B-126396, APR. 19, 1956

B-126396: Apr 19, 1956

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RETIRED: REFERENCE IS MADE TO LETTER OF DECEMBER 15. DATE YOU WERE PLACED ON THE RETIRED LIST OF THE UNITED STATES NAVAL RESERVE. YOUR CLAIM WAS MADE ON THE BASIS THAT IT WAS SIMILAR TO THOSE CONSIDERED BY THE COURT OF CLAIMS IN HAMRICK V. WHERE THE COURT HELD THAT AN OFFICER WHO WAS GRANTED RETIREMENT PAY AS THE RESULT OF APPROVED PROCEEDINGS AND FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944. IS ENTITLED TO SUCH RETIREMENT PAY RETROACTIVELY TO THE DATE OF RELEASE FROM ACTIVE DUTY. YOUR CLAIM WAS DISALLOWED BECAUSE IT APPEARS THAT YOUR SITUATION IS MATERIALLY DIFFERENT THAN THE SITUATIONS CONSIDERED BY THE COURT OF CLAIMS IN THE DECISIONS CITED.

B-126396, APR. 19, 1956

TO LIEUTENANT COMMANDER DERMOT LOHR, U.S. NAVY, RETIRED:

REFERENCE IS MADE TO LETTER OF DECEMBER 15, 1955, FROM YOUR ATTORNEY, WARREN E. MILLER, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 18, 1954, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE RETIREMENT PAY FOR THE PERIOD DECEMBER 22, 1945, DATE OF YOUR RELEASE FROM ACTIVE DUTY, TO AUGUST 1, 1949, DATE YOU WERE PLACED ON THE RETIRED LIST OF THE UNITED STATES NAVAL RESERVE.

YOUR CLAIM WAS MADE ON THE BASIS THAT IT WAS SIMILAR TO THOSE CONSIDERED BY THE COURT OF CLAIMS IN HAMRICK V. UNITED STATES, 120 C.CLS. 17, AND RAMSEY V. UNITED STATES, 123 C.CLS. 504, WHERE THE COURT HELD THAT AN OFFICER WHO WAS GRANTED RETIREMENT PAY AS THE RESULT OF APPROVED PROCEEDINGS AND FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I, IS ENTITLED TO SUCH RETIREMENT PAY RETROACTIVELY TO THE DATE OF RELEASE FROM ACTIVE DUTY. YOUR CLAIM WAS DISALLOWED BECAUSE IT APPEARS THAT YOUR SITUATION IS MATERIALLY DIFFERENT THAN THE SITUATIONS CONSIDERED BY THE COURT OF CLAIMS IN THE DECISIONS CITED. IN THOSE CASES IT WAS CLEAR THAT THE RESPECTIVE PLAINTIFFS WERE RELEASED FROM ACTIVE DUTY, WITHOUT PAY, BECAUSE OF PHYSICAL INCAPACITY FOR ACTIVE DUTY. NO QUESTION AROSE IN THOSE CASES AS TO THE JURISDICTION OF THE REVIEW BOARDS CONVENED UNDER THE PROVISIONS OF THE CITED SECTION 302 (A), WHEREAS IN YOUR CASE IT DOES NOT APPEAR THAT YOU WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY. THE DEPARTMENT OF THE NAVY REPORTED THAT YOU WERE RELEASED FROM ACTIVE DUTY ADMINISTRATIVELY AT YOUR OWN REQUEST AND HENCE IT APPEARS THAT THE REVIEW BOARD IN YOUR CASE ACTED WITHOUT STATUTORY AUTHORITY. 33 COMP. GEN. 253.

IN REQUESTING REVIEW OF THE MATTER, IT IS NOW CONTENDED THAT YOUR CASE IS SIMILAR TO THAT CONSIDERED BY THE COURT OF CLAIMS IN THE CASE OF UPDIKE V. UNITED STATES, C.CLS. 378-54, DECIDED JULY 12, 1955 (132 F.SUPP. 957), INVOLVING AN OFFICER RELEASED AT HIS OWN REQUEST. AS YOU MAY BE AWARE, A DECISION RENDERED BY THE COURT OF CLAIMS IN A PARTICULAR CASE IS APPLICABLE ONLY TO THE INDIVIDUAL WHO FILED THE PETITION AND DOES NOT NECESSARILY ESTABLISH A PRECEDENT FOR FAVORABLE CONSIDERATION OF OTHER SIMILAR CASES. HOWEVER THAT MAY BE, IT APPEARS THAT YOUR SITUATION IS ALSO MATERIALLY DIFFERENT THAN THAT CONSIDERED IN UPDIKE CASE. IN THAT CASE THE COURT POINTED OUT THAT X-RAYS TAKEN AT THE TIME OF THE PLAINTIFF'S RELEASE INDICATED THAT HE HAD ACTIVE PULMONARY TUBERCULOSIS MAKING HIM TOTALLY DISABLED AND UNFIT TO PERFORM THE DUTIES OF HIS OFFICE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, WHICH FACT WAS UNKNOWN TO HIM AT THE TIME HE REQUESTED RELEASE FROM ACTIVE DUTY. IN YOUR CASE THERE IS NO CLEAR SHOWING THAT YOU WERE IN FACT DISABLED AT THE TIME OF YOUR SEPARATION. ON THE CONTRARY, YOU APPARENTLY WERE RELEASED FROM ACTIVE DUTY AT YOUR REQUEST, AND UNTIL THE APPROVAL OF THE PROCEEDINGS AND FINDINGS OF THE NAVAL RETIRING REVIEW BOARD IN YOUR CASE, YOUR DISABILITY WAS NOT ESTABLISHED. HENCE, THE RECORD FAILS TO ESTABLISH THAT YOUR CASE COMES WITHIN THE SCOPE OF THE UPDIKE CASE.

IN A DECISION OF SEPTEMBER 21, 1954, 34 COMP. GEN. 128, THE RULINGS IN THE HAMRICK AND RAMSEY CASES AND THE CASES OF WOMER V. UNITED STATES, 114 C.CLS. 415, THOMAS V. UNITED STATES, 123 C.CLS. 507, AND FRAME V. UNITED STATES, 124 C.CLS. 557, WERE CONSIDERED BUT IT WAS HELD THAT A NAVAL RESERVE OFFICER RELEASED FROM ACTIVE DUTY FOR REASONS SUCH AS DEMOBILIZATION AND NOT BECAUSE OF PHYSICAL DISABILITY, WHO SUBSEQUENTLY, BUT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WAS FOUND BY A RETIRING BOARD TO BE INCAPACITATED AS A RESULT OF AN INCIDENT OF THE SERVICE IS ENTITLED TO RETIREMENT PAY ONLY FROM THE DATE SUCH DETERMINATION IS APPROVED BY COMPETENT AUTHORITY AND MAY NOT BE GIVEN RETROACTIVE EFFECT. SINCE YOU WERE NOT RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY, THE CITED CASES UPON WHICH YOU RELY FURNISH NO PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR RETROACTIVE RETIREMENT PAY. COMPARE NICKELL V. UNITED STATES, 123 C.CLS. 859, DECIDED DECEMBER 2, 1952.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 18, 1954, DISALLOWING YOUR CLAIM IS SUSTAINED.