A-29564, NOVEMBER 23, 1929, 9 COMP. GEN. 221

A-29564: Nov 23, 1929

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PANAMA CANAL - RETIRED EMERGENCY OFFICERS - DOUBLE COMPENSATION A RETIRED EMERGENCY OFFICER WHO IS ENTITLED TO RETIRED PAY UNDER THE ACT OF MAY 24. IS NOT A PERSON "IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24. IS A PART OF THE PROVISIONS MADE FOR DISABLED VETERANS OF THE WORLD WAR. SHOULD HAVE A CONSTRUCTION IN KEEPING WITH ITS PURPOSE. HAVE BEEN UNIFORMLY CONSTRUED TO REQUIRE THE DEDUCTION OF THE RETIRED PAY OF OFFICERS OF THE ARMY OR NAVY EMPLOYED UNDER THE PANAMA CANAL. THE QUESTION PRESENTED BY YOUR SUBMISSION IS WHETHER DOCTOR BACH. IS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. IF HE IS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES.

A-29564, NOVEMBER 23, 1929, 9 COMP. GEN. 221

PANAMA CANAL - RETIRED EMERGENCY OFFICERS - DOUBLE COMPENSATION A RETIRED EMERGENCY OFFICER WHO IS ENTITLED TO RETIRED PAY UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, IS NOT A PERSON "IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561. THE ACT OF MAY 24, 1928, 45 STAT. 735, IS A PART OF THE PROVISIONS MADE FOR DISABLED VETERANS OF THE WORLD WAR, AND IN THE CONSTRUCTION OF STATUTES IMPOSING DISABILITIES ON PERSONS IN THE MILITARY OR NAVAL SERVICE WITH RESPECT TO EMPLOYMENT IN THE FEDERAL CIVIL SERVICE THE ACT OF MAY 24, 1928, SHOULD HAVE A CONSTRUCTION IN KEEPING WITH ITS PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, NOVEMBER 23, 1929:

THERE HAS BEEN RECEIVED, BY YOUR DIRECTION, FROM THE CHIEF OF OFFICE REQUEST FOR DECISION WHETHER DR. LUTHER BACH, WHO HAS BEEN APPOINTED A PHYSICIAN UNDER THE PANAMA CANAL AT A SALARY OF $4,000 PER ANNUM, MAY BE PAID HIS PANAMA CANAL SALARY WITHOUT DEDUCTION OF THE RETIRED PAY PAID TO HIM UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735. SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561 (TITLE 48, SEC. 1305, U.S.C.), PROVIDES:

* * * IF ANY OF THE PERSONS APPOINTED OR EMPLOYED AS AFORESAID SHALL BE PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED UNDER THE TERMS OF THIS ACT. * * *

THIS PROVISION HAS BEEN AMENDED BY THE ACT OF MARCH 12, 1928, 45 STAT. 310 (TITLE 48, SEC. 1305-A, SUPL.U.S.C.), AS FOLLOWS:

THAT SECTION 4 OF THE PANAMA CANAL ACT, AS AMENDED, SHALL NOT BE CONSTRUED AS REQUIRING THE DEDUCTION OF THE RETIRED PAY OR ALLOWANCES OF ANY RETIRED WARRANT OFFICER OR ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR THE TRAINING PAY, RETAINER PAY, OR ALLOWANCES OF ANY WARRANT OFFICER OR ENLISTED MAN OF THE RESERVE FORCES OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, FROM THE AMOUNT OF THE SALARY OR COMPENSATION PROVIDED BY OR FIXED UNDER THE TERMS OF THE PANAMA CANALACT, AS AMENDED.

SECTION 4 OF THE PANAMA CANAL ACT AND THE SIMILAR PROVISION IN THE PRECEDING ACT OF JUNE 28, 1902, 32 STAT. 481, HAVE BEEN UNIFORMLY CONSTRUED TO REQUIRE THE DEDUCTION OF THE RETIRED PAY OF OFFICERS OF THE ARMY OR NAVY EMPLOYED UNDER THE PANAMA CANAL.

THE QUESTION PRESENTED BY YOUR SUBMISSION IS WHETHER DOCTOR BACH, WHO HAS BEEN RETIRED AS A FIRST LIEUTENANT UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT AND RECEIVES RETIRED PAY OF $125 PER MONTH, IS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. IF HE IS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, THE RETIRED PAY OR OFFICIAL SALARY MUST BE DEDUCTED FROM THE PANAMA CANAL SALARY. IF HE IS NOT IN THE MILITARY OR NAVAL SERVICE, THE RETIRED PAY IS NOT REQUIRED TO BE DEDUCTED.

THE ACT OF 1928 PROVIDES THAT OFFICERS WITHIN ITS TERMS--- SHALL * * * BE PLACED UPON, AND THEREAFTER CONTINUED ON, SEPARATE RETIRED LISTS, HEREBY CREATED AS A PART OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, TO BE KNOWN AS THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, RESPECTIVELY, WITH THE RANK HELD BY THEM WHEN DISCHARGED FROM THEIR COMMISSIONED SERVICE, AND SHALL BE ENTITLED TO 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 SHALL BE ENTITLED TO ALL HOSPITALIZATION PRIVILEGES AND MEDICAL TREATMENT AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED BY THE UNITED STATES VETERANS' BUREAU, AND SHALL RECEIVE * * * RETIRED 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: PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF THIS LAW SHALL BE PAID SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE UNITED STATES VETERANS' BUREAU, AND 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, EXCEPT AS OTHERWISE AUTHORIZED HEREIN, AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922: * * * AND PROVIDED FURTHER, THAT THE RETIRED LIST CREATED BY THIS ACT OF OFFICERS OF THE ARMY SHALL BE PUBLISHED ANNUALLY IN THE ARMY REGISTER, AND SAID RETIRED LIST OF OFFICERS OF THE NAVY AND MARINE CORPS, RESPECTIVELY, SHALL BE PUBLISHED ANNUALLY IN THE NAVY REGISTER.

