A-26902, APRIL 30, 1929, 8 COMP. GEN. 571

A-26902, APRIL 30, 1929, 8 COMP. GEN. 571

MEDICAL TREATMENT - DISHONORABLY DISCHARGED RETIRED ENLISTED MEN A VETERAN OF THE SPANISH-AMERICAN WAR WHO WAS LATER RETIRED AND DISHONORABLY DISCHARGED FROM THE RETIRED LIST OF THE ARMY DURING THE WORLD WAR IS NOT ENTITLED TO MEDICAL AND HOSPITAL TREATMENT UNDER THE PROVISIONS OF SECTION 202 (10), WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 796.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 30, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 16, 1929, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE CASE OF WILHELM HAUT, FORMERLY PRIVATE, TROOP ,I," 8TH U.S.CAV., WHICH IS NOW PENDING BEFORE THE BUREAU FOR DETERMINATION. THE FACTS IN THE CASE MAY BE STATED AS FOLLOWS:

WILHELM HAUT ENLISTED MAY 17, 1898, AS A MEMBER OF TROOP "I," 8TH U.S.CAV., AND WAS HONORABLY DISCHARGED MAY 16, 1899. HE REENLISTED APRIL 30, 1912; WAS DISCHARGED JANUARY 24, 1915; REENLISTED JANUARY 25, 1915, AND RETIRED APRIL 30, 1915, A COOK, HOSPITAL CORPS; WAS DISHONORABLY DISCHARGED SEPTEMBER 4, 1918 BY GENERAL COURT MARTIAL, HE HAVING BEEN FOUND GUILTY OF MAKING DISLOYAL STATEMENTS AGAINST THE UNITED STATES WHILE IN RETIRED STATUS. HE HAS REQUESTED HOSPITALIZATION UNDER THE PROVISIONS OF SECTION 202 (10) OF THE WORLD WAR VETERANS' ACT, AS AMENDED, AS AN HONORABLY DISCHARGED VETERAN OF THE SPANISH-AMERICAN WAR AND THE QUESTION HAS ARISEN AS TO WHETHER IN VIEW OF THE FACT THAT HE WAS DISHONORABLY DISCHARGED DURING THE WORLD WAR, HE IS BARRED FROM RECEIVING THE BENEFITS OF HOSPITALIZATION UNDER SECTION 202 (10) OF THE WORLD WAR VETERANS' ACT, AS AMENDED, WHICH PROVIDES:

"THAT ALL HOSPITAL FACILITIES UNDER THE CONTROL AND JURISDICTION OF THE BUREAU SHALL BE AVAILABLE FOR EVERY HONORABLY DISCHARGED VETERAN OF THE SPANISH-AMERICAN WAR, THE PHILIPPINE INSURRECTION, THE BOXER REBELLION, OR THE WORLD WAR SUFFERING FROM NEUROPHSYCHIATRIC OR TUBERCULAR AILMENTS AND DISEASES, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMOEBIC DYSENTERY, OR THE LOSS OF SIGHT OF BOTH EYES, REGARDLESS WHETHER SUCH AILMENTS OR DISEASES ARE DUE TO MILITARY SERVICE OR OTHERWISE, INCLUDING TRAVELING EXPENSES AS GRANTED TO THOSE RECEIVING COMPENSATION AND HOSPITALIZATION UNDER THIS ACT. THE DIRECTOR IS FURTHER AUTHORIZED, SO FAR AS HE SHALL FIND THAT EXISTING GOVERNMENT FACILITIES PERMIT, TO FURNISH HOSPITALIZATION AND NECESSARY TRAVELING EXPENSES INCIDENT TO HOSPITALIZATION TO VETERANS OF ANY WAR, MILITARY OCCUPATION, OR MILITARY EXPEDITION, INCLUDING THOSE WOMEN WHO SERVED AS ARMY NURSES UNDER CONTRACTS BETWEEN APRIL 21, 1898, AND FEBRUARY 2, 1901, NOT DISHONORABLY DISCHARGED, WITHOUT REGARD TO THE NATURE OR ORIGIN OF THEIR DISABILITIES:*

IN YOUR DECISION OF SEPTEMBER 13, 1928, (A-23965), IT WAS HELD:

"WHERE THE LAST DISCHARGE FROM A WAR SERVICE ENLISTMENT WAS DISHONORABLE AND THERE IS NOTHING OF RECORD TO INDICATE ANY ADMINISTRATIVE ACTION CONDONING THE OFFENSE FOR WHICH DISHONORABLE DISCHARGE WAS MADE AND THE VETERAN IS NOT RECEIVING ANY BENEFITS UNDER THE WORLD WAR VETERANS' ACT ON THE BASIS OF HIS PRIOR ENLISTMENT, REIMBURSEMENT FOR BURIAL EXPENSES IS NOT AUTHORIZED * * *. ALSO, AS MEDICAL AND HOSPITAL TREATMENT FURNISHED UNDER SECTION 202 (10) OF THE STATUTE, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 796, IS AUTHORIZED ONLY FOR "HONORABLY DISCHARGED" VETERANS OF THE SPECIFIED WARS SUFFERING FROM THE SPECIFIED DISEASES, OR FOR "VETERANS OF ANY WAR * * * NOT DISHONORABLY DISCHARGED," THE SAME ANSWER APPLIED TO (B) UNDER QUESTION 2.'

IT HAS BEEN CONTENDED THAT INASMUCH AS THE CLAIMANT IN THIS CASE WAS NOT IN THE ACTIVE SERVICE DURING ANY WAR SUBSEQUENT TO THE SPANISH AMERICAN WAR, THE DISCHARGE ISSUED DURING THE WORLD WAR, WHILE ON THE RETIRED LIST, IS NOT A DISHONORABLE DISCHARGE FROM A SUBSEQUENT WAR SERVICE ENLISTMENT AND THEREFORE THIS DISHONORABLE DISCHARGE DOES NOT AFFECT HIS RIGHTS UNDER SECTION 202 (10).

AT THE TIME THE APPLICANT FOR HOSPITAL TREATMENT WAS DISHONORABLY DISCHARGED FROM THE RETIRED LIST OF THE ARMY, THERE WAS IN FORCE THE ACT OF JUNE 3, 1916, 39 STAT. 166, SPECIFICALLY INCLUDING WITHIN THE ORGANIZATION OF THE REGULAR ARMY OF THE UNITED STATES "THE OFFICERS AND ENLISTED MEN ON THE RETIRED LIST.' SEE, ALSO, ACT OF JUNE 4, 1920, 41 STAT. 759. ACCORDINGLY, RETIRED ENLISTED MEN OF THE ARMY ARE SUBJECT TO THE SAME PUNISHMENT FOR VIOLATION OF LAW, INCLUDING THE ARTICLES OF WAR, AS ENLISTED MEN ON ACTIVE DUTY, AND THERE SHOULD ATTACH THE SAME RESTRICTIONS, LIMITATIONS, AND DISADVANTAGES. INDEED, IT WOULD BE MOST UNREASONABLE TO DENY THE BENEFITS OF BURIAL EXPENSES AND HOSPITAL TREATMENT TO VETERANS DISHONORABLY DISCHARGED WHILE ON ACTIVE DUTY AND GRANT SUCH BENEFITS TO THOSE WHO HAD BEEN DISHONORABLY DISCHARGED AFTER RECEIVING THE BENEFITS OF RETIREMENT FOR A NUMBER OF YEARS. RATHER SHOULD THE CONVERSE BE TRUE IF ANY DISTINCTION WERE TO BE MADE. THE PHRASE IN THE CONTROLLING STATUTE "DISHONORABLY DISCHARGED" IS NOT LIMITED TO THOSE ON ACTIVE DUTY, AND WHILE THE PRINCIPLE ANNOUNCED IN THE PRIOR DECISION HAD PARTICULAR REFERENCE TO SUCH A VETERAN, THERE IS EVERY REASON FOR APPLYING THE SAME PRINCIPLE TO ENLISTED MEN ON THE RETIRED LIST, AND THERE MAY NOT BE RECOGNIZED THE DISTINCTION SUGGESTED IN THE CLOSING PARAGRAPH OF YOUR SUBMISSION.

YOU ARE ADVISED, THEREFORE, THAT WILHELM HAUT IS NOT ENTITLED TO MEDICAL AND HOSPITAL TREATMENT UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' ACT.