B-134808, MAY 21, 1958

B-134808, MAY 21, 1958

TO MR. GEORGE W. HAYMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 10, 1958, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION DATED MARCH 6, 1958, B-134808, WHICH SUSTAINED THE ACTION TAKEN IN OUR SETTLEMENT DATED NOVEMBER 27, 1957, DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE YOU AS OF APRIL 12, 1957, THE DATE OF YOUR DISCHARGE AS PRIVATE, UNITED STATES MARINE CORPS. YOU ALSO REQUEST THAT WE RETURN TO YOU THE PAPERS WHICH YOU FORWARDED WITH YOUR LETTER DATED DECEMBER 16, 1957, FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM.

YOUR CLAIM HAS BEEN CONSIDERED BY OUR OFFICE AS COVERING THE PERIOD FROM JULY 20, 1953, TO APRIL 12, 1957. THUS, THERE WERE INVOLVED PERIODS BOTH BEFORE AND AFTER APRIL 11, 1954, THE DATE OF THE NORMAL EXPIRATION OF YOUR TERM OF ENLISTMENT. DURING THE PERIOD FROM JULY 20, 1953, TO FEBRUARY 28, 1955, YOU WERE ABSENT IN A DESERTION STATUS AND, SINCE THERE WAS NO INDICATION THAT YOUR ABSENCE DURING THAT PERIOD WAS EXCUSED AS UNAVOIDABLE WITHIN THE MEANING OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33 (B), WE HELD IN OUR DECISION DATED MARCH 6, 1958, THAT YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD. DURING THE GREATER PART OF THE PERIOD FROM MARCH 1, 1955, TO APRIL 12, 1957--- AFTER THE EXPIRATION OF YOUR TERM OF ENLISTMENT--- YOU WERE RECEIVING MEDICAL CARE OR HOSPITALIZATION. SINCE HEADQUARTERS U.S. MARINE CORPS REPORTED TO US THAT THE DISABILITY FOR WHICH YOU WERE HOSPITALIZED WAS NOT AN INCIDENT OF SERVICE, WE HELD IN OUR DECISION DATED MARCH 6, 1958, THAT THE PROVISIONS OF 10 U.S.C. 5537 WERE NOT APPLICABLE IN YOUR CASE AND THAT YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD FROM MARCH 1, 1955, TO APRIL 12, 1957.

IN YOUR LETTER DATED MARCH 10, 1958, YOU SAY THAT THE PHYSICAL EVALUATION BOARD WHICH CONSIDERED YOUR CASE ON NOVEMBER 14, 1956, FOUND THAT YOUR DISABILITY WAS AN INCIDENT OF SERVICE AND THAT SUCH "FINDINGS" WERE APPROVED BY THE SECRETARY OF THE NAVY. YOUR CONCLUSION IS APPARENTLY BASED ON THE STATEMENT CONTAINED IN THE SECOND PARAGRAPH OF A LETTER DATED MARCH 28, 1957, FROM HEADQUARTERS U.S. MARINE CORPS TO YOUR MOTHER, MRS. LEE ALPHA H. ERVIN, WHICH IS AS FOLLOWS:

"ON 26 MARCH 1957, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD IN YOUR SON'S CASE, AND DIRECTED THAT HE BE DISCHARGED BY REASON OF PHYSICAL DISABILITY. ACCORDINGLY, ORDERS ARE BEING ISSUED THIS DATE TO THAT EFFECT.'

YOU SAY THAT YOU WERE DISCHARGED BY REASON OF SERVICE-CONNECTED DISABILITY AND IT APPEARS TO BE YOUR OPINION THAT, ON SUCH BASIS, ALL UNAUTHORIZED ABSENCES IN YOUR CASE WERE EXCUSED AS UNAVOIDABLE AND THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES FOR THE ENTIRE PERIOD INVOLVED IN YOUR CLAIM. YOU ALSO SAY THAT YOU ARE NOW RECEIVING 100 PERCENT SERVICE- CONNECTED COMPENSATION IN THE AMOUNT OF $258 THE FIRST OF EACH MONTH AND THAT YOU ARE UNDER A DOCTOR'S CARE ON OUT-PATIENT BASIS FOR DISABILITY DUE TO SERVICE.

INCLUDED IN THE ENCLOSURES FORWARDED WITH YOUR LETTER DATED DECEMBER 16, 1957, IS A COPY OF A LETTER DATED OCTOBER 9, 1956, ADVISING YOUR MOTHER THAT YOUR PHYSICAL CONDITION WOULD BE REEVALUATED BY A NAVY PHYSICAL EVALUATION BOARD, NINTH NAVAL DISTRICT, GREAT LAKES, ILLINOIS, ON NOVEMBER 14, 1956. THE THIRD PARAGRAPH OF THAT LETTER IS AS FOLLOWS:

"THE FINDINGS BY A PHYSICAL EVALUATION BOARD ARE NOT FINAL BUT SUBJECT TO REVIEW BY THE PHYSICAL REVIEW COUNCIL, NAVY DEPARTMENT, WASHINGTON 25, D.C. IN THE EVENT THE PHYSICAL REVIEW COUNCIL DOES NOT CONCUR WITH THE FINDINGS OF THE PHYSICAL EVALUATION BOARD AND PROPOSES FINDINGS WHICH WOULD CHANGE DISPOSITION OF HIS CASE IN A MANNER CONSIDERED SUBSTANTIALLY DETRIMENTAL TO INTEREST, ITS REVISED FINDINGS WILL BE FORWARDED TO COUNSEL FOR YOUR SON FOR SUCH STATEMENT IN REBUTTAL AS MAY BE INDICATED.'

THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD AND THE STATEMENT RELATIVE TO SUCH FINDINGS ARE AS FOLLOWS:

"/1)THAT GEORGE WALTER HAYMAN, 1174041, PRIVATE, U.S. MARINE CORPS, BE FOUND UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY BY REASON OF:

"/2) DIAGNOSIS; SCHIZOPHRENIC REACTION, PARANOID TYPE, NO. 3003; THAT

"/3) HIS DISABILITY IS NOT DUE TO INTENTIONAL MISCONDUCT OR WILFUL NEGLECT AND WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE; THAT

"/4) HIS DISABILITY IS CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE UTY; THAT

"/5) HIS DISABILITY IS CONSIDERED TO BE ONE HUNDRED PERCENTUM IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION, CODE NUMBER 9003; NO. 9003 DEMENTIA PRAECOX, PARANOID TYPE, 100 PERCENT; THAT

"/6) ACCEPTED MEDICAL PRINCIPLES INDICATE THAT HIS DISABILITY IS OF A PERMANENT NATURE.

"THE BOARD ADVISED THE COUNSEL FOR THE ABOVE-NAMED INDIVIDUAL THAT THE RECOMMENDED FINDINGS OF THE BOARD DID NOT INDICATE WHAT THE FINAL DETERMINATION OF THE SECRETARY OF THE NAVY WOULD BE AND THAT THEY WERE COMMUNICATED TO HIM ONLY FOR THE PURPOSE OF FILING A REBUTTAL IF HE SO DESIRED.'

YOUR CASE WAS SUBSEQUENTLY CONSIDERED BY THE NAVY PHYSICAL REVIEW COUNCIL, NAVY DEPARTMENT, WASHINGTON, D.C., AND THEIR SPEEDLETTER DATED DECEMBER 27, 1956, ADDRESSED TO SENIOR MEMBER, PHYSICAL EVALUATION BOARD, HEADQUARTERS, NINTH NAVAL DISTRICT, GREAT LAKES, ILLINOIS, FOR DELIVERY TO YOUR COUNSEL, IS AS FOLLOWS:

"THE REPRESENTATIVES OF THE COMMANDANT OF THE MARINE CORPS AND THE CHIEF, BUREAU OF MEDICINE AND SURGERY ON THE PHYSICAL REVIEW COUNCIL CONCUR WITH THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD IN HAYMAN'S CASE EXCEPT FINDINGS (1), IN PART, (4) AND (5). THESE REPRESENTATIVES ARE OF THE OPINION AND INTEND TO RECOMMEND TO THE SECRETARY OF THE NAVY THAT HAYMAN IS UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY, SCHIZOPHRENIC REACTION, PARANOID TYPE, NOT INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; NOT THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY NOR AGGRAVATED THEREBY; AND THEREFORE NOT RATABLE. IT IS CONSIDERED THAT THE PRESENT DISABILITY IS THE RESULT OF THE NATURAL PROGRESSION OF A PSYCHIATRIC ILLNESS EXISTING PRIOR TO ENLISTMENT. UPON APPROVAL OF THE PROPOSED SUBSTITUTE FINDINGS, HAYMAN WILL BE SEPARATED FROM THE U.S. MARINE CORPS FOR PHYSICAL DISABILITY WITHOUT THE BENEFITS PROVIDED BY LAWS ADMINISTERED BY THE NAVY.

"THE REPRESENTATIVE OF THE JUDGE ADVOCATE GENERAL ON THE PHYSICAL REVIEW COUNCIL CONCURS WITH THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD IN HAYMAN'S CASE. (HEARING HELD 14 NOVEMBER 1956).

"ON THE ELECTION OF THE REPRESENTATIVE OF THE JUDGE ADVOCATE GENERAL, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 0935C (1), NAVAL SUPPLEMENT TO THE MANUAL FOR COURTS-MARTIAL, HAYMAN'S CASE WILL BE REFERRED TO THE PHYSICAL DISABILITY APPEAL BOARD FOR CONSIDERATION, AND NOTICE OF SUCH ACTION IS GIVEN HEREWITH. ANY FURTHER STATEMENT HE MAY DESIRE TO MAKE SHOULD BE FORWARDED EXPEDITIOUSLY TO THE PHYSICAL DISABILITY APPEAL BOARD (MARINE CORPS), NAVY DEPARTMENT, WASHINGTON 25, D.C. PLEASE ADVISE THE SAID BOARD IMMEDIATELY OF HIS INTENTIONS.'

THE PHYSICAL DISABILITY APPEAL BOARD (MARINE CORPS), HEADQUARTERS U.S. MARINE CORPS, WASHINGTON, D.C., CONSIDERED YOUR CASE ON FEBRUARY 14, 1957, AND REPORTED AND RECOMMENDED AS FOLLOWS:

"THE BOARD REVIEWED THE RECORD OF PROCEEDINGS OF THE PHYSICAL EVALUATION BOARD AND THE ACTION OF THE PHYSICAL REVIEW COUNCIL THEREON, TOGETHER WITH ALL DOCUMENTS TRANSMITTED TO IT IN THE CASE OF THE PARTY, AND THE ADDITIONAL EVIDENCE SUBMITTED BY COUNSEL FOR THE PARTY BEFORE THE BOARD, AND AFTER CAREFUL DELIBERATION OF ALL EVIDENCE BEFORE IT, SUBMITS THE FOLLOWING ADVISORY OPINION TO THE SECRETARY OF THE NAVY:

"1. THAT THE PROPOSED SUBSTITUTE FINDINGS OF THE REPRESENTATIVES OF THE COMMANDANT OF THE MARINE CORPS AND THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY ON THE PHYSICAL REVIEW COUNCIL TO THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD, DATED NOVEMBER 14, 1956, AS STATED IN THE PHYSICAL REVIEW COUNCIL'S SPEEDLETTER TO THE PARTY CONCERNED, DATED DECEMBER 27, 1956, SHOULD BE APPROVED.'

THE JUDGE ADVOCATE GENERAL OF THE NAVY CONSIDERED THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD IN YOUR CASE, AS MODIFIED BY THE ACTION OF THE PHYSICAL REVIEW COUNCIL AND THE PHYSICAL DISABILITY APPEAL BOARD, AND EXPRESSED THE OPINION THAT SUCH PROCEEDINGS AND RECOMMENDED FINDINGS WERE LEGAL AND, UPON APPROVAL BY THE SECRETARY OF THE NAVY, WOULD RESULT IN YOUR RECEIVING A MEDICAL DISCHARGE (NO DISABILITY BENEFITS). HEADQUARTERS U.S. MARINE CORPS HAS REPORTED TO US THAT---

"ON 26 MAR 57 THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND FINDINGS OF THE PHYSICAL EVALUATION BOARD IN HAYMAN'S CASE, AS CONCURRED IN OR MODIFIED BY THE PHYSICAL REVIEW COUNCIL, AND DIRECTED THAT HAYMAN BE DISCHARGED FROM THE NAVAL SERVICE FOR PHYSICAL DISABILITY WITHOUT THE BENEFITS PROVIDED BY TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 (10 U.S. CODE, CH. 61), AS AMENDED. HE WAS AWARDED A GENERAL DISCHARGE BY REASON OF PHYSICAL DISABILITY ON 12 APR 57.'

SINCE HEADQUARTERS U.S. MARINE CORPS HAS REPORTED THAT YOU WERE DISCHARGED FOR PHYSICAL DISABILITY WITHOUT THE BENEFITS PROVIDED BY TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 (10 U.S. CODE, CHAPTER 61), AS AMENDED, IT SEEMS EVIDENT THAT YOU ARE NOT RECEIVING COMPENSATION UNDER LAWS ADMINISTERED BY THE NAVY DEPARTMENT. IF IT BE A FACT THAT THE VETERANS ADMINISTRATION HAS DETERMINED THAT, UNDER LAWS ADMINISTERED BY THAT ADMINISTRATION, YOU ARE ENTITLED TO DISABILITY COMPENSATION, THAT FACT WOULD NOT BE DETERMINATIVE OF YOUR RIGHT TO PAY AND ALLOWANCES FOR THE PERIOD INVOLVED IN YOUR CLAIM. SEE HOLLIDAY V. UNITED STATES, 128 C.CLS. 647, AND UHLEY V. UNITED STATES, 137 C.CLS. 275.

THERE IS NO EVIDENCE IN THE FILE TO SUPPORT YOUR CONTENTION THAT YOUR PERIODS OF UNAUTHORIZED ABSENCE, INCLUDING THE PERIOD FROM JULY 20, 1953, TO FEBRUARY 28, 1955, WERE EXCUSED AS UNAVOIDABLE. IN OUR DECISION DATED JUNE 26, 1957, B-131446, WE EXPRESSED THE VIEW THAT CONGRESS, BY THE ENACTMENT OF THE ARMED FORCES LEAVE ACT, DID NOT INTEND TO CREATE OR SANCTION A RULE WHICH COULD RESULT IN PAYMENT OF PAY AND ALLOWANCES FOR A TERM OF YEARS WITHOUT ANY SERVICE OR OTHER REAL CONSIDERATION TO THE GOVERNMENT THEREFOR.

ACCORDINGLY, THERE APPEARS NO REASON FOR MODIFICATION OF OUR DECISION DATED MARCH 6, 1958, HOLDING THAT YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD FROM JULY 20, 1953, TO APRIL 12, 1957. THE ENCLOSURES RECEIVED WITH YOUR LETTER DATED DECEMBER 16, 1957, ARE RETURNED AS REQUESTED BY YOU.