B-141806, MAY 11, 1960, 39 COMP. GEN. 766

B-141806, MAY 11, 1960, 39 COMP. GEN. 766

MILITARY PERSONNEL - DISCHARGE - INEFFECTIVE - STATUS - PAY AND ALLOWANCES A DISCHARGE OF AN ENLISTED MAN, WHICH WAS TO BE HELD IN ABEYANCE IN THE EVENT THAT FURTHER HOSPITALIZATION WAS REQUIRED FOR A NEW DISABILITY NOT PRESENT WHEN THE MEMBER WENT BEFORE THE PHYSICAL EVALUATION BOARD BUT WHICH, NEVERTHELESS, WAS EFFECTED, EVEN THOUGH PRIOR TO THE EFFECTIVE DATE OF THE DISCHARGE THE MEMBER WAS HOSPITALIZED FOR A NEW DISABILITY, IS A CONDITIONAL DISCHARGE WHICH DOES NOT TERMINATE THE MEMBER'S ACTIVE STATUS AND, THEREFORE, THE ENLISTED MEMBER IS ENTITLED TO ACTIVE DUTY PAY UNTIL SUBSEQUENT PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHOSE DISCHARGE DID NOT TERMINATE HIS ACTIVE DUTY STATUS BECAUSE THE MEMBER WAS HOSPITALIZED FOR A NEW DISABILITY PRIOR TO THE EFFECTIVE DATE OF THE DISCHARGE, WHICH REQUIRED ABATEMENT OF THE DISCHARGE ACTION, IS CONSIDERED TO HAVE BEEN IN AN ACTIVE DUTY STATUS AND IN RECEIPT OF ACTIVE DUTY PAY TO BE ENTITLED TO A SUBSISTENCE ALLOWANCE BECAUSE RATIONS IN KIND WERE NOT AVAILABLE, TO CREDIT FOR BASIC ALLOWANCE FOR QUARTERS IN THE EVENT THE CLASS Q ALLOTMENT REQUIREMENT IS WAIVED UNDER 37 U.S.C. 252 (J), AND TO ACCRUED ANNUAL LEAVE UNTIL SUBSEQUENT PLACEMENT ON THE TEMPORARY DISABILITY RETIREMENT LIST. AN ENLISTED MEMBER WHO WAS PAID DISABILITY SEVERANCE PAY, MILEAGE, AND LUMP-SUM LEAVE INCIDENT TO A DISCHARGE WHICH WAS SUBSEQUENTLY DETERMINED NOT TO HAVE TERMINATED THE MEMBER'S ACTIVE DUTY STATUS BECAUSE THE MEMBER WAS HOSPITALIZED FOR A NEW DISABILITY TO THE EFFECTIVE DATE OF THE DISCHARGE IS CONSIDERED IN AN ACTIVE DUTY STATUS AFTER THE DISCHARGE SO THAT CHECK AGE SHOULD BE MADE FOR PAYMENTS MADE INCIDENT TO THE INEFFECTIVE DISCHARGE. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, PURSUANT TO 10 U.S.C. 1202, FOLLOWING AN INEFFECTIVE DISCHARGE IS NOT PRECLUDED FROM RECEIVING RETIRED PAY FROM THE EFFECTIVE DATE OF PLACEMENT OF SUCH LIST.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, MAY 11, 1960:

BY SECOND ENDORSEMENT DATED JANUARY 22, 1960, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF DECEMBER 16, 1959, WITH ENCLOSURES, REQUESTING A DECISION (ASSIGNED SUBMISSION NO. DO-N-474 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) ON SEVERAL QUESTIONS CONCERNING THE ENTITLEMENT OF L. B. SWANNER, 480 27 52, CSSN, USN, TO ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY UNDER THE CIRCUMSTANCES DISCLOSED.

IT APPEARS FROM THE ENCLOSURES THAT BY LETTER FROM THE CHIEF OF NAVAL PERSONNEL DATED MARCH 3, 1959, THE COMMANDING OFFICER, U.S. NAVAL RECEIVING STATION, SAN DIEGO, CALIFORNIA, PURSUANT TO THE ACTION OF THE SECRETARY OF THE NAVY ON FEBRUARY 26, 1959, WAS DIRECTED TO DISCHARGE SWANNER FROM THE NAVAL SERVICE NOT LATER THAN MARCH 24, 1959, BY REASON OF PHYSICAL DISABILITY WITH SEVERANCE PAY. PARAGRAPH 3 OF THAT LETTER EXPRESSLY PROVIDED:

3. IN THE EVENT FURTHER HOSPITALIZATION FOR ANY NEW IMPAIRMENT NOT PRESENT WHEN THE MEMBER APPEARED BEFORE THE PHYSICAL EVALUATION BOARD IS REQUIRED, THIS DISCHARGE AUTHORIZATION WILL BE HELD IN ABEYANCE AND FURTHER INSTRUCTIONS REQUESTED OF THE CHIEF OF NAVAL PERSONNEL VIA THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY.

WE HAVE BEEN ADVISED INFORMALLY BY THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT THE SECRETARY'S ACTION OF FEBRUARY 26, 1959, TO DISCHARGE SWANNER BY REASON OF PHYSICAL DISABILITY WAS BASED ON THE ENLISTED MAN'S APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD ON JANUARY 27, 1959, AND THE RECOMMENDATION OF THAT BOARD THAT HE BE DISCHARGED BY REASON OF PHYSICAL DISABILITY ON ACCOUNT OF A KNEE DISABILITY. SEE PARAGRAPH 1 OF OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED AUGUST 7, 1959, CONCERNING SWANNER'S CASE. IN OTHER WORDS, SWANNER ORIGINALLY WAS SCHEDULED TO BE DISCHARGED FOR PHYSICAL DISABILITY BY REASON OF A KNEE DISABILITY.

ON FEBRUARY 5, 1959, HOWEVER, SUBSEQUENT TO HIS APPEARANCE BEFORE THE PHYSICAL EVALUATION BOARD, SWANNER WAS ADMITTED TO THE U.S. NAVY HOSPITAL, SAN DIEGO, CALIFORNIA, FOR A BLEEDING DUODENAL ULCER, AND ON FEBRUARY 7, 1959, HE WAS OPERATED ON AND THE DIAGNOSIS WAS CHANGED TO "ABSENCE STOMACH ACQUIRED SURGICALLY REMOVED.' ON MARCH 19, 1959, THE U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, REFERRING TO THE LETTER OF MARCH 3, 1959, ADVISED THE BUREAU OF NAVAL PERSONNEL OF THE STOMACH OPERATION AND REQUESTED A TWO -WEEK EXTENSION OF TIME TO ALLOW FOR POST OPERATIVE FOLLOW-UP. ON MARCH 19, 1959, THE SECRETARY OF THE NAVY ON THE BASIS OF THAT NEW INFORMATION, CANCELED HIS ACTION OF FEBRUARY 26, 1959, DIRECTING SWANNER'S DISCHARGE BY REASON OF PHYSICAL DISABILITY. THE RECORD DOES NOT DISCLOSE WHY THIS LATTER ACTION WAS NOT PROMPTLY COMMUNICATED TO THE UNITED STATES NAVAL HOSPITAL AT SAN DIEGO. HOWEVER, WHEN A SPEEDLETTER DATED MARCH 30, 1959, CANCELING THE LETTER OF MARCH 3, 1959, WAS RECEIVED, SWANNER HAD ALREADY BEEN DISCHARGED ON MARCH 24, 1959.

IN SUMMARY, THE RECORD BEFORE US AND INFORMATION INFORMALLY OBTAINED FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY INDICATE THAT THE ACTION TAKEN BY THE SECRETARY OF THE NAVY ON FEBRUARY 26, 1959, DIRECTING SWANNER'S DISCHARGE WAS PREDICATED SOLELY ON THE KNEE DISABILITY AND THAT NEITHER THE SECRETARY OF THE NAVY NOR THE NAVY DEPARTMENT IN WASHINGTON THEN HAD ANY INFORMATION CONCERNING THE STOMACH DISABILITY FOR WHICH SWANNER WAS HOSPITALIZED ON FEBRUARY 5, 1959, AND FOR WHICH HE UNDERWENT AN OPERATION ON FEBRUARY 7, 1959. IN VIEW OF THAT SUBSEQUENT HOSPITALIZATION FOR THE DISABLING STOMACH CONDITION, THE DIRECTIVE IN THE LETTER OF MARCH 3, 1959, THAT SWANNER'S DISCHARGE BE HELD IN ABEYANCE IF HE WERE HOSPITALIZED FOR ANY NEW IMPAIRMENT NOT PRESENT WHEN HE APPEARED BEFORE THE PHYSICAL EVALUATION BOARD, WAS FOR APPLICATION AND EFFECTIVELY CANCELED THE DISCHARGE DIRECTIVE BASED ON THE KNEE DISABILITY.

THE JUDGE ADVOCATE GENERAL OF THE NAVY IN AN OPINION DATED AUGUST 7, 1959, IN SWANNER'S CASE HELD IN PERTINENT PART:

* * * THE PARTY WAS DISCHARGED ON 24 MARCH, WHICH WAS FIVE DAYS AFTER THE AUTHORITY THEREFOR HAD BEEN CANCELED. SINCE SWANNER'S SEPARATION FROM THE SERVICE PRIOR TO FINAL ACTION BY THE SECRETARY OF THE NAVY WAS WITHOUT AUTHORITY, IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL THAT HIS DISCHARGE WAS ILLEGAL.

3. IT HAS BEEN HELD BY REFERENCE (A), (CASE OF STAFF SERGEANT PENROSE, CITING ADDITIONAL CASES), THAT AN ILLEGAL DISCHARGE MAY BE CANCELED AND THE MEMBER RESTORED TO DUTY) WITH FULL PAY AND ALLOWANCES. IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL THAT SWANNER'S SEPARATION FROM THE SERVICE ON 24 MARCH 1959 SHOULD BE CANCELED, AND THAT HE SHOULD BE ISSUED APPROPRIATE ORDERS FOR APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD IN ORDER THAT ALL HIS DISABILITIES MAY BE RATED AS APPROPRIATE.

THE RECORD FURTHER SHOWS THAT BY ORDERS DATED SEPTEMBER 3, 1959, SWANNER WAS RESTORED TO DUTY FOR THE PURPOSE OF APPEARING BEFORE A PHYSICAL EVALUATION BOARD. IT IS STATED IN LETTER DATED OCTOBER 19, 1959, FROM THE U.S. NAVY ACCOUNTS DISBURSING OFFICE, GREAT LAKES, ILLINOIS, TO THE COMPTROLLER OF THE NAVY, THAT SWANNER WAS ADMITTED TO THE U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, ON SEPTEMBER 14, 1959, AND THAT HE WAS RELEASED TO HOME IN AN AWAITING ORDERS STATUS ON OCTOBER 15, 1959. ORDERS DATED NOVEMBER 23, 1959, SWANNER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1959, IN THE GRADE OF SEAMAN WITH A DISABILITY RATING OF 50 PERCENT. THE PAY RECORD SHOWS THAT FOR THE PERIOD SEPTEMBER 14, 1959, TO NOVEMBER 30, 1959, HE WAS PAID PAY AND ALLOWANCES AS A SEAMAN WITH OVER TWO YEARS' SERVICE, WHICH INCLUDED CREDITS FOR BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT (WIFE) AND A CORRESPONDING CHECK AGE FOR A CLASS Q ALLOTMENT.

SINCE IN SUBMITTING THE MATTER HERE THE COMPTROLLER OF THE NAVY ASKS TWO QUESTIONS IN ADDITION TO THOSE PRESENTED IN YOUR LETTER, THE QUESTIONS HAVE BEEN REARRANGED AS FOLLOWS:

A. IS SWANNER ENTITLED TO BASIC PAY FROM 25 MARCH 1959 THROUGH

30 NOVEMBER 1959?

B. IS SWANNER ENTITLED TO SUBSISTENCE AT $2.565 PER DAY BASIC

ALLOWANCE FOR QUARTERS, AND ACCUMULATED LEAVE FROM 25 MARCH 1959?

C. SHOULD CHECK AGE BE MADE FOR DISABILITY SEVERANCE PAY, MILEAGE

ALLOWANCE, AND LUMP-SUM LEAVE THAT WAS PAID TO SWANNER ON DATE

OF DISCHARGE?

D. IS SWANNER ENTITLED TO RETIRED PAY ON AND AFTER 1 DECEMBER

1959?

THE LONG-ESTABLISHED RULE IS THAT DISCHARGES ONCE VALIDLY ISSUED BY COMPETENT AUTHORITY MAY NOT BE REVOKED UNLESS THEY WERE PROCURED THROUGH FRAUD OR MISREPRESENTATION. 4 COMP. GEN. 260; 27 COMP. GEN. 495; 31 COMP. GEN. 665, AND AUTHORITIES THERE CITED. IN THIS CASE, HOWEVER, THE DIRECTION TO DISCHARGE THE ENLISTED MAN WAS CONDITIONAL AND HIS DISCHARGE WAS NOT AUTHORIZED IN THE EVENT FURTHER HOSPITALIZATION WAS REQUIRED FOR A NEW DISABILITY. THE LOCAL NAVAL AUTHORITIES DID NOT COMPLY WITH THE PROVISIONS OF PARAGRAPH 3 OF THE ABOVE-QUOTED LETTER OF MARCH 3, 1959, DIRECTING THAT THE DISCHARGE BE HELD IN ABEYANCE AND THAT FURTHER INSTRUCTIONS BE REQUESTED IN THE EVENT FURTHER HOSPITALIZATION WAS REQUIRED FOR ANY NEW IMPAIRMENT NOT PRESENT WHEN THE MEMBER APPEARED BEFORE THE PHYSICAL EVALUATION BOARD. SINCE PRIOR TO DISCHARGE SWANNER WAS OPERATED ON BY REASON OF AN ULCER WHICH WAS A NEW IMPAIRMENT NOT PRESENT WHEN HE APPEARED BEFORE THE PHYSICAL EVALUATION BOARD, THE DIRECTION IN THE LETTER OF MARCH 3, 1959, TO HOLD HIS DISCHARGE IN ABEYANCE AND REQUEST FURTHER INSTRUCTIONS BECAME EFFECTIVE AND IT IS OUR VIEW THAT THE DISCHARGE OF MARCH 24, 1959, DID NOT TERMINATE SWANNER'S ACTIVE STATUS. HENCE, HE MUST BE CONSIDERED AS CONTINUING ON ACTIVE DUTY DURING THE PERIOD MARCH 25, 1959, TO NOVEMBER 30, 1959. WE CONCUR WITH THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN THIS CASE. COMPARE 32 COMP. GEN. 558. SWANNER IS, THEREFORE, CONSIDERED AS HAVING BEEN IN AN ACTIVE DUTY STATUS DURING THE PERIOD MARCH 25, 1959, TO NOVEMBER 30, 1959, AND HE IS ENTITLED TO ACTIVE DUTY PAY FOR THAT PERIOD. QUESTION A IS ANSWERED IN THE AFFIRMATIVE.

UNDER THE PROVISIONS OF 37 U.S.C. 251 (A), A MEMBER OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY IS ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE, WHEN (1) RATIONS IN KIND ARE NOT AVAILABLE, AT THE RATE OF $2.565 PER DAY. SINCE RATIONS IN KIND WERE NOT AVAILABLE TO HIM, HE IS ENTITLED TO THE SUBSISTENCE ALLOWANCE AS INDICATED. WHILE ENTITLEMENT TO CREDIT OF A BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IS CONTINGENT UPON THE MEMBER HAVING IN EFFECT A CLASS Q ALLOTMENT FOR THE SUPPORT OF HIS DEPENDENT (37 U.S.C. 252 (H) (, SINCE THE ENLISTED MAN HAD A CLASS Q ALLOTMENT IN EFFECT IMMEDIATELY PRIOR TO HIS DISCHARGE, IT IS OUR VIEW THAT IF THE ALLOTMENT REQUIREMENT IS WAIVED BY THE SECRETARY (37 U.S.C. 252 (J) (, HE IS ENTITLED TO THE CREDIT OF THE BASIC ALLOWANCE FOR QUARTERS. SINCE SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A, PROVIDES FOR THE ACCRUAL OF ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS FOR EACH MONTH OF "ACTIVE SERVICE," AND SINCE SWANNER IS CONSIDERED AS BEING IN AN ACTIVE DUTY STATUS FROM MARCH 25 TO NOVEMBER 30, 1959, HE IS ENTITLED TO ACCRUED LEAVE EARNED DURING THAT PERIOD. QUESTION B IS ANSWERED IN THE AFFIRMATIVE.

SINCE THE ENLISTED MAN WAS PAID DISABILITY SEVERANCE PAY, MILEAGE, AND LUMP-SUM LEAVE INCIDENT TO HIS DISCHARGE ON MARCH 24, 1959, AND SINCE HE IS CONSIDERED TO BE IN AN ACTIVE DUTY STATUS ON AND AFTER MARCH 24, 1959, A CHECK AGE SHOULD BE MADE IN HIS ACCOUNT TO COVER THOSE PAYMENTS. QUESTION C IS ANSWERED IN THE AFFIRMATIVE.

SINCE PURSUANT TO ORDERS OF NOVEMBER 23, 1959, SWANNER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1959, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1202, WE KNOW OF NO REASON, NOR HAS ANY BEEN ADVANCED, WHICH WOULD PRECLUDE ENTITLEMENT TO RETIRED PAY ON AND AFTER DECEMBER 1, 1959. ACCORDINGLY, QUESTION D IS ANSWERED IN THE AFFIRMATIVE.