B-38513, B-43533, B-45055, B-44412, MARCH 16, 1945, 24 COMP. GEN. 681

B-38513,B-45055,B-44412,B-43533: Mar 16, 1945

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GEN. 980) ARE APPLICABLE UNDER SUCH CIRCUMSTANCES. 1945: REQUESTS FOR REVIEW OF CERTAIN CLAIMS PRESENTED TO THIS OFFICE ON ACCOUNT OF EMERGENCY CIVILIAN MEDICAL TREATMENT AND HOSPITAL CARE FURNISHED ENLISTED MEN OF THE COAST GUARD WHILE ON AUTHORIZED LEAVE OR LIBERTY HAVE RAISED THE QUESTION WHETHER THE RULES APPLICABLE TO ENLISTED MEN OF THE NAVY. ARE LIKEWISE APPLICABLE TO ENLISTED MEN OF THE COAST GUARD SERVING. THE WRITER FELT THAT IF THIS BOY WAS NOT TOO SICK THAT IT WOULD BE "GOOD POLICY" TO SEND HIM TO ONE OF THE GOVERNMENT HOSPITALS. IN HIS CASE OF A WHITE BLOOD CELL COUNT WAS MADE AND FOUND TO BE 19. 250 AND ONE WHO IS AT ALL VERSED IN SURGERY READILY RECOGNIZES THAT THIS CONSTITUTED A REAL EMERGENCY.

B-38513, B-43533, B-45055, B-44412, MARCH 16, 1945, 24 COMP. GEN. 681

MEDICAL TREATMENT - PRIVATE - COAST GUARD ENLISTED MEN ON LEAVE OR LIBERTY THE RULES APPLICABLE TO PAYMENT FOR EMERGENCY CIVILIAN MEDICAL TREATMENT AND HOSPITAL CARE OF NAVY ENLISTED MEN WHILE ON AUTHORIZED LEAVE OR LIBERTY (23 COMP. GEN. 980) ARE APPLICABLE UNDER SUCH CIRCUMSTANCES, TO COAST GUARD ENLISTED MEN SERVING DURING THE WAR AS A PART OF THE NAVY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE FEDERAL SECURITY ADMINISTRATOR, MARCH 16, 1945:

REQUESTS FOR REVIEW OF CERTAIN CLAIMS PRESENTED TO THIS OFFICE ON ACCOUNT OF EMERGENCY CIVILIAN MEDICAL TREATMENT AND HOSPITAL CARE FURNISHED ENLISTED MEN OF THE COAST GUARD WHILE ON AUTHORIZED LEAVE OR LIBERTY HAVE RAISED THE QUESTION WHETHER THE RULES APPLICABLE TO ENLISTED MEN OF THE NAVY, UNDER SUCH CIRCUMSTANCES, ARE LIKEWISE APPLICABLE TO ENLISTED MEN OF THE COAST GUARD SERVING, DURING THE WAR, AS A PART OF THE NAVY.

IN THE CASE OF DAVID C. ARTERBURN, MACHINIST'S MATE, SECOND CLASS, UNITED STATES COAST GUARD RESERVES, IT APPEARS THAT ON OR ABOUT MAY 10, 1943, THE ENLISTED MAN SUDDENLY TOOK ILL WHILE ON FURLOUGH AT HIS HOME IN RANGER, TEXAS, AND THAT IN THE ABSENCE OF ANY GOVERNMENTAL MEDICAL FACILITIES OR PERSONNEL AT THAT PLACE DR. WALTER L. JACKSON PERFORMED AN EMERGENCY APPENDECTOMY. AFTER THE OPERATION DR. JACKSON NOTIFIED ARTERBURN'S COMMANDING OFFICER AND SUBSEQUENTLY SUBMITTED A BILL FOR MEDICAL SERVICES IN THE SUM OF $130. DR. JACKSON MADE THE FOLLOWING STATEMENT RESPECTING HIS CLAIM:

IN THE CASE OF THIS BOY, HE BECAME SUDDENLY VERY SICK WITH A TYPICAL ACUTE, FULMINATING APPENDICITIS. THE WRITER FELT THAT IF THIS BOY WAS NOT TOO SICK THAT IT WOULD BE "GOOD POLICY" TO SEND HIM TO ONE OF THE GOVERNMENT HOSPITALS. BUT IN HIS CASE OF A WHITE BLOOD CELL COUNT WAS MADE AND FOUND TO BE 19,250 AND ONE WHO IS AT ALL VERSED IN SURGERY READILY RECOGNIZES THAT THIS CONSTITUTED A REAL EMERGENCY. THE WRITER CERTAINLY WOULD HAVE BEEN DERELICT OF DUTY IF THERE HAD BEEN ANY PROCRASTINATION IN PROMPT REMOVAL OF HIS APPENDIX.

SINCE THE ARMY, NAVY, AND MARINES TAKE AND INSIST ON SUCH SPLENDID CARE OF ALL THEIR MEN IN THE CAMPS, ON THE BATTLEFRONT AND WHEREVER THEY MAY BE IN THEIR RESPECTIVE COMMANDS, IT SURELY DOES NOT SEEM RIGHT OR EVEN TOLERABLE FOR THESE MEN NOT TO BE CARED FOR IN SUCH DIRE EMERGENCIES.

IN THE CASE OF WAYNE C. HATFIELD, FIREMAN, FIRST CLASS, UNITED STATES COAST GUARD RESERVE, IT APPEARS THAT ON OR ABOUT NOVEMBER 18, 1942, THE ENLISTED MAN WAS GRANTED LIBERTY OR LEAVE OF 48 HOURS FROM HIS STATION AT CATLETTSBURG, KENTUCKY, AND WHILE ON HIS WAY TO HIS HOME IN PINEVILLE, WEST VIRGINIA, THE AUTOMOBILE IN WHICH HE WAS RIDING SKIDDED FROM THE SIDE OF THE ROAD AND ROLLED OVER AN EMBANKMENT. IT IS REPORTED THAT HE SUFFERED A CEREBRAL CONCUSSION AND MULTIPLE CONTUSIONS; THAT NO LOCAL PUBLIC HEALTH SERVICE FACILITIES WERE AVAILABLE; AND THAT UNDER THE TELEPHONE INSTRUCTIONS OF ENSIGN B. A. THOMPSON, EXECUTIVE OFFICER OF THE CINCINNATI SECTION, TO WHICH HATFIELD WAS ATTACHED, HE WAS TAKEN TO THE NEAREST HOSPITAL, THE STEVENS CLINIC HOSPITAL AT WELCH, WEST VIRGINIA. THE HOSPITAL SUBMITTED A BILL OF $128 AND DR. R. H. EDWARDS, WELCH, WEST VIRGINIA, SUBMITTED A BILL OF $84, FOR SERVICES RENDERED HATFIELD WHILE HOSPITALIZED THERE FROM DECEMBER 18, 1942. TO JANUARY 4, 1943.

IN THE CASE OF JOHN M. GORDON, YEOMAN, SECOND CLASS, UNITED STATES COAST GUARD, IT APPEARS THAT ON DECEMBER 7, 1942, WHILE ABSENT ON AUTHORIZED LIBERTY FROM HIS STATION AT HAMPTON, NEW HAMPSHIRE, THE ENLISTED MAN WAS CRITICALLY INJURED IN AN AUTOMOBILE ACCIDENT AND WAS TAKEN TO THE ANNA JAQUES HOSPITAL AT NEWBURYPORT, MASSACHUSETTS. THE ATTENDING PHYSICIAN, APPARENTLY EMPLOYED BY THE PUBLIC HEALTH SERVICE IN THAT DISTRICT, HAS CERTIFIED THAT GORDON'S HOSPITALIZATION WAS NECESSARY BECAUSE OF A RUPTURED BLADDER, MULTIPLE CONTUSIONS, ABRASIONS AND LACERATIONS, THE RESULT OF BEING HIT BY AN AUTOMOBILE, AND THAT AN EMERGENCY OPERATION WAS PERFORMED. IT IS REPORTED THAT THE IMMEDIATE NEED FOR SURGICAL ATTENTION MADE IT NECESSARY TO USE THE SERVICES OF THE ANNA JAQUES HOSPITAL AND IT IS STATED THAT THE COMMANDING OFFICER AT THE HAMPTON STATION AUTHORIZED TREATMENT THERE. THE HOSPITAL SUBMITTED A BILL OF $268.25 FOR CARE AND SERVICES FROM DECEMBER 7, 1942, TO FEBRUARY 3, 1943.

IN THE CASE OF IVER JOHNSON, SEAMAN, SECOND CLASS, UNITED STATES COAST GUARD, IT APPEARS THAT ON SEPTEMBER 5, 1943, WHILE RETURNING TO HIS STATION AT BRIDGEHAMPTON, NEW YORK, FROM AN AUTHORIZED LIBERTY PERIOD OF 48 HOURS, THE ENLISTED MAN WAS HIT BY AN AUTOMOBILE AT SOUTHAMPTON, IN THE VICINITY OF HIS STATION, AND WAS TAKEN TO THE SOUTHAMPTON HOSPITAL. APPARENTLY HE WAS ATTENDED BY PUBLIC HEALTH SERVICE SURGEONS AND IT REPORTED THAT A DIAGNOSIS OF PERFORATION OF THE CECUM WAS MADE, WHICH REQUIRED IMMEDIATE LAPAROTOMY AND REPAIR; THAT HIS CONDITION WAS QUITE CRITICAL FOR SEVERAL DAYS, BUT HE EVENTUALLY MADE A RECOVERY; AND IT IS STATED THAT HE WAS TRANSFERRED TO A NAVAL HOSPITAL AS SOON AS HIS CONDITION PERMITTED. THE SOUTHAMPTON HOSPITAL ASSOCIATION SUBMITTED ITS BILL FOR $190 FOR CARE AND SERVICES RENDERED FROM SEPTEMBER 5 TO OCTOBER 7, 1943.

