B-22505, FEBRUARY 18, 1942, 21 COMP. GEN. 781

B-22505: Feb 18, 1942

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MARINE CORPS RESERVE OFFICERS - ACTIVE DUTY STATUS DURING HOSPITALIZATION A MARINE CORPS RESERVE OFFICER IS NOT EMPLOYED ON "ACTIVE DUTY" WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938. SETTING FORTH THE CONDITIONS UNDER WHICH SUCH OFFICERS ARE ENTITLED TO PAY AND ALLOWANCES. HE IS NOT ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD. THERE IS ATTACHED HERETO ALL THE INFORMATION REQUESTED IN YOUR LETTER FOR A FURTHER CONSIDERATION OF THE CASE. IT IS REQUESTED THAT THE UNDERSIGNED BE ADVISED IF HE IS NOW AUTHORIZED TO MAKE PAYMENT TO LIEUTENANT THOMPSON OF PAY AND ALLOWANCES FROM AND INCLUDING NOVEMBER 6. WAS TRANSMITTED WITH YOUR LETTER OF DECEMBER 9. IT WAS STATED: * * * IF THIS CASE ARISES UNDER THE CITED PROVISOS OF SECTION 304 OF THE NAVAL RESERVE ACT AND IT IS BELIEVED HE MAY BE ENTITLED TO PAY WHILE IN HOSPITAL.

B-22505, FEBRUARY 18, 1942, 21 COMP. GEN. 781

MARINE CORPS RESERVE OFFICERS - ACTIVE DUTY STATUS DURING HOSPITALIZATION A MARINE CORPS RESERVE OFFICER IS NOT EMPLOYED ON "ACTIVE DUTY" WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SETTING FORTH THE CONDITIONS UNDER WHICH SUCH OFFICERS ARE ENTITLED TO PAY AND ALLOWANCES, DURING A PERIOD OF HOSPITAL TREATMENT UNDER ORDERS, ISSUED AFTER RELEASE FROM ACTIVE DUTY, REASSIGNING HIM TO "ACTIVE DUTY" FOR THE PURPOSE OF CORROBORATING HIS STATEMENTS AS TO THE NECESSITY FOR SUCH TREATMENT AND TO DETERMINE HIS PHYSICAL FITNESS WITH A VIEW TO DISCHARGE, AND, THEREFORE, HE IS NOT ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. TOM E. THRASHER, JR., UNITED STATES MARINE CORPS, FEBRUARY 18, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 6, 1942, WITH ENCLOSURES, AS FOLLOWS:

IN CONNECTION WITH MY SUBMISSION OF DECEMBER 9, 1941--- CASE OF SECOND LIEUTENANT RICHARD F. THOMPSON, MARINE CORPS RESERVE--- AND YOUR REPLY THERETO, B-22505, DATED DECEMBER 27, 1941, THERE IS ATTACHED HERETO ALL THE INFORMATION REQUESTED IN YOUR LETTER FOR A FURTHER CONSIDERATION OF THE CASE, I.E., A FULL AND COMPLETE RECORD OF LIEUTENANT THOMPSON'S SERVICE IN THE MARINE CORPS RESERVE, INCLUDING ALL PERIODS OF ACTIVE DUTY; A TRANSCRIPT OF HIS MEDICAL RECORD; AND A COPY OF HIS LETTER OF OCTOBER 31, 1941, WITH THE ENCLOSURE, REFERRED TO IN HIS ORDERS OF NOVEMBER 5, 1941.

IN LIGHT OF THIS ADDITIONAL INFORMATION, IT IS REQUESTED THAT THE UNDERSIGNED BE ADVISED IF HE IS NOW AUTHORIZED TO MAKE PAYMENT TO LIEUTENANT THOMPSON OF PAY AND ALLOWANCES FROM AND INCLUDING NOVEMBER 6, 1941.

