B-149025, JULY 26, 1962, 42 COMP. GEN. 52

B-149025: Jul 26, 1962

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PAY - SERVICE CREDITS - ON RETIRED LIST - TEMPORARY DISABILITY IN THE COMPUTATION OF THE 5-YEAR PERIOD THE NAME OF A MEMBER OF THE UNIFORMED SERVICES WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST FOR THE PURPOSE OF TERMINATING DISABILITY RETIRED PAY. THE DATE THE NAME OF THE MEMBER WAS PLACED ON THE LIST IS FOR INCLUSION IN THE 5-YEAR PERIOD. THE LIMITATION ON THE PAYMENT OF DISABILITY RETIRED PAY FOR 5 YEARS BEING AN ABSOLUTE ONE THAT WAS ESTABLISHED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 FROM WHICH SECTION 1210 (H) DERIVES. DEC. 362 THAT WHEN AN ACT IS REQUIRED TO BE DONE WITHIN A LIMITED PERIOD FROM OR AFTER A PARTICULAR TIME OR EVENT. IS NOT FOR APPLICATION.

B-149025, JULY 26, 1962, 42 COMP. GEN. 52

PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - FIVE-YEAR LIMITATION. PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - TERMINATION OF STATUS. PAY - SEVERANCE - DISABILITY RETIREMENT - TEMPORARY DISABILITY RETIRED LIST CREDIT. PAY - SERVICE CREDITS - ON RETIRED LIST - TEMPORARY DISABILITY IN THE COMPUTATION OF THE 5-YEAR PERIOD THE NAME OF A MEMBER OF THE UNIFORMED SERVICES WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST FOR THE PURPOSE OF TERMINATING DISABILITY RETIRED PAY, IN ACCORDANCE WITH 10 U.S.C. 1219 (H), THE DATE THE NAME OF THE MEMBER WAS PLACED ON THE LIST IS FOR INCLUSION IN THE 5-YEAR PERIOD, THE LIMITATION ON THE PAYMENT OF DISABILITY RETIRED PAY FOR 5 YEARS BEING AN ABSOLUTE ONE THAT WAS ESTABLISHED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 FROM WHICH SECTION 1210 (H) DERIVES, AND THE RULE IN 5 COMP. DEC. 362 THAT WHEN AN ACT IS REQUIRED TO BE DONE WITHIN A LIMITED PERIOD FROM OR AFTER A PARTICULAR TIME OR EVENT, THE DAY DESIGNATED SHOULD BE EXCLUDED AND THE LAST DAY INCLUDED IN THE COMPUTATION, IS NOT FOR APPLICATION, 10 U.S.C. 1210 (H) LIMITING PAYMENT OF TEMPORARY DISABILITY RETIRED PAY TO A PERIOD NOT IN EXCESS OF 5 YEARS. WHEN AT THE EXPIRATION OF A 5-YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST AND THE DISCONTINUANCE OF DISABILITY RETIRED PAY TO MARINE CORPS ENLISTED MEMBERS, AS PROVIDED BY 10 U.S.C. 1210 (H), THE SECRETARY OF THE NAVY UNDER 10 U.S.C. 1221 APPROVES THE PLACEMENT OF THE MEMBERS ON THE PERMANENT DISABILITY RETIRED LIST IN ACCORDANCE WITH 10 U.S.C. 1210 (C), THE EFFECTIVE DATE OF THE PLACEMENT IS THE EXPIRATION DATE OF THE 5- YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST, THE SECRETARY HAVING TAKEN SPECIFIC ACTION, THE UNIFORM RETIREMENT DATE ACT OF 1930, 5 U.S.C. 47A, PROVIDING A UNIFORM RETIREMENT DATE FOR FEDERAL PERSONNEL BECOMES INOPERATIVE BUT IN THE ABSENCE OF APPROPRIATE ACTION, THE TERMINATION OF DISABILITY RETIRED PAY AT THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1219 (H) NOT AFFECTING THE STATUS OF A MEMBER ON THE TEMPORARY RETIRED LIST, THE PROVISIONS OF 5 U.S.C. 47 (A) APPLY AND THE PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST BECOMES EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE. TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST BY A MEMBER OF THE UNIFORMED SERVICES AFTER THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1210 (B) MAY BE INCLUDED IN DETERMINING THE RATE OF BASIC PAY FOR PURPOSES OF COMPUTING DISABILITY SEVERANCE PAY COMING WITHIN THE SCOPE OF 10 U.S.C. 1212 (A) (A), THE MEMBER'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST NOT AUTOMATICALLY TERMINATING AT THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED FOR THE PAYMENT OF TEMPORARY DISABILITY RETIRED PAY, BUT CONTINUING UNTIL REMOVAL OF HIS NAME AS PRESCRIBED IN 10 U.S.C. 1210 (C) TO (F), OR UNTIL TERMINATED IN SOME OTHER MANNER, SUCH AS BY RESIGNATION OR DEATH. IN DETERMINING THE NUMBER OF YEARS OF SERVICE CREDITABLE UNDER SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 IN COMPUTING THE RATE OF MONTHLY ACTIVE DUTY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES RESTORED TO ACTIVE DUTY IN CONFORMITY WITH 10 U.S.C. 1210 (F) AND 1211, THE TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST AFTER THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1210 (B) MAY BE INCLUDED, SECTION 202 (B) AUTHORIZING ACCRUAL OF ADDITIONAL SERVICE CREDITS FOR BASIC PAY PURPOSES FOR PERIODS THE MEMBERS WERE ON A TEMPORARY DISABILITY RETIRED LIST, WITHOUT REGARD TO WHETHER THE PERIOD EXTENDS BEYOND THE 5-YEAR LIMITATION PRESCRIBED IN 10 U.S.C. 1210 (B).

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, JULY 26, 1962:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1962, TRANSMITTED HERE BY THE COMMANDANT OF THE MARINE CORPS WITH FIRST ENDORSEMENT DATED MAY 25, 1962, REQUESTING DECISION ON SEVERAL QUESTIONS CONCERNING THE RETIRED PAY STATUS OF CERTAIN RETIRED PERSONNEL OF THE MARINE CORPS IN THE CIRCUMSTANCES SET FORTH BELOW. YOUR REQUEST HAS BEEN ASSIGNED NO. DO-MC-652 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SEVERAL ISSUES RAISED ARE ILLUSTRATED BY THE THREE CASES OUTLINED IN YOUR LETTER AS OLLOWS:

(A) CORPORAL WILLIAM R. SCHRECKENGOST, U.S. MARINE CORPS, RETIRED, WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1956, UNDER AUTHORITY OF SECTION 402, TITLE IV, OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816. THE PROVISIONS OF TITLE IV WERE CODIFIED EFFECTIVE AUGUST 10, 1956, IN CHAPTER 61, TITLE 10, UNITED STATES CODE (SECTIONS 1201, ET SEQ.). HIS REMOVAL FROM THE TEMPORARY RETIRED LIST AND PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE AS OF JULY 1, 1961, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1210 (C) WERE APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY ON AUGUST 17, 1961.

(B) SERGEANT JOSEPH A. GEORGE, U.S. MARINE CORPS, RETIRED, WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 1, 1957, AS PROVIDED IN 10 U.S.C. 1202. HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST AND PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1210 (C) WERE APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY ON MARCH 12, 1962. ON MARCH 15, 1962, THE ACTION OF MARCH 12, 1962, WAS AMENDED BY DIRECTION OF THE SECRETARY OF THE NAVY SO AS TO MAKE HIS PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE AS OF MARCH 1, 1962.

(C) PRIVATE FIRST CLASS WILLIAM W. BROWN, U.S. MARINE CORPS, RETIRED, WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON APRIL 1, 1957, AS PROVIDED IN 10 U.S.C. 1202. HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST AND PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1210 (C) WERE APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY ON APRIL 30, 1962. IN THIS CASE, HOWEVER, WHILE HIS PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST WAS NOT MADE EFFECTIVE AS OF APRIL 1, 1962, BY DIRECTION OF THE SECRETARY OF THE NAVY, IT IS STATED THAT MARINE CORPS HEADQUARTERS ISSUED ORDERS MAKING SUCH PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE AS OF THAT DATE, APRIL 1, 1962,"ON THE BASIS THAT A PERMANENT DISABILITY RETIREMENT IN THIS TYPE OF CASE MUST BE EFFECTIVE ON THE DATE AFTER THE EXPIRATION OF THE MEMBER'S 5-YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST.'

IT IS PROVIDED IN 10 U.S.C. 1210 (B) THAT THE SECRETARY CONCERNED "SHALL MAKE A FINAL DETERMINATION OF THE CASE OF EACH MEMBER WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST UPON THE EXPIRATION OF 5 YEARS AFTER THE DATE WHEN THE MEMBER'S NAME WAS PLACED ON THAT LIST.' IT IS FURTHER PROVIDED THAT "IF, AT THE TIME OF THAT DETERMINATION, THE PHYSICAL DISABILITY FOR WHICH THE MEMBER'S NAME WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST STILL EXISTS, IT SHALL BE CONSIDERED TO BE OF A PERMANENT NATURE.' 10 U.S.C. 1210 (C) PROVIDES THAT "IF * * * UPON A FINAL DETERMINATION UNDER SUBSECTION (B), IT IS DETERMINED THAT THE MEMBER'S PHYSICAL DISABILITY IS OF A PERMANENT NATURE AND IS AT LEAST 30 PERCENT UNDER THE STANDARD SCHEDULE OF RATING DISABILITIES IN USE BY THE VETERANS' ADMINISTRATION AT THE TIME OF THE DETERMINATION, HIS NAME SHALL BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND HE SHALL BE RETIRED UNDER SECTION 1201 OR 1204 OF THIS TITLE, WHICHEVER APPLIES.'

THE FIRST ISSUE YOU PRESENT WITH RESPECT TO THE RETIRED PAY STATUS OF THE THREE INDIVIDUALS NAMED ABOVE ARISES UNDER THE PROVISIONS OF 10 U.S.C. 1210 (H) WHICH READS AS FOLLOWS:

IF HIS NAME IS NOT SOONER REMOVED, THE DISABILITY RETIRED PAY OF A MEMBER WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST TERMINATES UPON THE EXPIRATION OF 5 YEARS AFTER THE DATE WHEN HIS NAME WAS PLACED ON THAT LIST.

IN COMMENTING ON THE ABOVE-QUOTED STATUTORY PROVISIONS YOU STATE THAT WHILE THE NAVY DEPARTMENT COMPUTES THE 5-YEAR PERIOD FROM AND INCLUDING THE DATE A MEMBER'S NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST "IT APPEARS 10 U.S.C. 1210 (H) IS SUSCEPTIBLE OF THE CONCLUSION THAT THE DATE HIS NAME IS SO PLACED SHOULD BE EXCLUDED FROM THE COMPUTATION" AND, HENCE, THAT THE THREE ENLISTED MEN ABOVE REFERRED TO ARE ENTITLED TO TEMPORARY DISABILITY RETIRED PAY FOR JULY 1, 1961, MARCH 1, 1962, AND APRIL 1, 1962, RESPECTIVELY,"EVEN THOUGH THEIR PERMANENT DISABILITY RETIREMENTS ARE HELD NOT TO BE EFFECTIVE ON THOSE DATES.'

THE PROVISIONS OF LAW NOW CODIFIED IN 10 U.S.C. 1210 (H) REFLECT THAT PART OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D), (NOTE ITALICIZED PORTION) WHICH PROVIDES AS FOLLOWS:

A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SUBSECTIONS (A), (B), OR (C) OF THIS SECTION, FOR THE PERIOD DURING WHICH HIS NAME IS CARRIED ON SUCH TEMPORARY DISABILITY RETIRED LIST, BUT IN NO EVENT TO EXCEED A PERIOD OF 5 YEARS * * * SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY * * *.

THUS, AN ABSOLUTE LIMITATION OF 5 YEARS ON THE PAYMENT OF TEMPORARY DISABILITY RETIREMENT PAY WAS ESTABLISHED IN SECTION 402 (D) OF THE 1949 ACT AND THIS LIMITATION WAS INVOLVED IN OUR DECISION OF SEPTEMBER 9, 1957, 37 COMP. GEN, 179. SECTION 49 (A) OF THE CODIFICATION ACT OF AUGUST 10, 1956, 70A STAT. 640, PROVIDES, IN PERTINENT PART, THAT "IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAWS REPLACED" BY THAT ACT. ALSO, SECTION 49 (F) OF THAT ACT PROVIDES THAT ENACTMENT OF THAT LAW "DOES NOT INCREASE OR DECREASE THE PAY OR ALLOWANCES, INCLUDING RETIRED PAY AND RETAINER PAY, OF ANY PERSON.' VIEW OF THE SPECIFIC LEGISLATIVE INTENT FOUND IN SECTION 49 (A) AND (F) OF THE 1956 ACT, THE SLIGHT DIFFERENCE IN THE LANGUAGE OF 10 U.S.C. 1210 (H) AND THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW FROM WHICH SECTION 1210 (H) WAS DERIVED MAY NOT BE CONSTRUED AS HAVING EXTENDED THE RIGHT TO RECEIVE TEMPORARY DISABILITY RETIRED PAY TO ANY MEMBER OF THE UNIFORMED SERVICES FOR ANY PERIOD IN EXCESS OF A PERIOD OF 5 YEARS. ADOPTING THE INTERPRETATION SUGGESTED IN YOUR LETTER, THE THREE RETIRED ENLISTED MEN HERE INVOLVED WOULD BE ENTITLED TO RECEIVE TEMPORARY DISABILITY RETIRED PAY FOR A PERIOD OF 5 YEARS AND 1 DAY. THE ANSWER TO THIS QUESTION IS IN THE NEGATIVE.

