B-170198, SEP 2, 1970, 50 COMP GEN 156

B-170198, SEP 2, 1970, 50 COMP GEN 156

PAY - RETIRED - DISABILITY - DISABILITY RETIREMENT AND PROMOTION SIMULTANEOUSLY EFFECTIVE - COMPUTATION OF RETIRED AND SEVERANCE PAY AN OFFICER OF THE UNIFORMED SERVICES WHOSE PHYSICAL DISABILITY WAS NOT CONSIDERED DISQUALIFYING PRIOR TO A PHYSICAL EXAMINATION QUALIFYING HIM FOR A PROMOTION DENIED BY A PHYSICAL EVALUATION BOARD, UPON HIS SUBSEQUENT SIMULTANEOUS TRANSFER AS A SECOND LIEUTENANT TO THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 AND ADVANCEMENT TO THE GRADE OF FIRST LIEUTENANT UNDER CLAUSE (4) OF 10 U.S.C. 1372, HE IS ENTITLED TO RETIRED PAY AND DISABILITY SEVERANCE PAY COMPUTED ON THE BASIS OF THE HIGHER GRADE; AND, SINCE THE FIRST DETERMINATION OF PHYSICAL DISABILITY DID NOT DISQUALIFY THE OFFICER FOR SERVICE, THE DISQUALIFYING DISABILITY FOR WHICH HE WAS RETIRED MAY BE CONSIDERED AS HAVING BEEN DISCOVERED AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION WITHIN THE PURVIEW OF CLAUSE (4) OF 10 U.S.C. 1372.

TO J. J. BURKHOLDER, UNITED STATES MARINE CORPS, SEPTEMBER 2, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1970 (FILE REFERENCE RP-JJB-PG), WITH ENCLOSURES, REQUESTING A DECISION WHETHER RETIRED PAY MAY BE PAID ON AND AFTER DECEMBER 1, 1967, TO FIRST LIEUTENANT MYLES P. WONSON, JR., 09 82 56, U.S. MARINE CORPS, RETIRED, AS A FIRST LIEUTENANT RATHER THAN AS A SECOND LIEUTENANT, AND WHETHER RETIRED PAY FOR THE PERIOD JANUARY 1, 1968, TO NOVEMBER 15, 1969, AND DISABILITY SEVERANCE PAY MAY BE PAID TO FIRST LIEUTENANT NORMAN M. LABUTTI, 09 42 97, U.S. MARINE CORPS RESERVE, RETIRED, AS A FIRST LIEUTENANT RATHER THAN AS A SECOND LIEUTENANT, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF JUNE 26, 1970, BY THE DISBURSING BRANCH, FISCAL DIVISION, HEADQUARTERS UNITED STATES MARINE CORPS, AND HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1084 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN THE CASE OF LIEUTENANT WONSON YOU STATE THAT HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF SECOND LIEUTENANT WITH A 60 PERCENT DISABILITY RATING, VA CODE 7121, ON DECEMBER 1, 1967, UNDER 10 U.S.C. 1202 AND WAS ADVANCED TO THE GRADE OF FIRST LIEUTENANT EFFECTIVE THAT DATE UNDER CLAUSE (4) OF 10 U.S.C. 1372. YOU SAY THAT HE WAS ELIGIBLE FOR PROMOTION TO THE GRADE OF FIRST LIEUTENANT ON THE ACTIVE LIST ON AUGUST 27, 1967.

YOU FURTHER STATE THAT LIEUTENANT WONSON WAS FIRST ADMITTED TO THE SICKLIST ON AUGUST 12, 1966, WITH A PRIMARY DIAGNOSIS OF "THROMBOPHLEBITIS MIGRANE, ETIOLOGY UNDETERMINED." THE SAME DIAGNOSIS WAS MADE BY A MEDICAL BOARD ON MAY 23, 1967, WHICH RECOMMENDED HIS ASSIGNMENT TO 6 MONTHS OF LIMITED DUTY. A PHYSICAL EXAMINATION FOR PROMOTION ON JULY 22, 1967, FOUND HIM QUALIFIED FOR PROMOTION TO THE GRADE OF FIRST LIEUTENANT; BUT A LETTER FROM THE CHIEF, BUREAU OF MEDICINE AND SURGERY, DATED AUGUST 16, 1967, TO THE COMMANDANT OF THE MARINE CORPS STATED THAT "FROM A REVIEW OF THE MEDICAL BOARD REPORT ON 23 MAY 1967, TOGETHER WITH LIEUTENANT WONSON'S MEDICAL RECORD, HE IS NOT PHYSICALLY QUALIFIED FOR PROMOTION AT THIS TIME INASMUCH AS HE HAS A DISEASE RATHER THAN INJURY."

YOU SAY THAT A MEDICAL BOARD ON OCTOBER 19, 1967, AGAIN DIAGNOSED HIS ILLNESS AS INDICATED ABOVE AND RECOMMENDED THAT HE APPEAR BEFORE A PHYSICAL EVALUATION BOARD. IT IS STATED THAT THE RECOMMENDED FINDINGS OF THAT BOARD WERE THAT THE OFFICER WAS UNFIT TO PERFORM THE DUTIES OF HIS GRADE BECAUSE OF PHYSICAL DISABILITY, "THROMBOPHLEBITIS MIGRANE, ETIOLOGY UNDETERMINED," AND THAT SUCH DISABILITY WAS CONSIDERED TO BE 60 PERCENT UNDER THE STANDARD SCHEDULE FOR RATING DISABILITIES USED BY THE VETERANS ADMINISTRATION, CODE NUMBER 7121.

WITH RESPECT TO LIEUTENANT LABUTTI, YOU STATE THAT HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF SECOND LIEUTENANT WITH A 30 PERCENT DISABILITY RATING, VA CODE 7345, ON JANUARY 1, 1968, UNDER 10 U.S.C. 1202, AND HE WAS ADVANCED TO THE GRADE OF FIRST LIEUTENANT EFFECTIVE THAT DATE UNDER CLAUSE (4) OF 10 U.S.C. 1372. YOU SAY THAT HE WAS DISCHARGED FROM THAT LIST ON NOVEMBER 15, 1969, UNDER 10 U.S.C. 1203 AND 1210(E) AND THAT HE WAS ELIGIBLE FOR PROMOTION TO THE GRADE OF FIRST LIEUTENANT ON THE ACTIVE LIST ON SEPTEMBER 8, 1967.

IT IS FURTHER STATED THAT LIEUTENANT LABUTTI WAS FIRST ADMITTED TO THE SICKLIST ON DECEMBER 28, 1966, WITH A PRIMARY DIAGNOSIS, "INFECTIOUS HEPATITIS." YOU SAY THAT THIS SAME DIAGNOSIS WAS MADE BY A MEDICAL BOARD ON JULY 3, 1967, WHICH RECOMMENDED THAT HE BE RETAINED IN THE HOSPITAL FOR 3 MONTHS FURTHER TREATMENT. IT IS REPORTED THAT A PHYSICAL EXAMINATION FOR PROMOTION ON OCTOBER 3, 1967, DISCLOSED THAT HE WAS NOT QUALIFIED FOR PERFORMANCE OF ALL DUTIES OF HIS GRADE AND A MEDICAL BOARD ON OCTOBER 17, 1967, AGAIN DIAGNOSED HIS ILLNESS AS "INFECTIOUS HEPATITIS." THAT REPORT WAS FORWARDED TO A PHYSICAL EVALUATION BOARD ON OCTOBER 27, 1967.

IT IS STATED THAT THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD WERE THAT THE OFFICER WAS UNFIT TO PERFORM THE DUTIES OF HIS GRADE BECAUSE OF PHYSICAL DISABILITY, "INFECTIOUS HEPATITIS," AND THAT SUCH DISABILITY WAS CONSIDERED TO BE 30 PERCENT UNDER THE STANDARD SCHEDULE FOR RATING DISABILITIES USED BY THE VETERANS ADMINISTRATION, CODE NUMBER 7345.

SINCE THE DISABILITIES FOR WHICH THE TWO OFFICERS WERE RETIRED WERE DISCOVERED PRIOR TO THEIR PHYSICAL EXAMINATIONS FOR PROMOTION, YOU ASK WHETHER THOSE DISABILITIES ARE CONSIDERED AS BEING DISCOVERED AS THE RESULT OF THEIR PHYSICAL EXAMINATIONS FOR PROMOTION WITHIN THE MEANING OF CLAUSE (4) OF 10 U.S.C. 1372.

SECTION 1372 OF TITLE 10, U.S. CODE, PROVIDES, IN PERTINENT PART, THAT UNLESS ENTITLED TO A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHOSE NAME IS PLACED ON A TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 IS ENTITLED TO:

(4) THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED, IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

CLAUSE (4) OF SECTION 1372 IS DERIVED FROM THE FIFTH PROVISO OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818.

IN COMMENTING ON THE COURT OF CLAIMS CONSTRUCTION OF THE FIFTH PROVISO OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949, WHICH PROVISION WAS CONSIDERED BY THAT COURT IN THE CASES OF LEONARD V UNITED STATES, 131 CT. CL. 91 (1955) AND FREDRICKSON V UNITED STATES, 133 CT. CL. 890 (1956), WE SAID 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 GIVEN IN CONNECTION WITH EFFECTING A *** PROMOTION." THAT CONCLUSION, WE SAID, APPEARS TO BE A TENABLE AND PERMISSIBLE CONSTRUCTION OF THE STATUTE. SEE 36 COMP. GEN. 492, 497 (1957). THE PHRASE "FOUND TO EXIST" AS USED IN SECTION 402(B) OF THE 1949 ACT IS EQUIVALENT TO "DISCOVERED" AS SET FORTH IN CLAUSE (4) OF SECTION 1372. SEE 40 COMP. GEN. 240, 241 (1960).

THE COURT OF CLAIMS AND THIS OFFICE HAVE CONSISTENTLY VIEWED CLAUSE (4) OF SECTION 1372 AS REQUIRING A DEFINITE DEGREE OF CONNECTION BETWEEN THE PHYSICAL EXAMINATION AND A PROSPECTIVE PROMOTION IN ORDER TO MEET THE CONDITIONS PRESCRIBED IN THAT CLAUSE. IN OTHER WORDS, THE PHYSICAL EXAMINATION MUST HAVE A DIRECT AND SUBSTANTIAL BEARING IN CONNECTION WITH EFFECTING A PROMOTION. SEE WILLIAMS V UNITED STATES, 145 CT. CL. 513 (1959), AND BRANDT V UNITED STATES, 155 CT. CL. 345 (1961). SEE, ALSO, 40 COMP. GEN. 240 (1960), AND 41 COMP. GEN. 749 (1962).

IT APPEARS FROM THE RECORD THAT LIEUTENANT WONSON AND LIEUTENANT LABUTTI EACH WAS GIVEN A PHYSICAL EXAMINATION FOR PROMOTION TO THE GRADE OF FIRST LIEUTENANT PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT AND THAT IT WAS DETERMINED THAT THEY WERE NOT PHYSICALLY QUALIFIED TO PERFORM THE DUTIES OF THAT GRADE. IN THIS CONNECTION, THE BUREAU OF MEDICINE AND SURGERY LETTER OF AUGUST 16, 1967, RELATING TO LIEUTENANT WONSON, IS VIEWED AS A REVIEW OF, AND THUS DIRECTLY RELATED TO, THE PHYSICAL EXAMINATION OF JULY 22, 1967.

WHILE THE DISABILITIES FOR WHICH BOTH OFFICERS WERE RETIRED WERE DISCOVERED PRIOR TO THEIR PHYSICAL EXAMINATIONS FOR PROMOTION, IT SEEMS THAT THE SAME PRIMARY DISABILITIES WERE NOT CONSIDERED DISQUALIFYING AT THAT TIME, AT LEAST NOT UNTIL THEIR PHYSICAL EXAMINATIONS TAKEN IN CONNECTION WITH THEIR PROMOTIONS TO FIRST LIEUTENANT. COMPARE THE CASE OF LIEUTENANT CRAIGHEAD IN 36 COMP. GEN. 492, 497.

IN THE CIRCUMSTANCES, THE OFFICERS' DISQUALIFYING DISABILITIES FOR WHICH THEY WERE RETIRED MAY BE CONSIDERED AS HAVING BEEN "DISCOVERED AS A RESULT OF *** PHYSICAL EXAMINATION FOR PROMOTION" WITHIN THE PURVIEW OF CLAUSE (4) OF 10 U.S.C. 1372. ACCORDINGLY, THE OFFICERS ARE ENTITLED TO HAVE THEIR RETIRED PAY, AND LIEUTENANT LABUTTI IS ENTITLED TO HAVE HIS DISABILITY SEVERANCE PAY, COMPUTED ON THE BASIS OF THE GRADE OF FIRST LIEUTENANT.