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decision. The periods covering the various Indian wars, the Mexican War, the Civil War, the Spanish-American War, the Philippine Insurrection, the Boxer Expedition, the Nicaraguan Campaign, the Vera Cruz Expedition, the Punitive Expedition into Mexico, and the World War, are the only periods of practical importance.
As regards the Mexican War, the Civil War, the Spanish-American War, and the World War, a state of general warfare existed and the military and naval forces of the United States were mobilized generally for participation in such warfare. There can be no doubt, I think, that one who served in the military or naval forces during any of the periods of such warfare was a veteran of the corresponding war and comes within the terms of the statute.
The courts have recognized some of the Indian Wars and the Philippine Insurrection as being wars within the meaning of that term as used in certain pay or bounty laws of the Army or Navy. Alire v. United States, 1 Ct. Cl., 233; Marks v. United States, 28 Ct. Cl., 147; Thomas v. United States, 39 Ct. Cl., 1. The same reasons that influenced the court in the cases cited are persuasive in deciding the war status of the Boxer Expedition, Cuban Pacification, Nicaraguan Campaign, Vera Cruz Expedition, and the Punitive Expedition into Mexico. In none of the wars mentioned in this paragraph did a state of general warfare exist, nor was there a general mobilization of all military and naval forces of the country for participation in these wars. Certain forces were mobilized for participation in a limited war service, and members of those forces only are veterans of those wars within the terms of this statute.
You submit the case of a veteran of the World War discharged in 1919, who reenlisted in March, 1922, and who died while receiving treatment in an Army hospital. The first question for decision is whether payment of burial expenses in such cases is governed by the first sentence of subparagraph (g) (2) of section 301 of the war risk insurance act hereinbefore quoted, or the last sentence thereof.
Section 22 of the act of August 9, 1921, 42 Stat., 155, amends the war risk insurance act by adding thereto the following:
SEO. 315. That no person admitted into the military or naval forces of the United States after six months from the passage of this amendatory Act shall be entitled to the compensation or any other benefits or privileges provided under the provisions of Article III of the War Risk Insurance Act, as amended.
The benefit or privilege of payment of funeral expenses provided by the amendment to section 301 now under consideration is one provided by Article III of the war risk insurance act. If the estate of the beneficiary in the instant case is to have the benefit of this amendment it is by virtue of his former service and discharge and not by virtue of his reentry into the service in 1922. His rights as a discharged veteran were not extinguished by his subsequent reentry into the service. His estate is entitled to the benefit of the provision of the section for discharged veterans, and he having died while receiving governmental hospital treatment, the benefit includes preparation and transportation of the body, in addition to the burial and draping expenses.
The last paragraph of the amendment under consideration makes special provision for persons who die while receiving medical, surgical, or hospital treatment, or vocational training. This special provision is.for additional payment of transportation of the body, including its preparation, and therefore applies only to those persons who are receiving treatment or training away from their homes. It covers all otherwise qualified patients receiving medical, surgical, or hospital treatment, whether in Government hospitals or other institutions where treatment is authorized, or who are treated under Government supervision, but does not, generally speaking, cover out-patients who are assumed to be treated at their homes. It covers also patients of the bureau who have been admitted to treatment and are en route to Government hospitals or other authorized institutions. It covers persons who die while re ceiving treatment at unauthorized places, either in emergency or in ignorance of their rights, only in case such persons are without means and the burial expenses are not otherwise provided for, and the bureau is called upon to bear the same. Generally speaking the bureau is not responsible for burial of unauthorized patients.
As hereinbefore stated, the condition that assets of the decedent's estate must be insufficient to pay expenses, and there must be no other provision for payment of same does not apply to those beneficiaries who die while receiving treatment or training, payment of expenses in such cases being in the nature of administration. In all other cases, however, payment by the Veterans' Bureau of burial or draping expenses is unauthorized if the expenses are covered by adequate provision made by either the United States, or the several States or other political subdivisions, or by fraternal or other organizations.
