B-149975, DECEMBER 20, 1962, 42 COMP. GEN. 317

B-149975: Dec 20, 1962

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PAY - RETIRED - DISABILITY - STATUS - ERRONEOUS DISCHARGE THE HONORABLE DISCHARGE AT THE DIRECTION OF THE SECRETARY OF THE AIR FORCE OF AN ENLISTED MAN WITH A 20 PERCENT PHYSICAL DISABILITY WHO WAS INADVERTENTLY PAID DISABILITY SEVERANCE PAY PURSUANT TO 10 U.S.C. 1212 UNDER THE MISTAKEN BELIEF HE HAD LESS THAN 20 YEARS OF ACTIVE SERVICE IS AN EXECUTED AND IRREVOCABLE DISCHARGE BY COMPETENT AUTHORITY WHICH SEPARATED THE MEMBER FROM THE SERVICE AND. UPON SUBSEQUENT DETERMINATION THAT HE WAS ELIGIBLE FOR DISABILITY RETIREMENT. THE ORDERS REVOKING HIS DISCHARGE AND PLACING HIM ON THE RETIRED LIST WERE WITHOUT EFFECT AND HE MAY NOT BE PAID DISABILITY RETIRED PAY RETROACTIVELY TO DATE OF DISCHARGE.

B-149975, DECEMBER 20, 1962, 42 COMP. GEN. 317

PAY - RETIRED - DISABILITY - STATUS - ERRONEOUS DISCHARGE THE HONORABLE DISCHARGE AT THE DIRECTION OF THE SECRETARY OF THE AIR FORCE OF AN ENLISTED MAN WITH A 20 PERCENT PHYSICAL DISABILITY WHO WAS INADVERTENTLY PAID DISABILITY SEVERANCE PAY PURSUANT TO 10 U.S.C. 1212 UNDER THE MISTAKEN BELIEF HE HAD LESS THAN 20 YEARS OF ACTIVE SERVICE IS AN EXECUTED AND IRREVOCABLE DISCHARGE BY COMPETENT AUTHORITY WHICH SEPARATED THE MEMBER FROM THE SERVICE AND, THEREFORE, UPON SUBSEQUENT DETERMINATION THAT HE WAS ELIGIBLE FOR DISABILITY RETIREMENT, THE ORDERS REVOKING HIS DISCHARGE AND PLACING HIM ON THE RETIRED LIST WERE WITHOUT EFFECT AND HE MAY NOT BE PAID DISABILITY RETIRED PAY RETROACTIVELY TO DATE OF DISCHARGE; HOWEVER, UNDER THE AUTHORITY PROVIDED IN 10 U.S.C. 1552 TO CORRECT MILITARY RECORDS, THE SECRETARY MAY CORRECT THE FORMER MEMBER'S MILITARY RECORD TO SHOW ENTITLEMENT TO DISABILITY RETIRED PAY BASED ON DISABILITY RATING OF 20 PERCENT, BUT THE PAYMENT OF DISABILITY SEVERANCE PAY TO THE MEMBER BEING CONTRARY TO LAW, THE SUM PAID SHOULD BE COLLECTED FROM HIM.

TO MAJOR J. J. JOHNS, DEPARTMENT OF THE AIR FORCE, DECEMBER 20, 1962:

BY LETTER OF SEPTEMBER 24, 1962, THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF JULY 27, 1962, AHRA, AND ENCLOSURES, REQUESTING DECISION ON SEVERAL QUESTIONS IN THE CASE OF FORMER TECHNICAL SERGEANT CLARENCE WEITZEL, AF 1911 4567, INCLUDING THE QUESTION WHETHER YOU ARE AUTHORIZED TO PAY THE ACCOMPANYING VOUCHER IN HIS FAVOR IN THE AMOUNT OF $152.25, REPRESENTING RETIRED PAY FOR THE PERIOD FROM JUNE 1 THROUGH JUNE 30, 1962, AS TECHNICAL SERGEANT WITH 21 YEARS OF ACTIVE SERVICE AND OVER 22 YEARS FOR BASIC PAY PURPOSES. YOUR REQUEST WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS AIR FORCE REQUEST NO. DO-AF-673.

YOU STATE THAT BECAUSE OF A 20 PERCENT PHYSICAL DISABILITY RATING, SERGEANT WEITZEL WAS HONORABLY DISCHARGED ON DECEMBER 15, 1960, UNDER CHAPTER 61, TITLE 10, U.S. CODE, SINCE HIS PERSONNEL FILE AT THAT TIME INDICATED THAT HE HAD LESS THAN 20 YEARS OF ACTIVE SERVICE, AND THAT HE WAS THEN PAID (UNDER 10 U.S.C. 1212) DISABILITY SEVERANCE PAY IN THE AMOUNT OF $6,960. YOU REPORT THAT IT WAS LATER ESTABLISHED THAT HE HAD PRIOR NAVY AND NATIONAL GUARD SERVICE WHICH HAD NOT BEEN CONSIDERED IN EFFECTING HIS DISCHARGE; THAT BY INCLUDING SUCH ADDITIONAL SERVICE HE HAD COMPLETED, AS OF DECEMBER 15, 1960, EXACTLY 20 YEARS OF SERVICE COMPUTED UNDER 10 U.S.C. 1208; AND THAT HAD THAT FACT BEEN KNOWN AT THE TIME OF HIS DISCHARGE, HE WOULD HAVE RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 1201.

SPECIAL ORDERS DATED NOVEMBER 7, 1961, PURPORTED TO REVOKE SERGEANT WEITZEL'S DISCHARGE OF DECEMBER 15, 1960, AND SPECIAL ORDERS OF JANUARY 29, 1962, PURPORTED TO PLACE HIM ON THE RETIRED LIST IN THE GRADE OF TECHNICAL SERGEANT EFFECTIVE FEBRUARY 9, 1962, UNDER SECTION 1201 AND 1372, TITLE 19, U.S.C. YOU STATE THAT HE WAS AT THAT TIME CERTIFIED AS BEING 20 PERCENT PERMANENTLY DISABLED AND AS HAVING COMPLETED 21 YEARS, 1 MONTH AND 24 DAYS OF ACTIVE SERVICE AND 22 YEARS, 6 MONTHS AND 23 DAYS OF SERVICE FOR BASIC PAY PURPOSES THROUGH FEBRUARY 9, 1962; THAT HE WAS PAID RETIRED PAY AT THE RATE OF $152.25 A MONTH FROM FEBRUARY 9, 1962, THROUGH MAY 31, 1962; AND THAT HIS RETIRED PAY WAS STOPPED EFFECTIVE JUNE 1, 1962, UPON THE RECEIPT OF INFORMATION BY THE RETIRED PAY DIVISION, AIR FORCE ACCOUNTING AND FINANCE CENTER, THAT HE HAD PREVIOUSLY BEEN DISCHARGED WITH DISABILITY SEVERANCE PAY. YOU POINT OUT THAT SERGEANT WEITZEL WAS NOT QUALIFIED FOR SEPARATION WITH SEVERANCE PAY ON DECEMBER 15, 1960, SINCE, HAVING COMPLETED 20 YEARS OF ACTIVE SERVICE ON THAT DATE, HE DID NOT HAVE THE "LESS THAN 20 YEARS OF SERVICE" REQUIRED BY 10 U.S.C. 1203. ON SUCH BASIS, YOU SAY THAT HIS DISCHARGE ON DECEMBER 15, 1960, APPEARS INVALID.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION:

A. WAS DISCHARGE ON 15 DECEMBER 1960 INVALID?

B. IF ANSWER TO A IS NEGATIVE, ARE SUBSEQUENT ORDERS REVOKING DISCHARGE VALID, SINCE THEY WERE ISSUED AFTER EFFECTIVE DATE OF DISCHARGE?

C. IS AIRMAN ELIGIBLE FOR RETIRED PAY RETROACTIVE TO DISCHARGE ON 15 DECEMBER 1960?

D. IF ANSWER TO C IS NEGATIVE, IS RETIREMENT DATE OF 9 FEBRUARY 1962PROPER?

E. IF ANSWER TO D IS AFFIRMATIVE,

(1) MAY THE PERIOD 15 DECEMBER 1960 TO 9 FEBRUARY 1962 BE CREDITED FOR INCREASING RETIRED PAY (BOTH THE PERCENTAGE MULTIPLIER AND FOR BASIC PAY PURPOSES/?

(2) IS AIRMAN ELIGIBLE FOR ACTIVE DUTY PAY AND ALLOWANCES FROM 15 DECEMBER 1960 TO 9 FEBRUARY 1962?

SECTION 1201 OF TITLE 10, U.S.C. PROVIDES, AMONG OTHER THINGS, THAT UPON A DETERMINATION BY THE SECRETARY CONCERNED THAT A MEMBER OF THE ARMED FORCES ENTITLED TO BASIC PAY IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, GRADE, RANK, OR RATING BECAUSE OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO BASIC PAY, THE SECRETARY MAY RETIRE THE MEMBER, WITH RETIRED PAY COMPUTED UNDER SECTION 1401, IF THE SECRETARY ALSO DETERMINES THAT, BASED UPON ACCEPTED MEDICAL PRINCIPLES, THE DISABILITY IS OF A PERMANENT NATURE, AND THAT THE MEMBER HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1208. SECTION 1203 PROVIDES THAT IF THE MEMBER HAS COMPLETED LESS THAN 20 YEARS OF SERVICE, HE MAY BE SEPARATED FROM HIS ARMED FORCE, WITH SEVERANCE PAY COMPUTED UNDER SECTION 1212. SECTION 1216 PROVIDES THAT---

(A) THE SECRETARY CONCERNED SHALL PRESCRIBE REGULATIONS TO CARRY OUT THIS CHAPTER WITHIN HIS DEPARTMENT.

(B) THE SECRETARY CONCERNED HAS ALL POWERS, FUNCTIONS, AND DUTIES INCIDENT TO THE DETERMINATION UNDER THIS CHAPTER OF---

(1) THE FITNESS FOR ACTIVE DUTY OF ANY MEMBER OF AN ARMED FORCE UNDER HIS JURISDICTION;

(2) THE PERCENTAGE OF DISABILITY OF ANY SUCH MEMBER AT THE TIME OF HIS SEPARATION FROM ACTIVE DUTY;

(3) THE SUITABILITY OF ANY MEMBER FOR REAPPOINTMENT, REENLISTMENT, OR REENTRY UPON ACTIVE DUTY IN AN ARMED FORCE UNDER HIS JURISDICTION; AND

(4) THE ENTITLEMENT TO, AND PAYMENT OF, DISABILITY SEVERANCE PAY TO ANY MEMBER OF AN ARMED FORCE UNDER HIS JURISDICTION.

(C) THE SECRETARY CONCERNED OR THE ADMINISTRATOR OF VETERANS' AFFAIRS, AS PRESCRIBED BY THE PRESIDENT, HAS THE POWERS, FUNCTIONS, AND DUTIES UNDER THIS CHAPTER INCIDENT TO HOSPITALIZATION, REEXAMINATIONS, AND THE PAYMENT OF DISABILITY RETIRED PAY WITHIN HIS DEPARTMENT OR AGENCY.

APPARENTLY, SERGEANT WEITZEL WAS DISCHARGED BY DIRECTION OF THE SECRETARY OF THE AIR FORCE. UNDER THE BROAD POWERS CONFERRED UPON HIM BY 10 U.S.C. 1216 THERE CAN BE NO DOUBT THAT THE SECRETARY HAD THE AUTHORITY TO ORDER SERGEANT WEITZEL'S DISCHARGE UPON A DETERMINATION BY THE SECRETARY--- WHICH OBVIOUSLY WAS MADE--- THAT THE AIRMAN'S DISABILITY WAS PERMANENT. WHILE IT APPEARS THAT THE SECRETARY WOULD NOT HAVE DIRECTED THE AIRMAN'S DISCHARGE IF IT HAD BEEN DISCLOSED THAT HE HAD COMPLETED 20 YEARS OF SERVICE, THE COURTS AND THE ACCOUNTING OFFICERS HAVE LONG HELD THAT AN EXECUTED DISCHARGE, BY COMPETENT AUTHORITY, SEPARATES A MEMBER FROM THE SERVICE EVEN THOUGH SUCH DISCHARGE MAY HAVE BEEN INADVERTENT.

OUR DECISIONS HAVE CONSISTENTLY APPLIED THE PRINCIPLE OF THE IRREVOCABILITY OF AN EXECUTED DISCHARGE BY COMPETENT AUTHORITY EVEN THOUGH IT WAS SUBSEQUENTLY DETERMINED THAT SUCH A DISCHARGE SHOULD NOT HAVE BEEN ISSUED. SEE 4 COMP. GEN. 773 (ADMINISTRATIVE HOLDING THAT DISCHARGE BY MEDICAL SURVEY WAS ISSUED AS A RESULT OF ERRORS OF FACT AND WAS NULL AND VOID); 27 COMP. GEN. 495 (DISCHARGE FOR PHYSICAL DISABILITY INSTEAD OF RETIREMENT FOR DISABILITY); 31 COMP. GEN. 665 (DISCHARGE WITHOUT SEVERANCE PAY MAY NOT BE CANCELED SO AS TO AUTHORIZE DISCHARGE WITH SUCH PAY); 38 COMP. GEN. 523 (BAD CONDUCT DISCHARGE FROM NAVY RETIRED LIST MAY NOT SUBSEQUENTLY BE CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS SO AS TO ENTITLE THE MAN TO DISABILITY RETIRED PAY AFTER DATE OF ORIGINAL DISCHARGE ACTION); AND 40 COMP. GEN. 249 (DISCHARGE OF A MARINE CORPS OFFICER BECAUSE OF A PHYSICAL DISABILITY, RATED AT 20 PERCENT, MAY NOT BE SET ASIDE AND THE OFFICER PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH A PHYSICAL DISABILITY RATING OF 30 PERCENT).

WITH RESPECT TO THE HOLDINGS IN 31 COMP. GEN. 296 AND 37 COMP. GEN. 19, CITED IN ONE OF THE PAPERS ATTACHED TO YOUR LETTER, YOUR ATTENTION IS INVITED TO THE FACT THE ORDERS INVOLVED IN THOSE CASES WERE RETIREMENT ORDERS, NOT ORDERS EFFECTING A DISCHARGE FROM THE SERVICE. ORDINARILY, RETIREMENT DOES NOT EFFECT A PERMANENT SEPARATION FROM THE SERVICE. HENCE, IF SUBSTANTIAL NEW EVIDENCE NOT PREVIOUSLY CONSIDERED COMES TO LIGHT AFTER RETIREMENT ORDERS BECAME EFFECTIVE, SUCH ORDERS MAY BE REVOKED OR CORRECTED ON THE BASIS OF SUCH NEW EVIDENCE. 40 COMP. GEN. 419. THE HOLDINGS IN THOSE CASES ARE NOT FOR APPLICATION WHERE AN ACTUAL SEPARATION FROM THE SERVICE HAS BEEN ACCOMPLISHED UNDER ORDERS ISSUED BY COMPETENT AUTHORITY.

IT IS OUR VIEW, THEREFORE, THAT SERGEANT WEITZEL'S DISCHARGE ON DECEMBER 15, 1960, WAS NOT INVALID; THAT THE SUBSEQUENT ORDERS PURPORTING TO REVOKE HIS DISCHARGE WERE WITHOUT EFFECT; THAT HE IS NOT ELIGIBLE FOR RETIRED PAY RETROACTIVE TO THE DISCHARGE DATE OF DECEMBER 15, 1960; AND THAT THE "RETIREMENT DATE OF 9 FEBRUARY 1962" IS NOT PROPER. ACCORDINGLY, QUESTIONS "A," "B," "C," AND "D" ARE ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY AN ANSWER TO QUESTION "E.' THE PROPOSED PAYMENT OF $152.25 IS NOT AUTHORIZED AND THE VOUCHER IN THAT AMOUNT, TOGETHER WITH THE ACCOMPANYING PAPERS, IS RETAINED HERE.

IT IS OUR OPINION THAT A MAN IS EITHER IN THE SERVICE OR OUT OF THE SERVICE AND WE DOUBT THAT THE AIR FORCE COULD HAVE COMPELLED MR. WEITZEL AGAINST HIS WILL TO RETURN TO ACTIVE SERVICE AFTER HE RECEIVED HIS DISCHARGE. IF THE AIR FORCE HAD ATTEMPTED TO COMPEL SUCH SUBSEQUENT SERVICE, DOUBTLESS THE CIVIL COURTS WOULD HAVE FREED HIM UPON A HABEAS CORPUS PETITION. SEE UNITED STATES EX REL. FLANNERY V. COMMANDING GENERAL, 69 F.SUPP. 661; UNITED STATES EX REL. ROBERSON V. KEATING, ET AL., 121 F.SUPP. 477. IN MARSHALL V. WYMAN, 132 F.SUPP. 169, 176, THE COURT SAID:

WHEN PLAINTIFF WAS DISCHARGED * * * HIS STATUS CHANGED FROM SOLDIER TO CIVILIAN. * * * RECOGNIZING THE FINALITY OF DISCHARGE, CONGRESS HAS TAKEN APPROPRIATE ACTION TO PROVIDE REMEDIES WHERE THEIR NEED HAS APPEARED. CONGRESS HAS ESTABLISHED A PROCEDURE FOR ADMINISTRATIVE REVIEW OF THE CHARACTERIZATION OF A DISCHARGE * * * AND FOR THE CORRECTION OF ANY MILITARY RECORD TO REMOVE AN INJUSTICE. * * *.

IN THE CIRCUMSTANCES IT APPEARS THAT THE SECRETARY OF THE AIR FORCE, ACTING UNDER THE PROVISIONS OF 10 U.S.C. 1552, PROPERLY MAY CORRECT MR. WEITZEL'S MILITARY RECORD TO SHOW THAT HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST ON DECEMBER 15, 1960, WITH ENTITLEMENT TO DISABILITY RETIRED PAY BASED ON A DISABILITY RATING OF 20 PERCENT. IN ANY EVENT, HE IS NOT ENTITLED TO THE SUM OF $6,960 WHICH WAS PAID TO HIM AS DISABILITY SEVERANCE PAY ON DECEMBER 15, 1960, SUCH PAYMENT BEING CONTRARY TO LAW, AND THAT SUM SHOULD BE COLLECTED FROM HIM. SEE OUR DECISION OF MARCH 19, 1962, B-148128, 41 COMP. GEN. 597, COPY HEREWITH. SEE, ALSO, OLLIE T. FRITH V. UNITED STATES, CT.CL. NO. 138-59, DECIDED JANUARY 12, 1962.