B-41121, B-41800, B-41858, JUNE 27, 1944, 23 COMP. GEN. 980

B-41121,B-41800,B-41858: Jun 27, 1944

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MEDICAL TREATMENT - PRIVATE - NAVY ENLISTED MEN ON LEAVE OR LIBERTY 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 APPROPRIATIONS ACTS PROHIBITING ALLOWANCE OF SUCH EXPENSES INCURRED BY ARMY OFFICERS OR ENLISTED MEN. - ARE NOT TO BE REGARDED AS APPLICABLE OR CONTROLLING SUBSEQUENT TO THE ENACTMENT OF THE ACT OF APRIL 28. WAS A PATIENT IN THE NAVAL HOSPITAL. HAVING BEEN INFORMED BY TELEGRAPH THAT HIS MOTHER WAS SERIOUSLY ILL.UPON HIS ARRIVAL IN CONCORD.

B-41121, B-41800, B-41858, JUNE 27, 1944, 23 COMP. GEN. 980

MEDICAL TREATMENT - PRIVATE - NAVY ENLISTED MEN ON LEAVE OR LIBERTY 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 APPROPRIATIONS ACTS PROHIBITING ALLOWANCE OF SUCH EXPENSES INCURRED BY 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.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 27, 1944:

THIS OFFICE HAS FOR CONSIDERATION AND SETTLEMENT CERTAIN CLAIMS ARISING FROM THE CIVILIAN MEDICAL AND HOSPITAL TREATMENT FURNISHED THREE ENLISTED MEN OF THE NAVY.

CHARLES MCDONALD CRAYTON, SHIPFITTER, THIRD CLASS, UNITED STATES NAVAL RESERVE, WAS A PATIENT IN THE NAVAL HOSPITAL, BROOKLYN, NEW YORK, FROM JANUARY 20 TO JANUARY 30, 1943, WITH A DIAGNOSIS OF ACUTE TONSILLITIS. DISCHARGE TO DUTY HE APPARENTLY HAD RECOVERED. ON FEBRUARY 19, 1943, HE DEPARTED FROM THE NAVAL RECEIVING STATION, NEW YORK, NEW YORK, ON AUTHORIZED LEAVE FOR THE PURPOSE OF VISITING HIS HOME IN NORTH CAROLINA, HAVING BEEN INFORMED BY TELEGRAPH THAT HIS MOTHER WAS SERIOUSLY ILL.UPON HIS ARRIVAL IN CONCORD, NORTH CAROLINA, ON FEBRUARY 20, 1943, HE WAS REMOVED FROM THE TRAIN WITH A TEMPERATURE OF 104 DEGREES AND ADMITTED TO CABARRUS COUNTY HOSPITAL, WHERE HE REMAINED UNDER THE PROFESSIONAL CARE OF DR. PAUL R. MAULDEN AND DR. D. E. YOW UNTIL MAY 6, 1943, FOR THE TREATMENT OF CONDITIONS DIAGNOSED AS ACUTE RHEUMATIC POLYARTHRITIS AND RHEUMATIC HEART DISEASE.

