B-124018, OCT. 12, 1955

B-124018, OCT. 12, 1955

TO DIRECTOR, SPECIAL PAYMENTS DIVISION, U.S. NAVY FINANCE CENTER:

BY LETTER DATED MAY 17, 1955, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF APRIL 22, 1955, WITH ENCLOSURES, REQUESTING DECISION RELATIVE TO THE RIGHT OF LIEUTENANT COMMANDER MELVIN J. N. BRUNKHORST, U.S. NAVAL RESERVE (INACTIVE), TO RECEIVE RETIRED PAY IN THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT WHILE SERVING ON EXTENDED ACTIVE DUTY AS LIEUTENANT IN THE U.S. NAVAL RESERVE, MR. BRUNKHORST WAS ADMITTED ON OR ABOUT JUNE 21, 1945, TO THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA. HE APPEARED BEFORE A BOARD OF MEDICAL SURVEY ON AUGUST 31, 1945, AND THE REPORT OF THAT BOARD ON THE MATTER DISCLOSES THE OPINION THAT "THIS OFFICER IS NOT FIT FOR RETENTION IN ANY CAPACITY BECAUSE OF A MEDIASTINAL TUMOR (SHOWN ELSEWHERE IN THE REPORT AS BEING "A DERMOID CYST OF CONGENITAL ORIGIN") WHICH CAUSES EPIGASTRIC DISCOMFORT WHEN HE IS UNDER NERVOUS OR PHYSICAL TENSION.' THE REPORT STATED THAT MAXIMUM BENEFITS OF MEDICAL TREATMENT HAD BEEN ACHIEVED AND THAT FURTHER HOSPITALIZATION WAS NOT NEEDED. THE RECOMMENDATION OF THE BOARD THAT MR. BRUNKHORST BE DISCHARGED FROM THE U.S. NAVAL RESERVE WAS BASED UPON FINDINGS THAT HIS DISABILITY EXISTED PRIOR TO HIS APPOINTMENT; THAT IT WAS NOT THE RESULT OF HIS OWN MISCONDUCT AND HAD NOT BEEN INCURRED IN LINE OF DUTY. MR. BRUNKHORST WAS INFORMED AS TO THE BOARD'S FINDINGS AND RECOMMENDATION IN HIS CASE AND THE REPORT INDICATES THAT HE DID NOT DESIRE TO SUBMIT ANY STATEMENT IN REBUTTAL.

THE RECOMMENDATION OF THE BOARD OF MEDICAL SURVEY WAS MODIFIED BY THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY IN AN ENDORSEMENT DATED SEPTEMBER 20, 1945, ADVISING THE CHIEF OF NAVAL PERSONNEL THAT MR. BRUNKHORST WAS CONSIDERED TO BE PHYSICALLY QUALIFIED TO PERFORM ACTIVE DUTY WITHIN THE CONTINENTAL UNITED STATES AND RECOMMENDING THAT HE BE ASSIGNED TO SUCH DUTY. SUBSEQUENTLY, THE CHIEF OF NAVAL PERSONNEL MODIFIED THE RECOMMENDATION OF THE BUREAU OF MEDICINE AND SURGERY AND DIRECTED THAT MR. BRUNKHORST BE PROCESSED FOR RELEASE FROM ACTIVE DUTY IN ACCORDANCE WITH THE PROVISIONS OF ALSTACON 282200 OF SEPTEMBER 1945 (WHICH OUTLINED THE PROCEDURE TO BE FOLLOWED WHEN THE BUREAU OF NAVAL PERSONNEL, IN ACTING UPON A REPORT OF MEDICAL SURVEY, DIRECTED THE RELEASE FROM ACTIVE DUTY OF AN OFFICER OF THE NAVAL RESERVE WHO HAD NOT BEEN DISCHARGED FROM TREATMENT BUT WHO NO LONGER REQUIRED HOSPITALIZATION). MR. BRUNKHORST WAS DISCHARGED FROM HOSPITAL TREATMENT ON NOVEMBER 2, 1945, AND ON NOVEMBER 3, 1945, AT THE NAVAL OFFICERS SEPARATION CENTER, SAN FRANCISCO, CALIFORNIA, HE WAS FOUND TO BE PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY. HE WAS DETACHED FROM THE OFFICERS SEPARATION CENTER ON NOVEMBER 4, 1945, AND GRANTED THREE MONTHS AND ONE DAY TERMINAL LEAVE TO EXPIRE AT MIDNIGHT FEBRUARY 5, 1946. ON THE FOLLOWING DAY, FEBRUARY 6, 1946, HE REVERTED TO AN INACTIVE STATUS AS A COMMISSIONED OFFICER OF THE U.S. NAVAL RESERVE.

IT IS STATED THAT DEPARTMENT OF THE NAVY RECORDS SHOW THAT MR. BRUNKHORST, ON JUNE 13, 1950, ACCEPTED A PERMANENT APPOINTMENT (PROMOTION) AS LIEUTENANT COMMANDER IN THE U.S. NAVAL RESERVE TENDERED UNDER THE PROVISIONS OF NAVY DEPARTMENT PUBLICATION NAVPERS 15793, DATED JULY 1, 1948 (PERMANENT APPOINTMENTS AND RANK STATUS OF OFFICERS OF THE NAVAL RESERVE) AND THAT ON SEPTEMBER 21, 1953, HE ACCEPTED A TEMPORARY APPOINTMENT AS COMMANDER IN THE U.S. NAVAL RESERVE, AUTHORIZED BY BUREAU OF NAVAL PERSONNEL LETTER DATED APRIL 6, 1953. IT IS FURTHER STATED THAT HE PERFORMED THREE PERIODS OF TRAINING DUTY OF FOURTEEN DAYS EACH PURSUANT TO ORDERS DATED MAY 22, 1950, MARCH 1, 1951 AND JANUARY 25, 1952, AND THAT IN EACH CASE THE ORDERS BEAR ENDORSEMENT SHOWING THAT HE WAS PHYSICALLY QUALIFIED FOR THE PERFORMANCE OF ACTIVE DUTY FOR TRAINING AND RELEASE THEREFROM.

IT APPEARS THAT MR. BRUNKHORST WAS GIVEN A PHYSICAL EXAMINATION IN SEPTEMBER 1952, INCIDENT TO HIS REQUEST TO BE TRANSFERRED TO ORGANIZED SURFACE BRIGADE 12-2 IN AN ORGANIZED DRILL PAY STATUS AND HE WAS FOUND TO BE UNFIT FOR SERVICE. HIS RECORDS THEN WERE REFERRED TO A SPECIAL BOARD OF MEDICAL EXAMINERS FOR RECOMMENDATION AS TO HIS DISPOSITION IN THE U.S. NAVAL RESERVE. IT IS STATED THAT THE SPECIAL BOARD OF MEDICAL EXAMINERS CERTIFIED THAT MR. BRUNKHORST "WAS NOT PHYSICALLY QUALIFIED TO PERFORM ALL HIS DUTIES AT SEA AND ON FOREIGN SERVICE AND DID NOT RECOMMEND HIM FOR ACTIVE DUTY OR RETENTION IN THE NAVAL RESERVE.'

A REVIEW OF THE FINDINGS AND DECISION OF THE MEDICAL SURVEY BOARD OF AUGUST 31, 1945, WAS MADE BY A NAVAL MEDICAL SURVEY REVIEW BOARD WHICH CONVENED ON OCTOBER 15, 1953, UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMAN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I. IT HAS BEEN ASCERTAINED, INFORMALLY, THAT ON MARCH 18, 1954, THE PRESIDENT APPROVED THE PROCEEDINGS, FINDINGS, AND RECOMMENDATION OF THE MEDICAL SURVEY REVIEW BOARD AND ALSO THE RECOMMENDATION OF THE SECRETARY OF THE NAVY THAT MR. BRUNKHORST BE AUTHORIZED TO APPEAR BEFORE A PHYSICAL EVALUATION BOARD. THE RECORD SHOWS THAT THE SECRETARY OF THE NAVY ACTING UPON THE FINDINGS AND RECOMMENDATION OF THE PHYSICAL EVALUATION BOARD BEFORE WHICH MR. BRUNKHORST SUBSEQUENTLY APPEARED HAS DETERMINED THAT HE SUFFERED A DISABILITY IN LINE OF DUTY WHILE EMPLOYED ON ACTIVE DUTY DURING A PERIOD OF ACTIVE SERVICE CONTEMPLATED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED (34 U.S.C. 855C-1), THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY ON FEBRUARY 5, 1946; THAT HIS INCAPACITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF HIS NAVAL SERVICE. THE RECORD FURTHER SHOWS THAT ALTHOUGH THE OFFICER'S PERCENTAGE OF DISABILITY WAS RATED AT ZERO (0) PERCENT--- IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES THEN IN CURRENT USE BY THE VETERANS ADMINISTRATION -- THE SECRETARY OF THE NAVY ON JANUARY 24, 1955, APPROVED THE PROCEEDINGS AND FINDINGS OF THE PHYSICAL EVALUATION BOARD AND DIRECTED THAT MR. BRUNKHORST BE RETIRED AS A COMMISSIONED OFFICER OF THE U.S. NAVAL RESERVE AND PLACED ON THE RETIRED LIST EFFECTIVE FEBRUARY 1, 1955, IN CONFORMITY WITH THE PROVISIONS OF 34 U.S.C. 417 AND 855C-1, AND 38 U.S.C. 693I.

IN VIEW OF THE CIRCUMSTANCES ABOVE SET FORTH THE QUESTION IS PRESENTED AS TO WHETHER THE NAVAL MEDICAL SURVEY REVIEW BOARD WHICH WAS CONVENED ON OCTOBER 15, 1953, PROPERLY EXERCISED AN EFFECTIVE JURISDICTION IN THE CASE, IT BEING STATED THAT SOME DOUBT ARISES AS TO WHETHER THE OFFICER WAS IN FACT RELEASED FROM ACTIVE SERVICE BY REASON OF "PHYSICAL DISABILITY" OR WHETHER HIS RELEASE WAS EVEN "MOTIVATED" BY THE FINDINGS (DECISION) OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, WITHIN THE PURVIEW OF SECTION 302 (A) OF THE 1944 LAW.

A BOARD OF REVIEW ESTABLISHED UNDER THE AUTHORITY OF SECTION 302 (A) OF THE 1944 ACT, 38 U.S.C. 693I, ACQUIRES AN EFFECTIVE JURISDICTION ONLY IN A CASE WHERE THE OFFICER CONCERNED WAS "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.' COMP. GEN. 681, 33 COMP. GEN. 463. IN CARRYING OUT ITS DUTIES, SUCH A BOARD OF REVIEW HAS THE SAME POWERS AS THOSE EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED. THUS, AN OFFICER WHOSE CASE IS REVIEWED BY A BOARD OF REVIEW HAVING LAWFUL JURISDICTION OF THE MATTER IS PLACED IN THE SAME POSITION AS HE WOULD HAVE HELD HAD THE DETERMINATION OF THE REVIEW BOARD BEEN REACHED BY THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED. HAMRICK V. UNITED STATES, 120 C.CLS. 17.

THE RECORD AS A WHOLE ESTABLISHED THAT MR. BRUNKHORST WAS RELEASED FROM ACTIVE DUTY ON FEBRUARY 5, 1946, AS THE RESULT OF THE DECISION MADE IN HIS CASE BY THE BOARD OF MEDICAL SURVEY BEFORE WHICH HE APPEARED ON AUGUST 31, 1945, AND PURSUANT TO THE RECOMMENDATION OF THAT BOARD AS MODIFIED IN THE DEPARTMENT OF THE NAVY. UNDER SUCH CIRCUMSTANCES THE NAVAL MEDICAL SURVEY REVIEW BOARD WHICH WAS CONVENED ON OCTOBER 15, 1953, HAD PROPER JURISDICTION OF THE CASE UNDER THE PROVISIONS OF 38 U.S.C. 693I.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY. HENCE, PAYMENT OF RETIRED PAY TO MR. BRUNKHORST IS AUTHORIZED, IF OTHERWISE CORRECT, SUCH RETIRED PAY TO BE COMPUTED ON THE SAME BASIS AS WOULD HAVE BEEN USED FOR ITS COMPUTATION HAD HE BEEN PLACED ON THE RETIRED LIST AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY IN FEBRUARY 1946. SEE 34 COMP. GEN. 155.