B-113517, APRIL 1, 1953, 32 COMP. GEN. 421

B-113517, APRIL 1, 1953, 32 COMP. GEN. 421

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE THE MEDICAL SURVEY REVIEW BOARD ESTABLISHED UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, TO REVIEW CASES OF MEMBERS RETIRED FOR "PHYSICAL DISABILITY," HAS NO JURISDICTION TO REVIEW THE CASE OF A NAVAL RESERVE OFFICER WHO PREVIOUSLY WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY, NOTWITHSTANDING THAT EVIDENCE INDICATES OFFICERS MAY HAVE BEEN SUFFERING FROM A DISEASE AT THE TIME OF SUCH RELEASE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 1, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1953, WITH ENCLOSURES, WHEREIN DECISION IS REQUESTED REGARDING THE RIGHT OF LIEUTENANT WILLIAM M. SMITH ( CHC), UNITED STATES NAVAL RESERVE, TO DISABILITY RETIREMENT PAY.

IT APPEARS THAT ON SEPTEMBER 14, 1946, LIEUTENANT SMITH WAS RELEASED FROM ACTIVE DUTY HAVING PREVIOUSLY BEEN EXAMINED ON JULY 3, 1946, AND PHYSICALLY QUALIFIED FOR SUCH RELEASE. SOMETIME IN 1951 HE APPEARED BEFORE A NAVAL MEDICAL SURVEY 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 APPARENTLY RECOMMENDED THAT HE BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. SUCH RECOMMENDATION WAS APPROVED. HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD WHICH FOUND THAT HE WAS PERMANENTLY DISABLED FOR ACTIVE SERVICE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY AND THAT HIS DISABILITY WAS INCURRED IN LINE OF DUTY. ON JULY 29, 1952, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND FINDINGS OF THE BOARD AND DIRECTED THAT HE BE RETIRED.

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

* * * 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. * * *

WHILE IT IS STATED ON THE ORDERS RELEASING LIEUTENANT SMITH FROM ACTIVE DUTY THAT HE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR SUCH RELEASE, THE JUDGE ADVOCATE GENERAL OF THE NAVY IN AN OPINION DATED JANUARY 13, 1953, ENCLOSED WITH YOUR LETTER, NOTES THAT SUCH ORDERS ARE ONLY PRIMA FACIE EVIDENCE OF THE REASON FOR THE MEMBER'S RELEASE AND STATES THAT THERE IS OTHER EVIDENCE TO INDICATE THAT LIEUTENANT SMITH'S RELEASE FROM ACTIVE DUTY WAS MOTIVATED BY A FINDING THAT HE WAS PHYSICALLY DISABLED. IN THAT CONNECTION, IT APPEARS THAT THE OFFICER WAS ADMITTED TO A NAVAL HOSPITAL ON JANUARY 24, 1946, AND IT IS STATED THAT ON MAY 2, 1946, A BOARD OF MEDICAL SURVEY FOUND THAT THE OFFICER WAS UNFIT FOR DUTY, AND THAT THE PROBABLE FUTURE DURATION OF HIS DISABILITY WAS THREE MONTHS. FURTHER TREATMENT AND HOSPITALIZATION WAS RECOMMENDED. IT IS FURTHER STATED THAT THERE IS AN ENTRY IN HIS MEDICAL RECORD DATED JUNE 27, 1946, TO THE EFFECT THAT THE OFFICER ,DESIRED TO BE SEPARATED SO THAT HE COULD START A NEW JOB," AND THAT HIS CONDITION WAS SATISFACTORY FOR RELEASE ALTHOUGH THERE WAS STILL EVIDENCE OF PATHOLOGY. IN ADDITION, IT IS INDICATED THAT THERE IS EVIDENCE IN THE RECORD IN THE FORM OF AN AFFIDAVIT OF ALVIN E. NEWAM, M.D.--- PRESUMABLY A PRIVATE PHYSICIAN--- TO THE EFFECT THAT ON AUGUST 13, 1946, WHILE THE OFFICER WAS ON TERMINAL LEAVE, A DIAGNOSIS OF INTERSTITIAL CYSTITIS WAS ESTABLISHED.

ON THE BASIS OF THE FOREGOING, THE JUDGE ADVOCATE GENERAL CONCLUDED THAT IT IS CLEARLY ESTABLISHED THAT LIEUTENANT SMITH WAS PHYSICALLY DISABLED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY AND THAT IT CAN BE CONSIDERED THAT SUCH RELEASE FROM ACTIVE DUTY WAS MOTIVATED BY THE FINDING OF THE MEDICAL SURVEY BOARD ON MAY 2, 1946, THAT HE WAS UNFIT FOR DUTY. HOWEVER, THIS OFFICE IS UNABLE TO CONCUR WITH THAT OPINION SINCE, ACTUALLY, THE RECORD SEEMS CLEARLY TO ESTABLISH THAT THE DISABILITY OF THE OFFICER ON MAY 2, 1946, DID NOT IN ANY WAY INFLUENCE THE ACTION TAKEN IN RELEASING HIM FROM ACTIVE DUTY. ON THE CONTRARY, HIS RELEASE FROM ACTIVE DUTY APPEARS TO HAVE BEEN ACCOMPLISHED SOLELY AT HIS REQUEST AND FOR HIS PERSONAL CONVENIENCE. WHILE HE WAS FOUND TO BE PHYSICALLY UNFIT FOR ACTIVE DUTY ON MAY 2, 1946, HIS DISABILITY THEN WAS CONSIDERED TO BE OF A TEMPORARY NATURE AND THE FACT REMAINS THAT AFTER APPROXIMATELY TWO MONTHS' FURTHER MEDICAL TREATMENT AS RECOMMENDED BY THE BOARD, HE WAS EXAMINED AND FOUND TO BE PHYSICALLY UNFIT FOR ACTIVE DUTY. SEE LEMLY V. UNITED STATES, 91 FED. SUPP. 743. UNDER THE CIRCUMSTANCES, THE CONCLUSION IS REQUIRED THAT THE NAVAL MEDICAL SURVEY REVIEW BOARD HAD NO JURISDICTION TO CONSIDER LIEUTENANT SMITH'S CASE AND ACCORDINGLY, HE IS NOT ENTITLED TO DISABILITY RETIREMENT PAY. SEE 30 COMP. GEN. 409.