B-62522, JAN 29, 1947

B-62522, JAN 29, 1947

PRECIS-UNAVAILABLE

MRS. ESTHER THORNTON, R. N., SUPERINTENDENT:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1946, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 29, 1946, WHICH DISALLOWED CLAIM OF THE VICTORY HOSPITAL, AKRON, COLORADO, FOR HOSPITAL AND MEDICAL EXPENSES INCURRED FOR SERVICES FURNISHED THE LATE SECOND LIEUTENANT, HARVEY L. KIVI, AIR CORPS, UNITED STATES ARMY, ON AUGUST 24, 1945.

FROM THE EVIDENCE ON FILE IN THIS OFFICE IT APPEARS THAT THE LATE OFFICER, WHILE ABSENT WITHOUT LEAVE FROM HIS STATION AT THE ARMY AIR FIELD, LA JUNTA, COLORADO, ON AUGUST 24, 1945, FELL OR THREW HIMSELF UNDER A MOVING RAILROAD ENGINE AT AKRON, COLORADO, AND AS A RESULT OF INJURIES THUS RECEIVED HE WAS ADMITTED TO THE VICTORY HOSPITAL, WHERE HE DIED THAT SAME DAY.

PROVISION FOR CARE AND TREATMENT OF ARMY PERSONNEL IN PRIVATE HOSPITALS DURING THE PERIOD HERE INVOLVED WAS CONTAINED IN THE MILITARY APPROPRIATION ACT, 1946, 59 STAT. 384, UNDER THE HEADING, "MEDICAL AND HOSPITAL DEPARTMENT", WHICH READS, IN PERTINENT PART, AS FOLLOWS (PAGE 394):

"*** FOR MEDICAL CARE AND TREATMENT OF PATIENTS WHEN ENTITLED THERETO BY LAW, REGULATION, OR CONTRACT, INCLUDING THEIR CARE, TREATMENT AND SUBSISTENCE IN PRIVATE HOSPITALS, WHETHER ON DUTY OR ON FURLOUGH OR ON LEAVE OF ABSENCE EXCEPT WHEN ELECTIVE MEDICAL TREATMENT HAS BEEN OBTAINED BY SUCH PERSONNEL IN CIVILIAN HOSPITALS OR FROM CIVILIAN PHYSICIANS OR DENTISTS ***."

PARAGRAPH 3B(1), ARMY REGULATIONS 40-505, DATED SEPTEMBER 1, 1942, AS AMENDED BY CHANGE 8, DATED SEPTEMBER 6, 1944, IN EFFECT AT THE TIME THE CLAIM HERE IN QUESTION AROSE, PROVIDED AS FOLLOWS:

"FOR WHOM AUTHORIZED.-- CIVILIAN MEDICAL ATTENDANCE AT PUBLIC EXPENSE IS AUTHORIZED FOR THE FOLLOWING PERSONNEL AND NONE OTHER:

"(1) (AS CHANGED BY C 1, 2 MAR 43.) OFFICERS, ARMY NURSES, WOMEN'S ARMY CORPS, OTHER MILITARIZED FEMALE PERSONNEL OF THE ARMY, CONTRACT SURGEONS (FULL TIME), WARRANT OFFICERS, FLIGHT OFFICERS, CADETS, ENLISTED MEN, WHEN ON A DUTY STATUS OR WHEN ABSENT ON AUTHORIZED LEAVE, SICK LEAVE, FURLOUGH, OR PASS. CIVILIAN MEDICAL ATTENDANCE IS NOT AUTHORIZED FOR THE PERSONNEL ENUMERATED WHEN ABSENT WITHOUT LEAVE."

THUS IT WILL BE SEEN THAT CIVILIAN MEDICAL TREATMENT AT PUBLIC EXPENSE IS EXPRESSLY DENIED ARMY PERSONNEL WHEN THEY ARE ABSENT FROM THEIR STATIONS WITHOUT LEAVE. AS TO YOUR STATEMENT THAT YOU WERE INFORMED THAT THE OFFICER WAS MENTALLY ILL AND THEREFORE HE WAS NOT RESPONSIBLE FOR BEING ABSENT WITHOUT LEAVE, IT MAY BE SAID THAT WHILE THE EVIDENCE IN THE RECORD IN THAT RESPECT IS FAR FROM CONCLUSIVE, THE QUESTION OF HIS MENTAL COMPETENCY IS IMMATERIAL. THAT IS TO SAY, THE QUESTION AS TO WHETHER OR NOT A MAN IS ABSENT WITHOUT LEAVE IS DETERMINED BY THE FACTS, AND, WHILE MENTAL INCOMPETENCY, IF IT EXISTS, MAY MITIGATE THE OFFENSE IN SOME RESPECTS, THE ABSENCE FROM DUTY WITHOUT LEAVE IS A FACT, IRRESPECTIVE OF RESPONSIBILITY THEREFOR. WHEN PRIVATE MEDICAL TREATMENT IS FURNISHED UNDER SUCH CIRCUMSTANCES, THE OBLIGATION TO PAY THEREFOR IS A PERSONAL OBLIGATION OF THE MAN.

THERE HAS NOT BEEN OVERLOOKED THE FAVORABLE RECOMMENDATION OF THE WAR DEPARTMENT IN THIS MATTER, TO WHICH YOU REFER IN YOUR LETTER, AND, WHILE SUCH ADMINISTRATIVE RECOMMENDATIONS ARE GIVEN EVERY CONSIDERATION BY THIS OFFICE, IT WOULD SEEM OBVIOUS THAT THEY MAY NOT BE FOLLOWED WHEN TO DO SO WOULD CONTRAVENE THE APPLICABLE LAW AND REGULATIONS.

FOR THE REASONS HEREINBEFORE STATED, THE DISALLOWANCE OF THE CLAIM WAS CORRECT AND IS SUSTAINED. /1/

/1/ ON 11 JANUARY 1951 THIS OFFICE WAS INFORMALLY ADVISED BY THE DIGEST SECTION, GENERAL ACCOUNTING OFFICE THAT THIS OPINION OF THE COMPTROLLER GENERAL HAS NOT BEEN CHANGED OR MODIFIED.