A-84568, A-84661, MAY 31, 1938, 17 COMP. GEN. 1021

A-84568,A-84661: May 31, 1938

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" MAY NOT BE CONSTRUED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO PERMIT SUCH EXPENDITURES FROM FEDERAL APPROPRIATIONS WHEN SUCH PERSONNEL ARE RELIEVED FROM PERFORMANCE OF DUTY. ARE GRANTED LEAVE OF ABSENCE OR FURLOUGH. ARE PERMITTED TO TRAVEL TO EXTENDED DISTANCES ENTIRELY FOR THE PRIVATE INTERESTS OF SUCH PERSONNEL. 1938: THERE WAS RECEIVED YOUR LETTER OF MARCH 18. - THE ILLNESS OF INJURY HAVING DEVELOPED WHILE THE OFFICER WAS ON LEAVE OF ABSENCE FROM HIS STATION AND DUTY. THE SERVICES WERE IN EACH OF THE CASES PROCURED BY THE OFFICER. THE CLAIMS WERE DISALLOWED BY THIS OFFICE AND YOU SUGGEST THERE IS A VARIATION IN THE SETTLEMENT OF THESE CLAIMS FROM THE INTERPRETATION OF THE PHRASE "IN LINE OF DUTY" "LONG ACCEPTED BY THE WAR DEPARTMENT.

A-84568, A-84661, MAY 31, 1938, 17 COMP. GEN. 1021

MEDICAL TREATMENT - PRIVATE - LEAVES OF ABSENCE - MILITARY PERSONNEL IN THE PRESENT STATE OF THE LAW EXPENDITURES FOR CIVILIAN MEDICAL AND HOSPITAL TREATMENT AUTHORIZED BY LAW FOR OFFICERS OF THE MILITARY SERVICES WHEN "IN LINE OF DUTY," OR WHEN "ON DUTY," MAY NOT BE CONSTRUED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO PERMIT SUCH EXPENDITURES FROM FEDERAL APPROPRIATIONS WHEN SUCH PERSONNEL ARE RELIEVED FROM PERFORMANCE OF DUTY, ARE GRANTED LEAVE OF ABSENCE OR FURLOUGH, AND ARE PERMITTED TO TRAVEL TO EXTENDED DISTANCES ENTIRELY FOR THE PRIVATE INTERESTS OF SUCH PERSONNEL, WHETHER THE PERSONNEL BE MEMBERS OF THE REGULAR MILITARY ESTABLISHMENTS, OR OF THE NATIONAL GUARD, OR THE OFFICERS' RESERVE CORPS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MAY 31, 1938:

THERE WAS RECEIVED YOUR LETTER OF MARCH 18, 1937, RESPECTING SETTLEMENTS OF THIS OFFICE OF CLAIMS FOR PAYMENT BY THE UNITED STATES OF THE HOSPITAL AND MEDICAL TREATMENT FURNISHED FIRST LT. HARRY C. HARDESTY, INFANTRY RESERVE, CAPT. ARNETT S. ANDERSON, INFANTRY RESERVE, AND SECOND LT. CHARLES D. VINSON, INFANTRY RESERVE, WHILE ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS--- THE ILLNESS OF INJURY HAVING DEVELOPED WHILE THE OFFICER WAS ON LEAVE OF ABSENCE FROM HIS STATION AND DUTY, AND THE SERVICES WERE IN EACH OF THE CASES PROCURED BY THE OFFICER. THE CLAIMS WERE DISALLOWED BY THIS OFFICE AND YOU SUGGEST THERE IS A VARIATION IN THE SETTLEMENT OF THESE CLAIMS FROM THE INTERPRETATION OF THE PHRASE "IN LINE OF DUTY" "LONG ACCEPTED BY THE WAR DEPARTMENT, AND BY THE ATTORNEY GENERAL" AND YOU REQUEST RECONSIDERATION OF THE SETTLEMENTS.

THE FACTS IN THE RESPECTIVE CASES ARE AS FOLLOWS:

FIRST LT. HARRY C. HARDESTY, INFANTRY RESERVE, WHILE ON A WEEK-END PASS FROM 12 O-CLOCK NOON FEBRUARY 29, 1936, TO 6 A.M. MARCH 2, 1936, AND WHILE AT HIS HOME, DEVELOPED AN ILLNESS WHICH WAS FIRST DIAGNOSED AS A COLD BUT WHICH SUBSEQUENTLY DEVELOPED INTO OR WAS DIAGNOSED AS ACUTE RHEUMATIC FEVER; HE WAS TREATED BY DR. SAMUEL WEISMAN, PARSONS, W.VA., FROM MARCH 5 TO APRIL 4, 1936, WHEN HE WAS TRANSFERRED TO WALTER REED GENERAL HOSPITAL; AND THERE WAS EMPLOYED GLADYS M. BISSETT, R.N., AS NURSE FOR THE PERIOD MARCH 6 TO 24, 1936, AND CLAIMS WERE PRESENTED BY DR. WEISMAN FOR $73 AND BY NURSE BISSETT FOR $114, WHICH WERE DISALLOWED BY SETTLEMENTS OF THIS OFFICE OF JANUARY 9, 1937, FOR THE REASONS, AS STATED IN THE SETTLEMENT OF THE LATTER CLAIM, THAT THE OFFICER---

* * * WAS GRANTED LEAVE OF ABSENCE FOR THE PERIOD FEBRUARY 29 TO MARCH 2, 1936; THAT UPON EXPIRATION OF HIS LEAVE OF ABSENCE HE WAS AT HIS HOME, 54 MILES DISTANT FROM HIS DUTY STATION AND THAT HE WAS ABSENT SICK AT HIS HOME FROM MARCH 2 TO APRIL 4, 1936.

