B-165484, AUGUST 7, 1969, 49 COMP. GEN. 77

B-165484, AUGUST 7, 1969, 49 COMP. GEN. 77

MILITARY PERSONNEL -- MEDICALLY UNFIT -- STATUS THE HOLDING IN 48 COMP. GEN. 377 THAT INDUCTEES INTO THE MILITARY SERVICE WHO BECAUSE THEY DID NOT MEET MEDICAL FITNESS OR RETENTION MEDICAL FITNESS STANDARDS WERE RELEASED FROM THE SERVICE ARE ENTITLED TO BASIC PAY FOR THE PERIOD OF INDUCTION, AND IF QUALIFIED TO DISABILITY RETIREMENT OR SEPARATION UNDER 10 U.S.C. CHAPTER 61, IS APPLICABLE TO INDUCTEES RELEASED ON THE BASIS OF A VOID INDUCTION PRIOR TO THE DECISION. THE DECISION RELATING TO PERSONS WHOSE DISABILITY WAS DORMANT OR OVERLOOKED AND NOT TO PERSONS WHOSE DISABILITY EXISTED PRIOR TO INDUCTION, THE PROVISIONS OF PARAGRAPHS 1-8D AND 1-8.1A(1). OF ARMY REGULATION 635-40, TO THE EFFECT THAT A DISEASE OR INJURY THAT IS NOT RECORDED AT THE TIME OF ENTRANCE ON DUTY IS PRESUMED TO BE SERVICE CONNECTED--ANY DOUBT TO BE RESOLVED IN THE FAVOR OF THE MEMBER--ARE NOT APPLICABLE TO CASES FOR CONSIDERATION PURSUANT TO 48 COMP. GEN. 377. MILITARY PERSONNEL -- RECORD CORRECTION -- DISCHARGE CHANGE AS ENTITLEMENT TO PAY, ETC. -- MEDICALLY UNFIT PERSONS WHERE MEDICALLY UNFIT PERSONS WERE RELEASED ON THE BASIS OF A VOID INDUCTION PRIOR TO 48 COMP. GEN. 377 HOLDING THAT PHYSICALLY OR MENTALLY UNQUALIFIED INDUCTEES INTO THE MILITARY SERVICE ARE ENTITLED TO BASIC PAY, AND IF QUALIFIED TO DISABILITY RETIREMENT OR SEPARATION UNDER 10 U.S.C. CHAPTER 61, THE MILITARY RECORDS OF THE ERRONEOUSLY RELEASED PERSONS MAY BE CORRECTED TO SHOW DISCHARGE AS OF THE DATE OF RELEASE FROM MILITARY CUSTODY AND CONTROL, ANY DISABILITY RETIREMENT OR SEVERANCE PAY DETERMINATION EFFECTED UNDER 10 U.S.C. 1552 TO CONSIDER THE AGGRAVATION OF AN UNFIT CONDITION OR A NEW OR ADDITIONAL UNFITTING CONDITION ACQUIRED WHILE ON DUTY. ABSENT A CHANGE IN A PHYSICAL CONDITION WHILE ON ACTIVE DUTY, DISCHARGE MAY BE MADE FOR THE CONVENIENCE OF THE GOVERNMENT WITHOUT DISABILITY RETIREMENT OR SEVERANCE PAY, AND ALL DISCHARGED PERSONS MAY BE INFORMED OF THEIR ENTITLEMENT TO THE PAY AND ALLOWANCES THAT ACCRUED PRIOR TO RELEASE.

TO THE SECRETARY OF DEFENSE, AUGUST 7, 1969:

REFERENCE IS MADE TO LETTER OF JULY 3, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE APPLICATION OF OUR DECISION OF DECEMBER 3, 1968, 48 COMP. GEN. 377, TO INDUCTEES WHO WERE INDUCTED INTO THE UNIFORMED SERVICES AND LATER DISCHARGED (RELEASED FROM MILITARY CUSTODY AND CONTROL) BECAUSE THEY DID NOT MEET THE PROCUREMENT MEDICAL FITNESS STANDARDS OR THE RETENTION MEDICAL FITNESS STANDARDS. THE QUESTIONS, TOGETHER WITH A DISCUSSION PERTAINING THERETO, ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 430.

OUR DECISION OF DECEMBER 3, 1968, DID NOT PERTAIN TO PERSONS WHO HAVE BEEN JUDICIALLY DETERMINED TO BE MENTALLY INCOMPETENT PRIOR TO INDUCTION, BUT RELATED TO PERSONS AS TO WHOM THERE WAS NO AFFIRMATIVE STATUTORY PROHIBITION AGAINST INDUCTION OR ABSOLUTE DISQUALIFICATION THEREFOR, WHO DID NOT REFUSE TO BE INDUCTED, AND WHO SUBMITTED THEMSELVES FOR INDUCTION INTO THE ARMED FORCES WITHOUT PROTEST AND PRESUMABLY PERFORMED MILITARY TRAINING AND SERVICE WITHOUT PROTEST AGAINST THE LAWFULNESS OF THEIR INDUCTION. AS TO SUCH PERSONS WE EXPRESSED THE VIEW THAT THE ADMINISTRATIVE FAILURE TO DISCOVER THAT THEIR MENTAL OR PHYSICAL CONDITION WAS SUCH AS TO WARRANT REJECTION FOR MILITARY SERVICE DOES NOT DEPRIVE THEM OF THE RIGHT TO MILITARY PAY AND ALLOWANCES OR OF THE STATUS OF BEING ENTITLED TO BASIC PAY.

OUR HOLDINGS IN THAT DECISION ARE SUMMARIZED IN THE COMMITTEE ACTION AS FOLLOWS:

THE ADMINISTRATIVE FAILURE TO DISCOVER THAT THE MENTAL OR PHYSICAL CONDITION OF A PERSON INDUCTED INTO THE ARMED FORCES WAS SUCH AS WOULD WARRANT REJECTION FOR MILITARY SERVICE, DOES NOT DEPRIVE HIM OF HIS RIGHT TO MILITARY PAY AND ALLOWANCES AND ACCRUED LEAVE.

MEDICALLY UNFIT PERSONS INDUCTED INTO THE SERVICE ARE ENTITLED TO MILITARY PAY AND ALLOWANCES FROM THE TIME OF ENTRY ON ACTIVE DUTY THROUGH THE DATE THEY ARE RELEASED FROM MILITARY CONTROL.

TRANSPORTATION IN KIND OR MONETARY ALLOWANCE IN LIEU THEREOF MAY BE FURNISHED THESE PERSONS TO THEIR HOMES OF RECORD UPON RELEASE FROM MILITARY CONTROL.

AN INDIVIDUAL WHO, AT THE TIME OF INDUCTION, NEITHER MET THE PROCUREMENT MEDICAL FITNESS STANDARDS NOR THE RETENTION MEDICAL FITNESS STANDARDS AND WHOSE CONDITIONS HAS NOT BEEN AGGRAVATED BY ACTIVE SERVICE WOULD NOT BE ENTITLED TO DISABILITY SEVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE. REASON: THE DISABILITY INVOLVED IN THIS CASE WOULD NOT BE INCURRED WHILE ENTITLED TO BASIC PAY, BUT WOULD BE INCURRED PRIOR TO ENTRANCE INTO THE SERVICE.

AN INDIVIDUAL WHO, AT TIME OF INDUCTION, NEITHER MET THE PROCUREMENT MEDICAL FITNESS STANDARDS NOR THE RETENTION MEDICAL FITNESS STANDARDS BUT WHOSE CONDITION HAS BEEN AGGRAVATED BY ACTIVE SERVICE OR WHO ACQUIRED A NEW OR ADDITIONAL UNFITTING CONDITION IS ENTITLED TO DISABILITY SEVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE. THESE INDIVIDUALS MUST OTHERWISE MEET THE REQUIREMENTS OF LAW, INCLUDING THE REQUISITE DEGREE OR EXTENT OF AGGRAVATION OF THE PREEXISTING DISABILITY.

AN INDIVIDUAL WHO DID NOT MEET PROCUREMENT MEDICAL FITNESS STANDARDS AT THE TIME OF INDUCTION, BUT DID THEN MEET THE RETENTION FITNESS STANDARDS AND WHO ACQUIRED AN UNFITTING MEDICAL CONDITION AFTER INDUCTION, WOULD BE ENTITLED TO DISABILITY SEVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE, PROVIDED, OF COURSE, HE MEETS ALL OF THE QUALIFICATIONS THEREFOR.

THE COMMITTEE ACTION STATES THAT PRIOR TO OUR DECISION OF DECEMBER 3, 1968, A NUMBER OF ARMY INDUCTEES (ESTIMATED TO NUMBER SEVERAL THOUSAND) SUBSEQUENTLY FOUND NOT TO HAVE MET ENTRANCE MEDICAL STANDARDS OR MEDICAL RETENTION STANDARDS WERE RELEASED FROM MILITARY CONTROL BY VIRTUE OF A VOID INDUCTION WITHOUT BEING PROCESSED FOR DISABILITY SEPARATION UNDER THE PROVISIONS OF CHAPTER 61 OF TITLE 10 U.S.C.

THE COMMITTEE ACTION FURTHER STATES THAT INDIVIDUALS RELEASED BY VIRTUE OF A VOID INDUCTION ARE REQUESTING CORRECTION OF THEIR MILITARY RECORDS TO SHOW DISCHARGE BY REASON OF PHYSICAL DISABILITY OR OTHER ACTION WITH ENTITLEMENT TO THE BENEFITS PROVIDED IN THAT CHAPTER. THE OPINION IS EXPRESSED THAT THE INDUCTION OF AN INDIVIDUAL WHO DID NOT MEET THE MEDICAL FITNESS STANDARDS AT THE TIME OF INDUCTION IS VOIDABLE, NOT VOID, AND THAT THESE INDIVIDUALS ARE MEMBERS OF THE ARMY AND AS SUCH ELIGIBLE FOR PHYSICAL DISABILITY PROCESSING UNDER THE PROVISIONS OF ARMY REGULATION 635 -40, MAY 15, 1967, AS CHANGED BY CHANGE 1, FEBRUARY 7, 1968. THE COMMITTEE ACTION NOTED THAT OUR DECISION OF DECEMBER 3, 1968, DID NOT ADDRESS ITSELF TO INDIVIDUALS WHO HAD PREVIOUSLY BEEN RELEASED UNDER THE PROVISIONS OF PARAGRAPH 5-9.1, ARMY REGULATION 635-200, JULY 15, 1966, AS CHANGED BY CHANGE 7, SEPTEMBER 11, 1968.

THE FIRST QUESTION IS:

1. DOES THE DECISION OF THE COMPTROLLER GENERAL THAT INDUCTEES WHO DID NOT MEET MEDICAL FITNESS STANDARDS ARE ENTITLED TO BASIC PAY AND, IF OTHERWISE QUALIFIED, SEPARATION UNDER TITLE 10, UNITED STATES CODE, CHAPTER 61, APPLY TO INDUCTEES WHO WERE RELEASED FROM THE CUSTODY AND CONTROL OF THE ARMY PRIOR TO THE DECISION? THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE. IT SHOULD BE NOTED, HOWEVER, THAT PARAGRAPH 1-8D OF ARMY REGULATION 635-40, MAY 15, 1967, PROVIDED IN PERTINENT PART:

IT WILL BE PRESUMED, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, THAT THE DISEASE OR INJURY WAS INCURRED IN LINE OF DUTY. ANY REASONABLE DOUBT WILL BE RESOLVED IN FAVOR OF THE MEMBER. EVERY MEMBER WILL BE PRESUMED TO HAVE BEEN IN SOUND CONDITION WHEN EXAMINED AND ACCEPTED BY THE ARMY FOR SERVICE, EXCEPT AS TO DEFECTS, INFIRMITIES, OR DISORDERS NOTED AT THE TIME OF EXAMINATION AND ACCEPTANCE *** . CHANGE NO. 2 TO THAT REGULATION--NOW NUMBERED 1 8.1A(1)--READS WITH RESPECT TO THAT MATTER THAT:

A MEMBER IS PRESUMED TO HAVE BEEN IN SOUND PHYSICAL AND MENTAL CONDITION UPON ENTERING ACTIVE SERVICE EXCEPT AS TO PHYSICAL DISABILITIES NOTED AND RECORDED AT THE TIME OF ENTRANCE. ANY DISEASE OR INJURY DISCOVERED AFTER A MEMBER ENTERS ACTIVE SERVICE IS PRESUMED TO HAVE BEEN INCURRED IN LINE OF DUTY WHILE ENTITLED TO RECEIVE BASIC PAY AND NOT DUE TO THE MEMBER'S INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT.

OUR DECISION OF DECEMBER 3, 1968, COVERED "A MEMBER WHO MAY HAVE A DORMANT DISEASE WHICH IS NOT DISCOVERED UNTIL SOME TIME AFTER INDUCTION" AS WELL AS A MEMBER WHOSE DEFECT THE "MEDICAL AUTHORITIES MAY HAVE OVERLOOKED *** EVEN THOUGH PROPER MEDICAL PROCEDURES WERE FOLLOWED." NOTHING CONTAINED IN THAT DECISION WAS INTENDED TO SANCTION THE DISABILITY SEPARATION OR RETIREMENT OF ANY PERSON IN SUCH CATEGORIES NOTWITHSTANDING THE ABOVE-QUOTED PROVISIONS OF ARMY REGULATIONS, AND NOTHING CONTAINED HEREIN SHOULD BE SO CONSTRUED, SINCE IN THESE CASES IT HAS BEEN DETERMINED THAT THE DISABILITY EXISTED PRIOR TO INDUCTION, THAT IS, THE ABOVE-QUOTED PRESUMPTIONS ARE NOT APPLICABLE HERE.

THE SECOND QUESTION READS AS FOLLOWS:

2. IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE, WOULD THERE BE ANY OBJECTION IF THE ARMY TAKES THE FOLLOWING ACTION?

A. THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WILL ADMINISTRATIVELY CORRECT THE MILITARY RECORDS OF INDIVIDUALS RELEASED PRIOR TO THE COMPTROLLER GENERAL'S DECISION TO SHOW THEM DISCHARGED AS OF THE DATE THEY WERE RELEASED FROM MILITARY CUSTODY AND CONTROL, AND

B. WHERE THE INDIVIDUAL'S TERMINAL PHYSICAL EXAMINATION INDICATES THAT HIS PHYSICAL CONDITION HAS BEEN AGGRAVATED BY ACTIVE SERVICE OR THAT HE ACQUIRED A NEW OR ADDITIONAL UNFITTING CONDITION WHILE ON ACTIVE DUTY, AN ADMINISTRATIVE DETERMINATION WILL BE MADE AS TO THE DEGREE OR EXTENT OF THE DISABILITY, BASED UPON THE TERMINAL PHYSICAL EXAMINATION. THE INDIVIDUAL WILL BE GIVEN DISABILITY RETIREMENT OR SEVERANCE PAY BASED ON THIS DETERMINATION. THE INDIVIDUAL WILL BE NOTIFIED OF HIS RIGHT TO DEMAND A HEARING UNDER THE PROVISIONS OF TITLE 10, U.S.C. SECTION 1214. FOR THE PURPOSE OF COMPUTING SEVERANCE PAY UNDER THE PROVISIONS OF TITLE 10, UNITED STATES CODE, SECTION 1212, HE WILL BE CONSIDERED TO HAVE BEEN SEPARATED ON THE DATE HE WAS RELEASED FROM MILITARY CUSTODY AND CONTROL, OR

C. WHERE THE INDIVIDUAL'S TERMINAL PHYSICAL EXAMINATION INDICATES THAT HIS PHYSICAL CONDITION WAS NOT AGGRAVATED BY ACTIVE SERVICE AND THAT HE DID NOT ACQUIRE A NEW OR ADDITIONAL UNFITTING PHYSICAL CONDITION WHILE ON ACTIVE DUTY, OR WHERE THE PHYSICAL EXAMINATION DOES NOT CONTAIN SUFFICIENT INFORMATION FOR A DETERMINATION, THE INDIVIDUAL WILL BE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT WITHOUT DISABILITY RETIREMENT OR SEVERANCE PAY, AND

D. ALL INDIVIDUALS DISCHARGED UNDER THIS PROCEDURE WILL BE INFORMED THAT THEY ARE ENTITLED TO ALL PAY AND ALLOWANCES WHICH ACCRUED PRIOR TO THE DATE THEY WERE RELEASED FROM THE CUSTODY AND CONTROL OF THE ARMY.

THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE, PROVIDED DISABILITY BENEFITS UNDER CHAPTER 61 OF TITLE 10, U.S. CODE, ARE PAID ONLY IN CASES WHERE APPROPRIATE ACTION IS EFFECTED UNDER 10 U.S.C. 1552. SEE 31 COMP. GEN. 444, 449-151 (1952), ANSWER TO FIFTH QUESTION.