B-147273, FEB. 21, 1962

B-147273, FEB. 21, 1962

TO MR. WALTER HALLOCK WRIGHT:

REFERENCE IS MADE TO LETTER DATED AUGUST 28, 1961, FROM THE LAW OFFICES OF KING AND KING, REQUESTING REVIEW OF SETTLEMENT OF JULY 27, 1961, WHICH DISALLOWED YOUR CLAIM FOR INCREASED DISABILITY RETIRED PAY UNDER THE SELIGA CASE, 137 CT.CL. 710. THE CLAIM WAS DENIED ON THE BASIS OF INFORMATION FURNISHED YOU BY THE CHIEF OF NAVAL PERSONNEL IN LETTER OF JULY 16, 1952, SHOWING THAT THE DISABILITY WHICH RESULTED IN YOUR TRANSFER TO THE RETIRED LIST ON JULY 1, 1943, WAS NOT INCURRED WHILE YOU WERE IN RECEIPT OF BASIC PAY AND THAT, THEREFORE, YOU COULD NOT QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT OF 1949 IN THE MANNER CONTEMPLATED BY SECTION 411 OF THAT ACT, 63 STAT. 823. YOUR ATTORNEYS HAVE NOW FURNISHED A COPY OF A LETTER TO YOU FROM THE BUREAU OF MEDICINE AND SURGERY DATED JANUARY 9, 1946, IN WHICH IT IS STATED THE DISABILITY WHICH RESULTED IN YOUR PLACEMENT ON THE RETIRED LIST WAS "INCURRED IN THE LINE OF TY.'

IN CONNECTION WITH REVIEW OF YOUR CLAIM, WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT YOU ENLISTED IN THE NAVY ON MAY 22, 1915, AND THAT YOU SERVED ON CONTINUOUS ACTIVE DUTY UNTIL YOUR TRANSFER TO THE FLEET NAVAL RESERVE AND RELEASE FROM ACTIVE DUTY ON MARCH 4, 1935. IT IS REPORTED THAT PRIOR TO YOUR TRANSFER TO THE FLEET NAVAL RESERVE YOU WERE GIVEN A PHYSICAL EXAMINATION ON MARCH 4, 1935, AND THE ONLY DEFECT REPORTED AT THAT TIME WAS A FIVE-INCH OPERATIONAL SCAR ON THE ABDOMEN, THE RESULT OF A GASTROENTEROSTOMY PERFORMED IN CONNECTION WITH THE REMOVAL OF AN ULCER OF THE DUODENUM ON AUGUST 22, 1933. IT IS FURTHER REPORTED THAT AS A RESULT OF A QUADRENNIAL PHYSICAL EXAMINATION CONDUCTED IN YOUR CASE ON FEBRUARY 23, 1939, AND SUBSEQUENT EXAMINATIONS IN CONNECTION WITH REPORTING FOR ACTIVE DUTY AND THE LATER PLACEMENT OF YOUR NAME ON THE RETIRED LIST EFFECTIVE JULY 1, 1943--- YOU WERE RETAINED ON ACTIVE DUTY UNTIL NOVEMBER 1945--- OTHER DEFECTS WERE DISCOVERED INCLUDING GLYCOSURIA, MARKED CHRONIC HEMORRHOIDS, DEFECTIVE TEETH AND RELAXED INGUINAL RINGS, NONE OF WHICH WERE RELATED TO YOUR OPERATION. IT APPEARS THAT THE BUREAU OF MEDICINE AND SURGERY'S "LINE OF DUTY" STATEMENT OF JULY 9, 1946, WAS BASED ON THE BELIEF THAT THE DEFECT CAUSED BY YOUR ULCER DISEASE WAS ONE OF THE DISABILITIES FOR WHICH YOU WERE RETIRED. SUCH INFORMATION FURNISHES NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ON MAY 13, 1952, YOUR MEDICAL RECORDS WERE REVIEWED BY THE PHYSICAL REVIEW COUNCIL PURSUANT TO THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 AND IT WAS REPORTED THAT YOUR DISABILITIES WERE NOT RATABLE. THE WORK SHEETS USED BY THE PHYSICAL REVIEW COUNCIL IN REVIEWING YOUR CASE ARE REPORTED TO HAVE BEEN DESTROYED AND NEITHER THE DISABILITIES WHICH WERE CONSIDERED IN YOUR CASE NOR THE EXACT DISABILITY FOR WHICH YOU WERE RETIRED CAN NOW BE DETERMINED FROM YOUR SERVICE MEDICAL RECORDS.

FOLLOWING ENACTMENT OF THE 1949 ACT, YOU DID NOT QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THAT ACT BY MEANS OF A SECTION 411 ELECTION. ORDER FOR YOU TO HAVE SO QUALIFIED AT THAT TIME, IT WOULD HAVE BEEN NECESSARY TO ESTABLISH THAT THE DISABILITY WHICH RESULTED IN YOUR BEING PLACED ON THE RETIRED LIST WAS INCURRED WHILE YOU WERE ENTITLED TO BASIC PAY. IT IS NOT CONTENDED THAT SUCH DISABILITY RESULTED FROM DEFECTS INCURRED AFTER YOU REPORTED FOR ACTIVE DUTY ON OCTOBER 1, 1941, AND THERE IS NO EVIDENCE THAT THE DEFECT CAUSED BY YOUR OPERATION DISABLED YOU IN ANY WAY FOR THE PERFORMANCE OF YOUR DUTIES PRIOR TO BEING TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1935. NEITHER IS IT SHOWN THAT THE DEFECT WAS ANY MORE DISABLING AFTER YOUR RECALL TO ACTIVE DUTY IN 1941. IT APPEARS THAT SUCH DEFECT WAS BUT ONE OF SEVERAL--- ALL OF THE LATTER WERE NONSERVICE CONNECTED-- WHICH RESULTED IN YOUR BEING PLACED ON THE RETIRED LIST IN 1943, AND THE COMBINED DISABILITIES WERE NOT REGARDED AS RATABLE WHEN THEY WERE CONSIDERED BY THE PHYSICAL REVIEW COUNCIL IN MAY 1952. QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE 1949 ACT, IT MUST BE SHOWN THAT THE DEFECT CAUSED BY YOUR ULCER DISEASE WAS SUFFICIENT IN ITSELF TO WARRANT THE PLACEMENT OF YOUR NAME ON THE DISABILITY RETIRED LIST. THE ADMINISTRATIVE REPORT IN YOUR CASE DOES NOT SUPPORT THAT VIEW.

IN THE CIRCUMSTANCES, IT IS CONCLUDED THAT THERE IS NOT SUFFICIENT BASIS FOR QUESTIONING THE ACTION TAKEN BY THE CHIEF OF NAVAL PERSONNEL IN INFORMING YOU IN JULY 1952 THAT YOU WERE NOT ENTITLED TO AN ELECTION UNDER SECTION 411. ACCORDINGLY, THE SETTLEMENT OF JULY 27, 1961, IS SUSTAINED.