B-160802, APR. 3, 1967

B-160802: Apr 3, 1967

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SUBSTANTIALLY FOR THE REASON THAT NEITHER YOUR RETIREMENT ORDERS NOR THE APPLICABLE REGULATIONS GOVERNING YOUR PLACEMENT ON THE RETIRED LIST WERE PROPERLY COMPLIED WITH. THE ORDERS WHICH WERE ADDRESSED TO YOU AND FORWARDED VIA (1) COMMANDER. WERE RECEIVED BY YOU ON FEBRUARY 28. IT IS REPORTED THAT YOU DEPARTED VIETNAM ON MAY 14. IT IS FURTHER REPORTED THAT AFTER ARRIVING AT THAT STATION " "ANDERSON WAS CONTINUED ON ACTIVE DUTY. UNTIL 13 JULY 1966 DUE TO DETERMINATION OF HIS PHYSICAL STATUS ON RETIREMENT AND THE CONFLICT OF ORDERS FROM COGARDRON ONE ENTITLING HIM TO LEAVE TO EXPIRE BEYOND HIS EFFECTIVE RETIREMENT DAY OF 1 JUNE 1966.'" IT IS INDICATED THAT YOU REMAINED IN THIS STATUS UNTIL JULY 13.

B-160802, APR. 3, 1967

TO MR. RONALD R. ANDERSON, BMCS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1967, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JANUARY 6, 1967, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND RETIRED PAY FOR THE PERIOD JUNE 1 TO JULY 13, 1966, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE U.S. COAST GUARD.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SUBSTANTIALLY FOR THE REASON THAT NEITHER YOUR RETIREMENT ORDERS NOR THE APPLICABLE REGULATIONS GOVERNING YOUR PLACEMENT ON THE RETIRED LIST WERE PROPERLY COMPLIED WITH.

THE RECORD SHOWS THAT BY ORDERS DATED FEBRUARY 14, 1966, THE COMMANDANT OF THE COAST GUARD APPROVED YOUR APPLICATION FOR RETIREMENT PURSUANT TO 14 U.S.C. 355--- VOLUNTARY RETIREMENT FOR ENLISTED MEN OF THE COAST GUARD AFTER 20 YEARS' SERVICE--- EFFECTIVE JUNE 1, 1966. THOSE ORDERS PROVIDE, AMONG OTHER THINGS, THAT "YOU SHALL BE PHYSICALLY EXAMINED FOR RETIREMENT AS SOON AS PRACTICABLE, BUT NOT LATER THAN 7 MARCH 1966.' THE ORDERS WHICH WERE ADDRESSED TO YOU AND FORWARDED VIA (1) COMMANDER, WESTERN AREA, AND (2) COMMANDER, COAST GUARD SQUADRON ONE, DIVISION ELEVEN, WERE RECEIVED BY YOU ON FEBRUARY 28, 1966, AT AN THOI, ISLE OF PHU QUOC, REPUBLIC OF VIETNAM, AS SHOWN BY FOURTH ENDORSEMENT THEREON.

THE RECORD FURTHER SHOWS THAT ON MAY 12, 1966, THE COMMANDER, COAST GUARD DIVISION ELEVEN AT AN THOI, ISLE OF PHU QUOC, REPUBLIC OF VIETNAM, ISSUED PERMANENT CHANGE OF STATION ORDERS DETACHING YOU FROM YOUR DUTY STATION IN VIETNAM AND DIRECTING YOU TO REPORT TO THE COMMANDER, ELEVENTH COAST GUARD DISTRICT, LONG BEACH, CALIFORNIA,"PENDING RETIREMENT.' THOSE ORDERS AUTHORIZED, AMONG OTHER THINGS, TRAVEL TIME PLUS 30 DAYS' DELAY EN ROUTE CHARGEABLE AS LEAVE TO COMMENCE THE DAY AFTER ARRIVAL IN THE CONTINENTAL UNITED STATES. IT IS REPORTED THAT YOU DEPARTED VIETNAM ON MAY 14, 1966, AND ARRIVED IN THE UNITED STATES (TRAVIS AIR FORCE BASE, CALIFORNIA) ON THE SAME DAY. SECOND ENDORSEMENT ON THOSE ORDERS SHOWS THAT YOU REPORTED TO THE COMMANDER, ELEVENTH COAST GUARD DISTRICT, ON JUNE 10, 1966, FOR DUTY IN COMPLIANCE WITH BASIC ORDERS.

IT IS FURTHER REPORTED THAT AFTER ARRIVING AT THAT STATION " "ANDERSON WAS CONTINUED ON ACTIVE DUTY, IN PERFORMING DUTIES, UNTIL 13 JULY 1966 DUE TO DETERMINATION OF HIS PHYSICAL STATUS ON RETIREMENT AND THE CONFLICT OF ORDERS FROM COGARDRON ONE ENTITLING HIM TO LEAVE TO EXPIRE BEYOND HIS EFFECTIVE RETIREMENT DAY OF 1 JUNE 1966.'" IT IS INDICATED THAT YOU REMAINED IN THIS STATUS UNTIL JULY 13, 1966, WHEN YOU WERE RELIEVED "OF DUTIES" AND PLACED ON THE RETIRED LIST EFFECTIVE JUNE 1, 1966.

THE RECORD ALSO SHOWS THAT SUBSEQUENT TO THE EFFECTIVE DATE OF YOUR RETIREMENT (JUNE 1, 1966), AND PRIOR TO YOUR PURPORTED RELEASE FROM ACTIVE DUTY ON JULY 13, 1966, THE COMMANDER, ELEVENTH COAST GUARD DISTRICT, REQUESTED AUTHORITY OF THE COMMANDANT, COAST GUARD, TO ADVANCE YOUR RETIREMENT DATE TO JULY 1, 1966. THE REQUEST WAS DENIED BECAUSE YOUR RETIREMENT ORDERS COULD NOT BE CANCELLED AFTER THE EFFECTIVE DATE OF RETIREMENT, CITING 37 COMP. GEN. 19; BUT THE COMMANDANT SUGGESTED THAT YOU SUBMIT A CLAIM FOR ACTIVE DUTY PAY COMMENCING JUNE 1, 1966, CITING 35 COMP. GEN. 225. THE COMMANDER, ELEVENTH COAST GUARD DISTRICT, THEN ADVISED THE COMMANDANT, COAST GUARD, AMONG OTHER THINGS, THAT MEDICAL TREATMENT CONTINUED FOR LEUKOCYTOSIS IN YOUR CASE AND THAT A BONE MARROW BIOPSY WAS SCHEDULED FOR THE WEEK OF JULY 4, 1966.

IN TRANSMITTING YOUR CLAIM HERE, IT WAS ADMINISTRATIVELY REPORTED THAT THE RECORD DOES NOT SHOW WHY YOU WERE RETAINED AT YOUR OVERSEAS STATION BUT PRESUMABLY YOUR COMMANDER TOOK SUCH ACTION BECAUSE OF MILITARY NECESSITY (PERHAPS WAITING FOR APPEARANCE ON STATION OF A HIGHLY SPECIALIZED REPLACEMENT). IT IS ALSO REPORTED THAT YOUR OVERSEAS COMMANDER ASSUMED THAT YOUR RETIREMENT DATE WOULD AUTOMATICALLY BE ADVANCED AND THAT NO ADVICE WAS GIVEN TO YOU AS TO THE URGENCY OF REPORTING AT THE ELEVENTH COAST GUARD DISTRICT IMMEDIATELY AFTER YOUR ARRIVAL IN THE UNITED STATES.

IN CONNECTION WITH YOUR PHYSICAL EXAMINATION FOR RETIREMENT, YOU STATE THAT AT THE PHU QUOC AREA OF VIETNAM THERE WERE NO MEDICAL FACILITIES FOR A COMPLETE PHYSICAL. YOU FURTHER STATE, IN SUBSTANCE, THAT YOUR OFFICIAL DATE FOR ROTATION FROM VIETNAM WAS APRIL 24, 1966, BUT THAT DATE WAS DELAYED DUE TO ADMINISTRATIVE ERROR; THAT UPON YOUR ARRIVAL IN THE UNITED STATES ON MAY 14, 1966,"I HAD ORDERS, CUT AND APPROVED FOR LEAVE," AND THAT YOU REPORTED TO YOUR DUTY STATION (ELEVENTH COAST GUARD DISTRICT, LONG BEACH, CALIFORNIA) ON JUNE 10, 1966, AND WORKED IN THE RESCUE COORDINATION CENTER UNTIL JULY 13, 1966. YOU INDICATE THAT DURING THIS PERIOD YOU WERE GIVEN A PHYSICAL EXAMINATION BY THE U.S. PUBLIC HEALTH SERVICE INCIDENT TO YOUR RETIREMENT AND YOU QUESTION CERTAIN MEDICAL FINDINGS. YOU ALSO STATE THAT DURING THIS PERIOD YOU WERE NOT HOSPITALIZED AT ANY TIME FOR EXAMINATION OR TREATMENT. YOU STATE THAT THERE WAS NOTHING TO PREVENT YOU FROM TAKING A PHYSICAL EXAMINATION UPON ARRIVAL IN THE UNITED STATES OTHER THAN COMPLETE PHYSICAL EXHAUSTION AND THE FACT THAT YOU THEN ENTERED INTO A LEAVE STATUS.

REGULATIONS GOVERNING SEPARATIONS FROM THE SERVICE OF ENLISTED MEN OF THE COAST GUARD ARE CONTAINED IN CHAPTER 12, U.S. COAST GUARD PERSONNEL MANUAL. PARAGRAPH 12-C-5 (B) OF THOSE REGULATIONS PROVIDES THAT ENLISTED PERSONNEL SHALL TAKE A COMPLETE PHYSICAL EXAMINATION AS SOON AFTER RECEIPT OF RETIREMENT ORDERS AS POSSIBLE. SUBPARAGRAPH (C) PROVIDES THAT DEFECTS FOUND MAY, IF POSSIBLE, BE CORRECTED PRIOR TO RETIREMENT. SUBPARAGRAPH (E) PROVIDES THAT IF THE BOARD OF MEDICAL SURVEY DETERMINES THAT AN INDIVIDUAL IS UNFIT FOR DUTY, THE MAN SHALL MAKE AN ELECTION, IN WRITING, AS TO WHETHER HE DESIRES TO BE PROCESSED FOR PHYSICAL DISABILITY RETIREMENT OR TO COMPLY WITH HIS SERVICE RETIREMENT ORDERS. THIS ELECTION IS REQUIRED TO BE MADE AS SOON AS POSSIBLE AND FORWARDED TO THE COMMANDANT IN ORDER THAT SERVICE RETIREMENT REQUESTS OR ORDERS MAY BE CANCELLED IF SUCH IS INDICATED.

IT LONG HAS BEEN RECOGNIZED THAT A NONDISABILITY RETIREMENT ORDER (BASED ON YEARS OF SERVICE) WHICH HAS BECOME EFFECTIVE MAY NOT BE REVOKED OR MODIFIED. SEE 37 COMP. GEN. 19 (CITED ABOVE) AS MODIFIED BY 40 COMP. GEN. 419, 423 (MAJOR FOWLER'S CASE).

UNDER YOUR RETIREMENT ORDERS OF FEBRUARY 14, 1966, YOU WERE REQUIRED TO TAKE A PHYSICAL EXAMINATION NOT LATER THAN MARCH 7, 1966. WHILE, AS YOU SAY, THE MEDICAL FACILITIES IN THE AREA OF YOUR DUTY STATION IN VIETNAM MAY NOT HAVE BEEN SUFFICIENT FOR A COMPLETE PHYSICAL EXAMINATION, AND WHILE YOU MAY HAVE BEEN RETAINED AT YOUR OVERSEAS STATION UNTIL THE ISSUANCE OF YOUR TRANSFER ORDERS OF MAY 12, 1966, YOU WERE FULLY AWARE THAT UPON ARRIVAL IN THE UNITED STATES ON MAY 14, 1966, YOUR RETIREMENT DATE UNDER YOUR BASIC ORDERS WAS FIXED AS OF JUNE 1, 1966. ALSO, WHILE IT IS NOT CLEAR WHY YOUR TRANSFER ORDERS OF MAY 12, 1966--- WHICH RECOGNIZED THAT YOU WERE BEING TRANSFERRED FOR THE PURPOSE OF BEING PROCESSED AND SEPARATED FROM THE SERVICE--- AUTHORIZED 30 DAYS' LEAVE EN ROUTE, THOSE ORDERS DID NOT HAVE THE EFFECT OF REVOKING OR MODIFYING THE JUNE 1, 1966, EFFECTIVE DATE STATED IN YOUR BASIC RETIREMENT ORDERS OF FEBRUARY 14, 1966.

IT APPEARS FROM YOUR STATEMENTS THAT THE AUTHORIZED DELAY EN ROUTE TO THE ELEVENTH COAST GUARD DISTRICT AT LONG BEACH WAS FOR YOUR PERSONAL CONVENIENCE. HAD YOU PROCEEDED DIRECTLY TO LONG BEACH UPON YOUR ARRIVAL IN THE UNITED STATES ON MAY 14, 1966, PRESUMABLY APPROPRIATE ADMINISTRATIVE ACTION WOULD HAVE BEEN TAKEN PRIOR TO JUNE 1, 1966, TO REVOKE OR MODIFY YOUR ORDERS TO ADVANCE THE DATE OF YOUR RETIREMENT SHOULD YOUR PHYSICAL EXAMINATION REQUIRE ADDITIONAL TIME.

UNLIKE THE CASE CONSIDERED IN 35 COMP. GEN. 225, CITED ABOVE, WHICH FOLLOWED THE COURT OF CLAIMS DECISION IN CRIST V. UNITED STATES, 124 CT.CL. 825 (DECIDED DECEMBER 2, 1952), YOUR RETIREMENT ORDERS WERE DELIVERED TO YOU LONG BEFORE THEIR EFFECTIVE DATE AND, HENCE, THAT CASE AFFORDS NO BASIS FOR AUTHORIZING ACTIVE DUTY PAY AND ALLOWANCES IN YOUR CASE FOR THE PERIOD JUNE 1 TO JULY 13, 1966.

IN VIEW OF THE FOREGOING, AND SINCE YOUR PHYSICAL EXAMINATION FOR RETIREMENT PURPOSES WAS NOT IN ACCORDANCE WITH YOUR RETIREMENT ORDERS AND THE APPLICABLE COAST GUARD REGULATIONS, WE MUST CONCLUDE THAT IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF YOUR MILITARY RECORDS BY THE COAST GUARD BOARD FOR CORRECTION OF MILITARY RECORDS TO SHOW THAT YOU WERE NOT RETIRED ON JUNE 1, 1966, BUT WERE RETAINED IN AN ACTIVE DUTY STATUS FOR THE PERIOD JUNE 1 TO JULY 13, 1966, THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM. COMPARE B-160365, B-160609, FEBRUARY 23, 1967, 46 COMP. ..END