B-107467, DECEMBER 4, 1952, 32 COMP. GEN. 268

B-107467: Dec 4, 1952

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AN OFFICER OF THE NAVAL RESERVE WHO WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY BUT WHO AFTER RELEASE WAS FOUND BY A NAVAL RETIRING BOARD TO BE PHYSICALLY INCAPACITATED FOR ACTIVE DUTY. IS NOT ENTITLED TO DISABILITY RETIREMENT PAY AS AN OFFICER. REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO ESTABLISH A RETIRED PAY ACCOUNT AS OF MAY 31. THAT HIS ENLISTMENT WAS TERMINATED ON FEBRUARY 23. JOHNSON WAS PHYSICALLY QUALIFIED FOR LIMITED SHORE DUTY BUT THAT HIS SERVICES WERE NOT REQUIRED IN SUCH CAPACITY. HE WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY ON NOVEMBER 1. HE WAS RELEASED FROM ACTIVE DUTY. HE WAS AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD WITHOUT EXPENSE TO THE GOVERNMENT.

B-107467, DECEMBER 4, 1952, 32 COMP. GEN. 268

PAY - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE UNDER THE DISABILITY RETIREMENT PAY PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, AN OFFICER OF THE NAVAL RESERVE WHO WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY BUT WHO AFTER RELEASE WAS FOUND BY A NAVAL RETIRING BOARD TO BE PHYSICALLY INCAPACITATED FOR ACTIVE DUTY, AS THE RESULT OF A DISABILITY WHICH HAD ITS ORIGIN DURING A PERIOD OF ENLISTED SERVICE IMMEDIATELY PRECEDING THE DUTY AS AN OFFICER, IS NOT ENTITLED TO DISABILITY RETIREMENT PAY AS AN OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO COMMANDER J. B. WARNER, U.S. NAVY, DECEMBER 4, 1952:

THERE HAS BEEN RECEIVED FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY BY LETTER OF JANUARY 11, 1952, YOUR LETTER OF DECEMBER 18, 1951, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO ESTABLISH A RETIRED PAY ACCOUNT AS OF MAY 31, 1947, IN THE CASE OF WILLIAM WRIGHT JOHNSON, FORMER LIEUTENANT (JUNIOR GRADE), U.S. NAVAL RESERVE, UNDER THE CIRCUMSTANCES HEREINAFTER MENTIONED.

IT APPEARS THAT MR. JOHNSON ENLISTED IN THE NAVAL RESERVE AS AN APPRENTICE SEAMAN V-7, ON MARCH 16, 1942; THAT HIS ENLISTMENT WAS TERMINATED ON FEBRUARY 23, 1944, AND THAT HE ACCEPTED A PERMANENT APPOINTMENT AS ENSIGN IN THE NAVAL RESERVE AND REPORTED FOR ACTIVE DUTY ON FEBRUARY 24, 1944, PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF 30 DAYS. ON SEPTEMBER 18, 1945, WHILE STILL ON ACTIVE DUTY, HE APPEARED BEFORE A BOARD OF MEDICAL SURVEY. IN SECOND ENDORSEMENT ON THE REPORT OF SUCH BOARD, THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY ON OCTOBER 1, 1945, RECOMMENDED THAT HE BE RETURNED TO SHORE DUTY WITHIN THE CONTINENTAL UNITED STATES. IN THIRD ENDORSEMENT OF OCTOBER 16, 1945, THE CHIEF OF NAVAL PERSONNEL STATED THAT MR. JOHNSON WAS PHYSICALLY QUALIFIED FOR LIMITED SHORE DUTY BUT THAT HIS SERVICES WERE NOT REQUIRED IN SUCH CAPACITY, AND THAT, THEREFORE, HE WOULD BE RELEASED FROM ACTIVE DUTY. HE WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY ON NOVEMBER 1, 1945, AND, UPON EXPIRATION OF LEAVE, DECEMBER 26, 1945, HE WAS RELEASED FROM ACTIVE DUTY. BY ORDERS DATED MARCH 7, 1946, HE WAS AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD WITHOUT EXPENSE TO THE GOVERNMENT. HE REPORTED TO SUCH BOARD ON MARCH 18, 1946, AND THE BOARD FOUND THAT HE "IS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF COLITIS, ULCERATIVE; THAT HIS INCAPACITY FOR NAVAL SERVICE IS PERMANENT, AND IS THE RESULT OF AN INCIDENT OF THE SERVICE, HAVING BEEN INCURRED SUBSEQUENT TO MARCH 16, 1942, WHILE SERVING ON ACTIVE DUTY IN AN ENLISTED STATUS, AND PRIOR TO FEBRUARY 24, 1944, THE EFFECTIVE DATE OF HIS APPOINTMENT TO THE COMMISSIONED RANK OF ENSIGN.' THE FINDINGS OF THE SAID BOARD WERE APPROVED BY THE PRESIDENT ON MAY 31, 1947, AND MR. JOHNSON WAS HONORABLY DISCHARGED FROM THE NAVAL RESERVE ON JULY 7, 1947. THEREAFTER, ON OCTOBER 5, 1949, THE NAVAL RETIRING REVIEW BOARD REVIEWED THE RETIRING BOARD PROCEEDINGS AND FOUND THAT HIS INCAPACITY WAS INCURRED IN LINE OF DUTY SUBSEQUENT TO FEBRUARY 24, 1944, THE DATE HE REPORTED FOR ACTIVE DUTY AS AN OFFICER. HOWEVER, THE JUDGE ADVOCATE GENERAL OF THE NAVY RENDERED AN OPINION THAT THE NAVAL RETIRING REVIEW BOARD LACKED JURISDICTION TO REVIEW THE CASE, WHICH OPINION WAS APPROVED BY THE SECRETARY OF THE NAVY FEBRUARY 23, 1951. SEE, IN THAT CONNECTION, DECISION OF THIS OFFICE DATED JUNE 24, 1952, B-108930, 31 COMP. GEN. 681. THE JUDGE ADVOCATE GENERAL FURTHER CONCLUDED, HOWEVER, THAT MR. JOHNSON WAS ENTITLED TO RECEIVE RETIREMENT PAY SINCE ALL ESSENTIAL STEPS HAD BEEN TAKEN WHEN THE ACTION OF THE RETIRING BOARD WAS APPROVED BY THE PRESIDENT ON MAY 31, 1947.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, EFFECTIVE AUGUST 14, 1945, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OF UNITED STATES MARINE CORPS RESERVE, WHO---

(1) IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY * * * SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME * * * RETIREMENT PAY * * * AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *. SUCH PROVISIONS, INSOFAR AS DISABILITY RETIREMENT PAY IS CONCERNED, WERE SUPERSEDED AND REPEALED BY TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, SEE 30 COMP. GEN. 409.

THE JUDGE ADVOCATE GENERAL OF THE NAVY REACHED A CONCLUSION IN HIS OPINION OF MARCH 20, 1946, FILE JAG:1I:1LHCJ:MHW, NAVY COURT MARTIAL ORDERS, 1946, PAGE 103, TO THE EFFECT THAT, IN ORDER TO BE ENTITLED TO DISABILITY RETIREMENT PAY UNDER THE ABOVE-QUOTED PROVISIONS OF LAW, A PERSON'S DISABILITY NEED NOT HAVE ORIGINATED WHILE HE WAS SERVING AS A RESERVE OFFICER, IT BEING SUFFICIENT IN THAT RESPECT IF THE DISABILITY HAD ITS ORIGIN DURING A PERIOD OF ACTIVE ENLISTED RESERVE SERVICE IMMEDIATELY PRECEDING COMMISSIONED SERVICE AND ACTUALLY BECAME INCAPACITATING WHILE SUCH MEMBER WAS SERVING AS AN OFFICER. ALSO, IT HAS BEEN HELD THAT UNDER THE 1940 ACT, AS AMENDED, THE RIGHT TO DISABILITY RETIREMENT PAY WAS NOT CONTINGENT UPON A MEMBER'S BEING RETIRED FOR DISABILITY OR HAVING HIS NAME PLACED ON A RETIRED LIST. SEE DECISIONS OF MARCH 20, 1944, 23 COMP. GEN. 700, AND NOVEMBER 19, 1952, B-96905, 32 COMP. GEN. 242. SEE, ALSO, 23 COMP. GEN. 284, 286. IN DECISION OF OCTOBER 22, 1952, B-106953, 32 COMP. GEN. 196, THIS OFFICE INDICATED THAT IT DID NOT DISAGREE WITH THE CONCLUSION REACHED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN THE SAID OPINION OF MARCH 20, 1946, BUT HELD THAT SUCH RULE COULD NOT BE EXTENDED TO A CASE WHERE THE DISABILITY COMPLAINED OF NOT ONLY HAD ITS ORIGIN DURING A PREVIOUS PERIOD OF ENLISTED SERVICE BUT ACTUALLY HAD BECOME INCAPACITATING DURING SUCH PRIOR PERIOD.