THE VOUCHER COVERING ACTIVE DUTY PAY AND ALLOWANCES AS A SECOND LIEUTENANT, UNITED STATES MARINE CORPS RESERVE, IN FAVOR OF RICHARD F. THOMPSON FOR THE PERIOD NOVEMBER 6 TO DECEMBER 31, 1941, WAS TRANSMITTED WITH YOUR LETTER OF DECEMBER 9, 1941. THE RECORD WHICH ACCOMPANIED THAT LETTER APPEARED TO BE INCOMPLETE AND DID NOT PERMIT A FULL CONSIDERATION TO BE MADE OF THE QUESTION THEN PRESENTED AND IN THE CONCLUDING SENTENCE OF THE REPLY TO YOU OF DECEMBER 27, 1941, IT WAS STATED:

* * * IF THIS CASE ARISES UNDER THE CITED PROVISOS OF SECTION 304 OF THE NAVAL RESERVE ACT AND IT IS BELIEVED HE MAY BE ENTITLED TO PAY WHILE IN HOSPITAL, FURTHER CONSIDERATION MAY BE GIVEN THE MATTER IF THERE BE FURNISHED A FULL AND COMPLETE RECORD OF THIS RESERVE OFFICER'S SERVICE IN THE MARINE CORPS RESERVE, INCLUDING ALL PERIODS OF ACTIVE DUTY; A TRANSCRIPT OF HIS MEDICAL RECORD, AND A COPY OF THE RESERVIST'S LETTER OF OCTOBER 31, 1941, AND THE ENCLOSURE THEREWITH REFERRED TO AS A REFERENCE IN THE ORDERS OF NOVEMBER 5, 1941.

A MORE COMPLETE RECORD WAS FURNISHED WITH YOUR LETTER OF JANUARY 6, 1942, FROM WHICH IT APPEARS THAT RICHARD FRANKLIN THOMPSON, BORN DECEMBER 20, 1916, AT LINCOLN, NEBR., ENLISTED IN THE MARINE CORPS RESERVE ON FEBRUARY 17, 1941, AND WAS ASSIGNED TO INACTIVE STATUS ON THE SAME DATE; ASSIGNED TO ACTIVE DUTY FEBRUARY 25, 1941, AND WAS HONORABLY DISCHARGED MAY 28, 1941, TO ACCEPT COMMISSION AS SECOND LIEUTENANT IN THE MARINE CORPS RESERVE; ACCEPTED THIS APPOINTMENT MAY 29, 1941; ASSIGNED TO ACTIVE DUTY THE SAME DATE AND WAS RELIEVED FROM ACTIVE DUTY SEPTEMBER 19, 1941.

UNDER DATE OF OCTOBER 31, 1941, THOMPSON ADDRESSED A LETTER TO THE MAJOR GENERAL COMMANDANT, UNITED STATES MARINE CORPS, AS FOLLOWS: SUBJECT: DISCHARGE, REQUEST RECONSIDERATION OF.

1.ON OCTOBER 30, 1941, I WAS GIVEN AN X-RAY EXAMINATION OF MY CHEST. THE RESULT OF THIS EXAMINATION CONCLUSIVELY PROVED THAT I HAVE TUBERCULOSIS IN BOTH LUNGS, AND IN LIGHT OF THIS MEDICAL AUTHORITY HAS PRESCRIBED THAT I RECEIVE HOSPITALIZATION AND PROPER TREATMENT BE INSTITUTED IMMEDIATELY.

2. OBVIOUSLY, I AM VITALLY INTERESTED IN PROCURING THE BEST MEDICAL ATTENTION POSSIBLE WHICH MAY BE DUE ME. CONSIDERING THE TIME OF ORIGIN OF SYMPTOMS, AND THAT IT IS HIGHLY IMPROBABLE THAT I COULD HAVE CONTRACTED THE DISEASE AND IT WOULD HAVE ADVANCED TO THE STAGE WHICH IT HAS SINCE I WAS RELEASED FROM ACTIVE DUTY, SEPTEMBER 11, 1941, IT IS LOGICAL TO BELIEVE THAT THIS DISEASE MAY HAVE BEEN CONTRACTED WHEN I WAS IN ACTIVE SERVICE AND WAS NOT DETECTED DURING THE PHYSICAL EXAMINATION GIVEN ME UPON BEING DISCHARGED FROM ACTIVE DUTY BECAUSE OF NO X-RAY EXAMINATION.

3. EVERY MOMENT THAT I REMAIN WITHOUT PROPER TREATMENT I FURTHER JEOPARDIZE MY HEALTH, SO I REQUEST THAT I BE ALLOWED IMMEDIATE ENTRANCE INTO A NAVAL HOSPITAL.

