B-148438, APRIL 6, 1962, 41 COMP. GEN. 658

B-148438: Apr 6, 1962

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WAS SELECTED BY A PROMOTION BOARD CONVENED UNDER AUTHORITY OF THE ACT OF JULY 24. FOR TEMPORARY PROMOTION TO MAJOR FROM A LIST OF "MOST SENIOR OFFICERS" COMPILED PURSUANT TO A NAVY DIRECTIVE AND WHO WAS RETIRED FOR DISABILITY AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION IS REGARDED AS HAVING MET THE ELIGIBILITY PROVISION FOR TEMPORARY PROMOTION IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. THE MEMBER IS ENTITLED TO AN ADJUSTMENT OF DISABILITY RETIRED PAY BASED ON THE GRADE OF MAJOR FROM THE DATE OF PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST. 1962: REFERENCE IS MADE TO YOUR LETTER OF MARCH 12. REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO PAY HIM INCREASED RETIRED PAY BASED ON THE GRADE OF MAJOR UNDER THE RULE OF THE FERGUSON CASE.

B-148438, APRIL 6, 1962, 41 COMP. GEN. 658

PAY - RETIRED - DISABILITY - SERVICE QUALIFICATION A MARINE CORPS OFFICER WHO, WHILE SERVING ON ACTIVE DUTY AS A CAPTAIN, WAS SELECTED BY A PROMOTION BOARD CONVENED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, 34 U.S.C. 350-350H, FOR TEMPORARY PROMOTION TO MAJOR FROM A LIST OF "MOST SENIOR OFFICERS" COMPILED PURSUANT TO A NAVY DIRECTIVE AND WHO WAS RETIRED FOR DISABILITY AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION IS REGARDED AS HAVING MET THE ELIGIBILITY PROVISION FOR TEMPORARY PROMOTION IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, NOW 10 U.S.C. 1372 (3) AND (4), WHICH REQUIRES THE PROMOTION TO BE BASED "UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE OR RATING" UNDER THE RULE IN FERGUSON V. UNITED STATES, CT.1CL. NO. 367- 58, DECIDED DECEMBER 6, 1961, BASED ON A SIMILAR INTERPRETATION OF THE TERM "MOST SENIOR OFFICERS," AND, THEREFORE, THE MEMBER IS ENTITLED TO AN ADJUSTMENT OF DISABILITY RETIRED PAY BASED ON THE GRADE OF MAJOR FROM THE DATE OF PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, APRIL 6, 1962:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1962, WITH ENCLOSURES, RELATING TO THE RETIRED PAY STATUS OF MAJOR MARK W. SYRKIN, 1022574, U.S. MARINE CORPS RESERVE, RETIRED (PRESENTLY IN RECEIPT OF RETIRED PAY BASED ON THE GRADE OF CAPTAIN), REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO PAY HIM INCREASED RETIRED PAY BASED ON THE GRADE OF MAJOR UNDER THE RULE OF THE FERGUSON CASE, CT.1CL. NO. 367-58, DECIDED DECEMBER 6, 1961. YOUR SUBMISSION WAS ASSIGNED NO. DO-NC-637 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ENCLOSURES RECEIVED WITH YOUR LETTER ESTABLISH THAT WHILE SERVING ON ACTIVE DUTY AS A CAPTAIN MARK W. SYRKIN WAS SELECTED BY A PROMOTION BOARD WHICH CONVENED IN THE MONTH OF MAY 1952 FOR TEMPORARY PROMOTION TO THE GRADE OF MAJOR UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350-350K (1952 USED.). HIS ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS DEPENDENT UPON MEETING THE PHYSICAL, MENTAL, MORAL AND PROFESSIONAL QUALIFICATIONS SET FORTH BY THE SECRETARY OF THE NAVY IN LETTER OF JUNE 28, 1952, ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS ANNOUNCING THE TEMPORARY APPOINTMENT TO THE GRADE OF MAJOR OF CERTAIN CAPTAINS OF THE MARINE CORPS AND MARINE CORPS RESERVE (INCLUDING MARK W. SYRKIN) UNDER AUTHORITY OF THE 1941 LAW. THE RECORD SHOWS THAT HE WAS EXAMINED ON JULY 15, 1952, AND FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION DUE TO EITHER "CHOLECYSTITIS CHRONIC OR PEPTIC ULCER.' IN AUGUST 1952 THE DIAGNOSIS WAS CHANGED FROM " CHOLECYSTITIS ( CHRONIC) NO. 7955 TO ULCER, DUODENUM, N.E.C. (WITHOUT OBSTRUCTION) NO. 5410 BY REASON OF ESTABLISHED. DNEPTE. NOT MISCONDUCT. IN LINE OF DUTY.' IT IS STATED THAT HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MARCH 1, 1953 (AS CAPTAIN, U.S. MARINE CORPS RESERVE), IN ACCORDANCE WITH THE PROVISIONS OF 37 U.S.C. 272 (1952 USED.), WITH A DISABILITY RATING OF 30 PERCENT BASED ON "ULCER, DUODENUM NEC WITHOUT OBSTRUCTION" VETERANS ADMINISTRATION CODE 7305, 20 PERCENT AND "ALLERGY NEC ASTHMA AND BASOMOTOR RHINITIS ALLERGEN UNDETERMINED" VETERANS ADMINISTRATION CODE 6602, 10 PERCENT. IT, THEREFORE, APPEARS THAT THE DISABILITY WHICH DISQUALIFIED MARK W. SYRKIN FROM TEMPORARY PROMOTION UNDER THE 1941 LAW IS THE PRIMARY DISABILITY FOR WHICH HE WAS FOUND TO BE UNFIT TO PERFORM THE DUTIES OF HIS OFFICE RESULTING FIRST, IN HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, AND THEN BY LETTER OF FEBRUARY 28, 1958, FROM THE COMMANDANT OF THE MARINE CORPS TO REGARD HIMSELF "AS TRANSFERRED TO THE RETIRED LIST BY REASON OF A PERMANENT PHYSICAL DISABILITY EFFECTIVE 1 MARCH 1958.' HIS ADVANCEMENT IN FEBRUARY 1955 ON THE RETIRED LIST TO THE GRADE OF MAJOR BASED ON A SPECIAL COMMENDATION FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT AS PROVIDED IN 34 U.S.C. 410N (1952 USED.), DID NOT AFFECT THE COMPUTATION OF HIS RETIRED PAY WHICH IS BASED ON THE GRADE OF CAPTAIN.

THE QUESTION PRESENTED AS TO WHETHER THE RULE OF THE FERGUSON DECISION OF DECEMBER 6, 1961, IS APPLICABLE IN MAJOR SYRKIN'S CASE ARISES BY VIRTUE OF THE FIFTH PROVISO CONTAINED IN SECTION 402 (D), CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), (1952 USED./--- NOW CODIFIED IN CLAUSES (3) AND (4), 10 U.S.C. 1372 WHICH PROVIDED:

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 A 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, GRADE, 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, IF SUCH RANK, GRADE, OR RATING IS HIGHER THAN ANY OTHER RANK, GRADE, OR RATING UPON WHICH SUCH PAY IS HEREIN AUTHORIZED TO BE COMPUTED AND WHICH SUCH MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING.

THE REQUIREMENT THAT THE PHYSICAL DISABILITY ENTITLING THE MEMBER CONCERNED TO DISABILITY RETIREMENT PAY MUST HAVE BEEN FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT OR TEMPORARY PROMOTION MAY BE REGARDED AS HAVING BEEN MET IN MAJOR SYRKIN'S CASE. THE OTHER BASIC REQUIREMENT OF THE STATUTE IS MET WHERE ELIGIBILITY FOR SUCH A TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING. THIS LATTER REQUIREMENT PRESENTS THE SOLE ISSUE IN MAJOR SYRKIN'S CASE AND THE HOLDING OF THE COURT IN THE FERGUSON DECISION CONSTRUING THE LANGUAGE OF THE FIFTH PROVISO IN 37 U.S.C. 272 (D), TOGETHER WITH THE PROVISIONS OF THE ACT OF JULY 24, 1941, INVOLVING THIS POINT BECOMES AN ESSENTIAL ELEMENT IN DETERMINING MAJOR SYRKIN'S RETIRED PAY STATUS.

