A-69680, FEBRUARY 6, 1936, 15 COMP. GEN. 689

A-69680: Feb 6, 1936

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GEN. 40 THAT THE DETERMINATION WHETHER A NAVY OFFICER IS "ON DUTY" WITHIN THE MEANING OF SECTION 1586. SO AS TO ENTITLE HIM TO PRIVATE MEDICAL TREATMENT AT GOVERNMENT EXPENSE IS ONE OF FACT AND NOT TO BE GOVERNED SOLELY BY THE PERMISSION GIVEN THE OFFICER TO ABSENT HIMSELF FOR A PERIOD OF 24 HOURS OR LESS. IS EQUALLY APPLICABLE TO AN ARMY ENLISTED MAN GRANTED LEAVE OF ABSENCE ON PASS FOR LESS THAN 24 HOURS. IS ENTITLED IN CASE OF NEED TO CIVILIAN MEDICAL AND HOSPITAL TREATMENT AT GOVERNMENT EXPENSE. THAT THIS SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH. * * * SIMILAR PROVISIONS HAVE APPEARED IN PRIOR APPROPRIATION ACTS.

A-69680, FEBRUARY 6, 1936, 15 COMP. GEN. 689

MEDICAL TREATMENT - ARMY ENLISTED MEN - LEAVES OF ABSENCE LESS THAN A DAY THE RULE STATED IN 10 COMP. GEN. 40 THAT THE DETERMINATION WHETHER A NAVY OFFICER IS "ON DUTY" WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES, SO AS TO ENTITLE HIM TO PRIVATE MEDICAL TREATMENT AT GOVERNMENT EXPENSE IS ONE OF FACT AND NOT TO BE GOVERNED SOLELY BY THE PERMISSION GIVEN THE OFFICER TO ABSENT HIMSELF FOR A PERIOD OF 24 HOURS OR LESS, AND THAT A CONSTRUCTIVE DUTY STATUS DOES NOT EXIST WHEN THE PROSPECTIVE DURATION OF THE ABSENCE OR DISTANCE FROM POST OF DUTY NEGATIVES THE POSSIBILITY OF PERFORMANCE OF DUTY, IS EQUALLY APPLICABLE TO AN ARMY ENLISTED MAN GRANTED LEAVE OF ABSENCE ON PASS FOR LESS THAN 24 HOURS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, FEBRUARY 6, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 2, 1936, AG 701.2 ( 11/20/35 ( ENL., REQUESTING DECISION WHETHER UNDER THE PROVISIONS CONTAINED IN THE ANNUAL APPROPRIATION ACT FOR MEDICAL CARE AND TREATMENT OF ARMY PERSONNEL AN ENLISTED MAN GRANTED LEAVE OF ABSENCE ON PASS FOR LESS THAN 24 HOURS, IS ENTITLED IN CASE OF NEED TO CIVILIAN MEDICAL AND HOSPITAL TREATMENT AT GOVERNMENT EXPENSE, IRRESPECTIVE OF THE DISTANCE HE MAY TRAVEL FROM HIS POST OF DUTY.

THE ACT OF APRIL 9, 1935, 49 STAT. 134, MAKING APPROPRIATIONS FOR THE SUPPORT OF THE WAR DEPARTMENT, PROVIDES:

* * * 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 PROVISIONS HAVE APPEARED IN PRIOR APPROPRIATION ACTS. THE AUTHORITY TO GRANT LEAVE OF ABSENCE TO ENLISTED MEN IS COVERED BY ARMY REGULATIONS 615-275, JUNE 15, 1935. AUTHORIZED ABSENCE FROM DUTY FOR PERIODS IN EXCESS OF 3 DAYS IS DENOMINATED FURLOUGH AND PARAGRAPH 2 OF SUCH REGULATIONS PRESCRIBES THAT---

AN OFFICER AUTHORIZED TO GRANT FURLOUGHS MAY GRANT PASSES TO SOLDIERS UNDER HIS CONTROL FOR A PERIOD NOT GREATER THAN THREE DAYS, PROVIDED THE PASS DOES NOT AUTHORIZE THE SOLDIER TO VISIT PLACES AT A CONSIDERABLE DISTANCE FROM THE STATION OF HIS ORGANIZATION.

THE AUTHORITY TO GRANT A PASS FOR LESS THAN 24 HOURS APPEARS TO BE COVERED BY THIS REGULATION, WHICH PERMITS THE GRANTING OF THIS CHARACTER OF LEAVE FOR PERIODS NOT EXCEEDING 3 DAYS.

A FURLOUGH IS A LEAVE OF ABSENCE--- A PERMISSION TO BE ABSENT FROM STATION AND DUTY--- AND THE PERMIT INCLUDES PERMISSIVE ABSENCE FROM DUTY AND STATION FOR FRACTIONS OF A DAY WHETHER OR NOT SUCH ABSENCE IS OF SUFFICIENT DURATION TO BE CHARGED AS A PORTION OF THE FURLOUGH AUTHORIZED BY REGULATION OR STATUTE. IT IS THE PERMITTED ABSENCE FROM DUTY AND STATION AND NOT THE PERIOD OF ABSENCE THAT CONSTITUTES THE ABSENCE A FURLOUGH. THE NATURE OF THE ABSENCE IS NOT CHANGED BY DENOMINATING AN ABSENCE OF LESS THAN 3 DAYS A "PASS.' IT APPEARS THE TERM "PASS" WITH RESPECT TO A SOLDIER'S ABSENCE OF SHORT DURATION ORIGINATED, OR WAS USED EXTENSIVELY, IN THE ARMY DURING THE CIVIL WAR, WHERE A WRITING PERMITTING THE HOLDER TO GO BEYOND THE LINES WAS NECESSARY AND THIS WRITING OR "PASS" WAS EXHIBITED TO THE SENTINEL OR GUARD ON LEAVING THE CAMP AND RETURNING THERETO. THE WRITING USUALLY SPECIFIED THE DATES AND HOURS DURING WHICH IT WAS TO BE EFFECTIVE. IT WAS AVAILABLE, ALSO, TO THE HOLDER TO EXHIBIT TO THE PROVOST GUARD OR OTHER MILITARY AUTHORITY WHICH MIGHT INQUIRE AS TO THE AUTHORITY FOR HIS ABSENCE FROM STATION OR ORGANIZATION. IT SEEMS TO HAVE BEEN GRANTED TO SOLDIERS TO PERMIT THEM TO GO TO A NEAR-BY TOWN OR CITY FOR RECREATION WHERE, AT LEAST DURING WAR, USUALLY A PROVOST GUARD IS AVAILABLE TO RETURN ALL MEN TO THEIR ORGANIZATION SHOULD OCCASION ARISE FOR THEIR SERVICES BEFORE THE EXPIRATION OF THE PERIOD FIXED IN THE "PASS.'

THE JOINT RESOLUTION OF APRIL 12, 1866, 14 STAT. 352, GAVE A LEGISLATIVE CONSTRUCTION TO THE LAW IN RELATION TO BOUNTIES PAYABLE TO SOLDIERS OF THE CIVIL WAR DISCHARGED FOR WOUNDS AND REQUIRED THAT THE TERM "OR IN THE LINE OF DUTY" AS USED IN A PRIOR LAW---

SHALL BE EXTENDED TO ANY ENLISTED MAN OR OTHER PERSON ENTITLED BY LAW TO BOUNTY WHO HAS BEEN OR MAY BE DISCHARGED BY REASON OF A WOUND RECEIVED WHILE ACTUALLY IN SERVICE UNDER MILITARY ORDERS, NOT AT THE TIME ON FURLOUGH OR LEAVE OF ABSENCE, NOR ENGAGED IN ANY UNLAWFUL OR UNAUTHORIZED ACT OR PURSUIT.

THIS STATUTE WAS CONSTRUED (VOL. 3, DIGEST SECOND COMPTROLLER'S DECISIONS, PAR. 260) AS NOT APPLICABLE TO A SOLDIER ON PASS FOR LESS THAN 24 HOURS, DIGESTED AS FOLLOWS:

A SOLDIER ON A PASS OR PERMIT TO BE ABSENT FOR LESS THAN TWENTY-FOUR HOURS IS NOT ON A FURLOUGH OR LEAVE OF ABSENCE WITHIN THE MEANING OF THE JOINT RESOLUTION APPROVED APRIL 12, 1866 (14 STAT. 352), AND ON HIS DISCHARGE FOR WOUNDS ACCIDENTALLY RECEIVED WHILE SO ABSENT IS ENTITLED TO BOUNTY AS ON DISCHARGE FOR WOUNDS RECEIVED IN THE LINE OF DUTY.

OBVIOUSLY THIS CONSTRUCTION BY THE SECOND COMPTROLLER DID NOT READ OUT OF THE STATUTE THE REQUIREMENT THAT THE MAN SHOULD HAVE RECEIVED A WOUND "WHILE ACTUALLY IN SERVICE UNDER MILITARY ORDERS," AND NECESSARILY THE CONSTRUCTION WAS BASED UPON THE PRACTICE EXISTING DURING THE CIVIL WAR AS TO THE GRANTING OF PASSES FOR TEMPORARY ABSENCE FROM CAMP OR STATION FOR RECREATION AT NEARBY CENTERS OF POPULATION.

