B-131940, AUGUST 6, 1957, 37 COMP. GEN. 89

B-131940, AUGUST 6, 1957, 37 COMP. GEN. 89

MILITARY PERSONNEL - DISABILITY RETIRED PAY - DISABILITIES FOUND PRIOR TO PHYSICAL EXAMINATION FOR PROMOTION A COAST AND GEODETIC SURVEY OFFICER WHO WAS NOT GIVEN A PHYSICAL EXAMINATION FOR PROMOTION FROM GRADE OF LIEUTENANT TO LIEUTENANT COMMANDER BECAUSE HE WAS UNDERGOING MEDICAL TREATMENT AND AT TIME OF RELEASE FROM THE HOSPITAL THE DISQUALIFYING NATURE OF HIS PHYSICAL CONDITION PRACTICALLY ELIMINATED THE NEED FOR A PROMOTION PHYSICAL EXAMINATION AND WHO THEN WAS GIVEN PHYSICAL EXAMINATIONS TO DETERMINE HIS ELIGIBILITY FOR DISABILITY RETIREMENT MAY NOT HAVE THE DISQUALIFYING NATURE OF HIS DISABILITY REGARDED AS HAVING BEEN FOUND TO EXIST AS THE RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION TO BE ENTITLED TO HIGHER RETIRED PAY BASED ON THE GRADE OF LIEUTENANT COMMANDER UNDER THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF COMMERCE, AUGUST 6, 1957:

THE ASSISTANT SECRETARY OF COMMERCE ( ADMINISTRATION) BY LETTER OF MAY 21, 1957, HAS REQUESTED DECISION ON TWO QUESTIONS CONCERNING THE DISABILITY RETIREMENT PAY STATUS OF LIEUTENANT WILBERT M. HELLMAN, RETIRED, U.S. COAST AND GEODETIC SURVEY, STATING THAT AFTER READING OUR DECISION OF JANUARY 10, 1957, B-129668, 36 COMP. GEN. 492 (AS IT RELATES TO THE CASE OF LIEUTENANT GARLAND RUSSELL CRAIGHEAD) "IT APPEARS A REVALUATION SHOULD BE MADE AS TO THE RETIREMENT STATUS OF LIEUTENANT HELLMAN, COAST AND GEODETIC SURVEY.'

THE LETTER OF MAY 21, 1957, DISCLOSES THAT LIEUTENANT HELLMAN COMPLETED TEN YEARS OF SERVICE FOR PROMOTION PURPOSES ON DECEMBER 24, 1952, THEREBY BECOMING ELIGIBLE, IF OTHERWISE QUALIFIED, FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER; THAT AN OFFER OF PROMOTION WAS NOT MADE BECAUSE LIEUTENANT HELLMAN WAS THEN RECEIVING MEDICAL TREATMENT; THAT ON MAY 19, 1953, THE OFFICER PERSONNEL BOARD ORDERED LIEUTENANT HELLMAN TO UNDERGO AN EXAMINATION ON OR ABOUT JUNE 11, 1953, TO DETERMINE HIS FITNESS FOR PROMOTION AND THAT THE " REPORT OF THIS EXAMINATION WHICH WAS RECEIVED IN NOVEMBER 1953, SHOWED HIM TO BE 60 PERCENT DISABLED, AND RECOMMENDED HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST.' LIEUTENANT HELLMAN WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1953. THE LETTER OF MAY 21, 1957, FURTHER DISCLOSES, HOWEVER, THAT ON JUNE 5, 1953, THE OFFICER PERSONNEL BOARD RECOMMENDED THAT LIEUTENANT HELLMAN'S EXAMINATION FOR PROMOTION "BE DELAYED UNTIL A REPORT WAS RECEIVED OF HIS EXAMINATION OF DECEMBER 11, 1952.' IT IS SHOWN THAT THE BOARD ALSO REQUESTED "A REVIEW OF ALL RECORDS, DECISIONS, AND LAWS TO DETERMINE WHETHER HE COULD BE PROMOTED UPON RETIREMENT.'

IT IS FURTHER STATED IN THE LETTER OF MAY 21, 1957, THAT, SINCE THE PHYSICAL CONDITION OF LIEUTENANT HELLMAN WHICH CONSTITUTES THE BASIS FOR PLACING HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1953, WAS NOT CONSIDERED AS HAVING BEEN FOUND TO EXIST UNDER THE CONDITIONS PRESCRIBED IN THE FIFTH PROVISO OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272, HE WAS RETIRED WITH THE GRADE AND RETIRED PAY OF A LIEUTENANT, HIS PERMANENT RANK AS COMMISSIONED OFFICER OF THE U.S. COAST AND GEODETIC SURVEY.

DECISION IS REQUESTED ON THE FOLLOWING TWO QUESTIONS:

1. SHOULD LIEUTENANT HELLMAN HAVE BEEN RETIRED WITH THE GRADE AND PAY OF A LIEUTENANT COMMANDER?

2. IF ANSWER TO THE FIRST QUESTION IS AFFIRMATIVE, WILL YOUR OFFICE HONOR SUPPLEMENTAL PAY VOUCHERS FROM DECEMBER 1, 1953, FOR HIM?

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), WHICH WAS IN EFFECT IN 1953 WHEN THE NAME OF LIEUTENANT HELLMAN WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 402 (B), 37 U.S.C. 272 (B), OF THAT SAME ACT, PROVIDED IN PERTINENT PART THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME WAS PLACED UPON SUCH LIST "SHALL BE ENTITLED" FOR A PERIOD NOT TO EXCEED FIVE YEARS "TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER.' THE FIFTH PROVISO TO SECTION 402 (D) READ AS FOLLOWS:

PROVIDED FURTHER, THAT IF THE PHYSICAL DISABILITY ENTITLING SUCH MEMBER TO DISABILITY RETIREMENT PAY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER SHALL BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER WOULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY, IF SUCH RANK, GRADE, OR RATING IS HIGHER THAN ANY OTHER RANK, GRADE, OR RATING UPON WHICH SUCH PAY IS HEREIN AUTHORIZED TO BE COMPUTED AND WHICH SUCH MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING:

THE CONCLUSION REACHED IN OUR DECISION OF JANUARY 10, 1957, WITH RESPECT TO LIEUTENANT CRAIGHEAD'S STATUS UNDER THE STATUTORY PROVISIONS ABOVE QUOTED STEMMED FROM THE CONSTRUCTION PLACED ON THOSE PROVISIONS BY THE COURT OF CLAIMS IN THE LEONARD AND FREDRICKSON CASES, 131 C.1CLS. 91 AND 133 C.1CLS. 890, RESPECTIVELY. IN THAT CONNECTION, WE STATED (AT 36 COMP. GEN. 497):

IT THUS APPEARS THAT THE OPINION OF THE COURT OF CLAIMS IS CONSISTENT WITH THE VIEW THAT THE STATUTE AUTHORIZES THE RETIRED PAY OF THE HIGHER GRADE, EVEN THOUGH THE IDENTICAL DISABILITY WAS FOUND DURING SOME EARLIER EXAMINATION, IF ITS DISQUALIFYING NATURE WAS FIRST DETERMINED TO EXIST DURING THE PROMOTION PHYSICAL EXAMINATION AND THEREFORE WAS "FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A * * * PROMOTION.' THAT CONCLUSION APPEARS TO BE A TENABLE AND PERMISSIBLE CONSTRUCTION OF THE STATUTE.

THUS, IN APPLYING THAT CONSTRUCTION OF THE STATUTE TO THE FACTS PRESENTED IN LIEUTENANT CRAIGHEAD'S SITUATION, WE HELD THAT:

* * * WHILE IT APPEARS THAT THE DISABILITY (DEAFNESS) FOR WHICH LIEUTENANT CRAIGHEAD WAS RETIRED AND FOUND DISQUALIFIED FOR PROMOTION WAS OF RECORD FOR MANY YEARS, IT WAS NOT CONSIDERED DISQUALIFYING UNTIL HIS PHYSICAL EXAMINATION TAKEN IN CONNECTION WITH HIS PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER. HE THEREFORE IS ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COMMANDER, SINCE HIS DISQUALIFYING DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PROMOTION PHYSICAL EXAMINATION, EVEN THOUGH SOME DEGREE OF DEAFNESS HAD BEEN KNOWN TO EXIST FOR TEN YEARS, AND HE WAS RETIRED ON ACCOUNT OF THAT SAME DISABILITY.

THE GENERAL RULE ESTABLISHED IN THE CASE OF LIEUTENANT CRAIGHEAD IS, OF COURSE, FOR CONSIDERATION IN LIEUTENANT HELLMAN'S CASE. HOWEVER, IN ORDER TO QUALIFY FOR THE BENEFITS THAT WERE PRESCRIBED IN THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, IT MUST BE ESTABLISHED THAT THE DISQUALIFYING NATURE OF LIEUTENANT HELLMAN'S DISABILITY WAS "FOUND TO EXIST" AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO BE BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING.

THE FOLLOWING ADDITIONAL AND PERTINENT INFORMATION CONCERNING LIEUTENANT HELLMAN'S DISABILITY RETIRED STATUS APPEARS IN THE MEDICAL AND PERSONNEL RECORDS MADE AVAILABLE TO US ON OUR REQUEST OF JUNE 7, 1957:

(1) APRIL 24, 1953. LIEUTENANT HELLMAN WAS DISCHARGED FROM FURTHER TREATMENT AT THE U.S. PUBLIC HEALTH SERVICE HOSPITAL AT SAN FRANCISCO, CALIFORNIA, AS BEING "ULTIMATELY FIT FOR LIGHT DUTY.'

(2) MAY 28, 1953. TRAVEL ORDER ( COMMISSIONED OFFICERS) DEPARTMENT OF COMMERCE, U.S. COAST AND GEODETIC SURVEY, EFFECTIVE MAY 28, 1953, DIRECTED LIEUTENANT HELLMAN, THEN AT SAN FRANCISCO, CALIFORNIA, TO TRAVEL WHEN DIRECTED BY THE SUPERVISOR, WESTERN DISTRICT, TO HIS HOME OF RECORD AT HARVEY, ILLINOIS,"TO ENTER ON AN AWAIT ORDER STATUS, PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN YOUR CASE BY A PUBLIC HEALTH SERVICE PHYSICAL EVALUATION BOARD.'

(3) JUNE 1, 1953. BY LETTER OF THIS DATE " SUBJECT: PHYSICAL RETIREMENT" ADDRESSED TO THE DIRECTOR, U.S. COAST AND GEODETIC SURVEY, WASHINGTON 25, D.C., LIEUTENANT HELLMAN STATED THAT---

THE U.S. PUBLIC HEALTH SERVICE HAS ADVISED ME THAT THEY ARE DEFINITELY RECOMMENDING MY RETIREMENT, AS I AM ONLY FIT FOR LIGHT DUTY AND THERE IS LITTLE HOPE THAT I WILL EVER BE FIT FOR FULL DUTY.

THE U.S. PUBLIC HEALTH SERVICE HAS AGREED TO EXPEDITE THE PAPER WORK NECESSARY FOR MY RETIREMENT.

IT WOULD BE APPRECIATED IF I COULD BE RETURNED TO SICK STATUS PENDING MY RETIREMENT.

(4) UNDER DATE OF JULY 23, 1953, THE MEDICAL OFFICER IN CHARGE OF THE U.S. PUBLIC HEALTH SERVICE HOSPITAL AT SAN FRANCISCO, CALIFORNIA, REFERRING SPECIFICALLY TO LIEUTENANT HELLMAN'S TREATMENT AND HOSPITALIZATION DURING THE TWO PERIODS FROM JUNE TO AUGUST 1952 AND FROM APRIL 16 TO 24, 1953, REPORTED TO THE SUPERVISOR, WESTERN DISTRICT, U.S. COAST AND GEODETIC SURVEY, THAT "* * * IT IS FELT THAT MR. HELLMAN IS NO LONGER PHYSICALLY CAPABLE OF PERFORMING THE DUTIES OF AN OFFICER IN THE COAST AND GEODETIC SURVEY. IT IS THEREFORE RECOMMENDED THAT HE BE GIVEN MEDICAL RETIREMENT FROM YOUR ORGANIZATION.' THIS INFORMATION WAS THEN FORWARDED ON JULY 27, 1953, BY THE SUPERVISOR, WESTERN DISTRICT, TO THE DIRECTOR, U.S. COAST AND GEODETIC SURVEY, WASHINGTON, D.C.

(5) ON JULY 30, 1953, LIEUTENANT HELLMAN, THEN AT HARVEY, ILLINOIS, WAS INSTRUCTED BY THE ACTING DIRECTOR OF THE U.S. COAST AND GEODETIC SURVEY TO APPEAR BEFORE A BOARD OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE TO BE CONVENED AT CHICAGO, ILLINOIS, FOR EXAMINATION TO DETERMINE HIS "PHYSICAL QUALIFICATIONS FOR RETENTION OR RETIREMENT.' ALSO, ON THE SAME DATE THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE WAS REQUESTED TO CONVENE AT CHICAGO, ILLINOIS, A BOARD OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE FOR THE PURPOSE OF PHYSICALLY EXAMINING LIEUTENANT HELLMAN "TO DETERMINE HIS ELIGIBILITY FOR RETIREMENT UNDER TITLE IV OF THE CAREER COMPENSATION ACT.'

(6) LIEUTENANT HELLMAN WAS EXAMINED DURING THE PERIOD AUGUST 18, 1953, TO SEPTEMBER 3, 1953, BY A PUBLIC HEALTH SERVICE EXAMINING BOARD AND ON NOVEMBER 3, 1953, A MEDICAL REVIEW BOARD OF THE PUBLIC HEALTH SERVICE FURTHER CONSIDERED LIEUTENANT HELLMAN'S STATUS WITH RESPECT TO HIS ELIGIBILITY FOR DISABILITY RETIREMENT UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. HE WAS FOUND TO BE UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, AS A LIEUTENANT, U.S. COAST AND GEODETIC SURVEY, BY REASON OF PHYSICAL DISABILITY.

(7) THE FIRST PARAGRAPH IN LETTER OF APRIL 27, 1955, ADDRESSED TO THE SURGEON GENERAL, U.S. PUBLIC HEALTH SERVICE, BY THE ACTING DIRECTOR, U.S. COAST AND GEODETIC SURVEY, READS AS FOLLOWS:

LIEUTENANT WILBERT M. HELLMAN, U.S. COAST AND GEODETIC SURVEY, WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON 1 DECEMBER 1953 AS A RESULT OF THE FINDINGS OF THE U.S. PUBLIC HEALTH SERVICE BOARD OF EXAMINERS WHICH CONVENED DURING THE PERIOD, 18 AUGUST TO 3 SEPTEMBER 1953, IN CHICAGO, ILLINOIS. THE BOARD OF EXAMINERS RECOMMENDED LT. HELLMAN BE RE-EXAMINED EVERY 18 MONTHS.

AT LEAST THREE BASIC FACTS CONCERNING THE PLACEMENT OF LIEUTENANT HELLMAN'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1953, CLEARLY APPEAR FROM THE EVIDENCE NOW OF RECORD. (1) AS OF MAY 19, 1953, LIEUTENANT HELLMAN HAD NOT THEN UNDERGONE ANY PHYSICAL EXAMINATION FOR PROMOTION FROM THE GRADE OF LIEUTENANT TO LIEUTENANT COMMANDER. (2) THE DISQUALIFYING NATURE OF HIS PHYSICAL CONDITION HAD BECOME SO EVIDENT BY APRIL 24, 1953, THE DATE THAT HE WAS RELEASED FROM FURTHER TREATMENT AT THE U.S. PUBLIC HEALTH SERVICE HOSPITAL IN SAN FRANCISCO, CALIFORNIA, AS TO HAVE PRACTICALLY ELIMINATED ENTIRELY THEREAFTER ANY NEED FOR A ,PROMOTION" PHYSICAL EXAMINATION TO DETERMINE HIS PHYSICAL FITNESS TO PERFORM THE DUTIES OF A LIEUTENANT COMMANDER. (3) THE PHYSICAL EXAMINATION CONDUCTED BY THE PUBLIC HEALTH SERVICE EXAMINING BOARD DURING THE PERIOD AUGUST 18, 1953, TO SEPTEMBER 3, 1953, INCLUSIVE, AND THE ACTION OF THE PUBLIC HEALTH SERVICE MEDICAL REVIEW BOARD WHICH CONVENED ON NOVEMBER 3, 1953, IN THE CASE, WERE NOT PROMOTION PHYSICAL EXAMINATIONS BUT RELATED SOLELY TO MAKING A DETERMINATION RESPECTING HIS ELIGIBILITY FOR DISABILITY RETIREMENT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, BASED ON FINDINGS THAT HE WAS PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS OFFICE AS A LIEUTENANT IN THE U.S. COAST AND GEODETIC SURVEY.

THEREFORE, THE CONCLUSION IS REQUIRED THAT THE DISQUALIFYING NATURE OF LIEUTENANT HELLMAN'S PHYSICAL DISABILITY WAS NOT FOUND TO EXIST AS A "RESULT" OF A PROMOTION PHYSICAL EXAMINATION AND CONSEQUENTLY, HIS STATUS DID NOT FALL WITHIN THE SCOPE OF THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. HENCE, IT IS OUR VIEW THAT HE WAS PROPERLY PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE AND WITH THE RETIRED PAY OF A LIEUTENANT, U.S. COAST AND GEODETIC SURVEY. THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND HENCE NO REPLY IS REQUIRED TO THE SECOND QUESTION.

THE MEDICAL AND PERSONNEL RECORDS OF LIEUTENANT HELLMAN ARE RETURNED HEREWITH, MARKED, AS REQUESTED FOR DELIVERY DIRECTLY TO THE DIRECTOR, COAST AND GEODETIC SURVEY, DEPARTMENT OF COMMERCE, WASHINGTON 25, D.C., ATTENTION "55.'