B-102723, MARCH 12, 1956, 35 COMP. GEN. 508

B-102723, MARCH 12, 1956, 35 COMP. GEN. 508

RECORDS - MILITARY, NAVAL, ETC. - CORRECTION - PAY RIGHTS THE CORRECTION OF THE NAVAL RECORD OF A RETIRED MEMBER OF THE NAVAL RESERVE TO SHOW ONLY THAT AN EYE INJURY SUSTAINED ON JUNE 18, 1947, PRIOR TO A SCHEDULED DRILL, OCCURRED WHILE THE MEMBER WAS PERFORMING INACTIVE DUTY WITHOUT A FINDING OF INCAPACITY FOR ACTIVE DUTY, DOES NOT ENTITLE THE MEMBER TO RETIREMENT PAY FOR PHYSICAL DISABILITY FROM THE DATE OF THE INJURY UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940 FOR MEMBERS INCAPACITATED FOR DUTY; HOWEVER, THE LINE-OF-DUTY CORRECTION AND SUBSEQUENT DISABILITY DETERMINATION ARE SUFFICIENT TO BRING THE MEMBER WITHIN SECTION 402 (C) OF THE CAREER COMPENSATION ACT OF 1949 FOR DISABILITY RETIREMENT PAY AFTER SEPTEMBER 1, 1950. THE CORRECTION OF THE NAVAL RECORD OF A RETIRED RESERVIST TO SHOW ACTIVE DUTY STATUS THROUGHOUT ANY DAY ON WHICH REGULARLY SCHEDULED DRILLS WERE HELD ENTITLES THE MEMBER TO DRILL PAY FOR THE DAY ON WHICH HE WAS INJURED, NOTWITHSTANDING THE INJURY OCCURRED PRIOR TO THE TIME FOR THE SCHEDULED DRILL.

TO T. P. CONDON, DEPARTMENT OF THE NAVY, MARCH 12, 1956:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1955, REQUESTING DECISION (1) WHETHER CHIEF SHIP'S CLERK SAMUEL K. ZARFOSS, UNITED STATES NAVAL RESERVE (RETIRED), IS ENTITLED TO RETIRED PAY BASED ON THE CORRECTION OF HIS NAVAL RECORD BY THE BOARD FOR CORRECTION OF NAVAL RECORDS, ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A, AND, IF SO, WHETHER HIS ACCOUNT SHOULD BE ESTABLISHED ON THE RETIRED ROLL EFFECTIVE SEPTEMBER 1, 1950, OR JUNE 19, 1947, AND (2) WHETHER THE ACTION OF SUCH BOARD VALIDATES THE PAYMENT TO HIM OF DRILL PAY ON JUNE 18, 1947.

IN DECISION OF NOVEMBER 2, 1951, B-102723 (31 COMP. GEN. 160), WE HELD THAT, ALTHOUGH THE SECRETARY OF THE NAVY DETERMINED ON AUGUST 15, 1950, THAT MR. ZARFOSS WAS INJURED ON JUNE 18, 47,"WHILE EMPLOYED ON INACTIVE DUTY TRAINING" AND DIRECTED THAT HE BE RETIRED FOR PHYSICAL DISABILITY, EFFECTIVE SEPTEMBER 1, 1950, IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 417 AND 855C-1, THE EYE INJURY SUSTAINED BY MR. ZARFOSS AT 5:00 P.M. ON JUNE 18, 1947, AT HIS HOME WHILE OPENING A CRATE CONTAINING A GOVERNMENT TYPEWRITER DELIVERED TO HIM ON MAY 14, 1947, FOR OFFICIAL USE, COULD NOT, AS A MATTER OF FACT, HAVE OCCURRED WHILE HE WAS "EMPLOYED" ON "INACTIVE-DUTY TRAINING," SINCE THE NAVAL RESERVE UNIT OF WHICH HE WAS A MEMBER WAS NOT SCHEDULED TO HOLD A DRILL UNTIL 7:30 P.M. ON JUNE 18, 1947. ACCORDINGLY, IT WAS HELD THAT MR. ZARFOSS WAS NOT ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, 34 U.S.C. 855C-1.

BY LETTER ORDERS DATED APRIL 2, 1947, FOURTH NAVAL DISTRICT, DISTRICT STAFF HEADQUARTERS, U.S. NAVAL BASE, PHILADELPHIA 12, PENNSYLVANIA, MR. ZARFOSS WAS TEMPORARILY ASSIGNED AS COMMANDING OFFICER OF THE ORGANIZED COMMUNICATION SUPPLEMENTARY ACTIVITY COMPANY 4 3, U.S. NAVAL RESERVE, FOURTH NAVAL DISTRICT, HARRISBURG, PENNSYLVANIA. PARAGRAPH 2 OF SUCH ORDERS PROVIDED:

YOU WILL RECEIVE DRILL PAY FOR ALL DULY SCHEDULED DRILLS OF THE THIRD COMPANY, U.S. NAVAL RESERVE, FOURTH NAVAL DISTRICT, HARRISBURG, PENNA., DURING THE PERIOD BETWEEN 2 APRIL 1947 AND THE DATE THAT YOUR APPLICATION FOR TRANSFER TO THE ORGANIZED COMMUNICATION SUPPLEMENTARY ACTIVITY IS ACTED UPON BY THE BUREAU OF NAVAL PERSONNEL.

IT APPEARS FROM YOUR LETTER AND ACCOMPANYING PAPERS THAT ON FEBRUARY 4, 1955, THE BOARD FOR CORRECTION OF NAVAL RECORDS MADE A " DECISION," WITH RESPECT TO THE CORRECTION OF MR. ZARFOSS' NAVAL RECORD AS FOLLOWS:

IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S NAVAL RECORD BE CORRECTED TO SHOW THAT PARAGRAPH TWO OF HIS ORDERS DATED 2 APRIL 1947 READ AS FOLLOWS:

"YOU WILL RECEIVE PAY FOR ALL DULY SCHEDULED DRILLS OF THE THIRD COMPANY, U.S. NAVAL RESERVE, FOURTH NAVAL DISTRICT, HARRISBURG, PENNSYLVANIA, AND WILL BE CONSIDERED TO BE IN AN ACTIVE DUTY STATUS THROUGHOUT ANY DAY ON WHICH REGULARLY SCHEDULED DRILLS MAY BE HELD.'

IT IS ALSO THE DECISION OF THIS BOARD THAT SAID ORDERS BE FURTHER CORRECTED BY A NOTATION IN WRITING THEREON THAT PETITIONER HAD ENTERED ON AND HAD PERFORMED INACTIVE DUTY TRAINING ON 18 JUNE 1947.

THE ASSISTANT SECRETARY OF THE NAVY, ON APRIL 13, 1955, APPROVED SUCH " DECISION" AS WELL AS THE BOARD'S FINDINGS AND RECOMMENDATION, THE RECOMMENDATION BEING THAT THE DEPARTMENT OF THE NAVY PAY TO MR. ZARFOSS "ALL MONIES LAWFULLY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD.'

THE 1940 ACT, AS AMENDED, PROVIDES THAT, UNDER THE CONDITIONS THEREIN STIPULATED, MEMBERS OF THE NAVAL RESERVE WHO SUFFER DISABILITY SHALL BE ENTITLED, AMONG OTHER THINGS, TO RECEIVE THE SAME ,RETIREMENT PAY" AS MEMBERS OF THE REGULAR NAVY OF CORRESPONDING GRADES AND LENGTH OF SERVICE. MEMBERS OF THE REGULAR NAVY WERE NOT AND ARE NOT ENTITLED TO RETIREMENT PAY FOR PHYSICAL DISABILITY UNTIL FOUND TO BE INCAPACITATED FOR ACTIVE DUTY.

WHILE MR. ZARFOSS' NAVAL RECORD, AS CORRECTED, WILL BE CONSIDERED TO MEAN THAT HIS EYE WAS INJURED WHILE HE WAS PERFORMING INACTIVE DUTY TRAINING ON JUNE 18, 1947, THE CORRECTED RECORD DOES NOT SHOW THAT HE BECAME INCAPACITATED FOR ACTIVE DUTY ON THAT DATE. ON THE CONTRARY, THE BOARD FOR CORRECTION OF NAVAL RECORDS MADE A FINDING (IN 1955) THAT HIS EYE WAS INJURED SO SEVERELY THAT HE ,HAS" LOST ALL USE OF IT, HANDICAPPING HIM "IN HIS VOCATION OF SALESMAN," AND A PHYSICAL EVALUATION BOARD ON JANUARY 30, 1950, APPARENTLY FOUND THAT HE WAS THEN "UNFIT" TO PERFORM THE DUTIES OF HIS RANK BY REASON OF A PHYSICAL DISABILITY. HENCE, ON THE EXISTING RECORD, IT MAY NOT BE CONCLUDED THAT MR. ZARFOSS IS ENTITLED TO RETIREMENT PAY, EFFECTIVE ON AND AFTER JUNE 18, 1947, UNDER THE 1940 ACT, AS AMENDED. SEE 32 COMP. GEN. 242.

HOWEVER, IN VIEW OF THE APPROVAL BY THE ASSISTANT SECRETARY OF THE NAVY OF THE CORRECTION BOARD'S ACTION, THE LINE-OF-DUTY AND OTHER DETERMINATIONS MADE IN THE CASE BY THE SECRETARY OF THE NAVY ON AUGUST 15, 1950, AND THE SECRETARY'S SUBSEQUENT DETERMINATION THAT MR. ZARFOSS IS DISABLED THIRTY PERCENT, THE RECORD AS CORRECTED APPEARS SUFFICIENT TO BRING MR. ZARFOSS' CASE WITHIN THE PROVISIONS OF SUBSECTION (C) OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272, SO AS TO ENTITLE HIM TO DISABILITY RETIREMENT PAY, AS PRESCRIBED IN SUBSECTION (D) OF THAT SECTION, ON AND AFTER SEPTEMBER 1, 1950. COMPARE 30 COMP. GEN. 409. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY AND YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.