11

or limb" " was preserved until 1944, when the Secretary of the Navy promulgated the forerunner of General Order No. 3.12 Since 1944, the question to be resolved has been whether a member's refusal is unreasonable. This test, so familiar to students of law, was soon incorporated into the Manual of the Medical Department 13 as the guideline for future misconduct determinations. With the passage of the Career Compensation Act of 1949, the concept of unreasonable refusal became an integral part of the disability evaluation system, even though the Disability Separation Manual did not appear until 1 April 1959.11

The procedure for processing members who refuse to submit to recommended medical or surgical treatment is set forth in the Manual of the Medical Department.15 If the treatment refused is other than "routine treatment for minor or temporary disabilities," 16 the member shall be transferred to a naval hospital. If he persists in his refusal, he will ultimately appear before a medical board, which will make recommendations regarding the reasonableness of his refusal. If the board decides that the member's refusal is unreasonable, it must afford the member "an opportunity to submit a written statement explaining the grounds for his refusal." The board's report, together with any statement the member may make, is then forwarded, via the Chief, Bureau of Medicine and Surgery, to the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate. If the recommendation of "unreasonable refusal" is upheld, and the member is considered unfit for further duty, the case will ultimately be referred to a Physical Evaluation Board.

17

It should be noted that the recommendation of the medical board, BUMED, and BUPERS or CMC are merely advisory. The Physical Evaluation Board, which consists of one medical member and two non-medical members, 18 must make its own determination as to the reasonableness of the member's refusal. Simi

11. CMO 72-1917 supra note 9. 12. G.O. 211 of 22 November 1944. 13. ManMed (rev. 1945), art. 3229.

14. It should be noted, however, that Secretarial regulations were published in the JAG JOURNAL soon after the Career Compensation Act became law. See JAG J., Jan 1950, pg. 7. Although the term "misconduct" was not defined therein, later promulgations did define "misconduct” as including an unreasonable refusal to consent to surgical or medical treatment. See 1951 NS MCM, sec. 0504g(2); 1955 NS MCM, sec. 0405i (2). 15. ManMed, art. 18-12(2).

16. Id. at art. 18-12(2)(a). “As a general rule, refusal of minor surgery should be considered as unreasonable in the absence of substantial contraindications." Id. at art. 18-12(2)(c).

17. Id. at art. 18–12 (2) (f).

18. DSM, par. 0405.

larly, the Physical Review Council and the Physical Disability Review Board are also free to make up their own minds concerning this issue. Finally, the Secretary of the Navy, who is charged by statute with making the final determination in each case, must weigh all these independent recommendations and reach his own conclusion.19

What, then, are the guidelines to be used in determining whether a refusal to consent to medical or surgical treatment is reasonable? The Secretary has attempted to set forth by regulation some of the criteria to be applied.20 In surgical cases, the following questions must be answered:

"(1) Is surgical treatment required to relieve the incapacity and restore the individual to a duty status, and may it be expected to do so?

(2) Is the proposed surgery an established procedure, that qualified and experienced surgeons ordinarily would recommend and undertake?

(3) Considering the risks ordinarily associated with surgical treatment, the patient's age and general physical condition, and his reasons for refusing treatment, is the refusal reasonable or unreasonable? (mere fear of surgery or religious scruples are not to be considered)." 21

Further considerations are "existing physical or mental contraindications, previous unsuccessful operations, and any special risks." 22 Of primary importance to the lawyer, however, is the use of the phrase "unreasonable," carrying with it all the established traditions of the "reasonable man." Thus, the test is an objective one, tempered by certain subjective factors. To the layman, however, the prospect of major surgery is often a sobering one, and most laymen are more or less ignorant of the "established procedures that qualified and experienced surgeons ordinarily would recommend and undertake." 23 Thus, the opinion of medical experts as to the unreasonableness of a member's refusal must be given great weight. The writer has been a witness to many of the disability evaluation cases processed during calendar year 1966, and as such will attempt to impart some of his observations as to actual practice and application of the concept of unreasonable refusal.

19. This authority to make the final determination in physical disability evaluation proceedings has been delegated to the Judge Advocate General in a large number of instances. See DSM, par. 0703.

20. ManMed, art. 18-12(2). 21. Id. at art. 18–12 (2) (b). 22. Id. at art. 18-12 (2) (c). 23. Id. at art. 18-12 (2) (b).

Orthopedic disabilities accounted for most of the cases of unreasonable refusal observed in the past ten months. Three of these cases involved members with torn medial meniscuses (torn cartilage) in their knees. In each case, surgery to remove the torn cartilage was recommended, and in each case the member refused to submit. All of these cases involved 19-yearold Marine privates who had sustained knee injuries prior to enlistment. Upon their initial refusal, two of these members were seen by a psychiatrist, who determined that both members were mentally competent and capable of understanding the seriousness of their condition. The refusal of all three was thereafter held to be unreasonable, and action was taken directing the discharge of each member without benefits.24 One of the above members gave as his reason for refusal "his religious belief I have been taught to refrain from doing things without God's blessing." The other two members stated that they were afraid of surgery. However, as has been pointed out previously, these reasons are "not to be considered" in making a determination of reasonableness.25 In each case the proposed surgery was described as an "established procedure that a qualified and experienced surgeon would recommend." In all three cases, the medical boards certified that there was an "excellent chance" 26 or a "reasonable expectation" "27 that the member would be restored to a duty status following surgery.28

A similar case involved a 20-year-old private first class with a "loose body" in his left knee joint.29 This member, a draftee, was injured during training. Upon initial refusal, his mental competency was also established by psychiatric consultation. His reason for refusal was that his father did not want him to have the 24. JAG en bloc indices 13,016 of 29 August 1966, 13,020 of 2 September 1966, and 13,021 of 6 September 1966: Discharge without benefits. The term "en bloc" is a French phrase meaning in one piece instead of in separate sections (Webster's International Dictionary, Second Edition). As used in this instance, it refers to a list of actions taken for the Secretary of the Navy in physical disability cases published daily by the Office of the Judge Advocate General. Although the record of proceedings in each case is filed alphabetically according to the member's last name, no names will be printed in this article. These cases may be obtained, for official use only, in the Civil Law Division, Office of the Judge Advocate General.

25. ManMed, art. 18–12 (2) (b).

26. JAG en bloc index 13,021 of 6 September 1966: Discharge without benefits.

27. JAG en bloc indices 13,016 of 29 August 1966 and 13,020 of 2 September 1966: Discharge without benefits.

28. Followers of the daily newspaper sports pages may recall several instances of professional athletes resuming their athletic careers after undergoing similar knee operations. Two football quarterbacks, John Unitas of the Baltimore Colts and Joe Namath of the New York Jets, are recent examples.

29. JAG en bloc index 13,014 of 25 August 1966: Discharge without benefits.

surgery. His refusal was also held to be unreasonable.

Lest the reader conclude that refusal to submit to treatment for knee injuries is prima facie unreasonable, it should be pointed out that there were several such cases during 1966 in which such refusal was held to be reasonable. One of these involved a 21-year-old fireman with a torn ligament in his right knee.30 This member was put on a strict regimen of physical therapy strengthening exercises for several months, which resulted in some improvement. However, the orthopedic staff recommended that surgical reconstruction of the ligaments be attempted in order to stabilize his knee. The member stated that he did not desire to have an operation performed at the naval hospital. The question of reasonableness was evidently not considered by the medical board, and the Physical Evaluation Board consulted with an orthopedic specialist before reaching a decision. The specialist testified that he did not believe that the member's refusal was unreasonable. He explained that the member had an elastic type of knee joint, and that there was no assurance that the recommended surgery would permanently repair the member's knee.

The question of unreasonable refusal will sometimes be overlooked by the medical board, and will be first raised at a higher level. Thus, we have seen a Physical Evaluation Board consider the issue where the medical board made no recommendation. Similarly, the Physical Review Council has raised this issue in at least one instance during the past year. 32 This case involved a member with lacerated tendons of his index and little finger on his left hand, incurred after participation in an altercation. Surgical repair was initially attempted and met with some partial success. Both physical therapy and occupational therapy failed to improve his hand, and further surgical treatment in two stages was recommended. The first stage involved repair of the nerves, and the second stage included removal of one tendon and placement of a tendon graft to the little finger. The member refused to submit to this proposed surgery, and the Physical Review Council was of the opinion that his refusal was unreasonable. Final action was taken approving this recommendation.

Modern medicine has made great strides in the twentieth century, and surgical procedures which were once thought to be "dangerous to life

30. JAG en bloc index 13,020 of 2 September 1966: Separation with severance pay.

31. Ibid.

32. JAG en bloc index 12,993 of 27 July 1966: Discharge without benefits.

or limb" are now routine and involve no extraordinary risks. An example of this is surgical repair of a hernia. In 1905, a member refused to undergo such an operation, and the Navy Department was of the opinion that disciplinary action should not be taken against him.33 In 1966, two similar cases arose, and in each the member's refusal was held to be unreasonable.34

A vivid illustration of the dynamic nature of the concept of unreasonable refusal was provided by the recent case of a member who refused to undergo diagnostic testing and surgery to correct a suspected ruptured intervertebral disc.35 In this case, the member was initially hospitalized due to his complaints of low back pain. A ruptured disc was suspected, but this diagnosis could not be confirmed without further testing. The procedure recommended in his case was the performing of a lumbar myelogram. In this procedure, a radio-opaque substance (analogous to a dye) is injected into the spinal arachnoid space. Following this injection, an X-ray photograph is taken of the spine, and the suspected existence of a ruptured disc can be confirmed. If the myelogram in fact shows a ruptured disc, surgery is the next step in treatment. The surgery discussed by the medical board in this case was a laminectomy, or spinal fusion. However, the member refused to submit to either the myelogram or the surgery, and this refusal was ultimately held to be unreasonable.

The medical board in this case was of the opinion that the proposed treatment would "restore the member to a duty status" and that the recommended procedure was an "established procedure that qualified surgeons would ordinarily recommend." The member's reasons for refusal were that the proposed treatment was "highly speculative" and involved a great deal of risk. The Physical Review Council, however, stated that, although "there is an inherent risk in any surgery," the proposed treatment was an established procedure, and the results were not "considered to be 'highly speculative.'"

This case should be contrasted with the case of a member who refused a similar surgical procedure.36 In this case, the member had previously undergone a spinal fusion to relieve an arthriticlike condition. Subsequent to surgery, the

33. LRNA 1921, p. 458.

34. JAG en bloc indices 12,903 of 21 March 1966 and 13,027 of 14 September 1966: Discharge without benefits.

35. JAG en bloc index 12,899 of 15 March 1966: Discharge without benefits. The technical diagnosis was "herniated nucleus pulposus".

36. JAG en bloc index 13,057 of 26 October 1966: Separation with

severance pay.

wound became infected, and party had experienced pain and some numbness. He had been wearing a brace since his surgery. The tentative diagnosis was pseudo-arthrosis (a false joint) of the spine, but this could not be confirmed without surgical exploration. If the false joint were found to be present, a surgical re-fusion of the spine would have been the recommended course of action. However, the member refused to submit to the exploratory surgery. Under these circumstances, the medical board did not consider this refusal unreasonable. It would seem that humanitarian considerations, along with the uncertainty surrounding the diagnosis, were responsible for this opinion.

The

Similarly, a case involving allergic or toxic reaction raised humanitarian considerations.3 This case involved a sergeant who, after being inoculated against typhus, typhoid and cholera, developed a severe reaction. During reevaluation by a medical board, he was examined by an allergy specialist, who became convinced that the member had suffered a toxic reaction and not an allergic reaction to the inoculations. specialist suggested that diagnostic skin tests be performed to substantiate this hypothesis and if the tests were negative, a further attempt be made to immunize the member. However, the member refused to undergo any such procedures. The allergy specialist stated that he was extremely reluctant to force the member to undergo such procedures, even though the specialist did not believe there was much chance of another severe reaction, and the medical board did not comment further on the member's refusal. The issue was subsequently made moot by a final determination of "fit for duty."

It is to be emphasized that the regulations require that the proposed treatment must be expected to restore the member to a duty status as a prerequisite to a finding of unreasonable refusal.38 Thus, in the case of a member with a facial neuralgia, his refusal was considered reasonable.39 In this case, the member's disability was thought to be caused by elevated cerebro-spinal fluid protein, and it was suggested that he undergo neurosurgery to attempt to alleviate his condition. The medical board stated that the surgery "might not be curative." The result of a finding of "misconduct due to unreasonable refusal" is discharge from the (Continued on page 91)

37. JAG en bloc index 13,062 of 2 November 1966: Fit for duty. 38. ManMed, art. 18-12 (2) (b).

39. JAG en bloc index 13,026 of 13 September 1966: Temporary Disability Retired List.

The Navy's first Law Center was dedicated at Norfolk, Virginia on 3 November 1966.

Participating in the ribbon-cutting ceremony were Captain Max D. Wiviott, USN, Director of the Law Center; Rear Admiral Wilfred A. Hearn, USN, Judge Advocate General of the Navy; Rear Admiral Reynold D. Hogle, USN, Commandant, Fifth Naval District; and Captain Rowland F. Schlegel, USN, District Legal Officer, Fifth Naval District, pictured above, left to right.

Admiral Hearn, in his dedicatory remarks, stated that the Law Center is the Navy's response to the "legal explosion" which both the military and civilian communities are experiencing. He said that, by this term, he had reference to the increasing demands for counsel brought about by legislation, judicial decisions and a generally increased awareness on the part of the citizenry of the availability of legal services.

He characterized the Law Center as one of the means to maximize the efficient utilization of Navy lawyers. By making legal advice and assistance readily available to commands, individual servicemen and their dependents, the Law Center will further the ends of the concept known as "preventive law." The philosophy of

this concept is that it is far better for all concerned to prevent legal problems by timely advice than it is to attempt to solve the problems after they are created.

The mission of the Law Center is to provide prompt, efficient and comprehensive legal services to all commands in the Norfolk area in all functional fields of law which cannot be effectively accomplished by individual commands. Its purpose is to provide as complete a range of legal services to fleet and shore activities as possible to the end that there may be better and more efficient administration of military criminal and administrative law with a reduced burden of legal work on commands.

The Law Center will provide the trial and defense counsel and law officer for general courtsmartial, trial and defense counsel and president for special courts-martial, if necessary, and other legal advice and assistance concerning disciplinary matters. Fact-finding, admiralty, and claims functions carried out by Norfolk commands will be given the benefit of Law Center assistance as feasible and counsel for parties before such bodies will be provided.

Legal assistance for approximately 280,000 eligible personnel and legal services relating to disability retirements will be provided by the Law Center.

COMP. GEN. DECISIONS

(Continued from page 62)

With respect to burial expenses, the expenses authorized by 10 U.S.C. 1482 are authorized to be paid in the case of a Reservist who dies while "(A) on active duty, (B) performing authorized travel to or from that duty [active duty], (C) on authorized inactive duty training..." The Comptroller has held that inactive duty training commences when the Reservist is mustered in for such duty (38 Comp. Gen. 841; 43 Comp. Gen. 412). It was concluded that, since the Reservist left the place where his scheduled inactive duty training was to be performed, before reporting for such duty, there was no basis for holding that he had been mustered in for that duty before his death. Payment of burial expenses was not authorized. (Comp. Gen. Dec. B-158753 of May 31, 1966).

RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN-Effect of Mexican divorce on deductions from retired pay

The volumes of Comptroller General's decisions abound with cases illustrating the difficulties arising-in the military pay, allowances, and benefits area-from so-called Mexican "mail order" divorces. The most recent involves a member (M) who prior to his retirement on August 31, 1954, had filed a timely election under the Uniformed Services Contingency Option Act (now the Retired Serviceman's Family Protection Plan) to provide an annuity for his wife. Deductions were made from the member's retired pay from the date of his retirement until 1966 when an administrative review disclosed previously unnoted facts tending to cast doubt upon the legality of his marriage. It was disclosed that (M) had married Mrs. (M) in 1940, in the United States. On the preceding day Mrs. (M)'s marriage to one (S) had purportedly been terminated by a divorce decree entered in the Bravos District, State of Chihuahua, Republic of Mexico. Plaintiff's (Mrs. (M)'s) "residence" in Mexico for purposes of the action was established by registration at the City Hall in Juarez and service was by publication in a local periodical-in response to which the defendant did not answer or appear in court.

The question presented to the Comptroller General was whether future deductions should be made from (M)'s retired pay to support the annuity or whether refund should be made to him for past withholdings. It was held, citing a prior decision, 44 Comp. Gen. 485, that, although the facts of the present case furnish a basis for uncertainty as to the effect of the Mexican divorce, the legal presumption in favor of the validity

of the second marriage warrants continued deductions from the member's retired pay. The Comptroller assumed that appropriate legal preceedings would be instituted by the (M)'s to determine the validity of their marriage. Presumably, absent such clarification, the annuity would not be payable. (Comp. Gen. Dec. B-158906 of June 7, 1966).

DUAL COMPENSATION-Retired Medical Officer not holding "civilian office" within meaning of 1964 Act

Retired Regular officers employed in a Federal "civilian office" generally are subject to the retired pay reduction formula contained in section 201(a) of the Dual Compensation Act of 1964 (5 U.S.C. 3102(a)). (If so employed, a retired Regular officer is entitled to retain all civilian compensation, plus retired pay at an annual rate equal to the first $2,000 of retired pay, plus one-half of any remaining retired pay.) For purposes of that section a "civilian office" is defined in section 101 of the 1964 Act (5 U.S.C. 3101) as meaning "a civilian office or position (including a temporary, part-time, or intermittent position), appointive or elective, in the legislative, executive, or judicial branch of the Government of the United States (including each corporation owned or controlled by the Government and including nonappropriated fund instrumentalities under the jurisdiction of the armed forces) or in the municipal government of the District of Columbia."

The Comptroller General recently considered the question whether the service of a retired Regular medical officer as a civilian dentist in the Family Dental Clinic at Scott Air Force Base is deemed to be a "civilian office" within the meaning of the 1964 Act. The Clinic had been established to provide low-cost dental care to military dependents. The dentists' compensation, in effect, was received on a net fee-earned basis. The Clinic occupied space on the Base and was supervised to some degree by the Base Dental Surgeon and by the Central Base Welfare Council, the latter being a nonappropriated fund instrumentality.

The Comptroller, citing 44 Comp. Gen. 761, stated that the generally accepted test of the Federal employeeemployer relationship includes four requirements: First, performance of a Federal function; Second, appointment or employment by a Federal officer; Third, supervision and direction by a Federal officer; and Fourth, the source of compensation. On the basis of this standard the Comptroller General concluded that the retired officer in question did not hold a "civilian office" within the meaning of the 1964 Act so as to require application of the retired pay reduction formula in his case (Comp. Gen. Dec. B-159121 of June 6, 1966).