B-180378, AUG 26, 1974

B-180378, AUG 26, 1974

WHERE APPROPRIATE ORDER - ISSUING AUTHORITY WAS UNAWARE OF A MEMBER'S PHYSICAL CONDITION PRIOR TO THE EFFECTIVE DATE OF SEPARATION DUE TO MISPLACED MEDICAL REPORTS, WHICH CONDITION REQUIRED IMMEDIATE AND EXTENDED HOSPITALIZATION, AND ACTION WAS TAKEN TO REVOKE THOSE ORDERS WITHIN A SHORT PERIOD OF TIME THEREAFTER, SUCH FACTS COMPRISE SUFFICIENT AND SUBSTANTIAL NEW EVIDENCE TO SUPPORT THE REVOCATION OF THE FIRST SEPARATION ORDERS SUBSEQUENT TO THEIR EFFECTIVE DATE, THEREBY ENABLING THE MEMBER TO BE RETAINED ON ACTIVE DUTY FOR MEDICAL TREATMENT BEYOND THE ORIGINAL DATE OF SEPARATION.

ENTITLEMENT TO PAY AND ALLOWANCES INCIDENT TO RETIREMENT - FIRST LIEUTENANT CYNTHIA O. BLITCH.:

THIS ACTION IS IN RESPONSE TO A LETTER DATED SEPTEMBER 5, 1973 (FILE REFERENCE AFZH-CTF), FROM LIEUTENANT COLONEL R. M. CAETANO, USA, FINANCE AND ACCOUNTING OFFICER, HEADQUARTERS, 9TH INFANTRY DIVISION AND FORT LEWIS, FORT LEWIS, WASHINGTON, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1,109.48, IN THE CASE OF FIRST LIEUTENANT CYNTHIA O. BLITCH, REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD AUGUST 18-31, 1973. IN ADDITION TO THAT VOUCHER, THREE OTHER VOUCHERS WERE INCLUDED COVERING THE PERIODS SEPTEMBER 1-30; OCTOBER 1-31; AND NOVEMBER 1-4, 1973, IN THE AMOUNTS OF $216.68, $1,088.55 AND $2,385.61, RESPECTIVELY, AND HAS BEEN ASSIGNED CONTROL NO. DO-A-1215 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION STATES THAT ON AUGUST 8, 1973, FINAL PAYMENT OF PAY AND ALLOWANCES WAS MADE TO THE MEMBER FOR THE PERIOD AUGUST 1-17, 1973, BASED UPON SEPARATION ORDERS DATED JULY 24, 1973, EFFECTIVE AUGUST 17, 1973. THE MEMBER WAS PRESENT FOR DUTY AT MADIGAN ARMY MEDICAL CENTER, TACOMA, WASHINGTON, FROM AUGUST 9-13, 1973, AND APPARENTLY BEGAN CLEARING THAT COMMAND ON AUGUST 14, 1973, BUT A DELAY IN THE COMPLETION OF HER SEPARATION PROCESSING WAS ENCOUNTERED DUE TO HER MISSING PHYSICAL EXAMINATION FORMS WHICH WERE NOT DISCOVERED UNTIL AUGUST 19, 1973, AT THE MADIGAN ARMY MEDICAL CENTER. UPON DISCOVERY, THE REPORT APPARENTLY SHOWED THAT HER FINAL PHYSICAL EXAMINATION WAS FOUND TO BE ABNORMAL AND FURTHER EXAMINATION, OBSERVATION AND POSSIBLE TREATMENT WERE INDICATED. SHE WAS HOSPITALIZED IMMEDIATELY AND REMAINED IN A PATIENT STATUS AT THE ARMY MEDICAL CENTER UNTIL OCTOBER 30, 1973.

FOLLOWING THE MEMBER'S HOSPITALIZATION, REVOCATION ORDERS WERE ISSUED ON AUGUST 27, 1973 (10 DAYS AFTER THE EFFECTIVE DATE OF SEPARATION), AND THE MEMBER WAS RETAINED ON ACTIVE DUTY IN A MEDICAL HOLD STATUS FOR TREATMENT OF HER MEDICAL PROBLEM. UPON BEING RELEASED FROM THE HOSPITAL AND REASSIGNED TO THE UNITED STATES ARMY FORT LEWIS TRANSFER POINT FOR SEPARATION PROCESSING, BY ORDERS DATED OCTOBER 30, 1973, SHE WAS RELEASED FROM ACTIVE DUTY EFFECTIVE NOVEMBER 4, 1973.

THE DISBURSING OFFICER QUESTIONS THE EFFECTIVENESS OF REVOCATION ORDERS WHICH RETROACTIVELY CANCEL THE MEMBER'S AUGUST 17 SEPARATION AND EXPRESSES DOUBT AS TO THE VALIDITY OF TE PAYMENT FOR THE PERIOD AUGUST 18-31, 1973.

THE GENERAL RULE PERTAINING TO THE EFFECTIVENESS OF RETIREMENT OR SEPARATION ORDERS IS THAT WHEN A MEMBER OF THE UNIFORMED SERVICES IS RETIRED OR SEPARATED AND TERMINATION OF HIS ACTIVE DUTY STATUS HAS BECOME LEGALLY ACCOMPLISHED, SUCH ORDERS CANNOT BE REVOKED IN THE ABSENCE OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW, OR MATHEMATICAL MISCALCULATION.

IN OUR DECISION 40 COMP. GEN. 419 (1961), WHICH DEALT WITH THE CASES OF THREE MEMBERS, EACH OF WHICH INVOLVED THE DISCOVERY OF A PHYSICAL DISABILITY AFTER INITIAL RETIREMENT ORDERS WERE ISSUED, BUT BEFORE ACTUAL RETIREMENT, WHICH SERVED AS A BASIS FOR A CHANGE IN THE MEMBER'S RETIREMENT, IT WAS DETERMINED THAT THE SUBSTANTIAL NEW EVIDENCE RULE HAD BEEN MET THEREBY AUTHORIZING REVOCATION OF THE INITIAL RETIREMENT ORDER IN EACH CASE, SINCE THERE WAS PROMPT NOTIFICATION BY THE APPROPRIATE MEDICAL AUTHORITIES TO THE ADJUTANT GENERAL'S OFFICE UPON DISCOVERY OF THE CONDITION, AND THE REVOCATION ACTION TAKEN FOLLOWING RECEIPT OF THE INFORMATION WHICH COMPRISED THE NEW EVIDENCE WAS REASONABLY CONTEMPORANEOUS WITH THE EFFECTIVE DATE OF THE RETIREMENT ORDERS.

SUBSEQUENTLY, IN OUR DECISION, 46 COMP. GEN. 671 (1967), WE RULED THAT IN ORDER TO ESTABLISH A PROPER BASIS FOR THE APPLICATION OF THE SUBSTANTIAL NEW EVIDENCE RULE, PROMPT ADMINISTRATIVE ACTION TO REVOKE OR MODIFY SUCH ORDERS MUST BE TAKEN EITHER CONTEMPORANEOUSLY OR WITHIN A SHORT PERIOD OF TIME FOLLOWING THE EFFECTIVE DATE OF RETIREMENT.

IN 52 COMP. GEN. 797 (1973), WE HELD THAT THAT WHICH CONSTITUTES A SHORT PERIOD OF TIME FOR THE PURPOSE OF APPLYING THE SUBSTANTIAL NEW EVIDENCE RULE IS NOT READILY SUSCEPTIBLE OF A PRECISE DEFINITION, AND THAT SUCH CONCEPT TURNS LARGELY ON THE FACTS IN EACH CASE. WE STATED THEREIN THAT THERE ARE TWO ASPECTS WHICH MUST BE CONSIDERED IN SUCH MATTERS. THEY ARE, (1) THE PROMPT AND TIMELY ACTION OF APPROPRIATE MEDICAL AUTHORITIES IN NOTIFYING THE ORDER-ISSUING AUTHORITY AND (2) THE PROMPT AND TIMELY ACTION BY THE ORDER - ISSUING AUTHORITY TO REVOKE OR OTHERWISE MODIFY THE MEMBER'S RETIREMENT ORDERS FOLLOWING RECEIPT OF THE INFORMATION.

THUS, IN CASES WHERE VIRTUALLY NO DELAY EXISTS IN EITHER THE NOTIFICATION BY THE APPROPRIATE MEDICAL AUTHORITIES TO THE ORDER - ISSUING AUTHORITY FROM THE TIME THE MEMBER WAS HOSPITALIZED OR IN THE ADMINISTRATIVE ACTION TO REVOKE THE INITIAL RETIREMENT ORDERS THEREAFTER, WE VIEW SUCH PROCEDURES AS APPROPRIATELY CONSTITUTING A SHORT PERIOD OF TIME.

IN THE PRESENT CASE, THE MEMBER'S EFFECTIVE SEPARATION DATE WAS TO HAVE BEEN AUGUST 17, 1973, HOWEVER, IT WAS NOT DISCOVERED THAT SHE HAD FAILED TO PASS HER FINAL TYPE PHYSICAL EXAMINATION UNTIL AUGUST 19, 1973. DUE TO THE NATURE OF HER DISORDER, IT WOULD APPEAR THAT HAD THE FACT THAT SHE FAILED TO PASS HER PHYSICAL EXAMINATION BECOME KNOWN PRIOR TO THE EFFECTIVE DATE OF HER SEPARATION, THERE IS LITTLE DOUBT THAT HER SEPARATION ORDERS WOULD HAVE BEEN TIMELY REVOKED.

IT IS OUR VIEW, THEREFORE, THAT BASED ON THE RECORD BEFORE US, THE ACTION TAKEN TO REVOKE THE MEMBER'S SEPARATION ORDERS WITHIN 10 DAYS AFTER THEIR EFFECTIVE DATE, AND RETAINING HER ON ACTIVE DUTY IN A MEDICAL HOLD STATUS FOR TREATMENT OF HER MEDICAL PROBLEM, UNTIL NOVEMBER 4, 1973, SHOULD NOT BE QUESTIONED FURTHER.

ACCORDINGLY, PAYMENT MAY BE MADE ON THE VOUCHERS ENCLOSED WITH THE SUBMISSION, IF OTHERWISE CORRECT.