B-157099, JUL. 21, 1965

B-157099: Jul 21, 1965

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. YOU WERE PAID DISABILITY RETIRED PAY FOR THE PERIOD DECEMBER 21. YOU STATE THAT YOU RECEIVED ONLY $100 MUSTERING-OUT PAY INSTEAD OF $300 AND IT IS YOUR BELIEF THAT WHAT YOU VIEW AS OVERPAYMENT OF VETERANS ADMINISTRATION BENEFITS FOR THE PERIODS JULY 1. IN THE AMOUNT OF $591.21 (WHICH WAS INCLUDED IN THE DEDUCTION OF $3. 502.58) SHOULD NOT HAVE BEEN COLLECTED FROM YOUR RETROACTIVE RETIRED PAY. 27 DAYS WERE ACTIVE SERVICE. YOU WERE RETIRED FOR PHYSICAL DISABILITY RATED AT 60 PERCENT. WHICH HAD BEEN INCURRED WHILE YOU WERE SERVING ON ACTIVE DUTY. IT WAS DETERMINED THAT YOUR RETIREMENT ENTITLED YOU TO RETIRED PAY FROM THE DATE OF YOUR RELEASE.

B-157099, JUL. 21, 1965

TO CHIEF WARRANT OFFICER JOHN P. DALRYMPLE, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1965, AGAIN PROTESTING THE COLLECTION OF $200 MUSTERING-OUT PAY AND $591.21 UNDERDEDUCTION OF RETIRED PAY ON ACCOUNT OF DISABILITY COMPENSATION PAID BY THE VETERANS ADMINISTRATION FROM THE PAYMENT TO YOU OF RETROACTIVE RETIRED PAY EFFECTED ON SETTLEMENT VOUCHER ISSUED BY THE CLAIMS DIVISION OF THIS OFFICE UNDER DATE OF JULY 22, 1959.

ON THE SETTLEMENT VOUCHER REFERRED TO, YOU WERE PAID DISABILITY RETIRED PAY FOR THE PERIOD DECEMBER 21, 1945, TO DECEMBER 31, 1951, IN THE AMOUNT OF $7,985.29 AFTER DEDUCTION OF $300 TO RECOVER THE MUSTERING-OUT PAYMENT MADE TO YOU INCIDENT TO YOUR DISCHARGE ON DECEMBER 20, 1945, AND $3,502.58 TO RECOVER THE FULL AMOUNT OF DISABILITY COMPENSATION PAID TO YOU BY THE VETERANS ADMINISTRATION FOR THE PERIOD DECEMBER 21, 1945, TO DECEMBER 31, 1951, AND THE AMOUNT PAID TO YOU BY THE VETERANS ADMINISTRATION AND THE DEPARTMENT OF THE NAVY IN EXCESS OF YOUR ENTITLEMENT FOR THE PERIODS JULY 1, 1952, TO JANUARY 31, 1956, AND FEBRUARY 25, 1958, TO MARCH 31, 1958.

YOU STATE THAT YOU RECEIVED ONLY $100 MUSTERING-OUT PAY INSTEAD OF $300 AND IT IS YOUR BELIEF THAT WHAT YOU VIEW AS OVERPAYMENT OF VETERANS ADMINISTRATION BENEFITS FOR THE PERIODS JULY 1, 1952, TO JANUARY 31, 1956, AND FEBRUARY 25, 1958, TO MARCH 31, 1958, IN THE AMOUNT OF $591.21 (WHICH WAS INCLUDED IN THE DEDUCTION OF $3,502.58) SHOULD NOT HAVE BEEN COLLECTED FROM YOUR RETROACTIVE RETIRED PAY. BASED ON YOUR REQUEST, THEREFORE, A COMPLETE REVIEW OF YOUR CASE HAS BEEN MADE.

THE OFFICIAL RECORD SHOWS THAT YOU SERVED IN THE ARMY FROM JANUARY 2, 1918, TO JANUARY 8, 1919, AND IN THE UNITED STATES NAVAL RESERVE FROM FEBRUARY 24, 1943, TO DECEMBER 20, 1945, A TOTAL OF 3 YEARS, 10 MONTHS, AND 4 DAYS, OF WHICH 3 YEARS, 9 MONTHS, AND 27 DAYS WERE ACTIVE SERVICE. EFFECTIVE DECEMBER 21, 1945, THE DAY AFTER YOUR RELEASE, YOU BEGAN RECEIVING DISABILITY COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION AND SUCH PAYMENTS, IN INCREASING AMOUNTS, CONTINUED TO BE RECEIVED BY YOU DURING THE ENTIRE PERIOD COVERED BY YOUR CLAIM. EFFECTIVE JANUARY 1, 1952, YOU WERE RETIRED FOR PHYSICAL DISABILITY RATED AT 60 PERCENT, WHICH HAD BEEN INCURRED WHILE YOU WERE SERVING ON ACTIVE DUTY, IN THE LINE OF DUTY, AND WHICH EXISTED AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY ON DECEMBER 20, 1945, THUS ENTITLING YOU TO RECEIVE DISABILITY RETIRED PAY FROM THE NAVY. BASED ON SUBSEQUENT JUDICIAL INTERPRETATIONS OF THE RETIRED PAY LAWS, IT WAS DETERMINED THAT YOUR RETIREMENT ENTITLED YOU TO RETIRED PAY FROM THE DATE OF YOUR RELEASE. ACCORDINGLY YOUR CLAIM, RECEIVED IN OUR OFFICE ON MARCH 4, 1959, FOR RETIRED PAY FOR THE PERIOD DECEMBER 21, 1945, TO DECEMBER 31, 1951, WAS ALLOWED IN THE NET AMOUNT OF $7,985.29, AS STATED ABOVE.

THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, WAS IN EFFECT AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY ON DECEMBER 20, 1945. THAT ACT AUTHORIZED PAYMENT OF $300 TO MEMBERS RELIEVED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS IF THE MEMBER HAD PERFORMED ACTIVE SERVICE FOR 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. HOWEVER, NO PAYMENT WAS AUTHORIZED TO ANY MEMBER OF THE ARMED FORCES WHO AT THE TIME OF DISCHARGE OR RELIEF FROM ACTIVE DUTY WAS TRANSFERRED TO A STATUS IN WHICH HE RECEIVED RETIREMENT PAY. YOUR NOTICE OF SEPARATION, NAVPERS-553 SHOWS OVER 3 YEARS OF ACTIVE SERVICE AND SHOWS THAT YOU SERVED IN THE ASIATIC PACIFIC AREA. ITEM NO. 32 ON THE NOTICE OF SEPARATION IS "INITIAL MUSTERING OUT PAY $100.' AT THAT TIME THE SERVICES PAID THREE HUNDRED DOLLAR MUSTERING-OUT PAYMENTS IN 3 INCREMENTS OF $100 EACH, THE FIRST UPON SEPARATION, THE SECOND INCREMENT ONE MONTH LATER AND THE THIRD ONE MONTH AFTER THE SECOND. THIS METHOD OF PAYMENT WAS GENERALLY FOUND TO BE MORE BENEFICIAL TO THE RETURNING SERVICEMAN THAN PAYMENT OF THE ENTIRE AMOUNT IN A LUMP SUM AND THIS METHOD WAS FOLLOWED IN YOUR CASE, THE FIRST INCREMENT BEING PAID TO YOU WHEN YOU WENT ON TERMINAL LEAVE NOVEMBER 17, 1945, REFERRED TO AS THE "INITIAL MUSTERING OUT PAY" ON YOUR NOTICE OF SEPARATION, THE SECOND INCREMENT BEING PAID TO YOU IN DECEMBER 1945 AND THE THIRD IN JANUARY 1946. THE FACT THAT YOU DO NOT RECALL RECEIVING THE SECOND AND THIRD INCREMENTS DOES NOT PROVIDE A BASIS FOR REPAYMENT TO YOU OF THE AMOUNT THEREOF SINCE THE OFFICIAL RECORDS OF THE DEPARTMENT OF THE NAVY SHOW THAT THE PAYMENTS ACTUALLY WERE MADE TO YOU.

IT APPEARS THAT YOU DO NOT CONTEST THE RECOVERY, BY DEDUCTION FROM YOUR RETIRED PAY, OF $2,911.37, THE ENTIRE AMOUNT OF VETERANS ADMINISTRATION DISABILITY COMPENSATION PAID TO YOU FOR THE PERIOD DECEMBER 21, 1945, TO DECEMBER 31, 1951. YOU CONTEST ONLY THE RECOVERY OF $591.21, THE AMOUNT PAID TO YOU IN EXCESS OF YOUR COMBINED RETIRED PAY AND DISABILITY COMPENSATION ENTITLEMENT FOR THE PERIODS JULY 1, 1952, TO JANUARY 31, 1956, AND FEBRUARY 25, 1958, TO MARCH 31, 1958. THE STATUTORY PROHIBITION AGAINST THE CONCURRENT PAYMENT OF DUPLICATE BENEFITS, ONE PAYMENT IN THE FORM OF RETIRED PAY AND THE OTHER PAYMENT IN THE FORM OF DISABILITY COMPENSATION, AND THE AUTHORITY FOR WAIVER OF RETIRED PAY IN ORDER TO RECEIVE DISABILITY COMPENSATION ARE FOUND IN 38 U.S.C. 3104 (A) AND 3105, RESPECTIVELY, WHICH ARE AS FOLLOWS:

"3104 (A). EXCEPT TO THE EXTENT THAT RETIREMENT PAY IS WAIVED UNDER OTHER PROVISIONS OF LAW, NOT MORE THAN ONE AWARD OF PENSION, COMPENSATION, EMERGENCY OFFICERS-, REGULAR, OR RESERVE RETIREMENT PAY, OR INITIAL AWARD OF NAVAL PENSION GRANTED AFTER JULY 13, 1943, SHALL BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE OR CONCURRENTLY TO ANY PERSON BASED ON THE SERVICE OF ANY OTHER PERSON.

"3105. ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW PROVIDING RETIRED OR RETIREMENT PAY TO PERSONS IN THE ARMED FORCES, OR AS A COMMISSIONED OFFICER OF THE COAST AND GEODETIC SURVEY OR OF THE PUBLIC HEALTH 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 OR RETIREMENT PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON THE FILING BY SUCH PERSON WITH THE DEPARTMENT BY WHICH SUCH RETIRED OR RETIREMENT PAY IS PAID OF A WAIVER OF SO MUCH OF HIS RETIRED OR RETIREMENT PAY AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION. TO PREVENT DUPLICATION OF PAYMENTS, THE DEPARTMENT WITH WHICH ANY SUCH WAIVER IS FILED SHALL NOTIFY THE VETERANS' ADMINISTRATION OF THE RECEIPT OF SUCH WAVIER, THE AMOUNT WAIVED, AND THE EFFECTIVE DATE OF THE REDUCTION IN RETIRED OR RETIREMENT PAY.'

THE AMOUNT OF YOUR RETIRED PAY OR THE AMOUNT OF DISABILITY COMPENSATION AWARDED YOU, WHICHEVER IS GREATER, IS THE MAXIMUM BENEFIT YOU ARE LEGALLY ENTITLED TO RECEIVE FOR ANY PERIOD. FOR ALL PERIODS PRIOR TO FEBRUARY 25, 1958, THE AMOUNT OF YOUR RETIRED PAY EXCEEDED THE AMOUNT OF DISABILITY COMPENSATION AWARDED YOU; THEREFORE YOU WERE ENTITLED TO PAYMENT OF RETIRED PAY FOR THOSE PERIODS ONLY IN AN AMOUNT WHICH REPRESENTED THE DIFFERENCE BETWEEN YOUR DISABILITY COMPENSATION AND THE AMOUNT OF YOUR RETIRED PAY ENTITLEMENT. BEGINNING FEBRUARY 25, 1958, THE AMOUNT OF YOUR DISABILITY COMPENSATION AWARD WAS GREATER THAN THE AMOUNT OF YOUR RETIRED PAY ENTITLEMENT AND FROM THAT DAY ON YOU WERE NOT ENTITLED TO PAYMENT OF ANY AMOUNT AS RETIRED PAY. THE ERRONEOUS PAYMENT OF RETIRED PAY WITHOUT MAKING PROPER DEDUCTIONS FOR THE AMOUNTS PAID AS DISABILITY COMPENSATION DID NOT VEST IN YOU A LEGAL RIGHT TO RETAIN THE AMOUNTS SO ERRONEOUSLY PAID.

THE ACTION TAKEN ON THE SETTLEMENT VOUCHER OF JULY 22, 1959, WAS CORRECT AND IS SUSTAINED.

THE COPIES OF NOTICE OF SEPARATION, LETTER FROM THE NAVY FINANCE CENTER, CLEVELAND, OHIO, DATED DECEMBER 9, 1958, AND ENDORSEMENT ON RELEASE ORDERS DATED NOVEMBER 16, 1945, ARE RETURNED IN ACCORDANCE WITH YOUR REQUEST.