B-100262, APRIL 25, 1951, 30 COMP. GEN. 409

B-100262, APRIL 25, 1951, 30 COMP. GEN. 409

RETIRED PAY - DISABILITY RETIREMENT PAY - MEMBERS OF THE ARMY OF THE UNITED STATES MEMBERS OF THE ARMY OF THE UNITED STATES WHO WERE RELEASED FROM ACTIVE DUTY, WITHOUT PAY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO THE DATE OF APPROVAL OF THE CAREER COMPENSATION ACT OF 1949 AND WHO, SUBSEQUENT TO THAT DATE, UPON APPEARING BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS WERE FOUND TO BE PHYSICALLY DISABLED FROM THE TIME OF RELEASE FROM ACTIVE DUTY, ARE NOT ENTITLED TO RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT OF 1949 NOR UNDER LAWS WHICH WERE IN EFFECT PRIOR TO APPROVAL OF THE ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 25, 1951:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1950, WHEREIN YOU REQUEST DECISION ON SEVERAL QUESTIONS RELATING TO THE RETIRED PAY RIGHTS OF CERTAIN OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN THE REGULAR ARMY, WHO WERE RELEASED FROM THE ACTIVE DUTY FOR REASONS OTHER THAN PHYSICAL DISABILITY.

YOU STATE THAT IN MANY CASES OFFICERS OF THE ARMY OF THE/1UNITED STATES, OTHER THAN THE REGULAR ARMY, DID NOT APPEAR BEFORE ARMY RETIRING BOARDS PRIOR TO THEIR RELEASE FROM ACTIVE DUTY, PRESUMABLY BECAUSE OF THE FACT THAT UPON BEING GIVEN A MEDICAL EXAMINATION THEY WERE FOUND TO BE PHYSICALLY QUALIFIED FOR SUCH RELEASE. IN SUCH CASES, IF REASONABLE GROUNDS WERE ADVANCED FOR BELIEVING THAT SUCH OFFICERS WERE IN FACT DISABLED, THE DEPARTMENT OF THE ARMY, SUBSEQUENT TO THEIR RELEASE FROM ACTIVE DUTY, AUTHORIZED THEM TO APPEAR BEFORE ARMY RETIRING BOARDS, AND, IF FOUND QUALIFIED THEREFOR, THEY WERE GRANTED RETIREMENT PAY. IN THAT CONNECTION, YOU REFER TO DECISION OF THIS OFFICE DATED JULY 28, 1950, 30 COMP. GEN. 40, WHEREIN IT WAS STATED WITH RESPECT TO THE CASE OF LIEUTENANT COLONEL JOSEPH D. MONK (PAGE 47):

ON THE ABOVE STATEMENT OF FACTS YOU ASK FROM WHAT DATE RETIREMENT PAY MAY BE ALLOWED, IF THE PRESIDENT SHOULD NOW APPROVE THE FINDINGS OF THE PHYSICAL EVALUATION BOARD. IT IS NOT CLEAR THAT LIEUTENANT COLONEL MONK COULD BE CONSIDERED AS HAVING BEEN RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY AND THIS OFFICE IS AWARE OF NO PROVISION OF LAW UNDER WHICH A RESERVE OFFICER WHO WAS RELEASED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY MAY HAVE HIS CASE REVIEWED WITH A VIEW TO OBTAINING RETIREMENT OR RETIREMENT PAY FOR PHYSICAL DISABILITY. HENCE, IT WOULD APPEAR THAT EVEN HAD THE FINDINGS OF THE PHYSICAL EVALUATION BOARD RECEIVED PRESIDENTIAL APPROVAL PRIOR TO LIEUTENANT COLONEL MONK'S DEATH, HE WOULD NOT HAVE BEEN ENTITLED TO ANY RETIREMENT PAY. * * * (ITALICS SUPPLIED.)

YOU INDICATE THAT SUCH LANGUAGE RAISES CONSIDERABLE DOUBT AS TO THE PROPRIETY OF THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN SUCH CASES AND YOU REQUEST DECISION ON THE FOLLOWING QUESTIONS:

A. A, A NON-REGULAR OFFICER, WAS ON 1 JUNE 1948 RELIEVED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY, WITHOUT AN OPPORTUNITY TO APPEAR BEFORE AN ARMY RETIRING BOARD. SUBSEQUENTLY, THE DEPARTMENT OF THE ARMY DETERMINED THAT THERE WERE REASONABLE GROUNDS FOR BELIEVING THAT A WAS PHYSICALLY DISABLED AT THE TIME OF HIS RELIEF FROM ACTIVE DUTY AND AUTHORIZED HIM TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS ON 1 JANUARY 1950. THE PHYSICAL EVALUATION BOARD FOUND A QUALIFIED TO BE RETIRED UNDER THE CAREER COMPENSATION ACT OF 1949 (HIS DISABILITY WAS FOUND TO BE SUCH AS WOULD HAVE AUTHORIZED RETIREMENT PAY UNDER LAWS IN EFFECT PRIOR TO 1 OCTOBER 1949). THE SECRETARY OF THE ARMY APPROVED ITS FINDINGS ON 15 FEBRUARY 1950.

