B-126506, MAY 7, 1956, 35 COMP. GEN. 626

B-126506, MAY 7, 1956, 35 COMP. GEN. 626

PAY - DISABILITY RETIREMENT - EFFECTIVE DATE - INTERRUPTED SERVICE THE PHYSICAL DISABILITY OF A MEMBER OF THE UNIFORMED SERVICES IS CONSIDERED TO HAVE BEEN INCURRED, AS THAT TERM IS USED IN SECTION 402 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, ON THE DATE WHEN A DISEASE OR INJURY IS CONTRACTED OR SUFFERED, RATHER THAN ON A LATER DATE WHEN AN ADMINISTRATIVE DETERMINATION IS MADE THAT, BY REASON OF SUCH DISEASE OR INJURY, THE MEMBER HAS BECOME UNFIT TO PERFORM HIS MILITARY DUTIES. THE TERM "BASIC PAY" IN THE DISABILITY RETIREMENT BENEFIT PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 REFERS TO BASE AND LONGEVITY PAY RECEIVED BY MEMBERS OF THE UNIFORMED SERVICES WHILE SERVING ON ACTIVE DUTY PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE ACT, AS WELL AS TO BASE AND LONGEVITY PAY DENOMINATED AS BASIC PAY AFTER THAT DATE. IN THE ABSENCE OF ANY REQUIREMENT IN THE CAREER COMPENSATION ACT OF 1949 THAT RETIREMENT BENEFITS SHALL ACCRUE ONLY TO MEMBERS OF THE UNIFORMED SERVICES WHO HAVE UNINTERRUPTED MILITARY SERVICE BETWEEN THE DATE A DISABILITY IS INCURRED AND THE DATE OF AN ADMINISTRATIVE DETERMINATION THAT THE MEMBER IS UNFIT TO PERFORM HIS MILITARY DUTIES, SUCH BENEFITS WILL ACCRUE WITHOUT REGARD TO ANY INTERVENING BREAKS IN ACTIVE SERVICE WITH PAY; HOWEVER, THERE IS NO AUTHORITY OF LAW TO RETURN THE MEMBER TO A BASIC PAY STATUS SOLELY FOR ELIGIBILITY FOR RETIREMENT BENEFITS.

TO THE SECRETARY OF DEFENSE, MAY 7, 1956:

REFERENCE IS MADE TO LETTER OF DECEMBER 29, 1955, WITH ENCLOSURES, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE IMPLEMENTATION OF SUBSECTIONS (A) AND (B), SECTIONS 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 817, 37 U.S.C. 272 (A) AND (B). THE FOUR QUESTIONS SUBMITTED, AS STATED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 131, ARE AS FOLLOWS:

1. IN DETERMINING ENTITLEMENT TO PAY IN ACCORDANCE WITH SECTION 402A AND B, CAREER COMPENSATION ACT OF 1949, SHOULD A "PHYSICAL DISABILITY" BE CONSIDERED TO HAVE BEEN "INCURRED" (A) AT THE TIME OF ONSET OF A DISEASE OR INJURY; OR (B) AT THE SUBSEQUENT TIME WHEN A MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, BECOMES UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE OR RATING AS A RESULT OF THE DISEASE OR INJURY?

2. IF THE ANSWER TO QUESTION 1 IS TO THE EFFECT THAT A PHYSICAL DISABILITY IS "INCURRED" AT THE TIME OF ONSET OF A DISEASE OR INJURY DOES THE TERM "BASIC PAY" AS IT APPEARS IN SECTION 402, CAREER COMPENSATION ACT OF 1949 INCLUDE ONLY THAT PAY PROVIDED FOR BY SECTION 201 OF THE SAME ACT OR DOES IT INCLUDE BASE PAY PLUS LONGEVITY AS PROVIDED FOR IN MILITARY PAY LEGISLATION IN EFFECT PRIOR TO 1 OCTOBER 1949?

3. IS A PRESENT MEMBER ENTITLED TO THE BENEFITS OF TITLE IV, CAREER COMPENSATION ACT OF 1949, IF OTHERWISE ENTITLED THERETO, IF HE HAD BEEN SEPARATED FROM THE SERVICE PRIOR TO 1 OCTOBER 1949, REMAINED OUT OF THE SERVICE IN EXCESS OF THREE MONTHS, AND DURING HIS SERVICE PRIOR TO SUCH SEPARATION (DEPENDING UPON THE ANSWER TO QUESTION 1), (A) "INCURRED" A PHYSICAL DISABILITY; OR (B) BEEN INJURED OR AFFLICTED WITH A DISEASE WHICH ULTIMATELY RESULTED IN PHYSICAL DISABILITY?

4. IN THE ANSWER TO QUESTION 3 IS IN THE NEGATIVE WOULD IT REMAIN THE SAME IF THE PERIOD BETWEEN SEPARATION AND REENTRY WAS THREE MONTHS OR LESS?

SUBSECTIONS (A) AND (B) OF SECTION 402, TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, ROVIDE:

(A) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: PROVIDED FURTHER, THAT ANY DISABILITY SHOWN TO HAVE BEEN INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY.

(B) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PER CENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH MEMBER HAS COMPLETED AT LEAST EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBERS SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: AND PROVIDED FURTHER, THAT REGARDLESS OF THE PERCENTAGE OF DISABILITY DETERMINED TO HAVE BEEN INCURRED, IF CONDITION (4) ABOVE IS NOT MET BECAUSE THE MEMBER CONCERNED HAS COMPLETED LESS THAN EIGHT YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE AT THE TIME HE WOULD OTHERWISE HAVE BEEN RETIRED PURSUANT TO THIS SUBSECTION, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE. ITALICS SUPPLIED.)

IT IS EVIDENT FROM THE TERMS OF SECTIONS 402 (A) AND 402 (B) THAT THE "DETERMINATION" CONTEMPLATED CAN BE BASED ONLY ON AN EXISTING PHYSICAL DISABILITY, WHETHER OF A PERMANENT OR TEMPORARY NATURE, WHICH AT THAT TIME RENDERS THE MEMBER UNFIT TO PERFORM HIS MILITARY DUTIES. IN ADDITION THE FURTHER SPECIFIC REQUIREMENT OF THESE STATUTORY PROVISIONS IS THAT SUCH PHYSICAL DISABILITY SHALL HAVE BEEN "INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY.' THESE SEPARATE FACTORS ARE RECOGNIZED IN THE STATEMENT OF GENERAL POLICY CONTAINED IN SECTION II, DEPARTMENT OF DEFENSE DIRECTIVE NO. 1332.11, DATED JANUARY 6, 1954 (RELATING TO ESTABLISHMENT IN THE MILITARY DEPARTMENTS OF A UNIFORM INTERPRETATION OF THE LANGUAGE "PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY"), WHICH STATES THAT--- " THE FACT THAT A MEMBER IS DETERMINED TO BE UNFIT FOR DUTY WHILE ON ACTIVE DUTY IS NOT SUFFICIENT TO ENTITLE HIM TO DISABILITY RETIREMENT OR SEVERANCE PAY. THERE MUST BE A MEDICAL CONCLUSION THAT THIS UNFITNESS IS DUE TO A DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY.'

THE DATE ON WHICH A MEMBER OF THE UNIFORMED SERVICES BECOMES PHYSICALLY UNFIT TO PERFORM HIS MILITARY DUTIES IS OFTEN NOT THE SAME DATE THAT HIS DISABILITY ACTUALLY WAS INCURRED. PROBABLY IN THE MAJORITY OF CASES THE CONTRARY IS TRUE, THAT IS, THE DISEASE OR INJURY WHICH RESULTS IN PHYSICAL UNFITNESS IS NOT IMMEDIATELY INCAPACITATING. THE DATE OF THE SECRETARY'S DETERMINATION OF INCAPACITY WOULD ALWAYS BE LATER (OFTEN MUCH LATER) THAN THE DATE THE DISABILITY WAS INCURRED. HENCE, NO PROPER BASIS IS PERCEIVED TO HOLD THAT A PHYSICAL DISABILITY SHOULD NOT BE DEEMED TO HAVE BEEN "INCURRED" UNTIL THE DATE THAT THE MEMBER IS DETERMINED TO HAVE BECOME UNFIT FOR THE PERFORMANCE OF HIS MILITARY DUTIES. IN THE ABSENCE OF A CONTROLLING DEFINITION IN THE STATUTE, OR OTHER STATUTORY LANGUAGE REQUIRING A DIFFERENT CONCLUSION, IT IS OUR VIEW THAT THE TERM "INCURRED," AS USED IN SUBSECTIONS (A) AND (B) OF SECTION 402, PROPERLY IS TO BE CONSIDERED AS REFERRING TO THE DATE OF ONSET OF THE DISEASE OR OCCURRENCE OF THE INJURY. THEREFORE, THE DATE WHEN A DISEASE OR INJURY IS CONTRACTED OR SUFFERED, AS DISTINGUISHED FROM A LATER DATE WHEN IT IS DETERMINED THAT, BY REASON OF SUCH DISEASE OR INJURY, THE MEMBER HAS BECOME UNFIT TO PERFORM HIS MILITARY DUTIES, IS TO BE CONSIDERED AS THE DATE SUCH PHYSICAL DISABILITY WAS "INCURRED" WITHIN THE PURVIEW OF SUBSECTIONS (A) AND (B) OF SECTION 402. COMPARE 33 COMP. GEN. 339, 342. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

QUESTION 2 RAISES THE ISSUE WHETHER A PHYSICAL DISABILITY WHICH IS DETERMINED TO HAVE BEEN ,INCURRED" PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, BY A MEMBER OF THE UNIFORMED SERVICES WHILE SUCH MEMBER WAS SERVING IN A STATUS ENTITLING HIM TO RECEIVE "BASE AND LONGEVITY PAY," I.E., ACTIVE-DUTY PAY UNDER THE STATUTORY PAY PROVISIONS THEN IN EFFECT, COMES WITHIN THE SCOPE AND INTENT OF THE PHRASE "INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY" AS USED IN SUBSECTIONS (A) AND (B) OF SECTION 402. A STRICTLY LITERAL INTERPRETATION OF THE TERM "BASIC PAY" AS USED IN THE QUOTED PHRASE WOULD PLACE BEYOND REACH OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, ALL THOSE MEMBERS OF THE UNIFORMED SERVICES WHO HAD "INCURRED" THEIR PHYSICAL DISABILITY ANY TIME PRIOR TO OCTOBER 1, 1949.

THAT THIS DRASTIC RESULT WAS NOT INTENDED, HOWEVER, IS CLEARLY SHOWN BY SECTION 415 OF THE ACT. THAT SECTION, OR ORIGINALLY ENACTED, 63 STAT. 825, 37 U.S.C. 285, PROVIDED THAT:

SEC. 415. ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS A HOSPITAL PATIENT AND WHO WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ACT IS RETIRED AS A RESULT OF A PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS HOSPITALIZED AS OF THE DATE OF ENACTMENT OF THIS ACT, MAY ELECT TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON THE DATE PRECEDING THE DATE OF ENACTMENT OF THIS ACT.

SUCH A PERSON WAS TO BE RETIRED FOR PHYSICAL DISABILITY AFTER THE EFFECTIVE DATE OF THE ACT FOR A DISABILITY "INCURRED" PRIOR TO THE EFFECTIVE DATE OF THE ACT. IN THAT SITUATION HE COULD "ELECT" TO RECEIVE RETIREMENT BENEFITS UNDER PRIOR LAWS. SINCE HE COULD "ELECT," HE MUST HAVE HAD AN ALTERNATIVE AND THE ONLY ALTERNATIVE WOULD BE TO RECEIVE PHYSICAL DISABILITY RETIREMENT BENEFITS UNDER THE NEW LAW, TITLE IV OF THE SAME ACT. HENCE, CONGRESS RECOGNIZED AND MUST HAVE INTENDED THAT A MEMBER WHO "INCURRED" A DISABILITY BEFORE OCTOBER 1, 1949, COULD LATER BE RETIRE UNDER TITLE IV, OTHER CONDITIONS BEING MET, NOTWITHSTANDING THAT HIS ACTIVE-DUTY PAY (BASE AND LONGEVITY PAY) HAD NOT YET BEEN DENOMINATED "BASIC PAY" WHEN THE DISABILITY WAS INCURRED. OTHERWISE A MEMBER COMING UNDER SECTION 415 WOULD HAVE NOTHING TO "ELECT.' IT IS CONCLUDED, THEREFORE, THAT THE TERM ,BASIC PAY" AS USED IN SUBSECTIONS (A) AND (B) OF SECTION 402, ALSO REFERS TO AND INCLUDES THE BASE AND LONGEVITY PAY TO WHICH MEMBERS OF THE UNIFORMED SERVICES WERE ENTITLED WHILE SERVING ON ACTIVE DUTY PRIOR TO OCTOBER 1, 1949. QUESTION 2 IS ANSWERED ACCORDINGLY.

AS INDICATED ABOVE, THE BENEFITS OF SUBSECTIONS (A) AND (B) OF SECTION 402 DEPEND PRIMARILY UPON A "DETERMINATION" BY THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED THAT A MEMBER OF THAT SERVICE "ENTITLED TO RECEIVE BASIC PAY" IS UNFIT TO PERFORM HIS MILITARY DUTIES BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY. THERE IS NO REQUIREMENT, EXPRESS OR IMPLIED, THAT SUCH BENEFITS SHALL ACCRUE ONLY IN THE CASES OF THOSE MEMBERS OF THE UNIFORMED SERVICES HAVING AN UNINTERRUPTED PERIOD OF MILITARY SERVICE BETWEEN THE DATE THE DISABILITY IS ,INCURRED" AND THE DATE THE SECRETARY DETERMINES THAT THE MEMBER IS UNFIT TO PERFORM HIS MILITARY DUTIES. THE REASONABLE INTENDMENT WOULD APPEAR TO BE THAT THE PRESCRIBED BENEFITS SHOULD ACCRUE TO INDIVIDUALS WHOSE STATUS OTHERWISE BRINGS THEM WITHIN THE SCOPE OF SUBSECTION (A) OR (B), WITHOUT REGARD TO ANY INTERVENING BREAKS IN THEIR ACTIVE SERVICE WITH PAY. THE INTRODUCTION OF A REQUIREMENT OF UNINTERRUPTED MILITARY SERVICE WOULD IMPOSE A CONDITION NOT FOUND IN THE LANGUAGE OR APPEARING TO BE WITHIN THE INTENT OF THE STATUTE. QUESTION 3 IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE. THERE APPEARS TO BE NO AUTHORITY OF LAW, HOWEVER, TO RETURN A MEMBER OF THE UNIFORMED SERVICES TO A "BASIC PAY" STATUS SOLELY OR PRIMARILY FOR THE PURPOSE, THROUGH HOSPITALIZATION OR OTHERWISE, OF ESTABLISHING A BASIS TO GRANT HIM RETIREMENT BENEFITS PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. COMPARE 26 COMP. GEN. 107; 27 COMP. GEN. 490; 29 COMP. GEN. 535, 537. ALSO, SEE THE ANSWER TO QUESTION (C) IN DECISION OF FEBRUARY 8, 1954, 33 COMP. GEN. 339, 344. QUESTION 4 REQUIRES NO ANSWER IN VIEW OF THE AFFIRMATIVE ANSWER TO QUESTION 3.