THE RULE STATED IN 5 COMP. DEC. 362 (1899) TO WHICH YOU MAKE SPECIFIC REFERENCE IS TO THE EFFECT THAT "WHERE AN ACT IS REQUIRED TO BE DONE WITHIN A LIMITED PERIOD FROM OR AFTER A PARTICULAR TIME OR EVENT, THE DAY THUS DESIGNATED SHOULD BE EXCLUDED AND THE LAST DAY OF THE SPECIFIED PERIOD INCLUDED IN THE COMPUTATION.' THIS WAS THE RULE APPLIED IN OUR DECISION OF JUNE 2, 1955, 34 COMP. GEN. 642, WITH RESPECT TO THE 5-YEAR PERIOD FOLLOWING THE DATE SPECIFIED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 281. THAT HOLDING IS NOT APPLICABLE TO THE PROVISIONS OF 10 U.S.C. 1210 (H) SINCE IT IS CLEAR THAT THE LAW DOES NOT CONTEMPLATE PAYMENT OF TEMPORARY DISABILITY RETIRED PAY TO ANYONE UNDER ANY CIRCUMSTANCES FOR A PERIOD IN EXCESS OF 5 YEARS.

THE NEXT ISSUE PRESENTED RELATES TO THE PROVISIONS OF 10 U.S.C. 1221, WHICH ARE AS FOLLOWS:

NOTWITHSTANDING SECTION 47A OF TITLE 5, THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR THE RETIREMENT OF ANY MEMBER OF THE ARMED FORCES UNDER THIS CHAPTER, OR FOR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, THAT IS EARLIER THAN THE DATE PROVIDED FOR IN THAT SECTION.

THE UNIFORM RETIREMENT DATE ACT OF 1930, 46 STAT. 253, 5 U.S.C. 47A, PROVIDED, GENERALLY, THAT RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE AND THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THE SAID LAW HAD NOT BEEN ENACTED. IT APPEARS THAT WHEN THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED ACTING UNDER AUTHORITY OF 10 U.S.C. 1221 SPECIFIES AN EFFECTIVE DATE FOR PERMANENT DISABILITY RETIREMENT OR FOR PLACEMENT OF A MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST WHICH IS EARLIER THAN THE DATE PRESCRIBED FOR RETIREMENT IN 5 U.S.C. 47A, THE LATTER PROVISIONS OF LAW ARE RENDERED INOPERATIVE IN THE MATTER. HOWEVER, IF THE SECRETARY CONCERNED DOES NOT TAKE ANY ACTION UNDER AUTHORITY OF 10 U.S.C. 1221, THE PROVISIONS OF 5 U.S.C. 47A REMAIN IN FULL FORCE AND EFFECT AND GOVERN THE EFFECTIVE DATE OF RETIREMENT OF THE PERSON CONCERNED.

