B-96250, DEC 4, 1950

B-96250, DEC 4, 1950

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

THERE HAS BEEN RECEIVED A LETTER DATED NOVEMBER 7, 1950, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY, BY YOUR DIRECTION, SUBMITTING ADDITIONAL FACTS AND INFORMATION RESPECTING THE MATTER CONSIDERED IN DECISION DATED OCTOBER 25, 1950, B-96250, RELATIVE TO THE RETIRED PAY ON AND AFTER APRIL 1, 1950, OF CAPTAIN CHARLES J. GASS, UNITED STATES NAVAL RESERVE (RETIRED).

THE SAID DECISION WAS RENDERED ON THE RECORD THEN BEFORE THIS OFFICE WHICH MAY BE SUMMARIZED, INSOFAR AS IS HERE MATERIAL AS FOLLOWS:

CHARLES J. GASS WAS RELEASED TO INACTIVE DUTY, WITHOUT PAY, ON JUNE 20, 1946, PURSUANT TO THE FINDING OF A BOARD OF MEDICAL SURVEY NOT INCURRED IN LINE OF DUTY. THE NAVAL MEDICAL SURVEY REVIEW BOARD, ESTABLISHED UNDER THE PROVISIONS OF SECTION 302(A) OF THE ACT OF JUNE 22, 1944, 58 STAT. 287, AS AMENDED, CONSIDERED HIS CASE AND ON JANUARY 20, 1950, RENDERED AN OPINION TO THE EFFECT THAT HE WAS PHYSICALLY UNFIT FOR ACTIVE DUTY BY REASON OF DISABILITY INCURRED IN LINE OF DUTY AND EXISTING ON JUNE 20, 1946, AND RECOMMENDED THAT HE BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. ON MARCH 31, 1950, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE LATTER BOARD AND DIRECTED THAT, EFFECTIVE APRIL 1, 1950, CAPTAIN GASS BE PLACED ON THE PERMANENT RETIRED LIST FOR PHYSICAL DISABILITY IN CONFORMITY WITH THE PROVISIONS OF SECTION 1453, REVISED STATUTES (RETIREMENT OF OFFICERS OF THE REGULAR NAVY BY REASON OF PHYSICAL DISABILITY), SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED (RETIREMENT PAY OF NAVAL RESERVE OFFICERS SUFFERING DISABILITY WHILE ON ACTIVE DUTY TO BE THE SAME AS THAT OF REGULAR OFFICERS OF CORRESPONDING GRADE AND LENGTH OF SERVICE), AND SECTION 302(A) OF THE ACT OF JUNE 22, 1944, AS AMENDED, SUPRA (REVIEW OF CASES OF RELEASE FROM ACTIVE SERVICE, WITHOUT PAY, BY REASON OF PHYSICAL DISABILITY).

THE FILE SUBMITTED WITH YOUR REQUEST FOR DECISION DID NOT SHOW APPROVAL BY THE PRESIDENT OF THE PROCEEDINGS AND DECISION OF THE NAVAL MEDICAL SURVEY REVIEW BOARD AND HIS ORDERS IN CONNECTION THEREWITH, AS REQUIRED BY THE LAST SENTENCE, HEREINAFTER QUOTED, OF THE ABOVE-CITED SECTION 302(A), AS AMENDED. ACCORDINGLY, IT WAS SAID IN THE DECISION OF OCTOBER 25, 1950, THAT UNLESS THE PRESIDENT APPROVED THE ACTION OF THE SECRETARY OF THE NAVY RESPECTING THE RETIREMENT OF CAPTAIN GASS BY REASON OF THE APPLICATION OF THE PROVISIONS OF THE SAID SECTION, THE OFFICER WOULD HAVE NO RIGHT TO RETIRED PAY INCIDENT TO DISABILITY RETIREMENT, AND IT WAS HELD THAT:

"ASSUMING THAT IT HAS BEEN DETERMINED IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN THE SAID SECTION 302(A) THAT CAPTAIN GASS WAS ELIGIBLE TO BE RETIRED FOR PHYSICAL DISABILITY ON JUNE 20, 1946, AND ASSUMING THAT HIS RETIREMENT FOR PHYSICAL DISABILITY WAS APPROVED BY THE PRESIDENT (AS CONTEMPLATED BY SUCH SECTION) IN MARCH 1950, HE BECAME ENTITLED TO RETIRED PAY AS OF APRIL 1, 1950. ***"

