A-71351, JULY 30, 1936, 16 COMP. GEN. 83

A-71351: Jul 30, 1936

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ARE FOR RECOMPUTATION ON THE BASIS OF THE "PERIODS OF THE WARS" SERVICE AS CHANGED BY THE ACT OF AUGUST 13. 1936: THERE IS BEFORE ME FOR CONSIDERATION YOUR LETTER OF FEBRUARY 15. WHICH IS AS FOLLOWS: SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29. WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW. OR COMPENSATION IS BASED SHALL NOT BE INCLUDED. IN THE ADMINISTRATION OF THE RETIREMENT LAW IT HAS BEEN CONSISTENTLY HELD THAT WHERE A PENSION IS BASED ON MILITARY OR NAVAL SERVICE RENDERED DURING A PERIOD OF WAR THE ENTIRE SERVICE DURING SUCH PERIOD SHALL BE REGARDED AS THE BASIS FOR THE PENSION. OR COAST GUARD) ARE HEREBY REPEALED. MANY PERSONS WERE SEPARATED FROM THE CIVIL SERVICE OF THE UNITED STATES FOR VARIOUS CAUSES AND APPLIED FOR AND WERE GRANTED ANNUITIES UNDER THE CIVIL SERVICE RETIREMENT ACT.

A-71351, JULY 30, 1936, 16 COMP. GEN. 83

RETIREMENT - CIVILIAN EMPLOYEES - ANNUITY PAYMENTS INVOLVING MILITARY AND NAVAL SERVICE CREDITS - ADJUSTMENT OF WAR PERIODS ANNUITY PAYMENTS TO CIVILIAN EMPLOYEES OF THE UNITED STATES, RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED, COMPUTED ON THE BASIS OF INCLUSION OF MILITARY OR NAVAL SERVICE NOT AT THE TIME OF RETIREMENT MADE THE BASIS FOR MILITARY OR NAVAL PENSION, ARE FOR RECOMPUTATION ON THE BASIS OF THE "PERIODS OF THE WARS" SERVICE AS CHANGED BY THE ACT OF AUGUST 13, 1935, 49 STAT. 614, FOR PAYMENT OF ANNUITIES SUBSEQUENT TO SAID ACT, IF THE ANNUITANTS ELECT TO RECEIVE THE MILITARY OR NAVAL PENSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JULY 30, 1936:

THERE IS BEFORE ME FOR CONSIDERATION YOUR LETTER OF FEBRUARY 15, 1936, WHICH IS AS FOLLOWS:

SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930 (44 STAT. 468), PROVIDES IN PART:

"SUBJECT TO THE PROVISIONS OF SECTION 9 HEREOF, THE AGGREGATE PERIOD OF SERVICE WHICH FORMS THE BASIS FOR CALCULATING THE AMOUNT OF ANY BENEFIT PROVIDED IN THIS ACT SHALL BE COMPUTED FROM THE DATE OF ORIGINAL EMPLOYMENT, WHETHER AS A CLASSIFIED OR AN UNCLASSIFIED EMPLOYEE IN THE CIVIL SERVICE OF THE UNITED STATES, OR IN THE SERVICE OF THE DISTRICT OF COLUMBIA, INCLUDING PERIODS OF SERVICE AT DIFFERENT TIMES AND IN ONE OR MORE DEPARTMENTS, BRANCHES, OR INDEPENDENT OFFICES, OR THE LEGISLATIVE BRANCH OF THE GOVERNMENT, AND ALSO PERIODS OF SERVICE PERFORMED OVERSEAS UNDER AUTHORITY OF THE UNITED STATES, AND PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES; IN THE CASE OF AN EMPLOYEE, HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW, OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION, RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED, BUT NOTHING IN THIS ACT SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER HIS OR HER RIGHT TO A PENSION, OR TO RETIRED PAY, OR TO COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY HEREIN PROVIDED.'

