B-125674, NOVEMBER 29, 1955, 35 COMP. GEN. 300

B-125674: Nov 29, 1955

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INASMUCH AS SHE HAS BEEN ACCRUING COMPENSATION FROM THE VETERANS ADMINISTRATION FOR THE SAME DISABILITY IN AN AMOUNT WHICH EXCEEDS THE AMOUNT WHICH WOULD HAVE BEEN PAID AS SEVERANCE PAY AT THE TIME OF ORIGINAL RELEASE. SHE IS NOT NOW ENTITLED TO SEVERANCE PAY. IT IS STATED THAT LIEUTENANT ENSWEILER WAS RELEASED FROM ACTIVE DUTY ON SEPTEMBER 10. THAT SHE WAS TRANSFERRED TO THE HONORARY RETIRED LIST WITHOUT PAY ON DECEMBER 1. SHE WAS ADVISED THAT SHE SHOULD REGARD HERSELF HONORABLY DISCHARGED FROM THE NAVAL SERVICE EFFECTIVE AT MIDNIGHT ON MARCH 31. IT IS REPORTED THAT SHE HAS BEEN PAID COMPENSATION BY THE VETERANS ADMINISTRATION SINCE SEPTEMBER 11. WHILE IT IS NOT SO STATED. IT WILL BE ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE OFFICER WAS RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY ON SEPTEMBER 10.

B-125674, NOVEMBER 29, 1955, 35 COMP. GEN. 300

PAY - DISABILITY RETIRED PAY - SEVERANCE PAY THE ACTION OF A NAVAL RETIRING BOARD IN ORDERING A LIEUTENANT IN THE NURSE CORPS DISCHARGED FOR PHYSICAL DISABILITY WITH SEVERANCE PAY TWO YEARS AFTER SHE HAD BEEN RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE RETIRED LIST WITHOUT PAY RELATES TO THE TIME OF HER ACTIVE DUTY RELEASE AND, INASMUCH AS SHE HAS BEEN ACCRUING COMPENSATION FROM THE VETERANS ADMINISTRATION FOR THE SAME DISABILITY IN AN AMOUNT WHICH EXCEEDS THE AMOUNT WHICH WOULD HAVE BEEN PAID AS SEVERANCE PAY AT THE TIME OF ORIGINAL RELEASE, SHE IS NOT NOW ENTITLED TO SEVERANCE PAY.

TO T. P. CONDON, DEPARTMENT OF THE NAVY, NOVEMBER 29, 1955:

BY LETTER OF SEPTEMBER 29, 1955, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF SEPTEMBER 1, 1955 REQUESTING AN ADVANCE DECISION AS TO THE RIGHT OF FORMER LIEUTENANT ISABELLE C. ENSWEILER ( NC) USNR, TO SEVERANCE PAY UNDER THE CIRCUMSTANCES DISCUSSED BELOW.

IT IS STATED THAT LIEUTENANT ENSWEILER WAS RELEASED FROM ACTIVE DUTY ON SEPTEMBER 10, 1952, AND THAT SHE WAS TRANSFERRED TO THE HONORARY RETIRED LIST WITHOUT PAY ON DECEMBER 1, 1952. ON FEBRUARY 14, 1955, THE PRESIDENT APPROVED THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE NAVAL RETIRING REVIEW BOARD--- MADE UNDER AUTHORITY CONTAINED IN SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 693I--- AND THE RECOMMENDATION OF THE SECRETARY OF THE NAVY THAT SHE BE DISCHARGED FROM THE NAVAL SERVICE FOR PHYSICAL DISABILITY WITH SEVERANCE PAY. UNDER DATE OF MARCH 17, 1955, SHE WAS ADVISED THAT SHE SHOULD REGARD HERSELF HONORABLY DISCHARGED FROM THE NAVAL SERVICE EFFECTIVE AT MIDNIGHT ON MARCH 31, 1955. IT IS REPORTED THAT SHE HAS BEEN PAID COMPENSATION BY THE VETERANS ADMINISTRATION SINCE SEPTEMBER 11, 1952, AT RATES VARYING FROM $103.50 TO $279 PER MONTH.

THE FINAL PROVISO OF SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821, 37 U.S. CODE 273, STATES THAT IN A CASE OF A FORMER MEMBER OF THE UNIFORMED SERVICES WHO HAS RECEIVED DISABILITY SEVERANCE PAY AS PROVIDED IN THAT SECTION,"THE AMOUNT OF SUCH DISABILITY SEVERANCE PAY SHALL BE DEDUCTED FROM ANY COMPENSATION FOR HIMSELF OR HIS DEPENDENTS TO WHICH HE OR THEY BECOMES (SIC) ENTITLED THEREAFTER UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION FOR THE SAME DISABILITY.' WHILE IT IS NOT SO STATED, IT WILL BE ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE OFFICER WAS RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY ON SEPTEMBER 10, 1952, AND THAT THE COMPENSATION RECEIVED BY HER FROM THE VETERANS ADMINISTRATION WAS FOR THE SAME DISABILITY AS THAT WHICH RESULTED IN HER DISCHARGE WITH SEVERANCE PAY.

THE ACTION TAKEN BY THE NAVAL RETIRING REVIEW BOARD, AS APPROVED BY THE PRESIDENT, RELATED BACK TO THE TIME OF HER RELEASE FROM ACTIVE DUTY. COMPARE 29 COMP. GEN. 382, AND HAMRICK V. UNITED STATES, 120 C.1CLS. 17. HAVING THUS, IN EFFECT, BEEN DISCHARGED FOR PHYSICAL DISABILITY WITH RIGHT TO SEVERANCE PAY ON SEPTEMBER 10, 1952, AND HAVING RECEIVED COMPENSATION FROM THE VETERANS ADMINISTRATION FOR THE SAME DISABILITY SINCE THAT TIME, SHE IS NOT NOW ENTITLED TO ANY AMOUNT AS SEVERANCE PAY IF, AS APPEARS, THE VETERANS ADMINISTRATION COMPENSATION PAID TO HER EXCEEDS THE AMOUNT WHICH WOULD HAVE BEEN PAID TO HER AS SEVERANCE PAY IF SHE HAD ACTUALLY BEEN DISCHARGED ON SEPTEMBER 10, 1952, FOR PHYSICAL DISABILITY WITH SUCH PAY.