B-108683, SEP 17, 1954

B-108683: Sep 17, 1954

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YOU STATE THAT THE OFFICER WAS ORIGINALLY PLACED ON THE RETIRED LIST ON JUNE 30. AS THE RESULT OF THE APPROVAL OF THE ARMY DISABILITY REVIEW BOARD'S FINDINGS AND THAT HE WAS PAID RETIREMENT PAY FROM JULY 1. PAYMENT WAS THEN DISCONTINUED UPON RECEIPT IN THE DEPARTMENT OF THE ARMY OF A LETTER DATED MARCH 8. THE DAY FOLLOWING THE DATE HE WAS RELEASED FROM ACTIVE DUTY. SINCE HE WAS NOT RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY. WAS WITHOUT JURISDICTION TO REVIEW HIS CASE. IT WAS STATED - "*** IN THE VIEW OF THIS OFFICE. A BOARD ESTABLISHED UNDER THE PROVISIONS OF THE SECTION 302(A) OF THE 1944 ACT HAS JURISDICTION ONLY IN THOSE CASES WHERE IT IS ESTABLISHED THAT THE PERSON'S SEPARATION FROM THE ACTIVE SERVICE ACTUALLY WAS MOTIVATED BY A FINDING OF A RETIRING BOARD.

B-108683, SEP 17, 1954

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL EUGENE PALETZ, FC; DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT DATED AUGUST 16, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF MAY 7, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF SAMUEL E. MAYFIELD FOR $171.60 AS DISABILITY RETIREMENT PAY FOR THE MONTH OF APRIL 1954 INCIDENT TO HIS SERVICE AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES.

YOU STATE THAT THE OFFICER WAS ORIGINALLY PLACED ON THE RETIRED LIST ON JUNE 30, 1951, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, AS THE RESULT OF THE APPROVAL OF THE ARMY DISABILITY REVIEW BOARD'S FINDINGS AND THAT HE WAS PAID RETIREMENT PAY FROM JULY 1, 1951, THROUGH MARCH 31, 1954. PAYMENT WAS THEN DISCONTINUED UPON RECEIPT IN THE DEPARTMENT OF THE ARMY OF A LETTER DATED MARCH 8, 1954, FROM THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, ADVISING THAT THE OFFICER'S CLAIM FOR RETIREMENT PAY FOR THE PERIOD FROM APRIL 1, 1946, THE DAY FOLLOWING THE DATE HE WAS RELEASED FROM ACTIVE DUTY, THROUGH JUNE 30, 1951, HAD BEEN DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED DECEMBER 11, 1953, FOR THE STATED REASON THAT, SINCE HE WAS NOT RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY, THE ARMY DISABILITY REVIEW BOARD, BEFORE WHICH HE APPEARED, WAS WITHOUT JURISDICTION TO REVIEW HIS CASE.

IN DECISION OF THIS OFFICE DATED JUNE 24, 1952, 31 COMP. GEN. 681, IT WAS STATED -

"*** IN THE VIEW OF THIS OFFICE, A BOARD ESTABLISHED UNDER THE PROVISIONS OF THE SECTION 302(A) OF THE 1944 ACT HAS JURISDICTION ONLY IN THOSE CASES WHERE IT IS ESTABLISHED THAT THE PERSON'S SEPARATION FROM THE ACTIVE SERVICE ACTUALLY WAS MOTIVATED BY A FINDING OF A RETIRING BOARD, ETC., THAT HE WAS PHYSICALLY DISABLED AND, OF COURSE, HIS ORDERS FOR SEPARATION ARE PRIMA FACIE EVIDENCE OF THAT FACT. ***"

IT APPEARS FROM THE RECORD THAT ON DECEMBER 21, 1945, LIEUTENANT MAYFIELD APPEARED BEFORE AN ARMY RETIRING BOARD CONVENED AT REGIONAL HOSPITAL, FORT MONMOUTH, NEW JERSEY, WHICH BOARD FOUND HIM PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, THE RESULT OF AN INCIDENT OF SERVICE AS AN ENLISTED MAN AND THAT THE CAUSE OF SUCH INCAPACITY HAD BEEN AGGRAVATED BY SERVICE AS AN OFFICER. BY PARAGRAPH 2, SPECIAL ORDERS NO. 78, REGIONAL HOSPITAL, ARMY SERVICE FORCES, EASTERN SIGNAL CORPS TRAINING CENTER, FORT MONMOUTH, NEW JERSEY, DATED DECEMBER 27, 1945, HE WAS RELEASED FROM ATTACHMENT, UNASSIGNED DETACHMENT OF PATIENTS, AND FROM FURTHER OBSERVATION AND TREATMENT AT THAT HOSPITAL, AND GRANTED TERMINAL LEAVE OF 92 DAYS, EFFECTIVE DECEMBER 29, 1945, TO REVERT TO AN INACTIVE STATUS ON MARCH 30, 1946, "NOT BY REASON OF PHYSICAL DISABILITY (PERM LTD SV, NO ASGMT AVAILABLE)." THE SURGEON GENERAL DID NOT CONCUR IN THE FINDINGS OF THE ARMY RETIRING BOARD OF DECEMBER 21, 1945, AND RECOMMENDED THAT THE RECORD BE RETURNED TO THE BOARD FOR RECONSIDERATION. THE OFFICER APPEARED BEFORE THE RECONVENED ARMY RETIRING BOARD AT THE HOSPITAL ON MARCH 25, 1946, AND THE BOARD ADHERED TO ITS PREVIOUS FINDINGS. ON APRIL 25, 1946, THE FINDINGS OF THE BOARD WERE DISAPPROVED BY ORDER OF THE SECRETARY OF WAR.

ON JANUARY 18, 1950, THE OFFICER APPEARED BEFORE AN ARMY DISABILITY REVIEW BOARD, ESTABLISHED 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, WHICH BOARD FOUND THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, NOT THE RESULT OF AN INCIDENT OF SERVICE AS AN OFFICER, AND ON THE SAME DAY THE PRESIDENT APPROVED THE FINDINGS OF THE REVIEW BOARD. THE OFFICER REQUESTED A REHEARING AND ON JUNE 26, 1951, THE REVIEW BOARD FOUND THAT THE DISABILITY FROM WHICH HE SUFFERED PERMANENTLY INCAPACITATED HIM FOR ACTIVE SERVICE AND THAT IT WAS THE RESULT OF AN INCIDENT OF SERVICE. ON JUNE 26, 1951, THE PRESIDENT APPROVED THESE FINDINGS OF THE REVIEW BOARD AND THE OFFICER WAS CERTIFIED FOR RETIREMENT PAY EFFECTIVE JULY 1, 1951.

ON THE BASIS OF THESE FACTS, AND SINCE AT THE TIME OF LIEUTENANT MAYFIELD'S RELEASE THE REGULATIONS PROVIDED THAT AN OFFICER WOULD NOT BE RETAINED ON ACTIVE DUTY IN A PERMANENT LIMITED SERVICE STATUS, UNLESS HIS SERVICE WAS CERTIFIED AS ESSENTIAL, AND THAT CASES INVOLVING PHYSICAL INCAPACITY WOULD BE SEPARATED AT THE HOSPITAL (SEE, GENERALLY, SECTION IX, WAR DEPARTMENT CIRCULAR NO. 313, DATED OCTOBER 12, 1945), IT REASONABLY APPEARS THAT THIS OFFICER WOULD NOT HAVE BEEN RELEASED FROM ACTIVE DUTY WITHOUT PAY BUT FOR THE FINDINGS OF PHYSICAL DISABILITY BY THE ARMY RETIRING BOARD ON DECEMBER 21, 1945. HENCE, IT IS CONCLUDED THAT THE ARMY DISABILITY REVIEW BOARD, WHICH SUBSEQUENTLY CONVENED IN HIS CASE, HAD JURISDICTION IN THE MATTER. ACCORDINGLY, IF OTHERWISE CORRECT, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, TOGETHER WITH THE OTHER PAPERS SUBMITTED WITH YOUR LETTER.