B-102821, AUGUST 23, 1954, 34 COMP. GEN. 87

B-102821, AUGUST 23, 1954, 34 COMP. GEN. 87

PAY - RETIRED - DISABILITY RETIREMENT PAY - CORRECTION OF RECORDS AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WHO WAS FOUND TO HAVE INCURRED A DISABILITY WHILE SERVING ON ACTIVE DUTY BY THE ARMY DISABILITY REVIEW BOARD, WHICH WAS WITHOUT JURISDICTION TO REVIEW HIS CASE, BUT WHOSE MILITARY RECORD WAS SUBSEQUENTLY CHANGED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW THAT HIS NAME HAD BEEN PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY UNDER SECTION 402 OF THE 1949 ACT IS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS COMPUTED THEREUNDER. AN OFFICER OF THE ARMY OF THE UNITED STATES WHO AFTER RELEASE FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY BECAME ENTITLED TO DISABILITY RETIREMENT PAY UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, AFTER RECORDS WERE CORRECTED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW THAT HE HAD INCURRED A DISABILITY WHILE SERVING ON ACTIVE DUTY AND THAT HIS NAME HAD BEEN PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY IN ACCORDANCE WITH SECTION 402 MAY BE CREDITED FOR PAY COMPUTATION PURPOSES WITH INACTIVE SERVICE BETWEEN THE DATE HE WAS RELEASED FROM ACTIVE DUTY AND THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, AUGUST 23, 1954:

BY THIRD ENDORSEMENT DATED MAY 17, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF APRIL 16, 1954, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT ON A VOUCHER (TRANSMITTED WITH YOUR LETTER), IN FAVOR OF STANLEY S. STEIN, IN THE AMOUNT OF $1,773.40, REPRESENTING RETIREMENT PAY FOR THE PERIOD FROM JANUARY 1, 1951, THROUGH DECEMBER 31, 1953--- LESS PAYMENTS PREVIOUSLY MADE--- BASED ON THE CORRECTION OF HIS MILITARY RECORDS BY THE ARMY BOARD FOR CORRECTION OF MILITARY 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, PUBLIC LAW 220, 65 STAT. 655, 5 U.S.C. 191A. YOU STATE THAT TEMPORARY DISABILITY RETIREMENT PAY IS AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, 63 STAT. 802, 37 U.S.C. 231, AND THAT DOUBT EXISTS WHETHER THE RETIREMENT PROVISIONS OF THAT ACT ARE APPLICABLE IN THE CASE OF A PERSON WHOSE DISABILITY OCCURRED PRIOR TO ITS EFFECTIVE DATE, OCTOBER 1, 1949. YOU ALSO STATE THAT IF THE QUESTIONED PAYMENT IS AUTHORIZED A FURTHER QUESTION ARISES WHETHER SERVICE TO INCLUDE DECEMBER 31, 1950, SHOULD BE CREDITED FOR PAY PURPOSES.

IT APPEARS FROM THE RECORD THAT ON SEPTEMBER 21, 1946, MR. STEIN WAS RELEASED FROM ACTIVE DUTY AS A CAPTAIN, ARMY OF THE UNITED STATES, NOT DUE TO PHYSICAL DISABILITY. ON DECEMBER 20, 1950, MR. STEIN APPEARED BEFORE THE ARMY DISABILITY REVIEW BOARD, PRESUMABLY ESTABLISHED UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I, WHICH BOARD FOUND THAT THE PHYSICAL DISABILITY FROM WHICH HE SUFFERED PERMANENTLY INCAPACITATED HIM FOR ACTIVE SERVICE; THAT THE INCAPACITY ORIGINATED AND BECAME INCAPACITATING ON NOVEMBER 10, 1945; AND THAT IT WAS THE RESULT OF THE APPROVAL OF THE ARMY DISABILITY REVIEW BOARD'S FINDINGS, MR. STEIN WAS CERTIFIED FOR RETIREMENT PAY BENEFITS UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, IN THE AMOUNT OF $181.13 A MONTH, EFFECTIVE JANUARY 1, 1951, AND HE WAS PAID RETIREMENT PAY FROM THAT DATE UNTIL FEBRUARY 28, 1953, WHEN PAYMENT OF SUCH RETIRED PAY TO HIM WAS DISCONTINUED FOR THE REASON THAT, SINCE HE WAS NOT RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY, THE ARMY DISABILITY REVIEW BOARD, BEFORE WHICH HE APPEARED, WAS WITHOUT JURISDICTION TO REVIEW HIS CASE. 30 COMP. GEN. 409.

ON MAY 21, 1952, MR. STEIN APPLIED TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS TO CORRECT HIS MILITARY RECORD TO SHOW THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON SEPTEMBER 21, 1946, AND CLAIMED RETIREMENT PAY BENEFITS EFFECTIVE FROM THAT DATE. ON SEPTEMBER 18, 1953, THE SAID BOARD ISSUED ITS FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AND ON OCTOBER 2, 1953, THE SECRETARY OF THE ARMY ISSUED A MEMORANDUM FOR THE ADJUTANT GENERAL STATING THAT HE HAD RECEIVED AND APPROVED THE SAID FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AND DIRECTING THAT ALL THE DEPARTMENT OF THE ARMY RECORDS OF STANLEY S. STEIN BE CORRECTED TO SHOW:

A. THAT HE WAS PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK OR GRADE DUE TO ULCER, PEPTIC, OF DUODENUM, CHRONIC, WITH HISTORY OF BLEEDING IN NOVEMBER 1945, WITH NO HISTORY OF PERFORATION OR OBSTRUCTION, CAUSE UNKNOWN; THAT THE DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY AS A MEMBER OF A RESERVE COMPONENT ON EXTENDED ACTIVE DUTY; THAT IT WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE; THAT THE DISABILITY IS RATED 30 PERCENT IN ACCORDANCE WITH THE VETERANS ADMINISTRATION SCHEDULE FOR RATING DISABILITIES; THAT HE BECAME PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK OR GRADE ON NOVEMBER 1945; THAT THE DISABILITY MAY BE PERMANENT; THAT IT WAS NOT COMBAT INCURRED OR THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY.

B. THAT HAVING BEEN DETERMINED TO BE UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY ON 31 DECEMBER 1950 IN THE GRADE OF CAPTAIN WITH ENTITLEMENT TO RETIREMENT PAY FROM 1 JANUARY 1951 AS PROVIDED BY SECTIONS 402 AND 409, PUBLIC LAW 351, 81ST CONGRESS.

WHILE THE QUOTED PARAGRAPH "A" DOES NOT RECITE ALL THE FACTS NECESSARY TO ESTABLISH A RIGHT TO RETIREMENT PAY UNDER THE STATUTORY PREREQUISITES STIPULATED IN SECTION 402 OF THE PERTINENT STATUTE, PARAGRAPH "B" RECITES THAT MR. STEIN'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY AS PROVIDED BY THAT SECTION, WHICH PRESUPPOSES THAT ALL OF THE CONDITIONS STIPULATED IN THAT SECTION HAD BEEN MET.

UNDER THE PROVISIONS OF THE SAID SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, AS AMENDED, THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE AND THE SECRETARY OF THE TREASURY (WITH RESPECT TO THE COAST GUARD), UNDER PROCEDURES SET UP BY THEM AND "ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS," ARE AUTHORIZED TO ,CORRECT" ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUCH SECTION EXPRESSLY PROVIDES THAT CORRECTIONS SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT, EXCEPT WHEN PROCURED BY MEANS OF FRAUD.

WHILE THE RETIREMENT PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 ( TITLE IV) GENERALLY ARE NOT APPLICABLE IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES WHO WERE RELEASED FROM ACTIVE DUTY PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 AND WHO, SUBSEQUENT TO THAT ACT, WERE FOUND TO BE PHYSICALLY DISABLED (SEE 30 COMP. GEN. 409), MR. STEIN'S MILITARY RECORDS NOW HAVE BEEN CORRECTED UNDER THE AUTHORITY GRANTED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW THAT "HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY ON 31 DECEMBER 1950 IN THE GRADE OF CAPTAIN * * * AS PROVIDED BY SECTIONS 402 AND 409, PUBLIC LAW 351, 63 STAT. 816, 823, 81ST CONGRESS ( CAREER COMPENSATION ACT OF 1949)," AND SUCH CORRECTION IS FINAL AND CONCLUSIVE ON THIS OFFICE. SUBSECTION 402 (D) OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, EXPRESSLY PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SECTION 402 SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED AS STATED IN THAT SUBSECTION. HENCE, THE RIGHT TO SUCH RETIREMENT PAY DEPENDS ON THE MEMBER HAVING HIS NAME PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE SAID SECTION 402. MR. STEIN'S MILITARY RECORD HAS BEEN CONCLUSIVELY ,CORRECTED" TO SHOW THAT HIS NAME WAS SO PLACED ON THAT LIST, PURSUANT TO THAT SECTION, ON DECEMBER 31, 1950. ACCORDINGLY, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, IF OTHERWISE CORRECT. COMPARE 32 COMP. GEN. 242; ID. 372 ( HOBBES CASE), WHERE THE RIGHT TO RETIREMENT PAY DID NOT DEPEND ON A RETIRED STATUS, OR (AS HERE) ON THE MEMBER HAVING HIS NAME PLACED ON A RETIRED LIST PURSUANT TO CERTAIN STATUTORY CONDITIONS, BUT WHOLLY ON A RECORD ESTABLISHING THE EXISTENCE OF CERTAIN OTHER PRECONDITIONS STIPULATED IN THE STATUTE.

WITH RESPECT TO THE FURTHER QUESTION RAISED IN YOUR SUBMISSION, YOU ARE ADVISED THAT FOR THE PURPOSE OF DETERMINING THE ACTIVE DUTY PAY UPON WHICH MR. STEIN'S RETIREMENT PAY IS TO BE BASED HE MAY BE CREDITED WITH INACTIVE SERVICE BETWEEN THE DATE HE WAS RELEASED FROM ACTIVE DUTY AND THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY, AS SHOWN BY THE "CORRECTED" RECORD. COMPARE 31 COMP. GEN. 78.

THE VOUCHER AND THE OTHER PAPERS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.