B-122959, JUN. 23, 1955

B-122959: Jun 23, 1955

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KESTERSON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. - WAS ADMITTED TO THE KNOXVILLE GENERAL HOSPITAL. A REPORT FURTHER STATES THAT THE SHOOTING WAS ACCIDENTAL AND THAT PRIVATE CONARD WAS TRANSFERRED FROM KNOXVILLE GENERAL HOSPITAL TO U.S. THE REPORT CONCLUDES AS FOLLOWS: "IT HAS BEEN DETERMINED BY THE DEPARTMENT OF THE ARMY THAT THE ABOVE- NAMED INDIVIDUAL WAS ABSENT WITHOUT OFFICIAL LEAVE FROM 8 TO 23 FEBRUARY 1954. THAT THE ENLISTED MAN WAS READY FOR TRAVEL AND TRANSPORTATION TO AN ARMY HOSPITAL. YOU WERE ADVISED THAT AIR TRANSPORTATION HAD BEEN REQUESTED FOR YOUR PATIENT. THAT YOU WERE AUTHORIZED TO ACCEPT ANY COLLECT CALL FROM AN AIR FORCE BASE AND ADD THE CHARGE OF SUCH CALL TO YOUR BILL.

B-122959, JUN. 23, 1955

TO DR. JOHN E. KESTERSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1955, CONCERNING YOUR CLAIM FOR REIMBURSEMENT IN THE AMOUNT OF $352.13 FOR CIVILIAN MEDICAL CARE FURNISHED TO PRIVATE TED R. CONARD, DURING THE PERIOD FEBRUARY 21 TO MARCH 20, 1954.

THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, ST. LOUIS, MISSOURI, IN LETTER DATED APRIL 11, 1955, REPORTED THAT PRIVATE CONRAD--- THEN STATIONED AT FORT JACKSON, SOUTH CAROLINA--- WAS ADMITTED TO THE KNOXVILLE GENERAL HOSPITAL, KNOXVILLE, TENNESSEE, ON FEBRUARY 21, 1954, AS THE RESULT OF A GUNSHOT WOUND IN THE ABDOMEN WHICH OCCURRED AT APPROXIMATELY 11:30 P.M., ON FEBRUARY 20, 1954. A REPORT FURTHER STATES THAT THE SHOOTING WAS ACCIDENTAL AND THAT PRIVATE CONARD WAS TRANSFERRED FROM KNOXVILLE GENERAL HOSPITAL TO U.S. ARMY HOSPITAL, FORT CAMPBELL, KENTUCKY, ON MARCH 20, 1954. THE REPORT CONCLUDES AS FOLLOWS:

"IT HAS BEEN DETERMINED BY THE DEPARTMENT OF THE ARMY THAT THE ABOVE- NAMED INDIVIDUAL WAS ABSENT WITHOUT OFFICIAL LEAVE FROM 8 TO 23 FEBRUARY 1954, INCLUSIVE.'

THE RECORDS FURTHER SHOW THAT BY LETTER DATED FEBRUARY 24, 1954, YOU NOTIFIED THE CHIEF MEDICAL OFFICER, FORT JACKSON, SOUTH CAROLINA, THAT THE ENLISTED MAN WAS READY FOR TRAVEL AND TRANSPORTATION TO AN ARMY HOSPITAL. BY TELEGRAM DATED MARCH 2, 1954, FROM THE COMMANDING GENERAL, FORT CAMPBELL, KENTUCKY, YOU WERE ADVISED THAT AIR TRANSPORTATION HAD BEEN REQUESTED FOR YOUR PATIENT, AND THAT YOU WERE AUTHORIZED TO ACCEPT ANY COLLECT CALL FROM AN AIR FORCE BASE AND ADD THE CHARGE OF SUCH CALL TO YOUR BILL. THE SURGEON GENERAL OF THE ARMY REPORTED BY SIXTH INDORSEMENT DATED SEPTEMBER 3, 1954, IN PART, AS FOLLOWS:

"2. IT APPEARS THAT THE DOCTOR WAS NOT ADVISED UNTIL 8 APRIL 1954 THAT THE SOLDIER WAS IN AN AWOL STATUS AT THE TIME MEDICAL SERVICES WERE RENDERED, ALTHOUGH HE NOTIFIED THE ARMY AFTER THREE DAYS OF TREATMENT THAT HIS PATIENT COULD BE MOVED TO AN ARMY HOSPITAL. IN THIS CASE, HOWEVER, THE ARMY NEGLECTED TO EXPEDITE ACTION.'

YOUR INVOICE IN THE AMOUNT OF $352.13 CONSISTS OF AN EXAMINATION AND EXPLORATORY LAPAROTOMY PERFORMED FEBRUARY 21, 1954, AND 35 HOSPITAL CALLS FROM THAT DATE THROUGH MARCH 20, 1954, INCLUDING ALL NECESSARY DRESSINGS AND TREATMENTS.

PARAGRAPH 4 OF (ARMY) SPECIAL REGULATIONS 40-505-11, AS CHANGED BY CHANGES NO. 1 DATED AUGUST 17, 1951, PROVIDES, IN PART, AS FOLLOWS:

"FOR WHOM AUTHORIZED.--- A. CIVILIAN MEDICAL CARE AT THE EXPENSE OF ARMY MEDICAL SERVICE FUNDS IS AUTHORIZED FOR THE FOLLOWING PERSONNEL AND NONE OTHER WHEN THE REQUIRED CARE CANNOT BE PROVIDED BY AVAILABLE MEDICAL TREATMENT FACILITIES OF THE DEPARTMENT OF DEFENSE OR OTHER FEDERAL AGENCIES OUTSIDE DEPARTMENT OF DEFENSE:

"/1) * * * ENLISTED PERSONNEL * * * WHEN ON A DUTY STATUS OR WHEN ABSENT ON ANY AUTHORIZED LEAVE OR PASS. SUCH ATTENDANCE WILL NOT BE AUTHORIZED WHEN ABSENT WITHOUT LEAVE.'

SUCH REGULATIONS ARE STATUTORY REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, AND THEY EXPRESSLY DENY CIVILIAN MEDICAL ATTENDANCE AT GOVERNMENT EXPENSE FOR AN ENLISTED MAN WHO IS ABSENT FROM DUTY WITHOUT LEAVE. SINCE IT HAS BEEN OFFICIALLY DETERMINED BY THE DEPARTMENT OF THE ARMY THAT PRIVATE CONARD WAS IN AN ABSENT-WITHOUT-LEAVE STATUS FROM FEBRUARY 8 TO 23, 1954, INCLUSIVE, APPROPRIATED FUNDS ARE NOT AVAILABLE FOR PAYMENT FOR CIVILIAN MEDICAL TREATMENT DURING ANY PART OF THAT PERIOD. OF COURSE, THE FACT THAT THE ENLISTED MAN AT TIME OF ADMITTANCE FOR TREATMENT MAY HAVE INFORMED YOU THAT HE WAS NOT IN AN ABSENT-WITHOUT-LEAVE STATUS DOES NOT CHANGE THE ACTUAL FACTS, AND HIS EVIDENT IMPOSITION IN THAT RESPECT IS TO BE REGRETTED, AS THE NEGLECT OF THE PROPER ARMY PERSONNEL PROMPTLY TO HAVE THE PATIENT EVACUATED FOLLOWING YOUR NOTIFICATION TO THEM ON FEBRUARY 24, 1954, OF HIS ABILITY TO TRAVEL. UNFORTUNATELY, HOWEVER, PROMPT AND EXPEDITIOUS ACTION ON THE PART OF THE ARMY FOLLOWING YOU NOTIFICATION TO THEM, COULD NOT, IN THE LIGHT OF THE GOVERNING REGULATIONS, INCREASE THE GOVERNMENT'S LIABILITY SO AS TO INCLUDE A PERIOD OF TREATMENT PRIOR TO HIS RETURN, EVEN CONSTRUCTIVELY, TO MILITARY CONTROL.

WHILE THE MERE ADMITTANCE TO A PRIVATE HOSPITAL OF A WOUNDED OR DISABLED PERSON IN THE UNIFORM OF A SOLDIER, WITHOUT IDENTIFICATION OR AUTHORITY FROM PROPER MILITARY SOURCES, DOES NOT IN ITSELF ENTITLE HIM TO PRIVATE MEDICAL, SURGICAL AND HOSPITAL TREATMENT AT GOVERNMENT EXPENSE, THE RESPONSE OF THE ARMY AUTHORITIES TO YOUR LETTER OF FEBRUARY 24, 1954, MAY BE ACCEPTED AS PLACING THE PATIENT AT LEAST UNDER CONSTRUCTIVE MILITARY CONTROL FROM FEBRUARY 24, 1954, AND THE DELAY THEREAFTER OF MILITARY AUTHORITIES IN REMOVING HIM IN EFFECT, CONTINUED SUCH CONSTRUCTIVE STATUS. UNDER THE CIRCUMSTANCES, IT IS CONCLUDED THAT YOU ARE ENTITLED TO BE PAID FOR YOUR PROFESSIONAL SERVICES FROM FEBRUARY 24 TO MARCH 20, 1954. HOWEVER, SINCE YOUR BILL IS NOT ITEMIZED, YOUR INVOICE SHOULD BE BROKEN DOWN TO SHOW WHAT PART OF THE AMOUNT CLAIMED BY YOU ACCRUED FOR SERVICES RENDERED TO THE SOLDIER DURING THE PERIOD HE WAS UNDER CONSTRUCTIVE MILITARY CONTROL, I.E., FROM FEBRUARY 24 TO MARCH 20, 1954. SUCH STATEMENT SHOULD BE TRANSMITTED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., REFERRING TO NO. Z-1570221.