A-27403, JULY 26, 1929, 9 COMP. GEN. 31

A-27403: Jul 26, 1929

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PAY - RETIRED - WORLD WAR EMERGENCY OFFICERS A DISABLED EMERGENCY OFFICER OF THE WORLD WAR WHO ON DISCHARGE FROM HIS WORLD WAR COMMISSIONED SERVICE WAS RATED PERMANENT PARTIAL DISABLED OVER 30 PERCENTUM. WHOSE RATING WAS. WHO WAS THEREAFTER AND SUBSEQUENT TO MAY 24. IS NOT ENTITLED TO RETIRED PAY UNDER THE ACT. 1929: I HAVE YOUR LETTER OF JULY 3. A FORMER EMERGENCY OFFICER WHO APPLIED FOR AND WAS RETIRED BY THE UNITED STATES VETERANS' BUREAU UNDER THE ACT OF MAY 24. TO THE DISBURSING CLERK OF THE UNITED STATES VETERANS' BUREAU THAT NO PAYMENT OF RETIRED PAY WAS AUTHORIZED. IS NOT AN ERRONEOUS RATING. INDICATE THAT THE RATING MUST HAVE BEEN MADE UNDER THE WORLD WAR VETERANS' ACT OF JUNE 7.

A-27403, JULY 26, 1929, 9 COMP. GEN. 31

PAY - RETIRED - WORLD WAR EMERGENCY OFFICERS A DISABLED EMERGENCY OFFICER OF THE WORLD WAR WHO ON DISCHARGE FROM HIS WORLD WAR COMMISSIONED SERVICE WAS RATED PERMANENT PARTIAL DISABLED OVER 30 PERCENTUM, WHOSE RATING WAS, PRIOR TO MAY 24, 1928, REDUCED TO PERMANENT PARTIAL 10 PERCENTUM, AND WHO WAS THEREAFTER AND SUBSEQUENT TO MAY 24, 1928, RATED PERMANENT PARTIAL DISABLED 20 PERCENTUM AND PLACED ON THE RETIRED LIST WITH PAY CREATED BY THE ACT OF MAY 24, 1928, 45 STAT. 735, IS NOT ENTITLED TO RETIRED PAY UNDER THE ACT, THE REQUISITES OF THE STATUTE NOT HAVING BEEN MET TO ENTITLE TO RETIREMENT WITH PAY.

COMPTROLLER GENERAL MCCARL TO HON. JOHN C. SCHAFER, M.C., JULY 26, 1929:

I HAVE YOUR LETTER OF JULY 3, 1929, IN FURTHER REFERENCE TO THE CLAIM OF ARNOLD A. GRITZMACHER, A FORMER EMERGENCY OFFICER WHO APPLIED FOR AND WAS RETIRED BY THE UNITED STATES VETERANS' BUREAU UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, AND IN WHOSE CASE THIS OFFICE HELD BY DECISION OF JUNE 10, 1929, TO THE DISBURSING CLERK OF THE UNITED STATES VETERANS' BUREAU THAT NO PAYMENT OF RETIRED PAY WAS AUTHORIZED. YOU STATE:

THE EMERGENCY OFFICERS' RETIREMENT ACT DOES NOT, DIRECTLY OR INDIRECTLY, PROVIDE THAT THE RATING MUST BE MADE UNDER THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, OR ANY OTHER SPECIFIC ACT. THE QUOTATION OF MR. FITZGERALD APPEARING ON THE TOP OF PAGE FIVE (5) OF YOUR LETTER OF JUNE 10, 1929, HAS NO BEARING ON YOUR INTERPRETATION THAT THE RATING MUST BE UNDER THE ACT OF JUNE 7, 1924. MR. FITZGERALD'S QUOTED STATEMENT RELATES TO AN ERRONEOUS RATING AND CLEARLY A LEGAL RATING MADE PRIOR TO THE ENACTMENT OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, IS NOT AN ERRONEOUS RATING.

THE QUOTATION OF MR. TYSONS' REMARKS APPEARING ON PAGE FIVE (5) OF YOUR LETTER OF JUNE 10, 1929, CERTAINLY DOES NOT, DIRECTLY OR INDIRECTLY, INDICATE THAT THE RATING MUST HAVE BEEN MADE UNDER THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924.

THE PORTION OF THE LETTER TO WHICH YOUR REMARKS ARE ADDRESSED IS AS FOLLOWS:

* * * IN RESPONSE TO A SUGGESTION BY A MEMBER THAT THE BILL WOULD MAKE POSSIBLE THE RETIREMENT OF MEN WHO ONCE HAD A 30 PERCENT RATING, BUT WHO WERE THEN LESS THAN 30 PERCENT DISABLED, MR. FITZGERALD, THE MEMBER IN CHARGE OF THE BILL ON THE FLOOR OF THE HOUSE, CONG.REC. VOL. 69, PT. 8, P. 8457, MAY 11, 1928, 70TH CONG., 1ST SESS., STATED--

"* * * IF A MAN IS NOT RATED NOW AS HAVING A 30 PERCENT PERMANENT DISABILITY, ALTHOUGH HE HAD BEEN ONCE SO RATED ERRONEOUSLY, HE WOULD NOT GET RETIREMENT, THOUGH MY GOOD FRIEND SO MISAPPREHENDS IT. * * *"

AND MR. TYSON, COAUTHOR OF THE BILL AND IN CHARGE THEREOF ON THE FLOOR OF THE SENATE, SEE CONG.REC. VOL. 69, PT. 5, P. 4687, MARCH 4, 1928, 70TH CONG., 1ST SESS., SAID---

"* * * AN OFFICER IS TO BE RETIRED WHO HAS NOT LESS THAN 30 PERCENT OF PERMANENT DISABILITY ACCORDING TO THE RATINGS OF THE UNITED STATES VETERANS' BUREAU. OFFICERS WHO ARE FOUND TO BE BELOW 30 PERCENT ARE NOT RETIRED UNDER THE PROVISIONS OF THE BILL.'

FOR THE PURPOSE OF PAYMENT THIS OFFICE HAS CONSTRUED THE ACT AS REQUIRING A RATING OF 30 PERCENT OR MORE DISABLED IN EFFECT MAY 24, 1928, OR ACCORDED THEREAFTER AND PRIOR TO MAY 25, 1929. AS IT APPEARS THAT CAPTAIN ARNOLD A. GRITZMACHER WAS RATED 10 PERCENT PERMANENT PARTIAL DISABLED NOVEMBER 6, 1923, TO DECEMBER 18, 1928, AND 20 PERCENT PERMANENT PARTIAL DECEMBER 19, 1928, TO THE PRESENT TIME, HE IS NOT WITHIN THE ACT, AND THIS OFFICE MAY NOT PASS PAYMENTS TO HIM OF RETIRED PAY, THE REQUISITES PRESCRIBED BY LAW NOT EXISTING IN HIS CASE. * * *

THE DISABILITY RATINGS OF CAPTAIN GRITZMACHER AS REPORTED BY THE VETERANS' BUREAU ARE AS FOLLOWS.

PERMANENT PARTIAL, 33 1/3 PERCENT, FROM DATE OF DISCHARGE TO FEBRUARY 19, 1923.

TEMPORARY PARTIAL, 10 PERCENT, FROM FEBRUARY 19 TO NOVEMBER 5, 1923.

PERMANENT PARTIAL, 10 PERCENT, FROM NOVEMBER 6 TO DECEMBER 18, 1928.

PERMANENT PARTIAL, 20 PERCENT, DECEMBER 19, 1928 (LAST RATING).

IN MY FORMER LETTER I SUGGESTED THE ACTION OF THE VETERANS' BUREAU IN THIS CASE WAS APPARENTLY BASED ON OPINIONS OF THE ATTORNEY GENERAL, BUT ON REEXAMINATION OF THE CASE AND THE OPINIONS OF THE ATTORNEY GENERAL, TO WHICH REFERENCE WAS MADE, IT IS FOUND THAT THE OPINION DOES NOT SUPPORT THE ACTION TAKEN BY THE VETERANS' BUREAU. IN THE OPINION OF JANUARY 18, 1929, 35 OP.ATTY.GEN. 506, 508, THE ATTORNEY GENERAL USED THE FOLLOWING LANGUAGE:

WHEN THE EMERGENCY OFFICERS' RETIREMENT ACT WAS ENACTED ON MAY 24, 1928, THE VETERANS' BUREAU WAS OPERATING UNDER THE WORLD WAR VETERANS' ACT, AS AMENDED. HENCE THE LANGUAGE "RATED IN ACCORDANCE WITH LAW" REFERS TO THE WORLD WAR VETERANS' ACT, AS AMENDED, RATING SCHEDULES, REGULATIONS, AND GENERAL ORDERS PURSUANT THERETO, NOT INCONSISTENT WITH THE PROVISIONS OF THE EMERGENCY OFFICERS' RETIREMENT ACT. IT MAY ALSO HAVE REFERENCE TO THE WAR RISK INSURANCE ACT. FOR EXAMPLE, IF PRIOR TO JUNE 7, 1924 (THE DATE OF THE WORLD WAR VETERANS' ACT), A DISABLED OFFICER HAD BEEN RATED CORRECTLY, UNDER THE WAR RISK INSURANCE ACT, RATING SCHEDULES, REGULATIONS, AND GENERAL ORDERS IN EFFECT AT THE TIME, AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY, AND SUCH OFFICER HAS NEVER BEEN REEXAMINED AND RERATED UNDER THE WORLD WAR VETERANS' ACT, HE IS CLEARLY ONE OF THOSE WITHIN THE MEANING OF THE LANGUAGE "WHO HAVE BEEN * * * RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY.'

YOU WILL OBSERVE THIS IS SUBSTANTIALLY THE CONCLUSION OF THIS OFFICE STATED ABOVE IN THE FIRST SENTENCE OF THE LAST PARAGRAPH OF MY LETTER TO YOU. IN THIS OPINION THE ATTORNEY GENERAL, BY A FOOTNOTE, PAGES 514 AND 515, SUPPORTED HIS CONCLUSION BY THE FOLLOWING OBSERVATIONS AND QUOTATIONS:

* * * WHILE THIS LEGISLATION WAS PENDING CONGRESS FROM TIME TO TIME CALLED UPON THE DIRECTOR OF THE VETERANS' BUREAU TO SUBMIT LISTS OF ALL DISABLED EMERGENCY OFFICERS WHO WERE RATED AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY. THE LISTS FURNISHED CONTAIN THE NAMES OF ALL EMERGENCY OFFICERS WITHIN THE FIVE CLASSES SET FORTH IN THE DIRECTOR'S LETTER OF NOVEMBER 3, 1928.

ON MARCH 14, 1928, SENATOR TYSON, COAUTHOR OF SENATE BILL 777, IN EXPLAINING ITS PROVISIONS TO THE SENATE, SAID (CONG.REC., VOL. 69, P. 4687):

"I WILL STATE FOR THE INFORMATION OF THE SENATE THAT A LIST OF THOSE WHO WILL BE RETIRED UNDER THE TERMS OF THE BILL HAS BEEN PREPARED BY THE UNITED STATES VETERANS' BUREAU. INCLUDING ALL THE OFFICERS OF THE ARMY AND OF THE NAVY AND OF THE MARINE CORPS WHO HAVE NOW BEEN FOUND TO BE 30 PERCENT PERMANENTLY DISABLED THERE WILL BE 3,251, AND THE ACTUAL EXPENSE TO THE GOVERNMENT, IF THE BILL IS ENACTED INTO LAW, WILL BE $4,985,100 ANNUALLY. WE ARE NOW PAYING OUT IN ANNUAL COMPENSATION TO THESE OFFICERS $2,841,960. DEDUCTING THAT FROM THE TOTAL UNDER THE BILL WOULD LEAVE $2,143,140 ANNUAL INCREASED COST OF RETIREMENT.'

ON MARCH 30, 1928, SENATOR BINGHAM READ INTO THE CONGRESSIONAL RECORD A LETTER FROM THE DIRECTOR OF THE VETERANS' BUREAU DATED MARCH 23, 1928, AND ACCOMPANYING ESTIMATE OF THE COST OF THE BILL. THE ESTIMATE BEARS THE FOLLOWING HEADING:

"EMERGENCY OFFICERS RATED ON A PERMANENT BASIS AT 30 PERCENT OR MORE, SHOWING AMOUNT OF COMPENSATION AND COST OF RETIREMENT DECEMBER 31, 1927.'