IN THE FERGUSON CASE, THE COMMANDANT OF THE MARINE CORPS WAS DIRECTED BY THE SECRETARY OF THE NAVY TO FURNISH A SELECTION (PROMOTION) BOARD, CONVENED UNDER AUTHORITY OF THE 1941 LAW, WITH THE NAMES AND RECORDS OF THE 268 MOST SENIOR OFFICERS WHOSE NAMES WERE NOT ON A PROMOTION LIST AND WHO WERE THEN SERVING ON ACTIVE DUTY IN THE GRADE OF MAJOR, FOR CONSIDERATION BY THE BOARD FOR TEMPORARY PROMOTION TO THE GRADE OF LIEUTENANT COLONEL. THE SECRETARY OF THE NAVY FURTHER DIRECTED THAT FROM SUCH OFFICERS THE BOARD RECOMMEND FOR TEMPORARY PROMOTION THE 121 MOST SENIOR OFFICERS, WITHOUT RESPECT TO CATEGORIES, WHOM THE BOARD CONSIDERED TO BE FULLY QUALIFIED TO PERFORM ALL THE DUTIES APPROPRIATE TO THE GRADE OF LIEUTENANT COLONEL. THE COURT, STATING THE QUESTION AS "WHETHER THE TERM "MOST SENIOR OFFICERS" CAN BE CLASSED AS COMING WITHIN THE EXPRESSION "CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING," " HELD IN THE AFFIRMATIVE AND HENCE CONCLUDED THAT THE PLAINTIFF, FERGUSON, HAD MET THE TERMS OF THE STATUTE AND DIRECTIVE.

IN THE INSTANT CASE OF MAJOR SYRKIN NEARLY IDENTICAL LANGUAGE APPEARS IN THE DIRECTIVE OF MAY 5, 1952, FROM THE SECRETARY OF THE NAVY REQUIRING THE COMMANDANT OF THE MARINE CORPS TO FURNISH A PROMOTION BOARD CONVENED UNDER AUTHORITY OF THE 1941 LAW WITH THE NAMES AND RECORDS OF THE 1900 MOST SENIOR OFFICERS WHOSE NAMES WERE NOT ON A PROMOTION LIST AND WHO WERE THEN SERVING ON ACTIVE DUTY IN THE GRADE OF CAPTAIN, FOR CONSIDERATION BY THE BOARD FOR TEMPORARY PROMOTION TO THE GRADE OF MAJOR. THE SECRETARY FURTHER DIRECTED THAT FROM AMONG SUCH OFFICERS THE BOARD RECOMMEND FOR TEMPORARY PROMOTION NOT TO EXCEED 1563 OFFICERS WHO, IN THE OPINION OF AT LEAST TWO-THIRDS OF THE MEMBERS OF THE BOARD, WERE FULLY QUALIFIED FOR SUCH TEMPORARY PROMOTION. UNDER THE RULE OF THE FERGUSON DECISION THE INTERPRETATION PLACED BY THE COURT ON THE TERM "MOST SENIOR OFFICERS" WITH RESPECT TO THE FIFTH PROVISO IN 37 U.S.C. 272 (D) HAS EQUAL APPLICATION IN MAJOR SYRKIN'S CASE THEREBY MEETING "THE TERMS OF THE STATUTE AND DIRECTIVE AS THUS READ TOGETHER.' COMPARE 40 COMP. GEN. 256, WHEREIN IT WAS STATED THAT ALL CASES ARISING UNDER THE PROVISIONS OF 37 U.S.C. 272 (D) (1952 USED.), MUST BE CONSIDERED ON THEIR OWN MERITS FOR DETERMINATION WHETHER IN THE PARTICULAR FACTS AND CIRCUMSTANCES THE PHYSICAL EXAMINATION ACTUALLY RECEIVED BY THE INDIVIDUAL CONCERNED CONSTITUTED A PHYSICAL EXAMINATION FOR PROMOTION WITHIN THE PURVIEW OF THE STATUTE (ALSO, SEE BRANDT V. UNITED STATES, CT. CL. 235-60, DECIDED OCTOBER 4, 1961); WHETHER THE DISABILITY FOR WHICH RETIRED WAS FIRST DETERMINED TO BE DISQUALIFYING DURING SUCH PROMOTION EXAMINATION, AND THAT IN THE CASE OF TEMPORARY APPOINTMENTS OR PROMOTIONS EFFECTED UNDER AUTHORITY OF THE 1941 LAW, THERE MUST BE A SHOWING, IN VIEW OF THE HOLDING IN WILLIAMS V. UNITED STATES, 145 CT.1CL. 513 (1959),"THAT ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED, ADMINISTRATIVELY OR OTHERWISE, TO HAVE BEEN BASED ON YEARS OF SERVICE IN RANK, GRADE, OR RATING.'

IN THE CIRCUMSTANCES HERE PRESENTED YOU ARE AUTHORIZED TO ADJUST MAJOR SYRKIN'S RETIRED PAY ACCOUNT TO THE GRADE OF MAJOR EFFECTIVE FROM THE DATE OF HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST.