B-98405, MAY 22, 1951, 30 COMP. GEN. 470

B-98405, MAY 22, 1951, 30 COMP. GEN. 470

PAY - ACTIVE DUTY - NAVY OFFICER CONTINUING ON ACTIVE DUTY AFTER EFFECTIVE DATE OF RETIREMENT AN ORDER OF THE SECRETARY OF THE NAVY PLACING AN OFFICER ON THE RETIRED LIST CHANGES THE STATUS OF THE OFFICER WHEREVER HE MAY BE OR WHATEVER DUTY HE MAY BE PERFORMING, WITHOUT REGARD TO WHETHER OR NOT HE HAS RECEIVED NOTICE OF THE RETIREMENT, SO THAT, IN THE ABSENCE OF OFFICIAL ORDERS CONTINUING AN OFFICER ON ACTIVE DUTY AFTER RETIREMENT, HE IS NOT ENTITLED TO ACTIVE-DUTY PAY FOR ANY PERIOD OF SERVICE PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF HIS RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO CHARLES H. MCCROSKEY, MAY 22, 1951:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1950, REQUESTING REVIEW OF A SETTLEMENT OF THIS OFFICE DATED JUNE 8, 1950, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY FOR THE PERIOD APRIL 1 TO 21, 1950, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVAL RESERVE.

YOU STATE THAT DURING THE PERIOD INVOLVED YOU WERE ASSIGNED TO THE STAFF OF THE NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, FOR DUTY AS ORDERED BY THE COMMANDING OFFICER PURSUANT TO A CIRCULAR LETTER ISSUED IN FEBRUARY 1950 BY THE BUREAU OF NAVAL PERSONNEL DIRECTING THE MAXIMUM UTILIZATION IN A DUTY STATUS OF PERSONNEL AWAITING BUREAU ACTION AFTER APPEARING BEFORE A PHYSICAL EVALUATION BOARD; THAT YOU WERE ASSIGNED TO DUTY IN THE GENERAL MEDICAL CLINICS; THAT A COPY OF YOUR RETIREMENT ORDERS DATED APRIL 13, 1950, WAS RECEIVED BY THE COMMANDING OFFICER OF THE HOSPITAL ON APRIL 14, 1950, FOR THE PURPOSE OF STOPPING YOUR PAY; THAT ON LEARNING OF THE ORDERS YOU REQUESTED TO BE RELIEVED OF YOUR DUTIES BUT WERE TOLD THAT YOU COULD NOT BE RELIEVED UNTIL RECEIPT OF THE ORIGINAL ORDERS; AND THAT YOU FINALLY WERE RELIEVED OF YOUR DUTIES ON APRIL 17, 1950. CLAIM NOW IS PRESENTED FOR THE SUM OF $186.44 REPRESENTING THE DIFFERENCE BETWEEN THE ACTIVE-DUTY PAY AND ALLOWANCES OF A LIEUTENANT, JUNIOR GRADE, WITH OVER SIX YEARS' SERVICE AND RETIRED PAY OF $49.64 RECEIVED FOR THE PERIOD APRIL 1 TO 17, 1950.

IT APPEARS FROM THE ENCLOSURES SUBMITTED WITH YOUR CLAIM THAT BY ORDERS DATED MARCH 10, 1950, ISSUED BY THE COMMANDING OFFICER OF THE UNITED STATES NAVAL HOSPITAL AT SAN DIEGO, YOU WERE RELEASED FROM HOSPITALIZATION AND DIRECTED TO REPORT FOR TEMPORARY DUTY AT THAT HOSPITAL WHILE AWAITING FURTHER ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. ORDERS DATED APRIL 13, 1950, TO YOU FROM THE CHIEF OF NAVAL PERSONNEL READ IN PART AS FOLLOWS:

2. HAVING BEEN FOUND NOT FIT FOR DUTY BY A PHYSICAL EVALUATION BOARD, YOU WILL REPORT IMMEDIATELY TO THE COMMANDING OFFICER OF THE NAVAL HOSPITAL IN CONNECTION WITH PROCEDURES INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY.

3. UPON COMPLETION, YOU WILL PROCEED TO YOUR HOME.

4. IT IS REQUESTED THAT YOU FURNISH THE BUREAU OF NAVAL PERSONNEL ONE COPY OF THESE ORDERS BEARING ALL ENDORSEMENTS. IT IS ALSO REQUESTED THAT YOU REPORT YOUR MAIL ADDRESS AND SUBSEQUENT CHANGES THEREOF TO THE BUREAU OF NAVAL PERSONNEL AND TO THE COMMANDANT OF THE NAVAL DISTRICT IN WHICH YOU RESIDE. ATTENTION IS INVITED TO ARTICLES 1232 AND 1233, NAVY REGULATIONS, 1948.

5. HAVING BEEN PLACED ON THE RETIRED LIST OF U.S. NAVY ON APRIL 1950, YOU WILL REGARD YOURSELF RELIEVED OF ALL ACTIVE DUTY AS OF THAT DATE.

FIRST ENDORSEMENT BY THE COMMANDING OFFICER OF THE NAVAL HOSPITAL AT SAN DIEGO DATED APRIL 21, 1950, ON THE ABOVE-QUOTED ORDERS INDICATES THAT ON THAT DATE YOU WERE RELIEVED OF ALL ACTIVE DUTY INCIDENT TO YOUR RETIREMENT. THE BUREAU OF NAVAL PERSONNEL HAS REPORTED INFORMALLY THAT ON MARCH 31, 1950, THE SECRETARY OF THE NAVY APPROVED THE ORDER DIRECTING THAT YOUR NAME BE PLACED ON THE RETIRED LIST EFFECTIVE APRIL 1, 1950; THAT YOU WERE RETIRED FOR DISABILITY UNDER THE PROVISIONS OF SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, AND THAT YOUR FILE CONTAINS NO ORDERS CONTINUING YOU ON ACTIVE DUTY OR RECALLING YOU TO ACTIVE DUTY AFTER RETIREMENT.

SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, SUPRA, PROVIDES AS OLLOWS:

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAT 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: PROVIDED FURTHER, THAT ANY DISABILITY SHOWN TO HAVE BEEN INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY.

UNDER THE FOREGOING PROVISIONS, A MEMBER OF THE REGULAR NAVY OR THE UNITED STATES NAVAL RESERVE MAY BE RETIRED BY THE SECRETARY OF THE NAVY UPON A DETERMINATION BY HIM THAT THE CONDITIONS SPECIFIED HAVE BEEN MET. NOTICE TO THE MEMBER OF HIS RETIREMENT IS NOT ONE OF THE SPECIFIED CONDITIONS. UNDER PROVISIONS SIMILAR TO THOSE ABOVE-QUOTED CONTAINED IN SECTION 1453 OF THE REVISED STATUTES WHICH PROVIDED FOR THE RETIREMENT OF AN OFFICER OF THE NAVY UPON THE APPROVAL BY THE PRESIDENT OF A FINDING BY A RETIRING BOARD THAT THE OFFICER WAS INCAPACITATED FOR ACTIVE SERVICE, IT HAS BEEN HELD THAT THE ORDER OF THE PRESIDENT PLACING THE OFFICER ON THE RETIRED LIST CHANGES THE STATUS OF THE OFFICER WHEREVER HE MAY BE AND WHATEVER DUTY HE MAY BE PERFORMING, AND, IN THE ABSENCE OF ORDERS ISSUED PRIOR TO RETIREMENT DEFINITELY ASSIGNING HIM TO ACTIVE DUTY AFTER RETIREMENT OF ACTIVE DUTY, THE OFFICER'S ACTIVE-DUTY PAY CEASES ON THE DATE ON WHICH HE WAS ORDERED TO BE PLACED ON THE RETIRED LIST. 17 COMP. DEC. 533, 536; 18 COMP. DEC. 747, 750; TERRY V. UNITED STATES, 81 C.1CLS. 958; HOLLAND V. UNITED STATES, 83 C.CLS. 376.

IN VIEW OF THE FOREGOING RULE, THERE APPEARS TO BE NO PROPER BASIS FOR HOLDING THAT YOUR RETIREMENT DID NOT BECOME EFFECTIVE ON APRIL 1, 1950, AND IN THE ABSENCE OF A SHOWING THAT ORDERS WERE ISSUED BY PROPER AUTHORITY CONTINUING YOU ON ACTIVE DUTY AFTER RETIREMENT, THERE IS NO AUTHORITY TO ALLOW YOU ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD INVOLVED. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.