B-88865, APRIL 16, 1954, 33 COMP. GEN. 463

B-88865: Apr 16, 1954

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PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE ARMY OFFICER WHO WAS RELIEVED FROM ACTIVE DUTY AND WHO APPLIED FOR RETIREMENT PAY AND APPEARED BEFORE ARMY RETIRING BOARD WHICH FOUND HE WAS NOT PERMANENTLY INCAPACITATED FOR DUTY. IS NOT ENTITLED TO DISABILITY RETIREMENT PAY BASED UPON REVIEW AND FINDINGS OF A BOARD ESTABLISHED UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944. WHICH HAS JURISDICTION ONLY IN THOSE CASES WHERE SEPARATION FROM THE ACTIVE SERVICE WAS FOR PHYSICAL DISABILITY PURSUANT TO DECISION OF A RETIRING BOARD. 1954: REFERENCE IS MADE TO A LETTER DATED DECEMBER 25. IT APPEARS THAT SUIT WAS FILED IN THE COURT OF CLAIMS ON AUGUST 23.

B-88865, APRIL 16, 1954, 33 COMP. GEN. 463

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE ARMY OFFICER WHO WAS RELIEVED FROM ACTIVE DUTY AND WHO APPLIED FOR RETIREMENT PAY AND APPEARED BEFORE ARMY RETIRING BOARD WHICH FOUND HE WAS NOT PERMANENTLY INCAPACITATED FOR DUTY, AND WHO, SUBSEQUENTLY, APPEARED BEFORE ANOTHER ARMY RETIRING BOARD WHICH FOUND HIM PERMANENTLY INCAPACITATED BUT NOT AS A RESULT OF SERVICE, IS NOT ENTITLED TO DISABILITY RETIREMENT PAY BASED UPON REVIEW AND FINDINGS OF A BOARD ESTABLISHED UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, WHICH HAS JURISDICTION ONLY IN THOSE CASES WHERE SEPARATION FROM THE ACTIVE SERVICE WAS FOR PHYSICAL DISABILITY PURSUANT TO DECISION OF A RETIRING BOARD.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO CAPTAIN ROBERT L. STEPHENS, APRIL 16, 1954:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 25, 1953, FROM YOUR ATTORNEY, WARREN E. MILLER, REQUESTING RECONSIDERATION OF SETTLEMENT DATED NOVEMBER 25, 1953, ISSUED BY THE CLAIMS DIVISION OF THIS OFFICE, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE DISABILITY RETIREMENT PAY FROM JUNE 17, 1945, TO NOVEMBER 23, 1948.

IT APPEARS THAT SUIT WAS FILED IN THE COURT OF CLAIMS ON AUGUST 23, 1949, NO. 49286, FOR SAID RETROACTIVE DISABILITY RETIREMENT PAY. HOWEVER, ON THE BASIS THAT SAID SUIT WAS OF THE CLASS FAVORABLY DECIDED BY THE COURT IN THE CASE OF HAMRICK V. UNITED STATES, 120 C.1CLS. 17, A MOTION TO DISMISS WAS FILED IN ESCROW WITH THE DEPARTMENT OF JUSTICE PENDING ACTION BY THIS OFFICE ON YOUR CLAIM.

IT APPEARS THAT BY PARAGRAPH 1 OF SPECIAL ORDERS NO. 115, SEPARATION CENTER, FORT DIX, NEW JERSEY, DATED APRIL 25, 1945, YOU WERE RELIEVED FROM ACTIVE DUTY (NOT FOR PHYSICAL DISABILITY), EFFECTIVE JUNE 16, 1945. PURSUANT TO YOUR REQUESTS DATED JULY 3 AND 21, 1947, IN WHICH YOU APPLIED FOR RETIREMENT PAY AND APPEARANCE BEFORE AN ARMY RETIRING BOARD, YOU WERE ORDERED BY PARAGRAPH 23 OF SPECIAL ORDERS NO. 28, OCTOBER 27, 1947, TO REPORT TO TILTON GENERAL HOSPITAL, FORT DIX, NEW JERSEY, FOR OBSERVATION, TREATMENT AND APPEARANCE BEFORE AN ARMY RETIRING BOARD. ON JANUARY 8, 1948, THE RETIRING BOARD FOUND THAT YOU WERE NOT PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE AND RECOMMENDED GENERAL MILITARY SERVICE. THEREAFTER, ON THE RECOMMENDATION OF THE SURGEON GENERAL, YOU WERE TRANSFERRED TO WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C., BY PARAGRAPH 9 OF SPECIAL ORDERS NO. 40, DATED FEBRUARY 27, 1948. THE ARMY RETIRING BOARD AT WALTER REED GENERAL HOSPITAL ON MAY 13, 1948, FOUND THAT YOU WERE PERMANENTLY INCAPACITATED BY REASON OF CORONARY ARTERIOSCLEROTIC HEART DISEASE WITH ANGINAL SYNDROME; THAT DATE OF ORIGIN WAS JANUARY 1947, OR SUBSEQUENT TO ERVICE; AND THAT THE INCAPACITY WAS NOT AN INCIDENT OF YOUR SERVICE. PARAGRAPH 16 OF SPECIAL ORDERS NO. 91, DATED APRIL 26, 1948, YOU WERE RELIEVED FROM FURTHER OBSERVATION AND TREATMENT AND RELEASED TO AN INACTIVE STATUS NOT BY REASON OF PHYSICAL DISABILITY. ON JUNE 10, 1948, THE SURGEON GENERAL CONCURRED IN SUCH FINDINGS WHICH WERE LATER APPROVED FOR THE SECRETARY OF THE ARMY BY THE ARMY PERSONNEL BOARD ON JUNE 16, 1948.

AT YOUR REQUEST, THE AIR FORCE DISABILITY REVIEW BOARD, CONVENED UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 693I, REVIEWED YOUR CASE. THE BOARD DETERMINED ON NOVEMBER 24, 1948, THAT YOU WERE PERMANENTLY INCAPACITATED BECAUSE OF DISABILITY ORIGINATING ABOUT MAY 1944; THAT YOU BECAME INCAPACITATED FOR ACTIVE DUTY PRIOR TO JUNE 16, 1945; AND THAT THE INCAPACITY WAS THE RESULT OF AN INCIDENT OF THE SERVICE. AS A RESULT OF THAT DETERMINATION, AND UPON APPROVAL OF SUCH FINDINGS BY THE SECRETARY OF THE AIR FORCE BY DIRECTION OF THE PRESIDENT, YOU WERE CERTIFIED TO THE ADMINISTRATOR OF VETERANS' AFFAIRS ON DECEMBER 30, 1948, FOR DISABILITY RETIREMENT PAY BENEFITS AS A CAPTAIN, FOURTH PAY PERIOD, IN THE AMOUNT OF $288.75 MONTHLY, EFFECTIVE NOVEMBER 24, 1948, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456.

IN THE CASE OF HAMRICK V. UNITED STATES, SUPRA, THE COURT HELD THAT AN OFFICER WHO IS GRANTED RETIREMENT PAY AS A RESULT OF THE APPROVED PROCEEDINGS AND FINDINGS OF A BOARD ESTABLISHED PURSUANT TO SAID SECTION 302 (A) IS ENTITLED TO SUCH RETIREMENT PAY RETROACTIVE TO THE DATE OF RELEASE FROM ACTIVE DUTY. HOWEVER, IT IS PERTINENT TO CONSIDER WHETHER SUCH BOARD HAD JURISDICTION TO REVIEW YOUR CASE. THE SAID SECTION 302 (A) 58 STAT. 284, PROVIDES, IN PERTINENT PART, THAT---

THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, FROM 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 MAYBE. IT SHALL BE THE DUTY OF 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. * * * ( ITALICS SUPPLIED.)

THERE WOULD APPEAR TO BE NO SERIOUS DOUBT THAT YOU WERE NOT ACTUALLY RELEASED FROM ACTIVE DUTY FOR "PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD," ETC. HENCE, YOUR CASE MUST BE REGARDED AS NOT WITHIN THE PURVIEW OF SUCH PROVISIONS AND IT MUST BE CONCLUDED THAT THE BOARD ESTABLISHED UNDER THOSE PROVISIONS DID NOT HAVE JURISDICTION TO REVIEW YOUR CASE UNDER THAT ACT. IN THE DECISION REPORTED AT 31 COMP. GEN. 681, 683, IT WAS STATED:

* * * IN THE VIEW OF THIS OFFICE, A BOARD ESTABLISHED UNDER THE PROVISIONS OF THE SECTION 302 (A) OF THE 1944 ACT HAS JURISDICTION ONLY IN THOSE CASES WHERE IT IS ESTABLISHED THAT THE PERSON'S SEPARATION FROM THE ACTIVE SERVICE ACTUALLY WAS MOTIVATED BY A FINDING OF A RETIRING BOARD, ETC., THAT HE WAS PHYSICALLY DISABLED AND, OF COURSE, HIS ORDERS FOR SEPARATION ARE PRIMA FACIE EVIDENCE OF THAT FACT. * * *

INASMUCH AS THE BOARD WHICH FOUND YOU TO HAVE BEEN DISABLED WITHIN THE PROVISIONS OF THE ACT OF APRIL 3, 1939, CITED ABOVE, WAS NOT ACTING WITHIN ITS STATUTORY JURISDICTION IN MAKING SUCH FINDING, YOUR CLAIM IS CLEARLY DISTINGUISHABLE FROM THAT CONSIDERED BY THE COURT IN THE HAMRICK CASE. THAT IS TO SAY, WHILE THE FINDINGS MADE IN YOUR CASE WERE MADE BY A "302 BOARD," YOUR CASE WAS NOT WITHIN THE PURVIEW OF THE SAID SECTION 302 (A) AND THEREFORE THE RETROACTIVE FEATURE OF THE STATUTE RECOGNIZED IN THE HAMRICK CASE IS NOT PRESENT IN YOUR CASE. IT FOLLOWS THAT THE DECISION IN THE HAMRICK CASE DOES NOT APPLY TO YOUR CLAIM AND, SINCE YOU WERE CERTIFIED BY THE SECRETARY OF THE AIR FORCE TO THE ADMINISTRATOR OF VETERANS' AFFAIRS FOR DISABILITY RETIREMENT PAY, EFFECTIVE NOVEMBER 24, 1948, THERE EXISTS NO LEGAL BASIS ON THE PRESENT RECORD FOR THE PAYMENT OF RETIRMENT PAY PRIOR TO SUCH EFFECTIVE DATE.

ACCORDINGLY, UPON RECONSIDERATION, IT IS DETERMINED THAT THE SETTLEMENT DATED NOVEMBER 25, 1953, WAS CORRECT AND THE ACTION THERE TAKEN IS SUSTAINED.