A-61173, MAY 11, 1935, 14 COMP. GEN. 827

A-61173: May 11, 1935

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MAY NOT BE MADE TO THE WIDOW WHO IS IN RECEIPT OF DEATH COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT. IT APPEARS THAT SHE IS RECEIVING COMPENSATION AS WIDOW UNDER SECTION 10 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. THERE IS NOTHING IN PUBLIC. PROVIDES AS FOLLOWS: THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT. UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED. OR IF THE PERSON WAS SERVING IN THE UNITED STATES MILITARY FORCES IN RUSSIA BEFORE APRIL 2. THAT THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY PERSON DURING ANY YEAR FOLLOWING A YEAR FOR WHICH SUCH PERSON WAS NOT ENTITLED TO EXEMPTION FROM THE PAYMENT OF A FEDERAL INCOME TAX.

A-61173, MAY 11, 1935, 14 COMP. GEN. 827

DUAL PAYMENT OF DEATH COMPENSATION AND NONSERVICE-CONNECTED PENSIONS PAYMENTS OF NONSERVICE CONNECTED PENSIONS ON ACCOUNT OF THE DEATH OF A VETERAN UNDER THE ACT OF JUNE 28, 1934 (48 STAT. 1281), MAY NOT BE MADE TO THE WIDOW WHO IS IN RECEIPT OF DEATH COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MAY 11, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 29, 1935, AS FOLLOWS:

THE WIDOW OF GEORGE W. ELLINGTON, XC-326,367, HAS FILED CLAIM FOR COMPENSATION UNDER PUBLIC, NO. 484, 73D CONGRESS, APPROVED JUNE 28, 1934, WHICH PROVIDES DEATH BENEFITS FOR THE DEPENDENTS OF VETERANS OF THE WORLD WAR WHO DIE WHILE RECEIVING OR ENTITLED TO RECEIVE PENSION, COMPENSATION, OR EMERGENCY OFFICERS' RETIREMENT PAY FOR A 30-PERCENTUM OR MORE DISABILITY, DIRECTLY INCURRED IN OR AGGRAVATED BY SERVICE IN THE WORLD WAR, AND HAS BEEN FOUND ENTITLED THERETO. HOWEVER, IT APPEARS THAT SHE IS RECEIVING COMPENSATION AS WIDOW UNDER SECTION 10 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, BY REASON OF THE DEATH OF HER HUSBAND WHILE IN THE PERFORMANCE OF HIS DUTY AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE.

THERE IS NOTHING IN PUBLIC, NO. 484, 73D CONGRESS WHICH PRECLUDES ALLOWANCE OF COMPENSATION THEREUNDER TO ONE IN RECEIPT OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT. SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT APPLIES ONLY TO EMPLOYEES. HOWEVER, HAVING IN MIND THE DECISIONS OF YOUR OFFICE THAT CONCURRENT PAYMENTS MAY NOT BE MADE OF EITHER DISABILITY COMPENSATION OR DISABILITY ALLOWANCE UNDER THE WORLD WAR VETERANS ACT, AS AMENDED, AND COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT ON THE GROUND THAT CONGRESS DID NOT INTEND THAT DUAL BENEFITS SHOULD BE PAID UNDER UNRELATED STATUTES FOR THE SAME OR RELATED DISABILITIES (A-27010, DATED JULY 12, 1929; A-40369 DATED FEBRUARY 24, 1932), AND THAT A CIVIL SERVICE EMPLOYEE COULD NOT BE PAID BOTH AN ANNUITY PREDICATED UPON RETIREMENT FOR DISABILITY UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED, AND COMPENSATION AS A WIDOW UNDER THE EMPLOYEES' COMPENSATION ACT (A 54173, DATED APRIL 3, 1934; A- 53889, DATED APRIL 4, 1934), THE ADMINISTRATION WOULD REQUEST YOUR VIEWS ON THE PRESENT MATTER BEFORE MAKING AN AWARD UNDER PUBLIC, NO. 484, 73D CONGRESS, IN ORDER THAT HER RIGHTS UNDER THE EMPLOYEES' COMPENSATION ACT MAY NOT BE PREJUDICED.

SECTION 7 OF THE 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.

SECTION 1 OF THE ACT OF JUNE 28, 1934 (48 STAT. 1281), PROVIDES AS FOLLOWS:

THAT THE SURVIVING WIDOW, CHILD, OR CHILDREN OF ANY DECEASED PERSON WHO SERVED IN THE WORLD WAR BEFORE NOVEMBER 12, 1918, OR IF THE PERSON WAS SERVING IN THE UNITED STATES MILITARY FORCES IN RUSSIA BEFORE APRIL 2, 1920, WHO, WHILE RECEIVING OR ENTITLED TO RECEIVE COMPENSATION, PENSION, OR RETIREMENT PAY FOR 30-PERCENTUM DISABILITY OR MORE DIRECTLY INCURRED IN OR AGGRAVATED BY SERVICE IN THE WORLD WAR, DIES OR HAS DIED FROM A DISEASE OR DISABILITY NOT SERVICE CONNECTED AND NOT THE RESULT OF THE PERSON'S OWN MISCONDUCT SHALL, UPON FILING APPLICATION AND SUCH PROOFS IN THE VETERANS' ADMINISTRATION AS THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY PRESCRIBE, BE ENTITLED TO RECEIVE COMPENSATION: PROVIDED, THAT THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY PERSON DURING ANY YEAR FOLLOWING A YEAR FOR WHICH SUCH PERSON WAS NOT ENTITLED TO EXEMPTION FROM THE PAYMENT OF A FEDERAL INCOME TAX.

PAYMENT OF COMPENSATION TO A WIDOW OR CHILDREN UNDER THE LAST-QUOTED STATUTE IS ON ACCOUNT OF THE DEATH OF A VETERAN NOT CONNECTED WITH HIS MILITARY OR NAVAL SERVICE. IT IS UNDERSTOOD THAT IN THE INSTANT CASE THE WIDOW IS MAKING A CLAIM UNDER THE STATUTE ON ACCOUNT OF THE DEATH OF HER HUSBAND, A FORMER EMPLOYEE OF THE GOVERNMENT, WHICH OCCURRED WHILE IN THE PERFORMANCE OF HIS CIVILIAN DUTIES, FOR WHICH SHE IS ALREADY RECEIVING DEATH COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT.

NOTWITHSTANDING THE ABSENCE OF A SPECIFIC PROVISION IN THE ACT OF JUNE 28, 1934, SO PROVIDING, THE STATUTE IS TO BE ADMINISTERED IN THE LIGHT OF THE CONSISTENT ACTION OF THE CONGRESS PROHIBITING DUAL PAYMENTS OF GRATUITIES FOR THE SAME DEATH OR DISABILITY. WHERE MORE THAN ONE STATUTE AUTHORIZING A PENSION OR GRATUITY FOR THE SAME DEATH OR THE SAME OR RELATED DISABILITY FIXES A MINIMUM RATE OF COMPENSATION, IT IS TO BE PRESUMED THAT THE CONGRESS INTENDED TO LIMIT THE BENEFICIARY TO PAYMENT OF THE MAXIMUM UNDER ONE OF THE STATUTES, ONLY, AND NOT TO ESTABLISH A PREFERRED CLASS OF BENEFICIARIES WHO WOULD BE ENTITLED TO BENEFITS UNDER THE TWO STATUTES. THE DECISIONS OF THIS OFFICE, CITED IN YOUR LETTER, ARE TO THIS EFFECT.

FURTHERMORE, THE WORD "EMPLOYEE" IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT, SUPRA, SHOULD BE REGARDED AS INCLUDING NOT ONLY THE EMPLOYEES THEMSELVES BUT, ALSO, BENEFICIARIES UNDER THE STATUTE MAKING CLAIM ON ACCOUNT OF THE DEATH OF AN EMPLOYEE, AND THE EXCEPTION TO THE PROVISIONS OF SECTION 7 OF "PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES" MAY NOT REASONABLY BE CONSTRUED AS REFERRING TO PAYMENTS UNDER THE ACT OF JUNE 28, 1934, SUPRA, ON ACCOUNT OF THE SAME DEATH FOR WHICH COMPENSATION IS PAID UNDER THE EMPLOYEES' COMPENSATION ACT.

THE CLAIM OF THE WIDOW OF GEORGE W. ELLINGTON, UNDER THE ACT OF JUNE 28, 1934, SHOULD BE REJECTED.