B-57348, MAY 23, 1946, 25 COMP. GEN. 802

B-57348: May 23, 1946

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THAT THE OFFICER'S DISABILITY WAS INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY. THAT THE DISABILITY WAS NOT INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY. THAT THE OFFICER WAS DISABLED IN LINE OF DUTY WHILE ON ACTIVE DUTY. WAS ADVISED THAT THE SECRETARY REDETERMINED THAT HIS DISABILITY WAS NOT INCURRED IN LINE OF DUTY. SUCH OFFICER IS NOT LEGALLY ENTITLED TO RETIREMENT PAYMENTS EFFECTED SUBSEQUENT TO THE DATE OF REDETERMINATION. 1946: I HAVE YOUR LETTER OF APRIL 12. BASED UPON THESE CERTIFICATES AWARDS WERE APPROVED AND PAYMENTS ACCORDINGLY MADE TO THE VETERANS. PAYMENTS IN THIS CASE WERE DISCONTINUED AS OF THE DATE OF LAST PAYMENT. WHICH WAS JULY 31. IN THE GIRAULT CASE THE AWARD OF RETIREMENT PAY WAS APPROVED ON THE BASIS OF A CERTIFICATE FROM THE WAR DEPARTMENT DATED OCTOBER 12.

B-57348, MAY 23, 1946, 25 COMP. GEN. 802

RETIREMENT - ARMY OFFICERS - REDETERMINATION AS TO ELIGIBILITY AS AFFECTING PRIOR RETIREMENT PAYMENTS PAYMENTS OF RETIREMENT PAY MADE BY THE VETERANS' ADMINISTRATION PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, TO AN OFFICER OF THE ARMY OF THE UNITED STATES IN ACCORDANCE WITH A DETERMINATION BY THE SECRETARY OF WAR UNDER EXECUTIVE ORDER NO. 8099, AS AMENDED, THAT THE OFFICER'S DISABILITY WAS INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY, NEED NOT BE REFUNDED WHERE THE SECRETARY OF WAR REDETERMINED, ON THE BASIS OF ADDITIONAL EVIDENCE, THAT THE DISABILITY WAS NOT INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY. WHERE A FORMER OFFICER OF THE ARMY OF THE UNITED STATES IN RECEIPT OF RETIREMENT PAY FROM THE VETERANS' ADMINISTRATION UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, ON THE BASIS OF A DETERMINATION MADE BY THE SECRETARY OF WAR PURSUANT TO EXECUTIVE ORDER NO. 8099, AS AMENDED, THAT THE OFFICER WAS DISABLED IN LINE OF DUTY WHILE ON ACTIVE DUTY, WAS ADVISED THAT THE SECRETARY REDETERMINED THAT HIS DISABILITY WAS NOT INCURRED IN LINE OF DUTY, SUCH OFFICER IS NOT LEGALLY ENTITLED TO RETIREMENT PAYMENTS EFFECTED SUBSEQUENT TO THE DATE OF REDETERMINATION, EVEN THOUGH THE WAR DEPARTMENT FAILED TO NOTIFY THE VETERANS' ADMINISTRATION OF SUCH ADVERSE ACTION UNTIL SOMETIME LATER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MAY 23, 1946:

I HAVE YOUR LETTER OF APRIL 12, 1946, AS FOLLOWS:

