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B-171134, JAN 22, 1971, 50 COMP GEN 508

B-171134 Jan 22, 1971
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WHO BEFORE HIS RECOMMENDED PROMOTION TO THE GRADE OF LIEUTENANT COLONEL COULD TAKE EFFECT WAS RETIRED UNDER 10 U.S.C. 1201. " IS NOT ENTITLED TO RETIRED PAY COMPUTED AT THE HIGHER GRADE. AS THE DISABILITY FOR WHICH THE OFFICER WAS RETIRED WAS NOT FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION WITHIN THE MEANING OF 10 U.S.C. 1372(3). NOR ARE THE EXAMINATIONS WITHIN PURVIEW OF BRANDT V UNITED STATES. HOLDING THAT WHERE PHYSICAL EXAMINATIONS IN CONNECTION WITH PROMOTION AND RETIREMENT ARE GIVEN CLOSE TOGETHER. 1971: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF OCTOBER 26. THE OFFICER WAS RETIRED UNDER 10 U.S.C. 1201.

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B-171134, JAN 22, 1971, 50 COMP GEN 508

PAY - RETIRED - DISABILITY - PHYSICAL EXAMINATION FOR PROMOTION DETERMINATION A MAJOR IN THE AIR FORCE RESERVES, WHO BEFORE HIS RECOMMENDED PROMOTION TO THE GRADE OF LIEUTENANT COLONEL COULD TAKE EFFECT WAS RETIRED UNDER 10 U.S.C. 1201, EFFECTIVE JULY 9, 1970, WITH 80-PERCENT DISABILITY, AND WHO HAD UNDERGONE TWO PHYSICAL EXAMINATIONS, ONE IN CONNECTION WITH HIS "PROJECTED VOLUNTARY RETIREMENT," THE OTHER INCIDENT TO HIS DISABILITY RETIREMENT," IS NOT ENTITLED TO RETIRED PAY COMPUTED AT THE HIGHER GRADE, AS THE DISABILITY FOR WHICH THE OFFICER WAS RETIRED WAS NOT FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION WITHIN THE MEANING OF 10 U.S.C. 1372(3), NOR ARE THE EXAMINATIONS WITHIN PURVIEW OF BRANDT V UNITED STATES, 155 CT. CL. 345, HOLDING THAT WHERE PHYSICAL EXAMINATIONS IN CONNECTION WITH PROMOTION AND RETIREMENT ARE GIVEN CLOSE TOGETHER, THE PHYSICAL DISABILITY CAN BE SAID TO BE THE RESULT OF AN EXAMINATION FOR PROMOTION.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, JANUARY 22, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1970 (FILE REFERENCE RPTI), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $294.35 IN FAVOR OF MAJOR WILLIAM B. BLOSE, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN THE GRADE OF LIEUTENANT COLONEL AND THAT OF A MAJOR FOR THE PERIOD JULY 9, 1970, THROUGH AUGUST 31, 1970, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF OCTOBER 26, 1970, BY THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1101 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY ORDERS DATED JUNE 24, 1970, THE OFFICER WAS RETIRED UNDER 10 U.S.C. 1201, EFFECTIVE JULY 9, 1970, IN THE GRADE OF MAJOR WITH 80-PERCENT DISABILITY AFTER COMPLETING OVER 27 YEARS' SERVICE FOR BASIC PAY PURPOSES AND OVER 22 YEARS' SERVICE FOR RETIREMENT PURPOSES. THOSE ORDERS SHOW THAT THE OFFICER WAS ASSIGNED TO THE RETIRED RESERVE IN THE RESERVE GRADE OF LIEUTENANT COLONEL.

YOU STATE THAT MAJOR BLOSE WAS CONSIDERED AND SELECTED FOR PROMOTION TO THE RESERVE GRADE OF LIEUTENANT COLONEL BY A PROMOTION BOARD WHICH ADJOURNED ON JANUARY 30, 1970, SUCH PROMOTION TO BE EFFECTIVE AS OF FEBRUARY 26, 1971. YOU REPORT THAT THE OFFICER HAS A MANDATORY DATE OF SEPARATION OF JUNE 30, 1970 - PRESUMABLY YOU REFER TO A PROSPECTIVE RELEASE FROM ACTIVE DUTY UNDER "PROJECT 703" - BUT IN LIEU OF SEPARATION HE APPLIED FOR VOLUNTARY RETIREMENT TO BECOME EFFECTIVE JUNE 30, 1970. YOU FURTHER STATE THAT SUBSEQUENT TO JANUARY 30, 1970, HE UNDERWENT A PHYSICAL EXAMINATION INCIDENT TO RETIREMENT; AND ON JUNE 23, 1970, THE SECRETARY OF THE AIR FORCE DETERMINED HIS UNFITNESS FOR DUTY AND DIRECTED THAT HE BE RETIRED EFFECTIVE JULY 9, 1970, BECAUSE OF PHYSICAL DISABILITY.

YOU SAY THAT THE DOUBT AS TO THE OFFICER'S RETIRED PAY GRADE STEMS FROM THE QUESTION OF WHETHER THE DISABILITY FOR WHICH HE WAS RETIRED WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION WITHIN THE MEANING OF 10 U.S.C. 1372(3). IN THIS CONNECTION, YOU REFER TO THE COMMENTS AND OPINIONS ACCOMPANYING YOUR SUBMISSION CONCERNING THIS MATTER. YOU ALSO REFER TO OUR DECISION IN 41 COMP. GEN. 749 (1962).

SECTION 1372 OF TITLE 10, U.S. CODE, PROVIDES, IN PERTINENT PART, THAT UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY (UNDER 10 U.S.C. 1201) IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF CERTAIN GRADES INCLUDING:

(3) THE PERMANENT REGULAR OR RESERVE GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED AND WHICH WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

THE QUESTION OF WHETHER MAJOR BLOSE IS ENTITLED TO BE RETIRED IN THE GRADE OF LIEUTENANT COLONEL UNDER 10 U.S.C. 1372(3) AND HAVE HIS RETIRED PAY COMPUTED ON THE HIGHER GRADE WAS THE SUBJECT OF TWO OPINIONS DATED JULY 30, 1970, AND AUGUST 18, 1970, RESPECTIVELY, BY THE CHIEF, MILITARY AFFAIRS DIVISION, FIELD EXTENSION, OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE AIR FORCE. IT IS POINTED OUT IN THE FIRST OPINION THAT AS A RESULT OF "PROJECT 703" THE OFFICER WAS SCHEDULED TO BE INVOLUNTARILY RELEASED FROM ACTIVE DUTY EFFECTIVE JUNE 30, 1970, BUT INSTEAD HE APPLIED FOR VOLUNTARY RETIREMENT. THE OPINION STATES THAT EVEN THOUGH THERE IS NO SPECIFIC STATUTORY REQUIREMENT FOR A PROMOTION PHYSICAL FOR A RESERVE OFFICER AS THERE IS FOR A REGULAR OFFICER (10 U.S.C. 8309), 10 U.S.C. 1372(3) RECOGNIZES THAT RESERVE PROMOTIONS WILL NOT BE EFFECTED WHEN THE MEMBER IS DETERMINED TO BE PHYSICALLY DISQUALIFIED.

THE VIEW IS EXPRESSED IN THE JAG OPINION OF JULY 30, 1970, THAT A PHYSICAL EXAMINATION, NO MATTER FOR WHAT PURPOSE, THE RESULTS OF WHICH ARE USED TO REMOVE AN OFFICER FROM A SELECTED-FOR-RESERVE-PROMOTION LIST, SHOULD BE CONSIDERED AS A "PHYSICAL EXAMINATION FOR PROMOTION," AS THOSE WORDS ARE USED IN 10 U.S.C. 1372(3). THE OPINION FURTHER STATES THAT IF THE PHYSICAL EXAMINATION IN WHICH IT WAS DISCOVERED THAT MAJOR BLOSE HAD A PHYSICAL DISABILITY FOR WHICH HE WAS TO BE RETIRED WOULD BE USED ALSO AS A BASIS FOR REMOVING HIM FROM THE SELECTED FOR PROMOTION LIST, THAT EXAMINATION SHOULD BE CONSIDERED A "PHYSICAL EXAMINATION FOR PROMOTION," WITHIN THE MEANING OF 10 U.S.C. 1372(3).

IN SUPPORT OF THIS VIEW, THE OPINION CITES SEVERAL COURT OF CLAIMS DECISIONS, NAMELY, LEONARD V UNITED STATES, 131 CT. CL. 91 (1955); FREDRICKSON V UNITED STATES, 133 CT. CL. 890 (1956); CLARK V UNITED STATES, 151 CT. CL. 601 (1960); AND WILLIAMS V UNITED STATES, 145 CT. CL. 513 (1959). HOWEVER, NO MENTION WAS MADE OF THE BRANDT CASE, CITED AND DISCUSSED BELOW.

THE JAG OPINION OF AUGUST 18, 1970, WHICH FURTHER CONSIDERED MAJOR BLOSE'S CASE, REFERS TO SEVERAL COMPTROLLER GENERAL DECISIONS, NAMELY 32 COMP. GEN. 104 (1952); 35 ID. 696(1956); 36 ID. 492 (1957); 37 ID. 89 (1957); 40 ID. 240 (1960); AND ID. 256 (1960). THOSE DECISIONS INVOLVED, OR REFERRED TO, THE FIFTH PROVISO OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949, NOW CODIFIED IN CLAUSES (3) AND (4), SECTION 1372 OF TITLE 10. THE OPINION OF AUGUST 18, 1970, CONCLUDES THAT:

*** IT IS OUR OPINION THAT SO LONG AS WE USE ANY AND EVERY PHYSICAL EXAMINATION FOR THE PURPOSE, IF RELEVANT, OF DETERMINING AN OFFICER'S PHYSICAL FITNESS FOR PROMOTION, EACH PHYSICAL EXAMINATION SO USED SHOULD BE CONSIDERED AS A "PHYSICAL EXAMINATION FOR PROMOTION" AS THOSE WORDS ARE USED IN 10 U.S.C. 1372(3).

A DIFFERENT VIEW FROM THAT ADOPTED IN THE ABOVE-MENTIONED JAG OPINIONS IS EXPRESSED IN COMMENTS BY THE CHIEF, RETIREMENTS DIVISION, DIRECTORATE OF PERSONNEL PROGRAM ACTIONS, DEPARTMENT OF THE AIR FORCE. IN COMMUNICATION DATED AUGUST 7, 1970, THAT OFFICE STATED THAT THE EXAMINATION TO WHICH MAJOR BLOSE SUBMITTED WAS INITIATED 3 MONTHS (NOVEMBER 1, 1969) PRIOR TO HIS SELECTION BY THE PROMOTION BOARD (JANUARY 30, 1970). THE VIEW WAS THERE EXPRESSED THAT SINCE THE EXAMINATION WAS INITIATED IN CONNECTION WITH THE OFFICER'S PROJECTED VOLUNTARY RETIREMENT, HIS VOLUNTARY ACT OF SUBMITTING AN APPLICATION FOR RETIREMENT HAD THE EFFECT OF AN ACTION WHICH WOULD HAVE REMOVED HIM FROM AN ACTIVE STATUS AND RESULTED IN HIS TRANSFER TO THE RETIRED RESERVE SECTION, A STATUS WHICH ALSO WOULD HAVE MADE HIM INELIGIBLE FOR PROMOTION. THE VIEW WAS ALSO EXPRESSED THAT IT WOULD BE MORE APPROPRIATE TO APPLY THE PROVISIONS OF 10 U.S.C. 1374(A) TO MAJOR BLOSE, TRANSFERRING HIM TO THE RETIRED RESERVE SECTION IN THE GRADE OF LIEUTENANT COLONEL BUT WITH RETIRED PAY AS A MAJOR.

SECTION 1374(A) OF TITLE 10 PROVIDES, IN PART, THAT A RESERVE COMMISSIONED OFFICER, UNLESS HOLDING AN APPOINTMENT OR ENTITLED TO A HIGHER GRADE UNDER ANOTHER PROVISIONS OF LAW, WHO IS RECOMMENDED FOR PROMOTION TO A HIGHER RESERVE GRADE AND WHO, BEFORE BEING PROMOTED, IS TRANSFERRED TO THE RETIRED RESERVE BECAUSE OF PHYSICAL DISABILITY, TRANSFERS TO THE RETIRED RESERVE IN THE GRADE FOR WHICH HE HAD BEEN RECOMMENDED. HOWEVER, SUBSECTION (D) OF SECTION 1374 PRECLUDES ENTITLEMENT TO INCREASED PAY OR OTHER BENEFITS UNDER THAT SECTION UNLESS OTHERWISE PROVIDED BY LAW. RULE 1, TABLE 8-2, AIR FORCE MANUAL 35-7, IS THE REGULATION IMPLEMENTING THAT LAW. SINCE MAJOR BLOSE WAS RECOMMENDED FOR PROMOTION TO THE GRADE OF LIEUTENANT COLONEL BUT BEFORE BEING PROMOTED TO THAT GRADE - IT WAS NOT TO TAKE EFFECT UNTIL FEBRUARY 26, 1971 - HE WAS TRANSFERRED TO THE RETIRED RESERVE BECAUSE OF PHYSICAL DISABILITY, HIS SITUATION OSTENSIBLY BRINGS HIM WITHIN THE PURVIEW OF SECTION 1374.

IN THE LIGHT OF THE COURT'S HOLDING IN THE WILLIAMS CASE CITED ABOVE, WE SAID IN 40 COMP. GEN. 256, 259, THAT EACH CASE MUST BE DECIDED ON ITS OWN MERITS; THAT IS, WHETHER UNDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE INDIVIDUAL CASE CONCERNED, THE PHYSICAL EXAMINATION ACTUALLY RECEIVED MAY REASONABLY BE VIEWED FOR PURPOSES OF THE FIFTH PROVISO OF SECTION 402(D) OF THE 1949 ACT (CLAUSES (3) AND (4) OF 10 U.S.C. 1372), AS CONSTITUTING A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION.

THE COURT OF CLAIMS AND THIS OFFICE HAVE CONSISTENTLY VIEWED THE FIFTH PROVISO OF SECTION 402(D) OF THE 1949 ACT AND CLAUSES (3) AND (4) OF SECTION 1372, AS REQUIRING A DEFINITE DEGREE OF CONNECTION BETWEEN THE PHYSICAL EXAMINATION AND THE PROSPECTIVE PROMOTION IN ORDER TO MEET THE CONDITIONS PRESCRIBED IN THOSE STATUTORY PROVISIONS. IN OTHER WORDS, THE PHYSICAL EXAMINATION MUST HAVE A DIRECT AND SUBSTANTIAL BEARING IN CONNECTION WITH EFFECTING A PROMOTION. SEE THE WILLIAMS CASE AND BRANDT V UNITED STATES, 155 CT. CL. 345 (1961). SEE, ALSO, 40 COMP. GEN. 240 (1960); 41 ID. 749 (1962); AND COMPARE DECISION OF SEPTEMBER 2, 1970, 50 COMP. GEN. 156.

IN THE BRANDT CASE, THE COURT TOOK NOTE OF THE PLAINTIFF'S CONTENTIONS THAT THERE WERE PHYSICAL EXAMINATIONS GIVEN IN CONNECTION WITH PROMOTION AND RETIREMENT SO CLOSE TOGETHER AS TO BE PART AND PARCEL OF THE SAME TRANSACTION, SO THAT IT MIGHT BE PROPERLY SAID THAT THE PHYSICAL DISABILITY FOR WHICH THE PLAINTIFF WAS RETIRED WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION, AND THAT THE CASE IS ON ALL FOURS WITH THE FREDRICKSON, LEONARD, WILLIAMS, AND CLARK CASES.

THE COURT POINTED OUT THAT IN THE FREDRICKSON, LEONARD, AND CLARK CASES THERE WERE ACTUAL PHYSICAL EXAMINATIONS DESIGNATED AS PHYSICAL EXAMINATIONS IN CONNECTION WITH PROMOTIONS. THE COURT DISTINGUISHED THE WILLIAMS CASE FROM THE OTHER THREE CASES THERE CITED IN THAT WILLIAMS WAS NOT EXAMINED SPECIFICALLY IN CONNECTION WITH HIS PENDING PROMOTION, BUT HE WAS EXAMINED IN CONNECTION WITH HIS RETIREMENT FOR DISABILITY. THE COURT HELD, HOWEVER, THAT THE INQUIRY MADE BY THE PROMOTION BOARD AS TO WILLIAMS' PHYSICAL CONDITION ESTABLISHED SUFFICIENT CONNECTION BETWEEN THE PHYSICAL EXAMINATION AND THE PROMOTION TO MEET THE REQUIREMENTS OF THE FIFTH PROVISO OF SECTION 402(D).

THE COURT FURTHER POINTED OUT IN THE BRANDT CASE THAT THE PLAINTIFF ALLEGED NOTHING THAT WOULD ESTABLISH OR EVEN TEND TO INDICATE THAT HE EVER HAD A PHYSICAL EXAMINATION GIVEN "IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION." IN CONCLUDING THAT THE PLAINTIFF DID NOT SATISFY THE REQUIREMENTS OF THE FIFTH PROVISO OF SECTION 402(D) OF THE 1940 ACT, THE COURT STATED IN PART:

*** IN EFFECT PLAINTIFF ASKS THIS COURT TO HOLD THAT SOLELY BY VIRTUE OF THE FACT THAT PLAINTIFF WAS RETIRED FOR PHYSICAL DISABILITY AT A TIME WHEN HE WAS BEING CONSIDERED FOR PROMOTION, HE HAS MET THE REQUIREMENTS OF THE FIFTH PROVISO OF SECTION 402(D), AND SHOULD THUS RECEIVE DISABILITY RETIREMENT PAY BASED ON THE HIGHER RANK TO WHICH HE WOULD HAVE BEEN PROMOTED HAD HE REMAINED IN THE SERVICE. THIS WE CANNOT DO. HAD CONGRESS INTENDED THE PROVISO TO OPERATE IN THAT MANNER WE BELIEVE IT WOULD HAVE STATED SO, RATHER THAN IMPOSING THE SPECIFIC REQUIREMENT EXPLICIT IN THE LANGUAGE OF THE STATUTE. *** PLAINTIFF HAS ACTUALLY SOUGHT TO HAVE THIS COURT EXTEND THE TENOR OF THE CASES DISTINGUISHED ABOVE ONE STEP FURTHER, SO AS TO ELIMINATE THE REQUIREMENT OF A DEGREE OF CONNECTION BETWEEN PHYSICAL EXAMINATION AND PROMOTION FROM THE FIFTH PROVISO OF SECTION 402(D). SINCE WE HAVE DECLINED TO DO THIS, THE ESTABLISHMENT OF FACTS INDICATING AT LEAST A DEGREE OF CONNECTION BETWEEN PHYSICAL EXAMINATION AND PROPOSED PROMOTION REMAINS REQUISITE TO A CAUSE OF ACTION UNDER THE STATUTORY PROVISION. ***

AS THE RECORD INDICATES, MAJOR BLOSE HAD A PHYSICAL EXAMINATION (ON NOVEMBER 1, 1969) 3 MONTHS BEFORE HIS SELECTION FOR PROMOTION (JANUARY 30, 1970) TO THE GRADE OF LIEUTENANT COLONEL BY THE PROMOTION BOARD, AND HE HAD ANOTHER PHYSICAL EXAMINATION SUBSEQUENT TO SUCH SELECTION AND BEFORE JUNE 23, 1970 (THE DATE THE SECRETARY OF THE AIR FORCE DETERMINED HIS UNFITNESS FOR DUTY AND DIRECTED THAT HE BE RETIRED FOR PHYSICAL DISABILITY). NOWHERE DOES THE RECORD SHOW ANY DEGREE OF CONNECTION BETWEEN EITHER PHYSICAL EXAMINATION AND HIS SELECTION FOR PROMOTION TO THE HIGHER GRADE OF LIEUTENANT COLONEL AS CONTEMPLATED BY CLAUSE (3) OF SECTION 1372. ON THE CONTRARY, THE PHYSICAL EXAMINATION TAKEN ON NOVEMBER 1, 1969, IS STATED TO HAVE BEEN IN CONNECTION WITH HIS "PROJECTED VOLUNTARY RETIREMENT" AND THE EXAMINATION SUBSEQUENT TO HIS PROMOTION IS STATED TO BE "INCIDENTAL TO HIS RETIREMENT."

ON THE RECORD BEFORE US AND IN THE ABSENCE OF A PROMOTION PHYSICAL EXAMINATION WITHIN THE PURVIEW OF THE COURT'S HOLDING IN THE BRANDT CASE, IT IS OUR VIEW THAT THE SPECIFIC REQUIREMENTS OF CLAUSE (3), 10 U.S.C. 1372, HAVE NOT BEEN MET IN THIS CASE. ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF RETIRED PAY TO MAJOR BLOSE COMPUTED ON THE GRADE OF LIEUTENANT COLONEL. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.

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