B-114778, AUGUST 20, 1953, 33 COMP. GEN. 83

B-114778, AUGUST 20, 1953, 33 COMP. GEN. 83

RETIRED PAY - DISABILITY RETIREMENT PAY - DISABILITY REVIEW BOARD'S AUTHORITY SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, WHICH AUTHORIZES THE ESTABLISHMENT OF BOARDS OF REVIEW "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OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARDS," WAS NOT REPEALED OR MODIFIED BY THE CAREER COMPENSATION ACT OF 1949, EFFECTIVE OCTOBER 1, 1949, AND THEREFORE, THE BENEFITS PRESCRIBED IN SECTION 302 CONTINUE TO ACCRUE TO ELIGIBLE OFFICERS EVEN THOUGH THEIR ACTIVE SERVICE WAS TERMINATED AFTER SEPTEMBER 30, 1949.

ACTING COMPTROLLER GENERAL MORROW TO THE SECRETARY OF DEFENSE, AUGUST 20, 1953:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1953, WITH ENCLOSURES, REQUESTING DECISIONS, INSOFAR AS THE RIGHT TO DISABILITY RETIREMENT PAY IS CONCERNED, AS TO THE APPLICABILITY OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 6931, TO RETIREMENTS AND RELEASES FROM ACTIVE DUTY ON AND AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802.

AN ILLUSTRATIVE CASE WHICH IS SET FORTH IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 64, RECEIVED WITH YOUR LETTER, IS THAT OF AN OFFICER ON EXTENDED ACTIVE DUTY WHO IN MARCH 1952 WAS FOUND BY A PHYSICAL EVALUATION BOARD TO BE UNFIT FOR FURTHER MILITARY SERVICE BY REASON OF PHYSICAL DISABILITY DETERMINED TO HAVE BEEN IN EXISTENCE PRIOR TO HIS MILITARY SERVICE. FOLLOWING ACTION IN THE CASE OF THE PHYSICAL REVIEW BOARD AND THE SECRETARY OF THE AIR FORCE, THE OFFICER CONCERNED WAS SEPARATED FROM THE SERVICE ON MAY 8, 1952, FOR PHYSICAL DISABILITY WITHOUT DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY.

IT IS STATED THAT SUCH OFFICER SUBSEQUENTLY APPLIED FOR REVIEW OF HIS CASE UNDER THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AND THAT THE DECISION OF THE DISABILITY REVIEW BOARD ESTABLISHED PURSUANT TO SAID STATUTORY PROVISIONS IS "TO THE EFFECT THAT THE DISABILITY IS SERVICE CONNECTED AND THAT THE OFFICER IS ENTITLED TO DISABILITY RETIREMENT PAY.' THE QUESTION PRESENTED IS WHETHER THE PROVISIONS OF SECTION 302, SUPRA, ARE LIMITED IN THEIR APPLICATION TO OFFICERS WHO WERE RELEASED (OR RETIRED) FROM ACTIVE SERVICE WITHOUT PAY BY REASON OF PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, OR WHETHER THE PROVISIONS OF SECTION 302 ARE ALSO APPLICABLE TO OFFICERS WHOSE RELEASE FROM ACTIVE SERVICE WITHOUT PAY BY REASON OF PHYSICAL DISABILITY OCCURS AFTER SEPTEMBER 30, 1949.

SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, SUPRA, AUTHORIZES THE ESTABLISHMENT OF BOARDS OF REVIEW "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.' IN CARRYING OUT ITS DUTIES UNDER THIS SECTION A BOARD OF REVIEW HAS "THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED.' IT IS FURTHER PROVIDED THAT THE PROCEEDINGS AND DECISION 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 THE UNIFORMED SERVICES CONCERNED AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.

THE SAID SECTION 302, AS AMENDED, WAS NOT REPEALED OR MODIFIED BY THE CAREER COMPENSATION ACT OF 1949 AND REMAINS IN FULL FORCE AND EFFECT. HENCE, THE BENEFITS PRESCRIBED IN SUCH SECTION CONTINUE TO ACCRUE TO ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE WITHOUT PAY BY REASON OF PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD IRRESPECTIVE OF WHETHER THE TERMINATION OF HIS ACTIVE SERVICE OCCURRED PRIOR OR SUBSEQUENT TO OCTOBER 1, 1949.

TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 PROPERLY IS TO BE VIEWED AS ESTABLISHING, EFFECTIVE OCTOBER 1, 1949, A COMPLETELY NEW AND DIFFERENT SYSTEM WITH RESPECT TO THE DISPOSITION OF MEMBERS OF THE UNIFORMED SERVICES WHO BECOME PHYSICALLY DISABLED, AND AS SUPERSEDING THE STATUTORY PROVISIONS THERETOFORE IN EFFECT AUTHORIZING PHYSICAL DISABILITY RETIREMENTS FOR SUCH MEMBERS. SEE DECISIONS OF APRIL 25, 1951, AND MARCH 5, 1952, 30 COMP. GEN. 409, AND 31 COMP. GEN. 444, RESPECTIVELY, WHICH ARE CITED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 64. SUCH NEW STATUTORY PROVISIONS, HOWEVER, DO NOT LIMIT OR CURTAIL IN ANY MANNER THE JURISDICTION OR SCOPE OF REVIEW BOARDS PROPERLY ESTABLISHED PURSUANT TO SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, SUPRA. ACCORDINGLY, AS INDICATED ABOVE, IT IS THE VIEW OF THIS OFFICE THAT, INSOFAR AS THE RIGHT TO RETIREMENT PAY IS INVOLVED, OFFICERS WHOSE STATUS IS SUCH AS OTHERWISE TO BRING THEM WITHIN THE SCOPE OF THE SAID SECTION 302 ARE ENTITLED TO A REVIEW UNDER SUCH SECTION, SUBJECT TO ITS CONDITIONS EVEN THOUGH THEIR ACTIVE SERVICE HAS BEEN OR MAY BE TERMINATED AFTER SEPTEMBER 30, 1949.