B-142334, JUN. 30, 1960

B-142334: Jun 30, 1960

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25. IN YOUR LETTER YOU STATED THAT THE CLAIM IS NOT BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. AFTER SERVING THROUGH SUCCESSIVE ENLISTMENTS WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON MARCH 3. SOMERSET WAS RECALLED TO ACTIVE DUTY. HE WAS PROMOTED TO ACTING PAY CLERK. IT IS ALSO REPORTED THAT ON NOVEMBER 1. SOMERSET WAS RETIRED PURSUANT TO SECTION 203 OF THE NAVAL RESERVE ACT OF 1938. IT IS FURTHER REPORTED THAT RETIREMENT WAS NOT EFFECTED FOR PHYSICAL DISABILITY REASONS. SOMERSET WAS RELEASED TO INACTIVE DUTY ON DECEMBER 2. SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK. "/F) THE JURISDICTION OF NAVAL RETIRING BOARDS IS HEREBY EXTENDED AS MAY BE NECESSARY IN THE ADMINISTRATION OF THIS SECTION.

B-142334, JUN. 30, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25, 1960, REQUESTING RECONSIDERATION OF SETTLEMENT DATED FEBRUARY 9, 1960, WHICH DISALLOWED THE CLAIM OF ALFRED SOMERSET, ACTING PAY CLERK, UNITED STATES NAVY, RETIRED, FOR INCREASED RETIRED PAY FOR THE PERIOD FROM NOVEMBER 1, 1949, THROUGH DATE OF SETTLEMENT.

IN YOUR LETTER YOU STATED THAT THE CLAIM IS NOT BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 52 STAT. 368- -- THE BASIS OF THE DISALLOWANCE SETTLEMENT OF FEBRUARY 9, 1960--- BUT UPON THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604.

IT APPEARS FROM A REPORT OF MR. SOMERSET'S NAVAL SERVICE THAT HE ENLISTED IN THE UNITED STATES NAVY ON FEBRUARY 9, 1915, AND AFTER SERVING THROUGH SUCCESSIVE ENLISTMENTS WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON MARCH 3, 1935. MR. SOMERSET WAS RECALLED TO ACTIVE DUTY, INAN ENLISTED GRADE, ON JUNE 16, 1941; ON JUNE 15, 1943, HE WAS PROMOTED TO ACTING PAY CLERK, A WARRANT OFFICER GRADE, AND REMAINED ON ACTIVE DUTY UNTIL DECEMBER 15, 1944. IT IS ALSO REPORTED THAT ON NOVEMBER 1, 1944, MR. SOMERSET WAS RETIRED PURSUANT TO SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178. IT IS FURTHER REPORTED THAT RETIREMENT WAS NOT EFFECTED FOR PHYSICAL DISABILITY REASONS.

IN YOUR LETTER YOU URGE THAT MR. SOMERSET WAS RELEASED TO INACTIVE DUTY ON DECEMBER 2, 1944 (THE PERIOD DECEMBER 3-15, 1944, APPARENTLY BEING A PERIOD OF LEAVE INCIDENT TO RELEASE FROM ACTIVE DUTY), UPON THE RECOMMENDATION OF A BOARD OF MEDICAL SURVEY BECAUSE OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, AND THAT THE BOARD OF MEDICAL SURVEY SPECIFICALLY FOUND HIM TO BE PHYSICALLY UNFIT FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.

SECTION 8 OF THE ACT OF JULY 24, 1941, PROVIDED IN PERTINENT PART AS FOLLOWS:

"SEC. 8. (A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

"/F) THE JURISDICTION OF NAVAL RETIRING BOARDS IS HEREBY EXTENDED AS MAY BE NECESSARY IN THE ADMINISTRATION OF THIS SECTION, AND THEIR PROCEEDINGS SHALL BE CONDUCTED IN ALL RESPECTS AS PROVIDED BY EXISTING LAW AND REGULATIONS EXCEPT AS MAY BE NECESSARY TO ADOPT THE SAME TO CASES PROVIDED FOR IN THIS SECTION.

"/G) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN ANY CASE UNLESS THE PROCEEDINGS OF THE NAVAL RETIRING BOARD SHALL BE COMMENCED WITHIN SIX MONTHS FROM THE TERMINATION OF THE TEMPORARY APPOINTMENT OR RELEASE FROM ACTIVE DUTY OF THE INDIVIDUAL CONCERNED WHICHEVER MAY OCCUR EARLIER.'

INFORMATION NOW FURNISHED US BY THE DEPARTMENT OF THE NAVY INDICATES THAT BY LETTER DATED SEPTEMBER 19, 1947, MR. SOMERSET REQUESTED AN APPEARANCE BEFORE A NAVAL RETIRING BOARD, BUT THAT SUCH REQUEST WAS DENIED. LETTER DATED NOVEMBER 14, 1947, THE CHIEF OF NAVAL PERSONNEL ADVISED MR. SOMERSET OF THE DENIAL, IN PART, AS FOLLOWS:

"3. THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY HAS COMMENTED AS FOLLOWS CONCERNING YOUR REQUEST:

"THE MEDICAL RECORD ON FILE SHOWS THAT THE SUBJECT OFFICER WAS ADMITTED TO THE SICK LIST WITH THE SIGNS AND SYMPTOMS OF DUODENAL ULCER IN OCT. 1943 AT WHICH TIME HE WAS SERVING UNDER A TEMPORARY APPOINTMENT AS ACTING PAY CLERK. THE MEDICAL HISTORY OBTAINED AT THAT TIME LEAVES NO DOUBT THAT HE HAD BEEN SUFFERING FROM A DUODENAL ULCER FOR A NUMBER OF YEARS AND THAT THIS CONDITION HAD QUITE CLEARLY BEEN INCURRED PRIOR TO HIS TEMPORARY APPOINTMENT AS AN OFFICER. HE WAS AGAIN ADMITTED TO THE SICK LIST IN AUG 1944 UNDER THE DIAGNOSIS ULCER, DUODENUM, AND RECOMMENDED THAT HE BE RETURNED TO THE INACTIVE LIST OF THE U.S. NAVAL FLEET RESERVE. THE BOARD'S RECOMMENDATION WAS APPROVED BOTH BY THIS BUREAU AND THE BUREAU OF NAVAL PERSONNEL.

"INASMUCH AS INFORMATION IN THE MEDICAL RECORD INDICATES THAT THE PHYSICAL DISABILITY BY REASON OF WHICH THIS OFFICER WAS RELEASED TO INACTIVE DUTY WAS NOT INCURRED WHILE SERVING UNDER A TEMPORARY APPOINTMENT AS AN OFFICER, AND IN ALL PROBABILITY WAS NOT EVEN INCURRED IN THE LINE OF DUTY, THIS BUREAU DOES NOT RECOMMEND APPROVAL OF HIS REQUEST FOR AUTHORITY TO APPEAR BEFORE A NAVAL RETIRING BOARD.'

IN VIEW OF THE DETERMINATION BY THE BUREAU OF MEDICINE AND SURGERY THAT THE DISABILITY, BY REASON OF WHICH MR. SOMERSET WAS RELEASED FROM ACTIVE DUTY IN DECEMBER 1944, WAS NOT INCURRED WHILE SERVING UNDER HIS OFFICER APPOINTMENT, HE IS NOT ENTITLED TO THE BENEFITS PROVIDED IN SECTION 8 (A) OF THE ACT OF JULY 24, 1941, SUPRA.

ASIDE FROM THE ABOVE CONSIDERATIONS, IT APPEARS THAT MR. SOMERSET FIRST MADE APPLICATION TO THE NAVAL RETIRING BOARD FOR PHYSICAL DISABILITY RETIREMENT ON SEPTEMBER 19, 1947, A DATE MORE THAN SIX MONTHS AFTER THE TERMINATION OF THE TEMPORARY APPOINTMENT AS ACTING PAY CLERK AND RELEASE FROM ACTIVE DUTY, AND PURSUANT TO SECTION 8 (G) OF THE ACT OF JULY 24, 1941, THE PROVISIONS OF SECTION 8 BECAME INAPPLICABLE.

ACCORDINGLY, FOR THE ABOVE REASONS FAVORABLE CONSIDERATION MAY NOT BE GIVEN THE CLAIM AND THE DISALLOWANCE OF MR. SOMERSET'S CLAIM BY SETTLEMENT DATED FEBRUARY 9, 1960, IS SUSTAINED.