B-60059, MAY 19, 1947, 26 COMP. GEN. 884

B-60059: May 19, 1947

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MEDICAL TREATMENT - PRIVATE - NAVAL RESERVE OFFICER AT HOME UNDER ORDERS AWAITING RETIREMENT A DISABLED NAVAL RESERVE OFFICER WHO WAS DISCHARGED FROM A NAVAL HOSPITAL AND ORDERED TO PROCEED HOME IN AN ACTIVE-DUTY STATUS TO AWAIT COMPLETION OF RETIREMENT PROCEEDINGS UNDER AN EMERGENCY PROCEDURE DESIGNED TO MAKE HOSPITAL BEDS AVAILABLE FOR OTHER PATIENTS IS TO BE REGARDED AS CONTINUING "ON DUTY" WITHIN THE CONTEMPLATION OF SECTION 1586. CIVILIAN MEDICAL AND HOSPITAL EXPENSES INCURRED BY A NAVAL RESERVE OFFICER WHILE IN AN "ON DUTY" STATUS AT HIS HOME FOR WHICH REIMBURSEMENT IS AUTHORIZED UNDER SECTION 1586. PROVIDED SATISFACTORY EVIDENCE IS SUBMITTED THAT SUCH EXPENSES WERE ACTUALLY PAID BY HER.

B-60059, MAY 19, 1947, 26 COMP. GEN. 884

MEDICAL TREATMENT - PRIVATE - NAVAL RESERVE OFFICER AT HOME UNDER ORDERS AWAITING RETIREMENT A DISABLED NAVAL RESERVE OFFICER WHO WAS DISCHARGED FROM A NAVAL HOSPITAL AND ORDERED TO PROCEED HOME IN AN ACTIVE-DUTY STATUS TO AWAIT COMPLETION OF RETIREMENT PROCEEDINGS UNDER AN EMERGENCY PROCEDURE DESIGNED TO MAKE HOSPITAL BEDS AVAILABLE FOR OTHER PATIENTS IS TO BE REGARDED AS CONTINUING "ON DUTY" WITHIN THE CONTEMPLATION OF SECTION 1586, REVISED STATUTES, SO AS TO BE ALLOWED REIMBURSEMENT OF EXPENSES INCURRED WHILE AT HOME FOR EMERGENCY CIVILIAN MEDICAL ATTENTION AND HOSPITALIZATION, IN THE ABSENCE OF NAVAL HOSPITAL, ETC., FACILITIES. CIVILIAN MEDICAL AND HOSPITAL EXPENSES INCURRED BY A NAVAL RESERVE OFFICER WHILE IN AN "ON DUTY" STATUS AT HIS HOME FOR WHICH REIMBURSEMENT IS AUTHORIZED UNDER SECTION 1586, REVISED STATUTES, MAY BE PAID IN THE EVENT OF HIS DEATH TO HIS WIDOW, PROVIDED SATISFACTORY EVIDENCE IS SUBMITTED THAT SUCH EXPENSES WERE ACTUALLY PAID BY HER. ES WERE ACTUALLY PAID BY HER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 19, 1947:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1946, FILE JAG.WG.DS 100- 1WALSH, EDWARD N. A17-33, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY, DATED APRIL 25, 1946, WITH ENCLOSURES THEREIN LISTED, RELATIVE TO THE CLAIM OF THE WIDOW OF THE LATE LIEUTENANT (JG) EDWARD NEIL WALSH, U.S. NAVAL RESERVE, FOR PAYMENT OF $530.07 AS REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH CIVILIAN MEDICAL TREATMENT IN HIS CASE.

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED IN PARAGRAPH 4 OF THE ENCLOSED LETTER FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY. IN THE EVENT YOUR ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER THE APPLICABLE APPROPRIATION UNDER THE CONTROL OF THE NAVY DEPARTMENT MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF THE CLAIM OF THE WIDOW OF THE LATE LIEUTENANT (JG) WALSH.

THE LETTER FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY TO WHICH YOU REFER, IS AS FOLLOWS:

1. THIS BUREAU IS IN RECEIPT OF A CLAIM IN THE AMOUNT OF $530.07 FROM THE WIDOW OF SUBJECT-NAMED OFFICER FOR REIMBURSEMENT OF EXPENSES INCURRED FOR HIS CIVILIAN MEDICAL TREATMENT UNDER THE FOLLOWING CIRCUMSTANCES.

