARMY NOT IMPAIRING HIS EFFICIENCY AS SUCH COMMANDER IN CHIEF, AND WHEN A LAW IS PASSED FOR THE REGULATION OF THE ARMY, HAVING THAT CONSTITUTIONAL QUALIFICATION, HE BECOMES AS TO THAT LAW AN EXECUTIVE OFFICER, AND IS LIMITED IN THE DISCHARGE OF HIS DUTY BY THE STATUTE.

THE DEPARTMENT OF THE SERVICE CALLED "RETIREMENT" IS THE CREATION OF THE STATUTE, AND HE WHO CLAIMS RIGHT IN IT, MUST DEPEND FOR THE MEASURE OF ITS CLAIM, ON THE TERMS OF THE LAW, AND SUCH REASONABLE CONSTRUCTION, AS MAY BE JUSTIFIED BY THE INTENT AND PURPOSE OF THE LEGISLATURE.

IN KNOTE V. THE UNITED STATES, 95 U.S. 149, MR. JUSTICE FIELD, AT PAGE 154, USED THE FOLLOWING LANGUAGE:

* * * SO, ALSO, IF THE PROCEEDS HAVE BEEN PAID INTO THE TREASURY, THE RIGHT TO THEM HAS SO FAR BECOME VESTED IN THE UNITED STATES THAT THEY CAN ONLY BE SECURED TO THE FORMER OWNER OF THE PROPERTY THROUGH AN ACT OF CONGRESS. MONEYS ONCE IN THE TREASURY CAN ONLY BE WITHDRAWN BY AN APPROPRIATION BY LAW. HOWEVER LARGE, THEREFORE, MAY BE THE POWER OF PARDON POSSESSED BY THE PRESIDENT AND HOWEVER EXTENDED MAY BE ITS APPLICATION, THERE IS THE LIMIT TO IT AS THERE IS TO ALL HIS POWERS,--- IT CANNOT TOUCH MONEYS IN THE TREASURY OF THE UNITED STATES, EXCEPT EXPRESSLY AUTHORIZED BY ACT OF CONGRESS. THE CONSTITUTION PLACES THIS RESTRICTION UPON THE PARDONING POWER.

IN BREWINGTON V. THE UNITED STATES, 39 CT.CLS. 399, THE COURT OF CLAIMS DETERMINED THAT AN OFFICER WAS ON DUTY IN THE FIELD CONTRARY TO THE WAR DEPARTMENT REPORTS IN THE MATTER.

IN PECK V. THE UNITED STATES, 39 CT.CLS. 125, IT WAS HELD IN AGREEMENT WITH THE ACCOUNTING OFFICERS AND THE ATTORNEY GENERAL, THAT AN OFFICER (AND INCIDENTALLY AFFECTING SEVERAL OTHER OFFICERS IN THE SAME WAY) NOMINATED TO AND CONFIRMED BY THE SENATE AND RECOGNIZED BY THE NAVY DEPARTMENT IN THE ADVANCED GRADE, WAS NOT AN OFFICER OF THE GRADE TO WHICH SO NOMINATED, CONFIRMED, AND APPOINTED.

IN MOSER V THE UNITED STATES, 42 CT. CLS. 86, THE COURT DETERMINED A RETIRED OFFICER'S RANK TO BE DIFFERENT FROM THAT ASSIGNED TO HIM BY THE NAVY DEPARTMENT.

IN MCGOWAN V. THE UNITED STATES, 36 CT.CLS. 63, IT WAS HELD, QUOTING THE SYLLABUS:

THE SECRETARY OF THE NAVY CANNOT ARBITRARILY CHANGE BY AN ORDER THE CHARACTER OF THE DUTIES TO BE PERFORMED BY A NAVAL OFFICER. BUT THE FACT THAT HE DESIGNATES A MIXED DUTY AS SHORE DUTY IS AN INDICATION OF THE CONSTRUCTION WHICH HE PLACES UPON IT.

