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B-72707, NOV 23, 1948

B-72707 Nov 23, 1948
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WERE ORDERED TO "ACTIVE DUTY" AT ARMY HOSPITALS FOR THE PURPOSE OF FURTHER OBSERVATION. YOU REQUEST ADVICE AS TO WHETHER THIS OFFICE IS REQUIRED TO CONTINUE OBJECTION TO PAYMENTS MADE ON THE BASIS OF ORDERS ISSUED TO SUCH OFFICERS PRIOR TO RECEIPT OF THE SAID DECISION OF MARCH 3. IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS): "AN ARMY AIR CORPS RESERVE OFFICER WHO. WAS ORDERED TO 'ACTIVE DUTY' SOLELY FOR HOSPITALIZATION. THE OFFICER INVOLVED IN THAT DECISION REMAINED IN ARMY HOSPITALS FOR OVER A YEAR DRAWING FULL PAY AND ALLOWANCES BEFORE HE AGAIN WAS RELEASED TO INACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY. THE SAID DECISION WAS BASED. ARE ORDERED TO "ACTIVE DUTY" FOR MEDICAL TREATMENT.

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B-72707, NOV 23, 1948

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE ARMY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 10, 1948, REQUESTING THAT RECONSIDERATION BE GIVEN THE MATTER OF EFFECTING REFUND OF PAY AND ALLOWANCES MADE TO OFFICERS OF THE ARMY OF THE UNITED STATES WHO, PRIOR TO OFFICE DECISION DATED MARCH 3, 1948 (B-72707), WERE ORDERED TO "ACTIVE DUTY" AT ARMY HOSPITALS FOR THE PURPOSE OF FURTHER OBSERVATION, TREATMENT AND POSSIBLE APPEARANCE BEFORE AN ARMY RETIRING BOARD. YOU REQUEST ADVICE AS TO WHETHER THIS OFFICE IS REQUIRED TO CONTINUE OBJECTION TO PAYMENTS MADE ON THE BASIS OF ORDERS ISSUED TO SUCH OFFICERS PRIOR TO RECEIPT OF THE SAID DECISION OF MARCH 3, 1948; AND, IF SO, THAT COLLECTION ACTION BY THIS OFFICE BE HELD IN ABEYANCE PENDING SUBMISSION OF THE MATTER FOR CONGRESSIONAL ACTION.

IN SAID DECISION OF MARCH 3, 1948, B-72707 (27 COMP.GEN. 490), IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

"AN ARMY AIR CORPS RESERVE OFFICER WHO, AFTER RELEASE FROM ACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY, WAS ORDERED TO 'ACTIVE DUTY' SOLELY FOR HOSPITALIZATION, MEDICAL TREATMENT, AND APPEARANCE BEFORE AN ARMY RETIRING BOARD, MAY NOT BE CONSIDERED AS ORDERED TO ACTIVE DUTY WITHIN THE MEANING OF SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED, SO AS TO BE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES THEREUNDER DURING SUCH PERIOD OF HOSPITALIZATION, ETC,; AND UPON RELEASE FROM SUCH DUTY, SUCH OFFICER MAY NOT BE PAID THE LUMP SUM AUTHORIZED BY SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, FOR AIR CORPS RESERVE OFFICERS UPON RELEASE FROM ACTIVE DUTY. COMPARE 26 COMP.GEN. 107."

THE OFFICER INVOLVED IN THAT DECISION REMAINED IN ARMY HOSPITALS FOR OVER A YEAR DRAWING FULL PAY AND ALLOWANCES BEFORE HE AGAIN WAS RELEASED TO INACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY. THE SAID DECISION WAS BASED, IN PRINCIPLE, ON DECISION OF AUGUST 12, 1946, 26 COMP.GEN.107, AND ON AN EARLIER DECISION OF THIS OFFICE (B-22505, FEBRUARY 18, 1942, 21 COMP.GEN. 781), HOLDING THAT OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO, SUBSEQUENT TO RELEASE FROM ACTIVE DUTY, ARE ORDERED TO "ACTIVE DUTY" FOR MEDICAL TREATMENT, HOSPITALIZATIONS, ETC., AND POSSIBLE CONSIDERATION FOR RETIREMENT ARE NOT "EMPLOYED ON ACTIVE DUTY" WITHIN THE MEANING OF THE NAVAL RESERVE ACT OF 1938 SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES DURING SUCH PERIODS OF HOSPITALIZATION, ETC.

WHILE YOU DO NOT APPEAR TO QUESTION THE CORRECTNESS OF THE DECISION OF MARCH 3, 1948, IT IS SUGGESTED THAT POSSIBLY THIS OFFICE WILL NOT FIND IT NECESSARY TO CONTINUE OBJECTION TO SUCH ERRONEOUS PAYMENTS BECAUSE OF THE PARTICULAR CIRCUMSTANCES WHICH PROMPTED THE ISSUANCE OF ORDERS RECALLING THESE OFFICERS TO ACTIVE DUTY. THE CIRCUMSTANCES INVOLVED ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

"IN THE WAY OF BACKGROUND, THE DEPARTMENT OF THE ARMY HAS FOUND THE ACT OF 3 APRIL 1939 PROVIDING RETIREMENT BENEFITS TO NON-REGULAR ARMY OFFICERS PARTICULARLY DIFFICULT TO ADMINISTER. AS YOU KNOW, THIS STATUTE REQUIRES AMONG OTHER THINGS A DETERMINATION OF PERMANENCY OF THE DISABILITY. THE PEAK DEMOBILIZATION PERIOD FOUND THE ARMY OPERATING 99 SEPARATE RETIRING BOARDS WHICH PROCESSED OVER 80,000 INDIVIDUAL OFFICER CASES. IT WAS INEVITABLE THAT SOME MISTAKES SHOULD OCCUR, AND THE ARMY HAS ADMITTED THERE WERE SUCH MISTAKES MADE. I BELIEVE THE ARMY WAS MORALLY OBLIGATED TO TAKE STEPS TO RECTIFY THESE ERRORS. THE PROCEDURE OF RECALLING OFFICERS FOR FURTHER REVALUATION WAS ONE OF THE CORRECTIVE ACTIONS TAKEN TO INSURE PROPER ADMINISTRATION OF THE DISABILITY RETIREMENT ACT.

"ON RECEIPT OF YOUR DECISION DATED 3 MARCH 1948, B-72707, I IMMEDIATELY DIRECTED THAT NO MORE SUCH RECALL ORDERS WOULD BE ISSUED. I ALSO DIRECTED THAT OFFICERS IN A HOSPITAL UNDER THESE ORDERS BE PAID ONLY THROUGH 30 APRIL 1948, AFTER WHICH TIME THE OFFICERS WHOSE CASES WERE STILL INCOMPLETE COULD REMAIN IN THE HOSPITALS WITHOUT PAY. I FURTHER DIRECTED THAT THE SURGEON GENERAL GIVE EVERY PRIORITY TO THE PROCESSING OF THESE CASES IN SO FAR AS THEIR INDIVIDUAL MEDICAL CONDITIONS PERMIT.

"I BELIEVE YOU WILL UNDERSTAND MY ACTION IN MAKING THE EXTENSION WHEN YOU CONSIDER THE DRASTIC EFFECT OF ABRUPTLY SEVERING THE PAY OF THESE OFFICERS IN OUR HOSPITALS UNDER ORDERS ISSUED IN GOOD FAITH TO CORRECT POSSIBLE INJUSTICES."

THIS OFFICE APPRECIATES THE DIFFICULTIES ENCOUNTERED BY THE ARMY IN PROCESSING A LARGE NUMBER OF OFFICERS FOR RELEASE FROM ACTIVE DUTY DURING THE PEAK DEMOBILIZATION PERIOD AND AS A RESULT OF SUCH A LARGE UNDERTAKING IT IS POSSIBLE THAT CERTAIN PHYSICALLY DISABLED OFFICERS MIGHT HAVE BEEN RELEASED FROM ACTIVE DUTY BEFORE THEIR ELIGIBILITY FOR RETIREMENT PAY BENEFITS WAS FULLY EVALUATED. ALSO IT IS UNDERSTANDABLE THAT YOU FELT THAT THE ARMY WAS "MORALLY OBLIGATED" TO TAKE STEPS TO RECTIFY ANY SUCH ERRORS BY RECALLING OFFICERS AFFECTED TO ACTIVE DUTY FOR FURTHER REVALUATION TO INSURE PROPER ADMINISTRATION OF THE PHYSICAL DISABILITY RETIREMENT LAWS. HOWEVER, AT THE TIME ORDERS WERE ISSUED RECALLING SUCH OFFICERS TO ACTIVE DUTY FOR FURTHER DETERMINATION OF THEIR ELIGIBILITY FOR RETIREMENT BENEFITS, BOTH THE MARINE CORPS AND THE NAVY DEPARTMENT HAD BEEN ADVISED IN DECISIONS DATED FEBRUARY 18, 1942, AND AUGUST 12, 1946, SUPRA, THAT OFFICERS WHO, SUBSEQUENT TO RELEASE FROM ACTIVE DUTY, ARE ORDERED TO "ACTIVE DUTY" FOR THE PURPOSE OF MEDICAL TREATMENT, HOSPITALIZATION AND POSSIBLE CONSIDERATION FOR DISCHARGE OR RETIREMENT ARE NOT EMPLOYED ON "ACTIVE DUTY" WITHIN THE MEANING OF APPLICABLE LAWS SO AS TO ENTITLE THEM TO ACTIVE DUTY PAY AND ALLOWANCES. THE SAID DECISIONS ARE PUBLISHED DECISIONS AND WERE READILY AVAILABLE TO ARMY AUTHORITIES SHORTLY AFTER THEIR RESPECTIVE DATES. WHILE THE SAID DECISIONS ARE NOT ADDRESSED TO ARMY AUTHORITIES AND DID NOT SPECIFICALLY DISCUSS LAWS APPLICABLE TO THE ARMY, IT SEEMS REASONABLE TO ASSUME THAT A CURSORY EXAMINATION OF THE SAID DECISIONS SHOULD HAVE RAISED SOME DOUBT IN THE MINDS OF ARMY AUTHORITIES-- ESPECIALLY ARMY DISBURSING OFFICERS-- AS TO THE LEGALITY OF PAYMENTS MADE ON THE BASIS OF SUCH ORDERS AND THE POSSIBILITY THAT SUCH PAYMENTS WOULD NOT BE ALLOWED BY THIS OFFICE IN THE AUDIT OF THE ACCOUNTS OF ARMY DISBURSING OFFICERS. HOWEVER THAT MAY BE, AND IRRESPECTIVE OF ANY MORAL OBLIGATION WITH RESPECT TO SUCH OFFICERS, THE FACT REMAINS THAT EXISTING LAW DOES NOT AUTHORIZE THE RECALLING OF OFFICES OF THE ARMY OF THE UNITED STATES (OR OF THE NAVAL RESERVE) TO "ACTIVE DUTY" FOR THE SOLE PURPOSE OF HOSPITALIZATION, MEDICAL TREATMENT, OR CONSIDERATION FOR RETIREMENT. CF. THE ACT OF JUNE 15, 1946, 49 STAT. 1507, 10 U.S.C. 455A. HAD THE MATTER BEEN SUBMITTED HERE FOR ADVANCE DECISION PRIOR TO THE ISSUANCE OF SUCH ORDERS, OR PRIOR TO PAYMENTS MADE ON THE BASIS OF SUCH ORDERS, THIS OFFICE WOULD HAVE BEEN REQUIRED UNDER EXISTING LAW TO HOLD (AS IT DID IN DECISION OF MARCH 3, 1948, AND PRIOR DECISIONS) THAT SUCH PAYMENTS WERE UNAUTHORIZED. THE FACT THAT ORDERS WERE ISSUED AND PAYMENTS MADE ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT SUCH PAYMENTS WERE AUTHORIZED UNDER THE PARTICULAR CIRCUMSTANCES APPLICABLE TO THE ARMY IS NOT SUFFICIENT TO WARRANT ALLOWANCES OF CREDIT FOR SUCH PAYMENTS IN THE DISBURSING OFFICES' ACCOUNTS. THIS OFFICE HAS NO DISCRETION OR POWERS OF DISPENSATION BUT HAS AUTHORITY IN THAT RESPECT ONLY TO APPLY THE STATUTES AS ENACTED BY THE CONGRESS, ANY CORRECTION OF APPARENT INJUSTICE OR INEQUITABLE OPERATION OF THE STATUTE BEING A MATTER FOR CONSIDERATION BY THE LEGISLATIVE BODY, NOT THE ACCOUNTING OFFICER. HOWEVER, IN VIEW OF THE FACT THAT SUCH PAYMENTS WERE DISCONTINUED APRIL 30, 1948, NO FURTHER ACTION WILL BE TAKEN IN THE MATTER BY THIS OFFICE FOR A REASONABLE TIME PENDING SUBMISSION OF THE MATTER FOR CONSIDERATION BY THE CONGRESS.

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