B-121663, SEPTEMBER 14, 1956, 36 COMP. GEN. 210

B-121663, SEPTEMBER 14, 1956, 36 COMP. GEN. 210

MILITARY PERSONNEL - RETIRED PAY - DISABILITY DETERMINATIONS - UPDIKE CASE MEMBERS OF THE UNIFORMED SERVICES WHO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE ACT OF APRIL 3, 1939, PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE SUPERSEDING PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, ARE ENTITLED TO DISABILITY RETIREMENT PAY FROM THE DATE OF QUALIFICATION IN ACCORDANCE WITH THE DECISION IN UPDIKE V. U.S., 132 C.1CLS 627, NOTWITHSTANDING THAT THE PREEXISTING FACTS QUALIFYING THE MEMBERS FOR DISABILITY RETIREMENT PAY WERE NOT DETERMINED BY COMPETENT AUTHORITY UNTIL AFTER THE DISABILITY RETIREMENT PROVISIONS OF THE 1939 ACT HAD BEEN SUPERSEDED. 30 COMP. GEN. 409, MODIFIED.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 14, 1956:

REFERENCE IS MADE TO LETTER OF AUGUST 18, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), WITH ENCLOSURE, REQUESTING DECISION WHETHER THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF FURMAN H. UPDIKE V. UNITED STATES, 132 C.1CLS. 627 (DECIDED JULY 12, 1955), WILL BE FOLLOWED BY THIS OFFICE IN OTHER SIMILAR CASES WITH RESPECT TO RETROACTIVE AND PROSPECTIVE PAYMENTS OF DISABILITY RETIREMENT PAY.

THE QUESTION IS DISCUSSED IN THE ENCLOSED MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 149, REFERENCE BEING MADE TO OUR PRIOR DECISIONS WHICH HAD REACHED CONCLUSIONS INCONSISTENT WITH THE HOLDING OF THE COURT IN THE UPDIKE CASE.

FURMAN H. UPDIKE WAS RELEASED FROM EXTENDED ACTIVE DUTY EFFECTIVE MARCH 25, 1948, AS AN OFFICER IN THE ARMY OF THE UNITED STATES (NON REGULAR) NOT BY REASON OF PHYSICAL DISABILITY. IN MARCH 1950 HE APPEARED BEFORE AN ARMY PHYSICAL EVALUATION BOARD WHICH FOUND HIM TO BE 100 PERCENT DISABLED BY REASON OF ACTIVE PULMONARY TUBERCULOSIS INCURRED AS THE PROXIMATE RESULT OF HIS MILITARY SERVICE. IT WAS FOUND, ALSO, THAT HE HAD BECOME UNFIT TO PERFORM THE DUTIES OF HIS MILITARY OFFICE AT THE TIME OF HIS SEPARATION FROM THE SERVICE ON MARCH 25, 1948. UPON APPROVAL BY THE SECRETARY OF THE ARMY OF THE FINDINGS OF THE PHYSICAL EVALUATION BOARD, UPDIKE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY EFFECTIVE MAY 31, 1950, IN THE GRADE OF MAJOR, ARMY OF THE UNITED STATES, BY REASON OF A DISABILITY INCURRED IN LINE OF DUTY, UNDER THE SUPPOSED AUTHORITY OF TITLE IV, SECTIONS 402 AND 409, OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 823, 37 U.S.C. 272, 279, RESPECTIVELY. PAYMENT OF DISABILITY RETIREMENT PAY UNDER THESE STATUTORY PROVISIONS WAS TERMINATED ON AUGUST 1, 1951, BY THE DEPARTMENT OF THE ARMY, ON THE BASIS OF OUR DECISION DATED APRIL 25, 1951, 30 COMP. GEN. 409.

THE FACTS CLEARLY ESTABLISH THAT UPDIKE, HAVING RESIGNED, WAS RELEASED FROM ACTIVE DUTY, NOT BY REASON BY PHYSICAL DISABILITY, PRIOR TO THE DATE OF APPROVAL OF THE CAREER COMPENSATION ACT OF 1949, AND, ALSO, THAT HE DID NOT QUALIFY UNDER THE CITED PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 FOR THE DISABILITY RETIREMENT PAY BENEFITS THERE PRESCRIBED. IN OUR DECISION MENTIONED ABOVE, 30 COMP. GEN. 409, WE HELD, IN CIRCUMSTANCES SIMILAR TO THOSE IN THE CASE OF UPDIKE, THAT IN SUCH A CASE THE INDIVIDUAL CONCERNED IS NOT ENTITLED TO DISABILITY RETIREMENT PAY BENEFITS UNDER EITHER TITLE IV OF THE 1949 ACT OR THE PROVISIONS OF LAW WHICH WERE IN EFFECT PRIOR TO THE APPROVAL OF THE 1949 ACT. THAT CONCLUSION RESTED ON THE VIEW THAT SECTION 5, ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456, AUTHORIZING RETIREMENT PAY BENEFITS ON ACCOUNT OF PHYSICAL DISABILITY TO MEMBERS AND FORMER MEMBERS OF THE ARMY OF THE UNITED STATES, WAS WHOLLY SUPERSEDED AS OF OCTOBER 1, 1949, BY THE PROVISIONS OF TITLE IV OF THE 1949 ACT, EXCEPT AS SUCH FORMER PROVISIONS OF LAW MIGHT BE MATERIAL IN RELATION TO THE REVIEW PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I.

IN ITS OPINION IN THE UPDIKE CASE, THE COURT OF CLAIMS DOES NOT APPEAR TO HAVE CHALLENGED THE CORRECTNESS OF OUR CONCLUSION INSOFAR AS WE HELD THAT PERSONS IN A SIMILAR SITUATION WERE NOT ENTITLED TO BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY UNDER AUTHORITY OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. THE COURT DID HOLD, HOWEVER, THAT UPDIKE BY VIRTUE OF THE SAVINGS PROVISIONS OF SECTION 519 OF THAT ACT, 63 STAT. 834, 37 U.S.C. 318, BECAME ENTITLED TO THE DISABILITY RETIREMENT PAY BENEFITS PRESCRIBED IN THE 1939 LAW, AS AMENDED, FROM THE DATE OF HIS RELEASE FROM ACTIVE DUTY, IT HAVING BEEN FOUND THAT AT THE TIME HE HAD BECOME PERMANENTLY INCAPACITATED TO PERFORM THE DUTIES OF HIS MILITARY OFFICE.

THE RIGHT TO DISABILITY RETIREMENT PAY UNDER THE 1939 ACT DEPENDED ON A COMPETENT DETERMINATION OF THE ESSENTIAL FACTS BRINGING THE MEMBER WITHIN THE STIPULATED CONDITIONS AND NOT ON ANY FORMAL RETIREMENT ACTION. COMP. GEN. 242, 247. THE UPDIKE DECISION RECOGNIZES THAT WHERE AN INDIVIDUAL IN FACT QUALIFIED FOR DISABILITY RETIREMENT PAY UNDER THE 1939 ACT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE SUPERSEDING PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, HE IS ENTITLED TO SUCH PAY FROM THE DATE OF QUALIFICATION, NOTWITHSTANDING THAT THE PREEXISTING FACTS QUALIFYING HIM FOR SUCH PAY WERE NOT ACTUALLY DETERMINED BY COMPETENT AUTHORITY UNTIL AFTER THE DISABILITY RETIREMENT PROVISIONS OF THE 1939 ACT HAD BEEN SO SUPERSEDED BY TITLE IV.

SECTION 519 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES:

ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES OF ANY PERSON ENTITLED TO THE RIGHTS, BENEFITS, AND PRIVILEGES OF A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES, INCLUDING ANY PERSON ENTITLED TO THE BENEFITS PROVIDED IN THE ACT OF MAY 7, 1948 (62 STAT. 211), WHO ON THE DATE OF ENACTMENT OF THIS ACT, IS RECEIVING OR IS ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY PURSUANT TO ANY PROVISION OF LAW, SHALL, NOTWITHSTANDING THE PROVISIONS OF THIS ACT, BE ENTITLED TO CONTINUE TO RECEIVE OR SHALL CONTINUE HIS ENTITLEMENT TO RECEIVE THAT RETIRED OR RETIREMENT PAY WHICH SUCH MEMBER OR FORMER MEMBER IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY PRECEDING DATE OF ENACTMENT OF THIS ACT.

WHILE NOT ENTIRELY CLEAR, THE LANGUAGE OF THIS SECTION AFFORDS A TENABLE BASIS FOR THE CONCLUSION REACHED BY THE COURT, AND WE FEEL NO GOOD PURPOSE WILL BE SERVED BY QUESTIONING THE SOUNDNESS OF SUCH CONCLUSION. ALSO, WE NOW PERCEIVE SOME BASIS FOR THE VIEW THAT THAT PART OF 30 COMP. GEN. 409, AND SIMILAR HOLDINGS IN SUBSEQUENT DECISIONS OF THIS OFFICE, TO THE EFFECT THAT THE PRIOR DISABILITY RETIREMENT PAY STATUTES THERE INVOLVED (SEE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456, RELATING TO THE ARMY AND AIR FORCE AND THE PROVISIONS OF 34 U.S.C. 855C-1, RELATING TO THE NAVAL RESERVE AND MARINE CORPS RESERVE) HAD BEEN WHOLLY SUPERSEDED BY THE 1949 ACT, MAY HAVE PLACED TOO STRICT A CONSTRUCTION ON THE EFFECT AND OPERATION OF TITLE IV OF THAT ACT. COMPARE 32 COMP. GEN. 242; 32 COMP. GEN. 372; 33 COMP. GEN. 1; 33 COMP. GEN. 171. IN THE LIGHT OF THESE DEVELOPMENTS IT MAY REASONABLY BE CONCLUDED THAT THE RIGHT OF AN INDIVIDUAL TO ESTABLISH A PREEXISTING ENTITLEMENT TO DISABILITY RETIREMENT PAY BENEFITS UNDER SUCH PRIOR PROVISIONS OF LAW WAS NOT EXTINGUISHED BY TITLE IV BUT, RATHER, CONTINUED IN EFFECT UNDER THE AUTHORITY OF SECTION 519 OF THE 1949 LAW, AS HELD IN THE UPDIKE CASE.

ACCORDINGLY, THIS OFFICE WILL FOLLOW THE COURT OF CLAIMS DECISION IN THE UPDIKE CASE, WITH RESPECT TO RETROACTIVE AND PROSPECTIVE PAYMENT OF DISABILITY RETIREMENT PAY, IN ANY SIMILAR CASE WHERE THE FACTS CLEARLY ESTABLISH THAT THE DISABILITY RETIREMENT PAY STATUS OF THE INDIVIDUAL CONCERNED COMES WITHIN THE SCOPE OF THAT DECISION. PRIOR DECISIONS OF THIS OFFICE WHICH ARE INCONSISTENT WITH THE HOLDING HEREIN ARE MODIFIED ACCORDINGLY.