B-160743, MAR. 24, 1967

B-160743, MAR. 24, 1967

TO MRS. WILDA L. HUBRIGHT:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF PRIVATE HOSPITALIZATION AND MEDICAL EXPENSES AGGREGATING $1,292.91, INCURRED BY YOU DURING THE PERIOD OCTOBER 3, 1960, TO AUGUST 21, 1961, AS THE WIFE OF THE LATE CARL HUBRIGHT, UNITED STATES AIR FORCE, RETIRED.

THE PAPERS WHICH ACCOMPANIED YOUR CLAIM SHOW THAT YOUR LATE HUSBAND WAS SEPARATED FROM THE AIR FORCE ON JUNE 13, 1960, BY A GENERAL DISCHARGE, AND THAT HIS MILITARY RECORDS WERE CORRECTED ON AUGUST 16, 1962, TO SHOW THAT HE WAS NOT DISCHARGED FROM THE AIR FORCE BUT THAT ON JUNE 13, 1960, HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH ENTITLEMENT TO DISABILITY RETIRED PAY EFFECTIVE THE FOLLOWING DAY. IT APPEARS THAT HE DIED ON SEPTEMBER 19, 1964. PRIOR TO THE DATE OF THE CORRECTION OF YOUR HUSBAND'S MILITARY RECORDS, YOU INCURRED PRIVATE HOSPITALIZATION AND MEDICAL EXPENSES, TOTALING $1,292.91, IN CONNECTION WITH THE BIRTH OF YOUR THIRD CHILD ($311.99), AN APPENDECTOMY ($314.96) AND A GALL BLADDER OPERATION ($665.96).

YOU PRESENTED A CLAIM TO THE DEPARTMENT OF THE AIR FORCE FOR PAY, TRAVEL AND TRANSPORTATION ALLOWANCES AND OTHER BENEFITS, INCLUDING REIMBURSEMENT FOR THE ABOVE HOSPITALIZATION AND MEDICAL EXPENSES, BELIEVED TO BE DUE AS A RESULT OF THE CHANGE IN YOUR HUSBAND'S MILITARY RECORDS. AFTER HAVING DETERMINED THAT NO PART OF THE HOSPITALIZATION AND MEDICAL EXPENSES IS PAYABLE FROM AIR FORCE FUNDS, THE DEPARTMENT OF THE AIR FORCE, HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, ON JANUARY 16, 1967, TRANSMITTED TO THIS OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236, THAT PORTION OF YOUR CLAIM WHICH RELATES TO SUCH EXPENSES.

THE PROVISION OF LAW WHICH AUTHORIZED MEDICAL BENEFITS FOR DEPENDENTS OF RETIRED MILITARY PERSONNEL AND WHICH WAS IN EFFECT DURING THE PERIOD OF YOUR CLAIM WAS 10 U.S.C. 1076 (B) (1958 ED.) DERIVED FROM SECTION 301 (C) OF THE DEPENDENTS' MEDICAL CARE ACT APPROVED JUNE 7, 1956, CH. 374, 70 STAT. 253. THE SECTION READS AS FOLLOWS:

"UNDER JOINT REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE AND THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, A DEPENDENT OF A MEMBER OR FORMER MEMBER WHO IS, OR WAS AT THE TIME OF HIS DEATH, ENTITLED TO RETIRED OR RETAINER PAY, * * * MAY, UPON REQUEST, BE GIVEN THE MEDICAL AND DENTAL CARE PRESCRIBED BY SECTION 1077 OF THIS TITLE IN FACILITIES OF THE UNIFORMED SERVICES, SUBJECT TO THE AVAILABILITY OF SPACE AND FACILITIES AND THE CAPABILITIES OF THE MEDICAL AND DENTAL STAFF.'

REGULATIONS IMPLEMENTING THE ABOVE PROVISION OF LAW ARE CONTAINED IN SECTION 4 OF THE JOINT DIRECTIVE FOR IMPLEMENTATION OF THE DEPENDENTS' MEDICAL CARE ACT (DEPARTMENT OF DEFENSE DIRECTIVE NO. 6010.4, REPRINT DATED NOVEMBER 20, 1959) AND SECTION D, AIR FORCE REGULATION NO. 160-41, DATED DECEMBER 16, 1959. THOSE REGULATIONS ARE IN LINE WITH THE LANGUAGE OF THE LAW. OTHER PROVISIONS OF LAW AND REGULATIONS GRANT THE IDENTICAL MEDICAL BENEFITS TO THE RETIRED MEMBERS THEMSELVES.

THERE IS NOTHING IN THE ABOVE-QUOTED PROVISION OF LAW OR IMPLEMENTING REGULATIONS WHICH PERMITTED DEPENDENTS OF RETIRED MEMBERS TO OBTAIN PRIVATE HOSPITALIZATION AND MEDICAL TREATMENT AND SERVICES AT GOVERNMENT EXPENSE OR WHICH WOULD SERVE AS AUTHORITY FOR REIMBURSING SUCH DEPENDENTS FOR AMOUNTS SO EXPENDED. RATHER, THE LAW PERMITS THE FURNISHING OF MEDICAL SERVICES IN KIND TO DEPENDENTS OF RETIRED MEMBERS IN A FACILITY OF A UNIFORMED SERVICE IF REQUESTED, CONDITIONED UPON THE AVAILABILITY OF SPACE AND FACILITIES AND THE CAPABILITIES OF THE MEDICAL STAFF. THE FURNISHING OF THOSE SERVICES IS NOT MANDATORY, BUT PERMISSIVE, AND SUCH DEPENDENTS ARE NOT ENTITLED TO THE SERVICES AS A MATTER OR RIGHT. ACCORDINGLY, WE ARE NOT AWARE OF ANY LEGAL AUTHORITY FOR REIMBURSING YOU FOR THE EXPENSES INCURRED.

THE MERITORIOUS CLAIMS ACT OF 1928, SUPRA, PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATION. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER THE OTHERS IN SIMILAR CIRCUMSTANCES.

WHILE IT IS UNFORTUNATE THAT UNDER THE CIRCUMSTANCES YOU COULD NOT AVAIL YOURSELF OF MEDICAL CARE IN A FACILITY OF A UNIFORMED SERVICE DURING THE PERIOD BETWEEN THE DATE OF YOUR HUSBAND'S DISCHARGE FROM THE AIR FORCE AND THE DATE OF THE CORRECTION OF HIS RECORDS--- IF SUCH CARE WAS AVAILABLE UNDER THE CONDITIONS OF THE LAW--- WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. THERE HAVE BEEN NUMEROUS CASES IN WHICH A MEMBER'S RECORDS HAVE BEEN CORRECTED AFTER DISCHARGE AND PRESUMABLY THERE WILL BE MANY SITUATIONS LIKE YOURS, THAT IS, WHERE HOSPITALIZATION AND MEDICAL SERVICES IN GOVERNMENT FACILITIES WERE NOT AVAILABLE TO DEPENDENTS PRIOR TO THE DATE OF THE CORRECTION OF THE MEMBER'S MILITARY RECORDS. FURTHERMORE, IT MAY BE POINTED OUT THAT WE HAVE ALSO HELD THAT IN SUCH INSTANCES THE MEMBERS THEMSELVES ARE NOT ENTITLED TO REIMBURSEMENT FOR AMOUNTS PAID ON ACCOUNT OF PRIVATE MEDICAL SERVICES PRIOR TO THE DATE THEIR MILITARY RECORDS WERE CORRECTED. SEE ENCLOSED COPY OF DECISION OF JANUARY 21, 1963, B 148868.

ACCORDINGLY, WE ARE OF THE OPINION THAT YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INVOLVED DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928. NO ACTION, THEREFORE, WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.

THE HOSPITAL AND DOCTORS' BILLS WHICH ACCOMPANIED YOUR CLAIM ARE ENCLOSED.