B-173849, SEP 17, 1971, 51 COMP GEN 178

B-173849, SEP 17, 1971, 51 COMP GEN 178

PAY - RETIRED - DISABILITY - RECOMPUTATION OF RETIRED PAY - "HIGHEST PERCENTAGE OF DISABILITY" A MEMBER OF THE UNIFORMED SERVICES WHO WHEN RETIRED FOR LENGTH OF SERVICE WAS FOUND TO BE PHYSICALLY FIT FOR MILITARY DUTY DESPITE RESIDUAL MUSCLE DAMAGE FROM WAR WOUNDS AND WHO SUFFERED A MYOCARDIAL INFARCTION WHEN HE VOLUNTARILY RETURNED TO ACTIVE DUTY IS ENTITLED TO COMBINE THE PERCENTAGES OF BOTH DISABILITIES IN THE RECOMPUTATION OF HIS RETIRED PAY UNDER 10 U.S.C. 1402(B), EVEN THOUGH THE SECTION ONLY PROVIDES FOR THE MEMBER'S RETURN TO HIS EARLIER RETIRED STATUS, FOR PURSUANT TO SECTION 1402(D), HIS DISABILITY RETIRED PAY MUST BE BASED UPON THE HIGHEST PERCENTAGE OF DISABILITY ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT AND, THEREFORE, THE MEMBER'S DISABILITY FROM WAR WOUNDS CONTINUING TO EXIST UPON HIS RETURN TO RETIRED STATUS IS FOR INCLUSION IN THE "HIGHEST PERCENTAGE" DETERMINATION, NOTWITHSTANDING THE WOUNDS DID NOT RENDER HIM UNFIT FOR ACTIVE MILITARY SERVICE.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 17, 1971:

FURTHER REFERENCE IS MADE TO LETTER DATED AUGUST 11, 1971, FROM THE ASSISTANT SECRETARY OF THE ARMY (FM), REQUESTING A DECISION WHETHER, IN THE RECOMPUTATION OF THE RETIRED PAY OF A MEMBER OF THE UNIFORMED SERVICES PURSUANT TO 10 U.S.C. 1402(B), THE PERCENTAGE OF DISABILITY INCURRED ON ACTIVE DUTY AFTER RETIREMENT MAY BE COMBINED WITH THE PERCENTAGE OF DISABILITY FOUND TO EXIST AT THE TIME OF RETIREMENT. THE REQUEST HAS BEEN ASSIGNED SUBMISSION SS-A-1131 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE MEMBER TO WHOM THE SUBMISSION REFERS WAS RETIRED FOR LENGTH OF SERVICE ON JANUARY 1, 1965. AT THAT TIME HE WAS FOUND TO BE PHYSICALLY FIT FOR MILITARY SERVICE DESPITE RESIDUAL MUSCLE DAMAGE RESULTING FROM WOUNDS INCURED IN KOREA. ALTHOUGH THOSE WOUNDS WERE RATABLE IN ACCORDANCE WITH THE VETERANS ADMINISTRATION SCHEDULE FOR RATING DISABILITIES, THEY WERE NOT RATED AS CAUSING HIM TO BE DISABLED FOR ACTIVE SERVICE. ACCORDINGLY, HE WAS RETIRED NOT BY REASON OF PHYSICAL DISABILITY.

ON JANUARY 1, 1968, THE MEMBER VOLUNTARILY RETURNED TO ACTIVE DUTY. JULY 11, 1970, HE SUFFERED A MYOCARDIAL INFARCTION FROM WHICH HE IS STILL RECUPERATING AND HIS CASE IS BEFORE THE UNITED STATES ARMY DISABILITY SYSTEM FOR RELEASE FROM ACTIVE SERVICE AND RETURN TO THE RETIRED LIST.

THE MYOCARDIAL INFARCTION IS RATABLE AT 60 PERCENT AND THE RATINGS ATTRIBUTABLE TO THE RESIDUALS OF HIS WAR WOUNDS, IF COMBINED WITH RATINGS FOR HIS PRESENT UNFITTING CONDITION, WOULD RESULT IN A COMBINED RATING OF 70 PERCENT. HENCE, DOUBT HAS BEEN RAISED AS TO THE PROPER APPLICATION OF 10 U.S.C. 1402(D) IN THE RECOMPUTATION OF THE MEMBER'S RETIRED PAY WHEN HE REVERTS TO AN INACTIVE STATUS ON THE RETIRED LIST.

SUBSECTION (B) OF SECTION 1402, TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

(B) A MEMBER OF AN ARMED FORCE WHO HAS BEEN RETIRED OTHER THAN FOR PHYSICAL DISABILITY, AND WHO WHILE ON ACTIVE DUTY INCURS A PHYSICAL DISABILITY OF AT LEAST 30 PERCENT FOR WHICH HE WOULD OTHERWISE BE ELIGIBLE FOR RETIRED PAY UNDER CHAPTER 61 OF THIS TITLE, IS ENTITLED, UPON HIS RELEASE FROM ACTIVE DUTY, TO RETIRED PAY UNDER SUBSECTION (D).

HAVING INCURRED A DISABILITY OF MORE THAN 30 PERCENT WHILE ON ACTIVE DUTY AFTER RETIREMENT, THE MEMBER, UNDER THE PROVISIONS OF SUBSECTION (D) OF SECTION 1402, MAY, UPON HIS RETURN TO THE RETIRED LIST, ELECT TO RECEIVE EITHER (1) THE RETIRED PAY TO WHICH HE BECAME ENTITLED WHEN HE RETIRED PLUS APPLICABLE ADJUSTMENTS UNDER 10 U.S.C. 1401A, OR (2) RETIRED PAY COMPUTED BY TAKING THE HIGHEST MONTHLY BASIC PAY THAT HE RECEIVED WHILE ON ACTIVE DUTY AFTER RETIREMENT AND MULTIPLYING, AS HE ELECTS, BY 2 1/2 PERCENT OF YEARS OF SERVICE CREDITED UNDER 10 U.S.C. 1208, OR BY "THE HIGHEST PERCENTAGE OF DISABILITY ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT."

SUBSECTION 1402(B) DOES NOT PROVIDE FOR PHYSICAL DISABILITY RETIREMENT, BUT ONLY FOR RETURN TO AN EARLIER RETIRED STATUS WITH RECEIPT OF DISABILITY RETIREMENT PAY IF THE CONDITIONS OF THAT SECTION ARE MET. THIS IS TRUE BECAUSE THE MEMBER RETAINS HIS RETIRED STATUS WHILE ON ACTIVE DUTY AND BECAUSE CLAUSE (1) OF 10 U.S.C. 1042(D) PERMITS THE MEMBER TO ELECT TO RECEIVE THE RETIRED PAY TO WHICH HE BECAME ENTITLED WHEN HE FIRST RETIRED. FURTHERMORE, THE MEMBER, HAVING ALREADY BEEN RETIRED, MAY NOT BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST. THUS, THE RECOMPUTATION IN HIS CASE UNDER THE DISABILITY RETIRED PAY FORMULA MUST BE BASED UPON THE HIGHEST PERCENTAGE OF PERMANENT DISABILITY HE ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT.

ALTHOUGH THE MEMBER'S DISABILITY FROM HIS WAR WOUNDS DID NOT RENDER HIM UNFIT TO BE RETAINED IN THE MILITARY SERVICE AND HE WAS RETIRED FOR LENGTH OF SERVICE, IT SEEMS CLEAR THAT THE RESIDUAL MUSCLE DAMAGE WHICH WAS INCURRED WHILE ON ACTIVE DUTY WAS PERMANENT IN NATURE. WHILE HIS REVERSION TO AN INACTIVE STATUS ON THE RETIRED LIST MAY NOT BE CONSTRUED AS A "RETIREMENT," HE IS ENTITLED TO ELECT DISABILITY RETIREMENT PAY COMPUTED ON THE HIGHEST PERCENTAGE OF DISABILITY ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT. THAT IS TO SAY, HE IS ENTITLED TO THE RATABLE PERCENTAGE OF DISABILITY DETERMINED TO EXIST AT THE TIME OF HIS REVERSION TO THE RETIRED LIST IN THE SAME MANNER AS IF HE WERE RETIRING FOR DISABILITY UNDER CHAPTER 61, TITLE 10, U.S. CODE, WHICH WOULD INCLUDE ALL PERMANENT DISABILITY THEN PRESENT WHICH WAS INCURRED WHILE ON ACTIVE DUTY.

ACCORDINGLY, SINCE THE DISABILITY RESULTING FROM THE MEMBER'S WAR WOUNDS CONTINUED TO EXIST UPON HIS RETURN TO RETIRED STATUS, THAT DISABILITY SHOULD BE INCLUDED IN THE COMPUTATION OF THE HIGHEST PERCENTAGE OF DISABILITY WHICH HE ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT EVEN THOUGH, WHEN CONSIDERED ALONE, THE DISABILITY RESULTING FROM HIS WAR WOUNDS WAS NOT DETERMINED TO BE SUCH AS TO RENDER HIM UNFIT FOR ACTIVE MILITARY SERVICE.