B-114580, JUL 10, 1953

PRECIS-UNAVAILALBE

LIEUTENANT COLONEL J. F. ELDER, USMC:

MARINE CORPS ALLOTMENT OFFICER

HEADQUARTERS UNITED STATES MARINE CORPS

WASHINGTON 25, D.C.

REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1953, WITH ENCLOSURES, FORWARDED BY THE COMMANDANT OF THE MARINE CORPS WITH FIRST INDORSEMENT OF THE SAME DATE, REQUESTING A DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES HEREINAFTER STATED, YOU ARE AUTHORIZED TO ADJUST THE RETIRED PAY ACCOUNT OF COMMISSIONED WARRANT OFFICER ROBERT L. BIRT, 01967, U.S. MARINE CORPS, RETIRED.

YOUR LETTER DISCLOSES THAT COMMISSIONED WARRANT OFFICER BIRT REENLISTED IN THE U.S. MARINE CORPS ON MARCH 12, 1940, FOLLOWING PRIOR ACTIVE AND INACTIVE SERVICE IN THE MARINE CORPS, MARINE CORPS RESERVE AND THE FLEET MARINE CORPS RESERVE. ON JULY 7, 1942, HE WAS APPOINTED TO THE RANK OF MARINE GUNNER FOR TEMPORARY SERVICE AND ON OCTOBER 1, 1943, HE WAS TEMPORARILY APPOINTED TO THE RANK OF CHIEF MARINE GUNNER, U.S. MARINE CORPS. THE SAID TEMPORARY APPOINTMENTS ARE STATED TO HAVE BEEN MADE IN CONFORMITY WITH THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350- 350K.

IT APPEARS THAT ON FEBRUARY 8, 1945, THE SUBJECT MAN WAS EXAMINED BY A BOARD OF MEDICAL EXAMINERS CONVENED BY ORDER OF THE SECRETARY OF THE NAVY TO EXAMINE ALL OFFICERS OF THE REGULAR MARINE CORPS OVER 54 YEARS OF AGE, TO DETERMINE THEIR PHYSICAL FITNESS TO PERFORM ALL THEIR DUTIES AT SEA AND IN THE FIELD. THE COMMANDANT OF THE MARINE CORPS WAS ADVISED ON MARCH 23, 1945, BY THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY THAT BIRT WAS NOT PHYSICALLY QUALIFIED FOR ALL HIS DUTIES AT SEA OR IN THE FIELD, IT BEING ADDED, HOWEVER, THAT IT WAS THE OPINION OF THE BUREAU OF MEDICINE AND SURGERY THAT HE WAS QUALIFIED TO PERFORM THE DUTIES TO WHICH HE WAS THEN ASSIGNED. ON THE RECOMMENDATION OF THE SAID BOARD OF MEDICAL EXAMINERS BIRT WAS ADMITTED ON MARCH 24, 1945, TO THE UNITED STATES NAVAL HOSPITAL, QUANTICO, VIRGINIA, WITH DIAGNOSIS "HYPERTENSION ARTERIAL #208."

IN A REPORT DATED APRIL 17, 1945, THE BOARD OF MEDICAL SURVEY BEFORE WHICH THE SUBJECT MAN APPEARS AS THE RESULT OF HIS HOSPITALIZATION STATED THAT HE WAS UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY "AORTITIS #206"; THAT SAID DISABILITY WAS NO THE RESULT OF HIS OWN MISCONDUCT, HAD BEEN INCURRED IN LINE OF DUTY AND WAS OF A PERMANENT NATURE. IT WAS RECOMMENDED THAT BIRT BE ORDERED TO APPEAR BEFORE A NAVAL RETIRING BOARD. HOWEVER, THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY MODIFIED THE FOREGOING RECOMMENDATION OF THE BOARD OF MEDICAL SURVEY AND BY INDORSEMENT OF APRIL 25, 1945, RECOMMENDED THAT BIRD BE RETURNED TO DUTY ASHORE IN A NON-COMBAT AREA IN AN ASSIGNMENT NOT INVOLVING STRENUOUS PHYSICAL ACTIVITY. IN ACCORDANCE THEREWITH BIRT WAS ORDERED ON APRIL 28, 1945, BY THE COMMANDANT OF THE MARINE CORPS, TO RESUME HIS REGULAR DUTIES AT THE MARINE BARRACKS, QUANTICO, VIRGINIA, WHEN DISCHARGED FROM TREATMENT AT THE UNITED STATES NAVAL HOSPITAL. A REQUEST WAS SUBMITTED BY BIRT IN JUNE 1945, TO APPEAR BEFORE A NAVAL RETIRING BOARD AND SAID REQUEST WAS DISAPPROVED ON SEPTEMBER 4, 1945, BY THE COMMANDANT OF THE MARINE CORPS, ON THE BASIS OF THE OPINION OF THE BUREAU OF MEDICINE AND SURGERY EXPRESSED IN A REPORT DATED AUGUST 22, 1945, THAT BIRT WAS PHYSICALLY QUALIFIED FOR DUTY ASHORE IN A NON-COMBAT AREA, ALTHOUGH BECAUSE OF HIS AGE AND GENERAL PHYSICAL CONDITION HE SHOULD NOT BE DETAILED TO AN ASSIGNMENT REQUIRING STRENUOUS PHYSICAL ACTIVITY.

THEREAFTER, PURSUANT TO THE SUBJECT MAN'S REQUEST OF OCTOBER 2, 1945, HE WAS ON JANUARY 16, 1946, RELEASED FROM ACTIVE DUTY AS COMMISSIONED WARRANT OFFICER AND REVERTED TO HIS PERMANENT ENLISTED RANK. ON THE NEXT DAY, JANUARY 17, 1946, HE WAS TRANSFERRED IN THE RANK OF MASTER GUNNERY SERGEANT TO CLASS 1(C), FLEET MARINE CORPS RESERVE IN CONFORMITY WITH THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854B. HE WAS RELEASED TO INACTIVE DUTY EFFECTIVE JANUARY 18, 1946, AND SINCE HE HAD OVER 30 YEARS' TOTAL SERVICE, INCLUDING HIS INACTIVE SERVICE IN THE FLEET MARINE CORPS RESERVE, HE WAS TRANSFERRED, EFFECTIVE FEBRUARY 1, 1946, TO THE RETIRED LIST OF ENLISTED MEN OF THE MARINE CORPS IN THE RANK OF MASTER GUNNERY SERGEANT AS PROVIDED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, 34 U.S.C. 854C. SUBSEQUENTLY BIRT WAS ADVANCED ON THE RETIRED LIST TO RANK OF COMMISSIONED WARRANT OFFICER, EFFECTIVE FEBRUARY 1, 1946, PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8(A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I. IT IS STATED THAT SINCE HIS RETIREMENT BIRT HAS BEEN PAID RETIRED PAY AS A FLEET MARINE CORPS RESERVIST ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMISSIONED WARRANT OFFICER, COMPUTED AS PRESCRIBED IN SECTION 203 OF THE NAVAL RESERVE ACT 1938, SUPRA, BUT BASED ON THE PAY OF A COMMISSIONED WARRANT OFFICER.

IT IS FURTHER STATED THAT PURSUANT TO BIRT'S REQUEST OF MARCH 22, 1951, THE SECRETARY OF THE NAVY ORDERED A NAVAL MEDICAL SURVEY REVIEW BOARD, CONVENED AUGUST 16, 1951, UNDER THE PROVISIONS OF SECTION 302(A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, 58 STAT. 287, 38 U.S.C. 693I "TO REVIEW HIS RELEASE FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY." IT APPEARS THAT THE SAID BOARD CONCLUDED THAT BIRT WAS SUFFERING FROM AORTITIS AT THE TIME HE WAS RELEASED FROM ACTIVE DUTY AND THAT SUCH INCAPACITY AS HE HAD IS PERMANENT; BUT, BEING UNABLE TO DETERMINE WHETHER THE SAID CONDITION DID OR DID NOT INCAPACITATE HIM FOR FURTHER USEFUL NAVAL SERVICE, THE BOARD RECOMMENDED THAT HE BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. THE PROCEEDINGS, FINDINGS AND RECOMMENDATION OF THE NAVAL MEDICAL SURVEY REVIEW BOARD WERE APPROVED BY THE PRESIDENT ON JANUARY 17, 1952, AND THE PHYSICAL EVALUATION BOARD WHICH CONVENED IN THE CASE ON DECEMBER 16, 1952, RENDERED FINDINGS, APPROVED BY THE SECRETARY OF THE NAVY ON MARCH 5, 1953, WHICH IF LEGALLY EFFECTIVE WOULD ENTITLE BIRT TO RECEIVE, AS STATED IN YOUR LETTER, THE "RETIRED PAY OF A COMMISSIONED WARRANT OFFICER RETIRED FOR PHYSICAL DISABILITY IN CONFORMITY, WITH THE PROVISIONS OF 34 U.S.C. 417 AND 350G (AS EFFECTIVE ON 16 JANUARY 1946), 38 U.S.C. 693I, AND OTHER PROVISIONS OF LAW RELATING THERETO."

HOWEVER, INASMUCH AS THE TERMINATION OF BIRT'S TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER WAS PREREQUISITE TO HIS VOLUNTARY TRANSFER, IN HIS ENLISTED STATUS, TO THE FLEET MARINE CORPS RESERVE, WITH RETAINER PAY, YOU REQUEST TO BE ADVISED AS TO WHETHER THE RULE STATED IN DECISION OF THIS OFFICE, DATED MAY 2, 1952, 31 COMP.GEN. 555, AUTHORIZES ADJUSTMENT OF HIS RETIRED PAY ON THE BASIS OF THE APPROVED PROCEEDINGS AND FINDINGS OF THE NAVAL MEDICAL SURVEY REVIEW BOARD THAT WAS CONVENED IN HIS CASE UNDER THE PROVISIONS OF SECTION 302(A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUPRA, AND THE SUBSEQUENT ACTION TAKEN THEREON BY THE PHYSICAL EVALUATION BOARD AS CONCURRED IN BY THE PHYSICAL REVIEW COUNCIL. ALSO, IN THE EVENT THAT SUCH ADJUSTMENT IS FOUND TO BE APPROPRIATE YOU FURTHER REQUEST TO BE ADVISED AS TO THE DATE FROM WHICH COMMISSIONED WARRANT OFFICER BIRT WOULD BE ENTITLED TO RECEIVE THE HIGHER RATE OF DISABILITY RETIREMENT PAY.

IN THE SAID DECISION OF MAY 2, 1952, 31 COMP.GEN. 555, THERE WAS CONSIDERED THE STATUS OF AN ENLISTED MAN OF THE NAVY, WHO WHILE HOLDING A TEMPORARY COMMISSION AS AN OFFICER UNDER THE ACT OF JULY 24, 1941, SUPRA, WAS FOUND BY A BOARD OF MEDICAL SURVEY TO BE PHYSICALLY DISABLED BY REASON OF A DISABILITY WHICH HAD ITS ONSET DURING HIS ENLISTED SERVICE. HIS TEMPORARY COMMISSION AS AN OFFICER WAS TERMINATED ON JULY 25, 1946, AND ON THE SAME DATE HE WAS RELEASED FROM ACTIVE DUTY AND SEPARATED FROM THE NAVAL SERVICE BY DISCHARGE FROM HIS ENLISTED STATUS. UNDER SUCH CIRCUMSTANCES, IT WAS HELD THAT THE TERMINATION OF HIS TEMPORARY COMMISSION AS AN OFFICER BECAUSE OF PHYSICAL DISABILITY ALTHOUGH COUPLED WITH HIS RELEASE FROM ACTIVE DUTY ON THE SAME DATE BY DISCHARGE FROM HIS ENLISTED STATUS, REASONABLE IS TO BE VIEWED AS COMING WITHIN THE PURVIEW OF SECTION 302(A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUPRA. IN OTHER WORDS THE JURISDICTION OF THE NAVAL MEDICAL SURVEY REVIEW BOARD CONVENED IN THAT CASE UNDER SECTION 302(A), SUPRA, WAS COMPLETE AND LEGALLY EFFECTIVE, THE REVIEW ACTION SO TAKEN BEING IN A CASE IN WHICH THE SUBJECT INDIVIDUAL ACTUALLY HAD BEEN RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY, PURSUANT TO THE DECISION OF A BOARD OF MEDICAL SURVEY. THE RULE, HOWEVER, IS OTHERWISE IF SUCH BOARD LACKS JURISDICTION. IN THAT CONNECTION, SEE DECISION OF JUNE 24, 1952, 31 COMP.GEN. 681, WHEREIN IT WAS STATED THAT "IN THE VIEW OF THIS OFFICE, A BOARD ESTABLISHED UNDER THE PROVISIONS OF THE 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, AND OF COURSE, HIS ORDERS FOR SEPARATION ARE PRIMA FACIE EVIDENCE OF THAT FACT."

WHILE THE NAVAL MEDICAL AUTHORITIES MAY NOT HAVE CONSIDERED COMMISSIONED WARRANT OFFICER BIRT AS PHYSICALLY QUALIFIED FOR ALL THE DUTIES OF HIS RANK AT SEA OR IN THE FIELD, BY REASON OF HIS AGE AND GENERAL PHYSICAL CONDITION, THE RECORD SHOWS IT WAS THE FURTHER VIEW OF SUCH AUTHORITIES THAT HE WAS PHYSICALLY QUALIFIED FOR DUTY ASHORE IN A NON-COMBAT AREA. THIS RESPECT IT IS CLEARLY EVIDENT THAT IT WAS ON THE BASIS OF SUCH MEDICAL OPINION THAT THE COMMANDANT OF THE MARINE CORPS, ON APRIL 28, 1945, ORDERED BIRT TO RESUME HIS REGULAR DUTIES AT THE MARINE BARRACKS, QUANTICO, VIRGINIA, WHEN DISCHARGED FROM THE TREATMENT HE WAS THEN UNDERGOING IN THE UNITED STATES NAVAL HOSPITAL, QUANTICO, VIRGINIA. ALSO, THE COMMANDANT OF THE MARINE CORPS, FOR THE SAME REASON, DISAPPROVED ON SEPTEMBER 4, 1945, BIRT'S REQUEST OF JUNE 13, 1945, TO APPEAR BEFORE A NAVAL RETIRING BOARD.

UNDER THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854B, BIRT, AS AN ENLISTED MAN OF THE MARINE CORPS MEETING THE CONDITIONS THEREIN PRESCRIBED, WAS ENTITLED AT HIS REQUEST TO BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE. HENCE, THE TERMINATION OF HIS TEMPORARY COMMISSION AS A COMMISSIONED WARRANT OFFICER (SEE 34 U.S.C. 350I, 1940 ED. SUPP. V), AND HIS REVERSION ON JANUARY 16, 1946, TO HIS PERMANENT ENLISTED STATUS IN THE MARINE CORPS TO PERMIT HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE MUST BE VIEWED AS HAVING BEEN ACCOMPLISHED ENTIRELY INDEPENDENT OF HIS PHYSICAL CONDITION. BIRT'S TRANSFER TO THE FLEET MARINE CORPS RESERVE WAS ACCOMPLISHED ON JANUARY 17, 1946, AND IT HAS BEEN INFORMALLY ASCERTAINED THAT HE WAS IN RECEIPT OF RETAINER PAY EFFECTIVE AS OF JANUARY 18, 1946, THE DATE OF HIS RELEASE TO INACTIVE STATUS. HIS SUBSEQUENT TRANSFER TO THE RETIRED LIST OF ENLISTED MEN OF THE MARINE CORPS, EFFECTIVE FEBRUARY 1, 1946, UNDER THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, 34 U.S.C. 854C, LIKEWISE IS SHOWN TO HAVE BEEN ACCOMPLISHED INDEPENDENTLY OF AND WITHOUT REGARD TO HIS PHYSICAL CONDITION. UNDER SUCH CIRCUMSTANCES, IT IS APPARENT THAT BIRT WAS NOT RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDIAL SURVEY OR DISPOSITION BOARD, AND, HENCE THE NAVAL MEDICAL SURVEY REVIEW BOARD WHICH CONVENED IN HIS CASE WAS WITHOUT JURISDICTION IN THE MATTER. IT MUST BE CONCLUDED, THEREFORE, THAT BIRT IS NOT LEGALLY ENTITLED TO RECEIVE RETIRED PAY ON THE BASIS OF THE PROCEEDINGS AND FINDINGS OF THE PHYSICAL EVALUATION BOARD AS APPROVED BY THE SECRETARY OF THE NAVY, MARCH 5, 1953. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE. ACCORDINGLY, NO REPLY IS REQUIRED TO THE SECOND QUESTION.