IT IS STATED IN THE LETTER OF THE JUDGE ADVOCATE GENERAL THAT THE PRESIDENT APPROVED THE PROCEEDINGS, FINDING AND RECOMMENDATION OF THE NAVAL MEDICAL SURVEY REVIEW BOARD ON FEBRUARY 25, 1950, IN ACCORDANCE WITH THE PROVISIONS OF THE SAID SECTION 302; THAT CAPTAIN GASS APPEARED BEFORE A PHYSICAL EVALUATION BOARD ON MARCH 16, 1950; AND THAT ON MARCH 31, 1950, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE LATTER BOARD AND DIRECTED THAT THE OFFICER BE PLACED ON THE PERMANENT RETIRED LIST FOR PHYSICAL DISABILITY. IT IS FURTHER STATED THAT THE DEPARTMENT OF THE NAVY HAS LONG RECOGNIZED THAT THE APPROVED ACTION OF A NAVAL MEDICAL SURVEY REVIEW BOARD DOES NOT IN ITSELF HAVE THE LEGAL EFFECT OF ESTABLISHING ENTITLEMENT TO RETIREMENT BENEFITS, AND THAT ENTITLEMENT TO SUCH BENEFITS ARISES ONLY THROUGH PROCEEDINGS BEFORE NAVAL RETIRING BOARDS, OR PHYSICAL EVALUATION BOARDS AS THEY ARE CURRENTLY DESIGNATED, WHICH ARE FINALLY APPROVED PURSUANT TO LAW BY PROPER AUTHORITY. CLARIFICATION IS SOUGHT AS TO WHETHER THE INFORMATION NOW FURNISHED ESTABLISHES APPROVAL BY THE PRESIDENT AS REQUIRED BY SECTION 302(A).

THE LAST SENTENCE OF SECTION 302(A) OF THE ACT OF JUNE 22, 1944, AS AMENDED, IS AS FOLLOWS:

"THE PROCEEDINGS AND DECISIONS OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OR MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE."

IN THE PRESENT CASE, THE NAVAL MEDICAL SURVEY REVIEW BOARD ON JANUARY 20, 1950, REVERSED THE DECISION OF BOARD OF MEDICAL SURVEY BY FINDING, IN EFFECT, THAT CAPTAIN GASS WAS UNFIT FOR DUTY, BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, ON JUNE 20, 1946, THE DATE OF HIS RELEASE TO INACTIVE DUTY. THE PRESIDENT ON FEBRUARY 25, 1950, APPROVED THE PROCEEDINGS, FINDING AND RECOMMENDATION OF THE NAVAL MEDICAL SURVEY REVIEW BOARD. THIS CONSTITUTED THE APPROVAL CONTEMPLATED BY SECTION 302(A), AS AMENDED.

THERE IS NO SHOWING THAT THE PRESIDENT ISSUED ANY "ORDERS" IN THE CASE, AS PRESCRIBED BY THE ABOVE SECTION. AS TO THIS PHASE OF THE MATTER, I AGREE WITH THE SUGGESTION OF THE JUDGE ADVOCATE GENERAL THAT THE PRESIDENT'S APPROVAL OF THE ACTION OF THE REVIEW BOARD-- A FINDING FAVORABLE TO THE OFFICER'S APPLICATION FOR DISABILITY RETIREMENT PAY-- WAS A SUFFICIENT DIRECTIVE BY THE PRESIDENT THAT THE MATTER BE PROCESSED WITH A VIEW OF GRANTING THE OFFICER SUCH PAY. OTHERWISE, THE PRESIDENT'S APPROVAL WOULD HAVE BEEN POINTLESS.

ACCORDINGLY, THE DOUBT STATED IN THE DECISION OF OCTOBER 25, 1950, AS TO WHETHER THE REQUIRED APPROVAL HAD BEEN MADE BY THE PRESIDENT IN THIS CASE, NOW HAS BEEN REMOVED AND THERE APPEARS TO BE NO REASON WHY CAPTAIN GASS SHOULD NOT BE PAID RETIRED PAY AS INDICATED IN SUCH DECISION, EFFECTIVE AS OF APRIL 1, 1950.