B-53614, NOVEMBER 23, 1945, 25 COMP. GEN. 415

B-53614, NOVEMBER 23, 1945, 25 COMP. GEN. 415

LONGEVITY PAY; REENLISTMENT ALLOWANCE - NAVY ENLISTED MEN - SERVICE CREDITS - ABSENCES NOT CONSTITUTING MISCONDUCT IN VIEW OF THE PROVISO IN SECTION 2 OF THE ACT OF SEPTEMBER 27, 1944, THAT VENEREAL DISEASE INCURRED DURING NAVAL SERVICE SHALL NOT BE PRESUMED TO BE DUE TO "WILLFUL MISCONDUCT" IF NAVY REGULATIONS REQUIRING THE PERSON TO REPORT AND RECEIVE TREATMENT ARE COMPLIED WITH, THE TIME LOST FROM DUTY BY AN ENLISTED MAN BECAUSE OF SUCH DISEASE MAY NOT BE REGARDED AS AN ABSENCE FROM DUTY DUE TO MISCONDUCT WHICH IS REQUIRED TO BE MADE GOOD UNDER THE ACT OF AUGUST 29, 1916, AS AMENDED, BUT MAY BE COUNTED AS SERVICE FOR LONGEVITY PAY AND REENLISTMENT ALLOWANCE PURPOSES PROVIDED HE REPORTS AND RECEIVES TREATMENT FOR SUCH DISEASE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 23, 1945:

I HAVE YOUR LETTER OF NOVEMBER 1, 1945 (FILE, JAG:II:WJG:ZP25/2) (MM (1) (, REQUESTING DECISION ON A QUESTION PRESENTED THEREIN, AS FOLLOWS:

SHOULD TIME LOST FROM DUTY DUE TO VENEREAL DISEASE BE DEDUCTED FROM TOTAL TIME SERVED IN COMPUTING LENGTH OF SERVICE FOR LONGEVITY AND RE ENLISTMENT ALLOWANCE, AFTER 27 SEPTEMBER 1944, EVEN THOUGH THE PERSON CONCERNED COMPLIED WITH EXISTING NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE?

THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

HEREAFTER NO OFFICER OR ENLISTED MAN IN THE NAVY OR MARINE CORPS IN ACTIVE SERVICE WHO SHALL BE ABSENT FROM DUTY ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT, SHALL RECEIVE PAY FOR THE PERIOD OF SUCH ABSENCE, THE TIME SO ABSENT AND THE CAUSE THEREOF TO BE ASCERTAINED UNDER SUCH PROCEDURE AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT AN ENLISTMENT SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS OR OTHER MISCONDUCT.

THE ACT OF MAY 17, 1926, 44 STAT. 557, 558, CONTAINS THE FOLLOWING PROVISIONS:

THAT HEREAFTER NO PERSON IN ACTIVE SERVICE IN THE MILITARY OR NAVAL SERVICE WHO SHALL BE ABSENT FROM HIS REGULAR DUTIES FOR MORE THAN ONE DAY AT ANY ONE TIME ON ACCOUNT OF THE EFFECTS OF A DISEASE, AS DISTINGUISHED FROM INJURY, WHICH IS DIRECTLY ATTRIBUTABLE TO AND IMMEDIATELY FOLLOWS HIS OWN INTEMPERATE USE OF ALCOHOLIC LIQUOR OR HABIT-FORMING DRUGS, SHALL, EXCEPT AS HEREINAFTER PROVIDED, BE ENTITLED TO ANY PAY, AS DISTINGUISHED FROM ALLOWANCES, FOR THE PERIOD OF SUCH ABSENCE.