4. BECAUSE TIME IS OF THE ESSENCE, I BESEECH YOU TO GIVE PROMPT CONSIDERATION TO THIS MATTER.

A LETTER FROM THE ACTING DIRECTOR, BUREAU FOR TUBERCULOSIS, DATED GOVERNMENT OF THE DISTRICT OF COLUMBIA, OFFICE OF THE HEALTH DEPARTMENT, NOVEMBER 1, 1941, ADDRESSED " TO WHOM IT MAY CONCERN" WAS TO THE EFFECT THAT THOMPSON'S DISABILITY WAS DIAGNOSED OCTOBER 30, 1941, AS PULMONARY TUBERCULOSIS, FAR ADVANCED, ACTIVE, AND THAT IMMEDIATE HOSPITALIZATION WAS ADVISED.

THE ORDERS OF THE MAJOR GENERAL COMMANDANT DATED NOVEMBER 5, 1941, PROVIDED: REFERENCE: (A) LTR. LT. THOMPSON TO MGC DATED OCTOBER 31, 1941,

WITH ENCLOSURE.

1. ON NOVEMBER 6, 1941, YOU ARE ASSIGNED TO ACTIVE DUTY, WILL REPORT ON THAT DATE TO THE COMMANDING OFFICER, U.S. NAVY HOSPITAL, WASHINGTON, D.C., FOR EXAMINATION BY A BOARD OF MEDICAL SURVEY TO DETERMINE YOUR FITNESS FOR RETENTION IN THE U.S. MARINE CORPS RESERVE.

2. THE DISTRICT COMMANDER, 9TH RESERVE DISTRICT WILL FORWARD YOUR HEALTH RECORD TO THE COMMANDING OFFICER, U.S. NAVAL HOSPITAL, WASHINGTON, D.C., AND YOU WILL BE CARRIED ON THE MUSTER ROLLS OF THE MARINE BARRACKS, EIGHTH AND EYE STREETS SE., WASHINGTON, D.C.

3. THE TRAVEL HEREIN ENJOINED IS NECESSARY IN THE PUBLIC SERVICE.

IT APPEARS THAT THE RESERVIST REPORTED TO THE UNITED STATES NAVAL HOSPITAL, WASHINGTON, D.C., NOVEMBER 6, 1941; DETACHED DECEMBER 8, 1941, AND ORDERED TO THE FITZSIMONS GENERAL HOSPITAL, DENVER, COLO., AND SO FAR AS THE RECORD DISCLOSES IS STILL RECEIVING HOSPITAL TREATMENT AT THAT PLACE. IT IS TO BE NOTED THAT THE SUBJECT OF THE RESERVIST'S LETTER OF OCTOBER 31, 1941, IN WHICH HE REQUESTED TREATMENT IN A NAVAL HOSPITAL IS TITLED "DISCHARGE, REQUEST RECONSIDERATION OF," SUGGESTING THAT ADMINISTRATIVE ACTION HAD PREVIOUSLY BEEN CONTEMPLATED TO EFFECT HIS DISCHARGE; IT IS TO BE OBSERVED FURTHER THAT HIS RELEASE FROM ACTIVE DUTY, PRESUMABLY AT QUANTICO, VA., AFTER APPROXIMATELY 3 MONTHS' AND 20 DAYS' SERVICE WAS ISSUED AT A TIME WHEN THE OFFICER STRENGTH OF THE MARINE CORPS RESERVE WAS IN THE PROCESS OF SUBSTANTIAL EXPANSION. PARAGRAPH 13-113 (1) OF THE MARINE CORPS MANUAL, 1940, PROVIDES:

(1) OFFICERS, PHYSICAL.--- IF UPON EXAMINATION AN OFFICER IS FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE DUTY, HE SHALL BE HONORABLY DISCHARGED (SEE ART. 13-111) OR, WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE PLACED ON THE HONORARY RETIRED LIST OF THE MARINE CORPS RESERVE. DUE CONSIDERATION WILL BE GIVEN TO THE CHARACTER OF DUTY TO BE ASSIGNED HIM IN THE EVENT OF WAR OR NATIONAL EMERGENCY.

UNDER SECTION 2 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, A MARINE CORPS RESERVE WAS ESTABLISHED UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THAT ACT, OR WHICH MAY THEREAFTER BE ENACTED, PROVIDED FOR THE NAVAL RESERVE.

SECTION 308, 52 STAT. 1182, PROVIDES, IN PERTINENT PART, THAT:

ALL OFFICERS OF THE NAVAL RESERVE SHALL BE EXAMINED PHYSICALLY ONCE EVERY FOUR YEARS OR OFTENER, AS MAY BE DEEMED NECESSARY, AND IF UPON SUCH EXAMINATION THEY ARE FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE SERVICE THEY SHALL BE HONORABLY DISCHARGED OR, WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY, PLACED ON THE HONORARY RETIRED LIST PROVIDED FOR IN SECTION 309 OF THIS TITLE: PROVIDED, THAT IN DETERMINING AN OFFICER'S QUALIFICATIONS FOR ACTIVE SERVICE, DUE CONSIDERATION SHALL BE GIVEN TO THE CHARACTER OF THE DUTY TO BE ASSIGNED HIM IN THE EVENT OF WAR OR NATIONAL EMERGENCY AND, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, TO HIS AGE IN GRADE. * * * ( ITALICS SUPPLIED.)

OTHER PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 ARE:

SECTION 304, 52 STAT. 1181---

* * * THAT NAVAL RESERVISTS WHO BECAME ILL OR CONTRACT DISEASE IN LINE OF DUTY DURING THE PERFORMANCE OF ACTIVE DUTY OR TRAINING DUTY WITH OR WITHOUT PAY SHALL BE ENTITLED, AT GOVERNMENT EXPENSE, TO SUCH MEDICAL, HOSPITAL, OR OTHER TREATMENT AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH ILLNESS OR DISEASE UNTIL THE DISABILITY RESULTING FROM SUCH ILLNESS OR DISEASE CANNOT BE MATERIALLY IMPROVED BY HOSPITALIZATION OR TREATMENT, AND TO THE NECESSARY TRANSPORTATION AND SUBSISTENCE INCIDENT TO SUCH MEDICAL AND HOSPITAL TREATMENT AND RETURN TO THEIR HOMES WHEN DISCHARGED THEREFROM: PROVIDED FURTHER, THAT NO TREATMENT OR HOSPITALIZATION FOR SUCH ILLNESS OR DISEASE SHALL BE CONTINUED FOR MORE THAN TEN WEEKS FOLLOWING DISCHARGE FROM ACTIVE OR TRAINING DUTY EXCEPT ON THE APPROVED RECOMMENDATION OF A BOARD OF MEDICAL SURVEY, CONSISTING OF ONE OR MORE MEDICAL OFFICERS OF THE NAVY OR ON AUTHORIZATION OF THE SURGEON GENERAL OF THE NAVY BASED ON THE CERTIFICATE OF A REPUTABLE PHYSICIAN THAT THE ILLNESS OR DISEASE IS A CONTINUATION OF THE ILLNESS OR DISEASE WHICH WAS SUSTAINED OR CONTRACTED DURING THE PERIOD OF ACTIVE OR TRAINING DUTY AND THAT FURTHER BENEFIT WILL RESULT FROM CONTINUED TREATMENT: AND PROVIDED FURTHER, THAT IN NO CASE SHALL SICKNESS OR DISEASE BE REGARDED AS AN INJURY WITHIN THE MEANING OF THIS SECTION RELATING TO THE NAVAL RESERVE.

SECTION 7, 52 STAT. 1176, 1177---

COMMISSIONED OFFICERS OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST OR WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY SHALL BE DEEMED TO HAVE BEEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE AND SHALL RECEIVE THE PAY AND ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES, AND SHALL WHEN TRAVELING UNDER ORDERS OR UNDER COMPETENT AUTHORITY RECEIVE TRANSPORTATION IN KIND, MILEAGE, OR ACTUAL EXPENSES AS PROVIDED BY LAW FOR TRAVEL PERFORMED BY OFFICERS OF THE REGULAR NAVY. * * * ( ITALICS SUPPLIED.)