THE FORMAL " REPORT OF CIVILIAN MEDICAL, DENTAL, AND HOSPITAL TREATMENT OF THE PERSONNEL OF THE NAVY AND MARINE CORPS," SUBMITTED MAY 26, 1943, BY THE MEDICAL OFFICER, NEW YORK RECEIVING STATION, STATES THAT SUCH SERVICES WERE AUTHORIZED BY THE CHARLOTTE NAVAL RECRUITING STATION, CHARLOTTE, NORTH CAROLINA. THE CABARRUS COUNTY HOSPITAL SUBMITTED A BILL FOR $534, DR. MAULDEN A BILL FOR $185, AND DR. YOW A BILL FOR $10. IN TRANSMITTING THE CLAIMS TO THIS OFFICE FOR SETTLEMENT, THE BUREAU OF MEDICINE AND SURGERY STATED THE OPINION THAT CRAYTON'S ATTACK OF ACUTE TONSILLITIS WAS RESPONSIBLE FOR THE SUBSEQUENT ILLNESS FOR WHICH IT WAS NECESSARY THAT HE BE TREATED IN A CIVILIAN INSTITUTION, THAT THERE WAS A DEFINITE CONNECTION BETWEEN SUCH SUBSEQUENT ILLNESS AND THE MAN'S SERVICE OBLIGATION, AND RECOMMENDED ALLOWANCE OF THE CLAIMS AS COMING WITHIN EXCEPTIONS OUTLINED IN DECISION OF THIS OFFICE DATED DECEMBER 18, 1931, A-38948. THE CLAIMS WERE DISALLOWED IN THE CLAIMS DIVISION OF THIS OFFICE UNDER DATE OF JANUARY 29, 1944, FOR THE REASON THAT THE ENLISTED MAN WAS ABSENT FROM DUTY AND AWAY FROM THE FACILITIES FURNISHED BY THE GOVERNMENT FOR HIS CARE WHEN INJURED OR ILL. THE CABARRUS COUNTY HOSPITAL HAS REQUESTED A REVIEW OF SUCH ACTION.

ELLSWORTH ALLEN WOLCOTT, JR., SEAMAN, SECOND CLASS, UNITED STATES NAVAL RESERVE, STATIONED AT BAINBRIDGE, MARYLAND, WAS A PATIENT IN THE NAVAL HOSPITAL AT BAINBRIDGE FROM DECEMBER 3, 1943, TO JANUARY 11, 1944, WITH A DIAGNOSIS OF SCARLET FEVER AND LOBAR PNEUMONIA. HE WAS DISCHARGED TO DUTY ON JANUARY 11, 1944. ABOUT TWO WEEKS LATER, WHILE ON WEEK END LIBERTY FROM NOON ON JANUARY 22 TO 10 P.M., JANUARY 23, HE ARRIVED AT HIS HOME IN HARTFORD, CONNECTICUT, ON JANUARY 22 WITH HEADACHE, CHILLS, FEVER AND COUGH AND THE NEXT DAY WAS TAKEN TO THE HARTFORD HOSPITAL WHERE HE REMAINED UNDER THE CARE OF DR. WALTER WEISSENBORN FOR LOBAR PNEUMONIA UNTIL JANUARY 29, 1944, WHEN HE WAS REMOVED TO THE NAVAL HOSPITAL AT ST. ALBANS, NEW YORK. HE WAS ADMITTED TO THE LATTER HOSPITAL WITH A DIAGNOSIS OF LOBAR PNEUMONIA AND REMAINED UNDER TREATMENT THERE UNTIL FEBRUARY 24, 1944, WHEN HE WAS DISCHARGED TO DUTY. THE ENLISTED MAN'S FATHER-IN-LAW, MR. M. ALLYN WADHAMS, HARTFORD, CONNECTICUT, WHO MADE THE NECESSARY ARRANGEMENTS FOR TREATMENT AT THE HARTFORD HOSPITAL, PAID THE HOSPITAL BILL OF $86.45 AND DR. WEISSENBORN'S BILL OF $25 AND SUBMITTED A CLAIM FOR REIMBURSEMENT. THE FORMAL " REPORT OF CIVILIAN MEDICAL, DENTAL, AND HOSPITAL TREATMENT," SUBMITTED BY THE MEDICAL OFFICER, USNTS, BAINBRIDGE, MARCH 23, 1944, STATES, WITH RESPECT TO THE TREATMENT IN THE HARTFORD HOSPITAL, THAT THE SERVICES OF A NAVAL MEDICAL OFFICER OR A NAVAL HOSPITAL WERE NOT AVAILABLE AND THAT THE CIVILIAN SERVICES RENDERED WERE "NECESSARY BUT NOT AUTHORIZED.' IN TRANSMITTING THE CLAIM OF MR. WADHAMS TO THIS OFFICE FOR SETTLEMENT, THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY NOTED THAT THE ENLISTED MAN HAD BEEN GRANTED LIBERTY IN EXCESS OF TWENTY- FOUR HOURS BUT, AS THE LOBAR PNEUMONIA FOR WHICH THE ENLISTED MAN REQUIRED TREATMENT WAS CONSIDERED TO HAVE BEEN A RECURRENCE OF THE SAME CONDITION FOR WHICH HE WAS TREATED IN THE NAVAL HOSPITAL AT BAINBRIDGE, HE RECOMMENDED THAT THE CLAIM BE ALLOWED IN FULL, AS SUBMITTED. THE CLAIM WAS DISALLOWED IN THE CLAIMS DIVISION OF THIS OFFICE UNDER DATE OF APRIL 10, 1944, FOR THE REASON THAT THE ENLISTED MAN WAS NOT IN A DUTY STATUS WHEN THE EXPENSES WERE INCURRED. A REVIEW OF SUCH ACTION HAS BEEN REQUESTED.