IN THE ADMINISTRATION OF THE RETIREMENT LAW IT HAS BEEN CONSISTENTLY HELD THAT WHERE A PENSION IS BASED ON MILITARY OR NAVAL SERVICE RENDERED DURING A PERIOD OF WAR THE ENTIRE SERVICE DURING SUCH PERIOD SHALL BE REGARDED AS THE BASIS FOR THE PENSION, AND NO PART THEREOF MAY BE CREDITED UNDER THE RETIREMENT LAW, BUT ANY HONORABLE MILITARY OR NAVAL SERVICE RENDERED EITHER BEFORE OR AFTER THAT PERIOD MAY BE CREDITED REGARDLESS OF THE DURATION OF THE PERIOD OF ENLISTMENT. (22 P. AND R. DEC. 29.)

PRIOR TO THE ACT OF MARCH 20, 1933, PUBLIC 2, 73RD CONGRESS, REGULATIONS ADOPTED BY THE SECRETARY OF THE INTERIOR PROVIDED AS FOLLOWS:

"376. WAR WITH SPAIN--- PHILIPPINE INSURRECTION SERVICE.--- SERVICE RENDERED BETWEEN APRIL 21, 1898, AND JULY 4, 1902, WHICH FORMS THE BASIS FOR PENSION UNDER THE ACT OF JUNE 5, 1920, CANNOT BE INCLUDED IN THE PERIOD OF SERVICE WHICH FORMS THE BASIS FOR ANNUITY UNDER THE RETIREMENT ACT. SERVICE RENDERED DURING THE WAR WITH SPAIN, OR THE PHILIPPINE INSURRECTION OR THE CHINA RELIEF EXPEDITION, WHICH FORMS THE BASIS OF PENSION UNDER THE ACT OF MAY 1, 1926, SHALL NOT BE INCLUDED IN THE SERVICE WHICH FORMS THE BASIS FOR ANNUITY, BUT AN HONORABLE SERVICE OF AT LEAST 90 DAYS BETWEEN APRIL 21, 1898, THE DATE OF COMMENCEMENT OF THE WAR WITH SPAIN, AND APRIL 11, 1899, THE DATE OF ENDING OF SAID WAR, OR AN HONORABLE SERVICE OF A LIKE PERIOD BETWEEN APRIL 12, 1899, AND JULY 4, 1902, THE ENDING OF THE PHILIPPINE INSURRECTION, MAY BE CREDITED IN A CLAIM FOR ANNUITY BY USING THE SHORTER PERIOD AS THE BASIS FOR PENSION, ALTHOUGH SUCH CREDIT RESULTS IN SEVERING THE ENLISTMENT PERIOD.'

SECTION 17 OF THE ACT OF MARCH 20, 1933 (48 STAT. 11), PROVIDES THAT ALL PUBLIC LAWS GRANTING COMPENSATION, PENSION, DISABILITY ALLOWANCE, OR RETIREMENT PAY TO VETERANS OF THE SPANISH-AMERICAN WAR, INCLUDING THE BOXER REBELLION AND THE PHILIPPINE INSURRECTION, AND THE WORLD WAR, OR TO FORMER MEMBERS OF THE MILITARY OR NAVAL SERVICE FOR INJURY OR DISEASE INCURRED OR AGGRAVATED IN THE LINE OF DUTY IN THE MILITARY OR NAVAL SERVICE (EXCEPT SO FAR AS THEY RELATE TO PERSONS WHO SERVED PRIOR TO THE SPANISH-AMERICAN WAR AND TO THE DEPENDENTS OF SUCH PERSONS, AND THE RETIREMENT OF OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, NAVY, MARINE CORPS, OR COAST GUARD) ARE HEREBY REPEALED, AND SECTION 4 OF THE SAME ACT PROVIDES THAT THE PRESIDENT SHALL PRESCRIBE BY REGULATION THE DATE OF THE BEGINNING AND OF THE TERMINATION OF THE PERIOD IN EACH WAR SUBSEQUENT TO THE CIVIL WAR, INCLUDING THE BOXER REBELLION AND THE PHILIPPINE INSURRECTION, SERVICE WITHIN WHICH SHALL FOR THE PURPOSES OF THIS ACT BE DEEMED WARTIME SERVICE.

VETERANS' REGULATION NO. 10 ISSUED PURSUANT TO THIS AUTHORITY PROVIDES THAT:

"I. THE BEGINNING AND TERMINATION DATES OF THE WARS SHALL BE: THE WORLD WAR, APRIL 6, 1917, AND NOVEMBER 11, 1918, BUT AS TO SERVICE IN RUSSIA, THE ENDING DATE SHALL BE APRIL 1, 1920; THE SPANISH-AMERICAN WAR, APRIL 21, 1898, AND AUGUST 13, 1898; THE PHILIPPINE INSURRECTION, AUGUST 13, 1898, AND JULY 4, 1902, BUT AS TO ENGAGEMENTS IN THE MORO PROVINCE, THE ENDING DATE SHALL BE JULY 15, 1903; THE BOXER REBELLION, JUNE 20, 1900, AND MAY 12, 1901.'

THE ACT OF AUGUST 13, 1935, PUBLIC, NO. 269 (49 STAT. 614), 74TH CONGRESS, REENACTS ALL LAWS IN EFFECT ON MARCH 19, 1933, GRANTING PENSIONS TO VETERANS OF THE SPANISH-AMERICAN WAR, INCLUDING THE BOXER REBELLION AND THE PHILIPPINE INSURRECTION, EFFECTIVE FROM AND AFTER AUGUST 13, 1935, AND REPEALED ALL ACTS OR PARTS OF ACTS IN CONFLICT THEREWITH.

BETWEEN THE PERIOD FROM MARCH 20, 1933, AND AUGUST 12, 1935, MANY PERSONS WERE SEPARATED FROM THE CIVIL SERVICE OF THE UNITED STATES FOR VARIOUS CAUSES AND APPLIED FOR AND WERE GRANTED ANNUITIES UNDER THE CIVIL SERVICE RETIREMENT ACT. IN SOME INSTANCES, PENSION PAYMENTS WERE DISCONTINUED BY THE ACT OF MARCH 20, 1933, AND IN THE COMPUTATION OF THE APPLICANT'S AGGREGATE SERVICE FOR ANNUITABLE PURPOSES, THE TOTAL PERIOD OR PERIODS OF THEIR MILITARY SERVICE WERE INCLUDED. UNDER THE ACT OF AUGUST 13, 1935, PENSIONS MAY NOW BE RESTORED TO THESE PERSONS. HOWEVER, IF THE PERIOD OF MILITARY SERVICE UPON WHICH THE PENSION IS BASED MUST NOW BE EXCLUDED IN THE COMPUTATION OF ALLOWABLE SERVICE UNDER THE CIVIL SERVICE RETIREMENT ACT IT WILL RESULT IN A REDUCTION IN THE TIME BASE AND A CORRESPONDING REDUCTION IN ANNUITY BENEFITS, AND IN SOME CASES A DISCONTINUANCE OF ANNUITY BENEFITS ENTIRELY. IN OTHER CASES IN WHICH THE APPLICANT WAS RECEIVING A PENSION BY REASON OF WAR-TIME MILITARY SERVICE THERE WAS EXCLUDED FROM THE COMPUTATION OF AGGREGATE SERVICE UNDER THE CIVIL SERVICE RETIREMENT ACT THE SERVICE DURING THE WAR PERIODS AS DEFINED BY THE REGULATIONS OF THE PRESIDENT.

THE REENACTMENT OF ALL LAWS GRANTING PENSIONS TO VETERANS OF THE SPANISH- AMERICAN WAR, PHILIPPINE INSURRECTION AND BOXER REBELLION BY THE ACT OF AUGUST 13, 1935, WOULD APPEAR TO REVIVE THE FORMER WAR PERIODS, AND IN EFFECT REPEAL THE REGULATIONS OF THE PRESIDENT PRESCRIBING THE BEGINNING AND TERMINATION DATES OF THESE WARS. IN FACT, VETERANS' ADMINISTRATION INSTRUCTION NO. 4, PUBLIC 269, 74TH CONGRESS, ACT OF AUGUST 13, 1935, PROVIDES IN PART:

"2. THE DELIMITING PERIODS OF THE WARS NAMED ARE:

"SPANISH-AMERICAN WAR, APRIL 21, 1898, TO APRIL 11, 1899, BOTH DATES INCLUSIVE.

"PHILIPPINE INSURRECTION, APRIL 12, 1899, TO JULY 4, 1902, BOTH DATES INCLUSIVE; PROVIDED THAT IF A PERSON WAS SERVING WITH THE UNITED STATES MILITARY FORCES ENGAGED IN HOSTILITIES IN THE MORO PROVINCE, THE DATES HEREIN STATED SHALL EXTEND TO JULY 15, 1903, FOR THE PURPOSE OF PAYMENT OF DISABILITY PENSION PURSUANT TO PUBLIC ACT NO. 166, 69TH CONGRESS OR PUBLIC ACT NO. 299, 71ST CONGRESS, AS REENACTED BY PUBLIC ACT NO. 269, 74TH CONGRESS.

"BOXER REBELLION, JUNE 16, 1900, TO MAY 12, 1901, BOTH DATES INCLUSIVE.'

IT IS REQUESTED THAT YOU ADVISE WHETHER THE COMPUTATION OF ALLOWABLE SERVICE UNDER THE RETIREMENT ACT IS TO BE MADE IN ACCORDANCE WITH THE LAW AND REGULATIONS IN EFFECT AT THE TIME OF THE EMPLOYEE'S SEPARATION FROM THE SERVICE AND THE ACTION TAKEN ON ANNUITY CLAIMS BASED UPON THE AGGREGATE PERIOD OF THE EMPLOYEE'S SERVICE UNDER CIRCUMSTANCES EXISTING AT THE DATE OF SEPARATION FROM SERVICE, BE CONSIDERED AS RES JUDICATA AS REGARDS THE PENSION BASE IN THE INDIVIDUAL CASE, OR WHETHER SUCH CLAIMS SHOULD BE REOPENED FOR THE PURPOSE OF CHANGING THE PENSION BASE FROM AND AFTER AUGUST 13, 1935, WHICH LATTER PROCEDURE WOULD REDUCE THE RATE OF ANNUITY AND IN SOME CASES TERMINATE RETIREMENT BENEFITS ENTIRELY, UNLESS THE ANNUITANT ELECTED TO SURRENDER HIS PENSION. IN THIS CONNECTION, ATTENTION IS RESPECTFULLY INVITED TO THAT PORTION OF SECTION 5 OF THE ACT OF MAY 29, 1930, WHICH PROVIDES THAT NOTHING CONTAINED THEREIN SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER A PERSON'S RIGHT TO A PENSION OR TO RETIRED PAY, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY THEREIN PROVIDED.

THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 614, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 904, WAS AMENDED BY SECTION 13 OF THE ACT OF MAY 29, 1930, 46 STAT. 477, AS FOLLOWS:

ANNUITIES GRANTED UNDER THE TERMS OF THIS ACT SHALL BE DUE AND PAYABLE IN MONTHLY INSTALLMENTS ON THE FIRST BUSINESS DAY OF THE MONTH FOLLOWING THE MONTH OR OTHER PERIOD FOR WHICH THE ANNUITY SHALL HAVE ACCRUED, * * *

APPLICATIONS FOR ANNUITY SHALL BE IN SUCH FORM AS THE COMMISSIONER OF PENSIONS MAY PRESCRIBE, AND SHALL BE SUPPORTED BY SUCH CERTIFICATES FROM THE HEADS OF DEPARTMENTS, BRANCHES, OR INDEPENDENT OFFICES OF THE GOVERNMENT IN WHICH THE APPLICANT HAS BEEN EMPLOYED AS MAY BE NECESSARY TO THE DETERMINATION OF THE RIGHTS OF THE APPLICANT. UPON RECEIPT OF SATISFACTORY EVIDENCE THE COMMISSIONER OF PENSIONS SHALL FORTHWITH ADJUDICATE THE CLAIM OF THE APPLICANT, AND IF TITLE TO ANNUITY BE ESTABLISHED, A PROPER CERTIFICATE SHALL BE ISSUED TO THE ANNUITANT * * *

ANNUITIES GRANTED UNDER THIS ACT FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL COMMENCE FROM THE DATE OF SEPARATION FROM THE SERVICE AND SHALL CONTINUE DURING THE LIFE OF THE ANNUITANT. ANNUITIES GRANTED UNDER THE PROVISIONS OF SECTIONS 6 AND 7 HEREOF SHALL BE SUBJECT TO THE LIMITATIONS SPECIFIED IN SAID SECTIONS.

