A-7942, OCTOBER 8, 1925, 5 COMP. GEN. 239

A-7942: Oct 8, 1925

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MARINE CORPS PAY - ABSENCE DUE TO MISCONDUCT WHERE THE MEDICAL RECORD OF AN ENLISTED MAN OF THE MARINE CORPS SHOWS THAT HIS ABSENCE FROM DUTY WHILE SICK IN THE HOSPITAL WAS DUE TO A VENEREAL INFECTION NOT INCURRED IN LINE OF DUTY. THERE IS NO EVIDENCE AS TO WHEN OR HOW THE INFECTION OCCURRED. CONCLUSION BY A MEDICAL OFFICER ENTERED IN THE MEDICAL RECORD OF SUCH ENLISTED MAN THAT THE DISEASE WAS NOT DUE TO MISCONDUCT DOES NOT ENTITLE THE MAN TO PAY DURING THE PERIOD OF ABSENCE. CLAIMANT INSISTS THE MEDICAL RECORD SPECIFICALLY SHOWS THERE WAS NO EVIDENCE OF MISCONDUCT. THIS CONTENTION IS APPARENTLY SUPPORTED BY REPORT OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY TO THIS OFFICE JANUARY 30.

A-7942, OCTOBER 8, 1925, 5 COMP. GEN. 239

MARINE CORPS PAY - ABSENCE DUE TO MISCONDUCT WHERE THE MEDICAL RECORD OF AN ENLISTED MAN OF THE MARINE CORPS SHOWS THAT HIS ABSENCE FROM DUTY WHILE SICK IN THE HOSPITAL WAS DUE TO A VENEREAL INFECTION NOT INCURRED IN LINE OF DUTY, AND THERE IS NO EVIDENCE AS TO WHEN OR HOW THE INFECTION OCCURRED, THE ACT OF AUGUST 29, 1916, 39 STAT. 580, REQUIRES THAT PAY DURING SUCH ABSENCE BE WITHHELD. CONCLUSION BY A MEDICAL OFFICER ENTERED IN THE MEDICAL RECORD OF SUCH ENLISTED MAN THAT THE DISEASE WAS NOT DUE TO MISCONDUCT DOES NOT ENTITLE THE MAN TO PAY DURING THE PERIOD OF ABSENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 8, 1925:

CLARENCE ROY LONG HAS REQUESTED FURTHER CONSIDERATION OF HIS CLAIM (DECISION OF MARCH 10, 1925), FOR PAY FEBRUARY 13 TO APRIL 7, 1924, AS A CORPORAL, MARINE CORPS, WHILE ABSENT FROM DUTY IN HOSPITAL, THE PAY HAVING BEEN CHECKED UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 580. CLAIMANT INSISTS THE MEDICAL RECORD SPECIFICALLY SHOWS THERE WAS NO EVIDENCE OF MISCONDUCT. THIS CONTENTION IS APPARENTLY SUPPORTED BY REPORT OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY TO THIS OFFICE JANUARY 30, 1925, THAT---

THERE IS NO RECORD ON FILE SHOWING THAT A REPORT WAS MADE BY THIS BUREAU TO THE ADJUTANT AND INSPECTOR, U.S. MARINE CORPS TO THE EFFECT THAT THIS MAN LOST TIME FROM FEBRUARY 13 TO APRIL 7, 1924, BY REASON OF HAVING BEEN ABSENT FROM DUTY AS THE RESULT OF A CONDITION HELD TO BE THE RESULT OF HIS OWN MISCONDUCT.

THE MEDICAL RECORD DOES SHOW THAT CLAIMANT WAS ABSENT FROM DUTY IN HOSPITAL FEBRUARY 13 TO APRIL 7, 1924, UNDER A DIAGNOSIS OF "SYPHILIS; ORIGIN NOT IN LINE OF DUTY.' CLAIMANT DENIES HAVING HAD THE DISEASE--- NOT THAT IT WAS INNOCENTLY CONTRACTED, AND ASKS WHAT EVIDENCE IS REQUIRED TO ESTABLISH THE FACT THAT HE WAS NOT SO AFFLICTED. THE MEDICAL RECORD AS FURNISHED, FEBRUARY 13 TO APRIL 8, 1924, IN FULL, IS AS FOLLOWS AND LEAVES NO DOUBT THAT CLAIMANT WAS ABSENT FROM DUTY IN HOSPITAL, AND WAS TREATED FOR THE DISEASE NAMED DURING THE PERIOD.

U.S. HOSPITAL SHIP MERCY.

