B-57437, AUGUST 16, 1946, 26 COMP. GEN. 114

B-57437: Aug 16, 1946

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RESERVE OFFICERS OF PUBLIC HEALTH SERVICE - RETIRED PAY - DISABILITY OCCURRING PRIOR TO ENABLING STATUTE A RESERVE OFFICER OF THE PUBLIC HEALTH SERVICE WHO WAS ON ACTIVE DUTY ON THE DATE OF THE ACT OF NOVEMBER 11. IS NOT ENTITLED TO RETIRED PAY UNDER THE ASSIMILATION PROVISIONS OF THE 1943 ACT UPON REVERSION TO AN INACTIVE STATUS. AS FOLLOWS: I HAVE THE HONOR TO SOLICIT YOUR DECISION WITH REGARD TO THE RETIREMENT OF SENIOR SURGEON (R) JOHN W. BROWN WAS CALLED TO ACTIVE DUTY AND APPEARED TO BE IN GOOD HEALTH AS INDICATED BY HIS MEDICAL RECORD. HE WAS GRANTED SICK LEAVE ON A MONTH TO MONTH BASIS. HE WAS RELIEVED FROM ACTIVE DUTY AND PLACED ON INACTIVE DUTY. WHICH WAS SUBMITTED AS A FORMAL REQUEST FOR RETIREMENT PAY TO DR.

B-57437, AUGUST 16, 1946, 26 COMP. GEN. 114

RESERVE OFFICERS OF PUBLIC HEALTH SERVICE - RETIRED PAY - DISABILITY OCCURRING PRIOR TO ENABLING STATUTE A RESERVE OFFICER OF THE PUBLIC HEALTH SERVICE WHO WAS ON ACTIVE DUTY ON THE DATE OF THE ACT OF NOVEMBER 11, 1943, SECTION 8 OF WHICH, ON AND AFTER SAID DATE, ASSIMILATED RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE TO THE DISABILITY RETIREMENT BENEFITS AUTHORIZED FOR COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES BY SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, BUT WHO HAD BEEN PERMANENTLY DISABLED PRIOR TO NOVEMBER 11, 1943, IS NOT ENTITLED TO RETIRED PAY UNDER THE ASSIMILATION PROVISIONS OF THE 1943 ACT UPON REVERSION TO AN INACTIVE STATUS.

ACTING COMPTROLLER GENERAL YATES TO THE ACTING ADMINISTRATOR, FEDERAL SECURITY ADMINISTRATION, AUGUST 16, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 19, 1946, AS FOLLOWS:

I HAVE THE HONOR TO SOLICIT YOUR DECISION WITH REGARD TO THE RETIREMENT OF SENIOR SURGEON (R) JOHN W. BROWN, A FORMER RESERVE OFFICER IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE, UNDER PUBLIC LAW 184, 78TH CONGRESS.

ON OCTOBER 27, 1941, DR. BROWN WAS CALLED TO ACTIVE DUTY AND APPEARED TO BE IN GOOD HEALTH AS INDICATED BY HIS MEDICAL RECORD. ON THE 26TH DAY OF JULY, 1943, HE SUFFERED AN ACUTE CARDIAC ACCIDENT WHICH HAS TOTALLY AND PERMANENTLY DISABLED HIM SINCE THAT TIME. FROM JULY 26, 1943, TO MARCH 31, 1944, INCLUSIVE, HE WAS GRANTED SICK LEAVE ON A MONTH TO MONTH BASIS. ON MARCH 31, 1944, HE WAS RELIEVED FROM ACTIVE DUTY AND PLACED ON INACTIVE DUTY. ON THE 29TH OF JULY, 1944, MRS. JOHN W. BROWN, THE WIFE OF DR. BROWN, ACTING ON HIS BEHALF, ADDRESSED A LETTER TO THE SURGEON GENERAL, WHICH WAS SUBMITTED AS A FORMAL REQUEST FOR RETIREMENT PAY TO DR. BROWN UNDER THE PROVISIONS OF SECTION 211 (A) OF PUBLIC LAW 410, 78TH CONGRESS, AND WHICH WAS RECEIVED BY THE SURGEON GENERAL ON AUGUST 1, 1944.

AS PUBLIC LAW 410, 78TH CONGRESS, BECAME EFFECTIVE SUBSEQUENT TO DR. BROWN'S REVERSION TO INACTIVE STATUS, IT IS BELIEVED THAT ANY RIGHT WHICH DR. BROWN MAY HAVE TO RETIREMENT FOR DISABILITY WOULD EXIST UNDER SECTION 8 OF PUBLIC LAW 184, 78TH CONGRESS.

ON APRIL 4, 1946, THE RETIREMENT BOARD OF THE U.S. PUBLIC HEALTH SERVICE MET TO CONSIDER THE RETIREMENT OF DR. BROWN FOR DISABILITY. THE BOARD DETERMINED THAT DR. BROWN WAS DISABLED FROM DISEASE INCURRED IN LINE OF DUTY AND RECOMMENDED THE RETIREMENT OF DR. BROWN AS OF APRIL 1, 1944, SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT ACT OF 1930 (46 STAT. 253), THEREBY MAKING THE RETIREMENT EFFECTIVE AS OF MAY 1, 1944. HOWEVER, DUE TO SEVERAL QUESTIONS WHICH HAVE ARISEN, NO PAYMENTS OF RETIRED PAY HAVE YET BEEN MADE. THE QUESTIONS UPON WHICH YOUR DECISION IS SOLICITED ARE AS FOLLOWS:

1. IN VIEW OF THE FACT THAT DR. BROWN REVERTED TO AN INACTIVE STATUS ON MARCH 31, 1944, IS THE PUBLIC HEALTH SERVICE AUTHORIZED TO RETIRE DR. BROWN UNDER THE PROVISIONS OF PUBLIC LAW 184, 78TH CONGRESS?

2. IN THE EVENT THAT YOUR ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE:

(A) IS THE PUBLIC HEALTH SERVICE AUTHORIZED TO RETIRE DR. BROWN RETROACTIVELY TO MAY 1, 1944; OR

(B) IN VIEW OF THE FACT THAT DR. BROWN'S APPLICATION FOR RETIREMENT WAS NOT RECEIVED BY THE PUBLIC HEALTH SERVICE UNTIL AUGUST 1, 1944, IS THE PUBLIC HEALTH SERVICE AUTHORIZED TO RETIRE HIM RETROACTIVELY ONLY TO SEPTEMBER 1, 1944; OR

(C) IS THE PUBLIC HEALTH SERVICE ONLY AUTHORIZED TO RETIRE DR. BROWN PROSPECTIVELY FROM THE DATE THAT FINAL ADMINISTRATIVE ACTION WAS TAKEN BY THE RETIREMENT BOARD?

3. (A) IN THE EVENT THAT YOUR ANSWER TO QUESTION 2 (A) IS IN THE AFFIRMATIVE, ARE THE FUNDS APPROPRIATED TO THE PUBLIC HEALTH SERVICE BY PUBLIC LAWS 135 AND 373, 78TH CONGRESS, AND PUBLIC LAW 124, 79TH CONGRESS, AVAILABLE FOR MAKING RETROACTIVE PAYMENTS OF RETIRED PAY FROM MAY 1, 1944 TO DATE; OR

(B) IN THE EVENT THAT YOUR ANSWER TO QUESTION 2 (A) IS IN THE NEGATIVE, BUT TO QUESTION 2 (B) IS IN THE AFFIRMATIVE, ARE THE FUNDS APPROPRIATED TO THE PUBLIC HEALTH SERVICE BY PUBLIC LAW 373, 78TH CONGRESS, AND PUBLIC LAW 124, 79TH CONGRESS, AVAILABLE FOR MAKING RETROACTIVE PAYMENTS OF RETIRED PAY FROM SEPTEMBER 1, 1944, TO DATE?

4. IF DR. BROWN IS OTHERWISE ENTITLED TO RETIREMENT FOR DISABILITY UNDER SECTION 8 OF PUBLIC LAW 184, 78TH CONGRESS, WOULD THE RATE OF RETIRED PAY BE 75 PERCENTUM OF THE PAY RECEIVED BY DR. BROWN AT THE TIME HE REVERTED TO AN INACTIVE STATUS?

SECTION 8 OF PUBLIC LAW 184 APPROVED NOVEMBER 11, 1943, 57 STAT. 588, 589, REFERRED TO IN YOUR LETTER, PROVIDES IN PART AS FOLLOWS:

SEC. 8. (A) FOR THE PURPOSES OF THIS SECTION---

(1) THE TERM "FULL MILITARY BENEFITS" MEANS ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES (INCLUDING THEIR SURVIVING BENEFICIARIES) ON ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE, INCLUDING, BUT NOT LIMITED TO, BURIAL PAYMENTS IN THE EVENT OF DEATH, SIX MONTHS' PAY IN CASE OF DEATH, VETERANS' COMPENSATION AND PENSIONS AND OTHER VETERANS' BENEFITS, RETIREMENT, INCLUDING RETIREMENT FOR DISABILITY, THE RIGHTS PROVIDED UNDER THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, THE NATIONAL SERVICE LIFE INSURANCE ACT, AS AMENDED, TRAVEL ALLOWANCES, INCLUDING PER DIEM ALLOWANCES FOR TRAVEL WITHOUT REGARD TO REPEATED TRAVEL BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, ALLOWANCES FOR UNIFORMS, EXEMPTION OF CERTAIN PAY FROM FEDERAL INCOME TAXATION, AND OTHER BENEFITS, PRIVILEGES AND EXCEPTIONS UNDER THE INTERNAL REVENUE LAWS;

(2) THE TERM "LIMITED MILITARY BENEFITS" MEANS FULL MILITARY BENEFITS, EXCEPT VETERANS' COMPENSATION AND PENSIONS AND OTHER VETERANS' BENEFITS, AND ELIGIBILITY UNDER THE NATIONAL SERVICE LIFE INSURANCE ACT, AS AMENDED.

(B) BEGINNING WITH THE DATE OF ENACTMENT OF THIS ACT, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, REGULAR AND RESERVE (INCLUDING THEIR SURVIVING BENEFICIARIES/---

(1) IN TIME OF WAR, SHALL BE ENTITLED TO LIMITED MILITARY BENEFITS WITH RESPECT TO ALL ACTIVE SERVICE IN THE PUBLIC HEALTH SERVICE;

(2) WHILE SUCH OFFICERS ARE DETAILED FOR DUTY WITH THE ARMY, NAVY, OR COAST GUARD, SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO SUCH DUTY;

(3) WHILE SUCH OFFICERS ARE SERVING OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA IN TIME OF WAR, SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO SUCH SERVICE.

PRIOR TO THE SAID ACT OF NOVEMBER 11, 1943, 57 STAT. 588, RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE WERE NOT ENTITLED TO "RETIREMENT FOR DISABILITY" INCIDENT TO DISABILITY INCURRED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY. SECTION 8 OF THE ACT OF NOVEMBER 1, 1943, SUPRA, EXTENDED TO RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE, EFFECTIVE NOVEMBER 11, 3,"ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES," INCLUDING, INTER IA,"RETIREMENT FOR DISABILITY.' WHILE THE 1943 ACT WAS REPEALED BY SECTION 212 OF THE PUBLIC HEALTH SERVICE ACT OF 1944, PUBLIC LAW 410, APPROVED JULY 1, 1944, 58 STAT. 689, SECTION 612 THEREOF, 58 STAT 720, PROVIDES THAT THE REPEAL OF THE VARIOUS ACTS- - INCLUDING THE 1943 ACT--- SHALL NOT AFFECT ANY RIGHT ACCRUING OR ACCRUED BEFORE SUCH REPEAL AND ALL RIGHTS UNDER THE REPEALED STATUTES SHALL CONTINUE AND MAY BE ENFORCED IN THE SAME MANNER AS IF SUCH REPEAL HAD NOT BEEN MADE. HENCE, AS STATED IN YOUR LETTER, DR. BROWN'S RIGHTS, IF ANY, TO RECEIVE RETIREMENT PAY UNDER THE CONDITIONS SET FORTH IN YOUR LETTER ARE FOR DETERMINATION UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, SUPRA.

WHILE SECTION 8 OF THE SAID ACT GRANTED COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, REGULAR AND RESERVE, CERTAIN "MILITARY BENEFITS," AND DEFINED SUCH BENEFITS AS ALL RIGHTS, PRIVILEGES, ETC., PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF "COMMISSIONED MILITARY AND NAVAL PERSONNEL," CONSIDERABLE DOUBT AROSE AS TO WHETHER THE BENEFITS SOUGHT TO BE CONFERRED BY THE 1943 ACT WERE THOSE AUTHORIZED EXCLUSIVELY FOR THE ARMY, THOSE AUTHORIZED EXCLUSIVELY FOR THE NAVY, OR THOSE AUTHORIZED FOR BOTH THE ARMY AND NAVY. HOWEVER, SECTION 212 OF THE PUBLIC HEALTH SERVICE ACT OF 1944, 58 STAT. 689, EXPRESSLY DEFINES "MILITARY BENEFITS" AS INCLUDING ALL RIGHTS, PRIVILEGES, ETC., PROVIDED UNDER ANY LAW FOR "COMMISSIONED OFFICERS OF THE ARMY.' IN THAT CONNECTION, IN A DECISION OF MAY 18, 1945, B-46799, 24 COMP. GEN. 822, IT WAS STATED WITH RESPECT TO THE BURIAL EXPENSES AUTHORIZED UNDER THE 1943 ACT FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, AS FOLLOWS:

* * * THE PRIMARY PURPOSE OF THE REFERRED-TO CHANGE IN LANGUAGE BETWEEN THAT APPEARING IN SECTION 212 (A) (1) OF THE 1944 ACT AND THAT IN SECTION 8 (A) (1) OF THE 1943 ACT WAS NOT TO EFFECT A MATERIAL MODIFICATION OF THE "MILITARY BENEFITS" THERETOFORE AUTHORIZED UNDER THE SAID SECTION 8 (A) (1) FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, BUT, RATHER, SUCH CHANGE APPEARS TO HAVE BEEN MADE FOR THE EXPRESS PURPOSE OF CLARIFYING THE CHARACTER OF THOSE BENEFITS AND TO AVOID THE AMBIGUOUS PHRASEOLOGY CONTAINED IN THE 1943 ACT. HENCE, WHATEVER DOUBT MIGHT HAVE EXISTED RESPECTING THE EXTENT OF THE "MILITARY BENEFITS" AUTHORIZED UNDER THE PROVISIONS OF THE REPEALED STATUTE, SUCH DOUBT WOULD SEEM TO HAVE BEEN REMOVED BY THE EXPRESS PROVISION IN THE 1944 ACT THAT "MILITARY BENEFITS" ARE THE RIGHTS, PRIVILEGES, IMMUNITIES, ETC., AUTHORIZED FOR ,COMMISSIONED OFFICERS OF THE ARMY.' ACCORDINGLY, IT REASONABLY APPEARS THAT, GENERALLY, UNDER EITHER THE 1943 ACT OR THE 1944 ACT, THE "MILITARY BENEFITS" AUTHORIZED FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE THE RIGHTS, ETC., PROVIDED BY LAW FOR COMMISSIONED OFFICERS OF THE ARMY, EXCEPTING, OF COURSE, SUCH BENEFITS AS ARE AUTHORIZED FOR NAVAL PERSONNEL AND WHICH EXPRESSLY HAVE BEEN MADE APPLICABLE BY OTHER STATUTORY AUTHORITY TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE--- SUCH AS WAS PROVIDED BY SECTION 6 OF THE ACT OF OCTOBER 27, 1943, 57 STAT. 582, 583, WITH REGARD TO LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL PROPERTY OF SUCH OFFICERS WHEN SERVING WITH THE NAVY. SEE DECISION OF MARCH 8, 1945, B-45178, 24 COMP. GEN. 664. CONSEQUENTLY, THE DEATHS OF THE OFFICERS HERE INVOLVED HAVING OCCURRED SUBSEQUENT TO THE ENACTMENT OF THE SAID ACT OF NOVEMBER 11, 1943, THE AUTHORIZED BURIAL EXPENSES PAYABLE BY THE UNITED STATES IN EACH CASE ARE THE AMOUNTS AUTHORIZED UNDER EXISTING LAW FOR COMMISSIONED OFFICERS OF THE ARMY.

THE CONCLUSION REACHED IN THE SAID DECISION WITH RESPECT TO THE BENEFITS AUTHORIZED BY THE ACT OF NOVEMBER 11, 1943, WOULD APPEAR EQUALLY FOR APPLICATION IN THE PRESENT CASE. THAT IS TO SAY, A RESERVE OFFICER OF THE PUBLIC HEALTH SERVICE WHO SERVED ON ACTIVE DUTY AT ANY TIME DURING THE PERIOD NOVEMBER 11, 1943 TO JUNE 30, 1944, AND WHO WAS RELEASED THEREFROM PRIOR TO JULY 1, 1944, FOR DISABILITY INCURRED IN LINE OF DUTY WOULD BE ENTITLED, IN A PROPER CASE, TO THE RETIREMENT PAY AUTHORIZED FOR RESERVE OFFICERS OF THE ARMY OF THE UNITED STATES.

SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, PROVIDES AS FOLLOWS:

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS, OTHER THAN FOR SERVICE WITH THE CIVILIAN CONSERVATION CORPS, AND WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND 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 AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY, INCLUDING FOR THEIR DEPENDENTS THE BENEFITS OF SECTION 903 OF THIS TITLE, AS AMENDED.

THE SAID ACT OF APRIL 3, 1939, AS AMENDED, 53 STAT. 1079, BEING SILENT AS TO THE AGENCY EMPOWERED WITH ITS ADMINISTRATION, THE PRESIDENT BY EXECUTIVE ORDER NO. 8099 DATED APRIL 28, 1939, AS AMENDED BY EXECUTIVE ORDER NO. 8461, DATED JUNE 28, 1940, PROVIDED THAT THE ADMINISTRATION OF THE ACT SHALL BE PLACED IN THE VETERANS' ADMINISTRATION, WITH THE PROVISO THAT THE SECRETARY OF WAR, OR HIS DESIGNEE, SHALL DETERMINE ALL QUESTIONS OF ELIGIBILITY FOR THE BENEFITS THEREOF, INCLUDING ALL QUESTIONS OF LAW AND FACT RELATING TO SUCH ELIGIBILITY, IN ACCORDANCE WITH THE STANDARDS PROVIDED BY LAW OR REGULATION FOR REGULAR ARMY PERSONNEL.

AS POINTED OUT ABOVE, ON JULY 26, 1943 WHEN DR. BROWN SUFFERED THE "ACUTE CARDIAC ACCIDENT" WHICH, YOU STATE, HAS TOTALLY AND PERMANENTLY DISABLED HIM SINCE THAT TIME, NO STATUTORY AUTHORITY EXISTED FOR THE PAYMENT OF RETIREMENT PAY TO RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE WHO SUFFERED DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY. CONSEQUENTLY, IF DR. BROWN IS TO RECEIVE THE RETIREMENT PAY AUTHORIZED UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, SUPRA, IT IS NECESSARY THAT EITHER SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, 57 STAT. 588, 589, OR SECTION 5 OF THE 1939 ACT, BE VIEWED AS BEING APPLICABLE TO CASES INVOLVING PUBLIC HEALTH SERVICE OFFICERS WHERE THE DISABILITY IS DETERMINED TO HAVE EXISTED PRIOR TO THE EFFECTIVE DATE OF THE SAID 1943 STATUTE. HOWEVER, IN VIEW OF THE PROVISION IN SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, THAT RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE SHALL BE ENTITLED TO "RETIREMENT FOR DISABILITY"--- ONE OF THE "MILITARY BENEFITS" AUTHORIZED THEREIN--- "BEGINNING WITH THE DATE OF ENACTMENT OF THIS ACT," IT SEEMS REASONABLY CLEAR THAT SUCH PROVISION WAS NOT INTENDED TO HAVE ANY RETROACTIVE APPLICATION. THE LEGAL EFFECT OF SUCH PROVISION, INSOFAR AS CONCERNS A RESERVE OFFICER'S RIGHT TO RETIREMENT FOR DISABILITY, IS THE SAME AS THOUGH SECTION 5 OF THE 1939 ACT HAD BEEN AMENDED, EFFECTIVE NOVEMBER 11, 1943, TO INCLUDE WITHIN ITS PROVISIONS RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE ENTITLED TO EITHER FULL MILITARY BENEFITS OR LIMITED MILITARY BENEFITS, WHO WERE ORDERED TO ACTIVE DUTY ON OR AFTER NOVEMBER 11, 1943, INCLUDING THOSE ON ACTIVE DUTY ON THAT DATE, AND WHO SUFFERED DISABILITY FROM DISEASE OR INJURY IN LINE OF DUTY WHILE EMPLOYED ON ACTIVE DUTY. THUS, THE RIGHT TO RETIREMENT FOR DISABILITY OF A RESERVE OFFICER OF THE PUBLIC HEALTH SERVICE WHO WAS ON ACTIVE DUTY ON NOVEMBER 11, 1943, BUT HAD BEEN INCAPACITATED PRIOR TO THAT DATE, WOULD BE THE SAME AS A RESERVE OFFICER OF THE ARMY WHO WAS ON ACTIVE DUTY ON APRIL 3, 1939, BUT WAS INCAPACITATED PRIOR TO THAT DATE. IT WILL BE NOTED THAT SECTION 5 OF THE ACT OF APRIL 3, 1939, IS NOT BE EXPRESS TERMS OR NECESSARY IMPLICATION MADE RETROACTIVELY EFFECTIVE SO AS TO INCLUDE RESERVE OFFICERS OF THE ARMY OF THE UNITED STATES WHO ACTUALLY WERE INCAPACITATED BEFORE APRIL 3, 1939. THAT THE SAID SECTION 5 IS NOT RETROACTIVELY EFFECTIVE APPEARS TO HAVE BEEN MADE ABUNDANTLY CLEAR BY THE PASSAGE OF THE ACT OF SEPTEMBER 26, 1941, 55 STAT. 733, AUTHORIZING THE PAYMENT OF RETIREMENT PAY TO RESERVE OFFICERS OF THE ARMY OF THE UNITED STATES WHO WERE CALLED OR ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS OR AFTER FEBRUARY 28, 1925, AND WHO WERE DISABLED FROM DISEASE OR INJURY CONTRACTED OR RECEIVED IN LINE OF DUTY. IN EXPLAINING THE PURPOSE OF THE SAID ACT, THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, IN REPORT NO. 833, TO ACCOMPANY H.R. 3484, WHICH BECAME PUBLIC LAW 262, APPROVED SEPTEMBER 26, 1941, STATED WITH RESPECT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, AS FOLLOWS:

THE LAW CITED (SUPRA) PROVIDES FOR RETIREMENT PAY AND HOSPITALIZATION FOR ALL RESERVE OFFICERS AND RESERVE ENLISTED MEN DISABLED IN LINE OF DUTY SINCE APRIL 3, 1939, DATE OF ENACTMENT OR IN THE FUTURE. THEREFORE, IT IS THE OPINION OF YOUR COMMITTEE, THAT LIKE PROVISIONS SHOULD BE ENACTED FOR THOSE UNFORTUNATE RESERVE OFFICERS WHO ARE DISABLED FROM DISEASE OR INJURY WHILE SIMILARLY EMPLOYED BY THE FEDERAL GOVERNMENT PRIOR TO THE ENACTMENT OF PUBLIC LAW NO. 18 ( ITALICS SUPPLIED.)

ALSO, ATTENTION IS INVITED TO THE ADMINISTRATIVE INTERPRETATION PLACED BY THE SECRETARY OF THE NAVY UPON SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, APPROVED AUGUST 27, 1940, 54 STAT. 864, WHICH IS SUBSTANTIALLY SIMILAR TO SECTION 5 OF THE ACT OF APRIL 3, 1939, IN THAT IT GRANTS NAVAL RESERVE OFFICERS, ETC., WHO ARE CALLED OR ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS AND WHO SUFFER DISABILITY IN LINE OF DUTY WHILE SO EMPLOYED, THE RETIREMENT PAY, ETC., AUTHORIZED FOR OFFICERS OF THE REGULAR NAVY. SEE 23 COMP. GEN. 700. IN THAT CASE, IT APPEARS THAT A NAVAL RESERVE OFFICER, WHILE SERVING ON ACTIVE DUTY, WAS ADMITTED TO A NAVAL HOSPITAL ON AUGUST 25, 1940--- TWO DAYS PRIOR TO APPROVAL OF THE SAID ACT OF AUGUST 27, 1940--- WITH THE DIAGNOSIS " TUBERCULOSIS, PULMONARY, CHRONIC, ACTIVE; " THAT THE OFFICER WAS CONTINUED ON ACTIVE DUTY FOR FURTHER TREATMENT, AND THAT ON NOVEMBER 6, 1941, A NAVAL RETIRING BOARD FOUND THAT THE OFFICER WAS INCAPACITATED FOR ACTIVE DUTY BY REASON OF THE DISEASE REFERRED TO AND THAT THE INCAPACITY EXISTED PRIOR TO AUGUST 27, 1940. THE RECORD OF THE PROCEEDINGS OF THE NAVAL RETIRING BOARD WAS 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 HE WAS NOT ENTITLED TO THE BENEFITS OF SECTION 4 OF THE ACT OF AUGUST 27, 1940. THEREAFTER, THE SAID ACT OF AUGUST 27, 1940, WAS AMENDED BY THE ACT OF OCTOBER 10, 1942, 56 STAT. 780, TO BE RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939, SO AS TO INCLUDE CASES SUCH AS THAT ABOVE REFERRED TO.

IN VIEW OF THE FOREGOING AND SINCE DR. BROWN'S INCAPACITY EXISTED PRIOR TO THE EFFECTIVE DATE OF SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, WHICH, IN EFFECT, GRANTED RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE THE BENEFITS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, THIS OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING THE PAYMENT OF RETIREMENT PAY TO DR. BROWN UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER.