B-96905, NOVEMBER 19, 1952, 32 COMP. GEN. 242

B-96905, NOVEMBER 19, 1952, 32 COMP. GEN. 242

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE; ACTIVE DUTY PAY - BASED ON CORRECTED RECORDS UNDER THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, WHICH PROVIDES FOR RETIRED PAY FOR DISABLED MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE, AN OFFICER FOUND PHYSICALLY FIT AND RELEASED FROM ACTIVE DUTY UNDER THE GENERAL DEMOBILIZATION PROGRAM, WHOSE RECORD WAS CORRECTED BY THE BOARD FOR CORRECTION OF NAVAL RECORDS TO SHOW "RETIRED" DATE AS DATE OF RELEASE FROM ACTIVE DUTY RATHER THAN THE DATE HIS NAME WAS PLACED ON THE RETIRED LIST FOR DISABILITY, WITHOUT A CORRECTION BY SUCH BOARD THAT THE OFFICER ACTUALLY WAS DISABLED AT DATE OF RELEASE IS NOT ENTITLED TO DISABILITY RETIREMENT PAY RETROACTIVE TO DATE OF HIS RELEASE FROM DUTY. WHILE THE BOARD FOR CORRECTION OF NAVAL RECORDS, ESTABLISHED PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, HAS AUTHORITY TO CORRECT NAVAL RECORDS WHERE NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE" AND TO PAY CLAIMS OF AMOUNTS FOUND DUE AS A RESULT OF SUCH CORRECTIONS, THE SAID SECTION DOES NOT AUTHORIZE A CORRECTION OF THE RECORDS TO SHOW THE AMOUNT IS DUE OR THAT THE CLAIMANT WILL BE ENTITLED TO ANY MONETARY BENEFITS, AND THE AMOUNTS DUE BY REASON OF SUCH CORRECTION DEPEND UPON A PROPER APPLICATION OF THE PAY STATUTES IN EFFECT DURING SUCH PERIOD. WHILE SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, PROVIDES, UNDER THE CONDITIONS STIPULATED THEREIN, THAT MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE WHO SUFFER DISABILITY SHALL BE ENTITLED TO RECEIVE THE SAME "RETIREMENT PAY" AS MEMBERS OF THE REGULAR NAVY OR MARINE CORPS OF CORRESPONDING GRADES AND LENGTH OF SERVICE, THE RIGHT TO SUCH RETIREMENT PAY IS NOT PREDICATED ON A "RETIRED" STATUS OR THE PLACING OF A MEMBER'S NAME ON A RETIRED LIST, BUT ON A COMPETENT DETERMINATION OF THE ESSENTIAL FACTS BRINGING THE MEMBER WITHIN THE STIPULATED CONDITIONS WHICH ENTITLED THE MEMBER TO THE AUTHORIZED "RETIREMENT PAY" IN THE NATURE OF A PENSION, WITHOUT REGARD TO BEING RETIRED OR EVEN REMAINING IN THE SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO J. W. ELDRIDGE, U.S. MARINE CORPS, NOVEMBER 19, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1952, RECEIVED IN THIS OFFICE ON AUGUST 27, WHEREIN YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN THE AMOUNT OF $2,370.98, STATED IN FAVOR OF ALAN B. HOBBES, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE, FOR THE PERIOD JULY 9 TO 31, 1946, AND RETIRED PAY AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE, FOR THE PERIOD AUGUST 1, 1946, TO JUNE 30, 1947.

IT APPEARS THAT ON FEBRUARY 11, 1946, WHILE SERVING ON ACTIVE DUTY AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE, MR. HOBBES APPEARED BEFORE A BOARD OF MEDICAL SURVEY WHICH FOUND THAT HE HAD A " DEFORMITY, ACQUIRED, THORACIC SPINE NO. 2120" AND RECOMMENDED THAT HE BE ASSIGNED TO LIMITED DUTY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES. THE BUREAU OF MEDICINE AND SURGERY IN ACTING ON THE REPORT OF SUCH BOARD RECOMMENDED THAT MR. HOBBES APPEAR BEFORE A NAVAL RETIRING BOARD. ON APRIL 23, 1946, THE NAVAL RETIRING BOARD FOUND THAT MR. HOBBES HAD THE PHYSICAL DEFECT NOTED BY THE MEDICAL SURVEY BOARD BUT IT FURTHER FOUND THAT SUCH DEFECT WAS NOT SUFFICIENT TO INCAPACITATE HIM FOR ACTIVE SERVICE AND THAT HE WAS FIT FOR DUTY. THOSE FINDINGS WERE APPROVED BY THE PRESIDENT AND ON JULY 8, 1946, HE WAS RELEASED FROM ACTIVE DUTY APPARENTLY UNDER THE GENERAL DEMOBILIZATION PROGRAM THEN IN EFFECT.

ON MARCH 31, 1947, MR. HOBBES APPEARED BEFORE A NAVAL RETIRING REVIEW BOARD, PRESUMABLY ESTABLISHED UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I, WHICH BOARD FOUND THAT THE DEFECT FROM WHICH HE SUFFERED INCAPACITATED HIM FOR ACTIVE SERVICE; THAT SUCH INCAPACITY WAS PERMANENT; AND THAT IT WAS THE RESULT OF AN INCIDENT OF THE SERVICE. ON JUNE 27, 1947, THE PRESIDENT APPROVED THE FINDINGS OF SUCH REVIEW BOARD AND THEREUPON MR. HOBBES' NAME WAS PLACED ON THE RETIRED LIST OF JULY 1, 1947, AND HE WAS PAID RETIREMENT PAY FROM THAT DATE.

ON JULY 14, 1950, MR. HOBBES FILED SUIT IN THE COURT OF CLAIMS FOR RETIREMENT PAY FOR THE PERIOD JULY 9, 1946 (THE DATE FOLLOWING THE DATE OF RELEASE FROM ACTIVE DUTY), TO JUNE 30, 1947, BUT IT IS STATED IN ONE OF THE ENCLOSURES WITH YOUR LETTER THAT ON JUNE 4, 1952, THE COURT OF CLAIMS DEFERRED ACTION IN FOUR SOMEWHAT SIMILAR CASES IN ORDER THAT THE PLAINTIFFS CONCERNED WOULD HAVE THE OPPORTUNITY TO RESORT TO THE ADMINISTRATIVE REMEDY CREATED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655. THE BASIS FOR SUCH ACTION ON THE PART OF THE COURT IS NOT APPARENT SINCE, IN THEIR SUITS BEFORE THE COURT, THE PLAINTIFFS WERE ALLEGING THAT THEY HAD A LEGAL RIGHT TO THE RETIRED PAY IN QUESTION, WHEREAS THE PURPOSE OF THE SAID SECTION 207 OF THE 1946 ACT WAS TO AFFORD A REMEDY WHERE NO LEGAL RIGHT EXISTS. 27 COMP. GEN. 665. BE THAT AS IT MAY, CAPTAIN HOBBES APPEARED BEFORE THE BOARD FOR CORRECTION OF NAVAL RECORDS ESTABLISHED PURSUANT TO THE PROVISIONS OF THE SAID SECTION 207 OF THE 1946 ACT, WHICH BOARD DECIDED THAT HIS NAVAL RECORD SHOULD BE CORRECTED TO SHOW THAT HE WAS RETAINED ON ACTIVE DUTY UNTIL JULY 31, 1946, AND THAT HE RETIRED AS OF AUGUST 1, 1946. SUCH DECISION WAS APPROVED BY THE UNDER SECRETARY OF THE NAVY ON JULY 10, 1952.

THE SAID SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 65 STAT. 655, 656, READS, IN PERTINENT PART, AS FOLLOWS:

(A) THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE AND THE SECRETARY OF THE TREASURY (WITH RESPECT TO THE COAST GUARD), RESPECTIVELY, UNDER PROCEDURES SET UP BY THEM, AND ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS, ARE AUTHORIZED TO CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE, AND CORRECTIONS SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY MEANS OF FRAUD: PROVIDED, THAT PROCEDURES SET UP BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE IN ACCORDANCE WITH THIS SUBSECTION SHALL BE APPROVED BY THE SECRETARY OF DEFENSE: PROVIDED FURTHER, THAT NO CORRECTIVE ACTION SHALL BE TAKEN UNDER THIS SUBSECTION UNLESS THE REQUEST THEREFOR BE FILED BY CLAIMANT, HIS HEIRS AT LAW, OR LEGAL REPRESENTATIVES WITHIN THREE YEARS AFTER HIS OR THEIR DISCOVERY OF THE ALLEGED ERROR OR INJUSTICE, OR WITHIN TEN YEARS AFTER THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER BE THE LATER: PROVIDED FURTHER, THAT THE FAILURE TO FILE THE REQUEST BY CLAIMANT, HIS HEIRS AT LAW, OR LEGAL REPRESENTATIVE, WITHIN THREE YEARS AFTER HIS OR THEIR DISCOVERY OF THE ALLEGED ERROR OR INJUSTICE MAY BE EXCUSED BY SUCH BOARD OF CIVILIAN OFFICERS OR EMPLOYEES OF THE RESPECTIVE DEPARTMENTS UPON FINDING BY IT THAT IT IS IN THE INTEREST OF JUSTICE TO EXCUSE SUCH FAILURE TO FILE WITHIN THE PRESCRIBED TIME IN WHICH EVENT ACTION SHALL BE TAKEN IN THE SAME MANNER AS IF THE REQUEST HAD BEEN FILED WITHIN THE THREE YEARS AS PRESCRIBED HEREIN.

(B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION: PROVIDED, THAT IN THE CASE OF DECEASED PERSONS WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, PAYMENTS OTHERWISE DUE HEREUNDER SHALL BE MADE TO THE DECEDENT'S WIDOW, WIDOWER, LEGAL HEIRS, OR BENEFICIARIES, IN THE ORDER OF PRECEDENCE OR SUCCESSION AS MAY BE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED AND WHEN NOT OTHERWISE SO PROVIDED, IN THE ORDER OF PRECEDENCE AS SET FORTH IN THE ACT OF FEBRUARY 25, 1946 (60 STAT. 30), OR AS MAY BE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED.

THE MATTER HAS BEEN GIVEN CAREFUL CONSIDERATION BUT I FIND NO SUFFICIENT AUTHORITY OF LAW FOR PAYMENT OF RETROACTIVE RETIREMENT PAY ON THE VOUCHER PRESENTED. SINCE IT DOES NOT APPEAR THAT THE OFFICER WAS "RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD," AS EXPRESSLY STIPULATED IN SAID SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, IT WOULD APPEAR THAT THE NAVAL RETIRING REVIEW BOARD (HEREINAFTER REFERRED TO AS THE "302 BOARD") HAD NO JURISDICTION TO REVIEW THE CASE UNDER THE PROVISIONS OF THAT SECTION. SEE 31 COMP. GEN. 681. ASSUMING, HOWEVER, AS APPARENTLY WAS ASSUMED BY THE BOARD FOR CORRECTION OF NAVAL RECORDS (HEREINAFTER REFERRED TO AS THE "207 BOARD"), THAT THE 302 BOARD HAD SUCH JURISDICTION, THIS OFFICE DOES NOT COMPREHEND HOW THE SUBSEQUENT ACTION OF THE 207 BOARD CORRECTING, OR PURPORTING TO CORRECT, THE OFFICER'S RECORDS IN EFFECT TO SHOW HIM ENTITLED TO RETROACTIVE RETIREMENT PAY BY VIRTUE OF THE 302 BOARD'S ACTION COULD HAVE ANY EFFECT ON HIS LEGAL RIGHT TO SUCH RETROACTIVE RETIREMENT PAY.

WHETHER FAVORABLE ACTION BY A 302 BOARD ENTITLES AN OFFICER TO RETIREMENT PAY RETROACTIVELY TO THE DATE OF RELEASE FROM ACTIVE DUTY IS, QUITE OBVIOUSLY, A QUESTION OF LAW. NO JURISDICTION IS CONFERRED ON 207 BOARDS TO DECIDE QUESTIONS OF LAW. IF, AS A MATTER OF EXISTING LAW, SUCH OFFICERS ARE ENTITLED TO RETROACTIVE PAYMENTS (AS HELD BY THE COURT OF CLAIMS IN THE HAMRICK CASE ( WM. H. HAMRICK V. U.S.), 120 C.CLS. 17), THE ACTION OF A 207 BOARD CAN ADD NOTHING TO THAT RIGHT OR DETRACT NOTHING FROM THAT RIGHT. THAT IS APTLY ILLUSTRATED IN THE RAMSEY CASE JUST RECENTLY DECIDED, WHERE AN ARMY "207 BOARD" REFUSED TO CORRECT RAMSEY'S MILITARY RECORD TO SHOW HIM ENTITLED TO RETROACTIVE PAYMENT OF RETIREMENT PAY FOLLOWING FAVORABLE ACTION IN HIS CASE BY A 302 BOARD, ON THE GROUND THAT THE 302 BOARD HAD ALREADY DEALT LIBERALLY WITH HIM BUT, NEVERTHELESS, THE COURT OF CLAIMS GAVE HIM JUDGMENT FOR SUCH RETROACTIVE PAY ON THE GROUND THAT HE WAS ENTITLED THERETO AS A MATTER OF LAW AS DETERMINED IN THE HAMRICK CASE. SEE EDWARD W. RAMSEY, UNITED STATES, C.1CLS. NO. 50325, NOVEMBER 4, 1952.

ON THE OTHER HAND, IF, AS A MATTER OF LAW, FAVORABLE ACTION BY A 302 BOARD DOES NOT ENTITLE AN OFFICER TO RETROACTIVE RETIREMENT PAY (AS DETERMINED BY A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN THE JACOBSON CASE, CIVIL ACTION NO. 2500-49, APRIL 10, 1951), IT WOULD SEEM APPARENT THAT SUCH RETROACTIVE PAY MAY NOT BE AWARDED BY A 207 BOARD UNDER THE GUISE OF CORRECTING THE OFFICER'S RECORD I EFFECT TO SHOW HIM ENTITLED TO SUCH RETROACTIVE PAY BY VIRTUE OF THE FAVORABLE ACTION OF A 302 BOARD. PAYMENTS NOT AUTHORIZED BY THE CONGRESS ARE PROHIBITED, THE SAME AS THOUGH EXPRESSLY PROHIBITED RETROACTIVE PAYMENTS UPON THE FINDINGS OF A 302 BOARD. I DO NOT BELIEVE IT WOULD BE SERIOUSLY CONTENDED THAT A 207 BOARD MIGHT LEGALLY AWARD SUCH PROHIBITED RETROACTIVE PAY IN THAT CLASS OF CASES GENERALLY BY PURPORTING TO CORRECT THE RECORDS IN EFFECT TO SHOW ENTITLEMENT THERETO BY VIRTUE OF THE ACTION OF A 302 BOARD. WHILE BROAD AUTHORITY IS GIVEN THE SECRETARIES OF THE MILITARY DEPARTMENTS BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, SUPRA, ACTING THROUGH BOARDS IN THEIR RESPECTIVE DEPARTMENTS, TO CORRECT MILITARY RECORDS WHERE NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE" (SEE 40 OPS. ATTY. GEN. 504; 41 ID. OPS. 1, 8, AND 19), THIS OFFICE IS CONSTRAINED TO HOLD THAT SUCH AUTHORITY DOES NOT EXTEND TO GRANTING MONETARY BENEFITS OF A GENERAL CHARACTER PROHIBITED OR UNAUTHORIZED BY EXISTING LAW. THAT COULD BE DONE ONLY ON AN INADMISSIBLE ADMINISTRATIVE CONCLUSION THAT THE CONGRESS HAD DEALT UNJUSTLY WITH A GENERAL CLASS OF PERSONS AND THAT THE DEPARTMENT HAD THE POWER IN EFFECT, TO REWRITE THE GENERAL LEGISLATION INVOLVED.

IT MAY BE NOTED HERE THAT THE QUESTION WHETHER OFFICERS ARE ENTITLED UNDER EXISTING LAW TO RETROACTIVE RETIREMENT PAY UPON FAVORABLE ACTION OF A 302 BOARD IS STILL BEFORE THE COURTS. WHILE THE COURT OF CLAIMS TOOK THE POSITION IN THE RAMSEY CASE, SUPRA, THAT THE ADVERSE JUDGMENT BY THE DISTRICT COURT IN THE JACOBSON CASE ON THAT QUESTION LACKED A JURISDICTIONAL FOUNDATION, THE JUDGMENT IN THE RAMSEY CASE HAS NOT BECOME FINAL AND IS OPEN TO REVIEW BY THE SUPREME COURT OF THE UNITED STATES.

IN THE PRESENT CASE, IT MAY BE ARGUED, NEVERTHELESS, THAT SINCE THE 302 BOARD DID NOT HAVE JURISDICTION, THE OFFICER NOT HAVING BEEN RELEASED FROM ACTIVE DUTY ON ACCOUNT OF DISABILITY, THE ACTION OF THE 207 BOARD SHOULD BE VIEWED AS A CORRECTION OF THE OFFICER'S RECORD WITHOUT REGARD TO SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944.

THE FINDINGS OF THE BOARD FOR THE CORRECTION OF NAVAL RECORDS IN THIS CASE, APPROVED BY THE UNDER SECRETARY OF THE NAVY, JULY 10, 1952, ARE AS FOLLOWS:

A. IT IS THE DECISION OF THIS BOARD THAT THE NAVAL RECORD OF CAPTAIN ALAN B. HOBBES, USMCR, RETIRED (011046), BE CORRECTED TO SHOW THAT HE WAS RETAINED ON ACTIVE DUTY UNTIL 31 JULY 1946 AND RETIRED AS OF 1 AUGUST 1946.

B. THAT PURSUANT TO SUCH CORRECTION, THE RECORD BE CORRECTED FURTHER TO SHOW THAT CAPTAIN HOBBES IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD 9 JULY 1946 TO 31 JULY 1946 AND THAT HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD 1 AUGUST 1946 TO JUNE 1947, LESS THE AMOUNT OF DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION DURING THIS PERIOD.

CONSIDERING FINDING "B" FIRST, I THINK IT MUST BE POINTED OUT THAT WHILE SUBSECTION 207 (B) OF THE LEGISLATIVE REORGANIZATION ACT, AS AMENDED, SUPRA, AUTHORIZES THE DEPARTMENT CONCERNED TO PAY CLAIMS FOR AMOUNTS FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF A CORRECTION OF RECORDS MADE PURSUANT TO THE PRECEDING SUBSECTION 207 (A), THE SAID SUBSECTION 207 (A) DOES NOT AUTHORIZE A CORRECTION OF THE RECORDS TO SHOW THE AMOUNT DUE OR THAT ANY AMOUNT IS DUE OR THAT THE CLAIMANT WILL BE ENTITLED TO ANY MONETARY BENEFITS. THE AMOUNT TO BE PAID UNDER 207 (B) PURSUANT TO A CORRECTION OF RECORDS UNDER 207 (A) DEPENDS ON A PROPER APPLICATION OF THE PAY STATUTES TO THE FACTS IN THE CASE AND THE CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED RECORDS. SUBSECTION 207 (A) PROVIDES THAT CORRECTIONS MADE THEREUNDER SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY FRAUD. BUT SUBSECTION 207 (B), AUTHORIZING PAYMENTS BASED ON SUCH CORRECTIONS, DOES NOT MAKE DEPARTMENTAL DETERMINATIONS FINAL AND CONCLUSIVE AS TO AMOUNT PAYABLE UNDER THE CORRECTED RECORD. IT FOLLOWS THAT THE SAID FINDING "B" IN THIS CASE ADDS NOTHING TO THE CLAIMANT'S RIGHTS UNDER FINDING "A," THE AMOUNT, IF ANY, TO BE PAID UNDER FINDING "A" BEING GOVERNED BY THE STATUTES IN EFFECT OVER THE PERIOD INVOLVED AS APPLIED TO THE FACTS SHOWN BY THE CORRECTED RECORD. THE PRIMARY EFFECT OF FINDING "A," AS APPROVED, WAS TO CORRECT THE OFFICER'S RECORDS TO SHOW THAT HE WAS "RETIRED AS OF AUGUST 1, 1946.' HE WAS THEN A MARINE CORPS RESERVE OFFICER AND THERE WAS NO STATUTORY PROVISION FOR THE RETIREMENT OF SUCH OFFICERS AT THAT TIME FOR PHYSICAL DISABILITY NOR ANY STATUTE ATTACHING A RIGHT OF RETIRED PAY TO A RETIRED STATUS FOR SUCH OFFICERS. THERE WAS IN EFFECT, HOWEVER, SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, 34 U.S.C. 855C-1, IN MATERIAL PART AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS; * * *

THAT PROVISION WAS AMENDED BY THE ACT OF JUNE 20, 1949, 63 STAT. 201, EFFECTIVE FROM AUGUST 14, 1945, TO READ AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO --

(1) IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOWOR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS; * * *

IT WILL BE NOTED THAT WHILE SUCH STATUTES PROVIDE THAT, UNDER THE CONDITIONS THEREIN STIPULATED, MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE WHO SUFFER DISABILITY SHALL BE ENTITLED, AMONG OTHER THINGS, TO RECEIVE THE SAME "RETIREMENT PAY" AS MEMBERS OF THE REGULAR NAVY OR MARINE CORPS OF CORRESPONDING GRADES AND LENGTH OF SERVICE, THE RIGHT TO SUCH RETIREMENT PAY IS NOT PREDICATED ON A "RETIRED" STATUS OR THE PLACING OF THE MEMBER'S NAME ON A RETIRED LIST. ON THE CONTRARY, THE RIGHT DEPENDS ON A COMPETENT DETERMINATION OF THE ESSENTIAL FACTS BRINGING THE MEMBER WITHIN THE STIPULATED CONDITIONS AND IT HAS BEEN LONG RECOGNIZED THAT UNDER THE SAID 1940 NAVY ACT, AS WELL AS UNDER THE SIMILAR ARMY ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 456, MEMBERS MEETING THE STIPULATED CONDITIONS WERE ENTITLED TO THE AUTHORIZED "RETIREMENT PAY," IN THE NATURE OF A PENSION, WITHOUT REGARD TO BEING RETIRED OR EVEN REMAINING IN THE SERVICE. SEE 23 COMP. GEN. 700; ID. 284, 286. AS A MATTER OF FACT, UNDER ESSENTIALLY THE SAME PROVISIONS IN THE SAID ARMY ACT OF APRIL 3, 1939, THE WAR DEPARTMENT DID NOT EVEN PURPORT TO "RETIRE" SUCH MEMBERS OR FORMER MEMBERS BUT, PURSUANT TO EXECUTIVE ORDER NO. 8099, DATED APRIL 28, 1939, MERELY CERTIFIED THEIR NAMES TO THE VETERANS ADMINISTRATION FOR PAYMENT OF THE "RETIREMENT PAY.'

IN THE PRESENT CASE, THE OFFICER'S RECORDS HAVE NOT BEEN CORRECTED TO SHOW THAT HE MET THE CONDITIONS STIPULATED IN THE SAID 1940 ACT, AS AMENDED, ON WHICH THE RIGHT TO RETIREMENT PAY DEPENDS. SINCE THE RETIREMENT PAY IS NOT BASED ON A "RETIRED" STATUS, THE BARE CORRECTION OF THE RECORDS TO SHOW THAT HE WAS "RETIRED" ON AUGUST 1, 1946, DOES NOT ESTABLISH A RIGHT TO RETIREMENT PAY UNDER THAT ACT. IN THAT RESPECT IT SHOULD BE POINTED OUT THAT MEMBERS OF THE REGULAR NAVY, MARINE CORPS, OR ARMY WERE NOT AND ARE NOT ENTITLED TO RETIREMENT PAY FOR PHYSICAL DISABILITY UNTIL FOUND TO BE INCAPACITATED FOR ACTIVE DUTY AND IT IS NOT TO BE ASSUMED THAT IN THE SAID 1939 AND 1940 ACTS THE CONGRESS INTENDED TO AUTHORIZE RETIREMENT PAY FOR RESERVE OFFICERS FOR ANY LESSER DEGREE OF DISABILITY. NOTHING CONTAINED IN THE RECORD SUBMITTED TO THIS OFFICE IN THE PRESENT CASE SHOWS OR PURPORTS TO SHOW THAT THE OFFICER WAS INCAPACITATED FOR ACTIVE DUTY ON AUGUST 1, 1946. AS A MATTER OF FACT, THE NAVAL RETIRING BOARD WHICH EXAMINED HIM JUST PRIOR TO HIS RELEASE FROM ACTIVE DUTY THREE WEEKS EARLIER, ON JULY 9, 1946, FOUND THAT HIS PHYSICAL DEFECT WAS "NOT SUFFICIENT TO INCAPACITATE YOU FOR ACTIVE SERVICE IN THE U.S. MARINE CORPS AT THE PRESENT TIME.' NOR DOES IT APPEAR THAT THE NAVAL RETIRING REVIEW BOARD (WHETHER OR NOT IT HAS JURISDICTION TO CONSIDER THE CASE AS A "302 BOARD") REVERSED OR PURPORTED TO REVERSE THE NAVAL RETIRING BOARD ON THAT POINT. INSTEAD IT APPEARS THAT THE NAVAL RETIRING REVIEW BOARD, SPEAKING NOT IN THE PAST BUT IN THE PRESENT TENSE AS OF THE TIME IT ISSUED ITS REPORT THE FOLLOWING YEAR, FOUND THAT THE OFFICER "IS INCAPACITATED FOR ACTIVE SERVICE.' FROM THE RECORD PRESENTED TO THIS OFFICE, THAT CANNOT BE READ AS FINDING THAT THE OFFICER WAS INCAPACITATED WHEN RELEASED FROM ACTIVE DUTY THE YEAR BEFORE ON JULY 8, 1946. FURTHER APPEARS THAT ON JUNE 27, 1947, THE PRESIDENT APPROVED THE PROCEEDINGS, FINDINGS AND DECISION OF THE NAVAL RETIRING REVIEW BOARD AND THAT THE OFFICER HAS DULY RECEIVED RETIREMENT PAY UNDER SUCH APPROVED FINDINGS SINCE JULY 1, 1947, BUT, AS JUST STATED, IT DOES NOT APPEAR THAT THOSE FINDINGS RELATED TO ANY RETROACTIVE PERIOD. NOR DOES IT APPEAR THAT THE BOARD FOR CORRECTION OF NAVAL RECORDS HAS NOW MADE ANY FINDING, DETERMINATION, OR DECISION THAT THE OFFICER WAS ACTUALLY INCAPACITATED FOR ACTIVE DUTY WHEN RELEASED FROM ACTIVE DUTY ON JULY 8, 1946. THUS, DESPITE THE LATTER BOARD'S DECISION CORRECTING THE OFFICER'S RECORD TO SHOW THAT HE WAS RETIRED ON AUGUST 1, 1946, THE CORRECTED RECORD DOES NOT SHOW THAT HE THEN MET THE STATUTORY CONDITIONS ON WHICH THE RIGHT TO RETIREMENT PAY WAS BASED.

THE BOARD FOR CORRECTION OF NAVAL RECORDS ALSO CORRECTED THE OFFICER'S RECORD TO SHOW THAT HE WAS RETAINED ON ACTIVE DUTY UNTIL JULY 31, 1946. WHILE THE STATUTE MAKES THE BOARD CORRECTIONS FINAL AND CONCLUSIVE ON THIS OFFICE, IT IS EVIDENT THAT THIS CORRECTION WAS DIRECTLY SUBSIDIARY TO THE CORRECTION TO SHOW THAT THE OFFICER WAS RETIRED ON AUGUST 1, 1946, IN VIEW OF THE UNIFORM RETIREMENT ACT OF APRIL 23, 1930, 46 STAT. 253, PROVIDING THAT RETIREMENT WILL TAKE EFFECT ON THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH IT WOULD OTHERWISE BE EFFECTIVE, THE PURPOSE APPARENTLY BEING TO TREAT THE OFFICER AS REMAINING IN A PAY STATUS UNTIL THE DATE HIS RETIREMENT PAY SUPPOSEDLY WOULD BECOME EFFECTIVE UNDER THE PRIMARY CORRECTION, ON THE ASSUMPTION THAT SUCH RETIREMENT PAY WOULD BEGIN ON AUGUST 1, 1946. BUT SINCE IT MAY NOT BE CONCLUDED ON THE PRESENT RECORD THAT RETIREMENT PAY BECAME EFFECTIVE ON AUGUST 1, 1946, UNDER THE PRIMARY CORRECTION, IT IS BELIEVED THAT ACTIVE DUTY PAY OTHERWISE PAYABLE UNDER THE SUBSIDIARY CORRECTION SHOULD BE WITHHELD UNTIL THE BOARD FOR CORRECTION OF NAVAL RECORDS AND THE SECRETARY OF THE NAVY HAVE HAD AN OPPORTUNITY TO RECONSIDER THE CASE.

FOR SUCH REASONS, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER PRESENTED AND IT WILL BE RETAINED IN THIS OFFICE.