IN VIEW OF THE ABOVE FACTS IT IS CONSIDERED THAT LIEUTENANT HARDESTY WAS ABSENT FROM MILITARY CONTROL AND JURISDICTION DURING THE PERIOD COVERED BY YOUR CLAIM. INASMUCH AS THERE IS NO PROVISION OF LAW FOR PAYMENT FROM PUBLIC FUNDS OF EXPENSES INCURRED FOR CIVILIAN NURSING ATTENDANCE TO OFFICERS OF THE ARMY WHILE IN A STATUS OF LEAVE OF ABSENCE, PAYMENT OF THE AMOUNT CLAIMED IS NOT AUTHORIZED.

CAPT. A. S. ANDERSON, INFANTRY RESERVE, BY PARAGRAPH 5 OF SPECIAL ORDERS NO. 76, DATED HEADQUARTERS, CHARLESTOWN DISTRICT C.C.C., CHARLESTON, W.VA., APRIL 7, 1936, WAS GRANTED 20 DAYS' LEAVE, EFFECTIVE APRIL 10, 1936, THE EFFECTIVE DATE BEING CHANGED TO MAY 5, 1936, BY PARAGRAPH 10, SPECIAL ORDERS 84, ISSUING FROM THE SAME HEADQUARTERS APRIL 16, 1936. WHILE TRAVELING IN PENNSYLVANIA ON THIS 20 DAYS' LEAVE OF ABSENCE, ON MAY 11, 1936, CAPTAIN ANDERSON DEVELOPED ACUTE APPENDICITIS AND WAS ADMITTED TO THE SOMERSET COMMUNITY HOSPITAL, SOMERSET, PA., WHERE HE REMAINED FROM MAY 11 TO 27, THE BILL OF THE HOSPITAL BEING $90.98, THE BILL OF DR. J. D. SPENCER OF THE SAME CITY BEING FOR $100, AND THE BILL OF ADELINE DIETZ, R.N., FOR $9. THESE CLAIMS WERE DISALLOWED JANUARY 19, 1937, FOR THE SAME REASONS GIVEN IN THE CASE OF FIRST LIEUTENANT HARDESTY.

SECOND LT. CHARLES D. VINSON, INFANTRY RESERVE, WHILE ON A WEEKEND PASS EXTENDING FROM 12 O-CLOCK NOON SATURDAY, JULY 11, 1936, TO 10 P.M.,JULY 12, 1936, SUFFERED AN INJURY DESCRIBED IN THE REPORT OF AUGUST 11, 1936, BY THE BOARD OF OFFICERS APPOINTED TO INVESTIGATE HIS INJURY AS FOLLOWS:

FINDINGS.--- (A) THAT ON JULY 11, 1936, ABOUT 7:30 P.M. CHARLES D. VINSON, 2ND LT.INF.RES., WAS ACCIDENTALLY INJURED WHEN HE SLIPPED AND FELL ON A DIVING BOARD WHILE ON SWIMMING PARTY AT LAKEWOOD, NEAR NORTH LITTLE ROCK, ARKANSAS; THAT AT THE TIME OF THE INJURY HE WAS ON AUTHORIZED WEEK- END PASS FROM HIS STATION AT CO. 3782, CCC, HEBER SPRINGS, ARKANSAS; THAT IMMEDIATELY FOLLOWING THE ACCIDENT LT. VINSON WAS TAKEN TO THE HOME OF A FRIEND (BRADELY FISKE), AT SYLVIAN HILLS, ROUTE NO. 3, NORTH LITTLE ROCK, ARKANSAS AND THAT ABOUT 8:30 P.M. THE SAME DATE HE WAS TAKEN TO THE CITY HOSPITAL, LITTLE ROCK, ARKANSAS, FOR EMERGENCY TREATMENT; THAT THE FOLLOWING DAY, SUNDAY JULY 12, 1936, HE RETURNED TO HIS STATION AT HEBER SPRINGS, ARKANSAS, AND REPORTED FOR DUTY; THERE HE REMAINED ON DUTY AND WAS UNDER THE CARE OF THE CAMP SURGEON AT HEBER SPRINGS, REMAINED ON DUTY AND WAS UNDER THE CARE OF THE CAMP SURGEON AT HEBER SPRINGS, ARKANSAS, UNTIL JULY 22, 1936, AT WHICH TIME HE WAS TRANSFERRED TO THE ARMY AND NAVY GENERAL HOSPITAL IN A CCC AMBULANCE FOR FURTHER OBSERVATION AND TREATMENT.

(B) THAT HE WAS SOBER AT THE TIME OF INJURY.

(C)THAT INJURY WAS NOT DUE TO HIS OWN MISCONDUCT.

(D) THAT INJURY OCCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY STATUS.

(E) THAT HE IS STILL IN HOSPITAL.

