WILLIE A. McDONALD Decided June 23, 1931 In this case motion was dismissed since it was the second application for a motion, there being no provision in administration regulation No. 1 for the consideration of a second motion. HINES, Administrator of Veterans' Affairs: There was filed April 27, 1931, by Willie A. McDonald, a motion for consideration of the decision of the administrator of February 7, 1931, affirming the action of the Commissioner of Pensions in rejecting his claim for pension. A prior motion for reconsideration was filed February 14, 1931, and was denied April 9, 1931. Only one motion for reconsideration may be considered. The motion filed April 27, 1931, is dismissed for the reason that a motion previously filed was considered and ruled on. JEANNETTE BURDICK, WIDOW OF BERNIE BURDICK Decided July 7, 1931 Appellant contends that death occurred in line of duty. Held: Facts indicate that at the time of death veteran was on a Marine Corps truck, although on leave. Under standing orders he was the ranking officer and in charge of the truck. The Attorney General has confirmed the fact that the disability in this case was incurred in line of duty and also that he was within the provisions of section 4694, Revised Statutes, at the time of death. HINES, Administrator of Veterans' Affairs: This appeal was made to the Secretary of the Interior prior to the Executive order of the President of July 21, 1930, effecting a consolidation and coordination of all governmental activities affecting war veterans, as authorized by the act of July 3, 1930 (46 Stat. 1016). Pursuant to the provisions of such act, the appeal is considered and acted upon by the Administrator of Veterans' Affairs. Bernie Burdick enlisted in the Marine Corps, December 27, 1905. With the exception of short periods of time between reenlistments, his service was continuous to the date of his death, April 8, 1929. Jeannette Burdick filed, April 15, 1929, claim for pension as the widow of the soldier under the provisions of sections 4692 and 4693, Revised Statutes, and section 1 of the act of August 7, 1882 (22 Stat. 345), alleging that the soldier died as the result of injuries incurred in the service and in line of duty. The claim was rejected by the Commissioner of Pensions, December 19, 1929, on the stated ground of claimant's manifest inability to show that the death of the marine from injuries received while absent from his command, on liberty in pursuit of his own pleasure, was in any manner connected with his service in line of duty. From the action of rejection claimant has appealed. It appears from the evidence on file, which consists solely of reports from the records of the Marine Corps, that prior to the date of the marine's death he had for some time been stationed at brigade headquarters, and with the headquarters company of the First Brigade of the Marine Corps, at Port au Prince, Haiti. He was verbally authorized by the brigade commander to visit the marine barracks at Cape Haitien; to leave Port au Prince by Governmentowned truck at or about 6 a. m., April 8, 1929; and to return to Port au Prince by the same means of transportation, April 9, 1929. A corporal of the Marine Corps was directed by the motor-transport officer to take charge of the convoy of two Government-owned trucks. The trucks left Port au Prince for Cape Haitien, a distance of more than 100 miles, on the morning of April 8. The road is through a mountainous country, and it may be assumed that the trip would be of probably six hours' duration. At about 11:30 a. m. the convoy, after having stopped at a place called Ennery for luncheon, had proceeded from 3 to 4 miles in ascending a mountain. The corporal in charge was driving the forward truck. A private was riding with him on the seat. The rear truck was being driven by a private, and was about 250 yards to the rear of the forward truck. Burdick, claimant's husband, was riding on the rear truck. The driver of the rear truck lost control because of trouble with the steering gear, the truck left the road and continued over the mountainside, and Burdick was thrown from the truck and incurred injuries resulting in his death the afternoon of the same day. To entitle claimant to pension, it must appear that the injuries which caused the death were incurred in line of duty. Such a finding has been made by the authorities of the Marine Corps. While the record in this case shows that the veteran had been granted verbal leave of short duration, yet it will be noted that at the time of the injury he was riding on a Government-owned truck which was pursuing official duty in transporting certain supplies. Further, it appears that standing orders contained in the Brigade Manual of the Marine Corps provide: The senior in rank of those traveling on a motor vehicle is in charge of that vehicle. The brigade commander in report made to the Major General Commandant, United States Marine Corps, dated November 8, 1929, has indicated that at the time the injury was incurred the veteran was on Government property, and in a de facto duty status under the rule just quoted, and such facts have been urged to support the claim for pension made by the widow. It is believed, however, that more cogent reasoning warranting such a finding can be adduced. In decision of January 6, 1930, concerning the pension claim of Sidney Floyd Love, the Acting Attorney General stated that he concurred in the decision of his predecessor, Mr. Palmer, with regard to construing the phrase "line of duty," as set forth in the opinion dated August 21, 1919 (32 Op. 12). Mr. Palmer said: * * * The mere fact that an injury or disease is coincident in time with service is not sufficient to class it as suffered or contracted "in the line of duty." It must have been caused by the presence of its victim in the line of duty when it was received or contracted. But the relation of causation is sufficiently shown when it appears that the victim was at a place and doing what was required or permitted by his duty as a soldier, and that, between bis presence and conduct and the injury or disease, no adequate and sufficient cause, for which he is responsible, intervened. This, I think, is the true meaning of the criterion laid down by Mr. Cushing * * (7 Op. 149, 162). * Applying this definition of "line of duty" to the Love case, the Acting Attorney General stated that in his opinion Mr. Love was in line of duty at the time he received the accident in question. As is well known, Mr. Love, who was enlisted in the Navy, was on liberty from 1 p. m. to 8.30 p. m. on the date he was injured, and the injury occurred at