B-92547, SEPTEMBER 10, 1951, 31 COMP. GEN. 78

B-92547, SEPTEMBER 10, 1951, 31 COMP. GEN. 78

RETIRED PAY - DISABILITY RETIREMENT PAY - MEMBERS OF THE ARMY OF THE UNITED STATES AN OFFICER OF THE ARMY OF THE UNITED STATES WHO, AFTER RELEASE FROM ACTIVE DUTY WITHOUT PAY FOR PHYSICAL DISABILITY, WAS GRANTED RETIREMENT PAY AS THE RESULT OF THE FINDINGS OF A DISABILITY REVIEW BOARD, ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, MAY NOT CREDIT INACTIVE SERVICE BETWEEN THE DATE OF RELEASE FROM ACTIVE DUTY AND THE EFFECTIVE DATE OF RETIREMENT IN DETERMINING THE ACTIVE DUTY PAY UPON WHICH HIS RETIREMENT PAY IS TO BE BASED. AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY, WITHOUT HAVING APPEARED BEFORE AN ARMY RETIRING BOARD AND WHO, UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, LATER WAS FOUND TO BE INCAPACITATED BY A DISABILITY REVIEW BOARD AS THE RESULT OF AN INCIDENT OF THE SERVICE MAY CREDIT INACTIVE SERVICE BETWEEN THE DATE OF RELEASE FROM ACTIVE DUTY AND THE EFFECTIVE DATE OF RETIREMENT IN DETERMINING THE ACTIVE DUTY PAY UPON WHICH HIS RETIREMENT PAY IS TO BE BASED. COMPARE 31 COMP. GEN. 39.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, SEPTEMBER 10, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1950, REQUESTING DECISION ON SEVERAL QUESTIONS RELATIVE TO THE RETIREMENT PAY RIGHTS OF CERTAIN OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN THE REGULAR ARMY.

YOU FIRST REFER TO THE CASE OF AN OFFICER WHO WAS RELEASED FROM ACTIVE DUTY ON SEPTEMBER 19, 1944, BY REASON OF PHYSICAL DISABILITY PURSUANT TO THE APPROVED FINDINGS OF AN ARMY RETIRING BOARD WHICH FOUND THAT SUCH DISABILITY WAS NOT INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE. SUBSEQUENTLY, HIS CASE WAS REVIEWED BY THE ARMY DISABILITY REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, AS A RESULT OF WHICH HE WAS GRANTED RETIREMENT PAY EFFECTIVE SEPTEMBER 22, 1949. DURING THE PERIOD SEPTEMBER 20, 1944, TO SEPTEMBER 21, 1949, THE OFFICER REMAINED IN THE SERVICE PRESUMABLY IN AN INACTIVE STATUS, AND YOU REQUEST DECISION AS TO WHETHER HE MAY BE CREDITED WITH SERVICE FOR SUCH PERIOD IN DETERMINING THE AMOUNT OF THE ACTIVE DUTY PAY UPON WHICH HIS RETIREMENT PAY IS TO BE BASED.

IN DECISION OF MARCH 22, 1950, 29 COMP. GEN. 382, IT WAS HELD THAT AN OFFICER OF THE MARINE CORPS RESERVE WHO, HAVING BEEN RELEASED FROM ACTIVE DUTY WITHOUT PAY FOR PHYSICAL DISABILITY, SUBSEQUENTLY WAS GRANTED RETIREMENT PAY AS THE RESULT OF THE FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUPRA, WAS ENTITLED TO HAVE SUCH RETIREMENT PAY COMPUTED UNDER THE LAW IN EFFECT AT THE TIME OF SUCH RELEASE FROM ACTIVE DUTY AS THOUGH THE REVIEW BOARD'S DECISION AND RECOMMENDATION HAD BEEN MADE AT THAT TIME WHICH, OF COURSE, WOULD PRECLUDE THE CREDITING OF ANY INACTIVE SERVICE AFTER SUCH RELEASE FROM ACTIVE DUTY IN DETERMINING THE ACTIVE DUTY PAY UPON WHICH HIS RETIREMENT PAY IS TO BE BASED. MOREOVER, IN THE CASE OF HAMRICK V. UNITED STATES, C.1CLS. NO. 49496, DECIDED MAY 1, 1951, IT WAS HELD THE OFFICERS WHO ARE GRANTED RETIREMENT PAY AS A RESULT OF PROCEEDINGS INITIATED UNDER THE PROVISIONS OF THE SAID SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, ARE ENTITLED TO SUCH RETIREMENT PAY RETROACTIVELY TO THE DATE OF THEIR RELEASE FROM ACTIVE DUTY. THE QUESTION INVOLVED IN THE HAMRICK CASE IS AGAIN BEING LITIGATED IN THE CASE OF JACOBSON V. GRAY, ET AL., CIVIL ACTION NO. 2500-49, WHICH IS CURRENTLY PENDING BEFORE THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. HENCE, EVEN IN THE ABSENCE OF OTHER CONSIDERATIONS, IT WOULD NOT APPEAR PROPER OR DESIRABLE FOR THIS OFFICE TO CONSIDER, AT THIS TIME, THE POSSIBILITY OF GIVING AN AFFIRMATIVE ANSWER TO THE QUESTION PRESENTED. ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.

YOU NEXT REFER TO THE CASE OF AN OFFICER IN THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE DUTY ON MAY 26, 1944, NOT BY REASON OF PHYSICAL DISABILITY, WITHOUT HAVING APPEARED BEFORE AN ARMY RETIRING BOARD. IN JANUARY OF 1949 HE WAS AUTHORIZED ADMITTANCE TO AN ARMY HOSPITAL IN AN INACTIVE (CIVILIAN) STATUS FOR PHYSICAL EVALUATION TO DETERMINE HIS POSSIBLE ENTITLEMENT TO DISABILITY RETIREMENT PAY. AN ARMY RETIRING BOARD CONVENED ON MAY 25, 1949, FOUND HIM TO BE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, NOT AS THE RESULT OF AN INCIDENT OF THE SERVICE. IT IS STATED THAT HIS CASE WAS REVIEWED BY THE DISABILITY REVIEW BOARD WHICH BOARD FOUND THAT HIS INCAPACITY WAS INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE. THE FINDINGS OF THIS LATTER BOARD WERE APPROVED ON SEPTEMBER 10, 1949, THEREBY ESTABLISHING HIS ENTITLEMENT TO RETIREMENT PAY. THE OFFICER APPARENTLY REMAINED IN THE SERVICE DURING THE PERIOD BETWEEN THE DATE OF HIS RELEASE FROM ACTIVE DUTY AND THE DATE HE WAS GRANTED RETIREMENT PAY. YOU REQUEST DECISION AS TO WHETHER THE ANSWER TO THE FIRST QUESTION WOULD ALSO BE APPLICABLE HERE AND, IF NOT, WHAT SERVICE MAY BE CREDITED IN DETERMINING THE ACTIVE DUTY PAY UPON WHICH THE RETIREMENT PAY IS TO BE BASED.

SINCE IT DOES NOT APPEAR THAT THE OFFICER HERE INVOLVED WAS RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY, IT MAY NOT BE CONSIDERED THAT THE DISABILITY REVIEW BOARD BEFORE WHICH HE APPEARED WAS FUNCTIONING AS A BOARD ESTABLISHED UNDER THE PROVISIONS OF THE SAID SECTION 302 OF THE 1944 ACT. SEE DECISION OF APRIL 25, 1951, B-100262, 30 COMP. GEN. 409. HENCE, IT MUST BE PRESUMED THAT THE ACTION TAKEN IN THIS OFFICER'S CASE WAS PREDICATED ON THE GENERAL DISCRETIONARY AUTHORITY PLACED IN THE SECRETARY OF THE ARMY BY THE PROVISIONS OF THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED BY SECTION 2 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 202, EFFECTIVE AUGUST 14, 1945. AND, IN THE DECISION OF APRIL 25, 1951, SUPRA, IT WAS POINTED OUT THAT IN SUCH CASES THERE IS NOT INVOLVED A REVIEW OF ANY PREVIOUS ACTION OR DETERMINATION, IT MERELY BEING A MATTER OF MAKING A PRESENT ORIGINAL DETERMINATION AS TO WHETHER OR NOT SOME PRESENT DISABILITY WAS INCURRED IN LINE OF DUTY AT SOME PREVIOUS TIME WHILE THE PERSON WAS SERVING ON ACTIVE DUTY. ON THAT BASIS IT WAS HELD THAT, IF THE DETERMINATION IS IN THE AFFIRMATIVE, THE PERSON'S RIGHTS, IF ANY, TO RETIREMENT PAY, ETC., ARE FOR DETERMINATION UNDER THE CURRENT LAWS. UNDER SUCH CIRCUMSTANCES HE WOULD BE ENTITLED TO CREDIT FOR ALL THE SERVICE HE HAD AT THE TIME SUCH DETERMINATION WAS MADE WHICH WAS THEN AUTHORIZED TO BE CREDITED FOR LONGEVITY PAY PURPOSES, AND THAT WOULD INCLUDE SERVICE IN THE ARMY OF THE UNITED STATES BETWEEN THE DATE OF HIS RELEASE FROM ACTIVE DUTY AND THE DATE FROM WHICH HE BECAME ENTITLED TO RETIREMENT PAY. SEE 23 COMP. GEN. 76, 81. OF COURSE, HE MAY NOT BE GIVEN CREDIT FOR INACTIVE SERVICE FOR ANY PERIOD DURING WHICH HE IS ENTITLED TO RETIREMENT PAY. COMPARE DECISION OF AUGUST 22, 1951, B-101345, 31 COMP. GEN. 39.

YOUR LAST QUESTION IS WHETHER THE ANSWERS TO THE ABOVE QUESTIONS WOULD BE EQUALLY APPLICABLE IN CASES WHERE THE REVIEW BOARD'S FINDINGS ARE APPROVED SUBSEQUENT TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 802. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE PROVIDED, OF COURSE, THE PARTICULAR OFFICER ACTUALLY IS ENTITLED TO RETIRED PAY. SEE DECISION OF APRIL 25, 1951, SUPRA.

IT IS REGRETTED THAT THE NECESSITY FOR DETERMINING SEVERAL COLLATERAL OR RELATED QUESTIONS WHICH AROSE SUBSEQUENT TO THE RECEIPT OF YOUR LETTER IN THIS CASE HAS PREVENTED AN EARLIER REPLY THERETO.