B-27317, JULY 31, 1942, 22 COMP. GEN. 101

B-27317, JULY 31, 1942, 22 COMP. GEN. 101

GRATUITIES - SIX MONTHS' DEATH - ARMY RESERVE NURSES RESERVE NURSES IN THE ARMY NURSE CORPS WHO ARE CALLED OR ORDERED TO ACTIVE DUTY FOR EXTENDED MILITARY SERVICE IN EXCESS OF 30 DAYS ARE "NURSES OF THE REGULAR ARMY" WITHIN THE MEANING OF THE ACT OF MARCH 8, 1928, WHICH EXTENDS TO "NURSES OF THE REGULAR ARMY" THE 6 MONTHS' DEATH GRATUITY BENEFITS PROVIDED FOR DEPENDENTS OF OFFICER AND ENLISTED PERSONNEL OF THE REGULAR ARMY BY THE ACT OF DECEMBER 17, 1919.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. CARL WITCHER, UNITED STATES ARMY, JULY 31, 1942:

BY ENDORSEMENT OF JULY 9, 1942, THERE HAS BEEN RECEIVED YOUR REQUEST OF JULY 8, 1942, FOR DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER IN THE AMOUNT OF $420, SUBMITTED IN FAVOR OF MARY C. BIRCHFIELD, MOTHER AND DESIGNATED BENEFICIARY OF ANNABELLE BIRCHFIELD, DECEASED, NO. N -734,279, LATE SECOND LIEUTENANT, RESERVE NURSE, ARMY NURSE CORPS, AS 6 MONTHS' DEATH GRATUITY IN AN AMOUNT EQUAL TO 6 MONTHS' PAY AT THE RATE OF DECEASED'S PAY AT THE DATE OF HER DEATH.

IT APPEARS FROM DOCUMENTS WITH YOUR SUBMISSION THAT ANNABELLE BIRCHFIELD, RESERVE NURSE, ARMY NURSE CORPS, DIED AT 1:45 P.M., AUGUST 6, 1941, THE RESULT OF MULTIPLE INJURIES RECEIVED IN AN AUTOMOBILE ACCIDENT, DEATH BEING INSTANTANEOUS. A COPY OF THE BASIC REPORT OF THE DEATH OF LIEUTENANT BIRCHFIELD IS NOT WITH YOUR SUBMISSION, BUT IT WAS STATED IN A SECOND ENDORSEMENT OF SEPTEMBER 4, 1941, FROM THE SUPERINTENDENT, ARMY NURSE CORPS, TO THE FINANCE OFFICE, WASHINGTON, D.C., REFERRING TO REPORT OF DEATH, W.D., A.G.O. FORM 52, IN THIS CASE, THAT "DEATH WAS IN THE LINE OF DUTY AND NOT THE RESULT OF THE DECEASED'S OWN MISCONDUCT. APPROVED BY A BOARD OF OFFICERS AUGUST 18, 1941.'

IT IS STATED THAT ON W.D., A.G.O. FORM NO. 41, DATED MAY 3, 1941, THE DECEASED NAMED AS BENEFICIARY AND NEAREST RELATIVE, HER MOTHER, MRS. OSCAR BIRCHFIELD, WHO SIGNED THE SUBMITTED VOUCHER AS MRS. MARY C. BIRCHFIELD, IT APPEARING THAT HER HUSBAND HAD BEEN DEAD ABOUT 14 YEARS WHEN THE VOUCHER WAS EXECUTED. YOU STATE THAT YOU ARE "IN DOUBT AS TO WHETHER THE BENEFICIARY OF A RESERVE NURSE, ARMY NURSE CORPS, IS AUTHORIZED TO RECEIVE THE SIX MONTHS' GRATUITY PAY * * *"

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, PROVIDES:

THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE QUARTERMASTER GENERAL OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. THE SECRETARY OF WAR SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE ARMY.

SEC. 2. THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS MAKING THE PROVISIONS OF THIS ACT APPLICABLE TO OFFICERS OR ENLISTED MEN OF ANY FORCES OR TROOPS OF THE ARMY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR ARMY, AND NOTHING IN THIS ACT SHALL BE CONSTRUED TO APPLY IN COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT OR PROVISIONAL APPOINTMENTS IN THE REGULAR ARMY.

THE ACT OF MARCH 8, 1928, 45 STAT. 249, IS AS FOLLOWS:

THAT THE ACT OF CONGRESS APPROVED DECEMBER 17, 1919 ( FORTY-FIRST STATUTES AT LARGE, PAGE 367), ENTITLED "AN ACT TO PROVIDE FOR THE PAYMENT OF SIX MONTHS' PAY TO THE WIDOW, CHILDREN, OR OTHER DESIGNATED DEPENDENT RELATIVE OF ANY OFFICER OR ENLISTED MAN OF THE REGULAR ARMY WHOSE DEATH RESULTS FROM WOUNDS OR DISEASE NOT THE RESULT OF HIS OWN MISCONDUCT," SHALL APPLY TO NURSES OF THE REGULAR ARMY TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS TO OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY.

READING THESE TWO STATUTES IN COLLOCATION IT IS SEEN THAT UPON THE DEATH OF A NURSE OF THE REGULAR ARMY ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, FROM WOUNDS OR DISEASE NOT THE RESULT OF HER OWN MISCONDUCT, THE ACTS AUTHORIZE THE PAYMENT TO A PROPERLY DENOMINATED OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE OF AN AMOUNT EQUAL TO 6 MONTHS' PAY OF SAID NURSE AT THE RATE RECEIVED BY HER AT THE TIME OF HER DEATH. YOUR DOUBT APPARENTLY IS AS TO WHETHER RESERVE NURSES, WHEN ON ACTIVE DUTY, ARE "NURSES OF THE REGULAR ARMY," WITHIN THE MEANING OF THE 6 MONTHS' GRATUITY STATUTES QUOTED ABOVE.

U.S.C. TITLE 10, SECTION 3, PROVIDES THAT "THE REGULAR ARMY IS THE PERMANENT MILITARY ESTABLISHMENT, WHICH IS MAINTAINED BOTH IN PEACE AND IN WAR ACCORDING TO LAW.' SECTION 4 PROVIDES THAT THE REGULAR ARMY OF THE UNITED STATES SHALL CONSIST OF, INTER ALIA, THE MEDICAL DEPARTMENT. SECTION 81 PROVIDES THAT THE MEDICAL DEPARTMENT SHALL CONSIST OF, INTER ALIA," THE ARMY NURSE CORPS AS CONSTITUTED BY LAW.' SECTION 161 PROVIDES IN PERTINENT PART THAT:

THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY SHALL BE KNOWN AS THE " ARMY NURSE CORPS" AND SHALL CONSIST OF ONE SUPERINTENDENT * * *; OF AS MANY CHIEF NURSES, NURSES, AND RESERVE NURSES AS MAY FROM TIME TO TIME BE NEEDED AND PRESCRIBED OR ORDERED BY THE SECRETARY OF WAR, * * * ALL OF WHOM SHALL BE GRADUATES OF HOSPITAL TRAINING SCHOOLS AND SHALL HAVE PASSED SUCH PROFESSIONAL, MORAL, MENTAL, AND PHYSICAL EXAMINATIONS AS SHALL BE PRESCRIBED BY THE SECRETARY OF WAR. ( ITALICS SUPPLIED.)

SECTION 163 PROVIDES THAT RULES AND REGULATIONS PRESCRIBING THE DUTIES OF THE MEMBERS OF THE ARMY NURSE CORPS SHALL BE PRESCRIBED BY THE SURGEON GENERAL OF THE UNITED STATES ARMY, SUBJECT TO THE APPROVAL OF THE SECRETARY OF WAR. SECTION 782 OF THE SAME TITLE PRESCRIBES THAT RESERVE NURSES WHEN UPON ACTIVE DUTY WILL RECEIVE THE SAME PAY AS NURSES WHO HAVE SERVED IN THE CORPS FOR PERIODS CORRESPONDING TO THE FULL PERIOD OF THEIR ACTIVE SERVICE. THE PAY AND ALLOWANCES OF MEMBERS OF THE ARMY NURSE CORPS ARE PRESCRIBED BY U.S.C. TITLE 37, SECTION 22. THE ABOVE CITED SECTIONS OF TITLE 10 OF THE CODE RELATIVE TO THE ARMY NURSE CORPS ARE DERIVED FROM THE ACT OF JULY 9, 1918, 40 STAT. 879, AS AMENDED. THAT ACT INCLUDED RESERVE NURSES, AS WELL AS NURSES AND CHIEF NURSES IN THE PERSONNEL OF THE ARMY NURSE CORPS, OTHER PERSONNEL PROVIDED FOR BY THE STATUTE NOT BEING OF CONCERN HERE. LIKEWISE, THE ACT OF FEBRUARY 2, 1901, 31 STAT. 748, 753, BY WHICH THE NURSE CORPS (FEMALE) WAS ESTABLISHED, ALSO PROVIDED THAT THE CORPS SHOULD CONSIST OF A SUPERINTENDENT "AND OF AS MANY CHIEF NURSES, NURSES AND RESERVE NURSES AS MAY BE NEEDED. RESERVE NURSES MAY BE ASSIGNED TO ACTIVE DUTY WHEN THE EMERGENCY OF THE SERVICE DEMANDS, BUT SHALL RECEIVE NO COMPENSATION EXCEPT WHEN ON SUCH DUTY * * *.'

THERE ARE SOME POINTS OF DIFFERENCE BETWEEN NURSES AND RESERVE NURSES WHICH IT MAY BE WELL TO NOTE, ALTHOUGH SUCH DIFFERENTIATION IS IN THE REGULATIONS RATHER THAN IN THE STATUTES. FOR INSTANCE, AR 40-20 PROVIDES THAT NO APPLICANT FOR ORIGINAL APPOINTMENT AS NURSE WILL BE APPOINTED UNLESS SHE SHALL AGREE TO SERVE FOR 3 YEARS "EXCEPT DURING TIMES OF NATIONAL EMERGENCY WHEN THIS REQUIREMENT MAY BE WAIVED.' RESERVE NURSES APPOINTED AS PRESCRIBED IN AR 40-20, PARAGRAPH 22, ARE NOT REQUIRED TO AGREE TO SERVE FOR 3 YEARS, BUT "MUST AGREE TO SERVE IN TIME OF THREATENED OR ACTUAL HOSTILITIES AND TO HOLD THEMSELVES IN READINESS TO JOIN FOR DUTY ON THE DAY THE UNIT OR OTHER ACTIVITY TO WHICH THEY ARE ASSIGNED BEGINS TO MOBILIZE FOR ACTIVE SERVICE.' AR 40 20, PARAGRAPH 22, FURTHER PROVIDES THAT:

THAT UPON REPORTING FOR ACTIVE MILITARY SERVICE RESERVE NURSES AS CONSTITUENT MEMBERS OF THE ARMY NURSE CORPS, BECOME SUBJECT TO THESE REGULATIONS AND ALL OTHER REGULATIONS GOVERNING ARMY NURSES, WITH THE FOLLOWING EXCEPTIONS:

(1) AGREEMENT TO SERVE FOR 3 YEARS IS NOT REQUIRED.

(2) EXCEPT IN CASES OF CONDUCT PREJUDICIAL TO THE SERVICE, A RESERVE NURSE WILL, IF SHE SO DESIRES, BE FURNISHED TRAVEL ORDERS TO HER HOME BEFORE THE ORDER OF RELIEF FROM ACTIVE DUTY SHALL TAKE EFFECT. ( ITALICS SUPPLIED.) SUBPARAGRAPH (3) PRESCRIBES THE FORM OF CERTIFICATE TO BE ISSUED TO THE RESERVE NURSE UPON RELIEF FROM ACTIVE MILITARY SERVICE, EITHER HONORABLE OR "FOR CONDUCT PREJUDICIAL TO THE SERVICE.'

HOWEVER, SUBJECT TO THE ABOVE-NOTED EXCEPTIONS, IT WOULD APPEAR THAT RESERVE NURSES SUBSEQUENT TO SELECTION, APPOINTMENT, AND ENROLLMENT AS PRESCRIBED IN AR 40-20, PARAGRAPH 22, ARE IN FACT MEMBERS OF THE ARMY NURSE CORPS, SUBJECT TO COMMAND TO SERVICE IN TIME OF NEED, ALTHOUGH NOT IN AN ACTIVE STATUS UNLESS AND UNTIL SO CALLED, AND NOT ENTITLED TO COMPENSATION EXCEPT WHEN ON ACTIVE DUTY; THAT UPON REPORTING FOR ACTIVE MILITARY SERVICE THEY, AS CONSTITUENT MEMBERS OF THE ARMY NURSE CORPS, ARE SUBJECT TO ALL REGULATIONS GOVERNING ARMY NURSES, AND ARE ENTITLED TO THE SAME PAY AND ALLOWANCES AND SUBJECT TO THE SAME DISCIPLINARY CONTROL AS OTHER NURSES IN THE CORPS. IT WOULD SEEM, THEREFORE, THAT WHILE IN ACTIVE STATUS UNDER COMPETENT ORDERS, RESERVE NURSES IN THE ARMY NURSE CORPS ARE TO ALL INTENTS AND PURPOSES "NURSES OF THE REGULAR ARMY" WITHIN THE MEANING OF THE ACT OF MARCH 8, 1928, SUPRA, AND HENCE ENTITLED TO THE BENEFITS OF THE ACT OF DECEMBER 17, 1919. CF. THORSEN V. UNITED STATES, 79 C.1CLS. 282.

THIS CONCLUSION IS FORTIFIED BY OTHER CONSIDERATIONS WHICH PROPERLY MAY BE NOTED IN THIS CONNECTION AS TENDING TO ILLUSTRATE THE POLICY OF CONGRESS ON THE GENERAL SUBJECT. THE ACT OF DECEMBER 17, 1919, CONFINED THE BENEFITS OF THE 6 MONTHS' DEATH GRATUITY TO "OFFICERS AND ENLISTED MEN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY," AND SECTION 2 OF THAT ACT EXPRESSLY EXCLUDED FROM ITS BENEFITS "OFFICERS AND ENLISTED MEN OF ANY FORCES OR TROOPS OF THE ARMY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR ARMY.' THE ACT OF MARCH 8, 1928, EXTENDED THE BENEFITS OF THE ACT OF DECEMBER 17, 1919,"TO NURSES OF THE REGULAR ARMY TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS TO OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY.' AN ACT OF APRIL 3, 1939, 53 STAT. 557, EXTENDED TO OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES OTHER THAN OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF 30 DAYS, CERTAIN ENUMERATED BENEFITS THERETOFORE AVAILABLE ONLY TO PERSONNEL OF THE REGULAR ARMY. IN VIEW OF THE EXPRESS PHRASEOLOGY OF THAT ACT, THIS OFFICE WAS CONSTRAINED TO HOLD THAT THE BENEFITS CONFERRED THEREBY WERE PERSONAL TO THE SOLDIER AND DID NOT INCLUDE THE 6 MONTHS' DEATH GRATUITY TO DEPENDENTS. BY AN ACT OF DECEMBER 10, 1941, 55 STAT. 796, AND FOR THE DECLARED PURPOSE OF MEETING SUCH DECISIONS OF THIS OFFICE, THE ACT OF APRIL 3, 1939, WAS AMENDED TO PROVIDE, IN TOTIDEM VERBIS, THAT THE BENEFITS CONFERRED BY THAT ACT SHOULD INCLUDE "FOR THEIR DEPENDENTS THE BENEFITS OF THE ACT OF DECEMBER 17, 1919 (41 STAT. 367), AS AMENDED.'

IN A DECISION OF THIS OFFICE OF JULY 15, 1942, (B-25768), 22 COMP. GEN. 37, IT WAS POINTED OUT THAT ALTHOUGH THE ACT IN QUESTION, EVEN AS AMENDED, FOR REASONS STATED IN SAID DECISION LEFT ROOM FOR DOUBT AS TO ITS APPLICABILITY UNDER THE FACTS UPON WHICH SAID DECISION WAS RENDERED, IN VIEW OF THE HISTORY OF THE LEGISLATION, AND IN THE LIGHT OF EXISTING CONDITIONS, THIS OFFICE FELT JUSTIFIED IN THE CONCLUSION THAT THE CONGRESS INTENDED TO ASSURE TO THE PERSONNEL OF THE EMERGENCY FORCES WHEN ON ACTIVE DUTY, AND TO THEIR DEPENDENTS, EVERY BENEFIT AVAILABLE TO THE PERSONNEL OF THE REGULAR ARMY DURING TIME OF WAR OR PEACE; THAT TO DENY TO ANY MEMBER OF THE EMERGENCY FORCES OR TO THOSE THEY LEAVE BEHIND ANY BENEFITS AVAILABLE TO OTHERS WOULD LEAD TO INJUSTICES, INEQUALITY, AND ABSURD CONSEQUENCES; AND THAT A PURPOSE OF SUCH GRIEVOUS DISCRIMINATION WAS NOT TO BE IMPUTED TO THE CONGRESS.

TO APPLY ANOTHER RULE HERE WOULD BE TO DENY TO A RESERVE NURSE IN THE ARMY NURSE CORPS, WHILE SERVING ON ACTIVE DUTY PURSUANT TO COMPETENT AUTHORITY AND TO HER STATUTORY OR DESIGNATED DEPENDED RELATIVES IN CASE OF HER DEATH, VALUABLE BENEFITS APPARENTLY NOW AVAILABLE TO ALL OTHER PERSONNEL OF THE MILITARY ESTABLISHMENT OTHERWISE FALLING WITHIN THE CATEGORY OF THE SEVERAL DEATH GRATUITY STATUTES.

IT REASONABLY FOLLOWS THAT WHEN THE DEATH OF A RESERVE NURSE, WHILE SHE IS ON ACTIVE DUTY, RESULTS FROM WOUNDS OR DISEASE NOT THE RESULT OF HER OWN MISCONDUCT, AS HERE, PAYMENT OF THE 6 MONTHS' DEATH GRATUITY TO A DEPENDENT DESIGNATED RELATIVE PROPERLY WITHIN THE STATUTE, IS AUTHORIZED IF OTHERWISE CORRECT, PROVIDED, BY ANALOGY WITH LATER GRATUITY STATUTES, SHE HAS BEEN ,CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS.'

YOU ARE ACCORDINGLY ADVISED THAT PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.