A-25514, FEBRUARY 11, 1929, 8 COMP. GEN. 423

A-25514: Feb 11, 1929

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AN APPLICATION FOR RETIREMENT DULY FILED IS NOT AFFECTED IF ADMINISTRATIVE ACTION IS NOT COMPLETED WITHIN ONE YEAR FROM THE DATE OF THE ACT OF MAY 24. THE VARIOUS QUESTIONS WILL BE STATED AND THE ANSWERS APPENDED THERETO. ALLEGES THAT HE SERVED AS A CAPTAIN OF INFANTRY DURING THE WORLD WAR FROM WHICH SERVICE HE WAS DISCHARGED ON SEPTEMBER 10. UNLESS HE CAN BE ASSURED THAT HE WILL RECEIVE THE BENEFITS OF PUBLIC 506. IT IS. FOREMOST AMONG WHICH ARE THOSE DEPENDENT ON PROPER SOLUTION OF THE PROBLEMS PRESENTED HEREIN FOR YOUR DECISION. THAT COMPENSATION UNDER THIS TITLE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY. 1928 (A-23876) IT WAS HELD THAT THE RATINGS "IN ACCORDANCE WITH LAW" REFERRED TO WERE OBVIOUSLY RATINGS MADE IN ACCORDANCE WITH PROVISIONS OF THE WORLD WAR VETERANS' ACT.

A-25514, FEBRUARY 11, 1929, 8 COMP. GEN. 423

VETERANS' BUREAU - RETIREMENT OF EMERGENCY OFFICERS THE ACT OF MAY 24, 1928, 45 STAT. 735, PROVIDES FOR THE RETIREMENT, UNDER CERTAIN CONDITIONS, OF OFFICERS AND FORMER OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO INCURRED PHYSICAL DISABILITY IN LINE OF DUTY WHILE IN THE SERVICE OF THE UNITED STATES DURING THE WORLD WAR. FOR THOSE HELD AS EMBRACED IN OR NOT WITHIN THE CLASS ENTITLED TO THE BENEFITS OF THE ENACTMENT, SEE THE DECISION. AN APPLICATION FOR RETIREMENT DULY FILED IS NOT AFFECTED IF ADMINISTRATIVE ACTION IS NOT COMPLETED WITHIN ONE YEAR FROM THE DATE OF THE ACT OF MAY 24, 1928, 45 STAT. 735, BUT THE DISABILITY RATING MUST BE BASED ON THE CONDITION OF THE APPLICANT AS IT EXISTED NOT LATER THAN ONE YEAR AFTER DATE OF SAID ENACTMENT. THE RETIRED PAY PROVIDED BY THE ACT OF MAY 24, 1928, 45 STAT. 735, ORDINARILY BEGINS WITH THE DATE OF RECEIPT OF THE APPLICATION IN THE UNITED STATES VETERANS' BUREAU. FOR PARTICULAR CASES CONSIDERED, SEE THE DECISION. THE RIGHT OF CIVIL-SERVICE RETIREMENT UNDER THE ACT OF JULY 3, 1926, 44 STAT. 907, DOES NOT AFFECT THE RIGHT OF RETIREMENT UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, FOR MILITARY OR NAVAL SERVICE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, FEBRUARY 11, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 17, 1928, SUBMITTING FOR DECISION VARIOUS QUESTIONS ARISING IN THE ADMINISTRATION OF THE ACT OF MAY 24, 1928, 45 STAT. 735.

THE VARIOUS QUESTIONS WILL BE STATED AND THE ANSWERS APPENDED THERETO.

A. WALTER FERROL, NOW MASTER SERGEANT, QUARTERMASTER CORPS, CAMP STOTSENBURG, PHILIPPINE ISLANDS, ALLEGES THAT HE SERVED AS A CAPTAIN OF INFANTRY DURING THE WORLD WAR FROM WHICH SERVICE HE WAS DISCHARGED ON SEPTEMBER 10, 1920, AND GIVEN A 40 PERCENT DISABILITY RATING BY A BOARD OF OFFICERS FOR WOUNDS RECEIVED SEPTEMBER 12, 1918. ACCORDING TO THIS STATEMENT, SERGEANT FERROL REENLISTED IN THE REGULAR ARMY ON OCTOBER 4, 1920, HIS DISABILITY BEING WAIVED. HE HAS NEVER FILED CLAIM FOR ANY OF THE BENEFITS PROVIDED BY THE LEGISLATION ADMINISTERED BY THIS BUREAU.

FERROL FURTHER STATES THAT HE HAS EIGHTEEN YEARS TO HIS CREDIT FOR RETIREMENT AS AN ENLISTED MAN IN THE REGULAR ARMY AND THAT HE DOES NOT DESIRE TO FOREGO THE BENEFITS THEREOF BY SECURING HIS DISCHARGE FROM THE ARMY, AT THIS TIME, UNLESS HE CAN BE ASSURED THAT HE WILL RECEIVE THE BENEFITS OF PUBLIC 506, 70TH CONGRESS. IT IS, OF COURSE, IMPOSSIBLE FOR THE BUREAU TO ASSURE HIM OF THIS FOR MANY REASONS, FOREMOST AMONG WHICH ARE THOSE DEPENDENT ON PROPER SOLUTION OF THE PROBLEMS PRESENTED HEREIN FOR YOUR DECISION. SECTION 212 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, CONTAINS THE FOLLOWING PROVISO:

"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 SHALL BE EFFECTIVE AS OF APRIL 6, 1917.'

PUBLIC 506, 70TH CONGRESS, PROVIDES THAT THE BENEFITS THEREOF SHALL BE AVAILABLE ONLY TO THOSE OFFICERS WHO MAY BE "RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENT PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE.'

IN YOUR DECISION OF AUGUST 3, 1928 (A-23876) IT WAS HELD THAT THE RATINGS "IN ACCORDANCE WITH LAW" REFERRED TO WERE OBVIOUSLY RATINGS MADE IN ACCORDANCE WITH PROVISIONS OF THE WORLD WAR VETERANS' ACT, AS AMENDED. VIEW OF THE FACT THAT MR. FERROL IS, BECAUSE OF SECTION 212, NOT ELIGIBLE TO CLAIM THE BENEFITS PROVIDED BY THE WORLD WAR VETERANS' ACT, AS AMENDED, THERE IS GRAVE DOUBT AS TO THE AUTHORITY TO EXAMINE AND RATE HIM IN ACCORDANCE WITH LAW (SEE SECTION 203 OF THE WORLD WAR VETERANS' ACT, AS AMENDED) WHILE HE IS STILL IN THE MILITARY SERVICE. IT IS, THEREFORE, REQUESTED THAT YOU GIVE CONSIDERATION TO THIS CASE WITH PARTICULAR REFERENCE TO THE TWO FOLLOWING QUESTIONS:

1. IS THE BUREAU AUTHORIZED TO EXAMINE MR. FERROL WHILE STILL EMPLOYED IN THE ACTIVE SERVICE AND RATE HIM "IN ACCORDANCE WITH LAW" FOR THE PURPOSE OF DETERMINING WHETHER OR NOT HE IS SUFFERING WITH A DISABILITY INCURRED IN LINE OF DUTY DURING THE WORLD WAR RESULTING DIRECTLY FROM SUCH WAR SERVICE, AND IF SO, THE DEGREE THEREOF?

2. IN THE EVENT HE IS FOUND TO BE SUFFERING WITH DISABILITY INJURED IN LINE OF DUTY RESULTING DIRECTLY FROM WAR SERVICE AND RATED 30 PERCENT PERMANENTLY DISABLED, IS THE BUREAU AUTHORIZED TO EXTEND TO HIM THE BENEFITS OF PUBLIC 506, 70TH CONGRESS, INCLUDING RETIREMENT PAY, DURING THE TIME HE REMAINS IN THE ACTIVE MILITARY SERVICE?

I HAVE BEFORE ME YOUR DECISION OF OCTOBER 8, 1928, RELATIVE TO NORMAN SCOTT COOPER, C-1043775, WHO SERVED AS AN EMERGENCY OFFICER OF THE NAVY DURING THE WORLD WAR, AND SUBSEQUENTLY AS A REGULAR OFFICER OF THE NAVY WHICH DECIDES THAT:

"THE ACT IS NOT APPLICABLE TO ANY OFFICER WHO DURING HIS SERVICE DURING THE WORLD WAR OR SUBSEQUENTLY WAS PERMANENTLY APPOINTED IN THE REGULAR ESTABLISHMENT, AND WHO, BY VIRTUE OF SUCH APPOINTMENT, BECAME ENTITLED, IN CASE OF DISABILITY INCURRED AS AN INCIDENT OF THE SERVICE, TO RETIREMENT UNDER THE PERMANENT PROVISIONS OF LAW FOR RETIREMENT OF OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS; ADEQUATE PROVISION IS MADE FOR THE RETIREMENT OF SUCH OFFICERS FOR PHYSICAL DISABILITY INCURRED AS AN INCIDENT OF THE SERVICE IN THOSE LAWS. THEIR PERMANENT APPOINTMENT IN THE REGULAR ESTABLISHMENTS SUBSEQUENT TO WAR SERVICE UNDER AN EMERGENCY OR RESERVE APPOINTMENT DOES NOT ENTITLE TO ANY BENEFITS UNDER THE ACT OF MAY 24, 1928, BY REASON OF SUCH SERVICE,"OTHER THAN AS AN OFFICER OF THE REGULAR ARMY, NAVY, OR MARINE CORPS" DURING THE WORLD WAR.'

IT IS SUBMITTED THAT THE REASONING APPLIED IN THE COOPER CASE IS NOT APPLICABLE TO THE FERROL CASE FOR THE REASON THAT THE LAWS GOVERNING RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY WILL NOT PLACE FERROL, WHO SERVED AS COMMISSIONED OFFICER DURING THE WORLD WAR ("OTHER THAN AS AN OFFICER OF THE REGULAR ARMY") ON THE SAME PLANE AS A REGULAR ARMY OFFICER. PUBLIC 506, 70TH CONGRESS, IN WORD AND SPIRIT, APPARENTLY COVERS A CASE LIKE THIS, BUT THE BUREAU DOES NOT FEEL JUSTIFIED IN ADVISING MEN IN THIS CLASS TO RELINQUISH ANY RIGHTS THEY MAY HAVE UNDER OTHER LEGISLATION PENDING A DETERMINATION OF THEIR RIGHT TO PAYMENT UNDER THE ACT NOW IN QUESTION PROVIDING ALL THE REQUIREMENTS THEREOF ARE OTHERWISE MET.

THE PAYMENT OF RETIRED PAY THEREIN AUTHORIZED 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," WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL.

NEITHER THE WORLD WAR VETERANS' ACT, NOR THE ACT OF MAY 24, 1928, PROHIBITS THE EXAMINATION OF ANYONE IN THE MILITARY SERVICE WHO MIGHT OTHERWISE BE ENTITLED TO THE BENEFITS OF EITHER ACT, TO DETERMINE THE EXISTENCE OF DISABILITY RESULTING FROM WAR SERVICE, AND A RATING IN ACCORDANCE WITH THE LAW AND REGULATIONS FOR THE DISABILITY FOUND. THE PROVISIONS QUOTED BY YOU DO PROHIBIT PAYMENT OF ANY DISABILITY COMPENSATION WHILE A VETERAN IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY, BUT IT GOES NO FURTHER THAN THAT. THE EXAMINATION AND RATING ARE VALID AND IF EVIDENCE OF SEPARATION FROM THE ARMY IS RECEIVED, UNLESS THE DIRECTOR OF THE VETERANS' BUREAU IN HIS DISCRETION MAY REQUIRE A FURTHER EXAMINATION, ACTION INCLUDING RETIREMENT AND PAYMENT MAY BE HAD UNDER SUCH A RATING.

A FORMER OFFICER RETIRED UNDER THE PROVISIONS OF THE ACT OF 1928 IS "PLACED UPON AND THEREAFTER CONTINUED ON (A) SEPARATE RETIRED LIST * * * AS PART OF THE ARMY.' WHETHER THE ACT IN FACT DOES OPERATE TO PLACE IN THE ARMY PERSONS SO RETIRED NEED NOT BE DETERMINED. IT DOES, WITHOUT QUESTION, GIVE THEM A QUASI-MILITARY STATUS AND RETIRED PAY, AND OBVIOUSLY THEY COULD HAVE NO OTHER MILITARY STATUS ENTITLING TO PAY, IN THE ABSENCE OF A CLEAR PROVISION OF LAW SO PROVIDING. IT HAS BEEN CONSISTENTLY HELD THAT A PERSON MAY NOT DRAW THE PAY OF TWO MILITARY OFFICES AT THE SAME TIME, INCLUDING ONE ACTIVE AND THE OTHER RETIRED, AND THERE IS A FURTHER OBJECTION IN THIS CASE TO PAYING BOTH RETIRED PAY UNDER THE ACT OF 1928, AND ACTIVE MILITARY PAY, IN THAT THE RETIRED PAY AUTHORIZED BY THE ACT OF 1928, IS IN LIEU OF COMPENSATION UNDER THE WORLD WAR VETERANS' ACT AND ONE IN THE ACTIVE MILITARY SERVICE, ENTITLED TO ACTIVE SERVICE PAY AND ALLOWANCES THEREFOR, MAY NOT BE PAID DISABILITY COMPENSATION.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED, YES, AND YOUR SECOND QUESTION IS ANSWERED, NO.

B. THE QUESTION HAS ALSO ARISEN AS TO WHETHER YOUR DECISION WOULD BE THE SAME IN A CASE SIMILAR TO THE COOPER CASE IF THE DISABILITY INVOLVED WERE INCURRED DURING THE PERIOD THE PERSON SERVED AS AN EMERGENCY OFFICER? ILLUSTRATION OF THIS TYPE OF CASE IS THAT OF CAPTAIN GEORGE F. DAVIS, WHO SERVED AS A FIRST LIEUTENANT, COMPANY H, 101ST INFANTRY, DURING THE WORLD WAR AND DURING SUCH SERVICE ALLEGES HE WAS WOUNDED IN THE LEFT ELBOW BY A MACHINE-GUN BULLET. HE WAS DISCHARGED ON OCTOBER 4, 1919, AS AN EMERGENCY OFFICER. HE IS NOW SERVING AS A CAPTAIN, 28TH INFANTRY, UNITED STATES ARMY, AND HAS FILED APPLICATION FOR THE BENEFITS OF PUBLIC 506, 70TH CONGRESS, AND REQUESTED ADVICE WHETHER HE WILL BE ENTITLED TO THE BENEFITS OF THIS LEGISLATION IN THE EVENT HE RESIGNS HIS COMMISSION IN THE ACTIVE SERVICE AND IS FOUND TO BE DISABLED IN ACCORDANCE WITH THE TERMS THEREOF.

C. IT IS FURTHER REQUESTED THAT YOU ADVISE WHETHER YOUR ANSWER WOULD BE THE SAME IN THE CASE OF AN EX-EMERGENCY OFFICER WHO REENTERED THE SERVICE AS A REGULAR OFFICER BUT, RESIGNED HIS COMMISSION IN 1921, AND WHO NOW SUFFERS FROM A DISABILITY INCURRED IN LINE OF DUTY WHILE SERVING AS AN EMERGENCY OFFICER DURING THE WORLD WAR, WHICH DISABILITY RESULTED DIRECTLY FROM SUCH WAR SERVICE AND IS NOW RATED AT NOT LESS THAN 30 PERCENTUM PERMANENT.

