A-24018, SEPTEMBER 4, 1928, 8 COMP. GEN. 99

A-24018: Sep 4, 1928

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NURSE OR ATTENDANT ALLOWANCE IS PAYABLE. WHICH LATTER ACT WAS REPEALED BY THE WORLD WAR VETERANS' ACT OF JUNE 7. THE CLAIMANT IS ENTITLED TO THE NURSE OR ATTENDANT ALLOWANCE IN ADDITION TO RETIREMENT PAY AND ALLOWANCES. HAD BEEN SPECIFICALLY REPEALED AND WAS SUPERSEDED BY A SIMILAR PROVISION IN THE ACT OF JUNE 7. THE MERE FACT OF THE EXCEPTION TO THE GENERAL TERMS OF THE PROVISO IN WHICH REFERENCE IS MADE TO A STATUTE AUTHORIZING AN ADDITIONAL ALLOWANCE FOR NURSE OR ATTENDANT IS SUFFICIENT TO SHOW THAT INTENT. THE CONGRESS MAY NOT BE PRESUMED TO HAVE DONE A VAIN THING. IT IS NECESSARY TO GIVE SOME EFFECT TO THE EXCEPTION. THE ONLY QUESTION IS WHETHER THE ADDITIONAL ALLOWANCE FOR A NURSE OR ATTENDANT SHOULD BE PAID IN ACCORDANCE WITH THE TERMS OF THE REPEALED ACT OF DECEMBER 18.

A-24018, SEPTEMBER 4, 1928, 8 COMP. GEN. 99

VETERANS' BUREAU - FORMER OFFICERS APPLYING FOR RETIREMENT - RIGHTS TO NURSE AND ATTENDANT ALLOWANCES UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928, 45 STAT. 735, AUTHORIZING RETIREMENT OF EMERGENCY OFFICERS OF THE WORLD WAR, NURSE OR ATTENDANT ALLOWANCE IS PAYABLE, IN ADDITION TO RETIRED PAY AND ALLOWANCES, UNDER THE PROVISIONS OF THE CURRENT STATUTE, VIZ, SECTION 202 (5) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 619, RATHER THAN UNDER THE REPEALED STATUTE OF DECEMBER 18, 1922, 42 STAT. 1064, REFERRED TO IN THE ACT OF MAY 24, 1928, GRANTING THE RETIRED PAY AND ALLOWANCES.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, SEPTEMBER 4, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 4, 1928, REQUESTING DECISION AS TO THE EFFECT TO BE GIVEN TO THE REFERENCE IN THE EMERGENCY OFFICERS' RETIREMENT ACT (1928) TO THE ACT OF DECEMBER 18, 1922, AMENDING THE WAR RISK INSURANCE ACT TO AUTHORIZE THE PAYMENT TO BENEFICIARIES OF AN ADDITIONAL ALLOWANCE FOR NURSE OR ATTENDANT, WHICH LATTER ACT WAS REPEALED BY THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, AND A SIMILAR PROVISION SUBSTITUTED.

YOU REQUEST, ALSO, DECISION WHETHER IN THE SPECIFIC CASE OF JOHN S. DAWSON, C-1270641, A BENEFICIARY OF THE VETERANS' BUREAU, AND ONE ENTITLED TO THE SPECIAL BENEFITS OF THE EMERGENCY OFFICERS' RETIREMENT ACT, 1928, THE CLAIMANT IS ENTITLED TO THE NURSE OR ATTENDANT ALLOWANCE IN ADDITION TO RETIREMENT PAY AND ALLOWANCES.

THE FIRST PROVISO OF THE EMERGENCY OFFICERS' RETIREMENT ACT, DATED MAY 24, 1928, 45 STAT. 735, PROVIDES AS FOLLOWS:

* * * PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF THIS LAW * * * SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WORLD WAR VETERANS' ACT, 1924, AND AMENDMENTS THERETO, EXCEPT AS OTHERWISE AUTHORIZED HEREIN, AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922: * * *

THE QUESTION ARISES BY REASON OF THE FACT THAT THE ACT OF DECEMBER 18, 1922, REFERRED TO IN THE ABOVE-QUOTED PROVISO, HAD BEEN SPECIFICALLY REPEALED AND WAS SUPERSEDED BY A SIMILAR PROVISION IN THE ACT OF JUNE 7, 1924. THERE CAN BE NO QUESTION BUT THAT THE CONGRESS INTENDED, BY SUCH REFERENCE, TO PRESERVE TO SUCH OFFICERS THE RIGHT TO AN ALLOWANCE FOR NURSE OR ATTENDANT IN ADDITION TO THE RETIREMENT PAY AND ALLOWANCES. THE MERE FACT OF THE EXCEPTION TO THE GENERAL TERMS OF THE PROVISO IN WHICH REFERENCE IS MADE TO A STATUTE AUTHORIZING AN ADDITIONAL ALLOWANCE FOR NURSE OR ATTENDANT IS SUFFICIENT TO SHOW THAT INTENT. THE CONGRESS MAY NOT BE PRESUMED TO HAVE DONE A VAIN THING, AND IT IS NECESSARY TO GIVE SOME EFFECT TO THE EXCEPTION, IF POSSIBLE.

THE ONLY QUESTION IS WHETHER THE ADDITIONAL ALLOWANCE FOR A NURSE OR ATTENDANT SHOULD BE PAID IN ACCORDANCE WITH THE TERMS OF THE REPEALED ACT OF DECEMBER 18, 1922, 42 STAT. 1064, REFERRED TO IN THE EXCEPTION, OR IN ACCORDANCE WITH THE CURRENT PROVISION OF LAW, VIZ, SECTION 202 (5) OF THE WORLD WAR VETERANS' ACT, APPROVED JUNE 7, 1924, 43 STAT. 619. THE FORMER AUTHORIZED NOT TO EXCEED $20 PER MONTH FOR DISABLED PERSONS SO HELPLESS AS TO BE IN CONSTANT NEED OF A NURSE OR ATTENDANT, AND A SUM NOT TO EXCEED $50 PER MONTH IF THE DISABLED PERSON BE BLIND, LEGLESS, OR ARMLESS, AND IN CONSTANT NEED OF A NURSE OR ATTENDANT. THE LATTER ACT AUTHORIZES SUCH A SUM AS THE DIRECTOR MAY DEEM REASONABLE, NOT TO EXCEED $50 PER MONTH, IN ALL CASES IN WHICH THE BENEFICIARIES ARE IN CONSTANT NEED OF A NURSE OR ATTENDANT.

WITH REFERENCE TO THE HISTORY OF THE PROVISION IN THE EMERGENCY OFFICERS' RETIREMENT ACT REFERRING TO THE REPEALED STATUTE, YOU SUBMIT THE FOLLOWING:

IT WILL BE SEEN THAT THE ACT EXTENDING CERTAIN BENEFITS TO RETIRED EMERGENCY OFFICERS, WHICH ACT, AFTER RECEIVING THE VETO OF THE PRESIDENT OF THE UNITED STATES, WAS PASSED OVER SAID VETO BY THE SENATE MAY 3, 1928 (CALENDAR DATE MAY 24), AND BY THE HOUSE OF REPRESENTATIVES ON MAY 24, 1928, MAKES REFERENCE IN THE PROVISO QUOTED TO AN AMENDMENT TO THE WAR RISK INSURANCE ACT, SINCE REPEALED. THE CIRCUMSTANCES THROUGH WHICH THIS SITUATION AROSE ARE NOT DEFINITELY KNOWN TO THIS BUREAU, BUT FOR YOUR INFORMATION IT MAY BE STATED THAT LEGISLATION TO EXTEND BENEFITS TO EMERGENCY RETIRED OFFICERS WAS INTRODUCED ON A NUMBER OF OCCASIONS PRIOR TO THE PAST SESSION OF CONGRESS. SEVERAL OF THE EARLIER BILLS PROVIDED THAT THE BENEFITS CONTEMPLATED SHOULD BE IN LIEU OF COMPENSATION PAID UNDER THE WAR RISK INSURANCE ACT. HOWEVER, IN A BILL INTRODUCED BY MR. LINEBERGER IN THE HOUSE OF REPRESENTATIVES ON JANUARY 31, 1924 (H.R. 6484), 68TH CONGRESS, FIRST SESSION, THIS LANGUAGE WAS USED:

"* * * AND SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, AND AMENDMENTS THERETO EXCEPT AS OTHERWISE AUTHORIZED HEREIN AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922.'

SENATOR BURSUM INTRODUCED IN THE SENATE OF THE UNITED STATES ON DECEMBER 6, 1923, A SOMEWHAT SIMILAR BILL (S. 33, 68TH CONGRESS FIRST SESSION, CAL. 124). THIS ACTION BY SENATOR BURSUM WAS TAKEN SHORTLY BEFORE THE INTRODUCTION OF H.R. 6484 IN THE HOUSE OF REPRESENTATIVES BY MR. LINEBERGER. SENATOR BURSUM'S BILL WAS REFERRED TO THE SENATE COMMITTEE ON MILITARY AFFAIRS AND WAS REPORTED OUT ON FEBRUARY 1, 1924, WITH CERTAIN AMENDMENTS, AMONG WHICH WAS A PROVISO THAT THE PAY AND ALLOWANCES "SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, AND AMENDMENTS THERETO EXCEPT AS OTHERWISE AUTHORIZED HEREIN AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922.' IT WOULD SEEM, THEREFORE, THAT THE REFERENCE TO THE ACT OF DECEMBER 18, 1922, WAS FIRST CONTAINED IN H.R. 6484, 68TH CONGRESS, FIRST SESSION, AND THEN INCORPORATED IN SEN. 33, CAL. 124, 68TH CONGRESS, FIRST SESSION. AT THE TIME THIS WAS DONE THE ACT OF DECEMBER 18, 1922, WAS IN FORCE. IT MAY BE THAT WHEN LEGISLATION AFFECTING THE RETIREMENT OF THE EMERGENCY OFFICERS WAS SUBSEQUENTLY INTRODUCED AT LATER SESSIONS OF CONGRESS THE REFERENCE TO THE ACT OF DECEMBER 18, 1922, WAS THUS PERPETUATED AND WAS ALLOWED TO CONTINUE, EVEN AFTER JUNE 7, 1924, WHEN THE WORLD WAR VETERANS' ACT WAS REPEALED AND SUPERSEDED THE WAR RISK INSURANCE ACT, INCLUDING THEREIN THE AMENDMENT OF DECEMBER 18, 1922.

IN VIEW OF THESE FACTS IT WOULD SEEM APPARENT THAT THE FAILURE TO CORRECT THE REFERENCE IN THE EXCEPTION TO THE PROVISO TO THE CURRENT STATUTE PRIOR TO ENACTMENT WAS AN OVERSIGHT. THE INTENT WAS CLEARLY TO EXCEPT FROM THE PROVISO THE ADDITIONAL ALLOWANCE AUTHORIZED BY EXISTING LAW FOR A NURSE OR ATTENDANT SO THAT THE SAME ADDITIONAL AMOUNT AUTHORIZED FOR THAT PURPOSE COULD CONTINUE TO BE PAID TO THE BENEFICIARIES OF THE EMERGENCY OFFICERS' RETIREMENT ACT.

ACCORDINGLY, IN THE CASE OF JOHN S. DAWSON, THE ALLOWANCE FOR NURSE OR ATTENDANT MAY BE PAID IN ACCORDANCE WITH THE TERMS OF THE ACT OF JUNE 7, 1924, SUPRA, IN ADDITION TO THE RETIREMENT PAY AND ALLOWANCES AUTHORIZED UNDER THE ACT OF MAY 24, 1928.