2. UNDER DATE OF 1 SEPT. 1945 LIEUTENANT WALSH WAS ISSUED ORDERS (ENCL 2) TO REPORT TO THE NAVAL RETIRING BOARD, WASHINGTON, D.C., FOR EXAMINATION FOR RETIREMENT IN ACCORDANCE WITH THE RECOMMENDATION OF A BOARD OF MEDICAL SURVEY. THE ORDERS FURTHER PROVIDED THAT LIEUTENANT WALSH PROCEED TO HIS HOME AND AWAIT ORDERS PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN HIS CASE.

3. IN OBEDIENCE TO HIS ORDERS LIEUTENANT WALSH PROCEEDED TO HIS HOME AT AURORA, ILLINOIS. ON 17 JAN. 1945 (1946) A MESSAGE WAS RECEIVED IN THE DEPARTMENT FROM THE WIFE OF LIEUTENANT WALSH STATING THAT HE HAD BEEN ADMITTED TO ST. JOSEPH MERCY HOSPITAL, AURORA, ILLINOIS, ON 30 DEC. 1945 AND WAS IN A CRITICAL CONDITION, THE DIAGNOSIS BEING "TUBERCULAR BRONCHIAL PNEUMONIA.' MRS. WALSH WAS INFORMED THAT HER HUSBAND WAS ELIGIBLE FOR TREATMENT IN A NAVAL HOSPITAL, BUT THAT, IN THE ABSENCE OF DEFINITE INFORMATION AS TO THE LIABILITY OF THE NAVY DEPARTMENT FOR EXPENSES INCURRED FOR CIVILIAN MEDICAL TREATMENT WHILE AT HOME, A DECISION WOULD HAVE TO BE OBTAINED THEREON FROM THE PROPER OFFICERS OF THE GOVERNMENT. LIEUTENANT WALSH DIED ON 23 JAN. 1945 (1946) WHILE STILL ON "AWAITING ORDERS," AND MRS. WALSH SUBSEQUENTLY SUBMITTED HER CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED AS ABOVE STATED.

4. IT IS ACCORDINGLY REQUESTED THAT THIS CASE BE PRESENTED TO THE COMPTROLLER GENERAL OF THE UNITED STATES WITH REQUEST FOR A DECISION AS TO WHETHER OR NOT AN OFFICER OF THE NAVY ORDERED TO HIS HOME TO AWAIT ORDERS PENDING ACTION OF THE RETIRING BOARD IN HIS CASE, FOR THE INTERIM BETWEEN HIS APPEARANCE BEFORE THE RETIRING BOARD AND THE RECEIPT OF FURTHER ORDERS, IS IN A DUTY STATUS WITHIN THE PURVIEW OF SECTION 1586, REVISED STATUTES, AND ENTITLED TO NECESSARY EMERGENCY MEDICAL AND HOSPITAL TREATMENT WHEN NAVAL HOSPITAL FACILITIES AND THE SERVICES OF A NAVAL MEDICAL OFFICER ARE NOT AVAILABLE.

SECTION 1586, REVISED STATUTES, PROVIDES:

EXPENSES INCURRED BY ANY OFFICER OF THE NAVY FOR MEDICINES AND MEDICAL ATTENDANCE SHALL NOT BE ALLOWED UNLESS THEY WERE ACTUALLY INCURRED WHEN HE WAS ON DUTY, AND THE MEDICINES COULD NOT HAVE BEEN OBTAINED FROM NAVAL SUPPLIES, OR THE ATTENDANCE OF A NAVAL MEDICAL OFFICER COULD NOT HAVE BEEN HAD.

THE ORDERS, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER, DIRECTING LT. (J.G.) EDWARD N. WALSH, U.S.N.R., TO REPORT TO THE PRESIDENT, NAVAL RETIRING BOARD, WASHINGTON, D.C., FOR EXAMINATION FOR RETIREMENT, WERE ADDRESSED TO HIM AT THE NAVAL HOSPITAL, NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MD., AND PROVIDE IN PART AS FOLLOWS:

1. WHEN DIRECTED BY THE MEDICAL OFFICER IN COMMAND, YOU WILL REPORT TO THE CIVIL READJUSTMENT OFFICER, NAVAL HOSPITAL, NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MD. FOR AN INTERVIEW.

2. IN ACCORDANCE WITH THE RECOMMENDATION OF A BOARD OF MEDICAL SURVEY BEFORE YOU RECENTLY APPEARED, YOU WILL REPORT AT 10900 ON 19 SEPTEMBER 1945, TO THE PRESIDENT, NAVAL RETIRING BOARD, NAVY DEPARTMENT, CORCORAN ANNEX, 401 23RD STREET NW., WASHINGTON, D.C., FOR EXAMINATION FOR RETIREMENT.

