A-9196, MAR. 16, 1962

A-9196: Mar 16, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

VETERANS ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 29. FUSS WAS GRANTED RETIRED PAY UNDER THE ACT OF MAY 24. THAT DUE TO THE FACT HE WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY OF MORE THAN $3. HE WAS UNABLE TO DRAW SUCH RETIRED PAY BUT DREW COMPENSATION INSTEAD IN VARYING AMOUNTS OVER THE YEARS. HE WAS RETIRED FROM HIS CIVIL SERVICE POSITION AND WAS RESTORED TO THE EMERGENCY OFFICERS' RETIRED LIST AS OF NOVEMBER 1. HE IS OF THE OPINION THAT UNDER THE DECISION BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF WATMAN V. HE IS ENTITLED TO RETIRED PAY FROM JULY 1. TO THE EXTENT OF THE DIFFERENCE BETWEEN THE COMPENSATION RECEIVED FOR THE PERIOD IN QUESTION AND THE RETIRED PAY THAT WOULD HAVE BEEN PAID BUT FOR HIS FEDERAL EMPLOYMENT.

A-9196, MAR. 16, 1962

TO THE ADJUDICATION OFFICER, VETERANS' BENEFITS OFFICE, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 29, 1962, REFERENCE C- 475701-FUSS, JOHN C., CODE 72-3072/211A, FORWARDING COPIES OF TWO LETTERS FROM MR. JOHN C. FUSS, 521 STEEL STREET, FRANKFORT, KENTUCKY, CONCERNING HIS CLAIM FOR EMERGENCY OFFICERS' RETIRED PAY FOR THE PERIOD JULY 1, 1947, TO OCTOBER 31, 1954, LESS COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION. YOU REQUEST AN OPINION ON THE ENTITLEMENT TO SUCH PAY BASED ON HIS SERVICE IN WORLD WAR I.

IT APPEARS THAT MR. FUSS WAS GRANTED RETIRED PAY UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, BASED ON HIS SERVICE AS AN EMERGENCY OFFICER (CAPTAIN) DURING WORLD WAR I; THAT DUE TO THE FACT HE WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY OF MORE THAN $3,000 PER YEAR, HE WAS UNABLE TO DRAW SUCH RETIRED PAY BUT DREW COMPENSATION INSTEAD IN VARYING AMOUNTS OVER THE YEARS. HE STATES THAT ON OCTOBER 31, 1954, HE WAS RETIRED FROM HIS CIVIL SERVICE POSITION AND WAS RESTORED TO THE EMERGENCY OFFICERS' RETIRED LIST AS OF NOVEMBER 1, 1954. HE IS OF THE OPINION THAT UNDER THE DECISION BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF WATMAN V. UNITED STATES, CT.CL.NO. 189-59, DECIDED MARCH 1, 1961, HE IS ENTITLED TO RETIRED PAY FROM JULY 1, 1947, TO OCTOBER 31, 1954, TO THE EXTENT OF THE DIFFERENCE BETWEEN THE COMPENSATION RECEIVED FOR THE PERIOD IN QUESTION AND THE RETIRED PAY THAT WOULD HAVE BEEN PAID BUT FOR HIS FEDERAL EMPLOYMENT.

THE COURT HELD IN THE CASE OF WATMAN V. UNITED STATES THAT THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, RELATING TO ANY "MEMBER OF THE OFFICERS' RESERVE CORPS" EXEMPTED THE PLAINTIFF, A RETIRED OFFICER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED 5 U.S.C. 59A. THAT CONCLUSION WAS BASED ON THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728--- UNDER WHICH WATMAN WAS APPOINTED AN OFFICER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT--- WHICH PROVIDED THAT PERSONS SO APPOINTED UNDER THE PROVISIONS OF THAT ACT SHOULD RECEIVE THE SAME PAY AND ALLOWANCES "AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE.' THE COURT HAS HELD THAT MEMBERS OF THE OFFICERS' RESERVE CORPS WERE REMOVED FROM THE SCOPE OF THE ECONOMY ACT BY THE ACT OF JULY 1, 1947, EFFECTIVE ON THAT DATE.

IT APPEARS FROM THE INFORMATION CONTAINED IN THE ARMY REGISTER, 1930, PAGE 958, THAT JOHN C. FUSS ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT, INFANTRY, NATIONAL ARMY, ON JUNE 5, 1918, AND THAT HE SERVED ON ACTIVE DUTY AS AN OFFICER FROM JUNE 5, 1918, TO OCTOBER 22, 1919, WHEN HE WAS HONORABLY DISCHARGED AND HE APPARENTLY HAS HELD NO MILITARY STATUS SINCE THAT TIME. HE WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST ON JULY 31, 1928. MR. FUSS' RETIRED PAY ACCRUES TO HIM BY VIRTUE OF THE ACT OF MAY 24, 1928, WHICH PROVIDED THAT NON-REGULAR OFFICERS WHO INCURRED PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENT DURING SERVICE IN THE "WORLD WAR" SHOULD RECEIVE ,RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE.' THE ACT PROVIDED FURTHER THAT PERSONS COVERED THEREBY "SHALL BE ENTITLED TO THE SAME PRIVILEGES AS ARE NOW OR MAY THEREAFTER BE PROVIDED FOR BY LAW OR REGULATIONS FOR OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.' IT HAS BEEN HELD THAT THE "PRIVILEGES" REFERRED TO DID NOT RELATED TO PAY BUT RELATE TO THE RIGHT TO WEAR THE UNIFORM, RECEIVE MEDICAL TREATMENT, PURCHASE SUPPLIES AT SERVICE STORES, AND SO FORTH. SEE 23 COMP. GEN. 102.

WHILE THE MILITARY STATUS OF MR. FUSS DURING WORLD WAR I WAS COMPARABLE TO THAT HELD BY WATMAN, IN THAT NEITHER WAS A MEMBER OF THE REGULAR ARMY OR THE OFFICERS' RESERVE CORPS, MR. FUSS APPARENTLY WAS APPOINTED AN OFFICER OF THE NATIONAL ARMY UNDER AUTHORITY CONTAINED IN THE THIRD PARAGRAPH OF SECTION 1 OF THE ACT OF MAY 18, 1917, 40 STAT. 76. WE HAVE FOUND NO PROVISION IN THAT LAW NOR ANY OTHER STATUTE, SIMILAR TO THAT CONTAINED IN THE 1941 ACT RELIED ON IN THE WATMAN CASE, WHICH GRANTED TO FORMER EMERGENCY OFFICERS SUCH AS MR. FUSS THE SAME RIGHTS AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS. THE "PRIVILEGES" WHICH WERE GRANTED TO SUCH OFFICERS UNDER THE 1928 ACT WERE THOSE PROVIDED FOR REGULAR OFFICERS.

RETIRED PAY BENEFITS UNDER THE 1928 ACT WERE BEING PAID WHEN THE ECONOMY ACT WAS ENACTED INTO LAW. PARAGRAPH (B) OF SECTION 212 OF THE LATTER ACT, AS AMENDED, PROVIDES THAT THE DUAL COMPENSATION RESTRICTIONS THERE PRESCRIBED SHALL NOT APPLY TO ANY EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY "/1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR.'

ACCORDINGLY, IT IS CONCLUDED THAT THE WATMAN CASE FURNISHES NO BASIS FOR THE PAYMENT OF MR. FUSS' CLAIM AND THAT, UNLESS IT CAN BE ESTABLISHED THAT HIS DISABILITY WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR THAT IT WAS CAUSED BY AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING A PERIOD OF WAR, PAYMENT TO HIM OF THE RETIRED PAY CLAIMED IS NOT AUTHORIZED.