CLAIMS WERE PRESENTED BY THE LITTLE ROCK GENERAL HOSPITAL FOR $7.50 AND BY DR. J. T. MATTHEWS, HEBER SPRINGS, ARKANSAS, FOR $5, AND THE CLAIMS WERE DISALLOWED JANUARY 14, 1937, FOR THE SAME REASONS GIVEN IN THE SETTLEMENT OF THE CLAIMS IN LIEUTENANT HARDESTY'S CASE, WITH THE ADDITIONAL OBSERVATION:

* * * FURTHERMORE, IT APPEARS THAT IT (THE INJURY) WAS THE RESULT OF PARTICIPATION IN RECREATIONAL ACTIVITIES WHICH ARE DANGEROUS PER SE.

WHETHER IN A PROPER CASE THIS FEATURE WOULD REQUIRE DISALLOWANCE NEED NOT BE CONSIDERED IF BY REASON OF ABSENCE ON LEAVE OF ABSENCE FROM HIS DUTY STATION THERE IS NO OBLIGATION ON THE UNITED STATES TO PAY THE MEDICAL AND HOSPITAL EXPENSES INCURRED BY THE OFFICER.

UNDER A REGULATION PROMULGATED BY THE FORMER COMPTROLLER GENERAL, 1 COMP. GEN. 775, AS MODIFIED BY PARAGRAPH 3 OF GENERAL REGULATION NO. 50, 5 COMP. GEN. 1059, AND WHICH HAS NOT BEEN OTHERWISE MODIFIED IN THIS RESPECT, THE PERSON WHOSE CLAIM HAS BEEN SETTLED HAS THE RIGHT TO REQUEST A REVIEW OF A SETTLEMENT WHICH CLAIMANT BELIEVES NOT TO BE IN ACCORD WITH THE LAW AND THE FACTS. IT WAS NOT BELIEVED DESIRABLE OR PROPER THAT THE HEADS OF DEPARTMENTS SHOULD PROSECUTE REQUESTS FOR REVIEW OF SETTLEMENTS OF CLAIMS ARISING IN THEIR DEPARTMENTS WHICH HAVE BEEN DISALLOWED UNDER THE LAW AND THE FACTS. USUALLY NO INTEREST OF THE UNITED STATES JUSTIFIES ADMINISTRATIVE ACTION IN THE MATTER. WHERE, HOWEVER, THE ACTION HERE IS BELIEVED BY THE HEAD OF THE DEPARTMENT TO HAVE SUCH AN EFFECT UPON THE PERFORMANCE OF THE FUNCTIONS OF HIS DEPARTMENT AS WOULD GIVE THE MATTER AN OFFICIAL INTEREST RATHER THAN THE INTEREST OF THE CLAIMANT, SETTLEMENTS HAVE BEEN RECONSIDERED ON THE APPLICATION OF THE HEAD OF A DEPARTMENT. SUCH OCCASIONS USAULLY ARISE IN THE INTERPRETATION OF RECENT LAWS OR REGULATIONS OR IN THE CASE OF APPARENT DEPARTURES FROM SETTLED PAST PRACTICE. IN THE PRESENT MATTER, THERE HAS BEEN NO CHANGE IN THE LAW NOR CHANGE BY THIS OFFICE IN THE INTERPRETATION OF THE LAW OR SETTLED PRACTICE. THIS OFFICE HAS UNIFORMLY DENIED CLAIMS FOR CIVILIAN MEDICAL AND HOSPITAL TREATMENT RENDERED OFFICERS AND ENLISTED MEN OF THE ARMY, NAVY, OR MARINE CORPS WHEN ON LEAVE OF ABSENCE AND THE SAME INTERPRETATION OF THE LAW HAS BEEN APPLIED TO CLAIMS GROWING OUT OF THE SERVICE OF MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY WHO, WHILE ON ACTIVE DUTY STATUS, BECOME ILL OR ARE INJURED WHILE ON LEAVE OF ABSENCE FROM THEIR DUTY.

BEFORE CONSIDERING THE EXTENDED ARGUMENT ADVANCED AS TO THE PROPER CONSTRUCTION OF THE PHRASE ,IN LINE OF DUTY," A SHORT EXAMINATION OF THE HISTORY OF MEDICAL AND HOSPITAL SERVICES FOR MEMBERS OF THE MILITARY FORCES IS APPROPRIATE. THE EARLY ACTS RELATING TO THE NAVY ARE REFERRED TO IN 7 COMP. GEN. 314, BOTTOM OF PAGE 317. SO, ALSO, IN THE ARMY, FROM THE BEGINNING SURGEONS WERE PROVIDED AND FUNDS WERE APPROPRIATED FOR THE PROCUREMENT OF MEDICAL AND SURGICAL MATERIALS AND SUPPLIES. IN THE ANNUAL APPROPRIATION ACT FOR THE ARMY PROVISION IS MADE FOR PROCURING MEDICAL SERVICES "NOT OTHERWISE PROVIDED FOR., " THAT IS, WHERE ARMY MEDICAL FACILITES ARE NOT AVAILABLE. UP TO AND INCLUDING THE FISCAL YEAR 1907, THE APPROPRIATION WAS LIMITED TO "MEDICAL CARE AND TREATMENT OF OFFICERS, ENLISTED MEN, AND (AS TO THAT FISCAL YEAR) CONTRACT SURGEONS * * * ON TY.' BEGINNING WITH THE FISCAL YEAR 1908, THE LANGUAGE OF THE PROVISION WAS CHANGED TO APPROPRIATE FUNDS FOR MEDICAL TREATMENT, INCLUDING CARE AND SUBSISTENCE IN PRIVATE HOSPITALS, FOR OFFICERS AND ENLISTED MEN "WHEN ENTITLED THERETO BY LAW, REGULATION, OR CONTRACT," WITH A PROVISO---

THAT THIS SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH; * * *.

