A-25279, JULY 25, 1940, 20 COMP. GEN. 41

A-25279: Jul 25, 1940

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IF PURSUANT TO SUCH WAIVER HIS RETIRED PAY IS DISCONTINUED AND A PENSION GRANTED. - PROHIBITED WHILE HE IS A RETIRED ARMY ENLISTED MAN. AS FOLLOWS: ATTENTION IS INVITED TO THE ATTACHED FORM OF WAIVER WHICH HAS BEEN PROPOSED FOR THE USE OF RETIRED ENLISTED MEN OF THE REGULAR ARMY WHO MAY DESIRE TO WAIVE THEIR RETIRED PAY AND ALLOWANCES IN ORDER TO RECEIVE PENSIONS TO WHICH THEY MAY BE ENTITLED UNDER EXISTING LAWS. AS THIS FORM OF WAIVER IS BASED UPON THAT QUOTED AND APPROVED IN THE COMPTROLLER GENERAL'S DECISION OF JUNE 28. IT IS PRESUMED THAT IT WILL BE DEEMED ADEQUATE FOR THE PRIMARY PURPOSE INDICATED. ARE INCLOSED FOR YOUR INFORMATION. AS DISBURSEMENTS OF APPROPRIATED FUNDS ARE AFFECTED BY THIS DETERMINATION.

A-25279, JULY 25, 1940, 20 COMP. GEN. 41

PAY - RETIRED - ARMY ENLISTED MEN - EFFECT OF WAIVER A WAIVER BY A RETIRED ARMY ENLISTED MAN OF HIS STATUTORY RIGHT TO RETIRED PAY MAY BE CONSIDERED EFFECTIVE ONLY IF CONSTRUED AS A RENUNCIATION OF HIS RETIRED STATUS, AND IF PURSUANT TO SUCH WAIVER HIS RETIRED PAY IS DISCONTINUED AND A PENSION GRANTED--- PROHIBITED WHILE HE IS A RETIRED ARMY ENLISTED MAN--- THE TRANSACTION MUST BE TREATED AS TERMINATING, WITH WAR DEPARTMENT APPROVAL, THE MAN'S STATUS AS A RETIRED ENLISTED MAN, AND THAT EFFECT CANNOT BE OVERCOME BY A RESERVATION OF A RIGHT TO RESTORATION TO RETIRED STATUS UPON SUBSEQUENT WAIVER OF THE PENSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JULY 25, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 31, 1940, AS FOLLOWS:

ATTENTION IS INVITED TO THE ATTACHED FORM OF WAIVER WHICH HAS BEEN PROPOSED FOR THE USE OF RETIRED ENLISTED MEN OF THE REGULAR ARMY WHO MAY DESIRE TO WAIVE THEIR RETIRED PAY AND ALLOWANCES IN ORDER TO RECEIVE PENSIONS TO WHICH THEY MAY BE ENTITLED UNDER EXISTING LAWS.

AS THIS FORM OF WAIVER IS BASED UPON THAT QUOTED AND APPROVED IN THE COMPTROLLER GENERAL'S DECISION OF JUNE 28, 1929 (A-25279), IT IS PRESUMED THAT IT WILL BE DEEMED ADEQUATE FOR THE PRIMARY PURPOSE INDICATED. HOWEVER, IN VIEW OF THE LAST SENTENCE OF THE FORM, A QUESTION HAS ARISEN WHETHER THE EXECUTION OF THE FORM, WOULD PRECLUDE SUBSEQUENT RESTORATION TO RETIREMENT PAY STATUS UPON A SIMILAR WAIVER OF PENSION, SHOULD THE RETIRED SOLDIER EVER MAKE APPLICATION FOR SUCH RESTORATION.

COPIES OF AN OPTION OF THE JUDGE ADVOCATE GENERAL, DATED NOVEMBER 1, 1939, AND OF A LETTER FROM THE ADMINISTRATOR, VETERANS' ADMINISTRATION, DATED DECEMBER 18, 1939, EXPRESSING THE VIEW THAT THE EXECUTION OF THE WAIVER IN THE FORM PROPOSED WOULD NOT PRECLUDE SUBSEQUENT RESTORATION TO RETIREMENT PAY STATUS, ARE INCLOSED FOR YOUR INFORMATION.

AS DISBURSEMENTS OF APPROPRIATED FUNDS ARE AFFECTED BY THIS DETERMINATION, AND IT IS NECESSARY TO ISSUE APPROPRIATE INSTRUCTIONS FOR THE GUIDANCE OF ALL CONCERNED IN THE EMPLOYMENT AND EFFECT OF THE FORM OF WAIVER, AN EXPRESSION OF YOUR VIEWS IN THE PREMISES WILL BE APPRECIATED. IF YOU ARE OF THE OPINION THAT THE WAIVER IN ITS PRESENT FORM PRECLUDES SUBSEQUENT RESTORATION TO RETIREMENT PAY STATUS, PLEASE INDICATE WHETHER THE FORM WILL MEET WITH YOUR APPROVAL, IF THE LAST SENTENCE IS AMENDED BY THE ADDITION OF A CLAUSE SUBSTANTIALLY AS FOLLOWS:

"PROVIDED, THAT I RESERVE THE RIGHT AT ANY TIME TO APPLY FOR AND RECEIVE RESTORATION TO RETIREMENT PAY AND ALLOWANCE STATUS UPON WAIVER OF SAID PENSION.'

THE OPINION OF THE JUDGE ADVOCATE GENERAL AND THE ACQUIESCENCE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS SEEM TO BE BASED ON THE "FORM OF WAIVER * * * QUOTED AND APPROVED IN THE COMPTROLLER GENERAL'S DECISION OF JUNE 28, 1929 (A-25279).' THAT DECISION GREW OUT OF A SITUATION RESULTING FROM THE FACT THAT CERTAIN RETIRED ENLISTED MEN OF THE ARMY HAD BEEN RETIRED UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT OF MAY 24, 1928, 45 STAT. 735, NOTWITHSTANDING THE DECISION OF THE FORMER COMPTROLLER GENERAL, 8 COMP. GEN. 423, 428. THE PLACING OF THE MEN ON THE EMERGENCY OFFICERS' RETIREMENT LIST GAVE THEM A STATUS WHICH ENABLED THEM TO CONTEST IN THE COURTS THEIR RIGHT TO PAY UNDER SUCH RETIREMENTS AND NUMEROUS SUITS WERE INSTITUTED IN THE LOCAL COURTS TO COMPEL THE PAYMENT OF THE RETIRED EMERGENCY OFFICERS' PAY UNDER THE STATUS SO CREATED IN ADDITION TO THE RETIRED PAY BEING RECEIVED BY THE CLAIMANTS AS RETIRED ENLISTED MEN. SEE THE DISCUSSION IN 9 COMP. GEN. 399, A DECISION RENDERED AFTER THE CASES DECIDED IN THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, HINES V. UNITED STATES, EX REL. CAVANAUGH, 39 F./2D) 517, AND HINES V. UNITED STATES, EX. REL. EASTON, ID. 519. SEE, ALSO, UNITED STATES, EX REL. BOWLING V. HINES, 50 F./2D) 330. IN THESE CASES, WHEN CONSIDERED BY THE FORMER COMPTROLLER GENERAL, THE RETIRED ENLISTED MEN WERE WITHIN THE LANGUAGE OF THE ACT OF MAY 24, 1928, BUT BECAUSE OF THEIR STATUS AS RETIRED ENLISTED MEN OF THE REGULAR ARMY IT WAS HELD BY CONSTRUCTION OF THE ACT OF 1928 THAT THEY WERE NOT ENTITLED TO RETIREMENT UNDER THAT ACT UNLESS THEY WERE SEPARATED FROM THEIR STATUS AS RETIRED ENLISTED MEN. NUMEROUS SUITS FOR MANDATORY INJUNCTION OR MANDAMUS WERE FILED IN THE COURTS OF THE DISTRICT OF COLUMBIA TO COMPEL PAYMENT OF THE FULL RETIRED PAY AS RETIRED EMERGENCY OFFICES NOTWITHSTANDING PAYMENT OF PAY AS RETIRED ENLISTED MEN; AND WHILE THESE CASES WERE PENDING THE COMPTROLLER GENERAL IN THE CITED DECISION AFTER QUOTING THE WAIVER USED THE FOLLOWING LANGUAGE:

THE SUBSTANCE OF THE STATEMENT WAIVES THE RETIRED PAY RECEIVED SINCE JUNE 6, 1928, OR WHICH MAY BE HEREAFTER RECEIVED AS RETIRED ENLISTED MEN OF THE REGULAR ARMY AND CONSENTS THAT ADJUSTMENT BE MADE BETWEEN SUCH PAY AND RETIRED PAY AS AN EMERGENCY OFFICER. THE RIGHT NOT APPEARING TO DUAL RETIREMENT--- BY VIRTUE OF HAVING BEEN AN ENLISTED MAN COMING WITHIN THE PROVISIONS OF THE LAW FOR RETIREMENT RELATING TO THE REGULAR ARMY--- AND BY VIRTUE OF BEING AN EMERGENCY OFFICER COMING WITHIN THE PROVISIONS OF THE LAW RELATING TO RETIREMENT OF SUCH OFFICERS--- THE REQUIREMENT OF THE DECISION TO YOU MAY 20, 1929, WAS THAT THERE BE A SHOWING BY THE MEN SO THAT THERE WOULD NOT BE A DUPLICATION OF RETIRED PAY THROUGH PAYMENT IN THE TWO CAPACITIES. THE STATEMENT FILED IS A COMPLIANCE BY THE MAN AS REASONABLY AS CAN BE WITH THE REQUIREMENTS OF DECISION TO YOU OF MAY 20, 1929, AND WILL BE FILED WITH THE RECORDS OF THE CASES IN THIS OFFICE IN SUPPORT OF PAYMENTS AS CONSTRUED BY THIS OFFICE AS LAWFULLY AUTHORIZED.

IF THE DUAL RETIREMENT STATUS SHALL BE JUDICIALLY DETERMINED AS EXISTING, THE LEGAL EFFECT OF THE STATEMENT FILED WILL THEN ALSO BE FOR JUDICIAL DETERMINATION. SEE MCMATH V. UNITED STATES, 248 U.S. 151; UNITED STATES V. BANCROFT, 260 U.S. 706; GLAVEY V. UNITED STATES, 182 U.S. 593; UNITED STATES V. ANDREWS, 240 U.S. 90.

ACCORDINGLY, THE PAYMENT IS AUTHORIZED OF THE TOTAL AMOUNT ACCRUING AS A RETIRED OFFICER UNDER THE ACT OF MAY 24, 1928, AND YOU ARE ACCORDINGLY ADVISED THAT PAYMENT MAY BE MADE OF RETIRED PAY AT THE RATE HERETOFORE CERTIFIED AS PROPER FOR EACH OF THESE OFFICERS, I.E., FOR MAJOR EASTON $250, FOR CAPTAIN CAVANAUGH $210, LESS IN EACH CASE THE AMOUNT OF RETIRED PAY PAID THEM AS RETIRED ENLISTED MEN, $138.75 PER MONTH, OR A NET PAY PER MONTH AS FOLLOWS:

CHART MAJOR EASTON ------------------------------------------------ $111.25 CAPTAIN CAVANAUGH ------------------------------------------- 71.25 FROM THE EFFECTIVE DATE OF RETIREMENT UNDER THE ACT OF MAY 24, 1928, AND SO LONG AS THEY CONTINUE TO BE BORNE ON THE RETIRED LIST OF THE REGULAR ARMY AS RETIRED ENLISTED MEN, AND, OF COURSE, LESS ANY PROPER DEDUCTION FOR OVERPAYMENTS THAT MAY APPEAR OF RECORD IN THE VETERANS' BUREAU. THE PAY ROLLS HERETOFORE FILED BY YOU NOT BEING MADE UP ON THE FOREGOING BASIS ARE OF NO VALUE AND WILL BE RETAINED; NEW PAY ROLLS ON THE BASIS INDICATED ABOVE SHOULD BE PREPARED AND CERTIFIED, AND IF PAID IN ACCORDANCE WITH THE FOREGOING WILL BE PASSED TO YOUR CREDIT IN THE SETTLEMENT OF YOUR ACCOUNTS.

IT WILL BE OBSERVED THAT NOTWITHSTANDING THE WAIVERS FILED, BOTH THE OFFICERS INVOLVED WERE PLAINTIFFS IN THE CASES CITED IN 39 F./2D) 517, 519. YOU WILL OBSERVE, ALSO, THAT THE FORMER COMPTROLLER GENERAL ADVERTED TO THE HOLDING OF THE SUPREME COURT, MCMATH V. UNITED STATES, 248 U.S. 151; UNITED STATES V. BANCROFT, 260 U.S. 706; GLAVEY V. UNITED STATES, 182 U.S. 593, AND UNITED STATES V. ANDREWS, 240 U.S. 90. THE NECESSARY EFFECT OF THESE CASES IS THAT WAIVER OF A STATUTORY RIGHT AS, FOR EXAMPLE, RETIRED PAY, WILL NOT ESTOP THE PERSON WAIVING THE RIGHT AND THAT THE COURTS WILL NOT GIVE ANY EFFECT TO SUCH A WAIVER. IT APPEARS THAT THE FORMER COMPTROLLER GENERAL FULLY UNDERSTOOD THAT THE WAIVER TO WHICH YOU REFER AS "APPROVED" BY HIM WAS OF NO VALIDITY IF IT SHOULD BE JUDICIALLY DETERMINED THE OFFICER WAS ENTITLED TO PAY IN BOTH CAPACITIES, AS SHOWN BY HIS DIRECTION TO THE CHIEF OF THE AUDIT DIVISION, SEPTEMBER 12, 1929, IN THE CASE OF ALBERT BURTON, A FORMER CAPTAIN, A-28615, AS FOLLOWS:

UPON DETERMINATION OF THE RETIRED PAY BY REASON OF GRADE AND LENGTH OF SERVICE ON DATE OF DISCHARGE FROM HIS WORLD WAR COMMISSIONED SERVICE, THERE SHOULD BE DEDUCTED THEREFROM THE AMOUNT BEING PAID BY THE REGULAR ESTABLISHMENT AS RETIRED PAY IN THE WARRANT OR ENLISTED STATUS, AND A PERMANENT RATE OF RETIRED PAY PAYABLE UNDER THE VETERANS' BUREAU CERTIFIED TO THAT BUREAU OF THE NET BALANCE ONLY. FOR EXAMPLE, IN THE CASE PRESENTED, THE OFFICER WAS DRAWING AND APPARENTLY ENTITLED TO LONGEVITY CREDIT FOR OVER 20 YEARS' SERVICE AND WAS SERVING IN THE GRADE OF CAPTAIN WHEN DISCHARGED, GIVING HIM A PAY ON THE ACTIVE LIST OF $280 PER MONTH AND A RETIRED PAY OF $210. YOU REPORT THAT HE IS BEING PAID RETIRED PAY AS AN ENLISTED MAN WHO SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR AT $138.75. IF THE FOREGOING STATEMENTS ARE FOUND TO BE CORRECT, A FINAL RATE OF RETIRED PAY SHOULD BE CERTIFIED TO THE VETERANS' BUREAU OF $71.25 PER MONTH. THIS PROCEDURE IS SUBSTANTIALLY IN ACCORD WITH A-25279, EXCEPT THAT NO FORMAL WAIVER HAS BEEN FILED BY THE MAN OF HIS RETIRED PAY AS A WARRANT OFFICER OR ENLISTED MAN. SUCH WAIVER IS, HOWEVER, OF DOUBTFUL LEGAL VALUE AND WILL NOT BE INSISTED UPON IN THESE CASES.

IT THUS APPEARS TO HAVE BEEN THE VIEW OF THE COMPTROLLER GENERAL AT THAT TIME THAT WHERE THE CLAIMANTS WERE WITHIN THE PROVISIONS OF BOTH STATUTES THEY WERE ENTITLED TO PAY UNDER ONLY ONE, THE WAIVER BEING ACCEPTED MERELY AS AN AGREEMENT BY THE MAN TO ACCEPT ALL OF THE LOWER PAY AND A PORTION OF THE HIGHER PAY, THE TOTAL EQUALING THE PAY OF THE HIGHER, THE INVALIDITY OF THE WAIVER, IF THE COURTS SHOULD HOLD HE WAS ENTITLED TO PAY UNDER BOTH STATUTES, HAVING BEEN INDICATED. IT IS NOTED THAT, AS IN THE BASE OF BURTON, SUPRA, EVEN THIS AGREEMENT BY WAIVER WAS NOT ALWAYS REQUIRED. THE MATTER WAS FINALLY SET AT REST IN THE CASE OF PATE V. UNITED STATES, 78 CT.CLS. 395, IN WHICH IT WAS HELD IN EFFECT THAT THE OFFICERS WERE ENTITLED ONLY TO A TOTAL PAY EQUAL TO THEIR PAY AS RETIRED EMERGENCY OFFICERS.

IT IS NOT PERCEIVED HOW THIS WAIVER, CONSIDERED IN ITS PROPER CIRCUMSTANCES, COULD HAVE ANY APPLICATION TO THE MATTER YOU NOW SUBMIT. THE ACT OF MARCH 2, 1907, 34 STAT. 1217 (10 U.S.C. 947 AND 980) PROVIDES:

THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT: PROVIDES, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED.

THE COURT OF CLAIMS IN SEVERAL CASES--- SEE PARTICULARLY BLACKETT V. UNITED STATES, 81 CT.CLS, 884, AND STANDERSON V. UNITED STATES, 83 CT.CLS. 633--- HAS INDICATED LIMITS ON ADMINISTRATIVE DISCRETION OR AUTHORITY UNDER THIS STATUTE. UNDER A SIMILAR PROVISION APPLICABLE TO THE COAST GUARD, ACT OF APRIL 12, 1902, 32 STAT. 100, 14 U.S.C. 172 (SEE, ALSO, ACT OF JANUARY 28, 1915, 38 STAT. 801, 14 U.S.C. 175), A FORMER COMPTROLLER OF THE TREASURY, 27 COMP. DEC. 616, HELD THAT COMPENSATION UNDER THE WAR RISK INSURANCE ACT COULD NOT BE PAID TO A RETIRED ENLISTED MAN OF THE COAST GUARD UNLESS HE RELINQUISHED HIS STATUS AS AN ENLISTED MAN ON THE RETIRED LIST AND THAT HE COULD NOT UNDER EXISTING LAW THEREAFTER REVERT TO THE RETIRED LIST.

SECTION 2 OF THE NATIONAL DEFENSE ACT, AS AMENDED JUNE 4, 1920, 41 STAT. 759 (10 U.S.C. 4), PROVIDES THAT THE REGULAR ARMY SHALL CONSIST OF, AMONG OTHERS,"THE OFFICERS AND ENLISTED MEN OF THE RETIRED LIST.' AND THE ACT OF MARCH 3, 1891, 26 STAT. 1082 (38 U.S.C. 26), 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 212 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 623, AS AMENDED, 44 STAT. 798 (38 U.S.C. 422), PROVIDES:

THIS ACT IS INTENDED TO PROVIDE A SYSTEM FOR THE RELIEF OF PERSONS WHO WERE DISABLED, AND FOR THE DEPENDENTS OF THOSE WHO DIED AS A RESULT OF DISABILITY SUFFERED IN THE MILITARY SERVICE OF THE UNITED STATES BETWEEN APRIL 6, 1917, AND JULY 2, 1921. FOR SUCH DISABILITIES AND DEATHS NO OTHER PENSION LAWS OR LAWS PROVIDING FOR GRATUITIES OR PAYMENTS IN THE EVENT OF DEATH IN THE SERVICE SHALL BE APPLICABLE: PROVIDED, HOWEVER, THAT THE LAWS RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE SHALL NOT BE CONSIDERED TO BE LAWS PROVIDING FOR PENSIONS, GRATUITIES OR PAYMENTS WITHIN THE MEANING OF THIS SECTION: AND PROVIDED FURTHER, THAT COMPENSATION UNDER THIS TITLE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY, THIS PROVISO TO BE EFFECTIVE AS OF APRIL 6, 1917. * * *

SEE, ALSO, ACT OF MARCH 28, 1934, 48 STAT. 524, ET SEQ.

HERE, DIFFERENT FROM THE CASES OF THE RETIRED ENLISTED MEN WHO WERE ALSO WITHIN THE LANGUAGE OF THE ACT OF MAY 24, 1928, THERE IS SPECIFIC PROHIBITION ON THE PAYMENT OF PENSIONS TO ANY OFFICER, NONCOMMISSIONED OFFICER, OR PRIVATE EITHER ON THE ACTIVE OR RETIRED LIST OF THE ARMY, NAVY, OR MARINE CORPS. YOUR LETTER REFERS ONLY TO PENSIONS, AND THE FORM OF WAIVER IS AS FOLLOWS: WAIVER OF RETIRED PAY AND ALLOWANCES

WHEREAS, I --------------- OF ------------------ , WAS ON ----------

( NAME) ( ADDRESS) ( DATE) RETIRED FROM ACTIVE SERVICE IN THE REGULAR ARMY AS AN ENLISTED MAN WITH THE GRADE, PAY, AND ALLOWANCES OF A RETIRED - ------; AND WHEREAS, SINCE

( GRADE) SAID RETIREMENT, BY VIRTUE OF THE ACT OF JUNE 10, 1922, I HAVE RECEIVED THE RETIRED PAY AND ALLOWANCES OF SAID GRADE, NAMELY ---------- PER

( AMOUNT) MONTH; AND WHEREAS, ON ------------ , I APPLIED TO THE VETERANS'

( DATE) ADMINISTRATION FOR A PENSION UNDER THE ACT OF ------------- ----;

( DATE) AND WHEREAS THE GRANTING OF SAID PENSION IS CONDITIONAL, AMONG OTHER THINGS, UPON MY HAVING WAIVED THE RECEIPT OF FURTHER RETIRED PAY AND ALLOWANCES FOR ANY AND ALL PERIODS ON OR AFTER THE DATE OF THE BEGINNING OF SAID PENSION: NOW, THEREFORE, IN CONSIDERATION OF AND CONDITIONAL UPON THE GRANTING AND CONTINUED PAYMENT OF SAID PENSION, I DO HEREBY FOREVER RENOUNCE AND WAIVE THE SAID RETIRED PAY AND ALLOWANCES FOR ANY AND ALL PERIODS ON AND AFTER THE DATE UPON WHICH THE SAID PENSION SHALL BEGIN TO ACCRUE.

IN WITNESS WHEREOF I HEREUNTO SET MY HAND THIS ------------ DAY OF ------ --- , 19---- .

( SIGNATURE) STATE OF ------------------ ,

COUNTY OF ----------------- , SS:

BEFORE ME, A NOTARY PUBLIC IN AND FOR THE COUNTY AND STATE AFORESAID, PERSONALLY APPEARED ------------- , KNOWN TO ME TO BE THE PERSON DESCRIBED

( NAME) IN AND WHOSE SIGNATURE IS AFFIXED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME AS HIS ACT AND DEED.

WITNESS MY HAND AND OFFICIAL SEAL THIS --------- DAY OF ------ , 19- - .

( SIGNATURE)

( NOTARIAL SEAL) NOTARY PUBLIC.

IN VIEW OF THE ACT OF 1891, SUPRA, AND OF WHAT HAS BEEN SAID WITH RESPECT TO THE HOLDINGS OF THE SUPREME COURT AS TO THE INVALIDITY OF A WAIVER OF A STATUTORY RIGHT, THIS WAIVER TO BE EFFECTIVE AT ALL MUST BE CONSTRUED AS A RENUNCIATION BY THE ENLISTED MAN OF HIS RETIRED STATUS IN THE ARMY. IF, PURSUANT TO SUCH A REQUEST FROM A RETIRED ENLISTED MAN OF THE ARMY, HIS RETIRED PAY IS DISCONTINUED AND A PENSION GRANTED- - PROHIBITED WHILE HE IS AN ENLISTED MAN ON THE RETIRED LIST OF THE ARMY--- THE TRANSACTION MUST BE TREATED AS TERMINATING--- WITH THE APPROVAL OF THE WAR DEPARTMENT--- THE ENLISTED MAN'S STATUS AS A RETIRED ENLISTED MAN OF THE ARMY, AND THAT EFFECT CANNOT BE OVERCOME BY A RESERVATION BY THE ENLISTED MAN OF A RIGHT TO RESTORATION TO HIS RETIRED STATUS UPON THE WAIVER OF THE PENSION, AS SUCH A METHOD OF PLACING A PERSON ON THE RETIRED LIST IS WITHOUT ANY AUTHORITY OF LAW.