In the first two cases cited, the question was whether for the purpose of awarding benefits under Public No. 2, Seventy-third Congress, the service rendered by veterans who were enlisted in the United States Navy, sent to their homes to await orders to report to the Naval Training Station and allowed active service pay, (was) to be considered active service? It was held in connection with this question, quoting from the the Administrator's Decision No. 131, that The act of March 20, 1933, repeals all public laws under which pensions to veterans were theretofore granted except so far as they relate to per sons who served prior to the Spanish-American War and to the dependents of such persons. This act contains entirely new pension legislation and with the regulations and instructions issued pursuant thereto_contains the only authority under which pensions may now be granted. To entitle any veteran to pension he must meet all the requirements specified in the act and regulations now in force. Veterans' Regulation No. 1, Instruction No. 6, provides, among other things, that "active service" shall not include any authorized leaves of absence during which no duty could be or was performed. and, therefore, * * the terms of the cited instruction clearly are broad enough to cover any status during which no duty could be or was performed, * In C-1,340,430, the claimant, a furloughed member of the Reserve of the Regular Army, was called to active duty June 25, 1917, and was given a pass (furlough) to July 14, 1917. On July 2, 1917, while working at his regular place of employment, he was injured. He was treated in an Army hospital from July 15, 1917, the day after he returned from furlough until August 2, 1917, when discharged on a certificate of disability by reason of this injury. The opinion in this case was based on Instruction 6, Veterans' Regulation No. 1, cited above, and held that thereunder the injury was not pensionable under Public No. 2, Seventythird Congress. Instruction 6, Veterans' Regulation No. 1, reads, in part: 1. In determining rights pursuant to Veterans' Regulation No. 1, active service shall be accepted as exclusive of unauthorized leaves of absence, or of periods of agricultural, industrial or indefinite furlough, or other authorized leaves of absence during which no duty could be or was performed, except leaves of absence for periods of one day, week-ends, and the like. The definition of "active service" shall be subject to the provisions of Veterans' Regulation No. 10, as they relate to "misconduct" and the definition of line of duty." "" * * * It is to be noted that this Instruction specifically excludes from the operation thereof" leaves of absence for periods *", i. e., a period of of one day, week-ends, and the like absence on pass such as is involved in this case. (AR 615-375 limits this word to leaves not exceeding three days.) Therefore, the rule above stated would not stand for application to the facts here. The veteran in this case, according to the record, was on pass when he secured remunerative employment. He was injured during such employment. While the report of the investigating officer shows that *Since the injuries were incurred as the result of private employment and in no way service connected, they must be deemed as being received "not in line of duty." No misconduct has been shown. * the "Certificate of Disability for Discharge," given this veteran states: (1) the disability was incident to service; (2) incurred in private avocation; (3) not due to own misconduct and (4) incurred in line of duty. If this case was for consideration under paragraph VIII, Veterans' Regulation 10 Series, prior to the amendment thereof by Public No. 439, Seventy-eighth Congress, the question of payment of pension would undoubtedly have been decided in the negative because of the provision in the legislation (removed by Public No. 439) that if the injury was suffered or the disease contracted, in pursuing some private business or avocation, the line of duty requirement would not be met. However, as stated, this provision was deleted from the governing statute by Public No. 439, Seventy-eighth Congress, and the fact of the deletion of the language which would have barred the payment of pension impels the conclusion that it was the deliberate intent of the Congress to authorize the payment of pension in such cases if such payment was otherwise authorized by law. The question of line of duty for payment of pension in this case must be tested by the language of Public No. 439, Seventyeighth Congress. Under that act the fact that the injury was incurred while on authorized leave is immaterial, since it is so specifically provided. The sole bar which the law provides is that it shall not be deemed incurred in line of duty if it was" the result of his own willful misconduct: HELD: As the facts do not indicate that the injury resulted from the claimant's "own willful misconduct" it follows that if otherwise in order, pension may be paid for the disability resulting from the injury. (Opinion of the Solicitor, May 23, 1946, approved May 31, 1946, C-4,938,476.) This decision is hereby promulgated for observance by all officers and employees of the Veterans' Administration. OMAR N. BRADLEY General, U. S. Army, Administrator of Veterans' Affairs. |