B-119729, NOV 15, 1954

B-119729: Nov 15, 1954

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MAY HAVE BEEN PAID AND NOW ARE RECEIVING RETIREMENT PAY IN EXCESS OF THAT TO WHICH THEY ARE ENTITLED. THAT HE WAS RELEASED FROM ACTIVE DUTY EFFECTIVE JUNE 13. THAT SUCH INCAPACITY WAS DETERMINED NOT TO BE THE RESULT OF AN INCIDENT OF THE SERVICE. FOUND THAT HIS INCAPACITY WAS A RESULT OF AN INCIDENT OF THE SERVICE ORIGINATING IN MAY 1942. THAT THE CAUSE OF SUCH INCAPACITY WAS THROMBOPHLOBITIS. HE WAS CERTIFIED TO THE VETERANS ADMINISTRATION FOR RETIREMENT PAY IN THE AMOUNT OF $237.19 PER MONTH EFFECTIVE DECEMBER 14. AS OF THE TIME HE WAS LAST RETIRED OR AS OF THE TIME HE WAS GRANTED RETIREMENT PAY. THE CLAIMANT WAS GRANTED RETIREMENT PAY EFFECTIVE DECEMBER 14. THAT IS. PRIOR TO THE DATE OF THE COURT'S DECISION IN THE NAMRICK CASE AND WHEN THERE WAS NO OCCASION FOR THE ARMY AUTHORITIES TO DETERMINE THE PERCENTAGE OF HIS DISABILITY AS OF JUNE 13.

B-119729, NOV 15, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

INFORMATION DEVELOPED IN CONNECTION WITH THE CLAIM OF MAJOR THOMAS B. BAGLEY, AUS, RETIRED, FOR RETROACTIVE RETIREMENT PAY FOR THE PERIOD JUNE 14, 1944, TO DECEMBER 13, 1949, ON THE BASIS OF THE DECISION IN THE CASE OF HAMRICK V. UNITED STATES, 120 C.CLS. 17, HAS DISCLOSED THE POSSIBILITY THAT A NUMBER OF RETIRED MEMBERS OF THE UNIFORMED SERVICES SIMILARLY SITUATED, MAY HAVE BEEN PAID AND NOW ARE RECEIVING RETIREMENT PAY IN EXCESS OF THAT TO WHICH THEY ARE ENTITLED.

IT APPEARS THAT MAJOR BAGLEY ENTERED ON EXTENDED ACTIVE DUTY ON MARCH 2, 1941, THAT HE WAS RELEASED FROM ACTIVE DUTY EFFECTIVE JUNE 13, 1944, BY REASON OF HAVING BEEN FOUND PHYSICALLY INCAPACITATED FOR ACTIVE SERVICE (THROMBO ANGIITIS OBLITERANS, MILD) BY AN ARMY RETIRING BOARD, AND THAT SUCH INCAPACITY WAS DETERMINED NOT TO BE THE RESULT OF AN INCIDENT OF THE SERVICE. A REPORT FROM THE VETERANS ADMINISTRATION SHOWS THAT HE HAS BEEN PAID DISABILITY COMPENSATION BY THAT AGENCY AT DIFFERENT RATES DURING THE PERIOD INVOLVED, THE FIRST PAYMENTS APPARENTLY BEING BASED ON A DISABILITY RATING OF 20 PERCENT AND THE LATEST PAYMENTS APPARENTLY BEING BASED ON A DISABILITY RATING OF 60 PERCENT, REFLECTING A WORSENING OF HIS PHYSICAL CONDITION. AN ARMY DISABILITY REVIEW BOARD, CONVENED ON DECEMBER 14, 1949, TO CONSIDER HIS CASE, FOUND THAT HIS INCAPACITY WAS A RESULT OF AN INCIDENT OF THE SERVICE ORIGINATING IN MAY 1942, AND THAT THE CAUSE OF SUCH INCAPACITY WAS THROMBOPHLOBITIS, BOTH LOWER EXTREMITIES, CHRONIC, MODERATE, RECURRENT. AS A RESULT OF SUCH ACTION, HE WAS CERTIFIED TO THE VETERANS ADMINISTRATION FOR RETIREMENT PAY IN THE AMOUNT OF $237.19 PER MONTH EFFECTIVE DECEMBER 14, 1949, UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED 10 U.S.C. 456.

