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 21⁄2 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 herein before 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. The decision of the Department in the case of Clark was followed in the cases of Bertha Henrich, Reserve nurse, United States Navy; Roy Haynes, fireman, third class, United States Navy; and in the case of Private Henry, United States Marine Corps; in each of which cases the tuberculosis was first discovered within a few days after their appointment or enlistment in the naval service. Had this rule been applied to the case of ex-Lt. (Jr. Gr.) Russell H. Lindsay, United States Navy, as it unquestionably should have been applied, he would have been found to be suffering from tuberculosis, chronic, pulmonary, origin in the line of duty, not the result of his own misconduct, and, accordingly, placed on the retired list of the Navy in the grade of lieutenant, junior grade. (4) Ex-Lt. (Jr. Gr.) Russell H. Lindsay, United States Navy, having been appointed an officer in the Regular Navy, must be considered to have been in the naval service for all purposes from the date of his appointment, regardless of the fact that he did not report for duty on board the U. S. S. Maine until July 26, 1918. This conclusion is fully supported by the decisions of the court in the cases of United States v. Williams (23 Wall. 411), and United States v. Phisterer (4 Otto 219), and the decisions of the Navy Department in the cases of enlisted men who after enlisting were directed to return home and wait until they were ordered to report for active duty but who became ill before they were ordered to report for active duty. (5) The law does not require that tuberculosis and similar diseases must be shown to be due in any way to an incident of the service in order to be held to have originated in the line of duty. It is submitted that the argument presented in support of proposition (1) fully covers this conclusion, and shows conclusively that the naval retiring board in this case erred in holding that the disease, tuberculosis, was not shown to be the result of an incident of the service, and therefore not in the line of duty. When the retiring board found that the disease had its inception after his appointment as a naval officer the law applicable to the case required that said board further find that the disease originated in the line of duty, for the reason that it is not contended by anyone connected with this case that this disease was due to his own misconduct or to any incident not connected with the service arising since his appointment as an officer of the Navy. The records in this case show that the tuberculosis specialists at the Cragmore Sanitarium, where ex-Lieutenant Lindsay was under treatment from November 26, 1918, to July 20, 1920, by the authority of the Navy Department, were emphatically of the opinion that his disease was incurred after his appointment as a naval officer and in the line of duty, to wit, their signed statement: This is to certify that Lt. Russell H. Lindsay has been a patient in this sanatorium under our care from November 27, 1918. From the history of the case as well as from the physical signs, there is no doubt in our minds that Lieutenant Lindsay's condition developed after he had entered the Navy. He has very definite evidence of an early tuberculosis of recent development, and this evidence coincides with his statement that he was perfectly well at the time he entered the service. His trouble is recorded in his health record as not in the line of duty and we would recommend that someone with proper authority revise this decision. GERALD B. WEBB, M. D. It is also deemed pertinent to remark at this point that Dr. Gerald B. Webb was at that time president of the National Tuberculosis Association of the United States, and that the other doctors whose names appear to this statement are leading authorities on this disease. It is submitted that the opinion of such experts as these is not only deserving of great weight but that it clearly supports so much of the inding of the naval retiring board as holds that this disease had its inception after ex-Lieutenant (Jr. Gr.) Lindsay entered the naval service, and therefore in the line of duty. (6) The statement contained in the Navy Department's disapproval of bill (H. R. 13108) for the relief of ex-Lt. (Jr. Gr.) Russell H. Lindsay, United States Navy, that "there is nothing of record in this Department to place this case in the category of the exceptionally meritorious" is not supported by the facts. When there has been an obvious miscarriage of justice due to administrative action, as in this case, it follows that any bill for the relief of the individual who suffers from the miscarriage of justice is unquestionably of exceptional merit and should receive the approval of the department in which the miscarriage of justice complained of was consummated. That there has been a miscarriage of justice in this case is fully established by the facts hereinbefore presented. In conclusion it is submitted that due consideration of the facts. in this case and the law applicable thereto shows that the bill for the relief of ex-Lt. (Jr. Gr.) Russell H. Lindsay, United States Navy, now pending in Congress, should not only receive the approval of the Navy Department but also receive favorable action by the Committees on Naval Affairs of the Senate and House of Representatives, and the approval of Congress by enacting it into law at an early date. It is accordingly submitted that this bill is entitled to receive and should receive favorable consideration. The following letter from the Secretary of the Navy sets forth the Navy Department's view of the bill and is hereby made a part of this report: NAVY DEPARTMENT, Washington. D. C., February 12, 1935. The CHAIRMAN COMMITTEE ON NAVAL AFFAIRS, House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: The report and recommendation of the Navy Department on the bill listed below are the same as previously submitted to the Chairman House Naval Affairs Committee on the date indicated: H. R. 1714, February 13, 1932. Sincerely yours, CLAUDE A. SWANSON, Secretary. The above-mentioned report and recommendation are as follows: The purpose of this bill is to appoint Russell H. Lindsay, former ensign, United States Navy, an ensign, and retire and place him on the retired list of the Navy as an ensign, with retired pay of that grade as provided by law for officers retired by reason of physical disability incident to service. On June 3, 1918, former Lt. (Jr. Gr.) (T) Russell H. Lindsay, after having successfully passed both mental and physical examinations, was in accordance with the provisions of the act approved August 29, 1916 (39 Stat. 580; U. S. C., title 34, sec. 75), appointed an acting ensign for engineering duties only for a probationary period of 3 years, to rank from May 31, 1918. He accepted this appointment and executed oath of office on June 11, 1918. He was ordered to report for duty on July 22, 1918, but was later authorized to delay 5 days in reporting. He therefore reported for his first active duty in the naval service on board the U. S. S. Maine on July 26, 1918. On August 7 of the same year, 12 days after his first reporting for duty, he was admitted into the sick bay on board that vessel, complaining of weakness and with a cough, the diagnosis at the time being undetermined. The diagnosis was, however, on August 19, 1918, determined to be tuberculosis. In accordance with the provisions of the act of May 22, 1917, as amended, Mr. Russell was automatically promoted to the temporary rank of lieutenant (junior grade) from September 22, 1918. He was transferred to the naval hospital, Norfolk, Va., for treatment and later was detached from that hospital and ordered for further treatment to the naval hospital, Fort Lyon, Col., where he continued until December 23, 1920, when in view o the find ngs of a naval retiring board in his case his appointment was revoked and his connection with the naval service terminated. The naval retiring board, above referred to, found that the disability of Russell H. Lindsay was not incurred in the ine of duty. This bil, if enacted into law, will result in a cost to the Government of $1,125 per annum, minus whatever sum Mr. Lindsay may now be receiving from the Veterans' Administration. In view of the foregoing, the Navy Department recommends against the enactment of the bill H. R. 2978. This bill is similar to the bill S. 2088 introduced in the Seventy-first Congress. RELIEF OF PRESENT LEADERS OF THE UNITED STATES NAVY BAND AND THE BAND OF THE UNITED STATES MARINE CORPS APRIL 4, 1935.-Committed to the Committee of the Whole House and ordered to be printed Mr. VINSON of Georgia, from the Committee on Naval Affairs, submitted the following REPORT [To accompany H. R. 3216] The Committee on Naval Affairs of the House of Representatives, to whom was referred the bill (H. R. 3216) for the relief of the present leaders of the United States Navy Band and the band of the United States Marine Corps, having considered the same, report it to the House with the recommendation that it do pass. A similar bill (H. R. 7742) was passed by the House in the Seventythird Congress. The purpose of this bill is to give the present leader of the United States Navy Band the rank, pay, and allowance of a lieutenant in the Navy; and, in the computation of his pay and allowances, to count all naval service of whatever nature rendered by said leader as if it were commissioned service; and to retire the said leader as a lieutenant in the Navy in the same manner as other officers of the Navy of this rank and length of service, computed as stated above. On the recommendation of the Navy Department, the committee amended this bill so as to make the same provision for the leader of the band of the United States Marine Corps. By the act of March 4, 1925 (43 Stat. 1275 and 1274, ch. 536) Congress provided that the leaders of these bands should receive the pay and allowances of a lieutenant in the Navy and of & captain in the Marine Corps, respectively. This bill provides, at the discretion of the President, for extending the retirement of the leaders of these bands under the same conditions as are now enjoyed by lieutenants of the Navy and captains of the Marine Corps. By the act of March 3, 1927 (44 Stat. 1383-1384) Congress placed its stamp of approval on legislation of similar character by passing a bill providing for the retirement of the then leader of the band of the H. Repts., 74-1, vol. 2-7 |