B-113495, JUNE 10, 1953, 32 COMP. GEN. 546

B-113495, JUNE 10, 1953, 32 COMP. GEN. 546

PAY - RETIRED - EFFECT OF WAIVER A WAIVER OF RETIRED PAY EXECUTED PRIOR TO THE ACTS OF JUNE 30, 1941, AND MAY 27, 1944, WHICH AUTHORIZE RESCISSION OF WAIVERS, IN FAVOR OF A "PENSION" UNDER THE ACT OF MARCH 3, 1891, TERMINATES THE RETIRED STATUS OF A MEMBER OF THE ARMED FORCES SO THAT HE MAY NEVER AGAIN DRAW RETIRED PAY, HOWEVER A WAIVER OF RETIRED PAY IN FAVOR OF "DISABILITY COMPENSATION" UNDER SECTION 212 OF THE WORLD WAR VETERANS' ACT OF 1924, DOES NOT TERMINATE THE RETIRED STATUS OF SUCH MEMBER AND DOES NOT OPERATE TO REMOVE HIM FROM THE RETIRED LIST. 20 COMP. GEN. 41 DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, JUNE 10, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1953, WITH ENCLOSURE, RELATIVE TO AN APPARENT CONFLICT BETWEEN DECISION OF THIS OFFICE DATED JULY 25, 1940, 20 COMP. GEN. 41, AND DECISION DATED APRIL 15, 1949, B- 81545, TO THE SECRETARY OF THE NAVY, RELATIVE TO THE EFFECT OF A WAIVER BY A RETIRED ENLISTED MAN OF HIS RETIRED PAY IN FAVOR OF A PENSION OR DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION IN THOSE CASES WHERE WAIVERS WERE EXECUTED PRIOR TO THE ENACTMENT OF THE ACTS OF JUNE 30, 1941, 55 STAT. 394, AND THE ACT OF MAY 27, 1944, 58 STAT. 230.

IN THE SAID DECISION OF JULY 25, 1940, IT WAS HELD, QUOTING THE SYLLABUS, THAT---

A WAIVER BY A RETIRED ARMY ENLISTED MAN OF HIS STATUTORY RIGHT TO RETIRED PAY MAY BE CONSIDERED EFFECTIVE ONLY IS CONSTRUED AS A RENUNCIATION OF HIS RETIRED STATUS, AND IF PURSUANT TO SUCH WAIVER HIS RETIRED PAY IS DISCONTINUED AND A PENSION GRANTED--- PROHIBITED WHILE HE IS A RETIRED ARMY ENLISTED MAN--- THE TRANSACTION MUST BE TREATED AS TERMINATING, WITH WAR DEPARTMENT APPROVAL, THE MAN'S STATUS AS A RETIRED ENLISTED MAN, AND THAT EFFECT CANNOT BE OVERCOME BY A RESERVATION OF A RIGHT TO RESTORATION TO RETIRED STATUS UPON SUBSEQUENT WAIVER OF THE PENSION.

THEREAFTER THERE WERE ENACTED THE SAID ACTS OF JUNE 30, 1941, AND MAY 27, 1944. SECTION 4 OF THE 1941 ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

WHERE AN ENLISTED MAN (OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS) PLACED ON THE RETIRED LIST UNDER THIS ACT OR UNDER ANY PROVISION OF LAW WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, IF HE WERE NOT RECEIVING RETIRED PAY, HE MAY WAIVE RECEIPT OF RETIRED PAY AND ALLOWANCES FOR THE PURPOSE OF RECEIVING SUCH PENSION OR COMPENSATION; AND THEREAFTER SUCH RETIRED ENLISTED MAN MAY WAIVE RECEIPT OF SUCH PENSION OR COMPENSATION FOR THE PURPOSE OF RECEIVING RETIRED PAY AND ALLOWANCES. * * *

THE ACT OF MAY 27, 1944, PROVIDES, IN PERTINENT PART---

THAT ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE, AND WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON THE FILING BY SUCH PERSON WITH THE DEPARTMENT BY WHICH SUCH RETIRED PAY IS PAID OF A WAIVER OF SO MUCH OF HIS RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION. * * *

IN THE DECISION OF APRIL 15, 1949, B-81545, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN IN THE REGULAR NAVY WHO WAS TRANSFERRED TO THE FLEET RESERVE ON MARCH 8, 1938, AND WHO WAS PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY ON NOVEMBER 1, 1940. ON JUNE 4, 1940, HE EXECUTED A WAIVER OF HIS RETAINER PAY EFFECTIVE JULY 31, 1940, AND ELECTED TO RECEIVE, IN LIEU THEREOF, DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION. EFFECTIVE SEPTEMBER 1, 1948, HE WAIVED HIS RIGHT TO DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION AND THE QUESTION WAS PRESENTED AS TO WHETHER THE ACT OF MAY 27, 1944, COULD BE GIVEN A RETROACTIVE EFFECT SO AS TO AUTHORIZE THE PAYMENT OF RETIRED PAY TO THE ENLISTED MAN IN QUESTION EFFECTIVE SEPTEMBER 1, 1948.

WHILE IT WAS HELD THAT THE SAID ACT OF MAY 27, 1944, COULD NOT BE GIVEN ANY RETROACTIVE EFFECT, IT WAS POINTED OUT IN SUCH DECISION THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, RETIRED PAY MAY NOT BE WAIVED. ACCORDINGLY, IT WAS CONCLUDED THAT SINCE THE ENLISTED MAN NO LONGER WAS ENTITLED TO DISABILITY COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, THERE WAS NO REASON WHY HE COULD NOT BE PAID HIS RETIRED PAY.

THE CONCLUSION REACHED IN THE DECISION OF JULY 25, 1940, TO THE EFFECT THAT AN ATTEMPTED WAIVER OF RETIRED PAY IN FAVOR OF A PENSION FROM THE VETERANS ADMINISTRATION, IF APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED, WOULD BE TREATED AS TERMINATING THE ENLISTED MAN'S RETIRED STATUS SO THAT HE COULD NOT THEREAFTER BE RESTORED TO THE RETIRED LIST AND AGAIN BE ENTITLED TO RETIRED PAY, WAS BASED ON THE PROVISIONS OF THE ACT OF MARCH 3, 1891, 26 STAT. 1082, 38 U.S.C., 1940 EDITION, 26, WHICH READ AS FOLLOWS:

NO PENSION SHALL BE ALLOWED OR PAID TO ANY OFFICER, NONCOMMISSIONED OFFICER, OR PRIVATE IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, EITHER ON THE ACTIVE OR RETIRED LIST.

IT WAS NOTED IN SUCH DECISION THAT THE SUBMISSION RELATED ONLY TO "PENSIONS" AND IT WAS ASSUMED THAT SUCH REFERENCE WAS TO "PENSIONS" COMING WITHIN THE PURVIEW OF THE 1891 ACT WHICH PROHIBITED THE PAYMENT OF PENSION TO ANY OFFICER, NONCOMMISSIONED OFFICER, OR PRIVATE IN THE ARMY, NAVY, OR MARINE CORPS EITHER "ON THE ACTIVE OR RETIRED LIST.' ON THE OTHER HAND, IN THE DECISION OF APRIL 15, 1949, THERE WAS CONSIDERED THE CASE OF A RETIRED OFFICER OR ENLISTED MAN OF THE NAVY WHO, IN ADDITION TO BEING QUALIFIED FOR RETIRED PAY, WAS ALSO QUALIFIED FOR "DISABILITY COMPENSATION" AS DISTINGUISHED FROM "PENSION," AND, IN THAT CONNECTION, THERE WAS TAKEN INTO CONSIDERATION SECTION 212 OF THE WORLD WAR VETERANS' ACT OF 1924, 43 STAT. 623, AS AMENDED, 38 U.S.C. 422, WHICH MERELY PROHIBITED THE CONCURRENT "RECEIPT" OF "COMPENSATION" AND ACTIVE SERVICE OR RETIREMENT PAY. THE SPECIFIC CASE OF EARL BREWER YOUNG CONSIDERED IN THIS LATTER DECISION CONCERNED ONLY "DISABILITY COMPENSATION" AND SINCE IT DID NOT APPEAR THAT SUCH COMPENSATION WAS A "PENSION" WITHIN THE PURVIEW OF THE 1891 ACT, IT WAS CONCLUDED THAT HIS WAIVER OF RETIRED PAY IN FAVOR THEREOF DID NOT OPERATE TO REMOVE HIM FROM THE RETIRED LIST. THUS, IT WILL BE SEEN THAT THERE ACTUALLY IS NO CONFLICT BETWEEN THE TWO DECISIONS IN QUESTION AND PROPER APPLICATION MAY BE GIVEN TO BOTH UNDER THE PARTICULAR FACTS AND PERTINENT STATUTES.