B-91509, MARCH 22, 1950, 29 COMP. GEN. 382

B-91509, MARCH 22, 1950, 29 COMP. GEN. 382

RETIRED PAY - COMPUTATION - FORMER OFFICER OF MARINE CORPS RESERVE RELEASED FOR PHYSICAL DISABILITY A MARINE CORPS RESERVE OFFICER WHO IS RELEASED FROM ACTIVE DUTY, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A NAVAL RETIRING BOARD IS ENTITLED, UPON REVIEW OF HIS CASE UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, TO HAVE THE RATE OF RETIRED PAY TO WHICH HE IS ENTITLED ON AND AFTER THE DATE HE WAS PLACED ON THE RETIRED LIST COMPUTED UNDER THE LAW IN EFFECT AT THE TIME OF SUCH RELEASE FROM ACTIVE DUTY AS THOUGH THE REVIEW BOARD'S DECISION AND RECOMMENDATION FOR RETIREMENT HAD BEEN MADE AT THAT TIME.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. G. B. SMITH, JR., U.S. MARINE CORPS, MARCH 22, 1950:

BY ENDORSEMENT OF THE QUARTERMASTER GENERAL OF THE MARINE CORPS DATED DECEMBER 16, 1949, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF THE SAME DATE, WITH ENCLOSURES, REQUESTING DECISION AS TO THE RATE OF RETIRED PAY PROPERLY PAYABLE TO COL. ALONZO D. GORHAM, USMCR, RETIRED, ON AND AFTER NOVEMBER 1, 1949, ON WHICH DATE HE WAS TRANSFERRED TO THE RETIRED LIST FOLLOWING APPROVAL BY THE PRESIDENT ON OCTOBER 26, 1949, OF THE PROCEEDINGS, FINDINGS, AND DECISION OF A NAVAL RETIRING REVIEW BOARD CONVENED IN HIS CASE UNDER AUTHORITY OF THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I.

FROM THE RECORD PRESENTED IT APPEARS THAT COLONEL GORHAM HAD INACTIVE ENLISTED SERVICE IN THE NORTH CAROLINA NATIONAL GUARD FROM OCTOBER 21, 1927, TO SEPTEMBER 9, 1929, AND COMMISSIONED SERVICE IN THE MARINE CORPS RESERVE FROM JULY 27, 1935, TO OCTOBER 31, 1949. DURING THE LATTER PERIOD HE WAS ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS FROM JANUARY 15 TO JULY 13, 1936, AND FROM OCTOBER 21, 1936, TO APRIL 23, 1937, AND HE SUBSEQUENTLY SERVED ON ACTIVE DUTY AS A MARINE CORPS RESERVE OFFICER FROM MARCH 31, 1940, TO SEPTEMBER 30, 1946. HIS RELEASE FROM ACTIVE DUTY ON SEPTEMBER 30, 1946, APPARENTLY WAS EFFECTED FOR REASONS OF PHYSICAL DISABILITY AND AS A RESULT OF THE FINDINGS AND DECISION OF A NAVAL RETIRING BOARD. ON JULY 11, 1949, A NAVAL RETIRING REVIEW BOARD WAS CONVENED AT WASHINGTON, D.C., TO REVIEW THE BOARD FINDINGS AND DECISION WHICH RESULTED IN HIS RELEASE FROM ACTIVE DUTY ON SEPTEMBER 30, 1946. THE RECORD OF PROCEEDINGS OF SUCH REVIEW BOARD SHOWS THAT ITS FINDINGS AND DECISION WERE THAT COLONEL GORHAM WAS INCAPACITATED FOR ACTIVE SERVICE IN THE MARINE CORPS RESERVE BY REASON OF PHYSICAL DISABILITY; THAT HIS INCAPACITY WAS PERMANENT AND NOT THE RESULT OF HIS OWN MISCONDUCT, BUT THE RESULT OF AN INCIDENT OF THE SERVICE, HAVING BEEN INCURRED SUBSEQUENT TO MARCH 31, 1940, THE DATE OF HIS ASSIGNMENT TO ACTIVE DUTY AS AN OFFICER; AND THAT HIS INCAPACITY WAS CONSIDERED TO HAVE BEEN INCURRED SUBSEQUENT TO DECEMBER 1, 1944, THE DATE OF HIS APPOINTMENT AS A LIEUTENANT COLONEL (T) IN THE MARINE CORPS RESERVE BUT PRIOR TO SEPTEMBER 30, 1946, WHEN HE WAS RELIEVED FROM ACTIVE DUTY. ON OCTOBER 26, 1949, THE PRESIDENT APPROVED THE PROCEEDINGS, FINDINGS, AND DECISION OF THE REVIEW BOARD, AND ON NOVEMBER 1, 1949, THE OFFICER WAS PLACED ON THE RETIRED LIST WITH THE RANK OF COLONEL BY REASON OF SPECIAL COMMENDATION FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT, BUT WITH RETIRED PAY BASED ON THE RANK OF LIEUTENANT COLONEL, UNDER AUTHORITY OF THE PROVISIONS OF PARAGRAPH 412 (A) OF THE ACT OF AUGUST 7, 1947, 61 STAT. 874, AND OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED.

SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, WHICH WAS REPEALED BY SECTION 531 (B) (28) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 839, EFFECTIVE OCTOBER 1, 1949, BUT WHICH WAS IN EFFECT WHEN COLONEL GORHAM WAS RELEASED FROM ACTIVE DUTY IN 1946, PROVIDED AS FOLLOWS:

(A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK. SECTION 11 OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED, MADE THE QUOTED PROVISIONS OF SECTION 8 (A) APPLICABLE TO PERSONNEL OF THE MARINE CORPS RESERVE ORDERED INTO ACTIVE SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED DUTY. SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 623, PROVIDES AS FOLLOWS (QUOTING FROM 38 U.S.C. 693I):

(A) THE SECRETARY OF WAR, 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 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 2, 1944, WHICHEVER IS THE LATER.

(C) AS USED IN THIS SECTION---

(1) THE TERM "OFFICER" MEANS ANY OFFICER SUBJECT TO THE LAWS GRANTING RETIREMENT FOR ACTIVE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR ANY OF THEIR RESPECTIVE COMPONENTS.

IT WOULD APPEAR THAT THE PURPOSE AND FUNCTION OF A BOARD OF REVIEW ESTABLISHED UNDER SECTION 302 (A), ABOVE, IS NOT TO EFFECT ORIGINAL DETERMINATIONS ON THE BASIS OF CURRENT CONDITIONS. RATHER, IT WOULD SEEM THAT THE ESTABLISHMENT OF SUCH BOARDS WAS AUTHORIZED SO THAT THEY MIGHT REVIEW PRIOR ACTION AND DETERMINE THE ACCURACY OF SUCH PRIOR ACTION BASED ON CONDITIONS AND CIRCUMSTANCES EXISTING AT THE TIME SUCH ACTION WAS TAKEN. THEREFORE, WHERE THE REVIEW BOARD DETERMINES THAT SUCH PRIOR ACTION WAS IMPROPER AND DECIDES ON THE NECESSITY FOR ITS REVERSAL, THAT DECISION, IN EFFECT, SEEMINGLY WOULD NULLIFY THE PRIOR DECISION OF THE RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, AND STAND IN ITS PLACE AS A DECISION EFFECTED AS OF THE DATE OF SUCH PRIOR DECISION. IN DECISION OF OCTOBER 8, 1947, 27 COMP. GEN. 186, WHICH YOU CITE, IT WAS HELD THAT A RESERVE OFFICER RELEASED FROM ACTIVE DUTY, WITHOUT PAY, PURSUANT TO THE DECISION OF A RETIRING BOARD IS ENTITLED, AFTER A REVIEW OF HIS CASE UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT, TO BE RETIRED WITH PAY IF, AS A RESULT OF SUCH REVIEW, RETIREMENT IS RECOMMENDED BY THE COMMENCING AS OF THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE PRESIDENTIAL APPROVAL WAS GIVEN. WHILE THE DATE OF ENTITLEMENT TO RETIRED PAY WAS THUS DETERMINED, IT NEVERTHELESS SEEMS PLAIN--- CONSIDERING THE FACT THAT THE DECISION OF THE REVIEW BOARD AND ITS RECOMMENDATION FOR RETIREMENT ARE BASED UPON CONDITIONS EXISTING AS OF THE DATE OF THE DECISION UNDER REVIEW AND THE RETIREMENT LAWS THEN IN EFFECT--- THAT THE RATE OF RETIREMENT PAY, THE METHOD OF ITS COMPUTATION, AND THE LAW UNDER WHICH COMPUTED SHOULD BE THOSE APPLICABLE AS OF THE DATE OF THE RETIRING BOARD'S ACTION RATHER THAN THE DATE OF THE ACTION OF THE REVIEW BOARD. TO CONCLUDE OTHERWISE WOULD NOT BE IN CONSONANCE WITH THE PLAIN PURPOSE AND INTENT OF THE PROVISIONS OF SECTION 302, SUPRA.

THE DECISION OF THE NAVAL RETIRING REVIEW BOARD CONVENED IN COLONEL GORHAM'S CASE CONSTITUTED A FINDING THAT AT THE TIME THE NAVAL RETIREMENT BOARD'S ACTION RESULTED IN HIS RELEASE FROM ACTIVE DUTY ON SEPTEMBER 30, 1946, HE WAS IN FACT PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY AS A RESULT OF AN INCIDENT OF THE SERVICE CONSIDERED TO HAVE BEEN INCURRED SUBSEQUENT TO DECEMBER 1, 1944, THE DATE OF HIS APPOINTMENT FOR TEMPORARY SERVICE AS A LIEUTENANT COLONEL IN THE MARINE CORPS RESERVE, AND PRIOR TO THE DATE OF HIS RELEASE FROM ACTIVE DUTY. HENCE, THE RATE OF RETIRED PAY TO WHICH HE IS ENTITLED ON AND AFTER NOVEMBER 1, 1949, THE DATE HE WAS PLACED ON THE RETIRED LIST, PROPERLY SHOULD BE COMPUTED AS AUTHORIZED BY THE LAW IN EFFECT AT THE TIME OF SUCH RELEASE FROM ACTIVE DUTY AS THOUGH THE REVIEW BOARD'S DECISION AND RECOMMENDATION FOR RETIREMENT HAD BEEN MADE AT THAT TIME. ACCORDINGLY, ON THE BASIS OF THE INFORMATION FURNISHED WITH YOUR LETTER, THE RETIRED PAY PAYABLE TO COLONEL GORHAM ON AND AFTER NOVEMBER 1, 1949, SHOULD BE COMPUTED, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, QUOTED ABOVE, AS 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH A LIEUTENANT COLONEL WITH OVER 12 YEARS' SERVICE WAS ENTITLED UNDER THE LAWS IN EFFECT AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY ON SEPTEMBER 30, 1946.