B-107453, MAY 2, 1952, 31 COMP. GEN. 555

B-107453: May 2, 1952

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WAS FOUND BY A BOARD OF MEDICAL SURVEY TO HAVE A DISABILITY WHICH OCCURRED DURING HIS PRIOR SERVICE AS AN ENLISTED MAN AS A RESULT OF WHICH HIS COMMISSION WAS TERMINATED AND HE WAS DISCHARGED FROM HIS ENLISTED STATUS IN 1946 WITHOUT BEING AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD. WHO IN 1951 WAS AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD PURSUANT TO SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 AND WAS FOUND TO BE PERMANENTLY UNFIT FOR DUTY AS AN OFFICER MAY ELECT TO RECEIVE RETIRED PAY AS AUTHORIZED BY SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. 30 COMP. 1943 WHEN HE WAS GIVEN A TEMPORARY APPOINTMENT AS AN OFFICER UNDER THE PROVISIONS OF THE ACT OF JULY 24.

B-107453, MAY 2, 1952, 31 COMP. GEN. 555

RETIRED PAY - NAVY OFFICER DISCHARGED AS ENLISTED MAN FOR PHYSICAL DISABILITY - ELECTION UNDER CAREER COMPENSATION ACT OF 1949 A NAVY OFFICER WHO, WHILE HOLDING A TEMPORARY COMMISSION, WAS FOUND BY A BOARD OF MEDICAL SURVEY TO HAVE A DISABILITY WHICH OCCURRED DURING HIS PRIOR SERVICE AS AN ENLISTED MAN AS A RESULT OF WHICH HIS COMMISSION WAS TERMINATED AND HE WAS DISCHARGED FROM HIS ENLISTED STATUS IN 1946 WITHOUT BEING AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD, BUT WHO IN 1951 WAS AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD PURSUANT TO SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 AND WAS FOUND TO BE PERMANENTLY UNFIT FOR DUTY AS AN OFFICER MAY ELECT TO RECEIVE RETIRED PAY AS AUTHORIZED BY SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. 30 COMP. GEN. 40, OVERRULED.

ASSISTANT COMPTROLLER GENERAL YATES TO COMMANDER J. B. WARNER, DEPARTMENT OF THE NAVY, MAY 2, 1952:

BY LETTER DATED FEBRUARY 12, 1952 THE JUDGE ADVOCATE GENERAL FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 11, 1952, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION RELATIVE TO THE RETIRED PAY RIGHTS OF BENJAMIN WRIGHT CAMPBELL, FORMERLY A LIEUTENANT IN THE UNITED STATES NAVY.

IT APPEARS THAT MR. CAMPBELL ENLISTED IN THE UNITED STATES NAVY ON JUNE 14, 1935 AND SERVED CONTINUOUSLY UNTIL MAY 15, 1943 WHEN HE WAS GIVEN A TEMPORARY APPOINTMENT AS AN OFFICER UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603. ON MARCH 11, 1946, A BOARD OF MEDICAL SURVEY WAS CONVENED IN HIS CASE AND SUCH BOARD RECOMMENDED THAT HE APPEAR BEFORE A NAVAL RETIRING BOARD. BY ENDORSEMENT DATED MARCH 26, 1946 FROM THE BUREAU OF MEDICINE AND SURGERY TO THE BUREAU OF NAVAL PERSONNEL IT WAS STATED THAT IT APPEARED THAT MR. CAMPBELL'S DISABILITY HAD ITS ONSET WHILE HE WAS SERVING AS AN ENLISTED MAN IN VIEW OF WHICH IT WAS RECOMMENDED THAT HE BE DISCHARGED FROM THE NAVY. SUCH RECOMMENDATION WAS APPROVED ON MAY 6, 1946, AND ON JULY 25, 1946, HIS TEMPORARY COMMISSION WAS TERMINATED AND HE WAS DISCHARGED FROM HIS ENLISTED STATUS. ON OCTOBER 2, 1946, A MEDICAL SURVEY REVIEW BOARD WAS CONVENED IN HIS CASE, PRESUMABLY 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, AND IT FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY; THAT HIS INCAPACITY WAS PERMANENT AND NOT THE RESULT OF AN INCIDENT OF THE SERVICE; AND THAT IT WAS NOT INCURRED IN LINE OF DUTY WHILE EMPLOYED ON ACTIVE DUTY PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS. ACCORDINGLY, IT WAS NOT RECOMMENDED THAT HE BE AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD. HOWEVER, IN VIEW OF AN OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY TO THE EFFECT THAT THE MEDICAL SURVEY REVIEW BOARD WAS WITHOUT JURISDICTION TO CONSIDER HIS CASE BY REASON OF THE FACT THAT HE NO LONGER WAS IN THE NAVAL SERVICE, THE PRESIDENT ON JANUARY 24, 1947, DISAPPROVED THE PROCEEDINGS, OPINION, AND RECOMMENDATION OF THE BOARD AND THE FORMER OFFICER WAS ADVISED THAT HE WOULD NOT BE AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD.

IN DECISION OF APRIL 6, 1949, 28 COMP. GEN. 557, IT WAS HELD IN EFFECT, THAT THE BENEFITS OF THE SAID SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 WERE APPLICABLE TO FORMER OFFICERS OF THE ARMED FORCES AS WELL AS TO THOSE WHO REMAINED IN THE SERVICE AND, IN VIEW THEREOF, MR. CAMPBELL AGAIN WAS AUTHORIZED TO APPEAR BEFORE A MEDICAL SURVEY REVIEW BOARD AND AS A RESULT THEREOF, HE WAS AUTHORIZED BY LETTER DATED JUNE 8, 1951, TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. THIS LATTER BOARD FOUND---

"/1) THAT EX-LIEUTENANT BENJAMIN WRIGHT CAMPBELL, 283854, U.S. NAVY, BE FOUND UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY BY REASON OF

"/2) CHOROIDITIS, * * *

"/3) HIS DISABILITY IS NOT DUE TO INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT AND WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE THAT

"/4) HE HAS COMPLETED OVER EIGHT YEARS OF ACTIVE SERVICE; THAT

"/5) HIS DISABILITY IS CONSIDERED TO BE FIFTY (50) PERCENTUM UNDER CODE NUMBER 6005 IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; THAT

"/6) ACCEPTED MEDICAL PRINCIPLES INDICATE THAT HIS DISABILITY IS OF A PERMANENT NATURE; THAT

"/7) AT THE TIME OF HIS RELEASE FROM ACTIVE SERVICE HE WAS PERMANENTLY UNFIT TO PERFORM THE DUTIES OF HIS RANK; AND THAT

"/8) HIS DISABILITY WAS SUFFERED WHILE EMPLOYED ON ACTIVE DUTY AND IN LINE OF DUTY DURING THE PERIOD CONTEMPLATED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED (34 U.S.C. 855C-1, AS AMENDED), AND SUBSEQUENT TO HIS PROMOTION TO LIEUTENANT.'

ON OCTOBER 23, 1951, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND FINDINGS 1, 2, 7, AND 8, EXCEPT THAT PORTION OF FINDING 8 READING "DURING THE PERIOD CONTEMPLATED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED (34 U.S.C. 855C-1, AS AMENDED)" AND DIRECTED THAT MR. CAMPBELL BE PAID THE RETIRED PAY OF A LIEUTENANT IN CONFORMITY WITH THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 34 U.S.C. 350G.

ON THE BASIS OF THE FOREGOING STATEMENT OF FACTS YOU REQUEST DECISION AS TO WHETHER, EFFECTIVE NOVEMBER 1, 1951, MR. CAMPBELL MAY, AT HIS ELECTION, BE PAID RETIRED PAY AS FOLLOWS:

(A) 75 PERCENT OF THE PAY OF A LIEUTENANT WITH OVER 9 YEARS' SERVICE UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949; OR

(B) 50 PERCENT OF THE PAY OF A LIEUTENANT WITH OVER 10 YEARS' SERVICE UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802.

THE STATUTORY PROVISIONS INVOLVED ARE, IN PERTINENT PART, AS FOLLOWS:

SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287.

"/A) THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, FROM TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED AS THE CASE MAY BE.IT SHALL BE THE DUTY OF ANY SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE SERVICE RECORDS RELATING TO THE OFFICER REQUESTING SUCH REVIEW, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH OFFICER. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE OFFICER REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD OF REVIEW IN PERSON OR BY COUNSEL. CARRYING OUT ITS DUTIES UNDER THIS SECTION SUCH BOARD OF REVIEW SHALL HAVE THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISIONS ARE BEING REVIEWED. THE PROCEEDINGS AND DECISION OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.'

SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604.

"AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.'

SECTION 531 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 838, 839.

"THE FOLLOWING ACTS AND PARTS OF ACTS ARE HEREBY REPEALED:

"/28) * * * SECTION 8 OF SUCH ACT (ACT OF JULY 24, 1941) (55 STAT. 604; 34 U.S.C. 350G), AS AMENDED.'

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823.

" PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.'

IN VIEW OF THE FACT THAT MR. CAMPBELL'S STATUS WAS THAT OF AN ENLISTED MAN AT THE TIME OF HIS DISCHARGE THE QUESTION ARISES AS TO WHETHER HE COMES WITHIN THE PURVIEW OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 SINCE THAT SECTION RELATES ONLY TO AN "OFFICER" RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY. HOWEVER, IT APPEARS THAT THE WORDS "RETIRED OR RELEASED FROM ACTIVE SERVICE" WERE USED IN SUCH SECTION IN A BROAD SENSE AND THAT THEY SHOULD NOT BE GIVEN THE MORE RESTRICTED MEANING GENERALLY ASCRIBED TO THEM WHEN USED IN STATUTES RELATING TO THE ARMED SERVICES. CF. 28B COMP. GEN. 557. HENCE, IT IS CONCLUDED THAT THE TERMINATION OF MR. CAMPBELL'S TEMPORARY APPOINTMENT BECAUSE OF PHYSICAL DISABILITY IS WITHIN THE MEANING OF THE SAID SECTION 302 (A).

IN DECISION OF MARCH 22, 1950, 29 COMP. GEN. 382, IT WAS HELD THAT AN OFFICER OF THE MARINE CORPS RESERVE WHO WAS RELEASED FROM ACTIVE DUTY WITHOUT PAY FOR PHYSICAL DISABILITY, PRIOR TO THE EFFECTIVE DATE ( OCTOBER 1, 1949) OF THE CAREER COMPENSATION ACT OF 1949, AND WHO, SUBSEQUENT TO SUCH DATE, WAS GRANTED RETIREMENT PAY AS THE RESULT OF THE FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, WAS ENTITLED TO HAVE SUCH RETIREMENT PAY COMPUTED UNDER THE LAW IN EFFECT AT THE TIME OF SUCH RELEASE FROM ACTIVE DUTY THE SAME AS THOUGH THE REVIEW BOARD'S DECISION AND RECOMMENDATION HAD BEEN MADE AT THAT TIME. APPLYING THAT DECISION TO MR. CAMPBELL'S CASE IT FOLLOWS THAT THE REPEAL OF SECTION 8 OF THE ACT OF JULY 24, 1941, DID NOT AFFECT HIS CASE.

WITH RESPECT TO THE RATE OF RETIRED PAY TO WHICH HE WAS ENTITLED, IN DECISION OF JULY 28, 1950, 30 COMP. GEN. 40, 46, IT WAS HELD, INTER ALIA, THAT SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 WOULD HAVE NO APPLICATION TO PERSONS IN MR. CAMPBELL'S SITUATION SINCE, BY ITS TERMS, IT IS APPLICABLE ONLY TO MEMBERS AND FORMER MEMBERS RETIRED PRIOR TO THAT ACT. HOWEVER, SUCH CONCLUSION WAS, IN EFFECT, OVERRULED IN DECISION OF OCTOBER 25, 1950, B-96250, TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS HELD THAT IN THE COMPUTATION OF THEIR RETIRED PAY OFFICERS AND FORMER RETIRED OR GRANTED RETIREMENT PAY UNDER SUCH REVIEW BOARD PROCEEDINGS RELATING BACK TO PERIODS PRIOR TO THE SAID CAREER COMPENSATION ACT SHOULD BE CONSIDERED AS THOUGH THEY HAD BEEN RETIRED OR GRANTED RETIREMENT PAY FOR PHYSICAL DISABILITY PRIOR TO THAT ACT, WITHIN THE MEANING OF SECTION 411. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.