A-12769, FEBRUARY 27, 1926, 5 COMP. GEN. 667

A-12769: Feb 27, 1926

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DOES NOT INCLUDE VETERANS OR OTHER PERSONS ENTITLED TO BENEFITS UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT WHO ARE NOT OR WERE NOT BENEFICIARIES OF THE BUREAU UNDER THE WORLD WAR VETERANS' ACT OR WAR RISK INSURANCE ACTS. 1926: I HAVE YOUR LETTER OF JANUARY 19. IN THE CASE OF A PERSON WHO RECEIVED SUCH ERRONEOUS PAYMENT AND WHOSE NAME WAS DROPPED FROM THE ROLLS. IN THE CASE OF SUCH A PERSON WHO IS ENTITLED TO RECEIVE BENEFITS AFTER JUNE 7. IS AS FOLLOWS: THERE SHALL BE NO RECOVERY OF OVERPAYMENTS FROM ANY BENEFICIARY WHO. IS WITHOUT FAULT ON HIS PART. "RECOVERY OF OVERPAYMENTS" RATHER THAN TO THE DATE THE PERSON ENTITLED TO THE RELIEF AUTHORIZED TO BE GRANTED WAS A "BENEFICIARY.'.

A-12769, FEBRUARY 27, 1926, 5 COMP. GEN. 667

VETERANS' BUREAU - RECOVERY OF OVERPAYMENTS TO VETERANS AS USED IN SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, AUTHORIZING WAIVER OF RECOVERY OF OVERPAYMENTS FROM ANY BENEFICIARY UNDER CERTAIN CONDITIONS, THE TERM ,BENEFICIARY" INCLUDES PRIOR BENEFICIARIES OF THE VETERANS' BUREAU WHOSE RIGHTS UNDER THE WAR RISK INSURANCE ACT HAD TERMINATED PRIOR TO JUNE 7, 1924, BUT DOES NOT INCLUDE VETERANS OR OTHER PERSONS ENTITLED TO BENEFITS UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT WHO ARE NOT OR WERE NOT BENEFICIARIES OF THE BUREAU UNDER THE WORLD WAR VETERANS' ACT OR WAR RISK INSURANCE ACTS.

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

I HAVE YOUR LETTER OF JANUARY 19, 1926, REQUESTING DECISION OF THE TWO FOLLOWING QUESTIONS:

1. DOES SECTION 28 OF THE WORLD WAR VETERANS ACT, 1924, AUTHORIZE THE WAIVER OF RECOVERY, OR THE DEMAND FOR REFUND, OF AN ERRONEOUS PAYMENT MADE WITHOUT FAULT OF THE PERSON PAID, WHERE SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE, IN THE CASE OF A PERSON WHO RECEIVED SUCH ERRONEOUS PAYMENT AND WHOSE NAME WAS DROPPED FROM THE ROLLS, PRIOR TO JUNE 7, 1924, AND WHO HAS NOT RECEIVED AND HAS NOT BEEN ADJUDGED ENTITLED TO RECEIVE ANY PECUNIARY BENEFITS SUBSEQUENT TO JUNE 7, 1924?

2. WHETHER THE SECTION AUTHORIZES THE WAIVER OF RECOVERY OR THE DEMAND FOR REFUND, OF AN ERRONEOUS PAYMENT MADE WITHOUT FAULT OF THE PERSON PAID PRIOR TO JUNE 7, 1924, WHERE SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE, IN THE CASE OF SUCH A PERSON WHO IS ENTITLED TO RECEIVE BENEFITS AFTER JUNE 7, 1924, ONLY UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19, 1924?

SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, IS 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.

THIS PROVISION PROVIDES FOR RELIEF TO "ANY BENEFICIARY" OF THE UNITED STATES VETERANS' BUREAU BY PROHIBITING RECOVERY OF THE OVERPAYMENTS UNDER CERTAIN SPECIFIED CONDITIONS. THE EFFECTIVE DATE OF THE ACT HAS RELATION TO THE THING PROHIBITED, VIZ,"RECOVERY OF OVERPAYMENTS" RATHER THAN TO THE DATE THE PERSON ENTITLED TO THE RELIEF AUTHORIZED TO BE GRANTED WAS A "BENEFICIARY.' IF THE PROVISION HAD CONTAINED ONLY THE CONDITION "WHERE, IN THE JUDGMENT OF THE DIRECTOR, SUCH RECOVERY WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED" THEN IT MIGHT BE HELD THAT THE PROVISION AFFORDS NO RELIEF TO A PERSON WHO SINCE JUNE 7, 1924, IS NOT RECEIVING, NOR ENTITLED TO RECEIVE, BENEFITS: BECAUSE IF NO BENEFITS ARE "OTHERWISE AUTHORIZED" THERE COULD BE NO DEFEATING OF THE PURPOSE OF SAID BENEFITS. SEE DECISION OF APRIL 1, 1925, A-7181. BUT THE PROVISION DOES NOT END WITH THE ABOVE QUOTED CONDITION. IT CONTAINS THE OTHER CONDITION--- "OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.' MANIFESTLY THIS SECOND CONDITION COULD EXIST IN THE CASE OF A BENEFICIARY WHO, ON OR BEFORE JUNE 7, 1924, HAD CEASED TO BE ENTITLED TO BENEFITS AS WELL AS TO ONE WHO IS STILL AUTHORIZED TO RECEIVE BENEFITS, AND THERE APPEARS NOTHING IN THE PROVISION TO INDICATE THAT IT WAS NOT INTENDED TO APPLY TO SUCH CASES. THEREFORE, IF THE DIRECTOR SHOULD DETERMINE WITH RESPECT TO ANY BENEFICIARY TO WHOM AN OVERPAYMENT HAS BEEN MADE AND WHO HAS NOT RECEIVED NOR BEEN FOUND ENTITLED TO RECEIVE ANY PECUNIARY BENEFITS SINCE JUNE 7, 1924, THAT A RECOVERY OF THE OVERPAYMENT WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE, SUCH RECOVERY SHOULD NOT BE MADE. ACCORDINGLY, THE FIRST QUESTION, SUPRA, IS ANSWERED IN THE AFFIRMATIVE.

WITH REFERENCE TO THE SECOND QUESTION SUBMITTED, THE WORLD WAR ADJUSTED COMPENSATION ACT IS A SEPARATE AND DISTINCT STATUTE FROM THE WORLD WAR VETERANS' ACT. A BENEFICIARY UNDER THE FORMER IS NOT NECESSARILY TO BE CONSIDERED A BENEFICIARY UNDER THE LATTER. SECTION 28, SUPRA, IS APPLICABLE ONLY TO OVERPAYMENTS MADE TO PERSONS AS BENEFICIARIES UNDER THE WAR-RISK INSURANCE ACT OR THE WORLD WAR VETERANS' ACT, AND NO ADDITIONAL RIGHTS CAN BE ACQUIRED UNDER SAID SECTION BY REASON OF ANY BENEFITS THAT MAY BE PAID UNDER THE ADJUSTED COMPENSATION ACT. ON THE CONTRARY, ANY PECUNIARY BENEFITS THE PERSON MIGHT RECEIVE OR BE ENTITLED TO RECEIVE UNDER SAID ACT WOULD BE FOR CONSIDERATION IN DETERMINING WHETHER THE RECOVERY OF AN OVERPAYMENT UNDER THE OTHER ACTS WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. THE QUESTION IS ANSWERED ACCORDINGLY. SEE GENERALLY DECISION OF JANUARY 27, 1926, A-12509, 5 COMP. GEN. 540.