B-143842, OCTOBER 31, 1960, 40 COMP. GEN. 240

B-143842: Oct 31, 1960

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WHICH AUTHORIZES ADVANCEMENT OF MEMBERS OF THE UNIFORMED SERVICES ON THE RETIRED LIST BECAUSE OF PHYSICAL DISQUALIFICATION ONLY IF THE DISQUALIFICATION IS DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION. IS CLEAR AND UNAMBIGUOUS AND DOES NOT REQUIRE CONSIDERATION OF EXTRANEOUS MATTERS FOR PURPOSES OF STATUTORY CONSTRUCTION. A MARINE CORPS OFFICER WHO WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST WITHOUT HAVING BEEN GIVEN A PROMOTION PHYSICAL EXAMINATION INCIDENT TO SELECTION FOR TEMPORARY PROMOTION TO GRADE OF MAJOR. IS NOT REGARDED AS HAVING THE DISABILITY DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION FOR ENTITLEMENT TO RETIRED PAY BASED ON THE GRADE OF MAJOR.

B-143842, OCTOBER 31, 1960, 40 COMP. GEN. 240

MILITARY PERSONNEL - RETIRED PAY - DISABILITY RETIREMENT - PROMOTION PHYSICAL EXAMINATION REQUIREMENT THE EXPRESS LANGUAGE IN 10 U.S.C. 1372, WHICH AUTHORIZES ADVANCEMENT OF MEMBERS OF THE UNIFORMED SERVICES ON THE RETIRED LIST BECAUSE OF PHYSICAL DISQUALIFICATION ONLY IF THE DISQUALIFICATION IS DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION, IS CLEAR AND UNAMBIGUOUS AND DOES NOT REQUIRE CONSIDERATION OF EXTRANEOUS MATTERS FOR PURPOSES OF STATUTORY CONSTRUCTION, THEREFORE, A MARINE CORPS OFFICER WHO WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST WITHOUT HAVING BEEN GIVEN A PROMOTION PHYSICAL EXAMINATION INCIDENT TO SELECTION FOR TEMPORARY PROMOTION TO GRADE OF MAJOR, UNDER 10 U.S.C. 5751 (B) (4), IS NOT REGARDED AS HAVING THE DISABILITY DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION FOR ENTITLEMENT TO RETIRED PAY BASED ON THE GRADE OF MAJOR.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, OCTOBER 21, 1960:

BY THIRD ENDORSEMENT DATED AUGUST 23, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF JUNE 9, 1960, WITH ENDORSEMENTS AND ENCLOSURES, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY RETIRED PAY TO JAMES L. BOWMAN, UNITED STATES MARINE CORPS, RETIRED, AS A MAJOR RATHER THAN AS A CAPTAIN, FROM AND AFTER JUNE 1, 1960. THE REQUEST HAS BEEN ASSIGNED NO. DO-MC-527 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT CAPTAIN JAMES L. BOWMAN, REGULAR MARINE CORPS, WAS SELECTED FOR TEMPORARY PROMOTION TO THE GRADE OF MAJOR UNDER 10 U.S.C. 5751 (B) (4), REQUIRING FOUR YEARS' SERVICE IN THE GRADE OF CAPTAIN FOR ELIGIBILITY FOR PROMOTION TO THE GRADE OF MAJOR AND THAT HIS COMMANDING OFFICER WAS DIRECTED ON SEPTEMBER 8, 1959, TO ORDER HIM TO BE PHYSICALLY EXAMINED DURING JANUARY 1960 FOR PROMOTION. IT FURTHER APPEARS THAT ON DECEMBER 1, 1959, CAPTAIN BOWMAN WAS ADMITTED TO A NAVAL HOSPITAL AS A PATIENT; AND THAT ON JUNE 1, 1960, HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST, WITH THE DIAGNOSIS OF ARTHRITIS AND PLEURISY, AND UNDER THE PURPORTED AUTHORITY OF CLAUSE 4 OF 10 U.S.C. 1372, BELOW, WAS ADVANCED TO THE GRADE OF MAJOR ON THE LIST. FINALLY, IT IS STATED THAT CAPTAIN BOWMAN WAS NEVER GIVEN AN EXAMINATION TO DETERMINE HIS PHYSICAL FITNESS FOR PROMOTION.

SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, 34 U.S.C. 410 (J) (I), PROVIDED THAT:

OFFICERS ON A PROMOTION LIST WHO, AT ANY TIME PRIOR TO PROMOTION, ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY SHALL, WHEN RETIRED, BE RETIRED IN THE RANK FOR WHICH THEY WERE SELECTED, WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THE GRADE TO WHICH SELECTED. FOR THE PURPOSE OF THIS SUBSECTION, OFFICERS ON A PROMOTION LIST FOR TEMPORARY PROMOTION TO THE NEXT HIGHER GRADE SHALL BE CONSIDERED TO BE ON THE PROMOTION LIST FOR PERMANENT PROMOTION THEREOF.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), PROVIDED FOR THE COMPUTATION OF DISABILITY RETIREMENT PAY BY MULTIPLYING BASIC PAY "BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED * * * MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY * * *" AND PROVIDED THAT IN NO CASE SHOULD DISABILITY RETIREMENT PAY EXCEED 75 PERCENTUM OF BASIC PAY. THE FIFTH PROVISO TO SECTION 402 (D) WAS, IN PERTINENT PART, AS FOLLOWS:

THAT IF THE PHYSICAL DISABILITY ENTITLING SUCH MEMBER TO DISABILITY RETIREMENT PAY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER SHALL BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER WOULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY * * *

WE HELD IN 32 COMP. GEN. 104, CITING OUR DECISION OF AUGUST 30, 1951, B- 103324, THAT SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947 WAS SUPERSEDED AND REPEALED BY THE INCONSISTENT PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. IN 36 COMP. GEN. 492, WE SAID, AT PAGE 495, THAT IN PRIOR DECISIONS WE HAD HELD, IN EFFECT, THAT THE PHRASE "IS FOUND TO EXIST" AS USED IN THE FIFTH PROVISO TO SECTION 402 (D) OF THE CAREER COMPENSATION ACT WAS EQUIVALENT TO "DISCOVERED" OR "FIRST FOUND TO EXIST.'

THE FIFTH PROVISO TO SECTION 402 (D) OF THE CAREER COMPENSATION ACT WAS CODIFIED, EFFECTIVE AUGUST 10, 1956, AS 10 U.S.C. 1372, WHICH PROVIDES INSOFAR AS IS PERTINENT HERE, THAT:

UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204 OF THIS TITLE, OR WHOSE NAME IS PLACED ON THE TEMPORARY RETIRED LIST UNDER SECTION 1202 OR 1205 OF THIS TITLE, IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

(4)THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE RETIRED, IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION. (ITALICS SUPPLIED.)

IT IS SIGNIFICANT THAT THE CODIFIERS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT AFFIRMED OUR INTERPRETATION THAT "FOUND TO EXIST" IN THAT SECTION MEANT "DISCOVERED.'

THE ABOVE CODIFYING ACT OF AUGUST 10, 1956, AT 70A STAT. 677, SPECIFICALLY REPEALED SECTION 312 (I) OF THE ^OFFICER PERSONNEL ACT OF 1947. IN HOUSE REPRESENTATIVES REPORT NO. 970, TO ACCOMPANY THE BILL WHICH BECAME THAT CODIFYING ACT, THE REPEAL WAS EXPLAINED AT PAGE 1073 AS FOLLOWS:

SUPERSEDED. PRESCRIBED THE GRADE AND PAY OF OFFICERS RETIRED FOR PHYSICAL DISABILITY. TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816 -825 (37 U.S.C. 271-285), IS THE CURRENT AUTHORITY ON THE GRADE AND PAY FOR PHYSICAL DISABILITY RETIREMENT FOR ALL MEMBERS OF THE UNIFORMED SERVICES.

IT IS ALSO SIGNIFICANT THAT THE CODIFIERS AFFIRMED OUR INTERPRETATION THAT SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947 WAS SUPERSEDED BY THE INCONSISTENT PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT.

IN THE CONSIDERATION OF THE PRESENT CASE WE HAVE GIVEN CAREFUL CONSIDERATION TO THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED OCTOBER 3, 1958, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER, HOLDING THAT A CAPTAIN PERKINS OF THE MARINE CORPS WAS ENTITLED TO DISABILITY RETIREMENT PAY AS A MAJOR. HOWEVER, WE DO NOT FIND SUFFICIENT BASIS IN THE VIEWS EXPRESSED IN THAT OPINION TO WARRANT THE CONCLUSION THAT OUR DECISIONS CITED ABOVE ARE ERRONEOUS.

IT IS OUR VIEW IN THE ABSENCE OF A CLEAR SHOWING OF A CONGRESSIONAL INTENT THAT, IN CONSTRUING SECTION 402 (D) OF THE CAREER COMPENSATION ACT OR 10 U.S.C. 1372, CONSIDERATION SHOULD BE GIVEN TO MATTER EXTRANEOUS TO THE EXPRESS PROVISIONS OF THOSE STATUTES--- THAT ON AND AFTER OCTOBER 1, 1949, ADVANCEMENT ON A RETIRED LIST BECAUSE OF PHYSICAL DISQUALIFICATION FOR PROMOTION IS AUTHORIZED ONLY IF THE DISQUALIFICATION IS DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION. WE FIND NO EVIDENCE OF AN INTENT THAT CONSIDERATION SHOULD BE GIVEN MATTERS OUTSIDE OF THE LANGUAGE OF THE STATUTE. COMPARE 36 COMP. GEN. 492, 497-498, THE CASE OF LIEUTENANT PRESTON WOODROW OGBURN, WHERE IT WAS HELD THAT A PHYSICAL EXAMINATION GIVEN SUBSEQUENT TO THE COMPLETION OF DISABILITY RETIREMENT PROCEEDINGS DID NOT AUTHORIZE AN ADVANCEMENT ON THE RETIRED LIST.

IN THE PRESENT CASE OF CAPTAIN BOWMAN, IT IS STATED THAT HE HAS NEVER BEEN GIVEN A PROMOTION PHYSICAL EXAMINATION. ACCORDINGLY, IT MUST BE HELD THAT HE IS NOT ENTITLED TO THE RETIRED PAY OF A MAJOR. COMPARE 37 COMP. GEN. 89.