A-15260, SEPTEMBER 3, 1926, 6 COMP. GEN. 177

A-15260: Sep 3, 1926

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VETERANS' BUREAU - RECOVERY OF OVERPAYMENTS TO BENEFICIARIES - CERTIFICATE OF WAIVER THE CERTIFICATE NECESSARY TO SHOW THAT A CASE IS WITHIN THE PROVISIONS OF SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7. SHOULD SHOW IN ALL CASES THAT THE BENEFICIARY WAS NOT AT FAULT IN THE OVERPAYMENTS MADE AND. REQUESTING DECISION WHETHER A PROPOSED FORM OF CERTIFICATE WHICH YOU SUBMIT WILL BE SUFFICIENT TO SHOW THAT A CASE IN WHICH SUCH CERTIFICATE IS MADE COMES WITHIN THE PROVISIONS OF SECTIONS 28. IS WITHOUT FAULT ON HIS PART. THE PROPOSED FORM OF CERTIFICATE AS SUBMITTED BY YOU IS AS FOLLOWS: I HEREBY CERTIFY THAT RECOVERY OF THE UNAUTHORIZED PAYMENT OF . WAS WAIVED BY THE . UPON DETERMINATION THAT (1) VETERAN WAS WITHOUT FAULT IN RECEIVING THE ERRONEOUS PAYMENT AND (2) RECOVERY OF THE AMOUNT SO PAID WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.

A-15260, SEPTEMBER 3, 1926, 6 COMP. GEN. 177

VETERANS' BUREAU - RECOVERY OF OVERPAYMENTS TO BENEFICIARIES - CERTIFICATE OF WAIVER THE CERTIFICATE NECESSARY TO SHOW THAT A CASE IS WITHIN THE PROVISIONS OF SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, AUTHORIZING THE DIRECTOR TO WAIVE THE RECOVERY OF OVERPAYMENTS MADE TO BENEFICIARIES, SHOULD SHOW IN ALL CASES THAT THE BENEFICIARY WAS NOT AT FAULT IN THE OVERPAYMENTS MADE AND, FURTHER, EITHER THAT SUCH RECOVERY WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. SECTION 28 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, REQUIRES THE EXERCISE OF PERSONAL JUDGMENT OF THE DIRECTOR OF THE VETERANS' BUREAU, OR SOME ONE TO WHOM HE HAS SPECIALLY DESIGNATED THAT DUTY PURSUANT TO SECTION 5 OF THE SAME ACT, AND THE CERTIFICATE MAY BE MADE ONLY BY THE PERSON WHO HAS EXERCISED SUCH JUDGMENT.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, SEPTEMBER 3, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 27, 1926, REQUESTING DECISION WHETHER A PROPOSED FORM OF CERTIFICATE WHICH YOU SUBMIT WILL BE SUFFICIENT TO SHOW THAT A CASE IN WHICH SUCH CERTIFICATE IS MADE COMES WITHIN THE PROVISIONS OF SECTIONS 28, WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, WHICH PROVIDES:

THERE SHALL BE NO RECOVERY OF PAYMENTS 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.

THE PROPOSED FORM OF CERTIFICATE AS SUBMITTED BY YOU IS AS FOLLOWS:

I HEREBY CERTIFY THAT RECOVERY OF THE UNAUTHORIZED PAYMENT OF ----- ----- ---------------- IN THE AMOUNT OF ------------------, MADE UNDER THE AWARD TO THE ABOVE-NAMED BENEFICIARY, WAS WAIVED BY THE ---------- ------------- - REGIONAL COMMITTEE ON RECOVERIES, EFFECTIVE ------------ --------------- , UPON DETERMINATION THAT (1) VETERAN WAS WITHOUT FAULT IN RECEIVING THE ERRONEOUS PAYMENT AND (2) RECOVERY OF THE AMOUNT SO PAID WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.

CHAIRMAN REGIONAL COMMITTEE ON RECOVERIES.