THE LAST THREE CLAIMS, OTHERWISE ADMINISTRATIVELY APPROVED FOR PAYMENT UNDER PUBLIC HEALTH SERVICE APPROPRIATIONS, WERE TRANSMITTED TO THIS OFFICE FOR DIRECT SETTLEMENT BECAUSE THE ENLISTED MEN INVOLVED WERE ON LIBERTY WHEN THEY WERE INJURED. REPORTING DECEMBER 13, 1943, ON THE CLAIM OF DR. WALTER L. JACKSON IN THE CASE OF DAVID C. ARTERBURN, THE COMMANDANT, UNITED STATES COAST GUARD, STATED THAT THE ADMINISTRATIVE VIEW THAT THE ENLISTED MAN, HAVING BECOME ILL ON LEAVE OR FURLOUGH, WAS NOT ENTITLED TO PRIVATE MEDICAL TREATMENT AT PUBLIC EXPENSE WAS BASED UPON THE DECISIONS AND RULINGS OF THIS OFFICE TO THE EFFECT THAT WHEN ANY PERSON IN THE MILITARY SERVICE FOR HIS OWN CONVENIENCE PUTS HIMSELF BEYOND THE REACH OF THE FACILITIES PROVIDED BY THE GOVERNMENT FOR HIS MEDICAL RELIEF, EXPENSE INCURRED FOR MEDICAL TREATMENT IS NOT A PROPER CHARGE AGAINST PUBLIC FUNDS. IT WAS FURTHER POINTED OUT THAT ADMINISTRATIVE REGULATIONS BASED ON SUCH DECISIONS AUTHORIZE MEDICAL RELIEF FOR COAST GUARD PERSONNEL ON LEAVE OF ABSENCE ONLY AT MARINE HOSPITALS AND DISPENSARIES CONDUCTED BY THE PUBLIC HEALTH SERVICE. IT WAS SUGGESTED, HOWEVER, THAT A DIFFERENT RULE MIGHT APPLY IN THE CASE OF ARTERBURN BECAUSE HE WAS A COAST GUARD RESERVIST ENTITLED BY SECTION 211 OF THE ACT OF FEBRUARY 19, 1941, 55 STAT. 12, TO THE SAME BENEFITS AS PRESCRIBED FOR MEMBERS OF THE NAVAL RESERVE WHO SUFFER SICKNESS, DISEASE, DISABILITY OR DEATH IN LINE OF DUTY.

AS INDICATED BY THE COMMANDANT, THE ACCOUNTING OFFICERS HAVE HELD IN NUMEROUS DECISIONS THAT PAYMENT BY THE GOVERNMENT FOR CIVILIAN MEDICAL SERVICES AND HOSPITAL CARE FURNISHED PERSONNEL OF THE ARMY, NAVY AND COAST GUARD WHILE ABSENT FROM THEIR STATIONS ON FURLOUGH OR LEAVE WAS NOT AUTHORIZED. EXCEPTIONS WERE MADE IN SOME CASES WHERE, UNDER ALL THE CIRCUMSTANCES, THE PERSON MIGHT BE REGARDED AS HAVING BEEN IN A "CONSTRUCTIVE" DUTY STATUS, ALTHOUGH PERMITTED TO BE ABSENT TEMPORARILY FROM HIS STATION. SUCH DECISIONS, WITH RESPECT TO NAVY OFFICERS AND ARMY PERSONNEL, WERE BASED PRIMARILY ON A SPECIFIC PROVISION CONTAINED IN SECTION 1586, REVISED STATUTES, EXPRESSLY PROHIBITING THE ALLOWANCE OF EXPENSES INCURRED BY ANY OFFICER OF THE NAVY FOR MEDICINES OR MEDICAL ATTENDANCE, UNLESS THEY WERE INCURRED "WHEN HE WAS ON DUTY," AND ON ANNUALLY REPEATED PROVISIONS IN ARMY APPROPRIATION ACTS MAKING FUNDS AVAILABLE FOR THE MEDICAL CARE AND TREATMENT OF OFFICERS AND ENLISTED MEN OF THE ARMY "ON DUTY," AND, AFTER 1907, SPECIFICALLY PROHIBITING THE USE OF SUCH FUNDS FOR THE TREATMENT OF OFFICERS AND ENLISTED MEN IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS ,WHILE ON FURLOUGH.' THE SAME RULES WERE APPLIED TO OTHER PERSONNEL BY ANALOGY, ON THE BASIS OF THE GENERAL LEGISLATIVE POLICY EXEMPLIFIED BY SUCH STATUTORY PROVISIONS. SEE THE DISCUSSION OF THE MATTER IN DECISION OF JUNE 27, 1944, 23 COMP. GEN. 980. HOWEVER, AS POINTED OUT IN THAT DECISION, ANY SUBSTANTIAL BASIS FOR THE RULES APPLIED TO OTHER PERSONNEL IN THE PRIOR DECISIONS HAS BEEN NEGATIVED BY THE CHANGE IN LEGISLATIVE POLICY CLEARLY SHOWN BY THE ACT OF APRIL 28, 1942, 56 STAT. 228, AND LATER ARMY APPROPRIATION ACTS, EXPRESSLY MAKING APPROPRIATIONS AVAILABLE FOR NECESSARY MEDICAL CARE AND TREATMENT IN PRIVATE HOSPITALS OF MILITARY PERSONNEL "WHETHER ON DUTY OR ON FURLOUGH OR LEAVE OF ABSENCE," EXCEPT WHEN "ELECTIVE" MEDICAL TREATMENT HAS BEEN OBTAINED. RECOGNIZING THAT SUCH CHANGE IN LEGISLATIVE POLICY REQUIRED A MODIFICATION OF THE RULES THERETOFORE APPLIED IN THE CASES OF NAVY ENLISTED MEN, IT WAS HELD IN THE SAID DECISION OF JUNE 27, 1944, QUOTING THE SYLLABUS, THAT:

PRIOR DECISIONS OF THE ACCOUNTING OFFICERS NEGATIVING THE ALLOWANCE OF THE COST OF CIVILIAN MEDICAL CARE AND TREATMENT OF NAVY ENLISTED MEN SOLELY BECAUSE THEY WERE ON LEAVE OR LIBERTY AT THE TIME--- WHICH DECISIONS WERE BASED ON THE GENERAL LEGISLATIVE POLICY EXEMPLIFIED BY PROVISIONS IN ANNUAL ARMY APPROPRIATION AND PROHIBITING ALLOWANCE OF SUCH EXPENSES INCURRED BY A/ARMY OFFICERS OR ENLISTED MEN--- ARE NOT TO BE REGARDED AS APPLICABLE OR CONTROLLING SUBSEQUENT TO THE ENACTMENT OF THE ACT OF APRIL 28, 1942, WHICH MARKED A REVERSAL OF SUCH LEGISLATIVE POLICY BY AUTHORIZING PAYMENT FOR MEDICAL CARE OR TREATMENT OF ARMY PERSONNEL "WHETHER ON DUTY OR ON FURLOUGH OR LEAVE OF ABSENCE.'

IT WAS SAID IN THE DECISION:

THE LEGISLATIVE HISTORY OF THE SAID ACT OF APRIL 28, 1942, DOES NOT DISCLOSE THE REASONS FOR THE CHANGE IN LANGUAGE TO PERMIT THE PAYMENT OF MEDICAL EXPENSES IN PRIVATE HOSPITALS OF MILITARY PERSONNEL, "WHETHER ON DUTY OR ON FURLOUGH OR LEAVE OF ABSENCE," BUT IT MAY BE VIEWED AS A LEGISLATIVE RECOGNITION THAT, AT LEAST DURING THE PRESENT WAR, WITH MILLIONS OF PERSONS IN THE ARMED FORCES REMOVED FROM THEIR HOMES AND NORMAL CIVILIAN PURSUITS, USUALLY WITH NO RESOURCES BEYOND THAT PART OF THEIR MILITARY PAY NOT ALLOTTED FOR THE SUPPORT OF DEPENDENTS, WITH LEAVES OF ABSENCE AND FURLOUGHS, WHERE FEASIBLE, PERMITTED AND ENCOURAGED TO MAINTAIN MORALE, AND WITH THE INTERESTS OF THE NATION VITALLY AND IMMEDIATELY CONCERNED IN MAINTAINING AND RESTORING THEIR HEALTH, THEIR EMERGENCY TREATMENT FOR INJURIES SUSTAINED OR SICKNESS ENCOUNTERED WHILE TEMPORARILY ABSENT FROM THEIR STATIONS SHOULD NOT BE LEFT TO CHANCE OR CHARITY. CF. 12 COMP. DEC. 562. HOWEVER THAT MAY BE, AND WHILE SUCH SPECIFIC AUTHORIZATION FOR THE PAYMENT OF COSTS OF NECESSARY MEDICAL CARE AND TREATMENT OF ARMY PERSONNEL ON FURLOUGH OR LEAVE OF ABSENCE MAY NOT BE VIEWED, OF COURSE, AS REPEALING THE EXPRESS PROHIBITION IN SECTION 1586, REVISED STATUTES, SUPRA, WITH RESPECT TO OFFICERS OF THE NAVY, IT DOES REMOVE ANY SUBSTANTIAL BASIS FOR THE RULES HERETOFORE APPLIED TO POLICY SHOWN BY THE PROHIBITIONS INCLUDED FOR SO MANY YEARS IN THE ARMY APPROPRIATION ACTS. * * *