(1) IS A ENTITLED TO RECEIVE RETIREMENT PAY UNDER ANY PROVISION OF LAW? IF SO, SHOULD HE RECEIVE RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT OF 1949, OR UNDER LAWS IN EFFECT PRIOR TO 1 OCTOBER 1949? WHAT IS THE EFFECTIVE DATE OF HIS ENTITLEMENT TO RECEIVE RETIREMENT PAY?

(2) WOULD YOUR ANSWERS TO A BE THE SAME IF A HELD NO MILITARY STATUS AT THE TIME OF HIS APPEARANCE BEFORE THE PHYSICAL EVALUATION BOARD AND ACTION BY THE SECRETARY OF THE ARMY?

(3) WOULD YOUR ANSWERS TO QUESTIONS 1 AND 2 BE THE SAME IF A WERE A NON- REGULAR ENLISTED MEMBER?

B. B, A NON-REGULAR MEMBER WAS ON 1 JANUARY 1950 RELIEVED FROM ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, WITHOUT AN OPPORTUNITY TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. SUBSEQUENTLY, THE DEPARTMENT OF THE/1ARMY DETERMINED THAT THERE WERE REASONABLE GROUNDS FOR BELIEVING THAT HE WAS PHYSICALLY DISABLED AT THE TIME OF HIS RELIEF FROM ACTIVE DUTY, AND AUTHORIZED B TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS ON 1 JUNE 1950. THE PHYSICAL EVALUATION BOARD FOUND B QUALIFIED TO BE RETIRED UNDER THE CAREER COMPENSATION ACT OF 1949, AND THE SECRETARY OF THE ARMY APPROVED ITS FINDINGS ON 15 AUGUST 1950.

(1) IS B ENTITLED TO RECEIVE RETIREMENT PAY UNDER ANY PROVISION OF LAW? IF SO, WHAT IS THE EFFECTIVE DATE OF HIS ENTITLEMENT TO RECEIVE RETIREMENT PAY?

(2) WOULD YOUR ANSWER TO QUESTION 1 BE THE SAME IF B HELD NO MILITARY STATUS AT THE TIME OF HIS APPEARANCE BEFORE THE PHYSICAL EVALUATION BOARD AND ACTION OF THE SECRETARY OF THE ARMY?

SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, APPROVED JUNE 22, 1944, 58 STAT. 287, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 623, 38 U.S.C. 693I, READS, IN PERTINENT PART, AS FOLLOWS:

(A) THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, FROM TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED FROM THE MEDICAL CORPS OF THE ARMY OR NAVY, OR FROM THE PUBLIC HEALTH SERVICE, AS THE CASE MAY BE. IT SHALL BE THE DUTY OF ANY SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE SERVICE RECORDS RELATING TO THE SUCH OFFICER. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE OFFICER REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD OF REVIEW IN PERSON OR BY COUNSEL. CARRYING OUT ITS DUTIES UNDER THIS SECTION SUCH BOARD OF REVIEW SHALL HAVE THE SAME POWERS AS EXERCISED BY, OR VESTED IN THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED. THE PROCEEDINGS AND DECISION OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.

(B) NO REQUEST FOR REVIEW UNDER THIS SECTION SHALL BE VALID UNLESS FILED WITHIN FIFTEEN YEARS AFTER THE DATE OF RETIREMENT FOR DISABILITY OR AFTER JUNE 22, 1944, WHICHEVER IS THE LATER.

SINCE, AS WAS THE SITUATION IN THE MONK CASE, THE OFFICERS IN QUESTION WERE RELEASED FROM ACTIVE DUTY FOR REASONS OTHER THAN PHYSICAL DISABILITY, IT IS CLEAR THAT THEY DO NOT COME WITHIN THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 623, UNDER WHICH THEIR RIGHTS TO RETIREMENT AND RETIRED PAY WOULD BE GOVERNED BY THE LAWS IN EFFECT AT THE TIME OF THEIR RELEASE FROM ACTIVE DUTY. SEE DECISION OF MARCH 22, 1950, 29 COMP. GEN. 382. HENCE, IT IS PRESUMED THAT THE ACTION TAKEN IN THE CASES OF THE OFFICERS IN QUESTION LOOKING TOWARD THEIR RETIREMENT AND THE GRANTING TO THEM OF RETIRED PAY WAS PREDICATED ON THE APPARENT GENERAL DISCRETIONARY AUTHORITY PLACED IN THE SECRETARY OF THE ARMY BY THE PROVISIONS OF THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED BY SECTION 2 OF THE ACT OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 202, EFFECTIVE AUGUST 14, 1945, WHICH READS AS FOLLOWS:

PROVIDED FURTHER, THAT ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OR THE AIR FORCE OF THE UNITED STATES, OTHER THAN OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, OR THE REGULAR AIR FORCE WHO---

(1) IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY OR THE REGULAR AIR FORCE.

THE CONCLUSION REACHED IN THE DECISION OF MARCH 22, 1950, REFERRED TO ABOVE, TO THE EFFECT THAT THE RIGHTS OF PERSONS GRANTED RETIREMENT PAY AS THE RESULT OF PROCEEDINGS INITIATED UNDER THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, SUPRA, WERE TO BE GOVERNED BY THE LAWS IN EFFECT AT THE TIME OF THEIR RELEASE FROM ACTIVE DUTY WAS PREDICATED ON THE FACT THAT THE PURPOSE OF THE BOARDS ESTABLISHED UNDER SUCH PROVISIONS WAS TO REVIEW THE ACTION PREVIOUSLY TAKEN BY RETIRING BOARDS, BOARDS OF MEDICAL SURVEY, ETC., TO DETERMINE THE ACCURACY AND PROPRIETY OF THE ACTION TAKEN BY THEM, RATHER THAN TO EFFECT ORIGINAL DETERMINATIONS IN THE MATTER, AND, OF COURSE, IN ORDER TO PROPERLY EVALUATE SUCH ACTION, THE REVIEW HAD TO BE MADE IN THE LIGHT OF THE LAWS AND REGULATIONS IN EFFECT AT THE TIME THE PRIOR ACTION WAS TAKEN. ON THE OTHER HAND, IN THE CASES OF THE PERSONS TO WHOM YOU REFER THERE IS NOT INVOLVED A REVIEW OF ANY PREVIOUS ACTION OR DETERMINATION, IT MERELY BEING A MATTER OF MAKING A PRESENT ORIGINAL DETERMINATION AS TO WHETHER OR NOT SOME PRESENT DISABILITY WAS INCURRED IN LINE OF DUTY AT SOME PREVIOUS TIME WHILE THE PERSON WAS SERVING ON ACTIVE DUTY. IF THE DETERMINATION IS IN THE AFFIRMATIVE, HIS RIGHTS, IF ANY, TO RETIRED PAY, ETC., ARE FOR DETERMINATION UNDER THE CURRENT LAWS.

SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 816, 817, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: * * *

(B) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH MEMBER HAS AT LEAST EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBERS SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: * * *

(C) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF THE UNIFORMED SERVICES, OTHER THAN THOSE MEMBERS COVERED IN SUBSECTIONS (A) OR RATING (B) OF THIS SECTION, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF PHYSICAL DISABILITY RESULTING FROM AN INJURY; (2) THAT SUCH INJURY WAS NOT THE RESULT OF THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH INJURY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, FULL- TIME TRAINING DUTY, OTHER FULL-TIME DUTY, OR INACTIVE DUTY TRAINING, AS THE CASE MAY BE; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE. (ITALICS SUPPLIED.)

THE ABOVE-QUOTED STATUTORY PROVISIONS ARE WRITTEN IN BROAD AND COMPREHENSIVE TERMS AND BOTH THEIR TEXT AND THE LEGISLATIVE HISTORY THEREOF INDICATE THAT THEY WERE INTENDED TO COVER THE ENTIRE FIELD OF DISABILITY RETIREMENT FOR MEMBERS OF THE ARMED SERVICES, EXCEPT INSOFAR AS PRIOR RIGHTS MAY BE SAVED BY THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUPRA. IT WILL BE NOTED THAT ALL THREE OF THE QUOTED SUBSECTIONS OF THE SAID SECTION 402 INCLUDE MEMBERS OF RESERVE COMPONENTS AND THAT 402 (C) EXPRESSLY COVERS MEMBERS "OTHER THAN THOSE MEMBERS COVERED IN SUBSECTIONS (A) AND (B).' IT WOULD APPEAR, THEREFORE, THAT THE CONGRESS DID NOT INTEND TO AUTHORIZE DISABILITY RETIREMENT THEREAFTER EXCEPT UNDER THE CONDITIONS SET FORTH IN THE 3 SUBSECTIONS AND THAT SUCH PROVISIONS WERE GENERALLY TO TAKE THE PLACE OF ANY PREVIOUS STATUTORY ENACTMENTS, AUTHORIZING RETIREMENT PAY ON ACCOUNT OF DISABILITY INCURRED WHILE SERVING IN THE ARMED FORCES.

ALTHOUGH THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, SUPRA, DID NOT EXPRESSLY AUTHORIZE RETIREMENT PAY FOR FORMER MEMBERS OF THE ARMY OF THE UNITED STATES, THEY HAVE BEEN REGARDED AS COMING WITHIN THE BROAD PROVISIONS OF THAT ACT WHERE OTHER CONDITIONS WERE MET. THE BENEFITS OF SECTION 402 OF THE CAREER COMPENSATION ACT, HOWEVER, ARE LIMITED TO MEMBERS OF THE UNIFORMED SERVICES AND DO NOT EXTEND TO FORMER MEMBERS. IT COULD BE ARGUED FROM THOSE CIRCUMSTANCES THAT IT WAS NOT INTENDED THAT SECTION 402 SHOULD SUPERSEDE THE 1939 ACT IN THAT RESPECT, INSOFAR AS FORMER MEMBERS ARE CONCERNED, AND, BY EXTENDING THAT ARGUMENT, THAT IT WAS NOT INTENDED THAT SECTION 402 SHOULD SUPERSEDE THE 1939 ACT AS TO PRESENT MEMBERS OF THE UNIFORMED SERVICE WHO CAN MEET THE CONDITIONS OF THE 1939 ACT BUT CANNOT MEET THE STRICTER CONDITIONS STIPULATED IN SECTION 402. THAT MATTER HAS BEEN GIVEN THE MOST CAREFUL CONSIDERATION BUT IN VIEW OF THE FACT THAT THE 1939 ACT DOES NOT EXPRESSLY INCLUDE FORMER MEMBERS AND, MORE IMPORTANT, THAT THE CAREER-1COMPENSATION ACT IN EFFECT SET UP A WHOLLY NEW AND RADICALLY DIFFERENT RETIREMENT SYSTEM FOR PHYSICAL DISABILITY, APPARENTLY INTENDED TO OCCUPY THE ENTIRE FIELD, WITH MANY RESTRICTIONS AND LIMITATIONS NOT CONTAINED IN PRIOR LAWS, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING, IN THE ABSENCE OF FURTHER CLARIFYING LEGISLATION, THAT THE CONGRESS INTENDED THAT PERSONS WHO COULD NOT MEET THE CONDITIONS STIPULATED IN THE CAREER COMPENSATION ACT MIGHT FALL BACK ON THE MORE GENEROUS PROVISIONS OF PRIOR RETIREMENT LEGISLATION. ON THE CONTRARY, IT MAY BE ASSUMED THAT PERSONS NOT MEETING SUCH STIPULATED CONDITIONS WERE TO BE LEFT TO SUCH RIGHTS AS THEY MIGHT HAVE TO DISABILITY COMPENSATION, PENSIONS, OR OTHER VETERANS BENEFITS. THAT VIEW OF THE MATTER, IT MUST BE CONSIDERED THAT TO THE EXTENT PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, SUPRA, AUTHORIZED RETIREMENT PAY ON ACCOUNT OF PHYSICAL DISABILITY, THEY HAVE BEEN WHOLLY SUPERSEDED SINCE OCTOBER 1, 1949, BY THE SAID PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, EXCEPT AS THEY MAY BE MATERIAL IN RELATION TO THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, DISCUSSED ABOVE.

IT FOLLOWS THAT THE RETIREMENT PAY RIGHTS OF THE OFFICERS REFERRED TO IN THE SUBMITTED QUESTIONS ARE TO BE REGARDED AS STRICTLY GOVERNED BY THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT AND SINCE THEIR CASES DO NOT MEET THE CONDITIONS OF SUBSECTION (A) OR (B) THEREOF, THEY NOT HAVING BEEN "ENTITLED TO RECEIVE BASIC PAY" WHEN THE DETERMINATIONS OF DISABILITY WERE MADE, AND SINCE THE FACTS SUBMITTED DO NOT SHOW THAT EITHER OF THE CASES MEETS THE CONDITIONS STIPULATED IN SUBSECTION (C) FOR MEMBERS OTHER THAN THOSE COVERED IN SUBSECTIONS (A) AND (B), IT IS NOT ESTABLISHED THAT EITHER OFFICER IS ENTITLED TO RETIREMENT PAY UNDER THE SAID SECTION. ACCORDINGLY, ON THE FACTS SUBMITTED, THE FIRST PARTS OF YOUR QUESTIONS A (1) AND B (1) ARE ANSWERED IN THE NEGATIVE, IN VIEW OF WHICH NO ANSWER IS REQUIRED TO THE SECOND PARTS OF SUCH QUESTIONS, AND QUESTIONS A (2), A (3), AND B (2) ARE ANSWERED IN THE AFFIRMATIVE.