it an opinion of the Solicitor of your Department dealing with the claim of one Sidney Floyd Love for a pension under sections 4692 and 4693 of the Revised Statutes (U. S. C., Title 38, secs. 151 and 152), and your Department has later advised that your letter should be construed as a request for an opinion upon the Love case, the facts of which are stated in the Solicitor's opinion substantially as follows:

Love was enlisted in the Navy, detailed as night master-atarms in the United States naval hospital, Great Lakes, Ill., with tour of duty from 9 p. m. to 8 a. m., and liberty from 1 p.m. to 8.30 p. m. On July 12, 1926, he checked out on liberty at 6 p. m., and while returning to his post of duty on his own motorcycle between 8 and 8.30 p. m., he was caught between two automobiles and his right ankle crushed between the running board of one of the automobiles and his motorcycle. The medical report states that he showed no evidence of being under the influence of alcoholic liquor, and no negligence was apparent. His leg was amputated at six inches above the knee. The Navy Department has furnished him with an artificial limb with which he is able to walk fairly well. The injury was reported as having Occurred in line of duty and he was honorably discharged on April 8, 1927, on the recommendation of the Board of Medical Survey.

Section 4692, R. S. (U. S. C., Title 38, section 151), provides:

"Every person specified in the several classes enumerated in the following section, who has been, since the fourth day of March, eighteen hundred and sixty-one, or who is hereafter disabled under the conditions therein stated, shall, upon making due proof of the fact, according to such forms and regulations as are or may be provided in pursuance of law, be placed on the list of invalid pensioners of the United States, and be entitled to receive, for a total disability, or a permanent specific disability, such pension as is hereinafter provided in such cases; and for an inferior disability, except in cases of permanent specific disability, for which the rate of pension is expressly provided, an amount. proportionate to that provided for total disability; and

such pension shall commence as hereinafter provided, and continue during the existence of the disability."

Section 4693, R. S., (U. S. C., Title 38, section 152), so far as material here, provides:

"The persons entitled as beneficiaries under the preceding section are as follows:

"First. Any officer of the Army, including regulars, volunteers, and militia, or any officer in the Navy or Marine Corps, or any enlisted man, however employed, in the military or naval service of the United States, or in its Marine Corps, whether regularly mustered or not, 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."

The meaning of the phrase "in the line of duty," as used in the War Risk Insurance Act of June 25, 1918, (40 Stat. 609, 611), was fully considered by Attorney General Palmer in the first opinion to which your question refers, dated August 21, 1919 (32 Op. 12), in which he discussed an opinion of Attorney General Cushing, rendered in 1855 (7 Op. 149), with respect to the meaning of the phrase in the pension laws then existing, and reviewed the few judicial decisions which have dealt with the subject. Attorney General Palmer's conclusions are stated as follows (pp. 19, 22-23):

66* * The mere fact that an injury or disease is coincident in time with service is not sufficient to class it as suffered or contracted 'in the line of duty.' It must have been caused by the presence of its victim in the line of duty when it was received or contracted. But the relation of causation is sufficiently shown when it appears that the victim was at a place and doing what was required or permitted by his duty as a soldier, and that, between his presence and conduct and the injury or disease, no adequate and sufficient cause, for which he is responsible, intervened. This, I think, is the true meaning of the criterion laid down by Mr. Cushing (7 Op. 149, 162).

*

*

"I agree that a leave of absence, an ordinary furlough, or an arrest does not remove a soldier from the active service

But, on duty, on furlough, or under arrest, he may do things both within or without the line of duty which, though entirely free from the imputation of misconduct, may cause injury or disease. While in the active service and submitting to its rules and regulations he is, in general, in the line of duty, and an injury suffered or disease contracted under these circumstances is suffered or contracted in the line of duty unless it is actually caused by something for which he is responsible which intervenes between his service or performance of duty and the injury or disease. He will be responsible for an intervening cause if (1) it consists of his own willful misconduct or (2) it is something which he is doing in pursuance of some private avocation or business." (Words in parenthesis supplied.)

This ruling was approved by Attorney General Sargent, on January 18, 1929 (35 Op. 508, 510), wherein, after quoting in part the above language of Attorney General Palmer, he said:

"I think the above interpretation is the correct one, and applies equally to the phrase (in line of duty) as used in (section 1 of) the Emergency Officers' Retirement Act (of May 24, 1928, 45 Stat. 735)." (Words in parenthesis supplied.)

In the second opinion to which your question refers, dated June 2, 1920 (32 Op. 193), Attorney General Palmer applied to certain specific cases the construction of the phrase which he had earlier expressed. One of these cases was that of an electrician in the United States Naval Reserve Force on duty at Boston, Mass., who was granted liberty on Saturday until the following Monday and was returning on Sunday night from his home in Berlin, N. H., to his post in Boston, when he met his death in consequence of the automobile in which he was traveling being struck by a railroad train. The Attorney General ruled that he was killed "in the line of duty" within the meaning of section 300 of the War Risk Insurance Act, saying (page 197):

66 * * * An ordinary furlough or short leave of absence, however, is a part of the disciplinary regulations of the military service, and the furloughed soldier is still, generally speaking, employed in the active service and, I

am convinced, in the line of duty, so long as he complies with the regulations and with the terms of his furlough. Such a furlough, of course, contemplates traveling by the ordinary means, and such accidents as are liable to happen to one so traveling are logical incidents of the service. In the case stated, it was undoubtedly the duty of the electrician to return to his post before the expiration of his furlough. He was doing this when the accident causing his death occurred, there was no intervening cause for which he was responsible, and I am of the opinion that he was in the line of duty within the meaning of the statute."

The Solicitor of your Department states: "The record does not show that close investigation was made in respect to the precise circumstances under which the accident occurred." However, in view of the fact that the record fails to show the presence of any intervening cause for which the claimant was responsible and which would disentitle him to a pension this opinion is based on the assumption that no such intervening cause existed.

The phrase "in the line of duty," in section 4693 of the Revised Statutes, is identical with the phrase construed in the foregoing opinions. If, therefore, sections 4692 and 4693, Revised Statutes, were the only statutes to be considered, it would be clear from the above opinions that Love would be entitled to a pension. Those sections, however, must be read in connection with sections 4694 and 4700, Revised Statutes, which have no counterpart in the War Risk Insurance Act or in the Emergency Officers' Retirement Act.

Section 4694, Revised Statutes (U. S. C., Title 38, section 155), provides:

"No person shall be entitled to a pension by reason of wounds or injury received or disease contracted in the service of the United States subsequent to the twentyseventh day of July, eighteen hundred and sixty-eight, unless the person who was wounded, or injured, or contracted the disease was in the line of duty; and, if in the military service, was at the time actually in the field, or on the march, or at some post, fort, or garrison, or en route, by direction of competent authority, to some post, fort, or garrison; or, if in the naval service, was at the time borne on the books

of some ship or other vessel of the United States, at sea or in harbor, actually in commission, or was at some naval station, or on his way, by direction of competent authority, to the United States, or to some other vessel or naval station, or hospital."

Section 4700, Revised Statutes (U. S. C., Title 38, section 30), provides:

"Officers absence on sick-leave, and enlisted men absent on sick-furlough, or on veteran-furlough with the organization to which they belong, shall be regarded in the administration of the pension-laws in the same manner as if they were in the field or hospital."

Section 4694 was derived from the Act of July 27, 1868, section 2 (15 Stat. 235), and section 4700 from the Act of June 6, 1866, section 8 (14 Stat. 56, 57). By the Act of March 3, 1873 (17 Stat. 566), entitled "An Act to revise, consolidate, and amend the Laws relating to Pensions", the language of these enactments was changed to substantially their present form. In that Act what is now section 4694 appeared as a proviso to section 1, which enumerated the classes of persons entitled and the conditions under which they would be entitled to a pension (the matter now covered by sections 4692 and 4693), and what is now section 4700 as section 6.

Under section 4694 Love was not entitled to a pension unless at the time he sustained his injury he was at some naval station * * * or hospital," within the meaning of that section. The question is whether the above-quoted language necessarily requires the actual physical presence of the applicant within the boundaries of the station. Some light is thrown on the intention of Congress in that regard by the correlative expression" was at the time borne on the books of some ship or other vessel of the United States, at sea or in harbor, actually in commission." This language indicates that a sailor attached to a vessel would be within. the requirement if his disability occurred while he was on shore liberty in port, at least if this was of such short duration as not to interrupt materially his discharge of his duties. In view of this, it seems illogical to hold that absence for a few hours from a naval station or hospital on liberty or pass ipso facto defeats the right to a pension.

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