B-113091, FEB 3, 1953

B-113091: Feb 3, 1953

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REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF THOMAS J. WHO IS RECEIVING DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION. YOUR DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHER IS CAUSED BY A VIEW THAT RESERVE DUTY TRAINING PAY IS AUTHORIZED IN THE CASE OF INDIVIDUALS IN RECEIPT OF DISABILITY COMPENSATION ONLY FOR PERIODS SUBSEQUENT TO THE DATE ON WHICH A WAIVER OF SUCH COMPENSATION IS EXECUTED. "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. PROVIDES FOR WAIVER OF DISABILITY COMPENSATION FOR A FISCAL YEAR FOR THE PURPOSE OF RECEIVING PAY FOR ATTENDANCE AT TRAINING ASSEMBLIES DURING THE FISCAL YEAR AND STATES THAT: "*** WHERE A WAIVER IS FILED FOR LESS THAN ONE FULL FISCAL YEAR.

B-113091, FEB 3, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL E. M. SIMMONS, F.C., U.S. ARMY:

THERE HAS BEEN RECEIVED BY INDORSEMENT DATED DECEMBER 8, 1952, OF THE OFFICE OF CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, YOUR LETTER OF AUGUST 28, 1952, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF THOMAS J. CHAMBERS, CAPTAIN, MILITARY POLICE CORPS, UNITED STATES, ARMY RESERVE, SERIAL NO. 0-1321882, FOR RESERVE DUTY TRAINING PAY FOR ASSEMBLIES ATTENDED BY HIM IN JULY AND AUGUST 1951.

THE SAID VOUCHER COVERS PAYMENT TO CAPTAIN CHAMBERS OF RESERVE DUTY TRAINING PAY FOR ATTENDANCE AT TRAINING ASSEMBLIES OF COMPANY C, 313TH MILITARY POLICE BATTALION, ORGANIZED RESERVE CORPS, ON JULY 12 AND 26, AND AUGUST 9 AND 23, 1951. IT APPEARS THAT ON NOVEMBER 14, 1951, THE OFFICER, WHO IS RECEIVING DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION, FILED WITH THE VETERANS ADMINISTRATION A WAIVER OF 48 DAYS OF SUCH COMPENSATION FOR THE FISCAL YEAR 1952 FOR THE PURPOSE OF RECEIVING RESERVE DUTY TRAINING PAY AND THAT HIS COMPENSATION HAS BEEN ADJUSTED ON THE BASIS THEREOF. YOUR DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHER IS CAUSED BY A VIEW THAT RESERVE DUTY TRAINING PAY IS AUTHORIZED IN THE CASE OF INDIVIDUALS IN RECEIPT OF DISABILITY COMPENSATION ONLY FOR PERIODS SUBSEQUENT TO THE DATE ON WHICH A WAIVER OF SUCH COMPENSATION IS EXECUTED.

SECTIONS 2 AND 3 OF THE ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067, PROVIDE THAT:

"SEC. 2. NOTWITHSTANDING 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 PROVISIONS 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.

"SEC. 3. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM JULY 1, 1947, AND SHALL TERMINATE FIVE YEARS AFTER THE DATE OF APPROVAL OF THIS ACT."

THE PURPOSE OF THE ABOVE-QUOTED 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. THE STATUTE PLAINLY CONTEMPLATES THAT WHEN THE MEMBERS CONCERNED WAIVE OR RELINQUISH PENSION OR DISABILITY BENEFITS FOR SUCH PURPOSE, THEY SHALL BE PAID FOR "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."

PARAGRAPH 8 OF ARMY REGULATIONS 140-250, PROVIDES FOR WAIVER OF DISABILITY COMPENSATION FOR A FISCAL YEAR FOR THE PURPOSE OF RECEIVING PAY FOR ATTENDANCE AT TRAINING ASSEMBLIES DURING THE FISCAL YEAR AND STATES THAT:

"*** WHERE A WAIVER IS FILED FOR LESS THAN ONE FULL FISCAL YEAR, THE NUMBER OF DAYS COMPENSATION TO BE WAIVED WILL BE IN ACCORDANCE WITH THE FOLLOWING SCALE, DEPENDING UPON THE MONTH IN WHICH THE WAIVER IS FILED,

MONTHS IN WHICH FILED DAYS WAIVED

JULY THROUGH NOVEMBER 48

*** *** "UPON RECEIPT OF THE EXECUTED WAIVER IN THE VETERANS ADMINISTRATION, PAYMENT OF COMPENSATION, PENSION, OR RETIREMENT PAY WILL BE ADJUSTED FOR THE ENTIRE NUMBER OF DAYS WAIVED, EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF RECEIPT OF THE WAIVER." WHILE IT IS NOT ENTIRELY CLEAR, SUCH REGULATIONS APPARENTLY CONTEMPLATE THAT WAIVERS OF PENSIONS, RETIREMENT PAY, ETC., FILED PRIOR TO DECEMBER 1 OF A GIVEN FISCAL YEAR MAY BE REGARDED AS ENTITLING MEMBERS TO RESERVE DUTY TRAINING PAY FOR ALL ASSEMBLIES OR DRILLS ATTENDED DURING THE ENTIRE FISCAL YEAR, INCLUDING THOSE ATTENDED PRIOR TO SUCH FILING, BECAUSE THEY AUTHORIZE SUCH WAIVER TO COVER DISABILITY COMPENSATION, ETC., FOR A TOTAL OF 48 DAYS WHICH APPARENTLY CORRESPONDS TO THE MAXIMUM NUMBER OF ASSEMBLIES OR DRILLS AUTHORIZED TO BE PERFORMED IN A GIVEN FISCAL YEAR. THERE IS NOTHING SPECIFIC IN THE LAW WHICH WOULD PROHIBIT GIVING ANY RETROACTIVE EFFECT TO SUCH WAIVERS AND THIS OFFICE DOES NOT FEEL REQUIRED TO OBJECT TO SUCH PROCEDURE WHERE, AS HERE, THE WAIVER IS FILED WITHIN A REASONABLE TIME AFTER ATTENDANCE AT THE ASSEMBLIES OR DRILLS FOR WHICH PAY IS CLAIMED. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IF PROPER IN OTHER RESPECTS.