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The need for recreation and relaxation and the value of brief absences during off-duty hours are well recognized and are no less on shore duty than on sea duty.

Pension legislation is to be liberally construed in favor of the beneficiaries thereof, and limitations on the right to a pension such as those embraced in section 4694 should not be extended beyond the reasonable requirements of the language used.

It appears that a liberal construction of the phrase "at some post" has been given in the case of persons in the Service who are stationed at Washington. An early decision denied pensionable status in such a case. In the opinion of the Secretary of the Interior, dated April 15, 1884, on the claim of Samuel McMonigle (No. 471695), it was said:

"Not every soldier of the army is entitled to pension for disability incurred in the line of duty. On the 27th of July, 1868, Congress passed an act relating to pensions, the 2nd section of which was intended to place restrictions on the right of officers, soldiers and sailors to pension additional to those restrictions previously existing."

It was held that as the applicant was in the general service, Adjutant General's Office, he "was not in the field or on the march or at any post, fort, or garrison or en route to any post, port or garrison," and his claim should therefore be rejected. In a later decision, however, Claim of Martha M. Frisby (Widow), 3 Pension Decisions 344, it was held, in the case of an enlisted man who contracted disease of the lungs while engaged at clerical work in the office of the Surgeon General of the Army at Washington that Washington was a military "post" in the sense intended by section. 4694. I understand that this decision has since been generally followed.

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In my judgment it is an equally admissible construction of section 4694 that its requirement that the applicant must be "at some post, fort, or garrison," in the case of military service, and "at some naval station or hospital," in the case of naval service, is satisfied if he is regularly reporting for and discharging his assigned duties there, and that one injured while absent on a pass or permission of such short duration as not to interfere therewith is not by

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reason of that absence alone excluded from the benefits of the pension laws.

In the present case Love had his regular daily tour of duty from 9 p. m. to 8 a. m., and his daily period of liberty from 1 p. m. to 8.30 p. m. On the day of his injury he was away from the station less than three hours. His absence in no way interrupted his regular discharge of the duties to which he was assigned. In my judgment he was at some naval station or hospital" within the

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meaning of the statute.

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Under section 4700 officers absent on sick leave and enlisted men absent on sick furlough or veteran furlough are to be regarded in the administration of the pension laws in the same manner as if they were in the field or hospital. The suggestion may be made that application of the maxim inclusio unius est exclusio alterius necessitates the conclusion that a wound or injury received or disease contracted during any other kind of absence is not pensionable. In my judgment so broad an exclusion may not properly be implied. The maxim is an aid to interpretation, but the ultimate question is whether Congress intended any exclusion and, if so, the extent thereof. The context in which the word "absent" is used indicates that Congress had in mind extended absences. The expressions "sick leave" and "sick furlough " are apparently synonymous terms, the only difference being that the former applies to officers and the latter to enlisted men. Ordinary illnesses would be treated by the Army or Navy medical officers at the place where the man was stationed. The regulations of the Army and the Navy in effect when the Act of June 6, 1866, from which section 4700 was derived, was enacted, indicate that permission to leave a station for reasons of health was only granted in exceptional cases where, after careful examination, it was determined that this was essential to early recovery. Veteran furlough (now obsolete) also contemplated extended absence, usually of a group or organization.

Sick furlough and veteran furlough both involved absences of such a nature and duration that special treatment of them in the pension laws was appropriate. It is not probable that Congress had in mind ordinary passes or periods of liberty, or intended to legislate concerning them. Whether an offi

cer or an enlisted man wounded, injured, or taken sick upon such brief liberty would be entitled to a pension would thus be determined by whether he was then "in the line of duty."

Reading sections 4692, 4693, 4694, and 4700, Revised Statutes, together, I have reached the conclusion that the fact that Love's injury was sustained while he was outside of the boundaries of the naval station or hospital on a few hours' liberty does not in itself necessitate the conclusion that he was not injured "in the line of duty" or not entitled to a pension. In so advising you I am not unmindful of the fact that it is stated in the opinion of the Solicitor that the prevailing rule in your Department, subject to various exceptions which he points out, has been that “a soldier or sailor absent from his post of duty not on sick furlough is not in line of duty." I interpret your letter, however, as a request for my independent judgment upon the questions of law submitted, regardless of the former departmental practice.

For the reasons stated, I am of the opinion that Sidney Floyd Love, upon the facts stated and assumed, is entitled to a pension.

Respectfully,

CHARLES E. HUGHES, JR.,
Acting Attorney General.

To The SECRETARY OF THE INTERIOR.

PENSION CLAIM OF PRISCILLA S. LUTZ

Priscilla S. Lutz, widow of an officer of the Marine Corps whose death occurred by reason of injuries received in line of duty, the result of an aviation accident while employed in actual flying, is entitled to one pension for herself and her minor child under sixteen years of age, the issue of her marriage with said deceased officer, either under the provisions of sections 4702 and 4703 of the Revised Statutes, as amended, or under the provisions of the Act of May 1, 1926 (44 Stat. 382). Claimant must elect the statute under which she will apply for a pension, but she is not permitted to elect to receive part of her pension under one statute and part under another. Claimant is not entitled, under the facts herein stated, to receive a pension of $6 per month for her minor child under the Act of May 1, 1926, supra.

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DEPARTMENT OF JUSTICE,

January 13, 1930.

SIR: I have the honor to acknowledge receipt of your letter of August 12, 1929, transmitting a copy of the opinion of the Solicitor of the Department of the Interior and a memorandum by the members of the Board of Pension Appeals, from which it appears that Priscilla S. Lutz, widow of the late Charles A. Lutz, Major, U. S. Marine Corps, has applied for a pension for herself and her minor child under the age of sixteen years, the issue of her marriage with the deceased officer; that the deceased officer served more than ninety days in the military service of the United States during the war with Spain, and was honorably discharged on November 23, 1898; that in 1905 he became an officer in the Marine Corps and served in that Corps continuously until his death on June 23, 1928, having attained the rank of Major; and that his death was the result of injuries received in line of duty, the result of an aviation accident while employed in actual flying. It is stated further that:

፡ His widow became entitled to pension under the general law (Revised Statutes, section 4702, as amended by the Act of August 7, 1882, 22 Stat. 345), at the rate of $25 per month for herself and, under Revised Statutes, section 4703, $2 per month for the minor. By reason of the manner in which the officer met his death, and his employment at the time thereof, the widow became entitled under the Act of March 3, 1915 (38 Stat. 940), to double the foregoing

rates.

"Because of the officer's service during the war with Spain the widow on his death became entitled under the Act of May 1, 1926 (44 Stat. 382), to pension at the rate of $30 per month for herself and $6 per month for the minor.

"She elected to make application under the general law, and filed her application in her own behalf and for the minor child July 24, 1928. On August 7, 1928, at the suggestion of the then Commissioner of Pensions, she filed a supplemental application in behalf of the minor for pension under the Act of May 1, 1926.

"The effect of the application and the supplemental application, considered together, is to apply for pension for

herself at $50 per month under the general law and double pension law, and $6 per month for the minor under the Act of May 1, 1926."

You, therefore, submit the following question for my opinion:

"Is the widow of an officer of the Marine Corps whose death occurred by reason of injuries received in line of duty, the result of an aviation accident while employed in actual flying, entitled to receive for the minor child of the officer under 16 years of age only the $4 per month provided by Revised Statutes, section 4702, as amended by the Act of August 7, 1882 (22 Stat. 345), and as provided by the Act of March 3, 1915 (38 Stat. 940), or is she entitled to receive for the minor child $6 per month under the Act of May 1, 1926 (44 Stat. 382), she being entitled to pension under that Act, and having filed a supplemental application thereunder in behalf of the minor?

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Sections 4692 and 4693, Revised Statutes (U. S. C. Title 38, secs. 151 and 152), provide for pensions for officers and enlisted men of the Army, Navy, and Marine Corps 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, Revised Statutes (U. S. C. Title 38, sec. 191), provides:

"If any person embraced within the provisions of sections forty-six hundred, and ninety-two and forty-six hundred and ninety-three has died since the fourth day of March, eighteen hundred and sixty-one, or hereafter dies by reason of any wound, injury, or disease, which, under the conditions and limitations of such sections, would have entitled him to an invalid pension had he been disabled, his widow, or if there be no widow, or in case of her death, without payment to her of any part of the pension hereinafter mentioned, his child or children, under sixteen years of age, shall be entitled to receive the same pension as the husband or father would have been entitled to had he been totally disabled, to commence from the death of the husband or father, to continue to the widow during her widowhood, and to his child or children until they severally attain the age of sixteen years, and no longer; and, if the

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