B-151185, JULY 11, 1963, 43 COMP. GEN. 42

B-151185, JULY 11, 1963, 43 COMP. GEN. 42

INSANE AND INCOMPETENTS - MILITARY PERSONNEL - RETIRED PAY AVAILABILITY FOR HOSPITALIZED VETERANS RETIRED PAY WHICH IS BEING WITHHELD BY THE COAST GUARD FROM A HOSPITALIZED MENTALLY INCOMPETENT RETIRED COAST GUARD MEMBER WITHOUT FUNDS PURSUANT TO 37 U.S.C. 351-354 IN THE ABSENCE OF THE LOCATION OF A PERSON TO ACT AS TRUSTEE FOR THE MEMBER MAY BE CONSIDERED TO BE EMBRACED IN THE TERM ,COMPENSATION OR RETIREMENT PAY" IN 38 U.S.C. 3203 (B) (4), WHICH PERMITS PAYMENT, IN THE DISCRETION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, OF COMPENSATION OR RETIREMENT PAY ON ACCOUNT OF HOSPITALIZED VETERANS TO THE CHIEF OFFICER OF THE INSTITUTION FURNISHING CARE TO THE VETERAN TO BE USED FOR HIS BENEFIT, AND WHILE THE PROVISIONS FOR PAYMENTS TO MENTALLY INCOMPETENT RETIRED COAST GUARD MEMBERS IN THE ACT OF JUNE 21, 1950, 37 U.S.C. 351-354, MIGHT CONFLICT WITH 38 U.S.C. 3203, THE LATER PROVISIONS ENACTED IN 1959 REPRESENT THE LATEST EXPRESSION OF THE INTENT OF CONGRESS, SO THAT IN THE ABSENCE OF ANY ACTION UNDER THE 1950 ACT AMOUNTS OF RETIRED PAY TO PROVIDE FOR THE COMFORT AND WELFARE OF THE VETERAN MAY BE PAID TO THE CHIEF OFFICER OF THE HOSPITAL UNDER 38 U.S.C. 3203 UPON REQUEST OF THE ADMINISTRATOR OF VETERANS AFFAIRS.

TO T. C. CRABE, UNITED STATES COAST GUARD, JULY 11, 1963:

BY FIRST INDORSEMENT DATED MARCH 27, 1963, THE CHIEF, PAYMENTS AND CLAIMS DIVISION, UNITED STATES COAST GUARD, FORWARDED YOUR LETTER OF THE SAME DATE REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF MAKING PAYMENTS OF RETIRED PAY DIRECTLY TO THE CHIEF OFFICER, VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, IN THE CASE OF CLIFFORD DELOZIER (102-792) BTC, RETIRED.

YOU SAY THAT DELOZIER RETIRED FOR YEARS OF SERVICE UNDER THE PROVISIONS OF 14 U.S.C. 355, EFFECTIVE OCTOBER 1, 1951; THAT ON MARCH 15, 1957, COMPETENT MEDICAL AUTHORITY DETERMINED THAT HE WAS MENTALLY INCAPABLE OF MANAGING HIS OWN AFFAIRS; THAT IT HAS NOT BEEN POSSIBLE TO LOCATE ANYONE TO ASSUME THE DUTIES OF A TRUSTEE UNDER THE PROVISIONS OF 37 U.S.C. 351- 354; AND THAT PAYMENTS OF RETIRED PAY ARE BEING WITHHELD BY THE COAST GUARD. AS DELOZIER IS PRESENTLY A PATIENT AT THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, AND WITHOUT FUNDS WHICH ARE CONSIDERED NECESSARY FOR THE PURCHASE OF HEALTH AND COMFORT ITEMS, QUESTION HAS ARISEN AS TO WHETHER OR NOT THE PROVISIONS OF 38 U.S.C. 3203 ARE LIMITED TO FUNDS PAID BY THE VETERANS ADMINISTRATION OR MAY INCLUDE RETIRED PAY RECEIVED FOR YEARS OF SERVICE OR OTHERWISE PAID BY THE MILITARY SERVICE.

THE CHIEF, SPECIAL SERVICES DIVISION, HAS REQUESTED THAT APPROPRIATE AMOUNTS OF RETIRED PAY BE RELEASED DIRECTLY TO THE CHIEF OFFICER OF THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, TO BE USED FOR DELOZIER'S WELFARE PURSUANT TO THE PROVISIONS OF 38 U.S.C. 3203 (B) (4) AS FOLLOWS:

ALL OR ANY PART OF THE PENSION, COMPENSATION, OR RETIREMENT PAY PAYABLE ON ACCOUNT OF ANY INCOMPETENT VETERAN WHO IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE MAY, IN THE DISCRETION OF THE ADMINISTRATOR, BE PAID TO THE CHIEF OFFICER OF THE INSTITUTION WHEREIN THE VETERAN IS BEING FURNISHED SUCH TREATMENT OR CARE, TO BE PROPERLY ACCOUNTED FOR BY SUCH CHIEF OFFICER AND TO BE USED FOR THE BENEFIT OF THE VETERAN.

THE QUOTED PROVISION HAD AS ITS SOURCE THE THIRD PROVISO OF SECTION 1 (B) OF THE ACT OF AUGUST 8, 1946, CH. 869, 60 STAT. 909, 38 U.S.C. 739 (1) (B) (1952 ED.). ALTHOUGH WE HELD IN DECISION OF MAY 18, 1948, B-72718, 27 COMP. GEN. 699, THAT WHILE RETIRED OFFICERS AND ENLISTED MEN OF THE MILITARY SERVICE ARE SUBJECT TO THE PROVISIONS OF SECTION 1 (A) OF THE ACT OF AUGUST 8, 1946, 38 U.S.C. 739 (1) (A) (1952 ED.), THEY ARE NOT SUBJECT TO THE PROVISIONS OF SECTION 1 (B) OF THAT ACT, SUBSEQUENTLY ENACTED LEGISLATION REQUIRES THE CONCLUSION THAT THE TERM "VETERAN" AS USED IN 38 U.S.C. 3203 INCLUDES RETIRED OFFICERS AND ENLISTED PERSONNEL. SEE 41 COMP. GEN. 224.

AS ORIGINALLY ENACTED, THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF AUGUST 8, 1946, RELATED EXCLUSIVELY TO MATTERS UNDER THE JURISDICTION OF THE VETERANS ADMINISTRATION. HENCE, THE THIRD PROVISO OF SECTION 1 (B/--- FROM WHICH THE ABOVE-QUOTED PROVISIONS OF 38 U.S.C. 3203 (B) (4) WERE DERIVED--- LEFT TO THE DISCRETION OF THE ADMINISTRATOR OF VETERANS AFFAIRS THE DETERMINATION AS TO THE PART, IF ANY, OF THE RETIREMENT PAY THERE MENTIONED WHICH SHOULD BE PAID TO THE CHIEF OFFICER OF THE INSTITUTION WHERE THE MENTALLY INCOMPETENT VETERAN WAS RECEIVING HOSPITAL CARE, TO BE USED FOR THE BENEFIT OF SUCH VETERAN.

THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 7, 1959, PUB.L. 86-146, 73 STAT. 297, WHICH AMENDED 38 U.S.C. 3203, INCLUDING PARTS OF SUBSECTION (B), CLEARLY SHOWS THAT THE CONGRESS INTENDED THAT SUBSECTION (B) (1), 38 U.S.C. 3203 (B) (1) (SUPP. I), SHOULD COVER RETIRED PAY GENERALLY. SEE 41 COMP. GEN. 218. SINCE THE LANGUAGE "COMPENSATION OR RETIREMENT PAY" THERE USED IS IDENTICAL TO THAT APPEARING IN PARAGRAPH (4) OF SUBSECTION (B), WE FIND NO BASIS FOR A CONCLUSION THAT THE RETIREMENT PAY MENTIONED IN PARAGRAPH (4) DOES NOT INCLUDE RETIRED PAY SUCH AS IS PAYABLE TO DELOZIER. WHILE IT IS SOMEWHAT ANOMALOUS THAT THE ADMINISTRATOR OF VETERANS AFFAIRS SHOULD DETERMINE WHAT PART OF THE RETIRED PAY PAYABLE BY ANOTHER AGENCY OF THE GOVERNMENT SHOULD BE PAID TO THE CHIEF OFFICER OF THE HOSPITAL INVOLVED FOR THE VETERAN'S BENEFIT AND WELFARE, THE PROVISIONS OF LAW FROM WHICH PARAGRAPH (4) WAS DERIVED WERE NOT REPEALED BY THE ACT OF JUNE 21, 1950, CH. 342, 64 STAT. 249, 37 U.S.C. 351-354, AND EFFECT MUST BE GIVEN SUCH STATUTORY PROVISIONS AS REENACTED IN SUBSEQUENT LEGISLATION.

THE ACT OF JUNE 21, 1950, DEALS WITH THE MATTER, AMONG OTHERS, OF PAYMENT OF RETIRED PAY DUE A MENTALLY INCOMPETENT MEMBER OF THE ARMED SERVICES AND AUTHORIZES PAYMENT OF SUCH PAY FOR THE USE AND BENEFIT OF THE INCOMPETENT, TO SUCH PERSON OR PERSONS AS MAY BE DESIGNATED BY THE SECRETARY CONCERNED. DETERMINATIONS CONCERNING THE DESIGNATIONS OF SUCH PERSON OR PERSONS ARE "FINAL AND CONCLUSIVE.' WHILE THE SCOPE OF 38 U.S.C. 3203 (B) (4) PARALLELS TO SOME EXTENT THAT OF THE 1950 ACT, AND THUS RAISES A POSSIBILITY OF CONFLICT IN CERTAIN SITUATIONS, THE PROVISIONS OF 38 U.S.C. 3203 WERE ENACTED AFTER THE 1950 ACT AND HENCE CONSTITUTE THE LATEST EXPRESSION OF INTENT OF THE CONGRESS. HOWEVER, IF NO ACTION HAS BEEN TAKEN UNDER THE 1950 ACT AND WHERE, AS HERE, THE AMOUNTS PROPOSED TO BE PAID ARE LIMITED TO THOSE NEEDED TO PROVIDE FOR THE COMFORT AND WELFARE OF THE VETERAN CONCERNED, NO CONFLICT WILL RESULT AND IT IS OUR VIEW THAT 38 U.S.C. 3203 (B) (4) FURNISHES AUTHORITY FOR THE PROPOSED PAYMENTS.

ACCORDINGLY, YOU ARE ADVISED THAT IF THE ADMINISTRATOR OF VETERANS AFFAIRS SHOULD REQUEST THAT APPROPRIATE MONTHLY PAYMENTS OF A PART OF DELOZIER'S RETIRED PAY BE MADE TO THE CHIEF OFFICER, VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, PAYMENTS OF THE AMOUNTS INVOLVED WOULD BE PROPER.