CHARLES TABER, YEOMAN, FIRST CLASS, UNITED STATES NAVAL RESERVE, WAS ASSIGNED TO DUTY IN THE OFFICE OF THE NAVY SUPERVISOR OF SHIPBUILDING, DE FOE BOAT AND MOTOR WORKS, BAY CITY, MICHIGAN. HE WAS SERIOUSLY INJURED IN AN AUTOMOBILE ACCIDENT ON THE ROAD BETWEEN BAY CITY AND SAGINAW, SOME TWELVE MILES DISTANT, ON THE SATURDAY NIGHT OF JULY 18, 1942, HE HAVING LEFT BAY CITY AFTER THE NAVY OFFICE THERE WAS CLOSED AT 5 O-CLOCK AND HE WAS ON LIBERTY, BUT SUBJECT TO CALL, FOR THE WEEK-END REST PERIOD UNTIL 8 O-CLOCK MONDAY MORNING. HE WAS TAKEN TO THE SAGINAW GENERAL HOSPITAL AND AFTER EMERGENCY TREATMENT WAS RENDERED, DR. DONALD C. DURMAN WAS CALLED. DR. DURMAN FOUND THE ENLISTED MAN HAD SUSTAINED A SEVERELY COMMINUTED FRACTURE OF THE LOWER END OF THE HUMERUS, INVOLVING THE ELBOW JOINT, WITH EXTENSIVE LACERATION OF THE SKIN AND MUSCLES AND OTHER SOFT TISSUES OF THE ARM. HE AVERS THAT, BECAUSE OF THE CHARACTER OF THE INJURY, IT WAS HIS OPINION THAT DEFINITIVE TREATMENT WAS NECESSARY AND THAT IT WOULD HAVE BEEN UNWISE TO DELAY SUCH TREATMENT UNTIL ARRANGEMENTS COULD BE MADE TO MOVE THE PATIENT TO A NAVAL HOSPITAL AND THAT HE WAS INSTRUCTED BY THE EXECUTIVE OFFICER AT THE NAVAL OFFICE IN BAY CITY TO GO AHEAD WITH SUCH TREATMENT AS DEEMED NECESSARY AND TO ARRANGE TO HAVE THE PATIENT TRANSFERRED TO THE GREAT LAKES NAVAL HOSPITAL AS SOON AS POSSIBLE. THE ENLISTED MAN REMAINED UNDER TREATMENT IN THE SAGINAW GENERAL HOSPITAL UNTIL AUGUST 4, 1942; RETURNED TO DR. DURMAN ON SEPTEMBER 2, 1942, FOR X- RAY; WAS TRANSFERRED TO THE GREAT LAKES NAVAL HOSPITAL, SEPTEMBER 7, 1942, AND WAS HONORABLY DISCHARGED AT THE LATTER PLACE ON OCTOBER 20, 1942, BY REASON OF PHYSICAL DISABILITY RESULTING FROM THE INJURY. THE FORMAL " REPORT OF CIVILIAN MEDICAL, DENTAL AND HOSPITAL TREATMENT," SUBMITTED SEPTEMBER 3, 1942, STATES THAT THE ENLISTED MAN'S INJURY WAS NOT DUE TO MISCONDUCT, THAT THE SERVICES OF A NAVAL MEDICAL OFFICER OR A NAVAL HOSPITAL WERE NOT AVAILABLE AND THAT THE CIVILIAN MEDICAL AND HOSPITAL TREATMENT RENDERED WERE NECESSARY AND WERE AUTHORIZED BY THE SUPERVISOR OF SHIPBUILDING, U.S.N., AT BAY CITY. THE BILL OF THE SAGINAW GENERAL HOSPITAL IN THE AMOUNT OF $177.60 AND DR. DURMAN'S BILL IN THE AMOUNT OF $223.80 WERE SUBMITTED TO THIS OFFICE FOR SETTLEMENT. THE BUREAU OF MEDICINE AND SURGERY, IN ITS ADMINISTRATIVE REPORT ON THESE CLAIMS, POINTED OUT THAT AS THE ENLISTED MAN WAS ON AUTHORIZED LIBERTY FOR A PERIOD IN EXCESS OF 24 HOURS, HE WAS CONSIDERED TO HAVE BEEN IN A LEAVE STATUS AND NOT IN A DUTY STATUS WHEN THE CIVILIAN MEDICAL AND HOSPITAL TREATMENT WERE RECEIVED, AND, THEREFORE, RECOMMENDED AGAINST FAVORABLE ACTION ON THE CLAIMS FOR THE REASON THAT PRIOR DECISIONS OF THE ACCOUNTING OFFICERS NEGATIVED ALLOWANCE IN SUCH CASES.

