JAGA 1951/3929, 5 Jul 1951; JTR 8012.2, 7004.1, 7004.5; 31 Comp Gen 444; 30 Comp Gen 409; JAGA 1952/7603, 7 Oct 1952; JAGA 1952/7320, 1 Oct 1952; JAGA 1951/3384, 10 Jul 1951; JAGA 1951/ 4414, 18 Jul 1951.) JAGA 1953/2279. 2 March 1953.

Eligibility for disability retirement of a Coast Guard officer, a former employee of the BMIN, does not contain any requirement that he have a disability that was incurred while in service with the Coast Guard in a military capacity or aggravated during such service. Rather, the requirement is that he be permanently disabled to perform the duties of his rank in his specialty. The fact that the disability might have been incurred prior to his appointment in the Coast Guard is immaterial in view of 14 USC 433 (g) providing that “a disability shall be deemed to have been incurred incident to Coast Guard service if the cause of such disability is not due to vicious habits, intemperance, or misconduct." In other words, former BMIN personnel appointed pursuant to PL 219 have full disability retirement coverage for disability not due to vicious habits, intemperance, or misconduct, whether incurred prior to or during active Coast Guard service, provided such member is found unfit to perform the duties of his rank in his specialty. Op CCCG 1953-2. 10 March 1953.

An enlisted man was inducted on 7 September 1950 and under the law his term of service would have expired on 6 September 1952 (subsec 4(b), Universal Military Training and Service Act). He was transferred overseas to Korea in January 1951 and on 19 July 1951, while in Korea, he was tried by general court-martial and sentenced to dishonorable discharge, confinement at hard labor for ten years, and forfeiture of all pay and allowances. The convening authority modified the sentence, and, inter alia, suspended the execution of the sentence for an indefinite period of time. A board of review affirmed the sentence. On 3 October 1951 the enlisted man, still in Korea, was wounded in action. As a result thereof he was returned to the United States and found by a medical board totally unfit for military service. On 27 January 1953 he appeared before a physical evaluation board and was found to be unfit as a result of a disability incurred while entitled to receive basic pay, not incurred during a period of unauthorized absence or as the result of intentional misconduct or neglect, the proximate result of the performance of active duty (in line of duty during war), permanent, and rated at thirty per centum. Subsequently the Secretary of the Army approved his permanent retirement, effective 28 February 1953, under the provisions of sec 402, Career Compensation Act of 1949 (63 Stat 816; 317 USC 272, ML 1949, App C). Implementing regulations, promulgated pursuant to the provisions. of the Career Compensation Act, supra, provide that: "Members under sentence to dismissal, dishonorable discharge, or bad-conduct discharge, whether or not finally approved, and whether or not suspended" are not processed under the terms of the Act, but "members under suspended sentence of dismissal or dishonorable discharge who are to be discharged or separated for reasons other

than such sentence and who are otherwise within the provisions of [subsec 402 (a), Career Compensation Act, supra] will be processed under these regulations" (subpar 2b (2), SR 600-450-5, 12 July 1951). Held: The history of Special Regulations 600-450-5, supra, reveals that the exception contained in subparagraph 2b (2) was intended to permit a physically unfit member, eligible for discharge or separation for reasons other than his suspended sentence, to be processed under the provisions of the mentioned regulations. While it was not shown that the enlisted man in question consented to be retained in the service beyond the normal expiration of his period of service (6 September 1952), he was in fact retained beyond that date. Without his consent to be retained in the service beyond 6 September 1952 his discharge on that date was mandatory (subpar 11d, AR 615-360, 23 Jan 1952.) His sentence was suspended for an indefinite period and such suspension could not be vacated except in the manner prescribed in UCMJ, Art 72, and MCM, 1951, subpar 97b. Since the suspension had not been vacated prior to 6 September 1952, he was eligible to be discharged on that date with some form of administrative discharge and not under the court-martial sentence (see Dig Ops JAG 1912-1940, sec 401 (1)). It would appear therefore that the EM in question was a member "eligible to be discharged or separated for reasons other than such sentence," within the meaning of the exception to subpar 2b (2), Special Regulations 600-450-5, supra. Accordingly there is no legal objection to the processing of his disability retirement case under the procedures set forth in Special Regulations 600-450-5, supra, or to the accomplishment of his retirement for physical disability under sec 402, Career Compensation Act of 1949. After retirement such enlisted man, being an inductee and not a member of the Regular Army, would no longer be subject to the Uniform Code of Military Justice. In view of the fact that subpar 97b of the Manual for Courts-Martial, United States, 1951, contemplates a "probationer" subject to the Uniform Code of Military Justice, it would appear that suspension of the sentence to dishonorable discharge could not be vacated after retirement. Since his retirement for physical disability would place him in a status which would bar vacation of the sentence to dishonorable discharge and its being ordered into execution, it may be said that in effect his retirement remitted his suspended sentence JAGA 1953/2602. 27 March 1953.

An officer retired for other than physical disability, who subsequently serves on active duty in his retired status and incurs a physical disability of 30 per centum, is entitled to the benefits of the sixth proviso of sec 402 (d), Career Compensation Act of 1949 (63 Stat 819; 37 USC 272(d); ML 1949, Appx "C"), even though the disability did not result in the officer's unfitness, provided that the officer was unfit by reason of other disabilities incurred during active service prior to retirement. (Citing JAGA 1952/5265, 14 July 1952, 2 Dig Ops, RETIRE § 20.1; JAGA 1952/8204, 31 Oct 1952, 2 Dig Ops, RETIRE § 20.3.) JAGA 1953/6537. 21 August 1953.

§ 20.3. Entitlement to basic pay at time of determination.

Inductees released from military control pursuant to a court order after a hearing on a writ of habeas corpus, and pending decision on appeal, are not entitled to pay during the period of absence from military control, and if injured during such period, would not be entitled to disability retirement benefits under the provisions of the Career Compensation Act of 1949 (63 Stat 802, 37 USC 231 et seq, ML 1949, App C) as amended (Act of 19 May 1952, PL 346, 82d Cong, 66 Stat 79). With respect to entitlement to disability retirement benefits, two of the requirements for eligibility for such benefits is that at the time the disability is incurred the member concerned must be entitled to receive basic pay and the disability must have been the proximate result of the performance of active duty, full-time training duty, other full-time duty, or inactive duty training. It is apparent that an inductee in the status in question would not meet such requirements. (Citing SPJGA 1944/1312, 28 Feb 1944; JAGA 1948/6120, 24 Aug 1948.) JAGA 1953/2654. 16 March 1953.

See JAGA 1952/9687, infra § 31.1.

§ 20.6. Disability of temporary nature.

An enlisted man had two disabilities. One was of a permanent nature but existed prior to his military service, and the second, tuberculosis, was found to be "of a temporary nature," which might become permanent. Held: The first disability, having been incurred while he was not entitled to receive basic pay, may not be considered as qualifying the enlisted man for the benfits of subsection 402 (a), Career Compensation Act of 1949 (63 Stat 816, 37 USC 272(a), ML 1949, App C). However, in view of the disability which may be of a permanent nature, the enlisted man may be placed on the temporary disability retired list, and, if, as a result of a periodic examination, it is determined that his disability is permanent and rated at 30 percentum or more, he shall be permanently retired. If the disability is less than 30 per centum he shall be separated with severance pay. If he fully recovers from the disability for which he was placed on the temporary disability retired list, he may. if physically fit, be reenlisted, or if not physically fit, be discharged. JAGA 1953/3585. 30 April 1953.

§ 20.25. Fraudulent enlistment or appointment.

Two individuals enlisted without disclosing a history of mental illness. Had such histories been disclosed these persons would not have been accepted for enlistment. Held: Fraud upon the part of an enlisted person in entering into a contract of enlistment does not, of itself, preclude retirement of that enlisted person for physical disability pursuant to Title IV, Career Compensation Act of 1949 (63 Stat 816), as amended (37 USC 271 et seq). In the event that the government should avoid the enlistment contract by reason of such fraud, a contrary result would obtain. While a contract of enlistment is voidable at the election of the government, in the absence of affirmative action by the government avoiding the contract it is a valid enlistment. (Citing 1 Comp Gen 511; 1 Comp Gen 668; JAGA 1948/5757, 23 Aug

1948; JAGA 1953/3561, 29 Apr 1953; 3 Comp Gen 61; CSJAGA 1949/3685, 26 Aug 1949; JAGA 1952/6255, 6 Aug 1952.) JAGA 1953/8235, 16 October 1953.

§ 20.37. Indictment or conviction by civil authorities.

An enlisted man was indicted by civil authorities for certain felonies, but committed to a civilian hospital for observation. Subsequently, he reappeared in court and was adjudged insane. The Army Physical Disability Appeal Board, concurring in the findings of the physical evaluation board that the enlisted man's disability was incurred in line of duty while entitled to receive basic pay, and was not the result of misconduct or neglect, recommended retirement for physical disability at 100 per cent. Held: There appears to be no prohibition, by statute or regulation, against retiring a Regular Army enlisted man for physical disability under the provisions of sec. 402, Career Compensation Act of 1949 solely because he is under indictment in a civil court for a felony. (Citing JAGA 1952/2128, 18 Feb 1952; JAGA 1952/3741, 7 Aug 1942.) In view of the above absence of authority to terminate a retired enlisted man's pay upon subsequent conviction by civil authorities, final retirement action in the case may be deferred, as a matter of policy, until the indictment still pending against the enlisted man is dismissed or otherwise disposed of. JAGA 1953/6745. 10 September 1953.

§ 23.1. Generally.

§ 23. Degree of Disability; Proof

In consonance with the Department of Defense Directive Number 1332.8, dated 15 September 1952, and the Memorandum for the Assistant Secretary of the Army (M & RF), dated 25 November 1952, this office is of the opinion that, for the purpose of determining the percentage of disability of a member who elects to qualify for retirement pay under the provisions of section 411 of the Career Compensation Act of 1949, and whose disability at the time of separation or retirement is diagnosed as active tuberculosis, the ratings appearing between diagnostic code numbers 6704 and 6705, Veterans Administration Schedule for Rating Disabilities, 1945 Edition, should be used, depending upon the degree of severity of the disability. If inactive tuberculosis is the disability being evaluated, the ratings appearing between diagnostic code numbers 6724 and 6731 of that schedule should be used, taking into consideration the amendment contained in Extension No. 1, dated 10 November 1948. The ratings for both active and inactive tuberculosis should be varied, if appropriate, to comply with the provisions of paragraphs 22 and 25 of the general introduction to the use of the rating schedule (pages 7-10, Veterans Administration Schedule for Rating Disabilities, 1945 Edition). JAGA 1953/1133. 9 January 1953.

The Coast Guard Physical Disability Review Council found that the deformities of the wrist and ankle of a member were aggravated while the member was entitled to receive basic pay, but not incurred during such period. The Review Council assigned a rating of 10

per cent each. The disabilities resulted from an injury some fortyfive years ago while the member was a child. The member had performed twenty-four continuous years of satisfactory service in the Lighthouse Service and the Coast Guard and was found physically fit on repeated annual and promotional physical examinations during such service. Held: In the light of all the circumstances of the case, it would appear difficult to support a finding that the disabilities, as distinguished from defects, were not incurred while entitled to receive basic pay. In the event that evidence should be introduced to support a finding of pre-service incurrence, it would appear to be more difficult to support a finding that the full extent of the existing disabilities, exceeding 20%, were not aggravated while entitled to receive basic pay. In the light of par 6 of the Regulations of the Acting Secretary of the Treasury, dated September 29, 1939, pertaining to the commissioning and enlistment into the Coast Guard of former members of the Lighthouse Service, it must be presumed that any existing defect of the wrist and ankle of the individual concerned at the time of commissioning into the Coast Guard was minimal and the existing disabilities of the wrist and ankle must be considered, if not incurred while entitled to receive basic pay, aggravated while entitled to receive basic pay for the full amount of the existing degrees of disability in the absence of clear evidence showing the ascertainable degree of disability as existing at time of enlistment within the meaning of par 22 of the current Veterans' Administration Schedule, p 7. Op CCCG 1952/2. 32 June 1952.

A member of the Coast Guard was originally placed on the temporary retired list in 1950 by reason of tuberculosis, 100 per cent disabling, and phrenicotomy, 70 per cent disabling, Code Numbers 6723 and 6731 respectively. The findings in 1954 are that the member is 50 per cent disabled by reason of tuberculosis, which 50 per cent rating is to be continued for approximately three years, or six years from date of arrest of the tuberculosis. Code Number 6723 provides for a 30 per cent rating for a period of five years following the 50 per cent rating which will terminate six years after date of arrest. Held: The 50 per cent rating is a temporary rating under the schedule based on time alone. The Career Compensation Act, however, provides that a member may be carried on the temporary disability retired list only for a period of five years. Final disposition of this case therefore must take place within the next two years at which time the member would be entitled to a 50 per cent rating under the schedule. At the termination of the five-year period the member must be removed from the temporary list and permanently retired and he is entitled at that time to whatever rating, permanent or temporary, for which he establishes eligibility under the schedule. Therefore, unless the tuberculosis should become active within the next two-year period he would be entitled to permanent retirement rated at 50 per cent, provided it was determined he was still unfit to perform the duties of his rating. In view of the foregoing it is suggested that he be permanently retired at this time for the reason that his condition has reached a level of recovery which under the schedule will carry the same rating now as