A-12509, JANUARY 27, 1926, 5 COMP. GEN. 540

A-12509: Jan 27, 1926

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VETERANS' BUREAU - RECOVERY OF OVERPAYMENTS TO VETERANS RECOVERY OF OVERPAYMENTS MADE IN THE FORM OF VOCATIONAL TRAINING ALLOWANCE PAID CONCURRENTLY WITH THE RECEIPT OF PENSION CONTRARY TO LAW IS PROHIBITED UNDER THE PROVISIONS OF SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7. IF IN THE JUDGMENT OF THE DIRECTOR OF THE VETERANS' BUREAU THE VETERAN WAS WITHOUT FAULT AND SUCH RECOVERY WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. 1926: I HAVE YOUR LETTER OF DECEMBER 28. IS SUCH AN OVERPAYMENT. THE RECOVERY OF WHICH IS PROHIBITED UNDER THE PROVISIONS OF SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7. IS WITHOUT FAULT ON HIS PART.

A-12509, JANUARY 27, 1926, 5 COMP. GEN. 540

VETERANS' BUREAU - RECOVERY OF OVERPAYMENTS TO VETERANS RECOVERY OF OVERPAYMENTS MADE IN THE FORM OF VOCATIONAL TRAINING ALLOWANCE PAID CONCURRENTLY WITH THE RECEIPT OF PENSION CONTRARY TO LAW IS PROHIBITED UNDER THE PROVISIONS OF SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, IF IN THE JUDGMENT OF THE DIRECTOR OF THE VETERANS' BUREAU THE VETERAN WAS WITHOUT FAULT AND SUCH RECOVERY WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JANUARY 27, 1926:

I HAVE YOUR LETTER OF DECEMBER 28, 1925, REQUESTING DECISION WHETHER OVERPAYMENTS MADE IN THE FORM OF VOCATIONAL TRAINING ALLOWANCE PAID CONCURRENTLY WITH RECEIPT OF A PENSION BY LINCOLN ERICKSON, C-1193326, IS SUCH AN OVERPAYMENT, THE RECOVERY OF WHICH IS PROHIBITED UNDER THE PROVISIONS OF SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, AS FOLLOWS:

THERE SHALL BE NO RECOVERY OF OVERPAYMENTS FROM ANY BENEFICIARY WHO, IN THE JUDGMENT OF THE DIRECTOR, IS WITHOUT FAULT ON HIS PART, AND WHERE, IN THE JUDGMENT OF THE DIRECTOR, SUCH RECOVERY WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.

YOU STATE THE FACTS TO BE AS FOLLOWS:

IT APPEARS THAT THIS SOLDIER ENLISTED JANUARY 18, 1917, AND WAS DISCHARGED SEPTEMBER 26, 1917. THE DATE OF DISCHARGE WAS PRIOR TO THE EFFECTIVE DATE OF THE ACT OF OCTOBER 6, 1917, BY WHICH THE ALLOTMENT AND ALLOWANCE, COMPENSATION, AND INSURANCE FEATURES OF THE WAR-RISK LEGISLATION WERE AUTHORIZED. THE SOLDIER FILED CLAIM BEFORE THE BUREAU OF PENSIONS AND HIS CLAIM, PREDICATED UPON A SERVICE CONNECTED DISABILITY,WAS ALLOWED AND A PENSION WAS PAID TO HIM BEGINNING OCTOBER 23, 1917.

ON MAY 5, 1921, THE SOLDIER ENTERED VOCATIONAL TRAINING AND ON JUNE 24, 1921, GAVE NOTICE THAT HE WAS THEN DRAWING A PENSION AND INQUIRED WHETHER HE WAS ENTITLED TO DRAW THE PENSION CONCURRENTLY WITH HIS VOCATIONAL TRAINING PAY. FROM THE FACTS SUBMITTED IT WOULD APPEAR THAT NO SATISFACTORY REPLY WAS EVER MADE TO THIS INQUIRY. AFTER THE TERMINATION OF VOCATIONAL TRAINING, COMPENSATION WAS AWARDED AT THE RATE OF $80 A MONTH FROM SEPTEMBER 1, 1924. THE PENSION PAYMENTS WERE TERMINATED FEBRUARY 3, 1925, THE PENSION BUREAU STATING THAT THE SOLDIER WAS THEN DROPPED FROM ITS ROLLS BECAUSE HE WAS IN RECEIPT OF COMPENSATION FROM THE VETERANS' BUREAU IN EXCESS OF THE AMOUNT OF THE PENSION. THE PENSION BUREAU ALSO REPORTS A PAYMENT OF PENSION AT THE RATE OF $46.00 PER MONTH FROM OCTOBER 23, 1917, AND INCREASED TO $65.00 A MONTH FROM JUNE 5, 1920.

FROM CORRESPONDENCE SUBMITTED IT WOULD APPEAR THAT THIS SOLDIER WAS PAID BY THE BUREAU $80.00 A MONTH COMPENSATION EFFECTIVE JUNE 23, 1919, UP TO MAY 4, 1921, WHEN THE SOLDIER ENTERED VOCATIONAL TRAINING. HE APPEARS TO HAVE RECEIVED HIS VOCATIONAL TRAINING PAY ALLOWANCE AFTER MAY 4, 1921, UP TO SEPTEMBER 1, 1924, WHEN HE WAS AWARDED COMPENSATION AT THE RATE OF $80.00 PER MONTH FROM SEPTEMBER 1, 1924, BUT THE AWARD BEARS A NOTATION FOR THE DEDUCTION FROM THE COMPENSATION PAYMENTS OF THE PENSION CONCURRENTLY RECEIVED THEREWITH.

THE SOLDIER THEREFORE WAS PAID COMPENSATION, BUT FROM THE AMOUNT SO PAID FOR COMPENSATION THE CONCURRENT PENSION PAYMENTS WERE DEDUCTED, BUT THERE DOES NOT APPEAR TO HAVE BEEN ANY DEDUCTION OF THE CONCURRENT PENSION PAYMENTS FOR THE PERIOD THAT THE SOLDIER WAS IN RECEIPT OF VOCATIONAL TRAINING PAY SO THAT HE WAS OVERPAID FOR THAT PERIOD AMOUNTING, ACCORDING TO THE FACTS SUBMITTED, TO $2,591.15. THE QUESTION RAISED IS WHETHER UNDER SECTION 28 OF THE WORLD WAR VETERANS' ACT RECOVERY OF THIS SUM MAY BE WAIVED.

SUBDIVISION 10 OF SECTION 302 OF THE WAR RISK INSURANCE ACT, AS AMENDED BY SECTION 11 OF THE ACT OF DECEMBER 24, 1919, 41 STAT. 374, PROVIDED "THAT ANY PERSON WHO IS NOW RECEIVING A GRATUITY OR PENSION UNDER EXISTING LAW SHALL NOT RECEIVE COMPENSATION UNDER THIS ACT UNLESS HE SHALL FIRST SURRENDER ALL CLAIM TO SUCH GRATUITY OR PENSION.' SEE 27 COMP. DEC. 547, AND SUBDIVISION 15 OF SECTION 202 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 621. DURING THE PERIOD A BENEFICIARY UNDERGOES VOCATIONAL TRAINING AND IS PAID SUPPORT ALLOWANCE, PAYMENTS OF DISABILITY COMPENSATION ARE SUSPENDED EXCEPT IN THE AMOUNT OVER AND ABOVE THE AMOUNT OF VOCATIONAL TRAINING ALLOWANCE PAID. ACT OF JULY 11, 1919, 41 STAT. 159, AND SECTION 202 (16) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 621. FOR THIS REASON IT WAS HELD THAT THE SUPPORT ALLOWANCE PAID WHILE UNDERGOING VOCATIONAL TRAINING STANDS UPON THE SAME FOOTING IN ITS RELATION TO RECEIPT OF A PENSION FOR THE SAME PERIOD OF TIME AS WAR-RISK COMPENSATION FOR WHICH IT IS TEMPORARILY SUBSTITUTED. 1 COMP. GEN. 25.

ONE OF THE REASONS FOR SECURING THE PROVISION OF LAW CONTAINED IN SECTION 28 OF THE WORLD WAR VETERANS' ACT, QUOTED ABOVE, RELATIVE TO RECOVERY OF OVERPAYMENTS, WAS TO REMEDY A SITUATION CAUSED BY THE ADMINISTRATIVE ERROR OF FAILING TO ENFORCE THE PROHIBITION AGAINST THE RECEIPT OF A PENSION AND DISABILITY COMPENSATION BY THE SAME PERSON FOR THE SAME PERIOD OF TIME. SEE DECISIONS OF MAY 16, 1923, AND JUNE 30, 1923, AND HEARINGS BEFORE THE COMMITTEE ON WORLD WAR VETERANS' LEGISLATION, HOUSE OF REPRESENTATIVES, SIXTY-EIGHTH CONGRESS, FIRST SESSION, PAGES 71 TO 78. THE SECTION IS IN PLAIN TERMS, AND THE WORD BENEFICIARY AS USED IN THE PHRASE "NO RECOVERY OF PAYMENTS FROM ANY BENEFICIARY" APPLIES AS WELL TO VETERANS RECEIVING BENEFITS UNDER TITLE IV OF THE ACT AS TO THOSE RECEIVING BENEFITS UNDER TITLE II THEREOF. THEREFORE THE QUESTIONS FOR ADMINISTRATIVE DETERMINATION IN THE CASE PRESENTED ARE (1) WHETHER THE VETERAN WAS WITHOUT FAULT IN RECEIVING CONCURRENTLY PENSION FROM THE BUREAU OF PENSIONS AND VOCATIONAL TRAINING ALLOWANCE FROM THE FEDERAL BOARD FOR VOCATIONAL EDUCATION OR THE UNITED STATES VETERANS' BUREAU, AND (2) WHETHER RECOVERY OF THE AMOUNT ERRONEOUSLY PAID "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.' IF, IN YOUR JUDGMENT, BOTH OF THESE QUESTIONS ARE ANSWERABLE IN THE AFFIRMATIVE, THE SECTION IN QUESTION WOULD PROHIBIT RECOVERY OF THE AMOUNT INVOLVED.

EVIDENCE OF THE ADMINISTRATIVE ACTION IN THE MATTER SHOULD BE MADE OF RECORD AND REPORTED TO THIS OFFICE, TOGETHER WITH THE FACTS ON WHICH THE DETERMINATION IS BASED.

THE QUESTION IS ANSWERED ACCORDINGLY.

WITH REFERENCE TO THE PROVISIONS OF SECTION 4734, REVISED STATUTES, CITED IN YOUR LETTER, ATTENTION IS INVITED TO 4 OP.ATTY.GEN. 70. ..END :