IT APPEARS CLEAR THAT THE ORDERS OF NOVEMBER 5, 1941, BOTH IN PURPOSE AND INTENT WERE ISSUED TO DETERMINE BY A BOARD OF MEDICAL SURVEY THE RESERVIST'S FITNESS FOR RETENTION IN THE UNITED STATES MARINE CORPS RESERVE, BUT AS EXECUTED THE ORDERS APPARENTLY HAVE BEEN UNDERSTOOD TO AUTHORIZE AND PROVIDE HOSPITALIZATION AND MEDICAL TREATMENT IN ACCORDANCE WITH THE SPECIFIC REQUEST OF THE RESERVIST. IT IS OF RECORD THAT UPON REPORTING TO THE UNITED STATES NAVAL HOSPITAL HE WAS ,READMITTED WITH: TUBERCULOSIS, PULMONARY, CHRONIC, MODERATELY ADVANCED, ACTIVE NO. 1103.' ALTHOUGH THE ORDERS OF NOVEMBER 5, 1941, USED THE PHRASE "ASSIGNED TO ACTIVE DUTY" THAT LANGUAGE IS MERELY DESCRIPTIVE OF THE STATUS DEEMED NECESSARY TO BE FIXED IN ORDER THAT A SPECIAL PHYSICAL EXAMINATION BE MADE IN ORDER TO DETERMINE FITNESS FOR RETENTION IN THE MARINE CORPS RESERVE AND WAS APPARENTLY CONSIDERED NECESSARY IN ORDER TO SECURE ENTRANCE OF THE PATIENT INTO A NAVAL HOSPITAL FOR TREATMENT. AT MOST, UNDER THE LIMITED WORDING OF THE ORDERS, THEIR OPERATION AUTOMATICALLY WOULD HAVE TERMINATED AFTER EXAMINATION AND DETERMINATION OF FITNESS OR UNFITNESS FOR RETENTION WHICH SEEMS TO HAVE BEEN ESTABLISHED ON THE DATE OF ENTRANCE, NOVEMBER 6, 1941. BE THAT AS IT MAY, UNDER THE PROVISIONS OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, COMMISSIONED OFFICERS OF THE MARINE CORPS RESERVE ARE ENTITLED TO PAY AND ALLOWANCE ONLY "WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.' THE PERIOD THAT A RESERVE OFFICER IS HOSPITALIZED FOR TREATMENT UNDER ORDERS ISSUED FOR THE PURPOSE OF CORROBORATING HIS STATEMENTS FOR THE NECESSITY THEREFOR AND IN ORDER TO DETERMINE HIS PHYSICAL FITNESS WITH A VIEW TO DISCHARGE DOES NOT REPRESENT EMPLOYMENT ON ACTIVE DUTY WITHIN THE MEANING OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, SO AS TO ENTITLE HIM TO ACTIVE DUTY PAY AND ALLOWANCES, AS OBVIOUSLY HE ACTUALLY PERFORMED, AND PROBABLY COULD PERFORM, NO SUCH ACTIVE DUTY. SEE MORROW V. UNITED STATES, 65 CT.CLS. 35. IN THIS CONNECTION THERE IS TO BE NOTED THE QUOTED PROVISION OF SECTION 304 OF THE SAME ACT. PROVISION IS THEREIN MADE FOR SUCH MEDICAL AND HOSPITAL TREATMENT AS MAY BE NECESSARY WHEN THE RESERVIST BECOMES ILL OR CONTRACTS DISEASE IN LINE OF DUTY, BUT NO PROVISION IS MADE EITHER SPECIFICALLY OR BY IMPLICATION FOR THE PAYMENT OF PAY AND ALLOWANCES DURING SUCH TREATMENT SUBSEQUENT TO THE RESERVIST'S RELEASE FROM ACTIVE DUTY, AND THE FORMAL REASSIGNMENT TO DUTY FOR HOSPITAL TREATMENT COULD NOT LAWFULLY REVIVE A PAY STATUS. HAD SUCH PAY PROVISION BEEN CONTEMPLATED IN SECTION 304 THE CONGRESS UNDOUBTEDLY WOULD HAVE USED APT LANGUAGE TO EFFECT SUCH INTENTION. SEE, IN THIS CONNECTION, THE ACT OF JUNE 15, 1936, 49 STAT. 1507.

IN VIEW OF THE LAW AND THE FACTS AND CIRCUMSTANCES APPEARING, YOU ARE INFORMED THAT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO RICHARD F. THOMPSON BEGINNING NOVEMBER 6, 1941, AND FOR AN INDEFINITE PERIOD THEREAFTER, IS NOT AUTHORIZED.