B-143941, NOVEMBER 1, 1960, 40 COMP. GEN. 249

B-143941, NOVEMBER 1, 1960, 40 COMP. GEN. 249

MILITARY PERSONNEL - DISCHARGES - EFFECT - SUBSEQUENT PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST THE DISCHARGE OF A MARINE CORPS OFFICER UNDER 10 U.S.C. 1203 BY DIRECTION OF THE SECRETARY OF THE NAVY BECAUSE OF A PHYSICAL DISABILITY OF LESS THAN 20 PERCENT, SUBSEQUENTLY DETERMINED TO HAVE BEEN 30 PERCENT, MAY NOT--- UNDER THE WELL-ESTABLISHED PRINCIPLE IN PALEN V. UNITED STATES, 19 CT.1CL. 389 (1884) THAT AN EXECUTED DISCHARGE BY COMPETENT AUTHORITY MAY NOT BE REVOKED EVEN THOUGH IT IS SUBSEQUENTLY DETERMINED THAT SUCH DISCHARGE SHOULD NOT HAVE BEEN ISSUED--- BE CONSIDERED AS HAVING BEEN BASED ON A MISTAKE OF LAW OR MANIFEST ERROR; THEREFORE, THE OFFICER HAVING BEEN DISCHARGED IS REGARDED AS A CIVILIAN AND THERE IS NO AUTHORITY FOR PLACEMENT OF THE INDIVIDUAL ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, NOVEMBER 1, 1960:

BY FIRST ENDORSEMENT DATED SEPTEMBER 8, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF SEPTEMBER 7, 1960, WITH ENCLOSURES, REQUESTING A DECISION ON THE PROPRIETY OF PAYMENT OF DISABILITY RETIREMENT PAY TO PETER P. TOWER, FORMER SECOND LIEUTENANT, UNITED STATES MARINE CORPS RESERVE. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-MC-530 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTIONS 1201 AND 1202 OF TITLE 10, U.S.C. PROVIDE THAT UPON A DETERMINATION BY THE SECRETARY CONCERNED THAT A MEMBER OF THE ARMED FORCES, ENTITLED TO BASIC PAY, HAS INCURRED A DISABILITY OF AT LEAST 30 PERCENT--- UNDER THE STANDARD SCHEDULE OF RATING DISABILITIES IN USE BY THE VETERANS ADMINISTRATION--- WHILE ENTITLED TO BASIC PAY, HE MAY BE RETIRED IF THE DISABILITY IS DETERMINED TO BE PERMANENT (SECTION 1201) OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IF THE DISABILITY IS NOT DETERMINED TO BE OF A PERMANENT NATURE (SECTION 1202). SECTION 1203 OF TITLE 10 PROVIDES THAT IF THE DISABILITY IS LESS THAN 30 PERCENT THE MEMBER MAY BE SEPARATED FROM HIS ARMED FORCES WITH SEVERANCE PAY. SECTION 1216 OF TITLE 10 PROVIDES THAT:

(A) THE SECRETARY CONCERNED SHALL PRESCRIBED REGULATIONS TO CARRY OUT THIS CHAPTER WITHIN HIS DEPARTMENT.

(B) THE SECRETARY CONCERNED HAS ALL POWERS, FUNCTIONS, AND DUTIES INCIDENT TO THE DETERMINATION UNDER THIS CHAPTER OF---

(1) THE FITNESS FOR ACTIVE DUTY OF ANY MEMBER OF AN ARMED FORCE UNDER HIS JURISDICTION:

(2) THE PERCENTAGE OF DISABILITY OF ANY SUCH MEMBER AT THE TIME OF HIS SEPARATION FROM ACTIVE DUTY;

(3) THE SUITABILITY OF ANY MEMBER FOR REAPPOINTMENT, REENLISTMENT, OR REENTRY UPON ACTIVE DUTY IN AN ARMED FORCE UNDER HIS JURISDICTION; AND

(4) THE ENTITLEMENT TO, AND PAYMENT OF, DISABILITY SEVERANCE PAY TO ANY MEMBER OF AN ARMED FORCE UNDER HIS JURISDICTION.

(C) THE SECRETARY CONCERNED OR THE ADMINISTRATOR OF VETERANS' AFFAIRS, AS PRESCRIBED BY THE PRESIDENT, HAS THE POWERS, FUNCTIONS, AND DUTIES UNDER HIS CHAPTER INCIDENT TO HOSPITALIZATION, REEXAMINATIONS, AND THE PAYMENT OF DISABILITY RETIRED PAY WITHIN HIS DEPARTMENT OR AGENCY.

VETERANS ADMINISTRATION SCHEDULE FOR RATING DISABILITIES, 1957, STATES, CODE NO. 5292, THAT:

CHART SPINE, LIMITATION OF MOTION OF, LUMBAR RATING SEVERE -------------- --------------------------------------- ---- 40 MODERATE ----------------- -------------------------------- ------ 20 SLIGHT ------------------------ ------------------------- -------- 10

CODE NO. 5285 OF THE ABOVE DIRECTIVE STATES THAT:

RATING VERTEBRA, FRACTURE OF, RESIDUALS: WITH CORD INVOLVEMENT,

BEDRIDDEN, OR REQUIRING LONG LEG BRACES ---------------------- 100 CONSIDER SPECIAL MONTHLY COMPENSATION; WITH LESSER INVOLVEMENTS

RATE FOR LIMITED MOTION, NERVE PARALYSIS. WITHOUT CORD INVOLVEMENT; ABNORMAL MOBILITY REQUIRING NECK BRACE

(JURY MAST) -------------------------------------------------- 60

IN OTHER CASES RATE IN ACCORDANCE WITH DEFINITE LIMITED MOTION

OR MUSCLE SPASM, ADDING 10 PERCENT FOR DEMONSTRABLE DEFORMITY

OF VERTEBRAL BODY.

IT APPEARS THAT ON APRIL 29, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 1203, SECOND LIEUTENANT PETER P. TOWER WAS DISCHARGED FROM THE UNITED STATES MARINE CORPS RESERVE BECAUSE OF PHYSICAL DISABILITY, RATED AT 20 PERCENT UNDER THE ABOVE CODE NO. 5292, INCURRED WHILE ENTITLED TO BASIC AY; THAT ON AUGUST 3, 1960, HIS DISCHARGE PURPORTEDLY WAS SET ASIDE AND UNDER THE AUTHORITY OF 10 U.S.C. 1202 HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS, EFFECTIVE AS OF MAY 1, 1960, WITH A PHYSICAL DISABILITY RATING OF 30 PERCENT; AND THAT THIS ACTION WAS TAKEN ON THE BASIS THAT FAILURE TO AWARD THE OFFICER AN ADDITIONAL 10 PERCENT DISABILITY UNDER CODE NO. 5285 WAS A MISTAKE OF LAW.

YOU STATE THAT YOU ARE IN DOUBT WHETHER THE CORRECTIVE ACTION TAKEN IN THIS CASE MAY BE CONSIDERED AS HAVING BEEN BASED ON A MISTAKE OF LAW OR MANIFEST ERROR.

APPARENTLY, LIEUTENANT TOWER WAS DISCHARGED BY DIRECTION OF THE SECRETARY OF THE NAVY. UNDER THE BROAD POWERS CONFERRED UPON HIM BY 10 U.S.C. 1216 THERE CAN BE NO DOUBT THAT THE SECRETARY HAD THE AUTHORITY TO ORDER LIEUTENANT TOWER'S DISCHARGE UPON A DETERMINATION BY THE SECRETARY--- WHICH OBVIOUSLY WAS MADE--- THAT THE OFFICER'S DISABILITY WAS LESS THAN 30 PERCENT. THE CRUX OF THE MATTER IS NOT WHETHER THE EVALUATION BOARD FOLLOWED THE LAW IN RECOMMENDING THE DETERMINATION OF A DISABILITY RATING OF 20 PERCENT, AND CONSEQUENT DISCHARGE FOR DISABILITY. WHAT IS IN QUESTION IS THE ACTION OF THE SECRETARY IN ADOPTING AND ACTING UPON THOSE RECOMMENDATIONS, AS HE HAD STATUTORY AUTHORITY TO DO. THERE WAS NO MISTAKE OF LAW ON HIS PART, AND IT IS HIS ACTION THAT PURPORTEDLY WAS SET ASIDE. NOR WAS THERE ANY MANIFEST ERROR IN DIRECTING LIEUTENANT TOWER'S DISCHARGE UPON A DETERMINATION THAT HIS DISABILITY WAS LESS THAN 30 PERCENT.

IT MAY WELL BE THAT THE SECRETARY WOULD NOT HAVE DIRECTED THAT THE OFFICER BE DISCHARGED IF THE ORIGINAL RECOMMENDATION IN HIS CASE HAD BEEN THAT A DETERMINATION OF 30 PERCENT DISABILITY BE MADE, BUT THE COURTS AND THE ACCOUNTING OFFICERS HAVE LONG HELD THAT AN EXECUTED DISCHARGE, BY COMPETENT AUTHORITY, EFFECTUALLY SEPARATES A MEMBER FROM THE SERVICE EVEN THOUGH SUCH DISCHARGE MAY HAVE BEEN INADVERTENT.

IN PALEN V. UNITED STATES, 19 CT.1CL. 389, DECIDED APRIL 7, 1884, THE COURT SAID, AT PAGE 393, THAT:

IF THE PRESIDENT THINKS HE HAS DONE A WRONG IN ANY CASE BY PUTTING AN OFFICER OUT OF THE ARMY THE ONLY WAY PROVIDED FOR RECTIFYING IT IS TO REAPPOINT HIM BY AND WITH ADVICE AND CONSENT OF THE SENATE.

OUR DECISIONS HAVE APPLIED THE PRINCIPLE ENUNCIATED IN THE PALEN CASE OF THE IRREVOCABILITY OF AN EXECUTED DISCHARGE BY COMPETENT AUTHORITY EVEN THOUGH IT WAS SUBSEQUENTLY DETERMINED THAT SUCH A DISCHARGE SHOULD NOT HAVE BEEN ISSUED. SEE 4 COMP. GEN. 773 (ADMINISTRATIVE HOLDING THAT DISCHARGE BY MEDICAL SURVEY WAS ISSUED AS A RESULT OF ERRORS OF FACT AND WAS NULL AND VOID); 27 COMP. GEN. 495 (DISCHARGE FOR PHYSICAL DISABILITY INSTEAD OF RETIREMENT FOR DISABILITY); 31 COMP. GEN. 665 (DISCHARGE WITHOUT SEVERANCE PAY CANNOT BE CANCELED SO AS TO AUTHORIZE DISCHARGE WITH SUCH PAY); AND 38 COMP. GEN. 523 (BAD CONDUCT DISCHARGE FROM NAVY RETIRED LIST MAY NOT SUBSEQUENTLY BE CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS SO AS TO ENTITLE THE MAN TO DISABILITY RETIRED PAY AFTER DATE OF ORIGINAL DISCHARGE ACTION). COMPARE B-127169, JUNE 5, 1956; B-124855, JANUARY 29, 1957.

HAVING BEEN DISCHARGED ON APRIL 29, 1960, LIEUTENANT TOWER THEREAFTER WAS A FORMER MEMBER OF THE ARMED FORCES, A CIVILIAN, AND THERE APPEARS TO BE NO AUTHORITY UNDER 10 U.S.C. 1202 FOR THE PLACING OF AN INDIVIDUAL IN THAT STATUS ON A TEMPORARY DISABILITY RETIRED LIST, AS WAS ATTEMPTED ON AUGUST 3, 1960.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, IT MUST BE HELD THAT THE FORMER OFFICER IS NOT ENTITLED TO DISABILITY RETIREMENT PAY.