B-207913, APR 15, 1983

B-207913, APR 15, 1983

DIGEST: 1. A RESERVE MEMBER IS REQUIRED TO WAIVE DISABILITY COMPENSATION PAID BY THE VETERANS ADMINISTRATION IN ORDER TO RECEIVE COMPENSATION FOR INACTIVE DUTY TRAINING. 10 U.S.C. SEC. 684. IF RETROACTIVE WAIVERS OF DISABILITY COMPENSATION ARE ACCEPTABLE UNDER LAWS AND REGULATIONS ADMINISTERED BY THE VETERANS ADMINISTRATION, RESULTING IN RECOUPMENT OF PAYMENTS MADE FOR PERIODS OF INACTIVE DUTY TRAINING PERFORMED AND FOR WHICH COMPENSATION HAS BEEN PAID, THE COMPTROLLER GENERAL DOES NOT OBJECT TO THE MEMBER'S RETENTION OF PAY RECEIVED FOR TRAINING DUTY. 2. IF A WAIVER OF DISABILITY COMPENSATION REQUIRED BY 10 U.S.C. SEC. 684 IS NOT EXECUTED, PAYMENT OF COMPENSATION FOR INACTIVE DUTY TRAINING MAY NOT BE MADE. ANY PAYMENTS FOR INACTIVE DUTY TRAINING IN THE ABSENCE OF SUCH WAIVER ARE ERRONEOUS PAYMENTS AND MUST BE COLLECTED FROM THE MEMBER UNLESS A RETROACTIVE WAIVER OF DISABILITY COMPENSATION MAY BE ACCEPTED BY THE VETERANS ADMINISTRATION. 3. DISABILITY COMPENSATION PAID BY THE VETERANS ADMINISTRATION MUST BE WITHHELD BY THAT AGENCY FROM A FORMER MEMBER IN AN AMOUNT EQUAL TO ANY DISABILITY SEVERANCE PAY RECEIVED BY THE MEMBER UNDER 10 U.S.C. SEC. 1212 FOR THE SAME DISABILITY. PAY FOR INACTIVE DUTY TRAINING PERFORMED MAY NOT BE PAID IN SUCH CASES UNLESS THE VETERANS ADMINISTRATION INTERRUPTS BENEFITS ENTITLEMENT AND HOLDS IN ABEYANCE THE COLLECTION OF DISABILITY SEVERANCE PAY. IN SUCH A CASE INACTIVE DUTY TRAINING PAY MAY BE PAID IF A WAIVER IS EXECUTED AS REQUIRED BY 10 U.S.C. SEC. 684. 4. A WAIVER OF DISABILITY COMPENSATION MUST BE EXECUTED AS REQUIRED BY 10 U.S.C. SEC. 684, AND 1 DAY'S COMPENSATION MUST BE WITHHELD FROM A RESERVE MEMBER WHO PERFORMS INACTIVE DUTY TRAINING ON THE 31ST DAY OF A CALENDAR MONTH NOTWITHSTANDING 5 U.S.C. SEC. 5505 WHICH PROVIDES THAT DISABILITY COMPENSATION ACCRUES ON A MONTHLY BASIS OF 30 DAYS AND THE 31ST DAY IS IGNORED.

WAIVER OF VETERANS ADMINISTRATION BENEFITS:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR ADVANCE DECISION FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING VARIOUS QUESTIONS RELATING TO RESERVE MEMBERS WHO RECEIVE COMPENSATION FOR INACTIVE DUTY TRAINING PERIODS WITHOUT WAIVING THEIR ENTITLEMENT TO VETERANS ADMINISTRATION DISABILITY COMPENSATION FOR THOSE PERIODS. THE QUESTIONS AND A DISCUSSION THEREOF ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NUMBER 555.

GENERALLY, THE QUESTIONS RELATE TO WHETHER A RETROACTIVE WAIVER OF THE VETERANS ADMINISTRATION COMPENSATION MAY BE ACCEPTED AND WHETHER THERE ARE ANY TIME LIMITS ON THE PERIOD COVERED BY THE WAIVER. WE ARE ALSO ASKED WHETHER A WAIVER OF THIS COMPENSATION IS NECESSARY WHEN A MEMBER'S VETERANS ADMINISTRATION COMPENSATION IS BEING OFFSET BECAUSE OF A PAYMENT UNDER 10 U.S.C. SEC. 1212 OR FOR OTHER REASONS. FINALLY, THE QUESTION IS RAISED AS TO WHETHER A WAIVER IS NEEDED IN ORDER TO RECEIVE PAY FOR INACTIVE DUTY TRAINING PERFORMED ON THE 31ST DAY OF A MONTH.

WAIVER MAY BE ACCEPTED IF SUCH PROCEDURES ARE ACCEPTABLE TO THE VETERANS ADMINISTRATION. A MEMBER NEED NOT EXECUTE A WAIVER OF DISABILITY COMPENSATION AS REQUIRED BY 10 U.S.C. SEC. 684, IF SUCH COMPENSATION IS BEING COLLECTED IN ACCORDANCE WITH 10 U.S.C. SEC. 1212(C) IN AN AMOUNT EQUAL TO ANY DISABILITY SEVERANCE PAY RECEIVED ON ACCOUNT OF THE SAME DISABILITY. HOWEVER, PAY FOR INACTIVE DUTY TRAINING MAY NOT BE PAID UNLESS THE VETERANS ADMINISTRATION HOLDS IN ABEYANCE THE COLLECTIONS FOR THE PERIODS OF INACTIVE DUTY. IN THIS CASE A WAIVER SHOULD BE EXECUTED. A WAIVER OF VETERANS ADMINISTRATION COMPENSATION MUST BE EXECUTED BY A MEMBER IN RECEIPT OF SUCH COMPENSATION IF HE IS RECEIVING PAY FOR INACTIVE DUTY TRAINING ON THE 31ST DAY OF THE MONTH.

THE COMMITTEE ACTION POINTS OUT THAT 10 U.S.C. SEC. 684 PRECLUDES A RESERVE MEMBER FROM RECEIVING COMPENSATION FOR DUTY HE PERFORMS IF HE IS RECEIVING RETIRED OR RETAINER PAY, PENSION, OR DISABILITY COMPENSATION BASED ON EARLIER MILITARY SERVICE UNLESS HE SPECIFICALLY WAIVES THOSE PAYMENTS. THUS, WHEN A MEMBER WHO HAS NOT WAIVED SUCH A PAYMENT RECEIVES PAY FOR DUTY HE PERFORMS, THIS PAYMENT IS AN ERRONEOUS PAYMENT. OUR ATTENTION IS INVITED TO THE FACT THAT IN AT LEAST ONE INSTANCE WE AUTHORIZED A RETROACTIVE WAIVER OF THE PAYMENT BASED ON EARLIER SERVICE, IN ORDER TO ALLOW THE MEMBER TO RECEIVE THE PAY FOR THE DUTY HE PERFORMED. B-113091, FEBRUARY 3, 1953. HOWEVER, IN THAT CASE THE PAYMENT FOR THE DUTY PERFORMED HAD NOT BEEN MADE AND, THEREFORE, THERE WAS NO ERRONEOUS PAYMENT. WE NOTED IN THAT CASE THAT UNDER THE VETERANS ADMINISTRATION REGULATIONS IN EFFECT AT THAT TIME, WE HAD NO OBJECTION TO A RETROACTIVE WAIVER PROVIDED IT WAS FILED WITHIN A REASONABLE PERIOD AFTER THE DUTY WAS PERFORMED.

WE HAVE NO OBJECTION TO EXTENDING THIS HOLDING TO ALLOW RETROACTIVE WAIVER EVEN WHEN A PAYMENT FOR INACTIVE DUTY TRAINING HAS BEEN MADE. HOWEVER, THIS MATTER IS ONE PRIMARILY FOR CONSIDERATION BY THE VETERANS ADMINISTRATION SINCE THAT AGENCY HAS JURISDICTION OVER THE DISABILITY COMPENSATION PAYMENTS AND WILL NECESSARILY MAKE ANY ADJUSTMENTS REQUIRED BY A RETROACTIVE WAIVER. SEE 38 U.S.C. SEC. 211 (1976). BUT WE NOTE REGULATIONS PROMULGATED BY THE VETERANS ADMINISTRATION APPEAR TO CONTEMPLATE ONLY PROSPECTIVE WAIVERS. SEE 38 C.F.R. SEC. 3.700(III). THUS, WE DO NOT OBJECT TO RETROACTIVE WAIVER OF VETERANS ADMINISTRATION COMPENSATION FOR ANY PERIODS (ANY FISCAL YEARS) THAT THE VETERANS ADMINISTRATION DETERMINES MAY BE ADJUSTED IN ACCORDANCE WITH LAWS AND REGULATIONS GOVERNING THE ADMINISTRATION OF DISABILITY COMPENSATION. THE EVENT RETROACTIVE WAIVERS CANNOT BE GRANTED BY THE VETERANS ADMINISTRATION, THE ERRONEOUS PAYMENTS OF COMPENSATION FOR INACTIVE DUTY TRAINING MUST BE COLLECTED FROM THE MEMBERS INVOLVED.

A QUESTION IS PRESENTED AS TO WHETHER A WAIVER OF COMPENSATION MUST BE EXECUTED IN THE CASE OF A RESERVE MEMBER WHO IS PERFORMING INACTIVE DUTY TRAINING AND IS ENTITLED TO DISABILITY COMPENSATION BUT THAT COMPENSATION IS BEING USED TO OFFSET ACTIVE DUTY DISABILITY SEVERANCE PAY RECEIVED UNDER 10 U.S.C. SEC. 1212(C) OR BEING OFFSET FOR OTHER REASONS.

THIS QUESTION ARISES SINCE 10 U.S.C. SEC. 684 REFERS TO THE PAYMENTS TO WHICH THE MEMBER IS ENTITLED. SINCE HIS ENTITLEMENT TO VETERANS ADMINISTRATION BENEFITS IS BEING USED TO RECOUP THE DISABILITY SEVERANCE PAY PREVIOUSLY RECEIVED, THERE SEEMS TO BE SOME DOUBT AS TO WHETHER A WAIVER OF THIS ENTITLEMENT IS NECESSARY.

UNDER 10 U.S.C. SEC. 1212(C) THE AMOUNT OF DISABILITY SEVERANCE PAY RECEIVED BY THE MEMBER MUST BE DEDUCTED FROM ANY COMPENSATION FOR THE SAME DISABILITY TO WHICH THE MEMBER BECOMES ENTITLED UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION. THUS, THE MEMBER IS ENTITLED TO THE PAYMENT OF THE COMPENSATION, BUT IT MUST BE WITHHELD TO REPAY THE DISABILITY SEVERANCE PAY HE RECEIVED. IT IS OUR VIEW THAT A WAIVER OF DISABILITY COMPENSATION SHOULD BE EXECUTED ONLY IF THE VETERANS ADMINISTRATION CAN HOLD IN ABEYANCE COLLECTION OF DISABILITY COMPENSATION REQUIRED BY 10 U.S.C. SEC. 1212(C). IN THAT CIRCUMSTANCE A RESERVE MEMBER MAY BE PAID FOR INACTIVE DUTY TRAINING PROVIDED HE WAIVES THE DISABILITY COMPENSATION SINCE THEN HE WOULD NOT BE RECEIVING A BENEFIT FROM THE VETERANS ADMINISTRATION - INCLUDING THE BENEFIT OF REDUCING THE DEBT TO THE ADMINISTRATION. IF THIS CAN BE ACCOMPLISHED UNDER THE LAWS AND REGULATIONS ADMINISTERED BY THE VETERANS ADMINISTRATION, WE WOULD POSE NO OBJECTION.

THE LAST QUESTION RELATES TO WHETHER A RESERVE MEMBER MUST EXECUTE A WAIVER OF DISABILITY COMPENSATION WHICH IS PAID ON A MONTHLY BASIS IN ORDER TO RECEIVE COMPENSATION FOR ACTIVE DUTY OR INACTIVE DUTY TRAINING PERFORMED ON THE 31ST DAY OF A MONTH.

UNDER THE RULES SET FORTH IN 5 U.S.C. SEC. 5505 (1976), DISABILITY COMPENSATION IS COMPUTED ON A MONTHLY BASIS. ALSO, UNDER THAT PROVISION, THE 31ST DAY OF A CALENDAR MONTH IS IGNORED. THE PAY OF RESERVE MEMBERS IS PROVIDED FOR BY 37 U.S.C. SECS. 204 AND 206. PAY FOR A PERIOD OF LESS THAN 30 DAYS IS COMPUTED UNDER THE PROVISIONS OF 37 U.S.C. SEC. 1004, FOR BOTH REGULAR AND RESERVE MEMBERS. THAT SECTION PROVIDES THAT THE 31ST DAY OF A MONTH MAY NOT BE EXCLUDED.

UNDER 37 U.S.C. SEC. 206 (1976) FOR EACH PERIOD OF INACTIVE DUTY TRAINING PERFORMED RESERVISTS ARE ENTITLED TO 1/30 OF A MONTH'S PAY. SECTION 684 OF TITLE 10 REQUIRES A RESERVE MEMBER TO WAIVE ANY PAYMENTS HE IS ENTITLED TO BASED ON EARLIER MILITARY SERVICE.

IN OUR DECISION MATTER OF FISCHER, B-207370, MARCH 22, 1983, THIS SUBJECT WAS DISCUSSED. WE POINTED OUT THAT WHILE IT COULD BE ARGUED THAT SINCE NO RETIRED PAY, OR IN THIS CASE DISABILITY COMPENSATION, ACCRUES ON THE 31ST DAY OF A MONTH UNDER 5 U.S.C. SEC. 5505, A WAIVER OF THIS ENTITLEMENT DOES NOT REQUIRE A REDUCTION IN BENEFITS WHEN DRILL OR ACTIVE DUTY IS PAID ON THE 31ST DAY. WE NOTED, HOWEVER, THAT 10 U.S.C. SEC. 684 CONTEMPLATES THAT SOMETHING WILL BE WAIVED IN THESE CIRCUMSTANCES. AN INDIVIDUAL IS NOT PERMITTED TO RETAIN THE FULL BENEFITS DUE BY REASON OF PRIOR SERVICE AND THE PAY FOR CURRENT SERVICE. ACCORDINGLY, WE HELD THAT A WAIVER MUST BE EXECUTED BY A RESERVE MEMBER FOR DUTY ON THE 31ST DAY OF THE MONTH IN ORDER TO PERMIT PAYMENT OF PAY FOR THAT SERVICE AND THAT A REDUCTION OF 1 DAY'S DISABILITY COMPENSATION IS REQUIRED UNDER SUCH WAIVER.

THE QUESTIONS ARE ANSWERED ACCORDINGLY.