B-106458, DECEMBER 14, 1951, 31 COMP. GEN. 213

B-106458, DECEMBER 14, 1951, 31 COMP. GEN. 213

PAY - DISABILITY RETIREMENT PAY - CAREER COMPENSATION ACT, 1949 AN OFFICER OF THE NAVAL RESERVE WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHOSE NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OR AFTER OCTOBER 1, 1949, IN CONFORMITY WITH THE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, IS ENTITLED TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT, AS PRESCRIBED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, RATHER THAN ON THE BASIS PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, DECEMBER 14, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1951, REQUESTING DECISION WHETHER AN OFFICER OF THE U.S. NAVAL RESERVE WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHOSE NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OR AFTER OCTOBER 1, 1949, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER, IS ENTITLED TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED AS PRESCRIBED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THAT IS, ON THE BASIS OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT, INSTEAD OF ON THE BASIS PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949.

IT IS STATED THAT THE OFFICER INVOLVED, COMMANDER ARTHUR FENWICK MORASH, U.S. NAVAL RESERVE, WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST APRIL 1, 1951, IN CONFORMITY WITH THE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949; THAT HIS DISABILITY WAS RATED AT 30 PERCENTUM; AND THAT HE HAD COMPLETED A TOTAL OF 12 YEARS' ACTIVE SERVICE CREDITABLE FOR COMPUTATION OF HIS PERCENTAGE MULTIPLE.

THE SAID SECTION 402 (B), 63 STAT. 817, SETS FORTH CERTAIN CONDITIONS WHICH A MEMBER MUST MEET BEFORE HE MAY QUALIFY THEREUNDER TO HAVE HIS NAME PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND PROVIDES IN PART THAT:

* * * THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBERS SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: * * *

SUBSECTIONS (D), (E), AND (I) OF THE SAID SECTION 402, 63 STAT. 818, 820, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

(D) A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SUBSECTIONS (A), (B), OR (C) OF THIS SECTION, FOR THE PERIOD DURING WHICH HIS NAME IS CARRIED ON SUCH TEMPORARY DISABILITY RETIRED LIST, BUT IN NO EVENT TO EXCEED A PERIOD OF FIVE YEARS, OR A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER: PROVIDED, THAT FOR THE PURPOSE OF THE COMPUTATION OF (1) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR: * * * PROVIDED FURTHER, THAT THE DISABILITY RETIREMENT PAY OF ANY MEMBER WHOSE NAME IS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST SHALL, FOR SO LONG AS HIS NAME IS CARRIED ON SUCH LIST, BE NOT LESS THAN 50 PERCENTUM OF THE BASIC PAY UPON WHICH THE COMPUTATION IS BASED: * * *

(E) A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME HAS BEEN PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE SHALL BE GIVEN PERIODIC PHYSICAL EXAMINATIONS NOT LESS FREQUENT THAN EVERY EIGHTEEN MONTHS TO DETERMINE WHETHER THE DISABILITY FOR WHICH SUCH MEMBER WAS TEMPORARILY RETIRED HAS CHANGED. * * *

(I) ALL MEMBERS OF THE RESERVE COMPONENTS HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES. ( ITALICS SUPPLIED.)

IN DECISION OF AUGUST 13, 1951, B-102149, 31 C.G. 28, IT WAS HELD THAT AN OFFICER OF THE REGULAR ARMY, OR A RESERVE COMPONENT THEREOF, WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, ON OR AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THAT ACT, IS ENTITLED, UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO HAVE HIS RETIRED PAY COMPUTED AT THE RATE OF THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT. IN THAT CASE THE OFFICER'S NAME WAS PLACED ON THE "RETIRED LIST," AS DISTINGUISHED FROM THE "TEMPORARY DISABILITY RETIRED LIST," AND, WHILE NOT EXPRESSLY STATED IN THE SAID DECISION, IT APPEARS THAT SUCH RETIREMENT ACTION WAS TAKEN BECAUSE OF THE PERMANENT NATURE OF THE OFFICER'S DISABILITY. HOWEVER THAT MAY BE, DISABILITY RETIREMENT PAY IS COMPUTED IN EITHER CASE ON THE BASIS OF THE PROVISIONS OF SECTION 402 (D) OF THE ACT, SUPRA, AND, INSOFAR AS CONCERNS SUCH COMPUTATION, THE SAID SUBSECTION (D) MAKES NO DISTINCTION BETWEEN MEMBERS WHOSE NAMES ARE CARRIED ON THE ,TEMPORARY DISABILITY RETIRED LIST" AND THOSE WHO ARE OTHERWISE "RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE," EXCEPT THAT THE RETIREMENT PAY OF A MEMBER PLACED ON THE TEMPORARY DISABILITY RETIRED LIST SHALL BE NOT LESS THAN 50 PERCENTUM OF THE BASIC PAY ON WHICH THE COMPUTATION IS BASED, WHILE CARRIED THEREON.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, PROVIDES AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

UNDER THE SAID PARAGRAPH, A MEMBER OTHERWISE ELIGIBLE FOR THE BENEFITS THEREOF AND WHO IS ,RETIRED" UNDER ANY PROVISION OF LAW, IS ENTITLED TO RETIRED PAY OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT. WHILE A MEMBER WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SECTION 402 (B) IS CONSIDERED AS HAVING BEEN ONLY "TEMPORARILY RETIRED," AS EXPRESSLY REFERRED TO IN SECTION 402 (E), SUPRA, THAT IS BECAUSE SUCH RETIREMENT IS REQUIRED TO BE TERMINATED OR MADE "PERMANENT" WITHIN A PERIOD OF FIVE YEARS. IT SEEMS REASONABLY CLEAR, HOWEVER, THAT THE STATUTE CONSIDERS SUCH A MEMBER AS BEING "RETIRED" DURING THE PERIOD HE IS ,TEMPORARILY RETIRED.' DURING THAT PERIOD THE MEMBER'S NAME IS CARRIED ON A "RETIRED LIST"--- TEMPORARY DISABILITY RETIRED LIST--- AND HE DOES NOT CONTINUE IN HIS PRIOR STATUS ON THE ACTIVE LIST. THAT IS MADE CLEAR IN SECTIONS 405, 406 AND 407 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821, 822, PERTAINING TO MEMBERS WHOSE NAMES HAVE BEEN PLACED ON A TEMPORARY DISABILITY RETIRED LIST AND WHO UPON PERIODIC PHYSICAL EXAMINATION ARE FOUND TO BE PHYSICALLY FIT TO PERFORM THEIR DUTIES, WHICH PROVIDE FOR THE REAPPOINTMENT OF OFFICERS OF THE REGULAR COMPONENTS TO THE ACTIVE LIST, FOR THE REENLISTMENT OF ENLISTED MEMBERS IN A REGULAR OR RESERVE COMPONENT, AS THE CASE MAY BE. THERE APPEARS TO BE NO SOUND REASON WHY A MEMBER OTHERWISE ENTITLED TO THE BENEFITS OF THE SAID FOURTH PARAGRAPH OF SECTION 15 SHOULD RECEIVE LESS RETIRED PAY DURING THE PERIOD HE IS ,TEMPORARILY RETIRED" THAN HE WOULD RECEIVE ON PERMANENT RETIREMENT AND NOTHING IS FOUND IN THE STATUTE SUPPORTING SUCH AN INTENT. IT IS CONCLUDED ACCORDINGLY THAT MEMBERS WHOSE NAMES ARE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, EVEN THOUGH ONLY "TEMPORARILY RETIRED" ARE "RETIRED" WITHIN THE MEANING OF THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, AND, THEREFORE, THE QUESTION PRESENTED IN YOUR SUBMISSION IS ANSWERED IN THE AFFIRMATIVE.