SEC. 2. THAT HEREAFTER NO PERSON IN ACTIVE SERVICE IN THE MILITARY OR NAVAL SERVICE WHO SHALL BE ABSENT FROM HIS REGULAR DUTIES FOR MORE THAN ONE DAY AT ANY ONE TIME ON ACCOUNT OF THE DIRECT EFFECTS OF A VENEREAL DISEASE DUE TO HIS OWN MISCONDUCT, SHALL, EXCEPT AS HEREAFTER PROVIDED, BE ENTITLED TO ANY PAY, AS DISTINGUISHED FROM ALLOWANCES, FOR THE PERIOD OF SUCH ABSENCE: PROVIDED, THAT SUCH ABSENCE IS WITHIN A PERIOD OF ONE YEAR FOLLOWING THE APPEARANCE OF THE INITIAL SYMPTOMS OF SUCH VENEREAL DISEASE AND REGARDLESS OF WHETHER THE APPEARANCE OF THE INITIAL SYMPTOMS OCCURS PRIOR OR SUBSEQUENT TO THE DATE OF ENTRY INTO THE SERVICE.

SEC. 3. THAT FOR ALL PURPOSES WITHIN THE SCOPE OF THIS ACT THE PERIOD OF ABSENCE AND THE CAUSE THEREOF SHALL BE DETERMINED UNDER SUCH PROCEDURE AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AND SUCH DETERMINATION SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES.

SEC. 5. THAT THE ACTS APPROVED APRIL 27, 1914 ( THIRTY-EIGHTH STATUTES AT LARGE, PAGES 353 AND 354), AUGUST 29, 1916 ( THIRTY-NINTH STATUTES AT LARGE, PAGE 580), AND JULY 1, 1918 ( FORTIETH STATUTES AT LARGE, PAGE 717) SO FAR AS RELATES TO FORFEITURE OF PAY ON ACCOUNT OF ABSENCE FROM DUTY DUE TO INJURY, SICKNESS, OR DISEASE RESULTING FROM THE INTEMPERATE USE OF DRUGS OR ALCOHOL LIQUORS, OR OTHER MISCONDUCT, ARE HEREBY REPEALED.

SECTION 1 OF THE ACT OF SEPTEMBER 27, 1944, 58 STAT. 752, EXPRESSLY REPEALED SECTION 2 OF THE ACT OF MAY 17, 1926, SUPRA, AND SECTIONS 2 AND 3 THEREOF PROVIDE AS FOLLOWS:

SEC. 2. THAT PARAGRAPH VIII OF EXECUTIVE ORDER NUMBERED 6098, DATED MARCH 31, 1933 ( VETERANS REGULATION NUMBERED 10, AS AMENDED: 38 U.S.C., CH. 12), BE AMENDED TO READ AS FOLLOWS.

"PAR VIII. AN INJURY OR DISEASE INCURRED DURING MILITARY OR NAVAL SERVICE WILL BE DEEMED TO HAVE BEEN INCURRED IN LINE OF DUTY AND NOT THE RESULT OF THE VETERAN'S OWN MISCONDUCT WHEN THE PERSON ON WHOSE ACCOUNT BENEFITS ARE CLAIMED WAS, AT THE TIME THE INJURY WAS SUFFERED OR DISEASE CONTRACTED, IN ACTIVE SERVICE IN THE MILITARY OR NAVAL FORCES, WHETHER ON ACTIVE DUTY OR ON AUTHORIZED LEAVE, UNLESS SUCH INJURY OR DISEASE WAS THE RESULT OF HIS OWN WILLFUL MISCONDUCT: PROVIDED, THAT VENEREAL DISEASE SHALL NOT BE PRESUMED TO BE DUE TO WILLFUL MISCONDUCT IF THE PERSON IN SERVICE COMPLIES WITH THE ARMY OR NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE: PROVIDED FURTHER, THAT THE REQUIREMENT FOR LINE OF DUTY WILL NOT BE MET IF IT APPEARS THAT AT THE TIME THE INJURY WAS SUFFERED OR DISEASE CONTRACTED THE PERSON ON WHOSE ACCOUNT BENEFITS ARE CLAIMED (1) WAS AVOIDING DUTY BY DESERTING THE SERVICE, OR BY ABSENTING HIMSELF WITHOUT LEAVE MATERIALLY INTERFERING WITH THE PERFORMANCE OF MILITARY DUTIES; (2) WAS CONFINED UNDER SENTENCE OF COURT MARTIAL OR CIVIL COURT.'

SEC. 3. THAT PARAGRAPH IX OF VETERANS REGULATION NUMBERED 10, AS AMENDED, BE AND IS HEREBY AMENDED TO READ:

"PAR. IX. PENSION SHALL NOT BE PAYABLE UNDER PART III, VETERANS REGULATION NUMBERED 1 (A), AS AMENDED, FOR ANY DISABILITY DUE TO THE CLAIMANT'S OWN WILLFUL MISCONDUCT OR VICIOUS HABITS.'

THE ADMINISTRATIVE VIEWS OF THE MATTER ARE SET FORTH IN YOUR LETTER, SUPRA, AS FOLLOWS:

FOLLOWING APPROVAL OF THE ACT OF SEPTEMBER 27, 1944, SUPRA, THE NAVY DEPARTMENT CONSIDERED IT DESIRABLE THAT THE RULINGS BE CONSISTENT REGARDING MISCONDUCT, DENIAL OF PRIVILEGES AND SIMILAR MATTERS, BY THE ARMY, NAVY AND VETERANS' ADMINISTRATION, EXCEPT WHERE VARIATIONS IN LAWS APPLICABLE TO THESE DIFFERENT GOVERNMENTAL AGENCIES REQUIRE DIFFERENCES IN RULINGS. IN VIEW OF THE CHANGE IN THE RULES TO BE APPLIED BY THE VETERANS' ADMINISTRATION IN CASES OF WILLFUL MISCONDUCT, IT WAS THOUGHT THAT THE NAVY SHOULD APPLY THE SAME RULES IN CASES OF MISCONDUCT, SO FAR AS PRACTICABLE. IT THEREFORE WAS CONCLUDED THAT FROM AND AFTER SEPTEMBER 27, 1944, THE EFFECTIVE DATE OF THE CITED ACT, IN CASES OF TIME ABSENT FROM DUTY DUE TO VENEREAL DISEASE, TIME IS LOST ONLY IF THERE BE A HOLDING OF MISCONDUCT. THERE CAN BE NO HOLDING OF MISCONDUCT UNLESS THERE WAS A FAILURE TO REPORT AND RECEIVE TREATMENT FOR VENEREAL DISEASE OR UNLESS THE PERSON CONCERNED REPORTS FOR TREATMENT BUT REFUSES TO SUBMIT TO THE PRESCRIBED TREATMENT.

IT WAS FURTHER CONCLUDED BY THE NAVY DEPARTMENT THAT FROM AND AFTER SEPTEMBER 27, 1944, TIME LOST FROM REGULAR DUTIES IN EXCESS OF ONE DAY ON ACCOUNT OF VENEREAL DISEASE SHOULD BE MADE GOOD IF THE PERSON FAILS TO COMPLY WITH THE EXISTING NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE. ACCORDINGLY, FOR THE PURPOSE OF COMPUTING LENGTH OF SERVICE BOTH FOR LONGEVITY AND REENLISTMENT ALLOWANCE, TIME ABSENT FROM DUTY DUE TO VENEREAL DISEASE FROM AND AFTER SEPTEMBER 27, 1944, SHOULD NOT BE DEDUCTED FROM TOTAL TIME IF THE INDIVIDUAL CONCERNED COMPLIED WITH EXISTING NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE.

GENERAL ORDER NO. 20 OF MAY 13, 1935, PROVIDES, IN PARAGRAPH 15, THAT TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF SICKNESS MISCONDUCT SHALL BE MADE GOOD BEFORE AN ENLISTMENT IS REGARDED COMPLETE. THE NAVY DEPARTMENT CONSIDERS THAT FROM AND AFTER SEPTEMBER 27, 1944, A HOLDING OF MISCONDUCT IS CONDITIONAL UPON A NON-COMPLIANCE WITH EXISTING REGULATIONS TO REPORT AND RECEIVE TREATMENT FOR A VENEREAL DISEASE. THUS, IF A MAN IS ABSENT FROM DUTY DUE TO VENEREAL DISEASE AND HAS COMPLIED WITH EXISTING REGULATIONS, THERE IS NO TIME TO BE MADE GOOD IN ORDER FOR THE ENLISTMENT TO BE COMPLETE. CONVERSELY, IF THERE WAS A NON-COMPLIANCE WITH EXISTING REGULATIONS, TIME LOST IN EXCESS OF ONE DAY WOULD HAVE TO BE MADE GOOD IN ORDER FOR THE ENLISTMENT TO BE COMPLETE.

