B-113520, DECEMBER 8, 1953, 33 COMP. GEN. 253

B-113520: Dec 8, 1953

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PAY - RETIRED - DISABILITY RETIREMENT PAY - MEDICAL SURVEY REVIEW BOARD'S AUTHORITY A NAVAL RESERVE OFFICER WHO WAS RELEASED FROM ACTIVE DUTY WITHOUT PAY PURSUANT TO THE FINDING OF A MEDICAL SURVEY BOARD THAT THE OFFICER WAS UNFIT FOR DUTY. WITH NO FINDING THAT THE OFFICER WAS PHYSICALLY DISABLED FOR PERFORMANCE OF DUTY. WAS NOT RELEASED FROM ACTIVE SERVICE WITHOUT PAY . THERE IS AUTHORITY OF LAW TO CREDIT FORMER LIEUTENANT (JG) WAYNE E. WAS TEMPORARILY APPOINTED A LIEUTENANT (JG) ON MAY 1. STATES THAT HE WAS ADMITTED TO THE U.S. WHICH HAD PERSISTED SINCE MAY 1944 AND WHICH WAS A RECURRENCE OF A SIMILAR RASH WHICH HE HAD IN 1937. HIS CONDITION WAS DIAGNOSED AS PSORIASIS NO. 1959 AND TREATMENT WAS MILD BORIC ACID AND ALUMINUM ACETATE OINTMENTS AND ANTIPYRETIC LOTION AFFORDED SUFFICIENT RELIEF SO THAT " FURTHER HOSPITALIZATION IS NOT NECESSARY AT THIS TIME.'.

B-113520, DECEMBER 8, 1953, 33 COMP. GEN. 253

PAY - RETIRED - DISABILITY RETIREMENT PAY - MEDICAL SURVEY REVIEW BOARD'S AUTHORITY A NAVAL RESERVE OFFICER WHO WAS RELEASED FROM ACTIVE DUTY WITHOUT PAY PURSUANT TO THE FINDING OF A MEDICAL SURVEY BOARD THAT THE OFFICER WAS UNFIT FOR DUTY, BUT WITH NO FINDING THAT THE OFFICER WAS PHYSICALLY DISABLED FOR PERFORMANCE OF DUTY, WAS NOT RELEASED FROM ACTIVE SERVICE WITHOUT PAY ,FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A BOARD OF MEDICAL SURVEY" WITHIN THE CONTEMPLATION OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SO AS TO GIVE A REVIEW BOARD, ESTABLISHED PURSUANT TO SUCH ACTION, JURISDICTION OF THE CASE. SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, WHICH DIRECTS THE SECRETARY OF THE DEPARTMENT CONCERNED TO ESTABLISH MEDICAL SURVEY REVIEW BOARDS TO REVIEW CASES OF OFFICERS RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY, REQUIRES THAT THE PROCEEDINGS AND DECISIONS OF THE BOARD OF REVIEW BE LAID BEFORE THE PRESIDENT "FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE," AND THEREFORE THE SECRETARY OF THE DEPARTMENT CONCERNED MAY NOT, IN THE ABSENCE OF ORDERS BY THE PRESIDENT, REFER A CASE OF THIS NATURE TO SUCCESSIVE PHYSICAL EVALUATION BOARDS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COMMANDER N. GRAUEL, DEPARTMENT OF THE NAVY, DECEMBER 8, 1953:

BY LETTER OF JANUARY 19, 1953, THE ASSISTANT SECRETARY OF THE NAVY FOR AIR FORWARDED YOUR LETTER DATED NOVEMBER 14, 1952, REQUESTING DECISION WHETHER, IN THE SITUATION PRESENTED, THERE IS AUTHORITY OF LAW TO CREDIT FORMER LIEUTENANT (JG) WAYNE E. BARBER, UNITED STATES NAVAL RESERVE, WITH RETIREMENT PAY EFFECTIVE AUGUST 1, 1952.

IT APPEARS THAT THE FORMER OFFICER ACCEPTED AN APPOINTMENT AS ENSIGN, UNITED STATES NAVAL RESERVE, ON MARCH 4, 1943; REPORTED FOR DUTY THE SAME DAY; AND WAS TEMPORARILY APPOINTED A LIEUTENANT (JG) ON MAY 1, 1944, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603. A REPORT OF MEDICAL SURVEY DATED MAY 9, 1945, STATES THAT HE WAS ADMITTED TO THE U.S. NAVAL HOSPITAL, NNMC, BETHESDA, MARYLAND, ON MARCH 2, 1945, COMPLAINING OF A RASH ON THE LEGS, THIGHS, EXTENSOR SURFACES OF THE ELBOWS, AND SCALP, WHICH HAD PERSISTED SINCE MAY 1944 AND WHICH WAS A RECURRENCE OF A SIMILAR RASH WHICH HE HAD IN 1937. HIS CONDITION WAS DIAGNOSED AS PSORIASIS NO. 1959 AND TREATMENT WAS MILD BORIC ACID AND ALUMINUM ACETATE OINTMENTS AND ANTIPYRETIC LOTION AFFORDED SUFFICIENT RELIEF SO THAT " FURTHER HOSPITALIZATION IS NOT NECESSARY AT THIS TIME.' MR. BARBER DOES NOT APPEAR TO HAVE BEEN PHYSICALLY DISABLED AS A RESULT OF HIS CONDITION, THE BOARD OF MEDICAL SURVEY REPORTING IN THAT REGARD ONLY A FEELING THAT THERE WOULD BE OTHER EXACERBATIONS,"SOME OF WHICH MAY PROVE DISABLING.' THE BOARD EXPRESSED THE OPINION THAT HE HAD A CHRONIC SKIN DISEASE WHICH WAS UNSIGHTLY AND NOT CONDUCIVE TO GOOD MORALE OF OTHER PERSONNEL AND, THEREFORE, THAT HE SHOULD BE RELEASED FROM ACTIVE DUTY. THE BOARD FOUND HIM PERMANENTLY " UNFIT FOR SERVICE" AND RECOMMENDED THAT HE BE RELEASED FROM ACTIVE DUTY IN THE U.S. NAVAL RESERVE. IN THIS RESPECT THE BOARD FOUND SPECIFICALLY THAT THE DISEASE WAS NOT INCURRED IN LINE OF DUTY; EXISTED PRIOR TO APPOINTMENT; AND WAS NOT AGGRAVATED BY SERVICE. THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY APPROVED SUCH RECOMMENDATION AND FURTHER RECOMMENDED THAT HE BE DISCHARGED FROM THE U.S. NAVAL RESERVE. THE OFFICER WAS HONORABLY DISCHARGED AUGUST 7, 1945.

OVER FIVE YEARS LATER, ON DECEMBER 1, 1950, APPARENTLY IN ACCORDANCE WITH A PETITION BY MR. BARBER, A NAVAL MEDICAL SURVEY REVIEW BOARD WAS CONVENED IN THE CASE 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, AS FOLLOWS (QUOTING 38 U.S.C. 693I):

(A) THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, FROM TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED FROM THE MEDICAL CORPS OF THE ARMY OR NAVY, OR FROM THE PUBLIC HEALTH SERVICE, AS THE CASE MAY BE. IT SHALL BE THE DUTY OF ANY SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE SERVICE RECORDS RELATING TO THE OFFICER REQUESTING SUCH REVIEW, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH OFFICER. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE OFFICER REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD OF REVIEW IN PERSON OR BY COUNSEL. IN CARRYING OUT ITS DUTIES UNDER THIS SECTION SUCH BOARD OF REVIEW SHALL HAVE THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED. THE PROCEEDINGS AND DECISIONS OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.

THE NAVAL MEDICAL SURVEY REVIEW BOARD CONFIRMED THE FINDINGS AS SET OUT IN THE REPORT OF THE BOARD OF MEDICAL SURVEY AND RECOMMENDED AGAINST THIS FORMER OFFICER'S APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD. THE RECORD OF THE PROCEEDINGS OF THE REVIEW BOARD WAS TRANSMITTED TO THE SECRETARY OF THE NAVY AND BY HIM (THE ASSISTANT SECRETARY OF THE NAVY FOR AIR) LAID BEFORE THE PRESIDENT FOR "HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE" WITH A RECOMMENDATION THAT THE PROCEEDINGS BE APPROVED, THE FINDINGS AND RECOMMENDATION BE DISAPPROVED AND MR. BARBER BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD, SUCH BOARD TO LIMIT ITS FINDINGS TO THE SCOPE OF THE PHYSICAL DISABILITY RETIREMENT LAWS EXISTING ON THE DAY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. ACTION BY THE PRESIDENT WAS IN ACCORDANCE WITH THE RECOMMENDATION OF THE SECRETARY AND THE FORMER OFFICER APPEARED BEFORE A PHYSICAL EVALUATION BOARD. WHILE NOT SHOWN, PRESUMABLY THE ACTION OF SUCH PHYSICAL EVALUATION BOARD WAS SIMILAR TO THAT OF THE NAVAL MEDICAL SURVEY REVIEW BOARD BECAUSE THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, EXPRESSING DOUBT AS TO THE REASONABLENESS OF ITS FINDINGS, CAUSED THE RECORD OF ITS PROCEEDINGS TO BE FORWARDED TO THE PHYSICAL DISABILITY APPEAL BOARD, CONSTITUTED FOR THE PURPOSE OF THIS CASE AS A PHYSICAL EVALUATION BOARD, FOR PROCEEDINGS DE NOVO. THIS SECOND PHYSICAL EVALUATION BOARD FOUND (1) THAT MR. BARBER WAS PERMANENTLY DISABLED FOR ACTIVE SERVICE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY AND (2) THAT HIS DISABILITY WAS SUFFERED WHILE EMPLOYED ON ACTIVE DUTY AND IN LINE OF DUTY. SUCH FINDINGS WERE REVIEWED BY THE PHYSICAL REVIEW COUNCIL WHICH RECOMMENDED APPROVAL OF FINDING (1) AND DISAPPROVAL OF FINDING (2) FOR THE REASON THAT IT WAS NOT SUPPORTED BY THE EVIDENCE. ON JULY 15, 1952, NOTWITHSTANDING THE ADVERSE RECOMMENDATION OF THE PHYSICAL REVIEW COUNCIL AS TO FINDING (2), THE SECRETARY OF THE NAVY (PRESUMABLY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR) APPROVED THE PROCEEDINGS AND FINDINGS OF THE SECOND PHYSICAL EVALUATION BOARD AND DIRECTED THAT THE FORMER OFFICER BE PAID THE RETIRED PAY AUTHORIZED FOR A LIEUTENANT (JG) BY THE LAWS IN EFFECT PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949. MR. BARBER WAS NOTIFIED OF SUCH ACTION BY LETTER DATED AUGUST 20, 1952, OF THE CHIEF OF NAVAL PERSONNEL IN WHICH HE ALSO WAS ADVISED THAT HIS DISABILITY WAS RATED ZERO PERCENT IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITY IN USE BY THE VETERANS ADMINISTRATION. SUCH RATING APPARENTLY RELATED TO THE PROVISION IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, THAT PERSONS ELECTING TO TAKE DISABILITY RETIREMENT PAY UNDER THAT ACT INSTEAD OF PRIOR LAW WOULD HAVE THEIR PERCENTAGE OF DISABILITY DETERMINED IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION.

THE BOARD OF MEDICAL SURVEY'S RECOMMENDATION OF RELEASE FROM ACTIVE SERVICE IN THIS CASE WAS BASED UPON ITS FINDING THAT HIS FORMER OFFICER WAS " UNFIT FOR SERVICE," APPARENTLY ONLY BECAUSE HIS DISEASE WAS UNSIGHTLY TO OTHERS AND NOT CONDUCIVE TO GOOD MORALE. THE RECORD BEFORE THIS OFFICE DOES NOT DISCLOSE THAT THE BOARD MADE ANY DECISION THAT HE WAS PHYSICALLY DISABLED FOR THE PERFORMANCE OF DUTY. IT WENT NO FURTHER IN THAT RESPECT THAN TO EXPRESS AN OPINION THAT PERHAPS THERE WOULD BE OTHER EXACERBATIONS, SOME OF WHICH MIGHT PROVE DISABLING. SUCH CIRCUMSTANCES, IF NOT CLEARLY NEGATIVING SUCH A CONCLUSION, PLAINLY GIVE RISE TO SUBSTANTIAL DOUBT THAT THE OFFICER WAS RELEASED FROM ACTIVE SERVICE, WITHOUT PAY,"FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A BOARD OF MEDICAL SURVEY" WITHIN THE CONTEMPLATION OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, QUOTED ABOVE, TO GIVE THE REVIEW BOARD JURISDICTION OF THE CASE. THAT DOUBT IS NOT LESSENED BY EVIDENCE OTHER THAN THE FINDINGS OF THE MEDICAL SURVEY BOARD, TENDING TO SHOW THE OFFICER'S PHYSICAL CONDITION AT THE TIME OF RELEASE OR THEREAFTER. IF THE OFFICER WAS NOT RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF SUCH A BOARD, THE SAID SECTION 302 (A) WAS NOT FOR APPLICATION IN HIS CASE.

HOWEVER, EVEN ASSUMING THAT THIS CASE COMES UNDER THE SAID SECTION 302 (A), IT IS NOT CLEAR THAT THE FORMER OFFICER WOULD BE ENTITLED TO RECEIVE RETIRED PAY. SUCH LAW REQUIRES THAT THE PROCEEDINGS AND DECISIONS OF THE BOARD OF REVIEW BE LAID BEFORE THE PRESIDENT "FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.' THE PRESIDENT'S ORDERS APPARENTLY WERE THAT THE OFFICER APPEAR BEFORE A PHYSICAL EVALUATION BOARD, NOT BEFORE A SUCCESSION OF PHYSICAL EVALUATION BOARDS, AND, REASONABLY, IN THE ABSENCE OF FURTHER ORDERS BY THE PRESIDENT, THE SECTION 302 (A) PROCEEDINGS WERE CONCLUDED WITH THE FINDINGS AND DECISION OF THE FIRST PHYSICAL EVALUATION BOARD. TO CONCLUDE OTHERWISE WOULD RECOGNIZE A RIGHT IN THE SECRETARY OF THE DEPARTMENT CONCERNED TO CONTINUE TO REFER CASES OF THIS NATURE TO SUCCESSIVE PHYSICAL EVALUATION BOARDS UNTIL FINDINGS AND DECISION SATISFACTORY TO HIM ARE MADE AND THEN TO DIRECT THE PAYMENT OF RETIRMENT PAY, IN HIS DISCRETION, WITHOUT APPROVAL BY THE PRESIDENT. SUCH DISCRETION OR ADMINISTRATIVE CONTROL BY THE SECRETARY OF THE PROCEEDINGS IS NOT INDICATED BY THE LANGUAGE OR PURPOSE OF THE SAID SECTION 302 (A), WHICH GIVES THE PRESIDENT, AND NOT THE SECRETARY, THE AUTHORITY TO MAKE THE FINAL DECISION.

IN VIEW OF THE SUBSTANTIAL DOUBT (1) THAT THE OFFICER WAS RELEASED FROM ACTIVE SERVICE FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A BOARD OF MEDICAL SURVEY AS REQUIRED BY SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 FOR PROCEEDINGS THEREUNDER, AND (2) THAT THE SECRETARY OF THE NAVY WAS AUTHORIZED TO REFER THE CASE TO A SECOND PHYSICAL EVALUATION BOARD WITHOUT FURTHER ORDERS BY THE PRESIDENT, I AM CONSTRAINED TO HOLD THAT, IN THE ABSENCE OF A JUDICIAL DETERMINATION TO SUCH EFFECT, PAYMENT OF RETIREMENT PAY IN THIS CASE IS NOT AUTHORIZED.