B-106845, JANUARY 16, 1952, 31 COMP. GEN. 296

B-106845, JANUARY 16, 1952, 31 COMP. GEN. 296

RETIREMENT - MILITARY, NAVAL, ETC. - PERMANENT RETIRED LIST - PERMANENCY OF STATUS A NAVAL OFFICER WHO, DUE TO PHYSICAL DISABILITY, IS PLACED ON THE PERMANENT RETIRED LIST AS A RESULT OF THE FINDINGS AND RECOMMENDATIONS OF A PHYSICAL EVALUATION BOARD AND THE APPROVAL OF SUCH FINDINGS AND RECOMMENDATIONS BY THE ASSISTANT SECRETARY FOR AIR IS LEGALLY RETIRED AND HIS STATUS CANNOT THEREAFTER BE CHANGED RETROSPECTIVELY BECAUSE OF A MISTAKE OF FACT OR POOR JUDGMENT ON THE PART OF THE RETIRING AUTHORITIES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 16, 1952:

REFERENCE IS MADE TO LETTER OF DECEMBER 4, 1951, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, TRANSMITTING A LETTER DATED JUNE 28, 1951, FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION AS TO THE RIGHT OF LIEUTENANT COMMANDER ROBERT EMIL NEWMANN, USN ( RETIRED), TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, AS A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 1, 1950, UNDER CIRCUMSTANCES STATED IN THE SAID LETTER OF JUNE 28, 1951.

IT APPEARS THAT THE OFFICER WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1950, ON THE BASIS OF THE FINDINGS AND RECOMMENDATIONS OF A PHYSICAL EVALUATION BOARD AND THE APPROVAL THEREOF ON AUGUST 16, 1950, BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR. BY SUCH APPROVAL THE ASSISTANT SECRETARY IN EFFECT DETERMINED THAT THE OFFICER WAS UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY (RATED AT 30 PERCENT IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN USE BY THE VETERANS ADMINISTRATION), AND THAT SUCH DISABILITY WAS PERMANENT IN NATURE. SUCH ACTION PURPORTEDLY WAS CANCELED ON MAY 10, 1951, NOTICE THEREOF BEING GIVEN TO THE CHIEF OF NAVAL PERSONNEL IN A COMMUNICATION OF THAT DATE FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR DIRECTING THAT LIEUTENANT COMMANDER NEWMANN'S NAME BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AS OF 1 SEPTEMBER 1950, AND STATING THAT THE PRIOR ACTION IN THE CASE "WAS BASED UPON A MISTAKE OF FACT AND IT IS NOW DETERMINED THAT THE DISABILITY OF THIS OFFICER MAY BE OF A PERMANENT NATURE.' IT APPEARS THAT RETIRED PAY WAS ESTABLISHED AT THE RATE OF 30 PERCENT OF THE OFFICER'S BASIC PAY AT THE TIME OF HIS RETIREMENT--- PAY OF PAY GRADE O 4 WITH OVER TEN YEARS' CUMULATIVE SERVICE--- EFFECTIVE SEPTEMBER 1, 1950, AND IT IS STATED THAT IF RETIRED PAY MAY BE RECOMPUTED "BY REASON OF CHANGE IN STATUS FROM PERMANENT TO TEMPORARY DISABILITY RETIRED LIST," HE WOULD BE ENTITLED TO RETIRED PAY AT THE RATE OF 50 PERCENT OF SUCH BASIC PAY.

SECTION 402 (B) OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, * * * IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH MEMBER HAS COMPLETED AT LEAST EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBERS SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION:PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: * * *

SECTION 414 (A) OF THE CAREER COMPENSATION ACT, 63 STAT. 825, READS AS FOLLOWS:

ALL DUTIES, POWERS, AND FUNCTIONS INCIDENT TO THE DETERMINATION OF FITNESS FOR ACTIVE SERVICE, PERCENTAGE OF DISABILITY AT THE TIME OF SEPARATION FROM ACTIVE SERVICE, AND SUITABILITY FOR REENTRY INTO ACTIVE SERVICE AND ENTITLEMENT TO AND PAYMENT OF DISABILITY SEVERANCE PAY SHALL BE VESTED IN THE SECRETARY CONCERNED.

