B-108930, JUNE 24, 1952, 31 COMP. GEN. 681

B-108930, JUNE 24, 1952, 31 COMP. GEN. 681

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE A FORMER MEMBER OF THE NAVY NURSE CORPS WHO APPEARED BEFORE A BOARD OF MEDICAL SURVEY WHICH FOUND HER FIT FOR FULL DUTY AND WHO SUBSEQUENTLY RESIGNED IS NOT ENTITLED TO DISABILITY RETIREMENT PAY UPON REVIEW OF SAID FINDINGS BY A MEDICAL SURVEY REVIEW BOARD ESTABLISHED UNDER SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, FOR THE PURPOSE OF REVIEWING CASES OF MEMBERS RETIRED FOR "PHYSICAL DISABILITY," AND APPROVAL THEREOF BY THE SECRETARY OF THE NAVY.

ASSISTANT COMPTROLLER GENERAL YATES TO COMMANDER J. B. WARNER, U.S. NAVY, JUNE 24, 1952:

BY LETTER DATED APRIL 1, 1952, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED TO THIS OFFICE YOUR LETTER OF DECEMBER 28, 1951, AND ENCLOSURES, WHEREIN DECISION IS REQUESTED RELATIVE TO THE DISABILITY RETIREMENT PAY RIGHTS OF MRS. REGINA LAMB VIRKLER, FORMER LIEUTENANT (JUNIOR GRADE), NURSE CORPS, UNITED STATES NAVY.

IT APPEARS THAT ON JULY 6, 1944, MRS. VIRKLER, THEN AN ENSIGN, WAS ADMITTED TO THE NAVAL HOSPITAL AT ST. ALBANS, NEW YORK, WITH THE DIAGNOSIS "TUBERCULOSIS, PULMONARY, CHRONIC, ARRESTED.' AFTER A PERIOD OF EXAMINATION AND OBSERVATION SHE APPEARED BEFORE A BOARD OF MEDICAL SURVEY ON SEPTEMBER 8, 1944 WHICH BOARD CONTINUED SUCH DIAGNOSIS, FOUND THE PROBABLE DURATION OF SUCH CONDITION TO BE PERMANENT, AND FOUND HER FIT FOR FULL DUTY. ON SEPTEMBER 29, 1944, SHE SUBMITTED HER RESIGNATION FROM THE NAVAL SERVICE BECAUSE OF HER IMPENDING MARRIAGE, WHICH RESIGNATION WAS ACCEPTED EFFECTIVE NOVEMBER 28, 1944.

ON JULY 14, 1949, MR. VIRKLER MADE APPLICATION TO THE PRESIDENT OF THE NAVAL MEDICAL SURVEY REVIEW BOARD TO HAVE HER CASE REVIEWED, ALLEGING THAT SHE HAD ACTIVE TUBERCULOSIS AT THE TIME OF HER SEPARATION FROM THE NAVY NURSE CORPS. IT IS STATED IN THE LETTER FROM THE JUDGE ADVOCATE GENERAL THAT SUCH BOARD ASSUMED JURISDICTION PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 623, 38 U.S.C. 693I, AND IT RECOMMENDED THAT SHE BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. SUCH RECOMMENDATION WAS APPROVED AND ON APRIL 19, 1950, AND MAY 10, 1951, SHE APPEARED BEFORE A PHYSICAL EVALUATION BOARD WHICH FOUND THAT SHE WAS PERMANENTLY DISABLED FOR ACTIVE SERVICE AT THE TIME OF HER SEPARATION FROM THE SERVICE AND THAT HER DISABILITY WAS INCURRED IN LINE OF DUTY. ON OCTOBER 1, 1951, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND FINDINGS OF THE BOARD AND DIRECTED THAT MRS. VIRKLER BE PAID RETIREMENT PAY.

AS APPEARS TO BE RECOGNIZED IN THE LETTER FROM THE JUDGE ADVOCATE GENERAL, MRS. VIRKLER'S RIGHT TO RETIREMENT PAY IS PRIMARILY DEPENDENT UPON WHETHER OR NOT THE NAVAL MEDICAL SURVEY REVIEW BOARD ESTABLISHED UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUPRA, HAD JURISDICTION TO REVIEW HER CASE. SUCH SECTION PROVIDES, IN PERTINENT PART, THAT---

THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH FROM TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED FROM THE MEDICAL CORPS OF THE ARMY OR NAVY, OR FROM THE PUBLIC HEALTH SERVICE, AS THE CASE MAY BE. IT SHALL BE THE DUTY OF SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. * * * ( ITALICS SUPPLIED.)

ASIDE FROM OTHER QUESTIONS WHICH MIGHT ARISE REGARDING THE APPLICABILITY OF SUCH STATUTORY PROVISIONS TO A PERSON IN MRS. VIRKLER'S SITUATION, THERE WOULD APPEAR TO BE NO DOUBT WHATEVER THAT SHE WAS NOT ACTUALLY RELEASED FROM ACTIVE SERVICE "FOR PHYSICAL DISABILITY" PURSUANT TO THE DECISION OF A MEDICAL SURVEY BOARD SO AS TO BRING HER CASE WITHIN THE PURVIEW THEREOF. HOWEVER, THE JUDGE ADVOCATE GENERAL REFERS TO ALNAV 17, DATED JANUARY 16, 1947, NAVY DEPARTMENT BULLETIN, JANUARY TO JUNE 1947, PAGE 115, SECTION 2 OF WHICH READS AS FOLLOWS:

OFFICERS OF RESERVE COMPONENT WHO HAVE BEEN RETIRED OR RELEASED FROM ACTIVE DUTY WITHOUT PAY PURSUANT TO RECOMMENDATION OF BOARD OF MEDICAL SURVEY OR DECISION OF NAVAL RETIRING BOARD MAY HAVE SUCH RECOMMENDATIONS OR DECISIONS REVIEWED BY MEDICAL SURVEY REVIEW OR RETIRING REVIEW BOARDS, AS APPROPRIATE. RESERVE OFFICER IS CONSIDERED TO HAVE BEEN RELEASED FROM ACTIVE DUTY PURSUANT TO RECOMMENDATION OF MEDICAL SURVEY BOARD OR FINDING OF RETIRING BOARD WHEN IT HAS BEEN FOUND THAT HE IS SUFFERING WITH A DISEASE OR INJURY AND HE IS THEREAFTER RELEASED FROM ACTIVE DUTY, IRRESPECTIVE OF REASON ASSIGNED FOR ULTIMATE RELEASE. ( ITALICS SUPPLIED.)

THE POINT IS MADE THAT WHILE SUCH DIRECTIVE REFERS ONLY TO MEMBERS OF THE RESERVE COMPONENT IT SHOULD APPLY WITH EQUAL FORCE TO MEMBERS OF THE REGULAR SERVICE. HOWEVER, EVEN WERE THAT OTHERWISE SO, NO AUTHORITY IS FOUND FOR THE ISSUANCE OF SUCH INSTRUCTIONS. THE LANGUAGE OF THE STATUTE IS PLAIN AND FREE FROM AMBIGUITY. ITS PURPOSE AND INTENTION ARE EQUALLY CLEAR. IT IS ADDRESSED TO MEMBERS RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY,"FOR PHYSICAL DISABILITY" PURSUANT TO A DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD AND THERE IS NO BASIS TO CONCLUDE THAT A PERSON WHO APPEARED BEFORE A NAVAL MEDICAL SURVEY BOARD AND WAS FOUND NOT TO BE PHYSICALLY DISABLED COULD COME WITHIN ITS PURVIEW. IN THE VIEW OF THIS OFFICE, A BOARD ESTABLISHED UNDER THE PROVISIONS OF SECTION 302 (A) OF THE 1944 ACT HAS JURISDICTION ONLY IN THOSE CASES WHERE IT IS ESTABLISHED THAT THE PERSON'S SEPARATION FROM THE ACTIVE SERVICE ACTUALLY WAS MOTIVATED BY A FINDING OF A RETIRING BOARD, ETC., THAT HE WAS PHYSICALLY DISABLED AND, OF COURSE, HIS ORDERS FOR SEPARATION ARE PRIMA FACIE EVIDENCE OF THAT FACT. ( COMPARE, IN THAT CONNECTION, THE LANGUAGE OF THE BILLS H.R. 5996 AND S. 2420, 82D CONGRESS, 2D SESSION, WHICH WOULD AMEND SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944.) SUCH IS NOT THE CASE HERE AND, ACCORDINGLY, MRS. VIRKLER IS NOT ENTITLED TO DISABILITY RETIREMENT PAY.