A-28583, SEPTEMBER 27, 1929, 9 COMP. GEN. 142

A-28583: Sep 27, 1929

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VETERANS' BUREAU - DISABILITY COMPENSATION - RIGHTS OF HUSBAND AND WIFE WHO ARE BOTH VETERANS A HUSBAND AND WIFE WHO ARE BOTH VETERANS OF THE WORLD WAR AND SUFFERING WITH A COMPENSABLE DISABILITY ARE EACH ENTITLED TO DISABILITY COMPENSATION IN THEIR OWN RIGHT. ALL OF WHICH IS PAYABLE DURING PERIODS OF SEPARATION OF HUSBAND AND WIFE AND PRIOR TO ACTUAL DIVORCE. TO THE WIFE DURING PERIODS OF SEPARATION IS FOR REGULATION BY THE DIRECTOR OF THE VETERANS' BUREAU. IS DRAWING COMPENSATION ON A TEMPORARY PARTIAL RATING AND HIS WIFE. C-366329 IS ALSO DRAWING COMPENSATION IN HER OWN RIGHT ON A TEMPORARY PARTIAL BASIS. THERE IS ONE CHILD OF THIS MARRIAGE. WHO IS NOW IN IN THE CUSTODY OF ITS MOTHER.

A-28583, SEPTEMBER 27, 1929, 9 COMP. GEN. 142

VETERANS' BUREAU - DISABILITY COMPENSATION - RIGHTS OF HUSBAND AND WIFE WHO ARE BOTH VETERANS A HUSBAND AND WIFE WHO ARE BOTH VETERANS OF THE WORLD WAR AND SUFFERING WITH A COMPENSABLE DISABILITY ARE EACH ENTITLED TO DISABILITY COMPENSATION IN THEIR OWN RIGHT, INCLUDING THE AUTHORIZED ADDITIONAL ALLOWANCE FOR THE SAME CHILD, AND IN THE CASE OF THE HUSBAND, INCLUDING THE AUTHORIZED ADDITIONAL ALLOWANCE FOR A WIFE, AND IN THE CASE OF THE WIFE, INCLUDING THE AUTHORIZED ADDITIONAL ALLOWANCE FOR A DEPENDENT HUSBAND, ALL OF WHICH IS PAYABLE DURING PERIODS OF SEPARATION OF HUSBAND AND WIFE AND PRIOR TO ACTUAL DIVORCE. THE MATTER OF APPORTIONMENT OF THE HUSBAND'S COMPENSATION, INCLUDING THE ADDITIONAL AMOUNT RECEIVED FOR A CHILD, TO THE WIFE DURING PERIODS OF SEPARATION IS FOR REGULATION BY THE DIRECTOR OF THE VETERANS' BUREAU.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, SEPTEMBER 27, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 30, 1929, SUBMITTING THE FOLLOWING QUESTIONS FOR DECISION:

PAUL LEE NEILL, C-1041494, IS DRAWING COMPENSATION ON A TEMPORARY PARTIAL RATING AND HIS WIFE, ALICE R. DONNELLY NEILL, C-366329 IS ALSO DRAWING COMPENSATION IN HER OWN RIGHT ON A TEMPORARY PARTIAL BASIS. THERE IS ONE CHILD OF THIS MARRIAGE, BORN JANUARY 8, 1925, WHO IS NOW IN IN THE CUSTODY OF ITS MOTHER, THE PARENTS HAVING BEEN SEPARATED ON JUNE 1, 1925, AND DIVORCED MAY 29, 1928.

PRIOR TO THE AMENDMENT TO THE WORLD WAR VETERANS' ACT, APPROVED MAY 29, 1928, IT WAS MANDATORY UPON THE DIRECTOR TO APPORTION COMPENSATION WHEREVER THE VETERAN WAS SEPARATED FROM HIS WIFE AND CHILDREN FOR ANY REASON. FOR PERIODS SUBSEQUENT TO MAY 29, 1928, OF COURSE, NO APPORTIONMENT WHATEVER WOULD BE IN ORDER IN THIS CASE IN VIEW OF THE DIVORCE. THE QUESTIONS WHICH ARISE, HOWEVER, ARE THESE:

(1) SHOULD ADDITIONAL COMPENSATION BE PAID TO A VETERAN ON ACCOUNT OF HIS WIFE FOR PERIODS PRIOR TO THE DIVORCE?

(2) IF SO, SHOULD COMPENSATION BE APPORTIONED DURING THE PERIOD OF SEPARATION?

(3) SHOULD COMPENSATION BE PAID TO BOTH HUSBAND AND WIFE ON ACCOUNT OF THE MINOR CHILD?

(4) IF NOT, TO WHICH PARENT SHOULD THE ADDITIONAL COMPENSATION PAYABLE ON ACCOUNT OF THE MINOR CHILD BE AWARDED?

YOU QUOTE THE FOLLOWING PORTIONS OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 618, AS FOR CONSIDERATION IN CONNECTION WITH THE QUESTIONS PRESENTED:

"SEC. 202. THAT IF DISABILITY RESULTS FROM THE 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:

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

"/2) IF AND WHILE THE DISABILITY IS RATED AS PARTIAL AND TEMPORARY, THE MONTHLY COMPENSATION SHALL BE A PERCENTAGE OF THE COMPENSATION THAT WOULD BE PAYABLE FOR HIS TOTAL AND TEMPORARY DISABILITY, EQUAL TO THE DEGREE OF THE REDUCTION IN EARNING CAPACITY RESULTING FROM THE DISABILITY, BUT NO COMPENSATION SHALL BE PAYABLE FOR A REDUCTION IN EARNING CAPACITY RATED AT LESS THAN 10 PERCENTUM.'

YOU QUOTE, ALSO, THE FOLLOWING FROM SECTION 201 (7) AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1306:

"* * * PROVIDED, HOWEVER, THAT THE RECEIPT OF A GRATUITY, PENSION, OR COMPENSATION, INCLUDING ADJUSTED COMPENSATION, BY WIDOW, CHILD, OR PARENT, ON ACCOUNT OF THE DEATH, DISABILITY, OR SERVICE OF ANY PERSON SHALL NOT BAR THE PAYMENT OF COMPENSATION ON ACCOUNT OF THE DEATH OR DISABILITY OF ANY OTHER PERSON: * * *"

REFERENCE IS MADE, ALSO, TO SECTION 201 (3) OF THE ACT AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 966, AS FOLLOWS:

THE PAYMENT OF COMPENSATION TO OR FOR A CHILD SHALL CONTINUE UNTIL SUCH CHILD REACHES THE AGE OF EIGHTEEN YEARS OR MARRIES, OR IF SUCH CHILD BE PERMANENTLY INCAPABLE OF SELF-SUPPORT BY REASON OF MENTAL OR PHYSICAL DEFECT, THEN DURING SUCH INCAPACITY: * * *

SECTION 202 (12) OF THE ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 967, PROVIDES 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.

SECTION 202 (13) OF THE ACT OF JUNE 7, 1924, 43 STAT. 621, PROVIDES AS FOLLOWS:

THE TERM "WIFE" AS USED IN THIS SECTION SHALL INCLUDE "HUSBAND" IF THE HUSBAND IS DEPENDENT UPON THE WIFE FOR SUPPORT.

SECTION 3 OF THE ACT AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1302, DEFINES THE TERM ,CHILD" AS FOLLOWS:

EXCEPT AS USED IN SECTION 300 THE TERMS "CHILD" AND "GRANDCHILD" ARE LIMITED TO UNMARRIED PERSONS EITHER (A) UNDER EIGHTEEN YEARS OF AGE, OR (B) OF ANY AGE, IF PERMANENTLY INCAPABLE OF SELF-SUPPORT BY REASON OFMENTAL OR PHYSICAL DEFECT.

WHILE THE BASES FOR THE ADDITIONAL AMOUNT OF WAR-RISK DISABILITY COMPENSATION PAYABLE TO A VETERAN WHO HAS A WIFE AND/OR CHILD MAY BE THE GENERAL ASSUMPTION OF DEPENDENCY, THE DEFINITIONS IN THE STATUTE AS WELL AS ITS OTHER TERMS SHOW A CLEAR INTENT TO GRANT THE ADDITIONAL ALLOWANCES ON ACCOUNT OF THE WIFE AND/OR CHILD WITHIN THE LIMITATIONS OF THE STATUTE SOLELY ON THE BASIS OF RELATIONSHIP, REGARDLESS OF THE ACTUAL CONDITION OF DEPENDENCY. AS LONG AS THE RELATIONSHIP OF HUSBAND AND WIFE, OR OF PARENT AND CHILD WITHIN THE LIMITATIONS OF THE STATUTE, ARE MAINTAINED, THE RIGHT TO THE ADDITIONAL ALLOWANCES GRANTED BY THE STATUTE CONTINUES. ASSUMING THE DEGREE OF DISABILITY REMAINS COMPENSABLE, NOTHING SHORT OF DEATH OR FINAL DECREE OF DIVORCE TERMINATES THE RIGHT TO THE ADDITIONAL ALLOWANCE ON ACCOUNT OF A WIFE. ONLY DEATH, MARRIAGE, OR ARRIVAL AT THE AGE OF 18 YEARS OF A NORMAL CHILD TERMINATES THE RIGHT TO THE ADDITIONAL ALLOWANCE FOR A CHILD.

SECTION 200 OF THE ACT EXPRESSLY INCLUDES THE NURSE CORPS (FEMALE) OF THE ARMY AND NAVY, AND OTHER WOMEN WHO SERVED IN BASE HOSPITALS OVERSEAS, AND THEIR DEPENDENTS, WITHIN ALL THE COMPENSATION BENEFITS OF THE STATUTE. THIS PROVISION, TOGETHER WITH THE PROVISION OF SECTION 202 (13), ABOVE QUOTED, SHOWS THE CLEAR INTENT THAT WOMEN HAVING THE NECESSARY SERVICE ARE TO BE CONSIDERED AS VETERANS IN THEIR OWN RIGHT UNDER THE STATUTE, INCLUDING RIGHT TO THE ADDITIONAL ALLOWANCE FOR A CHILD, AND FOR A DEPENDENT HUSBAND, INDEPENDENTLY OF ANY RIGHT AS THE WIFE OF A VETERAN. FURTHERMORE, THE TERMS OF SECTION 201 (7), ABOVE QUOTED, EXPRESSLY PROVIDE:

THAT THE RECEIPT OF * * * COMPENSATION * * * BY * * * CHILD * * * ON ACCOUNT OF THE * * * DISABILITY * * * OF ANY PERSON SHALL NOT BAR THE PAYMENT OF COMPENSATION ON ACCOUNT OF THE * * * DISABILITY OF ANY OTHER PERSON.

AS A CHILD MAY RECEIVE THE BENEFITS OF "DISABILITY" COMPENSATION UNDER THE STATUTE ONLY THROUGH THE RECEIPT THEREOF BY A PARENT, IT IS OBVIOUS THAT THE STATUTE INTENDED A CHILD SHOULD NOT BE DEPRIVED OF BENEFITS THROUGH EITHER OR BOTH PARENTS, OR VICE VERSA, THAT NEITHER PARENT SHOULD BE DEPRIVED OF THE ADDITIONAL ALLOWANCE FOR A CHILD. THIS IS UNDERSTOOD TO BE THE VIEW ANNOUNCED IN DECISION OF THE DIRECTOR, NO. 266, DATED NOVEMBER 30, 1926.

QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION (2) IS ANSWERED BY STATING THAT THE APPORTIONMENT OF A HUSBAND'S COMPENSATION TO A SEPARATED WIFE IS A MATTER FOR REGULATION WITHIN THE DISCRETION OF THE DIRECTOR. THIS WOULD APPLY, ALSO, TO THE ADDITIONAL AMOUNT PAYABLE TO THE FATHER ON ACCOUNT OF HIS CHILD. IT IS UNDERSTOOD THAT UNDER EXISTING REGULATIONS THE APPORTIONMENT TO THE WIFE PRIOR TO THE DIVORCE WAS MADE IN THIS CASE. IF SO, THE PAYMENTS SHOULD NOT BE DISTURBED.

QUESTION (3) IS ANSWERED IN THE AFFIRMATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (4).