A-21662, MARCH 10, 1928, 7 COMP. GEN. 556

A-21662: Mar 10, 1928

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PROVIDES AS FOLLOWS: THAT ANY PERSON WHO IS NOW RECEIVING A GRATUITY OR PENSION FROM THE UNITED STATES UNDER EXISTING LAW SHALL NOT RECEIVE COMPENSATION UNDER THIS SECTION UNLESS HE SHALL FIRST SURRENDER ALL CLAIM TO FURTHER PAYMENTS OF SUCH GRATUITY OR PENSION. THE EXCEPTION REFERRED TO IS NOT INVOLVED IN THIS CASE. IS DISABLED FROM SEA SERVICE. A SUM EQUAL TO ONE-HALF THE PAY OF HIS RATING AT THE TIME HE WAS DISCHARGED. IT WAS STATED THAT THE TERM "GRATUITY OR PENSION" IN THE AMENDED WAR-RISK INSURANCE ACT "HAS REFERENCE ONLY TO GRATUITIES OR PENSIONS DUE TO SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.'. THE TERM IS USED IN THE SENSE OF A GIFT OR ADDITIONAL ALLOWANCE GRANTED BY THE GOVERNMENT ON ACCOUNT OF SERVICE IN THE ARMY OR NAVY AS DISTINGUISHED FROM ACTUAL PAY OR REMUNERATION FOR SERVICES RENDERED.

A-21662, MARCH 10, 1928, 7 COMP. GEN. 556

VETERANS' BUREAU - PAYMENT OF DISABILITY COMPENSATION AND OTHER GRATUITIES A BENEFICIARY OF THE VETERANS' BUREAU MAY NOT BE PAID WAR-RISK DISABILITY COMPENSATION UNLESS AND UNTIL HE SURRENDERS ALL CLAIM TO THE MONEY ALLOWANCE AUTHORIZED BY SECTION 4756, REVISED STATUTES, IN LIEU OF BEING PROVIDED A HOME AT THE NAVAL HOME OR ASYLUM, PHILADELPHIA, PA.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 10, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF FEBRUARY 10, 1928, REQUESTING DECISION WHETHER FRANK HARRINGTON, C-1379639, MAY BE PAID WAR- RISK DISABILITY COMPENSATION WITHOUT FIRST SURRENDERING ALL CLAIM TO MONEY ALLOWANCE NOW BEING RECEIVED BY HIM UNDER SECTION 4756, REVISED STATUTES.

SUBSECTION 15 OF SECTION 202 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 621, PROVIDES AS FOLLOWS:

THAT ANY PERSON WHO IS NOW RECEIVING A GRATUITY OR PENSION FROM THE UNITED STATES UNDER EXISTING LAW SHALL NOT RECEIVE COMPENSATION UNDER THIS SECTION UNLESS HE SHALL FIRST SURRENDER ALL CLAIM TO FURTHER PAYMENTS OF SUCH GRATUITY OR PENSION, EXCEPT AS PROVIDED IN SUBDIVISION 7 OF SECTION 201.

THE EXCEPTION REFERRED TO IS NOT INVOLVED IN THIS CASE.

SECTION 4756, REVISED STATUTES, PROVIDES AS FOLLOWS:

THERE SHALL BE PAID OUT OF THE NAVAL PENSION FUND TO EVERY PERSON WHO, FROM AGE OR INFIRMITY, IS DISABLED FROM SEA SERVICE, BUT WHO HAS SERVED AS AN ENLISTED PERSON IN THE NAVY OR MARINE CORPS FOR THE PERIOD OF TWENTY YEARS, AND NOT BEEN DISCHARGED FOR MISCONDUCT, IN LIEU OF BEING PROVIDED WITH A HOME IN THE NAVAL ASYLUM, PHILADELPHIA, IF HE SO ELECTS, A SUM EQUAL TO ONE-HALF THE PAY OF HIS RATING AT THE TIME HE WAS DISCHARGED, TO BE PAID TO HIM QUARTERLY, UNDER THE DIRECTION OF THE COMMISSIONER OF PENSIONS; AND APPLICATIONS FOR SUCH PENSION SHALL BE MADE TO THE SECRETARY OF THE NAVY, WHO, UPON BEING SATISFIED THAT THE APPLICANT COMES WITHIN THE PROVISIONS OF THIS SECTION, SHALL CERTIFY THE SAME TO THE COMMISSIONER OF PENSIONS, AND SUCH CERTIFICATE SHALL BE HIS WARRANT FOR MAKING PAYMENT AS HEREIN AUTHORIZED.

IN 2 COMP. GEN. 583, IT WAS STATED THAT THE TERM "GRATUITY OR PENSION" IN THE AMENDED WAR-RISK INSURANCE ACT "HAS REFERENCE ONLY TO GRATUITIES OR PENSIONS DUE TO SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.' THE TERM IS USED IN THE SENSE OF A GIFT OR ADDITIONAL ALLOWANCE GRANTED BY THE GOVERNMENT ON ACCOUNT OF SERVICE IN THE ARMY OR NAVY AS DISTINGUISHED FROM ACTUAL PAY OR REMUNERATION FOR SERVICES RENDERED--- SOME MONEY BENEFIT OR ALLOWANCE IN ADDITION TO THAT FIXED FOR SERVICES RENDERED.

THE NAVAL HOME OR ASYLUM AT PHILADELPHIA, PA., IS MAINTAINED FROM THE NAVAL PENSION FUND MADE UP ORIGINALLY OF A SHARE IN THE PENALTIES AND FORFEITURES INCURRED UNDER THE PROVISIONS OF SECTIONS 2462 AND 2463, REVISED STATUTES, UNDER THE TITLE "THE PUBLIC LANDS," AND FROM ALL MONEY ACCRUING FROM THE SALE OF SEA PRIZES, FROM THE AMOUNT OF THE INVESTMENTS THEREOF AND ACCRUING INTEREST, AND FROM ANY APPROPRIATION MADE BY THE CONGRESS TO COVER A DEFICIENCY IN THE FUND. SEE SECTIONS 4751, 4752, 4753, AND 4754, REVISED STATUTES. NO PORTION OF THE FUND IS MADE UP FROM DEDUCTIONS FROM THE PAY OF THE PERSONNEL OF THE NAVY OR IS OTHERWISE CONTRIBUTED BY THEM. ACCORDINGLY, THE FURNISHING OF A HOME AT THE NAVAL HOME OR ASYLUM WOULD BE A PURE GRATUITY, AND ANY MONEY ALLOWANCE GRANTED IN LIEU THEREOF AND PAID FROM THE NAVAL PENSION FUND WOULD LIKEWISE CONSTITUTE A GRATUITY OR PENSION.

ALTHOUGH SECTION 4756, REVISED STATUTES, ITSELF DESIGNATES THE MONEY ALLOWANCE AUTHORIZED THEREUNDER AS A PENSION IN THE CLAUSE "AND APPLICATIONS FOR SUCH PENSION SHALL BE MADE TO THE SECRETARY OF THE NAVY," IT APPEARS THAT AN ATTORNEY GENERAL EXPRESSED THE VIEW THAT THIS MONEY ALLOWANCE IS NOT A PENSION IN THE "USUAL AND ORDINARY ACCEPTATION OF THAT TERM.' 25 OP.ATTY.GEN. 85. SEE ALSO 13 COMP. DEC. 624; 19 ID. 723. BUT THERE WOULD APPEAR TO BE NO BASIS FOR A HOLDING THAT THE MONEY ALLOWANCE IS NOT A "GRATUITY OR PENSION" WITHIN THE MEANING OF THE WORLD WAR VETERANS' ACT. ONE OF THE TESTS TO DETERMINE THE GRATUITOUS NATURE OF A PAYMENT BY THE GOVERNMENT IS WHETHER THE RIGHT THERETO WILL SURVIVE IF NOT COLLECTED PRIOR TO THE DEATH OF THE BENEFICIARY. FROM THE QUESTION CONSIDERED BY THE ATTORNEY GENERAL IN THE ABOVE CITED CASE AND HIS CONCLUSION WITH RESPECT THERETO, IT IS CLEAR THAT THE PAYMENT WAS CONSIDERED BY HIM TO HAVE BEEN A GRATUITY. THAT IS TO SAY, THE ATTORNEY GENERAL HELD (QUOTING FROM THE SYLLABUS):

THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT TO THE PERSONAL REPRESENTATIVE OF A DECEASED BENEFICIARY OF MONEY BENEFITS WHICH MAY HAVE ACCRUED UNDER SECTIONS 4756 AND 4757, REVISED STATUTES, BETWEEN THE DATE OF THE LAST QUARTERLY PAYMENT AND THE DATE OF DEATH; * * *.

AS THE BENEFIT PROVIDED FOR UNDER SECTION 4756, SUPRA, MUST BE HELD TO BE A "GRATUITY OR PENSION," THE QUESTION SUBMITTED MUST BE AND IS ANSWERED IN THE NEGATIVE; THAT IS, FRANK HARRINGTON MAY NOT BE PAID WAR-RISK DISABILITY COMPENSATION UNLESS AND UNTIL HE SURRENDERS ALL RECLAIM TO MONEY BENEFITS NOW BEING RECEIVED BY HIM UNDER SECTION 4756, REVISED STATUTES.