B-35582, AUGUST 23, 1943, 23 COMP. GEN. 126

B-35582, AUGUST 23, 1943, 23 COMP. GEN. 126

PAY - NAVAL PERSONNEL TEMPORARILY APPOINTED TO HIGHER RANK AND SUBSEQUENTLY RETIRED FOR PHYSICAL DISABILITY INCURRED PRIOR TO PROMOTION; RECALL TO ACTIVE DUTY AN OFFICER OF THE REGULAR NAVY WHO WAS TEMPORARILY APPOINTED TO A HIGHER RANK UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AND SUBSEQUENTLY RETIRED UNDER THE PROVISIONS OF 34 U.S.C. 389 AND 417 FOR PHYSICAL DISABILITY INCIDENT TO THE SERVICE INCURRED PRIOR TO THE TEMPORARY APPOINTMENT, IS NOT ENTITLED TO RETIRED PAY BASED ON THE PAY OF HIS TEMPORARY RANK AUTHORIZED UNDER SECTION 8 (A) OF THE SAID 1941 ACT FOR OFFICERS WHO INCUR PHYSICAL DISABILITY WHILE SERVING UNDER TEMPORARY APPOINTMENTS, BUT, RATHER, UPON RETIREMENT REVERTS TO HIS PERMANENT GRADE AND RANK AND IS ENTITLED TO RETIRED PAY PRESCRIBED FOR THAT RANK, AND, WHEN ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT, TO THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE AND RANK. 19 COMP. GEN. 597, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 23, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 6, 1943, WITH ENCLOSURES, REQUESTING, DECISION AS TO THE RATE OF RETIRED PAY TO WHICH LIEUTENANT TULLY T. BLALOCK, MEDICAL CORPS, U.S. NAVY, RETIRED, IS ENTITLED FOR THE PERIOD DURING WHICH HE WAS RETIRED FROM ACTIVE DUTY, AND, FURTHER, AS TO THE RATE OF PAY AND ALLOWANCES TO WHICH HE NOW IS ENTITLED WHILE SERVING ON ACTIVE DUTY.

IT APPEARS THAT ON JANUARY 11, 1940, LIEUTENANT BLALOCK ACCEPTED AN APPOINTMENT AS AN ASSISTANT SURGEON, WITH THE RANK OF LIEUTENANT (JUNIOR GRADE), IN THE NAVAL RESERVE AND REPORTED FOR ACTIVE DUTY ON JULY 1, 1940. ON OCTOBER 25, 1941, HE ACCEPTED AN APPOINTMENT--- SAME GRADE AND RANK--- IN THE REGULAR NAVY AND ON FEBRUARY 16, 1942, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, HE WAS TEMPORARILY APPOINTED A PASSED ASSISTANT SURGEON, WITH THE RANK OF LIEUTENANT. THEREAFTER, IN ACCORDANCE WITH THE FINDINGS OF A NAVAL RETIRING BOARD, HE WAS RETIRED ON JANUARY 1, 1943, BECAUSE OF PHYSICAL INCAPACITY (ULCERS OF THE DUODENUM). IT APPEARS THAT THE SAID NAVAL RETIRING BOARD MADE A SPECIFIC FINDING THAT ALTHOUGH THE OFFICER'S PHYSICAL DISABILITY WAS INCIDENT TO THE SERVICE, IT EXISTED PRIOR TO THE DATE OF HIS TEMPORARY APPOINTMENT AS LIEUTENANT REFERRED TO ABOVE.

LIEUTENANT BLALOCK'S RETIREMENT WAS UNDER THE PROVISIONS OF SECTIONS 389 AND 417, TITLE 34, U.S. CODE (SECS. 1457 AND 1453, REVISED STATUTES), WHICH PROVIDE, RESPECTIVELY, AS FOLLOWS:

SEC. 389. OFFICERS RETIRED FROM ACTIVE SERVICE SHALL BE PLACED ON THE RETIRED LIST OF OFFICERS OF THE GRADES TO WHICH THEY BELONGED, RESPECTIVELY, AT THE TIME OF THEIR RETIREMENT, AND CONTINUE TO BE BORNE ON THE NAVY REGISTER. * * *

SEC. 417. WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY.

IN CONSTRUING A SIMILAR STATUTE GOVERNING THE RETIREMENT OF OFFICERS OF THE ARMY AND OF THE MARINE CORPS (SECTION 1254, REVISED STATUTES), IT WAS HELD THAT EVEN THOUGH THE RANK OR GRADE IN WHICH THE OFFICER WAS SERVING AT THE TIME OF RETIREMENT WAS LIMITED IN DURATION SUCH OFFICER WAS ENTITLED TO BE PLACED ON THE RETIRED LIST IN THAT RANK OR GRADE, IT NOT BEING MATERIAL THAT HAD HE NOT BEEN SO RETIRED HE EVENTUALLY WOULD HAVE REVERTED BY OPERATION OF LAW TO HIS LOWER PERMANENT RANK ON THE ACTIVE LIST. SEE REMEY V. UNITED STATES, 33 C.1CLS. 218; 27 COMP. DEC. 227; AND 19 COMP. GEN. 597. NONE OF THOSE CASES INVOLVED THE RETIREMENT OF A PERMANENT OFFICER TEMPORARILY PROMOTED WHO WAS PHYSICALLY DISABLED AT THE TIME OF THE TEMPORARY PROMOTION. FURTHERMORE, THAT SUCH PRINCIPLE, EVEN IF OTHERWISE APPLICABLE, WAS NOT INTENDED TO BE APPLIED TO TEMPORARY APPOINTMENTS UNDER THE SAID ACT OF JULY 24, 1941, IS EVIDENT FROM THE FACT THAT SECTION 8 (A) OF SUCH ACT, 55 STAT. 604, SPECIFICALLY RESTRICTS RETIREMENT IN THE HIGHER RANK, FOR PHYSICAL DISABILITY, OF OFFICERS ON THE ACTIVE LIST SERVING UNDER A TEMPORARY APPOINTMENT IN THE HIGHER RANK, TO THOSE WHO INCUR PHYSICAL DISABILITY WHILE SERVING IN SUCH HIGHER RANK. THE SAID SECTION 8 (A) PROVIDES:

AN OFFICER * * * OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, * * * WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK. ( ITALICS SUPPLIED.)

THE OBVIOUS PURPORT OF SAID SECTION IS, OF COURSE, THAT ONE WHO IS RETIRED, WHILE SERVING UNDER A TEMPORARY APPOINTMENT, FOR A PHYSICAL DISABILITY INCURRED PRIOR TO SUCH SERVICE, IS NOT ENTITLED TO RETIREMENT AT SUCH HIGHER RANK OR TO RETIRED PAY BASED ON SUCH RANK.

SINCE LIEUTENANT BLALOCK'S DISABILITY WAS NOT INCURRED WHILE HE WAS SERVING UNDER A TEMPORARY APPOINTMENT BUT, IN FACT, EXISTED PRIOR TO HIS BEING SO TEMPORARILY APPOINTED, IT FOLLOWS THAT HE IS NOT ENTITLED TO THE BENEFITS CONFERRED BY THE ABOVE-QUOTED PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941.

CONSTRUING SECTION 389, TITLE 34, U.S. CODE, IN THE LIGHT OF SECTION 8 (A), SUPRA, IT MUST BE REGARDED THAT, AT THE TIME OF LIEUTENANT BLALOCK'S RETIREMENT, HIS TEMPORARY APPOINTMENT AUTOMATICALLY TERMINATED AND HE REVERTED TO HIS PERMANENT STATUS ON THE ACTIVE LIST. IN OTHER WORDS, AT THE TIME OF HIS RETIREMENT HE IS CONSIDERED TO HAVE HELD THE GRADE OF ASSISTANT SURGEON AND THE RANK OF LIEUTENANT (JUNIOR GRADE) AND TO BE ENTITLED TO RECEIVE THE RETIRED PAY, AND--- WHEN ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT--- THE ACTIVE DUTY PAY AND ALLOWANCES, PRESCRIBED FOR THAT GRADE AND RANK.