IN DOWNES V. THE UNITED STATES, 52 CT.CLS. 237, AT PAGE 239, THE COURT USED THE FOLLOWING LANGUAGE:

THE ACT OF MARCH 4, 1913, SUPRA (37 STAT. 892), PROVIDES THAT WHEN AN OFFICER OF THE NAVY IS ADVANCED IN GRADE OR RANK PURSUANT TO LAW HE SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATE STATED IN HIS COMMISSION. * * * THE COURT HAS NOT HELD, AND DOES NOT NOW HOLD, THAT SAID ACT AUTHORIZES THE FIXING OF A DATE IN THE COMMISSION FROM WHICH THE RANK BEGINS WHICH IS CONTROLLING, ON THE COURT REGARDLESS OF WHETHER THE PROMOTION WAS MADE PURSUANT TO LAW OR NOT. * * *

IN HOOPER V. THE UNITED STATES, 53 CT.CLS. 90, AT PAGE 106, CHIEF JUSTICE CAMPBELL, IN A CONCURRING OPINION, USED THE FOLLOWING LANGUAGE:

HAVING ANNOUNCED IN THE CRAPO CASE, 50 C.CLS. 337 AND THE TOULON AND DOWNES CASES, SUPRA, THAT THE COURT HAD THE RIGHT, AND WOULD EXERCISE IT, TO EXAMINE INTO THE LEGALITY OF PROMOTION IT WAS PLAINLY IMPLIED, AND MAY NOW BE STATED AGAIN, THAT CASES BROUGHT UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913, MUST LARGELY DEPEND UPON THE FACTS OF THE PARTICULAR CASE. PLAINLY THE PLAINTIFF WAS NOT PROMOTED PURSUANT TO LAW UPON THE DATE STATED IN HIS COMMISSION * * *

IN HAWKINS V. THE UNITED STATES, 40 CT.CLS. 110, THE COURT DETERMINED THAT AN OFFICER WAS ENTITLED TO THE RANK AND PAY OF A CAPTAIN, VOLUNTEERS, ALTHOUGH (SEE FINDINGS V) HE WAS RECOGNIZED AND PAID CURRENTLY BY ARMY AUTHORITIES AS A FIRST LIEUTENANT.

IN LAWLESS V. THE UNITED STATES, 59 CT.CLS. 224, IT WAS HELD THAT A PERSON ADMINISTRATIVELY RECOGNIZED AND PAID AS AN OFFICER OF THE NAVY WAS NOT AN OFFICER OF THE NAVY AND IN GARRISON V. THE UNITED STATES, 59 ID. 919, THE COURT HELD THAT AN OFFICER CARRIED ON THE ROLLS OF THE NAVY DEPARTMENT AS A LIEUTENANT (JG) WAS NOT IN FACT AN OFFICER OF THAT RANK.

IN MCLEAN V. THE UNITED STATES, 45 CT.CLS. 95, AT PAGE 100, THE COURT REMARKED:

* * * BUT PAY OF AN OFFICER CAN BE RECOVERED IN THIS COURT NOTWITHSTANDING THE REFUSAL OF THE HEAD OF THE ADMINISTRATIVE DEPARTMENT TO RECOGNIZE THE OFFICER IN HIS OFFICE. (REDGRAVE V. THE UNITED STATES, 20 C.CLS. R. 226; 116 U.S. 474; PERKINS V. THE UNITED STATES, 20 C.CLS. R. 438; 116 U.S. 483.) * * *

OTHER CASES TO THE SAME OR SIMILAR EFFECT COULD BE CITED. IT IS ESTABLISHED BY JUDICIAL DECISIONS THAT THE ACTION OF AN ADMINISTRATIVE OFFICER IN DETERMINING STATUS PRIMA FACIE ENTITLING TO PAY OR ALLOWANCES IS NOT BINDING ON THE COURTS; THAT THE STATUTE AUTHORIZING OR CREATING STATUS OR OFFICE, ITS INTENT, AND THE FACTS OF THE PARTICULAR CASE ARE PROPER FOR THEIR CONSIDERATION. ANY RIGHT ASSERTED AGAINST APPROPRIATED MONEYS IS OPEN TO THE SCRUTINY OF THIS OFFICE TO DETERMINE THAT THE REQUIREMENTS OF THE LAW EXIST, NOTWITHSTANDING ADMINISTRATIVE DETERMINATION IN THE MATTER, UNLESS THE CONGRESS HAS SPECIFICALLY PROVIDED FOR THE FINALITY OF DEPARTMENTAL ACTION OR HAS CONFERRED THE DUTY OF EXAMINATION ON SOME OTHER OFFICE OR OFFICER. ON A REVIEW OF THE SETTLEMENTS, NO ERROR IS PERCEIVED THEREIN, AND THE ACTION TAKEN WILL NOT BE DISTURBED. THE MATTER HAS BEEN GIVEN CAREFUL AND THOROUGH CONSIDERATION ON YOUR REQUEST NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 3 OF GENERAL REGULATIONS NO. 50 OF THIS OFFICE, 5 COMP. GEN. 1058, 1059.