A-41319, APRIL 1, 1932, 11 COMP. GEN. 367

A-41319: Apr 1, 1932

Additional Materials:

Contact:

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

 

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

MEDICAL TREATMENT - NAVAL RESERVE A MEMBER OF THE NAVAL RESERVE MAY NOT BE FURNISHED CIVILIAN HOSPITAL OR MEDICAL SERVICE AT GOVERNMENT EXPENSE UNLESS HE IS ON ACTIVE DUTY AT A PLACE WHERE GOVERNMENT FACILITIES FOR FURNISHING HIM HOSPITAL AND MEDICAL SERVICES ARE NOT AVAILABLE. PURPORTING TO PLACE A MEMBER OF THE NAVAL RESERVE WHO IS ILL AND INCAPABLE OF PERFORMING SERVICE . THE UNITED STATES IS NOT OBLIGATED FOR THE EXPENSE OF SUCH TREATMENT. 1932: THERE IS FOR CONSIDERATION THE LEGALITY OF PROPOSED PAYMENTS OF VOUCHERS SUBMITTED BY THE BUREAU OF MEDICINE AND SURGERY. IN ACCORDANCE WITH AUTHORITY GRANTED IN REFERENCE (A) YOU ARE HEREBY RECALLED TO ACTIVE DUTY WITHOUT PAY. REFERENCE (A) AUTHORIZING YOUR RECALL TO ACTIVE DUTY WITHOUT PAY IS QUOTED HEREWITH: "6520.

A-41319, APRIL 1, 1932, 11 COMP. GEN. 367

MEDICAL TREATMENT - NAVAL RESERVE A MEMBER OF THE NAVAL RESERVE MAY NOT BE FURNISHED CIVILIAN HOSPITAL OR MEDICAL SERVICE AT GOVERNMENT EXPENSE UNLESS HE IS ON ACTIVE DUTY AT A PLACE WHERE GOVERNMENT FACILITIES FOR FURNISHING HIM HOSPITAL AND MEDICAL SERVICES ARE NOT AVAILABLE. ORDERS OF THE DISTRICT COMMANDER, ISSUED PURSUANT TO AUTHORITY OF THE BUREAU OF NAVIGATION, PURPORTING TO PLACE A MEMBER OF THE NAVAL RESERVE WHO IS ILL AND INCAPABLE OF PERFORMING SERVICE ,ON ACTIVE DUTY WITHOUT PAY" AT A CIVILIAN HOSPITAL FOR THE PURPOSE OF RECEIVING MEDICAL AND HOSPITAL TREATMENT THEREIN, DO NOT PLACE SUCH MEMBER ON ACTIVE DUTY WITHIN THE MEANING AND INTENT OF THE STATUTE, AND THE UNITED STATES IS NOT OBLIGATED FOR THE EXPENSE OF SUCH TREATMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 1, 1932:

THERE IS FOR CONSIDERATION THE LEGALITY OF PROPOSED PAYMENTS OF VOUCHERS SUBMITTED BY THE BUREAU OF MEDICINE AND SURGERY, NAVY DEPARTMENT, FOR PREAUDIT, REPRESENTING EXPENSES FOR CIVILIAN HOSPITAL TREATMENT AND PROFESSIONAL SERVICES RENDERED MAX HARMON CONNELLY, F-3C (F-1), U.S.N.R., FOR THE PERIOD OCTOBER 20 TO NOVEMBER 5, 1931, UNDER AUTHORITY OF ORDERS OF THE COMMANDANT OF THE NINTH NAVAL DISTRICT, DATED OCTOBER 20, 1931, AS FOLLOWS:

FROM: COMMANDANT, NINTH NAVAL DISTRICT.

TO: CONNELLY, MAX HARMON, F3C, F-1, 409-46-10.

ST. ANTHONY HOSPITAL, MICHIGAN CITY, INDIANA.

SUBJECT: ACTIVE DUTY, WITHOUT PAY.

REFERENCE: (A) NUNAV DESPATCH 6520, 1430, OF 20 OCTOBER, 1931.

1. IN ACCORDANCE WITH AUTHORITY GRANTED IN REFERENCE (A) YOU ARE HEREBY RECALLED TO ACTIVE DUTY WITHOUT PAY, COMMENCING 20 OCTOBER, 1931, FOR PURPOSES OF HOSPITALIZATION AT ST. ANTHONY'S HOSPITAL, MICHIGAN CITY, INDIANA. REFERENCE (A) AUTHORIZING YOUR RECALL TO ACTIVE DUTY WITHOUT PAY IS QUOTED HEREWITH: "6520. YOUR 6019, 1420, COMMANDANT AUTHORIZED RECALL MAX. H. CONNELLY, FIREMAN THIRD NAVAL RESERVE TO ACTIVE DUTY WITHOUT PAY AT ST. ANTHONY HOSPITAL, MICHIGAN CITY, FOR PURPOSE OF HOSPITALIZATION AT GOVERNMENT EXPENSE, 1430.'

2. UPON COMPLETION OF YOUR HOSPITALIZATION AT ST. ANTHONY'S HOSPITAL, MICHIGAN CITY, INDIANA, YOU WILL BE RELEASED FROM ACTIVE DUTY WITHOUT PAY.

3. NO TRANSPORTATION OR SUBSISTENCE INVOLVED IN CONNECTION WITH THESE ORDERS.

D. W. BAGLEY, ACTING.

ON THE SAME DATE THE COMMANDING OFFICER OF THE NINETEENTH DIVISION, UNITED STATES NAVAL RESERVES, MICHIGAN CITY, IND., ADDRESSED A LETTER TO THE SUPERINTENDENT OF ST. ANTHONY'S HOSPITAL, MICHIGAN CITY, IND., REQUESTING THAT INSTITUTION TO FURNISH CONNELLY WITH "SUCH TREATMENT AS MAY BE NECESSARY.' THE SAME OFFICER ALSO REQUESTED DR. RUSSELL A. GILMORE AND EMILY MOLZEN, REGISTERED NURSE, TO RENDER CONNELLY PROFESSIONAL TREATMENT AND CARE WHILE IN SAID HOSPITAL, AND AUTHORIZED THE HUMMER MORTUARY, OF THE SAME CITY, TO CONVEY CONNELLY IN AN INVALID COACH FROM HIS HOME TO THE HOSPITAL AND UPON HIS RECOVERY TO CONVEY HIM FROM THE HOSPITAL TO HIS HOME. IT APPEARS FROM THE RECORD THAT CONNELLY ENTERED ST. ANTHONY'S HOSPITAL ON OCTOBER 10, 1931. THERE IS WITH THE PAPERS A MEDICAL REPORT STATING THAT CONNELLY'S ILLNESS WAS DIAGNOSED AS TYPHOID FEVER, WITH WHICH HE WAS INFECTED WHILE ON ACTIVE DUTY DURING THE PERIOD AUGUST 8 TO 22, 1931.

THE VOUCHERS IN QUESTION REPRESENT PAYMENTS AS FOLLOWS:

TABLE

TO ST. ANTHONY'S HOSPITAL ---------------------------- $ 224.30

DR. RUSSELL A. GILMORE ---------------------------- 170.00

EMILY MOLZEN, NURSE ------------------------------- 203.00

HUMMER MORTUARY ----------------------------------- 10.00

TOTAL --------------------------------------- 607.30

ALL APPROVED BY THE BUREAU OF MEDICINE AND SURGERY TO BE PAID FROM NAVAL HOSPITAL FUND.

THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, CREATING THE NAVAL RESERVE AS A COMPONENT PART OF THE UNITED STATES NAVY, PROVIDES:

SEC. 10. OFFICERS AND MEN OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY, AUTHORIZED TRAINING DUTY, WITH OR WITHOUT PAY, DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, DRILL, OR INSTRUCTION, OR DURING SUCH TIME AS THEY MAY BE LAW BE REQUIRED TO PERFORM ACTIVE DUTY IN ACCORDANCE WITH THEIR OBLIGATIONS, OR WHILE WEARING A UNIFORM PRESCRIBED FOR THE NAVAL RESERVE, SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY: * * *

SEC. 11. * * * WARRANT OFFICERS AND MEN OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE

THE MANUAL OF THE MEDICAL DEPARTMENT, UNITED STATES NAVY, PROVIDES---

3168. ON ACTIVE DUTY; ENTITLED TO MEDICAL TREATMENT.--- MEMBERS OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY BEING SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE REGULAR NAVY AND BEING ENTITLED TO THE SAME PAY AND ALLOWANCES, ARE SUBJECT TO THE 20 CENT DEDUCTION AUTHORIZED BY SECTION 4808, REVISED STATUTES (HOSPITAL TAX), AND ARE ENTITLED TO MEDICAL TREATMENT UNDER THE SAME CONDITIONS AS MEMBERS OF THE REGULAR NAVY. (3 COMP. GEN. 301; 4 COMP. GEN. 783; 4 COMP. GEN. 1005.)

3169. INACTIVE; NOT ENTITLED TO TREATMENT.--- WHILE IN AN INACTIVE STATUS, MEMBERS OF THE NAVAL RESERVE (WITH THE EXCEPTION NEXT NOTED) ARE NOT ENTITLED TO MEDICAL OR HOSPITAL TREATMENT. (4 COMP. GEN. 934.)

3170. ENLISTED MEN, CLASSED F-3, F-4, AND F-5, TREATMENT.--- ENLISTED MEN OF CLASSES F-3, F-4, AND F-5, ON INACTIVE DUTY, ARE ENTITLED TO NAVAL- HOSPITAL TREATMENT AND TO MEDICAL TREATMENT WHENEVER THEY RESIDE IN LOCALITIES WHERE MEDICAL OFFICERS OF THE NAVY ARE ON DUTY. SUCH TREATMENT WILL BE GIVEN UNDER THE SAME LOCAL RULES AS APPLY TO THE TREATMENT OF ENLISTED PERSONNEL OF THE NAVY. (NAVAL RESERVE REGULATIONS, H 1515.) THEY ARE NOT ENTITLED TO TREATMENT BY OTHER THAN NAVAL MEDICAL OFFICERS OR IN OTHER THAN NAVAL HOSPITALS. WHEN ADMITTED TO A NAVAL HOSPITAL, RATION NOTICES WILL BE EXECUTED PROMPTLY AND IN THE SAME MANNER AS FOR RETIRED ENLISTED MEN. THESE NOTICES WILL BE MAILED TO THE BUREAU OF SUPPLIES AND ACCOUNTS (RETAINER-PAY DIVISION). ENLISTED MEN OF CLASSES F-3, F-4, AND F -5 ARE NOT ENTITLED TO RATIONS OR SUBSISTENCE AT THE EXPENSE OF THE GOVERNMENT WHEN ININACTIVE STATUS. (COMP. GEN. JUNE 19, 1926.)

3171. TREATMENT BY OTHER THAN NAVY FACILITIES, OR BEYOND ACTIVE DUTY PERIOD.--- WHEN MEDICAL OFFICERS AND MEDICAL FACILITIES OF THE NAVY ARE NOT AVAILABLE, TREATMENT MAY BE PROCURED FROM SOURCES OUTSIDE OF THE NAVY EXTENDING ONLY DURING THE PERIOD THE RESERVIST HAS BEEN ORDERED TO CONTINUE ON ACTIVE DUTY. NO EXPENSE FOR HIS CARE AND TREATMENT (FOR DISABILITY OTHER THAN INJURY IN THE LINE OF DUTY) WILL BE PAID BY THE GOVERNMENT AFTER THE EXPIRATION OF THE PERIOD OF ACTIVE DUTY. (COMP. GEN. AUG. 5, 1926, NO. A-14470.) WHEN THE DISABILITY OF A RESERVIST (OTHER THAN INJURY), INCURRED WHILE ON ACTIVE DUTY, NECESSITATES HIS RETENTION IN NAVAL OR OTHER HOSPITAL BEYOND THE PERIOD OF ACTIVE DUTY, THE FACTS WILL BE REPORTED TO THE BUREAU BY DISPATCH.

3172. ON DETACHED ACTIVE DUTY.--- IN THE CASES OF RESERVISTS ON ACTIVE DUTY AT RADIO STATIONS, OR AS SHIP KEEPERS, OR AT OUTLYING STATIONS, THEY ARE ENTITLED TO THE SAME MEDICAL TREATMENT AS WOULD BE PERSONNEL OF THE REGULAR NAVY, AND IT IS COMPETENT FOR THE DISTRICT MEDICAL OFFICER, WITH THE COMMANDANT'S APPROVAL, TO AUTHORIZE SUCH TREATMENT AS MAY BE REQUIRED; AND IF THERE BE NO NAVAL HOSPITAL OR MEMBER OF THE MEDICAL CORPS OF THE NAVY AVAILABLE, TO AUTHORIZE SUCH SERVICES BEING RENDERED BY A CIVILIAN PHYSICIAN OR HOSPITAL. (S.O. NO. 28550-1399: 9-K, FEBRUARY 24, 1926.)

CONNELLY'S STATUS UNDER THESE ORDERS IS SIMILAR TO THAT OF THE OFFICER CONSIDERED IN MORROW V. UNITED STATES, 65 CT.CLS. 35. LIEUTENANT MORROW WAS ON LEAVE AT HIS HOME WHEN HE ENTERED A PRIVATE HOSPITAL AT DURHAM, N.C. UPON BEING NOTIFIED OF THIS FACT HIS COMMANDING OFFICER IMMEDIATELY CANCELED HIS LEAVE OF ABSENCE AND DIRECTED THAT HE BE GIVEN HOSPITAL CARE AND THE BUREAU OF NAVIGATION ORDERED HIM TO CONTINUE TREATMENT IN THE CIVILIAN HOSPITAL. RELATIVE TO THE EFFECT OF SAID ORDERS ON MORROW'S DUTY STATUS THE COURT SAID:

* * * IN ORDER TO BE ENTITLED TO REIMBURSEMENT IN THIS CASE IT MUST BE SHOWN THAT PLAINTIFF WAS IN A DUTY STATUS. ON AND AFTER APRIL 27, 1925, WHEN PLAINTIFF LEFT THE NORFOLK NAVAL HOSPITAL, HE WAS ON LEAVE OF ABSENCE, AND WAS ACTUALLY ABSENT FROM HIS STATION OR POST OF DUTY. THE MERE CANCELLATION OF THE LEAVE OF ABSENCE ON APRIL 30, 1925, COULD NOT REASONABLY BE CONSTRUED AS RESTORING THE DUTY STATUS. THE LANGUAGE OF THE STATUTE IS PLAIN AND FREE FROM AMBIGUITY. ITS PURPOSE AND INTENTION ARE EQUALLY CLEAR. 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 SERVICE. 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 THE 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. CONSCIOUS OF THE IMMINENT NEED FOR MEDICINES AND MEDICAL TREATMENT, AND CHARGEABLE WITH A KNOWLEDGE OF THE LAW AND REGULATIONS AFFECTING HIS RIGHTS IN THE PREMISES, HE VOLUNTARILY REMOVED HIMSELF FROM A NAVAL HOSPITAL WHERE EVERY REASONABLE FACILITY FOR HIS TREATMENT OBTAINED AND WENT TO HIS HOME AT MEBANE, N.C., BEYOND THE REACH OF THE MEDICAL OFFICERS AND THE MEDICAL SUPPLIES OF THE NAVY. PLAINTIFF'S CLAIM DOES NOT COME WITHIN THE MEANING AND INTENT OF THE STATUTE, AND HE IS NOT ENTITLED TO RECOVER, * * *.

THE RULE APPLIED BY THE COURT IN THE MORROW CASE APPLIES WITH EQUAL FORCE IN THIS CASE. TO BE ENTITLED TO THE HOSPITAL AND MEDICAL TREATMENT IN QUESTION CONNELLY MUST HAVE BEEN ON ACTIVE DUTY AT A PLACE WHERE GOVERNMENT FACILITIES FOR FURNISHING SUCH SERVICE WERE NOT AVAILABLE. CONNELLY WAS NOT ON DUTY WHEN HE ENTERED THE HOSPITAL AND WHEN THE ORDERS WERE ISSUED PURPORTING TO PLACE HIM ON DUTY WITHOUT PAY HE WAS ILL AND INCAPABLE OF PERFORMING SERVICE. IN CONTEMPLATION OF THE LAW, ACTIVE DUTY "WITHOUT PAY" IS NO LESS DUTY THAN ACTIVE DUTY "WITH PAY.' IN EITHER CASE THERE MUST BE A REPORTING FOR ACTUAL DUTY. IN SO FAR AS THESE ORDERS CONTEMPLATED PERFORMANCE OF ACTUAL DUTY THEY ARE A MERE FICTION, AND CONNELLY'S INACTIVE STATUS WAS NOT CHANGED THEREBY. SINCE HE WAS NOT ON DUTY WHEN THE TREATMENT IN QUESTION WAS FURNISHED THERE IS NO AUTHORITY OF LAW OR REGULATIONS TO PAY THE VOUCHERS IN QUESTION.