IN VIEW OF THE ABOVE CONSIDERATIONS, I HAVE TO ADVISE THAT PRIOR DECISIONS OF THE ACCOUNTING OFFICERS NEGATIVING THE ALLOWANCE OF THE COST OF MEDICAL TREATMENT BY CIVILIAN PHYSICIANS OR IN PRIVATE HOSPITALS OF NAVY ENLISTED MEN SOLELY BECAUSE THEY WERE ON LEAVE OR LIBERTY WHEN SUCH TREATMENT BECAME NECESSARY, ARE NOT TO BE REGARDED AS APPLICABLE OR CONTROLLING SUBSEQUENT TO THE ENACTMENT OF THE SAID ACT OF APRIL 28, 1942. THERE WOULD BE NO AUTHORITY, OF COURSE, TO PAY FOR SUCH TREATMENT IN ANY CASE WHEE FOR PERSONAL REASONS ENLISTED MAN ELECTS TO OBTAIN CIVILIAN TREATMENT WHEN FACILITIES OF THE NAVY ARE AVAILABLE.

I PERCEIVE NO COMPELLING REASON REQUIRING THE APPLICATION OF A DIFFERENT RULE TO ENLISTED MEN OF THE COAST GUARD SERVING AS A PART OF THE NAVY DURING THE PRESENT WAR. THE ACT OF AUGUST 29, 1916, 39 STAT. 600, PROVIDES THUS:

WHENEVER, IN TIME OF WAR, THE COAST GUARD OPERATES AS A PART OF THE NAVY IN ACCORDANCE WITH LAW, THE PERSONNEL OF THAT SERVICE SHALL BE SUBJECT TO THE LAWS PRESCRIBED FOR THE GOVERNMENT OF THE NAVY * * *.

FOLLOWING THE SAID DECISION OF JUNE 27, 1944, THE SECRETARY OF THE NAVY ISSUED ALNAV NO. 175, SEPTEMBER 9, 1944, AS FOLLOWS:

UNDER DECISION ASSISTANT COMPTROLLER GENERAL UNITED STATES 27JUNE 1944 NAVY DEPARTMENT MAY NOW DEFRAY EXPENSES EMERGENCY MEDICAL AND HOSPITAL TREATMENT ENLISTED PERSONNEL NAVY AND MARINE CORPS OBTAINED FROM CIVILIAN SOURCES WHILE ON LEAVE OR LIBERTY WHERE IT IS IMPRACTICABLE TO OBTAIN TREATMENT FROM NAVAL OR OTHER GOVERNMENT FACILITIES. DECISION IS RETROACTIVE TO 26 APRIL 1942. CLAIMS FOR SUCH EXPENSES MAY BE SUBMITTED ACCORDANCE PARAGRAPHS 3162 AND 3167 BUMED MANUAL AND SHOULD BE LIMITED STRICTLY TO EMERGENCY MEDICAL OR HOSPITAL CARE AS DISTINGUISHED FROM ELECTIVE TREATMENT. DECISION DOES NOT INCLUDE OFFICERS IN VIEW ARTICLE 1189 (1) NAVREGS.

THAT WAS FOLLOWED BY ALCOAST NO. 75, SEPTEMBER 23, 1944, AS FOLLOWS:

ALNAV 175 IS APPLICABLE TO ENLISTED MEN OF THE COAST GUARD WHILE THE COAST GUARD IS OPERATING AS PART OF THE NAVY. THUS, THE COAST GUARD ADMINISTRATIVE VIEW SEEMS CLEAR THAT ENLISTED MEN OF THE COAST GUARD, OPERATING DURING THE WAR AS A PART OF THE NAVY, COME WITHIN THE SCOPE OF THE SAID DECISION ON A PARITY WITH ENLISTED MEN OF THE NAVY AND MARINE CORPS.

PROVISIONS FOR THE MEDICAL CARE OF COAST GUARD PERSONNEL, AS WELL AS NAVY PERSONNEL, ARE TRACED BACK TO A PROVISION MADE IN THE ACT OF JULY 16, 1798, 1 STAT. 605, FOR THE DEDUCTION OF 20 CENTS PER MONTH FROM THE PAY OF EVERY SEAMAN TO CREATE A FUND OUT OF WHICH THE PRESIDENT WAS AUTHORIZED ,TO PROVIDE FOR THE TEMPORARY RELIEF AND MAINTENANCE OF SICK AND DISABLED SEAMEN," THE SURPLUS OF THE FUND TO BE USED TO ESTABLISH HOSPITALS FOR THE ACCOMMODATION OF SICK AND DISABLED SEAMEN. IN DECISION OF DECEMBER 24, 1920, 27 COMP. DEC. 573, IT WAS STATED. MEDICAL ATTENDANCE IS AN ALLOWANCE, 25 COMP. DEC., 665, WHICH OFFICERS AND MEN OF THE COAST GUARD ARE ENTITLED TO BE FURNISHED BY THE PUBLIC HEALTH SERVICE, WITHOUT EXPENSE TO THEMSELVES, PARAGRAPHS 390 ET SEQ. OF THE REGULATIONS GOVERNING THE HOSPITALS AND RELIEF STATIONS OF THE UNITED STATES PUBLIC HEALTH SERVICE, 1920, AND 21 OP. ATT. GEN., 365, AND BY VIRTUE OF THE PROVISION IN THE ACT OF MAY 18, 1920, IT WOULD SEEM TO FOLLOW THAT THEY MAY BE FURNISHED SAME UNDER THE SAME GENERAL CONDITIONS THAT OFFICERS AND MEN OF THE UNITED STATES NAVY ARE FURNISHED MEDICAL ATTENDANCE OR TREATMENT BY THE MEDICAL CORPS OF THE UNITED STATES NAVY. IT IS IN THIS WAY THAT OFFICERS AND MEN OF THE COAST GUARD WILL RECEIVE THE SAME ALLOWANCES AS OFFICERS AND MEN IN THE NAVY WHICH THE LAW OF MAY 18 GIVES THEM.

HOWEVER, IN DECISION OF APRIL 23, 1930, A-30514, IT WAS SAID:

IT IS PROPER TO OBSERVE THAT EXCEPT AS THE LAWS MAKE PROVISION FOR MEDICAL AND HOSPITAL CARE AND TREATMENT OF MEMBERS OF THE COAST GUARD BY OR UNDER THE CONTROL OF THE UNITED STATES PUBLIC HEALTH SERVICE, NO MEDICAL SERVICE IS AUTHORIZED FOR THE COAST GUARD. WHILE THE PAY AND ALLOWANCES OF MEMBERS OF THE COAST GUARD WERE ASSIMILATED TO THE PAY AND ALLOWANCES OF OFFICERS AND ENLISTED MEN OF THE NAVY OF THE SAME RANK OR GRADE AND LENGTH OF SERVICE, SECTION 8, ACT OF MAY 18, 1920, 41 STAT. 603 (PROBABLY SUPERSEDED BY REASON OF THE SPECIFIC PROVISIONS OF THE ACT OF JUNE 10, 1922, 42 STAT. 625), AND A MEDICAL SERVICE AND A HOSPITAL FUND HAVE BEEN ESTABLISHED IN THE NAVY, SUCH MEDICAL SERVICE IS SUBSTANTIALLY LIMITED TO OFFICERS AND MEN ON DUTY (7 COMP. GEN. 314; MORROW V. THE UNITED STATES, 65 CT. CLS. 35); AND WHATEVER RIGHTS OFFICERS OR ENLISTED MEN OF THE NAVY MAY HAVE TO MEDICAL AND HOSPITAL TREATMENT, THE NECESSARY EFFECT OF THE DECISION OF THE SUPREME COURT IN UNITED STATES V. JONES, 18 HOW. 92, IS THAT SUCH RIGHTS DO NOT CONSTITUTE AN ALLOWANCE. WHATEVER RIGHTS TO MEDICAL AND HOSPITAL TREATMENT MEMBERS OF THE COAST GUARD MAY HAVE ARE THOSE GIVEN SPECIFICALLY BY THE LAWS APPLICABLE TO THAT SERVICE OR THE SERVICES FROM WHICH THE COAST GUARD WAS DERIVED AND NOT BE ASSIMILATION TO THE NAVY. * * *

IT MUST BE ACCEPTED AS A GENERAL RULE THAT WHERE AN OFFICER OR MAN OF THE COAST GUARD LEAVES HIS PLACE OF DUTY, WHETHER ON LEAVE OF ABSENCE OR ON SICK LEAVE OF ABSENCE, GOES TO A PLACE WHERE FACILITIES OF THE U.S. PUBLIC HEALTH SERVICE ARE NOT AVAILABLE, THE/DATE IS NO AUTHORITY OF LAW FOR PAYMENT OF THE COST OF HIS FURTHER MEDICAL AND HOSPITAL TREATMENT BY THE UNITED STATES, AND THE FACT THAT AN OFFICER OF THE PUBLIC HEALTH SERVICE MAY BE AVAILABLE AT THE PLACE TO WHICH HE GOES, GIVES THAT OFFICER NO RIGHT TO DIRECT HIS ADMISSION TO A PRIVATE HOSPITAL AT THE COST OF THE UNITED STATES. PARAGRAPH 623 OF THE PUBLIC HEALTH SERVICE REGULATIONS CORRECTLY STATES THE RIGHTS OF THE MEMBERS OF THE COAST GUARD TO MEDICAL AND HOSPITAL TREATMENT WHEN ON AUTHORIZED LEAVE OR SICK LEAVE. WHEN ON DUTY AT PLACES WHERE NO UNITED STATES PUBLIC HEALTH SERVICE FACILITIES ARE AVAILABLE, SECTION 620 MAKES PROVISION FOR EMERGENCY TREATMENT SIMILAR TO THE PROVISION MADE IN PARAGRAPHS 653 AND 654 FOR AMERICAN SEAMEN WHO MAY SECURE EMERGENCY TREATMENT ON APPLICATION TO AUTHORIZED CUSTOMS OFFICERS. NO MORE MAY BE AUTHORIZED FOR MEMBERS OF THE COAST GUARD. * * *

IT WILL BE NOTED THAT THE LATTER DECISION WAS RENDERED WHILE THE NATION WAS AT PEACE AND DID NOT PURPORT TO DETERMINE WHAT THE SITUATION OF COAST GUARD PERSONNEL IN SUCH RESPECTS WOULD BE WHILE OPERATING AS A PART OF THE NAVY DURING WAR. WHILE THE PROVISION IN THE ACT OF AUGUST 29, 1916, SUPRA, GENERALLY HAS NOT BEEN REGARDED AS AFFECTING THE PAY AND ALLOWANCES OF COAST GUARD WHILE SO SERVING (22 COMP. GEN. 723), THE DUTY OF PROVIDING FOR ALL NECESSARY CARE OF INJURED AND SICK MEMBERS OF THE ARMED FORCES, PARTICULARLY DURING WAR, IS A MATTER OF BASIC ADMINISTRATION, TO BE REGARDED AS PRIMARILY IN THE INTERESTS OF THE GOVERNMENT, RATHER THAN AS AN "ALLOWANCE" FOR THE BENEFIT OF SUCH PERSONNEL. PERSONS IN THE ARMED SERVICES ARE REQUIRED TO UNDERGO SUCH MEDICAL TREATMENT AS MAY BE PRESCRIBED AND ARE SUBJECT TO DISCIPLINARY ACTION FOR REFUSAL OR FAILURE TO SUBMIT TO SUCH TREATMENT. IN VIEW OF SUCH CIRCUMSTANCES, THE SAID PROVISION IN THE ACT OF AUGUST 29, 1916, PROPERLY MAY BE VIEWED AS EXTENDING TO THE FURNISHING OF MEDICAL AND HOSPITAL CARE FOR COAST GUARD PERSONNEL ON A PARITY WITH NAVY PERSONNEL, WHILE THE COAST GUARD IS OPERATING IN TIME OF WAR AS A PART OF THE NAVY, AND AS WARRANTING THE ADMINISTRATIVE DETERMINATION, SHOWN BY ALCOAST NO. 75, SUPRA, THAT THE DECISION OF JUNE 27, 1944, WITH RESPECT TO ENLISTED MEN OF THE NAVY, APPLIES, LIKEWISE, TO ENLISTED MEN OF THE COAST GUARD WHILE THE COAST GUARD IS SO OPERATING. IN THAT CONNECTION, IT IS UNDERSTOOD THAT DURING THE PRESENT WAR NAVY MEDICAL FACILITIES AND PUBLIC HEALTH SERVICE FACILITIES ARE UTILIZED INTERCHANGEABLY FOR BOTH NAVY AND COAST GUARD PERSONNEL AND IT IS NOTED THAT THE LABOR-FEDERAL SECURITY APPROPRIATION ACT OF JUNE 28, 1944, 58 STAT. 558, PUBLIC LAW 373, SPECIFICALLY MAKES THE PUBLIC HEALTH SERVICE APPROPRIATION FOR PAY OF PERSONNEL AND MAINTENANCE OF HOSPITALS AVAILABLE FOR FURNISHING MEDICAL AND HOSPITAL TREATMENT TO NAVY AND MARINE CORPS PERSONNEL.

SOME DOUBT IN THE MATTER ARISES FROM THE PREEXISTING PROVISIONS OF AUTHORIZING EMERGENCY CIVILIAN MEDICAL ATTENTION AND HOSPITAL CARE FOR PERSONNEL ON DUTY--- PROVIDE THAT PERSONNEL ON AUTHORIZED LEAVE MAY RECEIVE MEDICAL AND SURGICAL RELIEF ONLY AT REGULARLY ESTABLISHED RELIEF STATIONS OF THE PUBLIC HEALTH SERVICE.

SECTION 2 OF THE ACT OF JULY 30, 1937, 50 STAT. 548, PROVIDES, IN PART AS FOLLOWS:

THE ACT ENTITLED " AN ACT EXTENDING THE BENEFITS OF THE MARINE HOSPITALS TO THE KEEPERS AND CREWS OF LIFE SAVING STATIONS," APPROVED AUGUST 4, 1894, AS AMENDED (28 STAT. 229; U.S.C., 1934 EDITION, TITLE 24, SEC. 8), IS HEREBY FURTHER AMENDED TO READ AS FOLLOWS:

"/A) UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, UPON THE RECOMMENDATION OF THE SURGEON GENERAL WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, ALL COMMISSIONED OFFICERS, CHIEF WARRANT OFFICERS, WARRANT OFFICERS, CADETS, AND ENLISTED MEN OF THE COAST GUARD, INCLUDING THOSE ON SHORT DUTY AND THOSE ON DETACHED DUTY, WHETHER ON ACTIVE DUTY OR RETIRED, SHALL BE ENTITLED TO MEDICAL, SURGICAL, AND DENTAL TREATMENT AND HOSPITALIZATION BY THE PUBLIC HEALTH SERVICE * * *.'

EXCEPT FOR THE INTERPOLATION OF THE WORD "CADETS" AND THE PHRASE "INCLUDING THOSE ON SHORE DUTY AND THOSE ON DETACHED DUTY," SUCH PARAGRAPH IS THE SAME AS PARAGRAPH 623 OF THE 1926 REGULATIONS, REFERRED TO IN THE DECISION OF APRIL 23, 1930, SUPRA, WHICH WAS REPEATED AS PARAGRAPH 637 OF THE SAID 1931 REGULATIONS; SIMILAR PROVISIONS HAVE BEEN REPEATED IN THE COAST GUARD REGULATIONS. THERE IS LITTLE DOUBT THAT SUCH PROVISIONS IN THE REGULATIONS, FROM THEIR INCEPTION, HAVE RESTED ON THE PRIOR DECISIONS OF THIS OFFICE HOLDING, AS A MATTER OF LAW, THAT SERVICE PERSONNEL WERE NOT ENTITLED TO CIVILIAN MEDICAL AND HOSPITAL CARE AT GOVERNMENT EXPENSE WHILE AWAY FROM THEIR STATIONS ON AUTHORIZED LEAVE OR FURLOUGH. HOWEVER, AS DISCUSSED ABOVE, SUCH DECISIONS HAVE NOW LOST THEIR FORCE, AT LEAST TEMPORARILY, BY VIRTUE OF THE COUNTERVAILING PROVISIONS IN THE ACT OF APRIL 28, 1942, AND SUBSEQUENT ENACTMENTS; AND, HENCE, THE REGULATIONS STATING THE RULE ADDUCED FROM SUCH DECISIONS ARE NOT NECESSARILY TO BE VIEWED AS CONTROLLING IN THAT RESPECT, SUBSEQUENT TO THE MODIFICATION IN THE LAW. MOREOVER, THE SAID PUBLIC HEALTH SERVICE REGULATIONS CONTAINING SUCH PROVISION WERE ISSUED DURING THE PEACE, THE LAST ONE MORE THAN FOUR YEARS BEFORE THE UNITED STATES ENTERED THE PRESENT WAR, AND THERE APPEARS NO BASIS FOR TREATING SUCH PEACETIME PROVISION AS HAVING BEEN INTENDED TO PRECLUDE THE MEDICAL CARE OF COAST GUARD PERSONNEL ON A PARITY WITH NAVAL PERSONNEL WHILE THE COAST GUARD OPERATED AS A PART OF THE NAVY DURING WAR AND UNDER WAR STATUTES. I THINK WHAT DOUBT THERE MAY BE IN THE MATTER SHOULD BE RESOLVED IN FAVOR OF SUCH WARTIME PARITY AND IN ACCORDANCE WITH THE ADMINISTRATIVE VIEW OF THE MATTER SHOWN BY THE ISSUANCE OF THE SAID ALCOAST NO. 75.

IN THE FOUR CASES HERE INVOLVED, IT SUFFICIENTLY APPEARS THAT THE CIVILIAN MEDICAL TREATMENT AND HOSPITALIZATION WERE FURNISHED IN EMERGENCIES AND WERE NOT ELECTIVE. SUCH SERVICES ARE RENDERED SUBSEQUENT TO APRIL 28, 1942, AND UNDER CONDITIONS WHERE THE ONLY ADMINISTRATIVE DOUBT AS TO THE PROPRIETY OF PAYMENT APPEARS TO BE BASED ON RULES WHICH ARE NOT TO BE REGARDED AS CONTROLLING AFTER THAT DATE. ACCORDINGLY, THE CLAIMS SUBMITTED IN SUCH CASES WILL BE ALLOWED IN DUE COURSE, IN CONFORMITY WITH THE ACTION TAKEN PURSUANT TO THE SAID DECISION OF JUNE 27, 1944, IN THE SIMILAR CASES OF ENLISTED MEN OF THE NAVY.