LATER HE ELECTED TO RECEIVE INCREASED RETIREMENT PAY IN THE SUM OF $247.95 PER MONTH UNDER METHOD (A) IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, APPARENTLY ON THE BASIS OF AN ADMINISTRATIVELY DETERMINED PHYSICAL DISABILITY OF 60 PERCENT. SAID SECTION 411 PROVIDES THAT THE PERCENTAGE OF DISABILITY "SHALL BE BASED UPON THE DISABILITY OF SUCH MEMBER, FORMER MEMBER, OR PERSON, AS OF THE TIME HE WAS LAST RETIRED OR AS OF THE TIME HE WAS GRANTED RETIREMENT PAY, AS THE CASE MAY BE." THE CLAIMANT WAS GRANTED RETIREMENT PAY EFFECTIVE DECEMBER 14, 1949, THAT IS, PRIOR TO THE DATE OF THE COURT'S DECISION IN THE NAMRICK CASE AND WHEN THERE WAS NO OCCASION FOR THE ARMY AUTHORITIES TO DETERMINE THE PERCENTAGE OF HIS DISABILITY AS OF JUNE 13, 1944, AND IT APPEARS THAT THE 60 PERCENT DISABILITY RATING REFLECTED HIS DISABILITY AS OF DECEMBER 14, 1949. UNDER THE HAMRICK DECISION, THE ACTION TAKEN BY THE ARMY DISABILITY REVIEW BOARD IN THE BAGLEY CASE, APPROVED BY THE PRESIDENT, RELATED BACK TO THE TIME THE CLAIMANT WAS RELEASED FROM ACTIVE DUTY. HENCE, ANY RIGHT TO INCREASED RETIREMENT PAY THE CLAIMANT HAD UNDER SAID METHOD (A) IS FOR DETERMINATION ON THE BASIS OF THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF JUNE 13, 1944. COMPARE 29 COMP.GEN. 382, AND DECISION TO THE SECRETARY OF THE NAVY, OCTOBER 25, 1950, B-96250.

THE VIEWS OF THIS OFFICE WERE EXPLAINED TO THE SECRETARY OF THE ARMY IN A LETTER DATED JULY 28, 1954, AND UNDER DATE OF SEPTEMBER 20, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, ADVISED THAT THE RECORDS IN THE CASE OF MAJOR BAGLEY HAD BEEN RESUBMITTED TO THE ARMY PHYSICAL REVIEW COUNCIL AND THAT THE COUNCIL DETERMINED THAT A DISABILITY OF 20 PERCENT EXISTED AT THE TIME OF HIS SEPARATION FROM ACTIVE SERVICE ON JUNE 13, 1944.

IT APPEARS THAT THE ELECTION BY MAJOR BAGLEY UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 WAS MADE UNDER THE IMPRESSION THAT A 60 PERCENT DISABILITY WAS FOR APPLICATION AND THAT NO ELECTION WOULD HAVE BEEN MADE IF HE HAD BEEN AWARE OF THE FACT THAT THE RATE APPLICABLE IN HIS CASE WAS 20 PERCENT. IT IS NOT REQUIRED THAT HE BE HELD TO AN ELECTION MADE UNDER SUCH CIRCUMSTANCES. 33 COMP.GEN. 237. HIS CLAIM IS BEING SETTLED ON THE BASIS THAT HE MADE NO ELECTION UNDER SECTION 411, PROPER DEDUCTION BEING MADE FOR THE AMOUNT IN EXCESS OF $237.19 PER MONTH WHICH HAS BEEN PAID TO HIM.

IT MAY BE THAT OTHER RETIRED OFFICERS OF THE UNIFORMED SERVICES HAVE BEEN PAID AND CURRENTLY ARE RECEIVING INCREASED RETIREMENT PAY PURSUANT TO ELECTIONS MADE UNDER SECTION 411, UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN MAJOR BAGLEY'S CASE. IT IS SUGGESTED THAT THE MATTER BE BROUGHT TO THE ATTENTION OF THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE FOR DETERMINATION AS TO WHAT THE PRACTICE HAS BEEN IN THAT RESPECT, AND IF IT BE DETERMINED THAT ERRONEOUS PAYMENT OF RETIREMENT PAY ARE BEING MADE ON THE BASIS OF A DISABILITY RATING RELATING TO A PHYSICAL CONDITION EXISTING AT THE TIME ACTION WAS TAKEN BY A PHYSICAL DISABILITY REVIEW BOARD, RATHER THAN AT THE TIME THE PERSON CONCERNED WAS SEPARATED FROM THE SERVICE, A REDETERMINATION OF THE PHYSICAL DISABILITY RATINGS BE MADE, WITH APPROPRIATE ADJUSTMENTS IN THE RETIRED PAY ACCOUNTS.

SINCE THERE ARE SEVERAL CLAIMS PENDING HERE IN WHICH THESE QUESTIONS ARE MATERIALLY INVOLVED, IT WOULD BE APPRECIATED IF A REPORT COULD BE FURNISHED THIS OFFICE AT AN EARLY DATE AS TO WHAT PRACTICE WAS FOLLOWED BY THE DIFFERENT MILITARY DEPARTMENTS IN THIS CLASS OF CASES AND WHAT CORRECTIVE ACTION WILL BE TAKEN IF IT SHOULD BE DISCOVERED THAT THE RATINGS MADE DID NOT RELATE BACK TO THE DATES OF RELEASE FROM ACTIVE DUTY.