NAVY APPROPRIATION ACTS FOR THE FISCAL YEARS 1943 AND 1944, THE PERIOD HERE INVOLVED, SPECIFICALLY MADE APPROPRIATIONS FOR THE BUREAU OF MEDICINE AND SURGERY AVAILABLE FOR "THE CARE, MAINTENANCE, AND TREATMENT OF PATIENTS IN NAVAL AND OTHER HOSPITALS.' 56 STAT. 65; 57 STAT. 205. WHILE SECTION 1586, REVISED STATUTES, 34 U.S.C. 921, EXPRESSLY PROHIBITS 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 THE MEDICINE COULD NOT HAVE BEEN OBTAINED FROM NAVAL SUPPLIES OR THE ATTENDANCE OF A NAVAL MEDICAL OFFICER COULD NOT HAVE BEEN HAD, THERE APPEARS TO BE NO SIMILAR STATUTORY PROHIBITION OR RESTRICTION AGAINST ALLOWING SUCH EXPENSES IN THE CASE OF NAVY ENLISTED MEN. CF. 9 COMP. GEN. 482. NOR DOES IT APPEAR THAT NAVY REGULATIONS OR ADMINISTRATIVE INSTRUCTIONS PRECLUDE THE PROCUREMENT OF MEDICAL TREATMENT FOR ENLISTED MEN ON LEAVE EXCEPT AS THEY MAY PURPORT TO STATE THE RULES ADDUCED FROM THE DECISIONS OF THE ACCOUNTING OFFICERS ON THE MATTER.

