B-39363, MARCH 20, 1944, 23 COMP. GEN. 700

B-39363: Mar 20, 1944

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SO AS TO CONFER THE RIGHT TO RETIREMENT PAY BENEFITS RETROACTIVELY TO OFFICERS THE NAVAL RESERVE AND MARINE CORPS RESERVE WHO WERE DISABLED IN SERVICE ON AND AFTER SEPTEMBER 8. THE FACT THAT A NAVAL RESERVE OFFICER WAS INADVERTENTLY DISCHARGED. SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD. HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS. THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23. ENSIGN COLLIER WAS ADMITTED TO THE UNITED STATES NAVAL HOSPITAL.

B-39363, MARCH 20, 1944, 23 COMP. GEN. 700

PAY - RETIRED - NAVAL RESERVE OFFICERS - DISCHARGES AS AFFECTING RETIREMENT PAY RIGHTS IN VIEW OF THE ACT OF OCTOBER 10, 1942, AMENDING SECTION 4 OF THE ACT OF AUGUST 27, 1940, SO AS TO CONFER THE RIGHT TO RETIREMENT PAY BENEFITS RETROACTIVELY TO OFFICERS THE NAVAL RESERVE AND MARINE CORPS RESERVE WHO WERE DISABLED IN SERVICE ON AND AFTER SEPTEMBER 8, 1939, THE FACT THAT A NAVAL RESERVE OFFICER WAS INADVERTENTLY DISCHARGED, INSTEAD OF BEING PLACED ON THE RETIRED LIST, FOR PHYSICAL DISABILITY INCURRED BETWEEN SEPTEMBER 8, 1939 AND AUGUST 26, 1940, WHILE ON ACTIVE DUTY, DOES NOT OPERATE TO DEFEAT THE OFFICER'S RIGHT TO THE RETIREMENT PAY BENEFITS AUTHORIZED BY THE 1940 ACT, IF OTHERWISE ENTITLED THERETO.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 20, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 4, 1944, FILE JAG:K:WG:ES 100-1COLLIER, CHARLES IN./L6-4/21), RELATIVE TO THE RIGHT OF ENSIGN CHARLES NILES COLLIER, USNR, RETIRED, TO RETIREMENT PAY AS PROVIDED BY SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, AS AMENDED BY THE ACT OF OCTOBER 10, 1942, 56 STAT. 780.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, APPROVED AUGUST 27, 1940, PROVIDES:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181) OR RETIRED PAY UNDER THE PROVISION OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.

THE ACT OF OCTOBER 10, 1942, SUPRA, AMENDED THAT SECTION BY ADDING THE FOLLOWING PROVISO:

PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM SEPTEMBER 8, 1939.

YOU STATE THAT ON AUGUST 25, 1940, WHILE SERVING ON BOARD THE U.S.S. YORKTOWN ( TORPEDO SQUADRON 5), APPARENTLY ON EXTENDED ACTIVE DUTY, ENSIGN COLLIER WAS ADMITTED TO THE UNITED STATES NAVAL HOSPITAL, PEARL HARBOR, T.H., WITH THE DIAGNOSIS " TUBERCULOSIS, PULMONARY, CHRONIC, ACTIVE" AND THAT ON SEPTEMBER 18, 1940, HE WAS TRANSFERRED TO THE UNITED STATES NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, FOR TREATMENT. SUBSEQUENTLY, ON SEPTEMBER 23, 1940, A BOARD OF MEDICAL SURVEY CONFIRMED THE ORIGINAL DIAGNOSIS AND EXPRESSED THE OPINION THAT THE OFFICER HAD CONTRACTED HIS DISABILITY IN THE LINE OF DUTY AS AN INCIDENT OF THE SERVICE. APPARENTLY ENSIGN COLLIER WAS CONTINUED ON ACTIVE DUTY FOR FURTHER TREATMENT AND ON NOVEMBER 6, 1941, A NAVAL RETIRING BOARD, CONVENED BY ORDER OF THE SECRETARY OF THE NAVY, FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF THE DISEASE REFERRED TO; THAT HIS INCAPACITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF THE SERVICE; THAT HIS INCAPACITY EXITED PRIOR TO AUGUST 27, 1940, THE DATE OF ENACTMENT OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, SUPRA; AND THAT HE HAD NO OTHER DISABILITIES THAT INCAPACITATED HIM FOR THE PERFORMANCE OF THE DUTIES APPROPRIATE TO HIS RANK, WHICH DID NOT EXIST PRIOR TO AUGUST 27, 1940. IS STATED TO HAVE BEEN RELEASED FROM ACTIVE DUTY ON NOVEMBER 8, 1942.

THE RECORD OF THE PROCEEDINGS OF THE NAVAL RETIRING BOARD ARE SAID TO HAVE BEEN TRANSMITTED TO THE SECRETARY OF THE NAVY ON DECEMBER 30, 1941, AND BY HIM LAID BEFORE THE PRESIDENT WITH THE RECOMMENDATION THAT "NO ACTION BE TAKEN IN VIEW OF THE FACT THAT THIS INCAPACITY EXISTED PRIOR TO AUGUST 27, 1940," AND THAT CONSEQUENTLY ENSIGN COLLIER WAS NOT ENTITLED TO ANY BENEFITS UNDER THE SAID NAVAL AVIATION PERSONNEL ACT OF 1940, AS ORIGINALLY ENACTED.

THEREAFTER, THE AMENDATORY ACT OF OCTOBER 10, 1942, SUPRA, WAS ENACTED MAKING THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940 EFFECTIVE FROM SEPTEMBER 8, 1939, AND SINCE IT HAD BEEN DETERMINED THAT ENSIGN COLLIER'S DISABILITY HAD BEEN CONTRACTED SUBSEQUENT TO SUCH DATE, ACTION WAS INITIATED TO HAVE THE PROCEEDINGS OF THE NAVAL RETIRING BOARD IN HIS CASE SUBMITTED AGAIN TO THE PRESIDENT, THIS TIME WITH RECOMMENDATION FOR APPROVAL. HOWEVER, IN THE MEANTIME THE OFFICER'S NAME IS SAID TO HAVE BEEN PLACED INADVERTENTLY ON A LIST OF PERSONNEL TO BE DISCHARGED FROM THE SERVICE, WHICH LIST WAS SIGNED BY THE SECRETARY OF NAVY, RESULTING IN THE DISCHARGE OF ENSIGN COLLIER EFFECTIVE DECEMBER 31, 1942. SUBSEQUENTLY, THE PROCEEDINGS OF THE NAVAL RETIRING BOARD WERE AGAIN TRANSMITTED TO THE SECRETARY OF THE NAVY WHO LAID THE RECORD BEFORE THE PRESIDENT WITH THE RECOMMENDATION THAT THE FINDINGS OF THE BOARD BE APPROVED AND THAT ENSIGN COLLIER BE RETIRED FROM ACTIVE SERVICE AND BE PLACED ON THE RETIRED LIST, IN ACCORDANCE WITH SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, SUPRA. ON FEBRUARY 26, 1943, THE PRESIDENT APPROVED THE SECRETARY'S RECOMMENDATION AND THE OFFICER IS STATED TO HAVE BEEN PLACED ON THE RETIRED LIST ON MARCH 1, 1943.

UPON THE FOREGOING STATEMENT OF FACTS, YOU REQUEST DECISION AS TO WHETHER ENSIGN COLLIER IS ENTITLED TO RETIREMENT PAY EFFECTIVE MARCH 1, 1943, UNDER THE STATUTORY PROVISIONS HEREINBEFORE REFERRED TO.

THE SAID SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, EXCEPT INSOFAR AS IT WAS NECESSARY TO ADAPT IT TO THE NAVAL SERVICE, IS SIMILAR TO THE PROVISION CONTAINED IN SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, WHICH, INTER ALIA, ENTITLES OFFICERS, WARRANT OFFICERS, ETC., OF THE ARMY OF THE UNITED STATES, OTHER THAN MEMBERS OF THE REGULAR ARMY, WHO OTHERWISE COME WITHIN ITS PROVISIONS, TO THE SAME "RETIREMENT PAY" AS PROVIDED BY LAW OR REGULATION FOR MEMBERS OF THE REGULAR ARMY. IN CONSIDERING SUCH PROVISION, IT WAS STATED IN DECISION OF OCTOBER 19, 1943, 23 COMP. GEN. 284, 286, AS FOLLOWS:

* * * RETIRED PAY, TOGETHER WITH ANY LONGEVITY INCREASE THEREIN, IS PAID TO RETIRED OFFICERS OF THE REGULAR ARMY AS CURRENT COMPENSATION OR PAY FOR THEIR CONTINUED SERVICE AS OFFICERS AFTER RETIREMENT AND ONLY WHILE THEY REMAIN IN THE SERVICE ( UNITED STATES V. TYLER, 105 U.S. 244), WHEREAS THE "RETIREMENT PAY" AUTHORIZED BT SECTION 5 OF THE SAID ACT OF APRIL 3, 1939, FOR OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, WHO SUFFER DISABILITY WHILE EMPLOYED IN THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT, IS NOT CONDITIONED ON THEIR REMAINING IN THE SERVICE BUT IS MORE IN THE NATURE OF A PENSION PREDICATED ON THE DISABILITY, WITHOUT REGARD TO WHETHER THEY REMAIN IN THE SERVICE AND WITHOUT RELATION TO ANY SUCH SUBSEQUENT SERVICE. COMPARE DECISION OF AUGUST 16, 1943, B-35046, 23 COMP. GEN. 102. SEE, ALSO, DECISION OF JULY 21, 1939, B-4432. * * *

THE OBVIOUS PURPOSE OF THE AMENDMENT OF OCTOBER 10, 1942, WAS TO EXTEND THE RIGHT TO THE BENEFITS OF THE PROVISIONS OF SECTION 4 OF THE ACT OF AUGUST 27, 1940, TO THE PERSONS, OTHERWISE ENTITLED TO ITS BENEFITS, RETROACTIVELY TO SEPTEMBER 8, 1939. SINCE THE 1942 AMENDMENT MUST HAVE CONTEMPLATED THE EXTENSION OF BENEFITS OF THE ENUMERATED PERSONS WHO HAD SUFFERED DISABILITY FROM DISEASE OR INJURY PRIOR TO AUGUST 27, 1940, IT REASONABLY MAY BE INFERRED THAT THE RULE ANNOUNCED BY ATTORNEYS-1GENERAL AND THE COURTS TO THE EFFECT THAT A PERSON CANNOT LEGALLY BE PLACED ON THE RETIRED LIST UNLESS HE IS AN OFFICER OF THE DESCRIPTION TO WHICH THE GENERAL RETIREMENT PROVISIONS EXTEND--- 14 OP. ATTY. GEN. 506; 17 ID. 9; 19 ID. 202, 205; MILLER V. UNITED STATES, 19 C.1CLS. 338, 353--- IS NOT FOR APPLICATION; OTHERWISE THE PRIMARY PURPOSE OF THE LEGISLATION VIEWED IN THE LIGHT OF THE AMENDMENT OF OCTOBER 10, 1942, CONFERRING THE RIGHT TO RETIREMENT PAY BENEFITS RETROACTIVELY TO OFFICERS OF THE NAVAL AND MARINE CORPS RESERVE, WHO WERE DISABLED IN THE NAVAL OR MILITARY SERVICES BETWEEN SEPTEMBER 8, 1939, AND AUGUST 26, 1940, AND WHO, POSSIBLY, BECAUSE OF SUCH DISABILITY WERE SEPARATED FROM THE SERVICE EITHER BY DISCHARGE OR RELEASE FROM ACTIVE DUTY, WOULD BE DEFEATED AND THE SAID AMENDMENT, IN EFFECT, NULLIFIED. SEE ALSO, THE ACT OF SEPTEMBER 26, 1941, 10 U.S.C. 456A WHICH CONFERS RETIREMENT PAY BENEFITS TO CERTAIN RESERVE OFFICERS OF THE ARMY FOR DISABILITIES INCURRED WHILE ON ACTIVE MILITARY DUTY ON OR SUBSEQUENT TO FEBRUARY 28, 1925.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT ENSIGN COLLIER IS ENTITLED TO THE PAYMENT OF RETIREMENT PAY EFFECTIVE FROM MARCH 1, 1943, NOTWITHSTANDING THE FACT THAT HE INADVERTENTLY WAS DISCHARGED FROM THE SERVICE DECEMBER 31, 1942, IF HE IS OTHERWISE ENTITLED THERETO.