APPLYING THE ABOVE-CITED PROVISIONS OF LAW IN THE CASES OF THE THREE RETIRED ENLISTED MEN UNDER CONSIDERATION, IT WILL BE SEEN THAT UNDER THE FACTS STATED THE PLACEMENT OF SCHRECKENGOST AND GEORGE ON THE PERMANENT DISABILITY RETIRED LIST BECAME EFFECTIVE AS OF JULY 1, 1961, AND MARCH 1, 1962, RESPECTIVELY. IN THE CASE OF PRIVATE FIRST CLASS BROWN, HOWEVER, IT IS REPORTED THAT THE EFFECTIVE DATE OF HIS PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1210 (C), APPROVED ON APRIL 30, 1962, BY DIRECTION OF THE SECRETARY OF THE NAVY, WAS NOT "EXPRESSLY SPECIFIED.' THE TERMINATION OF DISABILITY RETIRED PAY AT THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1210 (H) DOES NOT AFFECT OR ALTER THE STATUS OF A MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST. SUCH STATUS CONTINUES, INDEFINITELY, UNTIL THE INDIVIDUAL CONCERNED IS REMOVED FROM SUCH LIST AS PROVIDED IN 10 U.S.C. 1210 (C) TO (F), INCLUSIVE, OR UNTIL TERMINATED IN SOME OTHER MANNER SUCH AS BY RESIGNATION, DEATH, OR OTHERWISE. IT SEEMS CLEAR FROM THE LANGUAGE USED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 RELATING TO THE TEMPORARY DISABILITY RETIRED LIST, AS WELL AS THAT USED IN THE CODIFICATION OF THOSE PROVISIONS IN THE ACT OF AUGUST 10, 1956, THE CONGRESS FULLY ANTICIPATED SITUATIONS SUCH AS THOSE DESCRIBED IN YOUR LETTER, RESULTING IN DELAYS BEYOND THE 5-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1210 (H), BEFORE COMPLETION OF FINAL ACTION. OTHERWISE, THE LIMITATION PRESCRIBED IN 10 U.S.C. 1210 (H), TERMINATING PAYMENT OF TEMPORARY DISABILITY RETIRED PAY "UPON THE EXPIRATION OF 5 YEARS" WOULD NOT HAVE BEEN NECESSARY. COMPARE 37 COMP. GEN. 179, WHERE THE 5-YEAR PERIOD ENDED FEBRUARY 28, 1956. IN THAT CASE, NOTWITHSTANDING A DETERMINATION ON THAT SAME DATE BY THE SECRETARY OF THE NAVY THAT THE OFFICER THERE CONCERNED WAS PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS RANK, HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WAS NOT ACTUALLY TERMINATED UNTIL SEPTEMBER 18, 1956. IT APPEARS THAT APPROPRIATE ACTION HAS NOT BEEN TAKEN IN BROWN'S CASE BY THE SECRETARY OF THE NAVY UNDER AUTHORITY OF 10 U.S.C. 1221, THE PROVISIONS OF 5 U.S.C. 47A ARE APPLICABLE AND BROWN'S PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST UNDER THE FACTS STATED ABOVE MAY NOT BE CONSIDERED AS HAVING BECOME LEGALLY EFFECTIVE BEFORE MAY 1, 1962.

THE FINAL ISSUE SUBMITTED FOR DECISION ARISES IN THOSE CASES WHERE THE REMOVAL OF A MEMBER OF THE NAVAL SERVICE FROM THE TEMPORARY DISABILITY RETIRED LIST AND HIS SEPARATION FROM THE SERVICE AS AUTHORIZED IN 10 U.S.C. 1210 (E), 1203, AND 1206, OR RESTORATION TO ACTIVE DUTY IN CONFORMITY WITH 10 U.S.C. 1210 (F), AND 1211, IS APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY ON A DATE SUBSEQUENT TO THE FIFTH ANNIVERSARY OF OF THE DATE ON WHICH THE MEMBER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. IT IS STATED THAT THERE ARE THREE CASES AWAITING FINAL ACTION BY THE SECRETARY OF THE NAVY INVOLVING MARINE CORPS MEMBERS WHOSE 5-YEAR PERIODS ON THE TEMPORARY DISABILITY RETIRED LIST HAVE EXPIRED. IN CONNECTION WITH THESE THREE CASES THE QUESTIONS PRESENTED ARE WHETHER THE TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST AFTER THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1210 (B) MAY BE INCLUDED (1) IN DETERMINING THE AMOUNT OF DISABILITY SEVERANCE PAY DUE IN CASES COMING WITHIN THE SCOPE OF 10 U.S.C. 1212 (A) (A), AND (2) IN DETERMINING THE NUMBER OF YEARS OF SERVICE CREDITABLE UNDER THE PROVISIONS OF SECTION 212 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B), IN COMPUTING THE RATE OF MONTHLY ACTIVE DUTY BASIC PAY WHERE THE MEMBER CONCERNED IS RESTORED TO ACTIVE DUTY IN CONFORMITY WITH 10 U.S.C. 1210 (F) AND 1211.

10 U.S.C. 1212 (A) GOVERNING DISABILITY SEVERANCE PAYMENTS PROVIDES THAT UPON SEPARATION FROM HIS ARMED FORCE UNDER SECTION 1203 OR 1206, A MEMBER IS ENTITLED TO DISABILITY SEVERANCE PAY COMPUTED BY MULTIPLYING (1) HIS YEARS OF SERVICE, BUT NOT MORE THAN 12, COMPUTED UNDER SECTION 1208 BY (2) THE HIGHEST OF THE AMOUNTS DETERMINED AS PRESCRIBED IN CLAUSES (A) TO (D), 10 U.S.C. 1212 (A) (A/-1212 (A) (D). CLAUSE (A), IN 10 U.S.C. 1212 (A), IS AS FOLLOWS: TWICE THE AMOUNT OF MONTHLY BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING (I) ON ACTIVE DUTY ON THE DATE WHEN HE IS SEPARATED AND (II) IN THE GRADE AND RANK IN WHICH HE WAS SERVING ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED. CLAUSES (B), (C), AND (D) CONTAIN THE FOLLOWING IDENTICAL PROVISION:

TWICE THE AMOUNT OF MONTHLY BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING (I) ON ACTIVE DUTY ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED * * *.

IT WILL BE NOTED THAT UNDER CLAUSE (A) THE RATE OF MONTHLY BASIC PAY TO BE EMPLOYED IN DETERMINING THE AMOUNT OF DISABILITY SEVERANCE PAY IS THE AMOUNT TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY ON THE DATE WHEN HE IS SEPARATED, WHEREAS UNDER CLAUSES (B), (C), AND (D), INCLUSIVE, DISABILITY SEVERANCE PAY IS COMPUTED ON THE RATE OF MONTHLY BASIC PAY TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED. IF TIME SPENT ON THE TEMPORARY DISABILITY LIST IS CREDITABLE, A LONGER PERIOD OF LONGEVITY WOULD BE APPLICABLE IN COMPUTATIONS UNDER CLAUSE (A) THAN UNDER CLAUSES (B), (C), AND (D).

AS PREVIOUSLY STATED A MEMBER'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST DOES NOT AUTOMATICALLY TERMINATE AT THE EXPIRATION OF THE 5- YEAR PERIOD PRESCRIBED FOR PAYMENT OF TEMPORARY DISABILITY RETIRED PAY. IN SUCH A CASE THE INDIVIDUAL'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST CONTINUES UNTIL REMOVAL OF THE MEMBER'S NAME FROM THAT LIST AS PROVIDED IN 10 U.S.C. 1210 (C) TO (F), INCLUSIVE, OR UNTIL SUCH STATUS IS TERMINATED IN SOME OTHER MANNER SUCH AS BY RESIGNATION, DEATH, OR OTHERWISE. IN THE DECISION OF JUNE 9, 1958, 37 COMP. GEN. 823, CITED IN YOUR SUBMISSION, IT WAS HELD THAT TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST BY A MEMBER OF THE UNIFORMED SERVICES PRIOR TO SEPARATION FOR PHYSICAL DISABILITY IS AUTHORIZED TO BE CREDITED IN DETERMINING THE RATE OF BASIC PAY FOR PURPOSES OF COMPUTING SEVERANCE PAY UNDER 10 U.S.C. 1212 (A) (A). WE FIND NO BASIS FOR A DIFFERENT CONCLUSION WITH RESPECT TO TIME SPENT ON A TEMPORARY DISABILITY RETIRED LIST SUBSEQUENT TO THE EXPIRATION OF THE 5-YEAR PERIOD PRESCRIBED FOR PAYMENT OF TEMPORARY DISABILITY RETIRED PAY AND SUCH TIME PROPERLY MAY BE INCLUDED IN THE COMPUTATION OF DISABILITY SEVERANCE PAY UNDER 10 U.S.C. 1212 (A) (A). PART (1) OF THE FINAL QUESTION IS ANSWERED ACCORDINGLY.

SECTION 202 (B) OF THE 1949 ACT EXPRESSLY PROVIDES THAT "MEMBERS OF THE UNIFORMED SERVICES SHALL ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST * * *.' SINCE SUCH PROVISION COVERS ALL TIME WHILE ON SUCH LIST, A MEMBER OF THE UNIFORMED SERVICES ACCRUES ADDITIONAL SERVICE CREDIT FOR ACTIVE DUTY BASIC PAY PURPOSES FOR PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST WITHOUT REGARD TO WHETHER SUCH PERIOD EXTENDS BEYOND THE 5-YEAR LIMITATION PRESCRIBED IN 10 U.S.C. 1210 (B). PART (2) OF THE FINAL QUESTION IS ANSWERED IN THE AFFIRMATIVE.