B-134123, DEC. 30, 1957

B-134123: Dec 30, 1957

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IS ENTITLED. IT APPEARS THAT LIEUTENANT MILLS WAS RELEASED FROM ACTIVE DUTY FOR REASONS OTHER THAN PHYSICAL DISABILITY ON SEPTEMBER 29. HE WAS PLACED ON THE RETIRED LIST ON APRIL 1. YOU STATE THAT HE WAS PAID AS A LIEUTENANT WITH OVER 9 YEARS OF SERVICE FROM APRIL 1. HIS RETIRED PAY WAS REDUCED TO THAT OF A LIEUTENANT WITH OVER 4 YEARS OF SERVICE. SUCH ACTION PRESUMABLY WAS TAKEN ANTICIPATING A POSSIBLE APPLICATION OF THE CITED DECISION OF SEPTEMBER 14. IT IS STATED IN ENDORSEMENT OF THE COMPTROLLER OF THE NAVY DATED SEPTEMBER 20. THAT THE DISABILITY RETIREMENT PAY THAT LIEUTENANT MILLS HAS BEEN RECEIVING WAS PAID ON THE BASIS OF OUR DECISION OF SEPTEMBER 10. LATER DETERMINED TO HAVE BEEN DISABLED.

B-134123, DEC. 30, 1957

TO MR. L. A. CAMPBELL, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

BY UNDATED LETTER, FILE JAG:1342.2:SH108479, RECEIVED HERE ON OCTOBER 15, 1957, THE JUDGE ADVOCATE GENERAL OF THE NAVY TRANSMITTED YOUR LETTER OF JUNE 4, 1957, WITH ENDORSEMENTS AND ENCLOSURE, REQUESTING DECISION WHETHER LIEUTENANT GEORGE H. MILLS, JR., USNR (RETIRED), IS ENTITLED, UNDER OUR DECISION OF SEPTEMBER 14, 1956, B 121663 (36 COMP. GEN. 210), TO THE BENEFITS OF A RETROACTIVE ADJUSTMENT OF HIS RETIRED PAY COVERING THE PERIOD FROM SEPTEMBER 30, 1945, TO MARCH 31, 1949.

IT APPEARS THAT LIEUTENANT MILLS WAS RELEASED FROM ACTIVE DUTY FOR REASONS OTHER THAN PHYSICAL DISABILITY ON SEPTEMBER 29, 1945, AND THAT UNDER AUTHORITY OF THE PROVISIONS OF 34 U.S.C. 417, 855C-1, AND 350I, HE WAS PLACED ON THE RETIRED LIST ON APRIL 1, 1949, ON WHICH DATE HE HAD COMPLETED 5 YEARS, 8 MONTHS, AND 24 DAYS OF ACTIVE SERVICE AND A COMBINED TOTAL OF 9 YEARS, 5 MONTHS, AND 2 DAYS OF ACTIVE AND INACTIVE SERVICE. YOU STATE THAT HE WAS PAID AS A LIEUTENANT WITH OVER 9 YEARS OF SERVICE FROM APRIL 1, 1949, THE DATE OF RETIREMENT, THROUGH SEPTEMBER 30, 1949, AND THAT FROM OCTOBER 1, 1949, THROUGH APRIL 30, 1957, HE RECEIVED RETIRED PAY BASED ON THE MONTHLY BASIC PAY OF A LIEUTENANT WITH OVER 8 YEARS OF SERVICE MULTIPLIED BY 60 PERCENT DISABILITY IN ACCORDANCE WITH HIS ELECTION UNDER METHOD 1 OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. YOU STATE FURTHER THAT EFFECTIVE MAY 1, 1957, HIS RETIRED PAY WAS REDUCED TO THAT OF A LIEUTENANT WITH OVER 4 YEARS OF SERVICE. SUCH ACTION PRESUMABLY WAS TAKEN ANTICIPATING A POSSIBLE APPLICATION OF THE CITED DECISION OF SEPTEMBER 14, 1956, IN HIS CASE ON THE BASIS OF HIS EARNED SERVICE CREDITS AS OF SEPTEMBER 29, 1945, THE DATE OF HIS RELEASE FROM ACTIVE DUTY. IT IS STATED IN ENDORSEMENT OF THE COMPTROLLER OF THE NAVY DATED SEPTEMBER 20, 1957, THAT THE DISABILITY RETIREMENT PAY THAT LIEUTENANT MILLS HAS BEEN RECEIVING WAS PAID ON THE BASIS OF OUR DECISION OF SEPTEMBER 10, 1951, 31 COMP. GEN. 78, HOLDING THAT AN OFFICER RELEASED FROM ACTIVE DUTY FOR REASONS OTHER THAN PHYSICAL DISABILITY, AND LATER DETERMINED TO HAVE BEEN DISABLED, IS ENTITLED TO RETIRED PAY ONLY FROM THE DATE OF SUCH DETERMINATION BUT MAY BE CREDITED WITH LONGEVITY FOR THE INTERVENING PERIOD.

IN THE CITED DECISION OF SEPTEMBER 14, 1956, (36 COMP. GEN. 210), TO THE SECRETARY OF DEFENSE, THERE WAS CONSIDERED THE QUESTION WHETHER WE WOULD FOLLOW THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF FURMAN H. UPDIKE V. THE UNITED STATES, 132 C.CLS. 627, RESPECTING RETROACTIVE AND PROSPECTIVE PAYMENTS OF DISABILITY RETIREMENT PAY IN OTHER SIMILAR CASES. THE UPDIKE DECISION ESTABLISHED THE RULE THAT IF AN INDIVIDUAL IN FACT QUALIFIES FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 555, 557--- WHICH PROVIDED PENSION, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS TO AUS PERSONNEL, OTHER THAN THOSE IN THE REGULAR ARMY, WHO SUFFERED DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE ON EXTENDED ACTIVE DUTY EQUAL TO THOSE PROVIDED BY LAW OR REGULATION FOR MEMBERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR ARMY--- HE IS ENTITLED TO SUCH RETIRED PAY BENEFITS FROM THE DATE OF HIS QUALIFICATION EVEN THOUGH THE PREEXISTING FACTS QUALIFYING HIM WERE NOT DETERMINED BY COMPETENT AUTHORITY UNTIL A LATER DATE. IN THE DECISION OF SEPTEMBER 14, 1956, IT WAS CONCLUDED THAT WE WOULD FOLLOW THE DECISION IN THE UPDIKE CASE IN SIMILAR CASES WHERE THE FACTS CLEARLY ESTABLISH THAT THE DISABILITY RETIREMENT STATUS OF THE INDIVIDUAL COMES WITHIN THE SCOPE OF THAT DECISION.

QUALIFICATION FOR DISABILITY RETIREMENT PAY UNDER THE 1939 ACT WAS HELD IN THE UPDIKE CASE TO HAVE OCCURRED AT THE TIME OF RELEASE FROM ACTIVE DUTY, SINCE IT WAS DETERMINED BY A PHYSICAL EVALUATION BOARD THAT UPDIKE AT THAT TIME HAD BECOME UNFIT TO PERFORM THE DUTIES OF HIS OFFICE AND THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF HIS MILITARY SERVICE, THE COURT HOLDING THAT THE RIGHT TO RETIRED PAY IS FOR DETERMINATION ACCORDING TO THE FACTS EXISTING ON THE DATE OF THE OFFICER'S SEPARATION FROM THE SERVICE AND ACCORDING TO THE LAW IN EFFECT AS OF THAT TIME. SUCH DECISION IS NOT AUTHORITY FOR THE PAYMENT OF RETIREMENT PAY BENEFITS UNDER THE 1939 ACT, OR UNDER COMPARABLE STATUTORY PROVISIONS FOR NAVAL PERSONNEL, UNLESS THE QUALIFYING DISABILITY RENDERING THE MEMBER UNFIT FOR THE PERFORMANCE OF THE DUTIES OF HIS OFFICE WERE FOUND BY COMPETENT AUTHORITY TO HAVE BEEN THE PROXIMATE RESULT OF HIS MILITARY SERVICE AND TO HAVE EXISTED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. CONSEQUENTLY, LIEUTENANT MILLS MAY BE CONSIDERED AS ENTITLED TO BENEFITS UNDER THE RULE IN THE UPDIKE CASE ONLY UPON A SHOWING OF A FINDING BY COMPETENT AUTHORITY THAT HIS INCAPACITATING DISABILITY EXISTED ON SEPTEMBER 29, 1945.

IN A LETTER DATED APRIL 15, 1949, FROM THE SECRETARY OF THE NAVY, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF JUNE 4, 1957, LIEUTENANT MILLS WAS ADVISED IN PART AS FOLLOWS:

"THE NAVAL RETIRING BOARD WHICH CONVENED IN YOUR CASE ON 16 NOVEMBER 1948 AT THE NAVY DEPARTMENT, WASHINGTON, D.C., FOUND THAT YOU ARE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE WHILE EMPLOYED ON ACTIVE DUTY PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS, BUT PRIOR TO COMMENCEMENT OF SERVICE UNDER A TEMPORARY APPOINTMENT IN THE RANK OF LIEUTENANT.'

THE FINDING OF THE NAVAL RETIRING BOARD, AS REPORTED ABOVE, DOES NOT APPEAR TO EVIDENCE A FINDING OF AN INCAPACITATING PHYSICAL DISABILITY INCURRED WHILE ON ACTIVE DUTY AND EXISTING ON SEPTEMBER 29, 1945, THE DATE OF HIS RELEASE FROM ACTIVE DUTY, BUT RATHER ONLY A FINDING OF A DISABILITY EXISTING ON NOVEMBER 16, 1948, WHICH WAS INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE WHILE ON ACTIVE DUTY. IN THE ABSENCE OF FURTHER CLARIFICATION IN THE MATTER TO SHOW THAT THE BOARD'S FINDING WAS THAT LIEUTENANT MILLS' INCAPACITATING PHYSICAL DISABILITY EXISTED ON JUNE 29, 1945, IT MAY NOT PROPERLY BE CONSIDERED THAT THE OFFICER IS ENTITLED TO ADDITIONAL BENEFITS UNDER THE RULE STATED IN THE UPDIKE CASE.