B-168296, OCT 22, 1970, 50 COMP GEN 314

B-168296, OCT 22, 1970, 50 COMP GEN 314

PAY - RETIRED - DISABILITY - DISABILITY FOUND PRIOR TO ELIGIBILITY FOR PROMOTION WHERE THE DISABILITY RETIREMENT ORDERS OF AN AIR FORCE MAJOR CARRIED OUT THE RECOMMENDATIONS OF A PHYSICAL EVALUATION BOARD WHO HAD FOUND THE OFFICER PERMANENTLY DISABLED AND UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, THE PROMOTION OF THE OFFICER TO THE TEMPORARY GRADE OF LIEUTENANT COLONEL WITHIN 3 MONTHS PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT WAS WITHOUT EFFECT AND INCONSISTENT WITH GOVERNING AIR FORCE REGULATIONS; AND SINCE THE OFFICER'S DISABILITY WAS NOT DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION TO BRING THE PROMOTION WITHIN THE PURVIEW OF 10 U.S.C. 1372(4) AND ENTITLE HIM TO RETIRE AT THE HIGHER GRADE, THERE IS NO AUTHORITY FOR THE PAYMENT OF RETIRED PAY TO THE OFFICER COMPUTED ON THE GRADE OF LIEUTENANT COLONEL.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, OCTOBER 22, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1970 (FILE REFERENCE RPTI), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1,402.68 IN FAVOR OF LIEUTENANT COLONEL VERNON A. CARTWRIGHT, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN THE GRADE OF LIEUTENANT COLONEL AND THAT OF MAJOR FOR THE PERIOD MAY 1, 1969, THROUGH APRIL 30, 1970, IN THE CIRCUMSTANCES DISCLOSED. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF JULY 24, 1970, BY THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1090 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN OUR DECISION OF JANUARY 6, 1970, B-168296, TO WHICH YOU REFER, WE CONSIDERED THE CLAIM OF COLONEL CARTWRIGHT FOR THE DIFFERENCE IN RETIRED PAY BETWEEN THAT COMPUTED ON THE PAY OF THE GRADE OF MAJOR AND THAT OF A LIEUTENANT COLONEL FOR THE MONTH OF MAY 1969. AS REPORTED IN THAT DECISION, THE OFFICER APPEARED BEFORE A USAF PHYSICAL EVALUATION BOARD ON AUGUST 24, 1967, WHICH BOARD FOUND HIM TO BE 20 PERCENT PERMANENTLY DISABLED AND RECOMMENDED HIS PERMANENT RETIREMENT. IT WAS FURTHER REPORTED THAT ON SEPTEMBER 20, 1967, THE PROMOTION SELECTION BOARD MET AND AUTHORIZED HIS PROMOTION TO THE GRADE OF LIEUTENANT COLONEL EFFECTIVE NOVEMBER 20, 1967.

UNDER ORDERS DATED SEPTEMBER 22, 1967, THE OFFICER WAS TO BE RETIRED BY REASON OF PHYSICAL DISABILITY IN THE GRADE OF MAJOR EFFECTIVE FEBRUARY 1, 1968. BY ORDERS DATED NOVEMBER 20, 1967, HOWEVER, HE WAS PROMOTED TO THE TEMPORARY GRADE OF LIEUTENANT COLONEL EFFECTIVE THAT DATE. THEREAFTER, THE ORIGINAL RETIREMENT ORDERS OF SEPTEMBER 22, 1967, WERE REVOKED BY ORDERS DATED JANUARY 15, 1968, AND THE OFFICER WAS RETIRED IN THE GRADE OF LIEUTENANT COLONEL EFFECTIVE FEBRUARY 1, 1968. THE ORDERS OF JANUARY 15, 1968, DID NOT CHANGE THE TYPE OF RETIREMENT (PHYSICAL DISABILITY) NOR THE EFFECTIVE DATE OF RETIREMENT.

IN THE ABOVE DECISION WE QUOTED, IN PERTINENT PART, PARAGRAPH 1603, AIR FORCE MANUAL 35-4- WHICH, AS NOTED, MAKES A MEMBER INELIGIBLE FOR TEMPORARY PROMOTION TO THE GRADE OF MAJOR OR ABOVE ON THE DATE RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY IS APPROVED - AND PARAGRAPH 17E, AIR FORCE REGULATION 36-89, DATED SEPTEMBER 2, 1964 (GOVERNING THE TEMPORARY PROMOTION OF COMMISSIONED AND WARRANT OFFICERS) - WHICH MAKES A MEMBER INELIGIBLE FOR PROMOTION ABOVE THE GRADE OF FIRST LIEUTENANT WHERE THE DATE OF RETIREMENT IS WITHIN 2 YEARS OF THE CONVENING DATE OF THE SELECTION BOARD THAT WOULD NORMALLY CONSIDER THE PROMOTION.

IN THE LIGHT OF THOSE REGULATIONS, WE CONCLUDED THAT THE PROMOTION OF COLONEL CARTWRIGHT ANNOUNCED IN ORDERS DATED NOVEMBER 20, 1967, WAS WITHOUT EFFECT IN VIEW OF THE RETIREMENT ORDERS DATED SEPTEMBER 22, 1967. WE WENT ON TO SAY, HOWEVER, THAT THIS WOULD NOT PRECLUDE THE OFFICER'S ENTITLEMENT TO THE GRADE OF LIEUTENANT COLONEL IF IT IS DETERMINED THAT HE MET THE REQUIREMENTS OF 10 U.S.C. 1372(4).

SECTION 1372(4) OF TITLE 10 PROVIDES THAT UNLESS ENTITLED TO A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY (UNDER 10 U.S.C. 1201) IS ENTITLED TO THE GRADE EQUIVALENT TO THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED, IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

YOU STATE THAT IT HAS BEEN DETERMINED THAT THE OFFICER FAILED TO MEET THE REQUIREMENTS OF 10 U.S.C. 1372(4), CITING AS AUTHORITY A LETTER DATED JANUARY 16, 1970, FROM THE AIR FORCE MILITARY PERSONNEL CENTER, RANDOLPH AIR FORCE BASE, TEXAS, WHEREIN IT IS STATED "SINCE THE AIR FORCE DOES NOT GIVE PHYSICAL EXAMINATIONS FOR TEMPORARY PROMOTIONS, WE DO NOT BELIEVE THE PROVISIONS OF 10 1372(4) WOULD APPLY IN LT COL CARTWRIGHT'S CASE." YOU INVITE ATTENTION, HOWEVER, TO A LETTER DATED NOVEMBER 18, 1966, FROM THE AIR FORCE CHIEF OF STAFF TO THE MAJOR COMMANDS WHICH YOU SAY REDUCED THE 2 -YEAR REQUIREMENT IN PARAGRAPH 17E, AFR 36-89, CITED ABOVE, TO 90 DAYS PROVIDED THE BASIC ELIGIBILITY CRITERIA WERE MET.

YOU SAY THAT SINCE COLONEL CARTWRIGHT HAD MORE THAN 90 DAYS REMAINING WHEN THE PROMOTION BOARD MET ON SEPTEMBER 20, 1967, HE WAS ALLEGEDLY CONSIDERED QUALIFIED FOR PROMOTION. YOU EXPRESSED THE VIEW THAT HIS PROMOTION TO LIEUTENANT COLONEL ON NOVEMBER 20, 1967, MAY HAVE BEEN VALID, UNLESS THE PROVISIONS OF PARAGRAPH 1603, AFM 35-4, OR OTHER PROVISIONS OF AFR 36-89 WOULD RENDER HIM INELIGIBLE. IT SEEMS TO BE YOUR VIEW THAT THE CITED REGULATIONS BAR A PROMOTION ONCE AN OFFICER IS DETERMINED TO BE PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS OFFICE OR GRADE, EVEN THOUGH ON A SELECTED LIST FOR PROMOTION.

THE CHANGE IN POLICY ANNOUNCED IN AIR FORCE CHIEF OF STAFF LETTER OF NOVEMBER 18, 1966, IS CURRENTLY CONTAINED IN PARAGRAPH 26 OF AIR FORCE REGULATION 36-89, DATED MARCH 31, 1969, WHICH READS AS FOLLOWS:

26. OFFICERS INELIGIBLE FOR PROMOTION. AN OFFICER IS INELIGIBLE FOR PROMOTION IF HE DOES NOT MEET THE BASIC ELIGIBILITY CRITERIA ANNOUNCED BY HQ USAF, OR IF HE IS IN ONE OF THE FOLLOWING CATEGORIES:

A. AN OFFICER WITH AN ESTABLISHED DATE OF RELEASE FROM EAD, SEPARATION, OR RETIREMENT WITHIN 90 DAYS OF THE CONVENING DATE OF THE SELECTION BOARD THAT WOULD NORMALLY CONSIDER HIM. IF HIS DATE OF SEPARATION IS ESTABLISHED AFTER THE SELECTION BOARD HAS CONVENED, BUT IS WITHIN 90 DAYS OF THE DATE THE BOARD CONVENED, THE BOARD ACTION CONCERNING HIM IS WITHOUT EFFECT.

PARAGRAPH 26C OF THE SAME REGULATION PROVIDES THAT AN OFFICER IS INELIGIBLE FOR PROMOTION IF HE IS "AN OFFICER WHOM THE SECRETARY OF THE AIR FORCE HAS DETERMINED UNFIT BECAUSE OF PHYSICAL DISABILITY TO PERFORM THE DUTIES OF HIS OFFICE OR GRADE.

SINCE IT HAS NOW BEEN ADMINISTRATIVELY DETERMINED THAT COLONEL CARTWRIGHT'S CASE DOES NOT BRING HIM WITHIN THE PURVIEW OF 10 U.S.C. 1372(4), THAT PROVISION OF LAW IS VIEWED AS BEING INAPPLICABLE IN THIS CASE.

WHILE IT SEEMS TO BE AIR FORCE POLICY, AS STATED IN PARAGRAPH 26 OF AIR FORCE REGULATION 36-89, THAT OFFICERS BEING RETIRED OR RELEASED FROM ACTIVE DUTY ARE ELIGIBLE FOR PROMOTION UNLESS THEIR RETIREMENT OR RELEASE DATE IS WITHIN 90 DAYS (INSTEAD OF 2 YEARS) OF THE SELECTION BOARD'S CONVENING DATE, WE FIND NOTHING IN THAT POLICY WHICH WOULD MAKE AN OTHERWISE INELIGIBLE OFFICER ELIGIBLE FOR PROMOTION. WHERE, AS HERE, A DETERMINATION HAS BEEN MADE THAT THE OFFICER IS UNFIT BECAUSE OF PHYSICAL DISABILITY TO PERFORM THE DUTIES OF HIS OFFICE OR GRADE, IT IS OUR VIEW THAT THE CITED REGULATIONS DO NOT AUTHORIZE THE OFFICER'S PROMOTION.

AS STATED ABOVE, ON AUGUST 24, 1967, A PHYSICAL EVALUATION BOARD FOUND COLONEL CARTWRIGHT TO BE PERMANENTLY DISABLED AND RECOMMENDED HIS PERMANENT RETIREMENT. THE RETIREMENT ORDERS OF SEPTEMBER 22, 1967, RETIRING HIM IN THE GRADE OF MAJOR, CARRIED OUT THE PHYSICAL EVALUATION BOARD'S RECOMMENDATION. WE FIND NOTHING IN THE RECORD TO INDICATE THAT THE FINDING OF PERMANENT DISABILITY BY THE PHYSICAL EVALUATION BOARD WAS EVER CHANGED PRIOR TO THE OFFICER'S RETIREMENT ON FEBRUARY 1, 1968. IT IS OUR VIEW THAT THE PROMOTION ORDERS OF NOVEMBER 20, 1967, PROMOTING THE OFFICER TO THE TEMPORARY GRADE OF LIEUTENANT COLONEL WERE INCONSISTENT WITH THE CITED REGULATIONS AND WERE WITHOUT EFFECT.

ACCORDINGLY, IT IS CONCLUDED THAT THERE IS NO AUTHORITY FOR PAYMENT OF RETIRED PAY TO COLONEL CARTWRIGHT COMPUTED ON THE GRADE OF LIEUTENANT COLONEL. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.