B-140467, AUGUST 18, 1959, 39 COMP. GEN. 108

B-140467: Aug 18, 1959

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AN OFFICER WHO HAS BEEN CONSIDERED BUT NOT SELECTED FOR CONTINUATION ON THE ACTIVE LIST AND WHO IS ELIGIBLE FOR THE $2. WHO IS SUBSEQUENTLY RETIRED FOR DISABILITY IS NOT ENTITLED TO THE $2. THE PLACEMENT OF A NAVY OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 IS NOT A FINAL AND PERMANENT REMOVAL FROM THE ACTIVE LIST BUT MERELY THE INITIAL STEP IN A SERIES WHICH MAY LEAD TO A RETURN TO DUTY. RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY SO THAT AN OFFICER WHO IS OTHERWISE ELIGIBLE FOR THE $2. WHO IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IS NOT ENTITLED TO THE $2. ALTHOUGH A NAVY OFFICER WHO IS HOSPITALIZED OR IS BEING PHYSICALLY EVALUATED FOR POSSIBLE DISABILITY RETIREMENT AT THE TIME IT IS DETERMINED HE IS ELIGIBLE FOR RETIREMENT UNDER THE ACT OF AUGUST 11.

B-140467, AUGUST 18, 1959, 39 COMP. GEN. 108

MILITARY PERSONNEL - VOLUNTARY RETIREMENT PRIOR TO DATE OF INVOLUNTARY RETIREMENT - LUMP-SUM PAYMENT - ACT OF AUGUST 11, 1959, PUBLIC LAW 86 155 A DISABILITY RETIREMENT OF A NAVY OFFICER UNDER 10 U.S.C. 1201 MAY NOT BE REGARDED AS A VOLUNTARY RETIREMENT UNDER SECTION 2 (E) OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155; HENCE, AN OFFICER WHO HAS BEEN CONSIDERED BUT NOT SELECTED FOR CONTINUATION ON THE ACTIVE LIST AND WHO IS ELIGIBLE FOR THE $2,000 PAYMENT PROVIDED IN THE ACT OF AUGUST 11, 1959, BUT WHO IS SUBSEQUENTLY RETIRED FOR DISABILITY IS NOT ENTITLED TO THE $2,000 PAYMENT AS AN OFFICER VOLUNTARY TIRED. THE PLACEMENT OF A NAVY OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 IS NOT A FINAL AND PERMANENT REMOVAL FROM THE ACTIVE LIST BUT MERELY THE INITIAL STEP IN A SERIES WHICH MAY LEAD TO A RETURN TO DUTY, RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY SO THAT AN OFFICER WHO IS OTHERWISE ELIGIBLE FOR THE $2,000 PAYMENT PROVIDED IN THE ACT OF AUGUST 11, 1959, FOR OFFICERS VOLUNTARILY RETIRED, BUT WHO IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IS NOT ENTITLED TO THE $2,000 PAYMENT. ALTHOUGH A NAVY OFFICER WHO IS HOSPITALIZED OR IS BEING PHYSICALLY EVALUATED FOR POSSIBLE DISABILITY RETIREMENT AT THE TIME IT IS DETERMINED HE IS ELIGIBLE FOR RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, BUT WHO IS SUBSEQUENTLY RETIRED FOR DISABILITY IS NOT ENTITLED TO THE $2,000 PAYMENT FOR VOLUNTARY RETIREMENTS UNDER THE 1959 ACT, THE DETERMINING FACTOR BEING THE TYPE OF RETIREMENT EFFECTED, IF THE OFFICER IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND RETIRED UNDER THE 1959 ACT, HE IS ENTITLED TO THE LUMP SUM PAYMENT. A NAVY OFFICER WHO HAS SUBMITTED AN APPLICATION FOR VOLUNTARY RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, BUT WHO IS RETIRED FOR DISABILITY MAY NOT BE REGARDED AS RETIRED UNDER THE 1959 ACT TO BE ENTITLED TO THE $2,000 LUMP-SUM PAYMENT FOR VOLUNTARY RETIREMENTS. A NAVY OFFICER WHO, PRIOR TO ACTION OF THE SELECTION BOARD ON THE CONTINUATION OF THE MEMBER ON ACTIVE DUTY, APPLIES FOR VOLUNTARY RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, AND IS VOLUNTARILY RETIRED IS ENTITLED TO THE $2,000 LUMP-SUM PAYMENT PROVIDED THAT THE OFFICER'S NAME WAS CONSIDERED BY THE BOARD AND NOT SELECTED FOR CONTINUATION PRIOR TO THE APPROVAL OF HIS RETIREMENT APPLICATION, THE TIME OF SUBMISSION OF THE APPLICATION NOT BEING MATERIAL TO ENTITLEMENT TO PAYMENT. A NAVY OFFICER WHOSE APPLICATION FOR VOLUNTARY RETIREMENT WAS APPROVED PRIOR TO THE ENACTMENT OF PUBLIC LAW 85-155, AUGUST 11, 1959, OR AFTER ENACTMENT THEREOF BUT PRIOR TO ACTION BY A SELECTION BOARD, IS NOT ENTITLED TO THE $2,000 LUMP-SUM PAYMENT, SINCE THE REQUIREMENT IN SECTION 2 (D) OF THE 1959 ACT THAT THE MEMBER BE RECOMMENDED FOR NONCONTINUATION ON ACTIVE DUTY BY THE SELECTION BOARD IS A CONDITION PRECEDENT TO ENTITLEMENT TO THE LUMP-SUM PAYMENT.

