The National tribune., 1885-03-12
"PRIOR S0UNDNESS."
Secretary Teller Decides that a Soldie'
Shall Not Be Compelled 10 Prove 1t.
DEPARTMENT OF THE INTERIOR,
Washington. March = JSS.

the appeal of Daniel G Ashley, of Folklore,
Mass. from action of your Office in rejecting
his claim for pension No. i3l,359. as late of Co.
ID, Goth Mass. Vols, who enlisted July l3 1850,
and was discharged Aug. !, 1862.
TIE FACTS
He fled his application for pension Dec. l.,
1850, alleging disability from inflammation of
the bladder and structure of the urethra, caused
by hard marching and exposure in the Army
of the Potomac ia July, 1862.
The claim was rejected Feb. 16, 1888, on the
ground that the alleged disability existed prior
70 enlistment. From this action of your office
an appeal is taken.
The fact Of the discharge is. rot denied.
There is nothing. tli.n, is eonsidel SAVE the
question. When did the disability originate I?
The soldier entered the service July 30, 1851,
and was discharged Aug. ], 1852. Thus it ap-
pears that he was in the service of the Govern
ment something over year He alleges that
it was in the month of July 1862 that the dis
ability was incurred. On the 10Th of July,
lSG2. he MAS admitted to the hospital, and the
record shows that he was then suffering with
structure of the urethra." and that subse-
qucntly he was discharged On account thereof.
The Surgeon in his discharge states that he
had structure Of the urethra, existing prior to
the enlistment and j understand because of
such statement by the Surgeon you reject the
claim for 4 pension.
The Government has provided for the exam
ination of applicants for enlistment, ana when
the soldier has been accepted and mustered IN
there ought to be presumption that he has
passed the required examination, and has been
found qualified TO enter the service under
stand that such has not been the tenor of the
decisions either in the Office of the Commits
sioner of Pensions or that of the Secretary Of the
Interior until recently, and perhaps not in any
case when that point has been especially tested;
but that the soldier has been called Oh to prove
that he was sound when the Government &C
eepted his services and when he has failed so
10 do, his application has been rejected No
man can be admitted to the service until the
proper officer certifes that he possesses the
qualifications required by statute and the army
regulations, and when so admitted
THERE MUST BE PRESUMPTION
that the officer has made the higher examina-
ton required by the regulations and that the
enlisted man is sound man and possesses all
the qualifications required This presumption
may be Tehutted by proof on the part OF the
Government of unsoundness prior to enlist
ment. But the Government should not demand
of the soldier as a condition to receiving pen
sion that he should prove that which it has de-
ciared as to him by his acceptance into its
service Neither should the Pension Office
raise the question except when the term Of
service or the nature of the disease raises
presumption of unsoundness. In such a case it
is competent for the officer to call on him TO
make proof of soundness at time of enlistment
or by taking his own affidavit Of soundness at
the time of such enlistment.
Even if he does make such affidavit, the Office
Aiay, il there is
GOOD REASON TO BELIEVE
he was not sound 1T the time OF enlistment pro-
duc5 evidence on the part of the Government
shat the applicant was unsound at the time of
= Al
Or uncertain the soldier should have the ben
eft of the doubt that may be raised by such
conflict of evidence, and the presumption OF
Eoundness ought not TO be overcome except by
positive proof
THE BURDEN OF PROOF
is on the Government. 1t is not the duty Of
the Pension Office TO demand such proof of the
applicant unless, as before stated, there is some
thing in the case that appears to make it in
cumbeat to do so, in order that the truth may
be known.
In this case the Surgeon General discharging
the claimant adds to his certificate of discharge
"existing before enlistment" Now, under the
rule here laid down, do the words existing
prior 10 enlistment" make it the duty of the
Government to call on the soldier for proof that
he did not have this disease when he entered
the service? The army regulations appear to
have required that the officer should state the
degree of disability, wound or disease, ETC., and
the Surgeon will add, from his knowledge of
the facts and circumstances aud from the evil
dence lii the case, his professional opinion of
the cause OF the origin of the disability, and
whether in the line of duty. Whether such
certificate will or will not overcome the pre-
sumption OF soundness must depend On the ma
ture of the disease or disability for which the
soldier was discharged. In some cases such
certificate ought to overcome the presumption,
and III others it ought not; for the value Of the
certificate must depend on
THE ABILITY OF THE SURGEON
20 give an opinion. AS for instance, if the
Surgeon can readily see that the soldier has
congenital malformation of the foot, that rem
ders it impossible for him to sustain long
marches aud he SO states, such certificate ought
not to have weight: but ii. on the other hand,
he depends on the statements made TO him by
Others as to the origin OF the disease, his state
ment becomes more or less valuable, according
to the trGstworthiness of his information. In
this case, how did the Surgeon know that this
disease existed before enlistment? From whom
did he derive his information? From the ma
ture OF the disease it can hardly be supposed
that he could determine when it began, or at
least not with sufficient certainty to say il was
before enlistment. If it had been found that
the soldier was suffering with the disease
within few days after enlistment, he might
well say that it existed at the time of enlist
ment; but in this case year had elapsed.
During That time he appears There being moth
Ing TO the contrary TO have discharged his
duties in a proper manner, which he could
ecarcely do If he had been suffering with the
disease for which be was discharged. There is
no other evidence of disability, and / do not
think that the Office was warranted in calling
upon the applicant to prove that he was
SOUND PRIOR TO ENLISTMENT,
Or if it was think the affidavit of the soldier
himself sufficient TO rebut the presumption
that might have been raised by such certifi-
cate. / do not mean to say that in all cases
the affidavit of the claimant alone ought to be
received TO rebuff the presumption that may be
raised by a Surgeons certificate, but / mean
that in this case when the nature of the disease
Is considered and the difficulty the Surgeon
must have had TO determine when the disease
did originate, the affidavit of claimant ought
to be sufficient.
SURGEONS CERTIFICATES.
have found in other cases your Office dis
posed TO treat Surgeons certificate as enti-
tied TO great weight do not so consider this
class of evidence. 1t is not of a high order,
and ought not TO be allowed alone TO rebut the
presumption of sOundness raised BY the enlist
ment Of the soldier. 1t is not q record that OF
itself imparts verify, and is made without the
approval of the discharged soldier. 1t can have
no greater weight than that of an affidavit,
and in most cases will be found not TO be enti-
tied 10 so much weight as that of a sworn wit
ness.
no GENERAL RULE
ha Hold To Iat 10 a<