THIS CHANGE IN THE LANGUAGE OF THE APPROPRIATION ACT IS TREATED FULLY IN 13 COMP. GEN. 140, AT PAGE 143, AND QUOTATION IS MADE FROM THE REMARKS OF THE MEMBER OF THE HOUSE OF REPRESENTATIVES IN CHARGE OF THE BILL EXPLAINING THAT THE CHANGE HAD BEEN MADE AT THE REQUEST OF THE SURGEON GENERAL BUT THAT---

* * * THE COMMITTEE IN ORDER TO PREVENT ANY OFFICER GETTING ANY MEDICAL ATTENDANCE, EXCEPT WHEN IN LINE OF DUTY, PUT IN FURTHER, IT SHALL NOT APPLY TO ANY OFFICER ON FURLOUGH OR ANY OFFICER BEING TREATED BY PRIVATE PHYSICIANS WHEN ON FURLOUGH, IN HOSPITALS, OR BY PRIVATE PHYSICIANS.

FOR OVER THREE-QUARTERS OF A CENTURY NOW CONTENTION HAS BEEN MADE BY SERVICE OFFICERS IN EFFECT THAT MEDICAL SERVICE FOR THEM IS ONE OF THE EMOLUMENTS OF THEIR OFFICE--- SEE THE JONES CASE, 18 HOW. 92--- AND THAT VIEW HAD THE SUPPORT OF THE SUPREME COURT IN THAT CASE. AS SHOWN IN 7 COMP. GEN. 314, THE CONGRESS HAS NOT BEEN OF THAT VIEW. ITS ACTION ON EVERY OCCASION WHEN THE MATTER HAS BEEN PRESENTED TO IT, AS IN THE NAVY ACT OF JULY 15, 1870, 16 STAT. 321, LATER BECOMING SECTION 1586, REVISED STATUTES, AND IN THE CHANGE IN THE LANGUAGE IN THE ANNUAL APPROPRIATION ACTS FOR THE ARMY, HAS BEEN TO LIMIT MEDICAL AND HOSPITAL TREATMENT AT THE EXPENSE OF THE UNITED STATES TO OFFICERS ON DUTY OR NOT ON FURLOUGH OR LEAVE OF ABSENCE. THESE LEGISLATIVE LIMITATIONS SHOW THAT MEDICAL SERVICE IS FURNISHED TO PERSONNEL OF THE ARMED FORCES BY REASON OF THE NATURE OF DUTIES POSSIBLE TO BE REQUIRED OF SUCH PERSONNEL AND CONGRESS HAS THEREFORE SOUGHT TO LIMIT THE SERVICE TO THAT REQUIRED WHILE ON DUTY. MEDICAL SERVICE IS NOT PROVIDED BECAUSE OF A PRESUMED DUTY OF, OR BENEFIT TO, THE GOVERNMENT, ARISING SOLELY OUT OF THE SERVICE RELATIONSHIP OF SUCH PERSONNEL, THAT THEY BE KEPT IN GOOD HEALTH; THERE IS NO MORE REASON FOR THE GOVERNMENT TO SHOW SUCH CONCERN WITH RESPECT TO THE PERSONNEL OF THE MILITARY FORCES THAN WITH RESPECT TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT GENERALLY OR, IN FACT, THE ENTIRE BODY OF CITIZENS. THE DANGER OF SHOT AND SHELL, THE POSSIBLE IMPAIRMENT TO HEALTH FROM SERVICE IN ISOLATED REGIONS, UNSALUBRIOUS CLIMATES, OR IN UNSANITARY SURROUNDINGS BECAUSE OF THE NATURE OF THE SERVICE, THESE WERE THE REASONS FOR PROVIDING A MEDICAL CORPS IN THE ARMY AND FOR APPROPRIATING FUNDS FOR MEDICAL SERVICE NOT OTHERWISE PROVIDED FOR, WHEN ENTITLED THERETO BY LAW, REGULATION, OR CONTRACT, BUT WITH A SPECIFIC PROVISION THAT THIS APPROPRIATION WAS NOT AVAILABLE FOR PAYMENT OF CIVILIAN MEDICAL SERVICES PROCURED WHEN ON LEAVE OF ABSENCE OR FURLOUGH.

