B-148128, MARCH 19, 1962, 41 COMP. GEN. 597

B-148128: Mar 19, 1962

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EVIDENCE AN INTENT THAT A MEMBER IS ENTITLED TO ONLY ONE BENEFIT ARISING FROM THE SAME DISABILITY. A MEMBER IN RECEIPT OF DISABILITY SEVERANCE PAY WHEN HIS MILITARY RECORDS ARE CORRECTED TO PLACE HIM ON THE PERMANENT DISABILITY RETIRED LIST WITH ENTITLEMENT TO RETIRED PAY FROM THE TIME THAT HE BEGAN RECEIVING DISABILITY SEVERANCE PAY MUST HAVE HIS RETIRED PAY WITHHELD BY THE MILITARY SERVICE. 1962: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 4. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER. IT IS STATED IN YOUR LETTER THAT THE MEMBER WAS DISCHARGED FROM THE SERVICE ON JUNE 15. THE SECRETARY OF THE AIR FORCE CORRECTED THE MEMBER'S RECORDS TO SHOW THAT HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST WITH ENTITLEMENT TO DISABILITY RETIRED PAY BASED ON A DISABILITY RATING OF 40 PERCENT.

B-148128, MARCH 19, 1962, 41 COMP. GEN. 597

PAY - SEVERANCE - RECOUPMENT ALTHOUGH THE DISABILITY SEVERANCE PAY RECOUPMENT PROVISIONS IN 10 U.S.C. 1212 (C), WHICH REQUIRE DEDUCTION OF SEVERANCE PAY WHEN A FORMER MEMBER OF THE UNIFORMED SERVICES BECOMES ENTITLED TO OTHER COMPENSATION FOR THE SAME DISABILITY, RELATE TO BENEFITS AWARDED BY VETERANS ADMINISTRATION, 10 U.S.C. 1212 (C) AND 1213, CONCERNING THE EFFECT OF SEPARATION ON BENEFITS, EVIDENCE AN INTENT THAT A MEMBER IS ENTITLED TO ONLY ONE BENEFIT ARISING FROM THE SAME DISABILITY; THEREFORE, A MEMBER IN RECEIPT OF DISABILITY SEVERANCE PAY WHEN HIS MILITARY RECORDS ARE CORRECTED TO PLACE HIM ON THE PERMANENT DISABILITY RETIRED LIST WITH ENTITLEMENT TO RETIRED PAY FROM THE TIME THAT HE BEGAN RECEIVING DISABILITY SEVERANCE PAY MUST HAVE HIS RETIRED PAY WITHHELD BY THE MILITARY SERVICE, PLUS THE SEVERANCE PAY WITHHELD BY VETERANS ADMINISTRATION, UNTIL THE AMOUNT OF SEVERANCE PAY HAS BEEN RECOVERED.

TO COLONEL N. O. WAHLSTROM, DEPARTMENT OF THE AIR FORCE, MARCH 19, 1962:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 4, 1962, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER, FOR RETIRED PAY IN FAVOR OF TECHNICAL SERGEANT JAMES C. OWENS, SR., IN THE AMOUNT OF $575, REPRESENTING RETIRED PAY IN EXCESS OF VETERANS ADMINISTRATION DISABILITY COMPENSATION WITHHELD FOR THE PERIOD FEBRUARY 1 THROUGH NOVEMBER 30, 1961. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. 629 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN YOUR LETTER THAT THE MEMBER WAS DISCHARGED FROM THE SERVICE ON JUNE 15, 1959, AS AN AIRMAN FIRST CLASS AND PAID DISABILITY SEVERANCE PAY IN THE AMOUNT OF $4,560 UNDER THE PROVISIONS OF 10 U.S.C. 1203; THAT ON DECEMBER 2, 1960, THE SECRETARY OF THE AIR FORCE CORRECTED THE MEMBER'S RECORDS TO SHOW THAT HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST WITH ENTITLEMENT TO DISABILITY RETIRED PAY BASED ON A DISABILITY RATING OF 40 PERCENT; THAT THE SECRETARY FURTHER DETERMINED THAT AIRMAN OWENS HAD SATISFACTORILY SERVED IN HIS HIGHER TEMPORARY GRADE OF TECHNICAL SERGEANT, AND HE WAS CERTIFIED FOR RETIRED PAY IN SUCH GRADE; AND THAT HIS RETIRED PAY ENTITLEMENT IS $130.50 A MONTH, BASED ON AN ELECTION TO RECEIVE RETIRED PAY COMPUTED ON YEARS OF ACTIVE SERVICE.

IT IS FURTHER STATED THAT THE MEMBER WAS AWARDED VETERANS ADMINISTRATION DISABILITY COMPENSATION OF $73 A MONTH EFFECTIVE JUNE 16, 1959, BUT UNDER THE PROVISIONS OF 10 U.S.C. 1212 (C), THE VETERANS ADMINISTRATION IS WITHHOLDING THE TOTAL AMOUNT OF SUCH AWARD TOWARD RECOUPMENT OF THE SEVERANCE PAY PAYMENT. IT ALSO IS STATED THAT PAYMENT OF THE MONTHLY RETIRED PAY DIFFERENCE OF $57.50 ($130.50 LESS $73) IS BEING WITHHELD UNTIL THE COMBINED AMOUNTS RECOUPED FROM BOTH SOURCES, VETERANS ADMINISTRATION AND THE AIR FORCE, EQUAL THE TOTAL SEVERANCE PAY PAYMENT. SINCE 10 U.S.C. 1212 (C) SPECIFICALLY PROVIDES FOR THE DEDUCTION OF THE AMOUNT OF DISABILITY SEVERANCE PAY RECEIVED FROM ANY COMPENSATION AWARDED BY THE VETERANS ADMINISTRATION FOR THE SAME DISABILITY, YOU EXPRESS DOUBT AS TO WHETHER IT IS PROPER TO WITHHOLD THE RETIRED PAY OF $57.50 CONCURRENTLY, OR WHETHER THE RETIRED PAY SHOULD BE PAID, EXCEPT IN THE EVENT THE VETERANS ADMINISTRATION IS UNABLE TO EFFECT FULL RECOUPMENT.

SINCE YOU REPORT THAT THE VETERANS ADMINISTRATION IS WITHHOLDING THE COMPENSATION AWARDED OWENS, IT IS ASSUMED THAT HE HAS FILED WITH THE DEPARTMENT OF THE AIR FORCE A WAIVER OF RETIRED PAY IN AN AMOUNT EQUAL TO THE AWARD OF COMPENSATION BY THE VETERANS ADMINISTRATION, AND THAT SUCH WAIVER WAS RETROACTIVE TO THE DATE OF HIS SEPARATION FROM ACTIVE DUTY.

SECTIONS 1212 (C) AND 1213 OF TITLE 10, U.S. CODE, PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 1212. DISABILITY SEVERANCE PAY

(C) THE AMOUNT OF DISABILITY SEVERANCE PAY RECEIVED UNDER THIS SECTION SHALL BE DEDUCTED FROM ANY COMPENSATION FOR THE SAME DISABILITY TO WHICH THE FORMER MEMBER OF THE ARMED FORCES OR HIS DEPENDENTS BECOME ENTITLED UNDER ANY LAW ADMINISTERED BY THE VETERANS ADMINISTRATION. * * *

SEC. 1213. EFFECT OF SEPARATION ON BENEFITS AND CLAIMS

UNLESS A PERSON WHO HAS RECEIVED DISABILITY SEVERANCE PAY AGAIN BECOMES A MEMBER OF AN ARMED FORCE, THE COAST AND GEODETIC SURVEY, OR THE PUBLIC HEALTH SERVICE, HE IS NOT ENTITLED TO ANY PAYMENT FROM THE ARMED FORCE FROM WHICH HE WAS SEPARATED FOR, OR ARISING OUT OF, HIS SERVICE BEFORE SEPARATION, UNDER ANY LAW ADMINISTERED BY ONE OF THOSE SERVICES OR FOR IT BY ANOTHER OF THOSE SERVICES. * * *

UNDER THE QUOTED PROVISIONS THE PAYMENT OF DISABILITY SEVERANCE PAY IS INCOMPATIBLE WITH THE RECEIPT OF OTHER BENEFITS ARISING FROM THE SAME CIRCUMSTANCE GIVING RISE TO THE PAYMENT OF THE SEVERANCE PAY. FURTHER, DISABILITY SEVERANCE PAY AND DISABILITY RETIRED PAY ARE MUTUALLY INCONSISTENT BENEFITS, SINCE SEVERANCE PAY IS CONDITIONED ON A DISCHARGE FROM THE SERVICE WHICH WOULD BAR ENTITLEMENT TO RETIRED PAY, AND CONTRARIWISE, RETIREMENT WITH RETIRED PAY CONSTITUTES A CHANGE OF STATUS IN THE ARMED SERVICES WITHOUT A DISCHARGE OR SEPARATION FROM THE SERVICE, AN ESSENTIAL CONDITION FOR AWARD OF SEVERANCE PAY. IT FOLLOWS THAT UPON THE CORRECTION OF HIS SERVICE RECORD TO SHOW THAT THE MEMBER'S NAME WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST ON JUNE 15, 1959, HIS RIGHT TO RETAIN THE SEVERANCE PAY BECAME QUESTIONABLE. APPARENTLY, ONLY WITHHOLDING ACTION HAS BEEN TAKEN WITH RESPECT TO THIS MATTER. WHILE SECTION 1212 (C) RELATES TO COMPENSATION AWARDED BY THE VETERANS ADMINISTRATION, THE ABOVE-QUOTED PROVISIONS OF LAW CLEARLY EVIDENCE AN INTENT THAT NO BENEFITS ARISING OUT OF THE CIRCUMSTANCES WHICH RESULTED IN THE PAYMENT OF SEVERANCE PAY SHOULD BE PAID UNTIL COLLECTION OF SUCH SEVERANCE PAY HAS BEEN MADE.

IN THE CIRCUMSTANCES, WE SEE NO REASON WHY THE RETIRED PAY ACCRUING ON A MONTHLY BASIS SHOULD NOT BE WITHHELD UNTIL THE AMOUNT INVOLVED, PLUS THE COMPENSATION WITHHELD BY THE VETERANS ADMINISTRATION, EQUALS THE SEVERANCE PAY RECEIVED BY OWENS.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND SUCH VOUCHER WILL BE RETAINED HERE.