B-108149, OCTOBER 16, 1953, 33 COMP. GEN. 171

B-108149, OCTOBER 16, 1953, 33 COMP. GEN. 171

PAY - RETIRED - DISABILITY RETIREMENT PAY - ENTITLEMENT BASED ON CORRECTION OF RECORDS - APPROPRIATION CHARGEABLE A FORMER NAVAL RESERVE OFFICER, WHOSE NAVAL RECORD HAS BEEN CORRECTED BY THE BOARD FOR CORRECTION OF NAVAL RECORDS PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE DUTY AT TIME OF RELEASE BECAUSE OF A PHYSICAL DISABILITY INCURRED WHILE ON ACTIVE DUTY UNDER ORDERS CONTEMPLATING NAVAL SERVICE IN EXCESS OF THIRTY DAYS, IS ENTITLED TO RETIRED PAY RETROACTIVE TO DATE OF SUCH RELEASE, LESS ANY AMOUNTS RECEIVED FROM THE VETERANS ADMINISTRATION. THE RIGHT TO ACTIVE DUTY PAY OR RETIREMENT PAY WHICH ARISES FROM THE CORRECTION OF NAVAL RECORDS PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, BECOMES ESTABLISHED WHEN THE SECRETARY OF THE NAVY APPROVES THE DECISION OF THE CORRECTION BOARD, AND THEREFORE PAYMENTS OF SUCH PAY FOR RETROACTIVE PERIODS BASED ON CORRECTIONS OF NAVAL RECORDS UNDER SAID SECTION SHOULD BE CHARGED TO THE APPROPRIATION " CLAIMS, DEPARTMENT OF DEFENSE" FOR PAYMENTS PRIOR TO THE DATE THE SECRETARY OF THE NAVY APPROVED THE DECISION OF THE CORRECTION BOARD AND PROPER CURRENT APPROPRIATIONS SHOULD BE CHARGED WITH PAYMENTS SUBSEQUENT TO THAT DATE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, OCTOBER 16, 1953:

REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, DATED SEPTEMBER 22, 1953, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENTS OF ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD APRIL 9 TO 30, 1946, AND OF RETIRED PAY--- COMPUTED AT 75 PERCENTUM OF THE PAY OF HIS RANK--- FOR THE PERIOD MAY 1, 1946, TO JUNE 5, 1953, ARE AUTHORIZED IN THE CASE OF COMMANDER NATHANIEL H. MATROS, UNITED STATES NAVAL RESERVE. IT IS STATED THAT JUNE 5, 1953, IS THE DATE OF THE OFFICER'S CLAIM FOLLOWING THE ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS IN HIS CASE, AND THAT SUCH RETIRED PAY AMOUNTS TO $27,549.03.

IT APPEARS THAT NATHANIEL H. MATROS HELD A COMMISSION IN THE OFFICERS' RESERVE CORPS FROM APRIL 21, 1932, TO JANUARY 7, 1941; THAT ON JANUARY 24, 1941, HE ACCEPTED APPOINTMENT AS LIEUTENANT, UNITED STATES NAVAL RESERVE; THAT HE REPORTED FOR ACTIVE DUTY ON MARCH 13, 1941; THAT HE WAS RELEASED FROM ACTIVE DUTY ON APRIL 8, 1946; THAT HE THEN HELD A TEMPORARY APPOINTMENT IN THE RANK OF COMMANDER; AND THAT HIS TOTAL SERVICE AS OF THAT DATE WAS 13 YEARS, 11 MONTHS, 2 DAYS. ALSO, IT APPEARS THAT ON APRIL 11, 1946, HE APPEARED BEFORE A NAVAL RETIRING BOARD WHICH FOUND THAT HE HAD NOT SUFFERED ANY PHYSICAL DISABILITY OF SUCH CHARACTER AS TO ABSOLUTELY DISQUALIFY HIM FOR ACTIVE DUTY; AND THAT ON AUGUST 22, 1946, SUCH FINDING WAS APPROVED BY THE PRESIDENT. IT FURTHER APPEARS THAT ON JULY 12, 1951, COMMANDER MATROS WAS AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION OARD; THAT THE SAID BOARD FOUND HE WAS UNFIT TO PERFORM THE DUTIES OF HIS RANK, AS OF THE DATE OF HIS SEPARATION FROM ACTIVE DUTY, BY REASON OF DISABILITY INCURRED WHILE ON ACTIVE DUTY AND IN LINE OF DUTY; THAT THE PHYSICAL REVIEW COUNSEL CONCURRED IN THE FINDINGS OF THE PHYSICAL EVALUATION BOARD; AND THAT ON OCTOBER 16, 1951, THE ASSISTANT SECRETARY OF THE NAVY FOR AIR DIRECTED THAT COMMANDER MATROS BE PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1946.

IN DECISION OF THIS OFFICE DATED SEPTEMBER 4, 1952, B-108149, ADDRESSED TO COMMANDER J. B. WARNER, SC, UNITED STATES NAVY, IT WAS HELD, CITING AND FOLLOWING 30 COMP. GEN. 409, THAT COMMANDER MATROS WAS ENTITLED TO DISABILITY RETIREMENT PAY SINCE HE WAS NOT ENTITLED TO RECEIVE BASIC PAY WHEN IT WAS DETERMINED--- SUBSEQUENT TO OCTOBER 12, 1949, THE DATE OF APPROVAL OF THE CAREER COMPENSATION ACT OF 1949, 64 STAT. 802--- THAT HE WAS UNFIT FOR SERVICE.

IT NOW APPEARS THAT ON MAY 18, 1953, THE BOARD FOR CORRECTION OF NAVAL RECORDS--- ESTABLISHED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655--- REVIEWED COMMANDER MATROS' SERVICE RECORD AND DECIDED THAT IT SHOULD BE CORRECTED TO SHOW THAT HE WAS:

(A) RETAINED ON ACTIVE DUTY UNTIL 30 APRIL 1946.

(B) INCAPACITATED FOR ACTIVE SERVICE ON 30 APRIL 1946, BECAUSE OF PHYSICAL DISABILITY INCURRED WHILE ON ACTIVE DUTY AND IN LINE OF DUTY; THAT HIS INCAPACITY IS PERMANENT AND IS THE RESULT OF AN INCIDENT OF THE SERVICE, HAVING BEEN INCURRED SUBSEQUENT TO 24 MARCH 1941, AND SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY SUBSEQUENT TO THAT DATE, PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS.

(C) THAT HIS INCAPACITY WAS INCURRED SUBSEQUENT TO 15 AUGUST 1945, THE EFFECTIVE DATE OF COMMENCEMENT OF SERVICE IN THE GRADE OF COMMANDER, TO WHICH GRADE HE HAD BEEN APPOINTED FOR TEMPORARY SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY, AND THAT HIS INCAPACITY WAS INCURRED PRIOR TO 30 APRIL 1946, WHEN HE WAS RELEASED FROM ACTIVE DUTY.

(D) THAT HE WAS PLACED ON THE PHYSICAL DISABILITY RETIRED LIST AS OF 1 MAY 1946.

IT FURTHER APPEARS THAT ON JUNE 1, 1953, THE SECRETARY OF THE NAVY APPROVED THE FOREGOING DECISION AND THAT ON JULY 2, 1953, THE CHIEF OF NAVAL PERSONNEL DIRECTED THAT APPROPRIATE CHANGES BE MADE IN COMMANDER MATROS' RECORDS SO AS TO REFLECT THE ABOVE DECISION OF THE CORRECTION BOARD. ALSO, IT APPEARS THAT THE SECRETARY OF THE NAVY HAS DETERMINED THAT IF COMMANDER MATROS IS HELD TO BE ENTITLED TO DISABILITY RETIREMENT PAY BEGINNING PRIOR TO OCTOBER 1, 1949, AND IF HE ELECTS UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, TO QUALIFY FOR RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT, HIS PERCENTAGE OF DISABILITY WILL BE ONE HUNDRED, HIS YEARS OF ACTIVE SERVICE, SIX, AND THE HIGHEST RANK SATISFACTORILY HELD BY HIM FOR RETIREMENT PAY PURPOSES WILL BE THAT OF COMMANDER. IN SUCH CONNECTION IT IS NOTED THAT THE COMPUTATION OF THE AMOUNT PAYABLE FOR THE PERIOD MAY 1, 1946, TO JUNE 5, 1953, APPARENTLY IS ON THE BASIS, ON AND AFTER OCTOBER 1, 1949, OF 75 PERCENTUM OF THE ACTIVE DUTY PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 AND IN THE AMENDMENT OF MAY 19, 1952, THERETO, 66 STAT. 79, FOR A COMMANDER WITH SERVICE OF OVER 12 AND LESS THAN 14 YEARS.

IN DECISION OF FEBRUARY 27, 1953, 32 COMP. GEN. 372, IT WAS HELD THAT AN OFFICER OF THE MARINE CORPS RESERVE WHOSE RECORD WAS CORRECTED BY THE BOARD FOR CORRECTION OF NAVAL RECORDS PURSUANT TO THE SAID SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, AS AMENDED, TO SHOW THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, BY REASON OF PHYSICAL DISABILITY SUFFERED IN LINE OF DUTY WHILE EMPLOYED ON EXTENDED ACTIVE DUTY, WAS ENTITLED TO DISABILITY RETIREMENT PAY RETROACTIVE TO THE DATE OF SUCH RELEASE. SEE, ALSO, DECISION OF JULY 1, 1953, 33 COMP. GEN. 1. UNDER THE PRINCIPLES ENUNCIATED IN THOSE DECISIONS, COMMANDER MATROS IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD APRIL 9 TO 30, 1946, AND TO DISABILITY RETIREMENT PAY BEGINNING MAY 1, 1946, LESS ANY AMOUNTS RECEIVED FROM THE VETERANS ADMINISTRATION. SHOULD HE MAKE AN ELECTION, UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA,"TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT," HIS RETIREMENT PAY FROM OCTOBER 1, 1949, TO APRIL 30, 1952, SHOULD BE COMPUTED ON THE RATE SET FORTH IN THE SAID ACT FOR A COMMANDER WITH OVER 12 YEARS' SERVICE AND ON AND AFTER MAY 1, 1952, SUCH RETIREMENT PAY SHOULD BE COMPUTED ON THE RATE OF PAY AUTHORIZED BY THE AMENDING ACT OF MAY 19, 1952, 66 STAT. 79, FOR SUCH GRADE AND LENGTH OF SERVICE.

A COPY OF A COMMUNICATION FROM THE COMPTROLLER OF THE NAVY, DATED MARCH 10, 1952, FORWARDED WITH YOUR LETTER, STATES THAT CLAIMS (APPARENTLY AS DISTINGUISHED FROM CURRENT OBLIGATIONS) ARISING FROM THE CORRECTION OF NAVAL RECORDS PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, SUPRA, WILL BE PAID FROM THE APPROPRIATION " CLAIMS, DEPARTMENT OF DEFENSE.' IN SUCH CONNECTION, COMMANDER MATROS' RIGHT TO PAY BY REASON OF THE CORRECTION IN HIS RECORDS BECAME ESTABLISHED WHEN THE SECRETARY APPROVED THE DECISION OF THE CORRECTION BOARD, THAT IS ON JUNE 1, 1953. SINCE THE SUBMISSION APPARENTLY IS CONCERNED WITH THE AMOUNT TO BE PAID FROM THE SAID APPROPRIATION, IT MAY BE STATED THAT IT REASONABLY APPEARS THAT THE OVERALL PERIOD FOR WHICH THE SAID APPROPRIATION SHOULD BE CHARGED WOULD BE FROM APRIL 9, 1946, TO MAY 31, 1953, PAYMENTS OF RETIREMENT PAY BEGINNING WITH THE MONTH OF JUNE 1953 TO BE CHARGED TO CURRENT RETIRED PAY APPROPRIATIONS.