B-118567, AUGUST 23, 1954, 34 COMP. GEN. 90

B-118567, AUGUST 23, 1954, 34 COMP. GEN. 90

RETIRED PAY - DISABILITY RETIREMENT PAY - CERTIFICATION REQUIREMENTS UNDER THE ACT OF APRIL 3, 1939, AS AMENDED THE RIGHT TO DISABILITY RETIREMENT PAY UNDER THE ACT OF APRIL 3, 1939, AS AMENDED, WHICH ACCRUED TO AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY WHEN THE SECRETARY OF WAR PURSUANT TO THE APPROVED FINDINGS OF AN ARMY RETIRING BOARD DIRECTED THAT HE BE CERTIFIED TO THE VETERANS ADMINISTRATION AS ENTITLED THERETO MAY NOT BE DEFEATED BY THE FACT THAT THE CLERICAL ACT OF CERTIFICATION WAS NOT PERFORMED PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WHICH SUPERSEDED THE 1939 ACT, AND THE OFFICER MAY BE CONSIDERED TO BE AN INDIVIDUAL "HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY" WITHIN THE CONTEMPLATION OF SECTION 411 OF THE 1949 ACT SO AS TO BE ENTITLED TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY THEREUNDER.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL C. B. NORRIS, DEPARTMENT OF THE ARMY, AUGUST 23, 1954:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 14, 1953, FORWARDED HERE BY FIRST ENDORSEMENT OF THE CHIEF OF FINANCE, DATED FEBRUARY 1, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF ALBERT M. GRIMES IN THE AMOUNT OF $4,017.60, REPRESENTING RETIREMENT PAY AT THE RATE OF $135 PER MONTH FOR THE PERIOD JULY 1, 1951, TO APRIL 30, 1952, AND AT THE RATE OF $140.40 PER MONTH FOR THE PERIOD MAY 1, 1952, TO NOVEMBER 30, 1953. THE RATE OF $135 IS COMPUTED AT 75 PERCENTUM OF THE ACTIVE-DUTY PAY UNDER THE LAWS IN EFFECT FROM JULY 1, 1946, TO SEPTEMBER 30, 1949, OF A SECOND LIEUTENANT WITH LESS THAN THREE YEARS' SERVICE. THE RATE OF $140.40 REPRESENTS $135 INCREASED BY FOUR PERCENTUM UNDER THE ACT OF MAY 19, 1952, 66 STAT. 79.

IT APPEARS THAT ALBERT M. GRIMES SERVED ON EXTENDED ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES FROM FEBRUARY 12, 1941, TO MAY 14, 1943. MEMORANDUM DATED APRIL 28, 1953, THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY FORWARDED LIEUTENANT GRIMES' CASE TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR AN OPINION AS TO ELIGIBILITY FOR REVIEW BY THE ARMY DISABILITY REVIEW BOARD, ESTABLISHED UNDER THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I. THE SAID MEMORANDUM IS, IN PART, AS FOLLOWS:

2. LIEUTENANT GRIMES APPEARED BEFORE AN ARMY RETIRING BOARD, CONVENED AT KENNEDY GENERAL HOSPITAL, MEMPHIS, TENNESSEE, ON 23 APRIL 1943, AND WAS FOUND TO BE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, THE RESULT OF AN INCIDENT OF SERVICE. HE WAS RELIEVED FROM ACTIVE DUTY, EFFECTIVE 14 MAY 1943, BY PARAGRAPH 40, SPECIAL ORDERS 104, HEADQUARTERS FOURTH SERVICE COMMAND, DATED 1 MAY 1943, UNDER THE AUTHORITY OF WD CIRCULAR 217, 1941. THE DEPARTMENT DID NOT ENTIRELY CONCUR IN THE PROCEEDINGS OF THE ORIGINAL RETIRING BOARD AND IT WAS RECONVENED AT KENNEDY GENERAL HOSPITAL ON 25 MAY 1943 AND FOUND THAT LIEUTENANT GRIMES WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, THE RESULT OF AN INCIDENT OF SERVICE AS AN ENLISTED MAN, BUT NOT THE RESULT OF AN INCIDENT OF SERVICE AS AN OFFICER. THESE FINDINGS WERE APPROVED BY ORDER OF THE SECRETARY OF WAR ON 18 JUNE 1943.

3. THE SECRETARY OF WAR, THROUGH THE WAR DEPARTMENT ARMY RETIRING BOARD, BY MEMORANDUM TO THE ADJUTANT GENERAL, DATED 30 DECEMBER 1944, DIRECTED THAT THE APPROVAL OF THE RECONVENED ARMY RETIRING BOARD AT KENNEDY GENERAL HOSPITAL BE VACATED AND THE PROCEEDINGS BE DISAPPROVED. NO ACTION WAS TAKEN TO EFFECT THIS DIRECTIVE.

4. THE SECRETARY OF WAR, THROUGH THE WAR DEPARTMENT ARMY RETIRING BOARD, BY MEMORANDUM, DATED 2 JANUARY 1945, DIRECTED THE ADJUTANT GENERAL TO CERTIFY SECOND LIEUTENANT ALBERT M. GRIMES TO THE VETERANS ADMINISTRATION AS ENTITLED TO RECEIVE RETIREMENT PAY UNDER THE ACT OF 3 APRIL 1939, AS AMENDED. NO ACTION WAS TAKEN IN THIS REGARD.

ON MAY 11, 1953, THE JUDGE ADVOCATE GENERAL ADVISED THE ADJUTANT GENERAL THAT:

IT IS THE OPINION OF THIS OFFICE THAT FORMER SECOND LIEUTENANT ALBERT M. GRIMES, XXX-XX-XXXX, IS ENTITLED TO RECEIVE RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939 (53 STAT. 557), AS AMENDED (10 U.S.C. 456), EFFECTIVE 15 MAY 1943, WITHOUT THE NECESSITY OF A REVIEW OF HIS CASE BY THE ARMY DISABILITY REVIEW BOARD UNDER THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 (58 STAT. 287), AS AMENDED (38 U.S.C. 693I).

ON OCTOBER 7, 1953, THE ADJUTANT GENERAL'S OFFICE, BY ORDER OF THE SECRETARY OF THE ARMY, ADVISED THE COMMANDING OFFICER, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, THAT ALBERT M. GRIMES, XXX-XX-XXXX, HAD BEEN DETERMINED ELIGIBLE FOR BENEFITS PROVIDED IN THE ACT OF APRIL 3, 1939, 53 STAT. 557; THAT SUCH DETERMINATION WAS A RESULT OF THE FINDING OF THE ARMY RETIRING BOARD APPROVED JANUARY 2, 1945; AND THAT HE WAS ENTITLED TO RETIREMENT PAY AS A SECOND LIEUTENANT, EFFECTIVE MAY 15, 1943, IN THE AMOUNT OF $112.50 PER MONTH. ($112.50 IS 75 PERCENTUM OF THE ACTIVE-DUTY PAY, UNDER THE LAWS IN EFFECT FROM MAY 15, 1943, TO JUNE 30, 1946, OF A SECOND LIEUTENANT WITH LESS THAN THREE YEARS' SERVICE.)

YOU STATE THAT YOU ARE IN DOUBT AS TO THE LEGALITY OF THE ABOVE CERTIFICATION OF OCTOBER 7, 1953, SINCE THE CAREER COMPENSATION ACT OF 1949 APPROVED OCTOBER 12, 1949, 63 STAT. 802, EFFECTIVE OCTOBER 1, 1949, SUPERSEDED THE RETIREMENT PAY PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, EXCEPT AS SUCH PROVISIONS MAY BE MATERIAL IN RELATION TO THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944. IN THAT CONNECTION SEE 30 COMP. GEN. 409, 414.

AUTHORITY TO MAKE DETERMINATIONS AS TO WHETHER DISABILITY EXISTS AND AS TO WHETHER SUCH DISABILITY WAS INCURRED IN LINE OF DUTY, WITHIN THE CONTEMPLATION OF THE ACT OF APRIL 3, 1939, WAS VESTED IN THE SECRETARY OF WAR (NOW THE SECRETARY OF THE ARMY) OR HIS DESIGNEE BY EXECUTIVE ORDER NO. 8099, DATED APRIL 28, 1939. DISABILITY RETIREMENT PAY UNDER THE SAID ACT, AS AMENDED, IS IN THE NATURE OF A PENSION PREDICATED ON DISABILITY, WITHOUT REGARD TO WHETHER THE OFFICER RECEIVING SUCH PAY REMAINS IN THE SERVICE AS A RETIRED OFFICER. 23 COMP. GEN. 284. THE RIGHT TO SUCH PAY IS NOT NECESSARILY CONTINGENT UPON THE OBSERVANCE OF ANY PARTICULAR PROCEDURE BUT ACCRUES WHEN THERE HAS BEEN A COMPETENT DETERMINATION OF THE ESSENTIAL FACTS BRINGING THE INDIVIDUAL WITHIN THE CONDITIONS CONTEMPLATED IN THE STATUTE. COMPARE 32 COMP. GEN. 242, 247, AND CASES THEREIN CITED.

HENCE, WHEN THE SECRETARY OF WAR ON JANUARY 2, 1945, DIRECTED THAT LIEUTENANT GRIMES BE CERTIFIED TO THE VETERANS ADMINISTRATION AS ENTITLED TO RETIREMENT PAY UNDER THE ACT OF APRIL 3, 1939, AS AMENDED, AFTER HAVING APPROVED THE FINDING OF AN ARMY RETIRING BOARD THAT THE OFFICER WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE AS THE RESULT OF AN INCIDENT OF SERVICE AND THAT HIS INCAPACITY WAS CAUSED BY DISABILITY SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY, THE OFFICER BECAME ENTITLED TO SUCH RETIREMENT PAY. THE FACT THAT A SUBORDINATE OF THE SECRETARY NEGLECTED TO PERFORM THE CLERICAL ACT OF CERTIFICATION PRIOR TO OCTOBER 1, 1949, DID NOT DEFEAT THAT RIGHT.

IT FOLLOWS THAT LIEUTENANT GRIMES IS ENTITLED TO RETIREMENT PAY IN THE AMOUNT AND FOR THE PERIOD REPRESENTED BY THE PRESENT VOUCHER, SUBJECT TO THE RESTRICTIONS IMPOSED BY SECTION 15 OF THE ACT OF JULY 13, 1943, 57 STAT. 559, WHICH PROVIDES, IN EFFECT, THAT DISABILITY RETIREMENT PAY AND DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION MAY NOT BE PAID FOR THE SAME PERIOD. WHILE THIS OFFICE DOES NOT HAVE A REPORT AS TO DISABILITY COMPENSATION PAYMENTS, IF ANY, MADE TO LIEUTENANT GRIMES BY THE VETERANS ADMINISTRATION DURING THE PERIOD FROM JULY 1, 1951, TO NOVEMBER 30, 1953, INFORMATION HAS BEEN RECEIVED TO THE EFFECT THAT HE CURRENTLY IS RECEIVING DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION AT THE RATE OF $172.50 PER MONTH, APPARENTLY ON THE BASIS OF TOTAL DISABILITY. THE VOUCHER IS RETURNED HEREWITH BUT BEFORE ANY PAYMENT IS MADE THEREON, THE TOTAL OF ANY DISABILITY COMPENSATION PAYMENTS MADE TO LIEUTENANT GRIMES DURING THE PERIOD INVOLVED SHOULD BE ASCERTAINED AND DEDUCTED FROM THE RETIREMENT PAY OTHERWISE DUE FOR SUCH PERIOD.

SINCE LIEUTENANT GRIMES' ELIGIBILITY TO RECEIVE RETIREMENT PAY WAS ESTABLISHED ON JANUARY 2, 1945, HE MAY BE CONSIDERED TO BE AN INDIVIDUAL "HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY" WITHIN THE CONTEMPLATION OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, AND THUS ENTITLED TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY, UPON A COMPETENT DETERMINATION OF DISABILITY OF AT LEAST 75 PERCENTUM, WOULD BE FOR COMPUTATION BEGINNING OCTOBER 1, 1949, ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A SECOND LIEUTENANT WITH OVER TWO YEARS' SERVICE, RESULTING IN A MONTHLY RATE OF $171 FROM OCTOBER 1, 1949, TO APRIL 30, 1952, AND $177.84 BEGINNING MAY 1, 1952. IF HE DECIDES TO MAKE SUCH ELECTION, IT MUST, UNDER THE STATUTE, BE MADE PRIOR TO OCTOBER 1, 1954.