B-121773, JAN 28, 1955

B-121773, JAN 28, 1955

PRECIS-UNAVAILABLE

C.D. MILLER, LIEUTENANT, USCO:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1954, AND ENCLOSURES, REQUESTING DECISION AS TO WHETHER MR. ROBERT E. HARRIS IS ENTITLED TO RECEIVE RETIRED PAY AS A COMMISSIONED OFFICER OF THE UNITED STATES COAST GUARD RESERVE, COMPUTED ON THE RANK OF LIEUTENANT, AS A RESULT OF THE CORRECTION MADE IN HIS COAST GUARD RECORDS. YOU HAVE SUBMITTED A VOUCHER STATED IN FAVOR OF MR. HARRIS IN THE NET AMOUNT OF $12,533.72, REPRESENTING THE RETIRED PAY OF A LIEUTENANT WITH OVER THREE YEARS' CREDITABLE SERVICE FOR THE PERIOD FROM DECEMBER 23, 1945, TO JUNE 30, 1954, INCLUSIVE, LESS DISABILITY COMPENSATION PAID HIM BY THE VETERANS ADMINISTRATION AND LESS A MUSTERING-OUT PAYMENT MADE TO HIM.

THE STATEMENT OF MR. HARRIS' COAST GUARD SERVICE, ALSO RECEIVED WITH YOUR LETTER, DISCLOSES THAT HE HAD AN ENLISTED STATUS IN THE COAST GUARD RESERVE FROM MAY 22, 1942, TO AUGUST 31, 1942, BEING HONORABLY DISCHARGED ON THE LATTER DATE; THAT HE ACCEPTED AN APPOINTMENT AND EXECUTED THE OATH AS ENSIGN, COAST GUARD RESERVE, ON NOVEMBER 25, 1942, AND ENTERED ON ACTIVE DUTY THAT DATE; THAT ON SEPTEMBER 1, 1943, HE WAS APPOINTED LIEUTENANT (JG) FOR TEMPORARY SERVICE IN THE COAST GUARD RESERVE; AND THAT ON OCTOBER 23, 1945, WHILE ON TERMINAL LEAVE, HE WAS APPOINTED A TEMPORARY LIEUTENANT IN THE COAST GUARD RESERVE. HE WAS RELEASED TO INACTIVE DUTY EFFECTIVE DECEMBER 22, 1945, AND HIS COMMISION IN THE COAST GUARD RESERVE TERMINATED THAT DATE BY REASON OF THE EXPIRATION OF HIS APPOINTMENT. MR. HARRIS SUBSEQUENTLY HELD AN APPOINTMENT AS LIEUTENANT IN THE COAST GUARD RESERVE DURING THE PERIOD DECEMBER 28, 1945, TO DECEMBER 28, 1948, INCLUSIVE. IT IS FURTHER SHOWN THAT IN 1954, UPON APPROVAL OF CERTAIN FINDINGS OF THE BOARD FOR CORRECTION OF MILITARY RECORDS OF THE COAST GUARD, HE WAS CONSIDERED AS HAVING BEEN RETIRED FOR PHYSICAL DISABILITY EFFECTIVE AS OF DECEMBER 23, 1945, AND THAT HE HAS BEEN PLACED ON THE RETIRED LIST IN THE RANK OF LIEUTENANT (JG), U.S. COAST GUARD RESERVE.

