B-108153, JUNE 18, 1952, 31 COMP. GEN. 665

B-108153: Jun 18, 1952

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PAY - SEVERANCE - MEMBERS OF THE MARINE CORPS WHERE A MEMBER OF THE MARINE CORPS WAS DISCHARGED WITHOUT SEVERANCE PAY BECAUSE OF A DISABILITY. THE MEMBER IS NOT ENTITLED TO SEVERANCE PAY UNDER SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949. AS THE PURPORTED RETROACTIVE CANCELLATION OF THE ORIGINAL DISCHARGE IS INEFFECTIVE IN THE ABSENCE OF EVIDENCE TO SHOW THAT IT WAS PROCURED THROUGH FRAUD OR MISREPRESENTATION. THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF FEBRUARY 11. ONE OF WHICH IS A "PAY ROLL MONEY LIST" STATED IN FAVOR OF KENNETH L. IT IS EXPLAINED. THAT HE WAS HOSPITALIZED ON AUGUST 5. IT WAS STATED THAT THE ORIGIN OF HIS CONDITION WAS NOT THE RESULT OF MISCONDUCT. WAS NOT INCURRED IN LINE OF DUTY.

B-108153, JUNE 18, 1952, 31 COMP. GEN. 665

PAY - SEVERANCE - MEMBERS OF THE MARINE CORPS WHERE A MEMBER OF THE MARINE CORPS WAS DISCHARGED WITHOUT SEVERANCE PAY BECAUSE OF A DISABILITY, AND SUBSEQUENT THERETO THE SECRETARY OF THE NAVY DIRECTED THAT ACTION BE TAKEN TO ISSUE A DISCHARGE WITH SUCH PAY, THE MEMBER IS NOT ENTITLED TO SEVERANCE PAY UNDER SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS THE PURPORTED RETROACTIVE CANCELLATION OF THE ORIGINAL DISCHARGE IS INEFFECTIVE IN THE ABSENCE OF EVIDENCE TO SHOW THAT IT WAS PROCURED THROUGH FRAUD OR MISREPRESENTATION.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. J. W. ELDRIDGE, U.S. MARINE CORPS, JUNE 1952:

BY FIRST ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS DATED FEBRUARY 15, 1952, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF FEBRUARY 11, 1952, WITH ENCLOSURES, ONE OF WHICH IS A "PAY ROLL MONEY LIST" STATED IN FAVOR OF KENNETH L. GAUSE, IN THE AMOUNT OF $360. YOU REQUEST DECISION AS TO THE PROPRIETY OF PAYMENT OF THE SAID AMOUNT, WHICH, IT IS EXPLAINED, REPRESENTS SEVERANCE PAY COMPUTED AS FOUR MONTHS' PAY AT THE RATE OF $90 PER MONTH.

IT APPEARS THAT KENNETH L. GAUSE ENLISTED IN THE MARINE CORPS, FOR THREE YEARS, ON MARCH 20, 1948; THAT HE WAS HOSPITALIZED ON AUGUST 5, 1949, WITH THE DIAGNOSIS OF " SCHIZOPHRENIC REACTION, SIMPLE TYPE NUMBER 3,000; " AND THAT IN REPORT OF MEDICAL SURVEY DATED SEPTEMBER 7, 1949, IT WAS STATED THAT THE ORIGIN OF HIS CONDITION WAS NOT THE RESULT OF MISCONDUCT, AND WAS NOT INCURRED IN LINE OF DUTY, BUT THAT THE CONDITION EXISTED PRIOR TO ENLISTMENT AND WAS NOT AGGRAVATED BY SERVICE. ALSO, IT IS INDICATED THAT IN REPORT OF MEDICAL SURVEY DATED OCTOBER 28, 1949, IT WAS STATED THAT THE ORIGIN OF HIS CONDITION PREEXISTED ENLISTMENT AND WAS NOT AGGRAVATED BY SERVICE; THAT IN THE OPINION OF THE BOARD OF MEDICAL SURVEY, ALTHOUGH GAUSE'S CONDITION RENDERED HIM UNFIT FOR FURTHER SERVICE, HE HAD RECEIVED THE MAXIMUM BENEFITS OF HOSPITALIZATION; AND ACCORDINGLY, THAT IT WAS RECOMMENDED THAT HE BE DISCHARGED FROM THE MARINE CORPS. IT FURTHER APPEARS THAT ON NOVEMBER 18, 1949, THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, RECOMMENDED THAT DISPOSITION OF THE CASE BE DEFERRED UNTIL PROMULGATION OF REGULATIONS UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816. YOUR LETTER INDICATES ALSO THAT REPORT OF MEDICAL SURVEY DATED MARCH 17, 1960, STATED THAT DIAGNOSIS IN GAUSE'S CASE WAS CHANGED ON THAT DATE TO " SCHIZOID PERSONALITY, NUMBER 3200; " THAT THE ORIGIN OF THE CONDITION WAS NOT MISCONDUCT; THAT IT WAS NOT INCURRED IN LINE OF DUTY; THAT IT PREEXISTED ENLISTMENT BUT WAS NOT AGGRAVATED BY SERVICE; THAT ITS FUTURE DURATION PROBABLY WAS PERMANENT; AND THAT THE BOARD'S RECOMMENDATION WAS THAT GAUSE BE DISCHARGED. PURSUANT TO THE SAID RECOMMENDATION, GAUSE WAS DISCHARGED, FOR THE CONVENIENCE OF THE GOVERNMENT, ON MARCH 30, 1959. ON SEPTEMBER 7, 1950, THE SECRETARY OF THE NAVY, PURSUANT TO A RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, DIRECTED THAT THE COMMANDANT OF THE MARINE CORPS TAKE THE NECESSARY ACTION TO CANCEL THE DISCHARGE OF MARCH 30, 1950, AND TO SEPARATE GAUSE FROM THE SERVICE, WITH SEVERANCE PAY, EFFECTIVE AS OF THE DATE OF DISCHARGE. IT IS STATED THAT ON OCTOBER 3, 1950, GAUSE WAS ISSUED AN HONORABLE DISCHARGE CERTIFICATE, WAS REQUESTED TO RETURN FOR CANCELLATION THE CERTIFICATE ISSUED ON MARCH 30, 1950, AND WAS NOTIFIED THAT HE WAS SEPARATED FROM THE SERVICE, EFFECTIVE MARCH 30, 1950, BY REASON OF PHYSICAL DISABILITY, AND WITH SEVERANCE PAY, IN CONFORMITY WITH 37 U.S.C. 272 (A) AND 273.

YOU EXPRESS DOUBT AS TO THE PROPRIETY OF THE PAYMENT PROPOSED IN VIEW OF PAST DECISIONS ON THE CANCELLATION OF VALIDLY ISSUED DISCHARGES.

THE LONG-ESTABLISHED RULE IS THAT DISCHARGES ONCE VALIDLY ISSUED BY COMPETENT AUTHORITY MAY NOT BE REVOKED UNLESS THEY WERE PROCURED THROUGH FRAUD OR MISREPRESENTATION. SEE 4 COMP. GEN. 260, 23 ID. 419, 27 ID. 495, AND AUTHORITIES THEREIN CITED. THERE IS NO INDICATION THAT GAUSE'S DISCHARGE OF MARCH 30, 1950, WAS PROCURED THROUGH FRAUD OR MISREPRESENTATION AND HENCE, THE PURPORTED RETROACTIVE CANCELLATION OF THAT DISCHARGE, PURSUANT TO THE SECRETARY'S DIRECTIVE OF SEPTEMBER 7, 1950, WAS INEFFECTIVE.

THERE REMAINS THE QUESTION OF WHETHER GAUSE, DISCHARGED FROM THE MARINE CORPS ON MARCH 30, 1950, IS ENTITLED TO SEVERANCE PAY UNDER SUBSECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. SUPP. IV, 272 (A) WHICH PROVIDES THAT:

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, 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 DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; 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 MEMBER 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: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: PROVIDED FURTHER, THAT ANY DISABILITY SHOWN TO HAVE BEEN INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY. ( ITALICS SUPPLIED.)

THERE IS NO SHOWING THAT THE SECRETARY OF THE NAVY EVER MADE THE DETERMINATIONS INDICATED IN THE ABOVE SUBSECTION, INCLUDING THAT GAUSE'S DISABILITY WAS INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY, AND THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY. MOREOVER, EVEN IF IT BE ASSUMED THAT THE SECRETARY'S DIRECTIVE OF SEPTEMBER 7, 1950, RESULTED FROM DETERMINATIONS TO THAT EFFECT MADE ON THAT DATE, GAUSE WAS NOT THEN ENTITLED TO RECEIVE BASIC PAY. DETERMINATION MADE UNDER THE STATUTE AT THAT TIME COULD NOT CONFER UPON HIM ANY RIGHT TO SEVERANCE PAY UNDER SUBSECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949. COMPARE 30 COMP. GEN. 409, 414.

SECTION 403 OF THE ABOVE ACT, 63 STAT. 820, 37 U.S.C. SUPP. IV, 273- - REFERRED TO TOGETHER WITH SUBSECTION 402 (A) IN THE NOTIFICATION OF OCTOBER 3, 1950, TO GAUSE--- PROVIDES NO BASIS FOR THE GRANTING OF SEVERANCE PAY, BUT PROVIDES THAT SUCH PAY, IF ALLOWABLE UNDER THE SAID SUBSECTION 402 (A), SHALL BE COMPUTED ON THE BASIS OF THE TWO MONTHS' PAY FOR EACH YEAR OF ACTIVE SERVICE COMPLETED AT TIME OF SEPARATION, NOT TO EXCEED A TOTAL OF TWO YEARS' PAY.

ACCORDINGLY, PAYMENT ON THE PAY ROLL MONEY LIST, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.