UNIFORMLY THE DECISIONS AND SETTLEMENTS OF THIS OFFICE AND OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE GIVEN EFFECT TO THIS CLEAR PURPOSE ON THE PART OF THE CONGRESS TO PROVIDE MEDICAL SERVICE ONLY FOR MILITARY PERSONNEL WHEN ON DUTY, AND ALTHOUGH THE ACT OF APRIL 26, 1938, 45 STAT. 461, AND THE PRIOR ACTS OF WHICH IT WAS AN AMENDMENT (AS ALSO THE LATTER ACT OF JUNE 16, 1936, 49 STAT. 1507), AUTHORIZE MEDICAL AND HOSPITAL TREATMENT FOR MEMBERS OF THE NATIONAL GUARD AND OF THE RESERVES UNDER THE CONDITIONS DESCRIBED IN THE ACT FOR ILLNESS OR INJURY INCURRED "IN LINE OF DUTY," THAT PHRASE HAS NOT BEEN CONSTRUED AS AUTHORIZING MEDICAL TREATMENT FOR SUCH AUXILIARY PERSONNEL OF THE ARMY WHEN ABSENT FROM STATION AND DUTY ON LEAVE OF ABSENCE. SEE 10 COMP. GEN. 13; 12 ID.639; A-34293, DECEMBER 2, 1930. THE SETTLEMENTS TO WHICH YOU REFER REPRESENT, THEREFORE, NO CHANGE IN THE ACTION OR PRACTICE OF THIS OFFICE. AND THIS VIEW OF WHAT IS AUTHORIZED APPARENTLY HAS NOT BEEN HERETOFORE QUESTIONED BY THE WAR DEPARTMENT, AS IT COULD HAVE BEEN BY INCLUSION IN THE RECOMMENDATIONS FOR CLARIFYING LEGISLATION WHICH RESULTED IN THE ACT OF JUNE 15, 1936, IF IT WAS BELIEVED THAT THE CONGRESS INTENDED TO AUTHORIZE MEDICAL, SURGICAL, AND HOSPITAL EXPENSES WITHOUT LIMIT TO OFFICERS OF THE NATIONAL GUARD AND RESERVES WHEN AWAY FROM THEIR ASSIGNED DUTIES ON FULL PAY AND ALLOWANCES ON LEAVE OF ABSENCE AND ENGAGED IN THEIR PRIVATE PURSUITS; NOTWITHSTANDING SPECIFIC PROVISION HAS BEEN MADE AS TO THE REGULAR SERVICE THAT SUCH EXPENSES SHALL NOT BE PAID FOR SUCH LATTER PERSONNEL IN THE SAME SITUATION. MORROW V. UNITED STATES, 65 CT.CLS. 35. OF COURSE, THE REPEATED ANNUAL PROVISIONS IN THE ARMY APPROPRIATION ACT NEGATIVE ANY THOUGHT THAT THE PERSONNEL OF THE REGULAR ESTABLISHMENT ARE SO ENTITLED. THE JUDGE ADVOCATE GENERAL MAKES THE EXTREME ARGUMENT NOTWITHSTANDING THIS STUDIED AND CONSISTENT LEGISLATIVE ACTION TO LIMIT EXPENDITURES FOR MEDICAL TREATMENT TO OFFICERS AND MEN ON DUTY, THAT---

* * * WHERE SUCH RESTRICTIONS DO NOT APPLY, HOWEVER, IT MUST BE PRESUMED THAT THE APPROPRIATED FUNDS ARE TO BE EMPLOYED IN MAINTAINING THE ACTIVE PERSONNEL OF THE ARMY IN A CONDITION FIT FOR DUTY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT WITHOUT REGARD TO INCIDENTAL BENEFITS TO INDIVIDUALS CONCERNED. THE PRESENT CONTENTION MAY HAVE DEVELOPED FROM THE FACT THAT LARGE NUMBERS OF RESERVE OFFICERS ARE NOW AND HAVE BEEN ON DUTY WITH THE CIVILIAN CONSERVATION CORPS AND THE COST OF THEIR ACTIVE DUTY IS REQUIRED TO BE PAID UNDER APPROPRIATIONS FOR THAT ACTIVITY; THAT THAT APPROPRIATION DOES NOT CONTAIN THE LIMITATION FOUND IN THE ANNUAL APPROPRIATION ACTS FOR THE ARMY, THEREFORE, IT IS ARGUED SUCH RESERVE OFFICERS AND, INDEED, ALSO REGULAR ARMY PERSONNEL ON DUTY WITH THE CIVILIAN CONSERVATION CORPS, ARE TO BE PROVIDED WITHOUT LIMIT AS TO THE COST WITH CIVILIAN MEDICAL AND HOSPITAL ATTENTION PROCURED BY THEM OR ON THEIR BEHALF FOR ILLNESS OR INJURY SUFFERED WHILE ON LEAVE OF ABSENCE WITH FULL PAY AND ALLOWANCES, AND THIS THEORY IS SOUGHT TO BE GIVEN EFFECT BY A LETTER OF JUNE 1, 1934 (A.G. 324.5 C.C.C.), BY THE ADJUTANT GENERAL AS FOLLOWS:

MEDICAL AND DENTAL TREATMENT PROVIDED FOR IN LETTER FROM THIS OFFICE TOTAL CORPS AREA COMMANDERS, DATED AUGUST 10, 1933, SUBJECT: "MEDICAL AND DENTAL TREATMENT OF REGULAR AND RESERVE OFFICERS AND REGULAR ARMY ENLISTED MEN ON C.C.C. DUTY IN THE FIELD," INCLUDES MEDICAL ATTENDANCE AND/OR HOSPITALIZATION WHILE ON LEAVE OF ABSENCE PROVIDED THE SICKNESS OR INJURY IS NOT DUE TO THE INDIVIDUAL'S OWN MISCONDUCT. DUE CARE SHOULD BE TAKEN THAT ANY INDEBTEDNESS IS INCURRED IN GOOD FAITH; THAT THE CHARGE IS REASONABLE, AND THAT THE CASE IS AN ACTUAL EMERGENCY.

THE SUBSTANCE OF THIS LETTER MAY HAVE BEEN CARRIED INTO THE CIVILIAN CONSERVATION CORPS REGULATIONS AND IT IS POSSIBLE THESE ARE THE REGULATIONS REFERRED TO BY THE JUDGE ADVOCATE GENERAL AS "PRESCRIBED BY THE PRESIDENT.' AND TO SUPPORT THAT THEORY AN EXTENDED ARGUMENT IS MADE, NECESSARILY BASED ENTIRELY ON THE PROVISIONS OF THE ACT OF APRIL 26, 1928, AND THE PRESENT ACT OF JUNE 15, 1936, AUTHORIZING MEDICAL TREATMENT FOR ILLNESS OR INJURY OF RESERVE OFFICERS ON ACTIVE STATUS SUFFERED WHILE IN LINE OF DUTY. CITATION IS MADE TO CASES CONSIDERED BY THE ATTORNEYS GENERAL OR THE COURTS INVOLVING THE PENSION LAWS, THE LAWS FOR COMPENSATION FOR SERVICE DISABILITIES UNDER THE WAR RISK INSURANCE ACT, OR ITS AMENDMENTS, AND THE MOORE CASE, INVOLVING THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY THEN AUTHORIZED TO BE PAID FOR DEATH IN LINE OF DUTY, THE OFFICER IN THAT CASE HAVING DIED WHILE ON LEAVE OF ABSENCE AND THE ACCOUNTING OFFICERS HAVING HELD THE OFFICER WAS NOT IN LINE OF DUTY WHILE ON LEAVE OF ABSENCE, 15 COMP. DEC. 896, FROM WHICH IT APPEARS THE WAR DEPARTMENT REPORTED THE OFFICER DIED NOT IN THE LINE OF DUTY. WHEN SUIT BY THE BENEFICIARY HAD BEEN FILED IN THE COURT OF CLAIMS THE LAW HAD BEEN AMENDED TO AUTHORIZE PAYMENT OF THE GRATUITY WHEN DEATH IN THE SERVICE OCCURRED NOT DUE TO THE MISCONDUCT OF THE OFFICER OR MAN. IN THAT CASE, DECIDED FEBRUARY 3, 1913, THE COURT'S FINDINGS OF FACT, 48 CT.CLS. 111, ARE THAT CAPTAIN MOORE, AFTER STAYING AT HOME FOR ABOUT 4 WEEKS, WENT UNDER ORDERS TO REJOIN HIS REGIMENT---

* * * ON THE WAY HE WAS ATTACKED BY TYPHOID FEVER, NOT THE RESULT OF HIS OWN MISCONDUCT, FOR WHICH HE WAS ADMITTED TO THE MILITARY HOSPITAL AT FORT LEAVENWORTH, KANS., ON AUGUST 26, 1908, AND FROM WHICH HE DIED AT SAID HOSPITAL SEPTEMBER 8, 1908. * * *

AT PAGES 112, THE COURT STATES THE CLAIM IS BASED ON "THE FOLLOWING STATUTES," QUOTING THE ACT OF MAY 11, 1908, 35 STAT. 108, AUTHORIZING PAYMENT FOR DEATH FROM WOUNDS OR DISEASE CONTRACTED IN LINE OF DUTY, AND THE AMENDATORY ACT OF MARCH 3, 1909, 35 STAT. 735, AMENDING OUT THE WORDS ,CONTRACTED IN THE LINE OF DUTY" AND INSERTING THE WORDS "NOT THE RESULT OF HIS OWN MISCONDUCT.' SEE 32 OP.ATTY.GEN. 12, AT PAGE 22. THE ACCOUNTING OFFICERS IN DISALLOWING THIS CLAIM SEEM TO HAVE OVERLOOKED THEIR OWN HOLDING, 12 COMP. DEC. 562, THAT AN OFFICER OR MAN ON LEAVE OF ABSENCE OR FURLOUGH WHO REPORTS TO A MILITARY STATION BECAUSE OF ILLNESS, AND SURRENDERS THE REMAINDER OF HIS LEAVE OR FURLOUGH IS THEN "ON DUTY.' BUT SEE MORROW V. UNITED STATES, 65 CT.CLS. 35.

THE ACT OF APRIL 26, 1928, SO FAR AS HERE MATERIAL, PROVIDES:

THAT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD WHO SUFFER PERSONAL INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE EN ROUTE TO OR FROM AND WHILE AT ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, OR AT SERVICE SCHOOLS, UNDER THE PROVISIONS OF SECTION 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED; MEMBERS OF THE OFFICERS' RESERVE CORPS AND OF THE ENLISTED RESERVE CORPS OF THE ARMY WHO SUFFER PERSONAL INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS; * * * SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, WHEN HOSPITAL TREATMENT IS NECESSARY FOR APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, BE ENTITLED TO HOSPITAL TREATMENT, INCLUDING MEDICAL TREATMENT, AT GOVERNMENT EXPENSE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITAL TREATMENT, AND, DURING THE PERIOD OF HOSPITALIZATION, TO THE SAME PAY AND ALLOWANCES WHETHER IN MONEY OR IN KIND THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED, AND TO TRANSPORTATION TO THEIR HOMES AT GOVERNMENT EXPENSE WHEN DISCHARGED FROM HOSPITAL; THEY SHALL ALSO BE ENTITLED TO SUCH FURTHER MEDICAL TREATMENT FOR SUCH INJURY OR DISEASE AS IS REASONABLY NECESSARY AFTER ARRIVAL AT THEIR HOMES UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT. * * * NO PERSON HOSPITALIZED UNDER THE FOREGOING PROVISIONS OF THIS SECTION ON ACCOUNT OF ANY PERSONAL INJURY SUFFERED OR DISEASE CONTRACTED SHALL BE ENTITLED TO RECEIVE, IN CONNECTION WITH SUCH INJURY OR DISEASE, PAY OR ALLOWANCE OTHER THAN HOSPITAL TREATMENT, INCLUDING MEDICAL TREATMENT, AND TRANSPORTATION, AS HEREIN PROVIDED, FOR MORE THAN SIX MONTHS; BUT FOR ANY REMAINING PERIOD OF SUCH HOSPITALIZATION HE SHALL BE ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE. * * *

