OCTOBER 19, 1923, 3 COMP. GEN. 229

OCTOBER 19, 1923, 3 COMP. GEN. 229

WAR-RISK COMPENSATION - NATIONAL GUARD MEMBERS, DRAFTED MEN, AND APPLICANTS FOR ENLISTMENT ENLISTED MEN OF THE NATIONAL GUARD CALLED INTO FEDERAL SERVICE AND REJECTED FOR PHYSICAL DISQUALIFICATION, WITHOUT BEING "EXAMINED, ACCEPTED, AND ENROLLED" FOR SERVICE, ARE ENTITLED TO COMPENSATION FOR ANY INJURY OR DISEASE SUFFERED OR CONTRACTED WHILE IN FEDERAL SERVICE, BUT ARE NOT ENTITLED TO COMPENSATION FOR ANY AGGRAVATION OF PREEXISTING INJURY. PAYMENTS ERRONEOUSLY MADE FOR AGGRAVATION OF INJURIES PRIOR TO DECISION OF DECEMBER 29, 1922, 2 COMP. GEN., 409, NOT DISTURBED. DRAFTED MEN AND APPLICANTS FOR ENLISTMENT WHO DIED OR BECAME DISABLED AFTER INDUCTION OR PROVISIONAL ACCEPTANCE AND BEFORE BEING FINALLY ACCEPTED AND ENROLLED FOR ACTIVE SERVICE ARE ENTITLED TO COMPENSATION FOR ANY AGGRAVATION OF PREEXISTING INJURY OR DISEASE OR FOR ANY INJURY OR DISEASE SUFFERED OR INCURRED DURING THEIR FEDERAL SERVICE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, OCTOBER 19, 1923:

I HAVE YOUR LETTER OF JUNE 25, 1923, REQUESTING RECONSIDERATION OF THE DECISION OF THIS OFFICE OF MARCH 15, 1923, IN THE MATTER OF WAR RISK COMPENSATION STATUS OF THOSE NATIONAL GUARDSMEN WHO WERE CALLED INTO SERVICE BY THE PRESIDENT'S PROCLAMATION OF JULY 3, 1917, AND AFTERWARDS REJECTED FOR FEDERAL SERVICE UPON PHYSICAL EXAMINATION. YOU ALSO REQUEST DECISION AS TO THE COMPENSATION STATUS OF DRAFTED MEN WHO DIED OR BECAME DISABLED AFTER INDUCTION BY THE LOCAL DRAFT BOARD BUT BEFORE BEING ACCEPTED AND ENROLLED FOR ACTIVE SERVICE, AND OF THOSE MEN WHO APPLIED FOR ENLISTMENT OR ENROLLMENT IN THE MILITARY OR NAVAL FORCES, AND WHO WERE ACCEPTED PROVISIONALLY, AND WHO DIED OR BECAME DISABLED BEFORE FINAL ACCEPTANCE OR REJECTION FOR SUCH ENLISTMENT OR ENROLLMENT.

THE DECISION FOR RECONSIDERATION AFFIRMED THE DECISION IN 2 COMP. GEN. 409, TO THE EFFECT THAT THE NATIONAL GUARDSMEN AFORESAID ARE ENTITLED TO COMPENSATION FOR INJURY SUSTAINED OR DISEASE CONTRACTED DURING THEIR PERIOD OF SERVICE UNDER THE CALL OF THE PRESIDENT, BUT ARE NOT ENTITLED TO COMPENSATION FOR A AGGRAVATION BY SUCH SERVICE OF A PREEXISTENT INJURY OR DISEASE. YOU SAY THAT THE VETERANS' BUREAU IS IN ACCORD WITH THE CONCLUSION OF THE DECISIONS AS TO THE RIGHT OF THE GUARDSMEN TO COMPENSATION FOR SERVICE INJURY OR DISEASE, BUT THAT THE BUREAU PRACTICE HAS BEEN TO ALLOW COMPENSATION FOR SERVICE AGGRAVATION ALSO. THE QUESTION NOW FOR DECISION IS WHETHER COMPENSATION FOR AGGRAVATION ALSO MAY LAWFULLY BE AWARDED AND PAID.

IN THIS CONNECTION YOU REFER TO A DECISION OF THIS OFFICE OF MAY 16, 1923, TO THE EFFECT THAT THOSE NATIONAL GUARDSMEN WHO WERE NOT MUSTERED INTO THE SERVICE OF THE UNITED STATES FOR ACTUAL SERVICE WITH FEDERAL FORCES ARE NOT ENTITLED TO THE BONUS OF $60 PROVIDED BY LAW FOR THOSE PERSONS WHO ARE DISCHARGED AFTER "SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES DURING THE PRESENT WAR.' AS POINTED OUT IN 2 COMP. GEN., 409, THE COMPENSATION PROVISIONS OF WAR-RISK INSURANCE LAWS ARE APPLICABLE TO ALL PERSONS "EMPLOYED IN ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT.' IT WAS HELD THAT THE NATIONAL GUARDSMEN WERE EMPLOYED IN ACTIVE SERVICE UNDER THE WAR DEPARTMENT WHILE SERVING UNDER THE CALL OF THE PRESIDENT, IT BEING IMMATERIAL FOR THE PURPOSES OF THE WAR-RISK INSURANCE ACT WHETHER THEY WERE SERVING AS GUARDSMEN OR WERE IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES.

THE DECISION CONSTRUING THE BONUS LAW, THEREFORE, NEED NOT BE CONSIDERED OR DISCUSSED IN THIS CONNECTION.

THE CONCLUSION HERETOFORE REACHED BY THIS OFFICE THAT THESE NATIONAL GUARDSMEN ARE NOT ENTITLED TO COMPENSATION FOR SERVICE AGGRAVATION OF PREEXISTENT INJURY OR DISEASE IS BASED UPON ITS CONSTRUCTION OF THE CLAUSE IN SECTION 301 OF THE WAR-RISK INSURANCE ACT AS AMENDED BY THE ACT OF AUGUST 9, 1921, 42 STAT., 153, THAT PROVIDES COMPENSATION FOR---

AN AGGRAVATION OF A DISABILITY EXISTING PRIOR TO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE.

IT SEEMED CLEAR TO THIS OFFICE THAT IF THERE HAD BEEN NO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE THERE COULD BE NO AGGRAVATION OF A DISABILITY EXISTING PRIOR TO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE, AND THAT THEREFORE THE AGGRAVATION CLAUSE OF THE COMPENSATION PROVISION DOES NOT CONTEMPLATE OR COVER PERSONS WHO WERE NEVER EXAMINED, ACCEPTED, OR ENROLLED FOR SERVICE. HOWEVER, BECAUSE OF THE IMPORTANCE OF THIS ISSUE AND THE FACT THAT THE BUREAU HAD NOT MADE A SHOWING TO SUPPORT ITS CONTRARY CONSTRUCTION OF THE SAID CLAUSE, THE DECISION OF MARCH 15, 1923, LEFT THE QUESTION OPEN FOR FURTHER CONSIDERATION.

IN SUPPORT OF PAST PRACTICE OF THE BUREAU, YOU SAY THAT SECTION 300 OF THE WAR-RISK INSURANCE ACT AS AMENDED PROVIDES COMPENSATION FOR SERVICE AGGRAVATION ON OR AFTER APRIL 6, 1917, OF A DISABILITY EXISTING PRIOR TO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE, BUT DOES NOT PROVIDE WHEN THE AGGRAVATION MUST HAVE BEEN INCURRED AFTER APRIL 6, 1917, AND THAT IT IS ONLY BY READING WORDS INTO THE STATUTE THAT THE CONCLUSION THAT THE AGGRAVATION MUST HAVE BEEN INCURRED SUBSEQUENT TO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE CAN BE SUSTAINED.

THE CONCLUSION OF THE DECISION UNDER RECONSIDERATION WAS THAT PERSONS WHO WERE NEVER EXAMINED, ACCEPTED, AND ENROLLED FOR ACTIVE MILITARY OR NAVAL SERVICE WITH FEDERAL FORCES ARE NOT WITHIN THE TERMS OF THE AGGRAVATION CLAUSE OF THE STATUTE. THERE APPEARS IN THE DECISION NO CONCLUSION, OR INFERENCE, THAT PERSONS WHO HAVE BEEN EXAMINED, ACCEPTED, AND ENROLLED FOR FEDERAL SERVICE, WHETHER THEY BE NATIONAL GUARDSMEN OR OTHERS, ARE NOT ENTITLED TO COMPENSATION FOR SERVICE AGGRAVATION UNLESS THE AGGRAVATION OCCURS SUBSEQUENT TO THEIR EXAMINATION, ACCEPTANCE, AND ENROLLMENT.

YOU CITE VARIOUS COMPENSATION CLAUSES OF THE STATUTES, AMONG OTHERS THE CLAUSES ALLOWING COMPENSATION FOR AGGRAVATION OCCURRING AFTER INDUCTION OR PROVISIONAL ENLISTMENT OF MEN OTHER THAN NATIONAL GUARDSMEN, AS ESTABLISHING A PRESUMPTION THAT CONGRESS INTENDED TO CONFER LIKE RIGHTS ON THOSE GUARDSMEN WHO WERE REJECTED BEFORE ACCEPTANCE AND ENROLLMENT IN THE FEDERAL SERVICE. THE STATUS OF INDUCTED AND PROVISIONAL ENLISTED MEN IN THIS RESPECT IS HEREINAFTER DISCUSSED. ASSUMING, FOR PRESENT PURPOSES, THAT THEIR RIGHTS ARE AS STATED, THE SETTLED RULE OF CONSTRUCTION IS THAT THE SPECIAL RIGHT CONFERRED UPON THEM ESTABLISHES A PRESUMPTION THAT THEY WOULD NOT OTHERWISE HAVE COME UNDER THE GENERAL AGGRAVATION PROVISION OF THE LAW, AND THAT ONLY IN THOSE CASES IN WHICH THE SPECIAL RIGHT IS EXPRESSLY CONFERRED CAN AGGRAVATION COMPENSATION LAWFULLY BE PAID. CONGRESS HAS MADE THE DISTINCTION. THE REASON FOR IT IS NOT MATERIAL. MAY SAY, HOWEVER, THAT THE REASON SEEMS TO BE THAT, NEVER HAVING ACCEPTED AND ENROLLED THESE GUARDSMEN INTO THE FEDERAL SERVICE, THE UNITED STATES WAS NOT THOUGHT TO BE OBLIGATED TO PAY AGGRAVATION COMPENSATION TO MEN WHO WERE FOUND TO BE UNFIT FOR ENTRY INTO THE FEDERAL SERVICE. THE GOVERNMENT SEEMINGLY WAS CONSIDERED TO HAVE DISCHARGED ITS FULL OBLIGATION OF IT PAID FOR DISEASE OR INJURY CONTRACTED OR SUSTAINED WHILE UNDER FEDERAL CALL.

YOU REFER TO THE SETTLED RULE THAT IN THE CONSTRUCTION OF DOUBTFUL PROVISIONS OF LAW THE CONSTRUCTION GIVEN TO THE LAW OF OFFICERS CHARGED WITH ITS ADMINISTRATION IS PERSUASIVE; AND IN CASE THE INTENT CAN NOT BE GATHERED FROM THE TERMS OF THE LAW ITSELF, SHOULD BE TAKEN AS CONTROLLING IN ITS CONSTRUCTION. AN EQUALLY WELL-SETTLED GENERAL RULE IS THAT IF THE INTENT AND PURPORT OF THE STATUTE CAN BE GATHERED FROM ITS TERMS, ADMINISTRATIVE CONSTRUCTION OF OR PRACTICE UNDER IT CAN NOT JUSTIFY A CONSTRUCTION NOT IN ACCORDANCE WITH SUCH INTENT AND PURPORT.

YOU CITE SECTION 31 OF THE WAR-RISK INSURANCE ACT DEALING WITH COMPENSATION TO MEN INDUCTED BY LOCAL DRAFT BOARDS AS BEING APPLICABLE TO NATIONAL GUARDSMEN DRAFTED INTO THE FEDERAL SERVICE UPON THE GROUND THAT THE DRAFT ITSELF IS THE MATERIAL FACTOR AND NOT THE METHOD BY WHICH IT IS ACCOMPLISHED. ON THIS POINT IT IS SUFFICIENT TO SAY THAT THE SAID SECTION APPLIES SPECIFICALLY AND IN EXPRESS TERMS TO THOSE MEN INDUCTED BY LOCAL DRAFT BOARDS AND TO NO OTHERS. UNDER THE SETTLED RULE HEREINBEFORE ANNOUNCED ALL OTHERS ARE EXCLUDED FROM THE OPERATION OF THE SECTION.

UPON THOROUGH AND CAREFUL RECONSIDERATION OF THE DECISION IN 2 COMP. GEN., 409, I FIND NO REASON TO CHANGE THE GENERAL CONCLUSION REACHED THEREIN. I THINK, HOWEVER, THAT THE FORMER BUREAU PRACTICE OF AWARDING AND PAYING COMPENSATION TO NATIONAL GUARDSMEN WHO SUFFERED AGGRAVATION OF PREEXISTENT DISEASE BETWEEN THE TIME OF THEIR CALL AND THE TIME OF REJECTION UPON PHYSICAL EXAMINATION FOR FEDERAL SERVICE MAY BE ACCEPTED AS SUFFICIENT TO SUSTAIN ANY PAYMENTS OF SUCH COMPENSATION PRIOR TO THE TIME THE AUTHORITATIVE DECISION TO THE CONTRARY WAS RENDERED BY THIS OFFICE. WHILE I THINK THE LAW CLEARLY SUSTAINS THE SAID DECISION, THE CONTRARY VIEW SEEMS TO HAVE PREVAILED WITH THE ACQUIESCENCE OF FORMER ACCOUNTING OFFICERS. THE DECISION THEREFORE IS NOW QUALIFIED TO APPLY ONLY TO PAYMENTS MADE, OR TO BE MADE, AFTER PROMULGATION OF THE DECISION.

YOU SUBMIT FOR DECISION SPECIFIC QUESTIONS AS FOLLOWS:

1. SHOULD THE BUREAU CONSIDER THE MILITARY STATUS OF A NATIONAL GUARDSMAN WHO WAS CALLED WITH HIS ORGANIZATION INTO THE FEDERAL SERVICE DURING THE MONTH OF MARCH OR APRIL, 1917, FOR THE PURPOSE OF GUARDING RAILROAD BRIDGES, ETC., THE SAME AS THE MILITARY STATUS OF A NATIONAL GUARDSMAN WHO WAS CALLED ON JULY 3, 1917, FOR SERVICE FROM JULY 15 AND AND 25 TO AUGUST 5, 1917, THE DATE OF NATIONAL GUARDSMEN WERE DRAFTED?

2. IN YOUR OPINION OF MAY 16, 1922, YOU HELD THAT THERE MUST BE "A FORMAL MUSTER INTO THE UNITED STATES SERVICE AT THE PLACE OF RENDEZVOUS WHICH IS THE STARTING POINT OF ACTUAL SERVICE AS A FEDERAL FORCE," AND IN A SUBSEQUENT OPINION, DATED DECEMBER 29, 1922, YOU HELD THAT A NATIONAL GUARDSMAN MAY BE CONSIDERED IN THE ACTIVE SERVICE OF THE UNITED STATES UNDER THE WAR DEPARTMENT FROM THE DATE HE REPORTED AT THE RENDEZVOUS UNDER THE CALL OF THE PRESIDENT, DATED JULY 3, 1917. WAS YOUR DECISION OF DECEMBER 29, 1922, INTENDED TO REVERSE YOUR HOLDING OF MAY 16, 1922, AND IS THE TEST THAT THE BUREAU MUST APPLY IN DETERMINING WHETHER A NATIONAL GUARDSMAN WAS IN THE ACTIVE SERVICE OF THE UNITED STATES, HIS CALL AND SUBSEQUENT REPORTING TO THE RENDEZVOUS ON THE DATE SPECIFIED?

3. THE FIRST PROVISO OF SECTION 300 OF THE ACT AS AMENDED MARCH 4, 1923, PROVIDES:

"THAT AN EX-SERVICE MAN WHO IS SHOWN TO HAVE A NEUROPSYCHIATRIC DISEASE OR AN ACTIVE TUBERCULOUS DISEASE * * * SHALL BE CONSIDERED TO HAVE ACQUIRED HIS DISABILITY IN SUCH SERVICE OR TO HAVE SUFFERED AN AGGRAVATION OF A PREEXISTING NEUROPSYCHIATRIC DISEASE OR TUBERCULOSIS, IN SUCH SERVICE, * * *.'

IS A FORMER NATIONAL GUARDSMAN WHO WAS NOT ACCEPTED BUT WAS DISCHARGED AFTER REPORTING TO THE RENDEZVOUS ON ACCOUNT OF A PREEXISTING DISABILITY, OTHER THAN TUBERCULOSIS OR A NEUROPSYCHIATRIC DISEASE, ENTITLED TO THE BENEFITS OF THE ABOVE-QUOTED PROVISO OF SECTION 300, ON ACCOUNT OF HIS SERVICE FROM THE DATE OF HIS REPORTING TO THE RENDEZVOUS TO THE DATE OF HIS REPORTING TO THE RENDEZVOUS TO THE DATE OF HIS DISCHARGE ON A SURGEON'S CERTIFICATE OF DISABILITY?

4. WOULD A FORMER NATIONAL GUARDSMAN WHO IS DISCHARGED ON ACCOUNT OF DEPENDENTS UNDER THE SAME CONDITIONS AND CIRCUMSTANCES AS JAMES L. BENNET (SEE YOUR OPINION OF MAY 16, 1922) BE ENTITLED TO THE BENEFITS OF THIS PROVISO OF SECTION 300 OF THE ACT AS AMENDED MARCH 4, 1923?

1. THE GENERAL PURPOSE OF THE AGGRAVATION COMPENSATION PROVISION OF THE WAR RISK INSURANCE LAWS IS TO PROVIDE SUCH COMPENSATION FOR THOSE PERSONS ONLY WHO WERE EXAMINED, ACCEPTED, AND ENROLLED FOR SERVICE WITH FEDERAL FORCES, AND SERVED WITH SUCH FORCES ON OR AFTER APRIL 6, 1917. IT DOES NOT APPLY TO THOSE NATIONAL GUARDSMEN WHO WERE REJECTED FOR FEDERAL SERVICE EITHER BEFORE OR AFTER APRIL 6, 1917, AFTER RESPONDING TO CALL FOR SERVICE AS MEMBERS OF THEIR GUARD ORGANIZATION. THE QUESTION IS ANSWERED ACCORDINGLY.

2. AS HEREINBEFORE STATED, THE DECISION OF MAY 16, 1922, CONSTRUES THE BONUS LAW, THE SCOPE OF WHICH IS NOT SO BROAD AS THE WAR RISK COMPENSATION LAW. THE DECISION OF DECEMBER 29, 1922, CONSTRUES THE WAR RISK INSURANCE LAW. IT DOES NOT REVERSE OR MODIFY THE DECISION OF MAY 16, 1922, THE ONE DECISION BEING FOR GUIDANCE IN THE PAYMENT OF BONUS BY THE WAR DEPARTMENT AND THE OTHER FOR GUIDANCE OF THE VETERANS' BUREAU IN THE PAYMENT OF WAR- RISK COMPENSATION.

3. IN CASES WHERE THE GUARDSMEN, AFTER DISCHARGE FOR OTHER DISEASES, HAVE BEEN FOUND TO HAVE EITHER TUBERCULOSIS OR A NEUROPSYCHIATRIC DISEASE THEY ARE ENTITLED TO THE SAME PRESUMPTION OF SERVICE ORIGIN OF THE DISEASE THAT IS GIVEN TO OTHER EX-SERVICE MEN. IN THIS CONNECTION THE TERM "EX-SERVICE MEN" RELATES TO ALL MEN OTHERWISE QUALIFIED WHO HAD SERVICE UNDER THE WAR DEPARTMENT OR THE NAVY DEPARTMENT. WHILE THE AMENDMENT ESTABLISHES THE PRESUMPTION OF SERVICE ORIGIN OF THE DISEASE OR ITS AGGRAVATION, IT DOES NOT REMOVE THE GENERAL CONDITION ATTACHED TO AGGRAVATION COMPENSATION THAT THERE MUST HAVE BEEN AN EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE BEFORE SUCH COMPENSATION FOR PREEXISTENT DISEASE OR INJURY CAN BE PAID.

4. THE GUARDSMAN IS ENTITLED TO THE BENEFIT OF THE PRESUMPTION OF SERVICE ORIGIN OF THE DISEASE OR INJURY, OR AGGRAVATION THEREOF, ESTABLISHED BY THE AMENDED SECTION. HE IS NOT ENTITLED TO COMPENSATION FOR SERVICE AGGRAVATION OF THE DISEASE OR INJURY IF HE WAS NEVER EXAMINED, ACCEPTED, AND ENROLLED FOR FEDERAL SERVICE.

THE COMPENSATION STATUS OF THOSE EX-SERVICE MEN WHO WERE INDUCTED BY LOCAL DRAFT BOARDS, OR WHO APPLIED FOR ENLISTMENT OR ENROLLMENT IN THE MILITARY OR NAVAL FORCES AND WERE ACCEPTED PROVISIONALLY AND ORDERED TO THE PLACE FOR FINAL ACCEPTANCE INTO SERVICE, AND WHO WERE NOT ACCEPTED AND ENROLLED FOR SERVICE, IS FOR CONSIDERATION. SECTION 31 OF THE WAR-RISK INSURANCE ACT AS AMENDED BY THE ACTS OF DECEMBER 24, 1919, 41 STAT., 372, AND AUGUST 9, 1921, 42 STAT., 153, PROVIDES:

THAT IF AFTER INDUCTION BY THE LOCAL DRAFT BOARD, BUT BEFORE BEING ACCEPTED AND ENROLLED FOR ACTIVE SERVICE, THE PERSON DIED OR BECAME DISABLED AS A RESULT OF DISEASE CONTRACTED OR INJURY SUFFERED IN THE LINE OF DUTY AND NOT DUE TO HIS OWN WILLFUL MISCONDUCT INVOLVING MORAL TURPITUDE, OR AS A RESULT OF THE AGGRAVATION, IN THE LINE OF DUTY AND NOT BECAUSE OF HIS OWN WILLFUL MISCONDUCT INVOLVING MORAL TURPITUDE, OF AN EXISTING DISEASE OR INJURY, HE OR THOSE ENTITLED THERTO SHALL RECEIVE THE BENEFITS OF COMPENSATION PAYABLE UNDER ARTICLE III: PROVIDED, THAT ANY INSURANCE APPLICATION MADE BY A PERSON AFTER INDUCTION BY THE LOCAL DRAFT BOARD BUT BEFORE BEING ACCEPTED AND ENROLLED FOR ACTIVE SERVICE SHALL BE DEEMED VALID.

(A) ANY PERSON WHO BETWEEN THE 6TH DAY OF APRIL, 1917, AND THE 11TH DAY OF NOVEMBER, 1918, APPLIED FOR ENLISTMENT OR ENROLLMENT IN THE MILITARY OR NAVAL FORCES, AND WHO WAS ACCEPTED PROVISIONALLY AND DIRECTED OR ORDERED TO A CAMP, POST, STATION, OR OTHER PLACE FOR FINAL ACCEPTANCE INTO SUCH SERVICE, SHALL BE DEEMED TO HAVE THE SAME STATUS AS AN INDUCTED MAN NOT YET ACCEPTED AND ENROLLED FOR ACTIVE SERVICE DURING THE PERIOD WHILE SUCH PERSON WAS COMPLYING WITH SUCH ORDER OR DIRECTION, AND DURING SUCH COMPLIANCE, AND UNTIL HIS FINAL ACCEPTANCE OR REJECTION FOR ENLISTMENT OR ENROLLMENT INTO THE MILITARY OR NAVAL FORCES, SHALL BE ENTITLED TO THE SAME BENEFITS UNDER ARTICLES III AND IV OF THE WAR RISK INSURANCE ACT AS AN INDUCTED MAN NOT YET ACCEPTED AND ENROLLED FOR ACTIVE SERVICE.

THIS SECTION WAS CONSIDERED BY THIS OFFICE IN CONNECTION WITH THE DECISIONS IN 2 COMP. GEN., 409, BUT THE COMPENSATION STATUS OF EX SERVICE MEN COVERED BY IT WAS NOT IN ISSUE AT THAT TIME, AND, AS STATED IN THE DECISION OF MARCH 15, 1923, THE COMPENSATION STATUS OF THESE MEN WAS NOT DECIDED BY THIS OFFICE.

THE ANALOGY BETWEEN THE STATUS OF THESE MEN AND THAT OF NATIONAL GUARDSMEN WHO WERE CALLED BUT WERE NOT EXAMINED, ACCEPTED, AND ENROLLED FOR FEDERAL SERVICE REFERRED TO IN THE FORMER DECISIONS WAS DRAWN BY THIS OFFICER FROM THE PROVISION IN SECTION 31 ALLOWING TO THE EX SERVICE MEN SPECIFIED "THE BENEFITS OF COMPENSATION PAYABLE UNDER ARTICLE III.' THE GENERAL COMPENSATION PROVISION OF THE ARTICLE AS CONSTRUED BY THIS OFFICE HAVING LIMITED AGGRAVATION COMPENSATION TO THOSE WHO HAD BEEN EXAMINED, ACCEPTED, AND ENROLLED FOR SERVICE, THIS OFFICE CONCLUDED THAT THE SAME LIMITATION APPLIED TO THE BENEFITS CONFERRED BY THE SECTION.

UPON MATURE CONSIDERATION OF THIS QUESTION WHICH IS NOW BEFORE ME FOR DECISION, I HAVE CONCLUDED THAT THE INTENTION OF THE SECTION IS THAT THESE EX-SERVICE MEN SHALL HAVE OTHERWISE LAWFUL COMPENSATION FOR AGGRAVATION OF A PREEXISTENT DISEASE OR INJURY BY THEIR SERVICE BETWEEN THE TIME OF INDUCTION OR PROVISIONAL ACCEPTANCE TO THE TIME OF FINAL REJECTION. THE SECTION EXTENDS THE COMPENSATION PROVISION TO AGGRAVATION OF "AN EXISTING DISEASE OR INJURY," AND MUST BE DISTINGUISHED IN THIS RESPECT FROM THE GENERAL PROVISION ALLOWING COMPENSATION FOR AGGRAVATION " OF A DISABILITY EXISTING PRIOR TO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE.' THE REASON FOR THE DISTINCTION IS CLEAR. THE SECTION ITSELF RELATES TO MEN WHO WERE NOT FINALLY ACCEPTED AND ENROLLED FOR SERVICE.

IT IS NOW DECIDED THAT THOSE EX-SERVICE MEN WHO ARE INCLUDED IN SECTION 31 AS AMENDED ARE ENTITLED TO COMPENSATION FOR SERVICE AGGRAVATION OF A PREEXISTENT DISEASE OR INJURY SUSTAINED DURING THE PERIOD BETWEEN INDUCTION OR PROVISIONAL ACCEPTANCE FOR MILITARY OR NAVAL SERVICE AND FINAL REJECTION FOR SUCH SERVICE.