A-43502, A-95378, MARCH 25, 1939, 18 COMP. GEN. 747

A-43502,A-95378: Mar 25, 1939

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WHO IS RECEIVING RETAINER PAY OR RETIRED PAY ON ACCOUNT OF SERVICE IN THE NAVY. GENERAL) IS AS FOLLOWS: UNDER DATE OF DECEMBER 7. HOLDING THAT THE COMMISSION IS PROHIBITED BY SECTION 7 OF THE ACT OF SEPTEMBER 7. FROM PAYING COMPENSATION TO A PERSON WHO IS INJURED IN THE PERFORMANCE OF HIS DUTY AS A CIVIL EMPLOYEE OF THE UNITED STATES. WHO IS RECEIVING RETAINER PAY OR RETIREMENT PAY ON ACCOUNT OF SERVICE IN THE UNITED STATES NAVY. HOLDING THAT COMPENSATION IS NOT A GRATUITY BUT A RIGHT CONFIRMED BY STATUTE. THAT THE RECEIPT BY AN INJURED EMPLOYEE OR THE BENEFICIARY OF A DECEASED EMPLOYEE OF A PENSION FROM THE VETERANS' ADMINISTRATION IS NOT IN ITSELF A BAR TO THE RECEIPT OF COMPENSATION FROM THIS COMMISSION ON ACCOUNT OF THE SAME DISABILITY OR DEATH.

A-43502, A-95378, MARCH 25, 1939, 18 COMP. GEN. 747

EMPLOYEES' COMPENSATION ACT - PAYMENT OF DISABILITY COMPENSATION AND RETIREMENT OR RETAINER PAY IN VIEW OF THE PROHIBITION OF SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, A PERSON INJURED IN THE PERFORMANCE OF DUTY AS A CIVIL EMPLOYEE OF THE UNITED STATES, WHO IS RECEIVING RETAINER PAY OR RETIRED PAY ON ACCOUNT OF SERVICE IN THE NAVY, MAY NOT ALSO BE PAID DURING THE SAME PERIOD DISABILITY COMPENSATION FOR THE INJURY SO SUSTAINED. DECISIONS OF SEPTEMBER 7, 1932, NOVEMBER 30, 1932, AND FEBRUARY 18, 1936, A-43502, AFFIRMED. 18 COMP. GEN. 308, AUTHORIZING PAYMENTS UNDER THE SAID ACT TO PERSONS ALSO RECEIVING OR ENTITLED TO RECEIVE, A PENSION UNDER ANY LAW PROVIDING PENSIONS FOR VETERANS OR THEIR DEPENDENTS, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, MARCH 25, 1939:

YOUR LETTER OF MARCH 4, 1939 (REF.NO. GENERAL) IS AS FOLLOWS:

UNDER DATE OF DECEMBER 7, 1932, THE COMPTROLLER GENERAL RENDERED A DECISION (A-43502), ALSO RECONSIDERATIONS DATED NOVEMBER 30, 1932, AND FEBRUARY 18, 1936, BEARING THE SAME NUMBER, HOLDING THAT THE COMMISSION IS PROHIBITED BY SECTION 7 OF THE ACT OF SEPTEMBER 7, 1916, FROM PAYING COMPENSATION TO A PERSON WHO IS INJURED IN THE PERFORMANCE OF HIS DUTY AS A CIVIL EMPLOYEE OF THE UNITED STATES, BUT WHO IS RECEIVING RETAINER PAY OR RETIREMENT PAY ON ACCOUNT OF SERVICE IN THE UNITED STATES NAVY.

IN THE LIGHT OF YOUR DECISION OF OCTOBER 3, 1938 (A-95378), HOLDING THAT COMPENSATION IS NOT A GRATUITY BUT A RIGHT CONFIRMED BY STATUTE, AND THAT THE RECEIPT BY AN INJURED EMPLOYEE OR THE BENEFICIARY OF A DECEASED EMPLOYEE OF A PENSION FROM THE VETERANS' ADMINISTRATION IS NOT IN ITSELF A BAR TO THE RECEIPT OF COMPENSATION FROM THIS COMMISSION ON ACCOUNT OF THE SAME DISABILITY OR DEATH, THE COMMISSION IS UNCERTAIN AS TO WHETHER THE DECISIONS REFERRED TO, REGARDING RETAINER PAY AND RETIREMENT PAY, REMAIN IN EFFECT. THE COMMISSION WILL ACCORDINGLY APPRECIATE A FURTHER REVIEW OF THIS QUESTION BY YOUR OFFICE, WITH A RULING AS TO WHETHER SECTION 7 OF THE COMPENSATION ACT OF SEPTEMBER 7, 1916, FORBIDS THE COMMISSION TO PAY COMPENSATION TO AN INJURED CIVIL EMPLOYEE WHO IS RECEIVING RETAINER PAY ON ACCOUNT OF SERVICE IN THE NAVY OR RETIREMENT PAY ON ACCOUNT OF SERVICE IN THE ARMY OR NAVY.

SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDES AS FOLLOWS:

THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.

IN THE DECISION OF SEPTEMBER 7 (NOT DECEMBER 7), 1932, A-43502, OF WHICH YOU REQUEST RECONSIDERATION, INVOLVING THE CASE OF HAWLEY BRANNAN, WHO WAS INJURED WHILE EMPLOYED AS A CIVILIAN EMPLOYEE AT THE UNITED STATES NAVY YARD, BOSTON, MASSACHUSETTS, AND WAS IN RECEIPT OF $103.75 PER MONTH RETAINER PAY FROM THE NAVY DEPARTMENT UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1088, IT WAS HELD IN PART AS FOLLOWS:

IN DECISIONS OF MAY 10, 1923, 2 COMP. GEN. 743, AND SEPTEMBER 30, 1926, 6 COMP. GEN. 223, IT WAS HELD THAT THE RETAINER PAY RECEIVED BY TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE IS IN THE NATURE OF RETIRED PAY WITHIN THE MEANING OF THE WORLD WAR VETERANS' ACT. SINCE NEITHER RETAINER PAY NOR RETIRED PAY IS A PENSION FOR SERVICE IN THE NAVY, PAYMENT TO THIS MAN OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT WHILE HE IS IN RECEIPT OF RETAINER OR RETIRED PAY, BASED ON HIS STATUS IN THE NAVAL RESERVE, WOULD BE AUTHORIZED ONLY IF THE LATTER PAYMENT IS "IN RETURN FOR SERVICES ACTUALLY PERFORMED.' THIS PHRASE HAS REFERENCE TO PAYMENTS OF COMPENSATION CURRENTLY WITH THE PERFORMANCE OF SERVICE, AND NOT PAYMENTS BASED ON PAST SERVICE, AS RETIRED PAY, OR FOR SERVICES POSSIBLY TO BE PERFORMED, AS RETAINER PAY.

IT MUST BE CONCLUDED, THEREFORE, THAT THE RETAINER PAY OR REDUCED RETIRED PAY BEING RECEIVED BY HAWLEY BRANNAN BASED ON HIS STATUS IN THE FLEET NAVAL RESERVE IS NOT "IN RETURN FOR SERVICES ACTUALLY PERFORMED" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT, QUOTED IN YOUR LETTER, AND THAT SAID SECTION PROHIBITS PAYMENT TO HIM OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT, WHILE HE CONTINUES IN RECEIPT OF THE RETAINER PAY OR REDUCED RETIRED PAY UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1088. SEE 11 COMP. GEN. 318.

IN DECISION OF NOVEMBER 30, 1932, A-43502, THE RULE STATED IN THE FORMER DECISION WAS SUSTAINED AND APPLIED IN THE CASE OF SAMUEL MEEKS, WHO WAS INJURED WHILE EMPLOYED AS A CIVILIAN BY THE QUARTERMASTER, BOLLING FIELD,ANACOSTIA, D.C., AND WAS IN RECEIPT OF $94.50 PER MONTH RETIRED PAY FROM THE WAR DEPARTMENT UNDER THE ACT OF JUNE 10, 1922.

THESE DECISIONS WERE AGAIN SUSTAINED BY DECISION OF FEBRUARY 18, 1936, A- 43502, NOTWITHSTANDING THE PROVISIONS OF SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1081, TO WHICH YOU CALLED ATTENTION IN YOUR LETTER OF JANUARY 23, 1936, PROVIDING AS FOLLOWS:

* * * AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY OR ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT.

SEE SECTION 4 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1176, CONTAINING, SO FAR AS HERE MATERIAL, LANGUAGE IDENTICAL WITH THE PROVISION ABOVE QUOTED.

YOU WILL NOTE THAT THE RULE IN THESE CASES WAS STATED BY THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES SOLELY UPON THE BASIS OF THE WORDING OF SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT, SUPRA--- THE CONCLUSION THERE REACHED BEING THAT AS BOTH RETAINER PAY AND RETIRED PAY ARE RECEIVED FROM THE UNITED STATES, AND ARE NOT RECEIVED IN RETURN FOR SERVICE ACTUALLY PERFORMED, AND ARE NOT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES, THE STATUTE PROHIBITED DUAL PAYMENT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT AND RETAINER OR RETIRED PAY TO THE SAME PERSON DURING THE SAME PERIOD OF TIME.

MY DECISION OF OCTOBER 3, 1938, 18 COMP. GEN. 308, HELD THAT A PAYMENT UNDER THE EMPLOYEES' COMPENSATION ACT, WHETHER TO THE INJURED EMPLOYEE OR TO HIS DEPENDENTS IN CASE OF DEATH, IS NOT A GRATUITY WITHIN THE MEANING OF THAT TERM AS USED IN THE STATUTES PROHIBITING PAYMENTS OF DUAL GRATUITIES FOR THE SAME DEATH OR DISABILITY, BUT SAID DECISION IN NOWISE CHANGES THE CHARACTER OF NAVAL RETAINER PAY AND ARMY RETIRED PAY AS CONSTRUED IN THE PRIOR DECISIONS. THE CONGRESS MUST HAVE INTENDED THE PROHIBITION IN SECTION 7, SUPRA, TO APPLY IN SOME MANNER. IF IT WERE TO BE HELD THAT RETAINER PAY OR RETIRED PAY IS FOR SERVICES ACTUALLY PERFORMED, OR THAT RETIRED PAY IS IN THE NATURE OF A MILITARY PENSION, SO AS TO BRING SUCH PAYMENTS WITHIN THE EXCEPTION TO THE PROHIBITION STATED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT, THEREBY AUTHORIZING DUAL PAYMENTS OF DISABILITY COMPENSATION AND RETAINER OR RETIRED PAY TO THE SAME PERSON FOR THE SAME PERIOD OF TIME, THERE WOULD APPEAR TO BE NO CASES TO WHICH THE PROHIBITORY PROVISIONS OF THE STATUTE COULD APPLY.

YOU ARE ADVISED, THEREFORE, THAT THE DECISION OF OCTOBER 3, 1938, WAS NOT INTENDED TO, AND DOES NOT, OPERATE TO OVERRULE OR MODIFY THE CITED DECISIONS OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, OF WHICH YOU REQUEST RECONSIDERATION, HOLDING THAT PAYMENT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT AND RETAINER PAY OR RETIRED PAY TO THE SAME PERSON DURING THE SAME PERIOD OF TIME IS PROHIBITED.