B-103063, AUGUST 26, 1952, 32 COMP. GEN. 104

B-103063: Aug 26, 1952

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PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY FOUND TO EXIST PRIOR TO PHYSICAL EXAMINATION FOR PROMOTION AN OFFICER SELECTED FOR PROMOTION WHOM A CLINICAL BOARD HAD FOUND TO BE SUFFERING FROM A DISEASE PRIOR TO A PHYSICAL EXAMINATION GIVEN TO EFFECT SUCH PROMOTION AND WHOSE SUBSEQUENT DISABILITY RETIREMENT WAS FOR THE SAME DISEASE MAY NOT UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. AS SAID SECTION AUTHORIZES AN OFFICER'S DISABILITY RETIREMENT PAY TO BE COMPUTED ON THE RANK TO WHICH HE IS ELIGIBLE FOR PROMOTION ONLY IF THE PHYSICAL DISABILITY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION. IS ENTITLED UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

B-103063, AUGUST 26, 1952, 32 COMP. GEN. 104

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY FOUND TO EXIST PRIOR TO PHYSICAL EXAMINATION FOR PROMOTION AN OFFICER SELECTED FOR PROMOTION WHOM A CLINICAL BOARD HAD FOUND TO BE SUFFERING FROM A DISEASE PRIOR TO A PHYSICAL EXAMINATION GIVEN TO EFFECT SUCH PROMOTION AND WHOSE SUBSEQUENT DISABILITY RETIREMENT WAS FOR THE SAME DISEASE MAY NOT UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, BE ADVANCED TO THE GRADE FOR WHICH SELECTED AND RECEIVE THE RETIRED PAY OF THAT GRADE, AS SAID SECTION AUTHORIZES AN OFFICER'S DISABILITY RETIREMENT PAY TO BE COMPUTED ON THE RANK TO WHICH HE IS ELIGIBLE FOR PROMOTION ONLY IF THE PHYSICAL DISABILITY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION.

ASSISTANT COMPTROLLER GENERAL YATES TO COMMANDER J. B. WARNER, DEPARTMENT OF THE NAVY, AUGUST 26, 1952:

THERE HAS BEEN RECEIVED BY LETTER DATED MARCH 3, 1952, OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, YOUR LETTER OF JANUARY 31, 1952, REQUESTING DECISION AS TO THE PROPER RATE OF RETIRED PAY TO WHICH LIEUTENANT COMMANDER WILLIAM A. LEONARD, U.S. NAVY, RETIRED, IS ENTITLED UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

IT APPEARS FROM YOUR LETTER THAT THE OFFICER WAS TRANSFERRED TO THE NAVAL HOSPITAL, ST. ALBANS, LONG ISLAND, NEW YORK, ON SEPTEMBER 26, 1949; THAT HE WAS SELECTED FOR PROMOTION TO THE RANK OF COMMANDER BY SELECTION BOARD REPORT APPROVED NOVEMBER 1, 1949; THAT BY ORDERS DATED JANUARY 13, 1950, HE WAS DETACHED FROM DUTY AT THE SUBMARINE BASE, NEW LONDON, CONNECTICUT, AND DIRECTED TO CONTINUE TREATMENT AT THE NAVAL HOSPITAL, ST. ALBANS, LONG ISLAND, NEW YORK; THAT HE APPEARED BEFORE A CLINICAL BOARD ON JANUARY 18, 1950, WHICH BOARD RECOMMENDED HIS APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD; THAT HE WAS DIRECTED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD ON OR ABOUT JANUARY 27, 1950; THAT HE WAS EXAMINED FOR PROMOTION TO THE RANK OF COMMANDER BY BOARD OF MEDICAL EXAMINERS, CONVENED ON JANUARY 26, 1950. BY LETTER OF APRIL 17, 1950, FROM THE CHIEF OF NAVAL PERSONNEL THE OFFICER WAS ADVISED THAT HE HAD BEEN "PLACED ON THE RETIRED LIST BY REASON OF A PERMANENT PHYSICAL DISABILITY EFFECTIVE 1 APRIL 1950 IN THE RANK OF LIEUTENANT COMMANDER.' AND BY LETTER OF THE CHIEF OF NAVAL PERSONNEL DATED JUNE 19, 1951, HE WAS ADVISED THAT SO MUCH OF THE SAID LETTER OF APRIL 17, 1950, AS RELATES TO HIS RANK AND PAY ON THE RETIRED LIST WAS CANCELED. THE LETTER OF JUNE 19, 1951, ALSO STATES THAT THE RECORD INDICATES THAT AT THE TIME OF THE OFFICER'S RETIREMENT HIS NAME WAS ON A PROMOTION LIST FOR ADVANCEMENT TO THE NEXT HIGHER RANK AND THAT, THEREFORE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, AND SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF COMMANDER, WITH RETIRED PAY OF THAT RANK, EFFECTIVE APRIL 1, 1950.

SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, *PROVIDES, IN PART, AS FOLLOWS:

OFFICERS (OF THE NAVY) ON A PROMOTION LIST WHO, AT ANY TIME PRIOR TO PROMOTION, ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY, SHALL, WHEN RETIRED, BE RETIRED IN THE RANK FOR WHICH THEY WERE SELECTED, WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF THE GRADE TO WHICH SELECTED.

THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, IS AS FOLLOWS:

PROVIDED FURTHER, THAT IF THE PHYSICAL DISABILITY ENTITLING SUCH MEMBER TO DISABILITY RETIREMENT PAY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER SHALL BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER WOULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY, IF SUCH RANK, GRADE, OR RATING IS HIGHER THAN ANY OTHER RANK, GRADE, OR RATING UPON WHICH SUCH PAY IS HEREIN AUTHORIZED TO BE COMPUTED AND WHICH SUCH MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING * * *.

SECTION 531 (A) OF THE SAID ACT, 63 STAT. 838, PROVIDES, IN PART, AS FOLLOWS:

ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED ON THE DATE SUCH PROVISIONS OF THIS ACT BECOME EFFECTIVE, AND THE PROVISIONS OF THIS ACT SHALL BE IN EFFECT IN LIEU THEREOF * * *.

IN DECISION OF AUGUST 30, 191, B-103324, IT WAS STATED THAT THE PROVISIONS OF EARLIER LAWS RELATING TO PHYSICAL DISABILITY RETIREMENT OR DISABILITY RETIREMENT PAY WHICH ARE INCONSISTENT WITH THE CAREER COMPENSATION ACT OF 1949, MUST BE REGARDED AS HAVING BEEN SUPERSEDED AND REPEALED BY SUCH ACT. AND, IT WAS POINTED OUT IN THE SAID DECISION THAT SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, PROVIDES FOR THE RETIREMENT OF ANY NAVY OFFICER ON A PROMOTION LIST IN THE RANK TO WHICH HE WAS ELIGIBLE FOR PROMOTION WITH RETIRED PAY BASED ON THE PAY OF THAT RANK IF, AT ANY TIME PRIOR TO PROMOTION, HE IS FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY. ON THE OTHER HAND, IT WAS POINTED OUT THAT THE SAID SECTION 402 (D) OF THE 1949 ACT AUTHORIZES AN OFFICER'S DISABILITY RETIREMENT PAY TO BE COMPUTED ON THE RANK TO WHICH HE IS ELIGIBLE FOR PROMOTION ONLY IF THE PHYSICAL DISABILITY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION. IT WAS FURTHER STATED IN THE SAID DECISION THAT THE LATTER PROVISION IS MORE RESTRICTIVE THAN, AND IS INCONSISTENT WITH, THE RETIRED PAY PROVISION APPEARING IN SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, AND, ACCORDINGLY, THAT SUCH PROVISION IN SECTION 312 (I) MUST BE CONSIDERED TO HAVE BEEN SUPERSEDED AND REPEALED BY THE INCONSISTENT PROVISION IN SECTION 402 (D) OF THE 1949 ACT. CONSEQUENTLY, THE PRIMARY QUESTION FOR CONSIDERATION IN THE PRESENT CASE IS WHETHER THE OFFICER'S DISABILITY WAS "FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION" WITHIN THE MEANING AND INTENT OF SECTION 402 (D).

IT IS UNDERSTOOD THAT THE OFFICER WAS ADMITTED TO THE NAVAL HOSPITAL AT ST. ALBANS, LONG ISLAND, NEW YORK, ON SEPTEMBER 26, 1949 (PRIOR TO THE DATE HE WAS SELECTED FOR PROMOTION TO THE RANK OF COMMANDER) WITH THE DIAGNOSIS "PITUITARY BASOPHILISM" (THE DISEASE FOR WHICH HE ULTIMATELY WAS RETIRED) AND THAT SUCH DIAGNOSIS WAS CONFIRMED ON JANUARY 18, 1950, BY THE FINDINGS OF THE CLINICAL BOARD WHICH EXAMINED HIM AND RECOMMENDED THAT HE APPEAR BEFORE A PHYSICAL EVALUATION BOARD. THUS, ON JANUARY 26, 1950, WHEN HE WAS EXAMINED FOR PROMOTION BY A BOARD OF MEDICAL EXAMINERS, IT APPEARS TO HAVE BEEN A MATTER OF RECORD THAT THE OFFICER WAS SUFFERING WITH THE DISEASE FOR WHICH HE WAS RETIRED. ON THE BASIS OF SUCH UNDERSTANDING, IT REASONABLY MAY NOT BE CONCLUDED THAT THE OFFICER'S PHYSICAL DISABILITY WAS "FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION," WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. MOREOVER, WHILE YOUR LETTER DOES NOT STATE WHETHER THE PROPOSED PROMOTION WAS TO BE A PERMANENT PROMOTION OR A TEMPORARY PROMOTION, IF IT WAS TO BE A TEMPORARY PROMOTION, PENDING A PERMANENT VACANCY, AS IS UNDERSTOOD TO BE THE USUAL ADMINISTRATIVE PROMOTION PROCEDURE IN THE NAVY UNDER THE OFFICER PERSONNEL ACT OF 1947, CLEARLY THE CASE WOULD NOT COME WITHIN SUCH LANGUAGE IN THE 1949 ACT.

ACCORDINGLY, ASSUMING THAT THE OFFICER HAS NOT ELECTED, UNDER SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, IT MUST BE CONCLUDED THAT HE IS ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COMMANDER ONLY.