B-150875, AUG. 15, 1963, 43 COMP. GEN. 155

B-150875: Aug 15, 1963

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PAY - RETIRED - DISABILITY - RESERVISTS DISABLED BY DISEASE DURING TRAINING PERIOD A DETERMINATION MADE WHILE AN ARMY RESERVE MEMBER WAS ON A 2-WEEK PERIOD OF ACTIVE DUTY FOR TRAINING THAT THE DISEASE WHICH MADE HIM UNFIT FOR MILITARY SERVICE HAD BEEN AGGRAVATED BY A PRIOR 2-YEAR PERIOD OF MILITARY SERVICE MEETS THE REQUIREMENTS OF 10 U.S.C. 1201 AND 1202 WHICH PROVIDE FOR PHYSICAL DISABILITY RETIREMENT FOR RESERVE MEMBERS CALLED TO ACTIVE DUTY FOR MORE THAN 30 DAYS. THE REFERENCE IN THOSE SECTIONS TO THE PERIOD OF SERVICE OF MORE THAN 30 DAYS HAVING APPLICATION TO THE DUTY BEING PERFORMED AT THE TIME THE PHYSICAL DISABILITY IS INCURRED RATHER THAN TO THE DURATION OF THE DUTY DURING WHICH THE PHYSICAL DISABILITY DETERMINATION IS MADE.

B-150875, AUG. 15, 1963, 43 COMP. GEN. 155

PAY - RETIRED - DISABILITY - RESERVISTS DISABLED BY DISEASE DURING TRAINING PERIOD A DETERMINATION MADE WHILE AN ARMY RESERVE MEMBER WAS ON A 2-WEEK PERIOD OF ACTIVE DUTY FOR TRAINING THAT THE DISEASE WHICH MADE HIM UNFIT FOR MILITARY SERVICE HAD BEEN AGGRAVATED BY A PRIOR 2-YEAR PERIOD OF MILITARY SERVICE MEETS THE REQUIREMENTS OF 10 U.S.C. 1201 AND 1202 WHICH PROVIDE FOR PHYSICAL DISABILITY RETIREMENT FOR RESERVE MEMBERS CALLED TO ACTIVE DUTY FOR MORE THAN 30 DAYS, THE REFERENCE IN THOSE SECTIONS TO THE PERIOD OF SERVICE OF MORE THAN 30 DAYS HAVING APPLICATION TO THE DUTY BEING PERFORMED AT THE TIME THE PHYSICAL DISABILITY IS INCURRED RATHER THAN TO THE DURATION OF THE DUTY DURING WHICH THE PHYSICAL DISABILITY DETERMINATION IS MADE; THEREFORE, THE DETERMINATION OF DISABILITY HAVING BEEN MADE WHILE THE MEMBER WAS RECEIVING BASIC PAY PERMITS PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 AND ENTITLEMENT TO RETIRED PAY.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, AUGUST 15, 1963:

BY FIRST INDORSEMENT DATED FEBRUARY 20, 1963, THE OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF NOVEMBER 27, 1962, REQUESTING AN ADVANCE DECISION CONCERNING THE PAYMENT PROPOSED ON A VOUCHER STATED IN FAVOR OF SPECIALIST FRANCISCO M. GONZALEZ, E-4, ER 56 310 269, U.S. ARMY, RETIRED, REPRESENTING DISABILITY RETIRED PAY FOR THE PERIOD AUGUST 18 TO 31, 1962. THE REQUEST WAS FORWARDED UNDER DO-A-689 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REPORT THAT SPECIALIST GONZALEZ WAS INDUCTED INTO ACTIVE MILITARY SERVICE OCTOBER 20, 1958, DISCHARGED SEPTEMBER 30, 1960, AND TRANSFERRED TO THE UNITED STATES ARMY RESERVE TO COMPLETE HIS REQUIRED MILITARY OBLIGATION. DURING A 2-WEEK PERIOD OF ORDERED ACTIVE DUTY FOR TRAINING WHICH COMMENCED AUGUST 5, 1961, THE MEMBER WAS HOSPITALIZED FOR A DISABILITY DIAGNOSED AS TUBERCULOSIS. A PHYSICAL EVALUATION BOARD FOUND HIM PHYSICALLY UNFIT FOR FURTHER MILITARY SERVICE BY REASON OF A DISABILITY WHICH EXISTED PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE, BUT WHICH WAS AGGRAVATED BY MILITARY SERVICE AND RECOMMENDED THAT HE BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. THE ARMY PHYSICAL REVIEW COUNCIL, ON REVIEW OF THESE FINDINGS, DETERMINED THAT THE MAN'S DISABILITY WAS AGGRAVATED DURING HIS MILITARY SERVICE FROM OCTOBER 20, 1958, TO SEPTEMBER 30, 1960, AND THAT THE DISEASE WAS DISCOVERED DURING A 2-WEEK PERIOD OF ACTIVE DUTY FOR TRAINING. SINCE 10 U.S.C. 1204 PROVIDES THAT MEMBERS ON ACTIVE DUTY FOR 30 DAYS OR LESS MAY BE RETIRED FOR DISABILITY ONLY BECAUSE OF DISABILITY RESULTING FROM AN INJURY RATHER THAN A DISEASE, THE COUNCIL HELD THAT THE PHYSICAL EVALUATION BOARD PROCEEDINGS WERE NOT APPLICABLE AND RECOMMENDED THAT THE PROCEEDINGS BE CANCELED. THEREAFTER THE MATTER WAS REFERRED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR AN OPINION AS TO WHETHER GONZALEZ MIGHT BE GIVEN A MEDICAL SEPARATION BY VIRTUE OF HIS DISABILITY HAVING BEEN AGGRAVATED BY MILITARY SERVICE PROVIDED HE REMAINED HOSPITALIZED UNTIL HIS CASE WAS FINALIZED. IN AN OPINION DATED JUNE 19, 1962, THE JUDGE ADVOCATE GENERAL DETERMINED THAT IF THE MEMBER'S DISEASE WAS AGGRAVATED DURING HIS PERIOD OF ACTIVE DUTY FOR 2 YEARS, HE WAS ELIGIBLE, UNDER HIS STATUS AS A HOSPITAL PATIENT, FOR PHYSICAL DISABILITY PROCESSING SINCE THE PROVISIONS OF 10 U.S.C. 1201, 1202, AND 1203 ARE APPLICABLE TO DISABILITIES (INCLUDING DISEASE) INCURRED OR AGGRAVATED DURING ANY PERIOD OF ACTIVE DUTY FOR MORE THAN 30 DAYS.

THE ARMY PHYSICAL REVIEW COUNCIL BY COMMENT NO. 3, DATED AUGUST 2, 1962, INDICATED DISAGREEMENT WITH THE JUDGE ADVOCATE GENERAL'S CONCLUSION AND POINTED OUT THAT THE MATTER IS SUBJECT TO REVIEW BY THE COMPTROLLER GENERAL. NEVERTHELESS, IT IS STATED THAT THE MEMBER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, EFFECTIVE AUGUST 18, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 1205. IT IS UNDERSTOOD THAT THE REFERENCE TO SECTION 1205 WAS THE RESULT OF AN ERROR AND THAT AMENDATORY RETIREMENT ORDERS WILL CITE SECTION 1202 AS AUTHORITY FOR THE ACTION TAKEN.

IT IS CLEAR THAT 10 U.S.C. 1205 FURNISHED NO BASIS FOR PLACING THE MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST, SINCE ITS PROVISIONS COVER ONLY SITUATIONS INVOLVING PHYSICAL DISABILITY RESULTING FROM AN INJURY. DOES NOT APPEAR THAT GONZALEZ INCURRED AN INJURY AT ANY TIME WHILE HE WAS SERVING ON ACTIVE DUTY. THE DETERMINATIONS MADE ARE TO THE EFFECT THAT HIS DISEASE WAS AGGRAVATED BY HIS 2-YEAR TERM OF ACTIVE DUTY FROM 1958 TO 1960 AND THAT THE DISEASE WAS FIRST DISCOVERED DURING AN AUTHORIZED PERIOD OF ACTIVE DUTY FOR TRAINING. THUS, THE QUESTION IS WHETHER, BASED UPON THOSE DETERMINATIONS, HE WAS ELIGIBLE TO HAVE HIS NAME PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND RECEIVE DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 1202 OF TITLE 10, U.S. CODE, WHICH READS AS FOLLOWS:

UPON A DETERMINATION BY THE SECRETARY CONCERNED THAT A MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES ENTITLED TO BASIC PAY, OR ANY OTHER MEMBER OF THE ARMED FORCES ENTITLED TO BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF THIS TITLE) FOR A PERIOD OF MORE THAN 30 DAYS, WOULD BE QUALIFIED FOR RETIREMENT UNDER SECTION 1201 OF THIS TITLE BUT FOR THE FACT THAT HIS DISABILITY IS NOT DETERMINED TO BE OF A PERMANENT NATURE, THE SECRETARY SHALL, IF HE ALSO DETERMINES THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT THE DISABILITY MAY BE OF A PERMANENT NATURE, PLACE THE MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST, WITH RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE.

IN DECISION OF MAY 7, 1956, B-126506, 35 COMP. GEN. 626, WE HELD THAT THE DATE WHEN A DISEASE OR INJURY IS CONTRACTED OR SUFFERED, AS DISTINGUISHED FROM A LATER DATE WHEN IT WAS DETERMINED THAT, BY REASON OF SUCH DISEASE OR INJURY, THE MEMBER HAS BECOME UNFIT TO PERFORM HIS MILITARY DUTIES, IS TO BE CONSIDERED AS THE DATE SUCH PHYSICAL DISABILITY WAS "INCURRED" WITHIN THE PURVIEW OF PARAGRAPHS (A) AND (B) OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, THE SOURCE LAW OF 10 U.S.C. 1202. WE WENT ON TO SAY THAT THE BENEFITS OF THE LAW DEPEND PRIMARILY UPON A "DETERMINATION" BY THE SECRETARY CONCERNED THAT A MEMBER "ENTITLED TO RECEIVE BASIC PAY" IS UNFIT TO PERFORM HIS MILITARY DUTIES BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY. THERE IS NO REQUIREMENT EXPRESS OR IMPLIED THAT SUCH BENEFITS SHALL ACCRUE ONLY IN THE CASES OF THOSE MEMBERS HAVING AN UNINTERRUPTED PERIOD OF MILITARY SERVICE BETWEEN THE DATE THE DISABILITY IS "INCURRED" AND THE DATE THE SECRETARY DETERMINES THAT THE MEMBER IS UNFIT TO PERFORM HIS MILITARY DUTIES. THUS, WE HELD THAT THE REASONABLE INTENDMENT OF THE LAW IS THAT THE PRESCRIBED BENEFITS SHOULD ACCRUE TO INDIVIDUALS WHOSE STATUS OTHERWISE BRINGS THEM WITHIN THE SCOPE OF THE LAW WITHOUT REGARD TO ANY INTERVENING BREAKS IN THEIR ACTIVE SERVICE WITH PAY; PROVIDED, HOWEVER, THAT A MEMBER IS NOT RETURNED TO A "BASIC PAY" STATUS SOLELY OR PRIMARILY FOR THE PURPOSE, THROUGH HOSPITALIZATION OR OTHERWISE, OF ESTABLISHING A BASIS TO GRANT HIM DISABILITY RETIREMENT BENEFITS. THE REASONING OF THAT DECISION APPLIES EQUALLY TO DISABILITY INCURRED FROM THE AGGRAVATION, BY A PERIOD OF ACTIVE SERVICE, OF A DISEASE WHICH EXISTED PRIOR TO INDUCTION INTO THE MILITARY SERVICE.

EFFECTIVE OCTOBER 1, 1949, DISABILITY RETIREMENT FOR MEMBERS OF THE UNIFORMED SERVICES WAS AUTHORIZED AS SET FORTH IN SUBSECTIONS 402 (A), (B), (C), AND (F) OF THE CAREER COMPENSATION ACT OF 1949, THE SOURCE STATUTE FOR SECTIONS 1201, 1202, 1204, AND 1205. FOR RETIREMENT BENEFITS UNDER THOSE SECTIONS RESERVE MEMBERS ARE DIVIDED INTO TWO GENERAL CATEGORIES, THOSE ON ACTIVE DUTY FOR MORE THAN 30 DAYS AND THOSE ON ACTIVE DUTY FOR 30 DAYS OR LESS. DISABILITY RETIREMENT FOR MEMBERS ON ACTIVE DUTY FOR 30 DAYS OR LESS IS LIMITED UNDER SECTIONS 1204 AND 1205 TO SITUATIONS INVOLVING PHYSICAL DISABILITY RESULTING FROM AN INJURY WHICH IS THE PROXIMATE RESULT OF PERFORMING ACTIVE DUTY OR INACTIVE DUTY TRAINING. TO BE ENTITLED TO RETIREMENT FOR PHYSICAL DISABILITY RESULTING FROM INJURY THE ONLY REQUIREMENT AS TO PERIOD OF DUTY IS THAT THE INJURY BE INCURRED WHILE THE MEMBER IS PERFORMING HIS MILITARY DUTIES. UNDER SECTIONS 1201 AND 1202 AND WITHIN THE LIMITATIONS STATED THEREIN, RETIREMENT FOR PHYSICAL DISABILITY FROM ANY CAUSE IS AUTHORIZED FOR RESERVE MEMBERS WHO HAVE BEEN ORDERED TO ACTIVE DUTY FOR MORE THAN 30 DAYS PROVIDED THEY INCUR THAT PHYSICAL DISABILITY WHILE IN RECEIPT OF BASIC PAY. WHILE THE LANGUAGE USED IN THE TWO LATTER SECTIONS COULD BE LITERALLY APPLIED AND INTERPRETED TO MEAN THAT THE SECRETARIAL DETERMINATION THERE AUTHORIZED MAY BE MADE ONLY DURING A PERIOD A RESERVE MEMBER HAS BEEN ORDERED TO ACTIVE DUTY FOR MORE THAN 30 DAYS, WE ARE OF THE OPINION THAT THE DESIGNATION IN THOSE SECTIONS OF THE LENGTH OF THE PERIOD OF ACTIVE DUTY WAS INTENDED TO DISTINGUISH THE RESERVE PERSONNEL THERE INVOLVED FROM THOSE FOR WHOM RETIREMENT BENEFITS ARE AUTHORIZED IN SECTIONS 1204 AND 1205 UNDER MORE LIMITED CIRCUMSTANCES. SINCE SECTIONS 1204 AND 1205 RELATE THE INCURRENCE OF THE DISABILITY TO THE ACTIVE DUTY OR INACTIVE DUTY TRAINING PERFORMED, IT MAY BE INFERRED THAT THE CLAUSE "WHO HAS BEEN CALLED OR ORDERED TO ACTIVE DUTY * * * FOR A PERIOD OF MORE THAN 30 DAYS" CONTAINED IN SECTIONS 1201 AND 1202 REFERS TO THE DUTY BEING PERFORMED AT THE TIME THE PHYSICAL DISABILITY WAS INCURRED, RATHER THAN THE DURATION OF THE DUTY DURING WHICH THE SECRETARY CAN MAKE HIS DETERMINATIONS. ACCORDINGLY, IT IS OUR VIEW THAT WHERE A RESERVE MEMBER INCURS A PHYSICAL DISABILITY WHILE IN RECEIPT OF BASIC PAY DURING A PERIOD OF ORDERED ACTIVE DUTY OF MORE THAN 30 DAYS, THEREAFTER, WHILE HE IS ENTITLED TO RECEIVE BASIC PAY UNDER ACTIVE DUTY ORDERS ISSUED IN GOOD FAITH, THE REQUIREMENTS OF SECTIONS 1201 AND 1202 WITH REGARD TO DETERMINATION OF PHYSICAL DISABILITY MAY BE MET WHETHER THE SECOND PERIOD OF ACTIVE DUTY IS FOR MORE OR LESS THAN 30 DAYS.

SINCE IT HAS BEEN DETERMINED BY PROPER AUTHORITY THAT GONZALEZ- DISEASE WAS AGGRAVATED BY HIS 2-YEAR PERIOD OF MILITARY SERVICE AND THAT HE IS UNFIT FOR MILITARY SERVICE AND THAT DETERMINATION WAS MADE WHILE HE WAS IN RECEIPT OF BASIC PAY, IT APPEARS THAT HE WAS ELIGIBLE TO HAVE HIS NAME PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202, WITH RETIRED PAY COMPUTED IN ACCORDANCE WITH LAW. IF HIS RETIREMENT ORDERS ARE AMENDED TO SUBSTITUTE SECTION 1202 FOR THE ERRONEOUS REFERENCE TO SECTION 1205, WE WOULD FIND NO REASON TO QUESTION PAYMENT OF RETIRED PAY TO HIM BEGINNING AUGUST 18, 1962. UPON ISSUANCE OF THE AMENDATORY ORDERS, THE VOUCHER, WHICH IS ENCLOSED, MAY BE PAID, IF OTHERWISE CORRECT.