B-160365, B-160609, FEBRUARY 23, 1967, 46 COMP. GEN. 671

B-160365, B-160609, FEBRUARY 23, 1967, 46 COMP. GEN. 671

MILITARY PERSONNEL - RETIREMENT - REVOCATION - NEW EVIDENCE THE USE OF THE "SUBSTANTIAL NEW EVIDENCE" RULE WHICH IS AVAILABLE TO REVOKE THE RETIREMENT ORDERS OF THE MEMBERS OF THE UNIFORMED SERVICES IN THE ABSENCE OF FRAUD, MISTAKE OF LAW, OR MATHEMATICAL MISCALCULATION SHOULD BE CONFINED TO ACTIONS TAKEN EITHER CONTEMPORANEOUSLY OR A SHORT PERIOD OF TIME FOLLOWING THE EFFECTIVE DATE OF A MEMBER'S RETIREMENT, THE CORRECTION OF MILITARY RECORDS REMEDY IN 10 U.S.C. 1552 BEING MORE APPROPRIATE TO REMOVE AN INJUSTICE THAN EXTENDING THE SUBSTANTIAL NEW EVIDENCE RULE. THEREFORE, THE REVOCATION OF ORDERS RELEASING MEMBERS FROM ACTIVE DUTY AND PLACING THEM ON THE PERMANENT RETIRED LIST MAY NOT BE APPROVED EITHER WHERE KNOWLEDGE OF A MEMBER'S HOSPITALIZATION WAS KNOWN PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT ORDERS BUT ACTION WAS DELAYED FOR 15 MONTHS, OR WHERE HOSPITALIZATION INFORMATION WAS NOT FURNISHED UNTIL 6 MONTHS AFTER THE RETIREMENT OF A MEMBER AND WITHIN 1 MONTH OF HIS DEATH.

TO THE SECRETARY OF THE NAVY, FEBRUARY 23, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 23, 1966, AND ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), REQUESTING AN ADVANCE DECISION CONCERNING THE RETIREMENT STATUS OF MASTER SERGEANT WILLIAM D. BIGGS, RA 6661859, AND SPECIALIST WALTER J. JONES, RA 15013010, IN THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES. THE REQUEST WAS ASSIGNED SUBMISSION NUMBER SS-A 936 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT BIGGS WAS FOUND UNFIT FOR ACTIVE DUTY BY REASON OF ARTERIOSCLEROTIC HEART DISEASE RATED AS A 40 PERCENTUM DISABILITY AND RECOMMENDED FOR PERMANENT RETIREMENT BY A PHYSICAL EVALUATION BOARD CONVENED SEPTEMBER 2, 1965, AT WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C. IT APPEARS THAT SHORTLY THEREAFTER HE PROCEEDED TO HIS HOME, JACKSONVILLE, FLORIDA, ON A PERMANENT CHANGE OF STATION. BY DEPARTMENT OF THE ARMY SPECIAL ORDERS DATED OCTOBER 6, 1965, IT WAS DIRECTED THAT HE BE RELIEVED FROM ACTIVE DUTY EFFECTIVE OCTOBER 11, 1965, AND PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE OCTOBER 12, 1965, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1201.

IT IS STATED THAT AFTER THE EFFECTIVE DATE OF SERGEANT BIGGS RETIREMENT, INFORMATION WAS RECEIVED IN THE ADJUTANT GENERAL'S OFFICE (DATE NOT SHOWN) DISCLOSING THAT HE HAD BEEN HOSPITALIZED IN THE JACKSONVILLE NAVAL HOSPITAL ON OCTOBER 7, 1965, AS A RESULT OF A CEREBRAL VASCULAR ACCIDENT (STROKE) AND THAT THE HEART CONDITION UNDERLYING THE LATTER INCIDENT WAS PRESENT PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT. IT IS FURTHER STATED THAT IF THE ADJUTANT GENERAL'S OFFICE HAD RECEIVED THIS INFORMATION PRIOR TO 2400 HOURS, OCTOBER 11, 1965, ACTION WOULD HAVE BEEN TAKEN TO REVOKE THE RETIREMENT ORDERS OF OCTOBER 6, 1965, AND THE ENLISTED MEMBER WOULD HAVE BEEN ENTITLED TO APPEAR BEFORE ANOTHER PHYSICAL EVALUATION BOARD TO DETERMINE HIS TRUE PHYSICAL CONDITION FOR RETIREMENT PURPOSES. IT IS INDICATED THAT A REEVALUATION PROBABLY WOULD RESULT IN SERGEANT BIGGS RECEIVING A DISABILITY RATING HIGHER THAN 40 PERCENTUM AND POSSIBLY PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST.

SPECIALIST JONES WAS STATIONED AT FORT BENNING, GEORGIA, WHEN HE SUBMITTED AN APPLICATION DATED APRIL 30, 1965, REQUESTING RETIREMENT BY REASON OF LENGTH OF SERVICE EFFECTIVE JULY 1, 1965, UNDER AUTHORITY OF 10 U.S.C. 3914. ALTHOUGH THE PHYSICAL EXAMINATION GIVEN HIM IN CONNECTION WITH HIS PROSPECTIVE RELEASE FROM ACTIVE DUTY INDICATED NUTRITIONAL CIRRHOSIS AND HYPERTENSIVE VASCULAR DISEASE, IT WAS DETERMINED UPON REVIEW BY THE SURGEON GENERAL THAT HE WAS PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY AND RETIREMENT. ON MAY 21, 1965, DEPARTMENT OF THE ARMY SPECIAL ORDERS WERE ISSUED DIRECTING HIS RELIEF FROM ACTIVE DUTY ON JUNE 30, 1965, AND PLACEMENT ON THE RETIRED LIST EFFECTIVE JULY 1, 1965.

BY MESSAGE DATED OCTOBER 25, 1965, SPECIALIST JONES' COMMANDING OFFICER REQUESTED THE ADJUTANT GENERAL'S OFFICE TO REVOKE THE RETIREMENT ORDERS OF MAY 21, 1965, FOR THE REASON THAT THE ENLISTED MEMBER HAD BEEN HOSPITALIZED SINCE MAY 1, 1965, IN MARTIN ARMY HOSPITAL, FORT BENNING, GEORGIA, DUE TO A HEART CONDITION; THAT HE HAD BEEN SERIOUSLY ILL SINCE MAY 19, 1965; AND THAT ON THE EFFECTIVE DATE OF HIS RETIREMENT, JULY 1, 1965, HE WAS PHYSICALLY DISQUALIFIED FOR SEPARATION FROM THE SERVICE. NOVEMBER 22, 1965, INFORMATION WAS RECEIVED IN THE ADJUTANT GENERAL'S OFFICE THAT SPECIALIST JONES HAD DIED ON NOVEMBER 20, 1965.

IT IS STATED THAT IF THE ABOVE INFORMATION HAD BEEN RECEIVED IN THE ADJUTANT GENERAL'S OFFICE BEFORE JULY 1, 1965, ACTION WOULD HAVE BEEN TAKEN TO REVOKE THE RETIREMENT ORDERS; THAT THE SURGEON GENERAL'S OFFICE IS OF THE OPINION THAT SPECIALIST JONES WAS PHYSICALLY UNFIT FOR MILITARY SERVICE; AND, THEREFORE, THAT HE WOULD HAVE BEEN RETAINED ON ACTIVE DUTY AFTER JUNE 30, 1965, AND PROCESSED FOR PHYSICAL DISABILITY RETIREMENT. IS INDICATED THAT IF, IN THE CIRCUMSTANCES ABOVE STATED, IT IS PROPER TO REVOKE SPECIALIST JONES' RETIREMENT ORDERS OF MAY 21, 1965, THEN HIS HEIRS OR LEGAL REPRESENTATIVES WILL BECOME ELIGIBLE TO SUBMIT CLAIM FOR ALL UNPAID ACTIVE DUTY PAY AND ALLOWANCES PLUS THE AMOUNT OF DEATH GRATUITY AS MAY BE PAYABLE IN THE CASE.

