B-68913, MARCH 8, 1948, 27 COMP. GEN. 495

B-68913, MARCH 8, 1948, 27 COMP. GEN. 495

RETIREMENT - ARMY ENLISTED PERSONNEL PHYSICALLY DISABLED AFTER TWENTY YEARS' SERVICE - EFFECTIVE DATE THE UNQUALIFIED DISCHARGE OF A FORMER REGULAR ARMY ENLISTED MAN WITH TWENTY YEARS' SERVICE FOR PERMANENT PHYSICAL DISABILITY INCURRED IN LINE OF DUTY MAY NOT BE REGARDED AS INVALID MERELY BECAUSE THE OFFICER WHO EFFECTED THE DISCHARGE MAY NOT HAVE BEEN AWARE, AT THE TIME, OF THE ACT OF JUNE 30, 1941, AUTHORIZING THE RETIREMENT WITH PAY OF SIMILARLY SITUATED ENLISTED MEN, AND, THEREFORE, THE EFFECTIVE DATE OF THE FORMER ENLISTED MAN'S RETIREMENT UNDER SECTION 2 OF THE ACT AS AMENDED SHOULD BE GOVERNED FOR RETIRED PAY PURPOSES BY THE DATE OF THE APPROVAL BY COMPETENT AUTHORITY OF HIS RETIREMENT, AND BY THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23, 1930, AND MAY NOT BE A DATE PRIOR TO THE DATE OF SUCH APPROVAL.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, MARCH 8, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 15, 1947, WITH ENCLOSURE, RESPECTING THE PROPOSED RETIREMENT FOR DISABILITY OF A FORMER ENLISTED MAN OF THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, AS AMENDED BY THE ACT OF MAY 4, 1945, 59 STAT. 135, 10 U.S.C., SUPP. V, 939, AND REQUESTING A DECISION ON CERTAIN QUESTIONS CONCERNING HIS PAY RIGHTS.

YOU STATE THAT ON JULY 9, 1941, SUBSEQUENT TO THE ENACTMENT OF OF THE SAID ACT OF JUNE 30, 1941, BUT PRIOR TO THE DISSEMINATION OF ITS PROVISIONS TO FIELD INSTALLATIONS, THE MAN INVOLVED WAS DISCHARGED "BY REASON OF CERTIFICATE OF DISABILITY FOR DISCHARGE DUE TO PSYCHONEUROSIS, NEURASTHENIA, CAUSE UNDETERMINED ( LINE OF DUTY: YES), AFTER HAVING COMPLETED 23 YEARS AND 29 DAYS OF ACTIVE SERVICE IN THE REGULAR ARMY.'

THERE WAS RECEIVED WITH YOUR LETTER A COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, DATED JUNE 6, 1947, HOLDING THAT THE SAID DISCHARGE WAS EXECUTED IN VIOLATION OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1941, SUPRA, AND, THEREFORE, WAS VOID AB INITIO AND THAT "CORRECTIVE ORDERS" PROPERLY MAY BE ISSUED PLACING THE MAN ON THE RETIRED LIST "AS OF THE DATE HE BECAME ENTITLED THERETO BY REASON OF SERVICE AND DISABILITY.' THE JUDGE ADVOCATE GENERAL SUGGESTED, HOWEVER, THAT AS THE MATTER "NECESSARILY INVOLVES THE EXPENDITURE OF PUBLIC FUNDS," IT SHOULD "BE REFERRED TO THE CHIEF OF FINANCE FOR AN APPROPRIATE SUBMISSION TO THE COMPTROLLER GENERAL.'

THE QUESTIONS PRESENTED FOR DECISION, AS THEY APPEAR IN YOUR LETTER, ARE AS FOLLOWS:

1. WHEN THE NECESSARY ADMINISTRATIVE ACTION HAS BEEN TAKEN TO VOID THE DISCHARGE AND THE ENLISTED MAN IS PLACED ON THE RETIRED LIST, WILL HE BE ENTITLED TO RETIRED PAY FROM 1 AUGUST 1941, IN VIEW OF THE PROVISIONS OF PARAGRAPH 6, AR 35-2640, THAT RETIREMENT SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, OR

2. WILL HE BE ENTITLED TO RETIRED PAY, AS PROVIDED FOR IN THE ACT OF 30 JUNE 1941, SUPRA, FROM 10 JULY 1941?

3. IF 1 ABOVE IS ANSWERED IN THE AFFIRMATIVE, WHAT IS THE STATUS OF THE ENLISTED MAN WITH REFERENCE TO PAY AND ALLOWANCES FOR THE PERIOD 10 JULY 1941 TO 31 JULY 1941, INCLUSIVE?

SECTION 2 AND 3 OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, SUPRA, AS ORIGINALLY ENACTED, PROVIDED AS FOLLOWS:

SEC. 2. AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE PLACED ON THE RETIRED LIST.

SEC. 3. WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF THE NEXT PRECEDING SECTION HE SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT PLUS A MONEY ALLOWANCE OF $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND &6.25 PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT: PROVIDED, THAT THE MONEY ALLOWANCES OF ENLISTED MEN OF THE PHILIPPINE SCOUTS PLACED ON THE RETIRED LIST UNDER THIS ACT SHALL BE THE SAME AS THOSE HERETOFORE OR FROM TIME TO TIME HEREAFTER PRESCRIBED BY THE SECRETARY OF WAR UNDER EXISTING LAW FOR ENLISTED MEN OF THAT ORGANIZATION RETIRED AFTER THIRTY YEARS OF SERVICE.

SECTION 6 OF SUCH ACT, 55 STAT. 395, IS AS FOLLOWS:

THE ADMINISTRATION OF THIS ACT SHALL BE UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE.

THE ACT OF MAY 4, 1945, 59 STAT. 135, SUPRA, AMENDED THE ABOVE QUOTED SECTION 2 BY ADDING AT THE END THEREOF THE FOLLOWING:

PROVIDED, THAT THIS ACT SHALL APPLY TO ALL FORMER ENLISTED MEN OF THE REGULAR ARMY AND THE PHILIPPINE SCOUTS WHO HAVE SERVED FOR TWENTY YEARS OR MORE, AND WHO WERE HONORABLY DISCHARGED THEREFROM BY REASON OF BECOMING PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY: PROVIDED FURTHER, THAT ANY FORMER ENLISTED MAN PLACED UPON THE RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF THE FOREGOING PROVISO SHALL NOT BE ENTITLED TO RECEIVE RETIREMENT PAY FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF THIS AMENDMENT.

SECTION 2 DOES NOT CONTAIN ANY PROHIBITION AGAINST THE DISCHARGE OF AN ENLISTED MAN FOR PHYSICAL DISABILITY; IT IS NOT SELF-EXECUTING, AND IT DOES NOT CONFER ON ANY ENLISTED MAN A VESTED RIGHT TO BE RETIRED. SEE 25 COMP. GEN. 626, 630, AND COMPARE 4 COMP. GEN. 260. WHEN READ TOGETHER, SECTIONS 2 AND 6 OF THE ACT, SUPRA, CLEARLY CONTEMPLATE (1) THE ISSUANCE OF REGULATIONS BY THE SECRETARY OF THE ARMY TO SUPPLEMENT THE STATUTORY AUTHORIZATION FOR THE RETIREMENT OF REGULAR ARMY ENLISTED MEN WHO HAVE HAD MILITARY SERVICE OF 20 YEARS OR MORE AND WHO HAVE BECOME "PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY," (2) THE INVESTIGATION OR EXAMINATION OF THE CASE OF EVERY REGULAR ARMY ENLISTED MAN WHO IS A CANDIDATE FOR DISABILITY RETIREMENT WITH A VIEW TO DETERMINING WHETHER OR NOT SUCH CANDIDATE HAS BECOME ,PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY RETIREMENT UNDER THE STATUTE AND THE APPLICABLE REGULATIONS, AND (3) AS TO EVERY CASE WHEREIN DISABILITY RETIREMENT OF AN ENLISTED MAN OF THE REGULAR ARMY IS PROPOSED OR RECOMMENDED, THE APPROVAL OR DISAPPROVAL BY COMPETENT AUTHORITY OF THE RETIREMENT OF THE INDIVIDUAL CONCERNED. THE ACTION THUS CONTEMPLATED WOULD HAVE TO BE TAKEN BEFORE ANY MAN COULD ACQUIRE A VESTED RIGHT TO RETIREMENT PAY.

APPARENTLY, NO SUCH ACTION WAS TAKEN PRIOR TO JULY 9, 1941, OR HAS BEEN TAKEN SINCE THAT TIME, IN THE CASE OF THE ENLISTED MAN HERE INVOLVED, IT APPEARING THAT HE WAS DISCHARGED, WITHOUT QUALIFICATION, BY COMPETENT AUTHORITY ON JULY 9, 1941, CONSIDERED HIMSELF AS SEPARATED FROM THE MILITARY SERVICE ON THAT DATE, AND WAS CONSIDERED AND TREATED BY THE MILITARY AUTHORITIES AS SO SEPARATED.

IT IS AN ESTABLISHED RULE THAT A DISCHARGE FROM THE MILITARY SERVICE, ONCE VALIDLY ISSUED BY COMPETENT AUTHORITY, LEGALLY MAY NOT BE REVOKED UNLESS IT WAS PROCURED THROUGH FRAUD OR MISREPRESENTATION. 4 COMP. GEN. 260; ID. 773; 21 ID. 927, 928; 23 ID. 419, 420; 26 ID. 40, 45. THERE IS NO SUGGESTION THAT THERE WAS ANY FRAUD OR MISREPRESENTATION IN CONNECTION WITH THE DISCHARGE HERE INVOLVED AND SINCE SUCH DISCHARGE WAS NOT PROHIBITED BY LAW AND DID NOT AFFECT ANY VESTED RIGHT OF THE MAN CONCERNED, IT MAY NOT BE CONSIDERED AS INVALID MERELY BECAUSE THE OFFICER WHO EFFECTED IT MAY NOT HAVE BEEN AWARE, AT THE TIME, OF THE EXISTENCE OF AUTHORITY FOR PROCEEDINGS WHICH, IF FOLLOWED, MIGHT HAVE LED TO SOME DIFFERENT RESULT. HIS CONNECTION, SEE DECISION OF THIS OFFICE DATED JANUARY 24, 1945 (A-634, A-19023, A 29576), WHICH IS, IN PART, AS FOLLOWS:

THERE IS NO SHOWING THAT CAPTAIN MARSHALL EXERCISED ANY ELECTION TO BE RETIRED AS A WARRANT OFFICER INSTEAD OF BEING DISCHARGED WITH ONE YEAR'S PAY PURSUANT TO THE TERMS OF THE ACT, OR THAT, IF ANY SUCH ELECTION WAS ATTEMPTED, IT WAS APPROVED, OR THAT THE OFFICER CONTEMPORANEOUSLY CLAIMED A RIGHT TO RETIREMENT, FOR PHYSICAL DISABILITY, OR OTHERWISE, OR DID AUGHT THAN ACQUIESCE IN BEING DISCHARGED. HOWEVER THAT MAY BE, IT APPEARS FROM THE REPORT OF THE ADJUTANT GENERAL THAT HE ACTUALLY WAS DISCHARGED FROM THE ARMY DECEMBER 15, 1922, PURSUANT TO THE RECOMMENDATION OF THE BOARD OF OFFICERS, AS PROVIDED BY THE STATUTE, AFTER CONSIDERATION OF HIS RECORD AND THE ATTENDANT FACTS AND CIRCUMSTANCES. HAVING BEEN DISCHARGED, HE NO LONGER WAS IN THE ARMY, IRRESPECTIVE OF WHAT ALTERNATIVE ACTION MIGHT HAVE BEEN TAKEN AT THE TIME, AND THE LAW HAS BEEN LONG SETTLED THAT WHEN AN OFFICER IS ONCE DISCHARGED OR DISMISSED BY COMPETENT AUTHORITY, HE CAN REGAIN HIS STATUS ONLY BY A NEW AND VALID APPOINTMENT. SEE MIMMACK V. UNITED STATES, 97 U.S. 426; BLAKE V. UNITED STATES, 103 U.S. 227; WOOD V. UNITED STATES, 107 U.S. 414; UNITED STATES V. CORSON, 114 U.S. 619; WALLACE V. UNITED STATES, 55 C.1CLS. 396.

