B-68343, NOVEMBER 21, 1947, 27 COMP. GEN. 283

B-68343, NOVEMBER 21, 1947, 27 COMP. GEN. 283

RETIREMENT - RESERVE OFFICERS OF PUBLIC HEALTH SERVICE WHILE SUBSECTION (F) OF SECTION 211 OF THE PUBLIC HEALTH ACT OF 1944 MAKES THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, APPLICABLE GENERALLY TO COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, THE PROVISIONS OF SUBSECTION (A) OF SAID SECTION PROPERLY MAY BE CONSIDERED AS IMPLIEDLY AUTHORIZING THE RETIREMENT OF SUCH RESERVE OFFICERS FOR "DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR" UNDER CONDITIONS APPLICABLE TO OFFICERS OF THE ARMY OF THE UNITED STATES, AS WAS SPECIFICALLY PROVIDED FOR UNDER PRIOR REPEALED LAW (SECTION 8 OF THE ACT OF NOVEMBER 11, 1943). A FORMER PUBLIC HEALTH SERVICE RESERVE OFFICER WHO CONTRACTED A DISEASE IN LINE OF DUTY PRIOR TO NOVEMBER 11, 1943, THE DATE OF THE ACT (NOW REPEALED) WHICH ASSIMILATED SUCH RESERVE OFFICERS TO THE DISABILITY RETIREMENT BENEFITS OF OFFICERS OF THE ARMY OF THE UNITED STATES, AND WHO SUBSEQUENT THERETO, UPON THE DETERMINATION THAT SUCH DISEASE WAS CURED, PERFORMED ASSIGNED DUTIES FOR 18 MONTHS "IN TIME OF WAR" BEFORE HIS RESERVE COMMISSION WAS TERMINATED, IS ELIGIBLE, UPON SUBSEQUENT AUTHORITATIVE DETERMINATION THAT HE WAS DISABLED BY REASON OF SUCH DISEASE AT THE TIME HIS COMMISSION WAS TERMINATED, FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 211 (A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944. 26 COMP. GEN. 114, DISTINGUISHED. A FORMER PUBLIC HEALTH SERVICE RESERVE OFFICER WHO BECAME ENTITLED, AFTER HIS RESERVE COMMISSION WAS TERMINATED IN JULY 1945, TO RETIREMENT FOR DISABILITY UNDER SECTION 211 (A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944, BY REASON OF AN AUTHORITATIVE DETERMINATION THAT, AT THE TIME HIS COMMISSION WAS TERMINATED, HE WAS DISABLED BY REASON OF DISEASE, MAY BE CONSIDERED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9655 AS HAVING BEEN "TRANSFERRED TO INACTIVE DUTY AFTER JULY 1, 1944, BUT BEFORE THE DATE OF THE PROMULGATION OF THESE REGULATIONS," SO THAT THE EFFECTIVE DATE OF HIS RETIREMENT IS A MATTER TO BE DETERMINED BY THE FEDERAL SECURITY ADMINISTRATOR PURSUANT TO SUCH EXECUTIVE ORDER. WHERE A FORMER PUBLIC HEALTH SERVICE RESERVE OFFICER BECAME ENTITLED TO RETIREMENT UNDER SECTION 211 (A) OF THE PUBLIC HEALTH ACT OF 1944, UPON A DETERMINATION THAT HE WAS DISABLED BY DISEASE AT TIME HIS COMMISSION WAS TERMINATED TWO YEARS PRIOR THERETO, THE CURRENT AUTHORITATIVE APPROVAL OF RETIREMENT, EFFECTIVE AS OF THE DATE OF TERMINATION OF COMMISSION, WOULD RELATE BACK TO SUCH TIME AND WOULD HAVE THE EFFECT OF PERFECTING THE LATENT OBLIGATION AGAINST THE THEN CURRENT FISCAL YEAR APPROPRIATIONS, SO THAT THE RETIRED PAY INVOLVED MAY BE CONSIDERED AS A PROPER OBLIGATION INCURRED DURING THE PRIOR FISCAL YEARS WITHIN THE MEANING OF SECTION 3690, REVISED STATUTES. A FORMER PUBLIC HEALTH SERVICE RESERVE OFFICER RETIRED BEFORE JULY 1, 1946, FOR DISABILITY INCURRED IN LINE OF DUTY IN TIME OF WAR IS ENTITLED, UNDER SECTION 211 (A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944, FOR A PERIOD OF RETIREMENT PRIOR TO JULY 1, 1946, TO RETIRED PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE PAY UPON RETIREMENT; HOWEVER, RETIRED PAY FOR ANY PERIOD SUBSEQUENT TO JULY 1, 1946, SHOULD BE COMPUTED AT THE RATE OF 75 PERCENT OF THE INCREASED RATE OF ACTIVE-DUTY PAY AUTHORIZED BY SECTIONS 4 AND 5 OF THE ACT OF JUNE 29, 1946 (AMENDING THE PAY READJUSTMENT ACT OF 1942).

ASSISTANT COMPTROLLER GENERAL YATES TO THE FEDERAL SECURITY ADMINISTRATOR, NOVEMBER 21, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 25, 1947, REQUESTING A DECISION ON CERTAIN QUESTIONS INVOLVING THE ELIGIBILITY OF DR. GLENN T. SMITH, A FORMER COMMISSIONED OFFICER OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, FOR DISABILITY RETIREMENT.

FROM YOUR LETTER, IT APPEARS THAT DR. SMITH IS SUFFERING FROM TUBERCULOSIS AND THAT THE ESSENTIAL FACTS RELATING TO HIS SERVICE AND HIS DISABILITY AND THE ADMINISTRATIVE ACTION TAKEN ON HIS CASE ARE SUBSTANTIALLY AS INDICATED IN THE FOLLOWING CHRONOLOGICAL SUMMARY:

(A) ON JANUARY 8, 1942, DR. SMITH WAS CALLED TO ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, HIS PHYSICAL EXAMINATION AT THAT TIME, INCLUDING X-RAY PLATES, BEING NEGATIVE FOR PULMONARY TUBERCULOSIS. HE WAS ASSIGNED TO THE UNITED STATES MARINE HOSPITAL, BOSTON, MASSACHUSETTS ( JANUARY 8, 1942 TO APRIL 1, 1943), WHERE HIS DUTIES INCLUDED THE CARE OF TUBERCULOSIS PATIENTS.

(B) ON FEBRUARY 23, 1943, DR. SMITH WAS X-RAYED AND THE X-RAY PLATES OF THAT DATE, LIKE THE EARLIER ONES, WERE NEGATIVE FOR TUBERCULOSIS.

(C) ON APRIL 1, 1943, HE WAS TRANSFERRED TO THE UNITED STATES MARINE HOSPITAL, MOBILE, ALABAMA, WHERE HIS DUTIES AGAIN INCLUDED THE TREATMENT OF TUBERCULOSIS PATIENTS.

(D) ON AUGUST 28, 1943, AN X-RAY EXAMINATION REVEALED A "MINIMAL ACTIVE PULMONARY TUBERCULOSIS" OF DR. SMITH'S LEFT APEX.

(E) ON OCTOBER 25, 1943, HE WAS HOSPITALIZED WITH A DIAGNOSIS OF PULMONARY TUBERCULOSIS AND HE CONTINUED TO RECEIVE MEDICAL CARE UNTIL JANUARY 15, 1944.

(F) ON JANUARY 15, 1944, IT WAS REPORTED THAT DR. SMITH'S TUBERCULOSIS HAD BEEN ARRESTED AND HE WAS RETURNED TO ACTIVE DUTY, REMAINING ON ACTIVE DUTY UNTIL JULY 18, 1945, WITHOUT UNDERGOING ANY FURTHER TREATMENT FOR TUBERCULOSIS.

(G) ON APRIL 1, 1944, DECEMBER 11, 1944, FEBRUARY 3, 1945, AND JULY 12, 1945, FURTHER X-RAY FILMS WERE TAKEN. IN EACH INSTANCE, THE DOCTOR EXAMINING THE FILM REPORTED "ARRESTED MINIMUM PULMONARY TUBERCULOSIS.'

(H) ON JULY 18, 1945, DR. SMITH'S COMMISSION IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE WAS TERMINATED.

(I) IN THE EARLY FALL OF 1946, DR. SMITH REPORTED THAT HE WAS COMPLETELY DISABLED FROM TUBERCULOSIS AND REQUESTED A REVIEW OF HIS CASE BY A LOCAL MEDICAL RETIRING BOARD. SUCH BOARD FOUND DR. SMITH TO BE SUFFERING FROM TUBERCULOSIS OF THE LEFT LUNG AND WAS OF THE OPINION "THAT THIS DISABILITY, NOW CONSIDERED TOTAL, WAS SERVICE CONNECTED.' HOWEVER, IN VIEW OF THE ORIGINAL NEGATIVE REPORT ON THE X-RAYS OF JULY 12, 1945, AND THE FACT THAT DR. SMITH WAS NO LONGER A COMMISSIONED OFFICER AT THE TIME HE REQUESTED RETIREMENT, IT WAS CONCLUDED (APPARENTLY BY THE SAID BOARD OR BY THE PUBLIC HEALTH SERVICE) THAT HIS RETIREMENT WOULD NOT BE AUTHORIZED UNDER THE PUBLIC HEALTH SERVICE ACT (ACT OF JULY 1, 1944, 58 STAT. 682).

(J) IN MARCH, 1947, DR. SMITH'S CASE WAS, AT HIS REQUEST, REVIEWED AGAIN. THE X-RAY FILMS OF APRIL 1, 1944, DECEMBER 11, 1944, FEBRUARY 3, 1945, AND JULY 12, 1945, WERE SUBMITTED TO A CONSULTANT IN ROENTGENOLOGY, WHO, BY ENLARGING CERTAIN PORTIONS OF THE FILMS, DETECTED AREAS OF TUBERCULOSIS INFILTRATION AND REPORTED THAT ALL SUCH FILMS SHOWED A DEFINITE INDICATION OF INFILTRATION OF THE LEFT APEX.

