A-76296, A-78888, A-79138, SEPTEMBER 22, 1936, 16 COMP. GEN. 289

A-76296, A-78888, A-79138, SEPTEMBER 22, 1936, 16 COMP. GEN. 289

PAY AND ALLOWANCES - OFFICERS' RESERVE CORPS - DISEASE OR INJURY IN LINE OF DUTY - ACT, JUNE 15, 1936 MEMBERS OF THE OFFICERS' RESERVE CORPS HOSPITALIZED FOR DISEASE OR INJURY INCURRED IN LINE OF DUTY NOT THE RESULT OF OWN MISCONDUCT WHO AFTER RETURN TO AN INACTIVE STATUS ARE REHOSPITALIZED AND ARE RECEIVING "FURTHER MEDICAL TREATMENT" ON THE DATE OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507, ARE ENTITLED UNDER SAID ACT TO THE PAY AND ALLOWANCES WHETHER IN MONEY OR IN KIND IN RECEIPT OF AT THE TIME OF THE DISEASE OR INJURY WHILE UNDERGOING SUCH HOSPITALIZATION FOR NOT MORE THAN AN AGGREGATE OF 6 MONTHS FROM DATE OF THE ACT, LESS ANY TIME FOR WHICH PAID DURING A PERIOD OF HOSPITALIZATION UNDER THE ACT OF APRIL 26, 1928, 45 STAT. 461.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJ. R. G. JENKS, UNITED STATES ARMY, SEPTEMBER 22, 1936:

THERE ARE FOR CONSIDERATION YOUR REQUESTS OF JULY 17, 1936, JULY 18, 1936, AND JULY 22, 1936, FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENTS ON VOUCHERS TRANSMITTED THEREWITH STATED IN FAVOR OF CAPT. SAMUEL SPERO, CWS-RES., UNITED STATES ARMY, IN THE AMOUNT OF $3,104.40, MAJ. HAROLD E. DUNGAN, AC-RES., UNITED STATES ARMY, IN THE AMOUNT OF $1,245.30, AND FIRST LT. CLEMENS MAZZOTTI, CA-RES., UNITED STATES ARMY, IN THE AMOUNT OF $946.22, COVERING PAY AND ALLOWANCES WHILE UNDERGOING HOSPITALIZATION FOR INJURIES OR DISEASE DETERMINED TO HAVE BEEN INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS.

