A-6622, DECEMBER 18, 1924, 4 COMP. GEN. 545

A-6622: Dec 18, 1924

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PAY AND ALLOWANCES OF NATIONAL GUARD OFFICERS ATTENDING SERVICE SCHOOLS AN OFFICER OF THE NATIONAL GUARD ORDERED TO THE ARMY WAR COLLEGE FOR A COURSE OF INSTRUCTION IS NOT ENTITLED WHILE SICK IN THE HOSPITAL TO PAY. AS HE WAS NOT "IN ACTUAL ATTENDANCE AT SUCH SCHOOL" WITHIN THE MEANING OF SECTION 99 OF THE ACT OF JUNE 3. MIGHT HAVE BEEN INJURED WHILE ATTENDING SERVICE SCHOOLS AND RECOVERED THEREFROM. WHEREIN CREDIT WAS DISALLOWED IN HIS ACCOUNTS FOR $404 PAID TO MAJ. WHILE THE OFFICER WAS SICK IN HOSPITAL. IT APPEARS THAT MAJOR KNOX IS MARRIED AND THAT HE WAS PAID RENTAL ALLOWANCE AT THE RATE OF $100 A MONTH. SHOULD HAVE BEEN ONLY $50.40 INSTEAD OF $54 AS PAID. THE QUESTION PRESENTED IS WHETHER MAJOR KNOX WAS ENTITLED TO ANY PAY OR ALLOWANCES DURING THE MONTH OF FEBRUARY.

A-6622, DECEMBER 18, 1924, 4 COMP. GEN. 545

PAY AND ALLOWANCES OF NATIONAL GUARD OFFICERS ATTENDING SERVICE SCHOOLS AN OFFICER OF THE NATIONAL GUARD ORDERED TO THE ARMY WAR COLLEGE FOR A COURSE OF INSTRUCTION IS NOT ENTITLED WHILE SICK IN THE HOSPITAL TO PAY, OR RENTAL AND SUBSISTENCE ALLOWANCES, NOTWITHSTANDING HE CONTINUED HIS STUDIES WHILE IN THE HOSPITAL AND SATISFACTORILY COMPLETED THE COURSE, AS HE WAS NOT "IN ACTUAL ATTENDANCE AT SUCH SCHOOL" WITHIN THE MEANING OF SECTION 99 OF THE ACT OF JUNE 3, 1916, 39 STAT. 207, AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1035. SECTION 4 OF THE ACT OF JUNE 3, 1924, 43 STAT. 364, DOES NOT AUTHORIZE PAY AND ALLOWANCES RETROACTIVELY TO THOSE OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD WHO, PRIOR TO THE DATE OF ITS ENACTMENT, MIGHT HAVE BEEN INJURED WHILE ATTENDING SERVICE SCHOOLS AND RECOVERED THEREFROM, AS THE VALIDATING CLAUSE INCLUDES ONLY EXPENDITURES MADE FOR MEDICAL AND HOSPITAL TREATMENT FOR OFFICERS OR ENLISTED MEN INJURED.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 18, 1924:

JOSEPH V. SCHUR, UNITED STATES PROPERTY AND DISBURSING OFFICER FOR THE STATE OF OREGON, HAS APPLIED FOR REVIEW OF SETTLEMENT NO. M-1921-W, DATED OCTOBER 18, 1923, WHEREIN CREDIT WAS DISALLOWED IN HIS ACCOUNTS FOR $404 PAID TO MAJ. ROY R. KNOX, ORDNANCE DEPARTMENT, OREGON NATIONAL GUARD, AS PAY AND RENTAL AND SUBSISTENCE ALLOWANCES FOR THE PERIOD FEBRUARY 1 TO 28, 1923, WHILE THE OFFICER WAS SICK IN HOSPITAL.

IT APPEARS THAT MAJOR KNOX IS MARRIED AND THAT HE WAS PAID RENTAL ALLOWANCE AT THE RATE OF $100 A MONTH, SUBSISTENCE ALLOWANCE AT THE RATE OF $1.80 A DAY FOR 30 DAYS, AND PAY AT THE RATE OF $250 AT MONTH. THE MONTH OF FEBRUARY, 1923, HAD 28 DAYS AND THE SUBSISTENCE ALLOWANCE, IF PROPER IN HIS CASE, SHOULD HAVE BEEN ONLY $50.40 INSTEAD OF $54 AS PAID.

THE QUESTION PRESENTED IS WHETHER MAJOR KNOX WAS ENTITLED TO ANY PAY OR ALLOWANCES DURING THE MONTH OF FEBRUARY, 1923.

BY SPECIAL ORDERS NO. 116, DATED ADJUTANT GENERAL'S OFFICE, SALEM, OREG., DECEMBER 21, 1922, MAJOR KNOX WAS ORDERED TO PROCEED FROM OREGON TO WASHINGTON, D.C., TO ATTEND THE G-4 COURSE, ARMY WAR COLLEGE, FOR THE TERM JANUARY 11 TO FEBRUARY 27, 1923, AND UPON COMPLETION OF THIS DUTY TO RETURN TO THIS PROPER STATION. PURSUANT TO THIS ORDER, MAJOR KNOX REPORTED FOR DUTY AT THE ARMY WAR COLLEGE ON JANUARY 11, 1923, BUT FROM JANUARY 30 TO FEBRUARY 28, 1923, HE WAS SICK IN THE ALTER REED GENERAL HOSPITAL AT WASHINGTON, D.C., WHERE HE WAS OPERATED UPON FOR AN ACUTE ATTACK OF APPENDICITIS. THE MEDICAL OFFICER STATED THAT THE CONDITION AROSE WITHIN THE FEW DAYS JUST PRIOR TO REPORTING SICK, AND WHILE ATTENDING THE COURSE AT THE ARMY WAR COLLEGE.

MAJOR KNOX STATES THAT THREE DAYS AFTER THE OPERATION FOR APPENDICITIS, WITH THE ASSISTANCE OF MAJOR MILLS, ANOTHER NATIONAL GUARD OFFICER TAKING THE SAME COURSE, HE RESUMED THE WORK BEING CARRIED ON AT THE COLLEGE BY READING ALL THE LECTURES AND GETTING ALL OTHER INFORMATION AND DATA THROUGH MAJOR MILLS, AND THAT UPON HIS RELEASE FROM THE HOSPITAL HE REQUESTED THAT HE BE GIVEN AN EXAMINATION IN ORDER TO SECURE CREDIT FOR THE WORK, BUT THAT HE WAS INFORMED AN EXAMINATION WAS UNNECESSARY, AND THAT WITHOUT AN EXAMINATION HE WAS GIVEN A CERTIFICATE FROM THE COLLEGE STATING THAT HE HAD SATISFACTORILY COMPLETED THE G-4 COURSE FOR 1923.

SECTION 99 OF THE ACT OF JUNE 3, 1916, 39 STAT. 207, AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1035, PROVIDES:

NATIONAL GUARD OFFICERS AND MEN AT SERVICE SCHOOLS, AND SO FORTH: UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE SECRETARY OF WAR MAY, UPON THE RECOMMENDATION OF THE GOVERNOR OF ANY STATE OR TERRITORY OR THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, AUTHORIZE A LIMITED NUMBER OF SELECTED OFFICERS OR ENLISTED MEN OF THE NATIONAL GUARD TO ATTEND AND PURSUE A REGULAR COURSE OF STUDY AT ANY MILITARY SERVICE SCHOOL OF THE UNITED STATES , EXCEPT THE UNITED STATES MILITARY ACADEMY, OR TO BE ATTACHED TO AN ORGANIZATION OF THE SAME ARM, CORPS, OR DEPARTMENT TO WHICH SUCH OFFICER OR ENLISTED MAN SHALL BELONG, FOR ROUTINE PRACTICAL INSTRUCTION AT OR NEAR AN ARMY POST DURING A PERIOD OF FIELD TRAINING OR OTHER OUTDOOR EXERCISES; AND ANY SUCH OFFICER SHALL RECEIVE OUT OF ANY NATIONAL GUARD ALLOTMENT OF FUNDS AVAILABLE FOR THE PURPOSE, THE PAY AND ALLOWANCES PROVIDED IN THE PAY READJUSTMENT ACT OF JUNE 10, 1922, FOR OFFICERS OF THE NATIONAL GUARD WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY AND THE TRAVEL ALLOWANCES PROVIDED IN SECTION 12 THEREOF, AND ANY SUCH ENLISTED MAN SHALL RECEIVE THEREFROM, EXCEPT AS OTHERWISE PROVIDED IN SECTION 14 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, THE SAME PAY AND ALLOWANCES, INCLUDING ALLOWANCES FOR QUARTERS, SUBSISTENCE, AND TRAVEL TO WHICH AN ENLISTED MAN OF THE REGULAR ARMY OF LIKE GRADE WOULD BE ENTITLED FOR ATTENDING SUCH SCHOOL, COLLEGE, OR PRACTICAL COURSE OF INSTRUCTION UNDER ORDERS FROM PROPER MILITARY AUTHORITY, WHILE IN ACTUAL ATTENDANCE AT SUCH SCHOOL, COLLEGE, OR PRACTICAL COURSE OF INSTRUCTION, AND FOR THE NECESSARY PERIOD OF TRAVEL FROM AND TO HIS HOME STATION.

THE PHRASE "WHILE IN ACTUAL ATTENDANCE AT SUCH SCHOOL, COLLEGE, OR PRACTICAL COURSE OF INSTRUCTION," WAS CONTAINED IN THE ORIGINAL SECTION 99 OF THE ACT OF JUNE 3, 1916, AND WAS CONSTRUED IN 27 COMP. DEC. 777, TO PROHIBIT PAY TO AN OFFICER OR ENLISTED MAN WHILE ON SICK OR ORDINARY LEAVE OF ABSENCE AS THERE IS NO "ACTUAL ATTENDANCE AT SUCH SCHOOL" WHEN ABSENT; AND IN 1 COMP. GEN. 456, IT WAS SAID:

I AM OF OPINION THAT AN OFFICER ON DETACHED SERVICE AWAY FROM THE SCHOOL FOR THE PURPOSE OF PLAYING BASKET-BALL GAMES PER A SCHEDULE ARRANGED BY THE BASKET-BALL TEAM OF THE SCHOOL IS NOT DURING SUCH PERIOD "IN ACTUAL ATTENDANCE AT SUCH SCHOOL" WITHIN THE MEANING OF THE STATUTE.

IN CONSONANCE WITH THE UNIFORM CONSTRUCTION OF THIS SECTION MAJ. KNOX WAS NOT "IN ACTUAL ATTENDANCE AT SUCH SCHOOL" WITHIN THE MEANING OF THE STATUTE WHILE HE WAS SICK IN HOSPITAL EVEN THOUGH HE PURSUED HIS STUDIES WHILE IN THE HOSPITAL AND RECEIVED A CERTIFICATE TO THE EFFECT THAT HE HAD SATISFACTORILY COMPLETED THE COURSE. CONSTRUCTIVE ATTENDANCE IS NOT "ACTUAL ATTENDANCE.' SEE, ALSO, 15 MS. COMP. GEN. 1172, NOVEMBER 27, 1922, TO SECRETARY OF WAR.

THERE IS ALSO FOR CONSIDERATION THE QUESTION WHETHER THE OFFICER WAS ENTITLED TO PAY AND ALLOWANCES UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 3, 1924, 43 STAT. 364, WHICH, SO FAR AS IS HERE MATERIAL, PROVIDES:

THAT OFFICERS * * * OF THE NATIONAL GUARD INJURED IN LINE OF DUTY WHILE AT * * * SERVICE SCHOOLS, UNDER THE PROVISIONS OF SECTIONS * * * 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED * * * PERSONS HEREINBEFORE DESCRIBED WHO MAY NOT BE UNDERGOING HOSPITAL TREATMENT FOR INJURIES SO SUSTAINED SHALL BE ENTITLED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, TO MEDICAL AND HOSPITAL TREATMENT AT GOVERNMENT EXPENSE, AND TO A CONTINUATION OF THE PAY AND ALLOWANCES WHETHER IN MONEY OR IN KIND, THEY WERE RECEIVING AT THE TIME OF SUCH INJURIES, UNTIL THEY ARE FIT FOR TRANSPORTATION TO THEIR HOMES, AND UPON TERMINATION OF SUCH MEDICAL AND HOSPITAL TREATMENT SHALL BE ENTITLED TO TRANSPORTATION TO THEIR HOMES AT GOVERNMENT EXPENSE * * *. ANY EXPENDITURES HERETOFORE MADE BY THE GOVERNMENT IN CARING FOR PERSONS INJURED UNDER THE CONDITIONS SPECIFIED HEREIN ARE HEREBY VALIDATED * * *.

THE CONTEXT OF THIS ACT INDICATES CLEARLY BY THE WORDS "WHO MAY NOW BE UNDERGOING HOSPITAL TREATMENT" THAT IT WAS NOT INTENDED TO AUTHORIZE PAY AND ALLOWANCES RETROACTIVELY FOR OFFICES AND ENLISTED MEN OF THE NATIONAL GUARD WHO IN THE PAST MIGHT HAVE BEEN INJURED WHILE ATTENDING SERVICE SCHOOLS AND RECOVERED THEREFROM. THE VALIDATING CLAUSE INCLUDES ONLY EXPENDITURES MADE BY THE GOVERNMENT "IN CARING FOR" SUCH INJURED PERSONS. THE PHRASE "IN CARING FOR" CONTEMPLATES MEDICAL OR HOSPITAL TREATMENT. UNDER THIS VIEW IT IS UNNECESSARY TO CONSIDER WHETHER MAJ. KNOX WAS "INJURED" WITHIN THE MEANING OF THE ACT. AS TO THIS, HOWEVER, SEE 2 COMP. GEN. 6, 224 AND 784.