3. UPON THE COMPLETION OF THIS EXAMINATION, YOU WILL AWAIT ORDERS PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN YOUR CASE. YOU WILL PROCEED TO YOUR HOME AND COMPLETE ALL TRAVEL WITHIN ONE YEAR FROM DATE OF DISCHARGE FROM ATTENDANCE BEFORE THE NAVAL RETIRING BOARD.

7. DURING THE PERIOD BETWEEN THE DATE OF DISCHARGE FROM ATTENDANCE BEFORE THE NAVAL RETIRING BOARD AND DATE RELIEVED OF ALL ACTIVE DUTY, YOU MAY, AT YOUR OPTION, WEAR CIVILIAN CLOTHES; AND, WHILE WEARING CIVILIAN CLOTHES, YOU ARE AUTHORIZED TO ENGAGE IN ANY OCCUPATION NOT CONTRARY TO LAW.

IN MORROW V. UNITED STATES, 65 C.1CLS. 35, INVOLVING THE APPLICATION OF THE PROVISIONS OF SECTION 1586, REVISED STATUTES, THE COURT OF CLAIMS SAID:

* * * IN ORDER TO BE ENTITLED TO REIMBURSEMENT IN THIS CASE IT MUST BE SHOWN THAT PLAINTIFF WAS IN A DUTY STATUS. ON AND AFTER APRIL 27, 1925, WHEN PLAINTIFF LEFT THE NORFOLK NAVAL HOSPITAL HE WAS ON LEAVE OF ABSENCE, AND WAS ACTUALLY ABSENT FROM HIS STATION OR POST OF DUTY. THE MERE CANCELLATION OF THE LEAVE OF ABSENCE ON APRIL 30, 1925, COULD NOT REASONABLY BE CONSTRUED AS RESTORING THE DUTY STATUS. THE LANGUAGE OF THE STATUTE IS PLAIN AND FREE FROM AMBIGUITY. ITS PURPOSE AND INTENTION ARE EQUALLY CLEAR. THE GOVERNMENT MAINTAINS WELL EQUIPPED HOSPITALS AT POSTS AND STATIONS, WITH MEDICAL SUPPLIES, AND A CORPS OF EFFICIENT AND CAPABLE MEDICAL OFFICERS. AN OFFICER, OR OTHER MEMBER OF THE SERVICE, IN THE ARMY OR NAVY, WHEN ON DUTY AT SUCH POSTS OR STATIONS, IS ENTITLED TO MEDICINES AND TO MEDICAL TREATMENT FREE OF CHARGE. IF ON DETACHED DUTY AT A PLACE WHERE SUCH MEDICINES AND TREATMENT WERE NOT AVAILABLE HE MIGHT BE REIMBURSED FOR NECESSARY EXPENDITURES FOR SUCH SERVICE. IN NO CIRCUMSTANCES IS HE ENTITLED UNDER THE LAW TO REIMBURSEMENT UNLESS SUCH EXPENSES WERE INCURRED WHEN HE WAS ON DUTY. * * * SEE ALSO, 5 COMP. GEN. 862, AND 7 COMP. GEN. 314. CF. 19 COMP. GEN. 308.

THE QUESTION IN THE PRESENT CASE IS WHETHER LIEUTENANT WALSH IS TO BE REGARDED AS HAVING BEEN ,ON DUTY" WITHIN THE CONTEMPLATION OF SECTION 1586, REVISED STATUTES, WHILE HE WAS AT HOME AWAITING ORDERS, AFTER HAVING PROCEEDED THERE PURSUANT TO HIS ORDERS OF SEPTEMBER 1, 1945. IN DECISION OF MARCH 26, 1947, B-64009, 26 COMP. GEN. 695, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, THERE WAS CONSIDERED THE STATUS OF TWO NAVAL RESERVE OFFICERS UNDER ORDERS CONTAINING ESSENTIALLY THE SAME PROVISIONS AS IN THE PRESENT CASE. IT WAS SAID IN THAT DECISION:

WHILE THE ORDERS IN SUCH CASES, AS SHOWN BY THE ORDERS HERE INVOLVED, MAY ALLOW AN OFFICER ESSENTIALLY AS MUCH FREEDOM WHILE AWAITING FURTHER ORDERS AS HE WOULD HAVE IF HE WERE ON LEAVE OR ,TERMINAL LEAVE," NEVERTHELESS HIS STATUS REMAINS THAT OF BEING ON DUTY, AWAITING ORDERS, AND NOT THAT OF BEING ON LEAVE. THE ORDERS IN THE PRESENT CASES DO NOT GRANT LEAVE NOR WAS THE ISSUANCE OF SUCH ORDERS DEPENDENT ON THE OFFICER'S BEING ENTITLED TO LEAVE. CF. 23 COMP. GEN. 193. THE WORDS "TERMINAL LEAVE" AS USED IN PUBLIC LAW 226, NOVEMBER 21, 1945, SUPRA, DENOTE THAT PERIOD OF LEAVE WHICH MAY BE GRANTED JUST PRIOR TO RELEASE FROM ACTIVE DUTY, WHERE AN OFFICER HAS NOT PREVIOUSLY BEEN GRANTED ALL THE LEAVE AUTHORIZED BY STATUTE FOR HIS PERIOD OF ACTIVE DUTY, THE EFFECT BEING TO CONTINUE AN OFFICER IN AN ACTIVE DUTY PAY STATUS FOR SUCH PERIOD BEYOND THE TIME HE OTHERWISE WOULD HAVE BEEN RELEASED FROM SUCH STATUS. THERE WOULD APPEAR TO BE NO BASIS, HOWEVER, TO CONSTRUE THE SPECIFIC WORDS OF THE STATUTE "WHILE ON TERMINAL LEAVE" AS INCLUDING OTHER PERIODS WHEN AN OFFICER MIGHT BE RETAINED ON ACTIVE DUTY, WITHOUT REGARD TO ANY RIGHT OT LEAVE, AND WITHOUT BEING GRANTED ANY LEAVE. IT IS TO BE ASSUMED THAT THE CONGRESS USED THE WORDS ,TERMINAL LEAVE" IN THEIR COMMONLY ACCEPTED SENSE AND DID NOT INTEND TO INCLUDE PERIODS NOT COVERED BY LEAVE AUTHORIZED BY LAW, ALTHOUGH SUCH PERIODS MIGHT OTHERWISE HAVE MANY OF THE PRACTICAL ATTRIBUTES OF LEAVE. SEE 25 COMP. GEN. 866.

THE ORDERS IN THE PRESENT CASE, LIKE THE ORDERS IN THAT CASE, APPEAR TO HAVE BEEN ISSUED ON THE BASIS OF THE CONCLUSION REACHED IN DECISION OF MAY 21, 1943, B-33933, UPON THE SUBMISSION OF THE FOLLOWING MATTER BY THE SECRETARY OF THE NAVY:

THIS DEPARTMENT IS CONCERNED IN CONNECTION WITH THE IMMEDIATE DISPOSITION TO BE MADE IN THE CASES OF NAVAL RESERVE OFFICERS WHO HAVE BEEN FOUND TO BE NO LONGER PHYSICALLY FIT FOR ACTIVE DUTY AND WHO ARE TO BE EXAMINED BY THE NAVAL RETIRING BOARDS TO DETERMINE ULTIMATE DISPOSITION.

IN MANY OF THESE INSTANCES, FURTHER TREATMENT IS NOT INDICATED AND IT IS, THEREFORE, ADVISABLE THAT THEY BE DISCHARGED FROM THE HOSPITALS IN ORDER THAT BEDS MAY BE AVAILABLE FOR OTHERS WHO MAY REQUIRE HOSPITALIZATION.

IN THOSE INSTANCES WHERE THE OFFICER CONCERNED WILL UNDOUBTEDLY BE RETIRED BY REASON OF DISEASE OR WOUNDS INCURRED IN THE LINE OF DUTY, THE DEPARTMENT FEELS THAT PLACEMENT IN A WAITING ORDERS STATUS PENDING ACTION ON THE REPORT OF A NAVAL RETIRING BOARD IS THE PROPER SOLUTION. IT IS THIS PROCEDURE THAT THE DEPARTMENT WISHES TO ESTABLISH, PROVIDED THE OFFICER WILL BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES WHILE IN SUCH STATUS. IT WAS SAID IN THAT DECISION:

* * * OFFICERS OF THE REGULAR NAVY ENTITLED TO RETIREMENT FOR DISEASE OR WOUNDS INCURRED IN LINE OF DUTY REMAIN IN AN ACTIVE DUTY PAY STATUS PENDING RETIREMENT AND I DO NOT BELIEVE IT WOULD CONTRAVENE THE SPIRIT OF THE STATUTES TO CONTINUE A RESERVE OFFICER IN A SIMILAR STATUS TEMPORARILY FOR A REASONABLE TIME FOLLOWING HIS RELEASE FROM THE HOSPITAL, PENDING ACTION IN DUE COURSE ON THE REPORT OF A NAVAL RETIRING BOARD, IN CASES WHEN THERE IS NO REASON TO DOUBT THAT THE OFFICER IS ENTITLED TO RETIREMENT, AND WHERE IT IS ADMINISTRATIVELY DETERMINED THAT SUCH ACTION IS APPROPRIATE. COMPARE DECISION OF JUNE 15, 1922, 1 COMP. GEN. 736. THAT OFFICERS IN A "WAITING ORDERS"STATUS ARE ENTITLED TO THEIR PAY AND ALLOWANCES OTHERWISE AUTHORIZED SEE, UNITED STATES V. WILLIAMSON, 23 WALL. 411; UNITED STATES V. PHISTERER, 94 U.S. 219; AND UNITED STATES V. LIPPITT, 100 U.S. 663.

AS WAS INDICATED IN THE DECISION OF MARCH 26, 1947, WHILE THE STATUS OF OFFICERS UNDER SUCH ORDERS REMAINS THAT OF BEING ON DUTY, AWAITING ORDERS, THE WAITING PERIOD HAS MANY OF THE PRACTICAL ATTRIBUTES OF LEAVE. WOULD BE DIFFICULT ORDINARILY TO CONCLUDE THAT AN OFFICER ORDERED TO HIS HOME BUT ALLOWED A YEAR TO TRAVEL THERE AND PERMITTED IN THE MEANTIME TO WEAR CIVILIAN CLOTHES AND TO ENGAGE IN OTHER OCCUPATIONS IS "ON DUTY" WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES. HOWEVER, DESPITE SUCH PROVISIONS IN HIS ORDERS, THE PRESENT CASE INVOLVES THE SITUATION OF A DISABLED RESERVE OFFICER WHO WAS DISCHARGED FROM A NAVAL HOSPITAL AND DIRECTED TO PROCEED HOME IN AN ACTIVE-DUTY STATUS TO AWAIT COMPLETION OF RETIREMENT PROCEEDINGS, UNDER AN EMERGENCY PROCEDURE DESIGNED TO MAKE HOSPITAL BEDS AVAILABLE FOR OTHER PATIENTS. IN THE MORROW CASE, SUPRA, THE OFFICER OBTAINED A LEAVE OF ABSENCE AND "VOLUNTARILY REMOVED HIMSELF FROM A NAVAL HOSPITAL WHERE EVERY REASONABLE FACILITY FOR HIS TREATMENT OBTAINED.' IN THE PRESENT CASE, THE DISABLED OFFICER WAS DISCHARGED FROM THE HOSPITAL AND ORDERED TO HIS HOME AWAY FROM ESTABLISHED NAVAL MEDICAL FACILITIES FOR HIS CARE AND HAD LITTLE OR NO CHOICE IN THE MATTER. UNDER SUCH CIRCUMSTANCES, WHILE THE MATTER IS NOT FREE FROM DOUBT, I THINK THE DOUBT PROPERLY MAY BE RESOLVED ON THE SIDE OF REGARDING SUCH AN OFFICER AS CONTINUING "ON DUTY" WITHIN THE CONTEMPLATION OF THE STATUTE FOR THE PURPOSE OF ALLOWING REIMBURSEMENT OF EXPENSES, OTHERWISE PROPER, INCURRED FOR EMERGENCY CIVILIAN MEDICAL ATTENTION AND HOSPITALIZATION, IN THE ABSENCE OF NAVAL FACILITIES, PARTICULARLY IN VIEW OF THE CHANGED LEGISLATIVE POLICY OF THE CONGRESS WITH RESPECT TO SUCH MATTERS DURING THE WAR PERIOD. SEE 23 COMP. GEN. 980. ACCORDINGLY, WITHIN THE LIMITATIONS INDICATED HEREIN, THE SPECIFIC QUESTION IN PARAGRAPH 4 OF THE LETTER FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO YOUR QUESTION AS TO WHETHER CIVILIAN MEDICAL AND HOSPITAL EXPENSES INCURRED BY SUCH AN OFFICER, WHICH ARE OTHERWISE REIMBURSABLE BY THE GOVERNMENT, MAY BE PAID IN THE EVENT OF HIS DEATH TO HIS WIDOW, YOU ARE ADVISED THAT NO OBJECTION IS SEEN TO PAYMENT IN THAT MANNER, PROVIDED SATISFACTORY EVIDENCE IS SUBMITTED THAT SUCH EXPENS ..END :