B-96905, FEBRUARY 27, 1953, 32 COMP. GEN. 372

B-96905, FEBRUARY 27, 1953, 32 COMP. GEN. 372

PAY - RETIRED - DISABILITY RETIREMENT PAY - CORRECTION OF RECORD SHOWING DISABILITY AT TIME OF RELEASE FROM ACTIVE DUTY A FORMER MEMBER OF THE MARINE CORPS RESERVE WHOSE NAVAL RECORD HAS BEEN CORRECTED BY A BOARD OF CORRECTION OF NAVAL RECORDS, PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW THAT HE WAS INCAPACITATED FOR ACTIVE DUTY AT TIME OF RELEASE FROM ACTIVE DUTY DUE TO A PHYSICAL DISABILITY SUFFERED WHILE ON ACTIVE DUTY UNDER ORDERS CONTEMPLATING NAVAL SERVICE IN EXCESS OF THIRTY DAYS AND THAT SUCH INCAPACITY IS PERMANENT, IS NOT ENTITLED TO RETIRED PAY RETROACTIVE TO DATE OF SUCH RELEASE.

ACTING COMPTROLLER GENERAL YATES TO MAJOR J. W. ELDRIDGE, U.S. MARINE CORPS, FEBRUARY 27, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1953, WHEREIN YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN THE AMOUNT OF $2,370.98, STATED IN FAVOR OF ALAN B. HOBBES, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE, FOR THE PERIOD JULY 9 TO 31, 1946, AND RETIREMENT PAY AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE, FOR THE PERIOD AUGUST 1, 1946, TO JUNE 30, 1947.

IN DECISION OF NOVEMBER 19, 1952, B-96905 (32 COMP. GEN. 242), THERE WAS CONSIDERED THE RIGHT OF MR. HOBBES TO THE ACTIVE DUTY PAY AND RETIREMENT PAY IN QUESTION BASED ON A CORRECTION MADE IN HIS NAVAL RECORD TO SHOW THAT HE WAS RETAINED ON ACTIVE DUTY UNTIL JULY 31, 1946- - AND THAT HE WAS RETIRED AS OF AUGUST 1, 1946, SUCH CORRECTION HAVING BEEN EFFECTED UNDER THE AUTHORITY GRANTED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, SUBSECTION (B) OF WHICH PROVIDES AS FOLLOWS:

(B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS THE RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION: PROVIDED, THAT IN THE CASE OF DECEASED PERSONS WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, PAYMENTS OTHERWISE DUE HEREUNDER SHALL BE MADE TO THE DECEDENT'S WIDOW, WIDOWER, LEGAL HEIRS, OR BENEFICIARIES, IN THE ORDER OF PRECEDENCE OR SUCCESSION AS MAY BE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED AND WHEN NOT OTHERWISE SO PROVIDED, IN THE ORDER OF PRECEDENCE AS SET FORTH IN THE ACT OF FEBRUARY 25, 1946 (60 STAT. 30), OR AS MAY BE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED.

IN REACHING THE CONCLUSION THAT SUCH CORRECTION OF MR. HOBBES' NAVAL RECORD DID NOT GIVE HIM ANY RIGHT TO RETIREMENT PAY (THE RIGHT TO THE ACTIVE DUTY PAY BASED ON THE CORRECTION OF MR. HOBBES' NAVAL RECORD WAS NOT DENIED) IT WAS POINTED OUT THAT AT THE TIME OF MR. HOBBES' RELEASE FROM ACTIVE DUTY THERE WAS NO STATUTORY PROVISION FOR THE RETIREMENT OF OFFICERS OF THE MARINE CORP RESERVE FOR PHYSICAL DISABILITY NOR WAS THERE ANY STATUTE ATTACHING A RIGHT OF RETIRED PAY TO A RETIRED STATUS FOR SUCH OFFICERS. UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, 34 U.S.C. 855C-1, THE RIGHT OF SUCH OFFICERS TO RETIREMENT PAY FOR PHYSICAL DISABILITY WAS DEPENDENT ON THEIR ACTUALLY HAVING BEEN FOUND TO HAVE BEEN INCAPACITATED FOR ACTIVE DUTY AS THE RESULT OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY UNDER CERTAIN CONDITIONS STIPULATED IN THE STATUTE. IF THEY WERE FOUND TO BE SO INCAPACITATED THE RIGHT TO RETIRED PAY ATTACHED WITHOUT ANY NECESSITY FOR RETIREMENT.

IT NOW HAS BEEN PRESENTED THAT MR. HOBBES' NAVAL RECORD HAS BEEN CORRECTED UNDER THE AUTHORITY GRANTED BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, SUPRA, TO SHOW THAT HE WAS RETAINED ON ACTIVE DUTY UNTIL JULY 31, 1946, AND THAT HE ACTUALLY WAS INCAPACITATED FOR ACTIVE SERVICE ON JULY 31, 1946, THUS IN EFFECT REVERSING THE CONTRARY FINDINGS OF THE NAVAL RETIRING BOARD, MADE OVER 6 YEARS BEFORE, TO THE EFFECT THAT SUCH DISABILITY AS MR. HOBBES SUFFERED WAS NOT, AT THAT TIME SUFFICIENT TO INCAPACITATE HIM FOR ACTIVE SERVICE. THE CORRECTED RECORD ALSO SHOWS THAT HIS INCAPACITY IS PERMANENT, IS THE RESULT OF AN INCIDENT OF SERVICE, AND WAS SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS. ON THE BASIS OF SUCH CHANGE IN THE RECORD AND THE FACTS AS NOW SHOWN BY THE CORRECTED RECORD, MR. HOBBES APPEARS TO BE ENTITLED, UNDER THE LAW, TO BOTH THE ACTIVE DUTY PAY AND THE RETIREMENT PAY PROPOSED TO BE PAID HIM AND PAYMENT ON THE VOUCHER TRANSMITTED WITH YOUR LETTER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED.