B-145270, FEB. 27, 1963

B-145270, FEB. 27, 1963

TO MR. JULIAN G. CARR:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1963, WITH ENCLOSURE, ADDRESSED TO THE HONORABLE LYNDON B. JOHNSON, VICE PRESIDENT OF THE UNITED STATES, WHICH HAS BEEN REFERRED TO THIS OFFICE FOR DIRECT REPLY.

IT APPEARS THAT WHILE YOU WERE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE MILITARY SERVICE YOU WERE HOSPITALIZED ON OCTOBER 10, 1949, AND THAT YOU WERE RETIRED ON JUNE 30, 1950, APPARENTLY UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816. YOU CONTEND THAT YOU ARE ENTITLED TO MAKE AN ELECTION TO RECEIVE THE RETIREMENT BENEFITS PROVIDED IN LAWS IN EFFECT ON SEPTEMBER 30, 1949, UNDER SECTION 415 OF THE CITED 1949 ACT. THAT SECTION PROVIDES AS FOLLOWS:

"ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS A HOSPITAL PATIENT AND WHO WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ACT IS RETIRED AS A RESULT OF THE PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS HOSPITALIZED AS OF THE DATE OF ENACTMENT OF THIS ACT, MAY ELECT TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON THE DATE PRECEDING THE DATE OF ENACTMENT OF THIS ACT.'

THE ACT OF MAY 10, 1950, CH. 175, 64 STAT. 158, AMENDED SECTION 415 TO READ AS FOLLOWS:

"ANY MEMBER WHO, ON OCTOBER 1, 1949, WAS A HOSPITAL PATIENT AND WHO, PRIOR TO JANUARY 1, 1951, IS RETIRED AS A RESULT OF A PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS HOSPITALIZED, MAY ELECT TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949.'

YOUR LETTER CONTAINS SEVERAL ARGUMENTS IN SUPPORT OF YOUR VIEWS, ALL OF WHICH APPEAR TO BE BASED ON YOUR BELIEF THAT UPON ENTERING THE HOSPITAL ON OCTOBER 10, 1949, YOU HAD A VESTED RETIREMENT RIGHT UNDER LAWS THEN IN EFFECT AND THAT IN MAKING THE 1949 ACT (ENACTED ON OCTOBER 12, 1949) EFFECTIVE AS OF OCTOBER 1, 1949, THE CONGRESS DID NOT INTEND TO DEPRIVE YOU OF THAT RIGHT. YOU REFER TO THE SAVINGS PROVISIONS OF SECTION 519 OF THAT ACT, WHICH PROVIDED THAT ANY MEMBER OF THE UNIFORMED SERVICES WHO ON OCTOBER 12, 1949, WAS "RECEIVING OR IS ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY UNDER ANY PROVISION OF LAW, SHALL * * * BE ENTITLED TO CONTINUE TO RECEIVE" THE RETIRED OR RETIREMENT PAY TO WHICH HE WAS "ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY PRECEDING THE DATE OF ENACTMENT OF THIS ACT.' SECTION 520 OF THAT ACT CONTINUED IN EFFECT ALL PRIOR LAWS TO THE EXTENT NECESSARY TO GIVE EFFECT TO THE SAVINGS PROVISIONS OF THAT ACT, INCLUDING SECTION 519.

THE FOREGOING PROVISIONS OF LAW NECESSITATE AN INQUIRY INTO THE MATTER OF WHEN A MEMBER BECOMES ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY. UNDER THE PRESENT LAW ALL MEMBERS OF THE MILITARY SERVICES SERVING ON ACTIVE DUTY ARE ENTITLED TO BE RETIRED WITH DISABILITY RETIREMENT PAY IF THEY INCUR A SERVICE CONNECTED DISABILITY WHICH INCAPACITATES THEM FROM FURTHER ACTIVE MILITARY SERVICE. HOWEVER, PRIOR TO RETIREMENT NO MEMBER HAS VESTED RETIREMENT RIGHTS UNDER EXISTING PROVISIONS OF LAW WHICH CANNOT BE CHANGED BY STATUTE, HIS RIGHT TO RETIREMENT PAY BASED ON A SERVICE CONNECTED DISABILITY BEING FIXED BY THE LAWS IN EFFECT WHEN HE IS RETIRED. THE HOSPITALIZATION OF A MEMBER DOES NOT CHANGE IN ANY WAY HIS RIGHTS IN THIS RESPECT. MANY MEMBERS ARE HOSPITALIZED DURING THEIR MILITARY CAREERS AND RESUME THEIR MILITARY DUTIES AFTER RECOVERING FROM THE DISABILITY WHICH NECESSITATED HOSPITAL MEDICAL CARE. HOWEVER, IF HOSPITALIZATION REVEALS THAT THE DISABILITY IS OF SUCH NATURE AS TO RENDER A MEMBER UNFIT TO PERFORM FURTHER MILITARY DUTY AND A RETIREMENT BOARD SO DETERMINES, A RIGHT TO RETIREMENT PAY ACCRUES WHEN THE RETIREMENT PROCEEDINGS ARE COMPLETED AND THE MEMBER ACTUALLY IS RETIRED. HIS RIGHTS ARE FIXED BY THE LAWS IN EFFECT AT THAT TIME. ABSENT A PROVISION OF LAW PROVIDING OTHERWISE, THE DATE OF ENTRY INTO A HOSPITAL IS COMPLETELY WITHOUT SIGNIFICANCE IN DETERMINING THE LAWS WHICH GOVERN THE RETIREMENT PAY RIGHTS OF A PARTICULAR MEMBER.

IN ENACTING NEW RETIREMENT LAWS, THE CONGRESS MAY INCLUDE SUCH SAVINGS PROVISIONS AS ARE DEEMED PROPER. SECTION 415 OF THE 1949 ACT, IN BOTH ITS ORIGINAL AND AMENDED FORM, PERMITTED ANY MEMBER WHO WAS A HOSPITAL PATIENT ON OCTOBER 1, 1949, TO ELECT TO RECEIVE RETIREMENT BENEFITS UNDER LAWS IN EFFECT BEFORE ENACTMENT OF THAT ACT. THE FIXING OF OCTOBER 1, 1949, AS THE EFFECTIVE DATE OF THE 1949 ACT DID NOT RETROACTIVELY DEPRIVE YOU OF A RIGHT YOU HAD ON OCTOBER 10, 1949, SINCE YOU HAD NO VESTED RIGHT TO RETIREMENT PAY AT THAT TIME. IT HAD NOT BEEN DETERMINED AT THAT TIME THAT YOUR ILLNESS WAS SUCH AS TO WARRANT YOUR RETIREMENT. THAT FACT WAS FIRST ESTABLISHED IN THE SUBSEQUENT RETIREMENT PROCEEDINGS.

SECTION 415 GRANTED A RIGHT WHICH WOULD NOT HAVE EXISTED EXCEPT FOR THAT PROVISION AND SINCE YOU DID NOT MEET THE CONDITIONS THERE PRESCRIBED, YOU WERE NOT ELIGIBLE TO MAKE AN ELECTION THEREUNDER. SECTIONS 519 AND 520 ARE WITHOUT RELEVANCE IN DETERMINING YOUR RIGHTS IN THE PREMISES, SINCE THEY APPLIED ONLY TO A MEMBER WHO WAS RECEIVING OR WAS "ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY" UNDER PRIOR LEGISLATION. YOU DID NOT BECOME ENTITLED TO RECEIVE RETIREMENT PAY UNTIL YOU WERE RETIRED ON JUNE 30, 1950. SECTION 515 OF THE 1949 ACT, THE EFFECTIVE DATE OF WHICH WAS OCTOBER 12, 1949, LIKEWISE IS OF NO LEGAL SIGNIFICANCE IN THIS MATTER, SINCE IT CONTAINED NO PROVISIONS RELATING TO RETIREMENT PAY, IT BEING APPLICABLE PRINCIPALLY TO ,PRESENT COMPENSATION.'

IT IS NOT KNOWN WHY REPORT NO. 1948 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON S. 3255 (LATER ENACTED INTO LAW ON MAY 10, 1950, AS THE AMENDED SECTION 415) INCLUDED LANGUAGE INDICATING THAT THE "DATE OF ENACTMENT" WAS THE SIGNIFICANT DATE WITH RESPECT TO HOSPITALIZATION AND THAT SECTION 415 AS ORIGINALLY ENACTED PERMITTED ELECTIONS UNDER THAT ACT FOR A SIX-MONTHS' PERIOD FOLLOWING THAT DATE. NOT ONLY IS SUCH LANGUAGE CONTRARY TO THE STATEMENT IN THE REPORT SHOWING THAT APRIL 1, 1950, NOT APRIL 12, 1950, WAS THE ORIGINAL CUT-OFF DATE OR DATE OF RETIREMENT CONTEMPLATED BY SECTION 415, BUT IT IS IN EXPRESS CONFLICT WITH THE LANGUAGE CONTAINED IN THE THEN PROPOSED LEGISLATION AND WHICH REMAINED UNCHANGED IN THE BILL ENACTED INTO LAW. WHILE YOU REGARD SUCH LEGISLATIVE HISTORY AS ESTABLISHING THAT THE DATE OF OCTOBER 1, 1949, WAS INADVERTENTLY INCLUDED IN THE BILL IN PLACE OF OCTOBER 12, 1949, THE OPPOSITE CONCLUSION APPEARS THE MORE REASONABLE AND WE ARE WITHOUT AUTHORITY TO IGNORE THE CLEAR LANGUAGE OF THE STATUTE. EVEN IF THE MATTER WERE IN THE DOUBTFUL CATEGORY, WE COULD NOT RESOLVE SUCH DOUBT IN YOUR FAVOR. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316.