IN THE CASES OF COLONEL WILLIAM C. VEST, C-1,946,757, AND MAJOR HUNTER L. GIRAULT, C-2,922,668, THE WAR DEPARTMENT FURNISHED THE VETERANS' ADMINISTRATION CERTIFICATES OF ENTITLEMENT TO RETIREMENT PAY UNDER SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED, SPECIFICALLY FIXING THE RATES AND EFFECTIVE DATES THEREOF. BASED UPON THESE CERTIFICATES AWARDS WERE APPROVED AND PAYMENTS ACCORDINGLY MADE TO THE VETERANS. IN THE VEST CASE, THE WAR DEPARTMENT ON AUGUST 14, 1943 REQUESTED THAT PAYMENTS OF RETIREMENT PAY BE SUSPENDED UNTIL ENTITLEMENT TO RETIREMENT PAY RECEIVED FURTHER CONSIDERATION. PAYMENTS IN THIS CASE WERE DISCONTINUED AS OF THE DATE OF LAST PAYMENT, WHICH WAS JULY 31, 1943. ON NOVEMBER 20, 1943, THE ADJUTANT GENERAL, WAR DEPARTMENT, VACATED THE PRIOR CERTIFICATION OF ENTITLEMENT TO THE RETIREMENT PAY. IN THE GIRAULT CASE THE AWARD OF RETIREMENT PAY WAS APPROVED ON THE BASIS OF A CERTIFICATE FROM THE WAR DEPARTMENT DATED OCTOBER 12, 1944. ON MAY 2, 1945, THE ADJUTANT GENERAL, WAR DEPARTMENT, REPORTED THAT A RECONVENED BOARD HAD DETERMINED THAT MAJOR GIRAULT'S CONDITION WAS NOT THE RESULT OF AN INCIDENT OF HIS COMMISSIONED SERVICE AND REQUESTED THAT PAYMENTS ON MAJOR GIRAULT'S CERTIFICATE BE WITHHELD. PAYMENTS WERE DISCONTINUED MAY 31, 1945.

THE SECRETARY OF WAR HAS TAKEN THE POSITION THAT THE WITHDRAWAL OR CANCELLATION BY THE WAR DEPARTMENT OF AN INDIVIDUAL'S CERTIFICATE OF ENTITLEMENT TO RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED, PURSUANT TO FINAL DETERMINATION ADVERSE TO THE OFFICER, CONSTITUTED NOTICE TO THE VETERANS' ADMINISTRATION OF THE WAR DEPARTMENT'S DETERMINATION THAT THE INDIVIDUAL CONCERNED HAD BEEN INELIGIBLE TO RECEIVE RETIREMENT PAY FROM AND AFTER HIS RELIEF FROM ACTIVE DUTY AND THAT IN MAKING THIS DETERMINATION IT WAS BELIEVED THAT THE WAR DEPARTMENT HAD COMPLETELY PERFORMED ITS ONLY FUNCTION RELATIVE TO THE SAID STATUTE, NAMELY, TO DETERMINE ELIGIBILITY FOR THE RETIREMENT PAY BENEFITS PROVIDED THEREIN. THE SECRETARY OF WAR FURTHER STATED:

"* * * IT APPEARS THEREFORE THAT THE QUESTION OF THE EFFECTIVE DATE OF DISCONTINUANCE OF RETIREMENT PAY UPON THE WITHDRAWAL OR CANCELLATION OF THE MENTIONED CERTIFICATE IS, UNDER THE PROVISIONS OF THE CITED EXECUTIVE ORDERS, ( E.O. NO. 8099, APRIL 28, 1939, AS AMENDED BY E.O. NO. 8461, JUNE 28, 1940, AND E.O. NO. 9051, FEBRUARY 6, 1942, SEE PAGES 482, 680 AND 1086, CODE OF FEDERAL REGULATIONS OF THE UNITED STATES OF AMERICA, CUMULATIVE SUPPLEMENT, TITLE 3) FOR DETERMINATION BY THE VETERANS ADMINISTRATION. HOWEVER, AS THE ADMINISTRATOR OF VETERANS' AFFAIRS HAS REQUESTED THE VIEWS OF THE WAR DEPARTMENT WITH RESPECT TO THIS QUESTION, IT IS SUGGESTED THAT, IF LEGALLY PERMISSIBLE, IN CASES SUCH AS THOSE OF COLONEL VEST AND MAJOR GIRAULT, WHERE APPARENTLY NO FRAUD EXISTS, THE INDIVIDUAL CONCERNED BE ABSOLVED OF ANY OBLIGATION TO REPAY THE AMOUNTS REPRESENTING RETIREMENT PAY ACTUALLY RECEIVED BY HIM PRIOR TO THE WITHDRAWAL OR CANCELLATION OF HIS CERTIFICATE OF ENTITLEMENT TO SUCH PAY.'

