B-148929, OCT. 12, 1962

B-148929: Oct 12, 1962

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DAY: REFERENCE IS MADE TO YOUR LETTER DATED JULY 14. WHICH WAS DENIED BY GENERAL ACCOUNTING OFFICE CLAIMS DIVISION LETTER DATED MARCH 9. YOUR CLAIM WAS DENIED ON THE BASIS THAT THERE IS NO AUTHORITY IN OUR OFFICE TO PLACE YOU ON A DISABILITY RETIRED LIST AND FURTHER THAT. UNTIL AN APPROPRIATE ADMINISTRATIVE OFFICE MAKES A PROPER DETERMINATION AND YOUR RETIREMENT FOR DISABILITY IS AUTHORIZED. THERE IS NO AUTHORITY FOR THE PAYMENT OF RETIRED PAY ON THE BASIS OF YOUR DISABILITY. "DOES NOT SAY THAT INJURED MEMBERS OF THE NATIONAL GUARD WILL BE PLACED ON THE DISABILITY RETIRED LIST. IT SIMPLY STATES THAT THEY WILL BE ENTITLED TO RECEIVE THE SAME PAY AS MEMBERS OF THE REGULAR SERVICE.'. YOU ALSO STATE THAT AN INVESTIGATION OF YOUR CASE WAS NEVER MADE BY ANY BOARD.

B-148929, OCT. 12, 1962

TO MR. OSWALD N. DAY:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 14, 1962, RELATIVE TO YOUR CLAIM FOR DISABILITY RETIRED PAY BELIEVED TO BE DUE PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 20, 1949, CH. 225, 63 STAT. 201, WHICH WAS DENIED BY GENERAL ACCOUNTING OFFICE CLAIMS DIVISION LETTER DATED MARCH 9, 1962. YOUR CLAIM WAS DENIED ON THE BASIS THAT THERE IS NO AUTHORITY IN OUR OFFICE TO PLACE YOU ON A DISABILITY RETIRED LIST AND FURTHER THAT, UNTIL AN APPROPRIATE ADMINISTRATIVE OFFICE MAKES A PROPER DETERMINATION AND YOUR RETIREMENT FOR DISABILITY IS AUTHORIZED, THERE IS NO AUTHORITY FOR THE PAYMENT OF RETIRED PAY ON THE BASIS OF YOUR DISABILITY.

YOU STATE THAT THE ACT OF JUNE 20, 1949,"DOES NOT SAY THAT INJURED MEMBERS OF THE NATIONAL GUARD WILL BE PLACED ON THE DISABILITY RETIRED LIST, IT SIMPLY STATES THAT THEY WILL BE ENTITLED TO RECEIVE THE SAME PAY AS MEMBERS OF THE REGULAR SERVICE.' YOU ALSO STATE THAT AN INVESTIGATION OF YOUR CASE WAS NEVER MADE BY ANY BOARD, MEDICAL OR OTHERWISE. YOU FURTHER INQUIRE AS TO THE RETROACTIVITY OF THE ACT, SINCE, AS YOU STATE, OPINIONS RECEIVED FROM THE VETERANS ADMINISTRATION AND THE JUDGE ADVOCATE GENERAL OF THE ARMY REACH CONTRARY RESULTS.

IT IS STATED THAT ON JUNE 27, 1939, YOU WERE A MEMBER OF A NATIONAL GUARD UNIT AT ITS ANNUAL ENCAMPMENT AT CAMP CLATSOP, OREGON; THAT ON THAT DATE, PURSUANT TO ORDERS, THE UNITS OF THE REGIMENT WERE RETURNING TO THEIR HOME STATIONS; THAT YOU, WITH OTHER OFFICERS, WERE ASSIGNED TO A GOVERNMENT VEHICLE DRIVEN BY AN ENLISTED MAN; THAN AN ACCIDENT OCCURRED EN ROUTE AND YOU WERE REMOVED TO THE STATION HOSPITAL AT VANCOUVER BARRACKS, WASHINGTON, WHERE YOU REMAINED FOR A WEEK; THAT YOUR BACK AND NECK WERE INJURED; THAT YOU WERE THEREAFTER TREATED BY YOUR OWN PRIVATE PHYSICIANS; AND THAT YOU LEFT THE NATIONAL GUARD IN DECEMBER 1939.

IT APPEARS FROM THE RECORDS THAT YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF CAPTAIN ON OCTOBER 31, 1951, WITH RETIRED PAY EFFECTIVE NOVEMBER 1, 1951, UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1081, 1087. THIS WAS A NONDISABILITY RETIREMENT, BEING PREDICATED ON YEARS OF SERVICE AND YOUR REACHING SIXTY YEARS OF AGE.

YOU FURTHER STATE THAT UPON LEARNING OF THE ACT OF JUNE 20, 1949, YOU APPLIED TO THE VETERANS ADMINISTRATION FOR DISABILITY COMPENSATION; THAT ON APRIL 21, 1953, THE VETERANS ADMINISTRATION DETERMINED THAT PEACETIME SERVICE CONNECTION HAD BEEN ESTABLISHED FOR TRAUMATIC ARTHRITIS OF THE SPINE, BASED UPON THE INJURY SUFFERED ON JUNE 27, 1939; THAT THE CONDITION WAS EVALUATED AT 40 PERCENT DISABILITY AS OF NOVEMBER 14, 1952, THE DATE OF YOUR CLAIM TO THE VETERANS ADMINISTRATION. AT OR ABOUT THE SAME TIME YOU APPLIED TO THE DEPARTMENT OF THE ARMY FOR DISABILITY RETIREMENT PAY, BUT THE CLAIM WAS DENIED ON THE BASIS THAT THERE WAS NO LAW APPLICABLE TO YOUR CASE.

SECTIONS 3 AND 4 OF THE ACT OF JUNE 20, 1949, PROVIDED AS FOLLOWS:

"SEC. 3. ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD OF THE UNITED STATES, BOTH GROUND AND AIR, THE FEDERALLY RECOGNIZED NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES AND THE DISTRICT OF COLUMBIA---

(1) IF ENGAGED FOR PERIODS IN EXCESS OF THIRTY DAYS IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER * * * THE NATIONAL DEFENSE ACT, AS AMENDED, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO ENGAGED; OR

(2) IF ENGAGED FOR ANY PERIOD OF TIME IN ANY TYPE OF TRAINING OR ACTIVE DUTY UNDER SUCH SECTIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED,

SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.

"SEC. 4. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM AUGUST 14, 1945, BUT NO BACK PAY, PENSION, COMPENSATION, DEATH GRATUITY, OR RETIREMENT PAY SHALL BE HELD TO HAVE ACCRUED AS THE RESULT OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO SUCH DATE * * *.'

SUCH PROVISIONS ARE SIMILAR TO THE PROVISIONS OF SECTIONS 1 AND 2 OF THE SAID ACT RELATING TO RESERVE PERSONNEL OF THE NAVY AND ARMY.

IN DECISION OF JUNE 19, 1950, 29 COMP. GEN. 509, THERE WAS CONSIDERED THE CASE OF AN OFFICER OF THE MARINE CORPS RESERVE WHO WAS INJURED IN AN AVIATION ACCIDENT ON AUGUST 17, 1947, WHILE SERVING UNDER ORDERS TO 15 DAYS' ACTIVE DUTY FOR TRAINING. THERE WAS, ON AUGUST 17, 1947, NO STATUTORY AUTHORITY FOR THE CONTINUANCE OF THE OFFICER'S ACTIVE-DUTY PAY AND ALLOWANCES BEYOND THE TERMINATION DATE OF HIS TRAINING-DUTY ORDERS, AND NO AUTHORITY FOR GRANTING HIM DISABILITY RETIREMENT PAY, THE RIGHT TO SUCH BENEFITS FIRST ARISING UNDER SECTION 1 OF THE ACT OF JUNE 20, 1949. AFTER ENACTMENT OF THAT STATUTE THE OFFICER MADE TIMELY APPLICATION FOR RETIREMENT. HE HAD BEEN AN AIRPLANE PILOT IN CIVILIAN LIFE AND HAD LOST HIS RIGHT FOREARM AS A RESULT OF THE AVIATION ACCIDENT. HENCE, IT WAS REASONABLY OBVIOUS THAT HE WAS DISABLED FOR THE PERFORMANCE OF THE DUTIES OF HIS CIVILIAN OCCUPATION. IT WAS HELD IN THE DECISION OF JUNE 19, 1950, THAT, THE OFFICER'S INJURY HAVING BEEN SUSTAINED SUBSEQUENT TO AUGUST 14, 1945, HE WAS ENTITLED, UNDER THE RETROACTIVE PROVISIONS OF THE ACT OF JUNE 20, 1949, TO PAY AND ALLOWANCES WHILE HOSPITALIZED, AND FROM DATE OF RELEASE FROM THE HOSPITAL, IT BEING CONSIDERED THAT FROM THAT DATE HE WAS AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS. IT WAS SAID IN THE DECISION THAT

"A MEMBER OF THE MARINE CORPS RESERVE WHO IS INJURED WHILE ON TRAINING DUTY FOR ANY PERIOD OF TIME IS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE- DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE HE IS AWAITING ACTION ON HIS DISABILITY RETIREMENT PROCEEDINGS, IF SUCH PROCEEDINGS ARE INSTITUTED.'

THE STATUTE, BY ITS SPECIFIC TERMS, IS EFFECTIVE ON OR AFTER AUGUST 14, 1945, THE RETROACTIVE EFFECTIVE DATE OF THE ACT. SINCE YOU SUFFERED YOUR DISABILITY IN 1939 AND ALSO TERMINATED YOUR STATUS IN THE NATIONAL GUARD IN THAT YEAR, PRIOR TO THE EFFECTIVE DATE OF THE ACT, IT MUST BE HELD THAT YOU ARE NOT ENTITLED TO DISABILITY RETIREMENT BENEFITS UNDER SAID ACT.

AS TO YOUR OBSERVATION THAT THE DECISION OF THE ADMINISTRATOR FOR VETERANS' AFFAIRS IS NOT CONSISTENT WITH THE DECISION OF THE DEPARTMENT OF THE ARMY AND OUR VIEWS INDICATED ABOVE, IT MAY BE OBSERVED THAT THE DECISIONS OF THE ADMINISTRATOR FOR VETERANS' AFFAIRS ARE CONCLUSIVE ONLY ON MATTERS FALLING UNDER THE JURISDICTION OF THE VETERANS ADMINISTRATION. ALSO, SINCE THE ACT OF JUNE 20, 1949, IS NOT APPLICABLE TO YOU, A DISCUSSION OF WHETHER OR NOT, UNDER THAT LAW, A PERSON MUST BE RETIRED BEFORE HE IS ENTITLED TO RETIRED PAY IS NOT NECESSARY.