B-144041, JANUARY 17, 1961, 40 COMP. GEN. 419

B-144041, JANUARY 17, 1961, 40 COMP. GEN. 419

MILITARY PERSONNEL - RETIREMENT - REVOCATION - NEW EVIDENCE ORDERS WHICH REVOKE AN ARMY ENLISTED MEMBER'S RETIREMENT ORDER BASED ON LENGTH OF SERVICE UNDER 10 U.S.C. 3914 AFTER ITS EFFECTIVE DATE ARE NOT LEGALLY EFFECTIVE, ASSUMING THAT THE MEMBER WAS ADVISED OF THE ORIGINAL ORDERS AND THAT HE PASSED THE FINAL-TYPE PHYSICAL EXAMINATION; THEREFORE, SINCE THE MEMBER WAS PLACED ON ACTIVE DUTY ON THE DAY FOLLOWING THE EFFECTIVE DATE OF THE RETIREMENT ORDERS, HE WAS PROPERLY PAID ACTIVE DUTY PAY AND ALLOWANCES UNTIL THE EFFECTIVE DATE OF SECOND RETIREMENT ORDERS WHICH PROVIDED FOR A 60 PERCENT DISABILITY RETIREMENT, HOWEVER RETIRED PAY IS FOR COMPUTATION ON THE BASIS OF THE MEMBER'S STATUS UNDER THE FIRST ORDERS, PLUS ANY INCREASE, IF ANY, PAYABLE FOR DUTY AFTER RETIREMENT. THE DISCOVERY OF A PHYSICAL DISABILITY WHICH MIGHT SERVE AS A BASIS FOR A DISABILITY RETIREMENT, INCIDENT TO A FINAL-TYPE PHYSICAL EXAMINATION REQUIRED PURSUANT TO ARMY REGULATIONS TO BE GIVEN TO A MEMBER OF THE UNIFORMED SERVICES PRIOR TO THE EFFECTIVE DATE FOR THE MEMBER'S RETIREMENT BASED ON LENGTH OF SERVICE, CONSTITUTES NEW EVIDENCE WHICH WARRANTS REVOCATION OF EXISTING RETIREMENT RDERS; THEREFORE, THE MEMBER'S ORIGINAL RETIREMENT WILL BE CONSIDERED AS REVOKED AND HIS SUBSEQUENT RETIREMENT FOR DISABILITY RECOGNIZED FOR RETIRED PAY COMPUTATION PURPOSES. 37 COMP. GEN. 19, MODIFIED. IN THE CASE OF AN ARMY MEMBER WHO FAILED TO PASS A FINAL-TYPE PHYSICAL EXAMINATION REQUIRED BY ARMY REGULATIONS, INCIDENT TO APPLICATION FOR RETIREMENT BASED ON YEARS OF SERVICE, AND WHO WAS HOSPITALIZED ON WHAT WAS TO HAVE BEEN THE EFFECTIVE DATE OF HIS NONDISABILITY RETIREMENT, WITH A DISABILITY CONSTITUTED NEW EVIDENCE WHICH JUSTIFIED THE REVOCATION OF HIS ORDERS FOR NONDISABILITY RETIREMENT, AND THE MEMBER IS ENTITLED TO RETIRED PAY UNDER ORDERS SUBSEQUENTLY ISSUED FOR DISABILITY RETIREMENT. A CHANGE IN THE PHYSICAL CONDITION OF A MEMBER OF THE UNIFORMED SERVICES AND THE NEED FOR FURTHER HOSPITALIZATION PRIOR TO THE EFFECTIVE DATE OF ORDERS WHICH DIRECTED THE PERMANENT RETIREMENT OF THE MEMBER FOR PHYSICAL DISABILITY CONSTITUTED SUBSTANTIAL NEW EVIDENCE SUFFICIENT TO SUPPORT A REVOCATION OF THE FIRST RETIREMENT ORDER, AND THE MEMBER WAS PROPERLY PAID DISABILITY RETIRED PAY BASED ON RETIREMENT ORDERS SUBSEQUENTLY ISSUED WHICH PLACED THE MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, JANUARY 17, 1961:

BY LETTER OF JULY 28, 1960, FORWARDED HERE BY FIRST ENDORSEMENT OF SEPTEMBER 19, 1960, FROM THE OFFICE, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER D.O. NO. 528, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, YOU REQUEST DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER COVERING RETIRED PAY FROM THE DATE OF ORIGINAL RETIREMENTS TO THE DATES OF QUESTIONED SUBSEQUENT RETIREMENTS IN THE CASES OF SECOND LIEUTENANT (1MASTER SERGEANT) HAYDEN R. FERGUSON, XXX-XX-XXXX, MAJOR ELI S. FOWLER, 10220509, MASTER SERGEANT JAMES C. HUMPHRIES, RA 6357646, AND SERGEANT FIRST CLASS BARNEY KRIEGER, RA 952650.

IN EACH CASE THE ORIGINAL RETIREMENT ACTION WAS TAKEN UNDER THE PROVISIONS OF A DIFFERENT RETIREMENT LAW THAN THE STATUTE COVERING THE SECOND OR LATER FINAL RETIREMENT. NO CORRECTION OF MILITARY RECORDS IS INVOLVED IN ANY OF THE CASES. IN ALL THE CASES ORDERS WERE ISSUED CANCELING ORIGINAL RETIREMENT ORDERS AND FURTHER ORDERS WERE ISSUED DIRECTING RETIREMENT AT A LATER DATE. YOU CITE 39 COMP. GEN. 312 (B 140268, DATED OCTOBER 26, 1959), 31 COMP. GEN. 296, 32 COMP. GEN. 558 AND 37 COMP. GEN. 19, AS HOLDING THAT IF A MEMBER IS LEGALLY RETIRED HIS CHANGE OF STATUS BECOMES AN ACCOMPLISHED FACT AND CANNOT BECOME UNDONE RETROACTIVELY; AND THAT, WHEN RETIREMENT ACTUALLY HAS BEEN EFFECTED, IT CANNOT BE REVOKED. IN VIEW OF THESE HOLDINGS YOU STATE YOU ARE IN DOUBT WHETHER THE FIRST RETIREMENT IS THE LEGAL RETIREMENT AND RETIRED PAY IS DUE FROM THE PERIOD OF THE FIRST RETIREMENT TO THE EFFECTIVE DATE OF THE SECOND OR FINAL RETIREMENT WHICH WAS DIRECTED BY THE DEPARTMENT OF THE ARMY IN EACH CASE. YOU REQUEST ADVICE AS TO WHETHER THE MEMBERS ARE TO BE CONSIDERED AS BEING ON ACTIVE DUTY PAY AND ALLOWANCES AND THE RIGHT TO INCLUDE THIS TIME FOR RETIRED PAY PURPOSES, OR WHETHER RETIRED PAY SHOULD BE COMPUTED BASED ON THE LAW GOVERNING THE FIRST RETIREMENT, AND COLLECTION ACTION BE TAKEN AGAINST THE RETIRED PAY ACCOUNT IF THIS ACTION RESULTS IN AN OVERPAYMENT. YOU ASK FURTHER WHETHER THE PRINCIPLE OF THE RULINGS IN THESE CASES SHOULD BE APPLIED IN APPROXIMATELY 15 LIKE CASES.

THE EXAMPLE CASES SET FORTH IN YOUR LETTER WILL BE CONSIDERED IN THE ORDER PRESENTED.

THE FIRST CASE IS THAT OF LIEUTENANT FERGUSON WHO IS STATED TO HAVE SUBMITTED AN APPLICATION FOR RETIREMENT ON MARCH 23, 1951 (WHILE SERVING AS A MASTER SERGEANT), BASED ON YEARS OF SERVICE UNDER THE PROVISIONS OF THE ACT OF OCTOBER 6, 1945 (NOW 10 U.S.C. 3914). THE APPLICATION WAS APPROVED AND PARAGRAPH 73, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 132, DATED JULY 3, 1951, DIRECTED HIS RETIREMENT EFFECTIVE JULY 31, 1951, AND HIS RECALL TO ACTIVE DUTY OF AUGUST 1, 1951. NECESSARY INFORMATION FOR RETIREMENT WAS FURNISHED THE COMMANDING OFFICER, MEDICAL DETACHMENT, 24TH INFANTRY DIVISION, ARTILLERY, APO 24, BY LETTER DATED JULY 31, 1951, TOGETHER WITH INSTRUCTIONS THAT SAID LETTER WOULD BE USED AS AUTHORITY FOR RETIREMENT. ON OCTOBER 23, 1951, A MESSAGE WAS RECEIVED FROM THE COMMANDING OFFICER, 6219TH RECEPTION CENTER, FORT LEWIS, WASHINGTON, REQUESTING NEW AUTHORITY FOR RETIREMENT. A MESSAGE WAS SENT TO CINCFE, TOKYO, JAPAN, REQUESTING INFORMATION WHETHER SERGEANT FERGUSON WAS RETIRED AS DIRECTED, WHICH MESSAGE INCLUDED ADVICE THAT IN THE EVENT HE HAD NOT BEEN SO RETIRED HIS RETIREMENT ORDERS WOULD BE REVOKED. ON OCTOBER 27, 1951, A REPLY WAS RECEIVED THAT FERGUSON HAD DEPARTED THAT COMMAND ON AUGUST 26, 1951, IN ROTATION TO Z.I. RETIREMENT ORDERS WERE REVOKED BY PARAGRAPH 71, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 218, OCTOBER 30, 1951. PARAGRAPH 80, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 241, DECEMBER 4, 1951, DIRECTED HIS RETIREMENT EFFECTIVE DECEMBER 31, 1951, AND RECALL TO ACTIVE DUTY THE FOLLOWING DAY. ON DECEMBER 20, 1951, STATUS OF THE RETIREMENT APPLICATION WAS REQUESTED BY 6008 ASU, FORT WORDEN, WASHINGTON. THE ADJUTANT GENERAL ADVISED THAT IF SPECIAL ORDERS NO. 241, CONFIRMATION LETTER, AND RETIREMENT FORMS HAD NOT BEEN RECEIVED IN FORT WORDEN THE RETIREMENT ORDERS WOULD BE REVOKED AND REISSUED AT A LATER DATE. IT APPEARS THAT SUCH ORDERS WERE NOT FORWARDED TO FORT WORDEN AND A REQUEST WAS MADE FOR REVOCATION OF THE ORDERS ON JANUARY 14, 1952, AS THE ENLISTED MAN WAS THEN HOSPITALIZED. THE RETIREMENT ORDERS WERE REVOKED BY PARAGRAPH 80, SPECIAL ORDERS NO. 13, DATED JANUARY 17, 1952. A PHYSICAL EVALUATION BOARD CONVENED ON MARCH 11, 1952, FOUND SERGEANT FERGUSON TO BE UNFIT FOR FURTHER MILITARY SERVICE AND RECOMMENDED 60 PERCENT DISABILITY RETIREMENT, WHICH FINDINGS WERE CONCURRED IN BY THE ARMY PHYSICAL REVIEW COUNCIL. PARAGRAPH 90, SPECIAL ORDERS NO. 68, DATED APRIL 3, 1952, DIRECTED HIS RETIREMENT EFFECTIVE APRIL 30, 1952, IN THE GRADE OF SECOND LIEUTENANT PURSUANT TO PROVISIONS OF SECTIONS 402 AND 409 OF THE ACT OF OCTOBER 12, 1949, 63 STAT. 816, 823, 37 U.S.C. 272 AND 279. NECESSARY INSTRUCTIONS FOR RETIREMENT WERE FORWARDED TO THE COMMANDING OFFICER, MADIGAN ARMY HOSPITAL, TACOMA, WASHINGTON, ON APRIL 9, 1952. YOU REPORT THAT HIS RETIRED PAY WAS ESTABLISHED MAY 1, 1952, AT THE RATE OF $195.62 PER MONTH APPARENTLY COMPUTED ON THE PAY OF A SECOND LIEUTENANT WITH OVER 18 YEARS' SERVICE.

THERE IS NO SHOWING THAT SERGEANT FERGUSON WAS AWARE OF THE RETIREMENT ORDERS OF JULY 3, 1951, BUT SINCE HE DID NOT LEAVE HIS STATION IN JAPAN UNTIL AUGUST 26, 1951, IT IS ASSUMED THAT HE WAS ADVISED OF THEM AND DID NOT FAIL TO PASS THE FINAL-TYPE PHYSICAL EXAMINATION. IF THOSE ASSUMPTIONS ARE CORRECT, SERGEANT FERGUSON'S RETIREMENT BECAME LEGALLY EFFECTIVE UNDER THE ORDERS OF JULY 3, 1951, AND THE ORDERS OF OCTOBER 31, 1951, WERE WITHOUT EFFECT TO REVOKE THAT RETIREMENT. SEE 31 COMP. GEN. 296 AND 39 COMP. GEN. 312. ALSO, SINCE THE MEMBER WAS PLACED ON ACTIVE DUTY EFFECTIVE AUGUST 1, 1951, HE PROPERLY WAS PAID ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 1, 1951, TO APRIL 30, 1952. COMMENCING ON THE FOLLOWING DATE HIS RETIRED PAY SHOULD HAVE BEEN COMPUTED ON THE BASIS OF HIS STATUS AS AN ENLISTED MAN RETIRED ON JULY 31, 1951, WITH THE INCREASE, IF ANY, PAYABLE FOR DUTY PERFORMED AFTER RETIREMENT, UNDER THE LAST PROVISO OF SECTION 402 (D) OR SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D), 316, AS APPLICABLE.

QUESTIONS RELATING TO THIS EXAMPLE ARE ANSWERED ACCORDINGLY.

IT IS REPORTED THAT MAJOR FOWLER SUBMITTED AN APPLICATION FOR RETIREMENT DATED OCTOBER 1, 1954, IN THE GRADE OF MASTER SERGEANT (E 7), UNDER THE PROVISIONS OF SECTION I, ARMY REGULATIONS 615-395, WHILE STATIONED AT DETACHMENT 9, SOUTHERN MILITARY DISTRICT, COLUMBIA, SOUTH CAROLINA, AFTER COMPLETING 30 YEARS' SERVICE. PARAGRAPH 96, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 42, DATED MARCH 2, 1955, DIRECTED HIS RETIREMENT FOR LENGTH OF SERVICE AND ADVANCEMENT ON THE RETIRED LIST TO GRADE OF CAPTAIN (0-3), EFFECTIVE MARCH 31, 1955. A MESSAGE DATED MARCH 11, 1955, WAS RECEIVED BY THE ADJUTANT GENERAL, WASHINGTON, D.C; ON APRIL 1, 1955, WHICH STATED THAT THE ENLISTED MEMBER WAS BEING ADMITTED TO THE ARMY HOSPITAL, FORT JACKSON, SOUTH CAROLINA, AND REQUESTED THAT SPECIAL ORDERS NO. 66, PARAGRAPH 110, DATED APRIL 4, 1955, REVOKED THE RETIREMENT ORDERS OF MARCH 2, 1955, AND SPECIAL ORDERS N. 103, DATED MAY 24, 1955 DIRECTED THE MEMBER'S RETIREMENT IN THE GRADE OF CAPTAIN UNDER THE PROVISIONS OF SECTION 402 AND 409 OF THE ACT OF OCTOBER 12, 1949, 37 U.S.C. 272, 279, EFFECTIVE MAY 31, 1955. YOU REPORT THAT SUCH ORDERS LATER WERE AMENDED TO SHOW RETIREMENT AS A MAJOR, SUCH ACTION BEING BASED ON OUR DECISION OF OCTOBER 6, 1958, 38 COMP. GEN. 270. PARAGRAPH 3, SECTION I, ARMY REGULATIONS 615-395, DATED DECEMBER 8, 1947, THE REGULATIONS IN EFFECT AT THE TIME OF MAJOR FOWLER'S RETIREMENT, REQUIRED THAT THE UNIT COMMANDER CAUSE THE INDIVIDUAL (RETIRING AFTER 30 YEARS' SERVICE) TO BE GIVEN A FINAL-TYPE PHYSICAL EXAMINATION AND "IF HIS PHYSICAL CONDITION WARRANTS, THE APPLICANT WILL BE HOSPITALIZED AND PROCESSED UNDER THE PROVISIONS OF SECTION III," WHICH PROVIDED FOR RETIREMENT FOR DISABILITY. IT IS APPARENT THAT SUCH REGULATIONS CONTEMPLATED THAT MEMBERS WHOSE PHYSICAL CONDITION DID NOT MEET CERTAIN STANDARDS SHOULD NOT BE RETIRED FOR YEARS OF SERVICE, BUT SHOULD BE RETIRED FOR PHYSICAL DISABILITY. IN VIEW OF THE ADVANTAGES OF RETIREMENT FOR DISABILITY, ESPECIALLY IN THE CASE OF AN ENLISTED MAN WHO APPLIED FOR RETIREMENT BASED ON 20 YEARS OF ACTIVE SERVICE--- THE ABOVE REGULATIONS WERE APPLICABLE IN SUCH CIRCUMSTANCES, SEE PARAGRAPH B THEREOF--- THERE APPEARS TO BE NO SOUND BASIS TO QUESTION THE VALIDITY OF SUCH REGULATIONS. SIMILAR REGULATIONS CURRENTLY IN EFFECT APPEAR TO REQUIRE FINAL-TYPE PHYSICAL EXAMINATIONS PRIOR TO RETIREMENT FOR YEARS OF SERVICE. SEE PARAGRAPH 12B (3), ARMY REGULATIONS 635-230. SEE ALSO, PARAGRAPH 12, ARMY REGULATIONS 40-100, DATED OCTOBER 27, 1953.

WE SAID IN 31 COMP. GEN. 296, IN EFFECT, THAT THE ACTION TAKEN IN ISSUING A RETIREMENT ORDER IS A FINAL ONE AND CAN BE REOPENED ONLY UPON A SHOWING OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW, OR MATHEMATICAL CALCULATION. THE ONLY NEW EVIDENCE WHICH WAS SHOWN IN THAT CASE WAS OBTAINED, AND RELATED TO A PERIOD, AFTER THE EFFECTIVE DATE OF RETIREMENT.

ORDERS DIRECTING RETIREMENT FOR YEARS OF SERVICE CONTEMPLATE A COMPLIANCE WITH THE REGULATIONS REQUIRING A FINAL-TYPE PHYSICAL EXAMINATION PRIOR TO THE EFFECTIVE DATE OF RETIREMENT STATED IN THE ORDERS. THE REGULATIONS GIVE DETAILED INSTRUCTIONS AS TO THE ACTION TO BE TAKEN IN THE EVENT THE APPLICANT DOES NOT PASS SUCH EXAMINATION AND IT SEEMS CLEAR THAT IF, PRIOR TO SUCH EFFECTIVE DATE, THE APPLICANT FAILS TO PASS THE EXAMINATION, THAT FACT IS SUBSTANTIAL NEW EVIDENCE. WHILE IT IS NOT SHOWN WHETHER MAJOR FOWLER WAS GIVEN A FINAL-TYPE PHYSICAL EXAMINATION, IT IS PRESUMED THAT IT WAS INCIDENT TO SUCH AN EXAMINATION, PRIOR TO THE STATED EFFECTIVE DATE FOR HIS RETIREMENT BASED ON YEARS OF SERVICE, THAT THE NEED FOR HIS HOSPITALIZATION WAS DISCOVERED. THE DISCOVERY OF A PHYSICAL DISABILITY, WHICH MIGHT SERVE AS THE BASIS FOR A DISABILITY RETIREMENT, PRIOR TO THE EFFECTIVE DATE OF AN ORDER FOR RETIREMENT BASED ON YEARS OF SERVICE, WOULD CONSTITUTE SUCH SUBSTANTIAL NEW EVIDENCE AS WOULD WARRANT THE REVOKING OF EXISTING RETIREMENT ORDERS UNDER THE RULE STATED IN 31 COMP. GEN. 296. THAT STATE OF FACTS EXISTS IN THIS CASE AND THE ORDERS OF MARCH 2, 1955, WERE EFFECTIVELY REVOKED. MAJOR FOWLER'S RETIREMENT DATE IS HELD TO BE MAY 31, 1955, AND IT APPEARS THAT HIS RETIRED PAY PROPERLY WAS COMPUTED ON THAT BASIS.

THE DECISION IN 37 COMP. GEN. 19 WILL BE CONSIDERED AS MODIFIED TO THE EXTENT THAT IT IS IN CONFLICT WITH THE VIEWS EXPRESSED HEREIN.

THE QUESTION RAISED IN THE SECOND EXAMPLE ARE ANSWERED ACCORDINGLY.

IT IS STATED THAT SERGEANT HUMPHRIES SUBMITTED AN APPLICATION FOR RETIREMENT ON NOVEMBER 26, 1948, UNDER SECTION III, ARMY REGULATIONS 615- 395 (ACT OF JUNE 30, 1941, 55 STAT. 394), FOR PHYSICAL DISABILITY WHICH WAS CANCELED BECAUSE OF DISAPPROVAL BY THE SURGEON GENERAL AND THE MEMBER WAS HOSPITALIZED FOR FURTHER TREATMENT. ON MARCH 9, 1949, HE SUBMITTED AN APPLICATION FOR RETIREMENT UNDER SECTION II OF SUCH REGULATIONS (20 YEARS' ACTIVE SERVICE, ACT OF OCTOBER 6, 1945, 59 STAT. 538). DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 87, DATED MAY 5, 1949, DIRECTED HIS RETIREMENT EFFECTIVE MAY 31, 1949. THE COMMANDING OFFICER, FORT BRAGG, NORTH CAROLINA, ADVISED BY FIRST ENDORSEMENT DATED MAY 31, 1949 (RECEIVED IN THE ADJUTANT GENERAL'S OFFICE, WASHINGTON, D.C. ON JUNE 9, 1949), THAT SERGEANT HUMPHRIES HAD FAILED TO MEET PHYSICAL REQUIREMENTS FOR RETIREMENT AND HAD ENTERED THE STATION HOSPITAL ON MAY 31, 1949, FOR FURTHER DISPOSITION. RETIREMENT ORDERS WERE REVOKED BY DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 113, DATED JUNE 13, 1949. ON JUNE 23, 1949, SERGEANT HUMPHRIES AGAIN SUBMITTED AN APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1941 (DISABILITY), WHICH WAS APPROVED. DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 132 DIRECTED HIS RETIREMENT EFFECTIVE JULY 31, 1949.

SINCE SERGEANT HUMPHRIES WAS HOSPITALIZED ON WHAT WAS TO HAVE BEEN THE EFFECTIVE DATE OF HIS NONDISABILITY RETIREMENT, WITH A DISABILITY WHICH SUBSEQUENTLY RESULTED IN HIS RETIREMENT, FOR DISABILITY, SUCH DISABILITY CONSTITUTED SUBSTANTIAL NEW EVIDENCE JUSTIFYING THE REVOCATION OF THE ORDERS OF MAY 5, 1949. IT IS HELD THAT HE WAS NOT RETIRED UNTIL JULY 31, 1949, AND THAT HE IS ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF LAW APPLICABLE TO THAT RETIREMENT. INFORMATION SUBMITTED SHOWS THAT HE HAS BEEN PAID ON THAT BASIS.

IT IS STATED THAT THE PERMANENT RETIREMENT OF SERGEANT KRIEGER FOR PHYSICAL DISABILITY WAS DIRECTED EFFECTIVE JANUARY 31, 1956, BY DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 7, DATED JANUARY 10, 1956. SUCH ACTION FOLLOWED THE FINDING OF A PHYSICAL EVALUATION BOARD CONVENED ON DECEMBER 14, 1955, THAT HE WAS PHYSICALLY UNFIT FOR DUTY BY REASON OF A DISABILITY RATED AT 50 PERCENT. THE COMMANDING OFFICER, ARMY HOSPITAL, FORT DEVENS, MASSACHUSETTS, ADVISED THE ADJUTANT GENERAL THAT COMPLIANCE WITH RETIREMENT ORDERS COULD NOT BE EFFECTED DUE TO THE MEMBER'S HOSPITALIZATION ON JANUARY 26, 1956, AND TRANSFER TO VALLEY FORGE ARMY HOSPITAL FOR FURTHER HOSPITALIZATION ON THE FOLLOWING DAY. THE RETIREMENT ORDERS WERE REVOKED ON FEBRUARY 1, 1956. AFTER MAXIMUM HOSPITALIZATION WAS RECEIVED, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 93, DATED MAY 10, 1956, DIRECTED HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 31, 1956, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE ACT OF OCTOBER 12, 1949. 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 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 PROPERTY PAID ON THE BASIS COMMENCING JUNE 1, 1956.

THE RULES DISCUSSED ABOVE SHOULD BE USED IN DETERMINING THE RIGHTS OF THE PERSONS INVOLVED IN THE OTHER CASES TO WHICH YOU REFER, IF THE FACTS IN THOSE CASES ARE SUCH AS TO BRING THEM WITHIN SUCH RULES.

SINCE NONE OF THE ABOVE-MENTIONED MEMBERS ARE ENTITLED TO RETIRED PAY DURING THE PERIODS COVERED BY THE SUBMITTED VOUCHER, IT WILL BE RETAINED HERE.