B-55609, JULY 15, 1946, 26 COMP. GEN. 37

B-55609: Jul 15, 1946

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WHILE ON ACTIVE DUTY AFTER RETIREMENT IS NOT ENTITLED TO CONTINUE TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES DURING A PERIOD OF HOSPITALIZATION AND TERMINAL LEAVE. WHERE NO CONTEMPORARY OR SUBSEQUENT ORDERS CONTINUING THE OFFICER ON DUTY WERE ISSUED. THE CIRCUMSTANCES CONCERNING THE CASE OF LIEUTENANT HIGGINS ARE SET FORTH IN A LETTER DATED JANUARY 3. WAS TRANSFERRED TO THE RETIRED LIST IN THE RANK OF LIEUTENANT ON 31 DECEMBER 1927 ON HIS OWN REQUEST AFTER COMPLETION OF 30 YEARS' SERVICE. HE WAS ADMITTED TO THE NAVAL HOSPITAL. A NAVAL RETIRING BOARD WAS CONVENED IN THIS CASE ON 29 MAY 1945. THE RETIRING BOARD FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE IN THE NAVY BY REASON OF HYPERTENSIVE HEART DISEASE.

B-55609, JULY 15, 1946, 26 COMP. GEN. 37

PAY - ACTIVE-DUTY - RETIRED PERSONNEL - EFFECTIVE DATE OF DISCONTINUANCE - RETIRED OFFICER INCURRING DISABILITY WHILE ON ACTIVE DUTY A RETIRED NAVY OFFICER, RETIRED PURSUANT TO THE ACT OF MAY 13, 1908, AFTER 30 YEARS' SERVICE, WHO INCURRED PHYSICAL DISABILITY WITHIN THE PURVIEW OF SECTION 8 (D) OF THE ACT OF JULY 24, 1941, WHILE ON ACTIVE DUTY AFTER RETIREMENT IS NOT ENTITLED TO CONTINUE TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES DURING A PERIOD OF HOSPITALIZATION AND TERMINAL LEAVE, PROVIDED FOR IN PREVIOUSLY ISSUED ORDERS, AFTER THE DATE THE PRESIDENT APPROVED THE FINDINGS OF A NAVAL RETIRING BOARD AND RECOMMENDATIONS OF THE SECRETARY OF THE NAVY, WHERE NO CONTEMPORARY OR SUBSEQUENT ORDERS CONTINUING THE OFFICER ON DUTY WERE ISSUED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 15, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 24, 1946 (FILE JAG:II:WG:BB OO-HIGGINS, LOUIS C./L16-4), REQUESTING DECISION AS AS TO WHETHER LIEUTENANT LOUIS CORNELIUS HIGGINS, UNITED ALLOWANCES FOR THE PERIOD FROM AUGUST 17, 1945, TO FEBRUARY 17, 1946, OR FOR ANY PORTION OF SUCH PERIOD. THE CIRCUMSTANCES CONCERNING THE CASE OF LIEUTENANT HIGGINS ARE SET FORTH IN A LETTER DATED JANUARY 3, 1946, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

1. THE SUBJECT NAMED OFFICER, UNDER AUTHORITY CONTAINED IN THE ACT OF MAY 13, 1908 (34 U.S. CODE 42 (383) (, WAS TRANSFERRED TO THE RETIRED LIST IN THE RANK OF LIEUTENANT ON 31 DECEMBER 1927 ON HIS OWN REQUEST AFTER COMPLETION OF 30 YEARS' SERVICE. PURSUANT TO DIRECTIVE CONTAINED IN BUREAU OF NAVAL PERSONNEL ORDERS OF 14 AUGUST 1940 HE REPORTED TO THE COMMANDANT, NAVY YARD, NORFOLK, VIRGINIA ON 19 AUGUST 1940. HE WAS ADMITTED TO THE NAVAL HOSPITAL, PORTSMOUTH, VIRGINIA ON 15 MARCH 1945. ACCORDANCE WITH RECOMMENDATION OF BOARD OF MEDICAL SURVEY HELD AT THAT HOSPITAL ON 9 APRIL 1945, A NAVAL RETIRING BOARD WAS CONVENED IN THIS CASE ON 29 MAY 1945. THE RETIRING BOARD FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE IN THE NAVY BY REASON OF HYPERTENSIVE HEART DISEASE, THAT HIS INCAPACITY FOR NAVAL SERVICE WAS PERMANENT, WAS THE RESULT OF AN INCIDENT OF THE SERVICE, AND THE INCAPACITY WAS INCURRED SUBSEQUENT TO 19 AUGUST 1940 WHILE SERVING ON ACTIVE DUTY IN HIS RETIRED GRADE IN TIME OF WAR OR NATIONAL EMERGENCY. ON 17 AUGUST 1945 THE PRESIDENT APPROVED THE PROCEEDINGS AND FINDINGS OF THE NAVAL RETIRING BOARD AND THIS OFFICER WAS RE RETIRED UNDER THE PROVISIONS OF 34 U.S.C. 350G (D). IN VIEW OF THE FACT THAT LIEUTENANT HIGGINS, DURING ENTIRE PERIOD OF ACTIVE SERVICE AFTER RETIREMENT, SERVED IN HIS PERMANENT RANK, THE EFFECT OF SUCH ACTION MERELY CHANGED HIS STATUS FROM THAT OF HAVING BEEN RETIRED ON HIS OWN REQUEST AFTER COMPLETION OF 30 YEARS' SERVICE TO HAVING BEEN RETIRED FOR PHYSICAL DISABILITY.

2. ENCLOSURE (A) STATED THAT LIEUTENANT HIGGINS WAS GRANTED 3 MONTHS AND 25 DAYS LEAVE TO COMMENCE ON THE DATE FOLLOWING DETACHMENT FROM DUTY STATION OR DISCHARGE FROM TREATMENT, WHICHEVER IS LATER, AND UPON EXPIRATION THEREOF HE WOULD CONSIDER HIMSELF RELIEVED OF ALL ACTIVE DUTY IN THE NAVAL SERVICE. LIEUTENANT HIGGINS WAS DISCHARGED FROM TREATMENT ON 22 OCTOBER 1945 AND THE QUESTION ARISES AS TO HIS PAY STATUS ON AND AFTER 17 AUGUST 1945 AND WHETHER HIS ACTIVE DUTY STATUS CONTINUES FOR 3 MONTHS AND 25 DAYS FOLLOWING DATE OF DISCHARGE FROM TREATMENT. THERE IS NO DECISION OF THE COMPTROLLER GENERAL COVERING AN ANALOGOUS CASE. IT IS, THEREFORE, RECOMMENDED THAT NECESSARY ACTION BE TAKEN TO DETERMINE WHETHER LIEUTENANT HIGGINS IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM:

(A) 17 AUGUST TO 22 OCTOBER 1945, INCLUSIVE,

(B) 17 AUGUST 1945 TO DATE OF EXPIRATION OF TERMINAL LEAVE OF 3

MONTHS AND 25 DAYS COMMENCING 23 OCTOBER 1945.

THE ORDERS ISSUED ON APRIL 30, 1945, BY THE CHIEF OF NAVAL PERSONNEL TO LIEUTENANT HIGGINS, REFERRED TO AS ENCLOSURE (A) IN THE ABOVE-QUOTED LETTER, PROVIDE IN PART THAT---

1. WHEN DIRECTED BY YOUR COMMANDING OFFICER, REPORT FOR A PHYSICAL EXAMINATION IN ACCORDANCE WITH REFERENCE (A). IF HOSPITALIZATION IS REQUIRED, YOU WILL BE DETACHED FROM DUTY, ORDERED TO AN APPROPRIATE HOSPITAL, AND THESE ORDERS ENDORSED IN ACCORDANCE WITH REFERENCE (B). FURTHER COMPLIANCE WITH THESE ORDERS IS DELAYED UNTIL YOU ARE READY FOR DISCHARGE FROM TREATMENT. AT THIS TIME, THE MEDICAL OFFICER IN COMMAND WILL PERFORM THE DUTIES OF THE COMMANDING OFFICER REFERRED TO IN THE BALANCE OF THESE ORDERS.

2. WHEN DIRECTED BY YOUR COMMANDING OFFICER, PROCEED AND REPORT TO A CIVIL READJUSTMENT OFFICER FOR AN INTERVIEW. UPON COMPLETION OF THE INTERVIEW, RETURN TO YOUR DUTY STATION OR THE HOSPITAL AT WHICH YOU ARE A PATIENT, AND WHEN DIRECTED YOU WILL REGARD YOURSELF DETACHED FROM ALL DUTY; PROCEED TO YOUR HOME. IF HOSPITALIZATION WAS REQUIRED, UPON DISCHARGE FROM TREATMENT; PROCEED TO YOUR HOME. YOU ARE HEREBY GRANTED THREE MONTHS AND TWENTY-FIVE DAYS' LEAVE, TO COMMENCE THE DATE FOLLOWING DETACHMENT OR DISCHARGE FROM TREATMENT WHICHEVER IS LATER AND UPON THE EXPIRATION THEREOF, YOU WILL REGARD YOURSELF RELIEVED OF ALL ACTIVE DUTY IN THE NAVAL SERVICE. ALL TRAVEL WILL BE COMPLETED WITHIN ONE YEAR FROM DATE OF DETACHMENT OR DISCHARGE FROM TREATMENT.

SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 605, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(D) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY IN THE SAME RANK AS THAT HELD BY HIM ON THE RETIRED LIST AND IF NOT OTHERWISE ENTITLED THERETO, RECEIVE 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(E) THE BENEFITS OF THIS SECTION SHALL APPLY ONLY TO AN INDIVIDUAL WHO INCURS PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. IN THE CASE OF THOSE OFFICERS TO WHOM SUBSECTION (C) HEREOF IS APPLICABLE RETIREMENT IN THE NEXT HIGHER RANK SHALL BE EFFECTED UPON A FINDING BY A NAVAL RETIRING BOARD THAT THE DISABILITY WAS INCIDENT TO THE SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER RANK AND UPON A RATING BY SUCH BOARD, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY. IN ALL OTHER CASES OFFICERS SHALL BE RETIRED IN ACCORDANCE WITH EXISTING LAW PROVIDING FOR THE RETIREMENT OF OFFICERS.

(F) THE JURISDICTION OF NAVAL RETIRING BOARDS IS HEREBY EXTENDED AS MAY BE NECESSARY IN THE ADMINISTRATION OF THIS SECTION, AND THEIR PROCEEDINGS SHALL BE CONDUCTED IN ALL RESPECTS AS PROVIDED BY EXISTING LAW AND REGULATIONS EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAME TO CASES PROVIDED FOR IN THIS SECTION.

PARAGRAPH (F) OF SECTION 8 OF THE STATUTE EXTENDS THE JURISDICTION OF NAVAL RETIRING BOARDS AS MAY BE NECESSARY IN THE ADMINISTRATION OF THE SECTION AND PROVIDES THAT THEIR PROCEEDINGS SHALL BE CONDUCTED IN ALL RESPECTS IN ACCORDANCE WITH EXISTING LAW. WITH RESPECT TO THE FINDINGS OF A RETIRING BOARD THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, SECTION 1452 OF THE REVISED STATUTES (34 U.S.C. 416) PROVIDES:

A RECORD OF THE PROCEEDINGS AND DECISION OF THE BOARD IN EACH CASE SHALL BE TRANSMITTED TO THE SECRETARY OF THE NAVY, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL, OR ORDERS IN THE CASE.

SECTION 1453, REVISED STATUTES (34 U.S.C. 417), PROVIDES:

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.

IT HAS BEEN HELD THAT THE EFFECTIVE DATE OF A FINDING OF A RETIRING BOARD MADE UNDER THOSE SECTIONS AND APPROVED BY THE PRESIDENT IS THE DATE OF SUCH APPROVAL IF NO OTHER DATE BE SPECIFIED THEREIN. HOLLAND V. UNITED STATES, 83 C.CLS. 376. IT APPEARS FROM THE RECORD OF PROCEEDINGS OF THE NAVAL RETIRING BOARD IN THE CASE OF LIEUTENANT HIGGINS, THAT ON AUGUST 14, 1945, THE ACTING SECRETARY OF THE NAVY LAID BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL, OR ORDERS IN THE CASE, THE FINDINGS OF THE NAVAL RETIRING BOARD WITH THE RECOMMENDATION THAT THE FINDINGS OF THE BOARD BE APPROVED AND THAT LIEUTENANT HIGGINS, IF NOT OTHERWISE ENTITLED THERETO, RECEIVE 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK, IN CONFORMITY WITH THE PROVISIONS OF 34 U.S.C., 1 SUPP. V, 350G (D). THE FINDINGS OF THE BOARD AND RECOMMENDATIONS OF THE ACTING SECRETARY OF THE NAVY WERE APPROVED BY THE PRESIDENT ON AUGUST 17, AND ON SEPTEMBER 5, 1945, LIEUTENANT HIGGINS WAS INFORMED BY LETTER FROM THE SECRETARY OF THE NAVY THAT HE HAD BEEN FOUND INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY.

WHILE SECTION 8 (D) OF THE ACT OF JULY 24, 1941, 34 U.S.C., SUPP. V, 350G (D), PROVIDES THAT A RETIRED OFFICER COMING WITHIN ITS TERMS SHALL BE ENTITLED TO RECEIVE 75 PERCENTUM OF HIS ACTIVE DUTY PAY IF HE INCURS PHYSICAL DISABILITY, IT APPEARS THAT THE NAVY DEPARTMENT HAS RECOGNIZED A NECESSITY FOR A PROCEDURE LEADING TO A DETERMINATION OF PHYSICAL DISABILITY AND RELEASE FROM ACTIVE DUTY UPON FINDINGS BY A NAVAL RETIRING BOARD AND APPROVAL BY THE PRESIDENT IN THE SAME MANNER AS PREVAILS UNDER THE PERMANENT STATUTES WITH REFERENCE TO THE RETIREMENT OF ACTIVE LIST OFFICERS. THIS SEEMS TO BE BORNE OUT BY THE RECOMMENDATION OF THE ACTING SECRETARY, WHICH FOLLOWS THE PRECISE LANGUAGE OF SECTION 1452 OF THE REVISED STATUTES.

NO ORDERS WERE ISSUED CONTEMPORANEOUSLY, OR THEREAFTER, TO CONTINUE THE RETIRED OFFICER ON DUTY SUBSEQUENT TO THE ACTION TAKEN BY THE PRESIDENT. THE ORDERS DATED APRIL 30, 1945, ISSUED APPROXIMATELY FOUR MONTHS PRIOR TO THE PRESIDENTIAL APPROVAL OF AUGUST 17, 1945, MAY NOT REASONABLY BE CONSTRUED AS HAVING CONTEMPLATED RETAINING THE OFFICER ON ACTIVE DUTY STATUS SUCH PRESIDENTIAL APPROVAL, WHILE UNDERGOING TREATMENT AND THEREAFTER IN A TERMINAL LEAVE STATUS UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, SO AS TO AUTHORIZE ACTIVE DUTY PAY AND ALLOWANCES THEREAFTER. SEE 17 COMP. DEC. 435; CF. 18 ID. 747. ACCORDINGLY, LIEUTENANT HIGGINS MAY NOT BE PAID ACTIVE DUTY PAY AND ALLOWANCES FOR ANY PORTION OF THE PERIOD SUBSEQUENT TO AUGUST 17, 1945.