A-27972, JULY 25, 1929, 9 COMP. GEN. 27

A-27972: Jul 25, 1929

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PAY - RETIRED - EMERGENCY OFFICER - OFFSET AGAINST COMPENSATION APPORTIONED TO DEPENDENTS WHERE A DISABLED EMERGENCY OFFICER OF THE WORLD WAR IS PLACED ON THE RETIRED LIST CREATED BY THE ACT OF MAY 24. DURING THE PERIOD BETWEEN THE DATE OF RECEIPT OF THE APPLICATION AND THE DATE OF RETIREMENT WILL BE TREATED AS PARTIAL PAYMENTS OF RETIRED PAY IN THE ADJUSTMENT OF THE RETIRED PAY ACCOUNT. ARE PROPERLY FOR OFFSET AGAINST THE ACCRUED RETIRED PAY. IN THE ADJUSTMENT OF THE ACCOUNTS OF A FORMER EMERGENCY OFFICER WHO IS RETIRED PURSUANT TO THE ACT OF MAY 24. YOUR LETTER IS IN PART AS FOLLOWS: ONE ALBERT H. WHICH APPLICATION WAS RECEIVED IN THE BUREAU ON JUNE 9. HE WAS RETIRED WITH PAY. CLAIMANT'S CONDITION WAS RATED AS TEMPORARY TOTAL AND HE WAS ENTITLED TO DISABILITY COMPENSATION AT THE RATE OF $95.00 PER MONTH FOR SELF.

A-27972, JULY 25, 1929, 9 COMP. GEN. 27

PAY - RETIRED - EMERGENCY OFFICER - OFFSET AGAINST COMPENSATION APPORTIONED TO DEPENDENTS WHERE A DISABLED EMERGENCY OFFICER OF THE WORLD WAR IS PLACED ON THE RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, 45 STAT. 735, RETROACTIVELY TO THE DATE OF RECEIPT OF HIS APPLICATION THEREFOR IN THE VETERANS' BUREAU, PAYMENTS OF COMPENSATION UNDER THE WORLD WAR VETERANS' ACT AS AMENDED, 43 STAT. 607, DURING THE PERIOD BETWEEN THE DATE OF RECEIPT OF THE APPLICATION AND THE DATE OF RETIREMENT WILL BE TREATED AS PARTIAL PAYMENTS OF RETIRED PAY IN THE ADJUSTMENT OF THE RETIRED PAY ACCOUNT, AND ALL PAYMENTS OF COMPENSATION, WHETHER PAID DIRECTLY TO THE VETERAN OR ON HIS ACCOUNT AND APPORTIONED BY THE DIRECTOR OF THE VETERANS' BUREAU TO HIS DEPENDENTS, ARE PROPERLY FOR OFFSET AGAINST THE ACCRUED RETIRED PAY.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JULY 25, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 9, 1929, SUBMITTING FOR DECISION THE QUESTION WHETHER, IN THE ADJUSTMENT OF THE ACCOUNTS OF A FORMER EMERGENCY OFFICER WHO IS RETIRED PURSUANT TO THE ACT OF MAY 24, 1928, 45 STAT. 735, RETROACTIVELY TO THE DATE OF RECEIPT OF HIS APPLICATION, THE AMOUNT OF COMPENSATION APPORTIONED TO HIS WIFE AND CHILD SHOULD BE SET OFF AGAINST THE RETIRED PAY. YOUR LETTER IS IN PART AS FOLLOWS:

ONE ALBERT H. STELZNER, C-454523, FILED APPLICATION FOR BENEFITS UNDER THE DISABLED EMERGENCY OFFICERS' RETIREMENT ACT, WHICH APPLICATION WAS RECEIVED IN THE BUREAU ON JUNE 9, 1928, AND IN MARCH 1929, HE WAS RETIRED WITH PAY, EFFECTIVE AS OF THE DATE OF RECEIPT OF HIS APPLICATION, AS EXPRESSLY PROVIDED BY THAT ACT. AT THE TIME OF THE FILING OF HIS APPLICATION, CLAIMANT'S CONDITION WAS RATED AS TEMPORARY TOTAL AND HE WAS ENTITLED TO DISABILITY COMPENSATION AT THE RATE OF $95.00 PER MONTH FOR SELF, WIFE AND MINOR CHILD UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED. THE AWARD HAD BEEN APPORTIONED EFFECTIVE OCTOBER 9, 1927, UNDER WHICH APPORTIONMENT THE CLAIMANT RECEIVED $57.00 MONTHLY, AND $38.00 PER MONTH WAS PAID DIRECT TO THE WIFE FOR HERSELF AND MINOR CHILD. DURING THE PERIOD BETWEEN THE RECEIPT OF THE APPLICATION FOR RETIREMENT AND THE GRANTING OF RETIREMENT WITH PAY, DISABILITY COMPENSATION IN THE SUM OF $924.67 WAS PAID, OF WHICH $554.80 WAS PAID TO THE VETERAN AND $369.87 WAS PAID TO THE WIFE UNDER THE APPORTIONMENT ABOVE MENTIONED.

