B-95809, JANUARY 15, 1951, 30 COMP. GEN. 301

B-95809: Jan 15, 1951

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AUTHORIZING PAY AND ALLOWANCES TO OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD FOR PERSONAL INJURY OR DISEASE SUFFERED DURING PERIODS OF TRAINING OR ACTIVE DUTY ARE APPLICABLE ONLY IN CASES WHERE THE DISABILITY IS SUFFERED IN LINE OF DUTY. SO THAT AN ENLISTED MAN OF THE NATIONAL GUARD WHO WAS HOSPITALIZED WHILE IN ATTENDANCE WITH HIS ORGANIZATION AT AN ENCAMPMENT FOR A DISEASE NOT INCURRED IN THE LINE OF DUTY IS NOT ENTITLED TO PAY AND ALLOWANCES FOR A PERIOD OF HOSPITALIZATION EXTENDING BEYOND SUCH ENCAMPMENT. THAT IS. THAT THE DUTY BEING PERFORMED AT THE TIME WAS PARTICIPATION IN BIVOUAC PROBLEM AND FIRING ON RIFLE RANGE. THAT THE CONDITION WAS DIAGNOSED AS PEPTIC ULCERS ON AUGUST 8.

B-95809, JANUARY 15, 1951, 30 COMP. GEN. 301

PAY - NATIONAL GUARD - HOSPITALIZATION FOR DISEASE NOT INCURRED IN LINE OF DUTY THE ACTS OF JUNE 15, 1936, AND JUNE 20, 1949, AUTHORIZING PAY AND ALLOWANCES TO OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD FOR PERSONAL INJURY OR DISEASE SUFFERED DURING PERIODS OF TRAINING OR ACTIVE DUTY ARE APPLICABLE ONLY IN CASES WHERE THE DISABILITY IS SUFFERED IN LINE OF DUTY, SO THAT AN ENLISTED MAN OF THE NATIONAL GUARD WHO WAS HOSPITALIZED WHILE IN ATTENDANCE WITH HIS ORGANIZATION AT AN ENCAMPMENT FOR A DISEASE NOT INCURRED IN THE LINE OF DUTY IS NOT ENTITLED TO PAY AND ALLOWANCES FOR A PERIOD OF HOSPITALIZATION EXTENDING BEYOND SUCH ENCAMPMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. J. E. ALLEN, DEPARTMENT OF THE ARMY, JANUARY 15, 1951:

BY FIRST ENDORSEMENT DATED MAY 25, 1950, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF MAY 2, 1950, REQUESTING AN ADVANCE DECISION ON SUPPLEMENTAL FIELD TRAINING PAY ROLL COVERING THE CLAIM OF FREDERICK N. MCCLELLAN, RECRUIT, GRADE VII, COMPANY C, 110TH INFANTRY, 28TH INFANTRY DIVISION, PENNSYLVANIA NATIONAL GUARD, FOR FIELD TRAINING PAY ALLEGED TO BE DUE FOR THE PERIOD FROM AUGUST 14 TO 31, 1949, WHILE HOSPITALIZED AT VALLEY FORGE GENERAL HOSPITAL, PHOENIXVILLE, PENNSYLVANIA.

IT APPEARS FROM THE COPY OF WD NGB FORM 60, SUBMITTED WITH THE SUPPLEMENTAL PAY ROLL, THAT FREDERICK N. MCCLELLAN, RECRUIT, 110TH INFANTRY, PENNSYLVANIA NATIONAL GUARD, WHILE IN ATTENDANCE WITH HIS ORGANIZATION AT THE ENCAMPMENT AT INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA, FROM JULY 30, 1949, TO AUGUST 13, 1949, INCLUSIVE ON AUGUST 8, 1949, COMPLAINED OF STOMACH PAINS WHICH RESULTED IN VOMITING; THAT HE HAD BEEN FIRING ON THE RIFLE RANGE IN EXTREMELY HOT WEATHER; THAT THE EXCITEMENT OF FIRING THE WEAPON, CONDITIONS OF BIVOUAC, THAT IS, SLEEPING IN OPEN AIR ON THE GROUND, WEATHER CONDITIONS, AGGRAVATED HIS AILMENT; THAT THE DUTY BEING PERFORMED AT THE TIME WAS PARTICIPATION IN BIVOUAC PROBLEM AND FIRING ON RIFLE RANGE; AND THAT THE CONDITION WAS DIAGNOSED AS PEPTIC ULCERS ON AUGUST 8, 1949, AND HE WAS INITIALLY TREATED ON THAT DATE. THE BOARD OF OFFICERS APPOINTED TO INVESTIGATE THE CASE WAS OF THE OPINION THAT THE ENLISTED MAN "HAVING BEEN RECENTLY ENLISTED (21 MARCH 1949) AND BEING A YOUNG MAN UNDERGOING RIGORS OF MILITARY TRAINING FOR FIRST TIME, SUFFERED CASE OF PEPTIC ULCERS FROM VARIETY OF CONDITIONS, I.E., WEATHER, DIFFERENT TYPE OF WATER, EXCITEMENT, ANXIETY, UNACCUSTOMED HOURS AND DIFFERENT TYPES OF FOOD.' AND THE SAID BOARD CONCLUDED THAT "FROM AVAILABLE EVIDENCE, IT IS FELT THAT ILLNESS WAS IN LINE OF DUTY ALTHOUGH EM EVIDENTLY LACKED TRAINING IN WATER DISCIPLINE.' THE REPORT ON FORM 60 FURTHER STATES THAT PROPER TREATMENT WAS NOT AVAILABLE AT THE CAMP; THAT THE PLACE OF TREATMENT WAS VALLEY FORGE GENERAL HOSPITAL; THAT HOME TREATMENT OF PROBABLY TWO WEEKS' DURATION WOULD BE NECESSARY; AND THAT NO PROBABLE FURTHER HOSPITALIZATION WAS NECESSARY. THE SAID REPORT WAS APPROVED NOVEMBER 1, 1949, BY THE ADJUTANT GENERAL OF PENNSYLVANIA BUT WAS DISAPPROVED FOR THE CHIEF, NATIONAL GUARD BUREAU, BY COLONEL K. H. BAILEY, NGB, MEDICAL ADVISER.

BY LETTER DATED DECEMBER 30, 1949, THE OFFICE OF THE ADJUTANT GENERAL OF PENNSYLVANIA SUBMITTED THIS MAN'S CLAIM TO THE CHIEF, NATIONAL GUARD BUREAU, AND BY FIRST ENDORSEMENT DATED FEBRUARY 15, 1950, THE CHIEF, NATIONAL GUARD BUREAU, RETURNED THE SUPPLEMENTAL FIELD TRAINING PAY ROLL DISAPPROVED "AS DISEASE FOR WHICH HOSPITALIZED WAS NOT IN LINE OF DUTY, BUT EXISTED PRIOR TO DUTY.' BY SECOND ENDORSEMENT OF MARCH 6, 1950, THE ADJUTANT GENERAL OF PENNSYLVANIA AGAIN SUBMITTED THE MATTER TO THE NATIONAL GUARD BUREAU AND REQUESTED ITS RECONSIDERATION, RECITING THE FACTS IN FULL AND MAKING REFERENCE TO SECTION 164D, CHAPTER 10, TITLE 32, UNITED STATES CODE. HOWEVER, BY THIRD ENDORSEMENT DATED MARCH 22, 1950, THE OFFICE OF THE CHIEF, NATIONAL GUARD BUREAU, ADVISED THE ADJUTANT GENERAL OF PENNSYLVANIA THAT---

1. FORM 60 WITH CLINICAL RECORD FROM VALLEY FORGE GENERAL HOSPITAL IN THE CASE OF RECRUIT FREDERICK N. MCCLELLAN HAVE BEEN CAREFULLY REVIEWED BOTH IN THIS OFFICE AND THAT OF THE SURGEON GENERAL, DEPARTMENT OF THE ARMY.

2. IT IS THE OPINION OF THIS OFFICE AND THAT OF THE SUPREME GENERAL THAT THE DISEASE DIABETES MELLITUS, WHICH LED TO THE HOSPITALIZATION OF THE SUBJECT ENLISTED MEN (MAN) EXISTED PRIOR TO HIS PERIOD OF ENCAMPMENT (30 JULY 1949 TO 13 AUGUST 1949) AND THAT IT IS, THEREFORE, HELD TO HAVE OCCURRED NOT IN LINE OF DUTY, NOT DUE TO MISCONDUCT.

3. SECTION 164D, CHAPTER 10, TITLE 32, U.S.C. ALLOWS THE SECRETARY OF WAR TO REQUIRE HOSPITALIZATION AND MEDICAL TREATMENT IF NECESSARY WHILE ON ACTIVE DUTY OR TRAINING WITHOUT REFERENCE TO LINE OF DUTY STATUS. THEREFORE RECRUIT MCCLELLAN COULD BE AUTHORIZED HOSPITALIZATION AND MEDICAL ATTENTION EVEN WHEN NOT IN LINE OF DUTY, DURING THE TRAINING PERIOD, 30 JULY TO 13 AUGUST 1949. AFTER THE TRAINING PERIOD, HOWEVER, THIS PARTICULAR SECTION WOULD NOT APPLY.

THE ACT OF JUNE 15, 1936, 49 STAT. 1507 (32 U.S.C. 164A), PROVIDES, IN PART, AS FOLLOWS:

THAT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD WHO SUFFER PERSONAL INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE EN ROUTE TO OR FROM OR DURING THEIR ATTENDANCE AT ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, OR AT SERVICE SCHOOLS, UNDER THE PROVISIONS OF SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED * * * 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, AND TO THE NECESSARY TRANSPORTATION INCIDENT TO SUCH HOSPITALIZATION AND REHOSPITALIZATION AND RETURN TO THEIR HOMES WHEN DISCHARGED FROM HOSPITAL; AND FOR ANY PERIOD OF HOSPITALIZATION OR REHOSPITALIZATION WHEN THEY ARE NOT ENTITLED TO PAY AND ALLOWANCES UNDER THE PRECEDING PROVISION, THEY SHALL BE ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE. * * *

THE ACT OF JUNE 20, 1949, 63 STAT. 201, 202 (32 U.S.C. 160A AND 160B), PROVIDES, IN PART, AS FOLLOWS:

SEC. 3. ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD OF THE UNITED STATES, BOTH GROUND AND AIR, THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA---

(1) IF ENGAGED FOR PERIODS IN EXCESS OF THIRTY DAYS IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SECTIONS 5, 81, 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO ENGAGED; OR

(2) IF ENGAGED FOR ANY PERIOD OF TIME IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SUCH SECTIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED. SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOT OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.

IT WILL BE OBSERVED THAT SUCH PROVISIONS OF THE LATTER ACT LARGELY OCCUPY THE FIELD PREVIOUSLY COVERED BY THE PROVISIONS QUOTED FROM THE ACT OF JUNE 15, 1936, AND, HENCE, WOULD APPEAR LARGELY TO SUPERSEDE SUCH PRIOR PROVISIONS. THAT IS NOT MATERIAL HERE, HOWEVER, SINCE NEITHER STATUTE AUTHORIZES BENEFITS EXCEPT FOR INJURIES OR DISEASE INCURRED IN LINE OF DUTY.

THE ACT OF JULY 15, 1939, 53 STAT. 1042, AS AMENDED BY THE ACT OF OCTOBER 14, 1940, 54 STAT. 1137 (32 U.S.C. 164D), REFERRED TO BY THE ADJUTANT GENERAL OF PENNSYLVANIA 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 (NOW SECRETARY OF THE ARMY--- SECTION 205 (A) OF THE ACT OF JULY 26, 1947, 61 STAT. 501), UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, TO REQUIRE THE HOSPITALIZATION, MEDICAL, AND SURGICAL TREATMENT AND DOMICILIARY CARE SO LONG AS ANY OR ALL ARE NECESSARY OF PERSONS IN THE ACTIVE MILITARY SERVICE OR ON ACTIVE DUTY, OR IN TRAINING, UNDER THE PROVISIONS OF SECTIONS 92, 94, 97, 99, AND 113 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, AND TO INCUR OBLIGATIONS WITH RESPECT THERETO, WITHOUT REFERENCE TO THEIR LINE-OF-DUTY STATUS: PROVIDED, THAT THIS ACT SHALL NOT INCLUDE THOSE INDIVIDUALS WHO ARE ON THE ARMY DRILL STATUS EXCEPT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD WHO SUFFER PERSONAL INJURY (AS DISTINGUISHED FROM DISEASE) WHEN PARTICIPATING IN AERIAL FLIGHTS PRESCRIBED UNDER THE PROVISIONS OF SECTION 92; AND PROVIDED FURTHER, 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.

PARAGRAPH 7A, NATIONAL GUARD REGULATIONS NO. 62, DATED FEBRUARY 26, 1947, PROVIDES THAT NEITHER DISEASE NOR INJURY IS IN LINE OF DUTY IF IT EXISTED PRIOR TO THE PERIOD OF ENCAMPMENT, MANEUVERS, AND SO FORTH. MOREOVER, AS SUCH SECTION REFERS TO HOSPITALIZATIONS, MEDICAL AND SURGICAL TREATMENT, AND DOMICILIARY CARE AND CONTAINS NO PROVISION FOR PAYMENT OF PAY AND ALLOWANCES (SUCH AS THOSE CONTAINED IN THE ACTS OF JUNE 15, 1936, AND JUNE 20, 1949, SUPRA), IT CLEARLY COULD NOT BE CONSIDERED AS FURNISHING AUTHORITY FOR PAYMENT OF THE CLAIM FOR PAY AND ALLOWANCES HERE INVOLVED. AND NEITHER THE SAID ACT OF JUNE 15, 1936, NOR THE ACT OF JUNE 20, 1949, PROVIDES ANY AUTHORITY FOR PAYMENT OF PAY AND ALLOWANCES INCIDENT TO DISABILITY NOT SUFFERED IN LINE OF DUTY WHETHER SUCH DISABILITY RESULTS FROM DISEASE OR FROM INJURY. IN THAT CONNECTION, IT WILL BE NOTED THAT THE CHIEF, NATIONAL GUARD BUREAU, REFERS TO MCCLELLAN'S DISABILITY AS HAVING RESULTED FROM "DISEASE" AND THAT THE SAID ACT OF JUNE 20, 1949, DOES NOT PROVIDE FOR PAYMENT OF ANY BENEFITS IN ANY CASE OF DISABILITY FROM "DISEASE" (AS DISTINGUISHED FROM INJURY) SUFFERED DURING A PERIOD OF ACTIVE OR TRAINING DUTY OF THIRTY DAYS OR LESS.

SINCE IT IS NOT ESTABLISHED THAT THE DISEASE OF RECRUIT MCCLELLAN (WHETHER PEPTIC ULCERS OR DIABETES MELLITUS) WAS INCURRED IN LINE OF DUTY BUT WAS HELD BY THE CHIEF, NATIONAL GUARD BUREAU, NOT TO HAVE BEEN SO CONTRACTED, HE IS NOT ENTITLED TO PAY FOR THE PERIOD FROM AUGUST 14 TO 31, 1949, INCLUSIVE. THE VOUCHER AND RELATED PAPERS WILL BE FILED IN THIS OFFICE.