B-179882, DEC 4, 1974

B-179882: Dec 4, 1974

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HE IS REQUIRED TO WAIVE ONLY 1 DAY'S RETIRED PAY. DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 494: THIS ACTION IS IN RESPONSE TO REQUEST FOR ADVANCE DECISION FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING WHETHER A RESERVIST OR A RETIRED MEMBER WHO PERFORMS. MORE THAN ONE PERIOD OF INACTIVE DUTY TRAINING FOR WHICH HE IS ENTITLED TO PAY. IS REQUIRED TO WAIVE VETERANS ADMINISTRATION DISABILITY COMPENSATION OR PENSION. THE QUESTIONS AND THE CIRCUMSTANCES ARE DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 494. THE QUESTIONS ARE AS FOLLOWS: "1. IS A RESERVIST WHO PERFORMS. MORE THAN ONE PERIOD OF INACTIVE DUTY TRAINING FOR WHICH HE IS ENTITLED TO PAY.

B-179882, DEC 4, 1974

1. PRACTICE OF VETERANS ADMINISTRATION REQUIRING MEMBERS ENTITLED TO PAY UNDER THE PROVISIONS OF 37 U.S.C. 206(A) TO WAIVE VETERANS ADMINISTRATION COMPENSATION FOR DAYS CORRESPONDING TO NUMBER OF DRILL PERIODS PERFORMED, MAY NOT BE REVIEWED BY THE GENERAL ACCOUNTING OFFICE, SINCE THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION HAS EXCLUSIVE JURISDICTION OVER LAWS ADMINISTERED BY THAT AGENCY. 2. SINCE RETIRED PAY ACCRUES ON DAY-TO-DAY BASIS, MEMBER ENTITLED TO RETIRED PAY WHO PERFORMS DUTY WHICH ENTITLES HIM TO COMPENSATION UNDER 37 U.S.C. 206(A), MAY ELECT TO RECEIVE THAT COMPENSATION IN LIEU OF RETIRED PAY PURSUANT TO 10 U.S.C. 684, AND ALTHOUGH HE MAY BE ENTITLED TO THE EQUIVALENT OF 2 DAYS' PAY FOR DUTY PERFORMED IN 1 CALENDAR DAY, HE IS REQUIRED TO WAIVE ONLY 1 DAY'S RETIRED PAY.

DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 494:

THIS ACTION IS IN RESPONSE TO REQUEST FOR ADVANCE DECISION FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING WHETHER A RESERVIST OR A RETIRED MEMBER WHO PERFORMS, IN A SINGLE DAY, MORE THAN ONE PERIOD OF INACTIVE DUTY TRAINING FOR WHICH HE IS ENTITLED TO PAY, IS REQUIRED TO WAIVE VETERANS ADMINISTRATION DISABILITY COMPENSATION OR PENSION, OR RETIRED OR RETAINER PAY FOR CALENDAR DAYS EQUAL TO DRILLS PERFORMED IN A SINGLE DAY. THE QUESTIONS AND THE CIRCUMSTANCES ARE DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 494.

THE QUESTIONS ARE AS FOLLOWS:

"1. IS A RESERVIST WHO PERFORMS, IN A SINGLE DAY, MORE THAN ONE PERIOD OF INACTIVE DUTY TRAINING FOR WHICH HE IS ENTITLED TO PAY, REQUIRED TO WAIVE VA DISABILITY COMPENSATION OR PENSION FOR CALENDAR DAYS EQUAL TO DRILLS PERFORMED IN A SINGLE DAY?

"2. IS A RETIRED MEMBER WHO PERFORMS, IN A SINGLE DAY, MORE THAN ONE PERIOD OF INACTIVE DUTY TRAINING FOR WHICH HE IS ENTITLED TO PAY, REQUIRED TO WAIVE RETIRED OR RETAINER PAY FOR CALENDAR DAYS EQUAL TO DRILLS PERFORMED IN A SINGLE DAY?"

IT IS INDICATED IN THE COMMITTEE ACTION THAT QUESTION 1 WAS BROUGHT TO THE ATTENTION OF THE VETERANS ADMINISTRATION BY LETTER DATED MAY 11, 1973, FROM THE ACTING COUNSEL, OFFICE OF GENERAL COUNSEL, DEPARTMENT OF DEFENSE. IN THE LETTER IT WAS POINTED OUT THAT IT APPEARED TO BE THE PRACTICE OF THE MILWAUKEE REGIONAL OFFICE OF THE VETERANS ADMINISTRATION TO REQUIRE THE REPORTING OF THE TOTAL NUMBER OF DRILLS PERFORMED BY A RESERVIST TO THAT OFFICE AND THAT SUCH PRACTICE WAS IN CONFORMANCE WITH VETERANS ADMINISTRATION INSTRUCTION INTERIM ISSUE 21 73-4, DATED JANUARY 31, 1973, FOR THE PURPOSE OF ESTABLISHING WAIVER OF VETERANS ADMINISTRATION COMPENSATION FOR A MEMBER OF CALENDAR DAYS EQUAL TO THE NUMBER OF DRILLS PERFORMED.

IT WAS POINTED OUT IN THE LETTER THAT UNDER THE PROVISIONS OF 37 U.S.C. 206 AND IMPLEMENTING REGULATIONS, A RESERVIST IS ENTITLED TO ONE DAY'S PAY FOR EACH DRILL PERFORMED, NOT TO EXCEED TWO DRILLS PERFORMED ON A SINGLE DAY. IT WAS NOTED THAT TWO DRILLS ARE OFTEN PERFORMED ON A SINGLE DAY. REFERENCE WAS MADE IN THE ACTING COUNSEL'S LETTER TO MEMORANDUM B-158589- O.M., DATED MARCH 17, 1966, IN WHICH THIS OFFICE INDICATED THAT SINCE RETIRED PAY ACCRUES ON A DAILY BASIS, THE AMOUNT OF RETIRED PAY WITHHELD WHILE A MEMBER IS IN RECEIPT OF ACTIVE DUTY OR DRILL PAY IS TO BE DETERMINED BY THE ACTUAL NUMBER OF CALENDAR DAYS ON WHICH THE ACTIVE DUTY AND DRILL PAY ACCRUED. AS A RESULT, IT WAS RECOMMENDED IN THE LETTER THAT IT IS BELIEVED THAT A SIMILAR APPLICATION WOULD BE POSSIBLE WITH REGARD TO THE WITHHOLDING OF VETERANS ADMINISTRATION COMPENSATION.

THE ACTING ASSISTANT ADMINISTRATOR FOR MANAGEMENT AND EVALUATION OF THE VETERANS ADMINISTRATION RESPONDED TO THE ABOVE-REFERENCED LETTER BY LETTER DATED AUGUST 7, 1973. IT WAS INDICATED IN THAT LETTER THAT UNDER THE PROVISIONS OF 38 U.S.C. 3104(C) AND VA REGULATION 1700(A)(1), RESERVISTS ARE REQUIRED TO WAIVE VETERANS ADMINISTRATION PENSION, COMPENSATION, OR RETIREMENT PAY FOR PERIODS OF DRILL DUTY AND PERIODS OF ACTIVE DUTY FOR TRAINING FOR WHICH THEY RECEIVE PAY. THE LETTER GENERALLY REITERATES THAT WHICH WAS STATED IN THE LETTER OF MAY 11, 1973, CONCERNING THE PAYMENTS UNDER 37 U.S.C. 206 AND NOTED THE ABOVE REFERRED TO MEMORANDUM B-158589- O.M., MARCH 17, 1966, DEALING WITH THE WAIVER OF RETIRED PAY ON A CALENDAR DAY BASIS.

IT WAS ALSO POINTED OUT IN THE LETTER THAT THE MEMORANDUM OF MARCH 17, 1966, WAS RESTRICTED SOLELY TO THE PROVISIONS OF 10 U.S.C. 684 AND 37 U.S.C. 206 AND APPLIES ONLY TO DRILL PAY VERSUS RETIRED PAY AND IS DISTINGUISHABLE FROM DRILL PAY VERSUS VETERANS ADMINISTRATION BENEFITS.

THE ASSISTANT ADMINISTRATOR INDICATES THAT UNDER THE PROVISIONS OF 38 U.S.C. 3104(C) RESERVISTS RECEIVING VETERANS ADMINISTRATION DISABILITY BENEFITS WHO ARE ENTITLED TO ACTIVE OR INACTIVE DUTY PAY MUST WAIVE THEIR VETERANS ADMINISTRATION BENEFITS FOR THE PERIOD SUCH PAY IS RECEIVED AND THE WAIVERS ARE EXECUTED PROSPECTIVELY AT THE BEGINNING OF THE YEAR. ALSO INDICATES THE BENEFITS ARE WAIVED FOR THE NUMBER OF DAYS EQUAL TO THE NUMBER OF DRILL PERIODS INDICATED ON THE WAIVER CERTIFICATE SINCE PAY FOR EACH DRILL IS EQUAL TO ONE DAY'S SERVICE PAY.

IT IS STATED IN THE COMMITTEE ACTION THAT AS A RESULT OF THE LETTER FROM THE VETERANS ADMINISTRATION, IT APPEARS THAT THE VIEWS OF THE DEPARTMENT OF DEFENSE AND THE VETERANS ADMINISTRATION ON THE SUBJECT ARE AT VARIANCE. IT IS ALSO NOTED THAT, WITH REGARD TO WAIVER OF RETIRED PAY WHILE RECEIVING DRILL PAY, OUR MEMORANDUM B-158589-O.M., MARCH 17, 1966, APPEARS TO BE THE ONLY AUTHORITY FOR THE PRACTICE EMPLOYED BY THE DEPARTMENT OF DEFENSE SINCE NO AUTHORITY WAS FOUND IN THE PUBLISHED DECISIONS OF THE COMPTROLLER GENERAL.

SUBSECTION 206(A) OF TITLE 37, U.S.C. PROVIDES AS FOLLOWS:

"(A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, AND TO THE EXTENT PROVIDED FOR BY APPROPRIATIONS, A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO IS NOT ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE, IS ENTITLED TO COMPENSATION, AT THE RATE OF 1/30 OF THE BASIC PAY AUTHORIZED FOR A MEMBER OF A UNIFORMED SERVICE OF A CORRESPONDING GRADE ENTITLED TO BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH HE IS ENGAGED FOR AT LEAST TWO HOURS, INCLUDING THAT PERFORMED ON A SUNDAY OR HOLIDAY, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, DUTY, OR APPROPRIATE DUTIES, AS THE SECRETARY MAY PRESCRIBE."

UNDER THIS PROVISION OF LAW, AS WAS POINTED OUT IN B-158589-O.M., MARCH 17, 1966, THE COMPENSATION AUTHORIZED IS EQUIVALENT TO 1 DAY'S PAY FOR EACH DRILL OF 2 HOURS OR MORE, THEREBY CREATING THE POSSIBILITY OF A MEMBER RECEIVING 2 DAYS' PAY FOR DUTY PERFORMED ON A SINGLE CALENDAR DAY.

SUBSECTION 3104(C) OF TITLE 38, U.S.C. PROVIDES AS FOLLOWS:

"(C) PENSION, COMPENSATION, OR RETIREMENT PAY ON ACCOUNT OF HIS OWN SERVICE SHALL NOT BE PAID TO ANY PERSON FOR ANY PERIOD FOR WHICH HE RECEIVES ACTIVE SERVICE PAY."

IN VIEW OF THE LETTER FROM THE ASSISTANT ADMINISTRATOR REFERRED TO IN THE COMMITTEE ACTION, IT APPEARS THAT THE VETERANS ADMINISTRATION INTERPRETS THAT SECTION AS APPLYING TO A DRILL PERIOD RATHER THAN A DRILL DAY. THIS CONNECTION WE INVITE YOUR ATTENTION TO THE PROVISIONS OF 38 U.S.C. 211A WHICH PROVIDES THAT THE DECISIONS OF THE ADMINISTRATOR OF VETERANS AFFAIRS ON ANY QUESTION OF LAW OR FACT ARISING UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION ARE FINAL AND CONCLUSIVE AND MAY NOT BE DISTURBED BY ANY OTHER OFFICIAL. QUESTION 1, THEREFORE, MAY NOT BE ANSWERED SINCE THIS OFFICE LACKS JURISDICTION WITH REGARD TO LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION.

WITH REGARD TO THE SECOND QUESTION, SECTION 684 OF TITLE 10, U.S.C. PROVIDES IN PART AS FOLLOWS:

"(A) EXCEPT AS PROVIDED BY SUBSECTION (B), A RESERVE OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS WHO BECAUSE OF HIS EARLIER MILITARY SERVICE IS ENTITLED TO A PENSION, RETIRED OR RETAINER PAY, OR DISABILITY COMPENSATION, AND WHO PERFORMS DUTY FOR WHICH HE IS ENTITLED TO COMPENSATION, MAY ELECT TO RECEIVE FOR THAT DUTY EITHER -

"(1) THE PAYMENTS TO WHICH HE IS ENTITLED BECAUSE OF HIS EARLIER MILITARY SERVICE; OR

"(2) IF HE SPECIFICALLY WAIVES THOSE PAYMENTS, THE PAY AND ALLOWANCES AUTHORIZED BY LAW FOR THE DUTY THAT HE IS PERFORMING."

THUS, A MEMBER UNDER THE CIRCUMSTANCES DESCRIBED IN THE COMMITTEE ACTION MUST ELECT EITHER TO RECEIVE THE COMPENSATION FOR THE DUTY HE PERFORMS OR TO RECEIVE RETIRED PAY.

IT IS WELL ESTABLISHED THAT RETIRED PAY ACCRUES ON A DAY-TO-DAY BASIS. THIS IS EVIDENCED BY NUMEROUS DECISIONS OF THIS OFFICE RELATING TO QUESTIONS CONCERNING ENTITLEMENT TO RETIRED PAY WHEN VIEWED IN LIGHT OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. SEE FOR EXAMPLE, B-138366, MARCH 9, 1959, AND B-135425, APRIL 21, 1958. DECISIONS OF THIS OFFICE RELATING TO THE EFFECTIVE DATES OF RETIREMENT ALSO SUPPORT THE VIEW THAT RETIRED PAY ACCRUES DAILY. SEE FOR EXAMPLE 49 COMP. GEN. 429 (1970). WE HAVE ALSO HELD THAT A MEMBER IS NOT ENTITLED TO RETIRED PAY ON DAYS WHEN HE RECEIVES ACTIVE DUTY PAY. SEE THE ANSWER TO QUESTION LB IN 38 COMP. GEN. 647 (1959).

THUS, A RETIRED MEMBER IS ENTITLED TO RETIRED PAY ON A DAILY BASIS, UNLESS A STATUTE PRECLUDES RECEIPT OF RETIRED PAY OR HE ELECTS TO RECEIVE OTHER COMPENSATION, SUCH AS VETERANS ADMINISTRATION COMPENSATION, ACTIVE DUTY PAY OR DRILL PAY IN LIEU THEREOF ON THAT DAY. WE ARE UNAWARE OF ANY AUTHORITY IN THE LAW RELATING TO DRILL PAY FOR CONVERTING THE NUMBER OF DRILLS TO AN EQUAL NUMBER OF CALENDAR DAYS.

ACCORDINGLY, IT MUST BE CONCLUDED THAT UNDER THE PROVISIONS OF 10 U.S.C. 684(A), A MEMBER ELECTING TO RECEIVE COMPENSATION UNDER THE PROVISIONS OF 37 U.S.C. 206(A) IS NOT ENTITLED TO RETIRED PAY FOR THE DAY ON WHICH HE PERFORMS THAT DUTY. THE FACT THAT HE MAY BE ENTITLED TO 2 DAYS' ACTIVE DUTY PAY FOR DUTY PERFORMED IN 1 DAY DOES NOT OPERATE TO DEPRIVE HIM OF RETIRED PAY FOR ANY CALENDAR DAY ON WHICH HE DOES NOT PERFORM ACTIVE OR INACTIVE DUTY OR IS NOT ENTITLED TO ACTIVE DUTY OR DRILL PAY.

QUESTION 2 IS ANSWERED IN THE NEGATIVE.