or about 6 p. m. while he was returning to his post of duty on his own motor cycle. In like manner in the instant case it is therefore concluded that within the meaning of the decision in the Love case this decedent was also in line of duty at the time of the injury which resulted fatally to him. There remains for consideration whether or not the case is within that provision of section 4694 of the Revised Statutes which requires the veteran to have been actually in the field or at some post, fort, or garrison at the time his injury was incurred. A similar question was involved in the Love % * * case. * This case has received the attention of the Attorney General of the United States who, in decision dated June 12, 1931, has concurred in the finding that the death of the veteran occurred in line of duty and that there was a compliance with the provision of section 4694, Revised Statutes. The decision of the Attorney General is published in connection herewith and immediately following this decision. The action of the commissioner denying the claim is accordingly reversed and the record remanded for adjudication in harmony herewith. DEPARTMENT OF JUSTICE, SIR: I have the honor to comply with your request of November 15, 1930, for my opinion whether one Bernie Burdick, late a sergeant major in the United States Marine Corps, lost his life in the line of duty and under such circumstances as to entitle his widow Mrs. Jeanette Burdick, to a pension. The following facts appear from your letter and enclosures: Prior to his death, Burdick was stationed with the First Brigade of the Marine Corps, at Port au Prince, Haiti. He was verbally authorized by the brigade commander to visit the Marine Barracks at Cape Haitien, to leave Port au Prince by a Government-owned truck at or about 6 a. m., April 8, 1929, and to return to Port au Prince by the same means of transportation on April 9, 1929. A corporal of the Marine Corps was directed by the motor-transport officer to take charge of a convoy of two Government-owned trucks carrying supplies to Cape Haitien. The trucks left Port au Prince for Cape Haitien, a distance of more than one hunderd miles, on the morning of April 8th. The road is through a mountainous country, and the trip ordinarily requires about six hours. The corporal was driving the forward truck with a private riding beside him. Burdick was riding upon the rear truck, which was being driven by a private, and which was about two hundred and fifty yards behind the forward truck. About 11.30 a. m., while the convoy was ascending a mountain, the driver of the rear truck lost control of it, because of trouble with the steering gear, whereupon the truck left the road and plunged down the mountainside. Burdick received injuries which resulted in his death on the afternoon of the same day. Marine Corps authorities have found that Burdick was injured in the line of duty, such finding being based (1) upon the fact that although Burdick had been granted verbal leave of a short duration to visit the Marine Barracks at Camp Haitien, nevertheless at the time of the accident he was, at the express direction of the brigade commander, riding on a Government-owned truck which was pursuing official duty in transporting supplies to the Marine Barracks at Cape Haitien, (2) upon the fact that the accident happened without fault on his part, and (3) upon Chapter IV, section 4, paragraph 9, of the Manual of the First Brigade of the Marine Corps, which provides, in part, that: The senior in rank of those traveling on a motor vehicle is in charge of that vehicle. I am advised by the Navy Department that each brigade of the Marine Corps has its own manual, that the above provision of the First Brigade's manual places the senior in rank in charge of a motor vehicle en route on official business even though such senior is on furlough, and subjects him to Marine Corps discipline in the event he fails to perform that duty. Under these regulations Burdick at the time of the accident was in charge of the Government truck in which he was riding. Section 4692 of the Revised Statutes (U. S. C., title 38, sec. 151) provides that the persons specified in section 4693 of the Revised Statutes who are disabled under conditions therein stated shall, upon application, be entitled to receive a pension during the existence of such disability. Section 4693 (U. S. C., title 38, section 152), so far as material here, provides: The persons entitled as beneficiaries under the preceding section are as follows: * First. Any officer or any enlisted man, however employed, in the military or naval service of the United States, or in its Marine Corps, whether regularly mustered or not, disabled by reason of any wound or injury received. or disease contracted, while in the service of the United States and in the line of duty. Section 4702 of the Revised Statutes, as amended by section 1 of the act of August 7, 1882 (c. 438, 22 Stat. 345; U. S. C., title 38, sec. 191), provides that if any person within the provisions of sections 4692 and 4693, R. S., shall die by reason of any injury "which under the conditions and limitations of such sections would have entitled him to an invalid pension had he been disabled," his widow shall receive a pension. The meaning of the phrase " in the line of duty" in section 4693 was recently considered by Acting Attorney General Hughes in an opinion dated January 6, 1930 (36 Ops. 156, 158), involving the pension claim of Sidney Floyd Love. In that opinion it was held that Love, an enlisted man in the Navy, who was injured at 6 p. m. while returning to his post of duty on his own motor cycle, from a liberty granted to him from 1 p. m. to 8.30 p. m., was injured in the line of duty. Acting Attorney General Hughes there quoted with approval the following statement from 32 Ops. 12, wherein Attorney General Palmer considered the meaning of the words "in the line of duty" in the War Risk Insurance Act. * * * The mere fact that an injury or disease is coincident in time with service is not sufficient to class it as suffered or contracted "in the line of duty." It must have been caused by the presence of its victim in the line of duty when it was received or contracted. But the relation of causation is sufficiently shown when it appears that the victim was at a place and doing what was required or permitted by his duty as a soldier, and that, between his presence and conduct and the injury or disease, no adequate and sufficient cause, for which he is responsible, intervened. This, I think, is the true meaning of the criterion laid down by Mr. Cushing ** (7 Op. 149, 162). * * |