SECTIONS 6 AND 7 OF THE ACT PROVIDE ANNUITIES FOR THOSE BECOMING PHYSICALLY DISABLED OR INVOLUNTARILY SEPARATED FROM THE SERVICE, SUCH ANNUITIES BEING LIMITED AS TO AMOUNT AND DURATION AND SUBJECT TO READJUSTMENT UNDER CERTAIN SPECIFIED CONDITIONS. SECTION 8 OF THE ACT PROVIDES FOR READJUDICATION AND ADJUSTMENT OF ANNUITIES FOR THOSE EMPLOYEES TRANSFERRED BETWEEN MAY 22, 1920, AND MAY 29, 1930, EFFECTIVE FROM THE LATTER DATE IN CASES IN WHICH THE ANNUITANT WOULD BE ENTITLED TO A MORE SUBSTANTIAL ANNUITY IF COMPUTED AND ADJUSTED UNDER THE TERMS OF THE LATER ACT.

UNDER SECTION 2 OF THE ACT OF JULY 3, 1930 (46 STAT. 1016), ALL OF THE DUTIES OF THE COMMISSIONER OF PENSIONS WERE CONFERRED UPON AND VESTED IN THE ADMINISTRATOR OF VETERANS' AFFAIRS.

ALL THE FUNCTIONS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS AND OF THE VETERANS' ADMINISTRATION PERTAINING TO CIVIL SERVICE RETIREMENT ACTIVITIES WERE TRANSFERRED TO AND VESTED IN THE CIVIL SERVICE COMMISSION BY EXECUTIVE ORDER NO. 6670, DATED APRIL 7, 1934 (OP.ATTY.GEN. OF MARCH 31, 1934).

THE QUESTION PRESENTED THEN IS WHETHER ANNUITANTS ENTITLED TO AND ELECTING TO RECEIVE PENSIONS FOR MILITARY OR NAVAL SERVICE, EFFECTIVE FROM AUGUST 13, 1935, UNDER THE ACT OF THAT DATE, REENACTING THE PENSION STATUTES REPEALED BY SECTION 17 OF THE ACT OF MARCH 20, 1933, MAY CONTINUE TO RECEIVE CIVIL SERVICE RETIREMENT ANNUITIES IN THE COMPUTATION OF WHICH THE SAME MILITARY OR NAVAL SERVICE WAS INCLUDED, OR WHETHER IN SUCH CASES THERE SHOULD BE A READJUDICATION AND READJUSTMENT BY THE CIVIL SERVICE COMMISSION OF THE ANNUITIES ADJUDICATED BY THE COMMISSIONER OF PENSIONS, THE ADMINISTRATOR OF VETERANS' AFFAIRS, AND BY THE CIVIL SERVICE COMMISSION ITSELF DURING THE PERIOD MARCH 20, 1933, TO AUGUST 13, 1935.

WHILE IT IS NOT COMPULSORY THAT AN ANNUITANT DO SO, IT IS PLAIN THAT A CIVIL SERVICE ANNUITANT HAS AN ABSOLUTE RIGHT TO ELECT TO CLAIM AND, WHEN OTHERWISE ENTITLED, TO RECEIVE A PENSION UNDER THE PENSION ACTS REENACTED, EFFECTIVE AUGUST 13, 1935. THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED BY THE CITED SECTION 5 OF THE ACT OF MAY 29, 1930, PROVIDES IN THAT RESPECT THAT NOTHING IN SAID ACT SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER AN ANNUITANT'S "RIGHT TO A PENSION, OR TO RETIRED PAY, OR TO COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY HEREIN PROVIDED.'

