B-84258, APRIL 6, 1949, 28 COMP. GEN. 557

B-84258, APRIL 6, 1949, 28 COMP. GEN. 557

ACTIVE DUTY AND RETIRED PAY - EFFECT OF REVIEW OF FORMER NAVAL RESERVE OFFICER'S RELEASE FOR PHYSICAL DISABILITY AN OFFICER OF THE NAVAL RESERVE WHO WAS RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY BY REASON OF THE FINDINGS OF BOARDS OF MEDICAL SURVEY AND SUBSEQUENTLY DISCHARGED, IS ENTITLED UPON REVIEW OF SAID FINDINGS UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, TO BE RETIRED WITH PAY IF, AS A RESULT OF SUCH REVIEW, RETIREMENT IS APPROVED BY COMPETENT AUTHORITY; HOWEVER, SUCH FORMER OFFICER COULD NOT BE "RECALLED" TO ACTIVE DUTY SO AS TO BE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES UNLESS HE IS REAPPOINTED IN THE NAVAL RESERVE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 6, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 26, 1949, REQUESTING DECISION ON TWO QUESTIONS AS FOLLOWS:

(1) MAY A FORMER OFFICER OF THE UNITED STATES NAVAL RESERVE WHO WAS ENTIRELY SEPARATED FROM THE SERVICE RECEIVE RETIRED PAY PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED (38 U.S.C. 693I/?

(2) IF THE FIRST QUESTION BE ANSWERED IN THE AFFIRMATIVE, WOULD SUCH FORMER OFFICER BE ENTITLED TO RECEIVE FULL PAY AND ALLOWANCES IN THE EVENT THAT HE IS RECALLED TO ACTIVE DUTY?

IN THE PARTICULAR CASE PRESENTED IT APPEARS THAT LIEUTENANT COMMANDER FRANCIS G. TONREY, MEDICAL CORPS, U.S. NAVAL RESERVE, REPORTED FOR ACTIVE DUTY ON OCTOBER 26, 1942; THAT HE WAS ADMITTED TO THE SICK LIST ON APRIL 15, 1943, AND THAT THEREAFTER HE WAS TRANSFERRED TO A NAVAL HOSPITAL WHERE HE REMAINED AS A PATIENT UNTIL RELEASED FROM ACTIVE DUTY JANUARY 7, 1944. THE OFFICER APPEARED BEFORE TWO BOARDS OF MEDICAL SURVEY DURING THE PERIOD OF HIS HOSPITALIZATION AND EACH BOARD FOUND HIM UNFIT FOR SERVICE AND RECOMMENDED THAT HE BE ORDERED TO APPEAR BEFORE A NAVAL RETIRING BOARD. HOWEVER, THE SECRETARY OF THE NAVY, BY DIRECTION OF THE PRESIDENT, DISCHARGED LIEUTENANT COMMANDER TONREY FROM THE NAVAL RESERVE EFFECTIVE APRIL 19, 1944, FOR THE REASON THAT HE HAD BEEN FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE SERVICE. THEREAFTER, ON MAY 13, 1946, AT THE REQUEST OF THE FORMER OFFICER, THE NAVAL MEDICAL SURVEY REVIEW BOARD, ESTABLISHED PURSUANT TO SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, REVIEWED THE FINDINGS AND DECISIONS OF THE BOARDS OF MEDICAL SURVEY WHICH HAD REPORTED ON HIS PHYSICAL CONDITION AND RECOMMENDED THAT THE PETITIONER BE AUTHORIZED TO APPEAR BEFORE A NAVAL RETIRING BOARD. SUCH RECOMMENDATION WAS APPROVED BY THE PRESIDENT ON SEPTEMBER 25, 1946, AND DR. TONREY APPEARED BEFORE A NAVAL RETIRING BOARD ON NOVEMBER 22, 1946. IT FURTHER APPEARS THAT AT THE REQUEST OF THE NAVAL RETIRING BOARD, DR. TONREY WAS ADMITTED TO A NAVAL HOSPITAL FOR STUDY OF HIS CASE AND A REPORT THEREON, AND THAT UPON COMPLETION OF SUCH STUDY THE BOARD RECONVENED DECEMBER 23, 1946, BUT NO FINDING WAS MADE BY THE BOARD AT THAT TIME IN VIEW OF DR. TONREY'S REQUEST (WHICH WAS GRANTED) THAT THE MATTER BE POSTPONED UNTIL HE COULD SECURE ADDITIONAL EVIDENCE FOR PRESENTATION TO THE BOARD. IT IS STATED THAT THE NAVAL RETIRING BOARD RECONVENED APPROXIMATELY 16 MONTHS LATER, NAMELY ON APRIL 2, 1948, AND DECIDED THAT "THIS FORMER OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, THAT HIS INCAPACITY FOR NAVAL SERVICE IS PERMANENT AND IS THE RESULT OF AN INCIDENT OF THE SERVICE, HAVING BEEN INCURRED SUBSEQUENT TO OCTOBER 26, 1942, AND SUFFERED IN THE LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS," AND THAT "HIS DISABILITY WAS INCURRED PRIOR TO JANUARY 7, 1944, WHEN HE WAS RELEASED FROM ACTIVE DUTY.'

