JUNE 9 (legislative day, MAY 13), 1954.-Ordered to be printed

Mr. LANGER, from the Committee on the Judiciary, submitted the

following

REPORT

[To accompany S. 1757]

The Committee on the Judiciary, to which was referred the bill (S. 1757) for the relief of Clair F. Bowman, having considered the same, reports favorably thereon with an amendment and recommends that the bill, as amended, do pass.

AMENDMENT

On page 2, line 4, strike the words "in excess of 10 per centum thereof".

PURPOSE

The purpose of the proposed legislation, as amended, is to pay to Clair F. Bowman (major, United States Army Reserve), of Cody, Wyo., the sum of $535.10, in full satisfaction of his claims against the United States for pay and allowances which he would have received had the effective date of his relief from active duty been properly adjusted to take into account the period from November 26 to December 22, 1946, during which he was hospitalized while on terminal leave, and for mileage allowance for travel incurred in returning from the hospital to his home in Lincoln, Nebr.

STATEMENT

This legislation has received the favorable recommendation of the Department of the Army. It appears from the report of the Department of the Army that the facts are as follows:

Major Bowman entered the Lincoln Army Air Force Hospital, Lincoln, Nebr., for emergency treatment on account of a kidney stone. He remained in that hospital under treatment until December 6, 1945, when he was taken by Army air transportation to the Army Air Force

58003-55 S. Repts., 83-2, vol. 3-88

regional hospital at Scott Field, Ill. While at the last-mentioned hospital the stone passed, and he was released from the hospital on December 22, 1945. Upon his release from the hospital Major Bowman requested that transportation be furnished to him from Scott Field to his home in Lincoln, Nebr. This request was denied on the ground that since this officer was then in a leave status, there was no authority to furnish him Government transportation to his home. He, therefore, returned to his home at his own expense.

Prior to November 9, 1945, the Army regulations governing terminal leave provided that an officer who was hospitalized while on terminal leave would automatically be placed on a duty status, thus suspending the running of his terminal leave while undergoing hospitalization. On that date new regulations were issued which provided that an officer who was hospitalized while on terminal leave would continue on terminal leave during his hospitalization. Subsequently, on December 22, 1945 (the same date that Major Bowman was released from the hospital at Scott Field), the regulations governing such a situation were again changed by a War Department telegram, effective that date, which directed the suspension of terminal leave during the period of the hospitalization of Army officers, and further directed that such change be put into operation by issuing amended orders to all officers who had entered Army hospitals subsequent to November 9, 1945, and who had not reverted to an inactive status. Such change was subsequently incorporated into Army Regulations 605-115.

The War Department telegram of December 22, 1945, presumably was sent to all Army installations in the United States. Upon the receipt of such telegram at the Army Air Force regional hospital at Scott Field the military authorities at that field should have immediately notified the commanding officer of the separation center at Fort Bragg, N. C., of the hospitalization of Major Bowman, and should have furnished information as to the exact period of time that he had been required to undergo hospitalization in Army hospitals while on terminal leave, so that appropriate amended orders might be issued extending the terminal leave of such officer in that amount of time plus the normal leave accumulated during such time. The military authorities at the Army Air Force regional hospital at Scott Field, however, erroneously failed to notify the commanding officer of the separation center at Fort Bragg of the hospitalization of this officer.

On December 29, 1945, Major Bowman wrote a letter to the separation center at Fort Bragg requesting that amended orders be issued extending the time of his terminal leave because of his hospitalization. He was advised by the separation center that such amended orders could not be issued until said separation center was officially informed by the Army Air Force regional hospital at Scott Field that he had in fact been hospitalized while on terminal leave.

On January 14, 1946, Major Bowman wrote a letter to the Army Air Force regional hospital at Scott Field requesting that said hospital advise the separation center at Fort Bragg of his hospitalization and disposition as a patient at said hospital, as well as at the Lincoln Army Air Force Hospital. On January 17, 1946, the commanding officer of the Army Air Force regional hospital at Scott Field wrote to Major Bowman and erroneously advised him that applicable Army regulations did not permit the suspension of terminal leave during his hospitalization while on a terminal leave status. Inasmuch

as the terminal leave of Major Bowman expired on January 24, 1946, at which time his release from active duty in the Army became effective, he had no further opportunity to contest that ruling before he was relieved from active duty.

The Department of the Army is of the view that this claimant is equitably entitled to be compensated by the United States in the amount of $535.10 as claimed in S. 1757. If the regulations which were in effect at the time of Major Bowman's release from active duty had been complied with by the Army authorities, he would have been considered as being in a duty status rather than on terminal leave during the period from November 26, 1945, to December 22, 1945, while he was being hospitalized, a period of 27 days.

The committee, after a study of the facts in this case, recommends favorable consideration of the bill, S. 1757 as amended."

NOVEMBER 6, 1953.

Hon. WILLIAM LANGER,

Chairman, Committee on the Judiciary,

United States Senate.

DEAR SENATOR LANGER: Reference is made to your letter inclosing a copy of S. 1757, 83d Congress, a bill for the relief of Clair F. Bowman, and requesting a report on the merits of the bill.

This bill provides as follows:

"That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Clair F. Bowman (major, United States Army Reserve), of Cody, Wyoming the sum of $535.10, in full satisfaction of his claims against the United States for pay and allowances which he would have received had the effective date of his relief from active duty been properly adjusted to take into account the period from November 26, 1946, to December 22, 1946, during which he was hospitalized while on terminal leave, and for mileage allowance for travel incurred in returning from the hospital to his home in Lincoln, Nebraska."

The records of the Department of the Army show that Clair Ferguson Bowman (referred to in S. 1757 as "Clair F. Bowman") was born at Waverly, Nebr., on June 23, 1900, being the son of Oscar Rufus Bowman and his wife, Mrs. Zadie Grace Bowman; that he graduated from the University of Nebraska as an electrical engineer in 1923; that on October 18, 1927, he was appointed a second lieutenant in the Corps of Engineers, Officers' Reserve Corps, Army of the United States, and was assigned Army Serial No. 0245952, and was duly sworn in as such on October 27, 1927; that he was promoted to first lieutenant on November 14, 1930; that he was reappointed a first lieutenant in the Corps of Engineers, Officers' Reserve Corps, on September 27, 1935, and took the oath of office as such on October 9, 1935; and that on March 19, 1938, he was promoted to captain. Captain Bowman was called into extended active service in the Army effective October 6, 1941, and was promoted to the grade of major in the Army of the United States on November 11, 1942.

On May 9, 1942, this officer was sent overseas. He served in military campaigns in North Africa, Sicily, France, and Germany. On July 28, 1945, Major Bowman left Europe for return to the United States, and he arrived back in this country on August 6, 1945. By Special Orders No. 256, dated September 27, 1945, issued by the commanding officer, Separation Center, Fort Bragg, N. C., it was provided that effective October 4, 1945, Major Bowman would begin 113 days' terminal leave, and that upon the conclusion of such leave on January 24, 1946, he would be relieved from active duty in the Army. The orders in question granted Major Bowman travel pay from Fort Bragg to his home in Lincoln, Nebr. It appears that this officer proceeded to his home in compliance with said orders. On November 26, 1945, Major Bowman entered the Lincoln Army Air Force Hospital, Lincoln, Nebr., for emergency treatment on account of a kidney stone. He remained in that hospital under treatment until December 6, 1945, when he was taken by Army air transportation to the Army Air Force regional hospital at Scott Field, Ill. While at the last-mentioned hospital the stone passed, and he was released from the hospital on December 22, 1945. Upon his release from the hospital Major Bowman requested that transportation be furnished to him from Scott Field to his home in Lincoln, Nebr. This request was denied on

the ground that since this officer was then in a leave status, there was no authority to furnish him Government transportation to his home. He, therefore, returned to his home at his own expense.

Prior to November 9, 1945, the Army regulations governing terminal leave provided that an officer who was hospitalized while on terminal leave would automatically be placed on a duty status, thus suspending the running of his terminal leave while undergoing hospitalization. On that date new regulations were issued which provided that an officer who was hospitalized while on terminal leave would continue on terminal leave during his hospitalization. Subsequently, on December 22, 1945 (the same date that Major Bowman was released from the hospital at Scott Field), the regulations governing such a situation were again changed by a War Department telegram, effective that date, which directed the suspension of terminal leave during the period of the hospitalization of Army officers, and further directed that such change be put into operation by issuing amended orders to all officers who had entered Army hospitals subsequent to November 9, 1945, and who had not reverted to an inactive status. Such change was subsequently incorporated into Army Regulations 605–115.

The War Department telegram of December 22, 1945, presumably was sent to all Army installations in the United States. Upon the receipt of such telegram at the Army Air Force regional hospital at Scott Field the military authorities at that field should have immediately notified the commanding officer of the separation center at Fort Bragg, N. C., of the hospitalization of Major Bowman, and should have furnished information as to the exact period of time that he had been required to undergo hospitalization in Army hospitals while on terminal leave, so that appropriate amended orders might be issued extending the terminal leave of such officer in that amount of time plus the normal leave accumulated during such time. The military authorities at the Army Air Force regional hospital at Scott Field, however, erroneously failed to notify the commanding officer of the separation center at Fort Bragg of the hospitalization of this officer. On December 29, 1945, Major Bowman wrote a letter to the separation center at Fort Bragg requesting that amended orders be issued extending the time of his terminal leave because of his hospitalization. He was advised by the separation center that such amended orders could not be issued until said separation center was officially informed by the Army Air Force regional hospital at Scott Field that he had in fact been hospitalized while on terminal leave.

On January 14, 1946, Major Bowman wrote a letter to the Army Air Force regional hospital at Scott Field requesting that said hospital advise the separation center at Fort Bragg of his hospitalization and disposition as a patient at said hospital, as well as at the Lincoln Army Air Force Hospital. On January 17, 1946, the commanding officer of the Army Air Force regional hospital at Scott Field wrote to Major Bowman and erroneously advised him that applicable Army regulations did not permit the suspension of terminal leave during his hospitalization while on a terminal leave status. Inasmuch as the terminal leave of Major Bowman expired on January 24, 1946, at which time his release from active duty in the Army became effective, he had no further opportunity to contest that ruling before he was relieved from active duty.

It is well established that where an officer of the military service has been relieved from active duty in accordance with original orders directing such release, amended orders may not thereafter be issued extending the time of the officer's active duty. While the Army authorities were in error in failing tc take the necessary action to amend the orders in this case so as to extend the terminal leave of Major Bowman prior to his release from active duty in the Army on January 24, 1946, the issuance of such amended orders after that date could not have operated so as to entitle him to additional pay and allowances for the period of time his active duty and terminal leave should have been extended on account of his hospitalization in November and December 1946 (26 Comp. Gen. 40).

The Department of the Army is of the view that this claimant is equitably entitled to be compensated by the United States in the amount of $535.10 as claimed in S. 1757. If the Army regulations which were in effect at the time of Major Bowman's release from active duty had been complied with by the Army authorities. he would have been considered as being in a duty status rather than on terminal leave during the period from November 26 to December 22, 1945, inclusive, while he was being hospitalized, a period of 27 days. During that time he would have accrued an additional 2 days' leave, and upon his discharge from the hospital at Scott Field, he would have been entitled to travel time of 2 days for his travel from said hospital to his home in Lincoln, Nebr. He would also

have been entitled to travel pay for such travel. Amended orders, therefore, should have been issued to this officer prior to his release from active duty extending his period of active duty and terminal leave until February 24, 1946, and authorizing the payment to him of travel pay covering his travel from Scott Field to his home. If such amended orders had been issued he would have been entitled to receive pay and allowances covering an additional month of active duty as well as the aforementioned travel pay, amounting in the aggregate to $535.10. The Department of the Army, therefore, would have no objection to the enactment of this bill.

The records of the Department of the Army show that on September 27, 1945, Major Bowman was commissioned a major in the Corps of Engineers, Officers' Reserve Corps, and that on April 8, 1952, he was promoted to the grade of lieutenant colonel in the Officers' Reserve Corps. Accordingly, for the purpose of accuracy, if this bill is favorably considered by the Congress, it is recommended that the word "major" on line 5, page 1 of the bill, be changed to "lieutenant colonel".

The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,