A-18035, A-19253, A-19371, A-20059, A-21256, A-21499, APRIL 5, 1928, 7 COMP. GEN. 630

A-18035,A-19253,A-21256,A-21499,A-20059,A-19371: Apr 5, 1928

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VETERANS' BUREAU - INSURANCE - REVIVAL THE GENERAL ACCOUNTING OFFICE WILL HEREAFTER APPLY IN THE AUDIT THE FOLLOWING DEFINITION. THE REVIVAL OF INSURANCE TAKES PLACE UPON THE OCCURRENCE OF THE DEATH OR THE PERMANENT AND TOTAL DISABILITY OF THE INSURED AND NOT WHEN THE DIRECTOR OF THE VETERANS' BUREAU DECIDES THAT THE INSURANCE IS AGAIN IN EFFECT OR PAYS THE FIRST INSTALLMENT.'. GEN. 118 WILL NO LONGER BE FOLLOWED IN SO FAR AS THE MEANING OF THE PHRASE IS CONCERNED. THE GENERAL ACCOUNTING OFFICE WILL HEREAFTER APPLY IN THE AUDIT THE PRINCIPLE OR RULE ANNOUNCED BY THE SUPREME COURT OF THE DISTRICT OF COLUMBIA IN DECISION OF JANUARY 17. WILL NOT DEFEAT THE RIGHT TO APPLY THE AMOUNT OF SUCH COMPENSATION TO REVIVE INSURANCE UNDER THE PROVISIONS OF SECTION 305 OF THE WORLD WAR VETERANS' ACT.

A-18035, A-19253, A-19371, A-20059, A-21256, A-21499, APRIL 5, 1928, 7 COMP. GEN. 630

VETERANS' BUREAU - INSURANCE - REVIVAL THE GENERAL ACCOUNTING OFFICE WILL HEREAFTER APPLY IN THE AUDIT THE FOLLOWING DEFINITION, ANNOUNCED BY THE ATTORNEY GENERAL (SYLLABUS, 35 OP.ATTY.GEN. 241) AND APPLIED BY THE VETERANS' BUREAU AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, OF THE PHRASE "HEREAFTER REVIVED" APPEARING IN SECTION 305 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 799, RESTRICTING PAYMENTS OF INSURANCE REVIVED AFTER JULY 2, 1926, TO A LIMITED CLASS OF BENEFICIARIES, VIZ: "BY THE PROVISO OF SECTION 305 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, THE REVIVAL OF INSURANCE TAKES PLACE UPON THE OCCURRENCE OF THE DEATH OR THE PERMANENT AND TOTAL DISABILITY OF THE INSURED AND NOT WHEN THE DIRECTOR OF THE VETERANS' BUREAU DECIDES THAT THE INSURANCE IS AGAIN IN EFFECT OR PAYS THE FIRST INSTALLMENT.' DECISION IN 7 COMP. GEN. 118 WILL NO LONGER BE FOLLOWED IN SO FAR AS THE MEANING OF THE PHRASE IS CONCERNED. THE GENERAL ACCOUNTING OFFICE WILL HEREAFTER APPLY IN THE AUDIT THE PRINCIPLE OR RULE ANNOUNCED BY THE SUPREME COURT OF THE DISTRICT OF COLUMBIA IN DECISION OF JANUARY 17, 1928, IN THE CASE OF HARDIN NEAL COX, APPROVED BY THE ATTORNEY GENERAL, TO THE EFFECT THAT THE SUBSEQUENT COLLECTION BY THE INSURED OF WAR-RISK DISABILITY COMPENSATION DUE AND PAYABLE AT DATE OF HAPPENING OF PERMANENT AND TOTAL DISABILITY, WILL NOT DEFEAT THE RIGHT TO APPLY THE AMOUNT OF SUCH COMPENSATION TO REVIVE INSURANCE UNDER THE PROVISIONS OF SECTION 305 OF THE WORLD WAR VETERANS' ACT, AS AMENDED. DECISIONS IN 7 COMP. GEN. 131 AND 273 WILL NO LONGER BE FOLLOWED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 5, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 28, 1928, FORWARDING COPY OF THE OPINION OF THE ATTORNEY GENERAL DATED MARCH 16, 1928, WHICH HAS BEEN RENDERED AT YOUR REQUEST AS SUGGESTED IN OFFICE LETTER TO YOU DATED FEBRUARY 11, 1928, IN REPLY TO YOUR LETTER OF JANUARY 11, 1928, TO DETERMINE WHETHER THE CONCLUSIONS OF LAW STATED CATEGORICALLY BY THE SUPREME COURT OF THE DISTRICT OF COLUMBIA IN DECISION DATED JANUARY 17, 1928, IN THE CASE OF HARDIN NEAL COX,"WILL BE ACCEPTED AS FINAL AND CONTROLLING THE DISPOSITION OF ALL WAR-RISK INSURANCE CASES INVOLVING THE SAME PRINCIPLES.'

THE ATTORNEY GENERAL AGREES WITH THE THIRD AND FOURTH CONCLUSIONS OF THE COURT AND EXPRESSES THE OPINION THAT THE SAME SHOULD BE FOLLOWED IN ALL SIMILAR CASES, WITH WHICH YOU APPEAR TO AGREE. THESE TWO CONCLUSIONS WERE STATED BY THE COURT AS FOLLOWS:

3. THAT THE SUBSEQUENT COLLECTION BY A SOLDIER OF ALL COMPENSATION WHICH WAS UNCOLLECTED AT THE TIME OF HIS PERMANENT AND TOTAL DISABILITY DOES NOT OPERATE TO DEFEAT THE PROVISIONS OF SECTION 408 OF THE WAR RISK INSURANCE ACT AS AMENDED (42 STAT. 1525), WHICH SECTION WAS REENACTED AS SECTION 305 OF THE WORLD WAR VETERANS' ACT, 1924.

4. THAT THIS INSURANCE IS NOT "HEREAFTER REVIVED" WITHIN THE MEANING OF SECTION 305 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED JULY 2, 1926.

THE FOURTH CONCLUSION OF THE COURT QUOTED MAY BE BETTER UNDERSTOOD BY REFERENCE TO THE FOLLOWING QUOTED SYLLABUS OF THE OPINION OF THE ATTORNEY GENERAL, DATED JUNE 22, 1927, 35 OP.ATTY.GEN. 241, ON THE BASIS OF WHICH THE COURT APPARENTLY BASED SUCH CONCLUSION.

BY THE PROVISO TO SECTION 305 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, THE REVIVAL OF INSURANCE TAKES PLACE UPON THE OCCURRENCE OF THE DEATH OR THE PERMANENT AND TOTAL DISABILITY OF THE INSURED AND NOT WHEN THE DIRECTOR OF THE VETERANS' BUREAU DECIDES THAT THE INSURANCE IS AGAIN IN EFFECT OR PAYS THE FIRST INSTALLMENT.

IN VIEW OF THE DECISION OF THE COURT AND THE ATTITUDE OF THE DEPARTMENT OF JUSTICE AND THE VETERANS' BUREAU WITH RESPECT THERETO, THIS OFFICE WILL INTERPOSE NO FURTHER OBJECTION TO THE ADJUDICATION OF WAR-RISK INSURANCE CASES IN ACCORDANCE WITH THE TWO PRINCIPLES OR RULES HEREINBEFORE STATED. ACCORDINGLY, THE FOLLOWING DECISIONS OF THIS OFFICE WILL NO LONGER BE FOLLOWED IN THE AUDIT IN SO FAR AS THEY MAY BE IN CONFLICT WITH SAID PRINCIPLES OR RULES:

CHART

DATE NO. NAME AND CITATION AUG. 17, 1927, A 19253. HARDIN NEAL COX, 7 COMP. GEN. 118. AUG. 20, 1927, A-19371. JAMES WATSON PEACOCK, 7 COMP. GEN. 131. OCT. 13, 1927, A-19371. JAMES WATSON PEACOCK, 7 COMP. GEN. 273. NOV. 14, 1927, A-20059. LOUIS GUST, UNPUBLISHED.

IN YOUR LETTER OF JANUARY 11, 1928, YOU SUBMITTED A NUMBER OF CASES FOR CONSIDERATION INVOLVING THESE DECISIONS AS WELL AS TWO DECISIONS IN THE CASE OF JOHN HIRAM HURST, WHICH HELD THAT DISABILITY COMPENSATION TO WHICH THE INSURED WAS NOT ENTITLED BECAUSE THE SAME WAS COMPUTED OVER A PERIOD PRIOR TO THE TIME LIMITATIONS FIXED IN SECTION 310 OF THE WAR RISK INSURANCE ACT AND SECTION 210 OF THE WORLD WAR VETERANS' ACT COULD NOT BE CONSIDERED AS REVIVING INSURANCE.

IN OFFICE LETTER TO YOU DATED FEBRUARY 11, 1928, IT WAS SPECIFICALLY STATED AS FOLLOWS:

THE PRINCIPLES ANNOUNCED IN DECISIONS OF THIS OFFICE DATED APRIL 29, 1927, 6 COMP. GEN. 706, AND UPON RECONSIDERATION DATED JUNE 9, 1927, 6 ID. 800, IN THE CASE OF JOHN HIRAM HURST, DO NOT APPEAR TO BE INVOLVED IN THE COURT RULING.

NOTWITHSTANDING THIS STATEMENT, THE GENERAL COUNSEL OF THE VETERANS' BUREAU, IN HIS OPINION TO YOU, DATED FEBRUARY 21, 1928, WHICH YOU FORWARDED TO THE ATTORNEY GENERAL, ATTEMPTED TO BRING INTO ISSUE THESE TWO DECISIONS IN THE CASE OF JOHN HIRAM HURST, WHICH ARE NOT REALLY INVOLVED. IT IS NOTED, HOWEVER, THAT THE ATTORNEY GENERAL PROPERLY LIMITED HIS OPINION TO THE PRINCIPLES OR RULES ANNOUNCED BY THE COURT. CONCERNING THE DECISIONS IN THE CASE OF JOHN HIRAM HURST, YOU STATE:

AS TO COMPENSATION WHICH IS NOT PAYABLE BECAUSE OF SECTION 310 OF THE WAR RISK INSURANCE ACT AND SECTION 210 OF THE WORLD WAR VETERANS' ACT, YOU WILL RECALL THAT IN AN OPINION RENDERED UNDER DATE OF JULY 24, 1926, THE ATTORNEY GENERAL HELD THAT SUCH COMPENSATION MIGHT BE USED IN COMPUTING THE AMOUNT OF INSURANCE REVIVABLE UNDER SECTIONS 408 OF THE WAR RISK INSURANCE ACT AND 305 OF THE WORLD WAR VETERANS' ACT, WHICH OPINION WAS CONTRARY TO THE RULE LAID DOWN IN YOUR DECISION IN THE CASE OF JOHN HIRAM HURST.

THE ATTORNEY GENERAL IN HIS OPINION TO WHICH YOU REFER, 35 OP.ATTY.GEN. 141, 146, BASED HIS CONCLUSION SOLELY ON THE PAST ADMINISTRATIVE PRACTICE OF THE VETERANS' BUREAU, AND CAREFULLY REFRAINED FROM GIVING A LEGAL INTERPRETATION OF THE TERMS OF THE CONTROLLING STATUTE IN THIS REGARD. FACT, ONE IS LED TO BELIEVE THAT HAD IT NOT BEEN FOR THE PAST ADMINISTRATIVE PRACTICE, THE CONCLUSION WOULD HAVE BEEN TO THE CONTRARY. THE CITED DECISIONS OF THIS OFFICE IN THE CASE OF JOHN HIRAM HURST ARE IN CONFLICT WITH THIS OPINION OF THE ATTORNEY GENERAL ONLY SO FAR AS THE ATTORNEY GENERAL ATTEMPTS TO AUTHORIZE THE CONTINUATION OF AN UNLAWFUL ADMINISTRATIVE PRACTICE SOLELY ON THE BASIS OF ITS OPERATION IN THE PAST. THE DECISIONS OF THIS OFFICE DID NOT ATTEMPT TO DISTURB PAST PAYMENTS, AND IN FACT IN THE LATER DECISION OF JUNE 9, 1927, 6 COMP. GEN. 800, VALIDATED ALL AWARDS IN COURSE OF PAYMENT MADE UNDER THE ADMINISTRATIVE PRACTICE.

NOTHING IS DISCLOSED IN THE RECENT OPINION OF THE ATTORNEY GENERAL, OR OTHERWISE, TO JUSTIFY ANY MODIFICATION IN THE DECISIONS OF THIS OFFICE IN THE CASE OF JOHN HIRAM HURST, DATED APRIL 29, 1927, 6 COMP. GEN. 706, AND JUNE 9, 1927, 6 ID. 800.

IT IS NOT DEEMED NECESSARY OR PROPER AT THIS TIME TO GIVE CONSIDERATION TO EACH OF THE INDIVIDUAL CASES REFERRED TO IN YOUR SUBMISSIONS OF JANUARY 11, 1928, A-21256, AND FEBRUARY 1, 1928, A 21499, AS IT IS BELIEVED THE SAME MAY BE PROPERLY DISPOSED OF BY APPLICATION OF THE PRINCIPLES HEREIN ANNOUNCED. IF ANY DIFFICULTY IS ENCOUNTERED IN THE CONSIDERATION OF THE INDIVIDUAL CASES, I WILL BE GLAD TO GIVE FURTHER CONSIDERATION THERETO UPON SPECIFIC SUBMISSION FROM YOUR OFFICE OF THE POINTS INVOLVED.