A-47401, FEBRUARY 27, 1933, 12 COMP. GEN. 531

A-47401: Feb 27, 1933

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" IS NOT AVAILABLE TO PAY A RETIRED MEDICAL OFFICER OF THE ARMY THE FEES PRESCRIBED FOR SUCH SERVICES BY PARAGRAPH 3 D (1). 1933: THERE IS FOR CONSIDERATION. BY WHICH WAS DISALLOWED THE CLAIM OF MAJ. WHEN HE WAS APPOINTED A CAPTAIN. THAT HE WAS RETIRED IN THAT GRADE DECEMBER 15. THAT HE WAS ADVANCED TO THE RANK OF MAJOR. IT ALSO APPEARS THAT HE WAS ON ACTIVE DUTY AT PHILADELPHIA. WAS BEING PAID THE ACTIVE DUTY PAY AND ALLOWANCES OF THE GRADE OF CAPTAIN AND HIS LENGTH OF SERVICE WHEN THE ACT OF JULY 14. IN WHICH IT WAS PROVIDED. THE CLAIMANT WAS RELIEVED FROM ACTIVE DUTY AUGUST 15. THE CLAIM HERE UNDER CONSIDERATION IS FOR THE EXAMINATION OF APPLICANTS FOR ENLISTMENT DURING THE PERIOD AUGUST 16 TO 31.

A-47401, FEBRUARY 27, 1933, 12 COMP. GEN. 531

MEDICAL TREATMENT - PHYSICAL EXAMINATION OF RECRUITS - RETIRED MEDICAL OFFICER OF THE ARMY THE APPROPRIATION UNDER "MEDICAL AND HOSPITAL DEPARTMENT, 1933," 47 STAT. 677, BEING AVAILABLE ONLY FOR "THE PAY OF CIVILIAN PHYSICIANS EMPLOYED TO EXAMINE PHYSICALLY APPLICANTS FOR ENLISTMENT AND ENLISTED MEN," IS NOT AVAILABLE TO PAY A RETIRED MEDICAL OFFICER OF THE ARMY THE FEES PRESCRIBED FOR SUCH SERVICES BY PARAGRAPH 3 D (1), ARMY REGULATIONS 40-505.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 27, 1933:

THERE IS FOR CONSIDERATION, ON THE APPLICATION OF THE CLAIMANT FOR REVIEW, THE CORRECTNESS OF SETTLEMENT OF NOVEMBER 30, 1932 (CLAIM NO. 0229256), BY WHICH WAS DISALLOWED THE CLAIM OF MAJ. ALBION MCD. COFFEY, UNITED STATES ARMY, RETIRED, FOR $233 FOR SERVICES RENDERED FROM AUGUST 16 TO 31, 1932, IN CONNECTION WITH THE PHYSICAL EXAMINATION OF APPLICANTS FOR ENLISTMENT IN THE UNITED STATES ARMY.

IT APPEARS FROM THE ARMY REGISTER FOR 1932 THAT THE CLAIMANT SERVED IN THE ARMY AS A CONTRACT SURGEON, AS AN OFFICER OF THE MEDICAL RESERVE CORPS, AS AN OFFICER OF THE MEDICAL SECTION, OFFICERS' RESERVE CORPS, AND IN THE EMERGENCY ARMY DURING THE WORLD WAR, FROM TIME TO TIME FROM MARCH 13, 1900, TO SEPTEMBER 16, 1921, WHEN HE WAS APPOINTED A CAPTAIN, MEDICAL CORPS OF THE REGULAR ARMY; THAT HE WAS RETIRED IN THAT GRADE DECEMBER 15, 1922, UNDER THE ACTS OF JUNE 30, 1922, 42 STAT. 721, AND SEPTEMBER 14, 1922, 42 STAT. 840, AND THAT HE WAS ADVANCED TO THE RANK OF MAJOR, THE HIGHEST RANK HELD BY HIM DURING THE WORLD WAR, UNDER THE PROVISIONS OF THE ACT OF JUNE 21, 1930, 46 STAT. 793, WITHOUT CHANGE IN PAY OR ALLOWANCES EITHER ON THE ACTIVE OR RETIRED LIST.

IT ALSO APPEARS THAT HE WAS ON ACTIVE DUTY AT PHILADELPHIA, PRESUMABLY IN CONNECTION WITH THE RECRUITING STATION THERE, AND WAS BEING PAID THE ACTIVE DUTY PAY AND ALLOWANCES OF THE GRADE OF CAPTAIN AND HIS LENGTH OF SERVICE WHEN THE ACT OF JULY 14, 1932, THE ANNUAL APPROPRIATION ACT FOR THE ARMY FOR THE FISCAL YEAR 1933, 47 STAT. 665, BECAME LAW, AND WHICH DID NOT CARRY ANY FUNDS SPECIFICALLY FOR PAY AND ALLOWANCES OF RETIRED OFFICERS ON ACTIVE DUTY, AND IN WHICH IT WAS PROVIDED, PAGE 689:

THAT HEREAFTER ARLINGTON NATIONAL CEMETERY SHALL BE ADMINISTERED BY AN OFFICER OF THE ARMY RETIRED FROM ACTIVE SERVICE UNDER THE PROVISIONS OF SECTION 1251, REVISED STATUTES, DETAILED ON ACTIVE DUTY FOR THAT PURPOSE, AND, IN ADDITION, ONE RETIRED OFFICER MAY BE CONTINUED ON ACTIVE DUTY IN THE OFFICE OF THE CHIEF OF FINANCE, AND THE APPROPRIATION CONTAINED IN THIS ACT FOR "PAY, AND SO FORTH, OF THE ARMY," SHALL BE AVAILABLE FOR INCREASED PAY AND ALLOWANCES TO OTHER RETIRED OFFICERS AND ENLISTED MEN NOW ON ACTIVE DUTY TO AUGUST 15, 1932, INCLUSIVE.

PURSUANT TO THIS PROVISION, THE CLAIMANT WAS RELIEVED FROM ACTIVE DUTY AUGUST 15, 1932.

THE CLAIM HERE UNDER CONSIDERATION IS FOR THE EXAMINATION OF APPLICANTS FOR ENLISTMENT DURING THE PERIOD AUGUST 16 TO 31, 1932, AND IS PRESENTED FOR PAYMENT UNDER THE APPROPRIATION "MEDICAL AND HOSPITAL DEPARTMENT" AS MADE IN THE ARMY APPROPRIATION ACT FOR THE FISCAL YEAR 1933, 47 STAT. 677, AND THE PROVISIONS OF ARMY REGULATIONS AUTHORIZING PAYMENT TO CIVILIAN PHYSICIANS FOR THE PHYSICAL EXAMINATION OF APPLICANTS FOR ENLISTMENT. THE APPROPRIATION UNDER "MEDICAL AND HOSPITAL DEPARTMENT" IS SPECIFICALLY MADE AVAILABLE FOR---

THE PAY OF CIVILIAN PHYSICIANS EMPLOYED TO EXAMINE PHYSICALLY APPLICANTS FOR ENLISTMENT AND ENLISTED MEN AND TO RENDER OTHER PROFESSIONAL SERVICES FROM TIME TO TIME UNDER PROPER AUTHORITY; * * *.

IN PARAGRAPH 3 OF ARMY REGULATIONS 40-505 ARE ESTABLISHED REGULATIONS FOR "CIVILIAN MEDICAL ATTENDANCE FOR MILITARY PATIENTS" AND SUBPARAGRAPH D (1) THEREOF PROVIDES:

THE COMPENSATION ALLOWED TO CIVILIAN PHYSICIANS FOR THE PHYSICAL EXAMINATION OF APPLICANTS FOR ENLISTMENT, WHEN SUCH EXAMINATIONS ARE AUTHORIZED BY REGULATIONS OR ORDERS, WILL NOT EXCEED THE FOLLOWING RATES: FOR SINGLE EXAMINATIONS $2, AND $1 FOR EACH ADDITIONAL EXAMINATION MADE ON THE SAME DAY. A PHYSICIAN EMPLOYED AT DIFFERENT RECRUITING STATIONS WILL BE ALLOWED THESE RATES IN FULL FOR THE EXAMINATIONS AT EACH STATION. * *

THE CLAIM, STATED IN THE FORM OF A VOUCHER, WAS FORWARDED FROM THE ARMY RECRUITING STATION, 261 NORTH BROAD STREET, PHILADELPHIA, AND IS CERTIFIED CORRECT "THAT THE MEN EXAMINED WERE APPLICANTS FOR ENLISTMENT" "AND THAT THE SERVICES OF A MEDICAL OFFICER OR CONTRACT SURGEON OF THE ARMY COULD NOT BE OBTAINED BECAUSE NONE WERE AVAILABLE. AUTHORITY PAR. 3 D (1) A.R. 40-505," AND "GENERAL AUTHORITY: LTR AGO OCT. 24, 1921" BY COL. F. G. TURNER, CAVALRY, DOL. RECRUITING OFFICER. THE ORDER OF OCTOBER 24, 1921, CITED, WAS ISSUED BY THE ADJUTANT GENERAL OF THE ARMY, AND IS AS FOLLOWS:

1. AT POSTS, CAMPS, OR STATIONS WHERE NO MEDICAL OFFICERS ARE STATIONED OR AVAILABLE IN THE IMMEDIATE VICINITY FOR THAT PURPOSE THE EMPLOYMENT OF A CIVILIAN PHYSICIAN FOR THE PURPOSE OF MAKING THE NECESSARY PHYSICAL EXAMINATION OF APPLICANTS FOR ENLISTMENT AND REENLISTMENT IS AUTHORIZED AT A COST NOT TO EXCEED TWO DOLLARS ($2.00) FOR A SINGLE PHYSICAL EXAMINATION AND SUCH AMOUNT AS MAY BE DEEMED ADVISABLE BUT NOT TO EXCEED ONE DOLLAR ($1.00) FOR EACH ADDITIONAL EXAMINATION THAT MAY BE MADE ON THE SAME DAY. WHERE A PHYSICAL EXAMINATION UPON DISCHARGE IS REQUIRED UNDER EXISTING INSTRUCTIONS AND A MEDICAL OFFICER IS NOT AVAILABLE FOR THE PURPOSE THE EMPLOYMENT OF A CIVILIAN PHYSICIAN UNDER THIS AUTHORITY IN THE CASE OF IMMEDIATE REENLISTMENT WILL BE MADE FOR BOTH DISCHARGE AND REENLISTMENT, ONE EXAMINATION TO SERVE FOR BOTH PURPOSES. ATTENTION IS INVITED TO THE PARTICULAR ADVANTAGE OF THIS AUTHORITY IN THE CASES OF R.O.T.C. ENLISTED MEN.

2. VOUCHERS WILL BE PREPARED ON FORM NO. 354, AND FORWARDED TO THE OFFICE OF THE SURGEON GENERAL FOR SETTLEMENT.

3. THE EMPLOYMENT AS CIVILIAN PHYSICIANS, UNDER THIS AUTHORITY, OF MEDICAL RESERVE CORPS OFFICERS INACTIVE IS PREFERRED.

THE SURGEON OF THE THIRD CORPS AREA, TO WHOM THE VOUCHER WAS SUBMITTED, TRANSMITTED IT TO THE SURGEON GENERAL OF THE ARMY WITH THE STATEMENT:

I KNOW OF NO AUTHORITY IN LAW FOR THE EMPLOYMENT OF A RETIRED OFFICER ON THIS DUTY. ON THE CONTRARY THERE IS A POSITIVE PROHIBITION IN THE LAW PASSED IN THE LAST SESSION OF CONGRESS.

THE MATTER WAS SUBMITTED FOR DIRECT SETTLEMENT BY THIS OFFICE AND WAS DISALLOWED ON THE SUPPOSED GROUND THAT PAYMENT WAS PROHIBITED UNDER SECTION 212 OF THE ECONOMY ACT, 47 STAT. 406. WHETHER THE CASE COMES WITHIN THE PROVISIONS OF THAT LAW CAN NOT BE ASCERTAINED FROM THE PAPERS SUBMITTED. WHAT THE TERMS OF THE EMPLOYMENT, INFORMAL OR FORMAL, BETWEEN THE RECRUITING OFFICER AND THE CLAIMANT MAY HAVE BEEN ARE NOT SUBMITTED, AND WHETHER SUCH ARRANGEMENT RESULTED IN CLAIMANT HOLDING A "POSITION" UNDER THE UNITED STATES WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT CAN NOT BE DETERMINED. BUT, INDEPENDENTLY OF THAT STATUTE, THE CLAIM MAY NOT BE ALLOWED UNDER THE APPROPRIATION CITED. THAT APPROPRIATION IS AVAILABLE ONLY FOR THE PAYMENT OF ,CIVILIAN PHYSICIANS.' A RETIRED ARMY OFFICER IS NOT A CIVILIAN. SEE SECTION 2 OF THE NATIONAL DEFENSE ACT, AS AMENDED JUNE 4, 1920, 41 STAT. 759; SECTION 1256, REVISED STATUTES; BADEAU V. UNITED STATES, 130 U.S. 439; IN RE TYLER'S MOTION, 18 C.CLS., 25; IN RE WINTHROP, 31 C.CLS. 35. THE CONGRESS HAS NOT MADE AN APPROPRIATION UNDER "MEDICAL AND HOSPITAL DEPARTMENT," OR OTHERWISE, TO EMPLOY RETIRED MEDICAL OFFICERS OF THE ARMY TO EXAMINE APPLICANTS FOR ENLISTMENT DURING THE PERIOD SUBSEQUENT TO AUGUST 15, 1932.