THERE IS NO PROVISION, EITHER IN SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED, OR IN THE EXECUTIVE ORDERS ISSUED THEREUNDER, AS TO THE EFFECTIVE DATE OF THE TERMINATION OF AWARDS OF RETIREMENT PAY. THE VETERANS ADMINISTRATION WOULD BE PLEASED IF IT HAD THE AUTHORITY TO REACH THE CONCLUSION STATED BY THE SECRETARY OF WAR. WHILE IT IS TRUE THAT EXECUTIVE ORDER NO. 8099, DATED APRIL 28, 1939, VESTS IN THE VETERANS ADMINISTRATION THE DUTIES, POWERS AND FUNCTIONS INCIDENT TO THE "ADMINISTRATION AND PAYMENT" OF THE RETIREMENT BENEFITS PROVIDED BY SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED, EXECUTIVE ORDER NO. 8461, DATED JUNE 28, 1940, PROVIDES THAT IN THE ADMINISTRATION OF THE RETIREMENT PAY PROVISIONS OF THE SAID STATUTE THE DETERMINATION OF ALL QUESTIONS OF ELIGIBILITY FOR THE BENEFITS THEREOF, INCLUDING ALL QUESTIONS OF LAW AND FACT RELATING TO SUCH ELIGIBILITY, SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS PROVIDED BY LAW, OR REGULATIONS FOR REGULAR ARMY PERSONNEL. IT WOULD SEEM THAT THE AUTHORITY GRANTED UNDER THIS LATTER EXECUTIVE ORDER TO PASS ON ALL QUESTIONS OF LAW AND FACT RELATING TO QUESTIONS OF ELIGIBILITY, SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS PROVIDED BY LAW, OR REGULATIONS FOR REGULAR ARMY PERSONNEL. IT WOULD SEEM THAT THE AUTHORITY GRANTED UNDER THIS LATTER EXECUTIVE ORDER TO PASS ON ALL QUESTIONS OF LAW AND FACT RELATING TO QUESTIONS OF ELIGIBILITY FOR RETIREMENT BENEFITS UNDER THE SAID STATUTE WOULD INCLUDE THE QUESTION AS TO THE EFFECTIVE DATE OF THE TERMINATION OF AN AWARD OF RETIREMENT PAY WHERE THE WAR DEPARTMENT FIRST FURNISHES THE VETERANS ADMINISTRATION WITH A CERTIFICATE OF THE OFFICER'S ENTITLEMENT OR ELIGIBILITY FOR RETIREMENT UNDER THE STATUTE AND THEREAFTER VACATES THE CERTIFICATE OF ENTITLEMENT OR ELIGIBILITY. CONSEQUENTLY, IT IS NOT BELIEVED THAT THE VETERANS ADMINISTRATION HAS THE AUTHORITY TO PASS ON QUESTION AS TO THE EFFECTIVE DATE OF TERMINATION OF RETIREMENT PAY IN SUCH CASES AND THAT TO DO SO MIGHT AMOUNT TO OVERRULING A DETERMINATION BY THE WAR DEPARTMENT WITH RESPECT TO AN OFFICER'S ENTITLEMENT TO RETIREMENT PAY. IT WOULD BE PARTICULARLY UNFORTUNATE TO REQUIRE THAT THE PAYMENTS, BASED ON A WAR DEPARTMENT'S ERRONEOUS CERTIFICATION, BE REPAID AND THIS WOULD BE ESPECIALLY SO IF THE PAYMENTS HAD TO BE OFFSET AGAINST PENSION OR COMPENSATION PAYMENTS OTHERWISE IN ORDER.

SECTION 28 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED JULY 3, 1930, PROVIDES, IN PART:

"THERE SHALL BE NO RECOVERY OF PAYMENTS FROM ANY PERSON WHO, IN THE JUDGMENT OF THE DIRECTOR, IS WITHOUT FAULT ON HIS PART AND WHERE, IN THE JUDGMENT OF THE DIRECTOR, SUCH RECOVERY WOULD DEFEAT THE PURPOSE OF BENEFITS OTHERWISE AUTHORIZED OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. * * *"

THE ABOVE SECTION WAS SAVED FROM REPEAL BY SECTION 7 OF PUBLIC NO. 2, 73D CONGRESS. HOWEVER, IT WAS HELD IN PART, IN ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION, NO. 681, DATED DECEMBER 19, 1945, THAT SECTION 28, WORLD WAR VETERANS' ACT, 1924, AS AMENDED, WAS NOT A PART OF PUBLIC NO. 18, 76TH CONGRESS, OR OF PUBLIC NO. 262, 77TH CONGRESS, AND THAT THERE WERE NO OTHER PROVISIONS OF LAW AUTHORIZING THE CENTRAL COMMITTEE ON WAIVERS AND FORFEITURES TO WAIVE OVERPAYMENTS OF RETIREMENT PAY MADE UNDER SAID ACTS.

AS INDICATED ABOVE, THERE APPEARS TO HAVE BEEN NO FRAUD INVOLVED ON THE PART OF EITHER COLONEL VEST OR MAJOR GIRAULT IN CONNECTION WITH THEIR RETIREMENT CLAIMS, AND IT FURTHER APPEARS THAT IT WAS THROUGH NO FAULT OF THEIRS THAT THEY WERE FIRST CERTIFIED BY THE WAR DEPARTMENT AS ELIGIBLE FOR RETIREMENT PAY UNDER SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED, AND THAT LATER SUCH CERTIFICATIONS WERE VACATED. THEREFORE, IT WOULD MANIFESTLY BE UNFAIR TO THEM, IF NOT LEGALLY REQUIRED, TO DISCONTINUE PAYMENTS IN THESE CASES EFFECTIVE FROM THE BEGINNING DATES, THEREBY CREATING OVERPAYMENTS AND PROBABLY REQUIRING THEM TO MAKE RESTITUTION OF THE AMOUNTS OF RETIREMENT PAY WHICH THEY HAD RECEIVED. THIS CONNECTION ATTENTION IS INVITED TO 3 COMP. GEN. 41, IN WHICH THE THEN COMPTROLLER GENERAL STATED, IN PART, AS FOLLOWS:

"PARTICULAR ATTENTION IS DIRECTED TO THE GENERALLY ACCEPTED AND ESTABLISHED PRINCIPLE THAT CORRECTION OF AN AWARD CAN NOT BE SO MADE RETROACTIVELY AS TO DISTURB VESTED RIGHTS UNDER A RULING OR AWARD MADE BY COMPETENT AUTHORITY, ESPECIALLY UPON A CHANGE OF JUDGMENT OR OPINION * *

YOUR DECISION IS REQUESTED AS TO THE EFFECTIVE DATE OF TERMINATION OF RETIREMENT PAY IN THESE CASES, AND IN THE EVENT OVERPAYMENTS ARE CREATED AS TO WHETHER RECOVERY SHOULD BE EFFECTED FROM THE OFFICERS CONCERNED.

SECTION 5, PUBLIC LAW 18, APPROVED APRIL 3, 1938, 53 STAT. 557, AS AMENDED BY THE ACT OF JULY 25, 1939, 53 STAT. 1079, 10 U.S.C. 456, REFERRED TO IN YOUR LETTER, PROVIDES AS FOLLOWS:

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS, OTHER THAN FOR SERVICE WITH THE CIVILIAN CONSERVATION CORPS, AND WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY, INCLUDING FOR THEIR DEPENDENTS THE BENEFIT OF SECTION 903 OF THIS TITLE, AS AMENDED.

EXECUTIVE ORDER NO. 8099 DATED APRIL 28, 1939, PROVIDES IN PERTINENT PART AS FOLLOWS:

WHEREAS THE SAID ACT (OF APRIL 3, 1939) IS SILENT AS TO WHAT AGENCY SHALL ADMINISTER THE BENEFITS PROVIDED THEREBY; AND

WHEREAS IT IS DEEMED APPROPRIATE AND DESIRABLE THAT SUCH ADMINISTRATION BE PLACED IN THE VETERANS' ADMINISTRATION:

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, AND BY THE ACT OF JULY 3, 1930, C. 863, 46 STAT. 1016, THE DUTIES, POWERS, AND FUNCTIONS INCIDENT TO THE ADMINISTRATION AND PAYMENT OF THE BENEFITS PROVIDED BY THE STATUTE AS ABOVE SET OUT ARE HEREBY VESTED IN THE VETERANS' ADMINISTRATION: PROVIDED, THAT IN THE ADMINISTRATION OF THE RETIREMENT PROVISIONS OF THE SAID STATUTE, THE DETERMINATION WHETHER DISABILITY EXISTS AND WHETHER SUCH DISABILITY WAS INCURRED IN LINE OF DUTY SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS, PROVIDED BY LAW OR REGULATIONS FOR REGULAR ARMY PERSONNEL. THE PROVISO IN EXECUTIVE ORDER NO. 8099, SUPRA, WAS FURTHER AMENDED BY EXECUTIVE ORDER NO. 8461, DATED JUNE 28, 1940, TO READ AS FOLLOWS:

PROVIDED, THAT IN THE ADMINISTRATION OF THE RETIREMENT-PAY PROVISIONS OF THE SAID STATUTE, THE DETERMINATION OF ALL QUESTIONS OF ELIGIBILITY FOR THE BENEFITS THEREOF, INCLUDING ALL QUESTIONS OF LAW AND FACT RELATING TO SUCH ELIGIBILITY, SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS, PROVIDED BY LAW, OR REGULATIONS FOR REGULAR ARMY PERSONNEL. ALSO, SEE SECTION 1 OF THE ACT OF SEPTEMBER 26, 1941, 55 STAT. 733, 10 U.S.C. 456A, GRANTING SIMILAR RETIREMENT PAY BENEFITS TO RESERVE OFFICE WHO WERE CALLED OR ORDERED INTO ACTIVE SERVICE ON OR AFTER FEBRUARY 28, 1925, AND WHO WERE DISABLED FROM DISEASE OR INJURY CONTRACTED OR RECEIVED IN LINE OF DUTY, AND SECTION 2 THEREOF WHICH CONTAINS A PROVISION IDENTICAL TO THAT APPEARING IN EXECUTIVE ORDER NO. 8461, SUPRA, RESPECTING THE ADMINISTRATION OF THE RETIREMENT PAY BENEFITS OF THE ACT.

UNDER THE EXECUTIVE ORDERS, SUPRA, THE "DUTIES, POWERS, AND FUNCTIONS INCIDENT TO THE ADMINISTRATION AND PAYMENT" OF THE RETIREMENT PAY BENEFITS OF THE ACT OF APRIL 3, 1939, AS AMENDED, WERE PLACED IN THE VETERANS' ADMINISTRATION, WHEREAS, AS BETWEEN THE TWO AGENCIES,"THE DETERMINATION OF ALL QUESTIONS OF ELIGIBILITY FOR THE BENEFITS THEREOF, INCLUDING ALL QUESTIONS OF LAW AND FACT RELATING TO SUCH ELIGIBILITY," WERE PLACED IN THE SECRETARY OF WAR OR A PERSON DESIGNATED BY HIM, TO BE MADE IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS PROVIDED BY LAW OR REGULATIONS APPLICABLE TO PERSONNEL OF THE REGULAR ARMY.

WHILE THE SECRETARY OF WAR, OR HIS DESIGNEE, WAS THUS AUTHORIZED, AS BETWEEN THE TWO AGENCIES, TO MAKE DETERMINATIONS INVOLVING ALL QUESTIONS OF LAW OR FACT RELATING TO "ELIGIBILITY," SUCH DETERMINATIONS APPEAR TO RELATE PRIMARILY TO THE QUESTION OF WHETHER THE DISABILITY FOR WHICH RETIREMENT PAY IS CLAIMED WAS INCURRED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE ON ACTIVE DUTY. WHERE IT ORIGINALLY IS DETERMINED, AS IN THE CASES HERE INVOLVED, THAT THE DISABILITY WAS INCURRED IN LINE OF DUTY WHILE EMPLOYED ON ACTIVE DUTY AND PAYMENT OF RETIREMENT PAY IS MADE ON SUCH DETERMINATION EFFECTIVE RETROACTIVELY TO THE DATE FOLLOWING THE INDIVIDUAL'S RELEASE FROM ACTIVE DUTY, A SUBSEQUENT DETERMINATION BY THE SECRETARY OF WAR THAT THE DISABILITY WAS NOT INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY CONSTITUTES IN EFFECT AT LEAST A DETERMINATION THAT THE INDIVIDUAL CONCERNED IS NOT ELIGIBLE TO CONTINUE TO RECEIVE RETIREMENT PAY FROM AND AFTER HIS RELIEF FROM ACTIVE DUTY. IN THAT CONNECTION IT MAY BE STATED THAT WHILE THE ACT OF APRIL 3, 1939, AS AMENDED, DOES NOT EXPRESSLY PROVIDE FOR A REVIEW OF ADMINISTRATIVE DETERMINATIONS RESPECTING QUESTIONS OF ELIGIBILITY, IT SEEMS APPARENT THAT THERE WAS NO INTENT TO PRECLUDE A REVIEW BY THE SECRETARY OF WAR OF SUCH DETERMINATIONS AT LEAST WITH RESPECT TO THE ELIGIBILITY OF A PERSON TO CONTINUE TO RECEIVE THE RETIREMENT PAY BENEFITS OF THE STATUTE. UNITED STATES V. BENTLEY, 107 F.2D 382; UNITED STATES V. GUDEWICZ, 45 F.1SUPP. 787. A DETERMINATION AS TO THE INDIVIDUAL'S ELIGIBILITY TO RECEIVE THE RETIREMENT PAY BENEFITS OF THE STATUTE APPEARS TO BE THE ONLY DUTY IMPOSED UPON THE SECRETARY OF WAR BY THE EXECUTIVE REGULATIONS AND CONSEQUENTLY, AS BETWEEN THE TWO AGENCIES, THE MATTER OF RECOUPING ANY OVERPAYMENTS MADE UNDER THE STATUTE APPEARS TO BE ONE OF THE ,FUNCTIONS INCIDENT TO THE ADMINISTRATION AND PAYMENT OF THE BENEFITS" OF THE STATUTE AND AS SUCH, IS ADMINISTRATIVELY WITHIN THE JURISDICTION OF THE VETERANS' ADMINISTRATION. IN VIEW OF THE FOREGOING, THE QUESTION INVOLVED, IN EFFECT, IS WHETHER PAYMENTS OF RETIREMENT PAY MADE PRIOR TO A REDETERMINATION BY THE SECRETARY OF WAR ARE REQUIRED TO BE REFUNDED UNDER CIRCUMSTANCES SUCH AS THOSE HERE INVOLVED. IN THAT CONNECTION IT IS UNDERSTOOD THAT NO SPECIFIC STATUTORY AUTHORITY EXISTS WHICH MAY BE VIEWED AS AUTHORIZING THE ADMINISTRATOR OF THE VETERANS' ADMINISTRATION TO WAIVE RECOVERY OF ERRONEOUS PAYMENTS MADE UNDER THE SAID ACT OF APRIL 3, 1939, AND CONSEQUENTLY, SUCH MATTER IS PROPERLY FOR DETERMINATION BY THIS OFFICE.

THE VETERANS' ADMINISTRATION FILE IN THE VEST CASE INDICATES THAT THE OFFICER, A MEMBER OF THE OFFICERS' RESERVE CORPS, ENTERED ON ACTIVE DUTY JUNE 14, 1941, AND WAS RELEASED FROM ACTIVE DUTY ON APRIL 16, 1943; THAT BY LETTER DATED MARCH 24, 1943, AS AMENDED BY LETTER DATED JULY 15, 1943, THE WAR DEPARTMENT CERTIFIED THAT THE OFFICER "CONTRACTED PERMANENT DISABILITY ( ARTERIOSCLEROSIS, GENERALIZED, MODERATELY SEVERE AND CORONARY FOCALIZATION AND ANGINA PECTORIS)" RENDERING HIM UNFIT FOR FURTHER MILITARY DUTY; THAT SUCH DISABILITY WAS CONTRACTED IN LINE OF DUTY WHILE ON ACTIVE DUTY AND THAT HE WAS ENTITLED TO RETIREMENT PAY AS A COLONEL EFFECTIVE APRIL 17, 1943, THE DATE FOLLOWING HIS RELEASE FROM ACTIVE DUTY, AT A RATE NOT IN EXCESS OF $350 PER MONTH. HOWEVER, IN VIEW OF CERTAIN INFORMATION CONTAINED IN THE FILES OF THE VETERANS' ADMINISTRATION, WHICH INFORMATION RECENTLY HAD BEEN FORWARDED TO THE WAR DEPARTMENT, INDICATING THAT THE OFFICER'S DISABILITY WAS NOT INCURRED IN LINE OF DUTY, THE ADJUTANT GENERAL ADVISED THE VETERANS' ADMINISTRATION BY LETTER DATED AUGUST 14, 1943, THAT FURTHER PAYMENTS OF RETIREMENT PAY SHOULD BE SUSPENDED PENDING A REDETERMINATION OF THE MATTER BY THE WAR DEPARTMENT. HENCE, NO FURTHER PAYMENTS OF RETIREMENT PAY WERE MADE TO COLONEL VEST AFTER THAT DATE. PRESUMABLY, ON THE BASIS OF SUCH ADDITIONAL EVIDENCE, A RECONVENED ARMY RETIRING BOARD FOUND THAT THE OFFICER'S DISABILITY WAS NOT INCURRED IN LINE OF DUTY AND ACCORDINGLY, BY LETTER DATED NOVEMBER 20, 1943, THE ADJUTANT GENERAL NOTIFIED THE VETERANS' ADMINISTRATION THAT THE PRIOR CERTIFICATION OF ELIGIBILITY FOR ENTITLEMENT TO RETIREMENT PAY HAD BEEN RESCINDED.

THE RECORDS OF THE VETERANS' ADMINISTRATION IN THE GIRAULT CASE DISCLOSE THAT THE OFFICER, A MEMBER OF THE OFFICERS' RESERVE CORPS, ENTERED ON ACTIVE DUTY ON MARCH 21, 1942, AND WAS RELEASED FROM ACTIVE DUTY AUGUST 16, 1944; THAT AN ARMY RETIRING BOARD DETERMINED THAT HE HAD CONTRACTED PERMANENT DISABILITY IN LINE OF DUTY WHILE ON ACTIVE DUTY AND THAT THE CAUSE OF SUCH DISABILITY IS ,1. ARTERIOSCLEROSIS, GENERALIZED, CHRONIC, MODERATE, CAUSE UNDETERMINED. 2. ARTERIAL HYPERTENSION, CHRONIC, MODERATE, CAUSE UNDETERMINED.' ACCORDINGLY, BY LETTER DATED OCTOBER 12, 1944, THE WAR DEPARTMENT NOTIFIED THE VETERANS' ADMINISTRATION THAT GIRAULT WAS ENTITLED TO RETIREMENT PAY AS A MAJOR, EFFECTIVE AUGUST 17, 1944, IN THE AMOUNT OF $215.62 PER MONTH. SUBSEQUENTLY, AN ARMY RETIRING BOARD, UPON CONSIDERATION OF CERTAIN ADDITIONAL EVIDENCE FURNISHED BY THE VETERANS' ADMINISTRATION, DETERMINED THAT THE OFFICER'S DISABILITY WAS NOT INCURRED IN THE LINE OF DUTY WHILE ON ACTIVE DUTY. BY LETTER DATED FEBRUARY 27, 1945, THE WAR DEPARTMENT INFORMED MAJOR GIRAULT OF SUCH REDETERMINATION BUT IT DOES NOT APPEAR THAT THE VETERANS' ADMINISTRATION WAS ADVISED OF SUCH ACTION UNTIL MAY 2, 1945, AT WHICH TIME RETIREMENT PAY WAS DISCONTINUED.

IN DECISION OF JULY 23, 1923, 3 COMP. GEN. 41, CONSIDERATION WAS GIVEN THE MATTER OF WHETHER THE DIRECTOR OF THE VETERANS' BUREAU HAD AUTHORITY TO REOPEN CLAIMS FOR COMPENSATION INVOLVING DETERMINATIONS OF WHETHER THE DISEASE OR INJURY WAS INCURRED "IN LINE OF DUTY" ET CETERA, AND REVERSE THE DECISION OF HIS PREDECESSOR AND ALLOW OR DISALLOW COMPENSATION, AS THE CASE MAY BE, WHERE THERE HAD BEEN NO CHANGE IN THE CONTROLLING STATUTE AND NO NEW EVIDENCE SUBMITTED--- THE ONLY QUESTION INVOLVED BEING A DIFFERENCE OF OPINION IN DETERMINING A QUESTION OF FACT. AFTER DECIDING THAT A REDETERMINATION OF THE QUESTIONS OF FACT INVOLVED UPON REVIEW MIGHT BE MADE DE NOVO UNDER THE CONTROLLING STATUTE, REGARDLESS OF WHAT THE PRIOR DIRECTOR MAY HAVE FOUND UPON THE SAME OR DIFFERENT EVIDENCE, IT WAS STATED THAT:

PARTICULAR ATTENTION IS DIRECTED TO THE GENERALLY ACCEPTED AND ESTABLISHED PRINCIPLE THAT CORRECTION OF AN AWARD CAN NOT BE SO MADE RETROACTIVELY AS TO DISTURB VESTED RIGHTS UNDER A RULING OR AWARD MADE BY COMPETENT AUTHORITY, ESPECIALLY UPON A CHANGE OF JUDGMENT OR OPINION AS TO THE DEGREE OR PERMANENCE OF THE CONDITION OF DISABILITY. ANY CHANGE IN THE AWARD UPON REVIEW ENDING OR DIMINISHING THE COMPENSATION PREVIOUSLY AWARDED IS EFFECTIVE ONLY FROM THE DATE OF THE CHANGE, PAST PAYMENTS NOT TO BE DISTURBED, BUT CHANGES IN AWARDS INCREASING COMPENSATION, OR ALLOWING COMPENSATION PREVIOUSLY REFUSED, REDUCED, OR DISCONTINUED MAY BE RETROACTIVE TO THE DATE SUCH DEGREE OF DISABILITY BEGAN BUT NOT EARLIER THAN DATE OF DISCHARGE OR RESIGNATION OF THE BENEFICIARY FROM THE MILITARY OR NAVAL SERVICE. 2 COMP. GEN. 462. SEE, ALSO 8 COMP. GEN. 31 AND CASES CITED THEREIN.

WHILE THE PRESENT CASES INVOLVE REDETERMINATIONS BY THE SECRETARY OF WAR BASED UPON EVIDENCE APPARENTLY NOT BEFORE THE WAR DEPARTMENT AT THE TIME THE ORIGINAL DETERMINATIONS AND FINDINGS WERE MADE, THE PRINCIPLE OF THE RULE STATED IN THE DECISION QUOTED ABOVE WOULD REASONABLY APPEAR TO BE FOR APPLICATION BY ANALOGY TO SUCH CASES. THAT IS TO SAY, THE ORIGINAL DETERMINATIONS IN THE TWO CASES HERE INVOLVED THAT DISABILITY WAS INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY WERE IN THE NATURE OF AWARDS MADE BY COMPETENT ADMINISTRATIVE AUTHORITY ON THE BASIS OF AVAILABLE EVIDENCE AND, IN VIEW OF THE SUBJECT MATTER OF SUCH DETERMINATIONS, WHICH RENDER THEM MATTERS LARGELY OF INFORMED OPINION OR JUDGMENT RATHER THAN OF DEMONSTRATED FACT, THE PROPRIETY OF THE PAYMENTS MADE DURING THE PERIOD SUCH DETERMINATIONS WERE IN EFFECT NEED NOT BE QUESTIONED, IT BEING CLEAR THAT THERE WAS NO FRAUD OR CONCEALMENT ON THE PART OF THE INDIVIDUAL CONCERNED. HOWEVER, IN THE GIRAULT CASE IT APPEARS THAT THE FORMER OFFICER BY LETTER DATED FEBRUARY 27, 1945, WAS ADVISED BY THE WAR DEPARTMENT OF THE ACTION OF THE RECONVENED RETIRING BOARD'S FINDING THAT HIS DISABILITY WAS NOT INCURRED IN LINE OF DUTY, WHICH FINDING APPARENTLY WAS APPROVED BY THE SECRETARY OF WAR ON THE SAME DATE, BUT THAT THE VETERAN'S ADMINISTRATION WAS NOT ADVISED OF SUCH ACTION UNTIL MAY 2, 1945. OBVIOUSLY, THE FAILURE OF THE WAR DEPARTMENT TO NOTIFY THE VETERANS' ADMINISTRATION OF THE ADVERSE ACTION TAKEN BY THE SECRETARY OF WAR UPON RECONSIDERATION OF MAJOR GIRAULT'S CASE MAY NOT BE REGARDED AS FURNISHING ANY LEGAL BASIS FOR PAYMENTS EFFECTED AFTER THAT DATE, IN VIEW OF THE FACT THAT GIRAULT PREVIOUSLY HAD BEEN ADVISED OF THE FACT THAT A RECONVENED ARMY RETIRING BOARD HAD FOUND THAT HIS DISABILITY WAS NOT INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY.