B-106953, OCTOBER 22, 1952, 32 COMP. GEN. 196

B-106953, OCTOBER 22, 1952, 32 COMP. GEN. 196

DISABILITY RETIRED PAY - INCAPACITATING DISABILITY PATENT AT TIME OF APPOINTMENT AS AN OFFICER A MARINE CORPS ENLISTED MAN WHOSE PHYSICAL DISABILITY WAS INCAPACITATING PRIOR TO APPOINTMENT AS AN OFFICER AND WHOSE PHYSICAL FITNESS WAS INCORRECTLY REPORTED FOR SUCH APPOINTMENT IS NOT ENTITLED TO DISABILITY RETIRED PAY AS AN OFFICER UNDER THE RETIREMENT STATUTES.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR C. A. PHILLIPS, U.S. MARINE CORPS, OCTOBER 22, 952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1951, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION RELATIVE TO THE RIGHT OF SECOND LIEUTENANT HARRY PREGERSON, HONORARY RETIRED LIST, MARINE CORPS RESERVE, TO DISABILITY RETIREMENT PAY.

THE FACTS, INSOFAR AS HERE PERTINENT, ARE STATED TO BE AS FOLLOWS:

ON OCTOBER 27, 1944, MR. PREGERSON ENLISTED IN THE MARINE CORPS RESERVE AND WAS ASSIGNED TO EXTENDED ACTIVE DUTY ON THAT SAME DATE. ON MAY 3, 1945, HE WAS WOUNDED IN ACTION AGAINST THE JAPANESE FORCES ON OKINAWA AND, FOLLOWING TREATMENT AT VARIOUS NAVAL MEDICAL FACILITIES, HE ARRIVED WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES WHERE, ON JUNE 22, 1945, HE WAS ADMITTED TO THE NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, WITH THE DIAGNOSIS," DEFORMITY, ACQUIRED, BOTH THIGHS.' ON AUGUST 10, 1945, AN APPOINTMENT AS A SECOND LIEUTENANT IN THE MARINE CORPS RESERVE WAS ISSUED TO MR. PREGERSON. SUCH APPOINTMENT WAS ADDRESSED TO HIM AT THE NAVAL HOSPITAL, SAN DIEGO, AND WAS MADE CONTINGENT UPON HIS BEING FOUND PHYSICALLY QUALIFIED THEREFOR. ON AUGUST 28, 1945, LESS THAN FOUR MONTHS AFTER HE HAD BEEN WOUNDED, A FORMAL REPORT WAS MADE OF HIS PHYSICAL EXAMINATION CONDUCTED AT THE HOSPITAL WHEREIN IT WAS STATED THAT HE WAS FOUND PHYSICALLY QUALIFIED FOR THE APPOINTMENT WITH THE FOLLOWING DEFECTS NOTED:

"/1) DEVIATION, NASAL SEPTUM NO. 508 NCD; (2) ATROPHY, EXTENSOR MUSCLES RIGHT THIGH, LIMITATION OF FLEXION, RIGHT KNEE, NCD NO. 2114.' ACCORDINGLY, HIS COMMISSION WAS DELIVERED TO HIM AND HE ACCEPTED HIS APPOINTMENT ON AUGUST 31, 1945, REPORTING FOR DUTY THEREUNDER TO THE COMMANDING OFFICER, MARINE DETACHMENT, NAVAL HOSPITAL, SAN DIEGO, ON THAT SAME DATE.

WHILE SERVING WITH THE SAID MARINE DETACHMENT, HE AGAIN WAS ADMITTED TO THE HOSPITAL (DATE NOT SHOWN) WITH THE SAME DIAGNOSIS OF "DEFORMITY, ACQUIRED, BOTH LEGS" AND A REPORT OF A MEDICAL SURVEY BOARD DATED JANUARY 7, 1946, WHICH WAS LESS THAN FIVE MONTHS AFTER HE HAD BEEN FOUND PHYSICALLY FIT, INDICATED THAT HE WAS PHYSICALLY DISABLED; THAT THE DISABILITY WAS INCURRED IN LINE OF DUTY, AND THAT THE PROBABLE DURATION THEREOF WAS PERMANENT. THE BOARD RECOMMENDED THAT HE BE PLACED ON LIMITED DUTY. ON FEBRUARY 14, 1946, HE REPORTED TO THE COMMANDING GENERAL, MARINE CORPS BASE, SAN DIEGO, FOR DUTY.

ON MARCH 26, 1946, HE WAS READMITTED TO THE HOSPITAL WITH THE SAME DIAGNOSIS. IN A REPORT OF MEDICAL SURVEY DATED APRIL 1, 1946, IT WAS STATED THAT TREATMENT WAS NOT INDICATED AND THAT IT WAS THE OPINION OF THE BOARD THAT THE DISABILITY WAS INCURRED PRIOR TO HIS APPOINTMENT AS A SECOND LIEUTENANT ON AUGUST 31, 1945. IT WAS FURTHER STATED THAT MR. PREGERSON WAS FIT FOR LIMITED DUTY AND IT WAS RECOMMENDED THAT HE BE RELEASED FROM ACTIVE DUTY. HOWEVER, PURSUANT TO HIS REQUEST, AND UPON THE RECOMMENDATION OF THE BUREAU OF MEDICINE AND SURGERY, ORDERS WERE ISSUED BY THE SECRETARY OF THE NAVY ON MAY 27, 1946, DIRECTING MR. PREGERSON TO APPEAR BEFORE THE NAVAL RETIRING BOARD, MARINE CORPS BASE, SAN DIEGO. THE BOARD CONVENED IN HIS CASE ON JUNE 11, 1946, AND FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF DEFORMITY, ACQUIRED, BOTH THIGHS; THAT THE CONDITION WAS PERMANENT; THAT THE DISABILITY WAS INCURRED IN ACTION AGAINST AN ORGANIZED ENEMY ON MAY 3, 1945, WHILE SERVING AS AN ENLISTED MAN. ON JULY 12, 1946, LIEUTENANT PREGERSON WAS DISCHARGED FROM THE HOSPITAL AND IN ACCORDANCE WITH ORDERS DATED JULY 2, 1946, HE PROCEEDED TO HIS HOME TO AWAIT ORDERS PENDING ACTION ON HIS RETIREMENT PROCEEDINGS. THEREAFTER, THE SECRETARY OF THE NAVY LAID THE RECORD OF THE PROCEEDINGS AND FINDINGS IN THE CASE BEFORE THE PRESIDENT FOR HIS APPROVAL OF DISAPPROVAL, OR ORDERS, IN THE CASE, WITH THE RECOMMENDATION THAT THE PRESIDENT APPROVE THE FINDINGS BUT WITHOUT RECOMMENDATION FOR RETIREMENT. IT IS STATED THAT RETIREMENT WAS NOT RECOMMENDED IN VIEW OF THE NAVY DEPARTMENT'S OFTEN REPEATED HOLDING THAT DISABILITY PRE-EXISTING APPOINTMENT TO COMMISSIONED RANK CANNOT BE MADE THE BASIS OF RETIREMENT. ON OCTOBER 26, 1946, THE PRESIDENT APPROVED THE FINDINGS OF THE NAVAL RETIRING BOARD AND ON DECEMBER 30, 1946, LIEUTENANT PREGERSON WAS RELEASED FROM ACTIVE DUTY.

YOU INDICATE THAT YOUR DOUBT AS TO LIEUTENANT PREGERSON'S RIGHT TO DISABILITY RETIREMENT PAY ARISES BECAUSE OF THE FACT THAT THE DISABILITY WHICH INCAPACITATED HIM FOR ACTIVE SERVICE HAD ITS ORIGIN WHILE HE WAS SERVING AS AN ENLISTED MAN.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, EFFECTIVE AUGUST 14, 1945, PROVIDES AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO --

(1) IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *.

THE AMENDMENT OF JUNE 20, 1949, INSOFAR AS HERE PERTINENT, MADE NO MATERIAL CHANGE IN THE ABOVE PROVISIONS OF LAW AND PRIOR TO SUCH AMENDMENT THE JUDGE ADVOCATE GENERAL OF THE NAVY HAD OCCASION TO CONSIDER THEIR EFFECT WITH RESPECT TO AN OFFICER OF THE NAVAL RESERVE WHO BECAME INCAPACITATED WHILE SERVING ON ACTIVE DUTY AS AN OFFICER DUE TO A DISABILITY WHICH IT WAS DETERMINED HAD ITS ORIGIN DURING A PERIOD OF ENLISTED SERVICE IMMEDIATELY PRECEDING HIS COMMISSIONED SERVICE. IN AN OPINION DATED MARCH 20, 1946, FILE JAG:I:LHCJ:MHW, NAVY COURT MARTIAL ORDERS, 1946, PAGE 103, IT WAS CONCLUDED THAT THE LAW DOES NOT REQUIRE THAT A DISABILITY MUST BE SUFFERED IN THE OFFICE IN WHICH AN OFFICER IS SERVING AT THE TIME OF RETIREMENT, BUT MERELY REQUIRES THAT IT BE FOUND TO BE AN INCIDENT OF THE SERVICE ORIGINATING WHILE HE WAS SERVING ON EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS.

AS A GENERAL PROPOSITION THIS OFFICE IS INCLINED TO AGREE WITH THAT CONCLUSION, ESPECIALLY SINCE IT WOULD APPEAR IN SUCH CASES THAT, SINCE THE ENLISTED MAN WAS FOUND PHYSICALLY FIT FOR APPOINTMENT AS AN OFFICER, THE DISABILITY APPARENTLY HAD NOT MANIFESTED ITSELF AND HAD NOT PROGRESSED TO THE STAGE WHERE IT ACTUALLY INCAPACITATED HIM FOR ACTIVE DUTY. HOWEVER, IF LIEUTENANT PREGERSON'S CASE IS THE SAME CASE THAT WAS CONSIDERED IN AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED OCTOBER 1, 1946, NAVY COURT MARTIAL ORDERS, 1946, PAGE 371-- AND, FROM THE DATES AND OTHER INFORMATION APPEARING IN SUCH OPINION, IT WOULD APPEAR BEYOND ALL REASONABLE DOUBT THAT IT IS THE SAME CASE--- THEN IT WOULD NOT FALL WITHIN THE CATEGORY OF THE CASES CONSIDERED IN THE OPINION OF MARCH 20, 1946, SUPRA. IN THE SAID OPINION OF OCTOBER 1, 1946, WHICH WAS NOT REFERRED TO IN YOUR LETTER, IT WAS STATED:

FROM THE INFORMATION CONTAINED IN HIS CURRENT HEALTH RECORD IT APPEARED THAT ON THE DATE OF EXAMINATION FOR APPOINTMENT TO OFFICER RANK THIS OFFICER PRESENTED EXTENSIVE SCARRING OF BOTH THIGHS, LOSS OF SUBSTANCE OF THE EXTENSOR MUSCLES AND ATROPHY OF THE RIGHT THIGH, LIMITATION OF FLEXION OF THE RIGHT KNEE AND WEAKNESS OF BOTH LEGS.

IT WAS PATENT THAT THIS OFFICER'S PHYSICAL FITNESS FOR DUTY WAS NOT CORRECTLY REPORTED AT THE TIME HE WAS CONSIDERED FOR APPOINTMENT TO OFFICER RANK. ALTHOUGH THIS OFFICER IMPROVED, HE STILL PRESENTED MANY OF THE DEFECTS WHICH WERE PRESENTED WHEN APPOINTED, I.E., RESIDUAL WEAKNESS AND ATROPHY OF THE RIGHT THIGH AS WELL AS SOME LIMITATION OF FUNCTION OF THE RIGHT KNEE.

THE NAVY DEPARTMENT HAS REPEATEDLY HELD THAT IF THE FACTS OBTAINED FROM A PROPERLY AUTHENTICATED MEDICAL HISTORY SHOW THAT THE DISABILITY COMPLAINED OF EXISTED PRIOR TO APPOINTMENT, SUCH DISABILITY CANNOT BE MADE THE BASIS FOR RETIREMENT ON ACCOUNT OF PHYSICAL DISABILITY.

IN VIEW OF THE FOREGOING, IT WAS HELD THAT THIS OFFICER WAS NOT ELIGIBLE FOR TRANSFER TO THE RETIRED LIST UNDER PROVISIONS OF SECTION 855C-1, 34 U.S. CODE, SUP. V. (FILE JAG:I:LHCJ:MLS, 1 OCTOBER 1946.) (ITALICS SUPPLIED.)

SUCH OPINION IS WELL SUPPORTED BY THE FACTS REPORTED IN YOUR LETTER, RESTATED ABOVE, WHICH INDICATE THAT THE OFFICER WAS HOSPITALIZED CONTINUOUSLY FROM THE DATE HE WAS WOUNDED IN ACTION TO THE DATE HE ACCEPTED HIS APPOINTMENT AS A SECOND LIEUTENANT ( AUGUST 31, 1945) AND THEREAFTER (THE DATE OF HIS FIRST ADMISSION AFTER AUGUST 31, 1945 IS NOT SHOWN IN YOUR LETTER) HE WAS HOSPITALIZED, FOR THE SAME INJURY, ALMOST CONTINUOUSLY UNTIL JULY 12, 1946 WHEN HE PROCEEDED TO HIS HOME. MOREOVER, THE OPINION WAS RENDERED SUBSEQUENT TO THE PROCEEDINGS BEFORE THE NAVAL RETIRING BOARD AND PRIOR TO THE TIME THE SECRETARY OF THE NAVY LAID SUCH PROCEEDINGS AND HIS RECOMMENDATION THEREON BEFORE THE PRESIDENT AND IT WOULD SEEM APPARENT THAT THE FAILURE TO RECOMMEND RETIREMENT WAS NOT BECAUSE OF ANY NAVY DEPARTMENT VIEW THAT A DISABILITY WHICH HAD ITS ORIGIN DURING ENLISTED SERVICE PRIOR TO APPOINTMENT TO COMMISSIONED RANK COULD NOT BE MADE THE BASIS FOR RETIREMENT (SINCE THE DEPARTMENT HAD PREVIOUSLY CONCLUDED OTHERWISE IN THE JUDGE ADVOCATE GENERAL'S OPINION OF MARCH 20, 1946,) BUT RATHER THAT SUCH FAILURE TO RECOMMEND RETIREMENT WAS PREDICATED ON THE JUDGE ADVOCATE GENERAL'S OPINION THAT THE DISABILITY IN LIEUTENANT PREGERSON'S CASE NOT ONLY HAD ITS ORIGIN PRIOR TO HIS APPOINTMENT BUT THAT SUCH DISABILITY ACTUALLY HAD BECOME INCAPACITATING BEFORE THAT TIME AND THAT SUCH FACT WAS PATENT AT THE TIME OF HIS PHYSICAL EXAMINATION IN AUGUST, 1945.

UNDER SUCH CIRCUMSTANCES THIS OFFICE IS UNABLE TO CONCLUDE THAT LIEUTENANT PREGERSON IS ENTITLED TO DISABILITY RETIREMENT PAY. TO HOLD OTHERWISE WOULD BE TO CONCLUDE THAT ENLISTED RESERVISTS WHO BECAME INCAPACITATED FOR ACTIVE SERVICE COULD, NOTWITHSTANDING SUCH INCAPACITY, BE APPOINTED TO COMMISSIONED RANK FOR THE PURPOSE OF GRANTING THEM DISABILITY RETIREMENT PAY RIGHTS AS AN OFFICER. IT COULD NOT SERIOUSLY BE CONTENDED THAT THE STATUTES AUTHORIZING APPOINTMENTS TO COMMISSIONED RANK WERE INTENDED TO AUTHORIZE SUCH A PROCEDURE. COMPARE, IN THAT CONNECTION, DECISION OF THIS OFFICE DATED AUGUST 12, 1946, 26 COMP. GEN. 107.

YOU ARE ADVISED ACCORDINGLY THAT ON THE RECORD PRESENTED PAYMENT OF DISABILITY RETIREMENT PAY TO LIEUTENANT PREGERSON IS NOT AUTHORIZED.