B-124446, DECEMBER 22, 1955, 35 COMP. GEN. 366

B-124446, DECEMBER 22, 1955, 35 COMP. GEN. 366

PAY - AFTER EXPIRATION OF ENLISTMENT - DURING HOSPITALIZATION AND DISABILITY RETIREMENT PROCEEDINGS AFTER CONFINEMENT A NAVY ENLISTED MAN WHO IS RETAINED TO SERVE A COURT-MARTIAL SENTENCE AFTER EXPIRATION OF ENLISTMENT, AND WHO AFTER COMPLETION OF THE SENTENCE IS RETAINED FOR MEDICAL TREATMENT OF A CONDITION DISCOVERED DURING CONFINEMENT, MAY NOT BE REGARDED AS BEING RETAINED ORIGINALLY FOR MEDICAL CARE TO RECEIVE THE PAY AND ALLOWANCES PROVIDED BY THE ACT OF DECEMBER 12, 1941, FOR THE PERIOD OF CONFINEMENT, HOWEVER PAY AND ALLOWANCES MAY BE PAID FOR THE PERIOD OF MEDICAL TREATMENT AFTER COMPLETION OF THE SENTENCE AND FOR THE PERIOD AWAITING DISABILITY RETIREMENT PROCEEDINGS.

TO J. P. FOLEY, DEPARTMENT OF THE NAVY, DECEMBER 22, 1955:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1955, WITH ENCLOSURES, TRANSMITTED HERE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING A DECISION AS TO THE LEGALITY OF CREDITING NORMAN FRANKLIN DANAO, SEAMAN, U.S. NAVY, WITH PAY AND ALLOWANCES SUBSEQUENT TO FEBRUARY 10, 1955, THE DATE OF EXPIRATION OF HIS MINORITY ENLISTMENT. YOUR LETTER ALSO REQUESTS A DECISION RESPECTING DANAO'S ENTITLEMENT TO DISABILITY RETIREMENT PAY UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816.

FROM THE INFORMATION TRANSMITTED WITH YOUR REQUEST FOR DECISION AND FROM INFORMATION SUBSEQUENTLY RECEIVED BY US, IT APPEARS THAT ON OCTOBER 12, 1951, DANAO ENLISTED IN THE NAVY TO SERVE DURING HIS MINORITY UNTIL FEBRUARY 10, 1955, THE DAY PRIOR TO THE DATE OF HIS TWENTY-FIRST BIRTHDAY. IT FURTHER APPEARS THAT ON JANUARY 31, 1955, COURT-MARTIAL CHARGES WERE PREFERRED AGAINST THE ENLISTED MAN; THAT ON FEBRUARY 9, 1955- -- ONE DAY BEFORE THE EXPIRATION DATE OF HIS ENLISTMENT--- HIS COURT- MARTIAL SENTENCE OF THREE MONTHS' CONFINEMENT WAS APPROVED; THAT ON FEBRUARY 16, 1955, HE WAS TRANSFERRED TO THE NAVAL RECEIVING STATION, U.S. NAVAL BASE, PHILADELPHIA, PENNSYLVANIA, FOR FURTHER TRANSFER TO THE NAVAL RETRAINING COMMAND, PORTSMOUTH, NEW HAMPSHIRE, FOR CONFINEMENT; AND THAT ON FEBRUARY 24, 1955 HE WAS TRANSFERRED TO THE NAVAL RETRAINING COMMAND, PORTSMOUTH, NEW HAMPSHIRE, FOR DUTY AND DISCIPLINARY ACTION. ALSO, IT APPEARS THAT SOMETIME IN MARCH 1955 IT WAS DISCOVERED THAT DANAO WAS SUFFERING FROM CARCINOMA NASAL PHARYNX METASTATIC; THAT ON APRIL 16, 1955, HIS CONFINEMENT WAS COMPLETED; THAT ON APRIL 17, 1955, HE WAS RESTORED TO DUTY; THAT ON APRIL 18, 1955, HE WAS TRANSFERRED TO THE U.S. NAVAL HOSPITAL, PORTSMOUTH, NEW HAMPSHIRE, FOR TREATMENT AND FURTHER DISPOSITION; AND THAT ON APRIL 22, 1955, HE WAS TRANSFERRED TO THE U.S. NAVAL HOSPITAL, CHELSEA, MASSACHUSETTS, FOR FURTHER TREATMENT AND DISPOSITION. IT ALSO APPEARS THAT PURSUANT TO ORDERS OF THE COMMANDING OFFICER, U.S. NAVAL HOSPITAL, CHELSEA, MASSACHUSETTS, DANAO DEPARTED FROM THAT HOSPITAL ON JULY 25, 1955, FOR HIS HOME, NEW LONDON, CONNECTICUT, IN AN AWAITING ORDERS STATUS, PENDING FINAL ACTION ON THE PROCEEDINGS OF A PHYSICAL EVALUATION BOARD IN HIS CASE. IT IS STATED THAT HE WAS RETIRED EFFECTIVE SEPTEMBER 1, 1955.

THE ACT OF DECEMBER 12, 1941, 55 STAT. 797 PROVIDES:

THAT HEREAFTER ANY ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES IN THE ACTIVE SERVICE, WHOSE TERM OF ENLISTMENT SHALL EXPIRE WHILE HE IS SUFFERING DISEASE OR INJURY INCIDENT TO SERVICE AND NOT DUE TO MISCONDUCT, AND WHO IS IN NEED OF MEDICAL CARE OR HOSPITALIZATION, MAY, WITH HIS CONSENT, BE RETAINED IN SUCH SERVICE BEYOND THE EXPIRATION OF HIS TERM OF ENLISTMENT, AND ANY SUCH ENLISTED MAN SHALL BE ENTITLED TO RECEIVE AT GOVERNMENT EXPENSE MEDICAL CARE OR HOSPITALIZATION AND HIS PAY AND ALLOWANCES (INCLUDING EXPENSE MONEY AUTHORIZED BY LAW AND CREDIT FOR LONGEVITY) UNTIL HE SHALL HAVE RECOVERED TO SUCH EXTENT AS WOULD ENABLE HIM TO MEET THE PHYSICAL REQUIREMENTS FOR REENLISTMENT, OR UNTIL IT SHALL HAVE BEEN ASCERTAINED BY COMPETENT AUTHORITY OF THE SERVICE CONCERNED THAT THE DISEASE OR INJURY IS OF A CHARACTER THAT RECOVERY TO SUCH AN EXTENT WOULD BE IMPOSSIBLE, WHICHEVER IS EARLIER: PROVIDED, THAT ANY ENLISTED MAN WHOSE ENLISTMENT IS EXTENDED AS PROVIDED HEREIN SHALL BE SUBJECT TO A FORFEITURE IN THE SAME MANNER AND TO THE SAME EXTENT AS IF HIS TERM OF ENLISTMENT HAD NOT EXPIRED, AND NOTHING CONTAINED IN THIS ACT SHALL PREVENT ANY ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS, AND THE COAST GUARD, FROM BEING HELD IN THE SERVICE WITHOUT HIS CONSENT UNDER, RESPECTIVELY, THE PROVISIONS OF THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, THE ACT OF AUGUST 29, 1916, AS AMENDED (40 STAT. 717), AND SECTION 1, SUBSECTION (A), OF THE ACT OF MAY 26, 1906, AS AMENDED (50 STAT. 547).

DANAO'S ENLISTMENT EXPIRED ON FEBRUARY 10, 1955. IT HAD NOT THEN BEEN DETERMINED THAT HE WAS ,SUFFERING DISEASE OR INJURY INCIDENT TO SERVICE" AND WAS "IN NEED OF MEDICAL CARE OR HOSPITALIZATION" AS REQUIRED FOR BENEFITS UNDER THE ABOVE ACT. HENCE, IT DOES NOT APPEAR THAT HE WAS RETAINED IN THE SERVICE ON FEBRUARY 11, 1955, UNDER THE PROVISIONS OF THAT ACT. INSTEAD, IT APPEARS THAT HE WAS RETAINED TO SERVE A COURT-MARTIAL SENTENCE. IN SUCH CIRCUMSTANCES, THE DISCOVERY, SOME WEEKS SUBSEQUENT TO FEBRUARY 10, 1955, THAT HE WAS IN NEED OF HOSPITAL CARE DID NOT CHANGE THE ORIGINAL CAUSE FOR HIS RETENTION. IT FOLLOWS THAT THE ACT OF DECEMBER 12, 1941, HAS NO APPLICATION TO THE PERIOD OF DANAO'S CONFINEMENT UNDER HIS COURT-MARTIAL SENTENCE.

