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transaction. If he then makes payment the only place then he can get credit is by convincing the Congress that he is entitled to credit notwithstanding his improper action in paying. As I conceive it, the preaudit is a thing of tremendous value to all concerned.

Mr. Swing. My question went further than that. It was how far have you gone in the number of personnel that you have placed into the outside departments and independent establishments?

Mr. McCARL. We have only placed them in one.
Mr. SWING. Where is that?
Mr. McCARL. In the Veterans' Bureau.
Mr. Swing. No place else have you the preaudit?

Mr. McCARL. We are doing considerable other preaudit work but in our own building. In other words, before actual payment, by a disbursing officer vouchers are routed to our office for examination and are then sent to the disbursing official for payment if found to be correct.

Mr. Swing. Are you quite sure that you are not called in by the Veterans’ Bureau and that your employees are not consulted before the director makes his final decision?

Mr. McCARL. If our employees engaged on Veterans' Bureau preaudit are so consulted I do not know it. If the Veterans’ Bureau seeks light they may be

Mr. Swing. Do you not know that as a fact?
Mr. McCARL. I do not know that as a fact.
Mr. Swing. How many men have you

Mr. McCARL. Sixty.
Mr. SWING. In the Veterans' Bureau?

Mr. McCarl. In the Veterans' Bureau, perhaps more than that; I do not know the exact number, more or less.

Mr. Swing. I am seeking light.
Mr. McCARL. Surely.

Mr. Swing. And there is light. I do not know about the way the Government is run. Heretofore the decision was made by the department as to whether or not a certain payment was authorized by law. That decision was a combination of law and facts. They made the investigation as to the facts through their own agencies and then they consulted their lawyers. Every department and every independent establishment has its corps of lawyers.

Mr. McCarl. Most of them have, I think. They build up a legal service sooner or later.

Mr. Swing. And they, having discerned that this was authorized and was legal under the law and the facts, undertake to pay. state every man is responsible upon his bond, is he not?

Mr. McCARL. Yes.

Mr. Swing. If auditing officials err are those men responsible if they authorize a payment which turns out to be illegal?

Mr. McCarl. Not any more than any other official. The Director of the Veterans' Bureau is not personally responsible.

Mr. Swing. The answer is that none of the officials of your office are responsible in dollars and cents for the return of money where you have erroneously approved payment which the court subsequently might hold was an illegal payment.

Mr. McČARL. Do you know the one that has been so held?

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Mr. Swing. No. I asked you. There is no legal responsibility attached to the auditing officials.

Mr. McCarl. No, sir. Mr. Swing. But there is attaching to the department. Mr. McCARL. Only on the disbursing officers. Mr. Swing. The disbursing officers. Mr. McCarl. You said disbursing. You are correct. No auditing official is financially responsible. You are speaking about the Veterans' Bureau. You realize, of course, that the primary action is not that of the auditing official and that in no instance as to insurance or compensation or other appropriation made for the benefit of the service men is there authority in the accounting officers to require a payment to be made. All we can do is to pass on the legality of payments proposed to be made. The accounting official is in this respect a restraining or checking officer, not a paying officer.

Mr. Swing. I am trying to get at your opinion on this fact. You have Mr. Jones, who is your man. That man has Mr. Smith. We will start off with the assumption that they are both honest, conscientious and equally capable. You have the feeling, do you not, that two honest men can arrive at a different conclusion from the same state of facts.

Mr. McCarl. Frequently do.

Mr. Swing. Will you agree further that two honest, capable lawyers can arrive at a different conclusion from a reading and study of the same identical law?

Mr. McCARL. Yes.

Mr. Swing. And you have the conviction that you and your lawyer, Mr. Jones, are always right, and that Smith and the people in the department are wrong, do you not?

Mr. McCarl. I think you are putting the question without any reference to established law. Our responsibilities are different. The duty of the accounting official is to see that appropriated money is used only for the purpose for which appropriated, and no other purpose.

If there were no accounting control there would be no legislative control. It is only through accounting control that the Congress has any control over the uses of public money.

Mr. Swing. Your primary function is finance, the disbursement of finances, under your supervision?

Mr. McCARL. No; my primary function is the construction and enforcement of enactments of Congress as they relate to appropriations.

Mr. Swing. I know that from the authority you have exercised but I wanted you to state it.

Mr. McCarl. I do not mean that, of course, as an expression or definition of jurisdiction.

Mr. Swing. Let us separate the facts from the law. The department makes an investigation of the situation and makes a finding of facts. The Navy Department may find facts that would justify a retirement. The Veterans' Bureau may make a finding of facts that would justify the payment of compensation. You do not consider the findings of fact by the bureau that is an independent establishment or a department at all binding upon you.

Mr. McCARL. Do you know of a case where I have not accepted their findings of fact unless they were clearly erroneous?

Mr. Swing. You think they are erroneous, of course.

Mr. McCARL. I will say that you are wrong if your question is as it indicates. The administrative finding of fact, unless clearly wrong, is accepted.

Mr. Swing. Do you put yourself literally in the position of a court of appeals or the position of a trial judge on a motion for a new trial?

Mr. McCARL. Neither are exactly applicable.
Mr. Swing. You tell me what your position is.

Mr. McCarl. The administrative finding of the facts is accepted unless it is clearly wrong. Mr. SWING. Clearly wrong to you.

Mr. McCARL. Suppose the Veterans' Bureau should find a man to be a soldier and the War Department record showed, and it was right in the matter, that he had never been in the service, that would be called to the attention of the Veterans’ Bureau and the officials of the bureau would appreciate it. The facts developed and deter

. mined by the Veterans’ Bureau, however, are accepted by the accounting officers unless they are disclosed to be clearly erroneous.

Mr. Swing. We will take the soldier and the Veterans' Bureau cases and I have some other cases in mind. Take that first, for an example. The Veterans' Bureau unanimously finds as a matter of fact that a man to-day is an arrested T. B. They furthermore find that it is impossible for a man to-day to be an arrested T. B. unless he had a preexisting active case of T. B. Their records show that he went into the military service and the Army record shows when he went into the service he had no tubercular disease. Therefore, under the law of Congress he was sound. Within the time prescribed by law he is found to have developed an arrested case of T. B. The Veterans' Bureau has made its findings. Now, do you hold that you have a right to go behind the medical findings of fact of the Veterans' Bureau and determine that the man did not have active tuberculosis and later was found with a well developed case of arrested T. B.?

Mr. McCARL. Let me ask if you think it fair to ask me to answer such a hypothetical case?

Mr. SWING. Mr. Comptroller General, the lives of hundreds of ex-service men hang upon the decision you have made. That decision as far as I can understand it is that you have set up in your department a medical bureau which makes its decisions contrary to the findings of fact by the Veterans' Bureau of these cases.

Mr. McCARL. In all fairness there should be submitted to this committee the facts in each case and the decision you have mentioned. If there be such decision it is in writing. Why should not the decision be permitted to speak for itself?

Mr. Swing. I am using it only for illustration to find whether or not you are correct in overruling the findings of fact by a department or an independent establishment.

Mr. McCARL. You have asserted that I have. Let us see the decisions on which you rely.

Mr. SCHAFER. There have been many cases where you have done that and it is really contrary to the law of Congress.

Mr. COLTON. I think it is only fair that a decision of that kind should be brought here as an illustration.

Mr. SWING. I am not discussing particular cases except by way of illustration. The thing I am trying to find out is this. We know the law-I mean the general rule of law; that is, when a tribunal vested with power and discretion to make a decision has made that decision, that is binding as against all collateral attacks. Now, we are not going to assume that a Cabinet officer or a department is going to falsely and willfully make an erroneous decision merely for the purpose of contravening your department. We can not possibly start off with that assumption, can we?

Mr. McCarl. No; I think they think they are trying to do right.

Mr. Swing. Their findings of fact are made honestly and to the best of their ability. I just wanted to get from you what your practice is. You reserve to yourself the right to review findings of fact?

Mr. McCARL. I do not; no, sir.

Mr. Swing. I hope your subordinates understand that is your position.

Mr. McCarl. I will say there have been not less than 50 decisions on that matter, and if you would do me the honor to read them you could find out the true situation.

Mr. Swing. I can not do you the honor to read 50 decisions. I will do you the honor to read two or three of them. I shall read these arrested t. b. cases.

Mr. McCARL. And another thing I am always glad to set myself right if it is shown I have been wrong in deciding any case.

Mr. Swing. I am discussing the facts of the case; I am not discussing my opinion about them.

Mr. McCarl. Unless clearly wrong, apparent on its face, the finding of fact by the proper administrative officer would be accepted.

Mr. SCHAFER. Then how do you account for your decision which Congressman Swing has called to the attention of the committee? I have in my office about 14 cases and every Member of Congress has many such cases. Under the law, as Mr. Swing stated, the veteran is presumed to be in sound physical condition at the time of enlistment except as to disabilities found and noted. The law provides for service connection of disabilities incurred in the service on straight connection as well as under the presumptive section of the act. Take a case of one of these veterans. Here is case C-1178646. This man was examined and accepted for service, without any disability found or noted when he entered his enlistment. He met that provision of the law enacted by Congress, the presumption of soundness at the time of entering the service. The man rendered military service during the World War from July 15, 1917, to March 9, 1918, and his discharge from the War Department shows certificate of disability by reason of pulmonary tuberculosis arrested, a diagnosis made by competent qualified physicians of the War Department. We must assume that.

In many cases veterans with a similar discharge had received a service connection, straight service connection by the Veterans' Bureau and had received a compensable rating from date of discharge of 10 per cent or more, thereby coming within the 10 per cent rating provision in the proviso applicable to the $50 statutory award on service connected arrested pulmonary tuberculosis. The Veterans' Bureau had been making ratings absolutely in compliance with the law until the Comptroller General rendered a decision indicating that

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the Comptroller General held that in order to receive the $50 statutory award on arrested pulmonary tuberculosis, there must be activity, a definite diagnosis of active, pulmonary tuberculosis substantiated by clinical findings, made within the time limit for service connection under the presumptive section of the act. If the Comptroller General will go over the medical authorities on tuberculosis and go over the records of these cases and personally consider the decision, I believe he will find without any question of doubt that that decision of the Comptroller General's office has denied thousands of veterans, where the veteran was taken into the service with no disability and discharged on surgeon's certificate of disability, the $50 statutory award which they are entitled to under the law. That is one result of your preaudit section in the Veterans' Bureau.

Mr. McCARL. Do you have that decision?
Mr. SCHAFER. I have it some place in my office.
Mr. McCarl. In fairness it ought to go in the record then.

Mr. SCHAFER. I ask unanimous consent to incorporate in the record at this point the War Department record of one of these soldier cases which I have called to the committee's attention, together with the decision of the Comptroller General.

Mr. COLTON. It would be only fair.
The CHAIRMAN. How extensive is the record?

Mr. SCHAFER. It is one page, the medical record, and the decision is about a page and a half.

Mr. Swing. The Comptroller General asked that it go in and in justice to him it should go in.

The CHAIRMAN. If the statement of facts only covers a page and the decision is not unduly long, I see no objection to it going in the record.

Mr. GASQUE. I will make a statement regarding these cases. I have a number of them and I have never had any direct decision of the Comptroller General from the Veterans' Bureau on them. I have had notices from the Veterans' Bureau that Mr. A, who had been drawing compensation since he was discharged, or compensation as an arrested case since Congress passed the law giving a statutory award to him, that his compensation had been discontinued because the Comptroller General held that he had never had an active pulmonary tuberculosis.

The Chairman. The gentleman from Wisconsin has preferred an unanimous consent request that the medical record referred to, together with the comptroller's decision relating thereto, may be incorporated as a part of the record. Is there objection? There is no objection and the record and decision may be incorporated. CASE C-1178646 SUBMITTED BY MR. SCHAFER


Washington, December 19, 1928. Hon. JOHN C. SCHAFER,

House of Representatives. MY DEAR MR. SCHAFER: I have your letter of December 12, 1928, requesting the military and medical record of , formerly of the One hundred and seventieth Trench Mortar Battery.

The records show that enlisted June 22, 1916, at Detroit, Mich., for Company E, Thirty-first Infantry, Michigan National Guard; reported for Federal service June 22, 1916; was mustered into Federal service July 1, 1916; was mustered out of Federal service January 20, 1917; again reported for Federal service July 15, 1917, and was honorably discharged March 9, 1918, at Camp MacArthur, Tex., on account of disability, pulmonary tuberculosis, chronic, involving both

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