A-97203, DECEMBER 5, 1938, 18 COMP. GEN. 496

A-97203: Dec 5, 1938

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MEMBERS OF THE FLEET RESERVE AND RETIRED ENLISTED MEN SHALL RECEIVE THE RATION ALLOWANCE PRESCRIBED BY LAW FOR ENLISTED MEN OF THE REGULAR NAVY WHEN SUCH MEN ARE HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW" IS TO AMEND OUT OF THE ACT OF JANUARY 19. WHEN RETIRED ENLISTED MEN OR TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE ARE HOSPITALIZED IN VETERANS' ADMINISTRATION FACILITIES. - AND FOR THIS PURPOSE ADMISSIONS TO A GOVERNMENT HOSPITAL WITHOUT THE PRIOR APPROVAL OF THE NAVY DEPARTMENT (WITH THE POSSIBLE EXCEPTION OF EMERGENCY CASES) ARE NOT HOSPITALIZATIONS "IN ACCORDANCE WITH LAW". - THE SUBSISTENCE CHARGE DURING SUCH HOSPITALIZATION IS PAYABLE UNDER THE APPROPRIATION "SUBSISTENCE OF NAVAL PERSONNEL.'.

A-97203, DECEMBER 5, 1938, 18 COMP. GEN. 496

RETIRED AND FLEET RESERVE PERSONNEL - SUBSISTENCE WHILE IN GOVERNMENT HOSPITALS - EFFECT OF NAVAL RESERVE ACT OF 1938 THE EFFECT OF SECTION 207 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, PROVIDING THAT ,MEMBERS OF THE FLEET RESERVE AND RETIRED ENLISTED MEN SHALL RECEIVE THE RATION ALLOWANCE PRESCRIBED BY LAW FOR ENLISTED MEN OF THE REGULAR NAVY WHEN SUCH MEN ARE HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW" IS TO AMEND OUT OF THE ACT OF JANUARY 19, 1929, 45 STAT. 1090, THE PROVISION FOR DEDUCTION OF RATION ALLOWANCE AS PROVIDED BY SECTION 4812, REVISED STATUTES, AS TO THE PERSONNEL DESCRIBED, WHEN HOSPITALIZED IN A FEDERAL HOSPITAL "IN ACCORDANCE WITH LAW.' WHEN RETIRED ENLISTED MEN OR TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE ARE HOSPITALIZED IN VETERANS' ADMINISTRATION FACILITIES, ARMY HOSPITALS, PUBLIC HEALTH SERVICE HOSPITALS, AND OTHER FEDERAL HOSPITALS, AND EXCEPT ST. ELIZABETHS HOSPITAL,"IN ACCORDANCE WITH LAW" WITHIN THE MEANING OF SECTION 207 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180--- AND FOR THIS PURPOSE ADMISSIONS TO A GOVERNMENT HOSPITAL WITHOUT THE PRIOR APPROVAL OF THE NAVY DEPARTMENT (WITH THE POSSIBLE EXCEPTION OF EMERGENCY CASES) ARE NOT HOSPITALIZATIONS "IN ACCORDANCE WITH LAW"--- THE SUBSISTENCE CHARGE DURING SUCH HOSPITALIZATION IS PAYABLE UNDER THE APPROPRIATION "SUBSISTENCE OF NAVAL PERSONNEL.' THE VETERANS' ADMINISTRATION, HAVING HELD THAT THE ACT OF JUNE 11, 1930, 46 STAT. 556, FIXING THE STATUS OF RETIRED ENLISTED MEN OF THE NAVY AND MARINE CORPS AND TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE TRANSFERRED THERETO AFTER 16 OR MORE YEARS' SERVICE, AS THAT OF VETERANS FOR VETERANS' BUREAU HOSPITALIZATION PURPOSES, AND PROVIDING THAT NO DEDUCTION NEED BE MADE FOR HOSPITAL RATIONS WHILE IN A GOVERNMENT HOSPITAL, WAS REPEALED BY SECTION 17, ACT OF MARCH 20, 1933, 48 STAT. 11, RETIRED ENLISTED MEN AND TRANSFERRED MEMBERS OF THE NAVAL RESERVE MAY BE HOSPITALIZED IN VETERANS' ADMINISTRATION HOSPITALS "IN ACCORDANCE WITH LAW" WITHIN THE MEANING OF SECTION 207 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, ONLY WHEN SUCH HOSPITALIZATION IS PROVIDED FOR BY THE SECRETARY OF THE NAVY, AND IF ADMITTED UNDER THE PRESENT LAW AND REGULATIONS OF THE VETERANS' ADMINISTRATION WITHOUT THE INTERVENTION OF THE NAVY DEPARTMENT, PAYMENT FOR SUBSISTENCE WHILE IN HOSPITAL IS CONTROLLED BY THE REGULATIONS OF THE VETERANS' ADMINISTRATION. A-97203, SEPTEMBER 1, 1938, AMPLIFIED. RETIRED ENLISTED MEN OR TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE HOSPITALIZED IN ARMY HOSPITALS ON THEIR OWN APPLICATION MADE DIRECT TO THE ARMY HOSPITAL IN ACCORDANCE WITH ARTICLE 1204 (6), NAVY REGULATIONS, 1920, AND WITHOUT THE PRIOR APPROVAL OF THE NAVY DEPARTMENT, ARE NOT HOSPITALIZED "IN ACCORDANCE WITH LAW" WITHIN THE MEANING OF SECTION 207 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, AND NO NAVAL APPROPRIATION IS AVAILABLE FOR PAYMENT OF THEIR SUBSISTENCE IN SUCH HOSPITALS. THE APPROPRIATION AVAILABLE FOR RATIONS OR SUBSISTENCE OF RETIRED ENLISTED MEN OF THE NAVY OR MARINE CORPS WHEN HOSPITALIZED IN A FEDERAL HOSPITAL, EXCEPT ST. ELIZABETHS HOSPITAL,"IN ACCORDANCE WITH LAW" WITHIN THE MEANING OF SECTION 207 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, IS ALSO AVAILABLE FOR RATIONS OR SUBSISTENCE OF RETIRED ENLISTED MEN SO HOSPITALIZED WHO HAVE BEEN ACCORDED COMMISSIONED OR WARRANT RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF THE ACT OF MAY 7, 1932, 47 STAT. 150.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 5, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 28, 1938, SUBMITTING FURTHER QUESTIONS ARISING UNDER SECTION 207 OF THE NAVAL RESERVE ACT OF 1938, ACT OF JUNE 25, 1938, PUBLIC NO. 732, 52 STAT. 1180, WHICH PROVIDES:

MEMBERS OF THE FLEET RESERVE AND RETIRED ENLISTED MEN SHALL RECEIVE THE RATION ALLOWANCE PRESCRIBED BY LAW FOR ENLISTED MEN OF THE REGULAR NAVY WHEN SUCH MEN ARE HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW.

QUESTIONS OF THE APPROPRIATIONS AVAILABLE FOR PAYMENT OF THESE CHARGES WERE CONSIDERED IN DECISION TO YOU UNDER THIS NUMBER SEPTEMBER 1, 1938, AND IT WAS THEREIN POINTED OUT THE CONCLUDING CLAUSE "WHEN SUCH MEN ARE HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW" QUALIFIES AND LIMITS THE GRANT OF THE RATION ALLOWANCE TO MEMBERS OF THE FLEET RESERVE AND RETIRED ENLISTED MEN, THAT IS, THE MEN DESCRIBED ARE ENTITLED TO THE RATION ALLOWANCE ONLY WHEN "HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW.' YOUR LETTER OF SEPTEMBER 28, 1938, IS IN PART AS FOLLOWS:

* * * CERTAIN QUESTIONS HAVE ARISEN UNDER SECTION 207 OF THE NAVAL RESERVE ACT OF 1938 WHICH ARE NOT COVERED BY THE ACTING COMPTROLLER GENERAL'S DECISION OF SEPTEMBER 1, 1938. THESE ADDITIONAL QUESTIONS RELATE TO THE APPLICATION OF SAID SECTION 207 TO THE TERMS OF THE ACT APPROVED JANUARY 19, 1929 (45 STAT. 1090; 24 U.S.C CODE, SEC. 24), WHICH PROVIDES:

"THAT HEREAFTER THE SECRETARY OF THE NAVY MAY PROVIDE FOR THE CARE AND TREATMENT OF NAVAL PATIENTS ON THE ACTIVE OR RETIRED LIST AND MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ENTITLED TO TREATMENT IN NAVAL HOSPITALS OR OTHER GOVERNMENT HOSPITALS WHEN APPROPRIATE NAVAL HOSPITAL FACILITIES ARE NOT AVAILABLE AND THE GOVERNMENT AGENCIES HAVING CONTROL OF SUCH OTHER HOSPITALS CONSENT THERETO. ALL EXPENSES INCIDENT TO SUCH CARE AND TREATMENT RECEIVED BY NAVAL PATIENTS IN OTHER GOVERNMENT HOSPITALS, EXCEPTING SAINT ELIZABETHS HOSPITAL, SHALL BE CHARGEABLE TO THE SAME APPROPRIATION OR FUND AS WOULD BE CHARGEABLE WITH THE CARE AND TREATMENT OF SUCH PATIENTS IN A NAVAL HOSPITAL:PROVIDED, THAT THE DEDUCTIONS AUTHORIZED BY SECTIONS 4812 AND 4813, REVISED STATUTES, SHALL APPLY TO SUCH CARE AND TREATMENT IN OTHER GOVERNMENT HOSPITALS, EXCEPT SAINT ELIZABETHS HOSPITALS, AND SHALL BE CREDITED TO SAID APPROPRIATION OR FUND.'

THE COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF THE NAVY OF MAY 16, 1929, A-26998, CONFIRMED THE INTERPRETATION PLACED BY THE NAVY DEPARTMENT ON THE ACT OF JANUARY 19, 1929, TO THE EFFECT THAT SAID ACT APPLIED TO AND AUTHORIZED THE HOSPITALIZATION IN OTHER GOVERNMENT HOSPITALS OF---

(A) OFFICERS AND ENLISTED MEN OF THE NAVY AND MARINE CORPS ON THE ACTIVE OR RETIRED LIST;

(B) OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE WHILE EMPLOYED ON ACTIVE DUTY;

(C) TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE, WHETHER ON ACTIVE DUTY, IN AN INACTIVE STATUS, OR ON THE RETIRED LIST OF THE REGULAR NAVY.

THERE ACCORDINGLY APPEARS TO BE NO DOUBT THAT UNDER THE PRESENT STATE OF THE LAW RETIRED ENLISTED MEN AND 16- AND 20-YEAR FLEET RESERVISTS LAWFULLY MAY BE HOSPITALIZED BY THE NAVY DEPARTMENT AS NAVAL PATIENTS IN---

(A) VETERANS' ADMINISTRATION FACILITIES.

(B) ARMY HOSPITALS.

(C) UNITED STATES PUBLIC HEALTH HOSPITALS.

(D) FEDERAL HOSPITALS OTHER THAN THE ABOVE.

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

WHAT APPROPRIATION IS CHARGEABLE FOR THE SUBSISTENCE OF RETIRED ENLISTED MEN AND 16- AND 20-YEAR FLEET RESERVISTS WHEN THESE PATIENTS ARE HOSPITALIZED AS NAVAL PATIENTS IN (A) VETERANS' ADMINISTRATION FACILITIES; (B) ARMY HOSPITALS; (C) U.S. PUBLIC HEALTH HOSPITALS; AND (D) FEDERAL HOSPITALS OTHER THAN THOSE ENUMERATED IN (A), (B), AND (C/?

IT SHOULD BE UNDERSTOOD THAT THE OTHER GOVERNMENT HOSPITALS ABOVE MENTIONED BILL THE NAVY DEPARTMENT FOR THE CARE AND TREATMENT OF THESE PATIENTS AT THE UNIFORM RECIPROCAL HOSPITALIZATION RATE FIXED BY THE PRESIDENT AT $3.75 PER DAY PER PATIENT, AND THAT PRIOR TO JULY 1, 1938, THE RETIRED OR RETAINER PAY OF THE PATIENT WAS CHECKED BY THE NAVY DEPARTMENT FOR HOSPITAL RATION FOR THE PERIOD OF HOSPITALIZATION.

WHILE THE ACTING COMPTROLLER GENERAL'S DECISION OF SEPTEMBER 1, 1938, SETS FORTH THE APPROPRIATIONS CHARGEABLE FOR SUBSISTENCE WHEN RETIRED ENLISTED MEN ARE HOSPITALIZED IN NAVAL HOSPITALS AND IN VETERANS' ADMINISTRATION FACILITIES UNDER STATUTES APPLICABLE TO THE VETERANS' ADMINISTRATION, THE APPROPRIATION CHARGEABLE FOR SUBSISTENCE WHEN RETIRED ENLISTED MEN AND 16- AND 20-YEAR RESERVISTS ARE HOSPITALIZED IN ARMY HOSPITALS ON THEIR OWN APPLICATION MADE DIRECT TO THE ARMY HOSPITAL IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 1204 (4) (6), U.S. NAVY REGULATIONS, 1920, DOES NOT APPEAR TO BE COVERED. IN SUCH CASES THE ARMY HOSPITAL SUBSISTENCE CHARGE HERETOFORE HAS BEEN COLLECTED BY THE HOSPITAL FROM THE INDIVIDUAL CONCERNED.

A CASE IN POINT IS NOW BEFORE THE NAVY DEPARTMENT, FROM WHICH IT APPEARS THAT CHIEF WATER TENDER HARRY STREBEIGH, U.S. NAVY, RETIRED, WAS ADMITTED TO THE FITZSIMONS GENERAL HOSPITAL FOR TREATMENT ON HIS OWN REQUEST IN ACCORDANCE WITH THE AGREEMENT BETWEEN THE WAR DEPARTMENT AND THE NAVY DEPARTMENT, AS REFLECTED IN ARTICLE 1204 (4) (6), NAVY REGULATIONS, AND PARAGRAPH 6 (B), 5 (B), AND 12 (2) (B), ARMY REGULATIONS, 40-590. STREBEIGH DIED ON JULY 12, 1938, LEAVING A STATED INDEBTEDNESS TO THE ARMY HOSPITAL FOR UNCOLLECTED SUBSISTENCE CHARGES FROM JULY 1 TO DATE OF DEATH. UNDER THE AFOREMENTIONED AGREEMENT THE MANNER OF ADMISSION OF STREBEIGH TO THE ARMY AND NAVY GENERAL HOSPITAL CREATED NO OBLIGATION AGAINST THE NAVY DEPARTMENT APPROPRIATIONS FOR THE EXPENSE OF HIS HOSPITALIZATION, AND THE BILL FOR $8.76 (11 DAYS SUBSISTENCE AT $0.7968 PER DAY WHILE SICK IN FITZSIMONS GENERAL HOSPITAL JULY 1 TO JULY 11, 1938) DOES NOT APPEAR TO BE PROPERLY PAYABLE FROM NAVY DEPARTMENT FUNDS.

AS THE NAVAL RESERVE ACT OF 1938 BECOME EFFECTIVE JULY 1, 1938, STREBEIGH WAS ENTITLED TO RECEIVE "THE RATION ALLOWANCE PRESCRIBED BY LAW," STATED IN THE ACTING COMPTROLLER GENERAL'S DECISION OF SEPTEMBER 1, 1938, TO BE THE COMMUTED RATION STOPPED ON ACCOUNT OF SICK IN HOSPITAL AND FIXED IN THE CURRENT NAVAL APPROPRIATION ACT AT THE RATE OF 70 CENTS PER RATION.

IN CONNECTION WITH THE ABOVE, YOUR FURTHER DECISION IS REQUESTED AS TO THE APPROPRIATION CHARGEABLE FOR SUBSISTENCE WHEN RETIRED ENLISTED MEN AND 16- AND 20-YEAR FLEET RESERVISTS ARE HOSPITALIZED IN ARMY HOSPITALS ON THEIR OWN APPLICATION MADE DIRECT TO THE ARMY HOSPITAL IN ACCORDANCE WITH ARTICLE 1204 (6), NAVY REGULATIONS, 1920.

YOUR DECISION IS ALSO REQUESTED AS TO WHETHER THE APPROPRIATIONS HELD AVAILABLE FOR SUBSISTENCE OF RETIRED ENLISTED MEN HOSPITALIZED IN NAVAL AND OTHER GOVERNMENT HOSPITALS MAY BE CONSIDERED AVAILABLE, IN THE CASE OF RETIRED ENLISTED MEN ADVANCED TO WARRANT OR COMMISSIONED RANK ON THE RETIRED LIST OF THE NAVY OR MARINE CORPS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 7, 1932 (47 STAT. 150; 34 U.S. CODE, SEC. 399E), FOR PAYMENT OF THE RATION ALLOWANCE PRESCRIBED BY LAW FOR ENLISTED MEN OF THE REGULAR NAVY WHEN THE RETIRED ENLISTED MEN THUS ADVANCED IN RANK ON THE RETIRED LIST ARE HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW, AS PROVIDED IN SECTION 207 OF THE NAVAL RESERVE ACT OF 1938.

IT IS APPROPRIATE IN THIS CONNECTION TO CONSIDER THE ACT OF JUNE 11, 1930, 46 STAT. 556, 34 U.S.C. 773, WHICH PROVIDES:

THAT RETIRED ENLISTED MEN OF THE NAVY AND MARINE CORPS AND TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE, TRANSFERRED THERETO AFTER SIXTEEN OR MORE YEARS' SERVICE, SHALL BE CONSIDERED TO BE VETERANS WITHIN THE MEANING OF THE LAWS RELATING TO HOSPITALIZATION UNDER THE VETERANS' BUREAU, AND SHALL BE ENTITLED TO MEDICAL TREATMENT OR HOSPITALIZATION AT ALL GOVERNMENT HOSPITALS WITHOUT DEDUCTION FROM THEIR RETIRED PAY OR RETAINER PAY OF THE SUM OF 75 CENTS PER DAY FOR HOSPITAL RATIONS WHILE IN A GOVERNMENT HOSPITAL.

MEDICAL TREATMENT AND VETERANS' BUREAU FACILITIES HAVE BEEN PROVIDED "IN ADDITION TO THE COMPENSATION" PROVIDED FOR DISABILITIES IN THE SERVICE (38 U.S.C. 479), AND THE PROVISION RELATING TO COMPENSATION NOT BEING APPLICABLE WHEN A PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY (38 U.S.C. 422) (THE PROVISION AS TO RETIREMENT PAY HAVING BEEN CONSTRUED AS INCLUSIVE OF RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE), VETERANS WHO WERE EITHER RETIRED ENLISTED MEN OF THE NAVY OR TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE WERE REQUIRED TO PAY A SUBSISTENCE CHARGE WHEN HOSPITALIZED IN VETERANS' BUREAU HOSPITALS OR WHERE HOSPITALIZED IN OTHER GOVERNMENT HOSPITALS AS PATIENTS OF THE VETERANS' BUREAU. THE ONLY AFFECT OF THE ACT OF 1930, THEREFORE, WAS TO DEFINE SUCH PERSONS AS VETERANS WITHIN THE MEANING OF THE LAWS RELATING TO HOSPITALIZATION UNDER THE VETERANS' BUREAU AND FIX THE OBLIGATION OF THE VETERANS' BUREAU OR VETERANS' ADMINISTRATION TO SUBSIST SUCH PERSONS WHEN ADMITTED EITHER TO VETERANS' ADMINISTRATION HOSPITALS OR TO OTHER GOVERNMENT HOSPITALS AS VETERANS' ADMINISTRATION PATIENTS. 10 COMP. GEN. 94.

THE ACT OF JANUARY 19, 1929, 45 STAT. 1090, WHICH YOU QUOTE, IS ENTITLED-

AN ACT TO PROVIDE FOR THE CARE AND TREATMENT OF NAVAL PATIENTS ON THE ACTIVE OR RETIRED LIST, IN OTHER GOVERNMENT HOSPITALS WHEN NAVAL HOSPITAL FACILITIES ARE NOT AVAILABLE.

THE LANGUAGE OF THE ACT CONFORMS TO THE TITLE AND GIVES AUTHORITY TO THE SECRETARY OF THE NAVY TO PROVIDE FOR UTILIZATION OF OTHER GOVERNMENT HOSPITALS FOR THE DESCRIBED PERSONNEL WHEN APPROPRIATE NAVAL HOSPITAL FACILITIES ARE NOT AVAILABLE AND THE GOVERNMENT AGENCIES HAVING CONTROL OF SUCH OTHER HOSPITALS CONSENT THERETO. IT CONFERS NO RIGHT ON THE PERSONNEL NAMED TO HOSPITAL TREATMENT IN OTHER GOVERNMENT HOSPITALS AND THIS IS THE INTERPRETATION PLACED ON THE LAW BY THE NAVY DEPARTMENT BY ARTICLE 1204 (4) OF THE NAVAL REGULATIONS OF 1920, AS FOLLOWS:

BY AGREEMENT WITH THE WAR DEPARTMENT, NAVAL PERSONNEL WILL BE ADMITTED TO ARMY HOSPITALS IN ACCORDANCE WITH THE SUCCEEDING PARAGRAPHS OF THIS ARTICLE. IN SUCH CASES, IF APPROPRIATE NAVAL HOSPITAL FACILITIES ARE NOT AVAILABLE, AS DETERMINED BY THE SURGEON GENERAL OF THE NAVY PRIOR TO THEIR ADMISSION OR, IN EMERGENCY CASES, AS SOON THEREAFTER AS PRACTICABLE, THEIR HOSPITAL CHARGES WILL BE PAID BY THE NAVY DEPARTMENT AND THEIR PAY WILL BE CHECKED IN THE SAME MANNER AS WHEN ADMITTED TO A NAVAL HOSPITAL (ACT JAN. 19, 1929). OTHERWISE, THE ARMY HOSPITAL SUBSISTENCE CHARGE WILL BE COLLECTED BY THE HOSPITAL FROM THE INDIVIDUAL CONCERNED.

THE EFFECT OF SECTION 207 OF THE NAVAL RESERVE ACT OF 1938 IS TO AMEND OUT OF THE ACT OF 1929 THE PROVISION FOR DEDUCTION AS PROVIDED BY SECTION 4812, REVISED STATUTES, AS TO THE PERSONNEL DESCRIBED WHEN HOSPITALIZED IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW. PERSONS OF THE CLASSES DESCRIBED IN SECTION 207 WHO ARE ADMITTED TO A GOVERNMENT HOSPITAL WITHOUT THE PRIOR APPROVAL OF THE NAVY DEPARTMENT (WITH POSSIBLE EXCEPTION OF EMERGENCY CASES) HAVE NOT BEEN HOSPITALIZED "IN ACCORDANCE WITH LAW" WITHIN THE MEANING OF SECTION 207. WHILE SUCH ADMISSION TO OTHER GOVERNMENT HOSPITALS WITHOUT THE APPROVAL OF THE NAVY DEPARTMENT MAY NOT BE CONTRARY TO LAW, NEVERTHELESS THE PATIENT HAS NOT BEEN HOSPITALIZED IN SUCH OTHER FEDERAL HOSPITAL IN ACCORDANCE WITH THE ONLY LAW ON THE SUBJECT. YOU ARE ACCORDINGLY INFORMED IN ANSWER TO YOUR FIRST QUESTION THAT WHEN RETIRED ENLISTED MEN OR TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND FLEET MARINE CORPS RESERVE ARE HOSPITALIZED IN ACCORDANCE WITH LAW AS ABOVE INDICATED IN VETERANS' ADMINISTRATION FACILITIES, ARMY HOSPITALS, UNITED STATES PUBLIC HEALTH SERVICE HOSPITALS, AND FEDERAL HOSPITALS OTHER THAN THE FOREGOING, AND EXCEPT ST. ELIZABETHS HOSPITAL, THE SUBSISTENCE CHARGE IS PAYABLE UNDER THE APPROPRIATION "SUBSISTENCE OF NAVAL PERSONNEL" AS INDICATED IN DECISION OF SEPTEMBER 1, 1938.

IN THE DECISION OF SEPTEMBER 1, 1938, AS TO PAYMENTS BY THE NAVY DEPARTMENT FOR SUBSISTENCE OF RETIRED ENLISTED MEN AND TRANSFERRED MEMBERS OF THE NAVAL RESERVE WHO WERE "HOSPITALIZED IN ACCORDANCE WITH LAW" IN OTHER THAN NAVAL HOSPITALS, IT WAS SAID:

NO STATUTE IS KNOWN, OTHER THAN THE PROVISIONS APPLICABLE TO THE VETERANS' ADMINISTRATION, FOR HOSPITALIZATION OF PERSONS ON THE RETIRED LIST, OR PERSONS WHO WERE FORMERLY IN THE ARMED SERVICES. HOSPITALIZATION UNDER THE STATUTES APPLICABLE TO THE VETERANS' ADMINISTRATION WOULD BE HOSPITALIZATION IN A FEDERAL HOSPITAL IN ACCORDANCE WITH LAW, BUT VETERANS' ADMINISTRATION APPROPRIATIONS ARE AVAILABLE FOR THE COST OF SUBSISTENCE OF PATIENTS IN THE HOSPITALS OF THE VETERANS' ADMINISTRATION. THERE WOULD THUS BE NO REASON TO CHARGE A NAVAL APPROPRIATION IN SUCH A CASE, AND THE EFFECT OF SECTION 207 WOULD BE, AT THE MOST, TO RELIEVE THE MEMBER OF A CHARGE FOR HIS SUBSISTENCE WHILE IN A VETERANS' ADMINISTRATION HOSPITAL. SEE IN THIS CONNECTION, THE ACT OF JUNE 11, 1930, 46 STAT. 556. THIS, OF COURSE, OVERLOOKED THE ACT OF JANUARY 19, 1929, WHICH YOU QUOTE. IT SHOULD BE ADDED THAT WHETHER A RETIRED ENLISTED MAN OR A TRANSFERRED MEMBER OF THE NAVAL RESERVE MAY BE HOSPITALIZED IN A VETERANS' ADMINISTRATION HOSPITAL IS A MATTER FOR DETERMINATION BY THE ADMINISTRATOR OF THE VETERANS' ADMINISTRATION AND THAT ADMINISTRATION HAS HELD THAT THE ACT OF 1930, CITED, WAS REPEALED BY SECTION 17 OF THE ACT OF MARCH 20, 1933, 48 STAT. 11. ACCEPTING THAT AS THE CONSTRUCTION OF THE LAW APPLICABLE, RETIRED ENLISTED MEN AND TRANSFERRED MEMBERS OF THE NAVAL RESERVE MAY BE HOSPITALIZED IN VETERANS' ADMINISTRATION HOSPITALS "IN ACCORDANCE WITH LAW" ONLY WHEN SUCH HOSPITALIZATION IS PROVIDED FOR BY THE SECRETARY OF THE NAVY, AND IF ADMITTED TO VETERANS' ADMINISTRATION HOSPITALS UNDER THE PRESENT LAW AND REGULATIONS OF THE VETERANS' ADMINISTRATION WITHOUT THE INTERVENTION OF THE NAVY DEPARTMENT, THEY HAVE NOT BEEN HOSPITALIZED ,IN ACCORDANCE WITH LAW" AND THEIR SUBSISTENCE WHILE IN HOSPITAL IS NOT UNDER SECTION 207 OF THE NAVAL RESERVE ACT OF 1928 BUT IS A MATTER CONTROLLED BY THE REGULATIONS OF THE VETERANS' ADMINISTRATION.

WITH RESPECT TO YOUR SECOND QUESTION, ARTICLE 1204 (6) OF THE NAVAL REGULATIONS PROVIDES:

RETIRED OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS, AND ENLISTED MEN OF THE NAVY AND MARINE CORPS TRANSFERRED TO THE FLEET RESERVE AFTER 16 OR MORE YEARS OF SERVICE, MAY BE ADMITTED TO ANY ARMY HOSPITAL ON THEIR OWN REQUEST SUBJECT TO THE APPROVAL OF THE MEDICAL OFFICER IN COMMAND OF THE HOSPITAL OR SURGEON OF THE STATION.

THIS PARAGRAPH, HOWEVER, IS, AND AS ABOVE SHOWN, IS REQUIRED TO BE QUALIFIED BY PARAGRAPH (4) OF THE SAME ARTICLE. ITS PURPOSE IS MERELY TO INDICATE THAT NO SUPERIOR NAVAL AUTHORITY IS REQUIRED TO DETERMINE THAT HOSPITAL OR MEDICAL TREATMENT IS REQUIRED AS IS CLEARLY SHOWN BY A READING OF PARAGRAPH (5) OF THE SAME ARTICLE. PERSONNEL AS DESCRIBED IN SECTION 207 OF THE NAVAL RESERVE ACT OF 1938 ADMITTED TO FEDERAL HOSPITALS OTHER THAN NAVAL HOSPITALS ON THEIR OWN APPLICATION WITHOUT THE PRIOR APPROVAL OF THE NAVY DEPARTMENT AS PROVIDED IN ARTICLE 1204 (4) ARE NOT HOSPITALIZED IN ACCORDANCE WITH LAW, AND YOU ARE ADVISED IN ANSWER TO YOUR SECOND QUESTION THAT NO NAVAL APPROPRIATION IS AVAILABLE FOR THE PAYMENT OF THEIR SUBSISTENCE IN SUCH HOSPITALS IN SUCH CIRCUMSTANCES.

THE ACT OF MAY 7, 1932, 47 STAT. 150, FORMING THE BASIS FOR YOUR THIRD QUESTION, PROVIDES:

THAT ALL WARRANT OFFICERS AND ENLISTED MEN WHO SERVED IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES DURING THE WORLD WAR OR THE SPANISH-AMERICAN WAR, AND WHOSE SERVICE DURING SUCH WAR WAS CREDITABLE, AND WHO HAVE BEEN OR HEREAFTER MAY BE RETIRED ACCORDING TO LAW, SHALL ON THE DATE OF APPROVAL OF THIS ACT OR UPON RETIREMENT IN THE CASE OF THOSE NOW ON THE ACTIVE LISTS OF THE SERVICES NAMED HEREIN, BE ADVANCED IN RANK ON THE RETIRED LIST TO THE HIGHEST COMMISSIONED, WARRANT, OR ENLISTED GRADE HELD BY THEM DURING SUCH WAR: PROVIDED, THAT NOTHING IN THIS ACT SHALL ENTITLE ANY OF THE PERSONNEL DESCRIBED HEREIN WHILE ON ACTIVE DUTY, TO ANY OTHER RANK THAN THAT IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT: AND PROVIDED FURTHER, THAT NO INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL RESULT FROM THE PASSAGE OF THIS ACT.

IN VIEW OF THE PROVISOS OF THE ACT SO FAR AS PAY AND ALLOWANCES ARE CONCERNED, THE ENLISTED MEN COMING WITHIN THE ACT REMAIN ENLISTED MEN. THE ACT CONFERS AS AN HONORARY RANK THE HIGHEST COMMISSIONED, WARRANT, OR ENLISTED GRADE IN WHICH THE MAN SERVED IN ONE OR THE OTHER OF THE TWO WARS NAMED; IT DENIES SUCH ADVANCED RANK WHEN ON ACTIVE DUTY IF HIGHER THAN THE RANK IN WHICH SERVING AT THE TIME OF RETIREMENT AND DENIES ANY INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES BECAUSE OF ANY HONORARY ADVANCED RANK SO CONFERRED. OBVIOUSLY, IT WAS NOT INTENDED TO REDUCE ANY PAY OR ALLOWANCES THAT WOULD OTHERWISE ACCRUE TO SUCH RETIRED ENLISTED MAN BY CONFERRING SUCH HONORARY RANK. YOU ARE ACCORDINGLY INFORMED IN ANSWER TO YOUR THIRD QUESTION THAT THE APPROPRIATION AVAILABLE FOR RATIONS OR SUBSISTENCE OF RETIRED ENLISTED MEN OF THE NAVY OR MARINE CORPS WHEN HOSPITALIZED IN ACCORDANCE WITH LAW IN A FEDERAL HOSPITAL (EXCEPT ST. ELIZABETHS) IS ALSO AVAILABLE FOR THE RATIONS OR SUBSISTENCE OF RETIRED ENLISTED MEN SO HOSPITALIZED WHO HAVE BEEN ACCORDED COMMISSIONED OR WARRANT RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF THE QUOTED ACT OF MAY 7, 1932.