B-128594, AUG. 9, 1963

B-128594, AUG. 9, 1963

TO MR. ELMER CARL WOODWARD:

BY LETTER DATED APRIL 4, 1963, YOUR ATTORNEY REQUESTED RECONSIDERATION OF DECISION OF MARCH 28, 1963, WHICH SUSTAINED ON REVIEW THE SETTLEMENT OF FEBRUARY 25, 1963, DISALLOWING YOUR CLAIM FOR ADJUSTMENT OF YOUR RETIRED PAY BASED ON THE COURT OF CLAIMS DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710. THE REQUEST FOR RECONSIDERATION IS BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FRANK BRIGGS WILSON V. UNITED STATES, CT.CL. NO. 465-59, DECIDED NOVEMBER 7, 1962.

YOUR ATTORNEY STATES THAT THE COURT OF CLAIMS HELD IN THAT CASE THAT "THE RE-RETIREMENT CONCEPT SHOULD BE APPLIED IN CONSTRUING THIS SECTION (411), AND THAT WHERE A RETIRED MEMBER INCURRED A PHYSICAL DISABILITY DURING HIS WORLD WAR II SERVICE, THE PERCENTAGE OF HIS DISABILITY SHOULD BE DETERMINED AS OF THE DATE OF HIS RELEASE TO INACTIVE DUTY AT THE END OF WORLD WAR II.' IT IS FURTHER CONTENDED THAT OUR DISALLOWANCE OF YOUR CLAIM FAILS TO TAKE INTO CONSIDERATION THE ADDITIONAL DISABILITY WHICH YOU INCURRED WHILE SERVING ON ACTIVE DUTY DURING WORLD WAR II AND TO THIS EXTENT FAILS TO GIVE EFFECT TO THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT.

IN THE WILSON CASE THE PLAINTIFF WAS FIRST RETIRED FOR 30 YEARS' ACTIVE AND INACTIVE SERVICE IN 1938, WAS RECALLED TO ACTIVE DUTY IN 1941, AND WHEN HE WAS RETURNED TO INACTIVE STATUS ON THE RETIRED LIST IN 1945 A BOARD OF MEDICAL SURVEY FOUND THAT HE HAD A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY. UNDER THE "RE-RETIREMENT" CONCEPT THE COURT HELD THAT HE WAS RETIRED FOR PHYSICAL DISABILITY WITHIN THE MEANING OF SECTION 411 AND THAT HIS PERCENTAGE OF PHYSICAL DISABILITY WAS IMPORTANT WITH RESPECT TO THE COMPUTATION OF RETIRED PAY UNDER 402 (D). THE MEMBER WAS REFERRED BACK TO THE NAVY DEPARTMENT TO HAVE A DETERMINATION MADE OF THE PERCENTAGE OF HIS DISABILITY AT THE TIME HE WAS "LAST RETIRED.'

IN ALL CASES COMING WITHIN THE SCOPE OF THE SELIGA DECISION THE BASIC ISSUE PRESENTED IS NOT THAT OF A "RE-RETIREMENT," BUT WHETHER THE MEMBER CONCERNED WAS RETIRED BECAUSE OF DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AT A TIME WHEN HE WAS ENTITLED TO COUNT INACTIVE SERVICE IN THE FLEET RESERVE IN COMPUTING HIS ACTIVE DUTY PAY (AFTER MAY 31, 1942). IF SO, AND HIS DISABILITY RETIRED PAY IS COMPUTED UNDER SECTION 402 (D), THE BASIC PAY FACTOR TO BE USED INCLUDES ALL ACTIVE AND INACTIVE SERVICE (INCLUDING SERVICE IN THE FLEET RESERVE) CREDITABLE IN THE COMPUTATION OF HIS ACTIVE-DUTY PAY AT THE TIME OF HIS "RE-RETIREMENT.'

IN THE DECISION OF MARCH 28, 1963, YOU WERE ADVISED THAT YOU WERE NOT ELIGIBLE TO MAKE AN ELECTION TO RECEIVE DISABILITY RETIRED PAY UNDER SECTION 402 OF THE ACT AND WERE CONSIDERED TO HAVE BEEN COVERED AUTOMATICALLY BY SECTION 511 OF THE ACT. THIS WAS SO BECAUSE YOU WERE NOT ENTITLED TO TITLE IV BENEFITS BECAUSE YOUR DISABILITY WAS NOT SERVICE- INCURRED, THAT IS, NOT INCURRED WHILE IN RECEIPT OF BASIC PAY.

THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON A REPORT DATED FEBRUARY 14,1963, RECEIVED FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, ADVISING, IN EFFECT, THAT YOUR DISABILITY EXISTED PRIOR TO YOUR ORIGINAL ENLISTMENT AND THAT AS A RESULT OF PHYSICAL EXAMINATIONS OF SEPTEMBER 18, 1939, AND FEBRUARY 26, 1940, THE DATE YOU REPORTED FOR ACTIVE DUTY FOLLOWING OVER 8 YEARS OF INACTIVE SERVICE IN THE FLEET NAVAL RESERVE, THE BUREAU OF MEDICINE AND SURGERY RECOMMENDED TO THE BUREAU OF NAVIGATION THAT YOUR NAME BE PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY, MARKED DEFECTIVE VISUAL ACUITY, AND THAT YOU BE CLASSIFIED AS PHYSICALLY QUALIFIED FOR MOBILIZATION ASHORE. ACCORDINGLY, ON AUGUST 1, 1940, YOU WERE SO RETIRED.

THE SERVICE CREDITABLE IN COMPUTATION OF BASIC PAY WHILE ON ACTIVE DUTY AS REFERRED TO IN SECTION 511 (B) WAS ESTABLISHED UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, SUBSECTION (B) OF WHICH AUTHORIZED CREDIT FOR PERIODS OF INACTIVE SERVICE IN THE FLEET RESERVE OR ON THE RETIRED LIST OF THE NAVY IN COMPUTING ACTIVE DUTY BASIC PAY. HOWEVER, THE SAME SUBSECTION PROVIDED THAT THE SERVICE CREDIT AUTHORIZED FOR ACTIVE DUTY PAY PURPOSES (INACTIVE SERVICE IN THE FLEET RESERVE AND ON THE RETIRED LIST) SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY EXCEPT AS PROVIDED IN TITLE IV OF THE 1949 ACT. (SEE JUAN S. AFLAGUE, ET AL. (ERNEST W. GREAVES, NO. 14) V. UNITED STATES, CT.CL. NO. 212-56, DECIDED JANUARY 12, 1962).

THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, HAS REPORTED BY LETTER OF JUNE 28, 1963, THAT YOUR PHYSICAL DISABILITY WAS NEITHER INCURRED IN NOR AGGRAVATED BY A PERIOD OF ACTIVE SERVICE BUT, RATHER, THE DEGREE OF DISABILITY AT THE TIME OF YOUR RETIREMENT AND RE RETIREMENT WAS DUE TO THE NATURAL PROGRESSION OF A DEVELOPMENTAL DEFECT WHICH IN FACT EXISTED PRIOR TO YOUR ENTRY INTO THE NAVAL SERVICE. IN THIS CONNECTION, THE POINT AT WHICH THE BUREAU CONSIDERED YOUR PHYSICAL DISABILITY TO DISQUALIFY YOU FOR UNRESTRICTED DUTY OCCURRED WHILE YOU WERE IN AN INACTIVE STATUS.

THE BUREAU REPORTED FURTHER THAT, WHILE YOU DID APPEAR BEFORE A BOARD OF MEDICAL SURVEY ON OCTOBER 2, 1946, WITH THE DIAGNOSIS OF ASTIGMATISM, COMPOUND, HYPEROPIC, THE BOARD'S REPORT IS CONSIDERED BY THE BUREAU TO HAVE CONTAINED ERRONEOUS STATEMENTS WITH RESPECT TO THE INCURRENCE OF THE DISABILITY. THE BUREAU INDICATES FURTHER THAT THE BOARD APPARENTLY HAD NOT REVIEWED YOUR SERVICE MEDICAL RECORD HELD ON FILE BY THE BUREAU OF MEDICINE AND SURGERY WHEN IT ISSUED THE ERRONEOUS STATEMENTS THAT YOUR DISABILITY WAS INCURRED IN LINE OF DUTY AND DID NOT EXIST PRIOR TO ENLISTMENT AND THAT YOU WERE UNFIT FOR SERVICE, AND THAT IT WAS MERELY COMPLYING WITH THE PROVISIONS OF JOINT BUPERS AND BUMED LETTER 45-450 (SEE NAVY DEPARTMENT BULLETIN--- NAVEXOS P-153 JAN-JUNE 1945) WHICH REQUIRED THAT PARTIALLY DISABLED INDIVIDUALS BE BROUGHT BEFORE A BOARD OF MEDICAL SURVEY. THE BUREAU REPORTS THAT YOUR VISUAL ACUITY WAS ABOVE THE MINIMUM STANDARDS FOR SPECIAL ASSIGNMENT AND FOR RETENTION IF NECESSARY, AND THAT, THEREFORE, YOU COULD HAVE PERFORMED FURTHER USEFUL NAVAL SERVICE AND, EXCEPT FOR DEMOBILIZATION, WOULD HAVE BEEN RETAINED ON ACTIVE DUTY.

THE CASE OF FRANK BRIGGS WILSON DOES NOT SUPPLY ANY BASIS FOR ALLOWANCE OF YOUR CLAIM INASMUCH AS ON THE PRESENT RECORD YOU ARE SHOWN AS REMAINING UNQUALIFIED TO RECEIVE RETIRED PAY UNDER TITLE IV OF THE CAREER COMPENSATION ACT, AS THE DISABILITY FOR WHICH YOU WERE RETIRED WAS NOT INCURRED WHILE YOU WERE IN RECEIPT OF BASIC PAY. (AFLAGUE, ET AL. (GREAVES), SUPRA.) IN DETERMINING THAT YOUR DISABILITY WAS NOT INCURRED ON ACTIVE DUTY THE NAVY DEPARTMENT HAS, IN EFFECT, DETERMINED THAT YOUR DISABILITY WAS NOT CAUSED BY ACTIVE DUTY DURING WORLD WAR II AND WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY.