B-143484, AUG. 23, 1960

B-143484: Aug 23, 1960

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YOU STATE THAT CAPTAIN HOLT WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE UNITED STATES NAVY ON JULY 1. THAT HE ELECTED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF YEARS OF ACTIVE SERVICE WHICH. WAS OVER 30 YEARS. CAPTAIN HOLT WAS ADVISED THAT HE WAS FOUND FIT FOR DUTY AND HE WAS ORDERED TO RETURN TO ACTIVE MILITARY SERVICE ON JUNE 30. IT IS SHOWN THAT HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WAS TERMINATED ON AUGUST 31. WHEN HE WAS RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 6376. HE WAS PAID RETIRED PAY AT THE GROSS MONTHLY RATE OF $738.75 WHICH REPRESENTED 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 30 YEARS' SERVICE AS PRESCRIBED IN THE ACT OF MAY 21.

B-143484, AUG. 23, 1960

TO LIEUTENANT COMMANDER EDWIN C. DODD:

BY SECOND ENDORSEMENT DATED JULY 12, 1960, THE COMPTROLLER OF THE NAVY FORWARDED TO THIS OFFICE YOUR LETTER OF JUNE 22, 1960, WHEREIN YOU REQUEST AN ADVANCE DECISION AS TO THE RATE OF RETIRED PAY DUE THE ESTATE OF CAPTAIN WALTER C. HOLT, USN, RETIRED, AS THE RESULT OF THE ACTION OF THE SECRETARY OF THE NAVY, DATED SEPTEMBER 15, 1959, IN TRANSFERRING THE OFFICER TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1958. YOUR REQUEST FOR ADVANCE DECISION HAS BEEN ASSIGNED SUBMISSION NO. DD-N- 515 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT CAPTAIN HOLT WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE UNITED STATES NAVY ON JULY 1, 1953, WITH A DISABILITY PERCENTAGE RATING OF 100 PERCENT AND THE HIGHEST RANK SATISFACTORILY HELD FOR PAY PURPOSES AS CAPTAIN; THAT HE ELECTED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF YEARS OF ACTIVE SERVICE WHICH, AT THE TIME OF RETIREMENT, WAS OVER 30 YEARS; AND THAT HE ALSO ELECTED OPTIONS 1 AND 4 UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 37 U.S.C. 371--- 381. BY ORDERS OF JUNE 24, 1958, CAPTAIN HOLT WAS ADVISED THAT HE WAS FOUND FIT FOR DUTY AND HE WAS ORDERED TO RETURN TO ACTIVE MILITARY SERVICE ON JUNE 30, 1958. IT IS SHOWN THAT HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WAS TERMINATED ON AUGUST 31, 1958, WHEN HE WAS RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 6376. UPON RELEASE FROM ACTIVE DUTY, HE WAS PAID RETIRED PAY AT THE GROSS MONTHLY RATE OF $738.75 WHICH REPRESENTED 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 30 YEARS' SERVICE AS PRESCRIBED IN THE ACT OF MAY 21, 1958, 72 STAT. 122. IT IS REPORTED THAT HE DIED ON SEPTEMBER 28, 1959.

YOU STATE FURTHER THAT ON JUNE 8, 1959, CAPTAIN HOLT PETITIONED THE PHYSICAL REVIEW COUNCIL FOR RELIEF FROM FINAL ACTION ON THE DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE; AND THAT ON SEPTEMBER 15, 1959, THE SECRETARY OF THE NAVY GRANTED HIS PETITION AND SET ASIDE THE FINDING THAT CAPTAIN HOLT WAS FIT FOR DUTY, SUBSTITUTING A FINDING PLACING HIM ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1958, WITH A DISABILITY RATE OF 100 PERCENT. SUCH ACTION WAS TAKEN UNDER THE PROVISIONS OF PARAGRAPH 0705 OF THE DISABILITY SEPARATION MANUAL. APPEARS THAT, ON THE BASIS OF HIS PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST, RETIRED PAY OF $644.90 PER MONTH WOULD BE PAYABLE COMMENCING JULY 1, 1958, COMPUTED AT 75 PERCENT OF THE BASIC PAY OF A CAPTAIN WITH OVER 30 YEARS' SERVICE, AS PRESCRIBED IN THE ACT OF MARCH 31, 1955, 69 STAT. 18, AND INCREASED BY 6 PERCENT PURSUANT TO SECTION 4 (A) OF THE ACT OF MAY 22, 1958, 72 STAT. 128.

YOU REQUEST DECISION ON THE FOLLOWING QUESTIONS:

(A) WAS THE ACTION TAKEN BY THE PHYSICAL REVIEW COUNCIL LEGAL?

(B) IF SO, WAS CAPTAIN HOLT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JUNE 30 TO AUGUST 31, 1958?

(C) IF NOT, WAS CAPTAIN HOLT ENTITLED TO A REFUND OF THE DIFFERENCE BETWEEN THE AMOUNT DEDUCTED FROM HIS RETIRED PAY WHILE ON THE TEMPORARY DISABILITY RETIRED LIST FOR THE COST OF THE ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND THE COST OF AN AMOUNT OF TERM INSURANCE WHICH IS EQUAL TO THE PROTECTION PROVIDED HIS DEPENDENTS DURING THAT PERIOD?

AUTHORITY TO PRESCRIBE REGULATIONS TO CARRY OUT THE PROVISIONS OF CHAPTER 61, TITLE 10, PERTAINING TO RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY (FORMERLY TITLE IV, CAREER COMPENSATION ACT OF 1949) IS FOUND IN 10 U.S.C. 1216. APPLICABLE REGULATIONS RELATING TO NAVAL PERSONNEL ARE CONTAINED IN THE DISABILITY SEPARATION MANUAL WHICH PROVIDES (PARAGRAPH 0705) THAT, UPON EXECUTION OF THE DIRECTIVE BY THE SECRETARY OF THE NAVY AS TO THE DISPOSITION OF A CASE, SUCH ACTION BECOMES FINAL AND MAY NOT BE CHANGED, MODIFIED, SET ASIDE OR REOPENED EXCEPT UPON A SHOWING OF CLERICAL MISTAKES, NEWLY DISCOVERED EVIDENCE, FRAUD, MISREPRESENTATION, OR OTHER MISCONDUCT, OR MISTAKE OF LAW. THE NEWLY DISCOVERED EVIDENCE MUST RELATE TO A FACT IN EXISTENCE AT THE TIME OF SUCH DISPOSITION WHICH COULD NOT HAVE BEEN PRESENTED AT THAT TIME, WHICH IS NOT MERELY CUMULATIVE AND WHICH WOULD HAVE WARRANTED A DIFFERENT ACTION HAD IT BEEN PRESENTED.

THE COURT OF CLAIMS HAS HELD IN A NUMBER OF CASES THAT A DETERMINATION BY A RETIREMENT BOARD, APPROVED BY THE SECRETARY CONCERNED, CAN BE REOPENED ONLY UPON A SHOWING OF MISTAKE IN LAW, MANIFEST ERROR, FRAUD, MATHEMATICAL MISCALCULATION OR NEW EVIDENCE SUBSEQUENTLY DISCOVERED OF SUFFICIENT PROBATIVE VALUE TO RAISE A REASONABLE DOUBT AS TO THE PRIOR FINDINGS. SEE CAMPBELL V. UNITED STATES, 132 CT.CL. 122, 127; CAPPS V. UNITED STATES, 133 CT.CL. 811. NO INFORMATION HAS BEEN FURNISHED AS TO THE BASIS FOR THE ACTION TAKEN BY THE SECRETARY OF THE NAVY ON SEPTEMBER 15, 1959. IN SUCH CIRCUMSTANCES, NO DETERMINATION AS TO THE LEGALITY OF SUCH ACTION CAN BE MADE AND NO ANSWER IS GIVEN TO QUESTIONS (A) AND (C). COMPARE 31 COMP. GEN. 296, 37 ID. 19.

WITH RESPECT TO THE QUESTION AS TO WHETHER CAPTAIN HOLT WAS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES PAID HIM FOR THE PERIOD JUNE 30, 1958, TO AUGUST 31, 1958, IT IS NOTED THAT PURSUANT TO THE AUTHORITY CONTAINED IN SECTIONS 1210 (F) AND 1211 (B) (1) OF TITLE 10 U.S.C., CAPTAIN HOLT WAS RECALLED TO ACTIVE DUTY ON JUNE 30, 1958, BY ORDERS OF JUNE 24, 1958, WHICH DIRECTED HIM TO REPORT FOR TEMPORARY DUTY PENDING REASSIGNMENT AND REMOVAL FROM A TEMPORARY DISABILITY RETIRED LIST AND FOR FURTHER ASSIGNMENT TO DUTY. SINCE HE SERVED ON ACTIVE DUTY PURSUANT TO ORDERS WHICH WERE PROPER AT THE TIME THEY WERE ISSUED, HIS RIGHTS TO ACTIVE DUTY PAY AND ALLOWANCES VESTED AND COULD NOT BE AFFECTED BY ANY SUBSEQUENT ACTION. COMPARE 31 COMP. GEN. 619, 623; 34 ID. 132; 39 ID. 312. ACCORDINGLY, QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE, REGARDLESS OF THE VALIDITY OR INVALIDITY OF THE SECRETARY'S ACTION OF SEPTEMBER 15, 1959.

IF, AFTER EXAMINING THE RECORD OF THE PROCEEDINGS BEFORE THE PHYSICAL REVIEW COUNCIL, YOU ARE STILL IN DOUBT AS TO THE VALIDITY OF THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE, THE MATTER SHOULD BE RESUBMITTED TOGETHER WITH A COMPLETE REPORT OF SUCH PROCEEDINGS.