B-67921, OCTOBER 8, 1947, 27 COMP. GEN. 186

B-67921, OCTOBER 8, 1947, 27 COMP. GEN. 186

RETIRED PAY; RETIREMENT - EFFECTIVE DATE - FORMER OFFICERS OF COAST GUARD RESERVE RELEASED FOR PHYSICAL DISABILITY FORMER OFFICERS OF THE COAST GUARD RESERVE WHO HAVE BEEN RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD ARE ENTITLED UPON REVIEW OF THE DECISION RESULTING IN THEIR RELEASE REQUESTED UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, TO BE RETIRED WITH PAY, AS A RESULT OF SUCH REVIEW, RETIREMENT (OTHERWISE AUTHORIZED BY LAW) IS RECOMMENDED BY THE REVIEW BOARD, AND APPROVED BY COMPETENT AUTHORITY. THE GENERAL RULE THAT THE EFFECTIVE DATE OF THE RETIREMENT OF A REGULAR OFFICER OF THE ARMED SERVICES IS GOVERNED BY THE DATE WHEN THE PRESIDENT APPROVES HIS RETIREMENT AND BY THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, IS APPLICABLE TO DISABILITY RETIREMENTS OF FORMER COAST GUARD RESERVE OFFICERS WHO, AFTER BEING RELEASED FROM ACTIVE DUTY WITHOUT PAY FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING, ETC., BOARD, REQUEST A REVIEW OF SUCH DECISION UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, AND ARE RETIRED AS A RESULT OF SUCH REVIEW.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. J. A. WILBER, U.S. COAST GUARD, OCTOBER 8, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 27, 1947, REQUESTING A DECISION AS TO THE RATE OF RETIRED PAY, IF ANY, TO WHICH LIEUTENANT EDWARD J. MOTLEY, USCGR ( RET.) AND LIEUTENANT (JG) PARTEE A. FLEMING, USCGR ( RET.) ARE ENTITLED AND THE EFFECTIVE DATE FROM WHICH SUCH RETIRED PAY IS PAYABLE. THE PERTINENT FACTS AND THE SPECIFIC QUESTIONS SUBMITTED ARE STATED IN YOUR LETTER AS FOLLOWS:

MR. MOTLEY EXECUTED OATH OF OFFICE AS CHIEF MACHINIST, USCGR (PERMANENT APPOINTMENT) ON 14 JULY, 1942, WAS CALLED TO AND REPORTED FOR ACTIVE DUTY ON 3 AUGUST, 1942; WAS ADVANCED TO THE RANK OF LIEUTENANT (JUNIOR GRADE) USCGR UNDER THE PROVISIONS OF THE TEMPORARY PROMOTION ACT OF JULY 24, 1941 (34 U.S.C. 350-350J). UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942 AS AMENDED, AND ON 31 AUGUST, 1943, DATE OF PRESIDENTIAL APPROVAL OF PROMOTION TO THE RANK OF LIEUTENANT (JUNIOR GRADE), USCGR, HE BECAME ENTITLED TO THE PAY AND ALLOWANCES OF THE THIRD PERSON AND ON 27 SEPTEMBER, 1944, DATE OF PRESIDENTIAL APPROVAL OF PROMOTION TO THE RANK OF LIEUTENANT, USCGR, TO THE PAY AND ALLOWANCES OF THE FOURTH PERIOD BY REASON OF THE FOLLOWING SERVICE: 3 APRIL 1912 TO 23 FEBRUARY, 1916, ENLISTED, REGULAR NAVY, 3 YEARS, 10 MONTHS, 20 DAYS; 7 MAY, 1917, TO 25 MAY 1933, ENLISTED, U.S. NAVAL RESERVE FORCE AND U.S. NAVAL RESERVE, 16 YEARS, 2 DAYS; 26 MAY, 1933 TO 24 MAY, 1941, ENLISTED U.S. NAVAL RESERVE, 7 YEARS, 11 MONTHS, 29 DAYS; 3 AUGUST 1942 TO 9 MAY, 1946, COMMISSIONED SERVICE, U.S. COAST GUARD RESERVE (ACTIVE DUTY), 3 YEARS, 9 MONTHS, 6 DAYS. TOTAL SERVICE FOR PAY PURPOSES, 31 YEARS, 8 MONTHS, 17 DAYS. THIS OFFICER APPEARED BEFORE A COAST GUARD MEDICAL BOARD OF SURVEY ON 7 JANUARY, 1946, WHICH RECOMMENDED THAT HE APPEAR BEFORE A COAST GUARD RETIRING BOARD. THE ASSISTANT SURGEON GENERAL, U.S. PUBLIC HEALTH SERVICE, IN A MEMORANDUM DATED 28 JANUARY, 1946, EXPRESSED THE OPINION THAT THE DISABILITY WAS INSUFFICIENT TO WARRANT APPEARANCE BEFORE A RETIRING BOARD, AND RECOMMENDED SEPARATION FROM THE COAST GUARD. ON 9 MAY, 1946, THIS OFFICER WAS RELEASED FROM ACTIVE DUTY, AND, BY REASON OF EXPIRATION OF TERM OF APPOINTMENT AS PROVIDED IN THE ACT OF FEBRUARY 19, 1941 (55 STAT. 13) BECAME, IN FACT, SEPARATED FROM THE COAST GUARD RESERVE.

ON 22 MAY, 1946, MR. MOTLEY FILED A PETITION TO THE BOARD OF REVIEW, COAST GUARD HEADQUARTERS, WHICH BOARD CONVENED IN HIS CASE ON 8 AUGUST, 1946, UNDER THE PROVISIONS OF SECTION 302A OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944; THIS BOARD RECOMMENDED THAT HE APPEAR BEFORE A COAST GUARD RETIRING BOARD AND, ON 20 MAY, 1947, A RETIRING BOARD CONVENED IN HIS CASE AND RECOMMENDED RETIREMENT FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF 5 U.S.C. 47A, 14 U.S.C. 311, AND 34 350G/A), 417 AND 855C- 1. THIS BOARD FOUND THAT THE DISABILITY WAS INCURRED SUBSEQUENT TO PROMOTION TO THE RANK OF LIEUTENANT. THE RECOMMENDATION OF THIS RETIRING BOARD WAS APPROVED BY THE PRESIDENT ON 22 MAY, 1947, AND MR. MOTLEY WAS PLACED ON THE RETIRED LIST OF THE U.S. COAST GUARD, EFFECTIVE 1 JUNE 1947.

SECTION 8 (G) OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 605 STATES: "THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN ANY CASE UNLESS THE PROCEEDINGS OF THE NAVAL RETIRING BOARD SHALL BE COMMENCED WITHIN SIX MONTHS FROM THE TERMINATION OF THE TEMPORARY APPOINTMENT OR RELEASE FROM ACTIVE DUTY OF THE INDIVIDUAL WHICHEVER MAY OCCUR EARLIER.' MR. MOTLEY WAS RELEASED FROM ACTIVE DUTY ON 9 MAY, 1946 AND THE PROCEEDINGS OF THE RETIRING BOARD, UPON WHOSE RECOMMENDATION HE WAS RETIRED, DID NOT COMMENCE UNTIL 20 MAY, 1947, ALTHOUGH REQUEST FOR RECONSIDERATION BY THE BOARD OF REVIEW WAS FILED BY MR. MOTLEY WITHIN THE STATUTORY TIME LIMITATION.

MR. FLEMING ENLISTED IN THE U.S. COAST GUARD RESERVE AND REMAINED ON INACTIVE DUTY FROM 28 MAY 28, 1942 THROUGH 31 JULY, 1942. HE EXECUTED OATH OF OFFICE AS ENSIGN, USCGR (PERMANENT APPOINTMENT) AND ENTERED ON ACTIVE DUTY 27 OCTOBER, 1942, WAS ADVANCED TO RANK OF LIEUTENANT (JUNIOR GRADE), USCGR ON 1 AUGUST, 1943 UNDER THE PROVISIONS OF THE TEMPORARY PROMOTION ACT OF JULY 24, 1941. PRIOR TO ENTRY IN COAST GUARD RESERVE, MR. FLEMING HAD TO HIS CREDIT THREE YEARS' NATIONAL GUARD SERVICE. HE WAS CALLED BEFORE A MEDICAL BOARD OF SURVEY WHILE ON ACTIVE DUTY, 11 MAY, 1945, WHICH BOARD RECOMMENDED THAT HE BE RELEASED FROM ACTIVE DUTY AND DISCHARGED. THE ASSISTANT SURGEON GENERAL, U.S. PUBLIC HEALTH SERVICE, UNDER DATE OF 11 JUNE, 1945, RECOMMENDED THAT HE BE BROUGHT BEFORE A COAST GUARD RETIRING BOARD AND ON 5 JULY, 1945, A COAST GUARD RETIRING BOARD CONVENED IN HIS CASE. THIS BOARD FOUND THAT DISABILITY WAS AN INCIDENT OF SERVICE AND INCURRED SUBSEQUENT TO PROMOTION TO THE RANK OF LIEUTENANT (JUNIOR GRADE), BUT THAT THE DISABILITY WAS NOT PERMANENT IN NATURE AND, ON 23 AUGUST 1945, THE BOARD RECOMMENDED THAT HE NOT BE RETIRED. THE ACTION OF THIS BOARD WAS APPROVED BY THE PRESIDENT ON 10 DECEMBER, 1945, AND MR. FLEMING WAS RELEASED FROM ACTIVE DUTY EFFECTIVE 16 APRIL, 1946.

ON 5 MAY, 1946, HE PETITIONED THE COAST GUARD BOARD OF REVIEW FOR RECONSIDERATION OF HIS CASE AND, UNDER THE PROVISIONS OF SECTION 302A OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, ON 20 FEBRUARY,1947, A COAST GUARD BOARD OF REVIEW CONVENED IN HIS CASE. THE DECISION OF THIS BOARD WAS THAT THE DECISION MADE ON THE RETIRING BOARD OF 5 JULY, 1945 BE REVERSED, AND THAT THIS OFFICER BE PLACED ON THE COAST GUARD RETIRED LIST. THE PRESIDENT, ON 12 MAY, 1947, APPROVED THE DECISION OF THE BOARD OF REVIEW AND MR. FLEMING WAS PLACED ON THE RETIRED LIST EFFECTIVE 1 JUNE, 1947, UNDER THE PROVISIONS OF 5 U.S.C. 47A, 14 U.S.C. 311, AND 34 U.S.C. 3509 (A), 417, AND 855C-1.

MR. FLEMING WAS RETIRED UPON THE RECOMMENDATIONS OF A COAST GUARD RETIRING BOARD, REVIEWED AND REVERSED; HOWEVER, THE PROCEEDINGS OF THE BOARD OF REVIEW DID NOT COMMENCE UNTIL 10 MONTHS AND 4 DAYS FOLLOWING DATE OF RELEASE FROM ACTIVE DUTY. SIMILARLY, BY REASON OF EXPIRATION OF THREE- YEAR TERM OF APPOINTMENT AS PROVIDED BY THE ACT OF FEBRUARY 19, 1941 (55 STAT. 13), HE BECAME SEPARATED FROM THE COAST GUARD RESERVE.

IN EACH OF THE ABOVE CASES, WITHIN SIX MONTHS AFTER RELEASE FROM ACTIVE DUTY, REQUEST WAS MADE FOR CONSIDERATION BY A BOARD OF REVIEW AS PROVIDED BY STATUTE. THE DELAY WHICH FOLLOWED WAS APPARENTLY ADMINISTRATIVE IN NATURE AND ONE OVER WHICH THE OFFICER HAD NO CONTROL. IT IS THE ADMINISTRATIVE OPINION THAT SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 OPERATES TO RESTORE TO THE OFFICER THE STATUS HELD PRIOR TO HIS RELEASE WITH THE RIGHTS ATTENDANT TO SUCH STATUS, E.G., THE RIGHT TO APPEAR BEFORE A RETIRING BOARD AND TO BE RETIRED, AND THAT THEREFORE, IT IS INCONSISTENT TO ASSUME THAT CONGRESS INTENDED THAT THE ADMINISTRATIVE DELAY ENTAILED IN FOLLOWING THE STATUTORY PROCEDURE FOR THE RESTORATION OF THOSE RIGHTS SHOULD OPERATE TO CURTAIL OR LIMIT IN ANY WAY THE RIGHTS OR BENEFITS TO WHICH THE OFFICER MIGHT OTHERWISE BE ENTITLED. IN SUBMITTING THESE CASES TO THE PRESIDENT FOR APPROVAL, THE POSITION WAS TAKEN, ADMINISTRATIVELY, THAT TIMELY (WITHIN SIX MONTHS AFTER RELEASE FROM ACTIVE DUTY) REQUEST FOR BOARD OF REVIEW CONSIDERATION SERVES TO TOLL THE STATUTORY TIME LIMITATION OF SECTION 8 (G) OF THE ACT OF JULY 24, 1941.

SPECIFICALLY, MY QUESTIONS ARE AS FOLLOWS:

1. ON WHAT RATE OF ACTIVE-DUTY PAY SHOULD THE RETIRED PAY BE COMPUTED IN THE CASE OF:

MR. MOTLEY: (A) 75 PERCENTUM OF THE PAY OF A LIEUTENANT WITH OVER 30 YEARS' SERVICE, OR

(B) 75 PERCENTUM OF THE PAY OF THE PERMANENT RANK, CHIEF MACHINIST,WITH OVER 30 YEARS' SERVICE, BUT LESS THAN TEN YEARS' COMMISSIONED SERVICE?

MR. FLEMING: (A) 75 PERCENTUM OF THE PAY OF A LIEUTENANT (JUNIOR GRADE) WITH OVER SIX YEARS' SERVICE, OR

(B) 75 PERCENTUM OF THE PAY OF THE PERMANENT RANK, ENSIGN, WITH OVER SIX YEARS' SERVICE?

2. WHAT IS THE EFFECTIVE DATE THAT RETIRED PAY SHOULD BEGIN (A) THE DAY FOLLOWING DATE OF SEPARATION OR RELEASE FROM ACTIVE DUTY OR (B) THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH RETIREMENT WAS APPROVED BY THE PRESIDENT?

SECTION 211 OF THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941, 55 STAT. 12, 14 U.S.C.A. 311, PROVIDES AS FOLLOWS:

MEMBERS OF THE RESERVE ( UNITED STATES COAST GUARD RESERVE), OTHER THAN TEMPORARY MEMBERS THEREOF, WHO SUFFER SICKNESS, DISEASE, DISABILITY, OR DEATH IN LINE OF DUTY SHALL BE ENTITLED TO THE SAME BENEFITS AS ARE OR MAY HEREAFTER BE PRESCRIBED BY LAW FOR MEMBERS OF THE NAVAL RESERVE WHO SUFFER SICKNESS, DISEASE, DISABILITY, OR DEATH UNDER SIMILAR CONDITIONS.

SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED, 34 U.S.C.A. 855C-1, IS AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATIONS, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY SECTIONS 691D, 935 (1), 737, 738, 849D, 849D-1, 849F, 853E, 855-1, 855H, 855J, 855K, AND 855L OF THIS TITLE BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937, CH. 376 (50 STAT. 305), COMPENSATION FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE PROVISIONS OF SECTION 855C OF THIS TITLE OR RETIRED PAY UNDER THE PROVISION OF SECTION 855I OF THIS TITLE, HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE:PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM SEPTEMBER 8, 1939.

THE ACT OF JULY 24, 1941, ENTITLED " AN ACT AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS" PROVIDES, IN SECTION 8 (A) THEREOF, 55 STAT. 604, 34 U.S.C.A. 350G, AS FOLLOWS:

(A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

SECTION 11 OF THE SAID ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C.A. 350J, PROVIDES AS FOLLOWS:

THE PROVISIONS OF SECTION 350-350J OF THIS TITLE EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAME THERETO SHALL APPLY TO---

(A) PERSONNEL OF THE NAVAL RESERVE (EXCEPT THE FLEET RESERVE) AND THE MARINE CORPS RESERVE (EXCEPT THE FLEET MARINE CORPS RESERVE) IN LIKE MANNER AND TO THE SAME EXTENT AND WITH THE SAME RELATIVE CONDITIONS IN ALL RESPECTS AS ARE PROVIDED FOR PERSONNEL OF THE REGULAR NAVY AND MARINE CORPS, BUT THIS SHALL NOT BE CONSTRUED TO AUTHORIZE THE TEMPORARY APPOINTMENT OF THE PERSONNEL THEREOF TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS * * *.

(B) PERSONNEL OF THE COAST GUARD IN RELATIONSHIP TO THE COAST GUARD IN THE SAME MANNER AND TO THE SAME EXTENT AS THEY APPLY TO PERSONNEL OF THE NAVY IN RELATIONSHIP TO THE NAVY.

SECTION 8 (G) OF THE ACT OF JULY 24, 1941, 55 STAT. 605, QUOTED IN YOUR LETTER, WAS AMENDED BY THE ACT OF JULY 11, 1947 ( PUBLIC LAW 178, 80TH CONGRESS, 61 STAT. 313), EFFECTIVE AUGUST 10, 1946, AND AS SO AMENDED SUCH SECTION PROVIDES AS FOLLOWS:

(G) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN ANY CASE IF THE PROCEEDINGS OF THE NAVAL RETIRING BOARD BE COMMENCED SUBSEQUENT TO A DATE ONE YEAR AFTER THE TERMINATION OF THE TEMPORARY APPOINTMENT OR RELEASE FROM ACTIVE DUTY OF THE INDIVIDUAL CONCERNED, WHICHEVER MAY OCCUR LATER, EXCEPT IN THE CASE OF AN INDIVIDUAL WHOSE TEMPORARY APPOINTMENT SHALL HAVE BEEN TERMINATED PRIOR TO THE DATE OF ENACTMENT OF THIS AMENDMENT, OR WHO, PRIOR TO SUCH DATE, SHALL HAVE BEEN RELEASED FROM ACTIVE DUTY.

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C.A. 47A, IS AS FOLLOWS:

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED. SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT, 1944, 58 STAT. 287, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 623, IS AS FOLLOWS (QUOTING FROM 38 U.S.C.A. 6931):

(A) THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, FROM TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED FROM THE MEDICAL CORPS OF THE ARMY OR NAVY, OR FROM THE PUBLIC HEALTH SERVICE, AS THE CASE MAY BE. IT SHALL BE THE DUTY OF ANY SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE SERVICE RECORDS RELATING TO THE OFFICER REQUESTING SUCH REVIEW, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH OFFICER. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE OFFICER REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD OF REVIEW IN PERSON OR BY COUNSEL. IN CARRYING OUT ITS DUTIES UNDER THIS SECTION SUCH BOARD OF REVIEW SHALL HAVE THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISIONS ARE BEING REVIEWED. THE PROCEEDINGS AND DECISION OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.

(B) NO REQUEST FOR REVIEW UNDER THIS SECTION SHALL BE VALID UNLESS FILED WITHIN FIFTEEN YEARS AFTER THE DATE OF RETIREMENT FOR DISABILITY OR AFTER JUNE 22, 1944, WHICHEVER IS THE LATTER.

(C) AS USED IN THIS SECTION---

(1) THE TERM "OFFICER" MEANS ANY OFFICER SUBJECT TO THE LAWS GRANTING RETIREMENT FOR ACTIVE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR ANY OF THEIR RESPECTIVE COMPONENTS; * * *

UNDER THE EXPRESS TERMS OF SECTION 302, AS AMENDED, SUPRA, AN OFFICER WHO HAS BEEN RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, MAY FILE A REQUEST FOR A REVIEW OF THE FINDINGS AND DECISIONS OF SUCH BOARD BUT NO SUCH REQUEST FOR REVIEW SHALL BE "VALID" UNLESS FILED WITHIN 15 YEARS AFTER THE DATE OF RETIREMENT FOR DISABILITY OR AFTER JUNE 22, 1944, WHICHEVER IS THE LATER. IT SEEMS CLEAR THAT THE SAID SECTION CONTEMPLATES THAT AN OFFICER OR FORMER OFFICER WHO HAS BEEN SO RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY MAY FILE A REQUEST FOR REVIEW OF THE FINDINGS AND DECISION OF THE BOARD WHICH RESULTED IN SUCH RELEASE; THAT SUCH REQUEST FOR REVIEW SHALL BE GRANTED IF FILED AT ANY TIME WITHIN 15 YEARS AFTER JUNE 22, 1944; AND THAT THE OFFICER OR FORMER OFFICER MAY BE RETIRED WITH PAY IF, AS A RESULT OF SUCH REVIEW, HIS RETIREMENT IS RECOMMENDED BY A REVIEW BOARD AND APPROVED BY COMPETENT AUTHORITY AND IS OTHERWISE AUTHORIZED BY LAW.

BOTH OF THE OFFICERS HERE INVOLVED WERE RETIRED AS A RESULT OF ACTION TAKEN ON THEIR REQUESTS FOR REVIEW MADE UNDER THE PROVISIONS OF SECTION 302, AS AMENDED, SUPRA, AND BOTH WERE RELEASED FROM ACTIVE DUTY PRIOR TO THE DATE OF THE ENACTMENT OF THE ACT OF JULY 11, 1947, AMENDING SECTION 8 (G) OF THE ACT OF JULY 24, 1941, SUPRA. HENCE, IT DOES NOT APPEAR THAT THE STATUTORY TIME LIMITATION IN THE SAID SECTION 8 (G) HAS ANY APPLICATION TO THEIR CASES, EVEN ASSUMING THAT THE TERM "NAVAL RETIRING BOARD" USED THEREIN WAS INTENDED TO INCLUDE BOARDS OF REVIEW ESTABLISHED UNDER THE SAID SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT.

WITH RESPECT TO YOUR SPECIFIC QUESTION NUMBERED 1, IT APPEARS THAT UNDER THE SEVERAL STATUTORY PROVISIONS CITED AND QUOTED ABOVE, THE RETIRED PAY OF BOTH MR. MOTLEY AND MR. FLEMING SHOULD BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, SUPRA. ACCORDINGLY, BASED ON THE INFORMATION CONTAINED IN YOUR LETTER, MR. MOTLEY'S RETIRED PAY SHOULD BE COMPUTED AS 75 PERCENTUM OF THE ACTIVE-PAY OF A LIEUTENANT WITH OVER 30 YEARS' SERVICE AND MR. FLEMING'S RETIRED PAY SHOULD BE COMPUTED AS 75 PERCENTUM OF THE ACTIVE PAY OF A LIEUTENANT (JUNIOR GRADE) WITH OVER SIX YEARS' SERVICE.

IT IS A RULE OF LONG STANDING THAT, GENERALLY, THE EFFECTIVE DATE OF THE RETIREMENT OF A REGULAR OFFICER OF THE ARMED SERVICES IS GOVERNED BY THE DATE WHEN THE PRESIDENT APPROVES HIS RETIREMENT AND BY THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, SUPRA, AND MAY NOT BE A DATE PRIOR TO THE DATE OF SUCH APPROVAL. 25 COMP. GEN. 663. APPARENTLY SUCH RULE WAS FOLLOWED IN FIXING THE EFFECTIVE DATES FOR THE RETIREMENT OF LIEUTENANTS MOTLEY AND FLEMING AND IT IS UNDERSTOOD THAT SUCH RULE IS BEING FOLLOWED BY THE DEPARTMENT OF THE NAVY IN CONNECTION WITH SIMILAR RETIREMENTS OF NAVAL RESERVE OFFICERS FOR PHYSICAL DISABILITY. THERE IS NO STATUTORY PROVISION MAKING SUCH RULE INAPPLICABLE TO DISABILITY RETIREMENTS OF RESERVE OFFICERS OF THE NAVY AND OF THE COAST GUARD AND THERE IS NOTHING IN SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT, SUPRA, DISCLOSING OR INDICATING A LEGISLATIVE INTENT THAT THE DETERMINATIONS OF THE REVIEW BOARDS PROVIDED FOR THEREIN SHOULD BE GIVEN ANY RETROACTIVE APPLICATION. IF THE ALTERNATIVE RULE SUGGESTED BY YOUR QUESTION WERE FOLLOWED IN THE CASES OF RESERVE PERSONNEL RETIRED AS A RESULT OF ACTION TAKEN ON REQUESTS FOR REVIEW MADE UNDER THE PROVISIONS OF THE SAID SECTION 302, THERE MIGHT RESULT, IN SOME CASES, THE AUTHORIZATION OF LUMP-SUM PAYMENTS EQUAL TO RETIRED PAY FOR RETROACTIVE PERIODS OF AS MUCH AS 15 YEARS OR MORE. IT WOULD REQUIRE CLEAR STATUTORY LANGUAGE TO SUPPORT A CONCLUSION THAT SUCH WAS THE INTENT OF THE CONGRESS.

ACCORDINGLY, UPON THE BASIS OF INFORMATION GIVEN IN YOUR LETTER, QUOTED ABOVE, IT IS CONCLUDED THAT THE OFFICERS HERE INVOLVED BECAME ENTITLED TO RETIRED PAY AS OF THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEIR RETIREMENTS WERE APPROVED BY THE PRESIDENT. IN OTHER WORDS, BOTH MR. MOTLEY AND MR. FLEMING BECAME ENTITLED TO RETIRED PAY EFFECTIVE JUNE 1, 1947.

THE RETIREMENT PAY ROLL AND RELATED PAPERS (AND THE COPIES THEREOF), RECEIVED WITH YOUR LETTER, ARE RETURNED HEREWITH AND YOU ARE AUTHORIZED TO CERTIFY SUCH PAY ROLL FOR PAYMENT, IF OTHERWISE CORRECT.