IT WILL BE NOTED THAT THE PROVISIONS OF THE SECTION QUOTED ARE THAT IF CERTAIN FACTS EXIST "IN THE JUDGMENT OF THE DIRECTOR" THERE SHALL BE NO RECOVERY OF OVERPAYMENTS MADE TO A BENEFICIARY. A BLANK DELEGATION OF AUTHORITY TO CHAIRMEN OF REGIONAL COMMITTEES ON RECOVERIES AS CONTEMPLATED BY THE CERTIFICATE DOES NOT APPEAR TO BE A SUFFICIENT COMPLIANCE WITH THE LAW WHICH REQUIRES THE EXERCISE OF THE PERSONAL JUDGMENT OF THE DIRECTOR OR OF SOME ONE TO WHOM HE HAS SPECIALLY DESIGNATED THAT DUTY PURSUANT TO SECTION 5 OF THE WORLD WAR VETERANS' ACT, 1924, 43 STAT. 608.

WHILE COMMITTEES ON RECOVERIES AS PROVIDED BY UNITED STATES VETERANS' BUREAU GENERAL ORDER NO. 290-C OF FEBRUARY 10, 1926, MAY ASCERTAIN THE FACTS IN A PARTICULAR CASE AND TAKE SUCH OTHER ACTION AS AUTHORIZED THEREIN, FINAL ACTION IN THE MATTER, AND THE CERTIFICATE IN EVIDENCE THEREOF, SHOULD BE FOR CONSIDERATION AS INDICATED IN THE PRECEDING PARAGRAPH. IN NO CASE, WHATEVER THE AMOUNT INVOLVED, WOULD THE ACTION OF THE COMMITTEES ON RECOVERIES BE SUFFICIENT TO ESTABLISH THAT THE RECOVERY IS PROHIBITED BY THE PROVISION IN QUESTION. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO PARAGRAPH 2, CENTRAL COMMITTEES ON RECOVERIES, AND PARAGRAPH 3, REGIONAL COMMITTEES ON RECOVERIES, GENERAL ORDER NO. 290-C, FOR SUCH ACTION AS IS DEEMED NECESSARY IN THIS RESPECT.

THE CERTIFICATE TO BE FURNISHED BY THE ADMINISTRATIVE OFFICE UNDER SECTION 28, SUPRA, SHOULD ALSO CONTAIN A STATEMENT AS TO THE BASIS OF THE ACTION TAKEN; THAT IS TO SAY, WHILE THE CERTIFICATE NEED NOT STATE THE FACTS UPON WHICH THE CERTIFICATE IS BASED IT SHOULD APPEAR THEREIN THAT THE FINDINGS OF THE DIRECTOR, OR THE PERSON TO WHOM HE HAS SPECIALLY ASSIGNED THAT DUTY, ARE BASED UPON THE FACTS AS THEY APPEAR UPON EXAMINATION OF THE RECORD IN THE PARTICULAR CASE INVOLVED.

IT IS ACCORDINGLY SUGGESTED THAT THE CERTIFICATE FOR THE SIGNATURE OF THE DIRECTOR, OR THE PERSON SPECIALLY DESIGNATED BY HIM TO ACT IN THAT BEHALF, BE SUBSTANTIALLY IN THE FOLLOWING FORM:

UPON EXAMINATION OF THE FACTS IN THIS CASE I HEREBY CERTIFY THAT, IN MY JUDGMENT, THE PAYMENT OF --------------- IN THE AMOUNT OF --------- --- MADE UNDER THE AWARD OF THE ABOVE-NAMED BENEFICIARY WAS MADE WITHOUT FAULT ON HIS PART, AND THAT RECOVERY OF SAID AMOUNT WOULD, IN MY JUDGMENT, (1) DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED, OR (2) BE AGAINST EQUITY AND GOOD CONSCIENCE. ( (1) OR (2) TO BE STRICKEN OUT AS THE CASE MAY REQUIRE.)

SECTION 28 OF THE WORLD WAR VETERANS' ACT OF 1924 MAKES IT A CONDITION PRECEDENT THAT THE BENEFICIARY BE WITHOUT NEGLIGENCE OR FAULT BEFORE THE RELIEF PROVIDED FOR THEREIN MAY BE GIVEN CONSIDERATION, AND FOR THAT REASON THE CERTIFICATE MUST CONTAIN A DEFINITE AND SPECIFIC STATEMENT TO THAT EFFECT. IN ADDITION TO THIS, THE RELIEF IS NOT AUTHORIZED UNLESS IT APPEARS THAT THE RECOVERY WOULD EITHER DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR BE AGAINST EQUITY AND GOOD CONSCIENCE. STATEMENT THAT BOTH OF THESE LAST TWO CONDITIONS EXIST IS NOT NECESSARY.