A-72683, APRIL 21, 1936, 15 COMP. GEN. 924

A-72683: Apr 21, 1936

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THERE BEING NO AUTHORITY TO WAIVE IN INDIVIDUAL CASES THE REQUIREMENTS OF VETERANS' ADMINISTRATION REGULATIONS THAT SUCH PAYMENTS BE MADE IN QUARTERLY INSTALLMENTS BEGINNING WITH THE FIRST DAY OF THE CALENDAR QUARTER FOLLOWING THE FINDING BY THE ADMINISTRATOR THAT THE APPLICANT IS ENTITLED THERETO. AS FOLLOWS: I HAVE THE HONOR TO SOLICIT YOUR DECISION UPON THE FACTS IN THE CASE OF CASH A. WHICH APPLICATION WAS RECEIVED IN THE WAR DEPARTMENT DECEMBER 29. WAS CERTIFIED TO THE ADMINISTRATION UNDER DATE OF MARCH 5. NO ACTION WAS TAKEN BY THE ADMINISTRATION UNTIL FEBRUARY 20. MILLER WAS REQUESTED TO EXECUTE AFFIDAVIT FORM SHOWING MARITAL COHABITATION. THERE IS NO RECORD OF THE RECEIPT OF THE AFFIDAVIT IN QUESTION AT THE PRESENT WRITING.

A-72683, APRIL 21, 1936, 15 COMP. GEN. 924

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - INSTALLMENT PAYMENTS TO VETERAN'S WIDOW ADMINISTRATIVE DELAY IN THE CONSIDERATION AND ADJUDICATION OF AN APPLICATION FOR ADJUSTED COMPENSATION BENEFITS FILED BY A VETERAN'S WIDOW, DOES NOT AUTHORIZE INSTALLMENT PAYMENTS OF SUCH BENEFITS RETROACTIVELY, THERE BEING NO AUTHORITY TO WAIVE IN INDIVIDUAL CASES THE REQUIREMENTS OF VETERANS' ADMINISTRATION REGULATIONS THAT SUCH PAYMENTS BE MADE IN QUARTERLY INSTALLMENTS BEGINNING WITH THE FIRST DAY OF THE CALENDAR QUARTER FOLLOWING THE FINDING BY THE ADMINISTRATOR THAT THE APPLICANT IS ENTITLED THERETO.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 21, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 19, 1936, AS FOLLOWS:

I HAVE THE HONOR TO SOLICIT YOUR DECISION UPON THE FACTS IN THE CASE OF CASH A. MILLER, XC-890,091.

CASH A. MILLER DIED SEPTEMBER 17, 1924, WITHOUT HAVING FILED AN APPLICATION FOR ADJUSTED COMPENSATION BENEFITS. UNDER DATE OF DECEMBER 27, 1934, MRS. ANNIE HELEN MILLER, THE VETERAN'S WIDOW, FILED AN APPLICATION (WWC-1) UNDER SECTION 601 OF THE WORLD WAR VETERANS' ACT, WHICH APPLICATION WAS RECEIVED IN THE WAR DEPARTMENT DECEMBER 29, 1934. THE APPLICATION, TOGETHER WITH AN ADJUSTED SERVICE CREDIT IN THE AMOUNT OF $51.00, WAS CERTIFIED TO THE ADMINISTRATION UNDER DATE OF MARCH 5, 1935, BUT NO ACTION WAS TAKEN BY THE ADMINISTRATION UNTIL FEBRUARY 20, 1936.

ON FEBRUARY 20, 1936, MRS. MILLER WAS REQUESTED TO EXECUTE AFFIDAVIT FORM SHOWING MARITAL COHABITATION. THERE IS NO RECORD OF THE RECEIPT OF THE AFFIDAVIT IN QUESTION AT THE PRESENT WRITING.

IN VIEW OF THE LAPSE OF TIME (FROM THE DATE MRS. MILLER FILED THE APPLICATION UP TO FEBRUARY 20, 1936, THIRTEEN AND ONE-HALF MONTHS), CAN THE ADMINISTRATION PAY THE TEN INSTALLMENTS OF ADJUSTED SERVICE CREDIT DUE, BEGINNING AS OF JANUARY 1, 1935?

SECTION 603 OF THE WORLD WAR ADJUSTED COMPENSATION ACT PROVIDES THAT THE PAYMENTS AUTHORIZED BY SECTION 601 SHALL BE MADE IN TEN (10) EQUAL QUARTERLY INSTALLMENTS UNLESS THE TOTAL AMOUNT OF THE PAYMENT IS LESS THAN $50.00, IN WHICH CASE IT SHALL BE PAID ON THE FIRST INSTALLMENT DATE. PAYMENT UNDER THE PROVISIONS OF THIS TITLE SHALL BE MADE TO THE HEIRS OR LEGAL REPRESENTATIVE OF ANY DEPENDENTS ENTITLED THERETO, WHO DIED BEFORE RECEIVING ALL THE INSTALLMENT PAYMENTS, BUT THE REMAINDER OF SUCH PAYMENTS SHALL BE MADE TO THE DEPENDENT OR DEPENDENTS IN THE NEXT ORDER OF PREFERENCE UNDER SECTION 601. ALL PAYMENTS UNDER THIS TITLE SHALL BE MADE BY THE DIRECTOR.

YOUR DECISION OF FEBRUARY 27, 1925, A-8036, HAS BEEN NOTED, BUT DUE TO THE UNUSUAL CIRCUMSTANCES INVOLVED, AND AT THE REQUEST OF THE HONORABLE SAM D. REYNOLDS, YOUR DECISION IN THIS CASE IS RESPECTFULLY REQUESTED.

SECTION 601 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 828, PROVIDES AS FOLLOWS:

IF THE VETERAN HAS DIED BEFORE MAKING APPLICATION UNDER SECTION 302, OR, IF ENTITLED TO RECEIVE ADJUSTED SERVICE PAY, HAS DIED AFTER MAKING APPLICATION BUT BEFORE HE HAS RECEIVED PAYMENT UNDER TITLE IV, THEN THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT SHALL (AS SOON AS PRACTICABLE AFTER RECEIPT OF AN APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 604, BUT NOT BEFORE MARCH 1, 1925) BE PAID TO HIS DEPENDENTS, IN THE FOLLOWING ORDER OF PREFERENCE:

(1) TO THE WIDOW.

(2) IF NO WIDOW ENTITLED TO PAYMENT, THEN TO THE CHILDREN, SHARE AND SHARE ALIKE.

(3) IF NO WIDOW OR CHILDREN ENTITLED TO PAYMENT, THEN TO THE MOTHER.

(4) IF NO WIDOW, CHILDREN, OR MOTHER, ENTITLED TO PAYMENT, THEN TO THE FATHER.

SECTION 602 (A) OF THE STATUTE, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 29, 1928, 45 STAT. 947, AND SECTION 2 OF THE ACT OF JUNE 5, 1930, 46 STAT. 496, PROVIDES AS FOLLOWS:

NO PAYMENT UNDER SECTION 601 SHALL BE MADE TO A WIDOW IF SHE HAS REMARRIED BEFORE MAKING AND FILING APPLICATION, OR IF AT THE TIME OF THE DEATH OF THE VETERAN WAS LIVING APART FROM HIM BY REASON OF HER OWN WILLFUL ACT; NOR UNLESS DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND ON OR BEFORE JANUARY 2, 1935. THE WIDOW SHALL BE PRESUMED TO HAVE BEEN DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN UPON A SHOWING OF THE MARITAL COHABITATION.

SECTION 3 OF THE ACT OF AUGUST 23, 1935, 49 STAT. 730, EXTENDS THE DATE FOR FILING TO JANUARY 2, 1940.

SECTION 603 OF THE ORIGINAL ACT OF MAY 19, 1924, 43 STAT. 129, WHICH HAS NOT BEEN AMENDED, PROVIDES AS FOLLOWS:

THE PAYMENTS AUTHORIZED BY SECTION 601 SHALL BE MADE IN TEN EQUAL QUARTERLY INSTALLMENTS, UNLESS THE TOTAL AMOUNT OF THE PAYMENT IS LESS THAN $50, IN WHICH CASE IT SHALL BE PAID ON THE FIRST INSTALLMENT DATE. NO PAYMENTS UNDER THE PROVISIONS OF THIS TITLE SHALL BE MADE TO THE HEIRS OR LEGAL REPRESENTATIVES OF ANY DEPENDENTS ENTITLED THERETO WHO DIE BEFORE RECEIVING ALL THE INSTALLMENT PAYMENTS, BUT THE REMAINDER OF SUCH PAYMENTS SHALL BE MADE TO THE DEPENDENT OR DEPENDENTS IN THE NEXT ORDER OF PREFERENCE UNDER SECTION 601. ALL PAYMENTS UNDER THIS TITLE SHALL BE MADE BY THE DIRECTOR.

THE DECISION OF THIS OFFICE OF FEBRUARY 27, 1925, A-8036, TO WHICH REFERENCE HAS BEEN MADE, STATED THE RULE THAT "QUARTERLY" PAYMENTS OF THE ADJUSTED SERVICE CREDIT TO THE PREFERRED DEPENDENT PURSUANT TO SECTION 603 OF THE STATUTE WERE AUTHORIZED TO BE MADE ONLY ON THE FIRST DAY OF EACH CALENDAR QUARTER, BEGINNING AFTER MARCH 1, 1925, THE FIRST INSTALLMENT FALLING DUE APRIL 1, 1925. WHILE THIS DECISION DID NOT SPECIFICALLY HOLD THAT "PAYMENT OF THE FIRST INSTALLMENT OF THE ADJUSTED SERVICE CREDIT MIGHT BE MADE ONLY AS OF THE FIRST DAY OF THE CALENDAR QUARTER FOLLOWING THE FINDING OF THE DIRECTOR (NOW ADMINISTRATOR) THAT THE APPLICANT IS THE DEPENDENT ENTITLED TO THE BENEFITS OF THE ACT," SUCH REQUIREMENT WAS EMBODIED IN AN ADMINISTRATIVE REGULATION PROMULGATED BY THE VETERANS' ADMINISTRATION NOW DENOMINATED AS R-3750, REGULATIONS AND PROCEDURE, VETERANS' ADMINISTRATION, WHICH REGULATION IS AS FOLLOWS:

CASH PAYMENTS AND THE FIRST INSTALLMENT OF INSTALLMENT PAYMENTS AUTHORIZED IN SECTIONS 601 AND 603, RESPECTIVELY, OF TITLE VI OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED, WILL BE MADE AS OF THE FIRST DAY OF THE CALENDAR QUARTER FOLLOWING THE FINDING BY THE DIRECTOR THAT THE APPLICANT IS A DEPENDENT ENTITLED TO THE BENEFITS OF THE ACT, BUT IN NO CASE SHALL ANY SUCH PAYMENTS BE MADE BEFORE MARCH 1, 1925: PROVIDED, HOWEVER, THAT PAYMENTS AUTHORIZED BY SECTION 608 OF TITLE VI OF THE ACT, AS AMENDED, SHALL BE PAID IN A LUMP SUM TO THE PREFERRED DEPENDENT WITHOUT REFERENCE TO PAYMENTS UNDER SECTION 603 OF TITLE VI OF THE ACT, AS AMENDED.

THE MERE FILING OF AN APPLICATION BY A DEPENDENT, OR EVEN THE TRANSMITTAL THEREOF TO THE VETERANS' ADMINISTRATION WITH PROPER CERTIFICATE BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY VESTS NO RIGHT IN THE APPLICANT TO THE INITIAL INSTALLMENT OF THE ADJUSTED SERVICE CREDIT ON THE BEGINNING OF THE FIRST QUARTER THEREAFTER. SECTION 605 (A) OF THE STATUTE, AS AMENDED JULY 3, 1926, 44 STAT. 829, REQUIRES THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY TO TRANSMIT THE APPLICATION OF A DEPENDENT WITH A CERTIFICATE SHOWING CERTAIN FACTS TO THE VETERANS' ADMINISTRATION, AND SECTION 605 (B) OF THE STATUTE PROVIDES AS FOLLOWS:

UPON RECEIPT OF SUCH CERTIFICATE THE DIRECTOR (NOW ADMINISTRATOR) SHALL PROCEED TO EXTEND TO THE APPLICANT THE BENEFITS PROVIDED IN THIS TITLE IF THE DIRECTOR (NOW ADMINISTRATOR) FINDS THAT THE APPLICANT IS THE DEPENDENT ENTITLED THERETO.

IT IS NOT UNTIL THIS FINDING BY THE ADMINISTRATOR HAS BEEN MADE THAT ANY RIGHT OF THE PREFERRED DEPENDENT ATTACHES UNDER THE STATUTE. IN ORDER FOR A DEPENDENT TO ESTABLISH HIS OR HER RIGHTS TO VETERAN'S ADJUSTED-SERVICE CREDIT THE APPLICANT MUST ESTABLISH THAT HE OR SHE IS ENTITLED TO THE PREFERRED STATUS AMONG THE SURVIVING DEPENDENTS ENUMERATED IN SECTION 601 OF THE ACT; THAT THE CLAIMANT, IF THE VETERAN'S WIDOW, HAS NOT REMARRIED PRIOR TO FILING APPLICATION; THAT SHE IS NOT BARRED AS A CLAIMANT UNDER SECTION 602 (A) OF THE ACT; AND ALL CLAIMANTS MUST SATISFY THE REQUIREMENTS RELATING TO DEPENDENCY. (SEE 9 COMP. GEN. 419; ID. 427.)

FROM THE FACTS SUBMITTED IT APPEARS THAT THE WIDOW HAS FAILED TO FURNISH SATISFACTORY EVIDENCE OF MARITAL COHABITATION, ON THE BASIS OF WHICH DEPENDENCY IS PRESUMED UNDER THE STATUTE, OR THAT SHE HAS NOT REMARRIED. NOTWITHSTANDING THE APPARENT ADMINISTRATIVE DELAY IN THE CONSIDERATION AND ADJUDICATION OF THIS CASE, THE REGULATION HEREINABOVE QUOTED, WHICH DOES NOT APPEAR TO BE IN CONFLICT WITH THE TERMS OF THE STATUTE, THEREFORE HAS THE FORCE AND EFFECT OF LAW AND MAY NOT BE WAIVED IN INDIVIDUAL CASES. (SEE 4 COMP. GEN. 480, AND DECISIONS THEREIN CITED.)