JUNE 11, 1923, 2 COMP. GEN. 791

JUNE 11, 1923, 2 COMP. GEN. 791

BURIAL EXPENSES - VETERANS OF WARS AND BENEFICIARIES AND TRAINEES OF VETERANS' BUREAU THE BURIAL EXPENSES OF BENEFICIARIES OF THE VETERANS' BUREAU WHO DIED SINCE APRIL 6, 1917, WHILE RECEIVING MEDICAL, SURGICAL, OR HOSPITAL TREATMENT, OR VOCATIONAL TRAINING, INCLUDING THE EXPENSE OF A FLAG FOR DRAPING THE COFFIN AND THE PREPARATION AND TRANSPORTATION OF THE BODY TO THE PLACE OF BURIAL WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, ARE PAYABLE FROM GOVERNMENT FUNDS WITHOUT REGARD TO WHETHER THERE ARE SUFFICIENT ASSETS IN THE DECEDENT'S ESTATE TO PAY SUCH EXPENSES. THE PROVISIONS OF THE ACT OF MARCH 4, 1923, 42 STAT. 1523, FOR THE PAYMENT FROM GOVERNMENT FUNDS OF BURIAL EXPENSES, NOT EXCEEDING $100, AND A FLAG WITH WHICH TO DRAPE THE COFFIN, NOT EXCEEDING $5, IN THE CASE OF THE DEATH OF DISCHARGED VETERANS OF ANY WARS WHEN SUCH EXPENSES CAN NOT BE PAID FROM THE ESTATE OF THE DECEASED OR FROM ANY OTHER SOURCE, ARE LIMITED TO THOSE PERSONS WHO SERVED IN ANY OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES DURING THE MEXICAN WAR, THE CIVIL WAR, THE SPANISH-AMERICAN WAR, OR THE WORLD WAR, OR WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACTUALLY PARTICIPATING IN THE BOXER EXPEDITION, CUBAN PACIFICATION, NICARAGUAN CAMPAIGN, VERA CRUZ EXPEDITION, OR THE PUNITIVE EXPEDITION INTO MEXICO.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JUNE 11, 1923:

I HAVE YOUR LETTER OF APRIL 25, 1923, REQUESTING DECISION AS TO THE AUTHORITY OF THE VETERANS' BUREAU TO MAKE PAYMENT OF FUNERAL EXPENSES OF DECEASED BENEFICIARIES OF THE BUREAU IN ACCORDANCE WITH THE PROVISIONS OF PROPOSED REGULATIONS SUBMITTED WITH YOUR LETTER.

YOUR QUESTION IS BROAD AND GENERAL IN CHARACTER, AND WILL BE TAKEN AS RAISING ONLY CERTAIN GENERAL QUESTIONS INVOLVED IN THE PAYMENT OF FUNERAL EXPENSES UNDER THE PROVISIONS OF PARAGRAPH 3 OF THE ACT OF MARCH 4, 1923, 42 STAT., 1523, AMENDING SUBDIVISION (G) OF SECTION 301 OF THE WAR RISK INSURANCE ACT TO READ AS FOLLOWS:

(2) IF DEATH OCCUR OR SHALL HAVE OCCURRED SUBSEQUENT TO APRIL 6, 1917, AND BEFORE DISCHARGE OR RESIGNATION FROM THE SERVICE, THE UNITED STATES SHALL PAY FOR BURIAL EXPENSES AND THE RETURN OF BODY TO HIS HOME A SUM NOT TO EXCEED $100, AS MAY BE FIXED BY REGULATION. WHERE A VETERAN OF ANY WAR DIES AFTER DISCHARGE OR RESIGNATION FROM THE SERVICE AND DOES NOT LEAVE SUFFICIENT ASSETS TO MEET THE EXPENSE OF HIS BURIAL AND THE TRANSPORTATION OF HIS BODY, AND SUCH EXPENSES ARE NOT OTHERWISE PROVIDED FOR, THE UNITED STATES VETERANS' BUREAU SHALL PAY THE FOLLOWING SUMS: FOR A FLAG TO DRAPE THE CASKET, AND AFTER BURIAL TO BE GIVEN TO THE EXPENSES, A SUM NOT EXCEEDING $100, TO SUCH PERSON OR PERSONS AS MAY BE FIXED BY REGULATIONS: PROVIDED, THAT SUBJECT TO REGULATIONS, WHERE DEATH OCCURS WHILE SUCH PERSON IS RECEIVING GOVERNMENTAL MEDICAL, SURGICAL OR HOSPITAL TREATMENT OR VOCATIONAL TRAINING, THE UNITED STATES VETERANS' BUREAU SHALL PAY, IN ADDITION TO BURIAL EXPENSES, THE ACTUAL AND NECESSARY COST OF THE TRANSPORTATION OF THE BODY OF SUCH PERSON (INCLUDING PREPARATION OF THE BODY) TO THE PLACE OF BURIAL WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

A CONDITION ATTACHED BY THIS STATUTE TO PAYMENT OF BURIAL EXPENSES AND TRANSPORTATION OF THE BODY IS THAT THE DECEASED DOES NOT LEAVE SUFFICIENT ASSETS TO MEET THE SAID EXPENSES, AND SUCH EXPENSES ARE NOT OTHERWISE PROVIDED FOR. THIS CONDITION APPEARS IN THE CLAUSE OF THE AMENDED SECTION ALLOWING IN THE CASE OF VETERANS GENERALLY THE EXPENSE OF A FLAG TO DRAPE THE CASKET AND BURIAL EXPENSES NOT TO EXCEED $100, AND SEEMS TO BE INTENDED TO APPLY TO THOSE VETERANS ONLY WHO ARE NOT RECEIVING GOVERNMENTAL MEDICAL, SURGICAL OR HOSPITAL TREATMENT, OR VOCATIONAL TRAINING, AND WHO, THEREFORE, DO NOT COME WITHIN THE PROVISO TO THE SECTION. IN THE CASES WITHIN THE PROVISO THE CONDITION DOES NOT APPLY, AND THE STATUTE PROVIDES FOR THE EXPENSE OF TRANSPORTATION OF THE BODY, INCLUDING ITS PREPARATION, IN ADDITION TO THE BURIAL AND DRAPING EXPENSES ALLOWED VETERANS GENERALLY, WITHOUT REGARD TO WHETHER THERE ARE SUFFICIENT ASSETS IN DECEDENT'S ESTATE, OR OTHER PROVISION HAS BEEN MADE FOR PAYMENT OF THE EXPENSES.

THE TERMS OF THE SECTION IN THIS RESPECT ARE NOT ENTIRELY CLEAR, BUT I THINK IT WAS THE INTENTION TO ALLOW IN ALL CASES COMING WITHIN THE PROVISO THE DRAPING AND BURIAL EXPENSES WITHIN THE MAXIMUM LIMITATION, AND NECESSARY EXPENSES OF PREPARING AND TRANSPORTING THE BODY, WITHOUT REFERENCE TO THE SUFFICIENCY OF THE ASSETS OF DECEDENT'S ESTATE OR OTHER PROVISION FOR SUCH EXPENSES. THE DISTINCTION SEEMS TO REST UPON ADMINISTRATIVE RESPONSIBILITY OF THE VETERANS' BUREAU FOR THE CARE OF THOSE BENEFICIARIES WHO ARE UNDERGOING TREATMENT OR TRAINING THROUGH ITS INSTRUMENTALITIES. IN OTHER WORDS IN SUCH CASES THE EXPENSE IS CONSIDERED AS ONE OF ADMINISTRATION AND NOT AS AN EXTRA ALLOWANCE OR PRIVILEGE GIVEN TO ONE CLASS OF BENEFICIARIES OVER ANOTHER CLASS.

THE TERM "VETERAN OF ANY WAR" IS BROAD AND CALLS FOR INTERPRETATION IN ITS APPLICATION TO THE SUBJECT MATTER OF THIS SECTION.

ATTACHED TO YOUR SUBMISSION IS A STATEMENT SAID TO HAVE BEEN FURNISHED BY THE WAR DEPARTMENT OF TIME SPENT BY THE UNITED STATES IN WARS FROM 1775 TO 1920. SUBPARAGRAPH A OF PARAGRAPH 2 OF THE PROPOSED REGULATONS DEFINES THE TERM "VETERAN OF ANY WAR" TO MEAN ANY PERSON WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES DURING ANY OF THE PERIODS SET FORTH IN THIS LIST WHO HAD NOT BEEN DISHONORABLY DISCHARGED FROM THE SERVICE BY SENTENCE OF COURT MARTIAL.

IT IS EVIDENT THAT THE EARLIER PERIODS ON THIS LIST HAVE NO PRACTICAL SIGNIFICANCE IN THIS CONNECTION AND NEED NOT BE DISCUSSED IN THIS DECISION. THE PERIODS COVERING THE VARIOUS INDIAN WARS, THE MEXICAN WAR, THE CIVIL WAR, THE SPANISH-AMERICAN WAR, THE PHILIPPINE INSURRECTION, THE BOXER EXPEDITION, THE NICARAGUAN CAMPAIGN, THE VERA CRUZ EXPEDITION, THE PUNITIVE EXPEDITION INTO MEXICO, AND THE WORLD WAR, ARE THE ONLY PERIODS OF PRACTICAL IMPORTANCE.

AS REGARDS THE MEXICAN WAR, THE CIVIL WAR, THE SPANISH-AMERICAN WAR, AND THE WORLD WAR, A STATE OF GENERAL WARFARE EXISTED AND THE MILITARY AND NAVAL FORCES OF THE UNITED STATES WERE MOBILIZED GENERALLY FOR PARTICIPATION IN SUCH WARFARE. THERE CAN BE NO DOUBT, I THINK, THAT ONE WHO SERVED IN THE MILITARY OR NAVAL FORCES DURING ANY OF THE PERIODS OF SUCH WARFARE WAS A VETERAN OF THE CORRESPONDING WAR AND COMES WITHIN THE TERMS OF THE STATUTE.

THE COURTS HAVE RECOGNIZED SOME OF THE INDIAN WARS AND THE PHILIPPINE INSURRECTION AS BEING WARS WITHIN THE MEANING OF THAT TERM AS USED IN CERTAIN PAY OR BOUNTY LAWS OF THE ARMY OR NAVY. ALIRE V. UNITED STATES, 1 CT.CL., 233; MARKS V. UNITED STATES, 28 CT.CL., 147; THOMAS V. UNITED STATES, 39 CT.CL., 1. THE SAME REASONS THAT INFLUENCED THE COURT IN THE CASES CITED ARE PERSUASIVE IN DECIDING THE WAR STATUS OF THE BOXER EXPEDITION, CUBAN PACIFICATION, NICARAGUAN CAMPAIGN, VERA CRUZ EXPEDITION, AND THE PUNITIVE EXPEDITION INTO MEXICO. IN NONE OF THE WARS MENTIONED IN THIS PARAGRAPH DID A STATE OF GENERAL WARFARE EXIST, NOR WAS THERE A GENERAL MOBILIZATION OF ALL MILITARY AND NAVAL FORCES OF THE COUNTRY FOR PARTICIPATION IN THESE WARS. CERTAIN FORCES WERE MOBILIZED FOR PARTICIPATION IN A LIMITED WAR SERVICE, AND MEMBERS OF THOSE FORCES ONLY ARE VETERANS OF THOSE WARS WITHIN THE TERMS OF THIS STATUTE.

YOU SUBMIT THE CASE OF A VETERAN OF THE WORLD WAR DISCHARGED IN 1919, WHO REENLISTED IN MARCH, 1922, AND WHO DIED WHILE RECEIVING TREATMENT IN AN ARMY HOSPITAL. THE FIRST QUESTION FOR DECISION IS WHETHER PAYMENT OF BURIAL EXPENSES IN SUCH CASES IS GOVERNED BY THE FIRST SENTENCE OF SUBPARAGRAPH (G) (2) OF SECTION 301 OF THE WAR RISK INSURANCE ACT HEREINBEFORE QUOTED, OR THE LAST SENTENCE THEREOF.

SECTION 22 OF THE ACT OF AUGUST 9, 1921, 42 STAT., 155, AMENDS THE WAR RISK INSURANCE ACT BY ADDING THERETO THE FOLLOWING:

SEC. 315. THAT NO PERSON ADMITTED INTO THE MILITARY OR NAVAL FORCES OF THE UNITED STATES AFTER SIX MONTHS FROM THE PASSAGE OF THIS AMENDATORY ACT SHALL BE ENTITLED TO THE COMPENSATION OR ANY OTHER BENEFITS OR PRIVILEGES PROVIDED UNDER THE PROVISIONS OF ARTICLE III OF THE WAR RISK INSURANCE ACT, AS AMENDED.

THE BENEFIT OR PRIVILEGE OF PAYMENT OF FUNERAL EXPENSES PROVIDED BY THE AMENDMENT TO SECTION 301 NOW UNDER CONSIDERATION IS ONE PROVIDED BY ARTICLE III OF THE WAR RISK INSURANCE ACT. IF THE ESTATE OF THE BENEFICIARY IN THE INSTANT CASE IS TO HAVE THE BENEFIT OF THIS AMENDMENT IT IS BY VIRTUE OF HIS FORMER SERVICE AND DISCHARGE AND NOT BY VIRTUE OF HIS REENTRY INTO THE SERVICE IN 1922. HIS RIGHTS AS A DISCHARGED VETERAN WERE NOT EXTINGUISHED BY HIS SUBSEQUENT REENTRY INTO THE SERVICE. HIS ESTATE IS ENTITLED TO THE BENEFIT OF THE PROVISION OF THE SECTION FOR DISCHARGED VETERANS, AND HE HAVING DIED WHILE RECEIVING GOVERNMENTAL HOSPITAL TREATMENT, THE BENEFIT INCLUDES PREPARATION AND TRANSPORTATION OF THE BODY, IN ADDITION TO THE BURIAL AND DRAPING EXPENSES.

THE LAST PARAGRAPH OF THE AMENDMENT UNDER CONSIDERATION MAKES SPECIAL PROVISION FOR PERSONS WHO DIE WHILE RECEIVING MEDICAL, SURGICAL, OR HOSPITAL TREATMENT, OR VOCATIONAL TRAINING. THIS SPECIAL PROVISION IS FOR ADDITIONAL PAYMENT OF TRANSPORTATION OF THE BODY, INCLUDING ITS PREPARATION, AND THEREFORE APPLIES ONLY TO THOSE PERSONS WHO ARE RECEIVING TREATMENT OR TRAINING AWAY FROM THEIR HOMES. IT COVERS ALL OTHERWISE QUALIFIED PATIENTS RECEIVING MEDICAL, SURGICAL, OR HOSPITAL TREATMENT, WHETHER IN GOVERNMENT HOSPITALS OR OTHER INSTITUTIONS WHERE TREATMENT IS AUTHORIZED, OR WHO ARE TREATED UNDER GOVERNMENT SUPERVISION, BUT DOES NOT, GENERALLY SPEAKING, COVER OUT PATIENTS WHO ARE ASSUMED TO BE TREATED AT THEIR HOMES. IT COVERS ALSO PATIENTS OF THE BUREAU WHO HAVE BEEN ADMITTED TO TREATMENT AND ARE EN ROUTE TO GOVERNMENT HOSPITALS OR OTHER AUTHORIZED INSTITUTIONS. IT COVERS PERSONS WHO DIE WHILE RECEIVING TREATMENT AT UNAUTHORIZED PLACES, EITHER IN EMERGENCY OR IN IGNORANCE OF THEIR RIGHTS, ONLY IN CASE SUCH PERSONS ARE WITHOUT MEANS AND THE BURIAL EXPENSES ARE NOT OTHERWISE PROVIDED FOR, AND THE BUREAU IS CALLED UPON TO BEAR THE SAME. GENERALLY SPEAKING THE BUREAU IS NOT RESPONSIBLE FOR BURIAL OF UNAUTHORIZED PATIENTS.

AS HEREINBEFORE STATED, THE CONDITION THAT ASSETS OF THE DECEDENT'S ESTATE MUST BE INSUFFICIENT TO PAY EXPENSES, AND THERE MUST BE NO OTHER PROVISION FOR PAYMENT OF SAME DOES NOT APPLY TO THOSE BENEFICIARIES WHO DIE WHILE RECEIVING TREATMENT OR TRAINING, PAYMENT OF EXPENSES IN SUCH CASES BEING IN THE NATURE OF ADMINISTRATION. IN ALL OTHER CASES, HOWEVER, PAYMENT BY THE VETERANS' BUREAU OF BURIAL OR DRAPING EXPENSES IS UNAUTHORIZED IF THE EXPENSES ARE COVERED BY ADEQUATE PROVISION MADE BY EITHER THE UNITED STATES, OR THE SEVERAL STATES OR OTHER POLITICAL SUBDIVISIONS, OR BY FRATERNAL OR OTHER ORGANIZATIONS.

PARAGRAPH (8) OF SUBSECTION (G) OF THE AMENDED SECTION 301 PROVIDES:

THAT SECTION 301 OF THE WAR RISK INSURANCE ACT, IS AMENDED, SHALL BE DEEMED TO BE IN EFFECT AS OF APRIL 6, 1917: * * *.

THE SECTION IS THUS MADE RETROSPECTIVE IN THAT IT IS MADE TO COVER CASES NOT WITHIN THE PURVIEW OF THE SECTION AS FORMERLY ENACTED. IT IS NOT RETROACTIVE AS A REPEAL OR MODIFICATION OF LAWS AND REGULATIONS IN FORCE AT THE TIME OF ITS ENACTMENT. IT DOES NOT REQUIRE A REOPENING OF CASES SETTLED UNDER THE FORMER LAWS AND REGULATIONS NOR DOES IT DISTURB RIGHTS VESTED UNDER THOSE LAWS AND REGULATIONS. ALL CASES OF DEATHS PRIOR TO MARCH 4, 1923, COMING WITHIN LAWS AND REGULATIONS IN FORCE AT THE TIME OF DEATH WILL BE SETTLED UNDER THOSE LAWS AND REGULATIONS. ALL OTHER CASES WILL BE SETTLED UNDER THE AMENDMENT OF MARCH 4, 1923, AND SUCH REGULATIONS AS MAY BE PROMULGATED IN ACCORDANCE WITH ITS TERMS.

THE PROPOSED REGULATIONS SHOULD BE AMENDED TO CONFORM TO THE GENERAL PRINCIPLES LAID DOWN IN THIS DECISION. IT IS THOUGHT THAT THE DECISION COVERS ALL DOUBTFUL QUESTIONS RAISED BY THE SUBMISSION; BUT IF THERE REMAINS DOUBT IN THE BUREAU AS TO ANY QUESTION NOT COVERED IN THE DECISION, IT MAY BE SUBMITTED BY THE DIRECTOR FOR SPECIFIC DECISION.