B-31167, JANUARY 9, 1943, 22 COMP. GEN. 632

B-31167, JANUARY 9, 1943, 22 COMP. GEN. 632

CONCURRENT MILITARY PENSIONS AND CIVILIAN ANNUITIES THE PROVISIONS OF THE LIGHTHOUSE SERVICE RETIREMENT ACT OF JUNE 20, 1918, AUTHORIZING THE INCLUSION OF SERVICE IN A "DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM" IN THE COMPUTATION OF RETIREMENT ANNUITIES THEREUNDER, MUST HAVE HAD REFERENCE TO THE MILITARY BRANCHES OF THE SERVICE FOR WHICH A RETIREMENT SYSTEM PREVIOUSLY HAD BEEN ESTABLISHED, THERE HAVING BEEN NO PROVISION OF LAW, AT THE TIME OF PASSAGE OF SAID ACT, FOR THE RETIREMENT OF CIVILIAN OFFICERS OR EMPLOYEES OTHER THAN THE JUDICIARY, AND, THEREFORE, THE INCLUSION OF A PERIOD OF MILITARY OR NAVAL SERVICE IN THE COMPUTATION OF THE ANNUITY PROVIDED BY THE ACT WAS PROPER. THE BRIEF TEXT OF THE LIGHTHOUSE SERVICE RETIREMENT ACT OF JUNE 20, 1918, AS COMPARED WITH THE COMPREHENSIVE TEXT OF THE CIVIL SERVICE RETIREMENT ACT, JUSTIFIES THE CONCLUSION THAT THE CONGRESS INTENDED THAT THE PRIOR ACT BE SUPPLEMENTED BY ADMINISTRATIVE REGULATIONS TO COVER SITUATIONS PROVIDED FOR IN THE LATER ACT FOR SIMILAR CLASSES OF PERSONNEL, AND, THEREFORE, IT IS WITHIN THE AUTHORITY OF THE SECRETARY OF THE NAVY-- AS THE OFFICIAL PRESENTLY CHARGED WITH THE ADMINISTRATION OF SAID PRIOR ACT-- - TO AMEND EXISTING REGULATIONS BY INCORPORATING THEREIN THE RULE SET OUT IN THE ACT OF OCTOBER 14, 1940, AMENDING THE CIVIL SERVICE RETIREMENT ACT, WITH RESPECT TO THE COMPUTATION OF ANNUITIES WHERE MILITARY SERVICE FOR WHICH A PENSION IS RECEIVED IS INVOLVED. THE CIVILIAN ANNUITY--- COMPUTED ON THE BASIS OF INCLUDING MILITARY OR NAVAL SERVICE ON ACCOUNT OF WHICH THE ANNUITANT WAS NOT AT THE TIME OF RETIREMENT IN RECEIPT OF A PENSION--- OF A PERSON WHO ELECTED TO RECEIVE IN ADDITION TO THE CIVILIAN ANNUITY A PENSION, ON ACCOUNT OF NON-SERVICE- CONNECTED DISABILITY, SUBSEQUENT TO THE EFFECTIVE DATE OF THE REQUIREMENT OF THE ACT OF OCTOBER 14, 1940, THAT THE MINIMUM PERIOD OF SUCH SERVICE, RATHER THAN THE ENTIRE PERIOD AS THERETOFORE REQUIRED, NECESSARY FOR A PENSION BE EXCLUDED IN THE COMPUTATION OF AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT, SHOULD BE RECOMPUTED TO EXCLUDE SUCH MINIMUM PERIOD, NOTWITHSTANDING THE CLAUSE IN SAID ACT OF OCTOBER 14, 1940, SAVING PERSONS RETIRED PRIOR TO ITS EFFECTIVE DATE FROM REDUCTION IN ANNUITIES ON ACCOUNT OF ITS PROVISIONS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 9, 1943:

I HAVE YOUR LETTER OF DECEMBER 16, 1942, REF. SO 12161037, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED ON THE QUESTION HEREINAFTER STATED:

CHARLES W. VANDERHOOP, FORMER KEEPER OF GAYHEAD LIGHT STATION,MASSACHUSETTS, WAS RETIRED EFFECTIVE JANUARY 1, 1933, UNDER THE PROVISIONS OF SEC. 6, ACT OF JUNE 20, 1918 (40 STAT. 608; U.S.C. TITLE 33, SEC. 763), AS SUPPLEMENTED BY THE ACT OF MARCH 4, 1925 (43 STAT. 1261; U.S.C. TITLE 33, SEC. 765), WITH RETIRED PAY AT THE RATE OF $793.29 PER ANNUM PREDICATED ON SERVICE TOTALING 21 YEARS, 3 MONTHS, 27 DAYS. SAID SERVICE INCLUDED A PERIOD CLASSED AS MILITARY OR NAVAL SERVICE FOR WHICH VANDERHOOP WAS NOT THEN IN RECEIPT OF PENSION.

THE VETERANS ADMINISTRATION HAS INFORMED THIS DEPARTMENT THAT AN AWARD WAS MADE TO SAID CHARLES W. VANDERHOOP OF WARTIME NOT SERVICE CONNECTED PENSION BENEFITS AT THE RATE OF $30.00 PER MONTH FROM JUNE 6, 1942, AND $40.00 PER MONTH FROM JUNE 10, 1942, AS PROVIDED UNDER THE PROVISIONS OF THE ACT OF MARCH 20, 1933, AND JUNE 10, 1942, PUBLIC LAW 601, 77TH CONGRESS, BASED ON SERVICE RENDERED BY SAID VETERAN AS ASSISTANT KEEPER, U.S. LIGHTHOUSE SERVICE, FROM APRIL 12, 1917, TO JUNE 30, 1919. COMPUTING RETIRED PAY UNDER THE ABOVE-CITED RETIREMENT PROVISIONS IT HAS BEEN THE PRACTICE TO EXCLUDE ANY PERIOD OF SERVICE ON ACCOUNT OF WHICH THE RETIRED PERSON IS IN RECEIPT OF PENSION; AND IT IS UNDERSTOOD TO BE THE RULE OF THE VETERANS ADMINISTRATION TO REGARD NINETY DAYS OF MILITARY OR NAVAL SERVICE AS THE MINIMUM PERIOD OF SERVICE NECESSARY TO ENTITLE TO PENSION.

SECTION 1 OF THE ACT OF OCTOBER 14, 1940 (54 STAT. 1116; U.S.C. TITLE 5, SEC. 707), AMENDING THE CIVIL SERVICE RETIREMENT ACT (AND CERTAIN OTHER RETIREMENT STATUTES), WITH REFERENCE TO COMPUTATION OF PERIOD OF SERVICE PROVIDES INTER ALIA:

"IN THE CASE OF AN EMPLOYEE WHO IS ELIGIBLE FOR AND RECEIVES A PENSION ON ACCOUNT OF NON-SERVICE-CONNECTED DISABILITY UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION THE MINIMUM PERIOD OF SERVICE NECESSARY TO ENTITLE HIM TO PENSION SHALL NOT BE INCLUDED.'

SECTION 5 OF THE SAME ACT CONTAINS THE FOLLOWING PROVISION:

"NOR SHALL THIS ACT BE CONSTRUED SO AS TO REDUCE THE ANNUITY OF ANY PERSON SEPARATED PRIOR TO ITS EFFECTIVE DATE.'

WHILE THE ACT OF OCTOBER 14, 1940, CONTAINS NO SPECIFIC REFERENCE TO THE RETIREMENT STATUTES (CITED ABOVE) APPLICABLE TO CERTAIN PERSONNEL OF THE FORMER LIGHTHOUSE SERVICE, IT HAS BEEN CUSTOMARY IN CONSTRUING THOSE STATUTES, IN REFERENCE TO MATTERS ON WHICH THEY ARE SILENT AND WHERE NOT OTHERWISE INAPPLICABLE OR INCONSISTENT WITH LAW, TO APPLY ANALOGOUS PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT AND AMENDMENTS. ADMISSIBLE IN THIS CASE, THERE WOULD SEEM TO BE FOR CONSIDERATION THE APPLICATION TO PERSONS RETIRED UNDER THE CITED ACTS OF JUNE 20, 1918, AND MARCH 4, 1925, OF THE TWO HEREIN QUOTED PROVISIONS OF THE ACT OF OCTOBER 14, 1940.

ACCORDINGLY, THE QUESTION IS PRESENTED AS TO WHETHER IN VIEW OF THE AWARD OF PENSION BENEFITS TO CHARLES W. VANDERHOOP HIS RETIRED PAY SHOULD BE RECOMPUTED AS OF JUNE 6, 1942, BY EXCLUDING FROM THE PERIOD OF SERVICE APPLICABLE TO SUCH RETIRED PAY THE MINIMUM PERIOD OF SERVICE NECESSARY TO ENTITLE HIM TO PENSION, AS DETERMINED BY THE VETERANS ADMINISTRATION, OR WHETHER THE SAVING CLAUSE IN SECTION 5 OF THE ACT OF OCTOBER 14, 1940, WOULD BE APPLICABLE TO HIS CASE, SAVING TO HIM HIS PRESENT RETIRED PAY.

SECTION 6 OF THE ACT OF JUNE 20, 1918, 40 STAT. 608, PROVIDES:

THAT HEREAFTER ALL OFFICERS AND EMPLOYEES ENGAGED IN THE FIELD SERVICE OR ON VESSELS OF THE LIGHTHOUSE SERVICE, EXCEPT PERSONS CONTINUOUSLY EMPLOYED IN DISTRICT OFFICES OR SHOPS, WHO SHALL HAVE REACHED THE AGE OF SIXTY-FIVE YEARS, AFTER HAVING BEEN THIRTY YEARS IN THE ACTIVE SERVICE OF THE GOVERNMENT, MAY AT THEIR OPTION BE RETIRED FROM FURTHER PERFORMANCE OF DUTY; AND ALL SUCH OFFICERS AND EMPLOYEES WHO SHALL HAVE REACHED THE AGE OF SEVENTY YEARS SHALL BE COMPULSORILY RETIRED FROM FURTHER PERFORMANCE OF DUTY: PROVIDED, THAT THE ANNUAL COMPENSATION OF PERSONS SO RETIRED SHALL BE A SUM EQUAL TO ONE FORTIETH OF THE AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE OR IN A DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM, NOT TO EXCEED IN ANY CASE THIRTY-FORTIETHS OF SUCH AVERAGE ANNUAL PAY RECEIVED: PROVIDED FURTHER, THAT SUCH RETIREMENT PAY SHALL NOT INCLUDE ANY AMOUNT ON ACCOUNT OF SUBSISTENCE OR OTHER ALLOWANCE.

THERE CAN BE LITTLE DOUBT BUT THAT THERE IS AUTHORIZED UNDER SAID ACT THE INCLUSION OF A PERIOD OF MILITARY OR NAVAL SERVICE IN THE COMPUTATION OF THE ANNUITY PROVIDED THEREIN. AS POINTED OUT IN A PRIOR DECISION OF THIS OFFICE (19 COMP. GEN. 478, 483), THERE EXISTED AS OF THE DATE OF THE PASSAGE OF SAID ACT NO PROVISION OF LAW FOR THE RETIREMENT OF CIVILIAN OFFICERS OR EMPLOYEES OF THE GOVERNMENT OTHER THAN THE JUDICIARY SO THAT THE TERM "BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM" MUST HAVE HAD REFERENCE TO THE MILITARY BRANCHES OF THE SERVICE FOR WHICH A RETIREMENT SYSTEM PREVIOUSLY HAD BEEN ESTABLISHED.

IT WAS HELD IN 19 COMP. GEN. 478, REFERRED TO ABOVE, THAT---

THE INHIBITION OF SECTION 4715 REVISED STATUTES, AGAINST THE PAYMENT OF MORE THAN ONE "PENSION" AT THE SAME TIME TO THE SAME PERSON DOES NOT AFFECT THE RIGHT TO RETIREMENT PAY OF A PERSON RETIRED UNDER THE LIGHTHOUSE SERVICE RETIREMENT ACT OF JUNE 20, 1918, 40 STAT. 607, NOTWITHSTANDING HE IS, ALSO, ENTITLED TO AND RECEIVING A PENSION FOR SPANISH-AMERICAN WAR SERVICE--- SUCH SERVICE NOT HAVING BEEN COUNTED IN THE COMPUTATION OF THE RETIREMENT PAY--- THE RIGHT TO RETIREMENT WITH PAY BEING A PART OF COMPENSATION, A RIGHT GIVEN BY STATUTE, ACCRUING BECAUSE OF SERVICE, AND NOT BEING A GRATUITY OR PENSION EVEN THOUGH NO CONTRIBUTION, AS SUCH, IS MADE BY MEMBERS OF THE LIGHTHOUSE SERVICE AS IN THE CASE OF CIVIL EMPLOYEES OF THE GOVERNMENT GENERALLY. (SYLLABUS.)

SECTION 468, SUBSECTION (H), OF THE REGULATIONS FOR THE UNITED STATES LIGHTHOUSE SERVICE (1927) PROVIDES:

IN COMPUTING LENGTH OF SERVICE IN THE CASE OF OPTIONAL RETIREMENT, CREDIT WILL BE ALLOWED FOR SERVICE IN THE MILITARY BRANCHES OF THE GOVERNMENT; BUT MILITARY SERVICE, WHERE THE EMPLOYEE RECEIVES A PENSION THEREFOR, WILL NOT BE INCLUDED IN THE PERIOD OF SERVICE TO BE USED AS A BASIS FOR COMPUTING RETIRED PAY IN THE LIGHTHOUSE SERVICE. ( ITALICS SUPPLIED.)

THE ITALICIZED PORTION OF SAID REGULATION WOULD APPEAR TO HAVE BEEN BASED UPON AN ADMINISTRATIVE INTERPRETATION OF THE LAW, AS NO SPECIFIC PROVISION WITH RESPECT TO THE ELIMINATION OF MILITARY SERVICE FOR WHICH A PENSION IS RECEIVED HAS BEEN FOUND EITHER IN THE ACT OF JUNE 20, 1918, OR IN ANY OTHER LAW APPLICABLE TO THE CLASS OF PERSONNEL OF THE LIGHTHOUSE SERVICE COVERED BY SECTION 6 OF SAID ACT. HOWEVER, SUCH REGULATION APPARENTLY REFLECTED THE WILL OF THE CONGRESS IN SUCH MATTERS AS EVIDENCED BY THE FOLLOWING SPECIFIC PROVISION OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 615, AS AMENDED BY SECTION 5 OF THE ACT OF MAY 29, 1930, 46 STAT. 472:

* * * IN THE CASE OF AN EMPLOYEE, HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW, OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION, RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED * * *.

IN 16 COMP. GEN. 83, IT WAS HELD (QUOTING FROM THE SYLLABUS) THAT:

ANNUITY PAYMENTS TO CIVILIAN EMPLOYEES OF THE UNITED STATES, RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED, COMPUTED ON THE BASIS OF INCLUSION OF MILITARY OR NAVAL SERVICE NOT AT THE TIME OF RETIREMENT MADE THE BASIS FOR MILITARY OR NAVAL PENSION, ARE FOR RECOMPUTATION ON THE BASIS OF THE "PERIODS OF THE WARS" SERVICE AS CHANGED BY THE ACT OF AUGUST 13, 1935, 49 STAT. 614, FOR PAYMENT OF ANNUITIES SUBSEQUENT TO SAID ACT, IF THE ANNUITANTS ELECT TO RECEIVE THE MILITARY OR NAVAL PENSION. THUS, UNDER THE LAW AS IT EXISTED PRIOR TO THE ACT OF OCTOBER 14, 1940, 54 STAT. 1116, THERE WOULD BE REQUIRED UPON THE FACTS SET OUT IN YOUR LETTER A RECOMPUTATION OF THE RETIRED PAY OF THE ANNUITANT BY DEDUCTING FROM THE ANNUITY BASE THE ENTIRE PERIOD OF HIS MILITARY OR QUASI-MILITARY SERVICE UPON HIS ELECTION TO RECEIVE A PENSION THEREFORE. SEE 19 COMP. GEN. 478, 484.

SECTION 1 OF SAID ACT OF OCTOBER 14, 1940, QUOTED IN PERTINENT PART IN YOUR LETTER, WAS ENACTED AS AN AMENDMENT TO THAT PORTION OF THE CIVIL SERVICE RETIREMENT ACT QUOTED ABOVE. THE PURPOSE OF THE AMENDMENT WAS TO ESTABLISH A UNIFORM, EQUITABLE RULE IN CREDITING MILITARY SERVICE FOR CIVIL RETIREMENT PURPOSES. UNDER THE LAW AS IT EXISTED PRIOR TO THAT TIME IT WAS POSSIBLE FOR A PERSON HAVING ONE YEAR OF MILITARY SERVICE AND TWENTY YEARS OF CIVILIAN SERVICE TO RECEIVE EXACTLY THE SAME AMOUNT BY WAY OF A PENSION AND AN ANNUITY AS A PERSON HAVING TWELVE YEARS OF MILITARY SERVICE AND TWENTY YEARS OF CIVILIAN SERVICE. IF, FOR EXAMPLE, THE VETERANS' ADMINISTRATION REQUIRED THAT A MAN HAVE BUT 90 DAYS' SERVICE IN THE SPANISH - AMERICAN WAR TO BE ELIGIBLE FOR A PENSION AND BOTH INDIVIDUALS ABOVE DESCRIBED APPLIED FOR AND WERE AWARDED SUCH A PENSION, OTHER THINGS BEING EQUAL, THEIR CIVILIAN ANNUITIES WOULD BE THE SAME, SINCE ALL MILITARY SERVICE WOULD BE DEDUCTED FROM THE ANNUITY BASE IN EACH CASE. THE INJUSTICE OF SUCH A SITUATION IS OBVIOUS. (SEE, IN THAT CONNECTION, REPORT OF THE HOUSE COMMITTEE ON THE CIVIL SERVICE ON H.R. 8621, LATER ENACTED AS THE ACT OF OCTOBER 14, 1940, AND LETTERS QUOTED THEREIN).