FEB. 13, 1924--- DIAGNOSIS CHANGED TO "SYPHILIS.' ORIGIN NOT IN LINE OF DUTY, NOT DUE TO OWN MISCONDUCT. WASSERMANN FOUR PLUS. SINCE THERE IS NO ENTRY IN THIS MAN'S RECORD OF SYPHILIS IT IS ASSUMED THAT HE CONTRACTED THE DISEASE PRIOR TO ENTRY INTO SERVICE. ART. 1196 N.R. COMPLIED WITH. NO STATEMENT OTHER THAN THE PATIENT PERSISTENTLY DENIES VENEREAL INFECTION. TO G. WARD FOR TREATMENT.

UNDER ANTISYPHILETIC TREATMENT PATIENT HAS GAINED 22 POUNDS; FEELS STRONGER AND BETTER IN EVERY RESPECT. HAS JUST FINISHED ONE COURSE OF TREATMENT CONSISTING OF 8 DOSES OF NEO-SALVARSAN WITH 43 MERCURIC RUBS. APR. 8, 1924--- TO DUTY. RECOMMEND COURSE OF K I BE GIVEN. DISCONTINUED IN ABOUT SIX WEEKS.

IT HAS BEEN HELD, 2 COMP. GEN. 84, UNDER THE ARMY LAW, THAT WHERE THERE IS ABSENCE FROM DUTY BECAUSE OF VENEREAL DISEASE IT IS IMMATERIAL THAT IT WAS CONTRACTED BEFORE COMING INTO SERVICE; THE STATUTE REQUIRES STOPPAGE OF PAY FOR TIME ABSENT BECAUSE OF SUCH DISEASE IF THE CASE IS OTHERWISE WITHIN THE STATUTE. THE EVIDENCE ON WHICH IS BASED THE STATEMENT IN THE MEDICAL RECORD THAT THE DISEASE IN THIS CASE WAS "NOT DUE TO OWN MISCONDUCT" IS NOT INDICATED, BUT IT WOULD SEEM TO HAVE BEEN MADE BECAUSE OF THE MAN'S DENIAL AND NO PREVIOUS MEDICAL RECORD SHOWING VENEREAL INFECTION. THE ASSUMPTION THE DISEASE WAS NOT DUE TO MISCONDUCT WHERE THERE IS NO EVIDENCE AS TO WHEN (NOT HOW) THE DISEASE WAS CONTRACTED IS A DEPARTURE IN NAVAL MEDICAL ADMINISTRATION; SEE CASE OF HARDING, 3 COMP. GEN. 815, WHERE THE REPORT OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY WAS THAT THE MAN WAS DISCHARGED UPON RECOMMENDATION OF A BOARD OF MEDICAL SURVEY "UNDER A DIAGNOSIS OF "SYPHILIS," ORIGIN NOT IN LINE OF DUTY, THE RESULT OF HIS OWN MISCONDUCT. THERE IS NO RECORD TO SHOW AT WHAT TIME HE ACQUIRED HIS INFECTION.' IT WOULD THUS APPEAR THAT BY A MERE CHANGE IN THE FORM OF RECORDING IN THE MEDICAL RECORD THE EXISTENCE OF A VENEREAL INFECTION IT IS PROPOSED TO AFFECT THE QUESTION OF PAY WHEN THERE IS ABSENCE BECAUSE OF SUCH DISEASE, WHEN THE ORIGIN OF THE DISEASE IS UNKNOWN TO THE MEDICAL OFFICER. THE QUESTION FOR CONSIDERATION IS THEREFORE TO WHAT EXTENT, IF ANY, THE MATTER CAN BE SO CONTROLLED.

THE ACT OF AUGUST 29, 1916, 39 STAT. 580, PROVIDES:

HEREAFTER NO OFFICER OR ENLISTED MAN IN THE NAVY OR MARINE CORPS IN ACTIVE SERVICE WHO SHALL BE ABSENT FROM DUTY ON ACCOUNT OF SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT, SHALL RECEIVE PAY FOR THE PERIOD OF SUCH ABSENCE, THE TIME SO ABSENT AND THE CAUSE THEREOF TO BE ASCERTAINED UNDER SUCH PROCEDURE AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT AN ENLISTMENT SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT.

