B-103063, B-103324, B-113447, JUNE 14, 1956, 35 COMP. GEN. 696

B-103063, B-103324, B-113447, JUNE 14, 1956, 35 COMP. GEN. 696

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY FOUND TO EXIST PRIOR TO PHYSICAL EXAMINATION FOR PROMOTION THE DECISION IN THE CASE OF LEONARD V. UNITED STATES, 131 C.1CLS. 91, WHICH WAS BASED ON A FACTUAL DETERMINATION THAT THE DISABILITY OF A NAVY LIEUTENANT COMMANDER WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION TO RANK OF COMMANDER WITHIN THE MEANING OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SHOULD BE FOLLOWED IN ADJUSTING THE MEMBER'S RETIRED PAY ON AND AFTER THE DATE OF THE JUDGMENT BASED ON THE HIGHER RANK TO WHICH HE HAD BEEN RECOMMENDED FOR PROMOTION. IN ABSENCE OF A CONCLUSION IN THE CASE OF LEONARD V. UNITED STATES, 131 C.1CLS. 91, THAT SECTION 312 (1) OF THE OFFICER PERSONNEL ACT OF 1947, RELATING TO RETIRED PAY OF AN OFFICER ON A PROMOTION LIST WHOSE PHYSICAL DISABILITY WAS FOUND TO EXIST PRIOR TO EXAMINATION FOR PROMOTION, WAS NOT REPEALED BY SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, THE DECISION AFFORDS NO BASIS FOR A DETERMINATION THAT A LIEUTENANT (J.G.), WHO WAS HOSPITALIZED FOR AN INJURY RECEIVED IN AN AIRPLANE ACCIDENT ALMOST A YEAR BEFORE HE WAS SELECTED FOR PROMOTION TO LIEUTENANT WITHOUT A PHYSICAL EXAMINATION FOR PROMOTION AND WHO WAS RETIRED BECAUSE OF THE INJURY, WAS FOUND TO HAVE A DISABILITY AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION AND, THEREFORE, THE MEMBER IS NOT ENTITLED TO AN ADJUSTMENT OF RETIRED PAY BASED ON THE HIGHER RANK. THE TEMPORARY PROMOTIONS FOR RETIRED PAY ELIGIBILITY COVERED BY THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 ARE THOSE BASED ON CUMULATIVE YEARS OF SERVICE SO THAT EVEN IF A NAVY LIEUTENANT WAS FOUND TO HAVE A DISABILITY AS THE RESULT OF A PHYSICAL EXAMINATION FOR A TEMPORARY APPOINTMENT AS LIEUTENANT COMMANDER UNDER THE ACT OF JULY 24, 1941, SUCH PROMOTION NOT BASED ON CUMULATIVE SERVICE, WOULD PRECLUDE AN ADJUSTMENT IN THE MEMBER'S RETIRED PAY BASED ON THE HIGHER RANK.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, JUNE 14, 1956:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1956, FORWARDED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY UNDER DATE OF APRIL 26, 1956, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE DECISION RENDERED MARCH 1, 1955, IN THE PLAINTIFF'S FAVOR IN THE CASE OF WILLIAM A. LEONARD V. UNITED STATES, 131 C.1CLS. 91, SHOULD BE FOLLOWED IN ADJUSTING HIS RETIRED PAY ON AND AFTER MARCH 2, 1955. YOU REQUEST, ALSO, THAT WE DECIDE WHETHER THE COURT'S DECISION "IS APPLICABLE FROM THE DATE OF RETIREMENT" IN THE CASES OF LIEUTENANT (JG) WILLIAM F. J. RIORDAN, U.S. NAVY, RETIRED, AND LIEUTENANT JAMES E. ELLER, U.S. NAVY, RETIRED (DECEASED).

THE FACTS IN THE CASE OF LEONARD ARE STATED IN DECISION OF AUGUST 26, 1952, 32 COMP. GEN. 104. IN ITS OPINION OF MARCH 1, 1955, THE COURT EXPRESSED DOUBT THAT BY ENACTING THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272, THE CONGRESS INTENDED TO REPEAL THE PROVISIONS OF SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, 34 U.S.C. 410I. WHILE THE VIEW WAS EXPRESSED THAT THE 1949 ACT APPARENTLY WAS INTENDED TO CONFIRM THE RIGHTS GRANTED BY THE EARLIER STATUTE, IT WAS CONCLUDED THAT NO DECISION ON THAT QUESTION WAS NECESSARY.

THE COURT STATED THAT THE VARIOUS ORDERS INVOLVED AND APPEARANCES OF THE PLAINTIFF FOR PHYSICAL EXAMINATION--- ALL IN THE MONTH OF JANUARY 1950--- LEADING TO HIS RETIREMENT, EFFECTIVE APRIL 1, 1950, TAKEN TOGETHER,"ALMOST PRECLUDE ANY OTHER REASONABLE CONCLUSION THAN THAT PLAINTIFF'S DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS PROMOTION" TO THE RANK OF COMMANDER UNITED STATES NAVY, WITHIN THE MEANING OF THE 1949 ACT. IT WAS HELD THAT HE WAS ENTITLED TO RETIRED PAY FOR THE PERIOD APRIL 1, 1950, TO MARCH 1, 1955, BASED ON THAT RANK TO WHICH HE HAD BEEN RECOMMENDED FOR PROMOTION BY ACTION APPROVED BY THE SELECTION BOARD UNDER DATE OF NOVEMBER 1, 1949, RATHER THAN ON THE RANK OF LIEUTENANT COMMANDER HELD BY HIM AT THE TIME OF RETIREMENT. IT THUS APPEARS THAT THE DECISION WAS BASED ON THE COURT'S CONCLUSION AS TO WHAT THE FACTS WERE, RATHER THAN ON A QUESTION OF LAW. THE ATTORNEY GENERAL WAS ADVISED UNDER DATE OF APRIL 19, 1955, THAT WE DID NOT RECOMMEND ANY FURTHER PROCEEDINGS IN THE CASE. ON SUCH RECORD, YOUR QUESTION RESPECTING COMMANDER LEONARD IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING THE CASE OF LIEUTENANT (JG) WILLIAM F. J. RIORDAN, U.S. NAVY, RETIRED, IT APPEARS FROM THE FACTS SET FORTH IN OUR DECISION OF AUGUST 30, 1951, B-103324, THAT HE WAS HOSPITALIZED FOR A PHYSICAL INJURY RECEIVED IN AN AIRPLANE ACCIDENT ALMOST A YEAR BEFORE THE PRESIDENT APPROVED HIS SELECTION FOR PROMOTION TO THE RANK OF LIEUTENANT (FOLLOWING ACTION BY A LINE SELECTION BOARD), AND THAT HE NEVER WAS PHYSICALLY EXAMINED FOR SUCH PROMOTION BUT WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE APRIL 1, 1950. SINCE SUCH FACTS WOULD NOT SUPPORT A CONCLUSION THAT HIS DISABILITY WAS ,FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION" WITHIN THE MEANING OF THE FIFTH PROVISO OF SECTION 402 (D) OF THE 1949 ACT, THERE IS NO BASIS FOR ALLOWING HIM THE RETIRED PAY OF A LIEUTENANT BASED ON THE RATE OF ACTIVE DUTY PAY FIXED IN SECTION 201 OF THE 1949 ACT, UNLESS SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947 IS STILL IN EFFECT.

WHILE THE COURT IN THE LEONARD CASE EXPRESSED DOUBT THAT IN ENACTING THE 1949 ACT THE CONGRESS INTENDED TO REPEAL SECTION 312 (I) OF THE 1947 ACT, AND ALSO INDICATED SOME PREFERENCE FOR THE VIEW THAT THE 1949 ACT WAS INTENDED MERELY TO CONFIRM RIGHTS GRANTED IN THE EARLIER STATUTE, THERE IS NOTHING IN THAT DECISION WHICH INDICATES THAT BEFORE EXPRESSING SUCH VIEWS, THE COURT GAVE CONSIDERATION TO THE FACT THAT SECTION 402 (D) OF THE 1949 ACT PROVIDES FOR COMPUTATION OF RETIRED PAY BY ONE OF METHODS (1) OR (2) THERE PRESCRIBED, EITHER OF WHICH MAY BE LESS THAN THE 75 PERCENT OF ACTIVE DUTY PAY PROVIDED IN THE 1947 ACT. THUS, IF THE LATTER PROVISIONS OF LAW ARE STILL IN EFFECT, AN OFFICER ON A PROMOTION LIST WHOSE SERVICE CONNECTED PHYSICAL DISABILITY WAS FOUND TO EXIST BEFORE HE WAS EXAMINED FOR PROMOTION, APPARENTLY WOULD BE PAID RETIRED PAY COMPUTED UNDER A DIFFERENT FORMULA THAN THAT APPLICABLE IF THE DISABILITY HAD FIRST BEEN DISCOVERED WHEN HE WAS EXAMINED FOR PROMOTION. IT IS EXTREMELY DOUBTFUL THAT THE CONGRESS DID INTEND TO REPEAL SUCH PROVISIONS AS THOSE IN SECTION 312 (I) OF THE 1947 ACT WHEN IT ENACTED SECTION 531 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 285, WHICH PROVIDES THAT " ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED ON THE DATE SUCH PROVISIONS OF THIS ACT BECOMES EFFECTIVE.' THE CONCLUSION REACHED IN THE DECISION OF AUGUST 30, 1951, THAT THE 1949 ACT REPEALED SECTION 312 (I) OF THE 1947 ACT, APPEARS CORRECT AND THE LEONARD CASE FURNISHES NO ADEQUATE BASIS FOR A DIFFERENT VIEW.

DUE TO THE FACT THAT LIEUTENANT RIORDAN WAS HOSPITALIZED ON OCTOBER 1, 1949, FOR THE INJURY WHICH RESULTED IN HIS RETIREMENT BEFORE JANUARY 1, 1951, HE WAS ELIGIBLE TO ELECT TO RECEIVE RETIRED PAY COMPUTED UNDER SECTION 312 (I) OF THE 1947 ACT BECAUSE OF THE SAVINGS PROVISIONS OF SECTION 415 OF THE 1949 ACT, 37 U.S.C. 285, AS AMENDED. HOWEVER, THE RATES OF RETIRED PAY APPLICABLE IN SUCH CASES ARE THOSE BASED ON 75 PERCENT OF THE ACTIVE-DUTY PAY FIXED UNDER LAWS IN EFFECT ON SEPTEMBER 30, 1949. SINCE IT IS REPORTED THAT LIEUTENANT RIORDAN HERETOFORE HAS ELECTED TO RECEIVE SUCH BENEFITS, THE AMOUNT OF RETIRED PAY HE IS RECEIVING UNDER SUCH ELECTION IS THE FULL AMOUNT TO WHICH HE IS ENTITLED.

THE FACTS IN OUR DECISION OF APRIL 20, 1953, 32 COMP. GEN. 459, CONCERNING THE CASE OF LIEUTENANT JAMES E. ELLER, U.S. NAVY, RETIRED, SHOW THAT ALNAV NO. 4, JANUARY 29, 1952, AUTHORIZED HIS TEMPORARY APPOINTMENT AS A LIEUTENANT COMMANDER UNDER THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350-350J, SUBJECT TO MEETING THE PHYSICAL AND OTHER QUALIFICATIONS PRESCRIBED IN SUCH CASES. WITHOUT REPEATING THE HISTORY OF HIS PHYSICAL DISABILITY, IF THE FACTS SHOULD BE INTERPRETED IN A MANNER MOST FAVORABLE TO THE OFFICER AND IT THUS SHOULD BE CONCLUDED THAT HIS DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A TEMPORARY PROMOTION, STILL NO RIGHT TO THE RETIRED PAY OF A LIEUTENANT COMMANDER ACCRUED TO HIM UNDER THE 1949 ACT SINCE THE TEMPORARY PROMOTIONS COVERED BY THE FIFTH PROVISO OF SECTION 402 (D) OF THAT ACT ARE THOSE "WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING.' TEMPORARY PROMOTIONS UNDER THE 1941 ACT, AS AMENDED, DO NOT APPEAR TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING. SECTION 5 OF THAT ACT PROVIDES ONLY THAT TEMPORARY APPOINTMENTS "SHALL BE IN SUCH NUMBERS AS THE PRESIDENT MAY DETERMINE THAT THE NEEDS OF THE SERVICE REQUIRE AND IN SUCH MANNER AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE.'

AS INDICATED ABOVE, THE LEONARD CASE FURNISHES NO ADEQUATE BASIS FOR A CONCLUSION THAT ANY RIGHTS ACCRUED TO LIEUTENANT ELLER UNDER SECTION 312 (I) OF THE 1947 ACT.