may become entitled to physical disability retirement benefits under the provisions of subsec 402 (c), Career Compensation Act of 1949 (63 Stat 817, 37 USC 272 (c)). Such entitlement, however, is dependent upon findings that the member is physically unfit to perform the duties of his office, rank, grade, or rating, and that the disability is or may be permanent. The nature of such benefits, i.e., whether the member is entitled to be retired, placed on the temporary disability retired list, or separated from the service with disability severance pay, is dependent upon whether the disability is, as distinguished from may be, permanent and whether it is rated 30 per centum or more, or less than 30 per centum. (Citing JAGA 1950/4379, 25 Jul 1950; JAGA 1952/5304, 26 Jun 1952; AR 600-450, 7 Nov 1949, as changed; pars 2, 28, SR 600-450-5, 12 Jul 1951, as changed.) JAGA 1954/5784. 9 July 1954.

§ 20.3. Entitlement to basic pay at time of determination; active duty without pay status.

Members of Reserve components who suffer disability in line of duty from injury while performing active duty without pay may be entitled to disability retirement under subsec 402 (c) of the Career Compensation Act of 1949, 63 Stat 817, only in those cases where the period of active duty is for thirty days or less. However, one of the purposes of sec 240 of the Armed Forces Reserve Act of 1952, 66 Stat 492, is to save individuals serving in a nonpay status under the authority of sec 240 the retirement rights which would have accrued to them if they had been entitled to receive basic pay at the time of incurrence of physical disability. Accordingly, notwithstanding their nonpay status, members of the uniformed services ordered to extended active duty without pay for periods in excess of thirty days pursuant to sec 240 are to be regarded as having been "entitled to receive basic pay" during their active duty period for the purposes of sec 402 of the Career Compensation Act. Therefore, if the members concerned are entitled to pay and allowances under the Act of 20 June 1949, at the time the disability determination is made, they are to be regarded as entitled to disability retirement under subsecs 402 (a) or 402 (b) of the Career Compensation Act, as the case may be, if otherwise qualified. (Citing 31 Comp Gen 445; 33 Comp Gen 339; Sen Rep No. 1795, 19 June 1952, p 30.) MS Comp Gen B-117730, 33 Comp Gen 411. 29 March 1954.

§ 20.41. Persons under court-martial sentence or awaiting courtmartial trial.

An enlisted man was sentenced to dishonorable discharge, total forfeiture and confinement at hard labor for one year. Prior to the completion of his sentence he was released from confinement and returned to duty subject to final disposition of his case following appellate review. On the same date the Secretary of the Army remitted the dishonorable discharge and ordered substitution of an undesirable discharge. That part of the sentence to forfeitures which remained unexecuted at the time of his release was suspended. Subsequent to his release a physical evaluation board found him unfit for service by reason of a disability which had been aggravated

by his confinement. The Army Physical Review Council approved the findings of the board and appellate review of his court-martial conviction has been completed but the man has not been discharged. Held: Under the above circumstances the enlisted man may be discharged with an undesirable discharge or may be retired for physical disability pursuant to the provisions of sec 402 of the Career Compensation Act of 1949 (63 Stat 816, 37 USC 272) as determined by the Secretary of the Army acting within his discretionary authority in such matters.

Held also: If he is retired the unexecuted portion of his courtmartial sentence would thereby be remitted. If he is given an undesirable discharge he would not thereafter be eligible for the benefits of title IV of the Career Compensation Act of 1949, supra. (Citing JAGA 1953/2148, 25 Feb 1953; JAGA 1952/7603, 7 Oct 1952, 2 Dig Ops RETIRE § 20.1.) JAGA 1953/8372. 21 December 1953.

Charges of sodomy were preferred against an enlisted man. The investigating officer recommended that the man be discharged under the provisions of AR 600-443, 10 Apr 1953, as changed by Cl, 15 April 1954, as a class II homosexual. The man signed a statement agreeing to accept an undesirable discharge "for the good of the service and to escape trial by general court-martial". Shortly thereafter he was found to be suffering from tuberculosis and was hospitalized. His discharge has not been effected. Held: Since the charges preferred against the man relate to an offense for which a punitive discharge may be adjudged and have not been withdrawn, processing him for physical disability retirement or separation would be contrary to regulations. (Citing subpar 1c, AR 600-450, 7 Nov 1949, as changed by C3, 17 Sep 1951; subpar 2b, SR 600-4505, 12 Jul 1951; JAGA 1954/611, 24 Nov 1954 conf; JAGA 1954/2964, 7 Apr 1954.) JAGA 1955/1238. 1 February 1955.

§ 31.1. Generally.

§ 31. Review; Reconsideration

A medical disposition board found an officer to be suffering from several incapacities incident to his military service but it also found that none of them constituted a disability for military service, and found further that the officer was qualified for overseas service. The board recommended that he be ordered to appear before an Air Force retiring board for administrative purposes. The officer appeared before such retiring board which found that he was not permanently incapacitated for active service. He was ordered to revert to inactive duty "not by reason of physical disability." He then received compensation from the Veterans' Administration on the basis that he was forty per cent disabled. Subsequently he was retired as an officer who had reached the age of 60 and had twenty years or more of satisfactory Federal service. In that status he received a retired pay less than the retired pay of an officer retired for disability incident to service. He brought suit for the retired pay of an officer retired for disability incurred in military service. Held: A court cannot undertake to determine who is fit or unfit to serve in the

military forces. Even if it were within the province of the Court of Claims to review the decisions of the Medical Disposition Board and the Air Force Retiring Board, it could not say here that their conclusions were wrong. The conclusion that the officer should revert to his inactive status apparently was based on the fact that his usefulness was impaired by frequent hospitalizations although his ailments did not permanently disable him. The Veterans' Administrations decision that he was forty per cent disabled was made under a different law apparently administered more liberally. Holliday v. U. S. (Ct Cl No. 575–53) — F Supp. 8 June 1954.

A Committee Action, Military Pay and Allowance Committee, Department of Defense, raised two questions: (1) May it be presumed in the case of a non-Regular officer who has been released from extended active duty, not by reason of physical disability, prior to 1 October 1949, and who has appealed his case and had it reviewed prior to 1 October 1949 by the Army Disability Review Board established under the provisions of sec 302, Servicemen's Readjustment Act of 1944 (58 Stat 287), as amended (38 USC 693i), that the board in considering his case acted under the general discretionary authority placed in the Secretary of the Army by the provisions of the last proviso of sec 5, Act of 3 April 1939 (53 Stat 557), as amended (10 USC 456), so that its findings that the officer is entitled to disability retirement pay under the provisions of the last mentioned act may provide the basis for the payment of disability retirement pay? (2) If the answer to the foregoing is in the affirmative, and the findings of the Army Disability Review Board establish that an officer is entitled to disability retirement pay, from what date would entitlement to retired pay accrue?

Held that:

the Army Disability Review Board established under sec 302a of the Servicemen's Readjustment Act of 1944 (58 Stat 287), as amended (38 USC 693i), is without jurisdiction in a case in which release from active duty was not effected by reason of physical disability. Hence, a review by said board, made under the circumstances set out in question 1 above may not be considered as an effective determination of rights under sec 302a of the Servicemen's Readjustment Act of 1944. However, the Secretary of the Army had broad discretionary authority under the Act of 3 April 1939 (53 Stat 557), as amended (10 USC 456), to determine the existence or nonexistence of conditions governing an officer's entitlement to disability retirement pay and such act does not provide that determinations thereunder shall be based upon recommendations or advice from any specified source. Hence, although the review board may have had no jurisdiction to make findings or recommendations, such purported findings and recommendations represented an opinion of persons presumed to be competent to form a sound opinion respecting the disability of the officer concerned. Under such circumstances there is no reason for questioning the propriety of the Secretary's action based upon such an opinion even though he may have been mistaken with respect to

the legal effect of his approval of the board's findings and recommendations. Accordingly, in any case of the type described in question 1 wherein the Secretary of the Army took action prior to 1 October 1949, amounting to a determination that the officer concerned had become permanently incapacitated for active duty from disease or injury suffered in line of duty, as a result of an incident of service, while employed on extended active duty, such action may be considered as providing a proper basis for payment of disability retirement pay. (Cf. 31 Comp Gen 78.)

- with respect to question 2, assuming that in all cases reviewed by the Army Disability Review Board and approved for disability retirement pay prior to 1 October 1949, the Department of the Army certified to the Veterans' Administration, as the effective date of the officer's or former officer's entitlement to such retirement pay, the date of approval of the findings and recommendations of the review board, the officer or former officer is not entitled to retirement pay for any period before the effective date of entitlement so certified to the Veterans' Administration, excepting in those cases wherein the review board had jurisdiction and wherein retroactive retirement pay was, therefore, paid or payable under the rule established in the cases of Womer v. U. S., 114 Ct Cl 415, and Hamrick v. U. S., 120 Ct Cl 17, 1 Dig Ops, RETIRE 67.1.

- no administrative action currently taken in such cases, excepting action to make appropriate corrections in military records as authorized by sec 207 of the Legislative Reorganization Act of 1946, as amended (5 USC 191a), could confer a right to retroactive retirement pay covering the period from the date of the officer's release from active duty to the effective date of the certification to the Veterans' Administration of his retirement pay rights. with reference to the applicability of the Uniform Retirement Date Act of 23 April 1930 (46 Stat 253, 5 USC 47a) to retirement pay awarded under the Act of 3 April 1939, as amended, such retirement pay is in the nature of pension, accruing as it does to persons meeting stipulated conditions without regard to their being retired or remaining in the service. In line with this position, the said Act of 23 April 1930, has no application to such retirement pay. (Citing MS Comp Gen B-32764, 23 Comp Gen 284, 19 Oct 1943, 2 Bull. JAG 398; 32 Comp Gen 242, 247; 26 Comp Gen 711, 715; B-117367, 4 Nov 1953.) MS Comp Gen B-118504, 33 Comp Gen 518. 23 April 1954.

An officer who was retired with 60 per cent disability requested reconsideration of his case. He introduced a signed statement by a physician, who had recommended that he appear before a physical evaluation board, in which the physician stated that he was in disagreement with the findings of the board and recommended reconsideration; a statement by the president of the physical evaluation board which considered the case that he disagreed with the percentage of disability found by that board; and a statement by a medical officer, whose diagnosis of the retired officer was among those records considered by the disposition board and the

physical evaluation board, that the retired officer was "entitled to 100 per cent disability now as well as at the time of his retirement." Held: Retirement proceedings, once effectuated by orders of retirement or separation, may not be reopened or revoked in the absence of fraud, manifest error, mathematical miscalculation, mistake of law, or substantial new evidence, under the doctrine of functus officio (JAGA 1952/8072, 22 Oct 1952, 2 Dig Ops, RETIRE § 31.1; JAGA 1954/5344, 1 Jul 1954). Evidence such as that contained in the above statements does not constitute new evidence so as to bring the case within the exception to the rule (JAGA 1954/6866, 20 Aug 1954; JAGA 1954/6907, 20 Aug 1954). However, although the disability retirement case may not be reconsidered under Title IV of the Career Compensation Act of 1949, (63 Stat 816), as amended (37 USC 271), the Army Board for Correction of Military Records may, upon the retired officer's application, review the records resulting from the disability retirement proceedings. JAGA 1954/8099. 28 September 1954.

A Reserve officer injured in line of duty as the proximate result of the performance of active duty for training but who has not been retired or released from active service without pay for physical disability pursuant to the decision of a retiring board, board of medical survey, or disposition board, is not within the statutory jurisdiction of the Army Disability Review Board, established under the authority of sec 302, Servicemen's Readjustment Act of 1944 (58 Stat 287) as amended (38 USC 6931). (Citing subpar la, DA Memo 15-160-1, 14 Sep 1950; 29 Comp Gen 382; 30 Comp Gen 409, 411; 33 Comp Gen 83; 33 Comp Gen 1.) JAGA 1954/5784. 9 July 1954.

§ 31.7. Per centum of disability.

A member who was retired for physical disability and the per centum of disability finally determined under the provisions of Title IV of the Career Compensation Act, PL 351, 81st Cong, is subsequently recalled to active duty. During the period of active duty he incurs a new disability ratable at 20 per cent in accordance with the Veterans Administration Schedule for rating disabilities. There has been no aggravation of the old physical disability for which he was originally retired. Held: In the absence of fraud, manifest error, mathematical miscalculation, mistake of law, or substantial new evidence in connection therewith, the evaluation of the per centum of the old physical disability for which the member was retired may not be reopened or revoked. Neither is the per centum of the old physical disability award subject to revision on the basis of a claim of error in the original determination. However, upon the member's application, the Army Board for Correction of Military Records could review the records of the disability retirement proceedings in the member's case. (See JAGA 1952/4968, 1 Jul 1952; JAGA 1953/7896, 30 Oct 1953, 3 Dig Ops, Retire § 31.7; JAGA 1953/9741, 31 Dec 1953, 3 Dig Ops, Retire § 31.1; JAGA 1954/1548, 18 Feb 1954.)

Held also: Generally, upon return to the retired list, the member