B-130470, APR. 1, 1957

B-130470, APR. 1, 1957

TO THE SECRETARY OF THE NAVY:

BEFORE US FOR CONSIDERATION IS THE CLAIM OF RICHARD F. TITSWORTH, FORMER LIEUTENANT (JUNIOR GRADE), UNITED STATES NAVAL RESERVE, FOR DISABILITY RETIREMENT PAY FROM DECEMBER 13, 1947, TO JANUARY 28, 1955.

IT APPEARS THAT RICHARD F. TITSWORTH ENLISTED IN THE NAVAL RESERVE ON MAY 19, 1942; THAT HE INCURRED AN INJURY IN THE FALL OF 1943 WHILE SERVING IN AN ENLISTED STATUS; AND THAT AS A RESULT OF SUCH INJURY HE WAS HOSPITALIZED IN JANUARY 1944 AND UNDERWENT SURGERY ON JANUARY 17 OF THAT YEAR. IT FURTHER APPEARS THAT FOLLOWING A PERIOD OF TREATMENT AND REPEATED STUDY HE WAS CLASSIFIED AS PHYSICALLY QUALIFIED FOR APPOINTMENT AS AN OFFICER; THAT HE WAS TENDERED AN APPOINTMENT AS ENSIGN, UNITED STATES NAVAL RESERVE, ACCEPTED SUCH APPOINTMENT, AND ENTERED ON ACTIVE DUTY IN THAT CAPACITY ON APRIL 26, 1944; AND THAT HE WAS FOUND PHYSICALLY QUALIFIED FOR PROMOTION TO LIEUTENANT (JUNIOR GRADE) AND WAS SO PROMOTED ON NOVEMBER 1, 1945. IT IS STATED THAT THE OFFICER WAS HOSPITALIZED CONTINUOUSLY FROM JANUARY 2, 1946, UNTIL JULY 10, 1947. WHETHER HE WAS HOSPITALIZED BEYOND THE LATTER DATE IS NOT SHOWN.

A RETIRING BOARD, CONVENED ON MARCH 21, 1947, IN LIEUTENANT TITSWORTH'S CASE, FOUND THAT HE WAS PERMANENTLY INCAPACITATED FOR SERVICE; THAT HIS INCAPACITY WAS THE RESULT OF AN INCIDENT OF THE SERVICE AND WAS INCURRED IN LINE OF DUTY; AND THAT THE INCAPACITATING DISABILITY WAS INCURRED SUBSEQUENT TO NOVEMBER 1, 1945, THE DATE OF COMMENCEMENT OF HIS SERVICE AS LIEUTENANT (JUNIOR GRADE).

UPON RECOMMENDATION OF THE CHIEF, BUREAU OF MEDICINE AND SURGERY, CONCURRED IN BY THE CHIEF OF NAVAL PERSONNEL, THE ACTING SECRETARY OF THE NAVY RETURNED THE RECORD OF THE PROCEEDINGS IN THE CASE TO THE RETIRING BOARD AND DIRECTED THAT IT RECONSIDER ITS FINDINGS. THE RETIRING BOARD RECONVENED ON OCTOBER 10, 1947, AND FOUND THAT LIEUTENANT TITSWORTH WAS PERMANENTLY INCAPACITATED FOR SERVICE; THAT HIS INCAPACITY WAS THE RESULT OF AN INCIDENT OF THE SERVICE AND WAS INCURRED IN LINE OF DUTY; AND THAT THE INCAPACITATING DISABILITY WAS INCURRED PRIOR TO APRIL 26, 1944, WHILE HE WAS SERVING IN AN ENLISTED STATUS. THE OFFICER WAS RELIEVED FROM ACTIVE DUTY ON DECEMBER 12, 1947. ON DECEMBER 30, 1947, THE PRESIDENT APPROVED THE PROCEEDINGS OF THE FIRST RETIRING BOARD, THE PROCEEDINGS AND FINDINGS OF THE SECOND RETIRING BOARD, AND THE RECOMMENDATION OF THE SECRETARY OF THE NAVY THAT LIEUTENANT TITSWORTH BE NOT RETIRED FROM ACTIVE SERVICE. THE OFFICER WAS HONORABLY DISCHARGED FROM THE NAVAL RESERVE EFFECTIVE JANUARY 29, 1948, PURSUANT TO SECTION 308 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1182, PROVIDING FOR THE DISCHARGE OF OFFICERS FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE SERVICE.

MR. TITSWORTH REQUESTED CONSIDERATION OF HIS CASE BY A NAVAL RETIRING REVIEW BOARD, ESTABLISHED UNDER SECTION 302 OF THE ACT OF JUNE 22, 1944, 58 STAT. 287. THAT BOARD REQUESTED AN ADMINISTRATIVE DETERMINATION AS TO WHETHER IT HAD JURISDICTION IN THE CASE. THE JUDGE ADVOCATE GENERAL OF THE NAVY HELD THAT, UPON THE APPROVAL BY THE PRESIDENT OF THE FINDINGS AND DECISION OF THE SECOND REVIEW BOARD, THE FORMER OFFICER ACQUIRED A VESTED RIGHT TO DISABILITY RETIREMENT PAY; THAT THE MERE CIRCUMSTANCE THAT, THROUGH ADMINISTRATIVE ERROR, HE WAS NOT PAID SUCH PAY DID NOT AFFECT SUCH RIGHT; AND THAT, ACCORDINGLY, HE WAS NOT RELEASED FROM ACTIVE SERVICE WITHOUT PAY AND THE REVIEW BOARD HAD NO JURISDICTION. THE JUDGE ADVOCATE GENERAL RECOMMENDED THAT THE FORMER OFFICER SUBMIT A CLAIM FOR RETIREMENT PAY TO THE NAVY DEPARTMENT. THE OPINION AND RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL WERE APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR ON JUNE 21, 1951.

MR. TITSWORTH PRESENTED A CLAIM TO US ON JANUARY 28, 1955. THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON OCTOBER 27, 1956.

SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, IN EFFECT ON THE DATE OF FORMER OFFICER'S CLAIM COMMENCES, PROVIDED THAT OFFICERS OF THE NAVAL RESERVE WHO ARE CALLED OR ORDERED INTO ACTIVE NAVAL SERVICE IN EXCESS OF 30 DAYS AND WHO SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD AND BE ENTITLED TO RECEIVE THE SAME RETIREMENT PAY AS PROVIDED BY LAW OR REGULATION FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY. WHILE IT IS OUR VIEW THAT FORMAL RETIREMENT, AS SUCH, IS NOT A CONDITION PRECEDENT TO RECEIPT OF THE RETIREMENT PAY BENEFITS AUTHORIZED BY THE ACT OF AUGUST 27, 1940 (COMPARE 23 COMP. GEN. 700; 31 ID. 555), IT IS UNDERSTOOD TO HAVE BEEN THE PRACTICE OF THE NAVY DEPARTMENT UNDER THE PROVISIONS OF THAT ACT TO RETIRE RESERVE OFFICERS AND PLACE THEIR NAMES ON A RETIRED LIST IN ACCORDANCE WITH SECTION 1453, R.S., 34 U.S.C. 417. NAVY COURT-MARTIAL ORDER NO. 2-1943, PAGES 162 AND 163. AT THAT TIME SECTION 1453 CONTEMPLATED RETIREMENT UPON APPROVAL BY THE PRESIDENT OF A RETIRING BOARD'S FINDING THAT AN OFFICER OF THE NAVY WAS INCAPACITATED FOR ACTIVE SERVICE AND THAT SUCH INCAPACITY WAS THE RESULT OF AN INCIDENT OF THE SERVICE. THE PRESIDENT APPROVED SUCH FINDINGS IN MR. TITSWORTH'S CASE BUT ALSO APPROVED THE SECRETARY OF THE NAVY'S RECOMMENDATION, THAT HE BE NOT RETIRED. THE ACT OF JUNE 17, 1948, 62 STAT. 476, 477, AMENDED SECTION 1453, R.S., SO AS TO AUTHORIZE THE SECRETARY OF THE NAVY, RATHER THAN THE PRESIDENT, TO APPROVE RETIREMENT BOARD FINDINGS. THUS, ON JUNE 21, 1951, WHEN THE ASSISTANT SECRETARY OF THE NAVY DETERMINED THAT MR. TITSWORTH WAS ENTITLED TO RETIREMENT PAY, THE SECRETARY HAD AUTHORITY TO DETERMINE WHETHER AN OFFICER OF THE NAVAL RESERVE WAS ENTITLED TO SUCH PAY. DETERMINATION THAT MR. TITSWORTH WAS ENTITLED TO RETIREMENT PAY FOR A PERIOD BEGINNING PRIOR TO OCTOBER 1, 1949, WAS PROPER (COMPARE 36 COMP. GEN. 210) AND THE FACT THAT HE WAS NO LONGER A MEMBER OF THE NAVAL RESERVE ON JUNE 21, 1951, DID NOT AFFECT HIS RIGHT TO DISABILITY RETIREMENT PAY. WITH RESPECT TO RETIREMENT OF AN OFFICER FOR DISABILITY INCURRED DURING A PERIOD OF ENLISTED SERVICE, SEE DISCUSSION IN 32 COMP. GEN. 196, AT PAGE 199.

THE GRANTING TO MR. TITSWORTH OF DISABILITY RETIREMENT PAY BY REASON OF THE ASSISTANT SECRETARY'S ACTION ON JUNE 21, 1951, IS NOT INCONSISTENT WITH THE PRESIDENT'S ACTION OF DECEMBER 30, 1947, IN DIRECTING THAT LIEUTENANT TITSWORTH BE NOT RETIRED, SINCE, AS INDICATED ABOVE, RETIREMENT IS NOT NECESSARY TO SUPPORT SUCH PAY, AND, MOREOVER, THE PRESIDENT DID APPROVE THE FINDINGS OF THE SECOND RETIREMENT BOARD AS OUTLINED ABOVE. THOSE FINDINGS ESTABLISHED A RIGHT UNDER LAW TO DISABILITY RETIREMENT PAY UPON PROPER ADMINISTRATIVE APPROVAL OF SUCH FINDINGS. SUCH PAY SHOULD COMMENCE ON THE DAY FOLLOWING THE DATE OF HIS RELEASE FROM ACTIVE DUTY. COMPARE 33 COMP. GEN. 518.

MR. TITSWORTH IS ENTITLED TO DISABILITY RETIREMENT PAY FROM DECEMBER 13, 1947, THE DAY FOLLOWING THE DATE OF HIS RELEASE FROM ACTIVE DUTY, LESS ANY DISABILITY COMPENSATION WHICH HE MAY HAVE RECEIVED FROM THE VETERANS ADMINISTRATION. SINCE IT MUST BE CONSIDERED THAT HE IS AN OFFICER ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY PRIOR TO OCTOBER 1, 1949, HE MUST BE TREATED AS IF HE ACTUALLY HAD BEEN GRANTED SUCH PAY PRIOR TO THAT DAY SO AS TO GIVE HIM THE RIGHT TO MAKE AN ELECTION, WITHIN A REASONABLE TIME, UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, IF HE SO DESIRES. COMPARE 34 COMP. GEN. 646.

MR. TITSWORTH SHOULD BE INFORMED OF HIS RIGHT TO DISABILITY RETIREMENT PAY AND HIS RIGHT, IF HE SO DESIRES, TO EXERCISE AN ELECTION UNDER SECTION 411. ACTION IN ISSUING A SETTLEMENT IN HIS FAVOR WILL BE DELAYED TO GIVE HIM AN OPPORTUNITY TO EXERCISE SUCH AN ELECTION. IF INFORMATION AS TO WHETHER HE HAS EXERCISED AN ELECTION IS NOT RECEIVED BY OUR CLAIMS DIVISION WITHIN 90 DAYS FROM THE DATE OF THIS LETTER, SETTLEMENT WILL ISSUE ON THE BASIS OF SAVED PAY FROM OCTOBER 1, 1949, TO JANUARY 28, 1955.