THE FOREGOING PROVISIONS OF LAW VEST IN THE SECRETARY OF THE NAVY THE POWER AND AUTHORITY TO DETERMINE WHEN AN OFFICER OF THE NAVAL SERVICE IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE OR RANK, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO BASIC PAY, AND WHETHER SUCH DISABILITY MAY BE OF A PERMANENT NATURE. IF IT IS DETERMINED THAT THE DISABILITY MAY BE PERMANENT, AND CERTAIN OTHER CONDITIONS EXIST, IT IS REQUIRED THAT THE OFFICER'S NAME BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BUT IF IT IS DETERMINED THAT THE DISABILITY ACTUALLY IS OF A PERMANENT NATURE, SUCH OFFICER MAY BE RETIRED BY THE SECRETARY OF THE NAVY. THE RATE OF RETIREMENT PAY IN EACH CASE IS FIXED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D), 63 STAT. 818.

THE RECORD SHOWS THAT UNDER DATE OF APRIL 12, 1951, THE ASSISTANT SECRETARY OF THE NAVY FOR AIR REQUESTED AN OPINION FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY AS TO THE LEGALITY OF CANCELING HIS APPROVAL OF THE RECOMMENDATION OF THE PHYSICAL EVALUATION BOARD WHICH RESULTED IN THE OFFICER BEING PLACED ON THE PERMANENT RETIRED LIST, AND OF PLACING HIM ON THE TEMPORARY DISABILITY RETIRED LIST, IT BEING STATED THAT SUBSEQUENT DEVELOPMENTS INDICATE THAT THE PREVIOUS ACTION WAS IN ERROR, IN THAT THE OFFICER'S DISABILITY HAD NOT REACHED A STABLE CONDITION, AND THAT HE EITHER SHOULD HAVE BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR RETAINED ON ACTIVE DUTY UNTIL HIS PHYSICAL CONDITION BECAME STABLE. HIS OPINION DATED MAY 9, 1951, THE JUDGE ADVOCATE GENERAL EXPRESSED THE VIEW THAT SINCE THE CAREER COMPENSATION ACT OF 1949 DOES NOT PROVIDE FOR ANY REVIEW OF ADMINISTRATIVE ACTION IN PLACING AN INDIVIDUAL ON THE PERMANENT RETIRED LIST, IT APPARENTLY WAS INTENDED THAT THE DETERMINATION BY THE SECRETARY OF THE NAVY SHOULD BE FINAL AND CONCLUSIVE AND NOT SUBJECT TO REVOCATION ON THE BASIS OF AN ERROR IN JUDGMENT, CITING BLAKE V. UNITED STATES, 14 C.1CLS. 462, AND BURCHARD V. UNITED STATES, 125 U.S. 176, 179, 180. IT ALSO WAS STATED THAT " IT HAS BEEN HELD THAT WHERE THE ACTION OF THE OFFICIAL WAS TAKEN IN MISTAKE OF FACT, THE ACTION MAY LATER BE REVIEWED AND AMENDED ( MCBLAIR V. U.S., 19 C.1CLS. 528; 18 COMPTROLLER TREASURY 676).' THE REDETERMINATION OF MAY 10, 1951, SEEMINGLY WAS MADE IN SPITE OF, RATHER THAN ON THE BASIS OF THE SAID OPINION OF MAY 9, 1951, SINCE THERE IS NOTHING IN EITHER THE REDETERMINATION ITSELF, THE JUDGE ADVOCATE GENERAL'S OPINION, OR THE REQUEST FOR SUCH OPINION INDICATING WHAT "MISTAKE OF FACT" WAS MADE BY THE ASSISTANT SECRETARY IN APPROVING THE RECOMMENDATION OF THE PHYSICAL EVALUATION BOARD. THE MISTAKE, IF ANY WAS MADE, APPARENTLY WAS A MISTAKE IN JUDGMENT WITH RESPECT TO THE OFFICER'S PHYSICAL CONDITION, BUT EVEN AS TO THAT THE PRESENT RECORD FAILS TO DISCLOSE THAT IT HAS BEEN OR CAN BE DETERMINED WITH CERTAINTY THAT THE OFFICER'S DISABILITY IS NOT PERMANENT AND THAT, THEREFORE, A MISTAKE ACTUALLY WAS MADE WITH RESPECT THERETO.

IN THE CASE OF MCBLAIR V. UNITED STATES, CITED BY THE JUDGE ADVOCATE GENERAL, A RETIRING BOARD, ACTING UNDER AUTHORITY OF PROVISIONS OF LAW IN EFFECT AT THAT TIME, FOUND THAT THE PLAINTIFF WAS INCAPACITATED FOR ACTIVE DUTY AND THAT SUCH INCAPACITY WAS NOT THE RESULT OF AN INCIDENT OF THE SERVICE. THE BOARD'S RECOMMENDATION THAT THE OFFICER BE WHOLLY RETIRED FROM THE SERVICE, RATHER THAN THAT HE BE RETIRED FROM ACTIVE SERVICE, WAS APPROVED BY THE PRESIDENT AND AN ORDER TO THAT EFFECT WAS ISSUED ON OCTOBER 6, 1863. ON APRIL 8, 1864, THE PRESIDENT REVOKED SUCH ORDER AND DIRECTED THAT THE PLAINTIFF BE PLACED ON THE RETIRED LIST AS OF THE DATE ON WHICH HE WAS DROPPED. IN HOLDING THAT THE PRESIDENT WAS WITHOUT AUTHORITY TO REVOKE THE ORDER OF OCTOBER 6, 1863, THE COURT STATED THAT THE PRESIDENT HAD THE RIGHT TO ADOPT ANY ONE OF THREE COURSES OF ACTION UNDER THE PROVISIONS OF SECTION 1252 OF THE REVISED STATUTES IN EFFECT AT THAT TIME, VIZ, HE COULD DISAPPROVE THE FINDING OF THE BOARD AND RETAIN THE PLAINTIFF IN THE ACTIVE SERVICE, RETIRE HIM FROM ACTIVE SERVICE, OR WHOLLY RETIRE HIM FROM THE ARMY, BUT THAT SUCH AUTHORITY WAS NOT A CONTINUING ONE AND IS PERFORMED TO THE EXTENT OF ITS EXISTENCE BY ONE ACT OF THE PRESIDENT. RATHER THAN BEING A PRECEDENT FOR, THAT CASE MAY BE CITED AS AUTHORITY AGAINST, THE ACTION TAKEN BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR ON MAY 10, 1951, IN THE PRESENT CASE. ALTHOUGH THE COURT DID MENTION A "MISTAKE OF FACT," IT NEITHER DEFINED THAT TERM NOR ENTERED INTO ANY DISCUSSION AS TO WHAT TYPE OF MISTAKE OF FACT WOULD PERMIT THE PRESIDENT TO REVIEW HIS PRIOR ACTION.

THE DECISION PUBLISHED IN 18 COMP. DEC. 676, INVOLVED A CASE WHERE THE PRESIDENT THROUGH INADVERTENCE AND WITHOUT INTENDING TO DO SO, APPROVED THE FINDING AND RECOMMENDATION OF A NAVAL EXAMINING BOARD AND DIRECTED THE DISCHARGE OF AN OFFICER ON THE BASIS OF SUCH FINDING. IT WAS HELD THAT THE ACTION OF THE PRESIDENT IN CANCELING HIS APPROVAL UPON DISCOVERY OF THE MISTAKE, AND OF REMITTING THE CASE FOR THE CONSIDERATION OF ANOTHER BOARD, WAS PROPER. THE MISTAKEN ACT IN THAT CASE WAS IN EFFECT A NULLITY. NO SIMILAR MISTAKE HAS BEEN SHOWN IN THE INSTANT CASE AND, INSOFAR AS THE PRESENT RECORD DISCLOSES, THE ASSISTANT SECRETARY OF THE NAVY FOR AIR FULLY INTENDED TO APPROVE THE RECOMMENDATION OF THE PHYSICAL EVALUATION BOARD. IF SUBSEQUENT DEVELOPMENTS HAVE INDICATED THAT THE PRIOR ACTION MAY HAVE RESULTED FROM THE EXERCISE OF POOR JUDGMENT, THE MERE STATEMENT THAT THE ACTION WAS BASED ON A "MISTAKE OF FACT" WOULD PROVIDE NO LEGAL BASIS TO CANCEL OR MODIFY SUCH PRIOR ACTION. THAT IS TO SAY, IF THE OFFICER WAS LEGALLY RETIRED, HIS CHANGE OF STATUS BECAME AN ACCOMPLISHED FACT AND CANNOT BE UNDONE RETROSPECTIVELY, OR SUCH STATUS CHANGED PROSPECTIVELY EXCEPT AS MAY BE AUTHORIZED BY OTHER PROVISIONS OF LAW.

THE UNITED STATES COURT OF CLAIMS RECENTLY HAS HAD OCCASION TO PASS ON A QUESTION SOMEWHAT SIMILAR TO THAT HERE INVOLVED. SEE SPENCER V. UNITED STATES, CASE NO. 49438, AND CARLIN V. UNITED STATES, CASE NO. 49489, BOTH DECIDED OCTOBER 2, 1951. IT THERE WAS HELD THAT WHERE THE PROPER OFFICIALS OF THE WAR DEPARTMENT HAVE MADE A DETERMINATION THAT AN OFFICER IS ENTITLED TO RETIREMENT AND TO RETIRED PAY ON THE BASIS OF A SERVICE CONNECTED DISABILITY UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456, AND AN ORDER HAS BEEN ISSUED TO THE VETERANS ADMINISTRATION SO CERTIFYING, SUCH ACTION IS A FINAL ORDER AND CAN BE REOPENED ONLY UPON A SHOWING OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW, OR MATHEMATICAL MISCALCULATION. THERE APPEARS TO BE NO QUESTION OF FRAUD, MISTAKE OF LAW, OR MATHEMATICAL MISCALCULATION IN THE INSTANT CASE AND THE ONLY NEW EVIDENCE TO WHICH REFERENCE HAS BEEN MADE, IS THAT WHICH WAS OBTAINED AND RELATED TO A PERIOD AFTER THE PHYSICAL EVALUATION BOARD HAD CONSIDERED THE MATTER AND ITS RECOMMENDATION HAD BEEN APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR. SECTIONS 402 (E) AND 404, 63 STAT. 819, 821, OF THE CAREER COMPENSATION ACT, REQUIRE THAT OFFICERS WHOSE NAMES ARE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, BE GIVEN PERIODICAL PHYSICAL EXAMINATIONS FOR THE PURPOSE OF DETERMINING WHETHER THEIR CONDITION HAS CHANGED BUT NO SIMILAR PROVISION IS MADE WITH RESPECT TO OFFICERS WHO HAVE BEEN RETIRED.

ACCORDINGLY, YOU ARE ADVISED THAT THE RECORD BEFORE THIS OFFICE DOES NOT WARRANT A CONCLUSION THAT LIEUTENANT COMMANDER NEWMANN IS ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED AND CREDITED AS A MEMBER WHOSE NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 1, 1950.