B-118504, APRIL 23, 1954, 33 COMP. GEN. 518

B-118504, APRIL 23, 1954, 33 COMP. GEN. 518

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE ACTION BY THE SECRETARY OF THE ARMY TAKEN PRIOR TO OCTOBER 1, 1949, WHICH DETERMINED THAT A NON-REGULAR ARMY OFFICER RELEASED FROM EXTENDED ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO OCTOBER 1, 1949, HAD BECOME PERMANENTLY INCAPACITATED FOR ACTIVE DUTY FROM DISEASE OR INJURY SUFFERED IN LINE OF DUTY, AS A RESULT OF INCIDENT OF SERVICE, WHILE EMPLOYED ON EXTENDED ACTIVE DUTY, MAY BE CONSIDERED AS PROVIDING BASIS FOR PAYMENT OF DISABILITY RETIREMENT PAY UNDER ACT OF APRIL 3, 1939, AS AMENDED, NOTWITHSTANDING DETERMINATION WAS BASED ON FINDINGS OF DISABILITY REVIEW BOARD WHICH HAD NO JURISDICTION IN CASE UNDER THE CIRCUMSTANCES. THE ARMY DISABILITY REVIEW BOARD ESTABLISHED UNDER SECTION 302 (A), SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, IS WITHOUT JURISDICTION IN A CASE IN WHICH RELEASE FROM ACTIVE DUTY WAS NOT EFFECTED BY REASON OF PHYSICAL DISABILITY, AND THEREFORE A REVIEW BY THE BOARD PRIOR TO OCTOBER 1, 1949, MAY NOT BE CONSIDERED AS AN EFFECTIVE DETERMINATION OF RIGHTS UNDER SECTION 302 (A) OF THE ACT. ADMINISTRATIVE ACTION CURRENTLY TAKEN, EXCEPT ACTION TO MAKE APPROPRIATE CORRECTIONS IN MILITARY RECORDS AS AUTHORIZED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AUTHORIZED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, CANNOT CONFER A RIGHT TO RETROACTIVE RETIREMENT PAY COVERING THE PERIOD FROM THE DATE OF THE OFFICER'S RELIEF FROM ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, TO THE EFFECTIVE DATE OF THE CERTIFICATION OF HIS RETIREMENT PAY RIGHTS TO THE VETERANS ADMINISTRATION. DISABILITY RETIREMENT PAY AWARDED UNDER THE ACT OF APRIL 3, 1939, AS AMENDED, IS IN THE NATURE OF A PENSION, ACCRUING AS IT DOES TO PERSONS MEETING STIPULATED CONDITIONS WITHOUT REGARD TO THEIR BEING RETIRED OR REMAINING IN THE SERVICE, AND THEREFORE THE UNIFORM RETIREMENT DATE ACT OF 1930--- WHICH PROVIDES FOR RETIREMENT PAY TO TAKE EFFECT ONLY ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE--- HAS NO APPLICATION TO SUCH RETIREMENT PAY.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 23, 1954:

REFERENCE IS MADE TO LETTER DATED JANUARY 27, 1954, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON TWO QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 81, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, CONCERNING THE ENTITLEMENT OF CERTAIN NON-REGULAR OFFICERS OF THE ARMY TO DISABILITY RETIREMENT PAY UNDER THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, WHICH IS AS OLLOWS:

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OR THE AIR FORCE OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, OR THE REGULAR AIR FORCE WHO---

(1) IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED, SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSION, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY OR THE REGULAR AIR FORCE.

THE QUESTIONS, AS PRESENTED IN COMMITTEE ACTION NO. 81, ARE AS FOLLOWS:

QUESTION 1

MAY IT BE PRESUMED IN THE CASE OF A NON-REGULAR OFFICER WHO HAS BEEN RELEASED FROM EXTENDED ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO 1 OCTOBER 1949, AND WHO HAS APPEALED HIS CASE AND HAD IT REVIEWED PRIOR TO 1 OCTOBER 1949 BY THE ARMY DISABILITY REVIEW BOARD ESTABLISHED UNDER THE PROVISIONS OF SECTION 302, SERVICEMEN'S READJUSTMENT ACT OF 1944 (58 STAT. 287), AS AMENDED (38 U.S.C. 693I), THAT THE MENTIONED BOARD IN CONSIDERING HIS CASE ACTED UNDER THE GENERAL DISCRETIONARY AUTHORITY PLACED IN THE SECRETARY OF THE ARMY BY THE PROVISIONS OF THE LAST PROVISO OF SECTION 5, ACT OF 3 APRIL 1939 (53 STAT. 557), AS AMENDED (10 U.S.C. 456), SO THAT ITS FINDINGS THAT THE OFFICER IS ENTITLED TO DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THE LAST MENTIONED ACT MAY PROVIDE THE BASIS FOR THE PAYMENT OF DISABILITY RETIREMENT PAY?

QUESTION 2

IF YOUR ANSWER TO THE FOREGOING QUESTION IS IN THE AFFIRMATIVE, AND SUCH FINDINGS BY AN ARMY DISABILITY REVIEW BOARD ESTABLISH THAT AN OFFICER IS ENTITLED TO DISABILITY RETIREMENT PAY, FROM WHAT DATE WOULD ENTITLEMENT TO RETIRED PAY ACCRUE?

SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I, PROVIDES THAT:

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 OR 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 DECISION 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 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 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.

IT IS PLAIN THAT THE ARMY DISABILITY REVIEW BOARD ESTABLISHED UNDER THE ABOVE PROVISIONS IS WITHOUT JURISDICTION IN A CASE IN WHICH RELEASE FROM ACTIVE DUTY WAS NOT EFFECTED BY REASON OF PHYSICAL DISABILITY. HENCE A REVIEW BY SAID BOARD, MADE UNDER THE CIRCUMSTANCES SET OUT IN QUESTION 1, MAY NOT BE CONSIDERED AS AN EFFECTIVE DETERMINATION OF RIGHTS UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287. HOWEVER, THE SECRETARY OF THE ARMY HAD BROAD DISCRETIONARY AUTHORITY UNDER THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, TO DETERMINE THE EXISTENCE OR NON-EXISTENCE OF CONDITIONS GOVERNING AN OFFICER'S ENTITLEMENT TO DISABILITY RETIREMENT PAY AND SUCH ACT DOES NOT PROVIDE THAT DETERMINATIONS THEREUNDER SHALL BE BASED UPON RECOMMENDATIONS OR ADVICE FROM ANY SPECIFIED SOURCE. HENCE, ALTHOUGH THE REVIEW BOARD MAY HAVE HAD NO JURISDICTION TO MAKE FINDINGS OR RECOMMENDATIONS IN A PARTICULAR CASE, SUCH PURPORTED FINDINGS AND RECOMMENDATIONS REPRESENTED THE OPINION OF PERSONS PRESUMED TO BE COMPETENT TO FORM A SOUND OPINION RESPECTING THE DISABILITY OF THE OFFICER CONCERNED. UNDER SUCH CIRCUMSTANCES, THIS OFFICE PERCEIVES NO REASON FOR QUESTIONING THE PROPRIETY OF THE SECRETARY'S ACTION BASED UPON SUCH OPINION EVEN THOUGH HE MAY HAVE BEEN MISTAKEN WITH RESPECT TO THE LEGAL EFFECT OF HIS APPROVAL OF THE " BOARD-S" FINDINGS AND RECOMMENDATIONS. ACCORDINGLY, IN ANSWER TO QUESTION 1, YOU ARE ADVISED THAT IN ANY CASE OF THE TYPE DESCRIBED IN THE SAID QUESTION WHEREIN THE SECRETARY OF THE ARMY TOOK ACTION PRIOR TO OCTOBER 1, 1949, AMOUNTING TO A DETERMINATION THAT THE OFFICER CONCERNED HAD BECOME PERMANENTLY INCAPACITATED FOR ACTIVE DUTY FROM DISEASE OR INJURY SUFFERED IN LINE OF DUTY, AS A RESULT OF AN INCIDENT OF SERVICE, WHILE EMPLOYED ON EXTENDED ACTIVE DUTY, SUCH ACTION MAY BE CONSIDERED AS PROVIDING A PROPER BASIS FOR PAYMENT OF DISABILITY RETIREMENT PAY. COMPARE 31 COMP. GEN. 78, ANSWER TO SECOND QUESTION.

WITH RESPECT TO QUESTION 2, IT IS UNDERSTOOD THAT IN ALL CASES REVIEWED BY THE ARMY DISABILITY REVIEW BOARD, WITHIN OR WITHOUT ITS JURISDICTION, AND APPROVED FOR DISABILITY RETIREMENT PAY PRIOR TO OCTOBER 1, 1949, THE DEPARTMENT OF THE ARMY CERTIFIED TO THE VETERANS' ADMINISTRATION, AS THE EFFECTIVE DATE OF THE OFFICER'S OR FORMER OFFICER'S ENTITLEMENT TO SUCH RETIREMENT PAY, THE DATE OF APPROVAL OF THE FINDINGS AND RECOMMENDATIONS OF THE REVIEW BOARD. ASSUMING THAT UNDERSTANDING TO BE CORRECT, IT IS THE VIEW OF THIS OFFICE THAT IN SUCH CASES, EXCEPTING THOSE WHEREIN THE SAID REVIEW BOARD HAD JURISDICTION AND WHEREIN RETROACTIVE RETIREMENT PAY, THEREFORE, WAS PAID OR IS PAYABLE UNDER THE RULE ESTABLISHED IN THE CASES OF WOMER V. UNITED STATES, 114 C.1CLS. 415, AND HAMRICK V. UNITED STATES, 120 C.1CLS. 17, THE OFFICER OR FORMER OFFICER IS NOT ENTITLED TO RETIREMENT PAY FOR ANY PERIOD BEFORE THE EFFECTIVE DATE OF ENTITLEMENT SO CERTIFIED TO THE VETERANS' ADMINISTRATION. IT IS THE FURTHER VIEW OF THIS OFFICE THAT NO ADMINISTRATIVE ACTION CURRENTLY TAKEN IN SUCH CASES, EXCEPTING ACTION TO MAKE APPROPRIATE CORRECTIONS IN MILITARY RECORDS AS AUTHORIZED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, COULD CONFER A RIGHT TO RETROACTIVE RETIREMENT PAY COVERING THE PERIOD FROM THE DATE OF THE OFFICER'S RELIEF FROM ACTIVE DUTY TO THE EFFECTIVE DATE OF THE CERTIFICATION TO THE VETERANS' ADMINISTRATION OF HIS RETIREMENT PAY RIGHTS.

WITH REFERENCE TO THE APPLICABILITY OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A, TO RETIREMENT PAY AWARDED UNDER THE ACT OF APRIL 3, 1939, AS AMENDED, YOU ARE ADVISED THAT THIS OFFICE HAS TAKEN THE POSITION THAT SUCH RETIREMENT PAY IS IN THE NATURE OF PENSION, ACCRUING AS IT DOES TO PERSONS MEETING STIPULATED CONDITIONS WITHOUT REGARD TO THEIR BEING RETIRED OR REMAINING IN THE SERVICE. SEE 23 COMP. GEN. 284, 286, AND 32 COMP. GEN. 242, 247. IN LINE WITH THAT POSITION, THIS OFFICE, IN SEVERAL CASES, HAS TAKEN THE VIEW THAT THE SAID ACT OF APRIL 23, 1930, HAS NO APPLICATION TO SUCH RETIREMENT PAY. SEE 26 COMP. GEN. 711, 715, AND B 117367, NOVEMBER 4, 1953. TO THE EXTENT THAT ANY DECISION OF THIS OFFICE IS INCONSISTENT WITH THAT VIEW IT MAY BE DISREGARDED.