A COPY OF THE PROCEEDINGS AND FINDINGS OF THE BOARD FOR CORRECTION OF MILITARY RECORDS OF THE COAST GUARD IN THE CASE DISCLOSES (1) THAT A ROUTINE PHYSICAL EXAMINATION CONDUCTED ON OCTOBER 10, 1945, SHOWED MR. HARRIS TO BE PHYSICALLY QUALIFIED FOR RELEASE TO INACTIVE DUTY; (2) THAT ABOUT TWO DAYS LATER HE WAS DETACHED FROM ALL ASSIGNED DUTIES AS LIEUTENANT (JG) AND DEPARTED ON TERMINAL LEAVE UNDER ORDERS RELEASING HIM FROM ACTIVE DUTY IN THE COAST GUARD RESERVE EFFECTIVE DECEMBER 22, 1945, UPON THE EXPIRATION OF HIS TERMINAL LEAVE; (3) THAT WHILE ON TERMINAL LEAVE HE WAS PROMOTED TO THE TEMPORARY RANK OF LIEUTENANT (SUBJECT TO THE PHYSICAL QUALIFICATIONS PRESCRIBED FOR SUCH AN APPOINTMENT) PURSUANT TO THE AUTHORITY OF COAST GUARD ALCOAST NO. 131, DATED OCTOBER 23, 1945; AND (4) THAT SUBSEQUENT TO DECEMBER 23, 1945, THE DATE HE WAS RELEASED TO INACTIVE DUTY STATUS AS PHYSICALLY FIT, IT WAS DETERMINED BY APPROPRIATE MEDICAL AUTHORITIES THAT THE RECORD SUPPORTS A PRESUMPTION THAT HE WAS IN FACT PHYSICALLY INCAPACITATED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. THE BOARD CONCLUDED, THEREFORE, THAT BASED UPON SUCH FINDINGS THE OFFICER'S RELEASE TO INACTIVE DUTY EFFECTIVE DECEMBER 23, 1945, AS PHYSICALLY FIT REPRESENTED AN ERROR WHICH SHOULD BE CORRECTED. ACCORDANCE WITH THE DECISION OF THE BOARD, APPROVED BY THE SECRETARY OF THE TREASURY ON APRIL 6, 1954, THE COAST GUARD RECORDS HAVE BEEN CORRECTED TO SHOW THAT MR. HARRIS "WAS INCAPACITATED FOR ACTIVE SERVICE ON DECEMBER 22, 1945, THE DAY HE WAS RELEASED TO INACTIVE DUTY, BY REASON OF HIATUS HERNIA; THAT HIS INCAPACITY IS PERMANENT, IS THE RESULT OF AN INCIDENT OF SERVICE, AND IS NOT THE RESULT OF HIS OWN VICIOUS HABITS; THAT HIS CONDITION BECAME DISABLING IN OCTOBER OF 1945, WHILE SERVING IN THE RANK OF LIEUTENANT (JUNIOR GRADE), THAT HE BE PLACED ON THE DISABILITY RETIRED LIST AS OF DECEMBER 23, 1945, IN THE RANK OF LIEUTENANT (JUNIOR GRADE), AND THAT HIS INCAPACITY IS CONSIDERED TO BE 40% DISABLING UNDER DIAGNOSTIC CODE NOS. 7399-7304-7306 OF THE VETERANS' ADMINISTRATION SCHEDULE."

THE AMOUNT AUTHORIZED TO BE PAID UNDER SECTION 207(B) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 656, 5 U.S.C. 191AB), AS A RESULT OF THE CORRECTION OF A MILITARY RECORD MADE PURSUANT TO THE PROVISIONS OF SECTION 207(A) OF THE ACT, DEPENDS UPON A PROPER APPLICATION OF THE PERTINENT STATUTES TO THE FACTS OF THE CASE AND THE CLAIMANT'S ACTUAL STATUS AS FIXED BY HIS CORRECTED RECORDS. 32 COMP. GEN. 242, 246. ACCORDINGLY, MR. HARRIS' RIGHT TO RECEIVE RETIRED PAY EFFECTIVE FROM DECEMBER 23, 1945, DEPENDS UPON THE PROPER APPLICATION OF THE PERTINENT STATUTES TO THE FACTS, OR PURPORTED FACTS, AS SHOWN BY THE CORRECTED MILITARY RECORDS IN HIS CASE. COMPARE 34 COMP. GEN. 7; 34 COMP. GEN. 96.

MR. HARRIS' COAST GUARD RECORDS, AS CORRECTED, SHOW THAT, AS A RESULT OF AN INCIDENT OF SERVICE, HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE ON DECEMBER 22, 1945, THE DATE OF HIS RELEASE FROM ACTIVE DUTY, AND THAT HIS PHYSICAL CONDITION BECAME DISABLING WHILE HE WAS SERVING IN THE TEMPORARY RANK OF LIEUTENANT (JG). HENCE, UNDER THE PROVISIONS OF SECTIONS 8(A) AND 11 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 605, 34 U.S.C. 350GA) AND 350JB), 1946 ED., HE BECAME ENTITLED, IMMEDIATELY UPON THE CORRECTION OF HIS RECORDS, TO RETIREMENT IN THE RANK OF LIEUTENANT (JG) WITH RETIRED PAY AT THE RATE OF 75 PER CENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

THE RIGHT OF AN OFFICER WHOSE STATUS PLACES HIM WITHIN THE SCOPE OF SECTION 10(B)(2) OF THE ACT OF JULY 24, 1941, AS ADDED BY SECTION 8(A) OF THE ACT APPROVED FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350IB)(2), TO BE ADVANCED TO A HIGHER GRADE OR RANK ON THE RETIRED LIST ARISES ONLY UPON HIS RETIREMENT UNDER OTHER PROVISIONS OF LAW AND IS DEPENDENT ON A DETERMINATION BY THE SECRETARY CONCERNED THAT THE OFFICER SERVED SATISFACTORILY, PRIOR TO JUNE 30, 1946, IN SUCH HIGHER GRADE OR RANK UNDER A TEMPORARY APPOINTMENT ACCOMPLISHED PURSUANT TO THE PROVISIONS OF THE 1941 LAW. IN THE INSTANT CASE IT IS CLEAR THAT THE OFFICER'S RIGHT TO RETIREMENT PAY BY REASON OF PHYSICAL DISABILITY DID NOT ARISE PRIOR TO THE CORRECTION MADE IN HIS COAST GUARD RECORDS AS A RESULT OF THE APPROVED FINDINGS OF THE CORRECTION BOARD WHICH CONVENED IN HIS CASE. CONSEQUENTLY, THE "SATISFACTORY SERVICE CARD" (FORM NAVCG-2844) ISSUED TO THE OFFICER BY THE COAST GUARD UPON HIS SEPARATION FROM THAT SERVICE ON DECEMBER 22, 1945, AND THE CERTIFICATE OF "SATISFACTORY SERVICE" ADDRESSED TO LIEUTENANT ROBERT E. HARRIS UNDER DATE OF JANUARY 7, 1946, BY THE SECRETARY OF THE NAVY "FOR THE PRESIDENT" OF THE UNITED STATES, (BOTH OF WHICH WERE PRIOR TO THE ENACTMENT OF SECTION 10(B)(2) BY THE ACT OF FEBRUARY 21, 1946) MAY NOT BE CONSIDERED AS EVIDENCE OF A DETERMINATION BY THE SECRETARY CONCERNED THAT MR. HARRIS SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AS LIEUTENANT WITHIN THE MEANING OF THAT SECTION. ALSO, IT IS NOTED THAT SUCH CARD AND CERTIFICATE RELATE TO HIS ENTIRE SERVICE DURING WORLD WAR II AND APPEAR TO HAVE BEEN ISSUED PRIMARILY FOR THE PURPOSES OF REEMPLOYMENT PROVISIONS SUCH AS WERE CONTAINED IN SECTIONS 308 AND 357, TITLE 50, WAR, APPENDIX, U.S.C. 1946 ED.

MOREOVER, IN VIEW OF THE APPROVAL BY THE SECRETARY OF THE TREASURY OF THE SPECIFIC DECISION OF THE BOARD FOR CORRECTION OF MILITARY RECORDS OF THE COAST GUARD THAT MR. HARRIS SHOULD BE PLACED ON THE DISABILITY RETIRED LIST AS OF DECEMBER 23, 1945, IN THE RANK OF LIEUTENANT (JG), THE RECORD SEEMS TO SUGGEST OR IMPLY THAT THE SECRETARY OF THE TREASURY HAS DETERMINED, OR MIGHT DETERMINE, THAT MR. HARRIS DID NOT SERVE SATISFACTORILY IN THE HIGHER RANK OF LIEUTENANT UNDER A TEMPORARY APPOINTMENT DURING THE PERIOD OCTOBER 23, 1945, TO DECEMBER 22, 1945, INCLUSIVE, THERE BEING A PRESUMPTION THAT WHEN THE SECRETARY OF THE TREASURY APPROVED THE CORRECTION BOARD'S DECISION HE WAS FULLY ADVISED OF THE ADVANCEMENT PROVISIONS CONTAINED IN SECTION 10(B)(2) OF THE 1941 ACT, AS AMENDED. IN ANY EVENT, THE RECORD BEFORE THIS OFFICE SHOWS THAT MR. HARRIS HAS BEEN PLACED ON THE RETIRED LIST OF THE COAST GUARD RESERVE IN THE RANK OF LIEUTENANT (JG) AND IN THE ABSENCE OF A SPECIFIC DETERMINATION BY THE SECRETARY OF THE TREASURY UNDER SECTION 10(B)(2) THAT HE SERVED SATISFACTORILY IN THE HIGHER RANK OF LIEUTENANT UNDER A TEMPORARY APPOINTMENT DURING THE PERIOD OCTOBER 23, 1945, TO DECEMBER 22, 1945 (OR A FURTHER CORRECTION IN HIS RECORDS UNDER SECTION 207(A) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED), NO PROPER BASIS IS PRESENTED TO PAY HIM THE RETIRED PAY OF A LIEUTENANT.

ACCORDINGLY, PAYMENT ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED AND IT WILL BE RETAINED IN THIS OFFICE. HOWEVER, THE PAPERS WHICH ACCOMPANIED THE VOUCHER ARE RETURNED.