B-168817, FEB. 26, 1970

B-168817: Feb 26, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

APPEARED AT THE NEXT SCHEDULED EXAMINATION IS NOT REQUIRED TO HAVE RETIRED PAY PERMANENTLY TERMINATED. HOWEVER HE MAY NOT RECEIVE RETROACTIVE RETIRED PAY FOR THE PERIOD WHEN NO PHYSICAL EXAMINATION WAS MADE. C. ALCOCK: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE OF THE AIR FORCE. YOU STATE THAT AIRMAN COVERT WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 13. WITH AN INDICATED COMPENSABLE PERCENTAGE OF PHYSICAL DISABILITY OF 100 PERCENT AND THAT HIS RETIRED PAY ACCOUNT WAS ESTABLISHED OCTOBER 14. HIS DISABILITY RETIRED PAY WAS TERMINATED ON FEBRUARY 28.

B-168817, FEB. 26, 1970

MILITARY--DISABILITY RETIRED PAY--FAILURE TO REPORT FOR PHYSICAL EXAMINATION DECISION TO CHIEF, AIR FORCE ACCOUNTING AND FINANCE OFFICER CONCERNING PROPRIETY OF RETROACTIVE DISABILITY RETIRED PAY WHEN MEMBER FAILS TO REPORT FOR PERIODIC PHYSICAL EXAMINATION. A RETIRED MILITARY MEMBER WHO, AFTER FAILING TO APPEAR FOR ONE REGULAR PHYSICAL EXAMINATION OR TO OFFER SATISFACTORY EXPLANATION FOR SUCH FAILURE, APPEARED AT THE NEXT SCHEDULED EXAMINATION IS NOT REQUIRED TO HAVE RETIRED PAY PERMANENTLY TERMINATED. HOWEVER HE MAY NOT RECEIVE RETROACTIVE RETIRED PAY FOR THE PERIOD WHEN NO PHYSICAL EXAMINATION WAS MADE. RETIRED PAY MAY BE RESUMED AFTER THE DATE OF THE PHYSICAL EXAMINATION.

TO MAJOR N. C. ALCOCK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11, 1969 (FILE REFERENCE ALRA-1) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $3,186.66 IN FAVOR OF A3C DAVID M. COVERT, SSAN XXX-XX-XXXX, REPRESENTING RETIRED PAY FOR THE PERIOD JUNE 4, 1967, THROUGH OCTOBER 31, 1969, PAYMENTS TO THE MEMBER HAVING BEEN DISCONTINUED UNDER AUTHORITY OF SECTION 1210 (A) OF TITLE 10, U.S.C. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE OF THE AIR FORCE, DATED JANUARY 16, 1970, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF- 1066 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT AIRMAN COVERT WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 13, 1965, UNDER THE PROVISIONS OF 10 U.S.C. 1202, WITH AN INDICATED COMPENSABLE PERCENTAGE OF PHYSICAL DISABILITY OF 100 PERCENT AND THAT HIS RETIRED PAY ACCOUNT WAS ESTABLISHED OCTOBER 14, 1965. HIS DISABILITY RETIRED PAY WAS TERMINATED ON FEBRUARY 28, 1967, AT THE REQUEST OF USAF MILITARY PERSONNEL CENTER (AFPMARA3), RANDOLPH AIR FORCE BASE, IN ACCORDANCE WITH SECTION 1210 (A), TITLE 10, U.S. CODE, BECAUSE HE FAILED TO APPEAR FOR HIS REGULARILY SCHEDULED EXAMINATION ON JANUARY 31, 1967. ON JUNE 4, 1968, HOWEVER, HE DID APPEAR AND SUBMITTED TO THE NEXT SCHEDULED EXAMINATION, BUT SINCE JUST CAUSE WAS NOT PROVEN FOR HIS FAILURE TO REPORT FOR THE JANUARY 31, 1967, PHYSICAL EXAMINATION, HE WAS DENIED RETIRED PAY FOR THE RETROACTIVE PERIOD AS WELL AS REINSTATEMENT OF HIS DISABILITY RETIRED PAY EFFECTIVE JUNE 4, 1968.

IT IS STATED THAT JUST CAUSE FOR THE MEMBER'S FAILURE TO REPORT FOR PHYSICAL EXAMINATION MUST BE PROVEN IF RETROACTIVE PAY IS TO BE PAID TO HIM, BUT UNCERTAINTY IS EXPRESSED AS TO HIS ENTITLEMENT TO REINSTATEMENT OF HIS DISABILITY RETIREMENT PAY (NON-RETROACTIVE) WHEN HE APPEARED FOR HIS NEXT SCHEDULED EXAMINATION FOLLOWING THE ONE AT WHICH HE FAILED TO APPEAR. YOU THEREFORE ASK WHETHER HE IS ENTITLED TO RECEIVE RETROACTIVE DISABILITY RETIRED PAY FOR THE PERIOD BEGINNING JUNE 4, 1967. IF NOT, THE QUESTION IS ALSO ASKED WHETHER RETIRED PAY PAYMENTS MAY BE RESUMED EFFECTIVE JUNE 4, 1968, THE DATE HE APPEARED FOR PHYSICAL EXAMINATION.

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

"(A) A PHYSICAL EXAMINATION SHALL BE GIVEN AT LEAST ONCE EVERY 18 MONTHS TO EACH MEMBER OF THE ARMED FORCES 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. HE MAY BE REQUIRED TO SUBMIT TO THOSE EXAMINATIONS WHILE HIS NAME IS CARRIED ON THAT LIST. 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 ONE YEAR."

REGULATIONS PROMULGATED PURSUANT TO 10 U.S.C. 1216, RELATING TO THE EXAMINATION OF MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST DURING THE PERIOD HERE INVOLVED ARE CONTAINED IN CHAPTER 7 OF AIR FORCE MANUAL 35-4, "PHYSICAL EVALUATION FOR RETENTION, RETIREMENT AND SEPARATION," 1965 ED. PARAGRAPH 7102, PROVIDED IN PERTINENT PART:

"A. THE DISABILITY RETIRED PAY OF A MEMBER WHOSE NAME IS CARRIED ON THE TDRL WILL BE TERMINATED WHEN HE IS SCHEDULED TO REPORT FOR A PERIODIC EXAMINATION UNDER PARA 7101 AND, AFTER RECEIPT OF PROPER NOTIFICATION, FAILS TO REPORT FOR EXAMINATION. IF HE LATER REPORTS, HIS ELIGIBILITY TO RECEIVE RETIRED PAY WILL BE RESUMED RETROACTIVE TO THE DATE HE ACTUALLY UNDERGOES THE EXAMINATION. IF JUST CAUSE FOR FAILURE TO REPORT ON TIME AND AS REQUIRED IS SHOWN SUBSEQUENT TO THE TIME OF SUCH LATE REPORTING, HIS ELIGIBILITY TO RECEIVE RETIRED PAY WILL BE MADE RETROACTIVE, BUT NOT TO EXCEED ONE YEAR."

IT IS BELIEVED THAT, VIEWED AS A WHOLE, THE PROVISIONS OF LAW CONTAINED IN SECTION 1210 DO NOT CONTEMPLATE THE PERMANENT TERMINATION OF RETIRED PAY IF A MEMBER, WHO DOES NOT REPORT FOR ONE PERIODIC PHYSICAL EXAMINATION, THEREAFTER FAILS TO FURNISH A SATISFACTORY EXPLANATION OF HIS FAILURE TO SO REPORT. IT IS OUR VIEW THAT THE ABOVE-QUOTED REGULATIONS PROPERLY PROVIDE FOR RESUMPTION OF RETIRED PAY IF SUCH MEMBER LATER REPORTS FOR THAT EXAMINATION OR A SUBSEQUENT PERIODIC EXAMINATION.

SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED IN THIS CASE THAT JUST CAUSE FOR AIRMAN COVERT'S FAILURE TO REPORT FOR HIS JANUARY 31, 1967, PHYSICAL EXAMINATION WAS NOT ESTABLISHED, PAYMENT OF DISABILITY RETIRED PAY FOR THE RETROACTIVE PERIOD, JUNE 4, 1967, THROUGH JUNE 3, 1968, WOULD NOT BE PROPER. HOWEVER, SINCE HE APPEARED FOR A SCHEDULED PHYSICAL EXAMINATION ON JUNE 4, 1968, WHICH EXAMINATION PRESUMABLY EVIDENCED A CONTINUATION OF HIS DISABILITY TO THE EXTENT WHICH WOULD PERMIT HIS RETENTION ON THE TEMPORARY DISABILITY RETIRED LIST, RESUMPTION OF DISABILITY RETIRED PAY, EFFECTIVE AS OF THAT DATE, APPEARS TO BE PROPER.

ACCORDINGLY, THE VOUCHER IS RETURNED HEREWITH AND IF IT IS AMENDED TO COVER THE RETIRED PAY CREDITABLE TO THE MEMBER FOR THE PERIOD JUNE 4, 1968, THROUGH OCTOBER 31, 1969, PAYMENT IS AUTHORIZED THEREON, IF OTHERWISE CORRECT.