B-154915, OCTOBER 30, 1964, 44 COMP. GEN. 249

B-154915: Oct 30, 1964

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PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - TERMINATION OF STATUS A NAVY MEMBER WHOSE DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT UPON EXPIRATION OF 5 YEARS ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1210 (H) WAS ACCOMPLISHED SUBSEQUENT TO THE CANCELLATION OF THE AUTHORITY FOR HIS DISCHARGE CONTINUED TO HAVE STATUS ON THE TEMPORARY DISABILITY RETIRED LIST. IT FOLLOWS THE MEMBER IS ENTITLED TO DISABILITY RETIRED PAY ON AND AFTER TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST. REQUESTING A DECISION AS TO WHETHER IT MAY BE CONSIDERED THAT THERE WAS A MANIFEST ERROR IN REMOVING JOHN T. SINCE THE OFFICER WAS DISCHARGED FROM THE SERVICE AND THUS BECAME A CIVILIAN.

B-154915, OCTOBER 30, 1964, 44 COMP. GEN. 249

PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - TERMINATION OF STATUS A NAVY MEMBER WHOSE DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT UPON EXPIRATION OF 5 YEARS ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1210 (H) WAS ACCOMPLISHED SUBSEQUENT TO THE CANCELLATION OF THE AUTHORITY FOR HIS DISCHARGE CONTINUED TO HAVE STATUS ON THE TEMPORARY DISABILITY RETIRED LIST, NOTWITHSTANDING THE DISCONTINUANCE OF HIS RETIRED PAY FOLLOWING THE PURPORTED DISCHARGE, UNTIL TERMINATED PURSUANT TO RETROACTIVE ORDERS TRANSFERRING HIM, EFFECTIVE AT THE CLOSE OF THE 5-YEAR PERIOD FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT RETIRED LIST, AND IT FOLLOWS THE MEMBER IS ENTITLED TO DISABILITY RETIRED PAY ON AND AFTER TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, OCTOBER 30, 1964:

BY SECOND ENDORSEMENT DATED AUGUST 6, 1964, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF JULY 8, 1964, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER IT MAY BE CONSIDERED THAT THERE WAS A MANIFEST ERROR IN REMOVING JOHN T. FLAHIVE, 444 42 96, SA, USN, FROM THE TEMPORARY DISABILITY RETIRED LIST AND DISCHARGING HIM FROM THE NAVAL SERVICE ON SEPTEMBER 30, 1963. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-789 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REFER TO OUR DECISION OF NOVEMBER 1, 1960, B-143941, 40 COMP. GEN. 249, AS FOR POSSIBLE APPLICATION IN THIS CASE. IN THAT DECISION WE HELD THAT AN EXECUTED DISCHARGE BY COMPETENT AUTHORITY MAY NOT BE REVOKED AND THAT, SINCE THE OFFICER WAS DISCHARGED FROM THE SERVICE AND THUS BECAME A CIVILIAN, THERE WAS NO AUTHORITY FOR PLACING HIM ON THE TEMPORARY DISABILITY RETIRED LIST AT A LATER TIME UNDER THE PROVISIONS OF 10 U.S.C. 1202.

THE FACTS GIVEN IN YOUR LETTER AND ENCLOSURES SHOW THAT MR. FLAHIVE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 1, 1958, BASED ON A DISABILITY RATING OF 60 PERCENT. IT IS REPORTED THAT HE WAS PAID RETIRED PAY FROM THAT DATE THROUGH SEPTEMBER 30, 1963, THE EXPIRATION DATE OF HIS 5-YEAR PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST, FOR RETIRED PAY PURPOSES, UNDER THE PROVISIONS OF 10 U.S.C. 1210 (H). SINCE HE FAILED TO REPORT FOR HIS FINAL PERIODIC PHYSICAL EXAMINATION, THE PHYSICAL REVIEW COUNCIL RECOMMENDED TO THE SECRETARY OF THE NAVY THAT HE BE ADMINISTRATIVELY REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST. PURSUANT TO ACTION BY THE SECRETARY OF THE NAVY ON OCTOBER 22, 1963, THE CHIEF OF NAVAL PERSONNEL DIRECTED THE COMMANDING OFFICER, NAVAL RESERVE MANPOWER CENTER, BAINBRIDGE, MARYLAND, TO REMOVE THE SUBJECT MEMBER FROM THE DISABILITY RETIRED LIST AND EFFECT HIS DISCHARGE FROM THE NAVAL SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT, WITH THE TYPE OF DISCHARGE WARRANTED BY HIS SERVICE RECORD, EFFECTIVE SEPTEMBER 30, 1963. THIS ACTION WAS ACCOMPLISHED ON NOVEMBER 5, 1963, AT WHICH TIME HIS DISCHARGE CERTIFICATE WAS MAILED TO THE MEMBER. HOWEVER, THE SECRETARY OF THE NAVY CANCELED THE AUTHORITY FOR SUCH ACTION ON NOVEMBER 4, 1963.

THE DISCONTINUANCE OF RETIRED PAY AS OF SEPTEMBER 30, 1963, DID NOT TERMINATE MR. FLAHIVE'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST. 37 COMP. GEN. 179; 42 ID. 52, 56.

NORMALLY MILITARY STATUS IS TERMINATED UPON THE CONCURRENCE OF TWO CONDITIONS: (1) EXECUTION OF DISCHARGE CERTIFICATE OR PROMULGATION OF APPROPRIATE ORDERS OF SEPARATION; AND (2) DELIVERY OF THE INSTRUMENT PROVIDING FOR DISCHARGE WITH THE INTENTION THAT IT TAKE EFFECT ACCORDING TO ITS TERMS. SEE UNITED STATES V. NOBLE, 13 USCMA 413, 32 CMR 413. SINCE MR. FLAHIVE'S DISCHARGE WAS ACCOMPLISHED SUBSEQUENT TO CANCELLATION OF THE AUTHORITY THEREFOR, MR. FLAHIVE CONTINUED TO HAVE THE STATUS OF A MEMBER OF THE NAVY ON THE TEMPORARY DISABILITY RETIRED LIST UNTIL THAT STATUS WAS TERMINATED BY ORDERS ISSUED ON MARCH 30, 1964, TRANSFERRING HIM FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT RETIRED LIST, EFFECTIVE AS OF OCTOBER 1, 1963, IN ACCORDANCE WITH THE SECRETARY'S DETERMINATION. THEREFORE, IT IS OUR VIEW THAT 40 COMP. GEN. 249 IS NOT APPLICABLE IN THIS CASE AND THAT MR. FLAHIVE'S TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST, EFFECTIVE OCTOBER 1, 1963, IS VALID. IT FOLLOWS THAT HE IS ENTITLED TO DISABILITY RETIRED PAY ON AND AFTER OCTOBER 1, 1963, BASED ON THE DISABILITY RATING OF 60 PERCENT PRESCRIBED IN HIS CASE IN CONFORMITY WITH THE PROVISIONS OF 10 U.S.C. 1210 (B) AND (C). SEE, IN CONNECTION 43 COMP. GEN. 731, B-153988, MAY 13, 1964, AND 39 ID. 766. COMPARE 40 ID. 419, AND 42 ID. 52, 56.