A-95934, JULY 12, 1938, 18 COMP. GEN. 32

A-95934, JULY 12, 1938, 18 COMP. GEN. 32

PAY AND ALLOWANCES - NATIONAL GUARD - DISEASE DURING PERIOD OF ACTIVE DUTY FOR COURSE OF INSTRUCTION A NATIONAL GUARD OFFICER ORDERED TO ATTEND A GOVERNMENT MILITARY SCHOOL FOR TRAINING COURSE PURPOSES UNDER THE PROVISIONS OF SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF MAY 28, 1926, 44 STAT. 674, AND REPORTED TO HAVE BEEN FOUND PHYSICALLY QUALIFIED AFTER EXAMINATION BOTH AT HIS HOME AND AT THE SCHOOL PRIOR TO ENTERING UPON THE COURSE OF INSTRUCTION, IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES WHILE RECEIVING TREATMENT IN THE STATION HOSPITAL DURING A PORTION OF THE PERIOD FOR WHICH ORDERED TO ACTIVE DUTY, FOR AN ACUTE CONDITION, NOT THE RESULT OF HIS OWN MISCONDUCT, DEVELOPED OR BECOMING MANIFEST AFTER ENTRY UPON, BUT PRIOR TO COMPLETION OF THE COURSE, NOTWITHSTANDING THE DISEASE WAS NOT INCURRED IN LINE OF DUTY. 4 COMP. GEN. 545, DISTINGUISHED, AND 17 ID. 610, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJOR L. W. MADDOX, UNITED STATES ARMY, JULY 12, 1938:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE CHIEF OF FINANCE YOUR LETTER OF JUNE 15, 1938, TRANSMITTING A VOUCHER IN FAVOR OF COL. HARRY HULEN, 106TH ENGINEERS, MISSISSIPPI NATIONAL GUARD, FOR $516.60, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES UNDER THE PROVISIONS OF SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF MAY 28, 1926, 44 STAT. 674, COVERING THE PERIOD MARCH 21 TO APRIL 17, 1938, WHILE RECEIVING TREATMENT IN THE STATION HOSPITAL, FORT LEAVENWORTH, KANS.

THIS NATIONAL GUARD OFFICER, BY AUTHORITY OF THE SECRETARY OF WAR, WAS ORDERED TO ATTEND THE COMMAND AND GENERAL STAFF SCHOOL, FORT LEAVENWORTH, KANS., AS A STUDENT FOR THE NATIONAL GUARD AND RESERVE OFFICERS' COURSE, COMMENCING ON MARCH 14 AND ENDING JUNE 13, 1938, PER PARAGRAPH 5, S.O. 41, DATED HEADQUARTERS, MISSISSIPPI NATIONAL GUARD, FEBRUARY 25, 1938. THIS ORDER PROVIDED THAT UPON COMPLETION OF THE COURSE OR WHEN RELIEVED BY THE COMMANDANT, COMMAND AND GENERAL STAFF SCHOOL, COL. HARRY HULEN, 106TH ENGINEERS, MISSISSIPPI NATIONAL GUARD, WILL RETURN TO HIS HOME.

PARAGRAPHS 1 TO 6, INCLUSIVE, AND PARAGRAPH 8 OF THE APPROVED NGB FORM NO. 60, WHICH ACCOMPANIED THE VOUCHER, ARE AS FOLLOWS:

1. DATES COVERING PERIOD OF ENCAMPMENT OR AUTHORIZED INSTRUCTION MARCH 12, 1938 TO JUNE 13, 1938.

2. DATE INJURIES WERE SUFFERED OR DISEASE CONTRACTED CHRONIC DUODENAL ULCER. DATE FIRST ONSET UNKNOWN.

3. PLACE HEMORRHAGE FROM CHRONIC DUODENAL ULCER, FT. LEAVENWORTH, KANSAS, MARCH 21, 1938.

4. ATTENDING CIRCUMSTANCES IN CASE OF INJURY OR DISEASE ACUTE HEMORRHAGE FROM CHRONIC DUODENAL ULCER OCCURRED AT FT. LEAVENWORTH,KANSAS, MARCH 21, 1938. CAUSE OF HEMORRHAGE FROM CHRONIC DUODENAL ULCER IS UNKNOWN.

5. DUTY BEING PERFORMED AT THE TIME (SEE PAR. 4, NGR 62, MARCH 15, 1933) STUDENT, NATIONAL GUARD AND RESERVE OFFICERS' COURSE, COMMAND AND GENERAL STAFF SCHOOL, FT. LEAVENWORTH, KANSAS.

6. DIAGNOSIS ACUTE HEMORRHAGE FROM DUODENAL ULCER.

8. OPINION OF THE BOARD WHETHER THE INJURY OR DISEASE WAS OR WAS NOT INCURRED IN LINE OF DUTY, AND THE FACTS UPON WHICH THIS OPINION WAS BASED, NOT IN LINE OF DUTY. CHRONIC DUODENAL ULCER EXISTED PRIOR TO REPORTING FOR DUTY. OPINION BASED UPON MEDICAL HISTORY; PHYSICAL, X-RAY, AND LABORATORY FINDINGS.

IN AN INDORSEMENT OF THE CHIEF, NATIONAL GUARD BUREAU, DATED JUNE 7, 1938, IT WAS STATED:

1. THE NATIONAL GUARD BUREAU HOLDS IN THE CASE OF COLONEL HARRY HULEN, WHO IS IN ATTENDANCE AT THE COMMAND AND GENERAL STAFF SCHOOL FOR THE PERIOD MARCH 12, TO JUNE 13, 1938, THAT IF TREATMENT FOR THE ACUTE MANIFESTATIONS OF THE UNDERLYING CHRONIC DISEASE JUSTIFIES THE ANTICIPATION THAT COLONEL HULEN WILL BE ABLE TO CONTINUE THE COURSE OF TRAINING AT THE COMMAND AND GENERAL STAFF SCHOOL WITHIN A REASONABLE LENGTH OF TIME AND WILL RETURN THIS OFFICER TO A DUTY STATUS THEN SUCH TREATMENT SHOULD BE CONSIDERED AS TREATMENT OF AN ACUTE CONDITION AND THEREFORE CAN BE CONSIDERED AS "IN LINE OF DUTY" AND ENTITLE THIS OFFICER TO SERVICE CREDIT FOR PAY AND ALLOWANCES. THIS DECISION IS REASONABLE DESPITE THE FACT THAT THIS BUREAU APPROVES THE FINDING OF THE MEDICAL BOARD AT FORT LEAVENWORTH, KANSAS, WHICH SETS FORTH THE OPINION THAT THE BASIC DISEASE CHRONIC PEPTIC ULCER IS NOT IN LINE OF DUTY.

2. COLONEL HULEN BELIEVED HE HAD BEEN CURED OF HIS GASTRO INTESTINAL DISEASE. HE HAD BEEN FREE OF SYMPTOMS FOR A LONG PERIOD. HE WAS EXAMINED AT HIS HOME STATION PRIOR TO DEPARTURE FOR THE COMMAND AND GENERAL STAFF SCHOOL AND FOUND PHYSICALLY SOUND. HE WAS EXAMINED UPON HIS ARRIVAL AT THE COMMAND AND GENERAL STAFF SCHOOL, AND ACCEPTED AS PHYSICALLY QUALIFIED FOR DUTY AS A STUDENT IN THE NATIONAL GUARD CLASS. COLONEL HULEN SUFFERED AN ACUTE ILLNESS. THIS ILLNESS WAS PROBABLY THE RESULT OF THE STRENUOUSNESS OF THE DUTY AT THE SERVICE SCHOOL; AT LEAST IT WAS NOT THE RESULT OF WILLFUL MISCONDUCT. A SHORT PERIOD OF TREATMENT, WITH PRACTICALLY NO COST TO THE GOVERNMENT, RETURNED COLONEL HULEN TO A DUTY STATUS.

6. IT IS THE OPINION OF THE NATIONAL GUARD BUREAU THAT THE ABOVE DECISION IS IN CONFORMITY WITH THE PROVISIONS OF PARAGRAPH 34C, NGR 59.

SUPPORT FOR THE ABOVE OBSERVATION AND OPINION APPEARS TO BE FOUND IN N.G.R. 62, DATED MARCH 15, 1933, PARAGRAPH 7 (C) OF WHICH PROVIDED:

WHEN SICK OR INJURED NOT IN LINE OF DUTY, NOT DUE TO OWN MISCONDUCT. -- MEMBERS OF THE NATIONAL GUARD UNDER THESE CIRCUMSTANCES ARE, DURING THE CONTINUANCE OF THE ENCAMPMENT, MANEUVERS, OR EXERCISE UNDER SECTION 94 OR 97, OR DURING THE PERIODS OF ATTENDANCE AT A SERVICE SCHOOL UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, ENTITLED TO PAY AND ALLOWANCES THE SAME AS IF ACTUALLY PARTICIPATING IN SUCH TRAINING. THEY ARE NOT ENTITLED TO HOSPITALIZATION, PAY, OR ALLOWANCES AFTER THE EXPIRATION OF THE TRAINING PERIODS UPON WHICH ENGAGED.

IN DECISION A-6622, DATED DECEMBER 18, 1924, 4 COMP. GEN. 545, IT WAS HELD THAT AN OFFICER OF THE NATIONAL GUARD ORDERED TO THE ARMY WAR COLLEGE FOR A COURSE OF INSTRUCTION WAS NOT ENTITLED WHILE SICK IN HOSPITAL TO PAY AND ALLOWANCES NOTWITHSTANDING HE CONTINUED HIS DUTIES WHILE IN THE HOSPITAL AND SATISFACTORILY COMPLETED THE COURSE AS HE WAS NOT IN ACTUAL ATTENDANCE AT SUCH SCHOOL WITHIN THE MEANING OF SECTION 99 OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1035. THAT DECISION WAS BASED IN PART UPON THE CONSTRUCTION GIVEN TO THE ORIGINAL SECTION 99 IN 1 COMP. GEN. 456 AND 27 COMP. DEC. 777.

BY THE AMENDMENT OF MAY 28, 1926, 44 STAT. 674, 675, THERE WAS ADDED TO SECTION 99 AS THEN AMENDED THE FOLLOWING PROVISO:

* * * THAT AN OFFICER, WARRANT OFFICER, OR ENLISTED MAN WHO BECOMES SICK IN LINE OF DUTY WHILE UNDERGOING THE TRAINING PROVIDED FOR BY THIS SECTION OR THE TRAINING PROVIDED FOR BY SECTION 94 OR SECTION 97 OF THIS ACT SHALL, WHILE HE IS SO SICK DURING THE PERIOD HE IS AUTHORIZED TO ENGAGE IN SUCH TRAINING, BE ENTITLED TO PAY AND ALLOWANCES THE SAME AS IF HE WERE ACTUALLY PARTICIPATING IN SUCH TRAINING.

IN A-90621, DATED JANUARY 31, 1938, 17 COMP. GEN. 610, THERE WAS PRESENTED THE QUESTION WHETHER ENLISTED MEN OF THE NATIONAL GUARD IN FIELD TRAINING UNDER THE PROVISIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT, 39 STAT. 206, WHO HAD SUFFERED DISABILITY OR DISEASE WHILE ENGAGED AND PARTICIPATING IN ENCAMPMENTS, WERE ENTITLED TO MEDICAL TREATMENT DURING THE PERIOD OF THE ENCAMPMENT, THE FINDINGS OF THE BOARDS OF MEDICAL OFFICERS IN EACH CASE INDICATING THE DISABILITIES MAY HAVE BEEN INCURRED NOT IN LINE OF DUTY BUT NOT DUE TO MISCONDUCT, AND EXISTED PRIOR TO ENCAMPMENT. IT APPEARS FROM THE SUBMISSION IN THAT CASE THAT THE ENLISTED MEN WHO WERE ABLE TO DO SO RETURNED TO CAMP FOLLOWING THE DATE OF THEIR DISCHARGE FROM THE PRIVATE HOSPITAL UNTIL TERMINATION OF THE ENCAMPMENT. NO QUESTION WAS PRESENTED IN THAT CASE AS TO THE RIGHT OF THE ENLISTED MEN TO PAY DURING THE PERIOD OF THE ENCAMPMENT AND IT MAY BE ASSUMED THEY WERE REGULARLY PAID ON THE FIELD TRAINING PAY ROLLS OF THE ORGANIZATIONS TO WHICH THEY BELONGED, INCLUDING THE TIME SPENT IN HOSPITAL. IN THAT CASE IT WAS STATED AT PAGES 614, 615:

IT IS ASSUMED THAT FIVE ENLISTED MEN WERE OFFICIALLY EXAMINED JUST PRIOR TO OR UPON ARRIVAL AT THE ENCAMPMENT AT INDIANTOWN GAP AS REQUIRED BY REGULATIONS AND WERE ACCEPTED FOR THE TRAINING CONTEMPLATED BY THE NATIONAL DEFENSE ACT. THEY THUS APPEAR TO HAVE BEEN ENGAGED AND PARTICIPATING IN THE ENCAMPMENT AT THE TIME THE DISABILITIES MANIFESTED SUFFICIENT ACUTENESS TO REQUIRE HOSPITAL AND MEDICAL TREATMENT, AND INASMUCH AS SUCH DISABILITIES ARE NOT SHOWN TO HAVE BEEN THE RESULT OF THE INDIVIDUALS' OWN MISCONDUCT, THE APPROPRIATION FOR SUPPORT OF THE NATIONAL GUARD CURRENT AT THE TIME, ACT OF MAY 15, 1936, 49 STAT. 1298,"NATIONAL GUARD, ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD * * * EXPENSES, CAMPS OF INSTRUCTION, FIELD AND SUPPLEMENTAL TRAINING, AND INCLUDING MEDICAL AND HOSPITAL TREATMENT AUTHORIZED BY LAW," IS AVAILABLE FOR PAYMENT OF THE REASONABLE AND NECESSARY HOSPITAL AND MEDICAL TREATMENT DURING THE PERIOD OF THE ENCAMPMENT BUT NOT THEREAFTER, PROVIDED, OF COURSE, GOVERNMENT HOSPITAL FACILITIES WERE NOT AVAILABLE FOR PROPER TREATMENT. UPON CERTIFICATION BY THE PROPER OFFICIAL THAT SUCH GOVERNMENT FACILITIES WERE NOT AVAILABLE, PAYMENT OF THE VOUCHERS, WHICH ARE RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT * * *.

NO QUESTION ARISES IN THE INSTANT CASE REGARDING THE RIGHT TO CONTINUATION OF PAY AND ALLOWANCES AFTER TERMINATION OF THE COURSE OF INSTRUCTION UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507. COLONEL HULEN REPORTED FOR DUTY AS A STUDENT AT THE COURSE IN STRICT COMPLIANCE WITH THE ORDERS OF FEBRUARY 25, 1938, AND IT IS REPORTED THAT HE WAS PHYSICALLY EXAMINED NOT ONLY AT HIS HOME STATION BUT ALSO AT FORT LEAVENWORTH PRIOR TO ENTERING UPON THE COURSE, AND CONTINUED AS A STUDENT UNTIL COMPLETION OF THE COURSE OF INSTRUCTION AS DIRECTED. UNDER THE AFORESAID ORDERS THE COMMANDANT COULD HAVE RELIEVED THE OFFICER PRIOR TO COMPLETION OF THE COURSE, BUT THIS WAS NOT DONE. UNDER THE CIRCUMSTANCES DISCLOSED THE OFFICER WAS ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF TREATMENT IN HOSPITAL FOR A DISEASE WHICH DOES NOT APPEAR TO HAVE BEEN INCURRED IN LINE OF DUTY BUT WAS NOT THE RESULT OF HIS OWN MISCONDUCT, IT APPEARING FROM THE FACTS PRESENTED THAT THE ACUTE CONDITION DEVELOPED OR BECAME MANIFEST AFTER ENTERING UPON THE COURSE, THUS REQUIRING TREATMENT DURING A PORTION OF THE PERIOD FOR WHICH HE WAS ORDERED TO ACTIVE DUTY. PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.