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B-165484, DECEMBER 3, 1968, 48 COMP. GEN. 377

B-165484 Dec 03, 1968
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IS FOUND TO HAVE BEEN MEDICALLY UNFIT AT THE TIME OF ENTRY INTO THE SERVICE IS NOT DEPRIVED OF THE RIGHT TO MILITARY PAY AND ALLOWANCES OR OF THE STATUS OF BEING ENTITLED TO BASIC PAY BECAUSE OF THE ADMINISTRATIVE FAILURE TO DISCOVER HIS PHYSICAL CONDITION. ARE ENTITLED TO FULL PAY AND ALLOWANCES FROM TIME OF ENTRY ON ACTIVE DUTY THROUGH DATE THEY ARE RELEASED FROM MILITARY CONTROL. IS NOT ENTITLED TO DISABILITY SEVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE. EVEN IF THE UNFITTING CONDITION IS INCURRED BY A MEMBER WHO DID NOT MEET THE PROCUREMENT MEDICAL FITNESS STANDARDS AT THE TIME OF INDUCTION. 1968: REFERENCE IS MADE TO LETTER OF OCTOBER 17. ARE FOUND TO HAVE BEEN MEDICALLY UNFIT FOR INDUCTION.

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B-165484, DECEMBER 3, 1968, 48 COMP. GEN. 377

MILITARY PERSONNEL - MEDICALLY UNFIT - STATUS A MEMBER OF THE UNIFORMED SERVICES WHO, AFTER HAVING PERFORMED ACTIVE DUTY, IS FOUND TO HAVE BEEN MEDICALLY UNFIT AT THE TIME OF ENTRY INTO THE SERVICE IS NOT DEPRIVED OF THE RIGHT TO MILITARY PAY AND ALLOWANCES OR OF THE STATUS OF BEING ENTITLED TO BASIC PAY BECAUSE OF THE ADMINISTRATIVE FAILURE TO DISCOVER HIS PHYSICAL CONDITION, ABSENT AN AFFIRMATIVE STATUTORY PROHIBITION AGAINST THE INDUCTION OF PERSONS ON THE BASIS OF PHYSICAL OR MENTAL DISQUALIFICATION, AND IN VIEW OF THE FACT 50 U.S.C. APP. 454 (A) PROVIDES THAT NO PERSON SHALL BE INDUCTED INTO THE ARMED SERVICES UNTIL HIS ACCEPTABILITY HAS BEEN SATISFACTORILY DETERMINED, AND SECTION 456 (H) PRESCRIBES THAT A PHYSICAL OR MENTAL CONDITION CONSTITUTES A BASIS FOR DEFERMENT FROM INDUCTION RATHER THAN AN ABSOLUTE DISQUALIFICATION. PAY - ACTIVE DUTY - MEDICALLY UNFIT PERSONNEL MEDICALLY UNFIT PERSONS INDUCTED INTO THE MILITARY SERVICE WHO PERFORM TRAINING AND SERVICE, ABSENT A STATUTORY PROHIBITION, ARE ENTITLED TO FULL PAY AND ALLOWANCES FROM TIME OF ENTRY ON ACTIVE DUTY THROUGH DATE THEY ARE RELEASED FROM MILITARY CONTROL, AND THEY MAY RECEIVE ANY UNPAID PAY AND ALLOWANCES WHICH ACCRUED PRIOR TO AND INCLUDING THE DATE OF RELEASE FROM MILITARY CONTROL. IN ADDITION, THE MEMBER MAY BE FURNISHED TRANSPORTATION IN KIND OR A MONETARY ALLOWANCE IN LIEU THEREOF TO HOME OF RECORD UPON RELEASE FROM MILITARY CONTROL. PAY - RETIRED - MEDICALLY UNFIT PERSONNEL AT TIME OF INDUCTION A MEMBER OF THE UNIFORMED SERVICES WHO AT THE TIME OF INDUCTION INTO THE MILITARY SERVICE DID NOT MEET PROCUREMENT OR RETENTION MEDICAL FITNESS STANDARDS AND WHO INCURRED NO AGGRAVATION OF A PREEXISTING MEDICAL CONDITION DURING HIS ACTIVE SERVICE HAS NOT MET THE REQUIREMENT IN 10 U.S.C. 1201 AND 1203 THAT A PHYSICAL DISABILITY MUST BE INCURRED WHILE ENTITLED TO BASIC PAY AND HE, THEREFORE, IS NOT ENTITLED TO DISABILITY SEVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE. HOWEVER, ENTITLEMENT TO SUCH BENEFITS ACCRUES TO A MEMBER EXPERIENCING AN AGGRAVATION OF HIS PHYSICAL CONDITION BY ACTIVE SERVICE OR ACQUIRING A NEW OR ADDITIONAL UNFITTING CONDITION, EVEN IF THE UNFITTING CONDITION IS INCURRED BY A MEMBER WHO DID NOT MEET THE PROCUREMENT MEDICAL FITNESS STANDARDS AT THE TIME OF INDUCTION, BUT DID THEN MEET THE RETENTION FITNESS STANDARDS.

TO THE SECRETARY OF DEFENSE, DECEMBER 3, 1968:

REFERENCE IS MADE TO LETTER OF OCTOBER 17, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE RIGHT TO PAY AND ALLOWANCES OF PERSONS INDUCTED INTO THE ARMED FORCES PURSUANT TO THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 50 U.S.C. APP. 451, WHO AFTER HAVING PERFORMED ACTIVE DUTY FOR SOME TIME, ARE FOUND TO HAVE BEEN MEDICALLY UNFIT FOR INDUCTION. THE QUESTIONS (WHICH DO NOT RELATE TO PERSONS JUDICIALLY DETERMINED TO BE MENTALLY INCOMPETENT PRIOR TO INDUCTION), TOGETHER WITH A DISCUSSION RELATING TO THEM, ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 423.

THE COMMITTEE ACTION STATES THAT THE QUESTIONS PRESENTED PRIMARILY AFFECT THE ARMY BUT WOULD HAVE EQUAL APPLICATION TO ALL SERVICES, AND THAT EACH CASE INVOLVES A DETERMINATION BY THE PROPER MILITARY AUTHORITIES THAT THE PERSON INDUCTED SHOULD NOT HAVE BEEN INDUCTED INTO THE ARMED FORCES BECAUSE HE WAS MEDICALLY UNFIT FOR MILITARY SERVICE, SUCH CONDITION EXISTING AT THE TIME OF ENTRY INTO THE SERVICE. IT IS INDICATED THAT PERSONS WHO DO NOT MEET THE MEDICAL FITNESS STANDARDS OF THE ARMY, BUT ARE IN FACT INDUCTED, ARE BEING RELEASED UNLESS THEIR INDUCTION WAS PROCURED BY FRAUD ON THEIR PART OR UNLESS THEY MEET THE MEDICAL STANDARDS FOR RETENTION AND SIGN A STATEMENT ACKNOWLEDGING ELIGIBILITY FOR RELEASE FROM MILITARY CONTROL BUT DESIRE RETENTION.

THE COMMITTEE ACTION STATES THAT THIS ACTION BY THE ARMY IS BASED ON THE POSITION THAT GENERALLY AN INDUCTION IN VIOLATION OF STATUTE OR REGULATION IS VOID, AND THE INDIVIDUAL CONCERNED DOES NOT ACQUIRE A MILITARY STATUS THEREBY. IT SAYS THAT SEVERAL SITUATIONS HAVE BEEN FOUND TO EXIST: THE MEMBER MAY HAVE A DORMANT DISEASE WHICH IS NOT DISCOVERED UNTIL SOME TIME AFTER INDUCTION; THE MEMBER MAY HAVE IN FACT BEEN REJECTED BY MEDICAL AUTHORITIES BUT THROUGH ADMINISTRATIVE ERROR HE WAS IN FACT INDUCTED; OR MEDICAL AUTHORITIES MAY HAVE OVERLOOKED THE DEFECT EVEN THOUGH PROPER MEDICAL PROCEDURES WERE FOLLOWED.

THE COMMITTEE ACTION REFERS TO THE CASE OF UNITED STATES V HALL, 37 CMR 352 (1967), IN WHICH IT WAS HELD THAT HALL, WHO HAD REFUSED TO BE INDUCTED INTO THE ARMY IN NOVEMBER 1965, HAD NEVER ACQUIRED A MILITARY STATUS EVEN THOUGH HE HAD WORN A MILITARY UNIFORM AND HAD DRAWN PAY AND ALLOWANCES, AND THAT THEREFORE HE COULD NOT BE TRIED BY COURT MARTIAL FOR FAILURE TO OBEY AN ORDER. THE COURT STATED AT PAGE 355 THAT: THE TEACHING OF THESE CASES AND THE DECISIONS CITED THEREIN IS THAT, IN ORDER TO HAVE MILITARY JURISDICTION ATTACH, THERE MUST BE SOME SORT OF COMPLIANCE WITH THE INDUCTION CEREMONY REQUIRED UNDER THE ACT AND REGULATIONS. A FAILURE TO COMPLY WITH THE FORMALITIES OF THIS ENTRY INTO SERVICE OR OTHER IRREGULARITIES THEREIN MAY WELL BE CURED BY ACCUSED'S SUBSEQUENT CONDUCT AND TACIT SUBMISSION TO MILITARY AUTHORITY. UNITED STATES V SCHEUNEMANN (14 USCMA 479, 34 CMR 259); UNITED STATES V RODRIGUEZ (2 USCMA 101, 6 CMR 101). BUT WHERE AN ACCUSED REFUSES TO SUBMIT TO INDUCTION; IN FACT DOES NOT PARTICIPATE IN ANY CEREMONY AT ALL; AND CONTINUALLY THEREAFTER PROTESTS THE ATTEMPT NONETHELESS TO SUBJECT HIM TO MILITARY SERVICE, NO JURISDICTION OVER HIM CAN BE HELD TO HAVE ATTACHED. SEE BILLINGS V TRUESDELL, 321 U.S. 542 (1944).

THE COMMITTEE ACTION STATES THAT THE ARMY'S POLICY IN REGARD TO THE RELEASE OF INDUCTEES, WHO WERE NOT MEDICALLY FIT AT THE TIME OF INDUCTION, IS BASED ON THE RULING OF THE UNITED STATES COURT OF MILITARY APPEALS IN THE HALL CASE, NOTING, HOWEVER, THAT THE REFUSAL TO TAKE AN OATH OF ALLEGIANCE AT THE TIME OF INDUCTION WAS WITHIN HALL'S CONTROL, WHEREAS THE INDUCTION OF AN INDIVIDUAL NOT MEDICALLY FIT FOR INDUCTION IS A MATTER BEYOND THE CONTROL OF THE INDIVIDUAL CONCERNED IN MOST INSTANCES.

ALSO NOTED WAS OUR DECISION OF MAY 4, 1960, 39 COMP. GEN. 742, HOLDING THAT WHEN, AFTER INDUCTION, AN INDUCTEE IS ADMINISTRATIVELY DETERMINED BY SERVICE MEDICAL AUTHORITIES TO BE MENTALLY INCOMPETENT AND A DETERMINATION IS ALSO MADE THAT SUCH DEFECT EXISTED AT THE TIME OF INDUCTION, THE INDUCTEE REMAINS A MEMBER OF THE UNIFORMED SERVICES UNTIL HE IS SEPARATED FROM MILITARY CONTROL.

IN ADDITION THE COMMITTEE ACTION NOTES THAT SECTIONS 1201 AND 1203 OF TITLE 10, UNITED STATES CODE, IN PROVIDING FOR THE RETIREMENT OR SEPARATION OF MEMBERS OF THE ARMED FORCES FOR PHYSICAL DISABILITY, PROVIDE THAT A MEMBER MUST BE ENTITLED TO BASIC PAY BEFORE A DETERMINATION BY THE SECRETARY CONCERNED CAN BE MADE THAT HE IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK OR RATING BECAUSE OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO BASIC PAY.

IT SHOULD BE NOTED THAT THE HALL CASE INVOLVED A PERSON WHO THE COURT HELD WAS NOT LAWFULLY INDUCTED INTO THE MILITARY SERVICE AND WHO NEVER CURED THAT IRREGULARITY BY SUBSEQUENT CONDUCT AND SUBMISSION TO MILITARY AUTHORITY. HALL REFUSED TO BE INDUCTED EVEN THOUGH HE "WORE THE UNIFORM, RECEIVED PAY, OBTAINED AN ALLOTMENT FOR HIS WIFE, AND PERFORMED SOME DUTIES.' IN THE CASES HERE INVOLVED THE SELECTEES SUBMITTED THEMSELVES FOR INDUCTION INTO THE ARMED FORCES WITHOUT PROTEST AND PRESUMABLY PERFORM MILITARY TRAINING AND SERVICE WITHOUT PROTEST AGAINST THE LAWFULNESS OF THEIR INDUCTION.

WHILE CERTAIN PROVISIONS OF LAW PROHIBIT THE ENLISTMENT OF DESERTERS AND PERSONS WHO ARE UNDERAGE, INSANE, INTOXICATED, OR CONVICTED OF A FELONY, AND RESTRICT CERTAIN ENLISTMENTS TO PERSONS QUALIFIED BY SERVICE REGULATIONS THEREFOR AND AUTHORIZE THE ENLISTMENT OF "ABLE BODIED" PERSONS IN THE REGULAR ARMY AND REGULAR AIR FORCE (SEE 10 U.S.C. 3253, 3254, 3256, 5532, 8253, 8254, 8256), WE HAVE FOUND NO STATUTE--- AND NONE HAS BEEN BROUGHT TO OUR ATTENTION--- WHICH AFFIRMATIVELY PROHIBITS THE INDUCTION INTO THE ARMED FORCES OF PERSONS NOT PHYSICALLY AND MENTALLY QUALIFIED IN ALL RESPECTS FOR TRAINING AND SERVICE THEREIN.

NO PERSON IS AUTHORIZED TO DETERMINE HIS PHYSICAL AND MENTAL QUALIFICATIONS FOR INDUCTION INTO THE ARMED FORCES FOR HIMSELF. ON THE CONTRARY THE GOVERNMENT HAS ESTABLISHED FACILITIES, PERSONNEL, AND PROCEDURES FOR MAKING SUCH DETERMINATIONS, AND THE PERSONS SELECTED FOR INDUCTION ARE REQUIRED IN MOST CASES TO ACCEPT SUCH DETERMINATIONS.

SECTION 454 (A) OF TITLE 50, APPENDIX, U.S.C. PROVIDES THAT NO PERSON SHALL BE INDUCTED INTO THE ARMED FORCES FOR TRAINING AND SERVICE UNTIL HIS ACCEPTABILITY IN ALL RESPECTS, INCLUDING HIS PHYSICAL AND MENTAL FITNESS, HAS BEEN SATISFACTORILY DETERMINED UNDER STANDARDS PRESCRIBED BY THE SECRETARY OF DEFENSE, AND SECTION 456 (H) AUTHORIZES THE PRESIDENT, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, TO PROVIDE FOR THE DEFERMENT FROM TRAINING AND SERVICE IN THE ARMED FORCES "* * * (2) OF ANY OR ALL CATEGORIES OF THOSE PERSONS FOUND TO BE PHYSICALLY, MENTALLY, OR MORALLY DEFICIENT OR DEFECTIVE.'

THERE THUS APPEARS TO BE NOT ONLY AN ABSENCE OF AN AFFIRMATIVE STATUTORY PROHIBITION OF THE INDUCTION OF PERSONS ON THE BASIS OF PHYSICAL OR MENTAL QUALIFICATIONS GENERALLY, BUT AN INDICATION THAT PHYSICAL OR MENTAL CONDITION MAY CONSTITUTE A BASIS FOR DEFERMENT FROM INDUCTION RATHER THAN AN ABSOLUTE DISQUALIFICATION.

AS A GENERAL PROPOSITION A PERSON DIRECTED TO REPORT FOR INDUCTION INTO THE ARMED FORCES MAY NOT UNILATERALLY DETERMINE THAT HE IS PHYSICALLY OR MENTALLY DISQUALIFIED FOR INDUCTION SO AS TO LAWFULLY REFUSE TO BE INDUCTED, NOR MAY A PERSON INDUCTED DISCHARGE HIMSELF FROM THE ARMED FORCES EVEN THOUGH HE MAY HAVE STRONG REASON TO BELIEVE THAT HE IS NOT PHYSICALLY OR MENTALLY QUALIFIED FOR SERVICE IN THE ARMED FORCES. IN RE GRIMLEY, 137 U.S. 147, 153 (1890); IN RE MORRISSEY, 137 U.S. 157 (1890). SEE ALSO UNITED STATES V PRUE, 240 F.SUPP. 390 (1965); AND MIMMACK V UNITED STATES, 97 U.S. 426, 432 (1878).

ACCORDINGLY, IT IS OUR VIEW THAT THE ADMINISTRATIVE FAILURE TO DISCOVER THAT THE MENTAL OR PHYSICAL CONDITION OF A PERSON INDUCTED INTO THE ARMED FORCES WAS SUCH AS WOULD WARRANT REJECTION FOR MILITARY SERVICE, DOES NOT DEPRIVE HIM OF THE RIGHT TO MILITARY PAY AND ALLOWANCES OR OF THE STATUS OF BEING ENTITLED TO BASIC PAY.

THE FIRST QUESTION IS WHETHER THE MEDICALLY UNFIT PERSONS INDUCTED INTO THE SERVICE ARE ENTITLED TO RECEIVE FULL PAY AND ALLOWANCES FROM THE TIME OF ENTRY ON ACTIVE DUTY THROUGH THE DATE THE DETERMINATION REGARDING THEIR PHYSICAL FITNESS IS MADE OR THROUGH THE DATE THEY ARE IN FACT RELEASED FROM MILITARY CONTROL. SINCE THEIR INDUCTION IS NOT PROHIBITED BY LAW AND THEY ARE ACCEPTED FOR INDUCTION INTO AN ARMED SERVICE AND PERFORM TRAINING AND SERVICE THEREIN, IT IS OUR VIEW THAT THEY ARE ENTITLED TO MILITARY PAY AND ALLOWANCES THROUGH THE DATE THEY ARE RELEASED FROM MILITARY CONTROL.

THE SECOND QUESTION IS WHETHER THEY ARE ENTITLED TO BE PAID ANY UNPAID PAY AND ALLOWANCES WHICH ACCRUED PRIOR TO THE DATE OF DETERMINATION OF MEDICAL UNFITNESS OR RELEASE FROM MILITARY CONTROL, BUT NOT CLAIMED UNTIL LATER. THAT QUESTION IS ANSWERED BY SAYING THAT THEY ARE ENTITLED TO RECEIVE THE UNPAID PAY AND ALLOWANCES WHICH ACCRUED PRIOR TO AND INCLUDING THE DATE OF RELEASE FROM MILITARY CONTROL.

QUESTIONS 3 AND 4 ARE DEPENDENT UPON NEGATIVE ANSWERS TO QUESTIONS 1 AND 2 AND THEREFORE REQUIRE NO ANSWER. QUESTION 5 IS WHETHER TRANSPORTATION IN KIND OR A MONETARY ALLOWANCE IN LIEU THEREOF MAY BE FURNISHED TO THEIR HOMES OF RECORD UPON RELEASE FROM MILITARY CONTROL. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 6 IS WHETHER AN INDIVIDUAL WHO, AT THE TIME OF INDUCTION, NEITHER MET THE PROCUREMENT MEDICAL FITNESS STANDARDS NOR THE RETENTION MEDICAL FITNESS STANDARDS AND WHOSE CONDITION HAS NOT BEEN AGGRAVATED BY ACTIVE SERVICE MAY BE ENTITLED TO DISABILITY SERVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE. UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1203, FOR THE PURPOSES OF DISABILITY RETIREMENT PAY AND DISABILITY SEVERANCE PAY, THE PHYSICAL DISABILITY MUST BE INCURRED WHILE ENTITLED TO BASIC PAY. SINCE THE DISABILITY INVOLVED IN THE CASES DESCRIBED IN QUESTION 6 WOULD NOT BE INCURRED WHILE ENTITLED TO BASIC PAY, BUT WOULD BE INCURRED PRIOR TO ENTRANCE INTO THE SERVICE, QUESTION 6 IS ANSWERED IN THE NEGATIVE.

QUESTION 7 IS WHETHER AN INDIVIDUAL DESCRIBED IN QUESTION 6 BUT WHOSE CONDITION HAS BEEN AGGRAVATED BY ACTIVE SERVICE OR WHO ACQUIRED A NEW OR ADDITIONAL UNFITTING CONDITION IS ENTITLED TO DISABILITY SEVERANCE OR RETIRED PAY ON SEPARATION FROM THE SERVICE. IT IS OUR OPINION THAT THIS QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE AS TO THOSE INDIVIDUALS WHO OTHERWISE MEET THE REQUIREMENTS OF LAW, INCLUDING THE REQUISITE DEGREE OR EXTENT OF AGGRAVATION OF THE PREEXISTING DISABILITY.

QUESTION 8 IS WHETHER AN INDIVIDUAL WHO DID NOT MEET PROCUREMENT MEDICAL FITNESS STANDARDS AT THE TIME OF INDUCTION, BUT DID THEN MEET THE RETENTION FITNESS STANDARDS AND WHO ACQUIRE AN UNFITTING MEDICAL CONDITION AFTER INDUCTION, WOULD BE ENTITLED TO DISABILITY SEVERANCE OR RETIRE PAY ON SEPARATION FROM THE SERVICE. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE PROVIDED, OF COURSE, HE MEETS ALL OF THE OTHER QUALIFICATIONS THEREFOR.

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