IN CONSIDERATION OF THE ABOVE, THE NAVY DEPARTMENT IS OF THE VIEW THAT WHERE THE PERSON CONCERNED COMPLIED WITH EXISTING NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR VENEREAL DISEASE, TIME LOST FROM DUTY DUE TO SUCH DISEASE WILL NOT BE DEDUCTED FROM TOTAL TIME SERVED IN COMPUTING LENGTH OF SERVICE FOR LONGEVITY AND REENLISTMENT ALLOWANCE FROM AND AFTER SEPTEMBER 27, 1944.

SUCH ADMINISTRATIVE VIEWS FOLLOW THE CONCLUSIONS REACHED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN HIS OPINION OF JANUARY 26, 1945, C.M.O. NO. 2-1945, PAGE 66, WHERE IT WAS HELD, INTER ALIA, THAT TIME LOST FROM REGULAR DUTIES IN EXCESS OF ONE DAY ON ACCOUNT OF VENEREAL DISEASE SHOULD BE MADE GOOD IF THE PERSON FAILS TO COMPLY WITH THE THEN EXISTING NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE, AND IN HIS OPINION OF JANUARY 25, 1945, ID. PP. 68, 69, WHERE IT WAS SAID:

THE ACT OF SEPTEMBER 27, 1944, SPECIFICALLY PROVIDES THAT VENEREAL DISEASE SHALL NOT BE PRESUMED TO BE DUE TO WILLFUL MISCONDUCT IF THE PERSON IN SERVICE COMPLIES WITH THE ARMY OR NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE. THEREFORE, THE ONLY TIME VENEREAL DISEASE CAN BE CONSIDERED TO BE DUE TO MISCONDUCT IS WHEN A PERSON FAILS TO REPORT FOR TREATMENT IN ACCORDANCE WITH ANY REGULATIONS THAT MAY EXIST CONCERNING VENEREAL DISEASE. THE MISCONDUCT, THEREFORE, IS NOT THE ACQUISITION OF THE VENEREAL DISEASE BUT THE FAILURE TO REPORT AND RECEIVE TREATMENT FOR IT AFTER A PERSON KNOWS HE HAS THE DISEASE. * * *

THAT SIMILAR CONCLUSIONS WERE REACHED BY THE WAR DEPARTMENT RESPECTING THE MATTER IS SHOWN BY THE PROVISIONS OF ARMY REGULATIONS 40 1025, PROMULGATED DECEMBER 12, 1944, PARAGRAPH 63 OF WHICH PROVIDES, IN PART, AS FOLLOWS:

D. MISCONDUCT OR WILLFUL NEGLECT.

(1) GENERAL.--- THE FOLLOWING DISEASES AND INJURIES, AND THE EFFECTS DIRECTLY ATTRIBUTABLE TO SUCH DISEASE AND INJURIES, WILL BE HELD TO HAVE RESULTED FROM MISCONDUCT: EFFECTS OF A DISEASE OR INJURY RESULTING DIRECTLY FROM INTEMPERATE USE OF ALCOHOLIC LIQUOR OR HABIT FORMING DRUGS; VENEREAL DISEASES, IF THE INDIVIDUALS INVOLVED FAILED TO COMPLY WITH THE ARMY REGULATIONS REQUIRING THEM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE * * * .

(3) VENEREAL DISEASES.