IN CONSIDERING THE ACTS PROVIDING FOR PENSIONS, DISABILITY COMPENSATION, AND DEATH BENEFITS, UNDOUBTEDLY THE GREATEST LIBERALITY HAS BEEN INDULGED IN CONSTRUING THE PHRASE "IN LINE OF DUTY" TO GIVE EFFECT TO THE PRESUMED MAJOR PURPOSE OF THE ACT CONSIDERED. AS TO COMPENSATION FOR VETERANS OF THE WORLD WAR THE CONGRESS HAS CHANGED THE CONDITIONS FOR PAYMENT THEREOF. SEE SECTION 300, WAR RISK INSURANCE ACT, 40 STAT. 405, AND 38 U.S. CODE, SECTION 471.

BUT AS TO THE PENSION LAWS, THE CONGRESS, BY SECTION 4694, REVISED STATUTES (38 U.S.C. 155), HAS SOUGHT TO NEGATIVE PENSIONS FOR DISABILITIES INCURRED WHILE ABSENT ON FURLOUGH OR LEAVE OF ABSENCE. BECAUSE OF THIS SECTION IT WAS NECESSARY IN 36 OP.ATTY.GEN. 156, FOR THE ATTORNEY GENERAL TO RECOGNIZE IN EFFECT A CONSTRUCTIVE DUTY STATUS (SEE 10 COMP. GEN. 377; 15 ID. 689) WHILE THE INDIVIDUAL IS ABSENT FROM HIS PLACE OF DUTY FOR A SHORT PERIOD DURING THE PORTION OF THE DAY WHEN HE IS RELIEVED FROM THE ACTUAL PERFORMANCE OF HIS DAILY DUTY AND IS IN SUCH CLOSE PROXIMITY TO HIS DUTY STATION AS IN EFFECT TO CONSTITUTE HIM AVAILABLE FOR DUTY SHOULD HIS SERVICES BE REQUIRED. IT SHOULD BE NOTED, HOWEVER, THAT THE CONGRESS HAS NOT IN ANY STATUTE SPECIFICALLY RECOGNIZED THIS ADMINISTRATIVE EXTENSION OF THE MEANING OF THE TERM AND THAT WHENEVER IT HAS RECEIVED THE SPECIFIC ATTENTION OF THE CONGRESS IT HAS LIMITED THE APPLICATION OF THE TERM TO ONE IN A DUTY STATUS. IT IS POSSIBLE THAT FOR THE PURPOSE OF THE PENSION LAWS (WHEN NOT OTHERWISE LIMITED BY STATUTE), AND FOR THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY, THE PROVISION FOR FURLOUGHS OR LEAVES OF ABSENCE IS "A PART OF THE DISCIPLINARY REGULATIONS OF THE MILITARY SERVICES," ALTHOUGH SUCH CONCLUSION, EXCEPT FOR THE OPINION IN THE MOORE CASE, IS SUPPORTED ONLY BY RELATIVELY RECENT OPINIONS BY THE ATTORNEYS GENERAL. HOWEVER, IT IS TO BE NOTED THAT THE TERM HAS BEEN GIVEN A MORE RESTRICTED MEANING IN SOME OF THE STATE COURTS, FOR EXAMPLE, AS THE EQUIVALENT OF "IN THE COURSE OF HIS EMPLOYMENT," BURIAN V. LOS ANGELES CAFE CO., 161 P. 4, 173, CAL. 625, OR AS SYNONYMOUS WITH "IN THE DISCHARGE OF DUTY," ALLEN V. BURLINGTON ETC. R. CO., 57 IOWA 623; 11 NW. 614. IN THE MATTERS CONSIDERED IN THESE LATTER CASES IT IS APPARENT THERE WAS REQUIRED MORE THAN EMPLOYMENT TO CONSTITUTE THE INDIVIDUAL "IN THE LINE OF HIS DUTY.' THERE IS THUS NO SUCH SETTLED JUDICIAL CONSTRUCTION OF THE TERM AS WOULD JUSTIFY ATTRIBUTING TO THE PHRASE THE MEANING THAT A PERSON IN THE MILITARY SERVICES "IS IN LINE OF DUTY UNTIL SEPARATED FROM THE SERVICE BY DEATH OR DISCHARGE, IF DURING SUCH TIME HE IS SUBMITTING TO ALL OF ITS LAWS AND REGULATIONS," AND THAT WHENEVER CONGRESS IN ANY STATUTE USES THE PHRASE THAT MEANING IS TO BE GIVEN IT, ESPECIALLY SO, WHEN THE CONGRESS HAS SOUGHT IN SOME INSTANCES TO INCLUDE LANGUAGE IN THE STATUTE THAT WOULD REBUT SUCH AN INTERPRETATION OF THE PHRASE. IN THE PRESENT STATE OF THE LAW, THEREFORE, THIS OFFICE MUST CONCLUDE THAT EXPENDITURES FOR SERVICES IN KIND PERMITTED BY LAW FOR OFFICERS OF THE MILITARY SERVICES WHEN "IN LINE OF DUTY" OR WHEN "ON DUTY" CONTEMPLATE AT LEAST A DUTY STATUS AS DISTINCT FROM ABSENCE FROM DUTY ON LEAVE OF ABSENCE.

