B-101599, SEPTEMBER 21, 1954, 34 COMP. GEN. 128

B-101599: Sep 21, 1954

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WAS FOUND BY A RETIRING BOARD TO BE INCAPACITATED AS A RESULT OF AN INCIDENT OF SERVICE IS ENTITLED TO RETIREMENT PAY ONLY FROM THE DATE SUCH DETERMINATION IS APPROVED BY COMPETENT AUTHORITY. 1954: REFERENCE IS MADE TO LETTER OF JANUARY 29. WAS DISALLOWED BY SETTLEMENT OF JANUARY 23. SUCH SETTLEMENT WAS SUSTAINED BY DECISION OF NOVEMBER 2. SINCE YOU BELIEVED THAT YOUR CASE WAS SIMILAR IN ALL MATERIAL RESPECTS TO THAT DECIDED IN FAVOR OF THE PLAINTIFF IN HAMRICK V. SINCE YOUR WERE INFORMED THAT CONSIDERATION FOR SETTLEMENT OF SUCH CLAIMS WOULD BE GIVEN BY THIS OFFICE. IT WAS POINTED OUT THAT THE HAMRICK CASE INVOLVED A RELEASE FROM ACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY. WAS FOUND TO HAVE BEEN DUE TO AN INCIDENT OF THE SERVICE.

B-101599, SEPTEMBER 21, 1954, 34 COMP. GEN. 128

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE - RETROACTIVE RETIREMENT PAY A NAVAL RESERVE OFFICER RELEASED FROM ACTIVE DUTY FOR REASONS SUCH AS DEMOBILIZATION AND NOT BECAUSE OF PHYSICAL DISABILITY WHO SUBSEQUENTLY, BUT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT, WAS FOUND BY A RETIRING BOARD TO BE INCAPACITATED AS A RESULT OF AN INCIDENT OF SERVICE IS ENTITLED TO RETIREMENT PAY ONLY FROM THE DATE SUCH DETERMINATION IS APPROVED BY COMPETENT AUTHORITY.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN PHILLIP C. HOLT, SEPTEMBER 21, 1954:

REFERENCE IS MADE TO LETTER OF JANUARY 29, 1954, FROM YOUR ATTORNEY, WARREN E. MILLER, REQUESTING REVIEW OF SETTLEMENT OF JANUARY 4, 1954, DISALLOWING YOUR CLAIM FOR RETIREMENT PAY FOR THE PERIOD NOVEMBER 27, 1945, TO DECEMBER 31, 1938, AS COMMANDER, UNITED STATES NAVAL RESERVE, RETIRED.

YOUR CLAIM, FIRST PRESENTED TO THIS OFFICE BY YOUR LETTER OF MARCH 10, 1950, WAS DISALLOWED BY SETTLEMENT OF JANUARY 23, 1951, AND SUCH SETTLEMENT WAS SUSTAINED BY DECISION OF NOVEMBER 2, 1951, B-101599. SUBSEQUENTLY ON JULY 7, 1952, YOU FILED A PETITION, NUMBERED 353-52, IN THE COURT OF CLAIMS FOR THE RECOVERY OF RETIRED PAY FOR THE PERIOD ABOVE INDICATED BUT THEREAFTER YOU FILED A MOTION TO DISMISS THE CASE TO BE HELD IN ESCROW PENDING ADMINISTRATIVE SETTLEMENT OF YOUR CLAIM. SINCE YOU BELIEVED THAT YOUR CASE WAS SIMILAR IN ALL MATERIAL RESPECTS TO THAT DECIDED IN FAVOR OF THE PLAINTIFF IN HAMRICK V. UNITED STATES, 120 C.1CLS. 17, AND SINCE YOUR WERE INFORMED THAT CONSIDERATION FOR SETTLEMENT OF SUCH CLAIMS WOULD BE GIVEN BY THIS OFFICE, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM FOR RETROACTIVE DISABILITY RETIREMENT PAY. HOWEVER, IN THE SETTLEMENT OF JANUARY 4, 1954, DENYING YOUR CLAIM, IT WAS POINTED OUT THAT THE HAMRICK CASE INVOLVED A RELEASE FROM ACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY, ORIGINALLY DETERMINED AS NOT HAVING BEEN INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE BUT WHICH, UPON REVIEW (UNDER SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I), WAS FOUND TO HAVE BEEN DUE TO AN INCIDENT OF THE SERVICE, WHILE IN YOUR CASE YOU WERE NOT RELEASED FROM ACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY, INCIDENT TO THE SERVICE OR OTHERWISE, BUT MERELY AS A PART OF THE DEMOBILIZATION PROGRAM. YOUR PLACEMENT ON THE RETIRED LIST APPARENTLY WAS BASED ON THE GENERAL DISCRETIONARY AUTHORITY VESTED IN THE SECRETARY OF THE NAVY BY THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AND SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864.