TO THE SECRETARY OF THE NAVY, AUGUST 18, 1959:

REFERENCE IS MADE TO LETTER OF AUGUST 11, 1959, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION ON CERTAIN QUESTIONS AS TO THE RIGHT TO A LUMP-SUM PAYMENT OF $2,000 UNDER SECTION 2 (D) OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, 86TH CONGRESS, 73 STAT. 336. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N 445 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE PURPOSE OF THE ACT OF AUGUST 11, 1959, IS TO RETAIN IN THE SERVICE, AND PROVIDE OPPORTUNITY FOR PROMOTION OF, EXPERIENCED AND EFFICIENT OFFICERS IN SENIOR GRADES IN THE REGULAR NAVY AND REGULAR MARINE CORPS BY MANDATORY RETIREMENT OF CERTAIN OTHER OFFICERS. IT IS INTENDED THAT SUCH MANDATORY RETIREMENTS PRIOR TO THE TIME WHEN SUCH OFFICERS WOULD BE INVOLUNTARILY RETIRED UNDER OTHER EXISTING LAWS WOULD CORRECT, IN PART AT LEAST, THE STAGNATION IN PROMOTION OPPORTUNITIES RESULTING FROM THE PRESENCE ON THE PROMOTION LISTS OF LARGE NUMBERS OF OFFICERS APPOINTED DURING WORLD WAR II (THE"HUMP"). OFFICERS RETIRED UNDER THE PROVISIONS OF THE ACT--- EXCEPT THOSE WHOSE PERFORMANCE OF DUTY WOULD NOT WARRANT RETENTION ON THE ACTIVE LIST UNDER ANY CIRCUMSTANCES--- ARE GRANTED A LUMP -SUM PAYMENT OF $2,000. OFFICERS, WHO OTHERWISE WOULD BE ENTITLED TO SUCH PAYMENT UPON MANDATORY RETIREMENT UNDER THE ACT, ARE ENTITLED TO RECEIVE IT IF THEY VOLUNTARILY RETIRE BEFORE THE DATES ON WHICH THEY WOULD BE INVOLUNTARILY RETIRED UNDER THE ACT.

THE MANDATORY RETIREMENTS, WITH EXCEPTIONS NOT HERE PERTINENT, SHALL BE EFFECTED ON JUNE 30 OF THE FISCAL YEAR IN WHICH THE REPORT OF THE CONTINUATION BOARD IS APPROVED (SECTION 1 (I) OF THE ACT), 73 STAT. 335, OR, IF THE REPORT IS APPROVED LESS THAN SIX MONTHS BEFORE THE END OF THE FISCAL YEAR, ON THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE MONTH IN WHICH THE REPORT IS APPROVED (SECTION 1 (K) ). THE ACT, INSOFAR AS SELECTIONS FOR CONTINUATION ARE CONCERNED, HAS NO FORCE OR EFFECT AFTER JUNE 30, 1965 (SECTION 8), 73 STAT. 337.

SECTION 2 (D) OF THE ACT, 10 U.S.C. 5701 NOTE, PROVIDES THAT:

AN OFFICER WHO ON THE DATE OF ENACTMENT OF THIS ACT IS SERVING IN THE GRADE OF CAPTAIN OR COMMANDER IN THE REGULAR NAVY OR COLONEL OR LIEUTENANT COLONEL IN THE REGULAR MARINE CORPS OR IS ON A PROMOTION LIST FOR PROMOTION TO ONE OF THOSE GRADES, WHO IS NOT THEREAFTER RECOMMENDED FOR PROMOTION TO A HIGHER GRADE, AND WHOSE NAME HAS NOT BEEN REPORTED IN THE APPROVED REPORT OF A BOARD IN COMPLIANCE WITH SUBSECTION 1 (H) OF THIS ACT, AND WHO IS RETIRED UNDER THIS ACT SHALL BE PAID, IN ADDITION TO HIS RETIRED PAY, A LUMP-SUM PAYMENT OF $2,000 EFFECTIVE ON THE DATE OF HIS RETIREMENT.

