B-109815, DEC 15, 1952

B-109815, DEC 15, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER COMMANDER GEORGE L. RICHARD, UNITED STATES NAVY (RETIRED), UNDER THE CIRCUMSTANCES DISCLOSED AND UNDER DECISION OF NOVEMBER 20, 1950, 30 COMP. GEN. 195, IS ENTITLED TO RETAIN THE ACTIVE DUTY PAY AND ALLOWANCES RECEIVED BY HIM DURING THE PERIOD JANUARY 1 TO AUGUST 28, 1947, OR TO RECOVER BACK ANY PORTION THEREOF WHICH SUBSEQUENTLY HAS BEEN CHECKED AGAINST HIS RETIRED PAY.

UNDER DATE OF SEPTEMBER 24, 1946, THE ACTING SECRETARY OF THE NAVY ADVISED COMMANDER GEORGE L. RICHARD THAT THE PRESIDENT HAD APPROVED THE RECOMMENDATION THAT HE BE PLACED ON THE RETIRED LIST ON JANUARY 1, 1947. BY BUREAU OF NAVAL PERSONNEL ORDERS DATED SEPTEMBER 30, 1946 (SUBJECT: "ORDERS RELIEVING YOU OF ALL ACTIVE DUTY"), WHICH THE OFFICER RECEIVED ON OR ABOUT OCTOBER 28, 1946, HE WAS DIRECTED TO REPORT FOR PHYSICAL EXAMINATION AND IF HOSPITALIZATION WAS REQUIRED, HE WAS ADVISED THAT HE WOULD BE DETACHED FROM DUTY AND ORDERED TO AN APPROPRIATE HOSPITAL; IF HOSPITALIZED, "FURTHER COMPLIANCE WITH THESE ORDERS IS DELAYED UNTIL YOU ARE READY FOR DISCHARGE FROM TREATMENT." THE ORDERS CONTAINED FURTHER PROVISIONS RELATING TO DETACHMENT FROM DUTY, CONFERENCE WITH THE CIVIL READJUSTMENT OFFICE, TRAVEL HOME, FURNISHING OF COPIES OF THE ORDERS WITH INDORSEMENTS TO CERTAIN ACTIVITIES, AND PARAGRAPHS 5 AND 6 OF THE SAID ORDERS OF SEPTEMBER 30, 1946, PROVIDED AS FOLLOWS:

"5. DURING THE PERIOD BETWEEN DATE OF DETACHMENT AND DATE RELIEVED OF ALL ACTIVE DUTY (DATE OF RETIREMENT), YOU MAY, AT YOUR OPTION, WEAR CIVILIAN CLOTHES. YOU ARE AUTHORIZED TO ENGAGE IN ANY OCCUPATION NOT PROHIBITED BY LAW FOR MILITARY PERSONNEL.

"6. YOU WILL REGARD YOURSELF RELIEVED OF ALL ACTIVE DUTY IN THE U. S. NAVY ON 1 JANUARY 1947. A LETTER FROM THE SECRETARY OF THE NAVY FORMALLY PLACING YOU ON THE RETIRED LIST AS OF THAT DATE WILL BE FORWARDED TO YOU SHORTLY THEREAFTER."

BY LETTER OF JANUARY 2, 1947, THE ACTING SECRETARY OF THE NAVY ADVISED COMMANDER RICHARD THAT HE HAD BEEN TRANSFERRED TO THE RETIRED LIST ON JANUARY 1, 1947, BUT IT DOES NOT APPEAR THAT HE RECEIVED THE SAID LETTER.

THE OFFICER REPORTED FOR PHYSICAL EXAMINATION ON OCTOBER 28, 1946, WAS FOUND NOT PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY AND IN NEED OF HOSPITALIZATION, AND WAS DIRECTED TO RETURN TO HIS STATION FOR DETACHMENT AND TRANSFER TO UNITED STATES NAVAL HOSPITAL, MARE ISLAND, CALIFORNIA, WHERE IT APPEARS HE WAS HOSPITALIZED FROM NOVEMBER 1, 1946, UNTIL AUGUST 28, 1947.

IN RESPONSE TO A DISPATCH DATED AUGUST 15, 1947, FROM THE COMMANDING OFFICER, NAVAL HOSPITAL, MARE ISLAND, IN WHICH IT IS STATED THAT COMMANDER RICHARD WAS FIT FOR DUTY, AND REQUESTING AUTHORITY TO CARRY OUT THE ORDERS OF SEPTEMBER 30, 1946, THE BUREAU OF NAVAL PERSONNEL, UNDER DATE OF AUGUST 19, 1947, ADVISED SUCH COMMANDING OFFICER THAT COMMANDER RICHARD HAD PREVIOUSLY BEEN RECOMMENDED FOR RETIREMENT, WHICH WAS TO BECOME EFFECTIVE NOT LATER THAN JANUARY 1, 1947; THAT HE WAS SUBSEQUENTLY NOTIFIED THAT HE WOULD NOT BE RETAINED ON ACTIVE DUTY AFTER JANUARY 1, 1947; THAT HIS SEPARATION ORDERS OF SEPTEMBER 30, 1946, STATED UNEQUIVOCALLY THAT HE WOULD REGARD HIMSELF RELIEVED OF ALL ACTIVE DUTY ON JANUARY 1, 1947, AND THAT HE IS NOT ENTITLED TO ACTIVE DUTY PAY OR ALLOWANCES SUBSEQUENT TO JANUARY 1, 1947. IT APPEARS THAT THE OFFICER RECEIVED ACTIVE DUTY PAY AND ALLOWANCES UNTIL SOME TIME IN AUGUST 1947.

FOLLOWING RECEIPT OF SUCH LETTER, COMMANDER RICHARD URGED THAT SINCE THE ORDERS OF SEPTEMBER 30, 1946, PROVIDED THAT IF HOSPITALIZED INCIDENT TO HIS PHYSICAL EXAMINATION FOR RELEASE FROM ACTIVE DUTY, FURTHER COMPLIANCE WITH SAID ORDERS WAS DELAYED UNTIL HE WAS READY FOR DISCHARGE FROM TREATMENT, HIS ACTIVE DUTY SHOULD BE EXTENDED TO AUGUST 26, 1947 (DATE OF RECEIPT OF THE LETTER OF AUGUST 19, 1947), OR IF THAT WERE IMPRACTICAL, THAT HE SHOULD BE RECALLED TO ACTIVE DUTY AS A RETIRED OFFICER AS OF JANUARY 1, 1947. BY LETTER DATED SEPTEMBER 23, 1947, THE CHIEF OF NAVAL PERSONNEL ADVISED THE OFFICER THAT THE PROVISION IN THE ORDERS DELAYING COMPLIANCE THEREWITH IN EVENT OF HOSPITALIZATION HAD REFERENCE TO DISCHARGE FROM TREATMENT AND PROCEEDING HOME AND DID NOT IN ANY WAY CHANGE THE EFFECTIVE DATE OF HIS RETIREMENT, WHICH WAS STATED LATER IN THE SAME ORDERS, AND THAT -

"IN VIEW OF THE PERSONAL NOTIFICATION ADDRESSED TO YOU ON 15 JUNE 1946, BY THE CHIEF OF NAVAL PERSONNEL THE RETIREMENT DATE GIVEN IN YOUR ORDERS, BUPERS DISPATCH TO ALL HOSPITALS, 281502 OF OCTOBER 1946, AND A1NAV 586 OF 1946, IT IS DIFFICULT TO UNDERSTAND WHY YOUR STATUS WAS NOT CLEARLY UNDERSTOOD."

IT FURTHER APPEARS THAT THE OFFICER'S REQUEST FOR CORRECTION OF HIS RECORD TO SHOW THAT HE REMAINED ON ACTIVE DUTY UNTIL AUGUST 28, 1947, IN ORDER TO CORRECT AN ERROR OR REMOVE AN INJUSTICE, WAS DENIED BY THE BOARD FOR CORRECTION OF NAVAL RECORDS, WHICH DENIAL WAS APPROVED BY THE SECRETARY OF THE NAVY ON JUNE 21, 1948. THE SAID RECORD INDICATES THAT THE OFFICER WAS SELECTED FOR RETIREMENT PURSUANT TO THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, WHICH PROVIDED THAT SURPLUS OFFICERS INVOLUNTARILY SELECTED FOR RETIREMENT PURSUANT THERETO SHALL BE PLACED ON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS MAY BE SET BY THE SECRETARY OF THE NAVY BUT NOT LATER THAN THE FIRST DAY OF THE SEVENTH MONTH AFTER THE DATE OF APPROVAL OF RETIREMENT BY THE PRESIDENT. PRESUMABLY THE LETTER OF JUNE 15, 1946, NOTIFIED THE OFFICER OF HIS INVOLUNTARY SELECTION FOR RETIREMENT BY A RETIREMENT BOARD UNDER THE SAID ACT OF FEBRUARY 21, 1946.

AS INDICATED ABOVE, THE ORDERS WITH RESPECT TO THE FACT AND DATE OF RETIREMENT WERE UNEQUIVOCAL AND UNCONDITIONAL. NO FURTHER ACT ON HIS PART WAS REQUIRED FOR HIS RETIREMENT TO BECOME EFFECTIVE, NOR COULD HIS ACTION DEFER RETIREMENT. RETIREMENT WOULD BECOME EFFECTIVE IRRESPECTIVE OF WHERE THE OFFICER WAS LOCATED AND WHATEVER DUTY, IF ANY, HE MAY HAVE BEEN PERFORMING. TERRY V. UNITED STATES, 81 C. CLS. 958; HOLLAND V. UNITED STATES, 83 ID. 376. THE ONLY ACTS THE ORDERS CONTEMPLATED THAT THE OFFICER PERFORM RELATED TO A CONFERENCE WITH A CIVIL READJUSTMENT OFFICER; DISCHARGE FROM TREATMENT IF HOSPITALIZED; TRAVEL HOME, AND THE FURNISHING OF COPIES OF SUCH ORDERS WITH INDORSEMENTS. HAVING BEEN SPECIFICALLY AND DEFINITELY NOTIFIED BY THE SECRETARY OF THE NAVY UNDER DATE OF SEPTEMBER 24, 1946, THAT THE PRESIDENT HAD APPROVED THE RECOMMENDATION THAT HE BE PLACED ON THE RETIRED LIST ON JANUARY 1, 1947, NO FURTHER ADVICE WAS NECESSARY TO PUT HIM ON NOTICE THAT HIS RETIREMENT WAS EFFECTIVE ON THAT DATE. UNDER THESE CIRCUMSTANCES, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE OFFICER IS ENTITLED TO RETAIN THE ACTIVE DUTY PAY AND ALLOWANCES RECEIVED FOR THE PERIOD SUBSEQUENT TO DECEMBER 31, 1946, OR TO RECOVER BACK AMOUNTS THEREOF SUBSEQUENTLY CHECKED AGAINST HIS RETIRED PAY OR OTHERWISE REFUNDED TO THE GOVERNMENT. INASMUCH AS COMMANDER RICHARD HAD PRIOR NOTICE OF THE EFFECTIVE DATE OF HIS RETIREMENT AND CLEARLY WAS AT LEAST PUT ON INQUIRY BEFORE ACCEPTING FURTHER ACTIVE DUTY PAY, THE DECISION OF NOVEMBER 20, 1950, 30 COMP. GEN. 195, IS NOT APPLICABLE TO THE CIRCUMSTANCES OF THIS CASE.