IT IS STATED IN YOUR LETTER THAT IT HAS BEEN CUSTOMARY IN CONSTRUING THE LIGHTHOUSE RETIREMENT ACT OF 1918 AND ITS AMENDMENTS, WITH RESPECT TO MATTERS ON WHICH IT IS SILENT AND WHERE NOT OTHERWISE INAPPLICABLE OR INCONSISTENT WITH LAW, TO APPLY ANALOGOUS PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT AND ITS AMENDMENTS. FROM A COMPARISON OF THE BRIEF TEXT OF THE LIGHTHOUSE RETIREMENT ACT WITH THE COMPREHENSIVE AND DETAILED TEXT OF THE CIVIL SERVICE RETIREMENT ACT THERE IS JUSTIFIED THE CONCLUSION THAT IT MUST HAVE BEEN THE INTENT OF THE CONGRESS THAT THE PRIOR ACT BE SUPPLEMENTED IN VARIOUS RESPECTS BY ADMINISTRATIVE REGULATIONS TO COVER SITUATIONS SPECIFICALLY PROVIDED FOR IN THE LATER ACT. AND THERE WOULD APPEAR TO BE NO MORE APPROPRIATE GUIDE TO THE MANNER IN WHICH SUCH ACT SHOULD BE CONSTRUED AND ADMINISTERED THAN SPECIFIC STATUTORY PROVISIONS ENACTED BY THE CONGRESS FOR SIMILAR CLASSES OF PERSONNEL. HENCE, IT WOULD APPEAR CLEARLY WITHIN YOUR AUTHORITY--- AS THE OFFICIAL PRESENTLY CHARGED WITH THE ADMINISTRATION OF SAID LIGHTHOUSE RETIREMENT ACT--- TO AMEND THE EXISTING REGULATIONS BY INCORPORATING THEREIN THE UNIFORM AND EQUITABLE RULE SET OUT BY THE CONGRESS IN THE ACT OF OCTOBER 14, 1940, FOR THE COMPUTATION OF ANNUITIES WHERE MILITARY SERVICE FOR WHICH A PENSION IS RECEIVED IS INVOLVED.

IT PREVIOUSLY HAS BEEN POINTED OUT THAT UNDER THE LAW AS IT EXISTED PRIOR TO THE SAID ACT OF OCTOBER 14, 1940, A RECOMPUTATION OF MR. VANDERHOOP'S ANNUITY UPON HIS ELECTION TO RECEIVE A PENSION BASED ON HIS MILITARY SERVICE WOULD HAVE ENTAILED A DEDUCTION FROM THE ANNUITY BASE OF HIS ENTIRE PERIOD OF MILITARY SERVICE--- OR APPROXIMATELY 27 MONTHS. HOWEVER, UNDER THE STATE OF THE LAW AS CHANGED BY THE ACT OF OCTOBER 14, 1940, IT IS NECESSARY TO DEDUCT ONLY THE MINIMUM PERIOD OF SERVICE REQUIRED BY THE VETERANS' ADMINISTRATION FOR A NON-SERVICE CONNECTED DISABILITY PENSION--- OR 90 DAYS. HENCE, IT READILY IS APPARENT THAT WHILE SUCH RECOMPUTATION WILL REDUCE THE ANNUITY--- IN THAT 90 DAYS WILL BE DEDUCTED FROM THE SERVICE CREDIT OF 21 YEARS, 3 MONTHS, 27 DAYS UPON WHICH THE ANNUITY IS COMPUTED--- THE ONLY EFFECT ATTRIBUTABLE TO THE ACT OF OCTOBER 14, 1940, IS AN INCREASE IN THE AMOUNT OF THE ANNUITY OVER WHAT IT WOULD BE HAD THE ACT NEVER BEEN PASSED. ACCORDINGLY, THE SAVING CLAUSE IN SECTION 5 OF SAID ACT, 54 STAT. 1118, QUOTED IN PERTINENT PART IN YOUR LETTER, WOULD APPEAR TO HAVE NO APPLICATION TO THE INSTANT CASE.