member at his death for purposes of the death gratuity, special action would be required to secure a line of duty determination in these rare

cases.

Retirement or separation for physical

disability 34

(1) Retirement. A member of a regular component of the naval service on active duty for thirty days or more who is found to be unfit to perform his duties because of a disability incurred while he is entitled to receive basic pay 35 may be retired or placed on the temporary disability retired list with retired pay if (a) he has twenty years service, or (b) he has eight years service and his disability is rated thirty percent or more,36 or (c) his disability is rated thirty percent or more and it was incurred in line of duty during war, the Korean conflict or a national emergency," or is the proximate result of the performance of active duty.38 A member of the naval service on active duty for less than thirty days may qualify for disability retirement if his disability is permanent and is the proximate result of performing active duty or inactive duty training and either (a) the member has twenty years service, or (b) the disability is at least thirty percent.39 However, if the physical disability was incurred as a result of the member's intentional misconduct or willful neglect or during a period of unauthorized absence 40 he is not entitled to any of the benefits of retirement or of being placed on the temporary disability retired list.41

34. This is an extraordinarily complex subject. For a treatment of the provisions applicable to reservists see Albright, Retirement Benefits for Reservists Injured on Training Duty, 17 JAG Journal 14 (Jan. 1963). For an excellent essay on the financial implications of these provisions see Carraway, Disability Retirement or Separation-The Financial Aspects, 16 JAG Journal 91 (July-Aug. 1962); as to uniform implementation among the armed services see: DOD Dir. 1332.8 of 6 Dec 1962.

35. Disability Separation Manual (DSM) sec. 0216(a): "... encompasses all types of duty which entitled the party concerned to receive active duty pay, and any duty without pay which, by law, may be counted the same as like duty with pay."

36. The Standard Schedule of Rating Disabilities employed by the Veterans Administration is used by the naval service. See: VA Reg., par. 1321.

37. For purposes of these laws a national emergency now exists and has existed since 16 December 1950. Proc. 2914, 16 Dec. 1950, National Emergency 1950, 50 U.S.C. App. Prec. Sec. 1 note. 38. DSM sec. 0221; see particularly part (c).

39. 10 U.S.C. 1204. The possibility should be considered that the "proximate result" test may not be applicable because of the requirement of 10 U.S.C. 6148 that certain reservists are entitled to the same compensation as regulars.

40. Any unauthorized absence sufficient to constitute the offense under Article 86, UCMJ, is sufficient to sustain a not in line of duty determination and thus deprive a member of disability separation or retirement benefits. The test of JAG Manual section 0807 (d) is inapplicable in physical disability separation or retirement proceedings.

41. 10 U.S.C. 1201(2), 1202, 1207.

A member is placed on the temporary disability retired list if he would otherwise qualify for disability retirement except that the permanence of his disability is indeterminable for a period of time.42 A member carried on the temporary disability retired list will be given a physical examination at least once every eighteen months to determine the stability, permanence, and extent of his disability at that time," but the member will not remain on the list with pay for longer than five years." He will at some time during the five year period be (1) permanently retired, or (2) discharged with or without severance pay, or (3) returned to duty.45

(2) Separation. If a member of the naval service suffers a disability which is or may be permanent and is rated less than thirty percent and he has less than 20 years service and the disability was incurred as the proximate result of performing active duty or was incurred in line of duty in time of war or national emergency, he may be separated from the service with severance pay.46 If a member has a disability which is or may be permanent and is rated less than thirty percent and he has eight years service he may be separated with severance pay. If a member is or may be permanently disabled and has at least thirty percent disability but less than eight years service and his disability was neither the proximate result of performing active duty nor incurred in line of duty in time of war or national emergency he may be separated with severance pay." If a member is permanently disabled by an injury while on active duty for thirty days or less and he has less than twenty years service and his disability is less than thirty percent, but was the proximate result of performing active duty or inactive duty training, he may be separated with severance pay.48 However, none of the members described above is eligible for separation with severance pay if his disability resulted from his intentional misconduct or willful neglect, or was incurred during a period of unauthorized absence, 49

Disability retirement or severance pay from the naval service does not exclude disability compensation from the Veterans Administration;

42. 10 U.S.C. 1202.

43. 10 U.S.C. 1210(a).

44. 10 U.S.C. 1210 (b), (h). See MS Comp. Gen. B-149025, 26 July

1962.

45. 10 U.S.C. 1210. He may be returned to duty only with his consent (10 U.S.C. 1211).

46. 10 U.S.C. 1203

47. Ibid.

48. 10 U.S.C. 1206.

49. 10 U.S.C. 1206 (2), 1207.

however, one cannot collect the whole amount of service retirement pay and Veterans Administration disability compensation at the same time. Nevertheless, it is possible to make a choice which may combine under certain circumstances income from both sources.50 Compensation paid by the Veterans Administration does not depend on having at least thirty percent disability; also, the percentage of disability as determined by the naval service is not binding on the Veterans Administration, which will conduct its own examination and independently decide the percentage of disability.

It is important to note that a career officer or enlisted person eligible for voluntary retirement may lose the opportunity to so retire and thereby lose all benefits of retirement or separation if he is disabled due to his own misconduct, and the disability separation or retirement proceedings in his case are completed.

Determinations of physical disability are made by Physical Evaluation Boards, and the decision of the Judge Advocate General as to a member's conduct-line of duty status at the time he incurred his disability is not controlling with the Board, but is advisory only.51 However, the standards of the Boards are very similar to those used by the Judge Advocate General.52 Additionally, the Judge Advocate General reviews the physical disability proceedings and either approves them for the Secretary or submits to him recommendations concerning the disposition of each case; and the Physical Review Council, which advises the Secretary on the disposition of the disability case if there is no disagreement between the Board and the Council, has a representative of the Judge Advocate General as one of its four members.53

The general conclusions to be drawn from the foregoing discussion can be summarized as follows: (1) the principal effects of an adverse conduct-line of duty determination in the naval service are in two general areas (a) time lost, and (b) disability separation or retirement; (2) in general there is no loss of eligibility for medical care by reason of an adverse conductline of duty determination; (3) loss of eligibility

50. See NavPers 15963c, pp. 25, 27. See 38 U.S.C. 3104, 3105, which treat double payment and waiver of payment from the armed forces.

51. DSM sec. 0217(a). A Board of Medical Survey and its convening authority make the initial decision of the possibility of unfitness (DSM secs. 0306 (c), 0308(a)).

52. Compare DSM, Chapter 2 with JAG Manual, Chapter VIII. 13. DSM secs. 0701, 0502. Only three members sit on the Council at any one time: a representative of the Commandant, Marine Corps, or of the Chief, Bureau of Naval Personnel, the JAG representative, and the representative of the Chief, Bureau of Medicine and Surgery.

for pay because of an adverse conduct-line of duty determination is generally limited to disability due to alcohol or drugs; (4) in the event of an adverse conduct-line of duty determination the ramifications of the time lost provisions are more extensive for an enlisted member, he "loses more," than for an officer; (5) in the event the injury or disease causes permanent disability the time lost provisions, of course, become insignificant, and the real purpose and effect of the adverse conduct-line of duty determination is to deny disability separation or retirement benefits from the naval service.

II

PROVISIONS ADMINISTERED BY THE

VETERANS ADMINISTRATION

The opinion of the Judge Advocate General vis-à-vis the conduct-line of duty status of a member of the naval service at the time he incurs disability is binding on the Veterans Administration to the following extent. Applicable regulations of the Veterans Administration provide that "a service department finding that an injury, disease or death was not due to misconduct will be binding on the VA unless it is patently inconsistent with the facts," 54 and that "a service department finding that injury, disease, or death occurred in line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA." 55 Conduct-line of duty requirements are met generally for the Veterans Administration if the injury or disease was incurred on active duty and was not the result of the member's own willful misconduct, or was not incurred while the member was in a status of desertion or unauthorized absence, or confined under sentence of a court-martial involving an unremitted dishonorable discharge, or confined under sentence of a civil court for a felony.56 A comparison of the effects listed in the foregoing section with those described infra will demonstrate that the purposes of conductline of duty determinations in the naval service vary considerably from the purposes of those in the Veterans Administration. Consequently, although pertinent provisions governing Veterans Administration determinations of conduct-line of duty status are outwardly sim

54. VA Reg., par. 1001 (N). 55. VA Reg., par. 1001 (M). The VA applies a test of "material interference" to determine if a disability incurred during a period of unauthorized absence was incurred "not in the line of duty”. See: VA Reg., par. 1001 (M) (1).

56. 38 U.S.C. 105; see: VA Reg., par. 1301.

ilar to those employed by the Judge Advocate General, there is substantial reason for the application of those provisions in particular instances to produce results at variance with those of the Judge Advocate General.

Following are briefly listed the more important benefits administered by the Veterans Administration which depend to varying extents on suffering disability or death not as the result of misconduct and in the line of duty. Peacetime disability compensation

Veterans Administration payments to veterans for service-connected disabilities are called compensation.57 A veteran who becomes disabled by incurring an injury or a disease, or by aggravating 58 a pre-existing disease or injury, while on active service during a period other than war, is entitled to receive peacetime disability compensation if he was discharged or released under conditions other than dishonorable. However, he is not eligible for peacetime disability compensation if his disability is the result of his own willful misconduct.50 Wartime disability compensation

A veteran disabled by an injury or disease incurred during a period of active service in wartime, or by an aggravation of a pre-existing injury or disease during such service, is entitled to wartime disability compensation (the rates of which are approximately twenty percent higher than the rates of peacetime disability compensation),0 if he was separated from the service under conditions other than dishonorable. However, he is not eligible for wartime disability compensation if his disability is the result of his own willful misconduct.61 A veteran otherwise entitled to compensation is entitled to wartime compensation if his disability resulted from an injury or disease received in line of duty (1) as the direct result of armed conflict, or (2) while engaged in extrahazardous service, including such service under conditions simulating war, or (3) from 1 January 1947 to 25 July 1947.62

A monthly payment by the Veterans Administration to a veteran for a non-serviceconnected 63 disability is called a pension. A

57. 38 U.S.C. 101 (13).

58. 38 U.S.C. 353; see: VA Reg., par. 1306.

59. 38 U.S.C. 331.

60. 38 U.S.C. 334.

61. 38 U.S.C. 310.

62. 38 U.S.C. 336; see: VA Reg., par. 1311.

64

veteran who served ninety consecutive days of active service, any part of which ended during World War I or began or ended during World War II or the Korean conflict, or who served on active duty during any of those conflicts and was released for a service-connected disability, 65 and who is now permanently and totally disabled from a non-service-connected disability, is eligible, under certain income limitations, for a pension. However, he is not eligible for a pension if the non-service-connected disability is the result of his own willful misconduct or vicious habits.66

Hospital or domiciliary care

The Veterans Administration may furnish hospital care to a veteran of any war who has a service-connected disability, or who was released from service for a disability incurred or aggravated in line of duty, or who is receiving disability compensation. However, if the veteran's disability was incurred not in the line of duty or was non-service-connected, or if the disabled veteran is not receiving disability compensation for a reason other than the receipt of retirement pay, he is not entitled to hospital care, unless it is necessary and he is unable to defray the expense himself.67 The Administrator of the Veterans Administration may furnish domiciliary care to a person in receipt of disability compensation who is suffering from a permanent disability or tuberculosis or a neuropsychiatric ailment and is incapacitated from earning a living and has no adequate means of support, or to a veteran of any war who is unable to pay the expenses of necessary domiciliary care. Domiciliary care may be furnished to any veteran released from active duty for disability, unless that disability was not incurred or aggravated in line of duty.68 Eligibility for medical treatment

Necessary medical treatment may be furnished by the Veterans Administration to a veteran of any war who suffers from a serviceconnected disability, or to any person in receipt of disability compensation, or who would be in receipt of compensation if he were not receiving retirement pay. The Veterans Administration (Continued on page 21)

65. "The term 'service-connected' means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active... naval service." 38 U.S.C. 101 (16). [Emphasis supplied.] See: VA Regs., pars. 1102, 1303. See: 38 U.S.C. 313 for the nature of the presumption as to serviceconnection.

66. 38 U.S.C. 521.

67. 38 U.S.C. 610(a).

68. 38 U.S.C. 610(b).

I

INTRODUCTION

IN THE LEGISLATIVE Reorganization Act of 1946, which was a voluminous piece of legislation covering thirty pages of Volume 60 of United States Statutes at Large, there appeared two brief sections which were of particular interest to the Navy. While this legislation was enacted "to provide increased efficiency in the legislative branch of the government," the two sections in question have had a tremendous impact on the Navy as a whole and on the lives of hundreds of officers and men in the Navy.

Section 131 of the Act provided:

No private bill or resolution . . . authorizing or directing... (3) the correction of a military or naval record shall be received or considered in either the Senate or the House of Representatives.

Section 207 of the Act provided:

The Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury with respect to the Coast Guard, respectively, under procedures set up by them, and acting through boards of civilian officers or employees of their respective departments, are authorized to correct any military or naval record where, in their judgment, such action is necessary to correct an error or to remove an injustice.

While Sections 131 and 207 were designed by Congress to free itself of the burden of numerous private relief bills concerning military and naval records, they have also proved to be a great boon to military personnel. As a result of this legislation, boards were established by each of the military departments for the correction of military records. Prior to the establishment of these boards, once an aggrieved individual had exhausted his administrative remedies with respect to errors or injustices resulting from entries in his military records, his only alterna

*Commander Donald W. Redd, USNR, is presently assigned to the Administrative Law Division in the Office of the Judge Advocate General. He holds a B.S. degree in Naval Science and an LL.B. degree from the University of Utah. He is a member of the Utah and California bars and holds membership in the American Bar Association.

tives were taking court action, if the matter was justiciable (often it was not), or seeking private relief legislation. Congressmen often were reluctant to introduce these bills for private relief. More often than not, the bills were not passed and many were killed by Presidential veto.

Section 207 has been amended and codified and now appears in Title 10 of the United States Code as Section 1552 in the following form:

(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of the Treasury may in the same manner correct any military record of the Coast Guard. Except when procured by a fraud, a correction under this section is final and conclusive on all officers of the United States.

(b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later. However, a board established under subsection (a) may excuse a failure to file within three years after the discovery if it finds it to be in the interest of justice.

(c) The Department concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be. If the claimant is dead, the money shall be paid, upon demand, to his legal representative. However, if no demand for payment is made by a legal representative, the money shall be paid

(1) to the surviving spouse, heir, or beneficiaries, in the order prescribed by the law applicable to that kind of payment;

(2) if there is no such law covering order of payment, in the order set forth in section 2771 of this title; or

(3) as otherwise prescribed by the law applicable to that kind of payment.

SEPTEMBER-OCTOBER 1964

A claimant's acceptance of a settlement under this section fully satisfies the claim concerned. This section does not authorize the payment of any claim compensated by private law before October 25, 1951. (d) Applicable current appropriations are available to continue the pay, allowances, compensation, emoluments, and any other pecuniary benefits of any person who was paid under subsection (c), and who, because of the correction of his military record, is entitled to those benefits, but for not longer than one year after the date when his record is corrected under this section if he is not reenlisted in, or appointed or reappointed to, the grade to which those payments relate. Without regard to qualifications for reenlistment, or appointment or reappointment, the Secretary concerned may reenlist a person in or appoint him to, the grade to which payments under this section relate.

(e) No payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Administrator of Veterans' Affairs.

The regulations implementing this statutory authority for a board for the correction of naval records are published in "Procedures of the Board for Correction of Naval Records," NAVEXOS P-473 (Revised 12-2-61). These regulations appear in the Code of Federal Regulations as Part 723 of Title 32.

II

COMPOSITION OF BCNR

In compliance with the statutory provision that the board be composed of "civilians of the executive part of that military department," the Board for Correction of Naval Records, or BCNR as it is commonly known, is made up of high ranking civilian employees of the various bureaus of the Navy Department and from Headquarters, Marine Corps. The regulations 1 provide that the board shall have a membership of such number, not less than three, as may be appointed by the Secretary of the Navy. Three members present constitute a quorum of the board. One member is designated as chairman of the Board by the Secretary of the Navy. In the absence of the chairman, an acting chairman, chosen by the Board, acts as chairman for all purposes. At the present time, there are seven members on the Board who sit in rotation at the Board hearings with three members sitting at each hearing. The Board is convened and adjourned by the chairThe Board meets at least once a week.

man.

1. NAVEXOS P-473, para. II; 32 CFR 723.2(a).

III

PROCEDURAL STEPS IN PROCESSING A CLAIM

Regulations 2 provide that applications for correction of naval records should be submitted on DD Form 149 and addressed to: the Secretary of the Navy (Board for Correction of Naval Records), Washington, D.C., 20370. Copies of DD Form 149 may be obtained from: Board for Correction of Naval Records, Navy Department, Washington, D.C., 20370.

When an application for the correction of naval records is received, it is reviewed by an examiner. The examiners are all qualified lawyers who assist the board by gathering and evaluating evidence, writing summaries of the cases and making recommendations to the board. If the applicant has not exhausted all other administrative remedies or if the applicant has not filed his application within three years after he discovered the alleged error or injustice and he has not submitted any reason why the board should find it to be in the interest of justice to excuse the failure to file application within three years the application may be denied administratively without being presented to the board.

If the petitioner has failed to exhaust his remedies before the Navy Discharge Review Board operating under the provisions of 10 U.S.C. 1553 it is the standard practice of the BCNR administrative staff to forward the petition to the Discharge Review Board where it is treated as if it had been filed with them originally.

Those petitions not denied for failure to exhaust other administrative remedies or for failure to file within the statutory time are reviewed by an examiner who prepares a written summary of the available evidence and his recommendations to the board. The board may recommend to the Secretary that a petitioner's records be corrected as requested without a hearing. In the cases where relief has been granted, there has been no formal hearing in a majority of the cases.

3

In each case in which a hearing is authorized, the applicant is entitled to appear before the board in person or by counsel or to be present with counsel. Personal appearance before the board and appearance by counsel may be waived by the petitioner. Written notice of the time and place of hearing must be mailed to the petitioner and his counsel, if any, at least 30 days

2. NAVEXOS P-473, para. III 1(a); 32 CFR 723.3(a). 3. NAVEXOS P-473, para. III 5; 32 CFR 723.3(e).