THIS ACT WAS AMENDED JULY 1, 1918, 40 STAT. 717, TO INCLUDE ABSENCE DUE TO INJURY THE RESULT OF MISCONDUCT. THE LEGISLATION, IT APPEARS FROM THE HEARINGS ON THE NAVAL APPROPRIATION BILL FOR THE FISCAL YEAR 1917 (VOL. 3, P. 3895) WAS SUGGESTED BY THE SECRETARY OF THE NAVY. NO HEARINGS SEEM TO HAVE BEEN HELD THEREON; THE LETTER OF THE SECRETARY OF THE NAVY, JANUARY 13, 1916, SUGGESTING THE ENACTMENT, ONLY BEING PUBLISHED. THAT LETTER IS IN PART AS FOLLOWS:

THE ABOVE IS QUOTED VERBATIM FROM THE ARMY LAW OF APRIL 27, 1914, WITH THE FOLLOWING EXCEPTIONS ONLY:THE WORDS "IN THE NAVY OR MARINE CORPS" HAVE BEEN ADDED IN LINE 2 ABOVE; THE WORDS ,SECRETARY OF THE NAVY" ARE SUBSTITUTED FOR THE WORDS "SECRETARY OF WAR," LINES 8 AND 9 ABOVE; AND THE WORDS "ENLISTED MAN," LINES 10 AND 11, HAVE BEEN SUBSTITUTED FOR THE WORD "SOLDIER.'

THESE PROVISIONS ARE BOTH EQUITABLE AND JUST AND HAVE BEEN VERY BENEFICIAL, I AM INFORMED, TO THE HEALTH AND MORALS OF THE ARMY IN THEIR OPERATION. THE MARINE CORPS BEING ON ARMY PAY BY VIRTUE OF SECTION 1612 OF THE REVISED STATUTES, BENEFITS BY THE FIRST PROVISO ABOVE. BOTH OF THE PROVISIONS ARE GOOD LAW AND SHOULD BE MADE TO APPLY TO THE NAVY AND MARINE CORPS. WITH THIS IN VIEW, I SUBMIT THE ABOVE FOR YOUR FAVORABLE CONSIDERATION.

THE LAW WAS ENACTED AS SUBMITTED. NAVAL REGULATIONS, ARTICLES 554 AND 1196 (AN ADAPTATION OF THE ARMY REGULATIONS ON THE SUBJECT CONTAINED IN GENERAL ORDERS NO. 43, OF NOVEMBER 1, 1912), DO NOT PROVIDE IN TERMS FOR THE DETERMINATION OF THE ORIGIN OF A VENEREAL INFECTION. THE LAW IS SUBSTANTIALLY THE ARMY LAW; IT WAS DESIGNED TO OPERATE IN THE NAVY AND MARINE CORPS AS THE ARMY LAW OPERATED IN THE ARMY. AN INQUIRY AS TO THE APPLICATION OF THE LAW IN THE ARMY MAY BE PROPERLY CONSIDERED. THE FIRST ARMY LAW ON THE SUBJECT WAS TEMPORARY LEGISLATION CONTAINED IN THE ACT OF AUGUST 24, 1912, 37 STAT. 572, AND OPERATED AS A RESTRICTION ON THE APPROPRIATION CONTAINED IN THAT ACT. IT WAS SUGGESTED BY THE SURGEON GENERAL AND RECOMMENDED BY THE SECRETARY OF WAR. SEE HOUSE OF REPRESENTATIVES REPORT, NO. 270, SIXTY SECOND CONGRESS, SECOND SESSION, JANUARY 29, 1912. IT WAS REENACTED AS PERMANENT LEGISLATION IN ITS PRESENT FORM IN THE ACT OF APRIL 27, 1914, 38 STAT. 353. THE OBJECTS TO BE ACCOMPLISHED BY THE ENACTMENT ARE STATED IN A REPORT ON A BILL IN THE LAST CONGRESS WHICH INCLUDED A PROPOSED AMENDMENT OF THE LAW, SENATE REPORT, NO. 195, SIXTY-EIGHTH CONGRESS, FIRST SESSION, ON S. 1974, FROM WHICH THE FOLLOWING IS QUOTED:

IN 1912 THE OPINION WAS EXPRESSED BY THE SURGEON GENERAL OF THE ARMY THAT MEMBERS OF THE MILITARY PERSONNEL WHO ACQUIRED VENEREAL DISEASE THROUGH THEIR OWN MISCONDUCT AND WHO WERE ABSENT FROM THEIR DUTIES AS A RESULT OF SUCH DISEASE SHOULD FORFEIT PAY FROM THE GOVERNMENT DURING THE PERIOD OF SUCH ABSENCE, AND THE WAR DEPARTMENT RECOMMENDED TO THE CONGRESS THAT A LAW BE ENACTED WHICH WOULD CARRY THESE VIEWS INTO EFFECT.

THE GENERAL PRINCIPLES OUTLINED ABOVE, IN SO FAR AS THEY RELATE TO STOPPAGE OF PAY FOR ABSENCE FROM DUTY BY REASON OF DISEASE DUE TO MISCONDUCT ON THE PART OF THE INDIVIDUAL, WERE INCORPORATED FIRST AS TEMPORARY LEGISLATION IN 1912 AND FINALLY AS PERMANENT LEGISLATION IN THE * * * ACT OF CONGRESS OF APRIL 27, 1914:

AS A RESULT OF THE PASSAGE OF THE ACT REFERRED TO ABOVE, TOGETHER WITH THE EDUCATIONAL AND OTHER MEASURES ADOPTED ON THE RECOMMENDATION OF THE MEDICAL DEPARTMENT, THE ADMISSION RATE FOR VENEREAL DISEASES IN THE ARMY DROPPED FROM A RATIO OF 146 PER 1,000 MEN FOR THE YEAR 1911 TO 84 PER 1,000 FOR THE YEAR 1915.

THE INTENT OF THE ACT OF APRIL 27, 1914, WAS TO WITHHOLD PAY FROM INDIVIDUALS WHO WERE ABSENT FROM DUTY BY REASON OF INTEMPERATE USE OF ALCOHOLIC LIQUORS AND HABIT-FORMING DRUGS AND THOSE WHO THROUGH ILLICIT SEXUAL INTERCOURSE CONTRACTED VENEREAL DISEASE WHICH PREVENTED THEIR PERFORMANCE OF FULL MILITARY DUTY. * * *

* * * THE ATTACHED GRAPH SHOWS THE ANNUAL ADMISSION RATE PER 1,000 MEN FOR VENEREAL DISEASE FOR THE ENTIRE ARMY FOR THE YEARS 1900 TO 1921, INCLUSIVE. * * * THE REMARKABLE DROP IN THE ADMISSION RATE FOR VENEREAL DISEASES BETWEEN 1911 AND 1914 WAS PROBABLY DUE TO THE TWO FACTORS NOTED ON THE CHARGE, BUT THERE IS LITTLE DOUBT THAT THE LAW ENACTED BY CONGRESS PROVIDING FOR FORFEITURES OF PAY DURING PERIODS OF ABSENCE FOR DISEASES DUE TO MISCONDUCT WAS THE PREDOMINATING FACTOR IN BRINGING ABOUT THIS REDUCTION. THAT THE LAW PROVIDING FOR FORFEITURE OF PAY FOR ABSENCE ON ACCOUNT OF VENEREAL DISEASE WAS A MARKED FACTOR IN THE REDUCTION IN THE ADMISSION RATE FOR SUCH DISEASES IN THE ARMY IS FURTHER CORROBORATED BY THE EXPERIENCE OF THE NAVY IN THIS RESPECT. THE ANNUAL REPORTS OF THE SURGEON GENERAL OF THE NAVY SHOW THAT BETWEEN 1909 AND 1916, INCLUSIVE, THE ANNUAL ADMISSION RATES PER 1,000 FOR VENEREAL DISEASE IN THE NAVY RANGED BETWEEN 148.07 AND 191.71 DURING THOSE YEARS.

IN 1917 A LAW PROVIDING FOR FORFEITURE OF PAY ON ACCOUNT OF ABSENCE FROM DUTY FOR DISEASES DUE TO MISCONDUCT WAS PASSED BY CONGRESS AND BECAME APPLICABLE TO THE NAVAL FORCES. IN 1917 THE RATIO OF ADMISSIONS FOR THE NAVY WAS 88.71 PER 1,000 AND IN 1918 WAS 70.18. WHILE FACTORS OTHER THAN THIS LAW WERE OPERATING DURING 1917, THERE IS BUT LITTLE DOUBT THE LAW REFERRED TO WAS THE DETERMINING FACTOR IN THE GREATER PART OF THE REDUCTION BROUGHT ABOUT, NAMELY A REDUCTION FROM 148.07 PER 1,000 IN 1916 TO 88.71 PER 1,000 IN 1917.

IN THE ARMY THE EXISTENCE OF VENEREAL DISEASE CAUSING ABSENCE FROM DUTY (EXCEPTING, OF COURSE, GENUINE INNOCENT CASES) HAS BEEN CONSIDERED AS REQUIRING STOPPAGE OF PAY; FOR EXAMPLE SEE OP. J.A.G., W.D., BULL. 15 OF 1917, WHERE IT WAS HELD THAT:

SOLDIERS, PRESUMABLY NOT DISEASED, ORDERED INTO HOSPITAL FOR THE PURPOSE OF ASCERTAINING WHETHER THEY HAVE DISEASE DUE TO THEIR OWN MISCONDUCT SHOULD NOT BE SUBJECT TO STOPPAGE FOR ABSENCES SO OCCASIONED WHEN THE TEST DOES NOT DISCLOSE THE PRESENCE OF SUCH DISEASES, AND THIS SHOULD BE THE RULE REGARDLESS OF THE SUSPICION THAT MAY BE ENGENDERED BY A RECORD OF PREVIOUS BUT PRESUMABLY ERADICATED DISEASE.

SEE ALSO PARAGRAPH 13 OF WAR DEPARTMENT SPECIAL REGULATIONS NO. 28, "SANITARY REGULATIONS AND CONTROL OF COMMUNICABLE DISEASES," 1917, IN PART AS FOLLOWS:

VENEREAL DISEASES.--- THE CAUSE OF THESE DISEASES IS A MATTER OF COMMON KNOWLEDGE. THEY ARE ENTIRELY PREVENTABLE, AND THE GOVERNMENT PUNISHES THOSE WHO EXPOSE THEMSELVES AND CONTRACT VENEREAL DISEASE BY PROMPT STOPPAGE OF PAY AND RESTRICTION OF PRIVILEGES WHILE UNDER TREATMENT.

A LAW ENACTED FOR THE PURPOSE OF REDUCING VENEREAL DISEASE IN THE NAVY AND MARINE CORPS BY DENYING PAY WHILE ABSENT FROM DUTY BECAUSE THEREOF SHOULD NOT BE BROUGHT TO NAUGHT BY THE EXPEDIENT OF CONCEALING THE PRIMARY INFECTION. NAVAL REGULATIONS, ARTICLE 1136 (3), PROVIDES:

WHENEVER, IN HIS (MEDICAL OFFICER) OPINION, ANY MEMBERS OF THE CREW HAVE CONCEALED DISEASES HE SHALL, WITH THE APPROVAL OF THE COMMANDING OFFICER, EXAMINE THEM AND PLACE ANY THAT SEEM TO REQUIRE IT UNDER APPROPRIATE TREATMENT; SUCH EXAMINATION SHALL ALSO BE MADE WHEN DIRECTED BY THE COMMANDING OFFICER. * * *

WHILE INNOCENT VENEREAL INFECTION OCCURS IT IS OF RELATIVE INFREQUENCY, AND THE ORDINARY PRESUMPTION IS, AT LEAST SO FAR AS THE MALE SEX IS CONCERNED, THAT SUCH INFECTION IS THE RESULT OF MISCONDUCT. THE LAW HERE IN QUESTION IS BASED ON SUCH PRESUMPTION; IT WOULD BE ENTIRELY INEFFECTIVE AND IMPOTENT TO ACCOMPLISH ITS PURPOSE WERE IT NECESSARY TO PROVE IN EACH CASE THAT VENEREAL INFECTION WAS CONTRACTED THROUGH MISCONDUCT. SO FAR AS PAY IS CONCERNED THE BURDEN IS ON THE CLAIMANT TO SHOW AFFIRMATIVELY, AND NOT BY MERE DENIAL, OR DISCLAIMER OF OPPORTUNITY, THAT THE INFECTION WAS NOT THE RESULT OF MISCONDUCT. THE FACTS ARE PECULIARLY WITH CLAIMANT, AND, IF MISCONDUCT IS NOT INVOLVED, THEY MAY FREELY BE STATED BY HIM. THE DISEASE RAISES THE PRESUMPTION WHICH IT IS FOR CLAIMANT TO NEGATIVE BY FACT, IF HE CAN AND WISHES TO DO SO.

THE FOLLOWING IS THE MARINE CORPS' RECORD OF CLAIMANT FURNISHED INFORMALLY FROM MARINE CORPS HEADQUARTERS, SEPTEMBER 23, 1925:

ENLISTED DECEMBER 7, 1921, FOR FOUR YEARS. EXTENDED ENLISTMENT JANUARY 2, 1925, FOR TWO YEARS, TO BEGIN JANUARY 30, 1925, HAVING LOST 55 DAYS, FEBRUARY 13 TO APRIL 7, 1924, UNDER ARTICLE 554, N.R. DESERTED APRIL 7, 1925. UNDER THE PROVISO OF THE LAW QUOTED IT APPEARS CLAIMANT WAS REQUIRED TO MAKE GOOD THE TIME ABSENT FROM DUTY IN HOSPITAL FROM FEBRUARY 13 TO APRIL 7, 1924. IF THE ABSENCE DURING THE PERIOD WAS OF A CHARACTER REQUIRING HIM TO MAKE GOOD THE TIME LOST, IT IS OBVIOUS THAT UNDER THE LAW THE PAY DURING THE SAME PERIOD WAS PROPERLY WITHHELD.