CAPTAIN (THEN FIRST LIEUTENANT) SPERO, 1806 EAST WOOD STREET, MILWAUKEE, WIS., WAS ORDERED, WITH HIS CONSENT, TO ACTIVE DUTY FOR A PERIOD OF 6 MONTHS BEGINNING SEPTEMBER 16, 1933, BY PARAGRAPH 33, SPECIAL ORDERS, NO. 180, HEADQUARTERS SIXTH CORPS AREA, CHICAGO, ILL., DATED SEPTEMBER 12, 1933, AND WAS DIRECTED TO PROCEED TO FORT SHERIDAN, ILL., AND REPORT TO THE COMMANDING OFFICER FOR DUTY IN CONNECTION WITH THE CIVILIAN CONSERVATION CORPS. HE WAS CONTINUED ON ACTIVE DUTY TO SEPTEMBER 15, 1934, BY PARAGRAPH 6, SPECIAL ORDERS, NO. 44, SAME HEADQUARTERS, DATED FEBRUARY 20, 1934, TO MARCH 15, 1935, BY PARAGRAPH 11, SPECIAL ORDERS, NO. 199, SAME HEADQUARTERS, DATED AUGUST 20, 1934, TO SEPTEMBER 15, 1935, BY PARAGRAPH 6, SPECIAL ORDERS 39, SAME HEADQUARTERS, DATED FEBRUARY 15, 1935, AND BY PARAGRAPH 5, SPECIAL ORDERS, NO. 184, SAME HEADQUARTERS, DATED AUGUST 6, 1935, HE WAS RELIEVED FROM FURTHER ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS AT LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIF., AT SUCH TIME AS WOULD ENABLE HIM TO ARRIVE AT HIS HOME, MILWAUKEE, WIS., ON SEPTEMBER 15, 1935, ON WHICH DATE HE REVERTED TO INACTIVE STATUS. ON OCTOBER 2, 1934, AT ABOUT 10 A.M. THIS OFFICER SUSTAINED AN INJURY DIAGNOSED AS "COMPLETE FRACTURE OF THE NECK OF THE RIGHT FEMUR," WHILE RIDING AS A PASSENGER IN A GOVERNMENT-OWNED AUTOMOBILE, WHICH SKIDDED INTO A DITCH, TURNED OVER AND HIT A TELEPHONE POLE, WHILE PROCEEDING ON A GRAVELED ROAD 6 MILES EAST OF RANDLE, WASH., WHILE IN THE PERFORMANCE OF REGULARLY ASSIGNED DUTIES. IT WOULD APPEAR HE WAS HOSPITALIZED AT STATION HOSPITAL, FORT LEWIS, WASH., FROM OCTOBER 2, 1934, TO DECEMBER 3, 1934, AND AT LETTERMAN GENERAL HOSPITAL FROM DECEMBER 4, 1934, TO SEPTEMBER 12, 1935, AND THAT ON THE LATTER DATE HE COMMENCED TRAVEL TO HIS HOME AT MILWAUKEE, AND WAS RELIEVED FROM ACTIVE DUTY STATUS, SEPTEMBER 15, 1935. YOU STATE THIS OFFICER WAS ADMITTED OCTOBER 23, 1935, TO STATION HOSPITAL, FORT SHERIDAN, ILL., FOR FURTHER HOSPITALIZATION, THAT HE WAS TRANSFERRED NOVEMBER 13, 1935, TO WALTER REED GENERAL HOSPITAL, AND THAT HE HAS REMAINED A PATIENT THERE TO THE PRESENT TIME, JULY 17, 1936. THE OFFICER IS REPORTED TO HAVE BEEN LAST PAID TO MAY 31, 1935, AND HIS CLAIM IS FOR PAY AND ALLOWANCES FROM JUNE 1, 1935, TO SEPTEMBER 15, 1935, BY VIRTUE OF HIS ASSIGNMENT TO ACTIVE DUTY, AND FOR A PERIOD OF 6 MONTHS FROM OCTOBER 23, 1935, WHILE UNDERGOING FURTHER HOSPITALIZATION, UNDER THE ACT OF JUNE 15, 1936, 49 STAT. 1507.

MAJOR DUNGAN, 3076 EDGEHILL ROAD, CLEVELAND, OHIO, WAS ORDERED, WITH HIS CONSENT, TO ACTIVE DUTY FOR A PERIOD OF 5 MONTHS AND 15 DAYS, BEGINNING NOVEMBER 1, 1933, BY PARAGRAPH 1, SPECIAL ORDERS, NO. 250,HEADQUARTERS FIFTH CORPS AREA, DATED OCTOBER 26, 1933, AND HE WAS DIRECTED TO REPORT TO THE COMMANDING GENERAL, FORT KNOX, KY., FOR DUTY WITH THE CIVILIAN CONSERVATION CORPS. HIS PERIOD OF ACTIVE DUTY WAS, WITH HIS CONSENT, EXTENDED TO OCTOBER 15, 1934, BY PARAGRAPH 3, SPECIAL ORDERS, NO. 50, SAME HEADQUARTERS, DATED MARCH 1, 1934, AGAIN TO MARCH 31, 1935, BY PARAGRAPH 1, SPECIAL ORDERS, NO. 218, SAME HEADQUARTERS, DATED SEPTEMBER 15, 1934, AGAIN TO SEPTEMBER 30, 1935, BY PARAGRAPH 5, SPECIAL ORDERS, NO. 56, SAME HEADQUARTERS, DATED MARCH 8, 1935, AND AGAIN TO MARCH 31, 1936, BY PARAGRAPH 2, SPECIAL ORDERS, NO. 210, SAME HEADQUARTERS, DATED SEPTEMBER 6, 1935. PARAGRAPH 9, SPECIAL ORDERS, NO. 52, HEADQUARTERS FORT HAYES DISTRICT, CIVILIAN CONSERVATION CORPS, DATED MARCH 4, 1936, BY DIRECTION OF THE PRESIDENT, RELIEVED THIS OFFICER FROM FURTHER ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS AS COMMANDING OFFICER OF THE CLEVELAND SECTION, CIVILIAN CONSERVATION CORPS, WITH HEADQUARTERS AT CITY HALL, EUCLID, OHIO, IN TIME TO ARRIVE AT HIS HOME, CLEVELAND, OHIO, ON MARCH 31, 1936, ON WHICH DATE HE REVERTED TO INACTIVE STATUS.

THIS OFFICER HAS BEEN HOSPITALIZED CONTINUOUSLY FROM THE LAST DAY OF HIS ACTIVE DUTY TO JULY 18, 1936. A BOARD OF OFFICERS CONVENED AT FORT HAYES, COLUMBUS, OHIO, APRIL 1, 1936, TO INVESTIGATE AND REPORT UPON THE CONDITION FOR WHICH THIS OFFICER WAS HOSPITALIZED, REPORTED THE FOLLOWING FINDINGS:

AFTER CONSIDERATION OF THE ABOVE SWORN TESTIMONY AND THE ATTACHED OFFICIAL PAPERS, EXHIBITS A TO G, INCLUSIVE, THE BOARD FINDS:

THAT MAJOR HAROLD E. DUNGAN, AIR CORPS RESERVE, WAS ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS, BY COMPETENT AUTHORITY AS ESTABLISHED BY EXHIBITS A TO F, WHICH PERIOD OF ACTIVE DUTY BEGAN NOVEMBER 1, 1933, AND EXPIRED MARCH 31, 1936.

THAT HE WAS ON DUTY AS SECTOR COMMANDER, CLEVELAND SECTOR, C.C.C., FROM JUNE 17, 1935, TO MARCH 31, 1936, AS SHOWN BY EXHIBIT G.

THAT MAJOR HAROLD E. DUNGAN, AIR CORPS RESERVE, IS NOW AND HAS BEEN A PATIENT IN THE STATION HOSPITAL, FORT HAYES, OHIO, SINCE MARCH 31, 1936, WHERE THE FOLLOWING DIAGNOSES WERE MADE: (1) JOINT MICE, INVOLVING THE LEFT KNEE JOINT; (2) HERNIA, INGUINAL, INDIRECT, INCOMPLETE, REDUCIBLE, LEFT, (3) VARICOSE VEINS, SEVERE, INVOLVING THE LEFT POPLITEAL SPACE, LEFT LEG.

THAT THE INJURY TO THE LEFT KNEE JOINT WAS INCURRED IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT.

THAT THE HERNIA, INGUINAL, LEFT, WAS INCURRED NOT IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

THAT THE VARICOSE VEINS, SEVERE, LEFT, LOWER EXTREMITY, WERE INCURRED NOT IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

THAT THE INJURY FROM WHICH MAJOR DUNGAN IS SUFFERING IS NOT DUE TO THE USE OF ALCOHOLIC LIQUORS OR NARCOTICS.

THE SWORN TESTIMONY AS TO THE KNEE INJURY CONSISTED OF THE FOLLOWING STATEMENT BY THE OFFICER:

I CANNOT STATE DEFINITELY WHAT CAUSED THE INJURY. THE ONLY INSTANCE THAT HAPPENED THAT MIGHT HAVE CAUSED IT WAS THE ONE STATED TO THE MEDICAL EXAMINER. APPROXIMATELY NOVEMBER 15, 1935, I WAS GETTING OUT OF A CAR IN FRONT OF SECTOR HEADQUARTERS ON MY WAY TO WORK AT THE OFFICE WITH THE CLEVELAND SECTOR, C.C.C., AND IN ALIGHTING FROM FROM THE CAR MY WEIGHT WAS ON MY RIGHT FOOT. I STARTED TO PUT MY FOOT ON A STONE BETWEEN THE CURB AND THE SIDEWALK WHEN MY ANKLE TURNED ON THIS STONE. MY LEFT KNEE WAS TWISTED, MY RIGHT ANKLE SPRAINED, BUT NOT BADLY. BOTH SWELLED AND THE SWELLING AND PAIN IN MY ANKLE DISAPPEARED AFTER A MONTH OR SO AND DECREASED IN MY KNEE. SHORTLY AFTER THE INCIDENT I CONSULTED DR. JACK GILFORD, CAMP SURGEON AT SP-15, WHO LOOKED AT MY KNEE AND ARRANGED FOR ME TO GO TO THE UNITED STATES MARINE HOSPITAL, NO. 6, CLEVELAND, OHIO, FOR AN EXAMINATION. I REQUESTED THAT THIS BE NOT MADE AN OFFICIAL EXAMINATION. I WAS EXAMINED BY DR. EBERHART, WHO STATED THAT HE WOULD LIKE TO HAVE DR. WILLIS, A CONSULTANT SPECIALIST, SEE MY KNEE. I WENT BACK THE FOLLOWING FRIDAY ON WHICH DAY DR. WILLIS EXAMINED ME. HE FELT THE KNEE, LOOKED IT OVER, AND STATED THAT THERE WAS CONSIDERABLE LIQUID ON THE KNEE AND THAT IT WAS IN HIS OPINION A STRAIN BUT MIGHT POSSIBLY BE A TORN CARTILAGE. SUGGESTED THAT IF IT CAUSED ME ANY GREAT AMOUNT OF TROUBLE I SHOULD COME IN AND HAVE IT X-RAYED. I WORE A RUBBER STOCKING ON IT FOR A WHILE AND RUBBED IT WITH SLOANES LINIMENT AND GUARDED THE USE OF IT VERY CAREFULLY AND THE PAIN GRADUALLY DECREASED. HOWEVER, IT HAS NEVER DISAPPEARED AND INTERMITTENTLY CAUSES ME TROUBLE, USUALLY WHEN APPLYING ANY WEIGHT IN A BENT POSITION OR WHEN PUTTING SUDDEN OR FULL WEIGHT UPON IT IN A STRAIGHT POSITION. AFTER HAVING BEEN IN A BENT POSITION FOR SOME LENGTH OF TIME IT APPEARS TO LOCK BUT BY MANIPULATION WITH MY HANDS I CAN UNLOCK IT. I DO NOT FEEL ANY EXCESSIVE PAIN CONTINUOUSLY BUT AM ALWAYS CONSCIOUS OF A SLIGHT FEELING IN THE KNEE.

AND THE TESTIMONY OF FIRST LT. GEORGE F. PEER, MEDICAL CORPS, AS FOLLOWS:

Q. IN YOUR OPINION, COULD THE PRESENT PHYSICAL AND X-RAY FINDINGS OF HIS LEFT KNEE BE THE RESULT OF AN INJURY INCURRED IN NOVEMBER 1935?

A. IN MY OPINION, THE X-RAY EXAMINATION WOULD INDICATE THAT THE CONDITION EXISTED BEFORE THE INJURY, DUE TO THE FACT THAT THERE IS SO MUCH CALCIUM LAID DOWN IN THESE SMALL DEPOSITS. I DO NOT BELIEVE IT COULD FORM IN THAT LENGTH OF TIME.

Q. WHAT WOULD BE AN APPROXIMATE MINIMUM PERIOD IN WHICH THE CONDITIONS AS SHOWN BY THE X-RAY COULD DEVELOP?

A. I THINK IT COULD DEVELOP IN ONE YEAR.

THE MEDICAL OFFICER SERVING ON THE BOARD OF OFFICERS CONVENED IN THIS CASE APRIL 1, 1936, WAS RELIEVED APRIL 24, 1936, AND ANOTHER MEDICAL OFFICER WAS DETAILED AS A MEMBER OF SUCH BOARD, WHICH RECONVENED AT FORT HAYES, OHIO, APRIL 27, 1936. FIRST LIEUTENANT PEER FURTHER TESTIFIED AS FOLLOWS:

Q. IN YOUR OPINION, WOULD IT BE POSSIBLE FOR THESE MICE TO HAVE FORMED IN THIS JOINT IN THE 5 MONTHS AS STATED?

A. I TESTIFIED IN THE LAST MEETING THAT I THOUGHT IT WOULD TAKE LONGER THAN 5 MONTHS FOR THESE TO FORM IN THE JOINT. THAT IS STILL MY OPINION.

Q. DO YOU BELIEVE THAT THESE JOINT MICE COULD HAVE FORMED DURING THE PAST 2 1/2 YEARS?

A. IN MY OPINION THEY COULD HAVE FORMED IN THAT TIME.

Q. IS IT YOUR OPINION THAT THEY HAVE FORMED IN THAT TIME?

A. IT IS MY OPINION THAT THEY HAVE FORMED IN THAT TIME.

FIRST LT. HEINZ KURANER, MEDICAL CORPS, ON DUTY AT STATION HOSPITAL, FORT HAYES, OHIO, ALSO TESTIFIED BEFORE THE LATTER BOARD, AS FOLLOWS:

Q. WILL YOU PLEASE STATE WHAT YOU FOUND IN THESE X-RAYS?

A. I FOUND POSTERIOR TO THE LEFT KNEE JOINT A CALCIFIED MULBERRY SHAPED FOREIGN BODY, 2 CENTIMETERS IN DIAMETER. APPARENTLY THIS FOREIGN BODY WAS EITHER OF CARTILAGINOUS OR BONY NATURE, THERE IS ALSO ANOTHER BODY, ABOUT 1 1/2 CENTIMETERS IN DIAMETER, NOT ATTACHED TO ANY OF THE SURROUNDING STRUCTURES, POSTERIOR TO THE LEFT KNEE JOINT. THIS IS A SESAMOID BONE.

Q. WOULD THIS SESAMOID BONE BE IN ANY WAY DISABLING OR WAS IT IN ANY WAY CONNECTED WITH THE INJURY?

A. IN MY OPINION IT WAS NOT.

Q. COULD YOU FORM AN OPINION AS TO HOW, WHEN, AND WHERE THIS FOREIGN BODY WHICH YOU STATE IS IN THE KNEE JOINT HAD OCCURRED?

A. IN MY OPINION, THE FOREIGN BODY THAT IS PRESENT IS THE RESULT OF AN INJURY. THE TIME OF FORMATION IS UNKNOWN.

Q. IN YOUR OPINION COULD THIS FOREIGN BODY HAVE BEEN FORMED WITHIN THE PERIOD OF TWO YEARS?

A. YES, SIR.

Q. COULD YOU EXPRESS AN OPINION AS TO WHETHER THIS FOREIGN BODY COULD HAVE FORMED WITHIN 2 1/2 MONTHS?

A. YES, SIR. IT COULD HAVE FORMED WITHIN 2 1/2 MONTHS.

FIRST LT. CLEMENS MAZZOTTI, CA-RES., UNITED STATES ARMY, 5432 WILKINS AVENUE, PITTSBURGH, WAS, BY PARAGRAPH 16, SPECIAL ORDERS, NO. 2, HEADQUARTERS THIRD CORPS AREA, DATED JANUARY 3, 1935, ORDERED TO ACTIVE DUTY, WITH HIS CONSENT, FOR A PERIOD OF 6 MONTHS, EFFECTIVE JANUARY 20, 1935, AND WAS DIRECTED TO REPORT TO THE COMMANDING OFFICER AT FORT GEORGE G. MEADE, MD., FOR DUTY WITH THE CIVILIAN CONSERVATION CORPS. PARAGRAPH 20, SPECIAL ORDERS, NO. 152, SAME HEADQUARTERS, DATED JUNE 22, 1935, HE WAS CONTINUED, WITH HIS CONSENT, ON ACTIVE DUTY FOR ANOTHER 6 MONTHS, TO JANUARY 19, 1936. HE WAS ADMITTED JANUARY 15, 1936, TO WALTER REED GENERAL HOSPITAL FOR A CONDITION DIAGNOSED AS (1) ANAL FISSURE, WITH MARKED DERMATITIS ABOUT ANAL REGION, SEVERE; (2) HEMORRHOIDS, INTERNAL, MODERATELY SEVERE. IT APPEARS THAT THESE CONDITIONS HAD EXISTED FOR A PERIOD OF SEVERAL MONTHS. THE TIME OF THE ONSET OF THIS CONDITION WAS NOT DEFINITELY ESTABLISHED, BUT IT APPEARS OF RECORD THAT HE WAS TREATED LOCALLY BY THE CAMP SURGEON DURING MARCH 1935. HE HAS BEEN HOSPITALIZED FOR THE HEMORRHOIDS CONDITION AT WALTER REED GENERAL HOSPITAL FROM JANUARY 15, 1936, TO DATE OF REQUEST OF JULY 22, 1936. WHILE THUS HOSPITALIZED FOR HEMORRHOIDS A FLACCID PARALYSIS CONDITION OF THE MUSCLES OF THE LEFT FOOT WAS FOUND AND ALSO TREATED, BUT THE COMMANDING OFFICER OF THE HOSPITAL STATES THAT THIS CONDITION IN ITSELF HAD NOT BEEN SUFFICIENT TO WARRANT HOSPITALIZATION.

THESE OFFICERS WERE INITIALLY ORDERED TO ACTIVE DUTY WITH THEIR CONSENT FOR A PERIOD OF 6 MONTHS, AND IN EACH CASE THE OFFICER'S ACTIVE DUTY STATUS HAS BEEN CONTINUED, WITH HIS CONSENT, FOR ADDITIONAL 6 MONTHS' PERIODS. IN THE CASES OF CAPTAIN SPERO AND FIRST LT. MAZZOTTI, IT HAS BEEN DETERMINED THAT THE DISEASE OR INJURY FOR WHICH THEY WERE HOSPITALIZED FOLLOWING RELIEF FROM ACTIVE DUTY DID NOT OCCUR IN THEIR LAST 6 MONTHS' TOUR OF ACTIVE DUTY. IN THE CASE OF MAJOR DUNGAN A BOARD OF OFFICERS, APPARENTLY ON THE SURMISE OF THE OFFICER THAT HE RECEIVED AN INJURY TO HIS KNEE ON OR ABOUT NOVEMBER 15, 1935, FIXED THAT DATE AS THE ONSET OF THE CONDITION FOR WHICH HE WAS HOSPITALIZED FOLLOWING HIS RELIEF FROM ACTIVE DUTY. THERE APPEARS NO RECORD OF THIS OFFICER HAVING BEEN INJURED DURING HIS LAST TOUR OF ACTIVE DUTY. WHILE HE STATES HE CONSULTED THE CAMP SURGEON AT SP-15, WHO ARRANGED FOR HIM TO GO TO UNITED STATES MARINE HOSPITAL NO. 6, CLEVELAND, OHIO, NO CURRENT RECORD WAS MADE SHOWING THE SEVERITY OR NATURE OF SUCH ALLEGED INJURY, AND A REPORT RECEIVED SEPTEMBER 3, 1936, FROM THE MARINE HOSPITAL, GIVES NO EVIDENCE IN SUPPORT OF HIS STATEMENTS. THE EVIDENCE OF THE TWO OFFICERS OF THE MEDICAL CORPS AGREE THAT THE CONDITION FOR WHICH HE WAS HOSPITALIZED HAD ITS ONSET DURING THE EARLIER SUCCESSIVE TOURS OF ACTIVE DUTY, BUT ONE TESTIFIED ON TWO OCCASIONS THAT IN HIS OPINION CLAIMANT'S CONDITION COULD NOT HAVE DEVELOPED AFTER THE INJURY ON NOVEMBER 15, 1935, AND THE OTHER TESTIFIED THAT IN HIS OPINION THE CONDITION WAS NOT IN ANY WAY CONNECTED WITH THE INJURY. IN THE ABSENCE OF ANY CONTEMPORANEOUS RECORD OF THE ONSET OF THE CONDITION COMPLAINED OF DURING THE OFFICER'S LAST TOUR OF ACTIVE DUTY, THE EVIDENCE IS NOT SUFFICIENT TO ESTABLISH THAT THE DISABILITY HAD ITS ONSET DURING THE OFFICER'S LAST DEFINITE ASSIGNMENT TO ACTIVE DUTY. THE CONTINUATION OF HOSPITAL TREATMENT AT WALTER REED GENERAL HOSPITAL FOLLOWING THE RETURN OF THESE OFFICERS TO INACTIVE STATUS, UNDER THE CIRCUMSTANCES, WAS "FURTHER MEDICAL TREATMENT" UNDER THE ACT OF APRIL 26, 1928, 45 STAT. 461, AND SUCH ACT IS NO AUTHORITY FOR PAYMENT OF PAY AND ALLOWANCES (9 COMP. GEN. 236; 10 ID. 373; ID. 42; 11 ID. 483; A-44501, SEPTEMBER 16, 1932; A-49346, JULY 18, 1933, AND AUGUST 8, 1934; A-63395, JULY 11, 1935). HOWEVER, IT IS THE CONTENTION OF THE OFFICERS THAT BY REASON OF BEING HOSPITALIZED UNDER THE CITED 1928 STATUTE THEY ARE ENTITLED TO PAY AND ALLOWANCES FOR A PERIOD OF 6 MONTHS FROM DATES OF RETURN TO INACTIVE DUTY STATUS UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1936, 49 STAT. 1507. THE PROVISO REFERRED TO IS AS FOLLOWS:

* * * THAT ANY PERSON WHO, ON THE DATE OF THE APPROVAL OF THIS ACT, IS RECEIVING OR ENTITLED TO RECEIVE THE BENEFITS PROVIDED BY SAID SECTION 6 OF THE ACT OF MARCH 4, 1923, AS AMENDED, SHALL BE ENTITLED TO THE BENEFITS OF THIS ACT IN LIEU THEREOF, AND EXISTING APPROPRIATIONS FOR CARRYING OUT THE PROVISIONS OF SECTION 6 OF SAID ACT OF MARCH 4, 1923, AS AMENDED, SHALL BE AVAILABLE FOR EXPENDITURES AUTHORIZED BY THIS ACT.

THERE IS NO LANGUAGE USED IN THE STATUTE HERE UNDER CONSIDERATION TO INDICATE AN INTENT TO GIVE IT A RETROACTIVE EFFECT, AND IT IS WELL SETTLED BY JUDICIAL PRECEDENT THAT UNLESS AN INTENT TO MAKE A STATUTE OPERATE RETROSPECTIVELY AS WELL AS PROSPECTIVELY IS EXPRESSED IN APT WORDS, OR UNLESS BY NECESSARY IMPLICATION FROM THE NATURE AND TERMS OF THE STATUTE, SUCH INTENT IS SHOWN SO CLEARLY AS TO LEAVE NO ROOM FOR A REASONABLE DOUBT, THE STATUTE WILL NOT BE CONSTRUED TO OPERATE RETROACTIVELY. GIVING APPLICATION TO THIS ESTABLISHED RULE, NO RIGHT TO PAY AND ALLOWANCES AFTER RETURN TO INACTIVE STATUS ACCRUED TO THESE OFFICERS PRIOR TO JUNE 15, 1936. THESE CLAIMANTS WERE RECEIVING FURTHER MEDICAL TREATMENT ON THE EFFECTIVE DATE OF THE ACT OF JUNE 15, 1936, AND BY REASON THEREOF ARE ENTITLED AT GOVERNMENT EXPENSE TO:

* * * SUCH HOSPITALIZATION, REHOSPITALIZATION, MEDICAL AND SURGICAL CARE, IN HOSPITAL AND AT THEIR HOMES, AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT, AND DURING THE PERIOD OF SUCH HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN AN AGGREGATE OF SIX MONTHS AFTER THE TERMINATION OF THE PRESCRIBED TOUR OF ACTIVE DUTY OR TRAINING IN ANY CASE TO THE PAY AND ALLOWANCES, WHETHER IN MONEY OR KIND, THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED, AND TO THE NECESSARY TRANSPORTATION INCIDENT TO SUCH HOSPITALIZATION AND REHOSPITALIZATION AND RETURN TO THEIR HOMES WHEN DISCHARGED FROM HOSPITAL; * * *.

THE CLAIMANTS ARE, UNDER THIS STATUTE, ENTITLED TO PAY AND ALLOWANCES, WHETHER IN MONEY OR IN KIND, THAT THEY WERE ENTITLED TO RECEIVE AT THE TIME SUCH INJURY WAS SUFFERED OR DISEASE CONTRACTED, WHILE UNDERGOING HOSPITALIZATION OR REHOSPITALIZATION FOR NOT MORE THAN AN AGGREGATE OF 6 MONTHS FROM JUNE 15, 1936, LESS ANY TIME SO HOSPITALIZED DURING WHICH THEY WERE PAID UNDER THE ACT OF APRIL 26, 1928, FOR SUCH INJURY OR DISEASE AFTER RELIEF FROM ACTIVE DUTY.

FIRST LIEUTENANT SPERO WAS REGULARLY ASSIGNED TO ACTIVE DUTY FOR A PERIOD OF 6 MONTHS FROM SEPTEMBER 16, 1933, AND HIS ACTIVE DUTY STATUS WAS CONTINUED, WITH HIS CONSENT, BY FURTHER 6 MONTHS' PERIODS TO SEPTEMBER 15, 1935. HE WAS UNDER MILITARY ORDERS, CONTROL, AND JURISDICTION DURING THE ENTIRE PERIOD OF HIS ASSIGNMENT TO ACTIVE DUTY, AND HE IS ENTITLED TO PAY AND ALLOWANCES FOR THE ENTIRE ACTIVE DUTY PERIOD BY REASON OF HIS DEFINITE ASSIGNMENT TO ACTIVE DUTY. 9 COMP. GEN. 236. THIS CASE IS DISTINGUISHED FROM THE CASE OF SECOND LT. VINCENT FORD, 13 COMP. GEN. 323, WHOSE ACTIVE DUTY ASSIGNMENT WAS EXTENDED SO ASTO TERMINATE 6 MONTHS FROM THE DATE OF THE INJURY AND SUCH ASSIGNMENT WAS UNNECESSARY TO CONTINUE THE OFFICER'S RIGHT TO PAY AND ALLOWANCES UNDER THE ACT OF APRIL 26, 1928.

IF OTHERWISE CORRECT, PAYMENT IS AUTHORIZED ON THE VOUCHERS RETURNED HEREWITH, TO FIRST LIEUTENANT SPERO FOR ACTIVE DUTY STATUS FROM JUNE 1, 1935, TO SEPTEMBER 15, 1935, AND FOR THE PERIOD WHILE HOSPITALIZED FOR NOT MORE THAN AN AGGREGATE OF 6 MONTHS FROM JUNE 15, 1936, AND TO MAJOR DUNGAN AND FIRST LIEUTENANT MAZZOTTI, WHILE BEING HOSPITALIZED FOR THE DISEASES DETERMINED TO HAVE BEEN CONTRACTED WHILE ON ACTIVE DUTY FOR NOT MORE THAN AN AGGREGATE OF 6 MONTHS FROM AND AFTER JUNE 15, 1936.