SECTION 1 OF THE NATIONAL DEFENSE ACT, 41 STAT. 759, PROVIDES:

THAT THE ARMY OF THE UNITED STATES SHALL CONSIST OF THE REGULAR ARMY, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, AND THE ORGANIZED RESERVES, INCLUDING THE OFFICERS' RESERVE CORPS AND THE ENLISTED RESERVE CORPS.

SECTION 2 OF THE SAME ACT PROVIDES THAT THE REGULAR ARMY SHALL CONSIST OF THE VARIOUS BRANCHES, STAFF CORPS, AND DEPARTMENTS, AND--- * * * THE OFFICERS AND ENLISTED MEN OF THE RETIRED LIST; AND SUCH OTHER OFFICERS AND ENLISTED MEN AS ARE NOW OR MAY HEREAFTER BE PROVIDED FOR. * * *

THE BENEFICIARIES OF THE ACT OF MAY 24, 1928, MUST NOT BE LESS THAN 30 PERCENT PHYSICALLY DISABLED, A PERCENTAGE OF DISABILITY, BY THE STANDARDS USED IN THE WAR DEPARTMENT, DISQUALIFYING FOR ACTIVE MILITARY SERVICE; MANY OF THE BENEFICIARIES ARE DISABLED IN A GREATER DEGREE, UP TO AND INCLUDING 100 PERCENT; SOME ARE BLIND; AND THE SPECIFIC REFERENCE IN THE ACT OF MAY 24, 1928, TO THE ACT OF DECEMBER 18, 1922, 42 STAT. 1064, NOW SUBPARAGRAPH (5) OF SECTION 202 OF THE WORLD WAR VETERANS' ACT, 43 STAT. 619, IS TO A PROVISION FOR A NURSE "IF THE DISABLED PERSON IS SO HELPLESS AS TO BE IN CONSTANT NEED OF NURSE OR ATTENDANT.' IT IS CLEAR THAT THE CONGRESS, IN THE ACT OF MAY 24, 1928, WAS NOT LEGISLATING UNDER ITS CONSTITUTIONAL AUTHORITY TO RAISE AND SUPPORT ARMIES OR TO PROVIDE AND MAINTAIN A NAVY. THE BENEFICIARIES ARE NOT BY THE ACT SUBJECTED TO THE ARTICLES OF WAR OR THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, AND THE ACT ITSELF, BY ITS PROVISION FOR PRIVILEGES, BENEFITS, AND RETIRED PAY IN LIEU OF COMPENSATION UNDER THE WORLD WAR VETERANS' ACT, WAS MERELY THE EXTENSION TO A PARTICULAR PORTION OF DISABLED VETERANS FOR WHOM PROVISION THEREFOR HAD BEEN MADE IN THE WAY OF COMPENSATION, HOSPITAL TREATMENT, NURSING AND ATTENDANCE IN THE WORLD WAR VETERANS' ACT, OF PRIVILEGES, BENEFITS, AND HONORS EQUIVALENT TO THOSE ACCORDED OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS RETIRED FOR PHYSICAL DISABILITY. THE ACT DOES NOT CONTEMPLATE THAT THE DISABLED VETERANS RECEIVING THOSE PRIVILEGES, BENEFITS, AND HONORS SHALL HAVE ANY DUTY OR RESPONSIBILITY UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT BY REASON OF HAVING BEEN PLACED ON A SPECIAL RETIRED LIST "CREATED AS A PART OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES.' THE ACT IS, IN FACT, A PART OF THE PROVISIONS MADE FOR DISABLED VETERANS OF THE WORLD WAR, AND IN THE CONSTRUCTION OF STATUTES IMPOSING DISABILITIES ON PERSONS IN THE MILITARY OR NAVAL SERVICE WITH RESPECT TO EMPLOYMENT IN THE FEDERAL CIVIL SERVICE THE ACT OF MAY 24, 1928, SHOULD HAVE A CONSTRUCTION IN KEEPING WITH ITS PURPOSES. UNDERSTOOD IN THIS LIGHT, THERE IS NO DIFFICULTY IN REACHING THE CONCLUSION THAT FORMER EMERGENCY OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS WHO ARE PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST BY DIRECTOR OF THE UNITED STATES VETERANS' BUREAU AS WITHIN THE TERMS AND CONDITIONS OF THE ACT OF 1928 ARE NOT "PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES.' YOU ARE ACCORDINGLY ADVISED THAT IF DOCTOR BACH IS APPOINTED UNDER THE PANAMA CANAL HIS PANAMA CANAL SALARY MAY BE PAID WITHOUT DEDUCTION OF PAYMENTS MADE TO HIM BY THE UNITED STATES VETERANS' BUREAU UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928.