B-6218, OCTOBER 9, 1939, 19 COMP. GEN. 431

B-6218: Oct 9, 1939

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RETIRED AND RETAINER PAY - LIMITATION WHILE RECEIVING CARE IN VETERANS' ADMINISTRATION FACILITIES RETIRED OFFICERS AND RETIRED ENLISTED MEN OF THE NAVY AND TRANSFERRED MEMBERS OF THE FLEET RESERVE TRANSFERRED THERETO AFTER EITHER 16 OR 20 YEARS' SERVICE HAVING NO DEPENDENTS ARE SUBJECT TO THE $15 PER MONTH LIMITATION ON RETIRED OR RETAINER PAY WHEN THEY ARE RECEIVING HOSPITALIZATION OR DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES IN ACCORDANCE WITH SECTION 4 OF THE ACT OF JULY 19. 1939: THERE WAS DULY RECEIVED YOUR LETTER OF SEPTEMBER 22. ARE. NOR DEPENDENT PARENT IS BEING FURNISHED HOSPITAL TREATMENT. THAT WHERE ANY DISABLED VETERAN WHO IS BEING FURNISHED HOSPITAL TREATMENT.

B-6218, OCTOBER 9, 1939, 19 COMP. GEN. 431

RETIRED AND RETAINER PAY - LIMITATION WHILE RECEIVING CARE IN VETERANS' ADMINISTRATION FACILITIES RETIRED OFFICERS AND RETIRED ENLISTED MEN OF THE NAVY AND TRANSFERRED MEMBERS OF THE FLEET RESERVE TRANSFERRED THERETO AFTER EITHER 16 OR 20 YEARS' SERVICE HAVING NO DEPENDENTS ARE SUBJECT TO THE $15 PER MONTH LIMITATION ON RETIRED OR RETAINER PAY WHEN THEY ARE RECEIVING HOSPITALIZATION OR DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES IN ACCORDANCE WITH SECTION 4 OF THE ACT OF JULY 19, 1939, 53 STAT. 1070.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE ACTING SECRETARY OF THE NAVY, OCTOBER 9, 1939:

THERE WAS DULY RECEIVED YOUR LETTER OF SEPTEMBER 22, 1939, AS FOLLOWS:

SECTION 4 OF THE ACT APPROVED JULY 19, 1939 ( PUBLIC, NO. 198, 76TH CONGRESS), PROVIDES:

"IN THE ADMINISTRATION OF LAWS PERTAINING TO VETERANS, RETIRED OFFICERS, AND ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, WHO SERVED HONORABLY DURING A WAR PERIOD AS RECOGNIZED BY THE VETERANS' ADMINISTRATION, SHALL BE, AND ARE, ENTITLED TO HOSPITALIZATION AND DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES ON PARITY WITH OTHER WAR VETERANS AND SUBJECT TO THOSE PROVISIONS OF PARAGRAPH VI (A) OF VETERANS' REGULATIONS NUMBERED 6 (C), WHICH PROVIDE FOR REDUCTION OF MONETARY BENEFITS TO VETERANS HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT WHILE BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE.'

PARAGRAPH VI (A) OF VETERANS REGULATIONS NO. 6 (C) PROVIDES:

"WHERE ANY DISABLED VETERAN HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, THE PENSION, COMPENSATION, OR EMERGENCY OFFICERS' RETIREMENT PAY SHALL NOT EXCEED $15 PER MONTH: PROVIDED, THAT THE AMOUNT PAYABLE FOR SUCH DISABLED VETERAN ENTITLED TO PENSION FOR DISABILITY THE RESULT OF INJURY OR DISEASE INCURRED AFTER ACTIVE MILITARY OR NAVAL SERVICE SHALL NOT EXCEED $6 PER MONTH: AND PROVIDED FURTHER, THAT WHERE ANY DISABLED VETERAN WHO IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL, OR DOMICILIARY CARE BY THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, HAS A WIFE, CHILD, OR DEPENDENT PARENT THE PENSION, COMPENSATION, OR EMERGENCY OFFICERS' RETIREMENT PAY MAY, IN THE DISCRETION OF THE ADMINISTRATOR, BE APPORTIONED ON BEHALF OF SUCH WIFE, CHILD, OR DEPENDENT PARENT, IN ACCORDANCE WITH INSTRUCTIONS ISSUED BY THE ADMINISTRATOR.'