THE ACTION TAKEN IN 1948 WHICH RESULTED IN THE PLACEMENT OF YOUR NAME ON THE RETIRED LIST INCLUDED AN ORIGINAL DETERMINATION THAT YOUR DISABILITY WAS INCURRED IN LINE OF DUTY AT SOME PREVIOUS TIME WHILE SERVING ON ACTIVE DUTY BUT THERE WAS NO DETERMINATION THAT SUCH DISABILITY ACTUALLY INCAPACITATED YOU FOR ACTIVE SERVICE AT THE TIME OF YOUR RELEASE TO INACTIVE DUTY. IN THAT CONNECTION YOUR ATTENTION IS INVITED TO THE HOBBES CASE CONSIDERED IN 32 COMP. GEN. 242 WHERE THERE WAS INVOLVED THE MATTER OF DISABILITY RETIREMENT PAY SUBSEQUENT TO ACTIVE DUTY RELEASE AND THE REVIEW BOARD FOUND THAT THE OFFICER "IS INCAPACITATED FOR ACTIVE SERVICE.' IT WAS THERE HELD THAT SUCH A FINDING COULD NOT BE CONSIDERED AS A FINDING THAT THE OFFICER WAS INCAPACITATED WHEN RELEASED FROM ACTIVE DUTY THE YEAR BEFORE. IN THAT CASE THE RECORD LATER WAS CORRECTED UNDER THE AUTHORITY GRANTED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, TO SHOW THAT THE OFFICER WAS INCAPACITATED FOR ACTIVE SERVICE ON JULY 31, 1946, DATE OF RELEASE TO INACTIVE DUTY. SEE 32 COMP. GEN. 372.

IN THE HAMRICK CASE, AS STATED, THERE WAS A FINDING AT THE TIME OF RELEASE TO INACTIVE DUTY THAT THE OFFICER "IS INCAPACITATED FOR ACTIVE SERVICE" BUT THAT THE INCAPACITY WAS NOT THE RESULT OF AN INCIDENT OF THE SERVICE, AND THE FINDING AT A LATER DATE BY A REVIEW BOARD MERELY CHANGED THE ORIGINAL FINDING TO THE EXTENT OF CONCLUDING THAT SUCH INCAPACITY WAS THE RESULT OF AN INCIDENT OF THE SERVICE. WHILE THE COURT OF CLAIMS HAS ALLOWED RETROACTIVE DISABILITY RETIREMENT PAY IN SEVERAL CASES, SUCH AS THE HAMRICK CASE, WHERE A REVIEW BOARD HAS DETERMINED IN EFFECT, THAT AN OFFICER ACTUALLY RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY NOT INCIDENT TO THE SERVICE SUFFERED SUCH DISABILITY AS AN INCIDENT OF THE SERVICE, AND WHILE SUCH PRECEDENTS HAVE BEEN FOLLOWED HERE IN THE SETTLEMENT OF SIMILAR CLAIMS, THIS OFFICE WOULD NOT BE WARRANTED, ON THE BASIS OF SUCH COURT PRECEDENTS, IN REVERSING ITS POSITION AND THAT TAKEN BY THE DEPARTMENT OF THE NAVY SINCE THE EARLY PART OF WORLD WAR II BASED ON THE VIEW THAT WHERE AN OFFICER IS RELEASED TO INACTIVE DUTY FOR REASONS SUCH AS DEMOBILIZATION AND A RETIRING BOARD AT A LATER DATE DETERMINES THE OFFICER IS INCAPACITATED BY PHYSICAL DISABILITY INCURRED AS A RESULT OF AN INCIDENT OF SERVICE, THE RIGHT TO RETIREMENT PAY IS EFFECTIVE ONLY FROM THE DATE SUCH DETERMINATION IS APPROVED BY COMPETENT AUTHORITY AND MAY NOT BE GIVEN RETROACTIVE EFFECT. SUCH VIEW SEEMS TO FIND SUPPORT IN THE DECISION OF THE COURT OF CLAIMS IN NICKELL V. UNITED STATES, 123 C.1CLS. 859 (DECIDED AFTER THE HAMRICK CASE).

THE VARIOUS ARGUMENTS PRESENTED BY YOU AND YOUR ATTORNEY HAVE BEEN CAREFULLY CONSIDERED BUT YOUR RIGHT TO THE RETROACTIVE PAY CLAIMED IS TOO DOUBTFUL TO JUSTIFY THE ALLOWANCE OF YOUR CLAIM IN THE ABSENCE OF A JUDICIAL DETERMINATION OF YOUR RIGHT TO SUCH RETROACTIVE PAY OR AN APPROPRIATE CORRECTION OF YOUR RECORDS BY THE BOARD FOR CORRECTION OF NAVAL RECORDS. ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.