A-24496, A-25514, MARCH 12, 1930 9 COMP. GEN. 399

A-24496,A-25514: Mar 12, 1930

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AS NOT AUTHORIZING THE RETIREMENT OF OFFICERS WHO SERVED DURING THE WORLD WAR BOTH AS EMERGENCY OFFICERS AND AS OFFICERS OF THE REGULAR ESTABLISHMENT ARE HEREBY MODIFIED. WILL BE PASSED IN CASES OF ALL PERSONS WHO SERVED AT SOME TIME DURING THE WORLD WAR AS OFFICERS OF THE ARMY. WHO ARE OTHERWISE WITHIN THE ACT AS DETERMINED BY THE DIRECTOR OF THE VETERANS' BUREAU. NOTWITHSTANDING THEY MAY ALSO HAVE SERVED AT SOME OTHER PERIOD DURING THE WORLD WAR AS OFFICERS OF THE REGULAR ARMY. WHERE PERSONS ARE RECEIVING MILITARY OR NAVAL ACTIVE DUTY PAY. WILL BE REDUCED BY THE AMOUNT OF SUCH ACTIVE DUTY. 1930: THERE IS FOR CONSIDERATION IN THE AUDIT AND ON SUBMISSION FROM THE DISBURSING CLERK OF THE UNITED STATES VETERANS' BUREAU.

A-24496, A-25514, MARCH 12, 1930 9 COMP. GEN. 399

PAY - RETIRED - EMERGENCY OFFICERS PRIOR DECISIONS CONSTRUING THE ACT OF MAY 24, 1928, 45 STAT. 735, AS NOT AUTHORIZING THE RETIREMENT OF OFFICERS WHO SERVED DURING THE WORLD WAR BOTH AS EMERGENCY OFFICERS AND AS OFFICERS OF THE REGULAR ESTABLISHMENT ARE HEREBY MODIFIED. PAYMENTS OF RETIRED PAY UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, WILL BE PASSED IN CASES OF ALL PERSONS WHO SERVED AT SOME TIME DURING THE WORLD WAR AS OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS, OTHER THAN AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, AND WHO HAD NO STATUS IN THE REGULAR ESTABLISHMENTS, WHO ARE OTHERWISE WITHIN THE ACT AS DETERMINED BY THE DIRECTOR OF THE VETERANS' BUREAU, NOTWITHSTANDING THEY MAY ALSO HAVE SERVED AT SOME OTHER PERIOD DURING THE WORLD WAR AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS. THE ACT OF MAY 24, 1928, 45 STAT. 735, DOES NOT AUTHORIZE DOUBLE BENEFITS, AND WHERE PERSONS ARE RECEIVING MILITARY OR NAVAL ACTIVE DUTY PAY, RETIRED OR RETAINER PAY, UNDER THE WAR OR NAVY DEPARTMENT, THE AMOUNT PAYABLE UNDER THE ACT OF MAY 24, 1928, WILL BE REDUCED BY THE AMOUNT OF SUCH ACTIVE DUTY, RETIRED OR RETAINER PAY, RECEIVED.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 12, 1930:

THERE IS FOR CONSIDERATION IN THE AUDIT AND ON SUBMISSION FROM THE DISBURSING CLERK OF THE UNITED STATES VETERANS' BUREAU, THE PROPRIETY OF PAYMENT OF RETIRED PAY UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, IN THE CASES OF SEVERAL FORMER OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS WHO HAD SERVICE DURING THE WORLD WAR IN THE ARMY, NAVY, OR MARINE CORPS OTHER THAN AS OFFICERS OF THE REGULAR ESTABLISHMENT, AND, ALSO, SERVICE DURING THE WORLD WAR AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO HAVE BEEN BY THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU PLACED ON THE RETIRED LIST CREATED BY THE CITED ACT.

THE MATTER WAS FIRST CONSIDERED IN THIS OFFICE IN CONNECTION WITH THE RETIREMENT OF NORMAN SCOTT COOPER, LATE LIEUTENANT (JUNIOR GRADE), UNITED STATES NAVY, VETERANS' BUREAU NO. C-1,043,775. THE SERVICE RECORD OF DOCTOR COOPER REPORTED BY THE NAVY DEPARTMENT SHOWED THAT HE HAD REPORTED FOR ACTIVE DUTY AS A LIEUTENANT (JUNIOR GRADE) IN THE NAVAL COAST DEFENSE RESERVE, CLASS 4, NOVEMBER 17, 1917; THAT HE WAS COMMISSIONED IN THE MEDICAL CORPS OF THE REGULAR NAVY WITH THE RANK OF LIEUTENANT (JUNIOR GRADE) JANUARY 3, 1918, ACCEPTING THE APPOINTMENT AND EXECUTING THE OATH OF OFFICE JANUARY 21, 1918; THAT HE WAS PROMOTED TO THE GRADE OF LIEUTENANT, TEMPORARY, NOVEMBER 28, 1918, AND THAT HE RESIGNED FROM THE REGULAR NAVY EFFECTIVE DECEMBER 24, 1919. PRACTICALLY ALL OF THE OFFICER'S SERVICE WAS IN THE REGULAR ESTABLISHMENT, THE SHORT PERIOD OF SERVICE AS A MEMBER OF THE NAVAL RESERVE FORCE ON ACTIVE DUTY NOVEMBER 17, 1917, TO AND INCLUDING JANUARY 20, 1918, SEEMS TO HAVE BEEN PRELIMINARY TO HIS APPOINTMENT IN THE REGULAR NAVY. THE OFFICER MAY BE CONSIDERED TECHNICALLY AS WITHIN THE CLAUSE OF THE ACT GRANTING THE RIGHT TO RETIREMENT AND ALSO UNQUESTIONABLY IN THE EXCEPTION THEREFROM.

THE ACT IN PROVIDING FOR THE RETIREMENT OF DISABLED EMERGENCY OFFICERS PROVIDED THAT THE OFFICERS SHOULD BE RETIRED "WITH THE RANK HELD BY THEM WHEN DISCHARGED FROM THEIR COMMISSIONED SERVICE" AND THAT THEY SHOULD "RECEIVE FROM DATE OF RECEIPT OF THEIR APPLICATION RETIRED PAY AT THE RATE OF 75 PER CENTUM OF THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE, EXCEPT PAY UNDER THE ACT OF MAY 18, 1920.' IN VIEW OF THE AMBIGUITY RESULTING FROM THE OFFICER BEING, AS STATED, BOTH WITHIN THE GRANT AND THE EXCEPTION, AND THE CLEARLY EXPRESSED REQUIREMENT THAT THE OFFICER'S RIGHTS WERE TO BE FIXED WITH RESPECT TO RANK AND PAY AT DATE OF DISCHARGE FROM COMMISSIONED SERVICE, PALPABLY CONTEMPLATING A TERMINATION OF SERVICE IN THE ARMED FORCES OF THE UNITED STATES, THE CONCLUSION WAS REACHED IN DECISION OF OCTOBER 8, 1928, THAT OFFICERS WHO HAD SERVICE IN THE REGULAR ESTABLISHMENTS DURING THE WORLD WAR, SUBSEQUENT TO SERVICE UNDER EMERGENCY COMMISSIONS, ARE NOT WITHIN THE ACT. THIS CONCLUSION WAS SUPPORTED BY IMPLICATIONS DRAWN FROM OTHER ACTS; FOR EXAMPLE, SECTION 24-B OF THE ACT OF JUNE 4, 1920, 41 STAT. 773, PROVIDING FOR THE CLASSIFICATION OF OFFICERS OF THE REGULAR ARMY, DISCHARGE WITH ONE YEAR'S PAY OF OFFICERS PLACED IN CLASS B WITH LESS THAN 10 YEARS OF COMMISSIONED SERVICE, THE RETIREMENT OF OFFICERS WITH OVER 10 YEARS' COMMISSIONED SERVICE WITH A REDUCED RETIREMENT PAY EQUAL TO 2 1/2 PERCENT OF THEIR ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF COMMISSIONED SERVICE, WITH A LIMIT ON THE RETIRED PAY OF 60 PERCENT OF ACTIVE PAY OF OFFICERS RETIRED SUBSEQUENT TO JANUARY 1, 1924; AND THE ACT OF JUNE 30, 1922, 42 STAT. 721, PROVIDING FOR A REDUCTION IN THE NUMBER OF OFFICERS OF THE ARMY BY APPROXIMATELY 1,000 WITH A PROVISION FOR DISCHARGE OF OFFICERS WITH LESS THAN 10 YEARS OF COMMISSIONED SERVICE WITH 1 YEAR'S PAY, THE RETIREMENT OF CERTAIN OTHERS WITH THE SERVICES PROVIDED BY THE STATUTE AS WARRANT OFFICERS OF THE ARMY, AND THE RETIREMENT OF OTHERS WITH OVER 10 YEARS' COMMISSIONED SERVICE WITH A REDUCED RATE OF RETIRED PAY EQUAL TO 2-1/2 PERCENT OR 3 PERCENT OF THEIR ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF COMMISSIONED SERVICE.

AMONG THE OFFICERS SO SEPARATED OR RETIRED WERE A NUMBER WHO HAD SERVED DURING THE WORLD WAR BOTH AS EMERGENCY OFFICERS AND AS OFFICERS OF THE REGULAR ESTABLISHMENT, AND SOME HAD BEEN PLACED ON RETIRED LIST OF THE REGULAR ARMY WITH THE REDUCED RETIRED PAY PROVIDED BY ONE OR THE OTHER OF THE FOREGOING ACTS. IF OFFICERS WHO SERVED DURING THE WORLD WAR BOTH AS EMERGENCY OFFICERS AND AS OFFICERS OF THE REGULAR ESTABLISHMENT ARE INCLUDED WITHIN THE ACT OF 1928, IT IS OBVIOUS THAT ALL, WHETHER THEY RESIGNED FROM THE REGULAR ESTABLISHMENT, WERE DISCHARGED WITH A YEAR'S PAY OR WERE RETIRED WITH A LIMITED OR REDUCED RETIRED PAY, ARE INCLUDED. THESE SPECIAL PROVISIONS FOR OFFICERS OF THE REGULAR ARMY SOME OF WHOM MAY HAVE SERVED IN THE REGULAR ESTABLISHMENTS DURING THE WORLD WAR AS EMERGENCY OFFICERS, SEEM TO SUPPORT THE CONCLUSION THAT THE ACT OF MAY 24, 1928, WAS NOT DESIGNED TO BENEFIT ANY PERSONS WHO HAD HAD THE BENEFIT OF THE SPECIAL PROVISIONS MADE FOR OFFICERS OF THE REGULAR ESTABLISHMENT, INCLUDING THE LAWS FOR RETIREMENT OF OFFICERS DISABLED AS AN INCIDENT OF THEIR SERVICE. OTHERWISE, GREATER BENEFITS WOULD ACCRUE TO OFFICERS OF THE REGULAR ARMY SEPARATED FROM THE ACTIVE LIST OF THE REGULAR ARMY UNDER ONE OR THE OTHER OF THESE ACTS WHO HAD HAD EMERGENCY SERVICE THAN WOULD ACCRUE TO OTHER OFFICERS OF THE REGULAR ARMY SEPARATED FROM THE ACTIVE LIST UNDER THOSE ACTS, INCLUDING THE POSSIBILITY OF DOUBLE RETIREMENT BENEFITS, AND GREATER BENEFITS THAN WOULD ACCRUE TO THE LARGE NUMBER OF DISABLED EMERGENCY OFFICERS, THE OBJECTS AND INTENDED BENEFICIARIES OF THE ACT OF MAY 24, 1928, PROVISION FOR WHOSE RELIEF THERETOFORE WAS CONTAINED ONLY IN THE WAR RISK INSURANCE ACT AND ITS AMENDMENTS. THE ACT OF 1928 POINTED OUT THE BENEFICIARIES WITH A DEGREE OF CERTAINTY BY PROVIDING THAT THE PAY THEREIN ESTABLISHED SHOULD BE IN LIEU OF DISABILITY COMPENSATION BENEFITS UNDER THE WORLD WAR VETERANS' ACT OF 1924. UNDER THE LATTER ACT, PERSONS IN RECEIPT OF ACTIVE DUTY OR RETIRED PAY WERE NOT ENTITLED TO COMPENSATION AND THE ACT THUS HAS CLEARLY CONFINED ITS BENEFITS TO PERSONS RECEIVING, OR ENTITLED TO RECEIVE, DISABILITY COMPENSATION BENEFITS UNDER THE ACT OF 1924, AND EQUALLY AS CLEARLY HAS DEPRIVED PERSONS RECEIVING ACTIVE DUTY OR RETIRED PAY FROM BENEFITS UNDER THE ACT OF 1928.

REPRESENTATIONS HAVE BEEN MADE, AND INSISTED UPON, THAT SUCH A CONSTRUCTION DISCRIMINATES BETWEEN DISABLED OFFICERS OTHERWISE WITHIN THE ACT OF 1928 WHO SERVED IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR OTHER THAN AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, AND THAT THE SUBSEQUENT SERVICE IN THE REGULAR ESTABLISHMENT OPERATED AS A PENALTY TO DEPRIVE THEM OF BENEFITS THAT OTHERWISE WOULD HAVE ACCRUED UNDER THE ACT OF 1928; THAT THE ACT IS A BENEFICIAL ONE, SHOULD HAVE A LIBERAL CONSTRUCTION AND SHOULD NOT BE SO CONSTRUED AS TO CREATE INEQUALITIES AMONG THE DISABLED VETERANS WHO HAD SERVED DURING THE WORLD WAR AS EMERGENCY OFFICERS. BUT IN SUCH REPRESENTATIONS NO SUGGESTION HAS BEEN MADE AS TO HOW DUPLICATE BENEFITS WOULD BE PREVENTED UNDER SUCH A CONSTRUCTION. IN FACT, THERE HAVE BEEN PENDING IN THE LOCAL COURTS OF THE DISTRICT OF COLUMBIA PROCEEDINGS TO COMPEL BY WRIT OF MANDAMUS OR BY WRIT OF MANDATORY INJUNCTION PAYMENT OF DOUBLE BENEFITS, THAT IS, BOTH RETIRED PAY ON THE RETIRED LIST OF THE REGULAR ARMY AND FULL BENEFITS UNDER THE ACT OF MAY 24, 1928. SEE, FOR EXAMPLE, THE CASE OF CAVANAGH V. HINES AND EASTON V. HINES, WHERE PEREMPTORY WRITS OF MANDAMUS WERE ISSUED BY THE SUPREME COURT OF THE DISTRICT OF COLUMBIA TO COMPEL PAYMENT OF THE RETIRED PAY PROVIDED BY THE ACT OF MAY 24, 1928, AND THE CASES OF MOORE V. HINES ET AL; PURCELL V. HINES ET AL; MCDOWELL V. HINES ET AL; TAFT V. HINES ET AL; AND PATE V. HINES ET AL; EQUITY NOS. 50351, 50353, 50354, 50355, AND 50356, AND THE MEMORANDUM OPINION BY MR. JUSTICE WHEAT IN THE MCDOWELL AND PATE CASES, NOVEMBER 18, 1929, WHERE THE SAME RESULT WAS ATTEMPTED TO BE ATTAINED BY APPLICATION FOR WRITS OF MANDATORY INJUNCTION TO COMPEL SUCH PAYMENTS.

THE CONGRESS HAS BEEN GRATEFULLY GENEROUS WITH THE VETERANS OF WARS IN WHICH THE UNITED STATES HAS BEEN ENGAGED, BUT NEITHER THE CONGRESS NOR THE COURTS HAVE LOOKED FAVORABLY UPON DOUBLE BENEFITS FOR SUCH WAR SERVICE, THAT IS, TWO PENSIONS FOR THE SAME SERVICE OR A PENSION AND ACTIVE OR RETIRED PAY IN THE ARMY, NAVY, OR MARINE CORPS. IN THE EARLY CASE OF DECATUR V. PAULDING, 14 PETERS 497, THE SUPREME COURT AFFIRMED THE JUDGMENT OF THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA IN REFUSING TO AWARD A PEREMPTORY WRIT OF MANDAMUS WHICH WOULD HAVE RESULTED IN THE PAYMENT OF TWO PENSIONS TO THE SAME PERSON, ONE UNDER SPECIAL ACT AND THE OTHER UNDER A GENERAL ACT. THE SAME RESULT WAS REACHED IN THE CASE OF UNITED STATES EX RELATIONE BURNETT V. TELLER, 107 U.S. 64, WHERE IT WAS ATTEMPTED TO SECURE, BY WRIT OF MANDAMUS, THE PENSION PROVIDED BY A PRIVATE ACT AND IN ADDITION A PENSION PROVIDED BY THE GENERAL LAWS, AND THE SUPREME COURT HELD THAT THE PETITIONER WAS NOT ENTITLED TO TAKE UNDER BOTH LAWS. SECTION 4715, REVISED STATUTES (SEC. 25, TITLE 38, U.S.C.), PROVIDES THAT NOTHING IN THE TITLE "PENSIONS" SHALL BE SO CONSTRUED AS TO ALLOW MORE THAN ONE PENSION AT THE SAME TIME TO THE SAME PERSON, WITH A PROVISION FOR ELECTION BY THE PENSIONER. SECTION 1 OF THE ACT OF MARCH 3, 1891, 26 STAT. 1082 (SEC. 26, TITLE 38, U.S.C.), PROVIDES THAT NO PENSION SHALL BE ALLOWED OR PAID TO ANY OFFICER, NONCOMMISSIONED OFFICER OR PRIVATE IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, EITHER ON THE ACTIVE OR RETIRED LIST. SECTION 202 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 618, AS AMENDED (SEC. 489, TITLE 38, U.S.C.), PROHIBITS THE PAYMENT OF COMPENSATION TO ANYONE OTHERWISE RECEIVING A GRATUITY OR PENSION FROM THE UNITED STATES UNDER EXISTING LAW UNLESS HE SHALL FIRST SURRENDER ALL CLAIM TO FURTHER PAYMENTS OF SUCH GRATUITY OR PENSION, AND SECTION 212 OF THE ACT (SEC. 422, TITLE 38, U.S.C.), PROVIDES THAT THE COMPENSATION PROVIDED IN THE WORLD WAR VETERANS' ACT SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIRED PAY. AS HAS ALREADY BEEN INDICATED, THE ACT OF MAY 24, 1928, PROVIDES THAT THE RETIRED PAY THEREIN ESTABLISHED SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO FORMER OFFICERS WITHIN ITS TERMS WHICH ARE PROVIDED BY THE WORLD WAR VETERANS' ACT OF 1924. IT MAY THUS BE SAID THAT ALTHOUGH THE CONGRESS HAS EVINCED THE UTMOST GENEROSITY IN DEALING WITH VETERANS OF THE WARS OF THE NATION, ESPECIALLY DISABLED VETERANS, THE LAW HAS NOT CONTEMPLATED THAT BY THE ACCIDENT OF BEING WITHIN THE LITERAL TERMS OF SEPARATE PROVISIONS FOR THE BENEFIT OF VETERANS, A SINGLE INDIVIDUAL SHALL SECURE DOUBLE BENEFITS, AND BENEFITS FAR IN EXCESS OF THE BOUNTY THE CONGRESS HAS INTENDED TO BESTOW ON ANY ONE VETERAN.

WERE ADEQUATE PROVISION MADE TO PREVENT PAYMENT OF DOUBLE BENEFITS, THIS OFFICE PERCEIVES NO OBJECTION TO A CONSTRUCTION OF THE LAW TO BRING WITHIN ITS TERMS, ON A BASIS OF EQUALITY, ALL DISABLED FORMER EMERGENCY OFFICERS WHO ARE OTHERWISE WITHIN THE TERMS OF THE ACT OF 1928. AS WAS STATED ABOVE, THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, IN THE CASES OF CAVANAGH V. HINES AND EASTON V. HINES, ISSUED A PEREMPTORY WRIT OF MANDAMUS DIRECTED TO THE DIRECTOR OF THE VETERANS' BUREAU AND DIRECTING THE PAYMENT OF THE RETIRED PAY ACCRUING TO THOSE FORMER OFFICERS BY REASON OF THEIR RETIREMENT BY THE DIRECTOR UNDER THE ACT OF 1928, NOTWITHSTANDING THE FACT THAT BOTH WERE ON THE RETIRED LIST OF THE REGULAR ARMY AS ENLISTED MEN AND RECEIVING THE RETIRED PAY OF WARRANT OFFICERS UNDER A SPECIAL PROVISION OF LAW FOR THEIR SERVICES AS COMMISSIONED OFFICERS OF THE ARMY DURING THE WORLD WAR. ON APPEAL TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, THE COURT TOOK NOTICE OF THE ULTIMATE EFFECT OF THE JUDGMENT OF THE LOWER COURT AND MODIFIED THE JUDGMENT ,SO AS TO SHOW THAT IF APPELLEE HAS RECEIVED THE PAY OF A RETIRED ENLISTED MAN SINCE FILING HIS APPLICATION UNDER ACT OF 1928 THE TWO WILL NOT OVERLAP. IN OTHER WORDS, THAT FROM MAY 31, 1928, UNTIL APPELLEE CEASED TO RECEIVE THE PAY OF A RETIRED ENLISTED MAN, HE WILL BE PAID THE DIFFERENCE BETWEEN THAT PAY AND HIS PAY UNDER THE ACT OF 1928, AND AS SO MODIFIED, AFFIRMED" THE JUDGMENT OF THE LOWER COURT. 58 WASHINGTON LAW REPORTER 149.

AS THIS WAS THE PAYMENT AUTHORIZED BY THIS OFFICE BEFORE THE FILING OF PETITIONS FOR WRITS OF MANDAMUS IN THESE CASES AND THE PAYMENT HAS ALREADY BEEN MADE, THE JUDGMENT OF THE COURT OF APPEALS IS THUS IN COMPLETE HARMONY WITH THE ACTION OF THIS OFFICE AND THE COURT THUS GIVES EFFECT, SO FAR AS ARE CONCERNED PROCEEDINGS BY EXTRAORDINARY WRITS TO COMPEL PAYMENT UNDER THE ACT OF MAY 24, 1928, TO THE STATUTES CITED PROHIBITING DOUBLE BENEFITS AND THE POLICY OF CONGRESS THOSE STATUTES CLEARLY ESTABLISH. ORIGINAL PROCEEDINGS AGAINST OFFICERS OF THE UNITED STATES BY WRIT OF MANDAMUS OR MANDATORY INJUNCTION ARE FILED ONLY IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA AND AS THE JUDGMENT OF THE COURT OF APPEALS IS BINDING ON THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, IT WOULD SEEM THAT A CONSTRUCTION MAY NOW BE ADOPTED GIVING TO ALL DISABLED FORMER EMERGENCY OFFICERS WHO ARE OTHERWISE WITHIN THE ACT OF 1928, THE FULL BENEFIT OF THE ACT WITHOUT PREJUDICING THE INTERESTS OF THE UNITED STATES BY REQUIRING THE INSTITUTION OF SUITS AGAINST DISBURSING OFFICERS FOR THE RECOVERY OF PAYMENTS MADE PURSUANT TO SUCH EXTRAORDINARY WRITS WHICH RESULT IN PAYMENT OF DOUBLE BENEFITS. SUCH BEING THE CASE, PRIOR DECISIONS ARE MODIFIED AND PAYMENTS WILL BE PASSED TO CREDIT IN THE CASE OF FORMER EMERGENCY OFFICERS PLACED ON THE RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, NOTWITHSTANDING THEY MAY HAVE HAD COMMISSIONED SERVICE DURING THE WORLD WAR IN THE REGULAR ARMY, NAVY, OR MARINE CORPS. IF, HOWEVER, ANY SUCH OFFICERS IN FACT APPEAR AS OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, EITHER ON THE ACTIVE OR RETIRED LIST, OR ARE RECEIVING RETAINER PAY AS TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE OR THE FLEET MARINE CORPS RESERVE, THE PAYMENTS MADE BY THE DISBURSING CLERK OF THE UNITED STATES VETERANS' BUREAU MAY NOT EXCEED THE DIFFERENCE BETWEEN THE RETIRED PAY ACCRUING TO THE FORMER EMERGENCY OFFICER UNDER THE ACT OF 1928, AND THE AMOUNT CLAIMED FOR ARMY, NAVY, OR MARINE CORPS ACTIVE, RETIRED, OR RETAINER PAY.

IN THE CASE OF COOPER, IT WILL BE NOTED THAT HIS EMERGENCY SERVICE WAS TERMINATED BY HIS APPOINTMENT IN THE REGULAR NAVY, THAT HIS GRADE OR RANK IN THE NAVAL RESERVE FORCE (EMERGENCY SERVICE) WAS THAT OF A LIEUTENANT (JUNIOR GRADE), BUT THAT AFTER HIS APPOINTMENT IN THE REGULAR NAVY HE WAS GIVEN A TEMPORARY ADVANCED GRADE, THAT OF LIEUTENANT, AS WAS THE CASE WITH RESPECT TO PRACTICALLY ALL OFFICERS OF THE REGULAR ESTABLISHMENTS. HE IS ENTITLED TO RETIREMENT AND TO PAY UNDER THE ACT OF 1928 ON THE BASIS OF PAY OF THE GRADE HELD BY HIM WHEN SEPARATED FROM HIS EMERGENCY STATUS, THAT IS, LIEUTENANT (JUNIOR GRADE) NOTWITHSTANDING THAT WHILE UNDER APPOINTMENT IN THE REGULAR NAVY, HE WAS GIVEN A TEMPORARY APPOINTMENT AS LIEUTENANT.