IN THIS CASE MR. JOHNSON'S DISABILITY WAS FOUND TO HAVE HAD ITS ORIGIN DURING A PERIOD OF ACTIVE ENLISTED RESERVE SERVICE IMMEDIATELY PRECEDING COMMISSIONED SERVICE. HOWEVER, NOTHING CONTAINED IN THE RECORD SUBMITTED TO THIS OFFICE SHOWS OR PURPORTS TO SHOW THAT HE ACTUALLY WAS INCAPACITATED FOR ACTIVE DUTY AT THE TIME OF HIS RELEASE AS AN OFFICER ON DECEMBER 26, 1945. AS A MATTER OF FACT, UPON BEING GIVEN A PHYSICAL EXAMINATION ON NOVEMBER 1, 1945, HE WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY, AND IT DOES NOT APPEAR THAT THE NAVAL RETIRING BOARD BEFORE WHICH HE APPEARED ON MARCH 18, 1946, QUESTIONED THE FINDINGS OF THE MEDICAL OFFICERS WHO CONDUCTED THE PHYSICAL NOVEMBER 1, 1945. INSTEAD, IT APPEARS THAT THE NAVAL RETIRING BOARD, SPEAKING NOT IN THE PAST BUT IN THE PRESENT TENSE AS OF THE TIME IT ISSUED ITS REPORT, FOUND THAT HE "IS INCAPACITATED FOR ACTIVE SERVICE.' FROM THE RECORD BEFORE THIS OFFICE THAT CANNOT BE READ AS A FINDING THAT MR. JOHNSON WAS ACTUALLY INCAPACITATED FOR ACTIVE DUTY WHEN RELEASED FROM ACTIVE DUTY ON DECEMBER 26, 1945. THAT IS, IN CONTRAST TO THE SITUATION EXISTING IN THE CASE CONSIDERED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN HIS OPINION OF MARCH 20, 1946, SUPRA, IT APPEARS ON THE RECORD BEFORE THIS OFFICE IN THE PRESENT CASE THAT THE DISABILITY INCURRED BY MR. JOHNSON WHILE HE WAS SERVING AS AN ENLISTED MAN DID NOT ACTUALLY BECOME INCAPACITATING UNTIL AFTER HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER AND THERE APPEARS TO BE NO LEGAL BASIS FOR RELATING SUCH SUBSEQUENT INCAPACITY TO HIS OFFICER SERVICE RATHER THAN HIS ENLISTED SERVICE. AS A MEMBER OF THE NAVAL RESERVE HE WAS ENTITLED, UNDER CERTAIN CONDITIONS TO RECEIVE THE SAME RETIREMENT PAY AS THAT PROVIDED FOR A MEMBER OF THE REGULAR NAVY OF CORRESPONDING GRADE AND LENGTH OF SERVICE AND IT IS CLEAR THAT UNDER THE STATUTORY PROVISIONS APPLICABLE TO MEMBERS OF THE REGULAR NAVY DURING THE PERIOD INVOLVED, SUCH MEMBERS WERE NOT ENTITLED TO RETIREMENT PAY FOR PHYSICAL DISABILITY UNTIL FOUND TO BE INCAPACITATED FOR ACTIVE DUTY. HENCE, ON THE PRESENT RECORD IT MAY NOT BE HELD THAT MR. JOHNSON "SUFFERED DISABILITY * * * IN LINE OF DUTY FROM DISEASE" WHILE EMPLOYED ON ACTIVE DUTY AS AN OFFICER WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTE AND, ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE. IF SUCH RECORD IS INCORRECT OR INCOMPLETE, THE CORRECTION THEREOF LIES WITH THE DEPARTMENT OF THE NAVY AND NOT WITH THIS OFFICE. COMPARE DECISION OF NOVEMBER 19, 1952, B-96905, SUPRA. ..END :