A-56422, NOVEMBER 3, 1939, 19 COMP. GEN. 478

A-56422: Nov 3, 1939

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NOTWITHSTANDING HE IS. IS MADE BY MEMBERS OF THE LIGHTHOUSE SERVICE AS IN THE CASE OF CIVIL EMPLOYEES OF THE GOVERNMENT GENERALLY. THE ACTING COMPTROLLER GENERAL WAS ADVISED AS TO THE PRECEDENTS OF THE VETERANS' ADMINISTRATION WITH REGARD TO THE CONCURRENT PAYMENT OF PAY AS A RETIRED LIGHTHOUSE KEEPER. THERE WERE TRANSMITTED WITH THE LETTER OF MARCH 3. WHILE THIS INFORMATION INDICATES THAT NO DECISION WAS RENDERED AT THE TIME OF THE SETTLEMENT. A LETTER WAS WRITTEN TO THE HONORABLE MILLARD E. IT WILL BE APPRECIATED IF YOU WILL FURNISH A COPY OF YOUR LETTER TO THE HONORABLE MR. IT WAS PURSUANT TO THIS AUTHORITY THAT THE CLAIM TO WHICH YOU REFER WAS CONSIDERED AND ON JULY 24. THE CHIEF OF THE CLAIMS DIVISION OF THIS OFFICE WAS INSTRUCTED AS FOLLOWS: THERE ARE RETURNED THE PAPERS IN THE CLAIM OF GARY E.

A-56422, NOVEMBER 3, 1939, 19 COMP. GEN. 478

GENERAL ACCOUNTING OFFICE JURISDICTION; CONCURRENT MILITARY PENSION AND LIGHTHOUSE SERVICE RETIREMENT PAY IN ADDITION TO THE AUTHORITY VESTED IN THE GENERAL ACCOUNTING OFFICE TO RENDER DECISIONS TO THE HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OR DISBURSING OFFICERS ON QUESTIONS SUBMITTED BY THEM IN CONNECTION WITH PROPOSED EXPENDITURES, TO DISBURSING OFFICERS ON REQUEST FOR REVIEW OF DISALLOWANCES IN THEIR ACCOUNTS AND TO CLAIMANTS DISSATISFIED WITH THE SETTLEMENT OF THEIR CLAIMS, THERE EXISTS, ALSO, THE AUTHORITY TO RENDER DECISIONS MAKING AN ORIGINAL CONSTRUCTION OR MODIFYING AN EXISTING CONSTRUCTION OF STATUTES INVOLVED IN THE SETTLEMENT OF ANY ACCOUNT OR CLAIM BEFORE THE OFFICE. THE INHIBITION OF SECTION 4715 REVISED STATUTES, AGAINST THE PAYMENT OF MORE THAN ONE "PENSION" AT THE SAME TIME TO THE SAME PERSON DOES NOT AFFECT THE RIGHT TO RETIREMENT PAY OF A PERSON RETIRED UNDER THE LIGHTHOUSE SERVICE RETIREMENT ACT OF JUNE 20, 1918, 40 STAT. 607, NOTWITHSTANDING HE IS, ALSO, ENTITLED TO AND RECEIVING A PENSION FOR SPANISH-AMERICAN WAR SERVICE--- SUCH SERVICE NOT HAVING BEEN COUNTED IN THE COMPUTATION OF THE RETIREMENT PAY--- THE RIGHT TO RETIREMENT WITH PAY BEING A PART OF COMPENSATION, A RIGHT GIVEN BY STATUTE, ACCRUING BECAUSE OF SERVICE, AND NOT BEING A GRATUITY OR PENSION EVEN THOUGH NO CONTRIBUTION, AS SUCH, IS MADE BY MEMBERS OF THE LIGHTHOUSE SERVICE AS IN THE CASE OF CIVIL EMPLOYEES OF THE GOVERNMENT GENERALLY.

COMPTROLLER GENERAL BROWN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 3, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 18, 1939, AS FOLLOWS:

ON MARCH 3, 1939, RESPONSIVE TO A COMMUNICATION FROM ONE OF THE UNIT HEADS OF THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE ( SYMBOL MISC-0442709-MJN), THE ACTING COMPTROLLER GENERAL WAS ADVISED AS TO THE PRECEDENTS OF THE VETERANS' ADMINISTRATION WITH REGARD TO THE CONCURRENT PAYMENT OF PAY AS A RETIRED LIGHTHOUSE KEEPER, AND PENSION FOR SERVICES RENDERED DURING THE SPANISH-AMERICAN WAR. THIS CORRESPONDENCE RELATES TO THE CLAIM OF GARY E. POWELL, C-2,448,379. THERE WERE TRANSMITTED WITH THE LETTER OF MARCH 3, 1939, COPIES OF OPINIONS OF THE SOLICITOR IN THE CASES OF GEORGE W. BARDWELL C-989,127, DATED JULY 1, 1938, OF JAMES BURKE, C- 1,528,102 AND OF CHARLES E. MARSHALL, C-1,596,667. IN THE LATTER CASE I HAD APPROVED THE OPINION, AS ADMINISTRATOR OF VETERANS' AFFAIRS, ON SEPTEMBER 30, 1932.

INFORMAL ADVICE HAS BEEN RECEIVED THAT YOUR OFFICE ON JULY 27, 1939, INSTRUCTED PAYMENT BE MADE TO MR. POWELL OF THE AMOUNT DUE AS A RETIRED LIGHTHOUSE KEEPER, WITHOUT THE NECESSITY OF AN ELECTION BY HIM BETWEEN PENSION PREDICATED ON MILITARY SERVICE AND SUCH RETIRED PAY.

WHILE THIS INFORMATION INDICATES THAT NO DECISION WAS RENDERED AT THE TIME OF THE SETTLEMENT, YOUR OFFICE HAS INFORMALLY STATED THAT, ON SEPTEMBER 1, 1939, A LETTER WAS WRITTEN TO THE HONORABLE MILLARD E. TYDINGS ADVISING HIM OF THE REASONS WHICH YOUR OFFICE BELIEVED WARRANTED SUCH PAYMENT.

IN ORDER THAT THIS ADMINISTRATION MAY, IN CONNECTION WITH THE CLAIMS OF RETIRED LIGHTHOUSE KEEPERS FOR PENSION BENEFITS, GIVE FULL CONSIDERATION TO ANY AND ALL FEATURES DEALING WITH SAID CLAIM, IT WILL BE APPRECIATED IF YOU WILL FURNISH A COPY OF YOUR LETTER TO THE HONORABLE MR. TYDINGS, TOGETHER WITH SUCH OTHER AND ADDITIONAL INFORMATION OR CITATIONS OF AUTHORITY AS YOU BELIEVE PERMITS THE PAYMENT OF THE TWO BENEFITS CONCURRENTLY.

IN ADDITION TO THE AUTHORITY VESTED IN THIS OFFICE TO RENDER DECISIONS TO THE HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OR DISBURSING OFFICERS ON QUESTIONS SUBMITTED BY THEM IN CONNECTION WITH PROPOSED EXPENDITURES, TO DISBURSING OFFICERS ON REQUEST FOR REVIEW OF DISALLOWANCES IN THEIR ACCOUNTS AND TO CLAIMANTS DISSATISFIED WITH THE SETTLEMENT OF THEIR CLAIMS, THERE EXISTS, ALSO, THE AUTHORITY TO RENDER DECISIONS MAKING AN ORIGINAL CONSTRUCTION OR MODIFYING AN EXISTING CONSTRUCTION OF STATUTES INVOLVED IN THE SETTLEMENT OF ANY ACCOUNT OR CLAIM BEFORE THE OFFICE. SEE SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 207-208, AS AMENDED BY TITLE III OF THE ACT OF JUNE 10, 1921, 42 STAT. 23. IT WAS PURSUANT TO THIS AUTHORITY THAT THE CLAIM TO WHICH YOU REFER WAS CONSIDERED AND ON JULY 24, 1939, THE CHIEF OF THE CLAIMS DIVISION OF THIS OFFICE WAS INSTRUCTED AS FOLLOWS:

THERE ARE RETURNED THE PAPERS IN THE CLAIM OF GARY E. POWELL FOR $56.98, CLAIMED TO BE DUE HIM AS PAY OF A RETIRED KEEPER, BUREAU OF LIGHTHOUSES, DEPARTMENT OF COMMERCE, FOR THE MONTH OF NOVEMBER 1938. THE CLAIM WAS SENT TO THIS OFFICE FOR SETTLEMENT BY THE SECRETARY OF COMMERCE BY LETTER OF DECEMBER 29, 1938, WITH ENCLOSURES, INCLUDING A LETTER FROM THE COMMISSIONER OF LIGHTHOUSES, DATED DECEMBER 14, 1938, AS FOLLOWS:

"THERE IS TRANSMITTED HEREWITH FOR DIRECT SETTLEMENT CLAIM OF GARY E. POWELL, 1834 POTOMAC AVENUE, S.E., WASHINGTON, D.C., IN THE SUM OF $56.98 FOR RETIRED PAY FOR THE MONTH OF NOVEMBER 1938, UNDER THE PROVISIONS OF SEC. 6 OF THE ACT OF JUNE 20, 1918 (40 STAT. 608), AS AMENDED BY THE ACT OF MARCH 4, 1925 (43 STAT. 1261), WHICH HAS BEEN ASSIGNED COMMERCE CLAIM NO. 70402:

"THE RECORDS OF THIS BUREAU INDICATE THAT MR. POWELL WAS DULY RETIRED BY THE SECRETARY OF COMMERCE UNDER THE PROVISIONS OF THE ABOVE CITED ACTS, EFFECTIVE CLOSE OF FEBRUARY 29, 1928, WITH AN ANNUITY OF $612.07 AND THAT HIS RETIRED PAY WAS ADJUSTED TO $683.85 PER ANNUM, EFFECTIVE AUGUST 13, 1935, AS TO WHICH REFERENCE IS MADE TO SETTLEMENT BY YOUR OFFICE NO. 10415222, DATED AUGUST 21, 1936, AND YOUR LETTER (MISC-0442709-OFS), DATED OCTOBER 22, 1936, TO THE DEPARTMENT OF COMMERCE, BUREAU OF LIGHTHOUSES. THE SERVICE PERIOD ON WHICH SUCH RETIRED PAY WAS BASED WAS EXCLUSIVE OF THE PERIOD ON ACCOUNT OF WHICH SPANISH WAR MILITARY PENSION WAS GRANTED ( PUB. NO. 269-74TH CONGRESS). UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1918, NO CONTRIBUTION IS REQUIRED TO BE MADE BY THE BENEFICIARIES OF THAT LAW. MR. POWELL WAS PAID HIS RETIRED PAY FOR THE MONTH OF OCTOBER, 1938, ON D.O. VOUCHER NO. 643015, ACCOUNTS OF G. F. ALLEN, CHIEF DISBURSING OFFICER, SYMBOL NO. 108-100, CHECK DATED OCTOBER 31, 1938.

"BY LETTER DATED NOVEMBER 21, 1938 (COPY ENCLOSED) FROM THE VETERANS' ADMINISTRATION, THIS BUREAU WAS INFORMED THAT MR. POWELL HAD ON OCTOBER 28, 1938, INDICATED HIS ELECTION TO RETAIN THE SPANISH WAR MILITARY PENSION, IN CONSEQUENCE OF WHICH IT WAS CONSIDERED THAT FURTHER PAYMENTS OF RETIRED PAY SHOULD BE SUSPENDED. MR. POWELL WAS SO INFORMED AND THE SUBMISSION OF ENCLOSED CLAIM BY HIM IS A RESULT OF THAT ACTION.

"IT IS UNDERSTOOD THAT THE VETERANS' ADMINISTRATION HAS MADE A DETERMINATION THAT RETIRED PAY RECEIVED UNDER THE ACT OF JUNE 21, 1918, SUPRA, IS A "PENSION" WITHIN THE MEANING OF SECTION 4715, REVISED STATUTES (38 U.S.C. 25), PROHIBITING THE ALLOWANCE OF MORE THAN ONE PENSION AT THE SAME TIME TO THE SAME PERSON, AND IT APPEARS THAT PURSUANT THERETO THE RECIPIENTS OF A MILITARY PENSION AND LIGHTHOUSE SERVICE RETIRED PAY ARE BEING CALLED UPON TO MAKE AN ELECTION OF ONE OR THE OTHER. THE LEGAL QUESTION INVOLVED IS APPARENTLY WHETHER SUCH DETERMINATION OF THE VETERANS' ADMINISTRATION IS CORRECT. MR. POWELL'S CLAIM IS ADMINISTRATIVELY APPROVED BY THIS BUREAU.'

IT IS UNDERSTOOD THAT MR. POWELL AT THE PRESENT TIME IS RECEIVING A SPANISH-AMERICAN WAR PENSION OF $60 PER MONTH INCIDENT TO SERVICE AS AN ENLISTED MAN IN THE ARMY DURING THE WAR WITH SPAIN. IN REQUIRING THE CLAIMANT TO ELECT BETWEEN RECEIVING THE SPANISH-AMERICAN WAR PENSION AND THE RETIREMENT PAY UNDER THE LIGHTHOUSE SERVICE, THE ADMINISTRATOR OF VETERANS' AFFAIRS BASED HIS ACTION UPON AN OPINION OF THE SOLICITOR OF THE VETERANS' ADMINISTRATION, DATED JULY 1, 1938, IN THE CASE OF GEORGE W. BARDWELL, C-989,127.

IN ADDITION TO THE SERVICE IN THE LIGHTHOUSE SERVICE, THE ADJUTANT GENERAL REPORTED MAY 7, 1935, THAT---

"THE RECORDS SHOW THAT GARY E. POWELL ENLISTED OCTOBER 25, 1898, AT FORT NIAGARA, NEW YORK, WAS ASSIGNED TO COMPANY K, 13TH U.S. INFANTRY, AND WAS HONORABLY DISCHARGED OCTOBER 24, 1901, WHILE EN ROUTE TO THE UNITED STATES FROM MANILA, PHILIPPINE ISLANDS, BY EXPIRATION OF TERM OF SERVICE, A MUSICIAN.'

THE ACTION IN THE VETERANS' ADMINISTRATION SEEMS TO BE PREDICATED ON THE VIEW THAT THE RETIRED PAY OF LIGHTHOUSE KEEPERS UNDER THE ACT OF JUNE 20, 1918, IS A PENSION AND FALLS WITHIN THE TERMS OF SECTION 4715, REVISED STATUTES (38 U.S.C. 25). SEE THE SOLICITOR'S OPINION OF SEPTEMBER 26, 1933, CASE OF JAMES BURKE, C-1,528,102. THE MATTER THERETOFORE HAD BEEN CONSIDERED BY THE SOLICITOR IN AN OPINION OF SEPTEMBER 12, 1932 (CASE OF CHARLES R. MARSHALL, C-1,596,667) WHERE THE HISTORY OF THE ACT OF JUNE 20, 1918, WAS ELABORATELY CONSIDERED IN CONNECTION WITH A CLAIM FOR DISABILITY ALLOWANCE BASED ON SERVICE IN THE WORLD WAR IN THE LIGHTHOUSE SERVICE WHILE UNDER THE JURISDICTION OF THE NAVY DEPARTMENT, AND THE CONCLUSION WAS REACHED THAT THE PURPOSE OF THE RETIREMENT ACT OF JUNE 20, 1918, WAS TO OVERCOME THE INEQUALITY BETWEEN THE MEMBERS OF THE LIGHTHOUSE SERVICE AND MEMBERS OF THE FORMER LIFE SAVING SERVICE, WHICH WAS COMBINED WITH THE COAST GUARD IN 1915 AND BECAME ENTITLED TO RETIREMENT BENEFITS OF THE REVENUE CUTTER SERVICE; AND IN THAT OPINION REFERENCE WAS MADE TO SECTIONS 26 AND 27 OF TITLE 38 OF THE U.S.C. DENYING PENSIONS TO PERSONS ON THE ACTIVE OR RETIRED LISTS OF THE ARMY, NAVY, MARINE CORPS AND COAST GUARD. THE OPINION IN PART IS AS FOLLOWS:

"IN THE LIGHT OF THE RULES OF LAW ABOVE REFERRED TO, IT IS REASONABLE TO ASSUME THAT SINCE, AS INDICATED BY THE COMMITTEE REPORT ABOVE REFERRED TO, IT WAS THE INTENTION OF THE LEGISLATURE IN ENACTING SECTION 6 OF THE ACT OF JUNE 20, 1918, TO OVERCOME THE INEQUALITIES BETWEEN THE FIELD EMPLOYEES OF THE LIGHTHOUSE SERVICE AND THE COAST GUARD INSOFAR AS RETIREMENT IS CONCERNED, CONGRESS INTENDED THAT THE SAME PROHIBITION AGAINST THE RECEIPT OF BOTH PENSION AND RETIRED PAY SHOULD BE APPLICABLE TO RETIRED MEMBERS OF THE LIGHTHOUSE SERVICE, IN THE ABSENCE OF A SPECIFIC PROHIBITION TO THE CONTRARY. ESPECIALLY IS THIS TRUE IN THE LIGHT OF THE FACT THAT THE CIVIL SERVICE RETIREMENT ACT CONTAINS A SPECIFIC PROVISION AUTHORIZING THE RECEIPT OF BOTH PENSION AND RETIRED PAY.'

IN AN OPINION OF THE SOLICITOR OF JULY 1, 1938, CASE OF GEORGE W. BARDWELL, C-989,127, THE VETERAN HAD SERVICE IN THE ARMY, MAY 4, 1898, TO NOVEMBER 18, 1898, AND IT WAS HELD THAT PAYMENT OF VETERAN'S PENSION CONCURRENTLY WITH THE RECEIPT OF LIGHTHOUSE SERVICE RETIREMENT PAY WOULD BE IN VIOLATION OF SECTION 4715, REVISED STATUTES.

SECTION 6 OF THE ACT OF JUNE 20, 1918, 40 STAT. 608, 33 U.S.C. 763, IS AS FOLLOWS:

"THAT HEREAFTER ALL OFFICERS AND EMPLOYEES ENGAGED IN THE FIELD SERVICE OR ON VESSELS OF THE LIGHTHOUSE SERVICE, EXCEPT PERSONS CONTINUOUSLY EMPLOYED IN DISTRICT OFFICES OR SHOPS, WHO SHALL HAVE REACHED THE AGE OF SIXTY-FIVE YEARS, AFTER HAVING BEEN THIRTY YEARS IN THE ACTIVE SERVICE OF THE GOVERNMENT, MAY AT THEIR OPTION BE RETIRED FROM FURTHER PERFORMANCE OF DUTY; AND ALL SUCH OFFICERS AND EMPLOYEES WHO SHALL HAVE REACHED THE AGE OF SEVENTY YEARS SHALL BE COMPULSORILY RETIRED FROM FURTHER PERFORMANCE OF DUTY: PROVIDED, THAT THE ANNUAL COMPENSATION OF PERSONS SO RETIRED SHALL BE A SUM EQUAL TO ONE FORTIETH OF THE AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE OR IN A DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM, NOT TO EXCEED IN ANY CASE THIRTY-FORTIETHS OF SUCH AVERAGE ANNUAL PAY RECEIVED: PROVIDED FURTHER, THAT SUCH RETIREMENT PAY SHALL NOT INCLUDE ANY AMOUNT ON ACCOUNT OF SUBSISTENCE OR OTHER ALLOWANCE.'

THE ACT OF MARCH 4, 1925, 43 STAT. 1261, 33 U.S.C. 765, PROVIDES:

"THAT HEREAFTER ANY OFFICER OR EMPLOYEE TO WHOM SECTION 6 OF THE ACT ENTITLED "AN ACT TO AUTHORIZE AIDS TO NAVIGATION AND FOR OTHER WORKS IN THE LIGHTHOUSE SERVICE, AND FOR OTHER POSES," APPROVED JUNE 20,1918, AS AMENDED, APPLIES, WHO HAS BEEN IN THE ACTIVE SERVICE OF THE GOVERNMENT FIFTEEN YEARS OR MORE AND WHO IS FOUND, AFTER EXAMINATION BY A MEDICAL OFFICER OF THE UNITED STATES, TO BE DISABLED FOR USEFUL AND EFFICIENT SERVICE BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON HIS PART, SHALL BE RETIRED UNDER RULES TO BE PRESCRIBED BY THE SECRETARY OF COMMERCE ON AN ANNUITY COMPUTED IN THE MANNER PROVIDED IN SUCH ACT.' SECTION 4715, REVISED STATUTES (38 U.S.C. 25) 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.'

" TITLE" IN WHICH THE PROVISION APPEARS IS " TITLE LVII--- PENSIONS" OF THE REVISED STATUTES AND THE PROVISION WAS ORIGINALLY CONTAINED IN SECTION 20 OF THE ACT OF MARCH 3, 1873, 17 STAT. 573, BEING "AN ACT TO REVISE, CONSOLIDATE, AND AMEND THE LAWS RELATING TO PENSIONS.' THE ACT RELATED TO PENSIONS FOR MILITARY OR NAVAL SERVICE OR SERVICE IN THE CIVIL WAR IN THE ENUMERATED CONDITIONS SINCE MARCH 4, 1861.

IT APPEARS FROM A LETTER OF MAY 16, 1934, FROM THE DIRECTOR, VETERANS' CLAIMS SERVICE, VETERANS' ADMINISTRATION, ADDRESSED TO THIS OFFICE THAT THE CLAIMANT "HAS BEEN IN RECEIPT OF A PENSION AT VARYING RATES BASED ON SUCH SERVICE (AS REPORTED BY THE ADJUTANT GENERAL) FROM JULY 12, 1920, AND IS NOW RECEIVING $30.00 PER MONTH EFFECTIVE JULY 1, 1933.'

IN CONNECTION WITH A CLAIM BY CLAIMANT FOR INCREASE IN RETIRED PAY BECAUSE OF ARMY SERVICE NOT COUNTED IN CONNECTION WITH HIS RETIREMENT FROM THE LIGHTHOUSE SERVICE, THE DIRECTOR OF PENSIONS IN LETTER OF OCTOBER 4, 1933, TO THE COMMISSIONER OF PENSIONS ( LIGHTHOUSES) (COPY FURNISHED THIS OFFICE) STATED:

"FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1933, WHEREIN YOU REQUESTED TO BE INFORMED AS TO WHAT PORTION OF THE ABOVE-NAMED VETERAN'S SERVICE MAY BE USED FOR RETIREMENT PURPOSES. "THE VETERAN, GARY E. POWELL, ENLISTED OCTOBER 25, 1898, WAS ASSIGNED TO COMPANY K, 13TH U.S. INFANTRY, AND WAS HONORABLY DISCHARGED THEREFROM ON OCTOBER 24, 1901.

"IN COMPUTING HIS SERVICE FOR RETIREMENT PURPOSES, PRIOR TO JULY 1, 1933 YOU MAY USE A CREDIT OF TWO YEARS SIX MONTHS AND THIRTEEN DAYS WHICH IS EXCLUSIVE OF THE PERIOD FOR WHICH HE WAS PENSIONED. BUT, DUE TO A CHANGE IN THE DATES FOR THE WAR WITH SPAIN, THE PHILIPPINE INSURRECTION AND THE BOXER REBELLION, UNDER PUBLIC NO. 2, 73D CONGRESS, AND REGULATIONS ISSUED PURSUANT THERETO, IT IS NOW CONSIDERED THAT THE VETERAN'S ENTIRE SERVICE WAS RENDERED DURING THE PERIOD OF THE PHILIPPINE INSURRECTION--- ALL OF WHICH MUST BE UTILIZED FOR PENSION PURPOSES, AND FROM JULY 1, 1933 NO PART OF HIS SERVICE MAY BE RELEASED FOR RETIREMENT PURPOSES.'

ON THE RECOMMENDATION OF THE DEPARTMENT OF COMMERCE WITH THE CONCURRENCE OF THE VETERANS' ADMINISTRATION, THIS OFFICE BY SETTLEMENT OF AUGUST 16, 1934, ALLOWED THE CLAIMANT ADDITIONAL RETIRED PAY BASED ON HIS SERVICE IN THE ARMY OTHER THAN DURING THE SPANISH-AMERICAN WAR ON WHICH HIS PENSION WAS BASED FROM MARCH 1, 1928, TO JUNE 30, 1933. SUBSEQUENTLY, BASED UPON THE ACT OF AUGUST 13, 1935, 49 STAT. 614, RESTORING THE PENSION LAWS APPLYING TO VETERANS OF THE SPANISH-AMERICAN WAR AND CERTAIN OTHERS AS IN EFFECT MARCH 19, 1933, THERE WAS ALLOWED BY SETTLEMENT OF AUGUST 21, 1936, DIFFERENCE IN RETIRED PAY BASED ON MILITARY SERVICE OTHER THAN DURING THE SPANISH-AMERICAN WAR, FOR THE PERIOD AUGUST 13, 1935, TO JULY 31, 1936. AS ALL OFFICERS CONCERNED WERE ON NOTICE THAT CLAIMANT WAS DURING THESE PERIODS IN RECEIPT OF A PENSION FOR HIS SPANISH-AMERICAN WAR SERVICE, IT IS OBVIOUS THAT THIS DETERMINATION WAS A CONSTRUCTION OF THE LAWS THAT HE WAS ENTITLED TO LIGHTHOUSE SERVICE RETIRED PAY NOTWITHSTANDING HE WAS IN RECEIPT OF A PENSION FOR HIS SPANISH-AMERICAN WAR SERVICE.

SUBSEQUENTLY, THE VETERANS' ADMINISTRATION SEEMS TO HAVE CHANGED ITS VIEW OF THE LAW AND THE MATTER FOR CONSIDERATION IS, THEREFORE, WHETHER THE LAW IS SO CLEAR AND PLAIN THAT THE PREVIOUS ACTION IN THESE SETTLEMENTS WAS IN ERROR. IT WILL BE OBSERVED THE PENSION WAS PAID WITHOUT QUESTION WHILE THE CLAIMANT WAS IN THE PERFORMANCE OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE FROM JULY 12, 1920, TO THE DATE OF HIS RETIREMENT, FEBRUARY 29, 1928, AND THAT IS NOT NOW QUESTIONED. THE DISTINCTION IN THE OPINION OF THE VETERANS' ADMINISTRATION APPARENTLY IS THAT PAY FOR ACTIVE SERVICE WAS PAY FOR SERVICE RENDERED BUT THAT RETIRED PAY WITHOUT CONTRIBUTING TO A FUND THEREFOR IS A GRATUITY; THEREFORE A PENSION AND SUBJECT TO THE INHIBITION OF SECTION 4715, REVISED STATUTES. THE ATTORNEY GENERAL HAS CONSTRUED SECTION 4715 DIFFERENTLY FROM THE CONSTRUCTION PLACED UPON IT BY THE SOLICITOR OF THE VETERANS' ADMINISTRATION. SEE THE CASE OF GENERAL BURNETT, 17 OP. A.G. 415, RECONSIDERING AN OPINION PUBLISHED AT PAGE 401, WHERE THE FORMER OFFICER WAS ENTITLED UNDER THE GENERAL LAWS TO A PENSION OF $50 PER MONTH, AND THE CONGRESS PASSED A SPECIAL ACT GIVING HIM ANOTHER PENSION. THE ATTORNEY GENERAL REMARKED:

"* * * THIS DID NOT TAKE AWAY HIS RIGHT UNDER THE GENERAL LAW, NOR WAS HIS PENSION MERGED IN THAT GRANTED BY THE SPECIAL ACT.

"THE CASE IS EXCEPTIONAL. IN THE LAW, UNDER THE TITLE " PENSIONS," AS ENACTED IN 1878, NOTHING CAN BE SO CONSTRUED AS TO ALLOW MORE THAN ONE PENSION AT THE SAME TIME TO THE SAME PERSON. BUT SUBSEQUENTLY, CONGRESS HAVING THE POWER, STEPPING BEYOND THE RULE PRESCRIBED IN SECTION 4715, BY A SEPARATE, INDEPENDENT LAW GIVES TO A PENSIONER ALREADY ENTITLED TO A PENSION OF $50 ANOTHER PENSION OF THE SAME AMOUNT. SECTION 4715 HAS, IN MY JUDGMENT, NO APPLICATION TO A CASE OF THIS KIND.'

SECTIONS 4756 AND 4757, REVISED STATUTES, PROVIDE FOR PAYMENTS TO DISABLED NAVY OR MARINE CORPS ENLISTED MEN HAVING OVER 20 YEARS' SERVICE, A SUM EQUAL TO ONE-HALF OF THE PAY OF HIS RATING IN LIEU OF BEING PROVIDED WITH A HOME AT THE NAVAL HOME AND IF SERVICE IS NOT LESS THAN 10 YEARS FOR PAYMENT OF "A SUITABLE AMOUNT FOR HIS RELIEF" WITH CERTAIN QUALIFICATIONS. THE ATTORNEY GENERAL, 31 OP. A.G. 268, WHILE HOLDING THAT BOTH THESE PAYMENTS WERE PENSIONS WITHIN THE MEANING OF SECTION 4813, REVISED STATUTES, HELD THAT THE "ALLOWANCES" UNDER THESE SECTIONS DID NOT FALL WITHIN THE PROHIBITION OF SECTION 4715, REVISED STATUTES, AND MIGHT, THEREFORE, BE PAID IN ADDITION TO A PENSION UNDER THE GENERAL PENSION LAWS. THIS OPINION WAS ADDRESSED JOINTLY TO THE SECRETARY OF THE NAVY AND THE SECRETARY OF THE INTERIOR. AS TO A CHANGE IN THE CONSTRUCTION OF A LAW ADOPTED BY THE EXECUTIVE DEPARTMENTS WHERE THE CONSTRUCTION HAS BEEN FOLLOWED FOR A PERIOD OF YEARS, SEE 31 OP. ATTY. GEN. 268, AND UNITED STATES V. FENNELL, 185 U.S. 236, PAGE 244.

THE LIGHTHOUSE SERVICE IS A CIVILIAN SERVICE. PRIOR TO 1918 NO PROVISION WAS MADE FOR THE RETIREMENT OF CIVILIAN OFFICERS OR EMPLOYEES OF THE GOVERNMENT OTHER THAN THE JUDICIARY, THE PROVISION FOR RETIREMENT HAVING INCLUDED ONLY THE MILITARY OR QUASI-MILITARY SERVICES, THAT IS, THE ARMY, THE NAVY, THE MARINE CORPS, AND THE REVENUE CUTTER SERVICE, WHICH AFTER 1915 BECAME THE COAST GUARD AND INCLUDED FROM THAT TIME THE LIFE SAVING SERVICE, THERETOFORE A CIVILIAN SERVICE UNDER THE TREASURY DEPARTMENT. THERE IS NO STATUTE PROVIDING FOR RETIREMENT OF OFFICERS OF THE PUBLIC HEALTH SERVICE BUT BY REGULATION AUTHORIZED BY STATUTE, THE PRESIDENT HAD FOR MANY YEARS PROVIDED FOR WAITING ORDERS PAY OF 75 PERCENT OF ACTIVE DUTY PAY FOR OFFICERS OF THE PUBLIC HEALTH SERVICE NOT ABLE TO PERFORM THEIR DUTIES. BY THE ACT OF 1918 THERE WAS AUTHORIZED TO BE COUNTED IN THE COMPUTATION OF RETIRED PAY ON RETIREMENT FROM THE LIGHTHOUSE SERVICE "EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE OR IN A DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM" NOT EXCEEDING THIRTY-FORTIETHS OF THE AVERAGE ANNUAL PAY OF THE FIVE LAST YEARS OF SERVICE BEFORE RETIREMENT. THIS IS AN OBVIOUS REFERENCE TO THE PROVISIONS FOR RETIREMENT IN THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, BUT SUCH PROVISION DOES NOT CONSTITUTE THE LIGHTHOUSE SERVICE A MILITARY SERVICE OR A PART OF THE MILITARY FORCES OF THE UNITED STATES.

THE ACT OF MARCH 3, 1891, 38 U.S.C. 26, PROVIDES:

"NO PENSION SHALL BE ALLOWED OR PAID TO ANY OFFICER, NONCOMMISSIONED OFFICER, OR PRIVATE IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, EITHER ON THE ACTIVE OR RETIRED LIST.'

THE ACT OF JANUARY 28, 1915, 38 STAT. 801, 14 U.S.C. 176, MAKES THE SAME PROVISION AS TO OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE COAST GUARD. IT IS CLEAR FROM THESE LAST TWO CITED PROVISIONS THAT THE RECEIPT OF ACTIVE DUTY OR RETIRED PAY IN MILITARY OR QUASI MILITARY SERVICES IS TO BE IN LIEU OF ANY RIGHT TO PENSIONS BECAUSE OF MILITARY SERVICE. WHATEVER THE REASON FOR THE ENACTMENT OF THE ACT OF JUNE 20, 1918, IT DOES NOT CONSTITUTE THE LIGHTHOUSE SERVICE A MILITARY OR QUASI-MILITARY SERVICE, THE LAW CONTAINS NO RESTRICTION UPON THE RECEIPT OF A MILITARY PENSION WHILE IN ACTIVE SERVICE, AND THE PAYMENTS MADE THIS CLAIMANT SHOW NO SUCH QUESTION WAS RAISED IN THE VETERANS' ADMINISTRATION AS TO PAYMENTS WHILE IN THE PERFORMANCE OF ACTIVE SERVICE FROM JULY 12, 1920. OBVIOUSLY IF HIS SERVICE HAD BEEN IN THE COAST GUARD UNDER THE CITED ACT OF 1915, NO PENSION COULD HAVE BEEN PAID FOR MILITARY SERVICE, SO THAT THE ASSIMILATION TO THE COAST GUARD AS SUGGESTED IN ONE OF THE SOLICITOR'S OPINIONS IS NOT COMPLETE IF IT IS ONLY RETIRED PAY FOR LIGHTHOUSE SERVICE THAT MAY NOT BE PAID WHEN IN RECEIPT OF A PENSION.

THERE IS ALSO A QUESTION WHETHER THE RETIRED PAY IS A GRATUITY AND FOR THAT REASON NECESSARY TO BE DENOMINATED A PENSION. IT IS TRUE NO CONTRIBUTION AS SUCH IS MADE BY THE MEMBERS OF THE LIGHTHOUSE SERVICE ENTITLED TO RETIREMENT AS IN THE CASE OF CIVIL EMPLOYEES OF THE GOVERNMENT, BUT WHETHER THE EMPLOYEE SERVES AT A REDUCED PAY AND IS GIVEN THE RIGHT TO RETIREMENT WITH PAY AFTER A SPECIFIED PERIOD OF SERVICE UPON ATTAINING A GIVEN AGE OR BECOMING DISABLED; OR IS REQUIRED TO CONTRIBUTE A PERCENTAGE OF HIS GREATER PAY TO CREATE A FUND FOR PAYMENT OF AN ANNUITY UPON BEING RETIRED, IT IS IN FACT A PART OF COMPENSATION, A RIGHT GIVEN BY STATUTE, ACCRUING BECAUSE OF SERVICE, AND IS NOT A GRATUITY. IN THE CASES USUALLY CITED TO ESTABLISH THE PROPOSITION THAT TWO PENSIONS OR GRATUITIES MAY NOT BE PAID TO THE SAME PERSON AT THE SAME TIME--- UNITED STATES V. TELLER, 107 U.S. 64 AND 3 OP. ATTY. GEN. 200 ( DECATUR CASE/--- BOTH PENSIONS WERE FOR THE SAME SERVICE. SEE, ALSO, 36 OP. A.G. 164 TO THE SAME EFFECT. IN THE PATE CASE, 78 CT. CLS. 395, THE CLAIM WAS FOR RETIRED PAY OF AN ENLISTED MAN OF THE REGULAR ARMY RETIRED AFTER 30 YEAR'S SERVICE WHO SERVED IN THE WORLD WAR AS A COMMISSIONED OFFICER AND WAS THUS ENTITLED TO THE PAY OF A WARRANT OFFICER, AND, ALSO, THE RETIRED PAY OF AN EMERGENCY OFFICER RETIRED UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928, 45 STAT. 735, WHICH AUTHORIZED THE PLACING OF CERTAIN EMERGENCY OFFICERS OF THE WORLD WAR ON THE RETIRED LIST OF THE ARMY WITH 75 PERCENT OF THE PAY THEY WERE ENTITLED TO RECEIVE AT THE TIME OF DISCHARGE FROM THEIR COMMISSIONED SERVICE. IN OTHER WORDS, THE CLAIM WAS THAT HE WAS A RETIRED ENLISTED MAN AND ALSO A RETIRED OFFICER OF THE ARMY AND WAS ENTITLED TO PAY IN BOTH CAPACITIES. NOTWITHSTANDING THE SWEEPING LANGUAGE USED BY THE COURT IN THAT CASE IT IS NOT AUTHORITY FOR THE PROPOSITION THAT AN EMPLOYEE IN A CIVIL POSITION UNDER THE GOVERNMENT WHO EARNS A RIGHT TO AN ANNUITY BECAUSE OF HIS SERVICE IN THE CIVIL POSITION AND AS A PART OF THE COMPENSATION OF THE CIVIL POSITION, SHALL BE DENIED THE RIGHT TO PENSION FOR HIS MILITARY SERVICE NOT COUNTED IN CONNECTION WITH HIS SERVICE IN THE CIVIL POSITION FOR THE PURPOSE OF AN ANNUITY OR RETIRED PAY.

THE ACT OF JUNE 4, 1920, 41 STAT. 982 (38 U.S.C. 351) AUTHORIZES PENSIONS FOR "ALL PERSONS WHO SERVED NINETY DAYS OR MORE IN THE WAR WITH SPAIN" UNDER THE QUALIFICATIONS AND CONDITIONS THEREIN NAMED AND SUBJECT TO THE GENERAL PROVISIONS OF THE PENSION LAWS, NONE OF WHICH DENY THE BENEFITS TO A PERSON HAVING A RETIRED STATUS FROM A CIVIL POSITION UNDER THE GOVERNMENT ANY MORE THAN IF HE WERE RECEIVING RETIREMENT BENEFITS FROM PRIVATE EMPLOYMENT IN A CIVILIAN CAPACITY.

HOWEVER, THE ADMINISTRATION OF THE PENSION LAWS IS NOT ONE OF THE DUTIES OF THIS OFFICE. THE RIGHT TO RETIRED PAY IN THIS CASE IS UNDER THE LIGHTHOUSE RETIREMENT LAW OF 1918. THAT RIGHT IS WITHOUT QUALIFICATION IF THE PERSON IS OTHERWISE WITHIN THE ACT AND IS PAYABLE NOTWITHSTANDING THE PERSON IS, ALSO, ENTITLED TO AND RECEIVING A PENSION FOR MILITARY SERVICE, SUCH SERVICE NOT HAVING BEEN COUNTED IN THE COMPUTATION OF THE RETIREMENT PAY UNDER THE LIGHTHOUSE RETIREMENT ACT. ACCORDINGLY, THE CLAIM, TO THE EXTENT OTHERWISE CORRECT, MAY BE ALLOWED.