CF. DECISION OF THIS OFFICE DATED DECEMBER 9, 1947, B-64080, WHEREIN IT WAS STATED THAT:

* * * CONCEIVABLY, RETIREMENT AS A NURSE LEGALLY COULD FOLLOW INACTIVE SERVICE AS A NURSE, BUT WHERE, AS HERE, THE WOMAN HAD BEEN COMPLETELY SEPARATED FROM THE SERVICE, AN ANNOUNCEMENT SUCH AS CONTAINED IN THE PAPER DATED JULY 31, 1946, IN THE NATURE OF AN INTERPRETATION OF THE BOARD'S REPORT STATED TO HAVE BEEN APPROVED MORE THAN THREE YEARS PREVIOUSLY AND UNDER WHICH THE WOMAN'S DISCHARGE WAS EFFECTED, CANNOT LAWFULLY BE ACCEPTED FOR RETIREMENT PAY PURPOSES SUBSEQUENT TO DISCHARGE. SEE MILLER V. UNITED STATES, 19 C.CLS. 338; 14 OP.ATTY.GEN. 506; 17 ID. 9; 19 ID. 202. IF IT BE A FACT THAT THE BOARD'S REPORT DID NOT FIND NURSE YORK ENTITLED TO RETIREMENT INCIDENT TO A PHYSICAL INCAPACITY INCURRED IN LINE OF DUTY, THE ANNOUNCEMENT INTERPRETING THE FINDING TO BE FINDING OF DISABILITY INCURRED IN LINE OF DUTY WOULD NOT IN ANY EVENT, IT SEEMS TO ME, MEET THE REQUIREMENTS OF THE STATUTES FOR PURPOSES OF RETIREMENT PAY. AS PREVIOUSLY STATED, THE WOMAN WAS DISCHARGED AND THE ANNOUNCEMENT DID NOT REINSTATE HER AS A NURSE IN THE MILITARY SERVICE.

ACCORDINGLY, ON THE PRESENT RECORD, I AM CONSTRAINED TO HOLD THAT THE DISCHARGE OF THE ENLISTED MAN HERE INVOLVED WAS A VALID ONE AND THAT IT OPERATED TO SEPARATE HIM FOR THE MILITARY SERVICE, ABSOLUTELY AND COMPLETELY, ON JULY 9, 1941. HENCE, ANY CURRENT DETERMINATION RESPECTING HIS RIGHT TO RETIREMENT AND RETIRED PAY APPARENTLY MUST BE MADE ON THE BASIS THAT HE IS, AND SINCE JULY 10, 1941, HAS BEEN, A FORMER ENLISTED MAN OF THE REGULAR ARMY AND THAT, AS SUCH, HE WAS NOT ELIGIBLE FOR DISABILITY RETIREMENT PRIOR TO THE DATE OF ENACTMENT OF THE AMENDATORY ACT OF MAY 4, 1945, SUPRA. SUCH AMENDATORY ACT EXTENDED THE PROVISIONS OF SECTION 2 OF THE 1941 ACT, SUPRA, SO AS TO AUTHORIZE THE RETIREMENT OF "ALL FORMER ENLISTED MEN OF THE REGULAR ARMY * * * WHO HAVE SERVED FOR TWENTY YEARS OR MORE, AND WHO WERE HONORABLY DISCHARGED THEREFROM BY REASON OF BECOMING PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.' HOWEVER, SUCH AMENDATORY ACT, LIKE THE SECTION WHICH IT AMENDED, DOES NOT AUTOMATICALLY CONFER A RETIRED STATUS ON ANY MAN AND DOES NOT AUTHORIZE ANY RETIREMENT TO BE MADE EFFECTIVE RETROACTIVELY. HENCE, ANY ACTION NOW TAKEN ON THE PENDING REQUEST OF THE FORMER ENLISTED MAN HERE INVOLVED TO BE PLACED ON THE RETIRED LIST SHOULD BE CONSISTENT WITH THE ESTABLISHED RULE THAT THE EFFECTIVE DATE OF THE RETIREMENT OF A MEMBER OF THE REGULAR ARMY IS GOVERNED BY THE DATE OF THE APPROVAL BY COMPETENT AUTHORITY OF HIS RETIREMENT, AND BY THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, AND MAY NOT BE A DATE PRIOR TO THE DATE OF SUCH APPROVAL. SEE 25 COMP. GEN. 663, AND DECISIONS CITED THEREIN.

IN VIEW OF THE FOREGOING, IT IS NOT NECESSARY TO GIVE A SPECIFIC ANSWER, AT THIS TIME, TO THE QUESTIONS PRESENTED IN YOUR LETTER.