BUT, IN COMPUTING THE "ANNUITY HEREIN PROVIDED," THE MILITARY SERVICE ON WHICH THE ANNUITANT ELECTS TO RECEIVE A PENSION "UNDER ANY LAW" IS NOT AUTHORIZED TO BE INCLUDED, THE LANGUAGE IN THE CITED SECTION 5 OF THE ACT PROVIDING SPECIFICALLY IN THAT RESPECT AS FOLLOWS:

* * * IN THE CASE OF AN EMPLOYEE, HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION, RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED * * *.

THIS ABSOLUTE STATUTORY PROHIBITION IS NOT CONFINED TO PENSION STATUTES PREVIOUSLY ENACTED OR THOSE ENACTED PRIOR TO THE ADJUDICATION AN EMPLOYEE IS ENTITLED TO AN ANNUITY BUT APPLIES TO ANY CASE WHERE THE ANNUITANT "ELECTS TO RECEIVE A PENSION" UNDER "ANY LAW" AND THE ELECTION TO RECEIVE THE PENSION IPSO FACTO TERMINATES THE RIGHT TO RECEIVE AN ANNUITY BASED ON THE SAME MILITARY OR NAVAL SERVICE ON WHICH THE PENSION IS RECEIVED SO LONG AS THE ELECTION TO RECEIVE THE PENSION CONTINUES. IF THIS ELECTION TO RECEIVE A PENSION AND CONSEQUENT READJUSTMENT IN ANNUITY RESULTS IN ANY WAY TO THE DISADVANTAGE OF THE ANNUITANT IT IS THE ANNUITANT'S OWN VOLUNTARY ACT, FOR HE MAY FOREGO OR WAIVE THE PENSION AND CONTINUE TO RECEIVE HIS ANNUITY UNDIMINISHED. NO CONSIDERATIONS ARE PRESENTED EITHER IN THE LANGUAGE OF THE STATUTES OR ELSEWHERE WHICH WOULD WARRANT A HOLDING THAT ANNUITANTS RETIRED BETWEEN MARCH 20, 1933, AND AUGUST 13, 1935, MIGHT ELECT TO RECEIVE BOTH CIVIL RETIREMENT ANNUITIES AND PENSIONS BASED ON THE SAME IDENTICAL MILITARY OR NAVAL SERVICE WHEREAS THOSE RETIRED FROM CIVIL STATUS EITHER BEFORE MARCH 20, 1933, OR AFTER AUGUST 12, 1935, MAY RECEIVE ONLY ANNUITY OR PENSION, BUT NOT BOTH, ON THE BASIS OF THE SAME SERVICE.

IN AN OPINION DATED FEBRUARY 26, 1934, THE ACTING ATTORNEY GENERAL STATED AS TO THE MEANING OF THE STATUTE HERE INVOLVED AS FOLLOWS:

SECTION 5 OF THE ACT OF MAY 29, 1930, WAS OBVIOUSLY PURPOSED TO GUARD AGAINST THE POSSIBILITY THAT A RETIRED OFFICER OR ENLISTED MAN ENTERING THE CIVIL SERVICE AND SUBSEQUENTLY RETIRING THEREFROM SHOULD RECEIVE BOTH MILITARY RETIRED PAY AND CIVILIAN RETIRED PAY WITH RESPECT TO THE SAME PERIOD OF SERVICE. * * *

EVEN IN THE ABSENCE OF PLAIN PROHIBITORY LANGUAGE, IT WOULD REQUIRE SPECIFIC AFFIRMATIVE LANGUAGE BEFORE IT COULD BE HELD THAT ANY FORMER OFFICER, ENLISTED MAN, OR EMPLOYEE OF THE UNITED STATES WOULD BE ENTITLED TO TWO PENSIONS, TWO RETIRED PAYS, OR TWO ANNUITIES OR GRATUITIES FOR THE SAME SERVICE. THE QUESTION HAS ARISEN REPEATEDLY IN THE HISTORY OF THE PENSION AND RETIREMENT STATUTES AND EACH TIME ON GROUNDS OF PUBLIC POLICY OR BECAUSE EXPRESSLY PROHIBITED IT HAS BEEN HELD AGAINST THE RIGHTS OF THE CLAIMANT TO THE DUAL BENEFITS.

IN UNITED STATES V. TELLER, 107 U.S. 64, A VETERAN OF THE MEXICAN AND OTHER WARS SOUGHT A MANDAMUS TO COMPEL PAYMENT TO HIM OF A $50 PER MONTH PENSION GRANTED HIM BY A SPECIAL PRIVATE ACT OF MARCH 3, 1879, 20 STAT. 665, IN ADDITION TO $72 PER MONTH PENSION HE HAD BEEN PAID FOR THE SAME PERIOD OF TIME AND FOR THE SAME MILITARY SERVICE UNDER THE GENERAL PENSION STATUTES. THE UNITED STATES SUPREME COURT CITED THE ACT OF JULY 25, 1882, 22 STAT. 174, WHICH, LIKE SECTION 5 OF THE CITED ACT OF MAY 29, 1930, FORBADE DOUBLE BENEFITS FOR THE SAME SERVICE AND SUSTAINED THE ACTION OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA IN DENYING RELIEF. SEE THE CASE OF DECATUR V. PAULDING, 14 PET. 497, HOLDING TO THE SAME EFFECT.

IN LOCHREN V. UNITED STATES, 6 APP.D.C. 510, THE POWER WAS UPHELD OF THE COMMISSIONER OF PENSIONS TO REDUCE A RATING FIXED BY HIS PREDECESSOR IN OFFICE.

IN HINES V. CAVANAGH, 39 FED./2D) 517, WHICH WAS ONE OF A LARGE GROUP OF SIMILAR CASES, BROUGHT IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, MANDAMUS WAS SOUGHT BY A RETIRED WORLD WAR EMERGENCY OFFICER TO COMPEL THE PAYMENT OF RETIRED PAY AS AN EMERGENCY OFFICER UNDER THE VETERANS' ADMINISTRATION APPROPRIATION, WHEREAS CLAIMANT ALREADY WAS RECEIVING RETIRED PAY FOR THE IDENTICAL SAME MILITARY SERVICE UNDER WAR DEPARTMENT APPROPRIATIONS. THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HELD THAT THE FILING OF A PETITION UNDER THE LATER ACT CONSTITUTED AN ELECTION TO TAKE RETIRED PAY UNDER THAT ACT AND ACCEPTED THAT PAYMENT UNDER THE LATER ACT TERMINATED IPSO FACTO THE RIGHT TO RECEIVE, IN ADDITION, RETIRED PAY UNDER THE EARLIER ACTS. THIS DECISION WAS FOLLOWED IN THE SIMILAR CASES OF HINES V. EASTON, 39 FED./2D) 519, AND OF UNITED STATES EX REL BOWLING V. HINES, 50 FED./2D) 330.

IN NONE OF THESE LAST THREE CASES WAS THERE INVOLVED ANY CLEARLY EXPRESSED PROHIBITORY LANGUAGE SUCH AS IS INVOLVED IN THE CITED SECTION 5 OF THE ACT OF MAY 29, 1930, AND LATER AN ATTEMPT WAS MADE TO RECOVER DOUBLE RETIRED PAY IN A SIMILAR CASE BY DIRECT SUIT AGAINST THE UNITED STATES IN THE COURT OF CLAIMS, AFTER THE PRESENT CHIEF JUSTICE OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, IN PATE V. HINES, MCCARL,ETC., EQUITY NO. 50356, HAD IN A WRITTEN OPINION OF NOVEMBER 18, 1929, HELD PAYMENT OF DUAL RETIRED PAY COULD NOT BE REQUIRED BY INJUNCTION. THE CLAIM WAS DENIED ON ITS MERITS BY THE COURT OF CLAIMS IN PATE V. UNITED STATES, 78 CT.CLS. 395, WHEREIN THAT COURT, AFTER CITING THE TELLER CASE, SUPRA, AND OTHER SIMILAR CASES, HELD AS TO THE CLAIMANT AS FOLLOWS:

HE MADE APPLICATION UNDER THIS ACT FOR THE PAY OF AN OFFICER, NOT OF THE REGULAR ARMY WHO HAD SERVED DURING THE WORLD WAR, BUT AS AN EMERGENCY OFFICER WHO DURING SUCH SERVICE HAD INCURRED PHYSICAL DISABILITY IN LINE OF DUTY, OF OVER 30 PERCENT PERMANENT DISABILITY, AND HIS APPLICATION WAS GRANTED. HIS NAME WAS PLACED ON A SEPARATE RETIRED LIST OF THE ARMY KNOWN AS THE "EMERGENCY OFFICERS' RETIRED LIST" AND WITH THE RANK HELD BY HIM WHEN DISCHARGED FROM HIS COMMISSIONED SERVICE, AND HE WAS ENTITLED TO ALL THE PRIVILEGES ACCORDED OFFICERS OF THE REGULAR ARMY. IT WILL BE SEEN THAT THE PLAINTIFF HAS RECEIVED AN INCREASE IN RETIRED PAY FROM THE PAY OF AN ENLISTED MAN RETIRED AFTER 30 YEARS' SERVICE TO THAT OF A COMMISSIONED OFFICER SERVING DURING THE WORLD WAR WHO HAD BEEN A RETIRED ENLISTED MAN AND THEN ANOTHER INCREASE IN COMPENSATION FROM A WARRANT OFFICERS' PAY TO THAT OF A COMMISSIONED OFFICER RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY DURING THE WORLD WAR. EACH INCREASE WAS DUE TO SOME PARTICULAR SERVICE TO HIS COUNTRY AND EACH INCREASE WAS A REWARD IN RECOGNITION OF SOME SERVICE.

* * * THE WHOLE LEGISLATIVE HISTORY OF GRATUITIES GRANTED BY CONGRESS SHOWS A CLEAR AND UNMISTAKABLE INTENTION THAT A RECIPIENT SHALL NOT ENJOY MORE THAN ONE AT THE SAME TIME * * *.

* * * IT MAY COME FROM SEPARATE FUNDS APPROPRIATED BY CONGRESS, BUT ALL OF IT COMES OUT OF THE TREASURY OF THE GOVERNMENT. THE PLAINTIFF IS NOT ENTITLED TO MORE THAN ONE COMPENSATION AND AS HE IS RECEIVING THE FULL AMOUNT PROVIDED BY LAW HE CAN RECEIVE NO MORE. THE POLICY OF THE GOVERNMENT HAS ALWAYS BEEN AGAINST DOUBLE PENSIONS AND COMPENSATIONS. * *

THE PETITION IS DISMISSED. IT IS SO ORDERED.

THERE IS NOT PERCEIVED IN CONNECTION WITH YOUR SUBMISSION ANY FIELD SUCH A DOCTRINE WOULD NOT BE OPERATIVE TO PRECLUDE THE ADJUSTMENTS AUTHORIZED AND REQUIRED BY THE CITED SECTION 8 OF THE ACT OF MAY 29, 1930, IN PREVIOUSLY ESTABLISHED AND ADJUDICATED ANNUITIES. NO MORE IS IT OPERATIVE HERE TO FRUSTRATE THE PLAIN AND UNEQUIVOCAL TERMS OF THE STATUTE WHICH FORBID PAYMENT OF ANNUITY BASED UPON MILITARY OR NAVAL SERVICE AFTER THE ANNUITANT HAS ELECTED TO RECEIVE A PENSION BASED ON SUCH SERVICE UNDER "ANY STATUTE.'

SPECIFICALLY, THE CONCLUSION MUST BE THAT NO USE OF APPROPRIATED MONEYS WOULD BE AUTHORIZED FOR THE PAYMENT OF AN ANNUITY FOR SERVICE ON WHICH THE ANNUITANT HAS ELECTED TO RECEIVE A PENSION. CONVERSELY, APPROPRIATED MONEYS ARE AVAILABLE TO PAY ANNUITIES ON THE BASIS OF MILITARY AND NAVAL SERVICE FOR ANY PERIODS DURING WHICH THE ANNUITANTS DO NOT ELECT TO RECEIVE PENSIONS THEREON.