How many decibels?

Colonel Mugget. It is a combination of decibels and lack of hearing for a low conversation of voice.

Mr. SMART. I seem to recall, in reading over the conference notes of your conference of March 18, 1946, where it was stated that 40 decibels of hearing would be disabling.

Colonel MUGGET. I do not recall. not the present criteria, however.

Mr. SMART. I see.

I have the notes here. That is

Colonel MUGGET. It has to be associated with a hearing loss for low conversational voice. In other words, you may have 40 decibels lost, but it would be in a tone not ordinarily used the high tones, the whistling tones and not interfere with normal conversation.

Mr. SMART. I might say here that in looking over the files which I received from the Department of the Army I find more than 500 cases which have been retired where a deficiency in hearing is the primary cause if not the only cause of disability.

Colonel MUGGET. We still have a great many of them. I do not believe Lieutenent Frazer has lost a quarter of his hearing. If he had a loss of hearing I believe he would be able to be retired.

Lieutenant FRAZER. I cannot hear on the telephone; I can't hear a telephone ring.

Colonel MUGGET. It may be that your hearing is worse than it was. Lieutenant FRAZER. I have a ringing in my ears.

Colonel MUGGET. I believe he was to or will be going before a disposition board of the hospital before long, then meet another retiring board.

Mr. ELSTON. That is all, Colonel.

Now, are there any officers in the room who could speak as to whether Lieutenant Molitor would be qualified for general service? Mr. SMART. Are there any field-grade officers? There is a gentleman back there with his hand up. Stand up back there, please. Colonel HOOPER. I am an Infantry officer.

Mr. ELSTON. You have already testified.

Colonel HOOPER. That is right.

Mr. SMART. Any field-grade Infantry officers in the room?

Mr. ELSTON. Captain Ogden, I do not know of anybody who could testify to that better than you could, with all your experience. Would you consider Lieutenant Molitor qualified for general duty as an Infantry officer?

Captain OGDEN. I do not know. over the obstacle course at Benning first barrier. He can't hold a rifle. company.

The thing is, if you have been he could not even get over the I would not have him in my

Mr. ELSTON. You do not consider, in his present physical condition, he would be qualified as a general-duty officer?

Captain OGDEN. No, sir. He has to get out on the ground. He can't fulfill the duties of an Infantry unit commander.

Mr. ELSTON. Thank you. We appreciate you men coming here. Your testimony is very helpful to the committee.

The committee will recess until tomorrow morning at 10 o'clock, when we will meet in room 304.

(Whereupon, at 12:40 p. m., the committee stood in recess until 10 a. m. Friday, February 27, 1948.)

INVESTIGATION OF DISABILITY RETIREMENT SYSTEMS

IN THE ARMED SERVICES

FRIDAY, FEBRUARY 27, 1948

HOUSE OF REPRESENTATIVES,
COMMITTEE ON ARMED SERVICES,
COMMITTEE No. 11, LEGAL,
Washington, D. C.

The committee met at 10 a. m., pursuant to recess, Hon. Charles H. Elston (chairman) presiding.

Mr. ELSTON. The committee will come to order.

We will call first this morning Mr. G. D. Tilghman, national adjutant, the Disabled Emergency Officers of the World Wars.

STATEMENT OF G. D. TILGHMAN, NATIONAL ADJUTANT, THE DISABLED EMERGENCY OFFICERS OF THE WORLD WARS

Mr. ELSTON. Mr. Tilghman, I understand that you want to make a few remarks and then introduce a representative of your organization who will give further testimony. Is that correct?

Mr. TILGHMAN. That is correct.

Mr. ELSTON. Mr. Tilghman, do you have any statement to make with respect to the subject under consideration by the committee? Mr. TILGHMAN. No, Mr. Elston. Mr. Stevenson is going to make a statement. I would like to introduce Mr. Stevenson and have him present our case.

Mr. ELSTON. All right.

Mr. TILGHMAN. M. S. Stevenson, who appears as national commander of the Disabled Emergency Officers of the World Wars, had somewhat over 5 years' service as a reserve officer during and immediately following World War I.

His service in France in 1917 and 1918 was in the Sixteenth Infantry of the First Division, during which he took part in the operations against Cantigny, and in the Soissons offensive, the drive to reduce the St. Mihiel salient, and in the Battle of the Argonne.

On October 9, 1918, he was wounded in action, being hit by seven pieces of enemy high-explosive shell. One of these cut the sciatic nerve in his left leg and the resulting paralysis has required the use of a steel brace for these past 30 years. He was awarded the D. S. C. for bravery in action on the day he was wounded. Following his injury he spent 4 years in Army hospitals, having been discharged from service in August 1922. Upon the passage of the original emergency officers' retirement law in 1928 he was retired as a first lieutenant. Mr. ELSTON. All right, Mr. Stevenson, you may proceed.

74494-4815

STATEMENT OF LT. M. S. STEVENSON, NATIONAL COMMANDER, THE DISABLED EMERGENCY OFFICERS OF THE WORLD WARS

Lieutenant STEVENSON. A great deal has been heard recently about disability retirement. In the press and on the radio there have been allegations of irregularities, discrimination, and even fraud in the granting of disability benefits. It is the duty of this committee to ascertain whether there is any basis for the charges and make a full report to the Congress and to the American people.

If evidence of fraud should develop the guilty parties should be prosecuted to the full extent of the law. If there have been irregularities, corrective measures should be taken. I have no reason to believe there has been fraud, but it does appear that there has been some discrimination against non-Regular Army officers in the granting of disability retirement benefits.

Mr. ELSTON. You say against them?

Mr. STEVENSON. Against non-Regular Army officers in the granting of disability retirement benefits.

Now, the organization that I represent here today came into existence in 1919 because of what we then believed--and still believe-to have been arbitrary and illegal action on the part of the War Depart

ment.

Section 10 of the Selective Service Act of 1917, the law under which the World War I Army was raised specifically stated that officers and enlisted men in the emergency forces should be entitled to the same pay, allowances, and pensions as officers and enlisted men of corresponding grades and length of service in the Regular Army.

The Naval Reserve Act of that time contained similar language. The Navy Department ruled that Reserve and temporary officers were entitled to the same disability retirement benefits as Regular officers and promptly retired their non-Regular personnel, but the War Department took the position that while the law under which these officers were brought into the Army provided that they should receive the same pay, allowances, and pension as officers of the Regu lar Army, retirement pay could not be considered a pension as officers of the Regular Army, retirement pay could not be considered a pension and therfore non-Regular officers disabled in line of duty were not entitled to retirement pay.

It was at this time that non-Regular or emergency officers, then undergoing treatment for war injuries at Army hospitals throughout the country, organized to secure equality of treatment with the regulars, that the Selective Service Act had promised them.

After the passage of the Tyson-Fitzgerald law in 1928, Regular and non-Regular officers disabled in line of duty were, generally speaking. on an equal retirement pay status.

Now, we come to the World War II non-Regular officers. Section 1 of the National Defense Act, as amended by section 5 of the act of April 3, 1939, provides that those called into active service for extended military service in excess of 30 days and who suffered disability in line of duty from disease or injury while so employed, shall be, in all respects entitled to-and I quote now from the act

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.

Now, that language is clear and the intent is clear. Under the terms of this law a non-Regular officer disabled in line of duty to such extent that he is physically unfit for general service was to receive disability retirement pay and the same hospital benefits provided by law or regulation for retired officers of the Regular Army.

Have Army officials obeyed the law? Certainly not in the matter of hospital benefits. There is no law "requiring" hospitalization of retired officers of the Regular Army. However, paragraph 6, Army Regulations 40-590, authorizes hospitalization of such officers when, in the judgment of the commanding officer of the hospital, hospitalization for a reasonable time would be beneficial. Therefore, as long as such provision remains in the regulations, non-Regular retired officers are entitled to army hospitalization when in need of hospital treatment, provided, of course, admission to a hospital would not interfere with treatment of active-duty personnel.

I just do not see how the Army can hold that under existing law a retired Regular officer can be admitted to an Army hospital and a retired non-Regular is to be denied hospitalization. That, however, is what the Army has done.

Army Regulations No. 40-590, dated August 29, 1944, lists the following persons who may be admitted when suitable facilities for hospitalization are available:

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

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

(c) Flight officers (including those receiving retirement pay). On March 12, 1945, the regulations were amended and "officers receiving retirement pay" under the act of April 3, 1939, were not included in the list of persons eligible for admission to Army hospitals. Under date of March 13, 1945, the following day, I wrote the Adjutant General, called attention to the provisions of the act of April 3, 1939, and suggested that the regulations be amended to conform with the law. In a communication dated March 28, 1945, the Adjutant General advised that in the August 1944 revision of AR 40-590, the provisions of prior regulations excluding officers retired under the act of April 3, 1939, were omitted through a mistaken impression that the act required such officers to be admitted to Army hospitals.

This communication also made reference to an opinion of the Judge Advocate General dated December 13, 1944, in which it was held that section 5 of the act of April 3, 1939, does not require that hospitalization be furnished in Army hospitals to persons entitled to hospitalization under that section.

Having some doubt that the Judge Advocate General could find anything in the law that would support a ruling that retired officers of the Regular Army could be hospitalized and that retired non-Regulars could be denied the same benefits we requested a copy of the opinior.. I would like to submit this opinion for the record.

The concluding paragraph says:

Although the provisions of the Military Appropriation Act, 1945, 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.

Mr. ELSTON. We will admit the opinion in evidence.

Mr. STEVENSON. Thank you.

(The opinion referred to is as follows:)

SPJGA 1944/13371.

Memorandum for the Judge Advocate General.
Subject: Changes in Army Regulations 40–590.

DECEMBER 13, 1944.

1. By letter (SPMCL 300.3) dated November 22, 1944, the Surgeon General requested an opinion in connection with proposed changes to Army Regulations 40-590, August 29, 1944, respecting personnel who are entitled to hospitalization in Army hospitals.

2. The basic letter states that when an earlier draft of Army Regulations 40-590 dated May 8, 1944, was submitted to this office for comment (see SPJGA 1944 4757, June 1, 1944), the draft contained the following sentence at the end of subparagraph 6 (1).

"Officers on the Emergency Officers Retired List and officers retired under the provisions of the act of April 3, 1939 (53 Stat. 557, 10 U. S. C. 456), N. L. 1939, sec. 1117) are not admissible except under the provisions of (19) or (30) below." This sentence was omitted from the regulations (AR 40-590) which were promulgated on August 29, 1944.

Furthermore, the words "or receiving retirement pay" were inserted in subparagraphs 6b (1) (a), (b), and (c) of the mentioned regulations, after the draft of May 8, 1944, was submitted to this office.

Consequently, the opinion of this office (SPJGA 1944 4757, June 1, 1944) based on the draft of May 8, 1944, did not consider the precise questions now presented. The basic letter states that it is believed that the above-mentioned omission and additions were made to the regulations issued on August 29, 1944, because the officer in the Surgeon General's office who drafted the regulations thought the statutes referred to required the Army to provide hospitalization for the personnel mentioned therein. Subparagraphs 6b (19) and 30 of the mentioned draft of May 8, 1944, which are referred to in the omitted sentence, correspond to subparagraphs 6b (21) and (32) of the regulations (AN 40-590) issued on August 29, 1944.

The basic letter invited attention to an enclosed letter from the Administrator of Veterans' Affairs dated October 18, 1944, which in turn, invites attention to Executive Orders Nos. 8099 and 8461, under which the Veterans' Administration furnishes hospitalization to officers entitled to the benefits of the act of April 3, 1939, and inquires whether it was intended by Army Regulations 40-590, August 29, 1944, that the War Department would furnish hospitalization and out-patient treatment in Army hospitals to all retired Army officers, "including those who served as officers in other than in the regular establishment."

The basic letter further states that in view of the urgent necessity of using all available facilities of Army hospitals for sick and wounded personnel or active duty, the Surgeon General does not wish to admit retired personnel to Army hospitals unless it is legally required. In this connection, this officer (Lieutenant Anderson) is informally advised by the Office of the Surgeon General (Lieutenant Colonel Capen, Ext. 79901) that the term "retired personnel" as used in the letter in reference is not intended to include retired personnel of the Regular Army. Opinion is requested on the following questions:

(a) May the last sentence of paragraph 6b (1) which is quoted above and which appeared in A. R. 40-590, February 2, 1942, and in the May 8, 1944, draft of the present regulations, be reinstated, with appropriate changes of cross-references, without thereby excluding any personnel who are entitled to hospitalization in Army hospitals as a matter of law?

(b) As a collateral question, does the insertion in subparagraphs 6b (1) (a), (b) and (c) of the present A. R. 40-590 of reference to personnel receiving retirement pay enlarge the class of those admissible to Army hospitals by including personnel not legally entitled to such hospitalization? If so, is there any legal objection to the omission of such references from each of the three subparagraphs?" There was also enclosed an opinion of the Solicitor of the Veterans' Administration, dated December 9, 1941, which states, inter alia, as follows:

"Following the enactment of section 5, Public No. 18-Seventy-sixth Congress, act of April 3, 1939, supra-the President directed that a study be made thereof by the Veterans' Administration and the War Department for the purpose of determining whether action should be taken to have the said act repealed. On page 8 of a memorandum dated October 2, 1939, representing a study of said section, which memorandum was transmitted to the Director of the Bureau of the