IT WILL BE OBSERVED THAT PARAGRAPH VI (A) OF VETERANS' REGULATIONS NO. 6 (C), SUPRA, LIMITS TO $15 PER MONTH THE PENSION, COMPENSATION, OR EMERGENCY OFFICERS' RETIREMENT PAY, IN THE CASE OF A DISABLED VETERAN WHO IS WITHOUT DEPENDENTS, WHEN SUCH VETERAN IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE UNITED STATES, OR ANY POLITICAL SUBDIVISION THEREOF. LIKEWISE, UNDER THIS REGULATION, IN THE CASE OF VETERANS WHO HAVE DEPENDENTS, AND WHILE THEY ARE RECEIVING SUCH HOSPITAL TREATMENT OR CARE, THE PENSION, COMPENSATION, OR EMERGENCY OFFICERS' RETIREMENT PAY MAY, IN THE DISCRETION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, BE APPORTIONED ON BEHALF OF SUCH WIFE, CHILD, OR DEPENDENT PARENT, IN ACCORDANCE WITH INSTRUCTIONS ISSUED BY THE ADMINISTRATOR.

SECTION 4 OF THE ACT OF JULY 19, 1939, PERMITS HOSPITALIZATION AND DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES TO RETIRED OFFICERS AND ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, WHO SERVED HONORABLY DURING A WAR PERIOD, AS RECOGNIZED BY THE VETERANS' ADMINISTRATION. THE HOSPITALIZATION AND DOMICILIARY CARE OF THOSE ENUMERATED ARE AUTHORIZED ON PARITY WITH OTHER WAR VETERANS AND SUBJECT TO THOSE PROVISIONS OF PARAGRAPH VI (A) OF VETERANS' REGULATIONS NUMBERED 6 (C), WHICH PROVIDE FOR REDUCTION OF MONETARY BENEFITS TO VETERANS HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT WHILE BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE.

IT APPEARS THAT THE PROVISIONS OF PARAGRAPH VI (A) OF VETERANS' REGULATIONS NUMBERED 6 (C), PROVIDING FOR APPORTIONMENT ON BEHALF OF THE DEPENDENTS IN THE DISCRETION OF THE ADMINISTRATOR OF THE PENSION COMPENSATION OR RETIRED PAY, HAS NO APPLICATION TO THOSE PERSONS WHO ARE HOSPITALIZED IN VETERANS' ADMINISTRATION FACILITIES PURSUANT TO SECTION 4 OF THE ACT OF JULY 19, 1939.

YOUR DECISION IS REQUESTED ON THE QUESTION WHETHER THE RETIRED PAY OF RETIRED OFFICERS AND RETIRED ENLISTED MEN OF THE NAVY AND THE RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET RESERVE, TRANSFERRED THERETO AFTER EITHER SIXTEEN OR TWENTY YEARS' SERVICE, HAVING NO DEPENDENTS, IS SUBJECT TO THE $15 PER MONTH LIMITATION WHEN THEY ARE RECEIVING HOSPITALIZATION OR DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES, IN ACCORDANCE WITH SECTION 4 OF THE CITED ACT OF JULY 19, 1939.

PARAGRAPH I OF VETERANS REGULATIONS NO. 6 (A), AS AMENDED BY VETERANS REGULATIONS NO. 6 (B), WAS AMENDED BY VETERANS' REGULATIONS NO. 6 (C) ( EXECUTIVE ORDER NO. 6775), JUNE 30, 1934, TO READ IN PART AS FOLLOWS:

I. THE ADMINISTRATOR OF VETERANS' AFFAIRS, WITHIN THE LIMITS OF VETERANS' ADMINISTRATION FACILITIES, IS AUTHORIZED TO FURNISH DOMICILIARY HOSPITAL CARE, INCLUDING MEDICAL TREATMENT, TO THE FOLLOWING PERSONS AND IN THE SPECIFIED ORDER OF PREFERENCE:

(THERE FOLLOW HERE SEVERAL CLASSES OF VETERANS OR PERSONS WHO SERVED IN THE MILITARY OR NAVAL FORCES.)

(F) WHEN IN THE JUDGMENT OF THE ADMINISTRATOR OF VETERANS' AFFAIRS HE SHALL DETERMINE THAT IT IS TO THE INTEREST OF THE GOVERNMENT AND THE VETERANS AND UNDER SUCH RULES AS THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY PROMULGATE, HOSPITAL TREATMENT FOR DISEASES OR INJURIES MAY BE FURNISHED TO RETIRED OFFICERS AND ENLISTED MEN IN FACILITIES OVER WHICH THE VETERANS' ADMINISTRATION HAS DIRECT AND EXCLUSIVE JURISDICTION OR IN OTHER GOVERNMENT FACILITIES FOR WHICH THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY CONTRACT.

PARAGRAPH VI (A) OF THE SAME REGULATION IS QUOTED IN YOUR LETTER. THE EFFECT OF SECTION 4 OF THE ACT OF JULY 19, 1939, 53 STAT. 1070, IS TO BROADEN THE RIGHT OF RETIRED OFFICERS AND ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD WHO SERVED HONORABLY DURING A WAR PERIOD TO HOSPITAL AND DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES "ON PARITY WITH OTHER WAR VETERANS" OVER THAT PROVIDED BY PARAGRAPH I (F) OF THE REGULATIONS, BUT SUCH ADDITIONAL RIGHTS ARE COUPLED WITH AND CONDITIONED ON THE EXTENSION TO THEM OF THE LIMIT AS TO THE AMOUNT OF "MONETARY BENEFITS" THAT MAY BE PAID TO THEM WHEN BEING HOSPITALIZED OR AFFORDED DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES IF THEY HAVE NEITHER WIFE, CHILD, NOR DEPENDENT PARENT, WHICH IS APPLICABLE TO ALL OTHER WAR VETERANS SO CIRCUMSTANCED. WHILE THE RETIRED PAY OR RETAINER PAY RECEIVED BY THE PERSONS DESCRIBED IN THE LAST PARAGRAPH OF YOUR LETTER TECHNICALLY ARE NOT PENSIONS, COMPENSATION OR EMERGENCY OFFICERS' RETIRED PAY, SUCH PAY IS OF A SIMILAR NATURE AND MUST BE REGARDED AS WITHIN THE TERM "MONETARY BENEFITS" AS USED IN SECTION 4 PROVIDING FOR "REDUCTION OF MONETARY BENEFITS.'

THE SUPREME COURT IN WOOD V. UNITED STATES, 107 U.S. 414, CONCLUDED THAT "THE PAY OF RETIRED OFFICERS IS A MATTER ENTIRELY WITHIN THE CONTROL OF CONGRESS, AND SO IS THEIR RANK.'

WINTHROP IN HIS " MILITARY LAW AND PRECEDENTS" ( GOVERNMENT PRINTING OFFICE, 1920, REPRINT) STATES AT PAGE 547---

* * * AS TO THE CONSIDERATION (FOR MILITARY SERVICE) THIS--- AS HAS BEEN REPEATEDLY DONE IN THE CASE OF THE PAY BOTH OF OFFICERS AND SOLDIERS--- MAY BE MODIFIED BY CONGRESS AT DISCRETION; THE CHANGE AFFECTING SOLDIERS UNDER PENDING ENLISTMENTS EQUALLY WITH THOSE ENLISTED SUBSEQUENTLY.

ACCORDINGLY, YOU ARE ADVISED THAT RETIRED AND RETAINER PAY BEING MONETARY BENEFITS FOR PAST MILITARY SERVICE, AND NOTWITHSTANDING THE CONTINUING OBLIGATION TO RENDER ACTIVE MILITARY SERVICE AS PROVIDED BY LAW, RETIRED OFFICERS AND RETIRED ENLISTED MEN OF THE NAVY AND TRANSFERRED MEMBERS OF THE FLEET RESERVE TRANSFERRED THERETO AFTER EITHER 16 OR 20 YEARS' SERVICE (6 COMP. GEN. 223) HAVING NO DEPENDENTS ARE SUBJECT TO THE $15 PER MONTH LIMITATION ON RETIRED OR RETAINER PAY WHEN THEY ARE RECEIVING HOSPITALIZATION OR DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES IN ACCORDANCE WITH SECTION 4 OF THE ACT OF JULY 19, 1939.