SECTION 2 (E) OF THE ACT, 10 U.S.C. 5701 NOTE, IS AS FOLLOWS:

AN OFFICER WHO HAS THE QUALIFICATIONS SPECIFIED IN SUBSECTION (D) AND WHO HAS BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST PURSUANT TO SECTION 1 OF THIS ACT SHALL BE CONSIDERED FOR THE PURPOSE OF SUBSECTION (D) AS BEING RETIRED UNDER THIS ACT IF THE OFFICER RETIRES VOLUNTARILY PRIOR TO THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS ACT.

THE QUESTIONS PRESENTED ARE SEPARATELY QUOTED AND ANSWERED BELOW.

QUESTION 1

MAY AN OFFICER WHO HAS BEEN CONSIDERED BUT NOT SELECTED FOR CONTINUATION ON THE ACTIVE LIST, AND WHO IS OTHERWISE ELIGIBLE FOR THE $2000 PAYMENT, BUT WHO IS THEREAFTER DETERMINED TO HAVE A PERMANENT PHYSICAL DISABILITY, BE RETIRED FOR DISABILITY UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND ALSO BE PAID THE $2000 AS AN OFFICER WHO "RETIRED VOLUNTARILY PRIOR TO THE DATE SPECIFIED FOR HIS RETIREMENT" AS PROVIDED IN SECTION 2 (E) OF THE ACT?

THE LAW RELATING TO DISABILITY RETIREMENTS (10 U.S.C. CHAPTER 61) PROVIDES THAT THE SECRETARY CONCERNED MAY RETIRE A MEMBER FOUND TO BE PHYSICALLY UNFIT TO PERFORM HIS MILITARY DUTIES. THUS THE DECISION AS TO WHETHER A MEMBER IS TO BE RETIRED FOR DISABILITY RESTS WITH THE GOVERNMENT AND NOT WITH THE MEMBER. ACCORDINGLY, A DISABILITY RETIREMENT IS NOT REGARDED AS A VOLUNTARY RETIREMENT. IN FACT, SUCH A RETIREMENT MAY WELL BE, AND UNDOUBTEDLY OFTEN IS, DIRECTLY CONTRARY TO THE OFFICER'S WISHES. MOREOVER, TO GRANT A LUMP-SUM PAYMENT OF $2000 TO AN OFFICER RETIRED FOR DISABILITY WHO HAD BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST WHILE DENYING SUCH PAYMENT TO AN OFFICER RETIRED FOR DISABILITY WITH THE SAME GRADE AND LENGTH OF SERVICE WHO HAD BEEN CONSIDERED AND RECOMMENDED FOR SUCH CONTINUATION BECAUSE OF SUPERIOR PERFORMANCE OR QUALIFICATIONS, WOULD BE TO DISCRIMINATE AGAINST THE MORE COMPETENT AND ABLE MEMBERS.

QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2

MAY SUCH AN OFFICER, WHO IS FOUND TO HAVE A DISABILITY WHICH MAY BE PERMANENT, BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 AND ALSO BE PAID THE $2,000?

PLACEMENT OF A MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST IS "MERELY THE INITIAL STEP IN A SERIES WHICH WILL LEAD EITHER TO A RETURN TO DUTY, RETIREMENT, OR SEPARATION FOR PHYSICAL DISABILITY.' 37 COMP. GEN. 166, 169. NOT UNTIL THE SERIES IS COMPLETED IS AN OFFICER RETIRED WITHIN THE SENSE OF A FINAL AND PERMANENT REMOVAL FROM THE ACTIVE LIST, IF HE IS RETIRED AT ALL.

QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3

WOULD THE FACT THAT SUCH AN OFFICER IS HOSPITALIZED OR IS BEING PHYSICALLY EVALUATED WITH A VIEW TO POSSIBLE DISABILITY RETIREMENT AT THE TIME IT IS DETERMINED THAT HE MUST RETIRE UNDER THE PROVISIONS OF H.R. 4413 REQUIRE A DIFFERENT ANSWER.

THE DETERMINING FACTOR IS WHETHER THE OFFICER EVENTUALLY IS RETIRED FOR PHYSICAL DISABILITY OR IS RETIRED UNDER THE ACT OF AUGUST 11, 1959. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE NEGATIVE.

QUESTION 4

IF YOUR ANSWER TO QUESTION 2 IS IN THE NEGATIVE, WOULD THE OFFICER INVOLVED SUBSEQUENTLY BECOME ENTITLED TO THE $2000 PAYMENT AT SUCH TIME AS HE IS (A) DETERMINED TO BE PERMANENTLY DISABLED AND RETIRED FOR DISABILITY, OR (B) REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND RETIRED UNDER THE PROVISIONS OF H.R. 4413?

QUESTION 4 (A) IS ANSWERED IN THE NEGATIVE. SEE ANSWER TO QUESTION 1. QUESTION 4 (B) IS ANSWERED IN THE AFFIRMATIVE, SINCE AN OFFICER WHO IS QUALIFIED FOR THE LUMP-SUM PAYMENT PROVIDED BY SECTION 2 (D) OF THE ACT OF AUGUST 11, 1959, AND WHO IS RETIRED UNDER THE PROVISIONS OF THAT ACT OBVIOUSLY IS ENTITLED TO SUCH PAYMENT. THE FACT THAT HE MAY HAVE BEEN ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, PROVIDES NO BASIS FOR HOLDING THAT HE IS NOT ENTITLED TO THE BENEFITS OF THE LUMP-SUM PAYMENT PROVISION OF THAT ACT.

QUESTION 5

WOULD YOUR ANSWER TO THE ABOVE QUESTIONS BE THE SAME IF THE OFFICER HAD SUBMITTED AN APPLICATION FOR VOLUNTARY RETIREMENT PRIOR TO THE DETERMINATION OF DISABILITY?

AS INDICATED IN THE DISCUSSION OF THE PRECEDING QUESTIONS, THE DETERMINING FACTOR IS THE TYPE OF RETIREMENT EVENTUALLY EFFECTED. THE TIME OF SUBMISSION OF AN APPLICATION FOR VOLUNTARY RETIREMENT IS NOT MATERIAL. IF AN OFFICER IS RETIRED FOR DISABILITY UNDER THE STATUTORY PROVISIONS AUTHORIZING RETIREMENT FOR DISABILITY, HE IS NOT RETIRED UNDER THE ACT OF AUGUST 11, 1959, AND, HENCE, HE IS NOT ENTITLED TO THE LUMP-SUM PAYMENT AUTHORIZED BY THAT ACT.

QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 6

MAY AN OFFICER WHO IS CONSIDERED BUT NOT SELECTED FOR CONTINUATION, AND WHO IS OTHERWISE ENTITLED TO PAYMENT OF $2000, RECEIVE THAT PAYMENT IF HE HAS, EITHER PRIOR TO ENACTMENT OF H.R. 4413, OR SUBSEQUENT THERETO BUT PRIOR TO ACTION BY THE SELECTION BOARD, APPLIED FOR VOLUNTARY RETIREMENT AND IS VOLUNTARILY RETIRED PRIOR TO THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS ACT?

AS STATED IN THE ANSWER TO QUESTION 5, THE TIME OF SUBMITTING AN APPLICATION FOR VOLUNTARY RETIREMENT IS NOT MATERIAL. ON THE ASSUMPTION THAT THE OFFICER'S NAME WAS CONSIDERED BY THE CONTINUATION BOARD PRIOR TO THE APPROVAL OF HIS APPLICATION, QUESTION 6 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 7

WOULD THE FACT THAT HIS APPLICATION FOR VOLUNTARY RETIREMENT WAS APPROVED PRIOR TO ENACTMENT OF THE ACT, OR SUBSEQUENT THERETO BUT PRIOR TO ACTION BY THE SELECTION BOARD, BE MATERIAL IN THE ANSWER TO QUESTION 6?

IF THE OFFICER'S APPLICATION FOR VOLUNTARY RETIREMENT WAS APPROVED PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 11, 1959, WE CAN SEE NO NECESSITY FOR CONSIDERATION UNDER THAT ACT OF THE QUESTION OF WHETHER HE SHOULD BE INVOLUNTARILY RETIRED THEREUNDER. IF HE NEVER WAS SUBJECT TO SUCH INVOLUNTARY RETIREMENT, HE IS NOT ENTITLED TO A LUMP-SUM PAYMENT OF $2,000. ALSO, IF THE APPLICATION FOR VOLUNTARY RETIREMENT WAS APPROVED SUBSEQUENT TO THE ENACTMENT OF THE ACT BUT BEFORE A RETENTION BOARD CONSIDERED WHETHER THE OFFICER SHOULD BE FORCED INTO INVOLUNTARY RETIREMENT, WE SEE NO REASON FOR CONSIDERATION BY SUCH A BOARD.

QUESTION 7 IS ANSWERED BY SAYING THAT ON THE INFORMATION NOW BEFORE US THE OFFICER WOULD NOT BE ENTITLED TO A LUMP-SUM PAYMENT UNDER EITHER OF THE ALTERNATIVE SITUATIONS THEREIN SET FORTH, SINCE SECTION 2 (D) REQUIRES A RECOMMENDATION FOR NONCONTINUATION BY THE BOARD AS A CONDITION PRECEDENT TO ENTITLEMENT TO THE LUMP-SUM PAYMENT.