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This Department has been consistently opposed to the enactment of legislation for the benefit of an individual and not of general application to all similar cases, except where the attendant circumstances show the case to be an exceptionally meritorious one. There is nothing of record in this Department to place this case in the category of the exceptionally meritorious. It is therefore recommended that the bill (H. R. 13108) be not enacted.

On December 5, 1923, the above-quoted bill for the relief of exLt. (Jr. Gr.) Russell H. Lindsay was again introduced by Congressman Timberlake as H. R. 2418 and submitted to the Navy Department for its views and recommendations.

ARGUMENT

(1) When Russell H. Lindsay, ex-lieutenant, junior grade, United States Navy, was appointed an officer in the United States Navy, he was in sound physical condition, “there being no trace of any ailment or disability then (now) existing.”

This conclusion is not only supported by the finding of the board of medical officers convened at the Navy Yard, Washington, D. C., to examine into his physical condition at the time of his appointment and his prior medical history, but also by the fact that it took the naval medical officers who examined him when he reported sick on board the U. S. S. Maine, and subsequent thereto, 12 days to find out the nature of his disease. In other words, when ex-Lieutenant Lindsay reported sick his disease was of such a recent origin that the symptoms were not sufficiently developed to enable naval officers, trained in the medical profession, to determine the nature of the disease. This conclusion is further supported by the action of the naval retiring board in refusing to follow the conclusion of the medical members as to the possible date of the origin of this disease. The medical members held that the tuberculosis in this case existed prior to his appointment as a naval officer, presumably at the time that he was examined physically by the board of medical examiners to determine his physical qualifications for appointment. The retiring board held that his ailment originated after he was appointed an officer in the naval service.

The Attorney General in his opinion of August 21, 1919 (32 Op. Atty. Gen. 12, 21), which was in force and binding upon the naval service at the time this case was under consideration by the retiring board and the Navy Department, held that a soldier is to be deemed as having been in sound condition when accepted in the service, and further, that when it is shown that he had a disease during this term of service, that such disease must be deemed to have been contracted while he was in the service and in the line of duty, unless it is shown to be due to his own willful misconduct or to some act or course of conduct of his disconnected with his military duties. By way of illustration, the Attorney General pointed out in the same opinion that a soldier in camp may, during a rest hour, be employing his time by working on an invention wholly disconnected with the military service. He is, in general, in the line of duty but at the moment exercising a private right for private purposes. If an explosion is produced by the chemicals he is using, there is an intervening cause for which he is responsible, and the injury is not suffered in the line of duty. But if while so employed he is struck by lightning, or becomes ill, or is suddenly stricken with appendicitis,"clearly there has been no interven

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ber 21, 1918. This appointment to the grade of lieutenant, junior grade, was made in accordance with the provisions of the act of May 22, 1917, authorizing certain temporary appointments in the Navy and Marine Corps.

After his appointment as an officer in the United States Navy, this officer was ordered by the Navy Department (Bureau of Navigation) to report for duty on board the U. S. S. Maine, which order was complied with in due course, July 26, 1918.

While on duty on board this vessel on or about August 7, 1918, he reported sick and unable to properly perform his duties. It appears, however, that his symptoms were not sufficiently developed or pronounced to enable the medical officers on board to tell what his ailment was. He was transferred to the naval hospital ship Solace August 9, 1918, and transferred from this ship to the naval hospital at Norfolk, Va., August 15, 1918, where he was given a third examination without being able to determine the nature of his ailment. Finally, however, on August 19, 1918, the disease had developed to the point where the medical officers, with the aid of various examinations, diagnosed his ailment as tuberculosis, chronic, pulmonary, but the records show that even on that date the symptoms were not very pronounced. Having determined that this officer was suffering from tuberculosis, he was transferred to the naval hospital at Fort Lyon, Colo., for treatment.

This was the status of his case when he was ordered to appear before a naval retiring board, September 27, 1920, convened at Fort Lyon, Colo. The medical members of this board, after having examined ex-Lieutenant Lindsay, arrived at the following conclusion:

We are of the opinion that this condition was not derived in the line of duty, not due to his own misconduct, and existed prior to appointment in the naval service, as this condition was first noted after only 12 days' active duty in the naval service.

The other members of this board did not agree with the findings of the medical members and stated their conclusions in part as follows:

The board, having deliberated on the evidence before it, decided that * * his incapacity was incurred subsequent to his attainment of the rank of acting ensign for engineering duty only and prior to his attainment of the rank of lieutenant (junior grade) (), United States Navy, but was not incurred in the line of duty as a result of an incident of the service, and is not the result of his own misconduct.

The records of this board were forwarded to the department and approved by the President November 6, 1920, upon the recommendation of the Secretary of the Navy, and ex-Lieutenant Lindsay was discharged from the Navy December 23, 1920.

A bill for the relief of Mr. Lindsay was introduced in the House of Representatives in a previous Congress by Congressman Timberlake, of Colorado (H. R. 13108), which provided as follows:

That the President of the United States be, and he is hereby, anthorized to appoint Russell H. Lindsay, former lieutenant, junior grade, United States Navy, in which grade he served during the World War, a lieutenant, junior grade, in the United States Navy, and to retire him and place him on the retired list of the Navy as lieutenant, junior grade, with retired pay of that grade.

This bill, having been submitted to the Navy Department for its views and recommendations, the department recommended as follows:

*

This Department has been consistently opposed to the enactment of legislation for the benefit of an individual and not of general application to all similar cases, except where the attendant circumstances show the case to be an exceptionally meritorious one. There is nothing of record in this Department to place this case in the category of the exceptionally meritorious. It is therefore recommended that the bill (H. R. 13108) be not enacted.

On December 5, 1923, the above-quoted bill for the relief of exLt. (Jr. Gr.) Russell H. Lindsay was again introduced by Congressman Timberlake as H. R. 2418 and submitted to the Navy Department for its views and recommendations.

ARGUMENT

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(1) When Russell H. Lindsay, ex-lieutenant, junior grade, United States Navy, was appointed an officer in the United States Navy, he was in sound physical condition, “there being no trace of any ailment or disability then (now) existing.”

This conclusion is not only supported by the finding of the board of medical officers convened at the Navy Yard, Washington, D. C., to examine into his physical condition at the time of his appointment and his prior medical history, but also by the fact that it took the naval medical officers who examined him when he reported sick on board the U. S. S. Maine, and subsequent thereto, 12 days to find out the nature of his disease. In other words, when ex-Lieutenant Lindsay reported sick his disease was of such a recent origin that the symptoms were not sufficiently developed to enable naval officers, trained in the medical profession, to determine the nature of the disease. This conclusion is further supported by the action of the naval retiring board in refusing to follow the conclusion of the medical members as to the possible date of the origin of this disease. The medical members held that the tuberculosis in this case existed prior to his appointment as a naval officer, presumably at the time that he was examined physically by the board of medical examiners to determine his physical qualifications for appointment. The retiring board held that his ailment originated after he was appointed an officer in the naval service.

The Attorney General in his opinion of August 21, 1919 (32 Op. Atty. Gen. 12, 21), which was in force and binding upon the naval service at the time this case was under consideration by the retiring board and the Navy Department, held that a soldier is to be deemed as having been in sound condition when accepted in the service, and further, that when it is shown that he had a disease during this term of service, that such disease must be deemed to have been contracted while he was in the service and in the line of duty, unless it is shown to be due to his own willful misconduct or to some act or course of conduct of his disconnected with his military duties. By way of illustration, the Attorney General pointed out in the same opinion that a soldier in camp may, during a rest hour, be employing his time by working on an invention wholly disconnected with the military service. He is, in general, in the line of duty but at the moment exercising a private right for private purposes. If an explosion is produced by the chemicals he is using, there is an intervening cause for which he is responsible, and the injury is not suffered in the line of duty. But if while so employed he is struck by lightning, or becomes ill, or is suddenly stricken with appendicitis, “clearly there has been no interven

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ing cause for which he is responsible and the injury is suffered in the line of duty."

The Navy Department took exception to this opinion of the Attorney General and requested a reconsideration April 2, 1920. In making this request, the Navy Department conceded that the term "in line of duty” meant the same wherever used in the acts of Congress (court-martial order no. 5, 1921, p. 17, et seq.). The Attorney General in reply to the Navy Department June 2, 1920 (32 ibid., 193), reaffirmed his prior opinion, and by example pointed out further that it was not necessary to be employed on active duty in order to be in the line of duty, and that a disease such as tuberculosis need not be due to an incident of the service in order to be in the line of duty.

The Court of Claims, in the case of Moore v. United States (48 Ct. Cls. 110), also held that a soldier is "in line of duty" until separated from the service by death or discharge, if during such period he is submitting to all of its laws and regulations; and he is "in line of duty" while on leave of absence; but the wound or disease must not be the result of his own misconduct. (Syllabus.) The court further stated in this case as follows:

In this case, or in any claim under this statute, is the court to take and consider evidence as to when the disease of which the soldier died was contracted? In this age of the discovery and dispute as to disease, microbes, and germs, is the court called upon to take evidence and decide when the germs of typhoid fever, tuberculosis, or other diseases first began to incubate? If so, then the evidence might show that a soldier, engaged in active war duty for years, and in the midst of which he died of tuberculosis, contracted the disease before he entered the service.

We do not believe that any such narrow construction of this statute is demanded. We think that a reasonable construction of it confers the benefit whenever the soldier died, while in the service generally and submitting to its rules and regulations, from wounds or disease not the result of his own misconduct.

There cannot be any doubt that Congress has provided that an individual entering the military or naval service of the United States shall be considered as in sound physical condition when appointed or enlisted in said services. For example, in the act of March 3, 1885, Congress provided that "All applicants for pensions shall be presumed to have had no disability at the time of enlistment." Section 300 of the War Risk Insurance Act, approved October 6, 1917, as amended by the act approved December 24, 1919, is to the same effect, namely:

That for the purposes of this section, said officer, enlisted man, or other member shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service.

Section 300 of the War Risk Insurance Act above referred to, as amended by the act approved August 9, 1921, is likewise to the same effect, namely:

That for the purposes of this section every such officer, enlisted man, or other member employed in the active service under the War Department or Navy Department who was discharged or who resigned prior to the date of approval of this amendatory act, and every such officer, enlisted man, or other member employed in the active service under the War Department or Navy Department on or before November 11, 1918, who hereafter is discharged or resigns, shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, disorders, or infirmities made of record in any manner by proper authorities of the United States at the time of, or prior to, inception of active service, to the extent to which any such defect, disorder, or infirmity was so made of record.

It is accordingly submitted that under the law applicable to the line of duty, ex-Lt. (Jr. Gr.) Russell H. Lindsay, United States Navy, must be held to have been in sound physical condition when he was appointed an officer in the Regular Navy, and further, that the disease of tuberculosis having been discovered approximately 2 months after his appointment, said disease originated in the line of duty. This conclusion is further supported by so much of the finding of the naval retiring board convened in this case September 27, 1920, as stated that “his incapacity was incurred subsequent to his attainment of this rank of acting ensign for engineering duty only"; i. e., after he was appointed as an officer in the Regular Navy and submitting to all of its laws and regulations. He was subject to trial by general court martial for any offense which he might have committed and subject to disciplinary action for any breach of the laws of naval regulations governing the naval service.

(2) The naval retiring board having found that his incapacity was incurred subsequent to his appointment as an officer in the Regular Navy, it was estopped from finding that his disability was not incurred in the line of duty, in the absence of evidence showing that it was due to his own misconduct or to some incident arising outside the naval service after he had been appointed therein; for, under the decisions of the courts and the opinions of the Attorney General then in force, it was not necessary for the claimant to prove that the tuberculosis was the result of an incident of the service. In the opinions of the Attorney General above referred to and the decision of the court in the case of Moore v. United States, it was specifically pointed out that diseases such as tuberculosis and typhoid fever, discovered after the individual has entered the naval service, must be held to have originated in the line of duty, unless it is shown that said disease was due to his own misconduct or to some incident not arising subsequent to his entrance into the naval service and not connected with it.

(3) The fact that ex-Lt. (Jr. Gr.) Russell H. Lindsay, United States Navy, was found to be suffering from tuberculosis 2 months and 7 days after he entered the naval service precludes a finding of not in the line of duty, for the reason that under the law applicable to such cases it makes no difference whether the disease was discovered the next day after his appointment or 6 months thereafter.

This conclusion is supported by decisions of the Navy Department in a number of cases. For example, in the case of Lt. Stanley Mitchell, United States Naval Reserve Force, who was found to be suffering from tuberculosis within approximately 2 months from the date that he was ordered to active duty, the Department held that his disability was incurred in the line of duty, and, as a result of this holding, he was placed on the retired list of the Navy April 4, 1921.

This principle was also applied by the Navy Department in the case of Rodney G. Clark, apprentice seaman, United States Navy, in which the Department held, September 13, 1921, that

Applying the decisions hereinbefore noted to the case under consideration, it is my opinion that the disability complained of having been discovered after this man had entered the naval service, and no facts being presented showing that he was suffering from said disability prior to his enlistment or that his enlistment was obtained through fraud, such as to vitiate the effect of the physical examination given him at the time, it must be held that the disability complained of originated in the line of duty.

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