B-7109, DECEMBER 27, 1939, 19 COMP. GEN. 605

B-7109: Dec 27, 1939

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PAYMENT OF EXPENSES INCURRED FOR HOSPITAL AND MEDICAL TREATMENT INCIDENT TO SUCH DISEASE AFTER TERMINATION OF THE ENCAMPMENT IS NOT AUTHORIZED. WAS ADMITTED. SHOWS THAT THE DISEASE WAS NOT CONTRACTED IN LINE OF DUTY AND PAYMENT OF HOSPITAL RATIONS FURNISHED THE ENLISTED MAN WHILE A PATIENT AT WALTER REED GENERAL HOSPITAL WAS AUTHORIZED ADMINISTRATIVELY FOR THE PERIOD AUGUST 8 TO AUGUST 19. SUCH LIMITATION BEING IN ACCORDANCE WITH THE HOLDING OF THIS OFFICE THAT MEDICAL TREATMENT AND THE NECESSARY EXPENSES INCIDENT THERETO FOR A DISEASE CONTRACTED NOT IN LINE OF DUTY IS LIMITED. THE QUESTION PRESENTED IS WHETHER THE HOLDING IN THE DECISION OF JANUARY 31. IS AFFECTED BY THE ACT OF JULY 15.

B-7109, DECEMBER 27, 1939, 19 COMP. GEN. 605

MEDICAL TREATMENT - NATIONAL GUARD - AFTER PERIOD OF TRAINING - INJURY OR DISEASE NOT INCURRED IN LINE OF DUTY THE ACT OF JULY 15, 1939, 53 STAT. 1042, AUTHORIZING THE SECRETARY OF WAR TO PROVIDE FOR HOSPITALIZATION AND MEDICAL TREATMENT OF PERSONS IN THE ACTIVE MILITARY SERVICE "WITHOUT REFERENCE TO THEIR LINE-OF-DUTY STATUS" DOES NOT AFFECT THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT WHERE AN ENLISTED MEMBER OF THE NATIONAL GUARD, PARTICIPATING IN AN ENCAMPMENT UNDER THE PROVISIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT, CONTRACTS A DISEASE NOT IN LINE OF DUTY, PAYMENT OF EXPENSES INCURRED FOR HOSPITAL AND MEDICAL TREATMENT INCIDENT TO SUCH DISEASE AFTER TERMINATION OF THE ENCAMPMENT IS NOT AUTHORIZED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO COLONEL LEO A. LUTTRINGER, UNITED STATES PROPERTY AND DISBURSING OFFICER, DECEMBER 27, 1939:

THERE HAS BEEN RECEIVED, BY FIFTH ENDORSEMENT FROM THE CHIEF OF THE NATIONAL GUARD BUREAU DATED NOVEMBER 3, 1939, A VOUCHER TRANSMITTED BY YOU STATED FOR $4.33 IN FAVOR OF THE HOSPITAL FUND, WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C. REPRESENTING THE VALUE OF COMMUTED RATIONS FROM AUGUST 20 TO AUGUST 25, 1939, INCLUSIVE, FURNISHED CORPORAL EDMUND SERGI, A MEMBER OF THE SECOND BATTALION HEADQUARTERS, 110TH INFANTRY, PENNSYLVANIA NATIONAL GUARD.

IT APPEARS FROM THE PAPERS WHICH ACCOMPANIED THE VOUCHER THAT THIS ENLISTED MAN, WHILE IN ATTENDANCE WITH HIS ORGANIZATION AT THE MANASSAS, VIRGINIA, MANEUVERS SCHEDULED FOR THE PERIOD AUGUST 5 TO AUGUST 19, 1939, SUFFERED A PULMONARY HEMORRHAGE ON AUGUST 6, AND AFTER RECEIVING TREATMENT AT THE 103D MEDICAL REGIMENT INFIRMARY, WAS ADMITTED, APPARENTLY AUGUST 8, AT WALTER REED GENERAL HOSPITAL WHERE HE REMAINED UNTIL AUGUST 25. THE ACCOMPANYING N.G.B. FORM 60, DATED AUGUST 13, 1939, APPROVED BY THE NATIONAL GUARD BUREAU, SHOWS THAT THE DISEASE WAS NOT CONTRACTED IN LINE OF DUTY AND PAYMENT OF HOSPITAL RATIONS FURNISHED THE ENLISTED MAN WHILE A PATIENT AT WALTER REED GENERAL HOSPITAL WAS AUTHORIZED ADMINISTRATIVELY FOR THE PERIOD AUGUST 8 TO AUGUST 19, INCLUSIVE, ONLY, SUCH LIMITATION BEING IN ACCORDANCE WITH THE HOLDING OF THIS OFFICE THAT MEDICAL TREATMENT AND THE NECESSARY EXPENSES INCIDENT THERETO FOR A DISEASE CONTRACTED NOT IN LINE OF DUTY IS LIMITED, UNDER THE APPROPRIATIONS FOR THE NATIONAL GUARD, TO THE PERIOD OF THE AUTHORIZED ENCAMPMENT AND NOT THEREAFTER. COMP. GEN. 610, DATED JANUARY 31, 1938.

THE QUESTION PRESENTED IS WHETHER THE HOLDING IN THE DECISION OF JANUARY 31, 1938, IS AFFECTED BY THE ACT OF JULY 15, 1939, PUBLIC NO. 177, 76TH CONGRESS, 53 STAT. 1042, SO AS TO AUTHORIZE PAYMENT OF COMMUTED RATIONS FOR AN ENLISTED MEMBER OF THE NATIONAL GUARD AFTER TERMINATION OF THE ENCAMPMENT PERIOD WHO IS BEING TREATED FOR A DISEASE OR INJURY NOT CONTRACTED IN LINE OF DUTY AS CONTEMPLATED BY THE ACT OF JUNE 15, 1936, 49 STAT. 1507.

THE ACT OF JULY 15, 1939, ENTITLED," AN ACT TO AMEND AND CLARIFY THE PROVISIONS OF THE ACT OF JUNE 15, 1936 (49 STAT. 1507), AND FOR OTHER PURPOSES," PROVIDES AS FOLLOWS:

THAT NEITHER OF THE PROVISIONS OF THE ACT OF JUNE 15, 1936 (49 STAT. 1507), NOR ANY OTHER LAW OF THE UNITED STATES SHALL BE CONSTRUED AS LIMITING THE POWER AND AUTHORITY OF THE SECRETARY OF WAR, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, TO REQUIRE THE HOSPITALIZATION AND MEDICAL TREATMENT OF PERSONS IN THE ACTIVE MILITARY SERVICE, AND TO INCUR OBLIGATIONS WITH RESPECT THERETO, WITHOUT REFERENCE TO THEIR LINE-OF-DUTY STATUS: PROVIDED, THAT THIS ACT SHALL NOT APPLY TO OFFICERS AND ENLISTED MEN WHO ARE TREATED IN PRIVATE HOSPITALS OR BY CIVILIAN PHYSICIANS WHILE ON FURLOUGHS OR LEAVES OF ABSENCE IN EXCESS OF TWENTY-FOUR HOURS.

THE ACT OF JULY 15, 1939, DOES NOT INCREASE OR MODIFY THE AUTHORITY OF THE SECRETARY OF WAR EXCEPT AS IT WAS LIMITED BY THE ACT OF JUNE 15, 1936 (AND WHICH HAS NEVER BEEN QUESTIONED SO FAR AS THIS OFFICE IS INFORMED) TO ORDER PERSONNEL IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AND NOT ABSENT ON FURLOUGH OR LEAVE OF ABSENCE TO SUBMIT TO REQUIRED MEDICAL TREATMENT; AND THE PROVISO OF THE ACT DENIES THIS AUTHORITY TO THE SECRETARY OF WAR (WHICH HE HAS NEVER HAD) WHEN THE INDIVIDUALS REFERRED TO ARE ON FURLOUGH OR LEAVE OF ABSENCE IN EXCESS OF 24 HOURS. WHILE NOT SPECIFICALLY STATED IN THE ACT, IT APPEARS OBVIOUS THAT THE PROVISION HAS REFERENCE TO PERSONS IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES.

IN THE DECISION OF JANUARY 31, 1938, AND BASED PRIMARILY UPON ANNUAL APPROPRIATION PROVISIONS FOR SUPPORT AND TRAINING OF THE NATIONAL GUARD RATHER THAN UPON THEIR STATUS AS TROOPS IN ACTIVE SERVICE OF THE UNITED STATES, IT WAS STATED IN PART AS FOLLOWS:

IT HAS BEEN HERETOFORE HELD THAT WHERE AN ENLISTED MEMBER OF THE NATIONAL GUARD CONTRACTS A DISEASE PRIOR TO THE PERIOD OF AN ENCAMPMENT AND THEREFORE NOT IN THE LINE OF DUTY, PAYMENT OF EXPENSES INCURRED FOR HOSPITAL AND MEDICAL TREATMENT INCIDENT TO SUCH DISEASES AFTER TERMINATION OF THE ENCAMPMENT WAS NOT AUTHORIZED UNDER THE ACT OF JUNE 15, 1936, 49 STAT. 1507, AND THIS RULE WAS APPLIED TO THE CASE OF JULIUS MORRIS, WHICH DENIED PAYMENT FOR HIS PRIVATE HOSPITAL TREATMENT COVERING THE PERIOD SUBSEQUENT TO TERMINATION OF THE ENCAMPMENT, AUGUST 22, 1936. SEE 17 COMP. GEN. 44. PRIOR TO THE ACT OF JUNE 15, 1936, HOWEVER, AND EVEN BEFORE ENACTMENT OF THE ANTECEDENT STATUTES ON THE SAME SUBJECT (ACT OF APRIL 26, 1928, 45 STAT. 461; SECTION 4, ACT OF JUNE 3, 1924, 43 STAT. 364, AND SECTION 6 OF THE ACT OF MARCH 4, 1923, 42 STAT. 1508), IT HAD BEEN HELD THAT MEMBERS OF THE NATIONAL GUARD WHILE PARTICIPATING IN AUTHORIZED ENCAMPMENTS UNDER THE PROVISIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT, 39 STAT. 206, WERE ENTITLED TO CIVILIAN HOSPITAL TREATMENT AS A CHARGE AGAINST THE APPROPRIATIONS FOR THE NATIONAL GUARD IF ARMY OR OTHER GOVERNMENT FACILITIES WERE NOT AVAILABLE, BUT THAT SUCH EXPENSES COULD NOT BE PAID UNDER THOSE APPROPRIATIONS AFTER THE ENCAMPMENTS HAD OFFICIALLY ENDED. 27 COMP. DEC. 631, DATED JANUARY 19, 1921. * * *

WHATEVER, THEREFORE, MAY BE THE JURISDICTION OVER THE NATIONAL GUARD DURING THE AUTHORIZED TRAINING PERIODS UNDER THE PROVISIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT, IT IS DOUBTFUL THAT THE MEMBERS THEREOF COULD LEGALLY BE REQUIRED TO SUBMIT TO HOSPITALIZATION AND MEDICAL TREATMENT BEYOND THE AUTHORIZED PERIOD OF SUCH ENCAMPMENT SO AS TO OBLIGATE THE NATIONAL GUARD APPROPRIATIONS FOR THEIR HOSPITALIZATION AND MEDICAL TREATMENT. SUCH MEMBERS OF THE NATIONAL GUARD NOT BEING IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, THE ACT OF JULY 15, 1939, SUPRA, DOES NOT WORK AN EXCEPTION IN THEIR FAVOR SO AS TO AUTHORIZE EXPENSES TO BE INCURRED UNDER THE ANNUAL APPROPRIATIONS FOR THE NATIONAL GUARD FOR A PERIOD SUBSEQUENT TO THE TRAINING PERIOD UNLESS THE INJURY OR DISEASE WAS INCURRED IN LINE OF DUTY UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936. SINCE IT IS SHOWN THAT THE DISEASE SUFFERED BY SERGEANT SERGI WAS CONTRACTED NOT IN LINE OF DUTY, THE EXPENSES INCURRED SUBSEQUENT TO THE ENCAMPMENT PERIOD FOR HIS SUBSISTENCE ARE NOT PAYABLE FROM THE NATIONAL GUARD APPROPRIATION. YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER WHICH IS RETURNED HEREWITH.