FOLLOWING THE APPROVAL OF THE RETIREMENT AWARD, THE DISABILITY COMPENSATION AWARDS WERE TERMINATED AS OF JUNE 8, 1928, AND THE AMOUNT OF RETIREMENT PAY FOUND DUE OVER THE PERIOD IN QUESTION WAS $1,137.53. THERE WAS DEDUCTED FROM THIS AMOUNT THE $924.67, REFERRED TO, AND A CHECK FOR THE BALANCE, NAMELY $212.87, WAS PAID TO THE CLAIMANT. HE HAS PROTESTED AGAINST A DEDUCTION OF THE $369.87 PAID DIRECT TO THE WIFE FOR HERSELF AND CHILD FROM THE AMOUNT DUE HIM AS RETIRED PAY UNDER THE DISABLED EMERGENCY OFFICERS' RETIREMENT ACT ON THE GROUNDS THAT THERE IS NO AUTHORITY FOR THE APPORTIONMENT OF RETIREMENT PAY UNDER THAT ACT AND THAT THE CENTRAL OFFICE OF THE U.S. VETERANS' BUREAU HAD FULL KNOWLEDGE OF THE APPORTIONMENT MADE TO HIS WIFE AS HIS MONTHLY COMPENSATION CHECKS WERE MAILED FROM CENTRAL OFFICE DURING THE TIME HIS APPLICATION FOR RETIREMENT WAS BEING CONSIDERED.

THE AUTHORITY UNDER WHICH COMPENSATION WAS APPORTIONED IN THIS CASE IS FOUND IN SECTION 202 (12) OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, (45 STAT., 967) AND IN U.S. VETERANS' BUREAU REGULATIONS NOS. 179 AND 198, SECTION 202 (12) READS AS FOLLOWS:

"WHERE THE DISABLED PERSON IS A PATIENT IN A HOSPITAL, OR WHERE FOR ANY OTHER REASON THE DISABLED PERSON AND HIS WIFE ARE NOT LIVING TOGETHER, OR WHERE THE CHILDREN ARE NOT IN THE CUSTODY OF THE DISABLED PERSON, THE AMOUNT OF THE COMPENSATION MAY BE APPORTIONED AS MAY BE PRESCRIBED BY REGULATIONS.'

THE APPORTIONMENT WAS ORIGINALLY MADE UNDER SECTION 3002-/A) OF REGULATION NO. 179, WHICH PROVIDES:

"/A)WHERE A DISABLED PERSON IS LIVING SEPARATE AND APART FROM HIS WIFE OR WHERE THE CHILDREN ARE NOT IN HIS CUSTODY AND HE IS NOT BEING MAINTAINED BY THE GOVERNMENT IN AN INSTITUTION, THE COMPENSATION PAYMENTS SHALL BE APPORTIONED AS FOLLOWS:

TABLE

PORTION

WHERE THERE IS A DISABLED PERSON AND--- FOR PORTION PORTION

DISABLED FOR FOR

PERSON WIFE CHILDREN * * *

PERCENT PERCENT PERCENT WIFE AND 1 CHILD ---- -------------------- 60 20 20

* * * * * * * THIS REGULATION WAS SUBSEQUENTLY CANCELED BY REGULATION NO. 198, WHICH LATTER REGULATION, HOWEVER, MADE NO CHANGE IN THE APPORTIONMENT OF COMPENSATION IN THE INSTANT CASE.

IT APPEARS THE BUREAU HAS DETERMINED THAT THE PROVISION FOR APPORTIONMENT OF COMPENSATION BETWEEN THE BENEFICIARY AND HIS WIFE AND CHILD, OR CHILDREN, IS NOT APPLICABLE TO PAYMENTS OF RETIRED PAY UNDER THE ACT OF MAY 24, 1928, AND IT IS BECAUSE OF THIS VIEW OF THE LAW THAT CLAIM WAS MADE FOR RETIRED PAY RETROACTIVELY TO DATE OF RECEIPT OF APPLICATION, LESS ONLY THE AMOUNT OF COMPENSATION ACTUALLY PAID TO THE BENEFICIARY, THUS REQUIRING COLLECTION FROM THE WIFE AND CHILD, OR CHILDREN, OF THE PORTION OF THE COMPENSATION APPORTIONED TO THEM AND PAID. THE CORRECTNESS OF THIS DETERMINATION IS NOT FREE FROM DOUBT. HOWEVER, AS IT IS A CONSTRUCTION FOR GUIDANCE IN THE FUTURE ADMINISTRATION OF THE LAW AND WHICH IF FOLLOWED WILL NOT AFFECT THE LEGALITY OF PAYMENTS TO BE MADE THEREUNDER, IT WILL NOT BE FURTHER QUESTIONED IN THIS CONSIDERATION.

THE TYSON-FITZGERALD ACT WAS ADDRESSED TO DISABLED EMERGENCY OFFICERS OTHERWISE WITHIN ITS TERMS WHO WERE RATED BY THE VETERANS' BUREAU NOT LESS THAN 30 PERCENT PERMANENTLY DISABLED. ALL SUCH OFFICERS UNDER THE WORLD WAR VETERANS' ACT WERE ENTITLED TO COMPENSATION. THE RETIREMENT AUTHORIZED WAS TO BE MADE EFFECTIVE FROM DATE OF RECEIPT OF THE APPLICATION IN THE VETERANS' BUREAU AND THE RETIRED PAY WAS TO BE PAID EFFECTIVE FROM THE SAME DATE AND WAS TO BE- -

* * * IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WORLD WAR VETERANS' ACT, 1924, AND AMENDMENTS THERETO, * * *.

AS HAS BEEN HERETOFORE REMARKED, THE EFFECT OF THE ACT WAS TO CONTINUE THE OFFICERS COMING WITHIN ITS TERMS AS BENEFICIARIES OF THE VETERANS' BUREAU ENTITLED TO CERTAIN RIGHTS AND PRIVILEGES AS SUCH AT LEAST TO ACCORD TO THEM THE HONORARY STATUS OF RETIRED OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS, WITH "THE SAME PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED FOR BY LAW OR REGULATIONS FOR OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY," AND TO GIVE TO THEM AN INCREASED COMPENSATION BASED UPON THEIR RANK WHEN DISCHARGED FROM THEIR COMMISSIONED SERVICE IN LIEU OF THE COMPENSATION PROVIDED BY THE WORLD WAR VETERANS' ACT AND ITS AMENDMENTS. THE ACT CONTEMPLATED NO CHANGE IN THE STATUS OR RIGHTS OF AN APPLICANT FOR ITS BENEFITS UNDER THE WORLD WAR VETERANS' ACT UNTIL IT HAD BEEN ADMINISTRATIVELY DETERMINED BY THE DIRECTOR OF THE VETERANS' BUREAU THAT THE APPLICANT WAS ENTITLED TO THE BENEFITS OF THE ACT OF 1928 AND ACTION HAD BEEN TAKEN PLACING HIM ON THE RETIRED LIST THEREIN CREATED. WHEN THAT ACTION WAS TAKEN THE APPLICANT BECAME ENTITLED, RETROACTIVELY TO THE DATE OF RECEIPT OF HIS APPLICATION IN THE UNITED STATES VETERANS' BUREAU, TO THE RETIRED PAY PROVIDED, AND SUCH PAY BEING IN LIEU OF COMPENSATION UNDER THE WORLD WAR VETERANS' ACT THE AMOUNT PAID TO OR ON BEHALF OF THE FORMER OFFICER AS COMPENSATION MUST BE CONSIDERED AND TREATED AS A PARTIAL PAYMENT OF RETIRED PAY UNDER THE STATUS CREATED BY THE ACT OF 1928, RETROACTIVELY TO THE DATE OF RECEIPT OF APPLICATION IN THE VETERANS' BUREAU. THERE IS NO SUGGESTION IN THE LANGUAGE OR PURPOSE OF THE ACT OF 1928 THAT IN PROVIDING GREATER BENEFITS FOR DISABLED EMERGENCY OFFICERS COMING WITHIN ITS TERMS SUCH PERSONS SHOULD BE DEPRIVED OF THE BENEFITS ACCRUING TO THEM UNDER THE LAWS THERETOFORE APPLICABLE TO THEM PENDING DETERMINATION OF THEIR RIGHTS TO RETIREMENT UNDER THE ACT OF 1928. CERTAINLY IT WAS NOT CONTEMPLATED THAT DISABLED VETERANS OR THEIR DEPENDENTS SHOULD BE DEPRIVED OF THE MONTHLY COMPENSATION BEING PAID THEM AND WITH RESPECT TO WHICH, IN MOST CASES, THEIR LIVING ARRANGEMENTS WERE MADE PENDING DETERMINATION OF THE RIGHT OF THE FORMER OFFICER TO THE BENEFITS OF THE ACT OF 1928.

THE ONLY QUESTION THEN, IS WHETHER IN THE ADJUSTMENT OF HIS RETIRED PAY ACCOUNT THE OFFICER IS CHARGEABLE WITH THE AMOUNT OF COMPENSATION THAT MAY HAVE BEEN PAID, UNDER AUTHORITY OF THE STATUTE QUOTED BY YOU, TO HIS DEPENDENTS. SECTION 200 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 615, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 793, PROVIDES:

FOR DEATH OR DISABILITY RESULTING FROM PERSONAL INJURY SUFFERED OR DISEASE CONTRACTED IN THE MILITARY OR NAVAL SERVICE ON OR AFTER APRIL 6, 1917, AND BEFORE JULY 2, 1921, * * * BY ANY COMMISSIONED OFFICER OR ENLISTED MAN, * * * WHEN EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT, THE UNITED STATES SHALL PAY TO SUCH COMMISSIONED OFFICER OR ENLISTED MAN, * * * OR, IN THE DISCRETION OF THE DIRECTOR, SEPARATELY TO HIS OR HER DEPENDENTS, COMPENSATION AS HEREINAFTER PROVIDED; * * *.

SECTION 202, 43 STAT. 618, PROVIDES IN PART:

THAT IF DISABILITY RESULTS FROM INJURY---

(1) IF AND WHILE THE DISABILITY IS RATED AS TOTAL AND TEMPORARY, THE MONTHLY COMPENSATION SHALL BE THE FOLLOWING AMOUNTS, PAYABLE MONTHLY OR SEMIMONTHLY AS THE DIRECTOR MAY PRESCRIBE:

(A) IF THE DISABLED PERSON HAS NEITHER WIFE NOR CHILD LIVING, $80.

(B) IF HE HAS A WIFE BUT NO CHILD LIVING, $90.

(C) IF HE HAS A WIFE AND ONE CHILD LIVING, $95, AND $5 FOR EACH ADDITIONAL CHILD.

THIS SECTION ALSO CONTAINS PARAGRAPH 12 QUOTED IN YOUR SUBMISSION, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 967. SECTION 212 OF THE ACT, AS AMENDED BY 44 STAT. 797 AND 45 STAT. 967, 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. * * *

THESE QUOTATIONS DEMONSTRATE WITHOUT QUESTION THAT FOR DISABILITY THERE IS BUT ONE PAYMENT, THE AMOUNT DEPENDENT UPON THE PERCENTAGE OF DISABILITY AND THE EXISTENCE OF WIFE AND CHILD, OR CHILDREN. WHERE THE BENEFICIARY IS RESIDING WITH HIS WIFE AND CHILD, OR CHILDREN, PAYMENTS TO HIM OF THE TOTAL COMPENSATION ACCRUING BECAUSE OF HIS DISABILITY RATING ARE PROPERLY FOR OFFSET IN THE ADJUSTMENT OF HIS RETIRED PAY ACCOUNTS WHEN RETIRED RETROACTIVELY. WHAT BASIS IS THERE FOR CONCLUDING THAT HIS RIGHTS ARE ANY GREATER OR DIFFERENT BECAUSE HE IS LIVING SEPARATELY AND APART FROM HIS FAMILY, MAKING NECESSARY THE EXERCISE BY THE DIRECTOR OF THE VETERANS' BUREAU OF HIS AUTHORITY TO APPORTION THE COMPENSATION ACCRUING TO THE DISABLED VETERAN BETWEEN HIM AND HIS DEPENDENTS? PRIMARILY THE COMPENSATION IS PAYABLE TO HIM; BECAUSE OF CIRCUMSTANCES OVER WHICH THE UNITED STATES HAS NO CONTROL IT IS NECESSARY TO APPORTION THE COMPENSATION BETWEEN THE VETERAN AND HIS DEPENDENTS, GIVES HIM NO RIGHT TO CLAIM IT IS NOT COMPENSATION PAID TO OR FOR HIM.

IN THE ADJUSTMENT OF THE RETIRED PAY FOR THE RETROACTIVE PERIOD A DISABLED VETERAN WHO IS LIVING APART FROM HIS FAMILY AND WHOSE COMPENSATION HAS BEEN APPORTIONED BETWEEN THE VETERAN AND HIS DEPENDENTS HAS NO GREATER OR DIFFERENT RIGHTS THAN A DISABLED VETERAN WHO IS RESIDING WITH AND MAINTAINING HIS FAMILY. YOU ARE ACCORDINGLY INFORMED THAT IN THE ADJUSTMENT OF THE RETIRED PAY ACCOUNT FOR THE RETROACTIVE PERIOD TO DATE OF RECEIPT OF APPLICATION IN THE BUREAU OF DISABLED EMERGENCY OFFICERS ALL COMPENSATION UNDER THE WORLD WAR VETERANS' ACT PAID TO THEM, OR ON THEIR ACCOUNT APPORTIONED TO THEIR DEPENDENTS UNDER AUTHORITY OF LAW, IS PROPERLY FOR OFFSET AGAINST THE ACCRUED RETIRED PAY.