(K) IN VIEW OF THE SAID CONSULTANT'S REPORT, DR. SMITH'S CASE WAS SUBMITTED TO THE CENTRAL RETIRING BOARD OF THE PUBLIC HEALTH SERVICE. THE OPINION OF SUCH BOARD: DR. SMITH HAD LOW-GRADE ACTIVE PULMONARY TUBERCULOSIS AT THE TIME HE WAS SEPARATED FROM THE SERVICE; SUCH DISEASE WAS CONTRACTED IN LINE OF DUTY IN TIME OF WAR; SUCH DISEASE WOULD HAVE WARRANTED RETIREMENT INSTEAD OF SEPARATION FROM THE SERVICE (BY TERMINATION OF COMMISSION) HAD IT BEEN KNOWN TO EXIST AT THE TIME HIS COMMISSION WAS TERMINATED; AND DR. SMITH PRESENTLY IS DISABLED FROM TUBERCULOSIS.

IT IS STATED IN YOUR LETTER THAT THE CENTRAL RETIRING BOARD OF THE PUBLIC HEALTH SERVICE HAS RECOMMENDED THAT STEPS BE TAKEN "TO CORRECT THE ERROR" THROUGH WHICH DR. SMITH WAS SEPARATED (BY TERMINATION OF COMMISSION), RATHER THAN RETIRED, AND "THAT HE BE PLACED ON MEDICAL RETIREMENT AS A RESERVE OFFICER IN THE PUBLIC HEALTH SERVICE.' YOU STATE, FURTHER, THAT THE BOARD'S FINDINGS AND RECOMMENDATIONS HAVE BEEN APPROVED BY THE SURGEON GENERAL AND HAVE BEEN SUBMITTED TO YOU FOR APPROVAL.

CERTAIN MATTERS RESPECTING YOUR DOUBT AS TO THE AUTHORITY FOR THE RETIREMENT OF DR. SMITH, AND YOUR SPECIFIC QUESTIONS ON HIS CASE, ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF AUGUST 16, 1946, TO THIS AGENCY (26 COMP. GEN. 114), WHEREIN IT WAS HELD THAT DR. BROWN, WHO INCURRED A DISABILITY PRIOR TO THE EFFECTIVE DATE OF THIS ACT OF NOVEMBER 11, 1943 ( PUBLIC LAW 184, 78TH CONGRESS), WAS NOT ENTITLED TO RETIREMENT FOR DISABILITY UNDER SECTION 8 OF SAID ACT. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE FACT THAT DR. SMITH ALSO INCURRED HIS INITIAL DISABILITY PRIOR TO NOVEMBER 11, 1943. HOWEVER, THE CASE OF DR. SMITH DIFFERS FROM THAT OF DR. BROWN. AS DR. BROWN WAS RELEASED FROM ACTIVE DUTY PRIOR TO THE EFFECTIVE DATE OF THE PUBLIC HEALTH SERVICE ACT (58 STAT. 682), HIS ELIGIBILITY FOR RETIREMENT WAS GOVERNED BY THE SPECIFIC LANGUAGE OF PUBLIC LAW 184, WHEREAS DR. SMITH WAS DISCHARGED FROM THE SERVICE SUBSEQUENT TO THE EFFECTIVE DATE OF THE PUBLIC HEALTH SERVICE ACT, AND HIS ELIGIBILITY FOR RETIREMENT WOULD BE GOVERNED BY SECTION 211 (A) OF SAID ACT.

WHEREAS THE RETIREMENT OF A RESERVE OFFICER FOR DISABILITY UNDER PUBLIC LAW 184 WAS A MILITARY BENEFIT " BEGINNING WITH THE DATE OF THIS ACT," THE RIGHT TO RETIREMENT FOR DISABILITY UNDER THE PUBLIC HEALTH SERVICE ACT IS NOT A MILITARY BENEFIT BUT IS GRANTED UNDER SECTION 211 (A) FOR A DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR. BECAUSE OF THIS DIFFERENCE BETWEEN THE TWO ACTS IN ESTABLISHING ELIGIBILITY FOR RETIREMENT, YOUR DECISION OF AUGUST 16, 1946, DOES NOT OFFER A CLEAR BASIS FOR EITHER THE APPROVAL OR DISAPPROVAL OF DR. SMITH'S REQUEST FOR RETIREMENT.

IN ORDER TO DETERMINE DR. SMITH'S ELIGIBILITY FOR RETIREMENT YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) IN VIEW OF THE FACT THAT DR. SMITH INITIALLY INCURRED HIS DISABILITY PRIOR TO NOVEMBER 11, 1943, AND THAT HIS COMMISSION WAS TERMINATED ON JULY 18, 1945, IS THE PUBLIC HEALTH SERVICE NOW AUTHORIZED TO RETIRE DR. SMITH UNDER THE PROVISIONS OF THE PUBLIC HEALTH SERVICE ACT?

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

(A) IS THE PUBLIC HEALTH SERVICE AUTHORIZED TO RETIRE DR. SMITH EFFECTIVE AUGUST 1, 1945, THE FIRST DAY OF THE MONTH FOLLOWING THE ACTION TERMINATING HIS COMMISSION?--- OR

(B) IS THE PUBLIC HEALTH SERVICE AUTHORIZED TO RETIRE DR. SMITH PROSPECTIVELY ONLY FROM THE FIRST DAY OF THE MONTH FOLLOWING APPROVAL OF THE RETIREMENT BY THE FEDERAL SECURITY ADMINISTRATOR IN ACCORDANCE WITH SECTION 2.173 OF EXECUTIVE ORDER 9655 APPROVED ON NOVEMBER 14, 1945?

(3) 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 124 AND 549, 79TH CONGRESS, AVAILABLE FOR MAKING RETROACTIVE PAYMENTS OF RETIRED PAY FROM THE EFFECTIVE DATE OF RETIREMENT THROUGH JUNE 30, 1947?

(4) IF DR. SMITH IS OTHERWISE ENTITLED TO RETIREMENT FOR DISABILITY UNDER SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT, ARE WE CORRECT IN ASSUMING THAT THE RATE OF RETIRED PAY WOULD BE 75 PERCENTUM OF THE PAY RECEIVED BY DR. SMITH AT THE TIME OF HIS DISCHARGE ON JULY 18, 1945?

IN THE DECISION OF AUGUST 16, 1946, 26 COMP. GEN. 114, REFERRED TO IN YOUR LETTER, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

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.

SUBSECTIONS (A) AND (F), SECTION 211, PUBLIC HEALTH SERVICE ACT (APPROVED JULY 1, 1944), 58 STAT. 688, 42 U.S.C.A. 212, ARE AS FOLLOWS:

(A) A COMMISSIONED OFFICER OF THE REGULAR CORPS RETIRED FOR DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY, OR A COMMISSIONED OFFICER OF THE RESERVE CORPS RETIRED FOR DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR, SHALL BE ENTITLED, EXCEPT AS PROVIDED IN SUBSECTION (C), TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE PAY AT THE TIME OF RETIREMENT.

(F) COMMISSIONED OFFICERS OF THE RESERVE CORPS, WHILE ON ACTIVE DUTY, SHALL BE DEEMED TO BE OFFICERS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED ( U.S.C., 1940 EDITION, TITLE 5, SECTION 693).

SUBSECTION (A) OF THE SAID SECTION 211, WHILE SPECIFYING A PERCENTAGE RATE TO BE USED IN COMPUTING THE RETIRED PAY OF COMMISSIONED OFFICERS OF "THE RESERVE CORPS RETIRED FOR DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR," DOES NOT EXPRESSLY PROVIDE THAT SUCH RESERVE OFFICERS WHO BECOME DISABLED IN LINE OF DUTY IN TIME OF WAR SHALL BE RETIRED AND, HENCE, CONSIDERING THE LANGUAGE OF SUCH SUBSECTION AND THE PATTERN OF OTHER STATUTORY PROVISIONS RELATING TO RETIREMENT OF VARIOUS CLASSES OF FEDERAL PERSONNEL, MILITARY AND CIVILIAN, IT MIGHT BE EXPECTED THAT SOME OTHER STATUTORY PROVISION WOULD BE FOUND EXPRESSLY AUTHORIZING THE RETIREMENT (AS DISTINGUISHED FROM THE RATE OF RETIRED PAY) OF COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE FOR DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR. WHILE NO SUCH EXPRESS PROVISION HAS BEEN FOUND, SUBSECTION (F) OF THE SAID SECTION 211 HAS THE EFFECT OF MAKING THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, APPLICABLE, GENERALLY, TO COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE DURING PERIODS WHEN SUCH OFFICERS ARE ON ACTIVE DUTY. HENCE, THE LANGUAGE OF THE SAID SUBSECTIONS (A) AND (F) IS INCONCLUSIVE AS TO WHETHER THE CONGRESS INTENDED THAT THE ELIGIBILITY FOR RETIREMENT OF RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE WOULD, IN ALL CASES, BE GOVERNED BY THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT, 41 STAT. 614, AS AMENDED ( TITLE 5 U.S.C.A., CHAPTER 14), OR WHETHER, AS AN EXCEPTION TO THE GENERAL RULE, IT WAS INTENDED THAT THE ELIGIBILITY OF SUCH OFFICERS FOR RETIREMENT "FOR DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR" WOULD BE DETERMINED IN SOME OTHER MANNER.

IT APPEARS THAT THOSE PROVISIONS OF SECTION 211 (A), SUPRA, WHICH FIX THE PERCENTAGE RATE TO BE USED IN COMPUTING THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY, MUST BE CONSIDERED AS IMPLIEDLY AUTHORIZING THE RETIREMENT OF SUCH OFFICERS FOR DISABILITY--- THERE BEING NO EXISTING STATUTORY PROVISION EXPRESSLY AUTHORIZING SUCH DISABILITY RETIREMENTS--- SINCE TO CONCLUDE OTHERWISE WOULD BE TANTAMOUNT TO HOLDING SUCH RETIRED PAY PROVISIONS INEFFECTIVE FOR ANY PURPOSE IN ALL CASES INVOLVING MEMBERS OF THE REGULAR CORPS. IN THIS CONNECTION IT IS NOTED THAT SECTION 215 OF THE PUBLIC HEALTH SERVICE ACT OF 1944, 58 STAT. 690, 42 U.S.C.A. 216, AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS WITH RESPECT TO APPOINTMENT, PROMOTION, RETIREMENT, ETC., OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE AND THAT SECTIONS 2.171 AND 2.184 OF EXECUTIVE ORDER 9655, DATED NOVEMBER 14, 1945 (10 FED. REG. 14128-14129), ISSUED BY VIRTUE OF SUCH AUTHORITY, CONTAIN DETAILED PROVISIONS RELATING TO DISABILITY RETIREMENT AND RETIREMENT PAY OF OFFICERS OF THE REGULAR CORPS AND OF OFFICERS OF THE RESERVE CORPS WHO ARE RETIRED FOR DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR.

THE PUBLIC HEALTH SERVICE ACT OF 1944, SUPRA, IS ENTITLED " AN ACT TO CONSOLIDATE AND REVISE THE LAWS RELATING TO THE PUBLIC HEALTH SERVICE, AND FOR OTHER PURPOSES," AND SECTION 611 THEREOF, 58 STAT. 714, 719, EXPRESSLY REPEALS A NUMBER OF EARLIER STATUTORY PROVISIONS WHICH WERE SUPERSEDED BY SUCH ACT. AMONG SUCH REPEALED PROVISIONS ARE THE PROVISIONS OF THE ACT OF NOVEMBER 11, 1943, SECTION 8 OF WHICH, 57 STAT. 589, HAD THE EFFECT OF ASSIMILATING RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE ON ACTIVE DUTY IN TIME OF WAR TO OFFICERS OF THE ARMY OF THE UNITED STATES (OTHER THAN OFFICERS OF THE REGULAR ARMY) FOR DISABILITY RETIREMENT PURPOSES, THUS AUTHORIZING FOR SUCH RESERVE OFFICERS, IN TIME OF WAR ONLY, RETIREMENT RIGHTS AND BENEFITS EQUAL TO THOSE AUTHORIZED FOR ARMY PERSONNEL BY SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 53 ID. 1079, 10 U.S.C.A. 456. IN THE REPORT OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES (REPORT NO. 1364), ON H.R. 4624, 78TH CONGRESS, WHICH BECAME THE PUBLIC HEALTH ACT OF 1944, IT WAS STATED, RESPECTING SECTION 211, SUPRA, THAT---

UNDER EXISTING REGULATIONS, BASED ON SECTION 1 OF THE ACT OF JULY 1, 1902, AS AMENDED (42 U.S.C. 1), OFFICERS OF THE REGULAR CORPS DISABLED IN LINE OF DUTY ARE PLACED ON "WAITING ORDERS" AT 75 PERCENT OF THEIR ACTIVE PAY, WHICH MEANS BASE PAY PLUS THE LONGEVITY INCREASE, AT THE TIME THEY WERE PLACED ON SUCH ORDERS. THE PUBLIC HEALTH SERVICE ACT OF 1943 ( PUBLIC LAW 184, 78TH CONG.), GIVES THE SAME RIGHTS TO RESERVE OFFICERS DISABLED IN TIME OF WAR. SUBSECTION (A) OF SECTION 211 CONTAINS THIS AND CHANGES "WAITING ORDERS" TO RETIREMENT. * * *

SUBSECTION (F) FOLLOWS A RECENT INTERPRETATION OF EXISTING LAW TO THE EFFECT THAT RESERVE OFFICERS ON ACTIVE DUTY ARE SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT.

IN THE SAME REPORT, WITH REFERENCE TO THE FIRST PARAGRAPH OF SECTION 212 ( PUBLIC HEALTH SERVICE ACT OF 1944, 58 STAT. 689), IT WAS STATED THAT---

THIS PARAGRAPH DIFFERS FROM SECTION 8 (A) (1) OF PUBLIC LAW 184 (ACT OF NOVEMBER 11, 1943) IN ONLY A FEW RESPECTS * * * RETIREMENT AND ALLOWANCES FOR UNIFORMS, WHICH WERE INCLUDED IN PUBLIC LAW 184, WERE NOT INCLUDED AS BENEFITS IN THIS SECTION SINCE THEY ARE PROVIDED FOR SPECIFICALLY IN SECTIONS 211, 213 AND 607 OF THE BILL.

H.R. 4624, WHICH BECAME THE PUBLIC HEALTH SERVICE ACT OF 1944, WAS INTRODUCED BY THE HONORABLE ALFRED L. BULWINKLE, CHAIRMAN OF A SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES, ON APRIL 18, 1944, AND WAS A REVISED SUBSTITUTE FOR AN EARLIER BILL, H.R. 3379, 78TH CONGRESS, ENTITLED " A BILL TO CODIFY THE LAWS RELATING TO THE PUBLIC HEALTH SERVICE, AND FOR OTHER PURPOSES," ON WHICH SUCH SUBCOMMITTEE HAD HELD EXTENSIVE HEARINGS IN MARCH 1944. DURING SUCH HEARINGS MR. ALANSON W. WILCOX, ASSISTANT GENERAL COUNSEL, FEDERAL SECURITY AGENCY, SPOKE AS FOLLOWS (QUOTING FROM PAGE 108 OF HEARINGS OF MARCH 7, 1944):

THE EFFECT OF PUBLIC LAW 184 IS TO GIVE RESERVE OFFICERS ON ACTIVE DUTY IN TIME OF WAR THE SAME RIGHTS OF RETIREMENT FOR DISABILITY AS REGULAR OFFICERS. THIS WE RECOMMEND BE CONTINUED.

