B-147273, AUG. 3, 1965

B-147273: Aug 3, 1965

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TO KING AND KING: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 15. YOUR REQUEST IS BASED ON THE LAST PARAGRAPH OF A REPORT DATED JANUARY 18. WHICH READS AS FOLLOWS: "IT IS REPORTED THAT ON 13 MAY 1952 MR. WRIGHT'S RECORDS WERE REVIEWED BY THE PHYSICAL REVIEW COUNCIL PURSUANT TO THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 AND THAT IT WAS REPORTED THAT HIS DISABILITIES WERE NOT RATABLE. HAVE BEEN DESTROYED AND THE DISABILITIES WHICH WERE CONSIDERED IN HIS CASE ARE NOT KNOWN. WRIGHT WAS RETIRED CANNOT BE DETERMINED FROM HIS SERVICE MEDICAL RECORDS. IT IS NOTED THAT HIS POSTGASTROENTEROSTOMY SYNDROME WAS MENTIONED IN PRACTICALLY EVERY REPORT OF PHYSICAL EXAMINATION CONDUCTED IN HIS CASE SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE FLEET NAVAL RESERVE DURING 1935.

B-147273, AUG. 3, 1965

TO KING AND KING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1965, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION OF FEBRUARY 21, 1962, B-147273, WHEREIN WE SUSTAINED THE DISALLOWANCE OF THE CLAIM OF WALER HALLOCK WRIGHT, A CHIEF WARRANT OFFICER OF THE UNITED STATES NAVY RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, FOR INCREASED RETIRED PAY BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957).

YOUR REQUEST IS BASED ON THE LAST PARAGRAPH OF A REPORT DATED JANUARY 18, 1962, FURNISHED US BY THE BUREAU OF MEDICINE AND SURGERY FOR USE IN CONNECTION WITH THE REVIEW OF MR. WRIGHT'S CLAIM, WHICH READS AS FOLLOWS:

"IT IS REPORTED THAT ON 13 MAY 1952 MR. WRIGHT'S RECORDS WERE REVIEWED BY THE PHYSICAL REVIEW COUNCIL PURSUANT TO THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 AND THAT IT WAS REPORTED THAT HIS DISABILITIES WERE NOT RATABLE. THE WORK SHEETS USED BY THE PHYSICAL REVIEW COUNCIL IN REVIEWING MR. WRIGHT'S CASE, AS WELL AS THE CASES OF OTHER MEMBERS OF THE FLEET RESERVE, HAVE BEEN DESTROYED AND THE DISABILITIES WHICH WERE CONSIDERED IN HIS CASE ARE NOT KNOWN. ALTHOUGH THE EXACT DISABILITY FOR WHICH MR. WRIGHT WAS RETIRED CANNOT BE DETERMINED FROM HIS SERVICE MEDICAL RECORDS, IT IS NOTED THAT HIS POSTGASTROENTEROSTOMY SYNDROME WAS MENTIONED IN PRACTICALLY EVERY REPORT OF PHYSICAL EXAMINATION CONDUCTED IN HIS CASE SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE FLEET NAVAL RESERVE DURING 1935. SINCE HIS ULCER DISEASE WAS INCURRED WHILE ON ACTIVE DUTY, AND IN VIEW OF THE FACT THAT THIS DEFECT WAS PRESENT AND REPORTED DURING THE MAJORITY OF HIS PHYSICAL EXAMINATIONS, THIS BUREAU CONTINUES OF THE OPINIONS THAT THIS WAS ONE OF THE DISABILITIES FOR WHICH HE WAS RETIRED AND THAT THIS DISABILITY WAS INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY.'

IN SUSTAINING THE DISALLOWANCE OF MR. WRIGHT'S CLAIM, WE STATED IN OUR DECISION OF FEBRUARY 21, 1962, B-147273, THAT IN ORDER FOR MR. WRIGHT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER SECTIONS 402 (D) AND 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 818, 823, IT MUST BE SHOWN THAT THE DEFECT CAUSED BY HIS ULCER DISEASE WAS SUFFICIENT IN ITSELF TO WARRANT THE PLACEMENT OF HIS NAME ON THE DISABILITY RETIRED LIST, AND THAT, SINCE THE ADMINISTRATIVE REPORT IN HIS CASE DID NOT SUPPORT THAT VIEW, IT WAS CONCLUDED THAT THERE WAS NOT SUFFICIENT BASIS FOR QUESTIONING THE ACTION TAKEN BY THE CHIEF OF NAVAL PERSONNEL IN INFORMING HIM IN JULY 1952 THAT HE WAS NOT ENTITLED TO AN ELECTION UNDER SECTION 411. WE ARE STILL OF THIS SAME OPINION.

THE LETTER OF JANUARY 18, 1962, DID NOTHING MORE THAN EXPRESS THE VIEW OF THE BUREAU OF MEDICINE AND SURGERY THAT SUCH DEFECT AS REMAINED WITH MR. WRIGHT FOLLOWING AN OPERATION FOR THE REMOVAL OF AN ULCER OF THE DUODENUM IN AUGUST 1933--- A PHYSICAL EXAMINATION REPORT AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE IN 1935 LISTED SUCH DEFECT AS CONSISTING OF NOTHING MORE THAN A FIVE-INCH OPERATIONAL SCAR ON THE ABDOMEN--- WAS ONE OF THE DISABILITIES FOR WHICH HE WAS RETIRED. WHEN IT IS REMEMBERED THAT THE COMBINED DEFECTS--- ALL BUT THE ONE MENTIONED ABOVE WERE NOT SERVICE CONNECTED--- WERE OF SUCH MINOR NATURE AS NOT TO WARRANT A PERCENTAGE OF DISABILITY RATING, THE VIEW EXPRESSED IN THE LETTER OF JANUARY 18, 1962, FALLS FAR SHORT OF ESTABLISHING THAT THE DEFECT WHICH REMAINED AFTER THE OPERATION WAS SUFFICIENT IN ITSELF TO JUSTIFY THE PLACEMENT OF HIS NAME ON THE DISABILITY RETIRED LIST.

THE BUREAU OF NAVAL PERSONNEL ADVISED MR. WRIGHT IN LETTER OF JULY 16, 1952, THAT A REVIEW OF HIS OFFICIAL RECORD INDICATED THAT THE PHYSICAL DISABILITY WHICH RESULTED IN HIS TRANSFER TO THE RETIRED LIST WAS NOT INCURRED "WHILE IN RECEIPT OF BASIC PAY.' THERE SEEMS NO DOUBT THAT THIS ACTION BY THE BUREAU OF NAVAL PERSONNEL WAS BASED ON THE DETERMINATION MADE BY THE PHYSICAL REVIEW COUNCIL. IN THE CIRCUMSTANCES SHOWN, THE VIEW EXPRESSED APPROXIMATELY 10 YEARS LATER BY THE BUREAU OF MEDICINE AND SURGERY--- AFTER STATING THAT THE WORKSHEETS USED BY THE PHYSICAL REVIEW COUNCIL IN REVEALING MR. WRIGHT'S CASE HAVE BEEN DESTROYED AND THE DISABILITIES WHICH WERE CONSIDERED IN HIS CASE ARE NOT KNOWN--- FURNISHES TOO DOUBTFUL A BASIS FOR ALLOWANCE OF HIS CLAIM. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884).

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