Paragraph (8) of subsection (g) of the amended section 301 provides:
That section 301 of the War Risk Insurance Act, as amended, shall be deemed to be in effect as of April 6, 1917 :
The section is thus made retrospective in that it is made to cover cases not within the purview of the section as formerly enacted. It is not retroactive as a repeal or modification of laws and regulations in force at the time of its enactment. It does not require a reopening of cases settled under the former laws and regulations nor does it disturb rights vested under those laws and regulations. All cases of deaths prior to March 4, 1923, coming within laws and regulations in force at the time of death will be settled under those laws and regulations. All other cases will be settled under the amendment of March 4, 1923, and such regulations as may be promulgated in accordance with its terms.
The proposed regulations should be amended to conform to the general principles laid down in this decision. It is thought that the decision covers all doubtful questions raised by the submission; but if there remains doubt in the bureau as to any question not covered in the decision, it may be submitted by the director for specific decision.
NATIONAL GUARD-ADDITIONAL PAY TO OFFICERS COMMANDING ORGANIZATIONS OF LESS THAN A BRIGADE AND HAVING ADMINISTRATIVE DUTIES.
The additional pay of $240 per year granted by section 14 of the act of June 10,
1922, 42 Stat. 631, to field officers and lieutenants of the National Guard commanding organizations less than a brigade and having administrative duties connected therewith, is payable only to such officers when commanding organizations to which they belong; and is not payable to medical officers whose duties include the supervision of the enlisted personnel of the medical detachments, to staff officers assigned to the staff of the respective commanders for duty with the headquarters companies, nor to officers of the headquarters personnel for Coast Artillery for fixed defenses below the grade of major or above the grade of captain. 2 Comp. Gen. 296, overruled
Comptroller General McCarl to the Secretary of War, June 12, 1923.
I have your letter of March 7, 1923, presenting several questions for decision which have arisen in determining the armory drill pay of National Guard officers under the provision of section 14 of the act of June 10, 1922, 42 Stat. 631, that
Hereafter, in addition to the pay authorized in section 109, Act of June 3, 1916, as amended by the Act of June 4, 1920, field officers and lieutenants of the National Guard commanding organizations less than a brigade, and having administrative functions, shall receive $240 per year for the faithful performance of the administrative duties .connected therewith;
The questions are of two classes; one relating to officers below the grade of major (in most, if not all, cases commissioned in the staff) who have supervision over a limited enlisted personnel and who are denominated in military parlance the commanding officer” of such enlisted personnel, and the question is whether they should be paid one-thirtieth of the monthly base pay of their grades subject to the limitations and conditions fixed in section 109 of the act of June 4, 1920, 41 Stat. 783, for each drill attended as a captain or lieutenant belonging to an organization of the National Guard; or whether they should be paid not more than four-thirtieths of the monthly base pay of their grades for the satisfactory performance of their appropriate duties as prescribed by regulations without reference to the drills of the enlisted personnel except as the performance of their duties requires attendance at such drills.
The other class of questions is whether certain officers are in command of organizations less than a brigade having administrative
functions and entitled to $240 per year, in addition to other armory drill
pay, for the "faithful performance of the administrative duties connected therewith."
The questions all seem to arise because of doubt as to what constitutes an organization having administrative functions within the meaning of the law. The noun “organization” is defined as "that which is organized”; and the verb “organize” is defined as “to bring into systematic connection and cooperation as parts of a whole, or to bring the various parts into effective correlation and cooperation, as, to organize the peasants into an army." In its broadest sense the entire National Guard of a State is an organization; and so, also,
every squad or platoon of an infantry company.
The statute, however, has indicated the organizations contemplated in this law by providing that they shall be less than a brigade and that they shall have administrative functions.
Paragraph 245, Army Regulations, 1913, provides in part:
In the Cavalry, Field Artillery, and Infantry arms the regiment is the administrative unit.
The battalion, in a regiment, is not an administrative unit and has no separate records; it is purely a tactical unit conveniently organized for instruction or maneuver, and particularly for combat, either as an integral part of the regiment to which it belongs or separated from it. It is appropriately commanded by a field officer, normally a major, regularly assigned in orders.
The regulations relating to regiments apply to battalions not organized into regiments unless otherwise specially provided.
Correspondence relating to the personnel, instruction, discipline, or equipment of a company, battery, or troop in battalion or squadron, will pass through the battalion or squadron commander. No official record, however, of such correspondence will be kept by the battalion or squadron commander.
Paragraphs 266 and 269, Army Regulations, 1913, provide in part: 266. The commanding officer of a company is responsible
for the proper performance of duties connected with its subsistence, pay, clothing, ac counts, reports, and returns.
269. Captains will require their lieutenants to assist in the performance of all company duties, including the keeping of records and the preparation of the necessary reports and returns.
Paragraphs 280 to 282 describe the records, reports, and papers to be kept by companies. The administrative duties contemplated are therefore of the character prescribed by Army Regulations for companies and regiments or separate battalions. Battalions of regiments have no administrative functions.
Section 109 of the act of June 3, 1916, as amended by section 47 of the act of June 4, 1920, 41 Stat., 783, provides in part:
Captains and lieutenants belonging to organizations of the National Guard shall receive compensation at the rate of one-thirtieth of the monthly base pay of their grades as prescribed for the Regular Army for each regular drill or other period of instruction authorized by the Secretary of War, not exceeding five in any one calendar month, at which they shall have been officially present for the entire required period, and at which at least 50 per centum of the commissioned strength and 60 per centum of the enlisted strength attend and
participate for not less than one and one-half hours. Captains commanding organizations shall receive $240 a year in addition to the drill pay herein prescribed.
In decision of February 13, 1922, 1 Comp. Gen., 424, it was held that a captain entitled to pay as an officer not belonging to an organization was not entitled to pay for commanding a company of which he was not a member. Under section 14 of the act of June 10, 1922, it was held, however, that a lieutenant paid as an officer not belonging to an organization, was entitled to the $240 additional pay for the command of the battalion headquarters company which devolved upon him by reason of his assignment to the battalion staff. It is to be observed that the provisions of section 14 of the act of June 10, 1922, do not include captains, the only provision for officers of that grade being in section 109 of the National Defense Act; captains, therefore, may not be paid the $240 additional pay except when in command of the companies to which they belong. 1 Comp. Gen., 424.
The provision contained in section 14 of the act of June 10, 1922, it seems evident, was not intended to make more extensive or liberal provisions for "field officers and lieutenants
commanding organizations less than an brigade” than was made for captains commanding organizations by the provision in section 109 of the National Defense Act but was designed to secure equality. The reason for the provision for captains commanding organizations is to assure them a certain pay for the performance of their company administrative duties in addition to the armory drill pay proper, dependent upon the attendance of a certain percentage of the commissioned and enlisted strength of the organization. The pay of “officers below the grade of major, not belonging to organizations,” is fixed at “not more than four-thirtieths of the monthly base pay of their grades for satisfactory performance of their appropriate duties, under such regulations as the Secretary of War may prescribe," and this pay is not dependent on the performance of duties or attendance at drills by any other member of the National Guard. It is obvious, therefore, when all of the provisions are considered, that section 14 increases the pay of field officers and lieutenants belonging to and commanding organizations less than a brigade and having administrative functions for the faithful performance of the administrative duties connected therewith, and that it does not include any officers below the grade of major not belonging to organizations who receive a stipulated pay for the performance of all of their appropriate duties. Accordingly, decision of October 28, 1922, 2 Comp. Gen., 296, will not be followed hereafter.
Section 14 of the act of June 10, 1922, does not establish any new organizations or authorize denominating a unit or detachment an