UPON THE EXPIRATION OF HIS PERIOD OF CONFINEMENT DANAO WAS NOT DISCHARGED FROM HIS ENLISTMENT BUT WAS RETAINED IN THE SERVICE FOR TREATMENT OF A CONDITION DISCOVERED WHILE HE WAS IN CONFINEMENT, SUBSEQUENT TO THE EXPIRATION DATE OF HIS ENLISTMENT. IN THE CIRCUMSTANCES OF THIS CASE, IT REASONABLY MAY BE ASSUMED THAT HIS PHYSICAL DISABILITY WAS INCURRED INCIDENT TO SERVICE; THAT IT HAD ITS INCEPTION PRIOR TO FEBRUARY 10, 1955; AND THAT ON THAT DATE IT WOULD HAVE RESULTED IN HIS HOSPITALIZATION HAD ITS EXISTENCE AND TRUE NATURE THEN BEEN KNOWN.

THE ACT OF DECEMBER 12, 1941, IS NOT CONSIDERED TO LIMIT THE ACCRUAL OF ITS BENEFITS TO CASES WHERE THE CONDITION CALLING FOR MEDICAL OR HOSPITAL CARE IS DISCOVERED ON OR BEFORE THE EXPIRATION DATE OF THE ENLISTMENT INVOLVED, PROVIDED THE ENLISTMENT HAS NOT BEEN TERMINATED BY DISCHARGE. MOREOVER, DANAO'S CONSENT TO RETENTION FOR TREATMENT WILL BE ASSUMED IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. COMPARE B 23132, MARCH 5, 1942; B-23983, MARCH 27, 1942; B-20264, JANUARY 23, 1943; B-123453, AUGUST 29, 1955, 35 COMP. GEN. 110.

ACCORDINGLY, IT IS OUR VIEW THAT WHILE DANAO IS NOT ENTITLED TO PAY OR ALLOWANCES FOR THE PERIOD FEBRUARY 11 TO APRIL 16, 1955, DURING WHICH HE WAS HELD BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT IN CONFINEMENT UNDER A COURT-MARTIAL SENTENCE (COMPARE B-61820, JULY 24, 1947; B-113109, JANUARY 30, 1953; 30 COMP. GEN. 449 AND CASES THEREIN CITED), HE IS ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD APRIL 17 TO JULY 25, 1955, DURING WHICH HE WAS HELD BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT FOR MEDICAL TREATMENT AND HOSPITALIZATION. SEE THE CASES CITED IN THE PRECEDING PARAGRAPH. HE IS ENTITLED, ALSO, TO PAY AND ALLOWANCES FOR THE PERIOD JULY 26 TO AUGUST 31, 1955, DURING WHICH HE WAS "ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS.' SEE SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33.

REGARDING THE QUESTION OF DANAO'S ENTITLEMENT TO DISABILITY RETIREMENT PAY UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, WE HAVE NOT BEEN FURNISHED COMPLETE INFORMATION AS TO THE SECRETARY'S DETERMINATION IN THE MATTER. SUBSECTION 402 (A) OF THAT ACT, 63 STAT. 816, 37 U.S. CODE 272, PROVIDES AS FOLLOWS:

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS'ADMINISTRATION: (4) THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: PROVIDED FURTHER, THAT ANY DISABILITY SHOWN TO HAVE BEEN INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY.

IF THE SECRETARY'S DETERMINATION IN DANAO'S CASE MET ALL THE ABOVE REQUIREMENTS FOR DISABILITY RETIREMENT PAY--- AND WE SEE NO REASON WHY IT COULD NOT HAVE MET SUCH REQUIREMENTS--- DANAO IS ENTITLED TO DISABILITY RETIREMENT PAY BEGINNING ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF THE SECRETARY'S DETERMINATION.