A-88021, SEPTEMBER 17, 1937, 17 COMP. GEN. 258

A-88021: Sep 17, 1937

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MEDICAL TREATMENT - PRIVATE - VOLUNTEER MARINE CORPS RESERVE OFFICER INJURED WHILE ON LEAVE OF ABSENCE PAYMENT IS NOT AUTHORIZED FOR PRIVATE MEDICAL ATTENDANCE AND HOSPITAL TREATMENT RENDERED AN OFFICER OF THE VOLUNTEER MARINE CORPS RESERVE ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS. IT IS REPORTED THAT LIEUTENANT GILLIS RECEIVED THE INJURIES NECESSITATING HOSPITALIZATION WHILE AWAY FROM HIS DUTY STATION ON LEAVE OF ABSENCE. ADVISING YOU THAT THE HOSPITALIZATION OF LIEUTENANT GILLIS IS AUTHORIZED BY THE WAR DEPARTMENT AND THE OBLIGATION INCURRED FOR HOSPITAL SERVICES WILL BE PAID FROM CIVILIAN CONSERVATION CORPS FUNDS. PROVIDED MISCONDUCT IS NOT INVOLVED.'. WHATEVER ARE THE RIGHTS OF AN OFFICER OF THE REGULAR ARMY OR AN OFFICER OF THE OFFICERS' RESERVE CORPS OF THE ARMY.

A-88021, SEPTEMBER 17, 1937, 17 COMP. GEN. 258

MEDICAL TREATMENT - PRIVATE - VOLUNTEER MARINE CORPS RESERVE OFFICER INJURED WHILE ON LEAVE OF ABSENCE PAYMENT IS NOT AUTHORIZED FOR PRIVATE MEDICAL ATTENDANCE AND HOSPITAL TREATMENT RENDERED AN OFFICER OF THE VOLUNTEER MARINE CORPS RESERVE ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS, INJURED WHILE ON LEAVE OF ABSENCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE HARRISBURG HOSPITAL, INC., SEPTEMBER 17, 1937:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR REVIEW OF SETTLEMENT NO. 0658490, DATED JUNE 23, 1937, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT IN THE AMOUNT OF $134.25, COVERING HOSPITAL CARE AND TREATMENT RENDERED STEPHEN E. GILLIS FROM JANUARY 16, 1937, TO FEBRUARY 13, 1937, WHILE ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS AS FIRST LIEUTENANT, VOLUNTEER MARINE CORPS RESERVE.

IT IS REPORTED THAT LIEUTENANT GILLIS RECEIVED THE INJURIES NECESSITATING HOSPITALIZATION WHILE AWAY FROM HIS DUTY STATION ON LEAVE OF ABSENCE. YOU SUBMIT IN SUPPORT OF YOUR CLAIM A COPY OF LETTER ADDRESSED TO YOU FEBRUARY 6, 1937, BY FIRST LT. CHARLES C. TRENDLEY, INFANTRY RESERVE, UNITED STATES ARMY, ADVISING YOU THAT THE HOSPITALIZATION OF LIEUTENANT GILLIS IS AUTHORIZED BY THE WAR DEPARTMENT AND THE OBLIGATION INCURRED FOR HOSPITAL SERVICES WILL BE PAID FROM CIVILIAN CONSERVATION CORPS FUNDS; ALSO, COPY OF LETTER ADDRESSED TO THE CHIEF OF FINANCE, MAY 13, 1937, BY THE SURGEON GENERAL OF THE ARMY, ADVISING THAT THE CHARGES FOR TREATMENT APPEAR TO BE PROPERLY PAYABLE UNDER THE PROVISIONS OF A LETTER OF THE ADJUTANT GENERAL OF THE ARMY DATED JUNE 1, 34,"WHICH AUTHORIZES THE PAYMENT OF ACCOUNTS FOR TREATMENT OF REGULAR AND RESERVE PERSONNEL, C.C.C. DUTY, WHILE ON LEAVE, PROVIDED MISCONDUCT IS NOT INVOLVED.' PAYMENT OF CLAIMS MAY BE MADE ONLY UNDER AUTHORITY OF STATUTE OR REGULATIONS ISSUED IN PURSUANCE THEREOF, AND THE UNITED STATES MAY NOT BE BOUND BY UNAUTHORIZED PROMISES OR INSTRUCTIONS OF AN OFFICER OF THE UNITED STATES.

WHATEVER ARE THE RIGHTS OF AN OFFICER OF THE REGULAR ARMY OR AN OFFICER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, THIS CASE INVOLVES THE RIGHT OF AN OFFICER OF THE VOLUNTEER MARINE CORPS RESERVE ON ACTIVE DUTY.

THE FINDINGS OF THE BOARD OF OFFICERS WHICH INVESTIGATED THE INJURIES TO FIRST LIEUTENANT GILLIS ARE IN PART AS FOLLOWS:

1. ON JANUARY 16, 1937, WHILE ON ACTIVE DUTY, SEE EXHIBIT E, RETURNING FROM OFFICIAL LEAVE, SEE EXHIBIT F, TO HIS PROPER STATION, V 2624TH CO., C.C.C., CAMP CADIZ, F-9, SPARKS HILL, ILLINOIS, LIEUT. S. E. GILLIS FOUND ROUTE NO. 1, THE REGULARLY TRAVELLED ROUTE TO HIS STATION, IMPASSABLE, DUE TO LOCAL FLOOD CONDITIONS. HE THEN PROCEEDED SOUTH ON ROUTE NO. 45 IN AN ATTEMPT TO REACH HIS STATION VIA ROUTE NO. 45 TO VIENNA, ROUTE NO. 146 TO GOLCONDA, ROUTE 34 TO KARBER'S RIDGE, THENCE TO SPARKS HILL, ILLINOIS. LIEUT. GILLIS DEPARTED ON OFFICIAL LEAVE PER PAR. 6, O., NO. 8, HEADQUARTERS, JEFFERSON BARRACKS, C.C.C. DISTRICT, JEFFERSON BARRACKS, MISSOURI, DATED JANUARY 11, 1937, SEE EXHIBIT F, ON JANUARY 14, 1937, AND WAS DUE BACK TO HIS PROPER STATION AS OF MIDNIGHT JANUARY 16, 1937.

2. AT ABOUT 3:00 P.M., AT BLOOMFIELD, ILLINOIS, APPROXIMATELY 3 MILES NORTH OF VIENNA, ILLINOIS, AT THE POINT WHERE ROUTE NO. 45 PASSES OVER THE C.C.C. AND ST. L. RAILROAD TRACKS, BY MEANS OF AN OVERHEAD BRIDGE WITH CONCRETE RETAINING WALLS AND ABUTMENTS, LT. GILLIS LOST CONTROL OF HIS CAR AND STRUCK THE WEST ABUTMENT OF THE FORE-MENTIONED RETAINING WALL.

3. PERSONS UNKNOWN MOVED LT. GILLIS FROM THE WRECKAGE AND CARRIED HIM TO AN AUTOMOBILE AND TOOK HIM TO THE OFFICE OF DR. E. A. VEACH, VIENNA, ILL., AND LEFT LT. GILLIS IN THE DOCTOR'S CARE. THE PARTIES DEPARTED WITHOUT DIVULGING THEIR NAMES OR ADDRESSES.

4. DR. VEACH ADMINISTERED FIRST AID, AND FOUND LT. GILLIS TO BE SUFFERING FROM THE FOLLOWING INJURIES AS PER HIS AFFIDAVIT ATTACHED AS EXHIBIT B:

FRACTURE OF THE RIGHT LEG; FRACTURE OF SEVERAL RIBS, LEFT SIDE OF CHEST; LACERATIONS OF THE FOREHEAD, NOSE, UPPER LIP, FINGERS OF BOTH HANDS; POSSIBLE SKULL FRACTURE; AND POSSIBLE INTERNAL INJURIES.

DR. VEACH THEN HAD LT. GILLIS REMOVED TO THE HARRISBURG HOSPITAL, HARRISBURG, ILLINOIS, VIA PRIVATE AMBULANCE. LT. GILLIS WAS ADMITTED TO THE HARRISBURG HOSPITAL APPROXIMATELY 10:00 P.M., JANUARY 16, 1937. HOSPITALIZATION HAS NOT TERMINATED THIS DATE.

5. OFFICIALS OF THE HARRISBURG HOSPITAL IDENTIFIED LT. GILLIS AS BEING ASSIGNED TO THE V-2624TH CO., C.C.C., THROUGH PAPERS IN HIS PERSONAL POSSESSION. THE OFFICIALS THEN NOTIFIED THE CAMP OF THE ACCIDENT.

6. 1ST LT. A. M. RISK IN, MED-RES., PROCEEDED FROM CAMP CADIZ TO THE HARRISBURG HOSPITAL AND EXAMINED THE PATIENT AND FOUND HIM TO BE SUFFERING FROM THE FOLLOWING INJURIES, AS PER HIS CERTIFICATE MARKED EXHIBIT C, ATTACHED:

SPIRAL FRACTURE OF MIDDLE THIRD OF RIGHT FIBULA; COMPLETE FRACTURE OF FOURTH, FIFTH, AND SIXTH RIBS; AND INCOMPLETE FRACTURE OF SECOND AND THIRD RIBS ON LEFT SIDE OF CHEST; LACERATIONS OF HANDS AND LEGS AND BRUSH BURN ON WEB OF LEFT HAND BETWEEN THUMB AND INDEX FINGER.

7. UPON ADVICE OF ATTENDING PHYSICIAN, NO ATTEMPT WAS MADE TO OBTAIN A STATEMENT FROM LIEUT. GILLIS UNTIL MONDAY, JANUARY 18, 1937, AT WHICH TIME HE STATED, AS PER ATTACHED CERTIFICATE MARKED EXHIBIT D, THAT WHILE RETURNING TO HIS PROPER STATION FROM OFFICIAL LEAVE HE LOST CONTROL OF HIS CAR AT A POINT WHERE ROUTE NO. 45 CROSSES THE C.C.C. AND ST. L. RAILROAD TRACKS. HE LOST CONSCIOUSNESS FROM THE IMPACT AND HAS NO KNOWLEDGE OF WHAT TRANSPIRED FROM THE TIME OF THE ACCIDENT UNTIL SOMETIME SUNDAY, JANUARY 17, 1937, WHEN HE PARTIALLY REGAINED CONSCIOUSNESS AT THE HARRISBURG HOSPITAL.

8. RECORDS OF THE HARRISBURG HOSPITAL AND THE AFFIDAVIT OF DR. E. A. VEACH, ATTACHED AS EXHIBIT B, AND THE CERTIFICATE OF LIEUT. RISK IN, ATTACHED AS EXHIBIT C, INDICATE THAT AT THE TIME OF THE ACCIDENT LT. GILLIS WAS NOT UNDER THE INFLUENCE OF INTOXICATING LIQUORS OR DRUGS.

THE BOARD'S CONCLUSION WAS IN PART AS FOLLOWS:

1. THAT LIEUT. GILLIS LEFT CHICAGO, ILL., AT APPROXIMATELY 11:00 P.M. JANUARY 15, 1937, AND ARRIVED AT CARBONDALE, ILL., AT APPROXIMATELY 6:05 A.M. JANUARY 16, 1937. AT APPROXIMATELY 7:30 A.M. JANUARY 16, 1937, HE LEFT CARBONDALE, DRIVING HIS PERSONAL AUTOMOBILE, EN ROUTE TO HIS PROPER STATION. DUE TO LOCAL FLOOD CONDITIONS AND UNDER ADVERSE WEATHER AND ROAD CONDITIONS, LT. GILLIS MADE NUMEROUS DETOURS IN AN ATTEMPT TO REACH HIS PROPER STATION.

2. THAT AT ABOUT 3:00 P.M. ON JANUARY 16, 1937, NEAR BLOOMFIELD, ILL., APPROXIMATELY 3 MILES NORTH OF VIENNA, ILLINOIS, ON ROUTE NO. 45, LT. GILLIS, AFTER HAVING DRIVEN ALL DAY, TRAVELING SOME 150 MILES, APPARENTLY FELL ASLEEP, LOST CONTROL OF HIS CAR, AND STRUCK THE CONCRETE ABUTMENT OF THE OVERHEAD BRIDGE.

WE THUS HAVE AN OFFICER OF THE VOLUNTEER MARINE CORPS RESERVE, ABSENT FROM HIS POST OF DUTY, PROCEEDING ON HIS PRIVATE BUSINESS, WHO IS INJURED DUE TO HIS CONSCIOUS OR UNCONSCIOUS NEGLECT OF PROPER PRECAUTIONS IN DRIVING HIS CAR; WHO IS PLACED IN THE CARE OF A PHYSICIAN BY STRANGERS; AND WHO IS THEN PLACED IN A PRIVATE HOSPITAL BY THE PHYSICIAN--- ALL ACTING WITHOUT AUTHORITY FROM ANY AGENCY OF THE UNITED STATES AND ENTIRELY ON THEIR OWN INITIATIVE--- AND CLAIM IS THEN MADE AGAINST THE UNITED STATES FOR THE COST OF HIS MEDICAL AND HOSPITAL TREATMENT. ON SUCH A STATE OF FACTS, THE LIABILITY OF THE UNITED STATES MUST CLEARLY APPEAR FROM THE STATUTES. THE MARINE CORPS RESERVE IS CREATED AND ESTABLISHED BY SECTION 2 OF THE ACT OF FEBRUARY 28, 1925 (43 STAT. 1080/---

* * * AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS, * * * UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THIS ACT OR WHICH MAY HEREAFTER BE ENACTED PROVIDING FOR THE NAVAL RESERVE: PROVIDED, THAT THE MARINE CORPS RESERVE SHALL CONSIST OF TWO CLASSES, NAMELY, THE FLEET MARINE CORPS RESERVE AND THE VOLUNTEER MARINE CORPS RESERVE, CORRESPONDING, AS NEAR AS MAY BE, TO THE FLEET NAVAL RESERVE AND THE VOLUNTEER NAVAL RESERVE, RESPECTIVELY.

SECTION 10 OF THE ACT PROVIDES IN PART:

OFFICERS AND MEN OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY, * * * OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, * * * OR DURING SUCH TIME AS THEY MAY BY LAW BE REQUIRED TO PERFORM ACTIVE DUTY IN ACCORDANCE WITH THEIR OBLIGATIONS, OR WHILE WEARING A UNIFORM PRESCRIBED FOR THE NAVAL RESERVE, SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY. * * *

SECTION 14 OF THE ACT IS AS FOLLOWS:

THAT IF IN TIME OF PEACE ANY OFFICER OR ENLISTED MAN OF THE NAVAL RESERVE IS PHYSICALLY INJURED IN THE LINE OF DUTY WHILE PERFORMING ACTIVE DUTY, AUTHORIZED TRAINING DUTY WITH OR WITHOUT PAY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, OR DIES AS THE RESULT OF SUCH PHYSICAL INJURY, HE OR HIS BENEFICIARY SHALL BE ENTITLED TO ALL THE BENEFITS PRESCRIBED BY LAW FOR CIVIL EMPLOYEES OF THE UNITED STATES WHO ARE PHYSICALLY INJURED IN THE LINE OF DUTY OR WHO DIE AS THE RESULT THEREOF; AND THE UNITED STATES EMPLOYEES COMPENSATION COMMISSION SHALL HAVE JURISDICTION IN SUCH CASES AND SHALL PERFORM THE SAME DUTIES WITH REFERENCE THERETO AS IN THE CASES OF CIVIL EMPLOYEES OF THE UNITED STATES SO INJURED: PROVIDED, THAT IN NO CASE SHALL SICKNESS OR DISEASE BE REGARDED AS AN INJURY WITHIN THE MEANING OF THIS SECTION RELATING TO THE NAVAL RESERVE.

THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY ARE APPLICABLE TO AN OFFICER OF THE VOLUNTEER MARINE CORPS RESERVE WHEN ON ACTIVE DUTY. AMONG THOSE LAWS SO APPLICABLE TO HIM IS SECTION 1586, REVISED STATUTES (34 U.S.C. 921), AS FOLLOWS:

EXPENSES INCURRED BY ANY OFFICER OF THE NAVY FOR MEDICINES AND MEDICAL ATTENDANCE SHALL NOT BE ALLOWED UNLESS THEY WERE INCURRED WHEN HE WAS ON DUTY AND THE MEDICINES COULD NOT HAVE BEEN OBTAINED FROM NAVAL SUPPLIES OR THE ATTENDANCE OF A NAVAL MEDICAL OFFICER COULD NOT HAVE BEEN HAD.

WHETHER, UNDER THE CIRCUMSTANCES OF HIS INJURIES, THE OFFICER IS ENTITLED TO THE BENEFIT OF THE PROVISIONS MADE IN SECTION 14 OF THE NAVAL RESERVE ACT IS NOT FOR DETERMINATION BY THIS OFFICE, BUT WHETHER THE CHARGES ARE PAYABLE UNDER THE APPROPRIATION PROPOSED--- "EMERGENCY CONSERVATION WORK (TRANSFER TO WAR), 1937--- MARCH 31, 1937," CONTAINED IN THE DEFICIENCY APPROPRIATION ACT OF JUNE 12, 1936 (49 STAT. 1597, 1601), IS A MATTER WITHIN THE JURISDICTION OF THIS OFFICE. THE OFFICER WAS NOT ON DUTY BUT ON LEAVE OF ABSENCE WHEN INJURED, AND SECTION 1586, REVISED STATUTES, PROHIBITS PAYMENT OF THE CHARGES INCURRED FOR HIS MEDICAL ATTENDANCE AND HOSPITAL TREATMENT. THE CLAIM WAS PROPERLY DISALLOWED AND ON REVIEW IS SUSTAINED.