B-52326, MARCH 22, 1946, 25 COMP. GEN. 663

B-52326, MARCH 22, 1946, 25 COMP. GEN. 663

RETIREMENT - ARMY NURSE CORPS MEMBERS RETIRED FOR PHYSICAL DISABILITY - EFFECTIVE DATE THE RETIREMENT OF A MEMBER OF THE ARMY NURSE CORPS FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, PURSUANT TO THE ACT OF JUNE 20, 1930, AS AMENDED, AND THE ACT OF JUNE 22, 1944, MAY NOT BE MADE EFFECTIVE FOR RETIRED PAY PURPOSES, PRIOR TO THE DATE ON WHICH THE SECRETARY OF WAR APPROVED THE RETIRING BOARD'S FINDINGS.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, MARCH 22, 1946:

BY ENDORSEMENT OF AUGUST 31, 1945, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS RECEIVED YOUR LETTER OF AUGUST 1, 1945, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED HEREWITH, IN FAVOR OF LIEUTENANT MONA MCDONOUGH, A.N.C., RETIRED, COVERING RETIRED PAY FOR THE PERIOD NOVEMBER 29, 1944, THROUGH APRIL 29, 1945.

PARAGRAPH 15 OF SPECIAL ORDERS NO. 38, HEADQUARTERS, AAF CONVALESCENT HOSPITAL, FORT GEO. WRIGHT, WASHINGTON, DATED OCTOBER 5, 1944, IS WORDED IN PERTINENT PART AS FOLLOWS:

15. MONA MCDONOUGH

LT. ANC N727261. STA HOSP ALASKAN WG ATC GREAT FALLS MONT, HAVING APPEARED BEFORE AN ARMY RETIRING BD THIS STA AND FOUND INCAPACITATED FOR ACTIVE MIL SV BY REASON OF PHYSICAL DISABILITY, WP TO HER HOME ( MINNEAPOLIS MINN) SO AS TO ARRIVE THEREAT NOT LATER THAN 27 NOV 44 ON WHICH DATE OFF WILL REVERT TO AN INACTIVE STATUS. OFF IS GRANTED 48 DAYS TERMINAL LV OF ABSENCE PLUS TRAVEL TIME EFFECTIVE 9 OCT 44. APPOINTMENT IN AUS WILL CONTINUE IN FORCE DURING THE PERIOD OF THE PRESENT EMERGENCY AND FOR SIX MONTHS THEREAFTER UNLESS SOONER TERMINATED DP. TRAVEL BY GOVT AP IS ATZD FROM THIS STA TO GREAT FALLS MONT.

ORDERS OF THE SECRETARY OF WAR DATED APRIL 30, 1945, WERE ADDRESSED TO THE OFFICER AT HER HOME ANNOUNCING HER RETIREMENT FROM ACTIVE SERVICE BECAUSE OF DISABILITY ON NOVEMBER 28, 1944, UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED JUNE 20, 1930, AS AMENDED, AND THE ACT OF CONGRESS APPROVED JUNE 22, 1944. IT HAS BEEN ASCERTAINED INFORMALLY THAT THE REPORT OF THE FINDINGS OF THE RETIRING BOARD WHICH WAS PRESENTED TO THE SECRETARY OF WAR FOR APPROVAL, WAS DATED JANUARY 29, 1945, OR APPROXIMATELY TWO MONTHS AFTER THE ANNOUNCED DATE OF RETIREMENT, AND IT IS UNDERSTOOD THAT THE SECRETARY OF WAR DID NOT APPROVE THE FINDINGS OF THE BOARD UNTIL APRIL 30, 1945.

THE QUESTION PRESENTED IS WHETHER LIEUTENANT MCDONOUGH IS ENTITLED TO RETIRED PAY PRIOR TO THE DATE OF ORDERS OF APRIL 30, 1945, ANNOUNCING HER RETIREMENT, WHICH DATE PRESUMABLY IS THE DATE ON WHICH THE SECRETARY OF WAR APPROVED THE FINDINGS OF THE BOARD OF MEDICAL OFFICERS.

THE ACT OF JUNE 20, 1930, 46 STAT. 790, AS AMENDED BY THE ACT OF OCTOBER 17, 1940, 54 STAT. 1192, PROVIDES:

THAT PURSUANT TO REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AS THE CASE MAY BE, WHEN A MEMBER OF THE ARMY NURSE CORPS OR OF THE NAVY NURSE CORPS SHALL BE FOUND BY A BOARD OF MEDICAL OFFICERS TO HAVE BECOME DISABLED IN LINE OF DUTY FROM PERFORMING THE DUTIES OF A NURSE, AND SUCH FINDINGS ARE APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED, SHE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE NURSE CORPS RETIRED LIST OF THE APPROPRIATE DEPARTMENT IN THE GRADE TO WHICH SHE BELONGED AT THE TIME OF HER RETIREMENT AND WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE SERVICE PAY RECEIVED BY HER AT THE TIME OF HER TRANSFER TO THE RETIRED LIST: PROVIDED, THAT ANY PERSON WHO SERVED AS A MEMBER OF THE ARMY NURSE CORPS OR OF THE NAVY NURSE CORPS DURING THE WORLD WAR AND CONTINUOUSLY THEREAFTER UNTIL MAY 13, 1926, AND WHO WAS, PRIOR TO JUNE 20, 1930, SEPARATED FROM SAID CORPS BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, SHALL, UPON HER APPLICATION THEREFOR, BE ENTITLED TO BE PLACED UPON THE RETIRED LIST OF THE NURSE CORPS OF WHICH SHE WAS A MEMBER, AS PROVIDED IN THIS ACT, HER RETIRED PAY HEREUNDER BECOMING EFFECTIVE ON THE DATE OF RECEIPT BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AS THE CASE MAY BE, OF SUCH APPLICATION OR THE DATE OF ENACTMENT OF THIS AMENDMENT WHICHEVER IS THE LATER.

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR FOR DISPOSITION OF AND ACTION ON PROCEEDINGS UNDER THE ACT OF JUNE 20, 1930, ARE CONTAINED IN PARAGRAPH 20, ARMY REGULATIONS 40-20, DATED APRIL 5, 1943, AS MODIFIED BY CHANGES NOS. 1 THROUGH 8 AND PROVIDE, IN PERTINENT PART, AS FOLLOWS:

20. RETIREMENT.

B. DISABILITY IN LINE OF DUTY.

(5) DISPOSITION OF AND ACTION ON PROCEEDINGS.

(A) TRANSMITTAL.--- 1. THE BOARD WILL FORTHWITH TRANSMIT ITS PROCEEDINGS AND FINDINGS, TOGETHER WITH ALL TESTIMONY TAKEN BY THE BOARD AND ALL RECORDS AND PAPERS VIEWED BY IT IN CONNECTION WITH THE HEARING, WITHOUT RECOMMENDATION, TO THE ADJUTANT GENERAL THROUGH THE SURGEON GENERAL FOR PRESENTATION TO THE SECRETARY OF WAR FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE. HE WILL ALSO, IN CASES IN WHICH THE FINDINGS SHOW THAT THE NURSE PROBABLY WILL PASS FROM THE ACTIVE LIST TO THE RETIRED LIST, INCLUDE A STATEMENT OF THE DESIRE OF THE NURSE AS TO THE PLACE OF EFFECTIVENESS OF HER CHANGE OF STATUS.

C. ORDERS FOR RETIREMENT.--- (1) UPON APPROVAL OF THE APPLICATION OR RECOMMENDATION FOR RETIREMENT UNDER THE PROVISIONS OF A ABOVE AND UPON THE APPROVAL OF THE PROCEEDINGS OF THE RETIRING BOARD FINDING A NURSE PHYSICALLY INCAPACITATED UNDER THE PROVISIONS OF B (1) ABOVE, AN ORDER FOR HER RETIREMENT WILL BE ISSUED BY THE ADJUTANT GENERAL, DIRECTING HER TO PROCEED TO HER HOME AND PLACING HER ON THE NURSE CORPS RETIRED LIST AFTER THE EXPIRATION OF SUCH ACCRUED LEAVE AS MAY BE DUE HER.

THE ACT OF JUNE 22, 1944, 58 STAT. 324, 325, AUTHORIZED, INTER ALIA, THE APPOINTMENT OF MEMBERS OF THE ARMY NURSE CORPS AS OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, 55 STAT. 728, AS AMENDED, IN THE GRADES PRESCRIBED IN THE ACT OF DECEMBER 22, 1942, 56 STAT. 1072, AND PROVIDED:

SEC. 3. IN ADDITION TO MEMBERS OF THE ARMY NURSE CORPS, ANY PERSON APPOINTED AND ASSIGNED AS AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL BE ELIGIBLE TO BE RETIRED UNDER ANY LAW PROVIDING FOR THE RETIREMENT OF MEMBERS OF THE ARMY NURSE CORPS, AND ANY SUCH PERSON, INCLUDING MEMBERS OF THE ARMY NURSE CORPS, WHO, WHILE SERVING UNDER SUCH APPOINTMENT AND ASSIGNMENT, IS SO RETIRED FOR DISABILITY SHALL RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY BASE AND LONGEVITY PAY RECEIVED BY HER WHILE SERVING IN THE HIGHEST GRADE IN WHICH SHE SERVED UNDER ANY SUCH APPOINTMENT AND ASSIGNMENT, AND, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SHALL BE PLACED UPON THE ARMY NURSE CORPS RETIRED LIST IN SUCH HIGHEST GRADE. ANY MEMBER OF THE ARMY NURSE CORPS RETIRED BETWEEN DECEMBER 7, 1941, AND THE DATE OF ENACTMENT OF THIS ACT FOR DISABILITY AND ANY FEMALE DIETITIAN OR PHYSICAL/THERAPY AIDE SO RETIRED BETWEEN JANUARY 12, 1943, AND THE DATE OF ENACTMENT OF THIS ACT SHALL RECEIVE, EFFECTIVE ON THE FIRST DAY OF THE FIRST MONTH NEXT FOLLOWING THE DATE OF ENACTMENT OF THIS ACT, RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE HIGHEST ACTIVE DUTY BASE AND LONGEVITY PAY RECEIVED BY HER WHILE SERVING IN THE ARMY NURSE CORPS OR MEDICAL DEPARTMENT OF THE ARMY, AS THE CASE MAY BE, DURING THE ABOVE-CITED APPLICABLE PERIOD: PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION SHALL OPERATE TO REDUCE THE RETIRED PAY PRESENTLY RECEIVED BY ANY NURSE, FEMALE DIETITIAN, OR PHYSICAL/THERAPY AIDE.

RETIREMENT CONSTITUTES A CHANGE OF STATUS AND EXCEPT IN CASES WHERE SPECIFICALLY AUTHORIZED BY STATUTE, RETIREMENT MAY NOT LAWFULLY BE EFFECTED PRIOR TO THE DATE UPON WHICH THE FINDINGS OF THE RETIRING BOARD ARE APPROVED. CF. 21 OP. ATTY. GEN. 385.

ALTHOUGH THE AUTHORITY TO APPROVE THE FINDINGS OF A BOARD OF MEDICAL OFFICERS UNDER THE ACT OF JUNE 20, 1930, SUPRA, IS VESTED IN THE HEAD OF THE DEPARTMENT CONCERNED, INSTEAD OF IN THE PRESIDENT AS AUTHORIZED UNDER SECTIONS 1250 AND 1251 OF THE REVISED STATUTES ON THE FINDINGS OF A BOARD OF MEDICAL OFFICERS AS PRESCRIBED BY SECTION 1249 OF THE REVISED STATUTES APPLICABLE TO OFFICERS OF THE ARMY GENERALLY, AND AS AUTHORIZED UNDER SECTIONS 1451 TO 1453 OF THE REVISED STATUTES APPLICABLE GENERALLY TO OFFICERS OF THE NAVY, SUCH APPROVAL IS A CONDITION PRECEDENT TO THE RIGHT OF RETIREMENT UNDER SUCH STATUTES AND THE PAY BENEFITS INCIDENT TO RETIREMENT UNDER SUCH STATUTES AND THE PAY BENEFITS INCIDENT TO RETIREMENT IN EITHER CASE MAY NOT LAWFULLY ANTEDATE THE DISCRETIONARY ACTION REQUIRED TO BE TAKEN BY THE APPROVING POWER.

A SOMEWHAT ANALOGOUS SITUATION WAS CONSIDERED BY A FORMER COMPTROLLER OF THE TREASURY, AND IN HIS DECISION DATED DECEMBER 4, 1920, 27 COMP. DEC. 512, IT WAS HELD THAT FOR PURPOSES OF RETIRED PAY, THE RETIREMENT OF AN OFFICER OF THE NAVY RETIRED UNDER SECTION 1453 OF THE REVISED STATUTES BECOMES EFFECTIVE ONLY UPON APPROVAL OF THE FINDINGS OF THE RETIRING BOARD BY THE PRESIDENT. IN THAT DECISION IT WAS STATED:

SECTION 1453, REVISED STATUTES, DOES NOT AUTHORIZE RETIREMENT OF AN OFFICER FOR PHYSICAL DISABILITY UNTIL A RETIRING BOARD HAS FOUND HIM INCAPACITATED FOR ACTIVE SERVICE, AND SUCH FINDING IS APPROVED BY THE PRESIDENT. 18 COMP. DEC., 747. THERE IS NOTHING IN THE ACT TO INDICATE THAT RETIREMENT CAN BE MADE EFFECTIVE PRIOR TO THE DATE ON WHICH THE PRESIDENT APPROVES THE BOARD'S FINDING. THE BOARD'S FINDING PERTAINS TO THE OFFICER'S PHYSICAL CONDITION WHEN EXAMINED, AND THE CAUSE THEREOF. THE PURPOSE OF THE EXAMINATION IS TO DETERMINE THE OFFICER'S FUTURE STATUS, HIS CAPACITY FOR FURTHER SERVICE, AND NOT TO DETERMINE WHAT HIS PAST STATUS SHOULD HAVE BEEN.' SEE, ALSO 27 COMP. DEC. 159 AND 1028.

IT FOLLOWS THAT THE PRINCIPLE APPLICABLE TO RETIREMENT OF OFFICERS OF THE NAVY FOR PHYSICAL DISABILITY ALSO IS APPLICABLE TO THE RETIREMENT OF ARMY NURSES WHEN RETIRED FOR THE SAME REASON. APPLYING THAT PRINCIPLE TO THE CASE IN QUESTION, THE RETIREMENT COULD NOT BECOME EFFECTIVE, OR RETIREMENT BENEFITS ACCRUE, PRIOR TO THE DATE ON WHICH THE SECRETARY OF WAR APPROVED THE RETIRING BOARD'S FINDINGS AND DIRECTED THE OFFICER'S RETIREMENT.

ACCORDINGLY, I HAVE TO ADVISE, ON THE ASSUMPTION THAT THE SECRETARY DID NOT APPROVE THE FINDING OF THE RETIRING BOARD UNTIL APRIL 30, 1945, THAT LIEUTENANT MCDONOUGH'S TRANSFER TO THE RETIRED LIST FOR PURPOSES OF RETIRED PAY WAS NOT EFFECTIVE PRIOR TO THAT DATE.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.