A-29600, DECEMBER 9, 1929, 9 COMP. GEN. 238

A-29600: Dec 9, 1929

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MILITARY PENSION AND WAR-RISK DISABILITY COMPENSATION TO SAME PERSON THE PAYMENT OF WAR RISK DISABILITY COMPENSATION FOR INJURY INCURRED DURING THE WORLD WAR AND MILITARY PENSION FOR INJURY INCURRED IN THE MILITARY SERVICE AFTER THE WORLD WAR TO THE SAME PERSON FOR THE SAME PERSON FOR THE SAME PERIOD OF TIME IS PROHIBITED. WAS HONORABLY DISCHARGED THEREFROM ON JUNE 13. DURING THIS PERIOD OF SERVICE HE WAS TREATED AT THE BASE HOSPITAL. WAS HONORABLY DISCHARGED ON JUNE 13. WAS DISCHARGED WITHOUT HONOR ON MAY 31. WAS DISCHARGED WITHOUT HONOR AUGUST 25. WHICH IS DIAGNOSED AS DISCHARGING EAR. HAS BEEN HELD TO HAVE BEEN INCURRED DURING HIS MILITARY SERVICE DURING THE WORLD WAR PERIOD AND TO BE RATABLE AT VARYING DEGREES OF DISABILITY FROM DISCHARGE.

A-29600, DECEMBER 9, 1929, 9 COMP. GEN. 238

MILITARY PENSION AND WAR-RISK DISABILITY COMPENSATION TO SAME PERSON THE PAYMENT OF WAR RISK DISABILITY COMPENSATION FOR INJURY INCURRED DURING THE WORLD WAR AND MILITARY PENSION FOR INJURY INCURRED IN THE MILITARY SERVICE AFTER THE WORLD WAR TO THE SAME PERSON FOR THE SAME PERSON FOR THE SAME PERIOD OF TIME IS PROHIBITED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, DECEMBER 9, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 18, 1929, SUBMITTING THE CASE OF FRED BARNETT, C-1208009, INVOLVING THE QUESTION WHETHER WAR RISK DISABILITY COMPENSATION FOR DISABILITY INCURRED AS A RESULT OF WORLD WAR SERVICE AND PENSION UNDER OTHER LAWS FOR UNRELATED DISABILITY INCURRED DURING MILITARY SERVICE SUBSEQUENT TO THE WORLD WAR MAY BE PAID THE SAME PERSON FOR THE SAME PERIOD OF TIME.

YOU STATE THE FACTS AS FOLLOWS:

BARNETT ENLISTED IN THE MILITARY SERVICE OF THE UNITED STATES ON JULY 4, 1917, AND WAS HONORABLY DISCHARGED THEREFROM ON JUNE 13, 1919. DURING THIS PERIOD OF SERVICE HE WAS TREATED AT THE BASE HOSPITAL, CAMP LOGAN TEXAS, FROM APRIL 18, 1918, TO APRIL 26, 1918, FOR ACUTE SUPPURATIVE RIGHT OTITIS MEDIA. HE REENLISTED ON JUNE 14, 1919, THE ONLY DEFECT NOTED BEING ONE TOOTH MISSING, AND WAS HONORABLY DISCHARGED ON JUNE 13, 1920, ON EXPIRATION OF TERM OF SERVICE, WITHOUT MEDICAL RECORD. HE REENLISTED ON OCTOBER 10, 1921, DEFECTS NOTED BEING LEFT INGUINAL RING, SMALL EXTERNAL HEMORRHOID, AND ONE TOOTH MISSING, AND WAS DISCHARGED WITHOUT HONOR ON MAY 31, 1922, WITH NO DEFECTS NOTED AND WITHOUT MEDICAL HISTORY. REENLISTED UNDER THE NAME OF EARL NELSON ON NOVEMBER 12, 1922, THE ONLY DEFECT NOTED BEING TWO MISSING TEETH, AND WAS DISCHARGED WITHOUT HONOR AUGUST 25, 1923, ON A SURGEON'S CERTIFICATE OF DISABILITY, ON ACCOUNT OF ACUTE ARTHRITIS, SEVERE, NONSUPPURATIVE, RIGHT ELBOW, WITH COMPLETE BONY ANKYLOSIS OF RIGHT ELBOW, FOLLOWING OPERATION JULY 3, 1923. THE MEDICAL RECORDS SHOW HIM TREATED FROM DECEMBER 12, 1922, TO DECEMBER 15, 1922, FOR ACUTE LYMPHADENITIS OF THE LEFT ARM.

HE FILED CLAIM WITH THE BUREAU FOR COMPENSATION ON SEPTEMBER 12, 1921 ALLEGING A DISABILITY DUE TO PERFORATED EAR DRUMS. THIS DISABILITY, WHICH IS DIAGNOSED AS DISCHARGING EAR, WITH PERFORATIONS, RIGHT AND LEFT, HAS BEEN HELD TO HAVE BEEN INCURRED DURING HIS MILITARY SERVICE DURING THE WORLD WAR PERIOD AND TO BE RATABLE AT VARYING DEGREES OF DISABILITY FROM DISCHARGE, THE LAST RATING, DATED APRIL 5, 1929, BEING 15 PERCENT TEMPORARY PARTIAL FROM THAT DATE.

THE BUREAU OF PENSIONS HAS ALSO FOUND BARNETT TO BE PENSIONABLE BECAUSE OF ARTHRITIS INCURRED IN THE ENLISTMENT FROM WHICH HE WAS DISCHARGED ON A SURGEON'S CERTIFICATE OF DISABILITY ON AUGUST 25, 1923, AND UPON BEING ADVISED THAT HE COULD NOT RECEIVE PENSION AND COMPENSATION AT THE SAME TIME CLAIMANT HAS ELECTED TO ACCEPT THE PENSION OR COMPENSATION ALTERNATELY, WHICHEVER IS THE LARGER AMOUNT FOR THE TIME BEING. HE HAS, HOWEVER, IMPORTUNED THE BUREAU FOR THE PAYMENT OF HIS COMPENSATION IN ADDITION TO THE PENSION, AND POINTED OUT THAT THE PENSION BUREAU CAN NOT TAKE COGNIZANCE OF HIS WORLD WAR DISABILITY IN ITS RATING, ANY MORE THAN THE BUREAU CAN RECOGNIZE THE POSTWAR CONDITION.

IN DECISION OF APRIL 12, 1923, 2 COMP. GEN. 643, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

A PERSON HAVING A RIGHT TO A MILITARY PENSION BY REASON OF AN INJURY RECEIVED IN THE MILITARY OR NAVAL SERVICE PRIOR TO APRIL 6, 1917, AND WHO BY REASON OF SERVICE SINCE APRIL 6, 1917, RECEIVED AN ENTIRELY NEW INJURY OR SUFFERED AN AGGRAVATION OF THE OLD ONE, THEREBY COMING WITHIN THE PURVIEW OF THE WAR-RISK INSURANCE ACT, AS AMENDED, MAY NOT RECEIVE BOTH PENSION AND WAR-RISK COMPENSATION BUT MAY ELECT BETWEEN THE TWO FORMS OF PAYMENT.

THIS CONCLUSION WAS REACHED ON THE BASIS THAT WAR-RISK DISABILITY COMPENSATION IS A FORM OF PENSION WITHIN THE MEANING OF SECTION 4715, REVISED STATUTES, AND SUBSEQUENT STATUTES, PROVIDING THAT NO PERSON SHALL RECEIVE MORE THAN ONE PENSION FOR THE SAME PERIOD. SEC. 4715, REVISED STATUTES, IS AS FOLLOWS:

NOTHING IN THIS TITLE SHALL BE SO CONSTRUED AS TO ALLOW MORE THAN ONE PENSION AT THE SAME TIME TO THE SAME PERSON, OR TO PERSONS ENTITLED JOINTLY; BUT ANY PENSIONER WHO SHALL SO ELECT MAY SURRENDER HIS CERTIFICATE, AND RECEIVE, IN LIEU THEREOF, A CERTIFICATE FOR ANY OTHER PENSION TO WHICH HE WOULD HAVE BEEN ENTITLED HAD NOT THE SURRENDERED CERTIFICATE BEEN ISSUED. BUT ALL PAYMENTS PREVIOUSLY MADE FOR ANY PERIOD COVERED BY THE NEW CERTIFICATE SHALL BE DEDUCTED FROM THE AMOUNT ALLOWED BY SUCH CERTIFICATE.

THIS SECTION HAS BEEN INCLUDED IN THE U.S.C. AS SECTION 25 OF TITLE 38.

ATTENTION IS INVITED TO THE SAID DECISION OF APRIL 12, 1923, FOR OTHER CITATIONS OF STATUTES AND DECISIONS AND FOR A STATEMENT OF THE REASONS THAT IMPELLED THE ABOVE-STATED CONCLUSION. NO REASON NOW APPEARS TO REQUIRE OR AUTHORIZE ANY CHANGE IN THAT CONCLUSION.

THERE ARE TWO POINTS OF DIFFERENCE BETWEEN THE FACTS IN THAT CASE AND THE FACTS IN THE INSTANT CASE. IN THE FORMER CASE THE RIGHT TO THE PENSION FOR SERVICE OTHER THAN IN THE WORLD WAR WAS BASED ON MILITARY SERVICE PRIOR TO THE WORLD WAR, WHEREAS IN THE INSTANT CASE THE RIGHT IS BASED ON MILITARY SERVICE SUBSEQUENT TO THE WORLD WAR; ALSO, BECAUSE OF THE PARTICULAR FACTS DISCLOSED IN THE FORMER CASE, THE BUREAU WAS AUTHORIZED UNDER THE PROVISIONS OF THE WAR RISK INSURANCE ACT TO DETERMINE THE RATING OF DISABILITY ON BOTH OF THE UNRELATED DISABILITIES INCURRED PRIOR TO AND DURING WORLD WAR SERVICE, WHEREAS IN THE INSTANT CASE THE BUREAU IS PRECLUDED BY THE TERMS OF SECTION 212 OF THE WORLD WAR VETERANS' ACT FROM TAKING INTO CONSIDERATION THE DISABILITY INCURRED DURING MILITARY SERVICE SUBSEQUENT TO JULY 2, 1921.

THERE APPEARS NO SOUND REASON, IN SO FAR AS THE POINT HERE INVOLVED IS CONCERNED, FOR APPLYING ONE RULE WITH RESPECT TO PENSIONS BASED ON POST- WAR SERVICE AND A DIFFERENT RULE WITH RESPECT TO PENSIONS BASED ON PRE-WAR SERVICE. THE PENSION LAWS WHICH WERE IN FORCE PRIOR TO THE WORLD WAR AGAIN BECAME CONTROLLING OF THE RIGHTS TO PENSION AFTER THE WORLD WAR, INCLUDING SECTION 4715, REVISED STATUTES, AND SUBSEQUENT STATUTES, LIMITING VETERANS TO ONE PENSION. THE LEGISLATIVE POLICY IN THIS RESPECT IS TOO CLEARLY EXPRESSED TO BE DISREGARDED OR RENDERED INOPERATIVE BY A STRAINED CONSTRUCTION OF THE LAW.

SINCE THE PRIOR DECISION WAS RENDERED, THERE HAS BEEN ENACTED THE WORLD WAR VETERANS-ACT OF JUNE 7, 1924, INCLUDING SECTION 202 (15), 43 STAT. 621, PROVIDING AS FOLLOWS:

THAT ANY PERSON WHO IS NOW RECEIVING A GRATUITY OR PENSION FROM THE UNITED STATES UNDER EXISTING LAW SHALL NOT RECEIVE COMPENSATION UNDER THIS SECTION UNLESS HE SHALL FIRST SURRENDER ALL CLAIM TO FURTHER PAYMENTS OF SUCH GRATUITY OR PENSION, EXCEPT AS PROVIDED IN SUBDIVISION 7 OF SECTION 201.

THE EXCEPTION IS NOT INVOLVED IN THIS CASE. THIS DID NOT APPEAR IN SUCH GENERAL TERMS IN THE WAR RISK INSURANCE ACT. SEE SECTION 10 OF THE ACT OF DECEMBER 24, 1919, 41 STAT. 372, AND SECTION 3 OF THE ACT OF MARCH 4, 1923, 42 STAT. 1524, BOTH AMENDING SEC. 301 OF THE WAR RISK INSURANCE ACT. THIS BROADENING OF THE RESTRICTION UNQUESTIONABLY DISCLOSES AN INTENT TO CARRY FORWARD INTO THE OPERATION OF THE NEW PLAN OF PENSIONS THE GENERAL RESTRICTION AGAINST THE RECEIPT OF MORE THAN ONE PENSION BY THE SAME PERSON DURING THE SAME PERIOD OF TIME.

IT IS TRUE THAT THE BUREAU IS PRECLUDED FROM TAKING INTO CONSIDERATION POST-WAR SERVICE DISABILITIES IN DETERMINING THE RATING OF DISABILITY UNDER THE WORLD WAR VETERANS' ACT, BUT THAT CONDITION ALONE, WHICH IS ONE ARISING BY REASON OF THE PROVISIONS OF THE LAW, IS NOT SUFFICIENT TO JUSTIFY THE PAYMENT OF TWO PENSIONS TO THE SAME PERSON DURING THE SAME PERIOD OF TIME IN DIRECT CONTRAVENTION OF OTHER PROVISIONS OF LAW INVOLVING THE ACTION OF ANOTHER ADMINISTRATIVE OFFICER OF THE GOVERNMENT. IF ANY RELIEF IN THIS REGARD IS DEEMED NECESSARY, THE MATTER IS ONE FOR THE SPECIFIC CONSIDERATION OF THE CONGRESS AND MAY NOT BE GRANTED OTHERWISE.

YOU ARE ADVISED, THEREFORE, THAT FRED BARNETT MAY NOT BE PAID, DURING THE SAME PERIOD OF TIME, WAR-RISK DISABILITY COMPENSATION UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' ACT AND A PENSION UNDER OTHER LAWS GOVERNING THE PAYMENT OF PENSIONS FOR PERIODS OF SERVICE SUBSEQUENT TO THE WORLD WAR.