HOSPITALS, MEDICAL AND DENTAL
TREATMENT

§ 1. In General.

§ 11. Right to Hospital, Medical, or Dental Care and Treatment. § 15. Private Hospitals, and Medical or Dental Treatment.

§ 1. In General

§ 1.91. Title to eyeglasses, dentures and other prosthetic appliances. Platinum dental wire, dental gold, and assorted dentures which, in the course of dental treatment of eligible personnel, have been furnished by the Army to the patient, become the property of the patient subject only to the right of the Army to reclaim title thereto when they are removed pursuant to other dental work. (Citing SPJGA 1944/1849, 15 February 1944; SPJGA 1943/16858, 24 November 1943; JAGC 1946/8287, 21 October 1946; subpar 6d, AR 40–1705, 26 November 1946, as changed by changes No. 2, 3 February 1949; paragraph 7, AR 40-510, 10 September 1953; see also subpar 14b, AR 35-6560, 21 January 1943, as changed by changes No. 3, 5 October 1943; subpar 11c, AR 35-6520, 20 August 1946; subpar 1b (4), AR 35-6620, 17 May 1947; SR 40-340-10, 11 October 1951; subpar 3e (2) (f), AR 40-1010, 9 January 1946.)

In the event a patient wrongfully disposes of dental wire, dental gold, and assorted dentures furnished him in the course of dental treatment by the Army, he may be subjected to disciplinary action for commission of an act to the prejudice of good order and military discipline in violation of UCMJ, Art 134. The rationale of such view is based on the conclusion that by such conduct an unnecessary burden is placed upon medical services to furnish new dentures or inspect for serviceability any substitute dentures furnished at the patient's expense after he has wrongfully disposed of the government-furnished dentures. A specification substantially as follows should suffice: In that did, (at) (on board) about . . ., 19. ., wrongfully (destroy) (sell to) (lose) (damage) (discard) (dispose of) dentures furnished to him by the United States for use in the military service of the United States. JAGA 1953/9323. 30 November 1953.

on or

§ 11. Right to Hospital, Medical, or Dental Care and Treatment § 11.1. Generally.

An individual who, incident to a consideration of his case by the Army Board for Correction of Military Records, has been authorized to appear at an Army hospital for medical evaluation may be furnished hospitalization as a designee of the Secretary of the Army under the provisions of subpar 6 ad, AR 40-506, 19 Dec 1952, without charge. The reimbursement required of such a designee may be waived by the Secretary of the Army, so that the only charge assessed will be one for subsistence. (See AR 40-506, supra; Department of Defense Appropriation Act, 1953, PL 488, 82nd Congress,

compare par 28, AR 15-185, 14 Nov 1952.) JAGA 1953/1809. 10 February 1953.

§ 11.9. Retired persons.

Right of retired persons not in receipt of retired pay to hospitalization for themselves and dependents, see Op JAGN 1953/173, RETIREMENT § 15.1.

§ 15. Private Hospitals, and Medical or Dental Treatment

§ 15.1. Generally.

The wife of a member of the Army on active duty overseas gave birth to a child in a civilian hospital within the United States. Immediately prior to the birth she was in an ambulance under the control of military authorities when it was determined that, due to weather conditions, it would not be possible to take her to an Army hospital, and accordingly she was driven to a civilian hospital. The woman did not select treatment at the civilian hospital, since she realized that in doing so she would not be eligible for benefits from the Army. The question arose as to whether it would be possible for the Army to appropriate the necessary money for payment of the bill the woman received for services rendered at the civilian hospital. The Department of Defense Appropriation Act of 1953 (PL 488, 82d Cong) provides for "medical and dental care of personnel entitled thereto by law and regulation," including the families of members of the military (see Act of July 5, 1884, 23 Stat 112, 10 USC 96, ML 1949, sec 1085). Pertinent regulations provide for "the authorized care of Army military personnel including civilian components personnel by other Government agencies; for emergency medical care in civilian hospitals and by civilian physicians and dentists, including all expenses incident to such care, such as subsistence and ambulance charges" (SR 35-210-31, 4 June 1952). Further, the regulations enumerate persons entitled to medical care at the expense of Army Medical Service Funds, but dependents are not so enumerated (subpar 4a, AR 40-505, 12 July 1951). Subpar 4c thereof authorizes other persons to be afforded medical care in Army medical treatment facilities in accordance with the terms and conditions of AR 40-506, 19 Dec 1952, including dependents, but further provides that "Army Medical Service funds are not properly chargeable for any treatment rendered to such persons in other than Army medical treatment facilities." Held: Under the circumstances, Army Medical Service funds may not legally be used for the payment of the expenses incurred by the woman in question for maternity care rendered to her at the civilian hospital. The view has frequently been expressed that regulations made pursuant to, or in the execution of, a statute, have the force and effect of law until revoked, modified or suspended, and they cannot be waived by the Secretary of the Army in any specific case. Further, such regulations can be changed by the Secretary of the Army only by an effective modification of the old regulation, and such modification must be of a general and prospective, not retrospective, application (JAGA 1947/ 4743, 29 May 1947; CSJAGA 1949/4314, 26 July 1949). That the regulations above

were promulgated in pursuance to, and in execution of, the Department of Defense Appropriation Act of 1953, supra, admits of little doubt. Thus, they became a part of a statute itself, and the provisions thereof may not be waived. Because of this, the regulations prohibiting the use of Army Medical Service Funds for treatment of dependents in other than Army Medical treatment facilities may not be waived notwithstanding the peculiar circumstances under which the woman in question entered the civilian hospital. (See Lieber, Remarks on the Army Regulations and Executive Regulations in General (1898); 21 Comp Dec 482, 485; JAG 524.21, 26 March 1935; JAGA 1951/5217, 31 August 1951.) JAGA 1953/1933. 10 March 1953.

The accused was found guilty of housebreaking. The evidence established that shortly after midnight he entered a barracks building assigned to another company. Although the lights had been extinguished at the time, visibility was reasonably good and the accused was seen to inspect the pockets of various fatigue uniforms. An outcry by a barracks inmate caused him to flee but he was apprehended by a guard.

Held that:

- a necessary element of the offense of housebreaking is a trespassory entry, in view of the provision of UCMJ, Art 30, condemning one who "unlawfully" enters a building, etc., with criminal intent. A mere naked entry with a contemporaneous criminal intent is not sufficient. (Citing U. S. v. Spears, et al, 11 BR-JC 147; ACM 4523, Doskocil, 2 CMR 802; and other authorities.)

- the legality of the entry depends upon a determination of the issue of authorization, express or tacit. For the purpose of determining the authority to enter, buildings or structures may be classified into three principal groups: (a) those which are wholly private in character; (b) those which are public; and (c) those which are semiprivate. In the case of wholly private buildings such as one's home, every penetration must be regarded as unlawful in the absence of invitation, express or implied. In the case of buildings which are public in nature all unobstructed incursions must be regarded as authorized in the absence of a clear direction to the contrary. In determining the question of authority, permission or invitation to enter a semiprivate building the following factors, no one of which will necessarily control, may be considered: (a) the nature and function of the building involved; (b) the character, status and duties of the entrant, and even at times his identity; (c) the conditions of the entry, including time, method, ostensible purpose; (d) the presence or absence of a directive of whatever nature seeking to limit or regulate free ingress; (e) the presence or absence of an explicit invitation to the visitor; (f) the invitational authority of any purported host; (g) the presence or absence of a prior course of dealing, if any by the entrant with the structure or its imates, and its nature. -the evidence sufficiently established an illegal entry of the barracks, inasmuch as the accused was under no official duty to enter such building, he was not invited therein, and no authority could be

implied to enter late at night barracks other than his own and in which the lighting had been dimmed for sleeping. United States v. Williams (No. 2539), 4 USCMA 241, 15 CMR 241.

§ 3.21. Nature of building entered.

Barracks, see United States v. Williams, supra § 3.5.

Tent as building or structure within the definition of housebreaking, see United States v. Love, CONDUCT, ETC. § 59.9.

§ 15. Evidence, Weight and Sufficiency

§ 15.1. Generally.

The accused was found guilty of housebreaking. A witness testified that during the early morning hours he saw the accused in a tent, not his own, going through the pockets of pants. When he questioned the accused as to what he was doing the accused replied that he was looking for a friend. There was also some evidence that the accused admitted taking some money and offered to return it. The accused testified that he had entered the tent in an attempt to locate his friend and that he started to go when told that his friend had been returned to the United States but that the witness had interfered with his departure by accusing him of being a thief and striking him several times and that he had relinquished money which was in fact his own in order to escape. Held: The facts support the alleged illegal entry. Standing uncontradicted are those facts which show the accused was unknown to, and uninvited by, the occupants of the tent. The selfasserted purpose of his presence in the tent is far from convincing. (Citing U. S. v. Williams (No. 2539), 4 USCMA 241, 15 CMR 241; U. S. v. Love (No. 3663), 4 USCMA 260, 15 CMR 260.) United States v. Crunk (No. 3653), 4 USCMA 290, 15 CMR 290.

Sufficiency of evidence of unlawful entry, see also United States v. Williams, supra § 3.5.

§ 15.21. Participation in offense.

The accused was convicted of housebreaking. The evidence showed that he and one V. were on duty as air policemen under specific orders to enter the room concerned for the purpose of conducting a routine security check. Prior to entry of the room, V. formed a plan to steal certain moneys which they had observed on the preceding evening. The accused acquiesced in the plan. V. unlocked the door, entered the room and stole the money while the accused remained outside as a look-out. The accused testified that he and his companion were not checking the room at the time entry was made. The proceeds of the venture were later divided between the two.

Held that:

although the evidence clearly reflects that the accused did not personally enter the room in which the larceny occurred, he was aware of his companion's intentions, actively assisted him in the capacity of a look-out and shared in the spoils of the crime. Therefore, the accused is equally accountable for the acts of V. and