B-7848, APRIL 17, 1940, 19 COMP. GEN. 871

B-7848, APRIL 17, 1940, 19 COMP. GEN. 871

PAY AND ALLOWANCES - OFFICERS' RESERVE CORPS - RATE PAYABLE DURING HOSPITALIZATION THE RATE OF PAY AT TIME OF RECURRENCE OF A DISEASE AFTER A "COMPLETE HEALING" RATHER THAN THE RATE AT THE TIME THE DISEASE WAS ORIGINALLY CONTRACTED, DETERMINES THE PAY AND ALLOWANCES OF MEMBERS OF THE OFFICERS' RESERVE CORPS DURING HOSPITALIZATION UNDER THE ACT OF JUNE 15, 1936, 49 STAT. 1507. 17 COMP. GEN. 810, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. M. T. LEGG, UNITED STATES ARMY, APRIL 17, 940:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, UNITED STATES ARMY, YOUR LETTER OF DECEMBER 19, 1939, AS FOLLOWS:

1. UNDER AUTHORITY OF SECTION 8, ACT OF 7/31/1894 (28 STAT. 208, 31 U.S.C. 74), RECONSIDERATION AND DISALLOWANCE IS REQUESTED ON VOUCHERS 1509 AND 1510, OCTOBER, 1938, AND 481 AND 1596, NOVEMBER 1938, TOTALLING $60.00, ACCOUNTS OF THE UNDERSIGNED, SYMBOL NO. 229-637, COVERING PAY AND ALLOWANCES OF CAPTAIN DONALD B. MARSH, MED-RES., FOR THE PERIOD MAY 8 TO NOVEMBER 7, 1938. (PERIOD IN HOSPITAL.)

2. THE DISALLOWANCES, AS MADE, SHOW THAT THE OFFICER WAS CREDITED WITH BASE PAY FOR THE PERIOD MAY 8-1NOVEMBER 7, 1938, AT THE RATE OF $230.00 PER MONTH (OVER 9 YEARS' SERVICE), WHEREAS ACCORDING TO THE SUSPENSION HE WAS ENTITLED TO THE RATE OF PAY OF $220.00 PER MONTH FOR THE SAME PERIOD.

3. UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936 (49 STAT. 1507), AN OFFICER IS ENTITLED TO PAY AND ALLOWANCES AT THE RATE HE WAS ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED. THE CERTIFICATE ATTACHED TO THIS VOUCHER FROM THE STATION HOSPITAL DATED OCTOBER 6, 1938, STATES THIS OFFICER WAS FOUND BY THE BOARD OF OFFICERS CONVENED APRIL 14, 1938, AND SEPTEMBER 12, 1938, TO HAVE SUFFERED INJURY ON NOVEMBER 15, 1936, IN LINE OF DUTY WHILE ON ACTIVE DUTY. THE FINDINGS WERE APPROVED BY THE SECRETARY OF WAR, SEPTEMBER 29, 1938. THIS OFFICER ENTERED THE STATION HOSPITAL, FT. SHERIDAN, ILLINOIS, FEBRUARY 16, 1938, PURSUANT TO INSTRUCTIONS CONTAINED IN PAR. 2, SPECIAL ORDER NO. 16, CAMP ANNAWAN, ANNAWAN, ILLINOIS, DATED FEBRUARY 15, 1938. THIS OFFICER WAS RECEIVING PAY FOR OVER 6 YEARS' SERVICE (BASE PAY $220.00 PER MONTH) WHEN HE SUSTAINED INJURY NOVEMBER 15, 1936, SUCH SERVICES HAVING BEEN COMPLETED AS OF AUGUST 11, 1934. NINE YEARS' SERVICES WERE COMPLETED AUGUST 11, 1937.

4. THE DECISION REFERRED TO (17 COMP. GEN. 812, ALSO PAR. 1 (C) FINANCE BULLETIN 31, 1938) REFERS TO AN OFFICER WHO ENTERED THE HOSPITAL SUBSEQUENT TO THE TIME HE HAD BEEN RELIEVED FROM ACTIVE DUTY FOR AN INJURY SUSTAINED AT SOME DATE PRIOR TO HIS RELIEF FROM DUTY. THE INSTANT CASE DIFFERS FROM THIS IN THAT THIS OFFICER SUSTAINED INJURY AND WAS CONTINUED ON DUTY FOR A PERIOD OF SOME 15 MONTHS THEREAFTER BEFORE ENTRY IN THE HOSPITAL PRIOR TO HIS RELIEF FROM DUTY, AND WAS DRAWING CREDIT FOR OVER 9 YEARS' SERVICE PRIOR TO ENTERING THE HOSPITAL. ALSO, THERE WAS NO LAPSE OF TIME AFTER HIS RELIEF FROM DUTY, I.E., AT DATE OF RELIEF HE WAS IN THE HOSPITAL AND DREW PAY CONTINUOUSLY FOR ANOTHER SIX MONTHS.

5. IT IS NOT BELIEVED THIS DECISION, AND THE REGULATIONS REFERRED TO CONTEMPLATE CASES SUCH AS THIS, I.E., FOR AN OFFICER TO REVERT BACK TO RECEIVING A LOWER RATE OF PAY THAN THAT HE WAS RECEIVING UPON ENTERING THE HOSPITAL FOR TREATMENT OF AN INJURY WHEN THERE IS NO ELAPSED TIME BETWEEN RELIEF FROM DUTY, AND THE HOSPITALIZATION PERIOD OF SIX MONTHS.

6. IN VIEW OF THE ABOVE, IT IS REQUESTED THAT THE DISALLOWANCES BE RECONSIDERED AND CREDIT ALLOWED IN THE ACCOUNTS OF THE UNDERSIGNED.

IT APPEARS THAT THIS OFFICER ACCEPTED APPOINTMENT IN THE OFFICERS' RESERVE CORPS AS FIRST LIEUTENANT JANUARY 12, 1924, AND AS CAPTAIN OCTOBER 7, 1930. HE HAS HAD ACTIVE DUTY (APPARENTLY FOR TRAINING PURPOSES) FROM JULY 22 TO AUGUST 4, 1928; JULY 11 TO JULY 24, 1930; AUGUST 29 TO SEPTEMBER 11, 1931; AND FROM SEPTEMBER 17 TO SEPTEMBER 30, 1932. HE WAS ON CONTINUOUS ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS FROM MAY 8, 1933, TO MAY 7, 1938, UNDER SUCCESSIVE 6-MONTH TOURS BY ORDERS DATED APRIL 28, 1933; OCTOBER 18, 1933; APRIL 17, 1934; OCTOBER 24, 1934; APRIL 23, 1935; OCTOBER 24, 1935; APRIL 13, 1936; OCTOBER 27, 1936; APRIL 13, 1937; AND OCTOBER 18, 1937. THE LAST ORDER RELIEVED HIM FROM ACTIVE DUTY MAY 7, 1938. HE WAS ALSO A COMMISSIONED OFFICER ON ACTIVE DUTY STATUS IN THE UNITED STATES ARMY FROM NOVEMBER 12 TO DECEMBER 9, 1918. HE COMPLETED 6 YEARS' SERVICE ON JULY 13, 1934, AND 9 YEARS' SERVICE ON JULY 13, 1937.

BY SPECIAL ORDERS NO. 16, 3682D COMPANY, CIVILIAN CONSERVATION CORPS, DATED FEBRUARY 15, 1938, CAPTAIN MARSH WAS DIRECTED TO PROCEED TO THE STATION HOSPITAL, FORT SHERIDAN, ILL., FOR FURTHER OBSERVATION AND TREATMENT, PRESUMABLY AS A RESULT OF AN INJURY SUSTAINED IN LINE OF DUTY ON NOVEMBER 15, 1936. HE WAS RELIEVED FROM ACTIVE DUTY MAY 7, 1938, AND WAS CONTINUED IN THE HOSPITAL AS A PATIENT UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507, UNTIL NOVEMBER 7, 1938, EXPIRATION OF THE 6-MONTH PERIOD, WHEN HE WAS RELEASED THEREFROM BY SPECIAL ORDERS NO. 256, DATED HEADQUARTERS, FORT SHERIDAN, ILL., NOVEMBER 7, 1938. SINCE THIS RESERVE OFFICER HAD NOT COMPLETED 9 YEARS' SERVICE UNTIL JULY 13, 1937, THE DIFFERENCE BETWEEN $230 PER MONTH AND $220 PER MONTH PAID TO HIM DURING THE PERIOD OF HOSPITALIZATION SUBSEQUENT TO MAY 7, 1938, WAS DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER PAYING HIM BASED ON THE FACTS THEN BEFORE THIS OFFICE.

ACCORDING TO A REPORT FROM THE COMMANDING GENERAL, SIXTH CORPS AREA, RECENTLY FURNISHED THIS OFFICE, CAPTAIN MARSH WAS HOSPITALIZED SUBSEQUENT TO NOVEMBER 15, 1936, AS FOLLOWS:

SICK IN STATION HOSPITAL, CHANUTE FIELD, ILL., FROM NOVEMBER 17, 1936, TO DECEMBER 8, 1936, AND FROM APRIL 16, 1937, TO MAY 11, 1937.

SICK IN STATION HOSPITAL, FORT SHERIDAN, ILL., FROM FEBRUARY 16, 1938, TO MAY 7, 1938, WHEN HE WAS RELIEVED FROM ACTIVE DUTY; REMAINED IN HOSPITAL UNDER THE PROVISIONS OF PARAGRAPH 2E, AR 35-3420 UNTIL NOVEMBER 7, 1938.

IN RESPONSE TO A REQUEST BY THE MEDICAL OFFICER, CHANUTE FIELD, RANTOUL, ILL., DATED DECEMBER 14, 1936, AS TO WHETHER A BOARD OF OFFICERS HAD BEEN CONVENED TO DETERMINE THE "LINE OF DUTY" STATUS OF THE INJURY SUSTAINED BY CAPTAIN MARSH IN NOVEMBER 1936, THE COMMANDING OFFICER OF COMPANY V-3678, C.C.C., CAMP GILMAN, ILL., REPLIED THAT NO BOARD OF OFFICERS HAD BEEN CONVENED BUT THAT HAVING WITNESSED THE ACCIDENT WHICH RESULTED IN THE INJURY TO CAPTAIN MARSH "HE WAS OF THE OPINION THAT IT WAS INCURRED IN LINE OF DUTY.'

THE BOARD OF OFFICERS WHICH CONVENED APRIL 14, 1938, AT LEMONT, ILL; MADE THE FOLLOWING INDINGS:

1. CAPTAIN DONALD B. MARSH, MED.-1RES., 3682ND COMPANY, C.C.C., CAMP ANNAWAN, D-6 ( ILL.), ANNAWAN, ILLINOIS, IS CONFINED IN THE STATION HOSPITAL, FORT SHERIDAN, ILL., BECAUSE OF AN ULCER, CHRONIC, RECURRENT, INDOLENT, ON THE ANTERIOR SURFACE OF THE LEFT LEG AT THE JUNCTION OF THE MIDDLE AND LOWER THIRD.

2. THAT ON JULY 19, 1914, CAPTAIN MARSH SUFFERED A COMPOUND FRACTURE OF THE LEFT LEG 3 INCHES ABOVE THE ANKLE.

3. THAT DURING MARCH 1916 HE UNDERWENT A RADICAL OPERATION FOR OSTEOMYELITIS, WITH COMPLETE RECOVERY; A THREE-QUARTER/INCH SCAR ON THE ANTERIOR CRURAL SURFACE RESULTING FROM THE OPERATION.

4. THAT ON NOVEMBER 15, 1936, HE SLIPPED ON THE STEPS OF THE OFFICERS QUARTERS BUILDING AT CAMP GILMAN, D-2 ( ILL.), GILMAN, ILLINOIS, STRIKING HIS LEFT LEG ON THE CORNER OF A STEP. A LACERATION, SEVERE CONTUSION, AND A FRACTURE OF THE FIBULA AT THE LEVEL OF THE OLD INJURY RESULTED, FOR WHICH HE WAS HOSPITALIZED AT THE STATION HOSPITAL, CHANUTE FIELD, RANTOUL, ILLINOIS, FROM NOVEMBER 17, 1936, TO DECEMBER 9, 1936, AND WAS RELEASED IMPROVED.

5. THAT HE WAS AGAIN HOSPITALIZED AT THE STATION HOSPITAL, CHANUTE FIELD, RANTOUL, ILLINOIS, FROM APRIL 15, 1937, TO MAY 11, 1937, FOR FURTHER TREATMENT OF THE ABOVE WOUND AND WAS RELEASED WITH COMPLETE HEALING OF THE WOUND.

6. THAT WHILE ON DUTY AT ISLE ROYALE, MICHIGAN, DURING JUNE 1937, AN ULCER RECURRED AT THE SITE OF THE ABOVE WOUND WHICH WAS TREATED BY HIMSELF WITH COMPLETE HEALING.

7. THAT AN ULCER AGAIN RECURRED DURING SEPTEMBER 1937, WHICH FAILED TO HEAL.

8. THAT ON FEBRUARY 16, 1938, HE WAS HOSPITALIZED AT THE STATION HOSPITAL, FORT SHERIDAN, ILLINOIS, FOR TREATMENT OF THE ABOVE ULCER AND THAT AT THE PRESENT TIME HE IS UNDERGOING TREATMENT AT THAT HOSPITAL.

9. THAT THE CAUSE OF HIS ILLNESS IS NOT DUE TO THE FAULT OR NEGLECT OF ANY PERSON.

10. THAT HE ENTERED THE HOSPITAL FROM A FULL DUTY STATUS.

11. THAT THE INJURY RECEIVED ON NOVEMBER 15, 1936, WAS DETERMINED AS HAVING BEEN RECEIVED IN LINE OF DUTY.

12. THAT HE WAS NOT UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR NARCOTICS UPON ENTRY TO THE HOSPITAL.

13. THAT IT WILL PROBABLY BE SEVERAL MONTHS BEFORE CAPTAIN MARSH IS ABLE TO PERFORM FULL DUTY.

14. THAT CAPTAIN DONALD B. MARSH, MED.-1RES., 3682ND COMPANY, C.C.C., CAMP ANNAWAN, D-6 ( ILL.), ANNAWAN, ILLINOIS, WAS ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS AT THE TIME OF HIS INJURY ON NOVEMBER 15, 1936, AND HAS BEEN ON CONTINUOUS ACTIVE DUTY SINCE THAT DATE.

THE ACT OF JUNE 15, 1936, 49 STAT. 1507, IS WORDED IN PART, AS FOLLOWS:

* * * MEMBERS OF THE OFFICERS' RESERVE CORPS * * * WHO SUFFER INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS IN TIME OF PEACE; * * * SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED, AT GOVERNMENT EXPENSE, TO SUCH HOSPITALIZATION, REHOSPITALIZATION, MEDICAL, AND SURGICAL CARE, IN HOSPITAL AND AT THEIR HOMES, AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT, AND DURING THE PERIOD OF SUCH HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN AN AGGREGATE OF SIX MONTHS AFTER THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY OR TRAINING IN ANY CASE TO THE PAY AND ALLOWANCES, WHETHER IN MONEY OR IN KIND, THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED * * *. ( ITALICS SUPPLIED.)

IF THE FACTS WERE SUCH AS TO PRECLUDE THE PROPER USE OF ANY OTHER RATE OF PAY THAN THE RATE WHICH THE OFFICER WAS RECEIVING ON NOVEMBER 15, 1936, IN THE COMPUTATION OF PAY TO WHICH ENTITLED SUBSEQUENT TO MAY 7, 1938, WHILE RECEIVING HOSPITAL TREATMENT, THE FACT THAT THERE WAS NO LAPSE OF TIME AFTER RELIEF FROM ACTIVE DUTY OR THAT THE TERMINATION OF THE LAST ACTIVE DUTY TOUR FOUND THE OFFICER IN THE HOSPITAL AS A RESULT OF AN INJURY RECEIVED IN LINE OF DUTY WOULD NOT JUSTIFY A DIFFERENT CONCLUSION FROM THAT HELD IN 17 COMP. GEN. 810. UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507, A MEMBER OF THE OFFICERS' RESERVE CORPS WHO SUFFERS AN INJURY WHILE ON ACTIVE DUTY IS ENTITLED, DURING THE 6-MONTH PERIOD OF HOSPITALIZATION FOLLOWING THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY, TO THE SAME PAY AND ALLOWANCES HE WAS ENTITLED TO RECEIVE AT THE TIME THE INJURY WAS SUFFERED. CLEARLY, THERE IS NOTHING IN THE ACT WHICH IMPLIES THAT MERELY BECAUSE A PERIOD OF HOSPITALIZATION IMMEDIATELY FOLLOWS THE COMPLETION OF ACTIVE DUTY THAT FACT SHALL INCREASE THE BENEFITS TO THE OFFICER.

IN THE INSTANT CASE, HOWEVER, UNDER THE FACTS NOW AVAILABLE, THERE APPEARS SUFFICIENT BASIS FOR COMPUTING THE RESERVE OFFICER'S BENEFITS AS FOR A CAPTAIN AFTER NINE YEARS' SERVICE. WHILE THE FINDINGS OF THE BOARD OF OFFICERS QUOTED ABOVE INDICATE THAT THE RESERVE OFFICER FIRST SUFFERED AN INJURY NOVEMBER 15, 1936, IMMEDIATELY FOLLOWING WHICH HE WAS HOSPITALIZED AT THE STATION HOSPITAL, CHANUTE FIELD, ILL., UNTIL DECEMBER 8, 1936, AND AGAIN FROM APRIL 16 TO MAY 11, 1937, IT IS TO BE OBSERVED THAT WHEN RELEASED MAY 11, 1937, THERE WAS A "COMPLETE HEALING OF THE WOUND" (FINDINGS NO. 5); THAT DURING 1937 THERE WAS A RECURRENCE AT THE SITE OF THE SAME WOUND WHICH THE RESERVE OFFICER, A MEDICAL DOCTOR, TREATED HIMSELF "WITH COMPLETE HEALING" (FINDINGS NO. 6); AND "THAT AN ULCER AGAIN RECURRED DURING SEPTEMBER 1937, WHICH FAILED TO HEAL" (FINDINGS NO. 7). THE LAST MANIFESTATION REQUIRED CONTINUOUS TREATMENT IN THE STATION HOSPITAL, FORT SHERIDAN, ILL., FROM FEBRUARY 16, 1938, TO NOVEMBER 7, 1938. AN ABSTRACT OF THE CLINICAL RECORD BY THE MEDICAL OFFICER IN CHARGE DATED APRIL 21, 1938, ATTACHED TO THE BOARD REPORT, CONTAINS THE FOLLOWING:

DIAGNOSIS.--- ULCER, CHRONIC, INDOLENT, JUNCTION OF MIDDLE AND LOWER THIRD, ANTERIOR SURFACE, LEFT LEG CAUSED BY PRESSURE OF HIS LEG ON THICK AND DEVITALIZED SCAR TISSUE. ULCER STARTED IN SEPTEMBER 1937 WHILE ON AUTHORIZED ACTIVE DUTY AT CAMP ANNAWAN, ILLINOIS. THICK AND DEVITALIZED SCAR TISSUE RESULTANT FROM A HEALED ULCER IN SAME REGION WHICH STARTED FROM A LACERATED WOUND NOVEMBER 15, 1936, AND DID NOT HEAL UNTIL MAY 1937. LINE OF DUTY: YES.

SUBSEQUENT TO AND NOTWITHSTANDING THE INJURY ON NOVEMBER 15, 1936, IT IS SHOWN THAT THE RESERVE OFFICER, EITHER THROUGH HOSPITAL TREATMENT OR THROUGH HIS OWN MINISTRATIONS, HAD RECOVERED FROM ITS EFFECTS TO SUCH EXTENT THAT THE MEDICAL EXAMINERS OF THE ARMY APPARENTLY HAD CONSIDERED HIM IN SUFFICIENTLY FIT PHYSICAL CONDITION TO JUSTIFY ADDITIONAL TOURS OF ACTIVE DUTY SUBSEQUENT THERETO, NAMELY, BY THE ORDERS OF APRIL 13, 1937, AND OCTOBER 18, 1937. ALTHOUGH " SEPTEMBER 1937" IS INDICATED AS THE TIME OF THE MANIFESTATION OF THE ULCER WHICH REQUIRED THE EXTENSIVE HOSPITAL TREATMENT BEGINNING FEBRUARY 16, 1938, SUGGESTING THE EXISTENCE OF THIS DISABILITY PRIOR TO THE LAST TOUR OF ORDERED ACTIVE DUTY, IT APPEARS IN THIS CONNECTION THAT NO TREATMENT BY MEDICAL OFFICERS OF THE ARMY OR IN ARMY HOSPITALS INCIDENT TO THIS DISABILITY WAS RENDERED UNTIL APPROXIMATELY 5 MONTHS AFTER THE RECURRENCE. THE MEDICAL DATA THUS POINT TO A DISAPPEARANCE OF THE ULCER FOLLOWED BY AT LEAST ONE ORDER DIRECTING AN ADDITIONAL 6 MONTHS' TOUR OF DUTY BETWEEN MAY 11, 1937, AND FEBRUARY 16, 1938, WHEN HOSPITAL TREATMENT WAS COMMENCED FOR THE DISABILITY WHICH BEGAN IN SEPTEMBER 1937. GIVING EFFECT TO THE CONCLUSIONS AND FINDINGS IN THE REPORT OF THE BOARD OF OFFICERS AND OF THE CHIEF MEDICAL OFFICER, STATION HOSPITAL, FORT SHERIDAN, ILL., THE ACUTE MANIFESTATION IN SEPTEMBER 1937, MAY BE REGARDED FOR PURPOSES OF COMPUTATION UNDER THE ACT OF JUNE 15, 1936, NOT AS A CONTINUANCE OF THE FIRST TREATMENT CAUSED BY THE INJURY IN NOVEMBER 1936, BUT AS A RECURRENCE OF A DISEASE AS OF THE LATER DATE. SEE DECISION A-98956, DATED FEBRUARY 9, 1939.

CAPTAIN MARSH HAVING COMPLETED 9 YEARS' SERVICE PRIOR TO SEPTEMBER 1937, IT WAS NOT ERROR TO COMPUTE HIS PAY AS AN OFFICER WITH 9 YEARS' SERVICE DURING THE PERIOD OF HOSPITAL TREATMENT WHICH BEGAN MAY 8, 1938. CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICER WILL BE ALLOWED ACCORDINGLY.