B-129668, JANUARY 10, 1957, 36 COMP. GEN. 492

B-129668, JANUARY 10, 1957, 36 COMP. GEN. 492

MILITARY PERSONNEL - DISABILITY RETIRED PAY - DISABILITIES FOUND DURING PHYSICAL EXAMINATION FOR PROMOTION UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZES MEMBERS OF THE UNIFORMED SERVICES WHO ARE FOUND TO BE PHYSICALLY DISQUALIFIED FOR PROMOTION TO RECEIVE PAY OF THE HIGHER GRADE, THE MEMBERS WILL NOT BE DENIED HIGHER RETIRED PAY EVEN THOUGH THE IDENTICAL DISABILITY WAS FOUND TO EXIST DURING AN EARLIER OFFICIAL EXAMINATION. A NAVAL OFFICER WHOSE DISABILITY FOR WHICH HE WAS RETIRED WAS A MATTER OF RECORD MANY YEARS, BUT WAS NOT DETERMINED TO BE OF A DISQUALIFYING NATURE UNTIL THE MEMBER WAS GIVEN A PHYSICAL EXAMINATION FOR PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER, MAY RECEIVE RETIRED PAY OF THE HIGHER GRADE, PURSUANT TO SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. A NAVAL OFFICER WHO COULD NOT BE PROMOTED TO THE GRADE OF LIEUTENANT COMMANDER AFTER PHYSICALLY QUALIFYING FOR PROMOTION BECAUSE THERE WAS NO VACANCY IN THE HIGHER GRADE AND WHO WAS SUBSEQUENTLY HOSPITALIZED AND RETIRED AS RESULT OF A CORONARY THROMBOSIS MAY NOT HAVE HIS DISABILITY REGARDED AS HAVING BEEN FOUND TO EXIST AS A RESULT OF THE PROMOTION PHYSICAL EXAMINATION AND, THEREFORE, MAY NOT RECEIVE RETIRED PAY ON THE BASIS OF THE HIGHER GRADE. A NAVAL OFFICER WHO WAS FOUND TO BE PHYSICALLY DISQUALIFIED FOR PROMOTION AS A RESULT OF A PHYSICAL EXAMINATION WHICH WAS CONDUCTED AFTER THE EFFECTIVE DATE OF THE MEMBER'S RETIREMENT FOR PHYSICAL DISABILITY MAY NOT HAVE THE DISABILITY REGARDED AS HAVING BEEN "FOUND TO EXIST" AS A RESULT OF THE PROMOTION PHYSICAL EXAMINATION SO AS TO BE ENTITLED TO RETIRED PAY OF THE HIGHER GRADE UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF THE NAVY, JANUARY 10, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 26, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) FORWARDING LETTER DATED SEPTEMBER 24, 1956, FROM THE CHIEF OF NAVAL PERSONNEL CONCERNING THE MATTER WHETHER, IN VIEW OF THE DECISIONS OF THE UNITED STATES COURT OF CLAIMS IN THE LEONARD AND FREDRICKSON CASES, DECIDED MARCH 1, 1955, AND JANUARY 31, 1956, RESPECTIVELY, CERTAIN OFFICERS ARE ENTITLED TO INCREASED RETIRED PAY DUE TO SELECTION FOR PROMOTION PRIOR TO RETIREMENT FOR PHYSICAL DISABILITY.

ALL THREE OF THE OFFICERS INVOLVED WERE RETIRED FOR PHYSICAL DISABILITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272 (B), WHICH ENTITLED THEM TO THE DISABILITY RETIRED PAY PRESCRIBED BY SECTION 402 (D) OF THAT ACT, 63 STAT. 818, 37 U.S.C. 272 (D). SUCH DISABILITY RETIRED PAY ORDINARILY IS BASED UPON THE ACTIVE DUTY PAY OF THE GRADE HELD AT TIME OF RETIREMENT. IF THE PHYSICAL DISABILITY ENTITLING THE MEMBER TO DISABILITY RETIRED PAY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER SHALL BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER WOULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY.

LIEUTENANT GARLAND RUSSELL CRAIGHEAD WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1956. HE HAD BEEN SELECTED FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER BY A SELECTION BOARD IN ACCORDANCE WITH THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED, 34 U.S.C. 306F. HE WAS PHYSICALLY EXAMINED ON DECEMBER 22, 1955, AND WAS "FOUND TO BE NOT PHYSICALLY QUALIFIED FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER, U.S. NAVY," BECAUSE OF DEAFNESS, AND HE WAS SCHEDULED FOR LATER HOSPITALIZATION AND TREATMENT. ON JANUARY 2, 1956, HE SUFFERED A SUDDEN BLURRING OF VISION OF HIS RIGHT EYE, WHICH WAS DIAGNOSED AS A THROMBOSIS OF THE RIGHT INFRATEMPORAL VEIN. HE WAS ADMITTED TO A NAVAL HOSPITAL ON FEBRUARY 13, 1956, AND APPEARED BEFORE A CLINICAL BOARD ON MARCH 30, 1956, AND A PHYSICAL EVALUATION BOARD ON APRIL 24, 1956. ON JUNE 14, 1956, THE SECRETARY OF THE NAVY APPROVED THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD AS MODIFIED BY THE PHYSICAL REVIEW COUNCIL AND DIRECTED THAT THE OFFICER BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BY REASON OF PHYSICAL DISABILITY RATED AT 70 PERCENT DISABLING.

ON JUNE 15, 1956, THE CHIEF, BUREAU OF MEDICINE AND SURGERY, IN REPLY TO AN INQUIRY OF THE CHIEF OF NAVAL PERSONNEL, STATED THAT:SUBJECT OFFICER ( LIEUTENANT CRAIGHEAD) WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION BECAUSE OF DEAFNESS. THE AVAILABLE RECORDS ESTABLISH THAT HIS DEAFNESS HAS EXISTED FOR AT LEAST TEN YEARS AND THE DEGREE OF DEAFNESS HAS BEEN RELATIVELY STABLE FOR SEVERAL YEARS. SUBSEQUENT TO HIS PROMOTION PHYSICAL HE INCURRED DISABILITY OF THE EYE (SCOTOMA). * * *

ALTHOUGH FINAL ACTION HAS NOT BEEN TAKEN IN THIS CASE IT APPEARS THAT THE CONDITION FOR WHICH HE WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION AND WHICH RESULTED IN HIS APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD WAS NOT FIRST DISCOVERED IN CONNECTION WITH AN EXAMINATION TO EFFECT HIS PROMOTION * * *.

THE CHIEF OF NAVAL PERSONNEL STATES THAT THE OFFICER'S DEAFNESS WAS NOTED ON PHYSICAL EXAMINATIONS ANNUALLY SINCE 1946 BUT WAS NOT CONSIDERED DISQUALIFYING UNTIL HIS PHYSICAL EXAMINATION TAKEN IN CONNECTION WITH EFFECTING HIS PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER. IN 1951 HE WAS FOUND PHYSICALLY QUALIFIED FOR PROMOTION TO LIEUTENANT; IN 1953 HE APPEARED BEFORE A BOARD OF MEDICAL SURVEY WITH THE DIAGNOSIS OF DEAFNESS DUE TO DEGENERATION OF ACOUSTIC NERVE, BUT WAS FOUND FIT FOR DUTY.

LIEUTENANT PRESTON WOODROW OGBURN WAS PERMANENTLY RETIRED ON APRIL 1, 1950, FOR PHYSICAL DISABILITY. ON JULY 14, 1949, HE WAS ADMITTED TO A NAVAL HOSPITAL WITH A DIAGNOSIS OF ACUTE HEPATITIS. ON NOVEMBER 28, 1949, HE WAS INFORMED BY THE CHIEF OF NAVAL PERSONNEL THAT HE HAD BEEN SELECTED FOR PROMOTION TO THE TEMPORARY RANK OF LIEUTENANT COMMANDER BY A SPECIAL SELECTION BOARD, WHICH CONVENED TO CONSIDER OFFICERS WHO BECAME ELIGIBLE FOR CONSIDERATION THROUGH REASSIGNMENT OF LINEAL POSITION PURSUANT TO THE PROVISIONS OF THE ACT OF AUGUST 5, 1949, 63 STAT. 567, 34 U.S.C. 211A. APPEARED BEFORE A CLINICAL BOARD ON JANUARY 12, 1950, AND A PHYSICAL EVALUATION BOARD ON FEBRUARY 10, 1950. THE SECRETARY OF THE NAVY APPROVED THE RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD ON MARCH 31, 1950, AND DIRECTED THAT LIEUTENANT OGBURN BE PERMANENTLY RETIRED BY REASON OF A PHYSICAL DISABILITY RATED AS 100 PERCENT DISABLING. ON APRIL 4, 1950, HE APPEARED BEFORE A BOARD OF MEDICAL EXAMINERS WHICH FOUND HIM NOT PHYSICALLY QUALIFIED FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER BY REASON OF HEPATITIS. ORDERS EFFECTING HIS RELEASE FROM ACTIVE DUTY INCIDENT TO HIS RETIREMENT ON APRIL 1, 1950, WERE NOT ISSUED UNTIL APRIL 11, 1950, AND THE ADMINISTRATIVE PROCESSING INCIDENT TO HIS RELEASE FROM ACTIVE DUTY WAS COMPLETED ON APRIL 25, 1950.

THE CHIEF OF NAVAL PERSONNEL STATES THAT LIEUTENANT OGBURN UNDERWENT A PHYSICAL EXAMINATION FOR PROMOTION AFTER THE EFFECTIVE DATE OF HIS RETIREMENT BUT BEFORE HE BECAME AWARE OF SUCH RETIREMENT, AND THAT THE SEQUENCE OF EVENTS IN HIS CASE IS ALMOST IDENTICAL WITH THAT CONSIDERED IN THE CASE OF CAPTAIN FREDRICKSON ( FREDRICKSON V. UNITED STATES, C.1CLS. NO. 100-53, DECIDED JANUARY 31, 1956) IN WHICH THE COURT OF CLAIMS HELD THAT THE EVENTS WERE ALL SO CLOSE TOGETHER AS TO BE PART AND PARCEL OF ONE CONTINUOUS TRANSACTION AND, TAKEN TOGETHER, ALMOST PRECLUDED ANY OTHER REASONABLE CONCLUSION THAN THAT THE OFFICER'S DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS PROMOTION.

LIEUTENANT CLEMENS JOHN DENNE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1955. HE WAS SELECTED FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER IN ACCORDANCE WITH THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED. ON JANUARY 7, 1955, HE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR TEMPORARY APPOINTMENT TO THE GRADE OF LIEUTENANT COMMANDER, BUT HE COULD NOT BE PROMOTED UNTIL A VACANCY OCCURRED. HE WAS HOSPITALIZED ON MARCH 8, 1955, AS A RESULT OF A CORONARY THROMBOSIS, WHICH SUBSEQUENTLY CAUSED HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1955. ON THAT DATE THE CHIEF OF NAVAL PERSONNEL ISSUED AUTHORITY FOR HIS ADVANCEMENT TO THE GRADE OF LIEUTENANT COMMANDER, BUT IT WAS RETURNED UNDELIVERED IN VIEW OF HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST.

IN DECISIONS OF AUGUST 30, 1951 (B-103324), AND AUGUST 26, 1952 (32 COMP./GEN. 104), WE HELD, IN EFFECT, THAT THE PHRASE "IS FOUND TO EXIST" AS USED IN THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT IS EQUIVALENT TO "DISCOVERED" OR "FIRST FOUND TO EXIST" AND HENCE THAT A MEMBER WHOSE DISABILITY WAS DISCOVERED DURING AN OFFICIAL EXAMINATION GIVEN PRIOR TO THE PHYSICAL EXAMINATION FOR PROMOTION IS NOT ELIGIBLE UNDER THE PROVISIONS OF THAT SECTION FOR THE RETIRED PAY OF THE HIGHER GRADE FOR WHICH EXAMINED. COMPARE 32 COMP. GEN. 459 AND 35 COMP. GEN. 696. THE COURT OF CLAIMS, HOWEVER, APPEARS TO HAVE REACHED A DIFFERENT CONCLUSION IN LEONARD V. UNITED STATES, 131 C.1CLS. 91, AND FREDRICKSON V. UNITED STATES.

WHILE SERVING AS LIEUTENANT COMMANDER, LEONARD WAS TRANSFERRED TO A NAVAL HOSPITAL ON SEPTEMBER 26, 1949, WITH A DIAGNOSIS OF PITUITARY BASOPHILISM, FOR TWO MONTHS' TREATMENT. BY SELECTION BOARD REPORT APPROVED NOVEMBER 1, 1949, HE WAS SELECTED FOR PROMOTION TO THE GRADE OF COMMANDER. DECEMBER 21, 1949, THE COMMANDING OFFICER OF THE NAVAL HOSPITAL ADVISED THE CHIEF OF NAVAL PERSONNEL THAT LEONARD PROBABLY WOULD BE RETIRED AND RECOMMENDED THAT HE BE DETACHED FROM HIS DUTY STATION FOR CONTINUED TREATMENT FOR AN INDEFINITE PERIOD. BY ORDERS OF JANUARY 13, 1950, HE WAS DETACHED FROM HIS DUTY STATION AND WAS DIRECTED TO CONTINUE TREATMENT AT THE NAVAL HOSPITAL. HE APPEARED BEFORE A CLINICAL BOARD ON JANUARY 18, 1950, WHICH BOARD RECOMMENDED HIS APPEARANCE BEFORE PHYSICAL EVALUATION BOARD. ON JANUARY 24, 1950, HE WAS AUTHORIZED TO APPEAR BEFORE SUCH A BOARD ON OR ABOUT JANUARY 27, 1950. HE WAS EXAMINED TO DETERMINE HIS PHYSICAL FITNESS FOR PROMOTION TO THE RANK OF COMMANDER BY A BOARD OF MEDICAL EXAMINERS ON JANUARY 26, 1950, AND WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION. HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD ON JANUARY 27, 1950. BY LETTER OF APRIL 17, 1950, FROM THE CHIEF OF NAVAL PERSONNEL HE WAS ADVISED THAT HE HAD BEEN "PLACED ON THE RETIRED LIST BY REASON OF A PERMANENT PHYSICAL DISABILITY EFFECTIVE APRIL 1, 1950, IN THE RANK OF LIEUTENANT COMMANDER.' THE COURT OF CLAIMS CONCLUDED THAT THE EVENTS IN LEONARD'S CASE--- ARE ALL SO CLOSE TOGETHER AS TO BE PART AND PARCEL OF ONE CONTINUOUS TRANSACTION, AND TAKEN TOGETHER ALMOST PRECLUDE ANY OTHER REASONABLE CONCLUSION THAN THAT THE PLAINTIFF'S DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS PROMOTION.

THE RECORD BEFORE THIS OFFICE INDICATES THAT THE PRIMARY PHYSICAL DISABILITY FOR WHICH LEONARD WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION AND FOR WHICH HE WAS RETIRED WAS THE SAME DISABILITY (PITUITARY BASOPHILISM) FOR WHICH HE HAD BEEN CONTINUOUSLY HOSPITALIZED FOR FOUR MONTHS PRIOR TO THE TIME HE WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION AND FOR WHICH THE COMMANDING OFFICER OF THE NAVAL HOSPITAL CONCERNED HAD ADVISED THE CHIEF OF NAVAL PERSONNEL, MORE THAN A MONTH PRIOR TO THE PROMOTION PHYSICAL EXAMINATION, HE PROBABLY WOULD BE RETIRED.

IN THE FREDRICKSON CASE THE COURT OF CLAIMS EXPRESSLY STATED THAT THE OFFICER'S "DISABILITY WAS ADMITTEDLY DISCOVERED PRIOR TO HIS PROMOTION PHYSICAL" AND THAT IN BOTH THE LEONARD AND FREDRICKSON CASES "THE GOVERNMENT KNEW OF THE EXISTENCE OF THE DISABILITIES PRIOR TO THE EXAMINATIONS.' FREDRICKSON WAS ADMITTED TO A NAVAL HOSPITAL ON OCTOBER 10, 1949, AND AGAIN ON JANUARY 17, 1950, AS A PATIENT WITH A DIAGNOSIS OF ARTERIOSCLEROTIC HEART DISEASE. ON JANUARY 31, 1950, A CLINICAL BOARD AT THE HOSPITAL FOUND THAT HE WAS PERMANENTLY UNFIT TO PERFORM THE DUTIES OF HIS RANK OF COMMANDER AND RECOMMENDED THAT HE APPEAR BEFORE A PHYSICAL EVALUATION BOARD. ON MARCH 10, 1950, THE PHYSICAL EVALUATION BOARD MADE RECOMMENDED FINDINGS THAT HE WAS PERMANENTLY UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF ARTERIOSCLEROTIC HEART DISEASE AND DUODENAL ULCER, WHICH FINDINGS WERE APPROVED BY THE SECRETARY OF THE NAVY ON MARCH 31, 1950. HE WAS RETIRED ON THAT ACCOUNT EFFECTIVE APRIL 1, 1950, ALTHOUGH HE APPARENTLY DID NOT RECEIVE NOTICE OF HIS RETIREMENT UNTIL APRIL 27, 1950, WHEN HE RECEIVED HIS RETIREMENT ORDERS DATED APRIL 18, 1950.

ON MARCH 10, 1950, FREDRICKSON WAS RECOMMENDED FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN AND ON MARCH 29, 1950, HE WAS ORDERED TO APPEAR BEFORE A BOARD OF MEDICAL EXAMINERS TO DETERMINE HIS FITNESS TO PERFORM THE DUTIES OF CAPTAIN. ON APRIL 4, 1950, HE APPEARED BEFORE THAT BOARD, WHICH FOUND HIM UNFIT TO PERFORM HIS DUTIES BY REASON OF ARTERIOSCLEROTIC HEART DISEASE AND MULTIPLE JOINT HYPTERTROPHIC ARTHRITIS.

THE COURT FOUND THAT THE FACTS IN THE FREDRICKSON CASE WERE SUBSTANTIALLY SIMILAR TO THOSE IN THE LEONARD CASE AND, AS INDICATED ABOVE, NOTWITHSTANDING THE FACT THAT THE DISABILITY FOR WHICH HE WAS RETIRED AND WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION HAD BEEN KNOWN TO THE GOVERNMENT ALMOST SIX MONTHS PRIOR TO THE PROMOTION PHYSICAL EXAMINATION, THE COURT OF CLAIMS DECIDED THAT HE WAS ENTITLED TO THE RETIRED PAY OF A CAPTAIN UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT.

IT THUS APPEARS THAT THE OPINION OF THE COURT OF CLAIMS IS CONSISTENT WITH THE VIEW THAT THE STATUTE AUTHORIZES THE RETIRED PAY OF THE HIGHER GRADE, EVEN THOUGH THE IDENTICAL DISABILITY WAS FOUND DURING SOME EARLIER EXAMINATION, IF ITS DISQUALIFYING NATURE WAS FIRST DETERMINED TO EXIST DURING THE PROMOTION PHYSICAL EXAMINATION AND THEREFORE WAS "FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A * * * PROMOTION.' THAT CONCLUSION APPEARS TO BE A TENABLE AND PERMISSIBLE CONSTRUCTION OF THE STATUTE.

APPLYING THAT CONSTRUCTION OF THE STATUTE TO THE PRESENT CASES, WHILE IT APPEARS THAT THE DISABILITY (DEAFNESS) FOR WHICH LIEUTENANT CRAIGHEAD WAS RETIRED AND FOUND DISQUALIFIED FOR PROMOTION WAS OF RECORD FOR MANY YEARS, IT WAS NOT CONSIDERED DISQUALIFYING UNTIL HIS PHYSICAL EXAMINATION TAKEN IN CONNECTION WITH HIS PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER. HE THEREFORE IS ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COMMANDER, SINCE HIS DISQUALIFYING DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PROMOTION PHYSICAL EXAMINATION, EVEN THOUGH SOME DEGREE OF DEAFNESS HAD BEEN KNOWN TO EXIST FOR TEN YEARS, AND HE WAS RETIRED ON ACCOUNT OF THAT SAME DISABILITY. THE DISABILITY FOR WHICH LIEUTENANT DENNE WAS RETIRED WAS INCURRED (AND FOUND TO EXIST) AFTER HIS PROMOTION PHYSICAL EXAMINATION, DURING WHICH HE WAS FOUND PHYSICALLY QUALIFIED FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER. SUCH DISABILITY CLEARLY WAS NOT FOUND TO EXIST AS A "RESULT" OF THE PROMOTION PHYSICAL EXAMINATION AND HENCE HE IS NOT ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COMMANDER. COMPARE 32 COMP. GEN. 459.

LIKE FREDRICKSON, LIEUTENANT OGBURN WAS PHYSICALLY EXAMINED FOR PROMOTION AFTER THE EFFECTIVE DATE OF HIS RETIREMENT AND WAS FOUND PHYSICALLY DISQUALIFIED FOR PROMOTION ON ACCOUNT OF THE SAME DISABILITY FOR WHICH HE WAS RETIRED. IT IS OUR VIEW THAT THE SAME PRIMARY DISABILITY WHICH FORMS THE BASIS FOR PHYSICAL DISABILITY RETIREMENT AND PREVIOUSLY HAS BEEN DULY AND PROPERLY ESTABLISHED BY AN APPROPRIATE BOARD CANNOT, WITHIN THE MEANING OF THE STATUTE, THEREAFTER BE "FOUND TO EXIST AS THE RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A * * * PROMOTION.' UNDER THE COURT'S OPINION IN THE FREDRICKSON CASE, THE BENEFITS OF THE STATUTE WOULD APPEAR TO ACCRUE TO ANY MEMBER OF THE ARMED FORCES WHO MAY UNDERGO A PHYSICAL EXAMINATION FOR PROMOTION UNDER THE CONDITIONS STIPULATED IN THE STATUTE, IRRESPECTIVE OF WHETHER SUCH PHYSICAL EXAMINATION FOR PROMOTION OCCURS BEFORE OR AFTER THE EFFECTIVE DATE OF RETIREMENT AND DEPENDENT, PRESUMABLY, ONLY ON THE CIRCUMSTANCE THAT THE FINDINGS OF THE BOARD CONDUCTING THE PHYSICAL EXAMINATION FOR PROMOTION ARE SIMILAR, IN WHOLE OR IN PART, TO THE PHYSICAL DISABILITY FINDINGS OF THE NAVAL RETIRING OR NAVAL PHYSICAL EVALUATION BOARD IN THE PARTICULAR CASE. WE DO NOT CONCUR IN THAT VIEW BUT CONTINUE TO HOLD THE VIEW THAT THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT WAS NOT INTENDED TO AUTHORIZE INCREASED RETIRED PAY IN ANY CASE WHERE THE MEMBER'S DISABILITY WAS "FOUND TO EXIST," NOT AS A RESULT OF A PROMOTION PHYSICAL EXAMINATION, BUT PRIOR TO THE DATE OF SUCH AN EXAMINATION. COMPARE DECISION B-114422, 36 COMP. GEN. 489, OF TODAY TO L. A. CAMPBELL, DISBURSING OFFICER, NAVY FINANCE CENTER. ALSO, IT WILL BE NOTED THAT THE PHYSICAL DISABILITY RETIREMENT PROCEEDINGS IN OGBURN'S CASE WERE FULLY COMPLETED WHEN THE SECRETARY OF THE NAVY APPROVED THE PHYSICAL DISABILITY RETIREMENT RECOMMENDATIONS. THE MEMBERS' STATUS THUS APPARENTLY BECAME FIXED ON THE EFFECTIVE DATE OF RETIREMENT (SEE 5 U.S.C. 47A) AND IT IS OUR VIEW THAT THE SUBSEQUENT PHYSICAL EXAMINATIONS FOR PROMOTION SHOULD NOT BE CONSIDERED AS HAVING ANY EFFECT ON RETIRED PAY RIGHTS. ACCORDINGLY, LIEUTENANT OGBURN IS NOT ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COMMANDER UNDER THE PROVISIONS OF THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT, HIS RETIRE PAY BEING PROPERLY FOR COMPUTATION ON THE PAY OF A LIEUTENANT.