(A) GENERAL.--- * * * VENEREAL DISEASES (AR 40-210,) WILL NOT BE CONSIDERED TO HAVE BEEN INCURRED THROUGH MISCONDUCT, UNLESS THE INDIVIDUAL INVOLVED HAS FAILED TO COMPLY WITH THE EXISTING ARMY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE. ABSENCE FROM REGULAR MILITARY DUTY FOR MORE THAN 1 DAY BECAUSE OF SUCH DISEASE, WHEN DETERMINED TO HAVE BEEN INCURRED THROUGH MISCONDUCT, WILL BE CONSIDERED WITHIN THE PURVIEW OF AW 107 WHICH PROVIDES FOR ,MAKING GOOD" TIME LOST.

SECTION 1 OF THE ACT OF SEPTEMBER 27, 1944, EXPRESSLY REPEALED THAT PORTION OF THE ACT OF MAY 17, 1926, PROVIDING FOR THE FORFEITURE OF PAY OF PERSONS IN THE MILITARY OR NAVAL SERVICE WHO ARE ABSENT FROM DUTY ON ACCOUNT OF THE DIRECT EFFECTS OF A VENEREAL DISEASE BUT IT DID NOT REPEAL THE PROVISO IN THE ACT OF AUGUST 29, 1916, SUPRA, REQUIRING AN ENLISTED MAN TO MAKE GOOD TIME LOST IN AN ENLISTMENT PERIOD IN EXCESS OF ONE DAY ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS OR OTHER MISCONDUCT. PRIOR TO THE ENACTMENT OF THE ACT OF SEPTEMBER 27, 1944, IT GENERALLY WAS PRESUMED THAT ANY ABSENCE FROM DUTY ON ACCOUNT OF THE DIRECT EFFECTS OF A VENEREAL DISEASE WAS DUE TO THE MAN'S OWN MISCONDUCT WITHIN THE MEANING OF THE SAID PROVISO IN THE ACT OF AUGUST 29, 1916, AND, THEREFORE, THE TIME LOST IN AN ENLISTMENT PERIOD WAS REQUIRED TO BE MADE GOOD (5 COMP. GEN. 239), AND SUCH TIME WAS NOT AUTHORIZED TO BE COUNTED AS SERVICE IN COMPUTING LONGEVITY PAY. SEE 3 COMP. GEN. 507 22 ID. 759. WHILE THE LANGUAGE IN SECTION 2 OF THE ACT OF SEPTEMBER 27, 1944, PROVIDING, INTER ALIA, THAT DISEASE INCURRED IN THE MILITARY OR NAVAL SERVICE WILL BE DEEMED NOT THE RESULT OF MISCONDUCT UNLESS IT WAS THE RESULT OF WILLFUL MISCONDUCT, WITH THE PROVISO THAT VENEREAL DISEASE SHALL NOT BE PRESUMED TO BE DUE TO WILLFUL MISCONDUCT, IF THE PERSON IN SERVICE COMPLIES WITH ARMY OR NAVY REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE, RELATES PRIMARILY TO THE PAYMENT OF PENSIONS AND COMPENSATION BY THE VETERANS' ADMINISTRATION, THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE ENACTMENT OF THAT PROVISO IN CONJUNCTION WITH THE REPEAL OF SECTION 2 OF THE ACT OF MAY 17, 1926, IS EXPLAINED IN THE REPORT ( NO. 1263) OF THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, ACCOMPANYING S. 1250, WHICH BECAME THE ACT OF SEPTEMBER 27, 1944, AS FOLLOWS:

* * * THE FORFEITURE OF PAY REQUIRED BY THE PRESENT LAW DOES NOT ACT AS A DETERRENT TO EXPOSURE TO INFECTION BUT HAS THE EFFECT OF PROMOTING CONCEALMENT OF INFECTION, SELF-TREATMENT, AND TREATMENT BY NONMILITARY PERSONNEL. SUCH ACTION LEADS TO SEVERAL UNFORTUNATE RESULTS. CONCEALMENT PRECLUDES QUARANTINE AND ALLOWS A SPREAD OF THE INFECTION, WHILE SELF- TREATMENT AND UNAUTHORIZED TREATMENT IS USUALLY INADEQUATE AND INEFFECTIVE. A PARTICULARLY DANGEROUS SITUATION ARISES IN THE CASE OF PERSONS ON FLYING STATUS WHO CONCEAL THE INFECTION TO AVOID FORFEITURE OF PAY. THE TREATMENT FOR THE DISEASE NECESSITATES THE "GROUNDING" OF FLYING PERSONNEL. WHEN THESE MEN ADMINISTER SELF TREATMENT OR RECEIVE UNAUTHORIZED MEDICAL CARE THEY CONTINUE ON FLYING STATUS AND ENDANGER BOTH MEN AND EQUIPMENT. THE LAW DOES NOT IMPOSE AN EQUAL PENALTY ON THOSE WHOSE MISCONDUCT IS OF THE SAME NATURE, BECAUSE RESISTANT CASES MAY REQUIRE PROLONGED HOSPITALIZATION, WHILE OTHERS MAY BE TREATED WITHOUT ABSENCE FROM REGULAR DUTY. THE PENALTY IS ATTACHED NOT TO THE MISCONDUCT BUT ONLY THE POSSIBLE RESULT OF SUCH MISCONDUCT. A FURTHER REASON FOR THE REPEAL OF THE LAW EXISTS IN VIEW OF THE FACT THAT INFECTED SELECTEES ARE ACCEPTED FOR MILITARY SERVICE AND ARE HOSPITALIZED AT ONCE WITH A CONSEQUENT FORFEITURE OF PAY.

THE PURPOSE OF THE NEW SECTIONS ADDED TO THE BILL IS TO LIBERALIZE THE MISCONDUCT BAR UNDER EXISTING LAW GOVERNING THE PAYMENT OF PENSION OR COMPENSATION BY THE VETERANS' ADMINISTRATION. THE NEW PROVISIONS ARE DEFINITELY RELATED TO THE REPEAL PROVISION CONTAINED IN SECTION 1 OF THE BILL INASMUCH AS THEY CONTAIN APPROPRIATE CHANGES IN THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION GOVERNING COMPENSATION AND PENSION CONSISTENT WITH SUCH REPEAL.

SECTION 2 WAS INCLUDED IN THE ACT OF SEPTEMBER 27, 1944, AS PART OF AN AMENDMENT PROPOSED BY THE HOUSE COMMITTEE ON MILITARY AFFAIRS AND THE QUOTED EXPLANATION OF THE MATTER IN THE COMMITTEE REPORT RESPECTING THE PURPOSE OF THE REPEAL OF THE PAY FORFEITURE PROVISIONS AND THE RELATION THERETO OF THE DEFINITION OF MISCONDUCT CONTAINED IN THE ADDED SECTION WOULD APPEAR TO FURNISH AT LEAST SOME BASIS FOR THE ADMINISTRATIVE CONCLUSIONS REACHED BOTH BY THE NAVY DEPARTMENT AND THE WAR DEPARTMENT THAT SUCH STATUTORY DEFINITION OF MISCONDUCT PROPERLY IS FOR APPLICATION IN DETERMINING WHETHER ABSENCE FROM DUTY IS DUE TO MISCONDUCT. WHILE THE MATTER IS NOT FREE FROM DOUBT, SUCH ADMINISTRATIVE CONCLUSIONS APPEAR TO BE IN CONSONANCE WITH THE BASIC PURPOSES OF THE LEGISLATION AND I AM OF THE OPINION THAT WHATEVER DOUBT MAY EXIST IN THE MATTER IS TO BE RESOLVED ON THAT BASIS.

ACCORDINGLY, IN RESPONSE TO THE SPECIFIC QUESTION PRESENTED, I HAVE TO ADVISE THAT TIME LOST FROM DUTY SUBSEQUENT TO SEPTEMBER 27, 1944, DUE TO VENEREAL DISEASE MAY BE COUNTED AS SERVICE FOR THE PURPOSE OF LONGEVITY PAY AND REENLISTMENT ALLOWANCES, IF THE PERSON CONCERNED COMPLIED WITH EXISTING REGULATIONS REQUIRING HIM TO REPORT AND RECEIVE TREATMENT FOR SUCH DISEASE.