B-145499, JUNE 7, 1961, 40 COMP. GEN. 666

B-145499: Jun 7, 1961

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ARE BROAD ENOUGH TO INCLUDE RETIRED PAY SO WITHHELD. RETIRED PAY WHICH IS ADMINISTERED BY THE PARTICULAR MILITARY SERVICE TO WHICH THE MEMBER BELONGS AND REPRESENTS REMUNERATION FOR SERVICES RENDERED IS TO BE DISTINGUISHED FROM PENSION OR COMPENSATION PAID BY THE VETERANS ADMINISTRATION. IS FOR DISTRIBUTION BY THE MILITARY SERVICE IN ACCORDANCE WITH 10 U.S.C. 2771. 1961: REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. IS ENTITLED. IS FURNISHED HOSPITAL TREATMENT. SUCH LUMP SUM SHALL BE PAID TO CERTAIN CLASSES OF RELATIVES IN THE ORDER OF PRECEDENCE THERE STATED AND THAT IF THERE ARE NO PERSONS IN THOSE CLASSES "NO PAYMENT SHALL BE MADE. ARE REQUIRED TO BE PAID TO EITHER A DESIGNATED BENEFICIARY.

B-145499, JUNE 7, 1961, 40 COMP. GEN. 666

MILITARY PERSONNEL - DECEDENTS' ESTATES - DISTRIBUTION OF AMOUNTS WITHHELD DURING HOSPITALIZATION IN VETERANS ADMINISTRATION FACILITY ALTHOUGH THE PROVISIONS IN 38 U.S.C. 3203 (A) (2) (A), RESPECTING DISTRIBUTION OF LUMP-SUM PAYMENTS TO ESTATES OF VETERANS WHO DIE WHILE RECEIVING HOSPITAL TREATMENT IN A VETERANS ADMINISTRATION FACILITY FOR A PERIOD OF TIME DURING WHICH THEIR PENSION, COMPENSATION, OR RETIREMENT PAY HAS BEEN WITHHELD UNDER 38 1 U.S.C. 3203 (A) (1), ARE BROAD ENOUGH TO INCLUDE RETIRED PAY SO WITHHELD, RETIRED PAY WHICH IS ADMINISTERED BY THE PARTICULAR MILITARY SERVICE TO WHICH THE MEMBER BELONGS AND REPRESENTS REMUNERATION FOR SERVICES RENDERED IS TO BE DISTINGUISHED FROM PENSION OR COMPENSATION PAID BY THE VETERANS ADMINISTRATION; AND, THEREFORE, RETIRED PAY WITHHELD UNDER 38 U.S.C. 3203 (A) (1), AS WELL AS CURRENT UNPAID RETIRED PAY DUE A DECREASED MEMBER, IS FOR DISTRIBUTION BY THE MILITARY SERVICE IN ACCORDANCE WITH 10 U.S.C. 2771.

TO E. C. DODD, DEPARTMENT OF THE NAVY, JUNE 7, 1961:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1961, XO-HA: RS 7220/154 49 17, REQUESTING, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-570, A DECISION AS TO WHETHER OR NOT THE BENEFICIARY DESIGNATED BY JERRY V. JERA, CH. MUS. USN, RETIRED, DECEASED, IS ENTITLED, UNDER 38 U.S.C. 3203 (A) (2) (A), TO AMOUNTS WITHHELD FROM HIS RETIRED PAY UNDER 38 U.S.C. 3203 (A) (1).

SECTION 3203 (A) (1), TITLE 38, U.S.C. PROVIDES THAT WHERE ANY VETERAN, HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT, IS FURNISHED HOSPITAL TREATMENT, ETC; THE PENSION, COMPENSATION OR RETIREMENT PAY OTHERWISE PAYABLE TO HIM MAY BE TEMPORARILY WITHHELD DURING SUCH HOSPITALIZATION TO THE EXTENT THERE STATED AND LATER PAID IN A LUMP SUM UNDER THE CIRCUMSTANCES THERE PRESCRIBED. SUBSECTION (A (2) (A) PROVIDES THAT IN THE EVENT OF DEATH OF ANY VETERAN SUBJECT TO THE PROVISIONS OF SECTION 3203 BEFORE PAYMENT OF THE LUMP SUM AUTHORIZED THEREIN, SUCH LUMP SUM SHALL BE PAID TO CERTAIN CLASSES OF RELATIVES IN THE ORDER OF PRECEDENCE THERE STATED AND THAT IF THERE ARE NO PERSONS IN THOSE CLASSES "NO PAYMENT SHALL BE MADE," WITH AN EXCEPTION NOT MATERIAL HERE.

UNDER THE PROVISIONS OF 10 U.S.C. 2771, AMOUNTS DUE A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, ARE REQUIRED TO BE PAID TO EITHER A DESIGNATED BENEFICIARY, CERTAIN CLASSES OF RELATIVES, THE LEGAL REPRESENTATIVE OF HIS ESTATE OR THE PERSONS ENTITLED THERETO UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER, IN THAT ORDER. STATUTES SUCH AS THE ACT OF MAY 27, 1908, AS AMENDED, 34 U.S.C. 941, 1940 USED; HAVE BEEN ENACTED FOR THE PURPOSE OF DISPOSING OF ARREARS OF PAY OF BOTH ACTIVE AND RETIRED NAVAL PERSONNEL WHO DIE WITH PAY TO THEIR CREDIT AND PAYMENTS MADE IN ACCORDANCE WITH SUCH PROVISIONS OF LAW HAVE BEEN REGARDED AS GIVING THE GOVERNMENT A GOOD ACQUITTANCE FOR THE AMOUNT INVOLVED. SUCH PROVISIONS OF LAW CLEARLY RECOGNIZE THE MEMBER'S OWNERSHIP OF THE MONEY INVOLVED. INHERENT IN THE RIGHT OF OWNERSHIP IS THE RIGHT TO TRANSFER, INCLUDING THE RIGHT TO DESIGNATE, IN THE MANNER PROVIDED BY LAW, THE PERSON TO WHOM HE WISHES THE MONEY TO BE PAID IN THE EVENT OF HIS DEATH. 10 U.S.C. 2771 PERMITS A MEMBER TO DESIGNATE A BENEFICIARY TO RECEIVE HIS ARREARS OF PAY IN THE EVENT OF HIS DEATH. IT IS OUR VIEW THAT AN INTENTION TO DEFEAT THAT RIGHT SHOULD NOT BE IMPUTED TO THE CONGRESS UNLESS THE PROVISIONS OF LAW INVOLVED ARE SUSCEPTIBLE OF NO OTHER INTERPRETATION.

WHILE THE LANGUAGE USED IN 38 U.S.C. 3203, (A) (2) (A) IS BROAD ENOUGH TO INCLUDE THE SITUATION OF A RETIRED MEMBER, PART OF WHOSE RETIRED PAY IS WITHHELD UNDER SUBSECTION (A) (1) PRIOR TO HIS DEATH, IT IS NOTED THAT CLAIMS FOR AMOUNTS SO WITHHELD ARE REQUIRED TO BE FILED WITH THE VETERANS ADMINISTRATION, AN AGENCY WHICH DOES NOT PAY RETIRED PAY. PENSION OR COMPENSATION UNDER LAW ADMINISTERED BY THE VETERANS ADMINISTRATION IS NOT PAID AS REMUNERATION FOR SERVICES RENDERED IN THE SAME SENSE THAT ACTIVE DUTY OR RETIRED PAY IS PAID FOR SUCH SERVICE AND A RIGHT TO BENEFITS UNDER SUCH LAWS CANNOT BE ESTABLISHED IN A COURT OF LAW. IN THE CIRCUMSTANCES, IT APPEARS PROPER TO VIEW THE VETERANS ADMINISTRATION BENEFITS WITHHELD UNDER 38 U.S.C. 3203 (A) (1) AS BEING THE AMOUNTS WHICH ARE SUBJECT TO LUMP-SUM PAYMENT UNDER SUBSECTION (A) (2) (A), AND THAT PAYMENT OF RETIRED PAY SO WITHHELD IS GOVERNED BY 10 U.S.C. 2771, IF THE MEMBER DIES BEFORE PAYMENT IS MADE TO HIM.

ACCORDINGLY, YOU ARE AUTHORIZED TO ALLOW THE LUMP-SUM PAYMENT OF RETIRED PAY WITHHELD FROM JERRY V. JERA UNDER 38 U.S.C. 3203 (A) (1) AS WELL AS HIS CURRENT UNPAID RETIRED PAY TO THE BENEFICIARY DESIGNATED BY HIM UNDER 10 U.S.C. 2771.