B-158761, MAY 16, 1966

B-158761: May 16, 1966

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POLICARPO ALFEROS: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. YOUR CLAIM FOR THESE ITEMS WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF JANUARY 18. WILL BE REGARDED AS A REQUEST FOR REVIEW OF THAT ACTION. WE ALSO HAVE RECEIVED. YOU HAVE NOT RAISED ANY QUESTION AS TO THE CORRECTNESS OF SUCH COMPUTATION AND YOU HAVE NOT INDICATED ANY BASIS FOR YOUR CLAIM FOR ADDITIONAL RETIRED PAY. IN THE EVENT YOU FEEL YOU SHOULD RECEIVE YOUR RETIRED PAY WHILE YOU ARE ALSO RECEIVING VETERANS ADMINISTRATION COMPENSATION. YOU ARE ADVISED THAT SUCH DUAL PAYMENTS ARE PROHIBITED BY LAW. PROVIDES AS FOLLOWS: "EXCEPT TO THE EXTENT THAT RETIREMENT PAY IS WAIVED UNDER OTHER PROVISIONS OF LAW. THE FINAL DATE FOR FILING APPLICATION WAS SUBSEQUENTLY EXTENDED TO JANUARY 2.

B-158761, MAY 16, 1966

TO MR. POLICARPO ALFEROS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1966, AGAIN CLAIMING ADDITIONAL RETIRED PAY INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY FROM FEBRUARY 18, 1918, TO FEBRUARY 1, 1935, AND WORLD WAR I BONUS BASED ON H.R. 5450. YOUR CLAIM FOR THESE ITEMS WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF JANUARY 18, 1966, AND YOUR LETTER OF FEBRUARY 17, 1966, WILL BE REGARDED AS A REQUEST FOR REVIEW OF THAT ACTION. WE ALSO HAVE RECEIVED, BY REFERENCE FROM THE DEPARTMENT OF THE NAVY, U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO, YOUR LETTER OF FEBRUARY 3, 1966, AND A COPY OF YOUR LETTER OF MARCH 4, 1966, IN WHICH YOU CLAIM BENEFITS UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942.

WITH RESPECT TO THAT PORTION OF YOUR CLAIM COVERING "ADDITIONAL RETIRED PAY," THE DISALLOWANCE FROM OUR CLAIMS DIVISION ADDRESSED TO YOU UNDER DATE OF JANUARY 18, 1966, INCLUDES AN EXPLANATION SHOWING THE METHOD OF COMPUTATION OF YOUR RETIRED PAY UP TO NOVEMBER 1, 1953, WHEN YOU WAIVED YOUR RETIRED PAY IN ORDER TO RECEIVE COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION. YOU HAVE NOT RAISED ANY QUESTION AS TO THE CORRECTNESS OF SUCH COMPUTATION AND YOU HAVE NOT INDICATED ANY BASIS FOR YOUR CLAIM FOR ADDITIONAL RETIRED PAY. IN THE EVENT YOU FEEL YOU SHOULD RECEIVE YOUR RETIRED PAY WHILE YOU ARE ALSO RECEIVING VETERANS ADMINISTRATION COMPENSATION, YOU ARE ADVISED THAT SUCH DUAL PAYMENTS ARE PROHIBITED BY LAW. SECTION 3104 (A) OF TITLE 38, U.S. CODE, PROVIDES AS FOLLOWS:

"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 * * * SHALL BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE * * *.'

YOUR CLAIM FOR "WORLD WAR I BONUS" APPARENTLY REFERS TO THE WORLD WAR ADJUSTED COMPENSATION ACT, APPROVED MAY 19, 1924, CH. 157, 43 STAT. 121, WHICH AUTHORIZED THE PAYMENT TO CERTAIN VETERANS OF ADDITIONAL COMPENSATION FOR ACTIVE SERVICE IN EXCESS OF 60 DAYS PERFORMED AFTER APRIL 5, 1917, AND BEFORE JULY 1, 1919. SECTION 302 (B) OF THAT ACT PROVIDED THAT APPLICATION FOR THE BENEFITS THEREOF MUST BE FILED ON OR BEFORE JANUARY 1, 1928. THE FINAL DATE FOR FILING APPLICATION WAS SUBSEQUENTLY EXTENDED TO JANUARY 2, 1940. YOUR REFERENCE TO H.R. 5450 PRESUMABLY IS A REFERENCE TO THE BILL, H.R. 5450, WHICH WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES IN THE 76TH CONGRESS AND WHICH WOULD HAVE FURTHER EXTENDED THE FINAL DATE FOR FILING APPLICATIONS UNDER THE 1924 ACT TO JANUARY 2, 1945. THAT BILL WAS PASSED BY BOTH HOUSES OF CONGRESS BUT WAS VETOED BY PRESIDENT ROOSEVELT ON AUGUST 10, 1939, WITH THE FOLLOWING EXPLANATION:

"UNDER THE ORIGINAL ACT THE VETERANS AND THEIR DEPENDENTS WERE GRANTED APPROXIMATELY THREE AND ONE-HALF YEARS AND BY SUBSEQUENT LIBERALIZATION HAVE BEEN GIVEN A PERIOD OF OVER FIFTEEN YEARS FROM THE DATE OF ENACTMENT OF THE ORIGINAL ACT IN WHICH TO CLAIM THESE BENEFITS. DURING THIS PERIOD MUCH PUBLICITY WAS GIVEN THE ORIGINAL ACT AND AMENDMENTS, INCLUDING THE ADJUSTED COMPENSATION PAYMENT ACT, AS AMENDED, WITH EVERY REASONABLE OPPORTUNITY TO FILE CLAIM. THIS OPPORTUNITY STILL EXISTS AND WILL CONTINUE TO JANUARY 2, 1940.'

SINCE YOUR CLAIM WAS NOT FILED UNTIL AFTER JANUARY 2, 1940, THERE IS NO AUTHORITY FOR PAYMENT OF THE ADJUSTED COMPENSATION BENEFITS PROVIDED BY THE 1924 ACT. EVEN IF H.R. 5450 HAD BECOME A LAW IT WOULD HAVE EXTENDED THE DATE FOR FILING CLAIMS ONLY TO JANUARY 2, 1945, AND YOUR CLAIM, RECEIVED IN OUR OFFICE ON NOVEMBER 4, 1965, WOULD NOT HAVE BEEN FILED IN TIME TO RECEIVE THE BENEFITS CLAIMED. THE DISALLOWANCE OF YOUR PREVIOUS CLAIM IS SUSTAINED.

YOU STATE ALSO THAT YOU BELIEVE YOU ARE ENTITLED TO THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, APPROVED JUNE 23, 1942, CH. 443, 56 STAT. 381. THAT ACT AUTHORIZED A FAMILY ALLOWANCE TO BE PAID TO THE DEPENDENTS OF SERVICEMEN WHO WERE SERVING ON ACTIVE DUTY DURING WARTIME ON OR AFTER JUNE 1, 1942, SUCH ALLOWANCE TO BE MADE UP OF AN AMOUNT DEDUCTED FROM THE ENLISTED MAN'S PAY AND AN AMOUNT CONTRIBUTED BY THE GOVERNMENT. THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, GENERALLY PROHIBITS CONSIDERATION OF CLAIMS FILED IN THE GENERAL ACCOUNTING OFFICE MORE THAN 10 YEARS AFTER THE DATE ON WHICH THE CLAIM FIRST ACCRUED. HOWEVER, SINCE YOU PERFORMED NO ACTIVE SERVICE ON OR AFTER JUNE 1, 1942, THERE WOULD HAVE BEEN NO BASIS FOR ESTABLISHMENT OF A FAMILY ALLOWANCE IN FAVOR OF YOUR DEPENDENTS IF APPLICATION HAD BEEN TIMELY FILED.