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MARCH 27, 1924, 3 COMP. GEN. 688

Mar 27, 1924
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VETERANS' BUREAU - DISABILITY COMPENSATION - MEDICAL TREATMENT - ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE IS NOT INCLUDED WITHIN THE TERMS "ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. IS NOT A SEPARATION FROM THE "ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. 1924: I HAVE YOUR LETTER OF FEBRUARY 19. PARTLY AS FOLLOWS: THERE ARE NOW BEFORE THIS BUREAU FOR ADJUDICATION TWO CASES WHICH INVOLVE THE RIGHTS OF MEMBERS OF THE UNITED STATES NAVAL RESERVE FORCE. IT WAS THOUGHT ADVISABLE TO SUBMIT THEM TO YOU FOR DECISION. THE FIRST CASE DESIRED TO PRESENT IS THAT OF EDMUND GABRYELEWICZ. HE WAS CALLED TO ACTIVE DUTY DURING THE WORLD WAR AND SERVED UNTIL DECEMBER 18.

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MARCH 27, 1924, 3 COMP. GEN. 688

VETERANS' BUREAU - DISABILITY COMPENSATION - MEDICAL TREATMENT - ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE IS NOT INCLUDED WITHIN THE TERMS "ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES," WITHIN THE MEANING OF SECTION 300 OF THE WAR RISK INSURANCE ACT AS AMENDED BY THE ACT OF MARCH 4, 1923, 42 STAT., 1522, AND NO RIGHT TO DISABILITY COMPENSATION OR MEDICAL TREATMENT ATTACHES BY REASON OF SUCH ACTIVE SERVICE FOR TRAINING. THE COMPLETION OF A PERIOD OF ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE, OR A FINAL DISCHARGE FROM THE NAVAL RESERVE FORCE WHILE ON INACTIVE DUTY, IS NOT A SEPARATION FROM THE "ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES," WITHIN THREE YEARS FROM WHICH AN EXAMINATION MUST BE MADE TO CREATE A PRESUMPTION OF THE SERVICE ORIGIN OF A DISEASE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 27, 1924:

I HAVE YOUR LETTER OF FEBRUARY 19, 1924, PARTLY AS FOLLOWS:

THERE ARE NOW BEFORE THIS BUREAU FOR ADJUDICATION TWO CASES WHICH INVOLVE THE RIGHTS OF MEMBERS OF THE UNITED STATES NAVAL RESERVE FORCE; AND IN VIEW OF YOUR PREVIOUS RULINGS WITH RESPECT TO SUCH PERSONS, IT WAS THOUGHT ADVISABLE TO SUBMIT THEM TO YOU FOR DECISION.

THE FIRST CASE DESIRED TO PRESENT IS THAT OF EDMUND GABRYELEWICZ. ENLISTED IN THE UNITED STATES NAVAL RESERVE FORCE MARCH 14, 1918. HE WAS CALLED TO ACTIVE DUTY DURING THE WORLD WAR AND SERVED UNTIL DECEMBER 18, 1918, WHEN HE WAS RELEASED TO INACTIVE DUTY. HE WAS RECALLED FOR TRAINING JULY 31, 1920, AND WAS RELEASED TO INACTIVE DUTY AUGUST 14, 1920. HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVAL SERVICE SEPTEMBER 30, 1921. EXAMINATION REPORTS AT THIS TIME SHOW THAT THE CLAIMANT IS SUFFERING WITH ACTIVE TUBERCULOSIS. IT IS CLEAR THAT HE WAS NOT DISCHARGED FROM THE NAVAL RESERVE FORCE UNTIL SEPTEMBER 30, 1921, AND THAT HE HAS AN ACTIVE TUBERCULAR DISEASE OF 10 PERCENT DEGREE OR MORE AS INDICATED BY A PROPER MEDICAL EXAMINATION WITHIN THREE YEARS OF THAT DATE. IT IS ALSO CLEAR FROM THE EVIDENCE IN THE FILE THAT THIS DEGREE OF DISABILITY IS SHOWN TO EXIST WITHIN THREE YEARS OF AUGUST 14, 1920. SUCH DISABILITY, HOWEVER, IS NOT SHOWN TO HAVE EXISTED WITHIN THREE YEARS OF DECEMBER 18, 1918.

IT IS REQUESTED THAT A DECISION BE RENDERED AS TO THE PROPER DATE TO BE USED IN COMPUTING THE THREE-YEAR PERIOD PROVIDED FOR BY SECTION 300.

THE SECOND CASE IS THAT OF JOHN MIDDLETON HAMMOND. THIS MAN ENLISTED APRIL 17, 1911; WAS DISCHARGED JUNE 20, 1915; REENLISTED OCTOBER 6, 1915; WAS DISCHARGED JULY 21, 1919; REENLISTED JULY 22, 1919; DISCHARGED AUGUST 13, 1923; ENROLLED IN CLASS 6, U.S.N.R.F., SEPTEMBER 5, 1923, AT INDIANAPOLIS, INDIANA, AS ENGINE MAN, FIRST CLASS; ORDERED TO ACTIVE DUTY SEPTEMBER 16, 1923; PLACED ON INACTIVE DUTY SEPTEMBER 30, 1923. APPEARS THAT HE WAS INJURED WHILE ON ACTIVE DUTY BETWEEN THE PERIOD SEPTEMBER 16 AND SEPTEMBER 30, 1923.

IT IS REQUESTED THAT A DECISION BE RENDERED AS TO WHETHER THIS MAN IS ENTITLED TO RECEIVE MEDICAL TREATMENT OR HOSPITAL CARE UNDER THE ABOVE- QUOTED PROVISION OF THE WAR RISK INSURANCE ACT, IN VIEW OF THE FACT THAT HE HAS NOT BEEN DISCHARGED FROM THE NAVAL SERVICE BUT IS STILL A MEMBER OF THE UNITED STATES NAVAL RESERVE FORCE ON INACTIVE DUTY.

THE APPLICABLE PORTION OF SECTION 300 OF THE WAR RISK INSURANCE ACT AS AMENDED BY THE ACT OF MARCH 4, 1923, 42 STAT., 1522, IS AS FOLLOWS:

* * * PROVIDED, THAT AN EX-SERVICE MAN WHO IS SHOWN TO HAVE A NEUROPSYCHIATRIC DISEASE OR AN ACTIVE TUBERCULOUS DISEASE DEVELOPING A 10 PERCENTUM DEGREE OF DISABILITY OR MORE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (2) OF SECTION 302 OF THE WAR RISK INSURANCE ACT, AS AMENDED, AND SUCH SHOWING WAS ALSO MADE UPON EXAMINATION BY A MEDICAL OFFICER OF THE VETERANS' BUREAU OR BY A LEGALLY QUALIFIED PHYSICIAN MADE WITHIN THREE YEARS AFTER SEPARATION FROM THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, 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, BUT NOTHING IN THIS PROVISO SHALL BE CONSTRUED TO PREVENT A CLAIMANT FROM RECEIVING THE BENEFITS OF COMPENSATION AND MEDICAL CARE AND TREATMENT FOR A DISABILITY DUE TO THESE DISEASES OF MORE THAN 10 PERCENTUM DEGREE (IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (2), SECTION 302, OF THE WAR RISK INSURANCE ACT AS AMENDED) AT A DATE MORE THAN THREE YEARS AFTER SEPARATION FROM SUCH SERVICE IF THE FACTS OF THE CASE SUBSTANTIATE HIS CLAIM.

THE PHRASE "ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES" REFERS TO THE SERVICE WHICH CONSTITUTES THE BASIS FOR THE PAYMENT OF DISABILITY COMPENSATION TO THE CLASSES OF PERSONS SPECIFIED IN THE FIRST PART OF SECTION 300,"WHEN EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT.' WITH RESPECT TO THE NAVAL RESERVE FORCE, THIS CONTEMPLATES SERVICE PERFORMED WHEN THE RESERVE ORGANIZATIONS, OR MEMBERS THEREOF, ARE ENGAGED IN ACTUAL NAVAL SERVICE AS DISTINGUISHED FROM SERVICE FOR TRAINING PURPOSES ONLY.

THE NAVAL RESERVE FORCE WAS ESTABLISHED FOR THE PURPOSE OF CREATING A RESERVE OF EXPERIENCED MEN FOR SERVICE WITH THE NAVY IN TIME OF WAR OR NATIONAL EMERGENCY. THE LAWS APPLICABLE THERETO REQUIRE DUTIES OF THE MEMBERS OF CERTAIN CLASSES, INCLUDING ACTIVE SERVICE FOR AT LEAST TWO MONTHS DURING EACH TERM OF ENROLLMENT IN PERIODS OF NOT LESS THAN 15 DAYS EACH. ACT OF JULY 1, 1918, 40 STAT., 710. SUCH ACTIVE SERVICE IS FOR TRAINING AND TO MAINTAIN EFFICIENCY IN THE RESERVE AT THE TIME WHEN THE RESERVE ORGANIZATION IS NOT ATTACHED TO THE NAVY IN TIME OF WAR OR NATIONAL EMERGENCY, TO KEEP THE MEN IN PROPER CONDITION FOR SUCH CONTINGENCY, AND MAY NOT BE CONSIDERED AS "ACTIVE MILITARY NAVAL SERVICE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 300 OF THE WAR RISK INSURANCE ACT.

ACCORDINGLY A COMPLETION OF SUCH PERIOD OF ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE OR A FINAL DISCHARGE FROM THE RESERVE WHILE ON INACTIVE DUTY, IN NOT A SEPARATION FROM THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES CONTROLLING THE PERIOD OF THREE YEARS FROM WHICH AN EXAMINATION MUST BE MADE TO CREATE A PRESUMPTION OF THE SERVICE ORIGIN OF ACTIVE TUBERCULOSIS. IN THE CASE OF EDMUND GABRYELEWICZ, THEREFORE, DECEMBER 18, 1918, IS THE CONTROLLING DATE UNDER SECTION 300 OF THE WAR RISK INSURANCE ACT.

THE CASE OF JOHN MIDDLETON HAMMOND IS VERY SIMILAR IN PRINCIPLE TO THAT ANNOUNCED IN DECISION OF OCTOBER 25, 1923, 3 COMP. GEN., 250, HOLDING THAT THE VETERANS' BUREAU HAD NO AUTHORITY TO FURNISH A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY WITH A MEDICAL APPLIANCE NECESSITATED BY INJURY SUSTAINED DURING ATTENDANCE AT A CAMP OF INSTRUCTION. SEE IN THIS CONNECTION, SECTION 6 OF THE ACT OF MARCH 4, 1923, 42 STAT., 1508, RELATIVE TO CERTAIN RESERVE FORCES OF THE ARMY.

NO RIGHTS TO MEDICAL TREATMENT UNDER THE WAR RISK INSURANCE ACT ATTACH BY REASON OF ACTIVE SERVICE FOR TRAINING IN THE NAVAL RESERVE FORCE. IN THIS CASE THERE ARE TWO REASONS, FIRST, BECAUSE SUCH SERVICE IS NOT THAT CONTEMPLATED UNDER SECTION 300 OF THE WAR RISK INSURANCE ACT, AS INDICATED ABOVE, TO ENTITLE TO DISABILITY COMPENSATION OR TO MEDICAL TREATMENT, AND SECOND, EVEN IF IT COULD BE SO CONSIDERED, THE ENTRANCE INTO SUCH SERVICE WAS SUBSEQUENT TO FEBRUARY 9, 1922, WHICH IS THE LAST DATE ON WHICH AN ENTRANCE INTO THE SERVICE GIVES THE RIGHTS TO BENEFITS OF COMPENSATION AND MEDICAL TREATMENT UNDER THE WAR RISK ACT. SEE ACT OF AUGUST 9, 1921, 42 STAT., 155, AND SEPTEMBER 22, 1922, 42 STAT., 1038.

ACCORDINGLY JOHN MIDDLETON HAMMOND IS NOT ENTITLED TO MEDICAL TREATMENT UNDER THE WAR RISK INSURANCE ACT.

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