B-149157, JULY 25, 1962, 42 COMP. GEN. 50

B-149157: Jul 25, 1962

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THE RETROACTIVE PERIOD FOR WHICH PAYMENT OF RETIRED PAY IS AUTHORIZED. NOTWITHSTANDING THE ADMINISTRATIVE ACTION DIRECTING THE REINSTATEMENT OF THE RETIRED PAY WAS TAKEN SUBSEQUENT TO THE AUTOMATIC TERMINATION DATE OF THE RETIRED PAY. ALTHOUGH THE APPROPRIATE DETERMINATION TO REINSTATE THE DISABILITY RETIRED PAY WAS MADE AFTER THE EXPIRATION OF THE 5-YEAR MAXIMUM PERIOD OF ENTITLEMENT. 1962: REFERENCE IS MADE TO YOUR LETTER DATED MAY 30. WITH ENCLOSURES REQUESTING DECISION WHETHER RETIRED PAY IS PAYABLE TO PRIVATE FIRST CLASS HENRY C. YOU STATE THAT PRIVATE FIRST CLASS PREW WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE U.S. THAT HE IS STILL ON THE TEMPORARY DISABILITY RETIRED LIST PENDING FINAL ACTION BY THE SECRETARY OF THE NAVY.

B-149157, JULY 25, 1962, 42 COMP. GEN. 50

PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - TERMINATION AND RESTORATION - RETROACTIVE PAYMENTS OF RETIRED PAY UPON RESTORATION TO A MEMBER OF THE ARMED SERVICES OF THE RETIRED PAY TERMINATED PRIOR TO THE AUTOMATIC EXPIRATION OF THE 5 YEARS ON THE TEMPORARY DISABILITY RETIRED LIST, PROVIDED BY 10 U.S.C. 1210 (H), THE FAILURE TO REPORT FOR PERIODIC PHYSICAL EXAMINATION REQUIRED BY SECTION 1210 (A) HAVING BEEN ADMINISTRATIVELY DETERMINED TO BE FOR JUST CAUSE, THE RETROACTIVE PERIOD FOR WHICH PAYMENT OF RETIRED PAY IS AUTHORIZED, LIMITED TO NOT MORE THAN 1 YEAR, SHOULD BE COMPUTED FROM AND INCLUDING THE DATE THE MEMBER'S 5 YEARS ON THE TEMPORARY DISABILITY RETIRED LIST EXPIRED, NOTWITHSTANDING THE ADMINISTRATIVE ACTION DIRECTING THE REINSTATEMENT OF THE RETIRED PAY WAS TAKEN SUBSEQUENT TO THE AUTOMATIC TERMINATION DATE OF THE RETIRED PAY, SUCH AUTOMATIC TERMINATION DATE NOT RESTRICTING THE BASIC AUTHORITY TO PROVIDE RETROACTIVE PAYMENTS OF RETIRED PAY; THEREFORE, ALTHOUGH THE APPROPRIATE DETERMINATION TO REINSTATE THE DISABILITY RETIRED PAY WAS MADE AFTER THE EXPIRATION OF THE 5-YEAR MAXIMUM PERIOD OF ENTITLEMENT, THE PERIOD OF RETROACTIVITY BEGINS WITH THE LAST DAY OF THE 5 -YEAR PERIOD.

TO MAJOR JOHN A. RAPP, UNITED STATED MARINE CORPS, JULY 25, 1962: REFERENCE IS MADE TO YOUR LETTER DATED MAY 30, 1962, WITH ENCLOSURES REQUESTING DECISION WHETHER RETIRED PAY IS PAYABLE TO PRIVATE FIRST CLASS HENRY C. PREW, 1416197, U.S. MARINE CORPS, RETIRED, FOR THE PERIOD JANUARY 1, 1961, THROUGH MAY 27, 1961. YOUR REQUEST FOR ADVANCE DECISION HAS BEEN ASSIGNED NO. DO-MC-656 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT PRIVATE FIRST CLASS PREW WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE U.S. MARINE CORPS ON JANUARY 1, 1957, UNDER THE PROVISIONS OF 10 U.S.C. 1202; THAT THE ACTIVITY RESPONSIBLE FOR ADMINISTERING RETIREMENT MATTERS WITHIN HEADQUARTERS MARINE CORPS TERMINATED HIS RETIRED PAY EFFECTIVE APRIL 1, 1960, UNDER THE AUTHORITY OF 10 U.S.C. 1210 (A), BECAUSE OF HIS FAILURE TO REPORT FOR PERIODIC PHYSICAL EXAMINATION; THAT HIS 5-YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST, UNDER 10 U.S.C. 1210 (H). EXPIRED ON DECEMBER 31, 1961; THAT UNDER DATE OF MAY 28, 1962, THE SAME ACTIVITY RESPONSIBLE FOR RETIREMENT MATTERS, UNDER 10 U.S.C. 1210 (A), DIRECTED THE RESUMPTION OF HIS RETIRED PAY EFFECTIVE JANUARY 1, 1961; AND THAT HE IS STILL ON THE TEMPORARY DISABILITY RETIRED LIST PENDING FINAL ACTION BY THE SECRETARY OF THE NAVY.

SECTION 1210 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) A PHYSICAL EXAMINATION SHALL BE GIVEN AT LEAST ONCE EVERY 18 MONTHS TO EACH MEMBER OF THE ARMED FORCE WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST TO DETERMINE WHETHER THERE HAS BEEN A CHANGE IN THE DISABILITY FOR WHICH HE WAS TEMPORARILY RETIRED. * * * IF A MEMBER FAILS TO REPORT FOR AN EXAMINATION UNDER THIS SUBSECTION, AFTER RECEIPT OF PROPER NOTIFICATION, HIS DISABILITY RETIRED PAY MAY BE TERMINATED. HOWEVER, PAYMENTS TO HIM SHALL BE RESUMED IF THERE WAS JUST CAUSE FOR HIS FAILURE TO REPORT. IF PAYMENTS ARE SO RESUMED, THEY MAY BE MADE RETROACTIVE FOR NOT MORE THAN 1 YEAR.

