A-6846, FEBRUARY 9, 1925, 4 COMP. GEN. 671

A-6846: Feb 9, 1925

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MEDICAL TREATMENT - ARMY OFFICER ON HUNTING LEAVE LEAVE OF ABSENCE WITH PERMISSION TO HUNT IS A FURLOUGH WITHIN THE MEANING OF THE ACT OF MARCH 2. IT APPEARS THAT LIEUTENANT EHINGER WAS INJURED OCTOBER 31. IS CHARGEABLE. THAT THIS SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH * * *. SIMILAR PROVISION APPEARS IN PRIOR APPROPRIATION ACTS UNDER WHICH IT HAS BEEN HELD REPEATEDLY THAT PAYMENT FOR EXPENSES OF HOSPITAL AND MEDICAL TREATMENT RENDERED BY PRIVATE HOSPITALS AND CIVILIAN PHYSICIANS TO OFFICERS AND ENLISTED MEN OF THE ARMY IS NOT AUTHORIZED WHEN INCURRED WHILE IN A STATUS OF ON LEAVE OF ABSENCE OR FURLOUGH.

A-6846, FEBRUARY 9, 1925, 4 COMP. GEN. 671

MEDICAL TREATMENT - ARMY OFFICER ON HUNTING LEAVE LEAVE OF ABSENCE WITH PERMISSION TO HUNT IS A FURLOUGH WITHIN THE MEANING OF THE ACT OF MARCH 2, 1923, 42 STAT. 1399, AND PAYMENT FOR PRIVATE MEDICAL AND HOSPITAL TREATMENT FURNISHED AN OFFICER OF THE ARMY WHO HAD BEEN INJURED WHILE ON SUCH LEAVE OF ABSENCE MAY NOT BE MADE FROM PUBLIC FUNDS.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 9, 1925:

THE WILMAR HOSPITAL (INC.) HAS REQUESTED REVIEW OF SETTLEMENT NO. W 059154, DATED OCTOBER 23, 1924, DISALLOWING ITS CLAIM FOR $144.50 ON ACCOUNT OF HOSPITAL CARE AND TREATMENT, INCLUDING BOARD, LODGING, NURSING, AND AMBULANCE HIRE, RENDERED TO FIRST LIEUT. ROBERT W. EHINGER, FIELD ARTILLERY, UNITED STATES ARMY, DURING THE PERIOD FROM OCTOBER 31 TO NOVEMBER 4, 1923.

IT APPEARS THAT LIEUTENANT EHINGER WAS INJURED OCTOBER 31, 1923, BY THE ACCIDENTAL DISCHARGE OF A SHOTGUN IN THE HANDS OF ANOTHER OFFICER, WHILE ON AUTHORIZED LEAVE OF ABSENCE FOR A THREE-DAY HUNTING TRIP.

THE APPROPRIATION FOR MEDICAL AND HOSPITAL DEPARTMENT, ACT OF MARCH 2, 1923, 42 STAT. 1399, TO WHICH THIS EXPENSE, IF PAYABLE BY THE GOVERNMENT, IS CHARGEABLE, PROVIDES IN PART, AS FOLLOWS:

* * * 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 * * *.

SIMILAR PROVISION APPEARS IN PRIOR APPROPRIATION ACTS UNDER WHICH IT HAS BEEN HELD REPEATEDLY THAT PAYMENT FOR EXPENSES OF HOSPITAL AND MEDICAL TREATMENT RENDERED BY PRIVATE HOSPITALS AND CIVILIAN PHYSICIANS TO OFFICERS AND ENLISTED MEN OF THE ARMY IS NOT AUTHORIZED WHEN INCURRED WHILE IN A STATUS OF ON LEAVE OF ABSENCE OR FURLOUGH, 5 COMP. DEC. 363; 19 ID. 383; 27 ID. 514; 1 COMP. GEN. 137, 440; 2 ID. 447. THE QUESTION ACCORDINGLY RESOLVES ITSELF INTO WHETHER LIEUTENANT EHINGER WAS OR WAS NOT ON LEAVE OF ABSENCE OR FURLOUGH AT THE TIME HE WAS INJURED.

THE BASIC LAW AUTHORIZING PAY TO OFFICERS OF THE ARMY WHEN ABSENT FROM DUTY IS SECTION 1265, REVISED STATUTES, WHICH IS AS FOLLOWS (THE AMENDMENT OF JULY 29, 1876, 19 STAT. 102, NOT BEING HERE MATERIAL):

OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF-PAY DURING SUCH ABSENCES EXCEEDING THIRTY DAYS IN ONE YEAR. * * *

THE ARMY REGULATIONS SINCE 1889, AND POSSIBLY PRIOR THERETO, HAVE CONTAINED PROVISIONS THAT UNDER CERTAIN CONDITIONS PERMISSION TO HUNT WILL NOT BE CONSIDERED AS A LEAVE OF ABSENCE.

A DECISION BY THE CHIEF OF STAFF, DATED JULY 15, 1905, PUBLISHED BY ORDER OF THE SECRETARY OF WAR BY CIRCULAR NO. 35, WAR DEPARTMENT, CONCERNING LEAVE OF ABSENCE OF ARMY OFFICERS IS AS OLLOWS:

IN VIEW OF THE POSITIVE LANGUAGE OF SECTION 1265, REVISED STATUTES, IT IS HELD THAT ALL AUTHORIZED ABSENCE FROM DUTY ON THE PART OF ARMY OFFICERS, NOT OTHERWISE SPECIALLY PROVIDED FOR BY LAW, WHETHER IN THE FORM OF DELAYS IN REPORTING FOR DUTY UNDER ORDERS, EXTRA TIME ALLOWANCE FOR MAKING JOURNEYS, PERMISSION TO BE ABSENT WITHOUT FORMAL LEAVE, OR UNDER ANY AUTHORITY OF ANY KIND OR NATURE WHATEVER, UNLESS SPECIALLY STATED AND SHOWN TO BE FOR THE CONVENIENCE OF THE GOVERNMENT, OR EXCUSED BY COMPETENT AUTHORITY AS UNAVOIDABLE, MUST BE REGARDED AS ABSENCE WITH LEAVE AND BE SUBJECT TO THE SAME CONDITIONS AS TO PAY AS ABSENCE IN PURSUANCE OF FORMAL ORDERS GRANTING LEAVES OF ABSENCE; * * *.

IN VIEW OF THIS DECISION IT HAS BEEN HELD BY THE JUDGE ADVOCATE GENERAL OF THE ARMY:

* * * THAT ALTHOUGH HUNTING LEAVES HAVE NOT BEEN LOOKED UPON AS ORDINARY LEAVES, BUT RATHER EXPEDITIONS FOR THE SPECIAL IMPROVEMENT OF THE OFFICER AND FOR THE ACQUISITION OF TOPOGRAPHICAL INFORMATION FOR THE GOVERNMENT, THEY MUST, SINCE THE PUBLISHING OF THE ABOVE CIRCULAR, BE CONSIDERED AS ORDINARY LEAVES UNLESS IT IS SHOWN IN EACH SPECIFIC PERMISSION THAT THE LEAVE TO HUNT IS FOR THE CONVENIENCE OF THE GOVERNMENT. (DIG.APPL.J.A.G., 1912, PAGE 11.)

REGULATIONS GOVERNING LEAVES OF ABSENCE AND DELAYS IN EFFECT DURING THE PERIOD IN QUESTION WERE PROMULGATED BY ARMY REGULATIONS 605-115. CHANGES NO. 3, DATED OCTOBER 5, 1923, AMENDED PARAGRAPH 21 THEREOF, WHICH, SO FAR AS IS HERE MATERIAL, IS AS FOLLOWS:

* * * AN OFFICER AUTHORIZED TO GRANT LEAVES OF ABSENCE MAY GRANT PERMISSION TO HUNT OR FISH FOR PERIODS NOT GREATER THAN TEN DAYS. HUNTING AND FISHING UNDER THIS PROVISION WILL BE ENCOURAGED.

ABSENCE UNDER A PERMISSION TO HUNT OR FISH WILL NOT BE COUNTED AGAINST THE ANNUAL LEAVE ALLOWANCE IF THE OFFICER ON HIS RETURN TO HIS POST OF DUTY FORWARDS TO THE OFFICER GRANTING SUCH PERMISSION A CERTIFICATE THAT HIS TIME WHILE ABSENT WAS EMPLOYED SOLELY IN HUNTING OR FISHING, AS THE CASE MAY BE. THE OFFICER GRANTING THE PERMISSION MAY, WHEN CONSIDERED DESIRABLE, REQUIRE THE OFFICER TO WHOM SUCH PERMISSION IS GRANTED TO FURNISH A REPORT GIVING AS COMPLETE A DESCRIPTION AS POSSIBLE OF THE COUNTRY TRAVERSED BY HIM.

IT WOULD APPEAR THAT PERMISSION TO HUNT WAS ORIGINALLY AUTHORIZED FOR THE ACQUISITION OF TOPOGRAPHICAL INFORMATION OF VALUE TO THE GOVERNMENT. HUNTING IN ITS USUAL SENSE IS A FORM OF SPORT FROM WHICH IS DERIVED RECREATION AND DIVERSION FOR THE BENEFIT OF THE INDIVIDUAL.

THE STATUS OF LEAVE OF ABSENCE AND THAT OF DUTY ARE INCOMPATIBLE AND BOTH CAN NOT EXIST AT THE SAME TIME WITH RESPECT TO THE SAME PERSON. IT IS APPARENT THAT PERMISSION TO BE ABSENT FROM MILITARY CONTROL AND JURISDICTION FOR AN EXTENDED PERIOD OF TIME FOR THE PURPOSE OF HUNTING MUST BE CONSIDERED AS AUTHORIZED LEAVE OF ABSENCE "FOR OTHER CAUSES" WITHIN THE MEANING OF SECTION 1265, REVISED STATUTES.

SPECIAL ORDERS NO. 238, HEADQUARTERS, FORT SNELLING, MINN., DATED OCTOBER 29, 1923, AUTHORIZED LEAVE TO LIEUTENANT EHINGER AS FOLLOWS:

3. UNDER PROVISIONS OF PAR. 21 A.R. 605-115, A HUNTING LEAVE FOR THREE (3) DAYS, EFFECTIVE ON OR ABOUT OCTOBER 30, 1923, IS GRANTED 1ST LT. ROBERT W. EHINGER, 9TH F.A.

THERE APPEARS NOTHING IN THIS ORDER TO INDICATE THAT THE OFFICER WAS ABSENT FROM HIS STATION IN THE PERFORMANCE OF DUTY. LIEUTENANT EHINGER MUST BE CONSIDERED AS IN THE STATUS OF ON AUTHORIZED LEAVE OF ABSENCE AT THE TIME HE WAS INJURED AND ACCORDINGLY FALLS WITHIN THE INHIBITION CONTAINED IN THE APPROPRIATION ACT CITED, AGAINST THE USE OF PUBLIC FUNDS FOR THE MEDICAL CARE AND TREATMENT OF ARMY OFFICERS WHILE ON LEAVE OF ABSENCE OR FURLOUGH.