B-108149, SEP 4, 1952

B-108149: Sep 4, 1952

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THAT HE WAS RELEASED FROM ACTIVE DUTY ON APRIL 8. HE WAS ADMITTED TO THE SICK LIST BECAUSE OF RENAL COLIC. WHILE X-RAY EVIDENCE WAS FOUND OF SMALL CALCAREOUS DEPOSITS IN THE RIGHT KIDNEY. THE FUNCTION OF THE KIDNEY WAS REPORTED TO BE EXCELLANT AND THERE WAS NO EVIDENCE OF OTHER DISEASE AND AFTER FIVE DAYS ON THE SICK LIST HE WAS RETURNED TO DUTY. HE WAS READMITTED TO THE SICK LIST BECAUSE OF A RECURRENCE OF RENAL COLIC. HE APPEARED BEFORE A BOARD OF MEDICAL SURVEY WHICH BOARD STATED THAT SURGICAL INTERVENTION WAS NOT INDICATED AND ON DECEMBER 14. WHICH RECOMMENDATION APPARENTLY WAS FOLLOWED. THE ACTING SECRETARY OF THE NAVY ADVISED HIM THAT IN VIEW OF HIS MEDICAL HISTORY HE COULD NOT BE CONSIDERED TO HAVE INCURRED PHYSICAL DISABILITY WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940.

B-108149, SEP 4, 1952

PRECIS-UNAVAILABLE

COMMANDER J.B. WARNER, SC, U.S. NAVY:

BY LETTER DATED FEBRUARY 14, 1952, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 22, 1952, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION ON THE DISABILITY RETIREMENT PAY RIGHTS OF COMMANDER NATHANIEL H. MATROS, UNITED STATES NAVAL RESERVE.

IT APPEARS THAT COMMANDER MATROS REPORTED FOR ACTIVE DUTY AS AN OFFICER OF THE NAVAL RESERVE ON MARCH 13, 1941, AND THAT HE WAS RELEASED FROM ACTIVE DUTY ON APRIL 8, 1946, IN THE INTERIM, ON FEBRUARY 21, 1943, HE WAS ADMITTED TO THE SICK LIST BECAUSE OF RENAL COLIC. WHILE X-RAY EVIDENCE WAS FOUND OF SMALL CALCAREOUS DEPOSITS IN THE RIGHT KIDNEY, THE FUNCTION OF THE KIDNEY WAS REPORTED TO BE EXCELLANT AND THERE WAS NO EVIDENCE OF OTHER DISEASE AND AFTER FIVE DAYS ON THE SICK LIST HE WAS RETURNED TO DUTY. ON SEPTEMBER 13, 1945, HE WAS READMITTED TO THE SICK LIST BECAUSE OF A RECURRENCE OF RENAL COLIC. X RAY EXAMINATION SHOWED SUBSTANTIALLY THE SAME CONDITION AS THAT DISCLOSED BY THE EARLIER X-RAY FILMS. DECEMBER 3, 1945, HE APPEARED BEFORE A BOARD OF MEDICAL SURVEY WHICH BOARD STATED THAT SURGICAL INTERVENTION WAS NOT INDICATED AND ON DECEMBER 14, 1945, THE BUREAU OF MEDICINE AND SURGERY RECOMMENDED THAT HE BE RETURNED TO DUTY, WHICH RECOMMENDATION APPARENTLY WAS FOLLOWED. BY LETTER DATED JANUARY 28, 1946, THE OFFICER REQUESTED THAT HE BE ORDERED TO APPEAR BEFORE A NAVAL RETIRING BOARD. BY LETTER DATED MARCH 15, 1946, THE ACTING SECRETARY OF THE NAVY ADVISED HIM THAT IN VIEW OF HIS MEDICAL HISTORY HE COULD NOT BE CONSIDERED TO HAVE INCURRED PHYSICAL DISABILITY WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, AS AMENDED, 34 U.S.C. 855C-1, RELATING TO DISABILITY RETIREMENT PAY OF MEMBERS OF THE NAVAL RESERVE. HE WAS ADVISED, HOWEVER, THAT IN ORDER THAT THE FULLEST CONSIDERATION MIGHT BE GIVEN TO HIS CASE, HE WOULD BE ORDERED TO APPEAR BEFORE A NAVAL RETIRING BOARD. ON APRIL 11, 1946, HE APPEARED BEFORE A NAVAL RETIRING BOARD WHICH FOUND THAT HE HAD NOT SUFFERED ANY PHYSICAL DISABILITY OF SUCH CHARACTER AS TO ABSOLUTELY DISQUALIFY HIM FOR DUTY ON THE ACTIVE LIST AND ON AUGUST 22, 1946, SUCH FINDING WAS APPROVED BY THE PRESIDENT. AGAIN ON MAY 11, 1949, HE APPEARED BEFORE A NAVAL RETIRING REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I, WHICH BOARD AFFIRMED THE FINDING AND DECISION OF THE BOARD BEFORE WHICH HE APPEARED ON APRIL 11, 1946, AND THE FINDING OF THIS LATTER BOARD WAS APPROVED BY THE PRESIDENT ON AUGUST 23, 1949. HOWEVER, IN AN OPINION DATED JUNE 19, 1951, THE JUDGE ADVOCATE GENERAL OF THE NAVY POINTED OUT THAT COMMANDER MATROS' RELEASE FROM ACTIVE DUTY ON APRIL 8, 1946, WAS NOT A RELEASE FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY AND PROPERLY CONCLUDED, THEREFORE, THAT THE NAVAL RETIRING REVIEW BOARD HAD NO JURISDICTION TO CONSIDER HIS CASE (SEE, IN THAT CONNECTION, DECISION TO YOU DATED JUNE 24, 1952, B-108930) AND RECOMMENDED THAT HE BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. SUCH RECOMMENDATION WAS APPROVED AND HE APPARENTLY APPEARED BEFORE SUCH A BOARD WHICH RECOMMENDED THAT HE BE FOUND UNFIT TO PERFORM THE DUTIES OF HIS RANK AS OF THE DATE OF HIS RELEASE FROM ACTIVE DUTY AND THAT HIS DISABILITY WAS INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY. SUCH RECOMMENDATION WAS APPROVED BY THE ASSISTANT SECRETARY OF NAVY FOR AIR ON OCTOBER 16, 1951, WHO DIRECTED THAT HE BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST.

SUCH ACTION BY THE PHYSICAL EVALUATION BOARD APPARENTLY WAS MOTIVATED AND INFLUENCED BY THE FACT THAT THE OFFICER'S RIGHT KIDNEY WAS REMOVED ON DECEMBER 28, 1950, AND THEREAFTER SUBJECTED TO MICROSCOPIC STUDY WHICH REVEALED THAT HE HAD BEEN SUFFERING FROM A TUBERCULOUS DISEASE THEREOF. ADDITIONALLY, IT IS INDICATED THAT THERE HAD BEEN ADDUCED OTHER EVIDENCE, IN THE NATURE OF EXPERT OPINION, TO THE EFFECT THAT HE SUFFERED FROM THE DISEASE WHILE ON ACTIVE DUTY DURING WORLD WAR II. SUCH OPINION IS STATED TO HAVE BEEN BASED LARGELY UPON THE CHRONIC NATURE OF THE DISEASE PROCESS; THE LENGTH OF TIME REQUIRED FOR THE DEPOSITION OF CALCIUM IN THE TUBERCULOUS LESIONS; THE OCCURRENCE OF RENAL COLIC IN FEBRUARY 1943 WITH X -RAY EVIDENCE OF CALCIFIED LESIONS IN THE RIGHT KIDNEY AT THAT TIME; THE PECULIAR NATURE OF THE LESIONS IN THE KIDNEY; AND THE NATURE AND CONTINUITY OF THE CLINICAL COURSE OF THE DISEASE.

ON THE BASIS OF THE FACT IS, AS RELATED, YOU REQUEST DECISION AS TO WHETHER COMMANDER MATROS IS ENTITLED TO DISABILITY RETIREMENT PAY EFFECTIVE FROM NOVEMBER 1, 1951.

IN DECISION OF APRIL 25, 1951, 30 COMP. GEN. 409, IT WAS HELD THAT MEMBERS OF THE ARMY OF THE UNITED STATES, OTHER THAN THE REGULAR ARMY, WHO WERE RELEASED FROM ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO OCTOBER 12, 1949, THE DATE OF THE APPROVAL OF THE CARRER COMPENSATION ACT OF 1949, 63 STAT. 802, AND WHO, SUBSEQUENT TO THAT DATE, WHILE ON INACTIVE DUTY, ARE FOUND TO BE PHYSICALLY DISABLED FROM DATE OF RELEASE FROM ACTIVE DUTY, ARE NOT ENTITLED TO DISABILITY RETIREMENT PAY, BECAUSE SUCH CASES DO NOT COME WITHIN THE PROVISIONS OF TITLE IV OF THE SAID CAREER COMPENSATION ACT, WHICH SUPERSEDED AND REPEALED OTHER PROVISIONS OF LAW AUTHORIZING RETIREMENT PAY FOR PHYSICAL DISABILITY.

WHILE THAT DECISION APPLIES EQUALLY TO MEMBERS OF THE NAVAL RESERVE, THE JUDGE ADVOCATE GENERAL APPARENTLY DOES NOT CONSIDER THAT THIS CASE FALLS WITHIN THE PRINCIPLE THEREOF, IT BEING STATED THAT IT IS THE VIEW OF THE DEPARTMENT THAT THE DETERMINATION MADE BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR ON OCTOBER 16, 1951, WAS MADE UPON A REHEARING OF A CASE WHICH HAD ORIGINALLY BEEN HEARD PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, AND WAS, IN EFFECT, A CONTINUATION OF THE ORIGINAL PROCEEDINGS SO THAT THE LAWS IN EFFECT AT THE TIME OF THE ORIGINAL HEARING ARE CONTROLLING UPON THE REHEARING. AND, SINCE IT IS ALLEGED THAT THE ASSISTANT SECRETARY'S ACTION WAS BASED ON NEWLY DISCOVERED EVIDENCE OF A SUBSTANTIAL CHARACTER, THE VIEW IS EXPRESSED THAT SUCH ACTION IS SUPPORTED BY THE DECISIONS OF THE COURT OF CLAIMS IN SPENCER V. UNITED STATES, 100 F. SUPP. 444; 102 ID. 774; AND CARLIN V. UNITED STATES, 100 F. SUPP. 451, WHICH INVOLVED THE QUESTION OF THE RIGHT OF THE SECRETARY OF THE ARMY TO REDETERMINE THE LINE OF DUTY STATUS OF A DISABILITY SUFFERED BY AN OFFICER OF THE ARMY OF THE UNITED STATES, OTHER THAN THE REGULAR ARMY, BASED ON NEWLY DISCOVERED EVIDENCE OF A SUBSTANTIAL NATURE.

THIS OFFICE IS UNABLE TO CONCUR WITH THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, SINCE FROM THE FACTS AS RECITED ABOVE, THIS CASE APPEARS TO FALL SQUARELY WITHIN THE PRINCIPLE ENUNCIATED IN THE DECISION OF THIS OFFICE DATED APRIL 25, 1951, SUPRA, IN THE WORDS OF SUCH DECISION THERE WAS NOT HERE INVOLVED A REVIEW OF ANY PREVIOUS ACTION OR DETERMINATION, IT MERELY HAVING BEEN A MATTER OF MAKING AN ORIGINAL DETERMINATION IN OCTOBER 1951 THAT COMMANDER MATROS WAS SUFFERING FROM A THEN CURRENT DISABILITY WHICH HAD BEEN INCURRED IN LINE OF DUTY AT SUCH PREVIOUS TIME WHILE HE WAS SERVING ON ACTIVE DUTY. AND, HOWEVER THAT MAY BE, SINCE THE STATUTE UNDER WHICH RETIREMENT PAY COULD HAVE BEEN GRANTED IN SUCH CASES HAD BEEN SUPERSEDED AND REPEALED BY TITLE IV OF THE CAREER COMPENSATION ACT, THERE WAS NO LEGAL BASIS FOR THE SECRETARY TO CONTINUE PROCEEDINGS THEREUNDER. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE. COMPARE DECISION OF JUNE 24, 1952, B-108930, SUPRA.

IN CONNECTION WITH THE FOREGOING IT MAY BE NOTED THAT ON JUNE 17, 1952, THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TABLED A BILL, H.R. 8192, 82D CONGRESS, 2D SESSION, WHICH WOULD HAVE PROVIDED AUTHORITY FOR FURTHER CONSIDERATION OF THE DISABILITY RETIREMENT PAY RIGHTS OF PERSONS RELEASED UNDER CIRCUMSTANCES GENERALLY SUCH AS THOSE HERE INVOLVED. SEE REPORT NO. 85 OF THE HEARINGS BEFORE THE FULL COMMITTEE ON H.R. 8192.