B-131674, JULY 15, 1957, 37 COMP. GEN. 19

B-131674, JULY 15, 1957, 37 COMP. GEN. 19

MILITARY PERSONNEL - RETIREMENT ORDERS - CANCELLATION AFTER EFFECTIVE DATE - NEW EVIDENCE BASIS ORDERS WHICH REVOKE NONDISABILITY RETIREMENT ORDERS AFTER THEIR EFFECTIVE DATE TO ENTITLE MEMBERS OF THE UNIFORMED SERVICES TO CONSIDERATION FOR DISABILITY RETIREMENT ARE NOT LEGALLY EFFECTIVE, AND, IN THE ABSENCE OF EVIDENCE THAT ENTITLEMENT TO NONDISABILITY RETIREMENT DID NOT EXIST OR THAT THE OFFICER ISSUING THE FIRST RETIREMENT ORDER LACKED AUTHORITY, THE RETIREMENT MAY NOT BE REOPENED ON THE BASIS OF SUBSTANTIAL NEW EVIDENCE.

TO THE SECRETARY OF THE ARMY, JULY 15, 1957:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1957, REQUESTING A DECISION WHETHER, IN VIEW OF THE FACTS AND CIRCUMSTANCES SET FORTH IN AN ATTACHED DISCUSSION, ORDERS REVOKING RETIREMENT ORDERS (RESPECTING A MEMBER OF THE ARMY) THAT HAVE BECOME EFFECTIVE WOULD BE LEGALLY ACCEPTABLE TO CANCEL THE MEMBER'S RETIREMENT.

IT IS STATED THAT THE DEPARTMENT OF THE ARMY IS RECURRENTLY FACED WITH THE SITUATION WHERE A DETERMINATION HAS BEEN MADE TO RETIRE A MEMBER AND, PRIOR TO THE EFFECTIVE DATE OF SUCH RETIREMENT, A MESSAGE IS RECEIVED FROM THE FIELD AGENCIES STATING THAT RETIREMENT SHOULD BE SUSPENDED BECAUSE OF A MEDICAL RE-EVALUATION OF THE HEALTH STATUS OF THE INDIVIDUAL. BASED ON SUCH INFORMATION THE RETIREMENT ORDERS ARE NORMALLY REVOKED PRIOR TO THEIR EFFECTIVE DATE. HOWEVER, DUE TO THE LIMITATIONS OF THE COMMUNICATION SYSTEM AND, IN ADDITION, SOMETIMES BECAUSE A HOLIDAY PERIOD INTERVENES, THE AGENCY WITHIN THE DEPARTMENT OF THE ARMY RESPONSIBLE FOR REVOKING THE ORDERS AT TIMES DOES NOT RECEIVE THE MESSAGE UNTIL A DAY OR TWO LATER, EVEN THOUGH THE MESSAGE IS TRANSMITTED TO THE DEPARTMENT OF THE ARMY BEFORE THE EFFECTIVE DATE OF THE RETIREMENT ORDERS. ORDERS THEN ARE ISSUED "CONFIRMING THE REVOCATION OF THE PREVIOUS ORDER, AND THE NON- RETIREMENT OF THE MEMBER.'

IT HAS BEEN HELD THAT, UNDER A STATUTE VESTING IN THE PRESIDENT THE POWER TO RETIRE OFFICERS OF THE MILITARY SERVICES, SUCH POWER OF THE PRESIDENT IS NOT A CONTINUING POWER, BUT IS PERFORMED TO THE EXTENT OF ITS EXISTENCE BY THE ONE ACT OF THE PRESIDENT AND HE CANNOT THEREAFTER REVIEW HIS ACTION OR CORRECT AN ERROR OF JUDGMENT. MCBLAIR V. UNITED STATES, 19 C.1CLS. 528, 538. CF. UNITED STATES V. BURCHARD, 125 U.S. 176, 179-180; 31 COMP. GEN. 296; 28 COMP. GEN 357; 19 OP.ATTY. GEN. 202, 208-210. THE SAME RULE, OF COURSE, IS FOR APPLICATION UNDER A STATUTE WHICH VESTS IN A SUBORDINATE OFFICER OF THE GOVERNMENT THE POWER TO EFFECT THE RETIREMENT OF A MEMBER OF THE UNIFORMED SERVICES. IT FOLLOWS THAT, ONCE THE RETIREMENT HAS BECOME EFFECTIVE, ANY ACTION TAKEN TO CANCEL THE RETIREMENT OR TO REVOKE THE ORDER RETIRING THE MEMBER IN ORDER TO PERMIT RETIREMENT UNDER ANOTHER PROVISION OF LAW WOULD BE LEGALLY INEFFECTIVE. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-1940, PP. 134- 135; 2 DIGEST OF OPINIONS OF THE JUDGE ADVOCATES GENERAL OF THE ARMED FORCES, 685, 699 700.

THE FACT THAT A MEMBER RETIRED FOR REASONS OTHER THAN DISABILITY MAY ALSO BE QUALIFIED FOR DISABILITY RETIREMENT DOES NOT IN ANY WAY AFFECT THE VALIDITY OF THE NONDISABILITY RETIREMENT. HENCE, SUCH A RETIREMENT COULD NOT BE SET ASIDE ON THE BASIS OF "SUBSTANTIAL NEW EVIDENCE," INDICATED IN DECISION OF JANUARY 16, 1952, 31 COMP. GEN. 296, AS A POSSIBLE GROUND FOR REOPENING A RETIREMENT CASE. THE EXISTENCE OF A DISABILITY THAT QUALIFIES A MEMBER FOR DISABILITY RETIREMENT CANNOT CHANGE THE FACT THAT THE MEMBER HAS PERFORMED THE REQUISITE SERVICE OR ATTAINED THE ELIGIBLE AGE QUALIFYING THE MEMBER FOR NONDISABILITY RETIREMENT AND, IF APPLICATION BY THE MEMBER IS REQUIRED, THAT HE HAS MADE SUCH APPLICATION. ELIGIBILITY FOR NONDISABILITY RETIREMENT IS NOT CONDITIONED ON ABSENCE OF ELIGIBILITY FOR DISABILITY RETIREMENT. IN MANY CASES THE PRINCIPAL MATERIAL DIFFERENCE IN EFFECT BETWEEN THE TWO TYPES OF RETIREMENT IS THE INCOME TAX ADVANTAGE ATTACHED TO THE DISABILITY RETIREMENT.

ONLY "SUBSTANTIAL NEW EVIDENCE" RELATING DIRECTLY TO THE CONDITIONS OF ENTITLEMENT TO THE NONDISABILITY RETIREMENT OR THE INVALIDITY OF THE RETIREMENT ORDER DUE TO WANT OF AUTHORITY IN THE OFFICER ISSUING IT COULD CONSTITUTE A BASIS FOR REVOKING THE RETIREMENT ORDER IF ENTITLEMENT TO SUCH RETIREMENT DID NOT IN FACT EXIST OR THE RETIREMENT ORDER WAS NOT ISSUED BY ONE HAVING AUTHORITY TO DO SO. NOTHING IN THE PRESENT REQUEST FOR DECISION SUGGESTS THAT ENTITLEMENT TO NONDISABILITY RETIREMENT DID NOT EXIST OR THAT THERE WAS LACK OF AUTHORITY IN THE OFFICER ISSUING THE RETIREMENT ORDER IN THE CASES INVOLVED. HENCE, WE KNOW OF NO BASIS FOR REVOKING RETIREMENT ORDERS IN THE SITUATION HERE INVOLVED AFTER THE ORDERS BECOME EFFECTIVE.