B-108967, MAY 15, 1952

B-108967, MAY 15, 1952

PRECIS-UNAVAILABLE

MAJOR C. F. LAYTON, FC, DEPT. OF THE ARMY:

BY FOURTH INDORSEMENT DATED APRIL 2, 1952, OF THE CHIEF OF FINANCE OF THE ARMY, THERE WAS RECEIVED YOUR COMMUNICATION OF JANUARY 24, 1952, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER WHICH, WITH SUPPORTING PAPERS, WAS TRANSMITTED THEREWITH, IN FAVOR OF LIEUTENANT COLONEL NEIL M. COCHRAN, WASHINGTON NATIONAL GUARD, FOR ACTIVE DUTY PAY AND ALLOWANCES CLAIMED TO BE DUE FOR THE PERIOD FROM MAY 8 TO NOVEMBER 6, 1951.

BY PARAGRAPH 3, SPECIAL ORDERS NO. 98 HEADQUARTERS MILITARY DEPARTMENT, STATE OF WASHINGTON, DATED APRIL 8, 1951, LIEUTENANT COLONEL COCHRAN WAS DIRECTED TO PROCEED ON APRIL 25, 1951, FROM HIS HOME, SNOHOMISH, WASHINGTON, AND REPORT TO FORT LEAVENWORTH, KANSAS, ON APRIL 29, 1951, TO ATTEND A "REFRESHER CRSE." UPON COMPLETION OF THE COURSE, ON OR ABOUT MAY 5, 1951, HE WAS DIRECTED TO RETURN TO HIS HOME. IT APPEARS FROM THE PAPERS SUBMITTED WITH THE VOUCHER THAT AT ABOUT 11:00 P.M., ON MAY 4, 1951, THE OFFICER, UPON LEAVING THE MAIN OFFICER'S CLUB AT FORT LEAVENWORTH TO RETURN TO HIS QUARTERS, FELL DOWN A FLIGHT OF UNLIGHTED STEPS INJURING HIS LEFT SHOULDER. HE WAS EXAMINED THE NEXT MORNING AT THE FORT LEAVENWORTH STATION HOSPITAL AND HIS INJURY WAS DIAGNOSED AS A SHOULDER SEPARATION AND SEVERE SPRAIN. HOWEVER, HE WAS NOT HOSPITALIZED AT FORT LEAVENWORTH. THE OFFICER STATES THAT HE WAS TOLD BY THE ATTENDING PHYSICIAN THAT HE SHOULD BE HOSPITALIZED BUT THAT, AS HIS CLASS ENDED AT 11:00 A.M. THAT DAY AND HE HAD PLANNED TO RETURN HOME AT 3:00 P.M., HE OBTAINED PERMISSION TO TRAVEL TO SEATTLE AND REPORT TO THE FORT LAWTON STATION HOSPITAL, WHICH WAS NEAR HIS HOME. THE OFFICER STATES FURTHER THAT UPON HIS ARRIVAL AT FORT LAWTON, HE ASKED THE HOSPITAL OFFICIALS WHETHER IT WOULD BE NECESSARY FOR HIM TO REMAIN IN THE HOSPITAL AND WAS INFORMED THAT IF HE HAD FACILITIES AVAILABLE, HE COULD REPORT EACH DAY FOR TREATMENT, WHICH HE DID. IT IS INDICATED THAT THE OUT-PATIENT TREATMENT AT FORT LAWTON WAS DISCONTINUED AUGUST 3, 1951, BECAUSE NO FURTHER IMPROVEMENT IN THE OFFICER'S CONDITION COULD BE EFFECTED WITH THE FACILITIES AT THAT INSTALLATION. ON NOVEMBER 7, 1951, HE WAS ADMITTED TO THE HOSPITAL AT FORT LAWTON UNDER THE PROVISIONS OF PARAGRAPH 1, SPECIAL ORDERS NO. 310, HEADQUARTERS MILITARY DEPARTMENT, STATE OF WASHINGTON, DATED NOVEMBER 6, 1951, AND WAS TRANSFERRED TO MADIGAN GENERAL HOSPITAL, FORT LEWIS, WASHINGTON, ON NOVEMBER 12, 1951. IT IS DISCLOSED THAT THE DEPUTY POST COMMANDER, FORT LEAVENWORTH, THE COMMANDING GENERAL OF THE FIFTH ARMY AND THE CHIEF, NATIONAL GUARD BUREAU, HAVE APPROVED A FINDING THAT THE OFFICER'S INJURY WAS INCURRED IN LINE OF DUTY AND NOT DUE TO MISCONDUCT

SECTION 3 OF THE ACT OF JUNE 20, 1949, 63 STAT. 202, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

"SEC. 3. ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD OF THE UNITED STATES, BOTH GROUND AND AIR, THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA -

"(2) IF ENGAGED FOR ANY PERIOD OF TIME IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SUCH SECTIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED (SECTION 5, 81, 92, 94, 97, OR 99), SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY."

SUCH PROVISIONS ARE SUBSTANTIALLY THE SAME AS THE PROVISIONS OF SECTIONS 1 AND 2 OF THE SAID ACT RELATING TO RESERVE PERSONNEL OF THE NAVY AND ARMY AND THEIR PURPOSE IS TO EXTEND TO THE ENUMERATED NATIONAL GUARD MEMBERS "THE SAME BENEFITS AS ARE COVERED IN SECTIONS 1 AND 2." PAGE 2, REPORT NO. 582, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, 81ST CONGRESS, 1ST SESSION, TO ACCOMPANY S. 213, THE BILL WHICH BECAME THE ACT OF JUNE 20, 1949. IT WAS HELD IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, THAT UNDER THE PROVISIONS OF SECTION 1 OF THE SAID STATUTE, A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON TRAINING DUTY FOR ANY PERIOD OF TIME IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED BECAUSE OF SUCH INJURY AND WHILE AWAITING ON DISABILITY RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. THE PRINCIPLES OF SUCH DECISION ARE LIKEWISE APPLICABLE TO MEMBERS OF THE NATIONAL GUARD UNDER SECTION 3 OF THE STATUTE.

IN THIS RESPECT NATIONAL GUARD REGULATIONS 24, DATED AUGUST 1, 1950, RELATING TO ADMINISTRATION OF THE BENEFITS PROVIDED BY SECTION 3 OF THE ACT OF JUNE 20, 1949, FOR MEMBERS OF THE NATIONAL GUARD, PROVIDES:

"4. DEFINITIONS. - ***

K. HOSPITALIZATION. - THE TERM "HOSPITALIZATION' AS USED HEREIN WILL INCLUDE ALL OF THE PERIOD BETWEEN THE DATE OF ENTRY INTO THE HOSPITAL AND THE EFFECTIVE DATE OF THE HOSPITAL ORDERS WHICH TERMINATE THE HOSPITALIZATION AS ISSUED BY THE HOSPITAL AUTHORITIES. ***"

PARAGRAPHS 6, 7, AND 8 OF THE SAID REGULATIONS SET OUT THE PROCEDURE TO BE FOLLOWED IN HOSPITALIZING MEMBERS OF THE NATIONAL GUARD INJURED DURING TRAINING DUTY AND PARAGRAPH 9 THEREOF, WHICH GOVERNS THE DISPOSITION OF HOSPITALIZED CASES, STATES -

"9. ***

"C. ***

"(2) IF OUT-PATIENT TREATMENT IS INDICATED AFTER HOSPITALIZATION IS TERMINATED AND CIRCUMSTANCES PERMIT THE INDIVIDUAL TO AVAIL HIMSELF OF THE TREATMENT, SUCH OUT-PATIENT TREATMENT IS AUTHORIZED. IN SUCH CASES NO BASIC PAY AND ALLOWANCES ACCRUE TO THE INDIVIDUAL AFTER HOSPITALIZATION IS TERMINATED."

PARAGRAPH 11 OF THE SAID REGULATIONS DIRECTS THAT THERE BE TYPED ON THE PAYROLL UNDER THE NAME OF THE INDIVIDUAL CONCERNED A STATEMENT THAT HE IS, "AB SK STA HOSP, FT. , TX (ACT OF JUNE 20, 1949) (PUB. LAW 108, 81ST CONGRESS FM TO INCL. SEE CERT ATCHD." IT ALSO REQUIRES THAT THE PAY INSTRUMENT IN SUCH CASES BE SUPPORTED BY A SPECIAL CERTIFICATE RELATING TO THE PERIOD OF HOSPITALIZATION, AND PROVIDES:

"C. OBLIGATIONS. - NO FUNDS WILL BE OBLIGATED FOR BASIC PAY AND ALLOWANCES FOR NATIONAL GUARD PERSONNEL IN AN ACTIVE DUTY FOR TRAINING OR TRAINING DUTY STATUS, INCLUDING AUTHORIZED HOSPITALIZATION FOLLOWING RELIEF FROM DUTY, UNTIL FINAL APPROVAL OF LINE OF DUTY STATUS BY THE SECRETARY OF THE ARMY."

RESPECTING THE PERIOD UP TO NOVEMBER 6, 1951, FOR WHICH THE PRESENT CLAIM IS MADE, IT IS CLEAR THAT THERE WOULD BE NO AUTHORITY FOR PAYMENT OF PAY AND ALLOWANCES SUBSEQUENT TO AUGUST 3, 1951, THE DAY UPON WHICH TREATMENT WAS DISCONTINUED AT FORT LAWTON, AND SINCE THE OFFICER WAS NOT HOSPITALIZED DURING THE PERIOD OF HIS OUT PATIENT TREATMENT, PRIOR TO THAT DATE, IT IS NOT ESTABLISHED THAT SUCH PAY AND ALLOWANCE ARE AUTHORIZED DURING THAT PERIOD. WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED, THE LAW AND REGULATIONS PLAINLY CONTEMPLATE THAT PAY AND ALLOWANCES WILL BE PAID ONLY FOR THE PERIOD THE INDIVIDUAL CONCERNED IS IN A HOSPITAL STATUS. SEE 30 COMP. GEN. 185; ID. 476. IN THAT CONNECTION, IN A CERTIFICATE DATED JUNE 14, 1951, LIEUTENANT COLONEL CAREY C. HARMAN, INSPECTOR GENERAL'S DEPARTMENT, WHO INVESTIGATED THIS MATTER, CERTIFIED, IN MATERIAL PART, AS FOLLOWS:

"*** SINCE LT COL COCHRAN HAD REPORTED ORIGINALLY AT FT. LEAVENWORTH STATION HOSPITAL FOR TREATMENT, HE COULD NOT BE PICKED UP BY FT. LAWTON WITHOUT BEING TRANSFERRED THROUGH CHANNELS BY FT. LEAVENWORTH REPORTING TO FIFTH ARMY, WHICH IN TURN WOULD REPORT THE CASE TO SIXTH ARMY FOR DISPOSITION. NO REPORT HAD BEEN RECEIVED THROUGH CHANNELS OR DIRECT FROM FT. LEAVENWORTH. IT WAS THEREFORE IMPOSSIBLE FOR STATION HOSPITAL FT. LAWTON TO ADMIT LT COL COCHRAN AND REGISTER HIM AS A PATIENT. LT COL COCHRAN WOULD, HOWEVER, CONTINUE TO RECEIVE TREATMENT UNTIL HE HAD REACHED MAXIMUM BENEFIT, AS WAS CUSTOMARY FOR CIVILIAN COMPONENT PERSONNEL."

COLONEL COCHRAN WAS NOT HOSPITALIZED AT FORT LEAVENWORTH AND HE WAS NEVER ADMITTED TO THE FORT LAWTON HOSPITAL AND REGISTERED AS A PATIENT DURING THE PERIOD COVERED BY HIS CLAIM. HENCE, HE HAD NO HOSPITAL STATUS WHILE HE WAS BEING TREATED AT EITHER OF THOSE FACILITIES. HIS STATUS APPEARS TO HAVE BEEN ONLY THAT OF A VOLUNTARY OUT-PATIENT. UNDER THE LANGUAGE OF THE ABOVE-QUOTED REGULATIONS NO PAY AND ALLOWANCES ACCRUE TO MEMBERS OF THE NATIONAL GUARD DURING SUCH VOLUNTARY OUT-PATIENT TREATMENT.

YOU ARE ADVISED ACCORDINGLY THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED IN THIS OFFICE.