IN 1 COMP. GEN. 440, ALTHOUGH THE PERMITTED ABSENCE THERE WAS 63 1/2 HOURS, THAT WAS NOT THE DECIDING FACTOR. IN THAT CASE THE WAR DEPARTMENT WAS URGING THAT THE OFFICERS, ALTHOUGH ON A PERMITTED ABSENCE OF 63 1/2HOURS, WERE NEVERTHELESS ON "PASS" AND NOT ON FURLOUGH. THE VIEW AS THERE EXPRESSED, THAT DISTANCES FROM STATIONS WHILE ON PASS MAY NEGATIVE A CONSTRUCTIVE DUTY STATUS, HAS BEEN APPLIED IN ALL CASES SINCE ARISING. 10 COMP. GEN. 40, THE SECRETARY OF THE NAVY SUBMITTED THE SAME QUESTION WHICH YOU NOW SUBMIT, THAT AN ABSENCE OF 24 HOURS OR LESS IS NOT A FURLOUGH AND DOES NOT REMOVE THE MAN FROM A DUTY STATUS. IN THAT CASE A BRIEF DESCRIPTION WAS GIVEN OF THE BASIS FOR THE HOLDING BY THE SECOND COMPTROLLER, CITED ABOVE, AND THERE WAS POINTED OUT ITS INAPPLICABILITY WITHOUT LIMITATION TO PRESENT-DAY CONDITIONS, WITH EXISTING MEANS OF RAPID TRANSPORTATION. IT IS CLEAR AN OFFICER OR MAN IS NOT CONSTRUCTIVELY ON DUTY WHEN HE IS MANY MILES AWAY FROM HIS POST OF DUTY, WHEN HIS SUPERIORS ARE WITHOUT KNOWLEDGE OF HIS WHEREABOUTS AND HAVE NO MEANS OF NOTIFYING HIM TO RETURN OR OF SECURING HIS RETURN SHOULD HIS SERVICES BE REQUIRED. TO CONSIDER ONLY THE PERIOD OF THE PERMITTED ABSENCE LOSES SIGHT OF THE BASIS FOR THE HOLDING MADE BY THE SECOND COMPTROLLER WITH RESPECT TO CIVIL WAR CONDITIONS, THAT A 24-HOUR PASS DOES NOT TERMINATE A DUTY STATUS. THE PRESENT TIME, WITH THE CHANGES IN RECREATION MADE POSSIBLE BY MODERN MEANS OF TRANSPORTATION, THE PERIOD OF THE PERMITTED ABSENCE IS NOT THE TEST WHETHER AN OFFICER OR MAN IS CONSTRUCTIVELY ON DUTY AND ACTUALLY AVAILABLE THEREFOR.

CITATION IS MADE TO 23 COMP. DEC. 543 AND 2 COMP. GEN. 447. NEITHER OF THOSE CASES IS CONTRARY TO THE CONCLUSION HEREIN AND HERETOFORE REACHED, THAT THE AVAILABILITY OF THE MAN FOR DUTY IS NECESSARY TO ESTABLISH A CONSTRUCTIVE DUTY STATUS ENTITLING TO CIVILIAN MEDICAL TREATMENT AT THE EXPENSE OF THE UNITED STATES. IN 23 COMP. DEC. 543, THE SOLDIER WAS INJURED IN AN AUTOMOBILE ACCIDENT RETURNING TO FORT SHERIDAN, ILL., FROM CHICAGO, 26 MILES DISTANT. THERE IS DISCUSSION IN THAT CASE INDICATING A VIEW THAT A DUTY STATUS IS NOT REQUIRED UNDER EXISTING LAW AND REGULATIONS TO BE ENTITLED TO CIVILIAN MEDICAL TREATMENT AT THE EXPENSE OF THE UNITED STATES, BUT THAT REASONING WAS NOT NECESSARY TO THE CONCLUSION REACHED AND THE VIEW THAT A DUTY STATUS IS NOT NECESSARY OR WAS NOT PRESENT THERE IS NOT CONTROLLING HERE; 2 COMP. GEN. 447 MERELY DENIED A CLAIM WHERE THE ENLISTED MAN, WHEN INJURED, WAS ON PASS FOR 48 HOURS AND THAT CASE CITES AS AUTHORITY 1 COMP. GEN. 137 AND 440, THE LATTER BEING THE CASE REFERRED TO ABOVE.

THE MATTER YOU HAVE SUBMITTED WAS FULLY CONSIDERED IN 10 COMP. GEN. 40, ON THE SUBMISSION OF THE SECRETARY OF THE NAVY, AND THE RULE THERE STATED WILL BE APPLIED IN THE SETTLEMENT OF ACCOUNTS AND CLAIMS IN THIS OFFICE.