AS STATED ABOVE, THE REASONS FOR FURNISHING MEDICAL SERVICES TO PERSONNEL OF THE ARMY ARE BECAUSE OF THE NATURE OF THE DUTIES POSSIBLE TO BE REQUIRED OF SUCH PERSONNEL. WHEN SUCH PERSONNEL IS RELIEVED FROM PERFORMANCE OF DUTY, IS GRANTED LEAVE OF ABSENCE OR FURLOUGH, IS PERMITTED TO TRAVEL TO EXTENDED DISTANCES ENTIRELY FOR THE PRIVATE INTERESTS OF SUCH PERSONNEL, SUCH PERSONNEL IS NOT IN LINE OF DUTY FOR THE PURPOSE OF SECURING CIVILIAN MEDICAL AND HOSPITAL TREATMENT AT THE EXPENSE OF THE UNITED STATES. THAT THIS IS TRUE WITH RESPECT TO THE REGULAR ESTABLISHMENTS IS CLEAR FROM THE STATUTES; IT IS OBVIOUS THAT MORE WAS NOT INTENDED BY THE ACT OF APRIL 26, 1928, OR THE LATER ACT OF JUNE 15, 1936. WHY SHOULD CONGRESS MAKE MORE EXTENSIVE PROVISION FOR MEMBERS OF THE NATIONAL GUARD OR THE OFFICERS' RESERVE CORPS IN THIS RESPECT, THAT IS, THAT THE UNITED STATES SHOULD FOLLOW MEMBERS OF THESE AUXILIARY FORCES WITH MEDICAL SERVICES OF THEIR SELECTION WHEREVER THEY MAY GO ON THEIR PRIVATE BUSINESS WHILE ON LEAVE OF ABSENCE AND RELIEVED FROM THE PERFORMANCE OF DUTY, AND THIS WITHOUT LIMIT AS TO COSTS?

EXAMINATION OF THE STATUTES IN CONNECTION WITH WHAT IS PROVIDED FOR THE REGULAR ESTABLISHMENTS SHOWS THIS WAS NEVER INTENDED. THE HISTORY OF THE ACT UNDER CONSIDERATION AND THE REASONS FOR ITS ENACTMENT ALSO SHOW OTHERWISE. PRIOR TO THE ACTS PROVIDING FOR MEDICAL TREATMENT FOR MEMBERS OF THE NATIONAL GUARD AND OF THE OFFICERS' RESERVE CORPS WHEN ON ACTIVE DUTY, IT HAS BEEN HELD THAT ILLNESS OR INJURY DURING THE COURSE OF TRAINING FOR THE LIMITED PERIOD ON ACTIVE DUTY OR AT ENCAMPMENT--- USUALLY 15 DAYS--- DID NOT ENTITLE THE MEMBER TO MEDICAL AND HOSPITAL TREATMENT AT THE EXPENSE OF THE UNITED STATES AFTER THE EXPIRATION OF THE PERIOD FOR WHICH HE WAS ORDERED TO ACTIVE DUTY, AND THAT THE MEMBER'S PAY WAS STOPPED WITH THE EXPIRATION OF THAT PERIOD, 27 COMP. DEC. 631. THE CONGRESS WAS ENDEAVORING TO PROVIDE MEDICAL SERVICES FOR INJURY OR ILLNESS SUFFERED WHEN ON DUTY, THE DISABILITY FROM WHICH EXTENDED BEYOND THE PERIOD FOR WHICH THE OFFICER WAS ORDERED TO ACTIVE DUTY OR AT THE ENCAMPMENT IN THE NATIONAL GUARD, AND TO GIVE PAY AND ALLOWANCES FOR A LIMITED TIME--- NOT EXCEEDING 6 MONTHS--- FOLLOWING THE TERMINATION OF THE PERIOD FOR WHICH THE INJURED OR ILL MEMBER WAS ORDERED TO ACTIVE DUTY. THAT IT HAS MADE ITS PURPOSES CLEAR RESPECTING THE NATIONAL GUARD IS SHOWN BY THE PORTION OF THE STATUTE ITALICIZED ABOVE. TO SAY THAT THE CONGRESS WAS INTENDING TO PROVIDE MORE FOR THESE RESERVE OR NATIONAL GUARD OFFICERS THAN HAD EVER BEEN PROVIDED FOR THE REGULAR ESTABLISHMENTS, THE FURNISHING OF WHICH TO THE REGULAR ESTABLISHMENTS HAD BEEN NEGATIVED ON EVERY OCCASION THE MATTER CAME BEFORE THE CONGRESS, WOULD BE IMPUTING TO THE CONGRESS COMPLETE UNFAMILIARITY WITH THE SUBJECT MATTER ON WHICH IT WAS LEGISLATING. IT DID NOT USE THE TERM "IN LINE OF DUTY" TO ACCOMPLISH ANY SUCH PURPOSE.

ON A REEXAMINATION OF THE ACTION TAKEN IN THE CLAIMS SETTLEMENTS REFERRED TO ABOVE, IT IS FOUND THAT THE SETTLEMENTS ARE IN ACCORD WITH THE DECISIONS OF THIS OFFICE AND NO BASIS IS SHOWN FOR THEIR MODIFICATION.