SECTION 302 (A) AND (B) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945 (38 U.S.C. 693I), PROVIDES AS FOLLOWS:

(A) THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED FROM THE MEDICAL CORPS OF THE ARMY OR NAVY, OR FROM THE PUBLIC HEALTH SERVICE, AS THE CASE MAY BE. IT SHALL BE THE DUTY OF ANY SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE SERVICE RECORDS RELATING TO THE OFFICER REQUESTING SUCH REVIEW, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH OFFICER. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE OFFICER REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD OF REVIEW IN PERSON OR BY COUNSEL. IN CARRYING OUT ITS DUTIES UNDER THIS SECTION SUCH BOARD OF REVIEW SHALL HAVE THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED. THE PROCEEDINGS AND DECISION OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.

(B) NO REQUEST FOR REVIEW UNDER THIS SECTION SHALL BE VALID UNLESS FILED WITHIN FIFTEEN YEARS AFTER THE DATE OF RETIREMENT FOR DISABILITY OR AFTER JUNE 22, 1944 WHICHEVER IS THE LATER.

THE ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED (34 U.S.C. 855C 1), PROVIDES, INTER ALIA, THAT ALL OFFICERS OF THE U.S. NAVAL RESERVE WHO ARE CALLED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, AND WHO SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE ENTITLED TO RECEIVE THE SAME RETIREMENT PAY AS MAY BE PROVIDED BY LAW FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR NAVY. IN THE CASE OF OFFICERS OF THE REGULAR SERVICE THE LAW PROVIDES THAT WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT THE INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, THE OFFICER SHALL, IF SUCH DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM SERVICE WITH RETIRED PAY (SECTION 1453, REVISED STATUTES) EQUAL TO 75 PERCENTUM OF THE PAY PROVIDED BY LAW FOR THE GRADE OR RANK WHICH HE HELD AT THE TIME OF RETIREMENT (SECTION 1588, REVISED STATUTES, 34 U.S.C. 991).

UNDER SECTION 302 (A) AND (B) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, AN OFFICER WHO HAS BEEN RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE FINDINGS OF A RETIRING BOARD, ETC., IS ENTITLED TO REQUEST A REVIEW OF THE FINDINGS AND DECISIONS OF SUCH BOARDS WITHIN 15 YEARS AFTER RETIREMENT FOR DISABILITY, OR AFTER JUNE 22, 1944, WHICHEVER IS LATER. THE SAID SECTION 302 (A) RELATES TO OFFICERS WHO HAVE BEEN "RETIRED OR RELEASED FROM ACTIVE SERVICE" FOR DISABILITY, AND CONTAINS NO PROVISIONS EXPRESSLY OR IMPLIEDLY REQUIRING THAT THE PETITIONER SHALL BE AN OFFICER OF THE NAVAL RESERVE AT THE TIME SUCH REQUEST FOR REVIEW IS FILED, OR AT THE TIME FINAL ACTION IS TAKEN UPON SUCH REQUEST FOR REVIEW. THAT THE BENEFITS OF THE SAID SECTION 302 (A) APPLY TO FORMER OFFICERS APPEARS TO HAVE BEEN RECOGNIZED BY THIS OFFICE IN DECISION OF OCTOBER 8, 1947, 27 COMP. GEN. 186, WHEREIN IT WAS CONCLUDED THAT AN OFFICER OF THE U.S. COAST GUARD RESERVE WHO HAD BEEN RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY, WITHOUT PAY, AND LATER DISCHARGED FROM THE U.S. COAST GUARD RESERVE WHO HAD BEEN RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY, WITHOUT PAY, AND LATER DISCHARGED FROM THE U.S. COAST GUARD RESERVE, WAS ENTITLED TO RECEIVE RETIREMENT PAY IF, AS A RESULT OF SUCH REVIEW, RETIREMENT WAS RECOMMENDED BY THE REVIEW BOARD AND APPROVED BY COMPETENT AUTHORITY. ALSO, IT WAS RECOGNIZED IN DECISION OF MARCH 20, 1944, 23 COMP. GEN. 700, THAT THE FACT THAT AN OFFICER OF THE NAVAL RESERVE WAS INADVERTENTLY DISCHARGED FOR PHYSICAL DISABILITY, INSTEAD OF BEING PLACED ON THE RETIRED LIST, DOES NOT OPERATE TO DEFEAT THE OFFICER'S RIGHT TO THE RETIREMENT PAY BENEFITS AUTHORIZED BY THE ACT OF AUGUST 27, 1940, AS AMENDED, IF OTHERWISE ENTITLED THERETO. THAT CONNECTION, SEE DECISION OF OCTOBER 19, 1943, 23 COMP. GEN. 284, 286, WHEREIN IT WAS POINTED OUT THAT THE RETIREMENT PAY AUTHORIZED FOR OFFICERS OF THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557 (WHICH ARE ESSENTIALLY SIMILAR TO THE PROVISIONS OF THE ACT OF AUGUST 27, 1940, HERE INVOLVED, APPLICABLE TO NAVAL RESERVE OFFICERS), IS NOT CONDITIONED UPON THEIR REMAINING IN THE SERVICE BUT IS MORE IN THE NATURE OF A PENSION PREDICATED UPON PHYSICAL DISABILITY, WITHOUT REGARD TO WHETHER THEY REMAIN IN THE SERVICE AND WITHOUT RELATION TO ANY SUCH SUBSEQUENT SERVICE. ACCORDINGLY, ASSUMING THAT THE FORMER OFFICER'S RETIREMENT IS APPROVED BY COMPETENT AUTHORITY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

UNDER THE PARTICULAR CIRCUMSTANCES HERE INVOLVED, SINCE THE OFFICER WAS DISCHARGED FROM HIS COMMISSION IN THE NAVAL RESERVE ON APRIL 19, 1944, IT SEEMS CLEAR THAT NOTHING SHORT OF A NEW APPOINTMENT COULD REINSTATE HIM IN HIS FORMER OFFICE IN THE NAVAL RESERVE. MIMMACK V. UNITED STATES, 97, U.S. 426; MILLER V. UNITED STATES, 19 C.1CLS. 338, 353. CONSEQUENTLY, HE LEGALLY COULD NOT BE "RECALLED" TO ACTIVE DUTY SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AS A NAVAL RESERVE OFFICER UNLESS HE IS REAPPOINTED IN THE NAVAL RESERVE. QUESTION (2) IS ANSWERED ACCORDINGLY.