IN DECISION OF OCTOBER 8, 1928, A-24496 (COOPER CASE), IT WAS SAID:

* * * EXCEPT FOR THE PERIOD NOVEMBER 17, 1917, TO JANUARY 21, 1918, WHEN HE ACCEPTED HIS APPOINTMENT IN THE REGULAR NAVY, HE WAS, DURING HIS ENTIRE WORLD WAR SERVICE, AN OFFICER OF THE REGULAR NAVY, AND BY THE PRECISE, CLEAR, AND EXPLICIT TERMS OF THE ACT OF MAY 24, 1928, IS NOT ENTITLED TO RETIREMENT UNDER ITS PROVISIONS. THE ACT IS NOT APPLICABLE TO ANY OFFICER WHO DURING HIS SERVICE DURING THE WORLD WAR, OR SUBSEQUENTLY, WAS PERMANENTLY APPOINTED IN THE REGULAR ESTABLISHMENTS, AND WHO, BY VIRTUE OF SUCH APPOINTMENT, BECAME ENTITLED, IN CASE OF DISABILITY INCURRED AS AN INCIDENT OF THE SERVICE, TO RETIREMENT UNDER THE PERMANENT PROVISIONS OF LAW FOR RETIREMENT OF OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS; ADEQUATE PROVISION IS MADE FOR THE RETIREMENT OF SUCH OFFICERS FOR PHYSICAL DISABILITY INCURRED AS AN INCIDENT OF THE SERVICE IN THOSE LAWS. THEIR PERMANENT APPOINTMENT IN THE REGULAR ESTABLISHMENTS SUBSEQUENT TO WAR SERVICE UNDER AN EMERGENCY OR RESERVE APPOINTMENT DOES NOT ENTITLE TO ANY BENEFITS UNDER THE ACT OF MAY 24, 1928, BY REASON OF SUCH SERVICE, "OTHER THAN AS AN OFFICER OF THE REGULAR ARMY, NAVY, OR MARINE CORPS" DURING THE WORLD WAR.

WHERE OFFICERS OF THE REGULAR ESTABLISHMENTS HAVE BEEN SEPARATED FROM THE SERVICE AND IT IS CLAIMED BY THE OFFICER THAT HE SHOULD HAVE BEEN BROUGHT BEFORE A RETIRING BOARD BECAUSE OF PHYSICAL DISABILITY INCURRED AS AN INCIDENT OF THE SERVICE, THE USUAL COURSE IS AN ACT OF CONGRESS AUTHORIZING THE PRESIDENT TO DIRECT HIM TO APPEAR BEFORE AN EXAMINING BOARD AND IF FOUND TO BE SUFFERING FROM A DISABILITY CONTRACTED AS AN INCIDENT OF THE SERVICE, TO APPOINT THE OFFICER TO THE ARMY, NAVY, OR MARINE CORPS, AS THE CASE MAY BE, AND PLACE HIM ON THE RETIRED LIST. SEE FOR EXAMPLE THE ACT OF JUNE 19, 1926, 44 STAT. 1610. THERE HAVE BEEN NUMEROUS PRIVATE ACTS OF A SIMILAR CHARACTER PASSED FOR THE RELIEF OF OFFICERS SEPARATED FROM THE REGULAR ESTABLISHMENTS, ARMY, NAVY, AND MARINE CORPS, SINCE THE WORLD WAR. THE LANGUAGE OF THE ACT OF MAY 24, 1928, SHOWS CLEARLY THERE WAS NO INTENTION TO ESTABLISH A PROCEDURE BY WHICH FORMER OFFICERS OF THE REGULAR ESTABLISHMENTS AND WHO HAD HAD SERVICE UNDER RESERVE, TEMPORARY, OR EMERGENCY COMMISSIONS DURING THE WORLD WAR, AND BEFORE THEIR APPOINTMENT IN THE REGULAR ESTABLISHMENTS (AND ONLY SUCH- -- NOT ALL FORMER OFFICERS OF THE REGULAR ESTABLISHMENTS WHO HAD WORLD WAR SERVICE), TO SECURE A STATUS EQUIVALENT TO RETIREMENT. THEY SERVE AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, AND ARE NOT WITHIN THE LANGUAGE MEANING, OR INTENT OF THE ACT OF MAY 24, 1928.

THIS SEEMS TO BE A COMPLETE ANSWER TO BOTH THE QUESTIONS PROPOUNDED ABOVE. IT IS NOT PERCEIVED HOW AN OFFICER COULD HAVE BEEN APPOINTED TO THE REGULAR ARMY UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 771, AND THE SOMEWHAT RIGID PHYSICAL EXAMINATION PRESCRIBED BY THE PRESIDENT, SEE WAR DEPARTMENT CIRCULARS 208, AND 334 (PAR. 5), OF 1920, WHO WAS SUFFERING FROM A DISABILITY INCURRED DURING WORLD WAR SERVICE, NOR HOW, IN THE CASE OF CAPTAIN DAVIS, HE COULD HAVE PASSED THE ANNUAL PHYSICAL EXAMINATIONS IN THE ARMY SINCE HIS APPOINTMENT, WITH DATE OF RANK FROM JULY 1, 1920, UNDER THE PROVISIONS OF SECTION 24 OF THE ACT OF JUNE 4, 1920. BUT BE THAT AS IT MAY, HE AND ANY OTHER OFFICER FOUND PHYSICALLY FIT FOR APPOINTMENT AND APPOINTED UNDER THE PROVISIONS OF THAT ACT BECAME THEREAFTER ENTITLED TO THE BENEFITS OF RETIREMENT FOR ANY DISABILITY AN INCIDENT OF THE SERVICE UNDER THE PERMANENT LAWS APPLICABLE TO THE REGULAR ESTABLISHMENT, AND IF THEY ARE STILL IN THE REGULAR ARMY, OR HAVE SINCE RESIGNED, THEY ARE NOT ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 24, 1928. THAT ACT WAS NOT PASSED FOR THEIR BENEFIT, BUT TO PLACE OFFICERS NEVER ENTITLED TO THE BENEFITS OF RETIREMENT UNDER THE PERMANENT PROVISIONS APPLICABLE TO THE REGULAR ARMY, ON A PARITY WITH THEM IN THE MATTER OF RETIREMENT. THE FACT THEY WERE NOT, OR HAVE NOT BEEN, RETIRED UNDER THOSE PERMANENT PROVISIONS FOR RETIREMENT IN THE REGULAR ARMY DOES NOT AFFECT THE QUESTION. THE ACT OF MAY 24, 1928, WAS NOT PASSED FOR THEIR BENEFIT AND THEY ARE EXCLUDED BY THE PHRASEOLOGY OF THE ACT LIMITING ITS BENEFITS TO OFFICERS, OR FORMER OFFICERS,"OTHER THAN OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS.' D. ANOTHER QUESTION WHICH HAS ARISEN IN THIS CONNECTION IS WHETHER AN OFFICER WHO SERVED AS A RESERVE OFFICER IN THE NAVY, AND WAS LATER COMMISSIONED A TEMPORARY OFFICER IN THE REGULAR NAVY, AND WHO IS NOW ENTIRELY SEPARATED FROM THE SERVICE, IS ENTITLED TO THE BENEFITS UNDER PUBLIC 506, 70TH CONGRESS, IN THE EVENT HE IS FOUND TO BE SUFFERING WITH A DISABILITY INCURRED IN LINE OF DUTY RESULTING DIRECTLY FROM WAR SERVICE, AND RATED 30 PERCENTUM PERMANENTLY DISABLED.

IN THE COOPER CASE IT WAS SAID:

* * * ORIGINALLY IT (THE ACT OF MAY 24, 1928) WAS DESIGNED TO PROVIDE ONLY FOR THE RETIREMENT OF DISABLED EMERGENCY ARMY OFFICERS, BUT THE BILL, SEE HOUSE REPORT 1082, 70TH CONGRESS, 1ST SESSION, WHICH EVENTUALLY BECAME LAW, INCLUDED "THOSE DISABLED EMERGENCY OFFICERS OF THE NAVY AND MARINE CORPS WHO DID NOT OBTAIN RETIREMENT UNDER THE ACT OF JUNE 4, 1920.' THE ACT OF JUNE 4, 1920, 41 STAT. 834, PROVIDED:

"THAT ALL OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY WHO HAVE HERETOFORE INCURRED OR MAY HEREAFTER INCUR PHYSICAL DISABILITY IN LINE OF DUTY SHALL BE ELIGIBLE FOR RETIREMENT UNDER THE SAME CONDITIONS AS NOW PROVIDED BY LAW FOR OFFICERS OF THE REGULAR NAVY WHO HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY.'

OFFICERS OF THE REGULAR NAVY WERE ENTITLED TO NOTHING UNDER THIS PROVISION. WHAT TEMPORARY OFFICERS OF THE NAVY WERE CONTEMPLATED IS APPARENT FROM AN EXAMINATION OF THE ACT OF MAY 22, 1917, 40 STAT. 84, PROVIDING A TEMPORARY INCREASE IN COMMISSIONED, WARRANT, AND ENLISTED STRENGTH OF THE NAVY AND MARINE CORPS. THAT ACT TEMPORARILY INCREASED THE NUMBER OF OFFICERS OF THE LINE AND STAFF TO ACCORD WITH THE INCREASE IN THE ENLISTED FORCE THEREIN AUTHORIZED, PROVIDED FOR THE TEMPORARY ADVANCEMENT OF OFFICERS HOLDING PERMANENT COMMISSIONS IN THE REGULAR NAVY TO FILL SUCH INCREASED OFFICES AND THEIR REVERSION TO THEIR PERMANENT STATUS IN THE NAVY ON TERMINATION OF THEIR TEMPORARY APPOINTMENTS, OR THE TEMPORARY APPOINTMENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE OF PERSONS FROM CIVIL LIFE, SUCH TEMPORARY APPOINTMENTS TO CONTINUE IN EFFECT UNTIL OTHERWISE DIRECTED BY THE PRESIDENT OR BY THE CONGRESS, AND IN ANY EVENT TO TERMINATE WITHIN SIX MONTHS AFTER THE TERMINATION OF THE THEN EXISTING WAR. SECTION 9 OF THE ACT PROVIDED:

THAT ANY OFFICER OF THE PERMANENT NAVY OR MARINE CORPS, TEMPORARILY ADVANCED IN GRADE OR RANK IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT, WHO SHALL BE RETIRED FROM ACTIVE SERVICE UNDER HIS PERMANENT COMMISSION WHILE HOLDING SUCH TEMPORARY RANK, EXCEPT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, SHALL BE PLACED ON THE RETIRED LIST WITH THE GRADE OR RANK TO WHICH HIS POSITION IN THE PERMANENT NAVY OR MARINE CORPS AT THE DATE OF HIS RETIREMENT WOULD ENTITLE HIM, AND ANY PERSON ORIGINALLY APPOINTED TEMPORARILY, AS PROVIDED IN THIS ACT, SHALL NOT BE ENTITLED TO ANY RIGHTS OF RETIREMENT, EXCEPT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.

THE TEMPORARY OFFICERS CONTEMPLATED BOTH BY THE ACT OF JUNE 4, 1920, AND THE ACT OF MAY 24, 1928, INCLUDE, THEREFORE, OFFICERS SERVING IN THE NAVY DURING THE WORLD WAR UNDER TEMPORARY APPOINTMENTS AND WHO HAD NO PERMANENT COMMISSIONED OR WARRANT STATUS IN THE REGULAR NAVY. THE ACT OF JUNE 4, 1920, 41 STAT. 834, REQUIRED THAT ALL TEMPORARY APPOINTMENTS IN THE NAVY SHOULD BE TERMINATED DECEMBER 31, 1921.

THE ACT OF JUNE 4, 1920, QUOTED ABOVE, SPECIFICALLY PROVIDED FOR THE RETIREMENT FOR PHYSICAL DISABILITY OF OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY (MEMBERS OF THE MARINE CORPS RESERVE FORCE AND TEMPORARY MARINE CORPS OFFICERS WERE ALSO RETIRED UNDER THIS PROVISION OF LAW). THE PROVISION WAS AMENDED BY SECTION 6 OF THE ACT OF JULY 12, 1921, 42 STAT. 140, BY ADDING A PROVISO,"THAT APPLICATION FOR SUCH RETIREMENT SHALL BE FILED WITH THE SECRETARY OF THE NAVY NOT LATER THAN OCTOBER 1, 1921.' IT WAS BECAUSE OF THIS LIMITATION AS TO THE PERIOD DURING WHICH APPLICATION MIGHT BE FILED THAT THE ACT OF MAY 24, 1928, WAS AMENDED TO INCLUDE PERSONS WHO HAD SERVED AS OFFICERS OF THE NAVY AND MARINE CORPS, OTHER THAN AS OFFICERS OF THE REGULAR NAVY OR MARINE CORPS, AND WHO HAD NOT THEREFORE SECURED THE BENEFITS OF RETIREMENT UNDER THE ACT OF JUNE 4, 1920.

WHILE THE QUESTION IS NOT NOW SUBMITTED, AN ANALOGOUS SITUATION EXISTED IN THE ARMY BY REASON OF SECTION 114 OF THE NATIONAL DEFENSE ACT, 39 STAT. 211, AND SECTION 8 OF THE ACT OF MAY 18, 1917, 40 STAT. 81-82. SUCH OFFICERS APPOINTED TEMPORARILY IN THE REGULAR ESTABLISHMENTS FOR SERVICE DURING THE WORLD WAR ARE WITHIN THE ACT OF MAY 24, 1928. IT SHOULD BE CLEARLY UNDERSTOOD, HOWEVER, THAT ONLY THOSE TEMPORARY OFFICERS ARE WITHIN THE ACT OF MAY 24, 1928, WHO SERVED UNDER A TEMPORARY APPOINTMENT IN THE REGULAR ARMY, NAVY, OR MARINE CORPS, AND WHO HAD NO PERMANENT STATUS AS COMMISSIONED OFFICERS, OR WARRANT OFFICERS IN THE REGULAR ESTABLISHMENTS TO WHICH THEY WOULD REVERT ON DISCHARGE FROM THEIR TEMPORARY COMMISSION AND UNDER WHICH THEY WOULD BE ENTITLED TO RETIREMENT FOR PHYSICAL DISABILITY AN INCIDENT OF THE SERVICE UNDER THE PERMANENT LAWS PROVIDING THEREFOR IN THE REGULAR ESTABLISHMENT, NOR ARE TEMPORARY OFFICERS RETIRED UNDER THE ACT OF JUNE 4, 1920, NOR TEMPORARY OFFICERS SUBSEQUENTLY PERMANENTLY APPOINTED IN THE REGULAR ESTABLISHMENTS WITHIN THE ACT.

E. THERE IS ALSO BEFORE THE BUREAU THE CLAIM OF JOHN HENRY HOEPPEL, C- 905214, WHO ALLEGES THAT HE IS A RETIRED ENLISTED MAN OF THE REGULAR ARMY AND SERVED AS AN EMERGENCY OFFICER DURING THE WORLD WAR, AND INQUIRES WHETHER A RETIRED ENLISTED MAN OF THE REGULAR ARMY MAY BE RETIRED AS AN EMERGENCY OFFICER WITH OR WITHOUT PAY UNDER PUBLIC 506, 70TH CONGRESS, AND STILL RECEIVE RETIRED PAY AS AN ENLISTED MAN OF THE REGULAR ARMY.

THE ACT OF MARCH 2, 1907, 34 STAT. 1217, PROVIDES:

* * * THAT WHEN AN ENLISTED MAN SHALL HAVE BEEN 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: PROVIDED, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED.

SECTION 212 OF THE WORLD WAR VETERANS' ACT, AS AMENDED JULY 2, 1926, 44 STAT. 798, PROVIDES IN PART:

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. * * *.

RETIRED ENLISTED MEN ARE NOT ENTITLED TO COMPENSATION UNDER THE WORLD WAR VETERANS' ACT. THEY ARE ENTITLED TO RETIRED PAY AND ALLOWANCES AS FIXED BY LAW. IN ADDITION, CONGRESS HAS BY A SPECIAL PROVISION PROVIDED ADDITIONAL BENEFITS FOR RETIRED ENLISTED MEN OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO SERVED AS COMMISSIONED OFFICERS DURING THE WORLD WAR BY SECTION 8 OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, AS FOLLOWS:

THAT RETIRED ENLISTED MEN OF THE ARMY HERETOFORE OR HEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE ARMY; AND RETIRED ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS HERETOFORE OR HEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS, REGULAR, TEMPORARY, OR RESERVE, IN THE NAVAL SERVICE AT SOME TIME BETWEEN THE AFORESAID DATES, AND WHO AT THE TIME OF THEIR RETIREMENT WERE MEMBERS OF THE REGULAR NAVY OR MARINE CORPS, SHALL BE ENTITLED RETIREMENT WERE MEMBERS OF THE REGULAR NAVY OR MARINE CORPS, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE NAVY AND MARINE COPRS, RESPECTIVELY: PROVIDED, THAT SUCH ENLISTED MAN RETIRED PRIOR TO JULY 1, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO THAT DATE, AND THAT ANY SUCH ENLISTED MAN RETIRED SUBSEQUENT TO JUNE 30, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED FURTHER, THAT NOTHING IN THIS ACT SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK, OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS ACT BY VIRTUE OF HIS COMMISSIONED SERVICE.

THE PAY FIXED BY THE ACT OF MAY 24, 1928, IS IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS, OR PERSONS, PROVIDED IN THE WORLD WAR VETERANS' ACT OF 1924, AND AMENDMENTS THERETO, EXCEPT AS OTHERWISE PROVIDED IN THE ACT OF MAY 24, 1928. THE PURPOSE SEEMS PLAIN TO PROVIDE ONLY FOR PERSONS OTHERWISE WITHIN THE ACT RECEIVING BENEFITS, OR ENTITLED TO RECEIVE BENEFITS, UNDER THE WORLD WAR VETERANS' ACT, AND TO EXCLUDE THOSE FOR WHOM PROVISION HAS BEEN MADE IN OTHER LAWS. IN ADDITION TO THE GENERAL LAW FOR THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ESTABLISHMENTS, A SPECIAL PROVISION HAS BEEN MADE FOR SUCH RETIRED ENLISTED MEN, WHENEVER RETIRED, WHO SERVED AS COMMISSIONED OFFICERS AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918. THE ACT OF MAY 24, 1928, PROVIDES FOR RETIREMENT OF FORMER OFFICERS OTHERWISE WITHIN THE ACT WHO HAVE BEEN RATED AT LESS THEN 30 PERCENT, BUT MORE THAN 10 PERCENT, DISABLED, WITH A PROVISO THAT SUCH RETIREMENT SHALL BE WITHOUT RETIRED PAY, AND THAT SUCH FORMER OFFICERS, WHEN RETIRED,"SHALL BE ENTITLED ONLY TO SUCH COMPENSATION AND OTHER BENEFITS AS ARE NOW, OR MAY HEREAFTER, BE PROVIDED BY LAW OR REGULATIONS OF THE UNITED STATES VETERANS' BUREAU.' OBVIOUSLY THIS PROVISION WAS NOT INTENDED TO SUBSTITUTE COMPENSATION UNDER THE WORLD WAR VETERANS' ACT FOR RETIRED PAY; ITS EFFECT IS TO SHOW CLEARLY RETIRED ENLISTED MEN WERE NOT INTENDED TO BE PROVIDED FOR UNDER THAT ACT. RETIRED ENLISTED MEN ARE NOT WITHIN THE COMPENSATION BENEFITS OF THE WORLD WAR VETERANS' ACT; IF THEY WERE RETIRED WITHOUT PAY AS LESS THAN 30 PERCENT BUT MORE THAN 10 PERCENT DISABLED THEY WOULD NOT BE ENTITLED TO COMPENSATION UNDER THE WORLD WAR VETERANS' ACT. SPECIFIC PROVISIONS OF LAW FIX THEIR RIGHTS TO PAY UPON RETIREMENT, AND IF THEY HAD COMMISSIONED SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, CONGRESS HAS PROVIDED A REWARD FOR SUCH SERVICE WHETHER OR NOT DISABLED IN SUCH SERVICE. WERE THE BENEFITS OF RETIREMENT WITH PAY UNDER THE ACT OF MAY 24, 1928, LESS THAN THE BENEFITS ACCRUING BY THE LAWS PROVIDING FOR THEIR RETIREMENT AND FOR PAY, THERE IS NO QUESTION IT WOULD BE HELD THAT THE GENERAL PROVISIONS OF THE ACT OF MAY 24, 1928, DID NOT INCLUDE SUCH RETIRED ENLISTED MEN, THE SPECIAL PROVISIONS APPLICABLE TO THEM BEING CONTROLLING. THE CONSTRUCTION MUST BE THE SAME, NOTWITHSTANDING IN SOME CASES RETIRED PAY UNDER THE ACT OF MAY 24, 1928, WOULD BE GREATER THAN THE RETIRED PAY AS ENLISTED MEN. FOR THE REASONS STATED IT IS CONCLUDED THAT RETIRED ENLISTED MEN OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO SERVED AS COMMISSIONED OFFICERS DURING THE WORLD WAR, OTHER THAN AS OFFICERS OF THE REGULAR ESTABLISHMENTS, ARE NOT ENTITLED TO RETIREMENT UNDER THE ACT OF MARY 24, 1928.

F. THE CASE OF HARTLEY ALLEN MOON, C-344047, PRESENTS ANOTHER PHASE OF THIS QUESTION. HARTLEY ALLEN MOON WAS MUSTERED INTO THE FEDERAL SERVICE FOR DUTY ON THE MEXICAN BORDER ON JULY 1, 1916, AS A MAJOR, 4TH INFANTRY, ALABAMA NATIONAL GUARD, AND WAS DISCHARGED AS A MAJOR, INFANTRY, ON DECEMBER 18, 1919. HE ACCEPTED APPOINTMENT AS A COLONEL IN THE ADJUTANT GENERAL'S DEPARTMENT, OFFICERS' RESERVE CORPS ON JUNE 27, 1921. HE IS NOW A COLONEL IN THE ADJUTANT GENERAL'S DEPARTMENT, OFFICERS' RESERVE CORPS, AND DURING HIS COMMISSION IN THE RESERVE CORPS HAS HAD ACTIVE SERVICE AS FOLLOWS: JUNE 16, 1927, TO JULY 14, 1927, AND OCTOBER 1, 1927, TO DATE, THE LAST REASSIGNMENT BEING FOR SIX MONTHS BEGINNING OCTOBER 1, 1928. REPORTS FROM THE WAR DEPARTMENT SHOW THAT HE WAS CONTINUOUSLY IN ACTIVE SERVICE AS AN OFFICER FROM JULY 1, 1916, TO DECEMBER 18, 1919. ON JUNE 8, 1919, WHILE ON DUTY WITH THE AMERICAN EXPEDITIONARY FORCES, COLONEL MOON INCURRED A COMPOUND COMMINUTED FRACTURE OF THE LEFT ULNA AND RADIUS AT JUNCTION OF THE LOWER AND MIDDLE THIRDS BY FALLING IN A TRENCH AND HE WAS OPERATED ON BY A BONE GRAFT INLAYED FROM RIGHT TIBIA.

1. IN THE EVENT HE IS FOUND TO BE SUFFERING FROM A DISABILITY OF NOT LESS THAN 30 PERCENT INCURRED IN LINE OF DUTY DIRECTLY RESULTING FROM WAR SERVICE, IS HE ENTITLED TO RETIREMENT UNDER PUBLIC 506, 70TH CONGRESS, IN THE EVENT HE REVERTS TO INACTIVE STATUS? 2. SHOULD HIS PRESENT ASSIGNMENT TO ACTIVE DUTY CONTINUE BEYOND MAY 24, 1929, WOULD THAT PER SE DEPRIVE HIM OF ANY BENEFITS TO WHICH HE MIGHT OTHERWISE BE ENTITLED UNDER PUBLIC 506, 70TH CONGRESS?

3. WILL THE RECEIPT OF ACTIVE-SERVICE PAY BY A MEMBER OF THE RESERVE CORPS ASSIGNED TO ACTIVE SERVICE BAR THE CONCURRENT PAYMENT OF RETIRED PAY UNDER PUBLIC 506, 70TH CONGRESS, TO WHICH THE MAN MIGHT OTHERWISE BE ENTITLED?

ON THE ASSUMPTION THAT ALL OTHER REQUISITES OF THE STATUTE ARE MET, THE ANSWER TO THE FIRST QUESTION IS, YES, AND A REVERSION TO AN INACTIVE STATUS IS NOT NECESSARY TO ENTITLE HIM TO RETIREMENT.

WITH RESPECT TO THE SECOND QUESTION, THE RIGHT TO RETIREMENT AND THE RIGHT TO PAY AS SHOWN UNDER THE ANSWER TO QUESTION A ARE SEPARATE AND DISTINCT. IF THE FORMER OFFICER IS OTHERWISE WITHIN THE ACT, HE IS ENTITLED TO RETIREMENT UNDER THE ACT OF 1928, ALTHOUGH BY REASON OF HIS PRESENT RIGHT TO PAY IN ANOTHER MILITARY CAPACITY HE MAY NOT BE ENTITLED TO RETIRED PAY. THE QUESTION IS ANSWERED ACCORDINGLY.

FOR THE REASONS STATED IN ANSWER TO QUESTION A, YOUR THIRD QUESTION IS ANSWERED BY SAYING THAT THE RECEIPT OF ACTIVE-SERVICE PAY AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY IS A BAR TO THE CONCURRENT PAYMENT OF RETIRED PAY UNDER THE ACT OF 1928.

G. YOU WILL NOTE THAT PUBLIC 506, 70TH CONGRESS, PROVIDES THAT THE BENEFITS SHALL BE GRANTED TO EX-EMERGENCY OFFICERS "WHO HAVE BEEN OR MAY HEREAFTER WITHIN ONE YEAR, BE RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE, * * *.' THE QUESTION HAS ARISEN WHETHER A RATING FOR RETIREMENT PURPOSES MAY BE MADE SUBSEQUENT TO MAY 24, 1929. IN THE EVENT YOUR ANSWER TO THIS QUESTION IS IN THE NEGATIVE YOUR ADVICE IS REQUESTED AS TO WHETHER IN THE EVENT A RATING OF THE DEGREE OF DISABILITY IS MADE ON OR PRIOR TO MAY 24, 1929, THE BUREAU MAY LEGALLY PASS UPON THE QUESTIONS OF LINE OF DUTY AND DIRECT RESULT OF SERVICE, WHICH IS ESSENTIAL TO A DETERMINATION OF THE RIGHT TO RETIREMENT UNDER THIS ACT, SUBSEQUENT THERETO.

YOUR CONSIDERATION OF THIS QUESTION IS REQUESTED FOR THE REASON THAT THERE WILL, NO DOUBT, BE NUMEROUS CLAIMS WHICH WILL BE IMPOSSIBLE FOR ADJUDICATION ON OR PRIOR TO MAY 24, 1929, BECAUSE OF INABILITY TO OBTAIN COMPLETE EVIDENCE PRIOR THERETO. IF IT BE DETERMINED THAT MERELY THE VALUATION OF THE DEGREE OF DISABILITY MUST BE MADE ON OR PRIOR TO MAY 24, 1929, THE BUREAU MAY BE ABLE TO ASSIGN A RATING IN EACH CASE BEFORE THAT TIME AND DETERMINE THE QUESTION OF SERVICE CONNECTION SUBSEQUENTLY. THE LATTER IS THE MOST DIFFICULT QUESTION CONFRONTING THE BUREAU IN THE INDIVIDUAL CASE.

THE PROVISION IN SECTION 1,"WHO HAVE BEEN OR MAY HEREAFTER WITHIN ONE YEAR, BE RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY" MUST BE READ IN CONNECTION WITH THE PROVISIONS OF SECTION 2 DENYING BENEFITS UNDER THE ACT OF ANY PERSON WHOSE APPLICATION IS RECEIVED IN THE BUREAU AFTER THE EXPIRATION OF 12 MONTHS FROM THE DATE OF THE ACT. IT WOULD BE IDLE TO SEEM TO ACCORD BENEFITS IF THE APPLICATION IS RECEIVED WITHIN ONE YEAR, AND THEN DENY THEM BECAUSE THE BUREAU WAS UNABLE TO EXAMINE THE APPLICANT BEFORE THE EXPIRATION OF THE SAME YEAR. THE LIMITATION TO RATINGS MADE WITHIN ONE YEAR FROM THE DATE OF THE ACT MUST BE RECONCILED WITH THE LATER PROVISIONS EXTENDING THE BENEFITS OF THE ACT TO PERSONS WHOSE APPLICATIONS ARE RECEIVED IN THE BUREAU WITHIN 12 MONTHS AFTER THE PASSAGE OF THE ACT, AND OBVIOUSLY THE STATUTE CONTEMPLATES A RATING MADE AS THE RESULT OF AN APPLICATION FILED WITHIN THAT YEAR. THE RATING SHOULD BE, SO FAR AS PRACTICABLE, ON THE BASIS OF THE OFFICER'S PHYSICAL CONDITION WHEN EXAMINED, IF WITHIN THE YEAR, OR HIS CONDITION ON MAY 24, 1929, IF NECESSARY ADMINISTRATIVE DELAY COMPELS AN EXAMINATION AFTER THAT DATE. THE ADMINISTRATIVE DETAILS IN CONNECTION WITH AN APPLICATION FOR RETIREMENT ARE NOT REQUIRED TO BE COMPLETED WITHIN ONE YEAR. SEE IN THIS CONNECTION THE PROVISION RELATING TO PERSONS APPLYING "WHO HAVE HERETOFORE, OR MAY HEREAFTER, BE RATED LESS THAN 30 PERCENTUM AND MORE THAN 10 PERCENTUM PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU.' BOTH CLASSES ARE ENTITLED TO RETIREMENT UNDER THE ACT, THE FIRST WITH RETIRED PAY BASED ON A PERCENTAGE OF THE PAY RECEIVED WHEN DISCHARGED FROM COMMISSIONED SERVICE, THE OTHER ENTITLED ONLY TO COMPENSATION UNDER THE WORLD WAR VETERANS' ACT, BUT BOTH CLASSES ARE REQUIRED TO FILE THEIR APPLICATIONS IN THE BUREAU WITHIN 12 MONTHS OF THE DATE OF THE ACT AND THERE IS NO AUTHORITY TO RETIRE IN EITHER CLASS IF THE APPLICATION IS NOT RECEIVED IN THE BUREAU WITHIN THAT LIMIT. UNNECESSARY DELAYS IN RATING SHOULD BE AVOIDED, BUT IN ANY CASE WHERE THE APPLICATION IS RECEIVED BEFORE THE EXPIRATION OF THE STATUTORY PERIOD, AND THE DELAY IN THE PHYSICAL EXAMINATION AND RATING IS NOT DUE TO THE FAULT OF THE APPLICANT, BUT TO NECESSARY ADMINISTRATIVE DELAY, THE APPLICANT IS ENTITLED TO THE BENEFITS OF THE ACT, IF OTHERWISE WITHIN ITS TERMS. CONSTRUCTION THAT WOULD RESULT IN PENALIZING AN APPLICANT BECAUSE OF DELAYS IN THE BUREAU IN ACTING ON HIS APPLICATION WOULD BE INTOLERABLE.

H. THE QUESTION OF THE EFFECTIVE DATE OF AN AWARD UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT, IN A CASE WHEREIN THE CLAIMANT IS LESS THAN 30 PERCENTUM PERMANENTLY DISABLED AT THE TIME APPLICATION IS FILED, BUT SUBSEQUENTLY REACHES THAT DEGREE OF PERMANENT DISABILITY, HAS ALSO ARISEN IN CONNECTION WITH THE EXTENSION OR DENIAL OF BENEFITS UNDER THIS LEGISLATION. THE MAIN PROVISION OF PUBLIC, 506, 70TH CONGRESS, IS THAT ALL PERSONS WHO HAVE SERVED AS OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR, OTHER THAN OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO DURING SUCH SERVICE HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY AND WHO HAVE BEEN OR MAY HEREAFTER WITHIN ONE YEAR BE RATED IN ACCORDANCE WITH LAW, NOT LESS THAN 30 PERCENTUM PERMANENTLY DISABLED BY THE UNITED STATES VETERANS' BUREAU FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE, SHALL FROM "DATE OF RECEIPT OF APPLICATION" BE PLACED UPON SEPARATE RETIRED LISTS AND RECEIVED "FROM DATE OF RECEIPT OF APPLICATION" RETIREMENT PAY AT THE RATE OF 75 PERCENTUM 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. THE SECOND PROVISO IS THAT THE SAME CLASS OF PERSONS WHO HAD HERETOFORE OR MAY HEREAFTER BE RATED LESS THAN 30 PERCENTUM AND MORE THAN 10 PERCENTUM DISABLED BY THE UNITED STATES VETERANS' BUREAU SHALL FROM THE DATE OF RECEIPT OF APPLICATION BE PLACED UPON A SEPARATE RETIRED LIST BUT WITHOUT RETIREMENT PAY. THE SPECIFIC QUESTION WHICH HAS ARISEN IS WHETHER THE EFFECTIVE DATE OF RETIREMENT AWARDS IN CASES WHEREIN THE CLAIMANT IS LESS THAN 30 PERCENTUM DISABLED AT THE TIME THE APPLICATION IS FILED, BUT SUBSEQUENTLY REACHES THAT DEGREE OF PERMANENT DISABILITY, SHOULD BE THE DATE OF THE RECEIPT OF THE APPLICATION OR THE DATE ON WHICH THE EVIDENCE SHOWS THE APPLICANT'S CONDITION REACHED A DEGREE OF 30 PERCENTUM DISABLED.

A FORMER OFFICER WITHIN THE ACT WHO IS RATED LESS THAN 30 PERCENT, AND MORE THAN 10 PERCENT DISABLED BY THE UNITED STATES VETERANS' BUREAU IS, BY THE ACT, REQUIRED TO BE PLACED ON THE RETIRED LIST THEREIN CREATED "WITHOUT RETIRED PAY, AND SHALL BE ENTITLED ONLY TO SUCH COMPENSATION AND OTHER BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATIONS OF THE UNITED STATES VETERANS' BUREAU.' IT NOT ONLY CONTAINS NO PROVISIONS THAT A PERSON SO RETIRED SHALL AT A FUTURE DATE RECEIVE RETIRED PAY, BUT SPECIFICALLY NEGATIVES SUCH CONCLUSION. IF ANY FORMER OFFICER IS FINALLY CLASSIFIED AS LESS THAN 30 PERCENT, AND MORE THAN 10 PERCENT DISABLED AND RETIRED UNDER THE PORTION OF THE LAW PROVIDING FOR RETIREMENT FOR SUCH FORMER OFFICERS OTHERWISE WITHIN THE ACT, THERE IS NO AUTHORITY TO PAY HIM RETIRED PAY IN THE ABSENCE OF A FURTHER APPLICATION FROM HIM WITHIN THE 12 MONTHS LIMITED BY THE ACT FOR RETIREMENT UNDER THE FIRST PROVISION OF THE ACT AND THE FINDING OF 30 PERCENT, OR MORE, DISABILITY INCURRED IN LINE OF DUTY AND DIRECTLY RESULTING FROM WAR SERVICE. AFTER THE EXPIRATION OF THE 12 MONTHS FROM THE DATE OF THE ACT, OR MAY 24, 1929, FORMER OFFICERS FINALLY CLASSIFIED AS LESS THAN 30 PERCENT, AND MORE THAN 10 PERCENT, DISABLED AND RETIRED UNDER THE PROVISION OF LAW APPLICABLE TO SUCH OFFICERS MAY NOT IN ANY CIRCUMSTANCES BE PAID RETIRED PAY, NO MATTER TO WHAT EXTENT THEIR DISABILITY MAY HAVE INCREASED. TO ENTITLE TO RETIRED PAY THE RATING OF 30 PERCENT, OR MORE, DISABILITY MUST BE ACCORDED WITHIN ONE YEAR FROM MAY 24, 1928, OR AS OF THE PHYSICAL CONDITION EXISTING AT THE TIME OF THE EXAMINATION WITHIN THAT YEAR, OR AS OF MAY 24, 1929, IF NECESSARY ADMINISTRATIVE DELAY COMPELS AN EXAMINATION AFTER THE EXPIRATION OF THE YEAR.

IF THE QUESTION IS WITH RESPECT TO APPLICANTS WHO, ON DATE OF RECEIPT OF APPLICATION, ARE SHOWN BY THE RECORDS OF THE BUREAU TO BE LESS THAN 30 PERCENT DISABLED AND AN EXAMINATION AS THE RESULT OF THE APPLICATION SHOWS THE APPLICANT OTHERWISE WITHIN THE ACT AND 30 PERCENT, OR MORE, DISABLED, RETIRED PAY IS PAYABLE FROM THE DATE OF RECEIPT OF THE APPLICATION IN THE BUREAU. THE FACT THE BUREAU RECORDS DO NOT SHOW THE TRUE SITUATION DOES NOT DEFEAT THE RIGHTS OF THE MAN AS SPECIFICALLY ESTABLISHED BY THE ACT.

I. ANOTHER QUESTION WHICH HAS ARISEN IN CONNECTION WITH THE EXTENSION OR DENIAL OF THE BENEFITS OF THIS ACT IS ONE PRESENTED BY THE VICE CHAIRMAN, NATIONAL LEGISLATIVE COMMITTEE, AMERICAN LEGION, NAMELY, WHETHER A DISABLED EMERGENCY OFFICER, WHO IS ALSO A RETIRED CIVIL-SERVICE EMPLOYEE AND RECEIVING RETIREMENT PAY AS SUCH, MAY ALSO DRAW RETIREMENT PAY UNDER THE PROVISIONS OF THE EMERGENCY OFFICERS' RETIREMENT ACT. IT IS, THEREFORE, REQUESTED THAT YOU GIVE CONSIDERATION TO THE MATTER WITH PARTICULAR REFERENCE TO THE FOLLOWING QUESTIONS:

1. IS AN EX-EMERGENCY OFFICER OF THE WORLD WAR WHO IS FOUND TO BE SUFFERING FROM A DISABILITY OF NOT LESS THAN 30 PERCENTUM PERMANENT INCURRED IN LINE OF DUTY AND DIRECTLY RESULTING FROM WAR SERVICE, WHO HAS BEEN RETIRED AS A CIVIL-SERVICE EMPLOYEE ON ACCOUNT OF AGE AND IS RECEIVING RETIREMENT PAY AS SUCH, ENTITLED TO RECEIVE IN ADDITION THERETO RETIREMENT PAY UNDER THE PROVISIONS OF THE EMERGENCY OFFICERS' RETIREMENT ACT?

2. IS AN EX-EMERGENCY OFFICER OF THE WORLD WAR WHO IS FOUND TO BE SUFFERING FROM A DISABILITY OF NOT LESS THAN 30 PERCENTUM PERMANENT INCURRED IN LINE OF DUTY AND DIRECTLY RESULTING FROM WAR SERVICE, WHO HAS BEEN RETIRED AS A CIVIL-SERVICE EMPLOYEE BECAUSE OF PHYSICAL DISABILITY AND IS RECEIVING RETIREMENT PAY AS SUCH, ENTITLED TO DRAW RETIREMENT PAY UNDER THE PROVISIONS OF THE EMERGENCY OFFICERS' RETIREMENT ACT IN ADDITION THERETO?

3. IN THE EVENT THE DISABILITY FOR WHICH HE HAD BEEN RETIRED AS A CIVIL- SERVICE EMPLOYEE IS THE SAME DISABILITY FOR WHICH HE IS ENTITLED TO RECEIVE THE BENEFITS OF THE EMERGENCY OFFICERS' RETIREMENT ACT, WOULD HE BE ENTITLED TO DRAW RETIREMENT PAY BOTH AS A RETIRED CIVIL SERVICE EMPLOYEE AND A DISABLED EMERGENCY OFFICER OF THE WORLD WAR?

THE FIRST PARAGRAPH OF SECTION 5 AND THE FIRST, SECOND, AND THIRD PARAGRAPHS OF SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT OF JULY 3, 1926, 44 STAT. 907, PROVIDE:

SEC. 5. SUBJECT TO THE PROVISIONS OF SECTION 9 HEREOF, THE AGGREGATE PERIOD OF SERVICE WHICH FORMS THE BASIS FOR CALCULATING THE AMOUNT OF ANY BENEFIT PROVIDED IN THIS ACT SHALL BE COMPUTED FROM THE DATE OF ORIGINAL EMPLOYMENT, WHETHER AS A CLASSIFIED OR AN UNCLASSIFIED EMPLOYEE IN THE CIVIL SERVICE OF THE UNITED STATES, INCLUDING PERIODS OF SERVICE AT DIFFERENT TIMES AND IN ONE OR MORE DEPARTMENTS, BRANCHES, OR INDEPENDENT OFFICES OF THE GOVERNMENT, AND ALSO PERIODS OF SERVICE PERFORMED OVERSEAS UNDER AUTHORITY OF THE UNITED STATES, AND PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES; IN THE CASE OF AN EMPLOYEE, HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW, OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION, RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED, BUT NOTHING IN THIS ACT SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER HIS OR HER RIGHT TO A PENSION, OR TO RETIRED PAY, OR TO COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY HEREIN PROVIDED.

SEC. 6. ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIFTEEN YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN THE PRECEDING SECTIONS HEREOF, BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE, BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE, SHALL UPON HIS OWN APPLICATION OR UPON THE REQUEST OR ORDER OF THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE CONCERNED, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 HEREOF: PROVIDED, THAT PROOF OF FREEDOM FROM VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT FOR A PERIOD OF MORE THAN FIVE YEARS NEXT PRIOR TO BECOMING SO DISABLED FOR USEFUL AND EFFICIENT SERVICE, SHALL NOT BE REQUIRED IN ANY CASE. NO CLAIM SHALL BE ALLOWED UNDER THE PROVISIONS OF THIS SECTION UNLESS THE APPLICATION FOR RETIREMENT SHALL HAVE BEEN EXECUTED PRIOR TO THE APPLICANT'S SEPARATION FROM THE SERVICE OR WITHIN SIX MONTHS THEREAFTER. NO EMPLOYEE SHALL BE RETIRED UNDER THE PROVISIONS OF THIS SECTION UNLESS EXAMINED BY A MEDICAL OFFICER OF THE UNITED STATES, OR A DULY QUALIFIED PHYSICIAN OR SURGEON, OR BOARD OF PHYSICIANS OR SURGEONS, DESIGNATED BY THE COMMISSIONER OF PENSIONS FOR THAT PURPOSE, AND FOUND TO BE DISABLED IN THE DEGREE AND IN THE MANNER SPECIFIED HEREIN. EVERY ANNUITANT RETIRED UNDER THE PROVISIONS OF THIS SECTION, UNLESS THE DISABILITY FOR WHICH RETIRED BE PERMANENT IN CHARACTER, SHALL AT THE EXPIRATION OF ONE YEAR FROM THE DATE OF SUCH RETIREMENT AND ANNUALLY THEREAFTER, UNTIL REACHING RETIREMENT AGE AS DEFINED IN SECTION 1 HEREOF, BE EXAMINED UNDER THE DIRECTION OF THE COMMISSIONER OF PENSIONS BY A MEDICAL OFFICER OF THE UNITED STATES, OR A DULY QUALIFIED PHYSICIAN OR SURGEON, OR BOARD OF PHYSICIANS OR SURGEONS DESIGNATED BY THE COMMISSIONER OF PENSIONS FOR THAT PURPOSE, IN ORDER TO ASCERTAIN THE NATURE AND DEGREE OF THE ANNUITANT'S DISABILITY, IF ANY. IF AN ANNUITANT SHALL RECOVER BEFORE REACHING RETIREMENT AGE AND BE RESTORED TO AN EARNING CAPACITY WHICH WOULD PERMIT HIM TO BE APPOINTED TO SOME APPROPRIATE POSITION FAIRLY COMPARABLE IN COMPENSATION TO THE POSITION OCCUPIED AT THE TIME OF RETIREMENT, PAYMENT OF THE ANNUITY SHALL BE CONTINUED TEMPORARILY TO AFFORD THE ANNUITANT OPPORTUNITY TO SEEK SUCH AVAILABLE POSITION, BUT NOT IN ANY CASE EXCEEDING NINETY DAYS FROM THE DATE OF THE MEDICAL EXAMINATION SHOWING SUCH RECOVERY. SHOULD THE ANNUITANT FAIL TO APPEAR FOR EXAMINATION, AS REQUIRED UNDER THIS SECTION, PAYMENT OF THE ANNUITY SHALL BE SUSPENDED UNTIL CONTINUANCE OF THE DISABILITY SHALL HAVE BEEN SATISFACTORILY ESTABLISHED. THE COMMISSIONER OF PENSIONS MAY ORDER OR DIRECT AT ANY TIME SUCH MEDICAL OR OTHER EXAMINATION AS HE SHALL DEEM NECESSARY TO DETERMINE THE FACTS RELATIVE TO THE NATURE AND DEGREE OF DISABILITY OF ANY EMPLOYEE RETIRED ON AN ANNUITY UNDER THIS SECTION.

IN ALL CASES WHERE THE ANNUITY IS DISCONTINUED UNDER THE PROVISIONS OF THIS SECTION BEFORE THE ANNUITANT HAS RECEIVED A SUM EQUAL TO THE TOTAL AMOUNT OF HIS CONTRIBUTIONS WITH ACCRUED INTEREST, THE DIFFERENCE, UNLESS HE SHALL BECOME REEMPLOYED IN A POSITION WITHIN THE PURVIEW OF THIS ACT, SHALL BE PAID TO THE RETIRED EMPLOYEE, AS PROVIDED IN SECTION 12 HEREOF, UPON APPLICATION THEREFOR IN SUCH FORM AND MANNER AS THE COMPTROLLER GENERAL MAY DIRECT. IN CASE OF REEMPLOYMENT IN A POSITION WITHIN THE PURVIEW OF THIS ACT THE AMOUNT SO REFUNDED SHALL BE REDEPOSITED AS PROVIDED IN SECTION 12 HEREOF.

IT WILL BE OBSERVED THE ACT SPECIFICALLY RECOGNIZES AND PROVIDES FOR CIVIL AND MILITARY RETIREMENTS OF THE SAME PERSON, BUT PROVIDES IF THE PERSON IS RETIRED IN THE MILITARY SERVICE, THE MILITARY SERVICE ON WHICH HIS MILITARY RETIREMENT IS BASED MAY NOT BE INCLUDED IN THE ACCREDITED SERVICE FOR HIS CIVIL RETIREMENT. ANSWERING YOUR FIRST QUESTION, ANY CIVIL-SERVICE EMPLOYEE WHO HAS BEEN RETIRED FOR AGE AND WHO NOW APPLIES FOR AND IS FOUND TO BE ENTITLED TO THE BENEFITS OF THE ACT OF MAY 24, 1928, SHOULD BE RETIRED IN ACCORD WITH THAT ACT, BUT A REPORT OF THE FACT OF HIS RETIREMENT SHOULD BE MADE TO THE COMMISSIONER OF PENSIONS SHOWING THE EFFECTIVE DATE OF HIS MILITARY RETIREMENT, AND HIS WORLD WAR MILITARY SERVICE.

SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT PROVIDES FOR CIVIL SERVICE RETIREMENT FOR PHYSICAL DISABILITY AFTER 15 YEARS' SERVICE. IN THIS ACCREDITED SERVICE MILITARY SERVICE ON WHICH MILITARY RETIREMENT IS BASED MAY NOT BE INCLUDED.

ANSWERING YOUR SECOND AND THIRD QUESTIONS, ANY FORMER OFFICER WITHIN THE ACT OF MAY 24, 1928, WHO HAS BEEN RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT FOR PHYSICAL DISABILITY, WHETHER THE SAME OR A DIFFERENT DISABILITY, IS ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 24, 1928, BUT REPORT OF SUCH RETIREMENT SHOULD BE MADE TO THE COMMISSIONER OF PENSIONS WITH HIS WORLD WAR MILITARY SERVICE.