AS INDICATED IN THE LETTER OF DECEMBER 23, 1966, THE GENERAL RULE IS THAT WHEN A MEMBER OF THE UNIFORMED SERVICES IS RETIRED AND SUCH RETIREMENT HAS BECOME LEGALLY ACCOMPLISHED THE RETIREMENT ORDERS CANNOT BE REVOKED IN THE ABSENCE OF (1) FRAUD, (2) SUBSTANTIAL NEW EVIDENCE, (3) MISTAKE OF LAW OR (4) MATHEMATICAL MISCALCULATION. THE FACTS OF RECORD CONCERNING SERGEANT BIGGS AND SPECIALIST JONES DO NOT DISCLOSE ANY FRAUD, MISTAKE OF LAW OR MATHEMATICAL MISCALCULATION AND HENCE, THE SOLE BASIS, IF ANY, TO REVOKE THEIR RESPECTIVE RETIREMENT ORDERS MUST LIE IN THE SUBSTANTIAL NEW EVIDENCE RULE.

THE SUBSTANTIAL NEW EVIDENCE RULE WAS THE BASIS FOR THE CONCLUSIONS REACHED IN DECISION OF JANUARY 17, 1961, 40 COMP. GEN. 419. THE CASE OF SERGEANT FIRST CLASS BARNEY KRIEGER CONSIDERED IN THAT DECISION (SEE PAGES 424 AND 425), AROSE UNDER DEPARTMENT OF THE ARMY SPECIAL ORDERS ISSUED JANUARY 10, 1956, DIRECTING THAT HE BE PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JANUARY 31, 1956, ON THE FINDING OF A PHYSICAL EVALUATION BOARD THAT HE WAS UNFIT FOR DUTY BY REASON OF A DISABILITY RATED AT 50 PERCENTUM. THE ADJUTANT GENERAL'S OFFICE WAS ADVISED THAT THE RETIREMENT ORDERS COULD NOT BE EFFECTED BECAUSE SERGEANT KRIEGER HAD BEEN HOSPITALIZED IN THE ARMY HOSPITAL, FORT DEVENS, MASSACHUSETTS, ON JANUARY 26, 1956, AND TRANSFERRED ON JANUARY 27, 1956, TO VALLEY FORGE ARMY HOSPITAL, PENNSYLVANIA, FOR FURTHER TREATMENT. THE RETIREMENT ORDERS OF JANUARY 10, 1956, WERE REVOKED ON FEBRUARY 1, 1956. THEREAFTER DEPARTMENT OF THE ARMY SPECIAL ORDERS DATED MAY 10, 1956, DIRECTED THAT HE BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 31, 1956.

IN EVALUATING THE PROBLEM AS TO WHICH OF THE TWO RETIREMENT ORDERS (JANUARY 10, 1956, OR MAY 10, 1956) WAS LEGALLY EFFECTIVE IN THAT CASE IT WAS STATED:

THE QUESTION AS TO WHETHER A MEMBER'S NAME SHOULD BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR HE SHOULD BE PERMANENTLY RETIRED UNDER THE CITED PROVISIONS OF THE 1949 ACT, ARE REQUIRED TO BE BASED ON HIS PHYSICAL CONDITION AT THAT TIME. IT APPEARS THAT THE MEMBER'S (SERGEANT KRIEGER-S) PHYSICAL CONDITION, WHICH HAD BEEN CONSIDERED BY THE PHYSICAL EVALUATION BOARD, CHANGED TO SUCH AN EXTENT (AN ULCER CONDITION) AS TO REQUIRE HIS HOSPITALIZATION AND TRANSFER TO ANOTHER HOSPITAL PRIOR TO THE TIME HIS RETIREMENT WAS TO HAVE BECOME EFFECTIVE UNDER THE RETIREMENT ORDERS OF JANUARY 10, 1956. SUCH CHANGE AND THE NEED FOR FURTHER INSTITUTIONAL CARE PRIOR TO THE CONTEMPLATED RETIREMENT DATE COMPRISED SUBSTANTIAL NEW EVIDENCE SUFFICIENT TO SUPPORT A REVOCATION OF THE FIRST RETIREMENT ORDER. IN THESE CIRCUMSTANCES THE ORDERS OF MAY 10, 1956, ARE THE ONLY ORDERS WHICH ARE FOR CONSIDERATION IN THIS CASE AND THEY EFFECTED THE PLACEMENT OF KRIEGER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST ON MAY 31, 1956. HIS RETIRED PAY WAS PROPERLY PAID ON THAT BASIS COMMENCING JUNE 1, 1956.

SERGEANT BIGGS LIKE SERGEANT KRIEGER WAS UNDER ORDERS PLACING HIM ON THE PERMANENT DISABILITY RETIRED LIST BUT BEFORE THE EFFECTIVE DATE OF THOSE ORDERS HE WAS HOSPITALIZED IN A GOVERNMENT HOSPITAL WHERE HE REMAINED UNDER TREATMENT ON AND SUBSEQUENT TO THE EFFECTIVE DATE OF HIS RETIREMENT. IF NOTICE OF THE CHANGE IN SERGEANT BIGGS' PHYSICAL CONDITION HAD BEEN RECEIVED IN THE ADJUTANT GENERAL'S OFFICE PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT, THE RETIREMENT ORDERS WOULD HAVE BEEN REVOKED AS WAS DONE IN SERGEANT KRIEGER'S CASE.

THE PERTINENT FACTS DISCLOSED IN THE CASES OF MAJOR FOWLER AND MASTER SERGEANT HUMPHRIES, ALSO CONSIDERED IN THE DECISION OF JANUARY 17, 1961, ESTABLISH THAT THEY WERE UNDER TREATMENT IN ARMY HOSPITALS ON WHAT WAS TO HAVE BEEN THE EFFECTIVE DATE OF THEIR NONDISABILITY RETIREMENT. UPON RECEIPT IN THE ADJUTANT GENERAL'S OFFICE OF INFORMATION DISCLOSING THEY HAD BEEN HOSPITALIZED THE INTIAL RETIREMENT ORDERS WERE PROMPTLY REVOKED IN EACH CASE AND SHORTLY THEREAFTER BOTH MEMBERS WERE RETIRED FOR PHYSICAL DISABILITY. TO THE EXTENT THAT SPECIALIST JONES WAS UNDER ORDERS FOR RETIREMENT FOR LENGTH OF SERVICE AND THAT HE WAS UNDERGOING TREATMENT IN AN ARMY HOSPITAL ON THE DATE HE WAS RETIRED, THE FACTS APPROXIMATE THOSE IN THE FOWLER AND HUMPHRIES CASES.

IT WILL BE NOTED THAT IN THE KRIEGER CASE THE INITIAL ORDERS DIRECTING HIS RETIREMENT FOR PHYSICAL DISABILITY EFFECTIVE JANUARY 31, 1956, WERE REVOKED ON FEBRUARY 1, 1956; IN MAJOR FOWLER'S CASE RETIREMENT FOR LENGTH OF SERVICE WAS SCHEDULED FOR MARCH 31, 1955, AND THE ORDERS WERE REVOKED APRIL 4, 1955; AND IN THE HUMPHRIES CASE THE NONDISABILITY RETIREMENT ORDERS EFFECTIVE JUNE 1, 1949, WERE REVOKED ON JUNE 13, 1949. THUS, IN EACH OF THESE THREE CASES REVOCATION ACTION WAS TAKEN BY THE ADJUTANT GENERAL'S OFFICE FOLLOWING RECEIPT OF THE INFORMATION WHICH COMPRISED SUBSTANTIAL NEW EVIDENCE, AT A TIME WHICH WAS REASONABLY CONTEMPORANEOUS WITH THE EFFECTIVE DATE OF THE RETIREMENT ORDERS.

PARAGRAPH 15, ARMY REGULATIONS 635-230, AUGUST 19, 1960, RELATING TO THE AMENDMENT OR REVOCATION OF RETIREMENT ORDERS (IN LENGTH OF SERVICE RETIREMENT CASES) CLEARLY REFLECTS THE GENERAL RULE THAT ON AND AFTER ITS EFFECTIVE DATE, A RETIREMENT ORDER MAY NOT BE REVOKED. THOSE REGULATIONS INDICATE THAT PROMPT NOTIFICATION TO THE ADJUTANT GENERAL'S OFFICE OF ANY CHANGE IN STATUS OR IN THE MEDICAL CONDITION OF THE INDIVIDUAL CONCERNED SHOULD BE MADE SO THAT REVOCATION OF THE RETIREMENT ORDER, IF THAT STEP IS DEEMED PROPER UNDER THE CHANGED CONDITIONS, CAN BE ACCOMPLISHED BEFORE THE RETIREMENT HAS BECOME EFFECTIVE. THE INFERENCE RAISED IN THE ADMINISTRATIVE REGULATIONS IS THAT UPON RECEIPT OF SUCH INFORMATION IN THE ADJUTANT GENERAL'S OFFICE THE MATTER WILL RECEIVE IMMEDIATE CONSIDERATION AND ATTENTION.

IT IS OUR VIEW THAT THE SUBSTANTIAL NEW EVIDENCE RULE SHOULD BE CONFINED WITHIN RATHER NARROW LIMITS SINCE AN EFFECTIVE ADMINISTRATIVE REMEDY IS READILY AVAILABLE IN ALL SUCH CASES UNDER 10 U.S.C. 1552 RELATING TO THE CORRECTION OF MILITARY RECORDS. PROMPT ADMINISTRATIVE ACTION TO REVOKE OR MODIFY THE RETIREMENT ORDERS MUST BE TAKEN BY THE ADJUTANT GENERAL'S OFFICE EITHER CONTEMPORANEOUSLY OR WITHIN A SHORT PERIOD OF TIME FOLLOWING THE EFFECTIVE DATE OF RETIREMENT IN ORDER TO ESTABLISH A PROPER BASIS FOR APPLICATION OF THE SUBSTANTIAL NEW EVIDENCE RULE.

IT APPEARS THAT SPECIALIST JONES WAS HOSPITALIZED WITH THE ILLNESS WHICH RESULTED IN HIS DEATH BEFORE HIS RETIREMENT ORDERS WERE ISSUED. YET INFORAMTION CONCERNING SUCH HOSPITALIZATION WAS NOT FURNISHED THE ADJUTANT GENERAL'S OFFICE UNTIL ALMOST 6 MONTHS LATER AND WITHIN 1 MONTH OF JONES' DEATH. IT IS NOT KNOWN EXACTLY WHAT AND WHEN ADDITIONAL ACTION WOULD HAVE BEEN TAKEN BEFORE HIS DEATH IF HIS RETIREMENT ORDERS HAD BEEN REVOKED PRIOR TO THEIR EFFECTIVE DATE. THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS IS GIVEN AUTHORITY TO CHANGE ARMY RECORDS WHEN SUCH ACTION IS DEEMED NECESSARY TO REMOVE AN INJUSTICE AND IT IS BELIEVED THAT THIS MATTER WOULD BE HANDLED MORE PROPERLY BY A PETITION TO THE BOARD, RATHER THAN BY EXTENDING THE SUBSTANTIAL NEW EVIDENCE RULE TO COVER SUCH A CASE AS THIS.

WHILE THE FACTS IN SERGEANT BIGGS' CASE MAY HAVE BEEN APPROPRIATE FOR THE APPLICATION OF THE NEW EVIDENCE RULE, NO ACTION WAS PROMPTLY TAKEN TO REVOKE OR AMEND HIS RETIREMENT ORDERS OF OCTOBER 6, 1965, AND MORE THAN 15 MONTHS HAVE PASSED SINCE THEY BECAME EFFECTIVE. THE NEW EVIDENCE RULE IS NOT FOR APPLICATION IN SUCH CIRCUMSTANCES. IF SERGEANT BIGGS FEELS THAT HIS RETIREMENT ORDERS SHOULD BE MODIFIED HE MAY PETITION THE CORRECTION BOARD TO THAT EFFECT. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.