B-113139, FEB 20, 1953

B-113139, FEB 20, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL C. A. PHILLIPS, USMC:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 25, 1952, FORWARDED BY THE COMMANDANT OF THE MARINE CORPS WITH FIRST INDORSEMENT DATED DECEMBER 1, 1952, REQUESTING DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES HEREINAFTER STATED, YOU ARE AUTHORIZED TO ADJUST THE PAY ACCOUNT OF TECHNICAL SERGEANT CLYDE H. CHANDLER (244448), USMC, RETIRED, SO AS TO CREDIT HIM WITH ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD MARCH 1, 1952, TO OCTOBER 31, 1952, INCLUSIVE.

IT APPEARS THAT TECHNICAL SERGEANT CHANDLER ENLISTED IN THE MARINE CORPS AUGUST 1, 1934; THAT, EXCEPT FOR A PERIOD OF TIME LOST (140 DAYS), HE HAS HAD CONTINUOUS ACTIVE SERVICE; THAT IN THE MONTH OF AUGUST 1951 HE WAS ADMITTED TO THE UNITED STATES NAVAL HOSPITAL, CAMP LEJEUNE, NORTH CAROLINA, AND THAT IN OCTOBER 1951 HE WAS TRANSFERRED TO THE UNITED STATES NAVAL HOSPITAL, PHILADELPHIA, PENNSYLVANIA, FOR TREATMENT AND DISPOSITION. A PHYSICAL EVALUATION BOARD CONVENED ON JANUARY 24, 1952, FOUND HIM UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY, "SCHIZOPHRENIC REACTION, PARANOID TYPE, VA CODE #9003", INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY, AND THAT SUCH DISABILITY, RATED AT 30 PER CENTUM, MAY BE OF A PERMANENT NATURE. FEBRUARY 7, 1952, THE PROCEEDINGS AND FINDINGS OF THE SAID PHYSICAL EVALUATION BOARD WERE APPROVED BY THE SECRETARY OF THE NAVY WHO DIRECTED THAT THE SUBJECT MAN BE TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF 37 U.S.C. 272(B). YOUR LETTER DISCLOSES THAT THE COMMANDANT OF THE MARINE CORPS, ON FEBRUARY 12, 1952, ISSUED THE NECESSARY ORDERS TO TECHNICAL SERGEANT CHANDLER EFFECTING HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 1, 1952.

IT FURTHER APPEARS, HOWEVER, THAT CHANDLER AT HIS OWN REQUEST WAS, ON FEBRUARY 28, 1952, PHYSICALLY EXAMINED PREPARATORY TO HIS BEING TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST AND AS A RESULT OF SUCH PHYSICAL EXAMINATION HE WAS ON THAT DATE ADMITTED TO THE UNITED STATES NAVAL HOSPITAL, PHILADELPHIA, PENNSYLVANIA, WITH THE DIAGNOSIS OF "TUBERCULOSIS PULMONARY, REINFECTION, MIM ACT #7955." THEREAFTER, THE COMMANDANT OF THE MARINE CORPS, ON JUNE 25, 1952, RECOMMENDED TO THE SECRETARY OF THE NAVY THAT THE SECRETARY'S ACTION OF FEBRUARY 7, 1952, "BE REVOKED IN VIEW OF THE DISCOVERY, PRIOR TO THE EFFECTIVE DATE OF TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST, OF THE NEW AND ADDITIONAL DISABILITY." TECHNICAL SERGEANT CHANDLER APPARED BEFORE A PHYSICAL EVALUATION BOARD CONVENED ON JULY 16, 1952, AND HE WAS THEN FOUND TO BE UNFIT FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY, "TUBERCULOSIS, PULMONARY, CHRONIC, MIM ACT, VA CODE #6703 AND SCHIZOPHRENIC REACTION, PARANOID TYPE, VA CODE #9003," UNDER THE SAME CONDITIONS AS THOSE EXISTING AT THE TIME OF HIS APPEARANCE BEFORE THE PHYSICAL EVALUATION BOARD ON JANUARY 24, 1952, EXCEPT THAT HIS DISABILITY WAS RATED TO BE 100 PER CENTUM. THE SECRETARY OF THE NAVY, ON OCTOBER 3, 1952, DIRECTED THAT HIS PRIOR ACTION OF FEBRUARY 7, 1952, BE CANCELLED, AND, ON OCTOBER 9, 1952, THE SECRETARY APPROVED THE JULY 1952 FINDINGS OF THE PHYSICAL EVALUATION BOARD AND AGAIN DIRECTED THAT CHANDLER BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF 37 U.S.C. 272(B). IT APPEARS THAT IN ACCORDANCE WITH LETTER OF THE COMMANDANT OF THE MARINE CORPS, DATED OCTOBER 27, 1952, CHANDLER WAS "PLACED" ON THE TEMPORARY DISABILITY RETIRED LIST ON NOVEMBER 1, 1952, BUT YOU ARE IN DOUBT AS TO HIS RIGHT TO ACTIVE DUTY PAY FOR THE PERIOD MARCH 1 TO OCTOBER 31, 1952, IN VIEW OF DECISION OF THIS OFFICE DATED JANUARY 16, 1952, B- 106845, 31 COMP. GEN. 296, AND THE DECISIONS OF THE COURT OF CLAIMS IN SPENCER V. UNITED STATES, 121 C. CLS. 558, AND CARLIN V. UNITED STATES, 121 C. CLS. 643, TO THE EFFECT THAT A RETIREMENT WHICH HAS BECOME EFFECTIVE PURSUANT TO THE APPROVED FINDINGS OF A RETIRING BOARD MAY NOT BE CANCELLED ON THE BASIS OF A REVALUATION OF THE EXISTING EVIDENCE.

SECTION 402(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272(B), VESTS IN THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED THE AUTHORITY TO DETERMINE WHEN A MEMBER IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE; THAT SUCH DISABILITY IS 30 PER CENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION; THAT SUCH MEMBER HAS COMPLETED AT LEAST EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THE ACT AND THAT ACCEPTED MEDICAL PRINCIPLES INDICATE SUCH DISABILITY MAY BE OF A PERMANENT NATURE. IF IT IS DETERMINED THAT THE DISABILITY MAY BE PERMANENT AND THE OTHER PRESCRIBED CONDITIONS EXIST, IT IS PROVIDED THAT THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF THAT SERVICE; AND, IF IT IS DETERMINED THAT SUCH DISABILITY ACTUALLY IS OF A PERMANENT NATURE SUCH MEMBER MAY BE RETIRED BY THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED. WITH RESPECT TO PERMANENT RETIREMENT IT WAS HELD, IN THE DECISION OF JANUARY 16, 1952, 31 COMP. GEN. 296, ABOVE REFERRED TO, THAT THE ADMINISTRATIVE ACTION IN TRANSFERRING A MEMBER OF THE NAVAL SERVICE FROM THE ACTIVE LIST TO THE PERMANENT RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 402(B), SUPRA, IS FINAL AND AFTER HAVING BECOME EFFECTIVE MAY NOT BE CANCELLED OR SET ASIDE UNLESS IT CAN BE ESTABLISHED THAT THE ACTION WAS BASED ON SUCH A GROSS MISTAKE OF FACT AS TO REQUIRE THAT IT BE TREATED AS A NULLITY.

SECTION 402(E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 819, 37 U.S.C. 272(E) PROVIDES AS FOLLOWS:

"(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. IF AS A RESULT OF ANY SUCH EXAMINATIONS, OR UPON THE TERMINATION OF A PERIOD OF FIVE YEARS FROM THE DATE OF TEMPORARY DISABILITY RETIREMENT, IT IS DETERMINED (1) THAT THE PHYSICAL DISABILITY OF SUCH MEMBER IS OF PERMANENT CHARACTER AND SUCH DISABILITY IS 30 PER CENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION, THE NAME OF SUCH MEMBER SHALL BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE AND SUCH MEMBER SHALL BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY AND HE SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT FOR THE PURPOSE OF COMPUTING SUCH PAY THE PERCENTAGE OF HIS PHYSICAL DISABILITY SHALL BE DETERMINED AS OF THE TIME OF HIS PERMANENT RETIREMENT; (2) THAT THE PHYSICAL DISABILITY OF SUCH MEMBER IS LESS THAN 30 PER CENTUM IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION, THE NAME OF SUCH MEMBER SHALL BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST OF THE SERVICE CONCERNED, AND SUCH MEMBER MAY BE SEPARATED FROM THE SERVICE CONCERNED FOR PHYSICAL DISABILITY AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: PROVIDED FURTHER, THAT AT THE END OF A FIVE-YEAR PERIOD DURING WHICH THE NAME OF A MEMBER IS CARRIED ON A TEMPORARY DISABILITY RETIRED LIST, THE SECRETARY CONCERNED SHALL MAKE A FINAL DETERMINATION OF SUCH MEMBER'S CASE AND SHALL CAUSE SUCH MEMBER TO BE RETIRED, SEPARATED, OR TREATED AS PROVIDED IN SECTION 405 OF THIS TITLE." SECTION 404(A), 63 STAT. 821, 37 U.S.C. 274(A), IS AS FOLLOWS:

"(A) A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS HEREAFTER PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST MAY BE REQUIRED TO SUBMIT TO PERIODIC PHYSICAL EXAMINATIONS DURING THE PERIOD IN WHICH HIS NAME IS CARRIED ON SUCH LIST."

UNDER THE ABOVE-QUOTED STATUTORY PROVISIONS A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME HAS BEEN PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE IS TO BE GIVEN PERIODIC PHYSICAL EXAMINATIONS NOT LESS FREQUENT THAN EVERY EIGHTEEN MONTHS. SUCH PERIODIC PHYSICAL EXAMINATIONS TO DETERMINE WHETHER THE DISABILITY FOR WHICH THE MEMBER WAS TEMPORARILY RETIRED HAS CHANGED ARE THUS IN THE NATURE OF A REVIEW OF THE ADMINISTRATIVE ACTION INITIALLY TAKEN IN PLACING THE MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST. IF AS A RESULT OF ANY SUCH EXAMINATION, OR UPON TERMINATION OF A PERIOD OF FIVE YEARS FROM THE DATE OF TEMPORARY DISABILITY RETIREMENT, IT IS DETERMINED THAT THE PHYSICAL DISABILITY OF SUCH MEMBER IS OF PERMANENT CHARACTER AND SUCH DISABILITY IS 30 PER CENTUM OR MORE, THE NAME OF SUCH MEMBER IS TO BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE AND SUCH MEMBER SHALL BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY AND SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SECTION 402(D) OF THE ACT, IT BEING FURTHER PROVIDED THAT FOR THE PURPOSE OF COMPUTING RETIREMENT PAY IN SUCH A CASE THE PERCENTAGE OF HIS PHYSICAL DISABILITY SHALL BE DETERMINED AS OF THE TIME OF PERMANENT RETIREMENT. HOWEVER, IF IT IS DETERMINED THAT THE PHYSICAL DISABILITY OF SUCH MEMBER IS LESS THAN 30 PER CENTUM, THE NAME OF SUCH MEMBER IS REQUIRED TO BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST OF THE SERVICE CONCERNED AND SUCH MEMBER MAY BE SEPARATED FROM THE SERVICE CONCERNED FOR PHYSICAL DISABILITY AND UPON SUCH SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403, 63 STAT. 820, 821, 37 U.S.C. 273. IT IS FURTHER PROVIDED THAT AT THE END OF A FIVE YEAR PERIOD DURING WHICH THE MEMBER'S NAME HAS BEEN CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST THE SECRETARY CONCERNED SHALL MAKE A FINAL DETERMINATION OF SUCH MEMBER'S CASE AND SHALL CAUSE SUCH MEMBER TO BE RETIRED, SEPARATED, OR TREATED, IN THE EVENT SUCH MEMBER HAS RECOVERED FROM PHYSICAL DISABILITY, AS PROVIDED IN SECTION 405, 63 STAT. 821, 37 U.S.C. 275.

IN VIEW OF THE FOREGOING STATUTORY PROVISIONS GOVERNING THE DISPOSITION OF MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IT IS EVIDENT THAT SPECIFIC AND EXPRESS PROVISION HAS BEEN MADE FOR THE REVIEW OF ADMINISTRATIVE ACTION TAKEN IN ALL SUCH CASES. HOWEVER, WHILE THE STATUS OF A MEMBER WHOSE NAME HAS BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST MAY BE CHANGED TO THE PERMANENT RETIRED LIST, OR SUCH MEMBER SEPARATED FROM THE SERVICE, OR IF FOUND TO BE PHYSICALLY FIT SUCH MEMBER TREATED AS PROVIDED IN SECTION 405, SUPRA, IT WILL BE NOTED THAT THE STATUTE MAKES NO PROVISION WHEREBY ADMINISTRATIVE DETERMINATIONS IN SUCH CASES MAY BE GIVEN ANY RETROACTIVE EFFECT. THAT IS TO SAY, THE LAW DOES NOT AUTHORIZE, EXPRESSLY OR IMPLIEDLY, THE RETROACTIVE REINSTATEMENT OF THE ACTIVE STATUS OF A MEMBER THERETOFORE LAWFULLY PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. HENCE, IN CONSONANCE WITH THE PRINCIPLES OF THE ESTABLISHED RULE AGAINST RETROACTIVE CHANGES OF STATUS, IT MUST BE CONCLUDED THAT THE LAWFULLY EFFECTIVE TEMPORARY DISABILITY RETIRED STATUS OF SUCH A MEMBER MAY NOT BE CHANGED RETROACTIVELY.

THE CIRCUMSTANCES, ABOVE SET FORTH - UNDER WHICH RECOGNITION OF LEGALITY IS SOUGHT FOR THE ACTION TAKEN TO CANCEL AND SET ASIDE, RETROACTIVELY, TECHNICAL SERGEANT CHANDLER'S TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST, WHICH BECAME EFFECTIVE MARCH 1, 1952, WITH A 30 PER CENTUM DISABILITY RATING - DO NOT ESTABLISH THAT THE INITIAL ADMINISTRATIVE ACTION IN HIS CASE RESULTED FROM ANY MISTAKE OF FACT WITH RESPECT TO THE PROPRIETY OF HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST. THE DISCOVERY, PRIOR TO MARCH 1, 1952, OF AN ADDITIONAL DISABILITY, RELATING TO THE PERCENTAGE DEGREE OF CHANDLER'S DISABILITY RATING, FURNISHES NO PROPER BASIS TO HOLD THAT HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 1, 1952, WAS UNLAWFULLY ACCOMPLISHED. ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO AUTHORITY FOR ADJUSTING THE PAY ACCOUNT OF TECHNICAL SERGEANT CHANDLER TO ALLOW HIM ACTIVE DUTY PAY AND ALLOWANCES INSTEAD OF DISABILITY RETIREMENT PAY FOR THE PERIOD MARCH 1, 1952, TO OCTOBER 31, 1952, INCLUSIVE.