B-132411, SEPTEMBER 9, 1957, 37 COMP. GEN. 179

B-132411, SEPTEMBER 9, 1957, 37 COMP. GEN. 179

MILITARY PERSONNEL - DISABILITY RETIRED PAY - RETENTION ON TEMPORARY DISABILITY RETIRED LIST AFTER FIVE YEARS - RETIRED AND ACTIVE DUTY PAY RIGHTS A NAVAL RESERVE OFFICER WHO, AFTER FIVE YEARS ON THE TEMPORARY DISABILITY RETIRED LIST, WAS DETERMINED TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS RANK BUT WHO DID NOT HAVE HIS DISABILITY RETIRED STATUS TERMINATED UNTIL SIX MONTHS LATER WHEN HE ACCEPTED A NEW APPOINTMENT AS A RESERVE OFFICER IS PROHIBITED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D), FROM RECEIVING DISABILITY RETIRED PAY FOR ANY TIME SUBSEQUENT TO THE EXPIRATION OF THE FIVE-YEAR PERIOD, AND THE PHYSICAL FITNESS DETERMINATION MAY NOT BE REGARDED AS CONSTITUTING ORDERS PLACING THE MEMBER IN AN ACTIVE DUTY STATUS SO AS TO ENTITLE HIM TO ACTIVE DUTY PAY FOR THE SIX-MONTH PERIOD PRIOR TO TERMINATION OF THE DISABILITY RETIRED STATUS.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 9, 1957:

THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) ENCLOSED WITH HIS LETTER OF JUNE 27, 1957, THE REQUEST, WITH RELATED PAPERS AND ENDORSEMENTS, OF THE DISBURSING OFFICER, SPECIAL PAYMENTS DEPARTMENT, U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO, FOR AN ADVANCE DECISION ON WHETHER RICHARD F. SOLLNER, LIEUTENANT, U.S. NAVAL RESERVE, IS ENTITLED TO DISABILITY RETIRED PAY FOR THE PERIOD FROM MARCH 1, 1956, TO SEPTEMBER 18, 1956, INCLUSIVE. THE LETTER OF JUNE 27, 1957, ALSO PRESENTS AN ADDITIONAL QUESTION AS TO WHETHER LIEUTENANT SOLLNER, IF NOT ENTITLED TO DISABILITY RETIRED PAY FOR THAT PERIOD, MAY BE ENTITLED TO RECEIVE ACTIVE-DUTY PAY FOR THAT PERIOD.

THE FOLLOWING PERTINENT FACTS ARE DISCLOSED CONCERNING THE DISABILITY RETIRED STATUS OF LIEUTENANT SOLLNER.

(1) RICHARD F. SOLLNER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY EFFECTIVE MARCH 1, 1951, AS A LIEUTENANT (JUNIOR GRADE), U.S. NAVAL RESERVE,

(2) PAYMENT OF RETIRED PAY WAS SUSPENDED BEGINNING MARCH 1, 1956, UPON RECEIPT OF INFORMATION THAT ON FEBRUARY 29, 1956, THE EXPIRATION DATE OF HIS FIVE-YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST, THE SECRETARY OF THE NAVY DETERMINED THAT LIEUTENANT SOLLNER WAS PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS RANK.

(3) BY LETTER OF SEPTEMBER 11, 1956, THE CHIEF OF NAVAL PERSONNEL NOTIFIED LIEUTENANT SOLLNER THAT THE PRESIDENT ON SEPTEMBER 4, 1956, HAD REAPPOINTED HIM AS A RESERVE OFFICE IN THE UNITED STATES NAVY, AND

(4) LIEUTENANT SOLLNER WAS FURTHER ADVISED IN LETTER DATED OCTOBER 25, 1956, BY THE SECRETARY OF THE NAVY THAT "BY DIRECTION OF THE PRESIDENT, YOUR STATUS ON THE TEMPORARY DISABILITY RETIRED LIST IS HEREBY TERMINATED, AND YOU ARE DISCHARGED FROM THE U.S. NAVAL RESERVE, EFFECTIVE 18 SEPTEMBER 1956, THE DAY PRECEDING THE DATE OF YOUR EXECUTION OF THE ACCEPTANCE AND OATH OF OFFICE AS LIEUTENANT, 1315, U.S. NAVAL RESERVE.' PARAGRAPH 3 OF THE SECRETARY'S LETTER OF OCTOBER 25, 1956, FURTHER STATED THAT "BY COPY OF THESE ORDERS, THE COMMANDING OFFICER, NAVY FINANCE CENTER, CLEVELAND, OHIO, IS DIRECTED TO DISCONTINUE PAYMENT OF RETIRED PAY AND TO CLOSE YOUR ACCOUNTS AS OF 18 SEPTEMBER 1956.'

THE RECORD THEREFORE CLEARLY ESTABLISHES THAT THE NAME OF LIEUTENANT SOLLNER (THEN A LIEUTENANT, JUNIOR GRADE, U.S. NAVAL RESERVE) WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY (ESTABLISHED ON THE AUTHORITY OF SECTION 401 (B), TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 271), DURING THE PERIOD FROM MARCH 1, 1951, TO SEPTEMBER 18, 1956, INCLUSIVE; THAT PAYMENT TO HIM OF DISABILITY RETIREMENT PAY WAS SUSPENDED EFFECTIVE MARCH 1, 1956; THAT HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WAS TERMINATED AS OF SEPTEMBER 18, 1956; AND THAT HE WAS REAPPOINTED EFFECTIVE THE FOLLOWING DAY, SEPTEMBER 19, 1956, IN THE UNITED STATES NAVAL RESERVE IN THE GRADE OF LIEUTENANT. THE FIRST AND BASIC QUESTION PRESENTED IS WHETHER LIEUTENANT SOLLNER IS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY FOR THE PERIOD FROM MARCH 1, 1956, TO SEPTEMBER 18, 1956, INCLUSIVE.

LIEUTENANT SOLLNER'S RIGHT TO RECEIVE DISABILITY RETIREMENT PAY FOR ALL OR ANY PART OF THE PERIOD THAT HIS NAME WAS CARRIED ON THAT LIST IS GOVERNED EXCLUSIVELY BY THE PROVISIONS CONTAINED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. SECTION 402 (D), 63 STAT. 818, 37 U.S.C. 272 (D), PROVIDED, IN PERTINENT PART, THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME WAS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SUBSECTIONS (A), (B), OR (C) OF SECTION 402, 37 U.S.C. 272 (A), (B), OR (C), WOULD BE ENTITLED FOR THE PERIOD DURING WHICH HIS NAME WAS CARRIED ON SUCH TEMPORARY DISABILITY RETIRED LIST,"BUT IN NO EVENT TO EXCEED A PERIOD OF FIVE YEARS," TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY ONE OF THE TWO METHODS PRESCRIBED IN THAT SECTION. UNDER SECTION 402 (E), 63 STAT. 819, 37 U.S.C. 272 (E), IT WAS PROVIDED THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME WAS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST "SHALL BE GIVEN PERIODIC PHYSICAL EXAMINATIONS, NOT LESS FREQUENT THAN EVERY EIGHTEEN MONTHS TO DETERMINE WHETHER THE DISABILITY FOR WHICH SUCH MEMBER WAS TEMPORARILY RETIRED HAS CHANGED.' SECTION 402 (E) ALSO PRESCRIBED THE ACTION TO BE TAKEN IF, AS A RESULT OF ANY SUCH EXAMINATION "OR UPON THE TERMINATION OF A PERIOD OF FIVE YEARS FROM THE DATE OF TEMPORARY DISABILITY RETIREMENT," IT WAS DETERMINED THAT THE PHYSICAL DISABILITY OF THE MEMBER WAS OF PERMANENT CHARACTER AND 30 PERCENTUM OR MORE AND THE ACTION TO BE TAKEN IF IT WAS DETERMINED THAT THE PHYSICAL DISABILITY OF SUCH MEMBER WAS LESS THAN 30 PERCENTUM. SECTION 402 (E) FURTHER PROVIDED THAT AT THE END OF A FIVE YEAR PERIOD DURING WHICH THE NAME OF A MEMBER HAD BEEN CARRIED ON A TEMPORARY DISABILITY RETIRED LIST "THE SECRETARY CONCERNED SHALL MAKE A FINAL DETERMINATION OF SUCH MEMBER'S CASE AND SHALL CAUSE SUCH MEMBER TO BE RETIRED, SEPARATED, OR TREATED AS PROVIDED IN SECTION 405 OF THIS TITLE.'

SECTION 405 (B), 63 STAT. 821, 822, 37 U.S.C. 275, RELATED TO RESERVE MEMBERS AND IN PERTINENT PART PROVIDED THAT " IF, AS A RESULT OF A PERIODIC PHYSICAL EXAMINATION" A MEMBER OF A RESERVE COMPONENT WHOSE NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WAS "FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING" SUCH MEMBER "SHALL, SUBJECT TO HIS CONSENT, BE REAPPOINTED OR REENLISTED, AS THE CASE MAY BE, IN HIS RESERVE MPONENT.' REAPPOINTMENT COULD BE "IN THE RANK, GRADE, OR RATING IMMEDIATELY ABOVE THE RANK, GRADE, OR RATING PERMANENTLY HELD AT THE TIME OF PLACEMENT OF THE NAME OF THE MEMBER CONCERNED UPON THE TEMPORARY DISABILITY RETIRED LIST.' SEE SECTION 405 (C), 63 STAT. 822, 37 U.S.C. 275 (C).

THE RELEVANT PROVISIONS IN SECTION 406 (A), 63 STAT. 822, 37 U.S.C. 276 (A), PROVIDED THAT "IF, AS A RESULT OF A PERIODIC PHYSICAL EXAMINATION" A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME APPEARED ON THE TEMPORARY DISABILITY RETIRED LIST WAS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING HE SHALL---

(3) IF A MEMBER OF A RESERVE COMPONENT, HAVE SUCH STATUS AND HIS DISABILITY RETIREMENT PAY TERMINATED ON THE DATE OF HIS REAPPOINTMENT OR REENLISTMENT IN A RESERVE COMPONENT, AS THE CASE MAY BE.

IT WILL BE NOTED, HOWEVER, THAT THE PROVISIONS OF SECTION 406 (A), RELATING TO THE TERMINATION OF TEMPORARY DISABILITY RETIRED PAY AND THE TEMPORARY DISABILITY RETIRED STATUS OF A RESERVE MEMBER WERE OPERATIVE ONLY IN THOSE INSTANCES WHERE THE INDIVIDUAL CONCERNED WAS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, ETC., "AS A RESULT OF A PERIODIC PHYSICAL EXAMINATION.' FURTHERMORE, THOSE PROVISIONS OF LAW WERE NECESSARILY LIMITED IN THEIR OPERATION BY THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 402 (D). IT IS CLEAR, THEREFORE, THAT WHETHER OR NOT LIEUTENANT SOLLNER'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST FROM AND AFTER MARCH 1, 1956, FOLLOWING THE END OF THE FIVE-YEAR PERIOD THAT HIS NAME HAD BEEN CARRIED ON THAT LIST, IS VIEWED AS HAVING BEEN WITHIN THE SCOPE OF SECTION 406 (A) (3), 37 U.S.C. 276 (A) (3), HIS RIGHT TO RECEIVE THE DISABILITY RETIREMENT PAY PRESCRIBED IN SECTION 402 (D) COULD "IN NO EVENT * * * EXCEED A PERIOD OF FIVE YEARS.' HENCE, HE MAY NOT BE PAID DISABILITY RETIREMENT PAY FOR ANY PART OF THE PERIOD FROM MARCH 1, 1956, TO SEPTEMBER 18, 1956, INCLUSIVE. THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION PRESENTED IS WHETHER LIEUTENANT SOLLNER IS ENTITLED TO ACTIVE-DUTY PAY AS A LIEUTENANT (JUNIOR GRADE), U.S. NAVAL RESERVE, RETIRED, FOR THE PERIOD FROM MARCH 1, 1956, TO SEPTEMBER 18, 1956, INCLUSIVE. THIS QUESTION APPEARS TO BE ADVANCED SOLELY BY REASON OF THE DETERMINATION STATED TO HAVE BEEN MADE BY THE SECRETARY OF THE NAVY ON FEBRUARY 29, 1956, THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD THAT LIEUTENANT SOLLNER WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST, THAT LIEUTENANT SOLLNER WAS "PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS RANK.'

LIEUTENANT SOLLNER'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WAS NOT IN FACT TERMINATED UNTIL SEPTEMBER 18, 1956, AND THE DETERMINATION OF FEBRUARY 29, 1956, RESPECTING HIS PHYSICAL FITNESS DID NOT CONSTITUTE ORDERS PLACING LIEUTENANT SOLLNER IN AN ACTIVE-DUTY STATUS. THE CONCLUSION IS REQUIRED, THEREFORE, THAT LIEUTENANT SOLLNER IS NOT ENTITLED TO RECEIVE ACTIVE-DUTY BASIC PAY AS PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 FOR ANY PART OF THE PERIOD FROM MARCH 1, 1956, TO SEPTEMBER 18, 1956, INCLUSIVE. THE SECOND QUESTION ALSO IS ANSWERED IN THE NEGATIVE.