B-113447, APRIL 20, 1953, 32 COMP. GEN. 459

B-113447, APRIL 20, 1953, 32 COMP. GEN. 459

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY FOUND TO EXIST PRIOR TO PHYSICAL EXAMINATION FOR PROMOTION AN OFFICER WHO WAS ADMITTED TO NAVAL HOSPITAL WHILE SUFFERING FROM A DISEASE AND WHO WAS SUBSEQUENTLY FOUND FIT FOR FULL DUTY BY A MEDICAL SURVEY BOARD PRIOR TO BEING SELECTED FOR PROMOTION, BUT WHO ON APPEARING BEFORE A BOARD OF MEDICAL EXAMINERS IN CONNECTION WITH SUCH PROMOTION WAS FOUND NOT QUALIFIED BY REASON OF SAID DISEASE AND WHOSE SUBSEQUENT DISABILITY RETIREMENT WAS FOR THE SAME DISEASE, MAY NOT BE ADVANCED, UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, TO THE GRADE FOR WHICH SELECTED AND RECEIVE THE RETIRED PAY OF THAT GRADE. AN OFFICER, SELECTED FOR A TEMPORARY PROMOTION WHOSE ELIGIBILITY FOR SUCH PROMOTION WAS NOT REQUIRED TO BE BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, WHO DURING A PHYSICAL EXAMINATION WAS FOUND NOT QUALIFIED FOR PROMOTION BY REASON OF A PHYSICAL DISABILITY, AND WHO WAS SUBSEQUENTLY TRANSFERRED TO THE RETIRED LIST BY REASON OF THE DISABILITY, MAY NOT, UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, BE ADVANCED TO THE GRADE FOR WHICH SELECTED AND RECEIVE THE RETIRED PAY OF THAT GRADE.

ASSISTANT COMPTROLLER GENERAL YATES TO COMMANDER N. GRAUEL, DEPARTMENT OF THE NAVY, APRIL 20, 1953:

THERE HAS BEEN RECEIVED BY LETTER DATED JANUARY 13, 1953, OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, YOUR LETTER OF NOVEMBER 20, 1952, REQUESTING DECISION AS TO WHETHER, IN VIEW OF THE CIRCUMSTANCES HEREINAFTER STATED, LIEUTENANT JAMES E. ELLER, U.S. NAVY, RETIRED, IS ENTITLED TO RECEIVE RETIRED PAY BASED ON THE RANK OF LIEUTENANT COMMANDER.

IT APPEARS THAT THE OFFICER WAS ADMITTED TO THE U.S. NAVAL HOSPITAL, YOKOSUKA, ON OCTOBER 18, 1951, AND THAT HE WAS TRANSFERRED ON NOVEMBER 2, 1951, TO THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, WHERE HE REPORTED ON NOVEMBER 7, 1951, WITH THE DIAGNOSIS " HYPERTENSIVE, CARDIOVASCULAR DISEASE, BENIGN 4930.' ON JANUARY 22, 1952, HE APPEARED BEFORE A BOARD OF MEDICAL SURVEY WHICH FOUND THAT HE WAS FIT FOR FULL DUTY AND UPON APPROVAL OF SUCH FINDING BY THE BUREAU OF MEDICINE AND SURGERY HE WAS RETURNED TO A FULL DUTY STATUS ON FEBRUARY 2, 1952. ALNAV 4, DATED JANUARY 29, 1952, AUTHORIZED THE TEMPORARY APPOINTMENT OF LIEUTENANT ELLER, AMONG OTHER OFFICERS, TO THE RANK OF LIEUTENANT COMMANDER, EFFECTIVE FEBRUARY 1, 1952, IN CONFORMITY WITH THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350 350J, SUBJECT TO MEETING THE PHYSICAL AND OTHER QUALIFICATIONS PRESCRIBED IN SUCH CASES.

ON FEBRUARY 20, 1952, LIEUTENANT ELLER APPEARED BEFORE A BOARD OF MEDICAL EXAMINERS TO DETERMINE HIS FITNESS FOR SUCH PROMOTION AND THAT BOARD IS REPORTED TO HAVE FOUND THAT HE WAS "NOT QUALIFIED FOR PROMOTION BY REASON OF HYPERTENSIVE CARDIOVASCULAR DISEASE AND ESSENTIAL HYPERTENSION.' HOWEVER, A WAIVER OF SAID PHYSICAL DISABILITY WAS RECOMMENDED IN VIEW OF THE FACT THAT THE BOARD OF MEDICAL EXAMINERS FURTHER FOUND THAT THERE HAD BEEN "NO SIGNIFICANT CHANGE, EXCEPT SLIGHT RISE IN BLOOD PRESSURE, SINCE APPEARANCE BEFORE A BOARD OF MEDICAL SURVEY ON 22 JANUARY 1952.' THEREAFTER THE CHIEF, BUREAU OF MEDICINE AND SURGERY ADVISED THE CHIEF OF NAVAL PERSONNEL, UNDER DATE OF APRIL 1, 1952, THAT IT WAS CONSIDERED "THE DEFECTS NOTED * * * ARE NOT SUFFICIENT TO DISQUALIFY THE SUBJECT OFFICER FOR THE PERFORMANCE OF HIS DUTIES AND FOR PROMOTION.' BASED ON THE FOREGOING RECOMMENDATION, THE CHIEF OF NAVAL PERSONNEL BY LETTER OF APRIL 7, 1952, AUTHORIZED THE OFFICER IN CHARGE, U.S. NAVAL ADVANCED BASE, TACTICAL TRAINING CENTER, DAVISVILLE, RHODE ISLAND, TO DELIVER TO LIEUTENANT ELLER HIS TEMPORARY APPOINTMENT AS A LIEUTENANT COMMANDER, PROVIDING THAT THE SUBJECT OFFICER WAS CONSIDERED BY HIS COMMANDING OFFICER AS MENTALLY, MORALLY, AND PROFESSIONALLY QUALIFIED.

HOWEVER, THE RECORD SHOWS THAT ON APRIL 4, 1952, LIEUTENANT ELLER WAS ADMITTED TO THE U.S. NAVAL HOSPITAL, NEWPORT, RHODE ISLAND, WITH DIAGNOSIS OF "HYPERTENSIVE CARDIOVASCULAR DISEASE" AND IT IS STATED THAT HE DID NOT RETURN TO A DUTY STATUS PRIOR TO THE DATE, AUGUST 1, 1952, OF HIS TRANSFER TO THE DISABILITY RETIRED LIST. YOUR LETTER FURTHER DISCLOSES THAT LIEUTENANT ELLER WAS "IN A PATIENT STATUS" AT THE TIME THE NOTIFICATION OF APRIL 7, 1952, FROM THE CHIEF OF NAVAL PERSONNEL WAS RECEIVED AND HENCE THAT HIS TEMPORARY APPOINTMENT TO THE RANK OF LIEUTENANT COMMANDER WAS SUSPENDED. ACCORDINGLY, YOU REQUEST TO BE ADVISED WHETHER HE IS ENTITLED TO RECEIVE RETIRED PAY BASED UPON THE RANK OF LIEUTENANT COMMANDER.

IN DECISION OF AUGUST 30, 1951, B-103324, TO WHICH REFERENCE IS MADE IN YOUR LETTER, THE EVIDENCE THERE OF RECORD SHOWED THAT WHILE HOSPITALIZED FOR A PHYSICAL DISABILITY--- WHICH LATER CONSTITUTED THE BASIS FOR HIS DISABILITY RETIREMENT--- THE OFFICER THERE CONCERNED WAS RECOMMENDED, AMONG OTHERS, FOR PROMOTION FROM LIEUTENANT (JG) TO LIEUTENANT BY A NAVY LINE SELECTION BOARD. THE FACTS IN THAT CASE DID NOT INDICATE THAT THE OFFICER WAS ORDERED OR THAT HE EVER APPEARED BEFORE A MEDICAL EXAMINING BOARD FOR A PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR SUCH PROMOTION; BUT THE RECORD DID SHOW THAT HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD TO DETERMINE HIS FITNESS TO REMAIN ON ACTIVE DUTY AND THAT AS A RESULT OF THE FINDINGS OF SAID PHYSICAL EVALUATION BOARD, HIS RETIREMENT ON ACCOUNT OF SAID PHYSICAL DISABILITY WAS APPROVED, EFFECTIVE APRIL 1, 1950. SINCE THE OFFICER'S PHYSICAL DISABILITY FOR WHICH HE WAS RETIRED WAS NOT FOUND TO EXIST AS THE RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS PROPOSED PROMOTION THE CONCLUSION WAS REQUIRED THAT HE DID NOT COME WITHIN THE SCOPE OF THE FIFTH PROVISO CONTAINED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D). HENCE, IT WAS HELD THAT HE WAS NOT ENTITLED TO RECEIVE RETIRED PAY BASED ON THE HIGHER RANK OF LIEUTENANT. THE FACTS IN THE DECISION OF AUGUST 26, 1952, B-103063, 32 COMP. GEN. 104, ALSO REFERRED TO IN YOUR LETTER, SHOWED THAT THE OFFICER THERE CONCERNED, A LIEUTENANT COMMANDER IN THE UNITED STATES NAVY, WAS ADMITTED TO A NAVAL HOSPITAL IN THE MONTH OF SEPTEMBER 1949, WITH THE DIAGNOSIS "PITUITARY BASOPHILISM"--- THE DISEASE FOR WHICH HE ULTIMATELY WAS RETIRED--- PRIOR TO THE DATE THAT HE WAS SELECTED FOR PROMOTION TO THE RANK OF COMMANDER BY SELECTION BOARD REPORT APPROVED NOVEMBER 1, 1949. THE RECORD IN THAT CASE FURTHER SHOWED THAT ON JANUARY 18, 1950, HE APPEARED BEFORE A CLINICAL BOARD, WHICH BOARD RECOMMENDED HIS APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD TO DETERMINE HIS FITNESS TO REMAIN ON ACTIVE DUTY. HOWEVER, PRIOR TO APPEARING BEFORE SUCH PHYSICAL EVALUATION BOARD HE WAS EXAMINED ON JANUARY 26, 1950, BY A BOARD OF MEDICAL EXAMINERS TO DETERMINE HIS FITNESS FOR PROMOTION TO THE RANK OF COMMANDER AND THAT BOARD FOUND HIM NOT PHYSICALLY QUALIFIED FOR SUCH PROMOTION. ON THE FOLLOWING DAY, JANUARY 27, 1950, HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD AND, ON THE BASIS OF THE FINDINGS OF SAID PHYSICAL EVALUATION BOARD, HE WAS PLACED ON THE RETIRED LIST OF THE NAVY BY REASON OF PERMANENT PHYSICAL DISABILITY, EFFECTIVE APRIL 1, 1950. IT WILL BE NOTED FROM THE FACTS ABOVE RELATED THAT WHEN THE OFFICER WAS EXAMINED BY THE BOARD OF MEDICAL EXAMINERS ON JANUARY 26, 1950, TO DETERMINE HIS FITNESS FOR PROMOTION, HIS PHYSICAL DISABILITY, ON ACCOUNT OF WHICH HE SUBSEQUENTLY WAS RETIRED, WAS ALREADY A MATTER OF RECORD. HENCE, AS STATED IN SAID DECISION, IT COULD NOT REASONABLY HAVE BEEN CONCLUDED THAT SAID PHYSICAL DISABILITY HAD BEEN FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH AFFECTING A PROMOTION WITHIN THE SCOPE OF THE FIFTH PROVISO IN SECTION 402 (D), SUPRA.

APPARENTLY IT IS BELIEVED THAT LIEUTENANT ELLER'S CASE MAY NOT COME WITHIN THE PURVIEW OF EITHER OF THE TWO DECISIONS, ABOVE REFERRED TO FOR THE REASON THAT ALTHOUGH THE PHYSICAL DISABILITY FOR WHICH HE HAS BEEN RETIRED IS SHOWN TO HAVE BEEN OF RECORD AS OF NOVEMBER 7, 1951, HE WAS RETURNED TO A FULL DUTY STATUS ON FEBRUARY 2, 1952, AS "FIT FOR FULL DUTY" AND THEREAFTER WAS FOUND NOT TO BE PHYSICALLY QUALIFIED FOR PROMOTION BY THE BOARD OF MEDICAL EXAMINERS ON FEBRUARY 20, 1952, ON ACCOUNT OF THE SAME PHYSICAL DISABILITY.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, SUPERSEDING PRIOR INCONSISTENT PROVISIONS OF LAW--- SEE DECISIONS OF AUGUST 30, 1951, AND AUGUST 26, 1952, ABOVE REFERRED TO--- IS IN PERTINENT PART AS FOLLOWS:

* * * A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * AT THE TIME OF HIS RETIREMENT * * * BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY * * * AT THE TIME OF RETIREMENT, * * * PROVIDED FURTHER, THAT IF THE PHYSICAL DISABILITY ENTITLING SUCH MEMBER TO DISABILITY RETIREMENT PAY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER SHALL BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER WOULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY, IF SUCH RANK, GRADE, OR RATING IS HIGHER THAN ANY OTHER RANK, GRADE, OR RATING UPON WHICH SUCH PAY IS HEREIN AUTHORIZED TO BE COMPUTED AND WHICH SUCH MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING: * * *

UNDER THE FOREGOING PROVISIONS OF LAW, IF THE PHYSICAL DISABILITY WHICH ENTITLES A MEMBER OF THE UNIFORMED SERVICES TO DISABILITY RETIREMENT PAY IS "FOUND TO EXIST" AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER IS REQUIRED TO BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER COULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY IF SUCH RANK, GRADE, OR RATING IS HIGHER THAN ANY OTHER RANK, GRADE, OR RATING UPON WHICH SUCH PAY IS THEREIN AUTHORIZED TO BE COMPUTED AND WHICH SUCH MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING. THE FACTS ABOVE SET FORTH DISCLOSE THAT LIEUTENANT ELLER'S PHYSICAL DISABILITY, WHICH ENTITLES HIM TO DISABILITY RETIREMENT PAY, EXISTED AND WAS OF RECORD WHEN HE REPORTED TO THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, ON NOVEMBER 7, 1951. THE SUBSEQUENT FINDING BY A BOARD OF MEDICAL SURVEY ON JANUARY 22, 1952, THAT HE WAS THEN FIT FOR FULL DUTY--- WHILE INDICATING THAT LIEUTENANT ELLER'S PHYSICAL CONDITION HAD IMPROVED TO THE EXTENT THAT HIS RETURN TO FULL DUTY STATUS ON FEBRUARY 2, 1952, WAS AUTHORIZED--- DOES NOT NEGATIVE THE EXISTENCE AND RECORD OF SAID PHYSICAL DISABILITY PRIOR TO FEBRUARY 20, 1952, THE DATE ON WHICH HE APPEARED BEFORE A BOARD OF MEDICAL EXAMINERS FOR PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR TEMPORARY PROMOTION TO THE RANK OF LIEUTENANT COMMANDER. IN THAT CONNECTION IT MAY BE NOTED THAT THE BOARD OF MEDICAL EXAMINERS IN FINDING THAT LIEUTENANT ELLER WAS NOT QUALIFIED FOR PROMOTION BY REASON OF ,HYPERTENSIVE CARDIOVASCULAR DISEASE AND ESSENTIAL HYPERTENSION" BASED ITS RECOMMENDATION FOR WAIVER OF SUCH PHYSICAL DISABILITY UPON THE FACT THAT THERE HAD BEEN "NO SIGNIFICANT CHANGE, EXCEPT SLIGHT RISE IN BLOOD PRESSURE, SINCE APPEARANCE BEFORE A BOARD OF MEDICAL SURVEY ON 22 JANUARY 2.' ACCORDINGLY, INASMUCH AS LIEUTENANT ELLER'S PHYSICAL DISABILITY WHICH ENTITLES HIM TO RECEIVE DISABILITY RETIREMENT PAY IS SHOWN TO HAVE BEEN OF RECORD PRIOR TO FEBRUARY 22, 1952, DATE OF HIS APPEARANCE BEFORE A BOARD OF MEDICAL EXAMINERS TO DETERMINE HIS FITNESS FOR PROMOTION, THE SAID PHYSICAL DISABILITY EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT OR TEMPORARY PROMOTION, AND, THEREFORE, LIEUTENANT ELLER'S STATUS DOES NOT COME WITHIN THE SCOPE OF THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. MOREOVER, ASIDE FROM THE FOREGOING, IT DOES NOT APPEAR THAT LIEUTENANT ELLER'S ELIGIBILITY FOR TEMPORARY PROMOTION, UNDER THE ACT OF JULY 24, 1941, SUPRA, WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING. HENCE, EVEN IF HIS PHYSICAL DISABILITY HAD BEEN FOUND TO EXIST DURING THE PHYSICAL EXAMINATION GIVEN TO DETERMINE HIS FITNESS FOR TEMPORARY PROMOTION, THERE WOULD BE PRESENTED NO PROPER BASIS ON WHICH TO GRANT HIM THE BENEFITS OF THE SAID FIFTH PROVISO.

ACCORDINGLY, IT IS CONCLUDED THAT THE SUBJECT OFFICER IS ENTITLED TO THE RETIRED PAY OF A LIEUTENANT ONLY.