WITH RESPECT TO RETIREMENT OF RESERVE OFFICERS IN TIME OF PEACE, HOWEVER, AND TO RETIREMENT FOR AGE EVEN IN TIME OF WAR, IT SEEMS FAIRLY CLEAR THAT SECTION 8 OF PUBLIC LAW 184 DID NOT CONFER ANY NEW RIGHTS ON RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE. IN THE MATTER OF RETIREMENT FOR AGE, RESERVE OFFICERS HAVE NO MILITARY RIGHTS. IN TIME OF PEACE THAT IS CLEARLY TRUE, AND WE THINK THAT PUBLIC LAW 184 DID NOT CHANGE IT IN TIME OF WAR BECAUSE THE ARMY GRANTS RESERVE OFFICERS NO OLD-AGE RETIREMENT BENEFITS.

IN FEBRUARY OF 1942 IT WAS DETERMINED THAT RESERVE OFFICERS ON ACTIVE DUTY WERE COVERED BY THE CIVIL-SERVICE RETIREMENT SYSTEM. * * * AND SINCE THAT TIME THEY HAVE BEEN MAKING THE 5 PERCENT CONTRIBUTION. WHILE THIS CONCLUSION REPRESENTS A DEPARTURE FROM ARMY PRACTICE, WE SHOULD BE GLAD TO SEE COVERAGE UNDER THE RETIREMENT SYSTEM CONTINUED, AND ACCORDINGLY WE RECOMMEND THAT EXPLICIT PROVISION TO THAT EFFECT BE INCLUDED IN THE BILL.

IN THE LIGHT OF THE FOREGOING, IT SEEMS APPARENT THAT IT WAS THE INTENTION OF THE CONGRESS TO CONTINUE, WITHOUT SUBSTANTIAL MODIFICATION, THE AUTHORITY THERETOFORE EXISTING (BY REASON OF THE ASSIMILATING PROVISIONS OF THE ACT OF NOVEMBER 11, 1943, AND THE PROVISIONS OF THE ACT OF APRIL 3, 1939, AS AMENDED, SUPRA), TO RETIRE PUBLIC HEALTH SERVICE RESERVE OFFICERS FOR PHYSICAL DISABILITY FROM DISEASE OR INJURY INCURRED IN LINE OF DUTY IN TIME OF WAR, AND THAT THE PROVISIONS OF SECTION 211 (A), SUPRA, PROPERLY ARE TO BE CONSIDERED AS IMPLIEDLY AUTHORIZING THE RETIREMENT OF SUCH RESERVE OFFICERS FOR WARTIME DISABILITY, NOT UNDER THE DISABILITY RETIREMENT PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, BUT UNDER THE CONDITIONS AND SUBJECT TO THE LIMITATIONS WHICH WERE APPLICABLE TO RETIREMENTS OF SUCH OFFICERS UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF NOVEMBER 11, 1943.

IN THE DECISION OF AUGUST 16, 1946, SUPRA, THERE WAS INVOLVED THE CASE OF AN OFFICER WHO SUFFERED AN "ACUTE CARDIAC ACCIDENT" PRIOR TO NOVEMBER 11, 1943, AND WHO WAS "TOTALLY AND PERMANENTLY" DISABLED FROM THE TIME HE SUFFERED SUCH ACCIDENT, WHEREAS, IT APPEARS THAT DR. SMITH, THE OFFICER HERE INVOLVED, WAS, IN FACT, PHYSICALLY ABLE TO AND DID PERFORM DUTIES ASSIGNED TO HIM AFTER NOVEMBER 11, 1943, IT BEING INDICATED THAT ON JANUARY 15, 1944, HE WAS RELEASED FROM THE HOSPITAL AS PHYSICALLY QUALIFIED FOR ACTIVE DUTY, THAT HE RETURNED TO ACTIVE DUTY ON SUCH DATE, AND THAT HE ACTUALLY PERFORMED HIS ASSIGNED DUTIES FOR 18 MONTHS "IN TIME OF WAR" AFTER SUCH RELEASE AND RETURN, A YEAR OF SUCH DUTY HAVING BEEN SUBSEQUENT TO THE EFFECTIVE DATE OF THE SAID PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944. IN VIEW OF SUCH CIRCUMSTANCES, THE PRINCIPLES OF THE SAID DECISION OF AUGUST 16, 1946, DO NOT APPEAR APPLICABLE AND WHAT DOUBT THERE MAY BE SHOULD BE RESOLVED IN DR. SMITH'S FAVOR IN CONSONANCE WITH THE BENEFICIAL PURPOSES OF THE APPLICABLE STATUTORY PROVISIONS, PARTICULARLY SINCE THE CONCLUSION IS NOT REQUIRED THAT HIS PRESENT ,DISABILITY FROM DISEASE OR INJURY" WAS INCURRED PRIOR TO NOVEMBER 11, 1943, IT NOT BEING AFFIRMATIVELY ESTABLISHED THAT SUCH DISABILITY RESULTED FROM THE INITIAL OCCURRENCE OF THE DISEASE RATHER THAN FROM A RECURRENCE OF THE DISEASE DURING THE LAST 18 MONTHS OF HIS ACTIVE DUTY.

RESPECTING THE EFFECT OF THE TERMINATION OF DR. SMITH'S COMMISSION ON HIS RETIREMENT RIGHTS, YOU HAVE CITED DECISION OF THIS OFFICE DATED MARCH 20, 1944, 23 COMP. GEN. 700, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

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 OF 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.

THE RULE ANNOUNCED IN OPINIONS OF THE ATTORNEY GENERAL AND DECISIONS OF THE COURTS, WITH RESPECT TO PERSONS SEEKING RETIREMENT AFTER TERMINATION OF THEIR STATUS AS COMMISSIONED OFFICERS OF THE REGULAR ESTABLISHMENTS OF THE MILITARY AND NAVAL SERVICES, IS TO THE EFFECT THAT SUCH PERSONS, HAVING CEASED TO BE OFFICERS, MAY NOT BE PLACED ON THE RETIRED LIST UNDER STATUTORY PROVISIONS AUTHORIZING THE RETIREMENT OF "OFFICERS.' 14 OP. ATTY. GEN. 506; 17 ID. 9; 19 ID. 202; MILLER V. UNITED STATES, 19 C.1CLS. 338; MCBLAIR V. UNITED STATES, 19 C.1CLS. 528; MCMULLEN V. UNITED STATES, 100 C.1CLS. 323. HOWEVER, THIS OFFICE HAS RECOGNIZED THAT, IN MATTERS RELATING TO RETIREMENT, THERE ARE IMPORTANT DISTINCTIONS BETWEEN THE CASES OF OFFICERS OF THE REGULAR ESTABLISHMENTS AND RESERVE OFFICERS OR OFFICERS OF THE ARMY OF THE UNITED STATES. IN THAT CONNECTION, SEE DECISION OF OCTOBER 19, 1943, 23 COMP. GEN. 284, WHEREIN IT WAS STATED (QUOTING FROM PAGE 286):

* * * 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 BY 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. * * *

SINCE THIS OFFICE HAS TAKEN THE POSITION THAT RETIREMENT PAY AWARDED UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, SUPRA, IS IN THE NATURE OF A PENSION, IT HAS NOT OBJECTED TO RETROACTIVE AWARDS OF SUCH RETIREMENT PAY (26 COMP. GEN. 711, 715/--- NOTWITHSTANDING THAT THE RETIREMENT OF AN OFFICER OF A REGULAR ESTABLISHMENT MAY NOT BE MADE EFFECTIVE RETROACTIVELY--- IN VIEW OF THE PRINCIPLE APPLICABLE TO PENSIONS STATED IN 3 COMP. GEN. 41, 43, AS FOLLOWS:

PARTICULAR ATTENTION IS DIRECTED TO THE GENERALLY ACCEPTED AND ESTABLISHED PRINCIPLE THAT CORRECTION OF AN AWARD CAN NOT BE SO MADE RETROACTIVELY AS TO DISTURB VESTED RIGHTS UNDER A RULING OR AWARD MADE BY COMPETENT AUTHORITY, ESPECIALLY UPON A CHANGE OF JUDGMENT OR OPINION AS TO THE DEGREE OF PERMANENCE OF THE CONDITION OF DISABILITY. ANY CHANGE IN THE AWARD UPON REVIEW ENDING OR DIMINISHING THE COMPENSATION PREVIOUSLY AWARDED IS EFFECTIVE ONLY FROM THE DATE OF THE CHANGE, PAST PAYMENTS NOT TO BE DISTURBED, BUT CHANGES IN AWARDS INCREASING COMPENSATION, OR ALLOWING COMPENSATION PREVIOUSLY REFUSED, REDUCED, OR DISCONTINUED MAY BE RETROACTIVE TO THE DATE SUCH DEGREE OF DISABILITY BEGAN BUT NOT EARLIER THAN DATE OF DISCHARGE OR RESIGNATION OF THE BENEFICIARY FROM THE MILITARY OR NAVAL SERVICE. 2 COMP. GEN. 462.

BY ANALOGY, IT WOULD APPEAR THAT THE PRINCIPLES SET FORTH ABOVE JUSTIFY THE HOLDING THAT THE TERMINATION OF DR. SMITH'S RESERVE COMMISSION, BASED ON AN ERRONEOUS DETERMINATION AS TO HIS PHYSICAL CONDITION, DOES NOT MAKE HIM INELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF SUBSECTION (A), SECTION 211, PUBLIC HEALTH SERVICE ACT OF 1944, SUPRA. CF. B-67921, OCTOBER 8, 1947, 27 COMP. GEN. 186. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SECTION 2.173 OF EXECUTIVE ORDER 9655, DATED NOVEMBER 14, 1945, ISSUED BY VIRTUE OF THE AUTHORITY VESTED IN THE PRESIDENT BY SECTION 215 OF THE PUBLIC HEALTH SERVICE ACT OF 1944, 58 STAT. 690, PROVIDES AS FOLLOWS:

RETIREMENT SHALL BE EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE EXPIRATION OF LEAVE ACCUMULATED AS OF THE DATE OF THE APPROVAL BY THE ADMINISTRATOR OF A FINDING THAT THE OFFICER SHOULD BE RETIRED PURSUANT TO THESE REGULATIONS OR WITH RESPECT TO AN OFFICER OF THE RESERVE CORPS TRANSFERRED TO INACTIVE DUTY AFTER JULY 1, 1944, BUT BEFORE THE DATE OF THE PROMULGATION OF THESE REGULATIONS, ON SUCH EARLIER DATE AS MAY BE PRESCRIBED BY THE ADMINISTRATOR.

SINCE DR. SMITH'S ACTIVE DUTY STATUS AND HIS COMMISSION WERE TERMINATED IN JULY, 1945, IT REASONABLY MAY BE CONSIDERED THAT HE WAS "TRANSFERRED TO INACTIVE DUTY AFTER JULY 1, 1944, BUT BEFORE THE DATE OF THE PROMULGATION OF THESE REGULATIONS," WITHIN THE MEANING OF THE PROVISIONS OF SECTION 2.173, QUOTED ABOVE. HENCE, IT APPEARS THAT THE EFFECTIVE DATE OF HIS RETIREMENT IS A MATTER TO BE DETERMINED BY THE FEDERAL SECURITY ADMINISTRATOR PURSUANT TO SUCH REGULATION. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

FUNDS APPROPRIATED FOR THE PUBLIC HEALTH SERVICE IN THE FEDERAL SECURITY AGENCY APPROPRIATION ACT, 1946 ( PUBLIC LAW 124, 79TH CONGRESS, 59 STAT. 361, 370) AND IN THE FEDERAL SECURITY AGENCY APPROPRIATION ACT, 1947 ( PUBLIC LAW 549, 79TH CONGRESS, 60 STAT. 679, 692), EXPRESSLY ARE MADE AVAILABLE FOR "RETIRED PAY OF REGULAR AND RESERVE COMMISSIONED OFFICERS," AND THE UNEXPENDED BALANCES OF SUCH APPROPRIATIONS STILL ARE AVAILABLE FOR PAYMENT OF PROPER OBLIGATIONS INCURRED DURING THE FISCAL YEARS 1946 AND 1947 (31 U.S.C. 713). HENCE, THE ANSWER TO YOUR THIRD QUESTION DEPENDS UPON WHETHER OR NOT, IN THE EVENT DR. SMITH'S RETIREMENT IS MADE EFFECTIVE RETROACTIVELY, HIS RETIREMENT PAY FOR SUCH PRIOR FISCAL YEARS MAY BE CONSIDERED AS A PROPER OBLIGATION INCURRED DURING THOSE YEARS WITHIN THE MEANING OF SECTION 3690, REVISED STATUTES, 31 U.S.C. 712, WHICH IS AS FOLLOWS:

EXCEPT AS OTHERWISE PROVIDED BY LAW, ALL BALANCES OF APPROPRIATIONS CONTAINED IN THE ANNUAL APPROPRIATION BILLS AND MADE SPECIFICALLY FOR THE SERVICE OF ANY FISCAL YEAR, AND REMAINING UNEXPENDED AT THE EXPIRATION OF SUCH FISCAL YEAR, SHALL ONLY BE APPLIED TO THE PAYMENT OF EXPENSES PROPERLY INCURRED DURING THAT YEAR, OR TO THE FULFILLMENT OF CONTRACTS PROPERLY MADE WITHIN THAT YEAR; AND BALANCES NOT NEEDED FOR SUCH PURPOSES SHALL BE CARRIED TO THE SURPLUS FUND. THIS SECTION, HOWEVER, SHALL NOT APPLY TO APPROPRIATIONS KNOWN AS PERMANENT OR INDEFINITE APPROPRIATIONS.

IN VIEW OF THE DETERMINATION THAT DR. SMITH WAS AFFLICTED WITH TUBERCULOSIS AT THE TIME HIS COMMISSION WAS TERMINATED AND SINCE IT NOW APPEARS THAT HE WOULD HAVE BEEN RETIRED DURING THE FISCAL YEAR 1946 HAD THE FACTS RESPECTING HIS PHYSICAL CONDITION BEEN REALIZED AT THAT TIME, IT REASONABLY MAY BE CONCLUDED THAT THE CURRENT AUTHORITATIVE APPROVAL OF HIS RETIREMENT AS OF SUCH TIME WOULD RELATE BACK TO THAT TIME AND WOULD HAVE THE EFFECT OF PERFECTING THE LATENT OBLIGATION AGAINST THE THEN CURRENT APPROPRIATION. ACCORDINGLY, YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE. THE ASSUMPTION STATED IN YOUR FOURTH QUESTION IS CORRECT INSOFAR AS IT RELATES TO RETIRED PAY FOR ANY PERIOD PRIOR TO JULY 1, 1946. HOWEVER, RETIRED OFFICERS OF BOTH THE REGULAR CORPS AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE WERE ENTITLED TO AN INCREASE IN RETIRED PAY EFFECTIVE JULY 1, 1946, UNDER THE PROVISIONS OF SECTIONS 4 AND 5 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345 (AMENDING THE PAY READJUSTMENT ACT OF 1942), AND, ASSUMING THAT DR. SMITH'S RETIREMENT WILL BE APPROVED, HIS RETIRED PAY FOR ANY PERIOD SUBSEQUENT TO JULY 1, 1946, SHOULD BE COMPUTED AS 75 PERCENT OF THE INCREASED RATE OF ACTIVE DUTY PAY AUTHORIZED SINCE JULY 1, 1946, BY REASON OF THE PROVISIONS OF THE SAID SECTION 4, FOR AN OFFICER OF CORRESPONDING GRADE AND LENGTH OF SERVICE. SEE 26 COMP. GEN. 254.