B-153988, MAY 13, 1964, 43 COMP. GEN. 731

B-153988, MAY 13, 1964, 43 COMP. GEN. 731

PAY - RETIRED - DISABILITY - DISCHARGE EFFECT A CERTIFICATE PURPORTING TO DISCHARGE A MEMBER OF THE NAVAL RESERVE ON DECEMBER 5, 1961, WHICH WAS NOT DELIVERED BECAUSE OF A COURT RESTRAINING ORDER DID NOT EFFECT THE MEMBER'S DISCHARGE, THE MERE PREPARATION OF THE INSTRUMENT OF DISCHARGE WITHOUT DELIVERY NOT TERMINATING THE MILITARY STATUS OF THE MEMBER WHO HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JANUARY 1, 1957, AND PAID RETIRED PAY UNTIL DECEMBER 1, 1961, WHEN THE PAYMENTS WERE SUSPENDED; THEREFORE, UPON TRANSFER UNDER ORDERS DATED JANUARY 8, 1964, FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT DISABILITY RETIRED LIST WITH 40 PERCENT DISABILITY, EFFECTIVE NOVEMBER 7, 1961, THE DISCONTINUANCE OF RETIRED PAY AS OF NOVEMBER 30, 1961, NOT HAVING TERMINATED THE MEMBER'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST AND HIS TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST BEING VALID, HE IS ENTITLED TO DISABILITY RETIRED PAY ON AND AFTER NOVEMBER 7, 1961, BASED ON THE DISABILITY RATING OF 40 PERCENT.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, MAY 13, 1964:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1964, XO:HA:BJM, 7220/734 89 92, WITH ENCLOSURES, PRESENTING FOR DECISION THE QUESTION WHETHER OR NOT ROBERT LOUIS GREEN, PN3, USNR, RETIRED, IS ENTITLED TO DISABILITY RETIRED PAY ON AND AFTER NOVEMBER 7, 1961. YOUR REQUEST WAS ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-761.

THE FACTS GIVEN IN YOUR LETTER AND ENCLOSURES SHOW THAT MR. GREEN WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JANUARY 1, 1957, THAT HE WAS PAID RETIRED PAY FROM THAT DATE UNTIL DECEMBER 1, 1961, WHEN THE PAYMENTS WERE SUSPENDED, THAT AN HONORABLE DISCHARGE CERTIFICATE INTENDED TO EFFECT HIS DISCHARGE ON DECEMBER 5, 1961, WAS FORWARDED TO YOUR OFFICE BUT WAS NEVER DELIVERED TO THE MEMBER AND THAT BY ORDERS DATED JANUARY 8, 1964, HE WAS TRANSFERRED FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT DISABILITY RETIRED LIST WITH 40 PERCENT DISABILITY, EFFECTIVE NOVEMBER 7, 1961.

YOU STATE THAT THE DISCHARGE CERTIFICATE WAS NOT DELIVERED TO THE MEMBER BECAUSE OF A TEMPORARY RESTRAINING ORDER OBTAINED BY HIM IN A FEDERAL COURT PURPORTING TO RESTRAIN THE NAVY FROM EFFECTING HIS DISCHARGE AND THAT, IN VIEW OF THE RESTRAINING ORDER, YOU ARE IN DOUBT AS TO THE APPLICABILITY TO THIS CASE OF THE RULING IN 40 COMP. GEN. 249. IN THAT DECISION WE HELD THAT A FORMER MEMBER, AFTER HIS DISCHARGE FROM THE MILITARY SERVICE HAD BEEN EFFECTED, WAS A CIVILIAN AND THERE WAS NO AUTHORITY FOR THEN PLACING HIM ON A TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202. SEE, ALSO, 42 COMP. GEN. 317.

WE HAVE BEEN INFORMALLY ADVISED THAT UPON NOTIFICATION THAT HE WAS TO BE DISCHARGED FROM THE NAVY, MR. GREEN FILED A PETITION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, SEEKING A RESTRAINING ORDER TO PREVENT THE NAVY FROM DISCHARGING HIM. REASON OF AN AGREEMENT BETWEEN REPRESENTATIVES OF THE NAVY AND THE COURT, THE DISCHARGE WAS NOT EFFECTED AND THE COURT PROCEEDINGS WERE SUSPENDED, PENDING COMPLETION OF ADMINISTRATIVE ACTION. THE BOARD FOR CORRECTION OF NAVAL RECORDS ON THE BASIS OF AN APPLICATION FILED IN JANUARY 1962 AND THE EVIDENCE SUBMITTED THEREWITH DETERMINED THAT SUCH EVIDENCE DID NOT INDICATE THAT AN ERROR OR INJUSTICE HAD OCCURRED AND THEREFORE DENIED MR. GREEN A HEARING IN JULY 1962. HE THEN PETITIONED THE SECRETARY OF THE NAVY FOR RELIEF AND HIS CASE WAS REFERRED TO THE PHYSICAL REVIEW COUNCIL WHICH, ON THE BASIS OF NEW MEDICAL EVIDENCE SUBMITTED IN 1963, RECOMMENDED THAT HE BE FOUND DISABLED IN LINE OF DUTY, SUCH DISABILITY HAVING BEEN INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY AND THAT HIS DISABILITY BE RATED AT 40 PERCENT. ON DECEMBER 12, 1963, THE SECRETARY OF THE NAVY APPROVED THIS RECOMMENDATION AND ON DECEMBER 27, 1963, THE SECRETARY CORRECTED HIS PRIOR ACTION DIRECTING MR. GREEN'S DISCHARGE, TO PROVIDE THAT HE SHOULD BE RETIRED EFFECTIVE NOVEMBER 7, 1961.

THE DISCONTINUANCE OF RETIRED PAY AS OF NOVEMBER 30, 1961, DID NOT TERMINATE MR. GREEN'S STATUS ON THE TEMPORARY DISABILITY RETIRED LIST. COMP. GEN. 179; 42 ID. 52, 56.

ORDERS ISSUED BY THE CHIEF OF NAVAL PERSONNEL UNDER DATE OF NOVEMBER 16, 1961, PERS-B2221-JTF, DIRECTED THE COMMANDANT, TWELFTH NAVAL DISTRICT, TO PREPARE AND FORWARD TO THE COMMANDING OFFICER, U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO, A DISCHARGE CERTIFICATE FILLED OUT,SIGNED AND SEAL AFFIXED, WHICH WOULD EFFECT ROBERT LOUIS GREEN'S DISCHARGE FROM THE NAVAL SERVICE ON DECEMBER 5, 1961. THE DISCHARGE CERTIFICATE WAS FORWARDED WITH LETTER OF NOVEMBER 30, 1961, BUT WAS NEVER DELIVERED TO MR. GREEN AND IT IS STILL BEING HELD IN THE NAVY FINANCE CENTER.

NORMALLY MILITARY STATUS IS TERMINATED UPON THE CONCURRENCE OF TWO CONDITIONS: (1) EXECUTION OF A DISCHARGE CERTIFICATE OR PROMULGATION OF APPROPRIATE ORDERS OF SEPARATION; (2) DELIVERY OF THE INSTRUMENT PROVIDING FOR DISCHARGE WITH THE INTENTION THAT IT TAKE EFFECT ACCORDING TO ITS TERMS. THE MERE PREPARATION OF AN INSTRUMENT OF DISCHARGE WITHOUT DELIVERY THEREOF DOES NOT TERMINATE MILITARY STATUS. UNITED STATES V. NOBLE, 13 USCMA 413, 32 CMR 413.

SINCE MR. GREEN'S DISCHARGE CERTIFICATE WAS NOT DELIVERED TO HIM IT DID NOT TAKE EFFECT AND HE CONTINUED TO HAVE THE STATUS OF A MEMBER OF THE NAVAL RESERVE ON THE TEMPORARY DISABILITY RETIRED LIST UNTIL THAT STATUS WAS TERMINATED BY ORDERS ISSUED BY THE BUREAU OF NAVAL PERSONNEL UNDER DATE OF JANUARY 8, 1964, TRANSFERRING HIM FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT RETIRED LIST EFFECTIVE NOVEMBER 7, 1961, IN ACCORDANCE WITH THE SECRETARY'S DETERMINATION. THEREFORE 40 COMP. GEN. 249 IS NOT APPLICABLE IN THIS CASE AND MR. GREEN'S TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE NOVEMBER 7, 1961, IS VALID. HE IS ENTITLED TO DISABILITY RETIRED PAY ON AND AFTER NOVEMBER 7, 1961, BASED ON A DISABILITY RATING OF 40 PERCENT.