Budget by the Secretary of War, after the views therein had been concurred in by the Administrator in a letter of November 6, 1939, it is said:

666* * * The medical establishment of the Regular Army has not the facilities for the care of discharged military personnel. To require the Army to care for such persons would seriously interfere with the ability of the medical department to fulfill its proper functions and duties in time of peace and war. The Executive order which vests administration of hospital benefits in the Veterans' Administration resolves one of the most serious objections to this feature of the act.'

"It is, therefore, apparent that the Executive orders (8099; 8461), and Public No. 262, Seventy-seventh Congress, substitute for the hospitals of the War Department, insofar as retired Reserve officers of the Army are concerned, hospitals of the Veterans' Administration."

3. Section 5, act April 3, 1939 (53 Stat. 557), as amended (act July 25, 1939, 53 Stat. 1079; 10 U. S. C. Supp. III, 456), provides in pertinent part:

11* * * That all officers, warrant officers, and enlisted men of the Army of the United States, other than the officers and enlisted men of the Regular Army if called or ordered into the active military service by the Federal Government for extended military service in excess of thirty days, other than for service with the Civilian Conservation Corps, and who suffer disability or death in line of duty from disease or injury while so employed shall be deemed to have been in the active military service during such period and shall be in all respects entitled to receive the same pensions, compensation, retirement pay, and hospital benefits as are now or may hereafter be provided by law or regulation for officers and enlisted men of corresponding grades and length of service of the Regular Army,

*

* * 11

Executive Order No. 8099, April 28, 1939 (4 F. R. 1725), as amended by Executive Order No. 8461, June 28, 1940 (5 F. R. 2436), and Executive Order No. 9051, February 6, 1942 (7 P. R. 839) providing for the administration of the benefits of the act of April 3, 1939, supra, provides in pertinent part:

"Whereas the said act is silent as to what agency shall administer the benefits provided thereby; and

"Whereas it is deemed appropriate and desirable that such administration be placed in the Veterans' Administration;

"Now therefore, by virtue of the authority vested in me as President of the United States, and by the act of July 3, 1930, chapter 863, 46 Statutes 1016, the duties, powers, and functions incident to the Administration and payment of the benefits provided by the statute as above set out are hereby vested in the Veterans' Administration: Provided, That in the administration of the retirement-pay provisions of the said statute, the determination of all questions of eligibility for the benefits thereof, including all questions of law and fact relating to such eligibility, shall be made by the Secretary of War, or by someone designated by him in the War Department, in the manner and in accordance with the standards, provided by law, or regulations for Regular Army personnel: * * *."

Section 1, act, September 26, 1941 (55 Stat. 733; 10 U. S. C., Supp. III, 456a) provides in pertinent part as follows:

* * * Reserve officers, Army of the United States, who were called or ordered into the active military service by the Federal Government for extended military service in excess of thirty days on or subsequent to February 26, 1925, other than for service with the Civilian Conservation Corps, and who are now disabled from disease or injury contracted or received in line of duty while so employed, shall be deemed to have been in the active military service during such period and shall be in all respects entitled to receive the same retirement pay and hospital benefits as are now or may hereafter be provided by law or regulation for officers of corresponding grades and length of service of the Regular Army.

"SEC. 2. That the duties, powers, and functions incident to the administration and payment of the benefits herein provided are hereby vested in the Veterans' Administration:

* * *"

The act of September 22, 1941 (55 Stat. 728; 10 U. S. C., Supp. III, 484), which authorized the appointment of officers in the Army of the United States without component during the present emergency, contains the following provision:

* * Provided further, that any person appointed as an officer in the Army of the United States under the provisions of this Act shall receive the same pay and allowances and be entitled to the same rights, privileges, and benefits as members of the Officers' Reserve Corps of the same grade and length of active services: * * *""

The act of June 15, 1936 (49 Stat. 1507; 10 U. S. C. 455a), as amended sec. 5, act, October 14, 1940 (54 Stat. 1137; 10 U. S. C. 455e) provides for certain hospitalization, medical and surgical care, at Government expense, for members of the Officers' Reserve Corps and of the Enlisted Reserve Corps of the Army and members of the National Guard of the United States who suffer injury or contract disease while on active duty under proper orders in time of peace, under such regulations as the President may prescribe.

The act of May 24, 1928 (45 Stat. 735), as amended act July 3, 1930 (46 Stat. 1016; 38 U. S. C. 581, 582), establishing the emergency officers' retired list, also extends to officers entitled to be placed thereon certain hospitalization privileges and medical treatment authorized by the Veterans' Administration.

Paragraph 6, Army Regulations 40-590, August 29, 1944, provides in pertinent part as follows:

"6. Persons who may be admitted to Army hospitals (provisions of this paragraph do not apply to the Army and Navy General Hospital (see A. R. 40–600)— General. When suitable facilities for hospitalization are available, sick and injured persons enumerated in b below may be admitted to Army hospitals. "b. List.

s.

*

"(1) The following personnel of the Army:

(a) Officers, male and female (active or retired or receiving retirement pay) (including Philippine Scouts).

"(b) Warrant officers, male and female (active or retired or receiving retirement pay) (including Philippine Scouts).

"(c) Flight officers (including those receiving retirement pay).

"(21) Beneficiaries of the Veterans' Administration in limited numbers in certain designated Army hospitals upon request of the proper representatives of the Veterans' Administration.

"(32) Such other persons as may be designated by the Secretary of War." 4. It is pertinent to observe at the outset that neither the questions in reference nor the various acts involved deal with the subject of hospitalization of members of the Regular Army, either active or retired. The act of April 3, 1939, supra, does not specify what agency should furnish the hospital benefits referred to in the act. However, Executive Order No. 8099, as amended, supra, does not specify what agency should furnish the hospital benefits referred to in the act. However, Executive Order No. 8099, as amended, supra, directs that the benefits of the act of April 3, 1939, be administered by the Veterans' Administration, and consequently there is no legal requirement that Army hospitals should be utilized for this purpose. The act of September 26, 1946, supra, with reference to certain Reserve officers expressly provides that the Veterans' Administration will administer its benefits and the same is true of the act of May 24, 1928, as amended, supra, with reference to officers on the emergency officers' retired list. The act of September 22, 1941, supra, with reference to the appintment of temporary officers in the Army of the United States without component, extends the same benefits to such officers as those enjoyed by Reserve officers and by parity of reasoning it follows that no legal requirement exists under that act as to hospitalization in Army hospitals of such temporary or former temporary officers who are not on active duty.

The act of June 15, 1936, as amended, supra, provides, subject to stated conditions, for hospitalization of Reserve and National Guard personnel on active duty under proper orders in time of peace.

This office has held that the War Department should in each proper case furnish hospitalization under the act of June 15, 1936, as amended, supra, until the existence of a disability entitling the patient to the benefits of the act of April 3, 1939, supra, has been officially determined, after which time hospitalization should be furnished by the Veterans' Administration (JAG 210.95, April 17, 1939).

It is still possible that there may be cases of injury or disease incurred in time of peace by Reserve or National Guard personnel on active duty, who are entitled to the benefit of hospitalization under the act of June 15, 1936, as amended, supra, and who would not qualify for such benefits under the act of April 3, 1939, supra. In such cases, hospitalization would not be furnished by the Veterans' Administration, under existing practices, and hospitalization should be furnished by the Army to carry out the requirements of the statute.

Although the use of the words "receiving retirement pay" in subparagraphs 6b (1) (a), (b), and (c), Army Regulations 40-590, supra, does not expressly

indicate the reference was intended to be made to the class of officers entitled to such benefits under the acts of April 3, 1939, and September 26, 1941, it is believed that the term has no other significance.

This conclusion finds support in the fact that the provision appearing in subparagraph 6b (1), Army Regulations 40-590, February 2, 1942, which is quoted in paragraph 2 above, was eliminated from Army Regulations 40-590, August 29, 1944.

5. It is therefore recommended that these papers be returned to the Surgeon General by first endorsement prepared for the signature of the Assistant Chief of Division, stating:

1. It is the opinion of this office that the act of May 24, 1928 (45 Stat. 735), as amended (act July 3, 1930, 46 Stat. 1016; 38 U. S. C. 581, 582), and section 5 of the act of April 3, 1939 (53 Stat. 557), as amended (act July 25, 1939, 53 Stat. 1079; act December 10, 1941, 55 Stat. 796; 10 U. S. C., Sup. III, 456), and the act of September 26, 1941 (55 Stat. 733; 10 U. S. C., Sup. III, 456a), do not require that hospitalization be furnished in Army hospitals, but require the Veterans' Administration to furnish hospitalization to the persons entitled thereto under the mentioned statutes. The act of June 15, 1936 (49 Stat. 1507; 10 U. S. C. 455a, as amended by sec. 5, act October 14, 1940, 54 Stat. 1137; 10 U. S. C. 455e), provides under such regulations as the President shall prescribe, for hospitalization, at Government expense, for members of the Officers' Reserve Corps, the Enlisted Reserve Corps, and the National Guard of the United States who suffer injury or contract disease while on active duty under proper orders in time of peace. Paragraph 14, Army Regulations 35-3420, March 10, 1943, contemplates that as to members of the Officers' Reserve Corps and of the Enlisted Reserve Corps such hospitalization shall be in Army hospitals.

2. Accordingly, no legal objection is perceived to reinserting in subparagraph 6b (1), Army Regulations 40-590, August 29, 1944, to the provision quoted in paragraph 2 of the basic letter with the changes therein suggested. However, in the interest of greater accuracy and completeness it is suggested that the provision in question be changed to read substantially as follows:

Persons entitled to hospitalization under section 5, act April 3, 1939 (53 Stat. 557), as amended (act July 25, 1939, 53 Stat. 1079; act December 10, 1941, 55 Stat. 796, 10 U. S. C., Supp. III, 456; N. L. 1939, Supp. II, sec. 1117), or under section 1, act September 26, 1941 (55 Stat. 733; 10 U. S. C., Supp. III, 456a, N. L. 1939; Supp. II, sec. 1117, or the act of September 22, 1941 (55 Stat. 728; 10 U. S. C., Supp. III, 484; N. L. 1939; Supp. II, sec. 2160a), and persons on the emergency officers retired list are not admissible to army hospitals except under the provisions of (21) (32) below; persons entitled to hospitalization under the act of June 15, 1936 (49 Stat. 1907), as amended (sec. t act October 14, 1940, 54 Stat. 1137; 10 U. S. C. 455a, 455е; N. L. 1939, sec. 1088), because of injury or disease incurred on active duty under proper orders in time of peace may be admitted.

3. Although the provisions of the Military Appropriation Act, 1945 (act June 28, 1944, Public Law 374, 76th Cong.), may be regarded as sufficiently broad in scope to enable the Secretary of War to admit to army hospitals inactive or former non-Regular army personnel "receiving retirement pay," it is the opinion of this office that there is no positive provision of any statute that requires that they be so admitted. Accordingly, it follows that there is no legal objection to the omission of the words "or receiving retirement pay" in subparagraphs 6b (1) (a), (b), and (c) Army Regulations 40–590, supra.

WILLIAM T. THURMAN,

Judge Advocate General's Department, Assistant Chief of Military Affairs Division.

Mr. ELSTON. That is the opinion dated December 13, 1944, of the Judge Advocate General?

Mr. STEVENSON. Yes.

We have no quarrel with the person who prepared this opinion for the Judge Advocate. There is no positive provision of any statute that required that non-Regular officers receiving retirement pay under the act of April 3, 1939, be admitted to army hospitals, but neither is there any positive provision of any statute that requires that retired officers of the Regular Army be hospitalized. However,

army regulations authorize hospitalization of Regular officers and since the act of April 3, 1939, states that non-Regular officers shall be entitled to the "same hospital benefits" we feel justified in charging the Army with discrimination against non-Regular officers, and with failure to abide by the laws of Congress.

Now the question of hospitalization in army hospitals is not too important practically as it is unlikely a great number of AUS officers would care to take advantage of it even if it were available. My reason for discussing the subject at some length is to show that the army seems to have discriminated against retired non-Regular officers and in favor of retired Regulars contrary to a clearly expressed law. I have seen very little in the nature of complaint or criticism concerning treatment accorded reserve personnel of the Navy and Marine Corps. Why so many complaints about the Army and so few about the Navy? There seems to be but one answer. The Navy has always been more considerate of its reserve personnel-its nonRegular forces.

The laws under which World War I military and naval emergency forces were raised were quite similar. The Navy Department's interpretation of the law was reasonable and liberal. The intent of Congress was read into the law and reserve officers of the Navy and Marine Corps permanently incapacitated for service by line of duty disability were retired. They received the same pay and other benefits enjoyed by retired Regular Navy officers, including hospitalization and commissary privileges.

On the Army side the later enactment of the E. O. R. L.-emergency officers retired law in 1928-was required to definitely show the Army that when enacting the Selective Service Act in 1917, Congress intended that the emergency forces should be entitled to both the active service and retirement disability benefits provided for regular army personnel. However, the Army's interpretation of that part of the law pertaining to disability was directly the opposite of that of the Navy. The War Department read out of the law that which we believed was clearly intended by Congress.

Reserve officers of the Army who were disabled in line of duty were discharged, told that they were civilians, and advised to go to the Veterans' Administration for relief.

Reserve officers of the Army and Reserve officers of the Marine Corps wounded in the same battle-side by side in Belleau Woodwere treated differently.

The marine was retired and the army officer was discharged. This was not because of difference in the laws. It was due to the difference in attitude toward reserve personnel. The Navy was considerate and friendly, while the Army was inconsiderate and unfriendly.

The Army has never been agreeable to placing disabled non-Regular officers on an equality with Regular officers and still is not.

The law under which World War II non-Regular officers receive retirement pay was opposed by the Army. Spokesmen for the War Department at that time urged that non-Regular officers be taken care of by the Veterans' Administration, or put under the Workman's Compensation Act.

Failing in their efforts to prevent adoption of the amendment they proceeded to nullify the law, to some extent, by interpretation, regulations, and instructions. To my knowledge the Navy has never

offered any objection to legislation to place Reserve officers on an equality with Regular officers when disabled during war service. As a matter of fact it is my understanding that the law (Public Law No. 775, 76th Cong.) under which Reserve officers of the Navy and Marine Corps receive retirement pay-and other benefits-was enacted at the request of the Navy Department.

Section 4, Public Law No. 775, Seventy-sixth Congress, provides that officers of the Naval Reserve and Marine Corps Reserve who suffer disability in line of duty shall be in all respects entitled to receive the same retirement pay and hospital benefits provided by law or regulation for officers of the Regular Navy.

Section 5-Public Law No. 18, Seventy-sixth Congress, the same. Congress provides that officers of the Army of the United States, AUS non-Regular emergency, who suffer disability in line of duty shall be in all respects entitled to the same retirement pay and hospital benefits provided by law or regulation for officers of the Regular Army.

The language used in these two laws is identical. Can two laws, containing identical language, and enacted by the same Congress, be properly held to be different in effect? They have, though.

The Navy Department transferred disabled Reserve officers to a retired list. Those gentlemen who served honorably, were wounded in combat, or otherwise disabled in line of duty, are considered to be retired navy officers. They have the same hospital benefits and commissary privileges as Regular officers who have been retired because of disability. They are proud of their service and are boosters for the Navy.

Now, let's see how the Army treated its Reserve or non-Regular personnel. The first step was the issuance of an order transferring the burden of payment from the Army to the Veterans' Administration. Next, AUS officers who became eligible for retirement pay because of wounds or other line of duty disability, were told that they had no permanent military status, that upon relief from active duty because of disability they would remain in an inactive status for the duration plus 6 months at which time they would become civilians.

They were then told that after relief from active duty they could no longer make purchases at commissaries or post exchanges, a privilege enjoyed by retired Regulars, and finally they were told that they could not be admitted to Army hospitals, another privilege enjoyed by retired Regulars.

The Navy gives everything authorized by law or regulation. The Army seems to give nothing and the result is that many disabled nonRegular officers, some of whom have won the highest decorations the Government can bestow for gallantry in action, have a feeling-well, it borders on contempt for the Regular Army. That is not a healthy situation and it is wholly unnecessary.

Leadership is necessary in military activity and the Army could do much better than it has up to now to increase interest in our present Reserve and National Guard activities.

My criticism of the Army attitude relative to hospitalization could be equally applicable to the matter of commissary privileges. There is no law requiring the Army to sell commissary supplies to retired Regular personnel. This privilege is extended by regulation. If the general laws are broad enough to permit sales to retired Regular