(B) 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 FIVE YEARS AFTER THE DATE WHEN THE MEMBER'S NAME WAS PLACED ON THAT LIST. * * *

(H) 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 FIVE YEARS AFTER THE DATE WHEN HIS NAME WAS PLACED ON THAT LIST.

THE SPECIFIC QUESTION STATED IN YOUR LETTER IS WHETHER THE PERIOD OF 1 YEAR SPECIFIED IN 10 U.S.C. 1210 (A) MUST BE COMPUTED RETROACTIVELY FROM MAY 28, 1962 (DATE OF THE ADMINISTRATIVE ACTION DIRECTING REINSTATEMENT OF RETIRED PAY) OR FROM AND INCLUDING THE DATE THE MEMBER'S 5-YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST EXPIRED. YOU POINT OUT THAT IF THE RETROACTIVE PERIOD MUST BE COMPUTED FROM MAY 28, 1962, THE SEEMING OBJECTIVE OF 10 U.S.C. 1210 (A/--- THAT RETIRED PAY BE PAID RETROACTIVELY FOR A PERIOD OF 1 YEAR WHEN PROPERLY AND COMPETENTLY AUTHORIZED--- WOULD BE FRUSTRATED IN INSTANCES WHERE THROUGH OVERSIGHT THE DIRECTIVES AUTHORIZING RESUMPTION OF RETIRED PAY ARE NOT TIMELY ISSUED.

THE STATUTORY PROVISION REGARDING THE PAYMENT OF RETROACTIVE RETIRED PAY IS NOT MANDATORY, BUT ONLY DISCRETIONARY AND THE RETROACTIVE PAYMENTS, WHEN AUTHORIZED, ARE NOT REQUIRED TO BE MADE RETROACTIVE FOR A YEAR, BUT FOR A DISCRETIONARY PERIOD OF NOT MORE THAN 1 YEAR.

IN THE PRESENT MATTER THE 5-YEAR PERIOD OF ELIGIBILITY FOR PAYMENT OF TEMPORARY DISABILITY RETIRED PAY TERMINATED ON DECEMBER 31, 1961. THE REINSTATEMENT OF RETIRED PAY WAS DIRECTED ON MAY 28, 1962, WITH PROPOSED EFFECTIVE DATE OF JANUARY 1, 1961, OBVIOUSLY WITH THE INTENT OF AWARDING THE MEMBER RETROACTIVE PAYMENTS FOR THE MAXIMUM PERIOD OF 1 YEAR.

SECTION 404 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821, OF WHICH 10 U.S.C. 1210 (A) IS A CODIFICATION, PROVIDED THAT "FAILURE OF ANY SUCH MEMBER TO REPORT FOR ANY PERIODIC PHYSICAL EXAMINATION AFTER RECEIPT OF PROPER NOTIFICATION MAY BE CONSIDERED CAUSE FOR TERMINATING HIS DISABILITY RETIREMENT PAY, EXCEPT THAT SUCH PAYMENTS SHALL BE REINSTATED AT A LATER DATE IF JUST CAUSE EXISTED FOR SUCH FAILURE TO REPORT, IN WHICH CASE PAYMENTS MAY BE RETROACTIVE FOR A PERIOD OF NOT TO EXCEED ONE YEAR.' IT THUS APPEARS THAT IT WAS THE LEGISLATIVE INTENT IN A CASE WHERE "JUST CAUSE" EXISTED FOR FAILURE TO REPORT FOR THE PHYSICAL EXAMINATION, THAT THE MEMBER INVOLVED NOT BE REQUIRED TO FORFEIT ALL THE SUSPENDED PAYMENTS, BUT THAT IT WOULD BE DISCRETIONARY IN THE APPROPRIATE AUTHORITY TO DETERMINE THE PERIOD OF TIME, NOT TO EXCEED 1 YEAR, FOR WHICH THE PAYMENTS WITHHELD SHOULD BE PAID TO HIM. SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 640, RELATING TO TITLE 10 OF THE U.S. CODE, SPECIFICALLY PROVIDES THAT IT WAS THE LEGISLATIVE INTENT TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED.

WHILE IT DOES NOT APPEAR THAT THE SITUATION HERE PRESENTED WAS ENVISIONED BY EITHER OF THE 1949 OR 1956 ENACTMENTS, WE DO NOT VIEW THE AUTOMATIC TERMINATION OF RETIRED PAY, REQUIRED BY SUBSECTION 1210 (H), AS INDICATING AN INTENT TO RESTRICT THE BASIC AUTHORITY TO AUTHORIZE RETROACTIVE PAYMENTS IN A PROPER CASE, AND IT IS OUR OPINION THAT WHERE, AS HERE, THE APPROPRIATE DETERMINATION IS MADE AFTER THE EXPIRATION OF THE 5-YEAR MAXIMUM PERIOD OF ENTITLEMENT, THE PERIOD OF RETROACTIVITY BEGINS WITH THE LAST DAY OF THE 5-YEAR PERIOD.

ACCORDINGLY, IT IS DETERMINED THAT IN THE PRESENT CASE THE RETROACTIVE PERIOD FOR PAYMENT OF TEMPORARY DISABILITY RETIRED PAY MAY BE COMPUTED FROM DECEMBER 31, 1961, AND PAYMENT APPEARS PROPER FOR THE PERIOD JANUARY 1 THROUGH DECEMBER 31, 1961.