IN THE LETTER TO SENATOR REED OF PENNSYLVANIA, CHAIRMAN OF THE COMMITTEE ON MILITARY AFFAIRS, DATED JANUARY 19, 1928, WHICH WAS MADE A PART OF SENATE REPORT 115, THE DIRECTOR OF THE VETERANS' BUREAU SAID (P. 6):

"THE COMMITTEE IS ADVISED THAT ACCORDING TO A RECENT STUDY MADE IN CONNECTION WITH THIS LEGISLATION IT IS ESTIMATED THAT THERE ARE AT PRESENT 3,030 EX-EMERGENCY OFFICERS OF THE WORLD WAR WHO ARE PERMANENTLY DISABLED TO A DEGREE OF 30 PERCENT OR MORE AND WHO ARE NOW RECEIVING COMPENSATION TOTALING $216,436 MONTHLY. THE COST OF RETIRING THESE MEN AT 75 PERCENT OF THEIR PAY RATE WOULD BE $388,137.50 PER MONTH, OR $4,657,650 ANNUALLY, THE TOTAL INCREASED ANNUAL COST BEING $2,060,418. THIS STATEMENT DOES NOT INCLUDE 960 OFFICERS WHO ARE NOW DRAWING COMPENSATION OF $50 PER MONTH UNDER STATUTORY AWARDS FOR ARRESTED TUBERCULOSIS. THESE CASES, IF RERATED UNDER THE SCHEDULE OF DISABILITY RATINGS AND FOUND TO BE ACTUALLY DISABLED TO A DEGREE OF 30 PERCENT OR MORE, WOULD INCREASE THE COST APPROXIMATELY $118,931.50 PER MONTH, OR $1,427,178 PER ANNUM.'

IN AN OPINION ON THE SAME DATE THE ATTORNEY GENERAL, PAGE 519, QUOTING FROM THE SYLLABUS, HELD:

A DISABLED EMERGENCY OFFICER IS NOT ENTITLED TO THE BENEFITS OF THE EMERGENCY OFFICERS' RETIREMENT ACT OF MAY 24, 1928 (45 STAT. 735), UNLESS PRIOR TO THE PASSAGE OF THE ACT OR WITHIN ONE YEAR THEREAFTER HE HAS BEEN OR IS CORRECTLY RATED AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY; THAT IS, UNLESS ON THE DATE THE BENEFITS OF THE ACT ARE AWARDED, THE OFFICER'S PHYSICAL CONDITION SUPPORTS HIS OLD RATING OF NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY OR JUSTIFIES SUCH A RATING UNDER THE SCHEDULE OF DISABILITY RATINGS IN EFFECT AT THAT TIME.

A DISABLED EMERGENCY OFFICER WHO RECEIVED A 30 PERCENTUM PERMANENT DISABILITY OR JUSTIFIES SUCH A RATING UNDER THE SCHEDULE OF DISABILITY RATINGS IN EFFECT AT THAT TIME.

A DISABLED EMERGENCY OFFICER WHO RECEIVED A 30 PERCENTUM DISABILITY RATING PRIOR TO THE PASSAGE OF THE EMERGENCY OFFICERS' RETIREMENT ACT, BUT WHOSE RATING UNDER THE SAME SCHEDULE SINCE THE PASSAGE OF THE ACT HAS BEEN LESS THAN 10 PERCENTUM PERMANENT DISABILITY, IS NOT ENTITLED TO THE BENEFITS OF THE ACT FOR THE REASON THAT HE NEVER HAS HAD A CORRECT RATING OF 30 PERCENTUM PERMANENT DISABILITY, THE REDUCTION OF HIS RATING FROM 30 PERCENTUM PERMANENT DISABILITY TO LESS THAN 10 PERCENTUM PERMANENT DISABILITY INDICATING THAT THE FORMER RATING WAS ERRONEOUS.

YOU WILL OBSERVE THE SECOND PARAGRAPH OF THIS SYLLABUS COVERS THE CASE OF CAPTAIN GRITZMACHER AS THOUGH ADDRESSED TO IT. IN THE TEXT OF THE OPINION THE ATTORNEY GENERAL USED THE FOLLOWING LANGUAGE:

HENCE, TESTING THE LANGUAGE---

"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 SERVICE"

BY THE RULE OF CONSTRUCTION THAT CONGRESS IS PRESUMED TO USE WORDS IN THEIR KNOWN AND ACCEPTED MEANING, UNLESS THAT SENSE IS REPELLED BY THE CONTEXT, IT IS CLEAR THAT THE WORDS---

"WHO HAVE BEEN * * * RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY"

INCLUDE ONLY THOSE EMERGENCY OFFICERS WHO HAVE BEEN CORRECTLY RATED AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY PRIOR TO THE PASSAGE OF THE ACT. THOSE ARE EXCLUDED WHO, PRIOR TO THE PASSAGE OF THE ACT, HAVE BEEN RATED AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY AND SUBSEQUENTLY HAVE BEEN REDUCED IN RATING TO LESS THAN 30 PERCENTUM PERMANENT DISABILITY.

THE LEGISLATIVE HISTORY OF THE ACT CONFIRMS THIS CONCLUSION. THE MEANING OF THE LANGUAGE---

"WHO HAVE BEEN, OR MAY HEREAFTER, WITHIN ONE YEAR, BE, RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY"

WAS EXPLAINED TO THEIR RESPECTIVE HOUSES BY SENATOR TYSON AND REPRESENTATIVE FITZGERALD. THE FORMER WAS A MEMBER OF THE SENATE COMMITTEE ON MILITARY AFFAIRS, AND THE LATTER WAS A MEMBER OF THE HOUSE COMMITTEE ON WORLD WAR VETERANS' LEGISLATION AND SPONSORED THIS ACT. THESE COMMITTEES HAD CHARGE OF THE BILL S. 777, WHICH BECAME THE ACT UNDER CONSIDERATION.

IN EXPLAINING TO THE SENATE THE MEANING OF THIS LANGUAGE, THE COAUTHOR OF BILL S. 777, SENATOR TYSON, SAID (CONG.REC. VOL. 69, PT. 5, P. 4687, MARCH 14, 1928, 70TH CONG. 1ST SESS.):

"AN OFFICER IS TO BE RETIRED WHO HAS NOT LESS THAN 30 PERCENT OF PERMANENT DISABILITY ACCORDING TO THE RATINGS OF THE UNITED STATES VETERANS' BUREAU. OFFICERS WHO ARE FOUND TO BE BELOW 30 PERCENT ARE NOT RETIRED UNDER THE PROVISIONS OF THE BILL.'

THE OCCASION FOR THE EXPLANATION OF THIS LANGUAGE TO THE HOUSE BY REPRESENTATIVE FITZGERALD AROSE IN THE FOLLOWING MANNER:

MR. MILLIGAN, OF MISSOURI, MADE THE STATEMENT THAT (CONG.REC. VOL. 69, PT. 8, P. 8456, MAY 11, 1928, 70TH CONG. 1ST SESS.):

"THERE IS A PROVISION ON PAGE 1 OF THE BILL THAT INCLUDES OFFICERS WHO TO -DAY HAVE NO DISABILITY WHATEVER, OFFICERS TO-DAY WHO ARE DRAWING NO COMPENSATION FROM THE GOVERNMENT, WHO ARE RECOGNIZED AS HAVING NO COMPENSABLE DISABILITY. YET THEY ARE INCLUDED IN THIS BILL. WE FIND THAT IN LINES 6, 7, AND 8 ON PAGE 1 OF THE BILL IN THE FOLLOWING LANGUAGE: "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 AT NOT LESS THAN 30 PERCENT PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU.'

"THE WORDS "WHO HAVE BEEN" INCLUDE CASES OF OFFICERS WHO TO-DAY HAVE NO DISABILITY, BUT WHO SOME TIME SINCE THEIR DISCHARGE HAVE HAD A RATING OF 30 PERCENT PERMANENT DISABILITY. YOU INCLUDE THOSE MEN WHOM THE RECORDS SHOW HAVE RECOVERED.'

IN REPLY, MR. FITZGERALD SAID (CONG.REC. VOL. 69, PT. 8, P. 8457, MAY 11, 1928, 70TH CONG. 1ST SESS.):

"IT HAS BEEN CALLED TO MY ATTENTION BY THE GENTLEMAN FROM MISSOURI THAT THIS BILL IS SO DRAWN THAT THERE IS A CHANCE THAT A MAN WHO HAS ONCE RECEIVED A RATING OF 30 PERCENT WOULD BE ENTITLED TO ITS BENEFITS EVEN THOUGH HE HAD RECOVERED. I WISH TO SAY THAT IS A FALLACY; IT IS VERY SPECIOUS, ALTHOUGH MY GOOD FRIEND MAY HAVE JUSTIFICATION FOR PLACING THAT CONSTRUCTION UPON THE LANGUAGE OF THE BILL. WE USE YOUR KNOWLEDGE OF LEGAL PHRASES AND COMMON SENSE. IF A MAN HAS BEEN RATED PERMANENTLY DISABLED, WHAT DOES THAT MEAN? IT MEANS RATED HONESTLY, FAIRLY, AND LEGALLY AS PERMANENTLY DISABLED. IF A MISTAKE HAS BEEN MADE AND HAS BEEN CORRECTED, THE VETERANS' BUREAU WILL NEVER GRANT RETIREMENT BECAUSE OF A KNOWN MISTAKE SINCE CORRECTED. IF A MAN IS NOT RATED NOW AS HAVING A 30 PERCENT PERMANENT DISABILITY, ALTHOUGH HE HAD BEEN ONCE SO RATED ERRONEOUSLY, HE WOULD NOT GET RETIREMENT, THOUGH MY GOOD FRIEND SO MISAPPREHENDS IT. THE CHANGE, NECESSARILY, A CORRECTION, WOULD SHOW THAT THE ORIGINAL RATING WAS NOT CORRECT.'

THE FOLLOWING DISCUSSION THEN ENSUED (CONG.REC., VOL. 69, PT. 8, P. 8457, MAY 11, 1928, 70TH CONG., 1ST SESS.).

"MR. BURTNESS. WHAT ABOUT A CASE WHICH AT ONE TIME RECEIVED A PERMANENT RATING, AS AN ILLUSTRATION, OF 35 PERCENT AND THEN IT IS CUT DOWN TO 25 PERCENT PERMANENT? THE PERMANENT RATING AS SUCH REMAINS, BUT THE PERCENTAGE HAS BEEN CUT FROM A FIGURE SUFFICIENT TO COME WITHIN THIS BILL DOWN TO ONE THAT WOULD NOT PERMIT THE BILL TO OPERATE ON SUCH AN INDIVIDUAL. WOULD HE NOT UNDER THIS LANGUAGE BE INCLUDED?

"MR. ROY G. FITZGERALD. I FEAR NOT, BECAUSE THAT IS A CORRECTION. IF A MISTAKE HAS BEEN MADE AND A CORRECTION HAS BEEN MADE, I AM SURE HE COULD NOT BE INCLUDED UNDER THIS BILL. UNDER THIS BILL, IF IT BECOMES A LAW, AND UNDER THE LANGUAGE OF THIS BILL, RETIREMENT WOULD BE GIVEN ONLY AS A RESULT OF A CORRECT OR FINAL RATING OF 30 PERCENT OR MORE OF DISABILITY.

"MR. BURTNESS. IF I UNDERSTAND CORRECTLY, IT MAY NOT NECESSARILY BE A MISTAKE.'

HOWEVER, ASSUMING THAT THE PERCENTAGE OF A PERMANENT RATING MAY BE CHANGED FROM TIME TO TIME, A READING OF THE ENTIRE ACT IN THE LIGHT OF ITS LEGISLATIVE HISTORY INEVITABLY LEADS TO THE CONCLUSION THAT CONGRESS INTENDED THE WORDS--- "WHO HAVE BEEN * * * RATED IN ACCORDANCE WITH LAW" TO INCLUDE ONLY THOSE EMERGENCY OFFICERS WHO, ON THE DATE THE BENEFITS OF THE ACT ARE AWARDED TO THEM, HAVE A CORRECT RATING OF NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY; THAT IS, THEIR PHYSICAL CONDITION MUST SUPPORT THEIR OLD RATING OF NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY OR JUSTIFY SUCH A RATING UNDER THE SCHEDULE OF DISABILITY RATINGS IN EFFECT AT THAT TIME, FOR OTHERWISE AN EMERGENCY OFFICER WHO, BEFORE THE PASSAGE OF THE ACT HAD A RATING OF NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BUT WHO NOW HAS BEEN REDUCED TO A RATING OF 10 PERCENTUM PERMANENT DISABILITY OR EVEN TO NO DISABILITY AT ALL, WOULD ENJOY THE BENEFITS OF THE ACT, WHILE AN EMERGENCY OFFICER WHO NOW HAS A RATING OF 29 PERCENTUM PERMANENT DISABILITY, WOULD NOT BE ENTITLED TO ITS BENEFITS. IT IS INCONCEIVABLE THAT CONGRESS INTENDED THE ACT TO HAVE SUCH EFFECT AND ITS PURPOSE PRECLUDES ANY SUCH CONCLUSION. IT WAS ENACTED TO ENABLE EMERGENCY OFFICERS WHO ARE NOW RATED AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY TO SUPPORT THEMSELVES AND THEIR FAMILIES WHICH THEY ARE UNABLE TO DO BECAUSE OF REDUCED EARNING POWER RESULTING FROM THEIR DISABILITIES. CONGRESS UNQUESTIONABLY DID NOT INTEND TO GIVE A BONUS OF 75 PERCENTUM OF HIS PAY AT THE TIME HE WAS DISCHARGED FROM THE SERVICE, TO AN EMERGENCY OFFICER WHO NOW HAS NO DISABILITY WHATEVER SIMPLY BECAUSE HE ONCE WAS GIVEN A 30 PERCENTUM PERMANENT DISABILITY RATING.

IN THE FINAL ANALYSIS, CONGRESS INTENDED THAT NOTHING LESS THAN A CORRECT RATING OF AT LEAST 30 PERCENTUM PERMANENT DISABILITY SHOULD FORM THE BASIS FOR CONFERRING THE BENEFITS OF THE ACT; THAT IS, THAT ON THE DATE THE BENEFITS OF THE ACT ARE AWARDED THE OFFICER'S PHYSICAL CONDITION MUST SUPPORT HIS OLD RATING OF NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY OR JUSTIFY SUCH A RATING UNDER THE SCHEDULE OF DISABILITY RATINGS IN EFFECT AT THAT TIME.

YOU WILL OBSERVE THAT CAPTAIN GRITZMACHER NOT HAVING A 30 PERCENT PERMANENT DISABILITY RATING ON MAY 24, 1928, AND NOT HAVING BEEN ACCORDED SUCH A RATING BY THE VETERANS' BUREAU SUBSEQUENT TO THAT DATE, THIS OFFICE AND THE ATTORNEY GENERAL ARE IN ENTIRE AGREEMENT THERE IS NO AUTHORITY IN THE LAW TO ACCORD HIM THE BENEFITS OF THE ACT AND THAT A RATING OF 30 PERCENT OR MORE DISABILITY WHICH WAS SUBSEQUENTLY REDUCED AND CONTINUED AT LESS THAN 30 PERCENT IS CONCLUSIVELY ERRONEOUS AND DOES NOT ENTITLE AN OFFICER TO RETIREMENT.

I HAVE SHOWN, I BELIEVE, THAT THE ACTION OF THIS OFFICE IN CAPTAIN GRITZMACHER'S CASE WAS SUPPORTED NOT ONLY BY THE DECISION OF THIS OFFICE BUT BY THE OPINIONS OF THE ATTORNEY GENERAL. WITH RESPECT TO YOUR SUGGESTION THAT THE ACT DOES NOT REQUIRE A RATING UNDER THE SCHEDULE OF RATINGS REQUIRED TO BE ESTABLISHED BY THE ACT OF JUNE 7, 1924, THE VIEWS OF THIS OFFICE, TO WHICH I ASSURE YOU I GAVE MY CAREFUL PERSONAL ATTENTION IN COLLABORATION WITH THE ASSISTANT COMPTROLLER GENERAL, THE GENERAL COUNSEL AND THE ASSISTANT GENERAL COUNSEL HANDLING THE MATTER, THAT THE ACT FAIRLY CONSTRUED DOES REQUIRE SUCH A RATING IF ALL FORMER OFFICERS DISABLED ARE TO BE PLACED ON A BASIS OF EQUALITY. IN THIS RESPECT THERE IS A DIFFERENCE OF OPINION BETWEEN THIS OFFICE AND THE ATTORNEY GENERAL, BUT AS A PRACTICAL MATTER THIS APPARENT DIFFERENCE IS NOT SUBSTANTIAL AS THE VETERANS' BUREAU IS CHARGED WITH THE DUTY OF RATING DISABLED VETERANS, AND WHERE IT HAS, UNDER THE SCHEDULE OF RATINGS, AND THE EXTENSIONS THEREOF, ADOPTED UNDER THE ACT OF 1924, CONTINUED A RATING ACCORDED UNDER THE LAWS AND RATING SCHEDULES IN EFFECT PRIOR TO JUNE 7, 1924, THIS OFFICE HAS ACCEPTED SUCH RATINGS AS A COMPLIANCE WITH THE ACT OF MAY 24, 1928.

I TRUST I HAVE MADE CLEAR TO YOU THE POSITION OF THIS OFFICE IN THE MATTER.