B-105564, NOV 2, 1951

B-105564, NOV 2, 1951

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL H. D. LLOYD, FC:

THERE HAS BEEN RECEIVED BY INDORSEMENT DATED SEPTEMBER 10, 1951, FROM THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, YOUR LETTER OF JULY 16, 1951, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHERS SUBMITTED THEREWITH IN FAVOR OF DOROTHEA D. ENGEL, CAPTAIN, ARMY NURSE CORPS, USAR, SERIAL NO. N 703 056, FOR PAY FOR ATTENDANCE AT ORGANIZED RESERVE CORPS ASSEMBLIES DURING MAY AND NOVEMBER 1950.

CAPTAIN ENGEL STATES IN HER LETTERS OF DECEMBER 12, 1950, AND JANUARY 13, 1951, THAT SHE IS RECEIVING A WIDOW'S PENSION FROM THE FEDERAL GOVERNMENT WHICH WAS AUTHORIZED IN JUNE 1945, RETROACTIVELY EFFECTIVE OCTOBER 1944, ON ACCOUNT OF THE DEATH OF HER HUSBAND, FIRST LIEUTENANT EMANUEL ENGEL, UNITED STATES FIELD ARTILLERY, HIS DEATH HAVING BEEN CONFIRMED BY LETTER DATED JUNE 24, 1945, FROM THE ADJUTANT GENERAL. YOUR DOUBT AS TO WHETHER PAYMENT IS AUTHORIZED ON THE SUBMITTED VOUCHERS APPEARS TO ARISE BY REASON OF A RESTRICTIVE PROVISION IN SECTION 609 OF THE DEFENSE APPROPRIATION ACT, 1951, 64 STAT. 752. THE SAID SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THE APPROPRIATIONS IN THIS CHAPTER SHALL NOT BE AVAILABLE FOR THE PAY, ALLOWANCES, OR TRAVEL OF ANY MEMBER OF THE AIR NATIONAL GUARD, AIR FORCE RESERVE, ARMY NATIONAL GUARD, OR THE ORGANIZED RESERVE CORPS, FOR PERIODS OF ACTIVE DUTY, DRILLS, TRAINING, INSTRUCTION, OR OTHER DUTY FOR WHICH HE MAY BE ENTITLED TO RECEIVE COMPENSATION PURSUANT TO ANY PROVISIONS OF LAW, WHO MAY BE DRAWING A PENSION, RETIREMENT PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY (WHERE RETIREMENT HAS BEEN MADE ON ACCOUNT OF PHYSICAL DISABILITY OR AGE), FROM THE GOVERNMENT OF THE UNITED STATES ***."

A SIMILAR PROVISION WAS ENACTED INTO SUBSTANTIVE LAW AS AN AMENDMENT TO SECTION 10 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 854, BY THE ACT APPROVED SEPTEMBER 27, 1950, PUBLIC LAW 844, SECTION 2 OF WHICH PROVIDES THAT:

"NOTHWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, ANY MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES OR OF THE AIR FORCE OF THE UNITED STATES ENTITLED TO DRAW A PENSION, RETIREMENT PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES BY VIRTUE OF PRIOR MILITARY SERVICE, MAY ELECT, WITH REFERENCE TO PERIODS OF ACTIVE DUTY OR DRILL, TRAINING, INSTRUCTION, OR OTHER DUTY FOR WHICH THEY MAY BE ENTITLED TO RECEIVE COMPENSATION PURSUANT TO ANY PROVISION OF LAW, TO RECEIVE EITHER (1) THE COMPENSATION FOR SUCH DUTY, WHICH, WHEN AUTHORIZED BY LAW, SHALL INCLUDE TRAVEL OR OTHER EXPENSES INCIDENT THERETO, AND SUBSISTENCE AND QUARTERS, OR COMMUTATION THEREOF, OR (2) THE PENSION, RETIREMENT PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY, BUT NOT BOTH; AND UNLESS THEY SPECIFICALLY WAIVE OR RELINQUISH THE LATTER THEY SHALL NOT RECEIVE THE FORMER FOR THE PERIODS OF SUCH DUTY."

IN A DECISION OF THIS OFFICE DATED DECEMBER 13, 1940, 20 COMP.GEN. 313, THERE WAS CONSIDERED A SIMILAR PROVISION APPEARING UNDER THE HEADING "NAVAL RESERVE" IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1941, 54 STAT. 270, AND IT WAS STATED THAT THE TERMS "PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY," AS USED IN THE ACT ARE TECHNICAL TERMS APPLICABLE TO REWARDS FOR PAST MILITARY OR NAVAL SERVICE AND WERE DESIGNED TO PROHIBIT ONE WHO IS RECEIVING A MONETARY BENEFIT FOR DISABILITY OR AGE GROWING OUT OF PRIOR MILITARY SERVICE FROM RECEIVING PAY AND ALLOWANCES FOR ACTIVE DUTY IN THE MILITARY OR NAVAL SERVICE IN ANOTHER CAPACITY. HENCE, IT WAS CONCLUDED THAT SUCH PROVISIONS DID NOT PRECLUDE THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCE TO A MEMBER OF THE NAVAL RESERVE WHO ALSO WAS RECEIVING SO-CALLED RETIRED PAY AS A RETIRED POLICEMAN OF THE DISTRICT OF COLUMBIA. ALSO SEE 30 COMP.GEN. 155. IT WILL BE NOTED THAT THE ACT OF SEPTEMBER 27, 1950, SUPRA, PROVIDES THAT ONE WHO IS ENTITLED TO RECEIVE ANY OF THE SPECIFIED BENEFITS "BY VIRTUE OF PRIOR MILITARY SERVICE" MAY ELECT TO RECEIVE SUCH BENEFIT OR THE PAY AND ALLOWANCES TO WHICH HE OTHERWISE WOULD BE ENTITLED FOR PERIODS OF ACTIVE DUTY, DRILLS, TRAINING, INSTRUCTION, OR OTHER DUTY FOR WHICH HE WOULD BE ENTITLED TO RECEIVE COMPENSATION. THE PURPOSE OF THE ACT AS STATED BY THE SENATE COMMITTEE ON ARMED FORCES, 81ST CONGRESS, 1ST SESSION, IN REPORT NO. 508 TO ACCOMPANY S.1507 "IS TO PERMIT THE WAIVER OF PENSION OR DISABILITY BENEFITS BY FORMER PERSONNEL OF THE MILITARY SERVICES" FOR THE PURPOSE OF SERVING IN THE RESERVE COMPONENTS OF THE RESPECTIVE SERVICES. NO INDICATION IS FOUND IN THE LEGISLATIVE HISTORY OF THE ACT OF ANY INTENTION TO PLACE ANY RESTRICTION ON A PERSON WHO MAY BE RECEIVING PENSION OR COMPENSATION ON ACCOUNT OF THE DEATH OF ANOTHER PERSON FROM ALSO RECEIVING THE PAY TO WHICH OTHERWISE ENTITLED AS A RESERVIST FOR ACTIVE DUTY, DRILLS, TRAINING, ETC. WHILE DEFINITE INFORMATION HAS NOT BEEN FURNISHED AS TO THE STATUTORY AUTHORITY UNDER WHICH CAPTAIN ENGEL IS BEING PAID A PENSION OR COMPENSATION, IT IS ASSUMED FROM HER STATEMENTS THAT SUCH PAYMENTS ARE BEING MADE TO HER BY REASON OF THE DEATH OF HER HUSBAND WHO SERVED AS AN OFFICER IN THE ARMY DURING WORLD WAR II RATHER THAN BY VIRTUE OF ANY PRIOR MILITARY SERVICE SHE MAY HAVE RENDERED. ON THAT BASIS PAYMENT TO HER FOR THE DUTY INVOLVED IS NOT WITHIN THE INHIBITION OF THE ABOVE QUOTED ACT AND IF CORRECT IN OTHER RESPECTS, PAYMENT ON THE SUBMITTED VOUCHERS, WHICH ARE RETURNED HEREWITH, IS AUTHORIZED.

YOU ALSO STATE THAT CAPTAIN ENGEL IS CONTEMPLATING RETURNING TO ACTIVE DUTY AND YOU REQUEST A DECISION REGARDING HER ENTITLEMENT TO RECEIVE ACTIVE DUTY PAY WHILE ALSO RECEIVING A WIDOW'S PENSION. THE JURISDICTION OF THIS OFFICE IS SUCH THAT A DECISION MAY BE RENDERED TO A DISBURSING OFFICER ONLY UPON A SPECIFIC QUESTION INVOLVED IN A VOUCHER WHICH PROPERLY IS BEFORE HIM FOR PAYMENT. 22 COMP.GEN. 588; 26 ID. 797. SINCE YOUR SECOND QUESTION IS NOT INVOLVED IN A VOUCHER BEFORE YOU FOR PAYMENT, A DECISION MAY NOT BE RENDERED THEREON. HOWEVER, THE DECISION STATED ABOVE WITH REGARD TO PAY FOR RESERVE ASSEMBLIES SHOULD BE HELPFUL IN DETERMINING CAPTAIN ENGEL'S PROPER PAY FOR PERIODS OF EXTENDED ACTIVE DUTY.