THE LONG ESTABLISHED RULE MAINTAINED BY THE ACCOUNTING OFFICERS THAT NAVY ENLISTED MEN ARE NOT ENTITLED TO MEDICAL TREATMENT BY CIVILIAN PHYSICIANS OR IN PRIVATE HOSPITALS AT GOVERNMENT EXPENSE WHILE ON LEAVE OR "LIBERTY" OF SUCH DURATION AND UNDER SUCH CONDITIONS AS TO REMOVE THEM FROM EITHER AN ACTUAL OR A "CONSTRUCTIVE" DUTY STATUS, IN SITUATIONS RENDERING NAVAL MEDICAL TREATMENT OR HOSPITAL FACILITIES UNAVAILABLE, WAS BASED NOT ON ANY SPECIFIC STATUTORY PROHIBITION BUT ON THE GENERAL LEGISLATIVE POLICY EXEMPLIFIED TO SOME EXTENT BY THE SAID PROVISIONS OF SECTION 1586, REVISED STATUTES, BUT MORE PARTICULARLY BY THE PROHIBITORY PROVISIONS CONTAINED IN ANNUAL ARMY APPROPRIATION ACTS FOR A GREAT NUMBER OF YEARS, APPLICABLE TO OFFICERS AND ENLISTED MEN ALIKE. CF. MORROW V. UNITED STATES, 65 C.1CLS. 35.

FOR MANY YEARS UP TO AND INCLUDING THE FISCAL YEAR 1907, ANNUAL APPROPRIATIONS FOR THE ARMY MEDICAL DEPARTMENT WERE MADE AVAILABLE FOR THE MEDICAL CARE AND TREATMENT OF OFFICERS AND ENLISTED MEN OF THE ARMY "ON DUTY.' SEE, FOR EXAMPLE, THE ARMY APPROPRIATION ACT OF MARCH 3, 1885, 23 STAT. 360, AND JUNE 12, 1906, 34 STAT. 255. BEGINNING WITH THE ARMY APPROPRIATION ACT OF MARCH 2, 1907, 34 STAT. 1172, THE ANNUAL APPROPRIATIONS FOR THE ARMY MEDICAL DEPARTMENT WERE SPECIFICALLY MADE AVAILABLE FOR MEDICAL CARE AND TREATMENT NOT OTHERWISE PROVIDED FOR,"INCLUDING CARE AND SUBSISTENCE IN PRIVATE HOSPITALS," OF OFFICERS AND ENLISTED MEN, WITH THE EXPRESS PROHIBITION---

* * * THAT THIS SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGH *

WHILE SUCH RESTRICTIONS AND PROHIBITIONS WERE NOT DIRECTLY APPLICABLE TO NAVY ENLISTED MEN, THE POSITION WAS TAKEN BY ANALOGY THAT NAVY APPROPRIATIONS WERE NOT INTENDED TO BE AVAILABLE FOR PRIVATE MEDICAL TREATMENT AND HOSPITAL CARE OF NAVY ENLISTED MEN EXPRESSLY PROHIBITED FOR ARMY ENLISTED MEN. SEE 19 COMP. DEC. 382, AND AUTHORITIES CITED THEREIN, INCLUDING A STATEMENT MADE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, SEPTEMBER 14, 1912, IN CONSIDERING THAT PHASE OF THE MATTER, THAT---

THERE APPEAR TO BE NO LAWS OR NAVY REGULATIONS WHICH WOULD DISTINGUISH KEENE'S CASE FROM THAT OF AN ENLISTED MAN IN THE ARMY UNDER SIMILAR CONDITIONS. THE ANALOGY WAS EXTENDED TO APPLY TO NAVY ENLISTED MEN THE RULES FORMULATED IN INTERPRETING THE ARMY PROHIBITION. SEE, FOR EXAMPLE, DECISION OF NOVEMBER 21, 1919, 26 COMP. DEC. 408, BY THE COMPTROLLER OF THE TREASURY, IN PART AS FOLLOWS:

THE CASE IN 23 COMP. DEC. 543, WAS THAT OF A SOLDIER STATIONED AT FORT SHERIDAN, ILL., WHO WAS GRANTED PERMISSION TO ABSENT HIMSELF FROM POST ON PASS FROM 12 NOON, OCTOBER 27, TO 12 MIDNIGHT, THE SAME DAY. WHILE RETURNING TO THE FORT IN AN AUTOMOBILE THE MACHINE IN WHICH HE WAS RIDING COLLIDED WITH ANOTHER MACHINE, RESULTING IN INJURY TO THE SOLDIER. WHILE HE WAS UNCONSCIOUS HE WAS PICKED UP AND TAKEN TO A PRIVATE HOSPITAL AND ATTENDED BY A PRIVATE PHYSICIAN. ON THE DAY FOLLOWING HIS INJURY THE SOLDIER WAS TRANSFERRED TO THE MILITARY HOSPITAL. IT WAS HELD THAT THE GOVERNMENT WAS RESPONSIBLE FOR PAYMENT FOR PRIVATE MEDICAL AND HOSPITAL SERVICES THUS FURNISHED THE SOLDIER ON THE GROUNDS THAT A SOLDIER ABSENT ON A PASS NOT EXCEEDING 24 HOURS IS NOT ON FURLOUGH OR LEAVE OF ABSENCE, BUT IN A DUTY STATUS, AND THAT THE GOVERNMENT IS RESPONSIBLE FOR MEDICAL SERVICES PROPERLY INCURRED WHILE IN SUCH STATUS.

I KNOW OF NO REASON WHY THE PRINCIPLE ANNOUNCED IN 23 COMP. DEC. 543, SHOULD NOT BE APPLIED IN CASES AFFECTING ENLISTED MEN OF THE NAVY OR MARINE CORPS; AND THEREFORE YOU ARE ADVISED THAT THERE IS AUTHORITY OF LAW TO REIMBURSE PRIVATE INSTITUTIONS OR PHYSICIANS FOR HOSPITAL AND MEDICAL ATTENDANCE RENDERED TO ENLISTED MEN OF NAVY AND MARINE CORPS WHILE ABSENT FROM THEIR SHIP OR STATION ON LIBERTY NOT EXCEEDING 24 HOURS, IN CASES WHERE SUCH HOSPITAL OR MEDICAL ATTENDANCE IS RENDERED NECESSARY FROM THE FACT THAT NO NAVAL SURGEON OR GOVERNMENT HOSPITAL IS AVAILABLE.

THE PROHIBITION AGAINST THE USE OF APPROPRIATIONS FOR THE TREATMENT OF ARMY PERSONNEL IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS "WHILE ON FURLOUGH" WAS REPEATED ANNUALLY IN THE ARMY APPROPRIATION ACTS UNTIL THE FISCAL YEAR 1943, EXCEPT THAT FOR THE FISCAL YEARS 1939 TO 1942, INCLUSIVE, THE LANGUAGE WAS CHANGED TO READ "WHILE ON FURLOUGHS OR LEAVES OF ABSENCE IN EXCESS OF TWENTY-FOUR HOURS.' 52 STAT. 656; 53 STAT. 607; 54 STAT. 366; 55 STAT. 379. HOWEVER, A PROVISION CONTAINED IN THE ACT OF APRIL 28, 1942, 56 STAT. 228, MAKING, INTER ALIA, ADDITIONAL APPROPRIATIONS FOR THE ARMY MEDICAL DEPARTMENT FOR THE FISCAL YEAR 1942, MARKED A CLEAR REVERSAL OF THE PRIOR LEGISLATIVE POLICY IN THAT RESPECT BY EXPRESSLY PROVIDING--- * * * 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 BY MILITARY PERSONNEL IN CIVILIAN HOSPITALS OR FROM CIVILIAN PHYSICIANS OR DENTISTS * * * (ITALICS SUPPLIED.)

SUCH PROVISION WAS SUBSTANTIALLY REPEATED IN THE MILITARY APPROPRIATION ACT, 1943, APPROVED JULY 2, 1942, 56 STAT. 620, AS FOLLOWS: * * * FOR MEDICAL CARE AND TREATMENT OF PATIENTS, INCLUDING SUPERNUMERARIES, NOT OTHERWISE PROVIDED FOR, INCLUDING CARE, TREATMENT AND SUBSISTENCE IN PRIVATE HOSPITALS OF MILITARY PERSONNEL AND MEMBERS OF THE WOMEN'S ARMY AUXILIARY CORPS, WHETHER ON DUTY OR ON FURLOUGH OR ON LEAVE OF ABSENCE EXCEPT WHEN ELECTIVE MEDICAL TREATMENT HAS BEEN OBTAINED BY SUCH PERSONNEL IN CIVILIAN HOSPITALS OR FROM CIVILIAN PHYSICIANS OR DENTISTS * * *.

IT WAS AGAIN REPEATED IN THE MILITARY APPROPRIATION ACT, 1944, APPROVED JULY 1, 1943, 57 STAT. 357, WITH SOME CHANGE IN TERMINOLOGY, AS FOLLOWS:

* * * FOR MEDICAL CARE AND TREATMENT OF PATIENTS WHEN ENTITLED THERETO BY LAW, REGULATION OR CONTRACT, INCLUDING THEIR CARE, TREATMENT AND SUBSISTENCE IN PRIVATE HOSPITALS, WHETHER ON DUTY OR ON FURLOUGH OR ON LEAVE OF ABSENCE EXCEPT WHEN ELECTIVE MEDICAL TREATMENT HAS BEEN OBTAINED BY SUCH PERSONNEL IN CIVILIAN HOSPITALS OR FROM CIVILIAN PHYSICIANS OR DENTISTS * * *.

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 NAVY ENLISTED MEN BY ANALOGY TO ARMY PERSONNEL, OR BASED ON THE LEGISLATIVE POLICY SHOWN BY THE PROHIBITIONS INCLUDED FOR SO MANY YEARS IN THE ARMY APPROPRIATION ACTS. IN SUCH CONNECTION, IT MAY NOT BE WITHOUT CONSIDERABLE SIGNIFICANCE THAT PRACTICALLY CONCURRENTLY WITH THE CHANGE IN THE LANGUAGE WITH RESPECT TO THE ARMY SHOWN IN THE SAID ACT OF APRIL 28, 1942, THE LANGUAGE OF PRIOR YEARS MAKING APPROPRIATIONS FOR THE NAVY BUREAU OF MEDICINE AND SURGERY, ALTHOUGH CONTAINING NO PROHIBITION SUCH AS THERETOFORE INCLUDED IN THE THE ARMY APPROPRIATION ACTS, WAS CHANGED IN THE NAVAL APPROPRIATION ACT, 1943, APPROVED FEBRUARY 7, 1942, 56 STAT. 65, BY ADDING THE PROVISION, REFERRED TO ABOVE,"INCLUDING THE CARE, MAINTENANCE, AND TREATMENT OF PATIENTS IN NAVAL AND OTHER HOSPITALS," SUCH PROVISION BEING REPEATED IN THE NAVAL APPROPRIATION ACT, 1944, APPROVED JUNE 26, 1943, 57 STAT. 205.

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 WHERE FOR PERSONAL REASONS AN ENLISTED MAN ELECTS TO OBTAIN CIVILIAN TREATMENT WHEN FACILITIES OF THE NAVY ARE AVAILABLE.

IN THE THREE CASES HERE INVOLVED, THE TREATMENT IN PRIVATE HOSPITALS WAS SUBSEQUENT TO APRIL 28, 1942; IT WAS NOT ELECTIVE; IT WAS EITHER PREVIOUSLY AUTHORIZED BY APPROPRIATE NAVY OFFICERS OR HAS RECEIVED SUBSEQUENT ADMINISTRATIVE APPROVAL; AND THE CLAIMS HAVE BEEN ADMINISTRATIVELY APPROVED EXCEPT IN ONE CASE WHERE THE ADVERSE RECOMMENDATION WAS BASED ON PRIOR DECISIONS OF THE ACCOUNTING OFFICERS WHICH MAY NOT BE REGARDED AS CONTROLLING WHEN THE EXPENSES WERE INCURRED. ACCORDINGLY, THE CLAIMS SUBMITTED IN THE THREE CASES WILL BE ALLOWED IN DUE COURSE.