B-71447, JANUARY 30, 1948, 27 COMP. GEN. 416

B-71447, JANUARY 30, 1948, 27 COMP. GEN. 416

COMPENSATION - DOUBLE - DISABILITY COMPENSATION AND ACTIVE-DUTY PAY AND ALLOWANCES AS NAVAL RESERVE OFFICER A NAVAL RESERVE OFFICER DRAWING DISABILITY COMPENSATION FROM THE UNITED STATES WHEN ORDERED TO ACTIVE DUTY FOR TRAINING MAY NOT, BY SURRENDERING SAID DISABILITY COMPENSATION FOR THE PERIOD OF TRAINING DUTY, BECOME ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FOR SUCH PERIOD, IN VIEW OF THE PROHIBITION IN THE CURRENT NAVY APPROPRIATION ACT AND SECTION 10 OF THE ACT OF AUGUST 2, 1946, AGAINST THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO OFFICERS OF THE NAVAL RESERVE WHO ARE DRAWING DISABILITY COMPENSATION FROM THE UNITED STATES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 30, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 9, 1947, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS, PRESENTED THEREIN, ARISING UNDER A PROVISION APPEARING UNDER THE HEADING " NAVAL RESERVE" IN THE NAVAL APPROPRIATION ACT, 1947, 60 STAT. 484, AND ALSO UNDER SECTION 10 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 854.

THE STATUTORY PROVISIONS IN QUESTION ARE AS FOLLOWS:

NAVAL APPROPRIATION ACT, 1947:

* * * PROVIDED, THAT NO APPROPRIATION IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES, TRAVEL, OR OTHER EXPENSES OF ANY OFFICER OR ENLISTED PERSON OF THE NAVAL OR MARINE CORPS RESERVE WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES * * *.

SECTION 10 OF THE ACT OF AUGUST 2, 1946:

OFFICERS AND ENLISTED PERSONNEL OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ON ACTIVE DUTY SHALL NOT BE ENTITLED TO RECEIVE PAY, ALLOWANCES, TRAVEL, OR OTHER EXPENSES WHILE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY (OTHER THAN AS MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE OR AS MEMBERS OF THE HONORARY RETIRED LIST OF SUCH RESERVE FORCES) FROM THE GOVERNMENT OF THE UNITED STATES.

FROM YOUR LETTER IT APPEARS THAT BY ORDERS DATED MAY 15, 1947, LIEUTENANT JOSEPH W. SULLIVAN, UNITED STATES NAVAL RESERVE, WAS ORDERED TO ACTIVE DUTY FOR TRAINING DUTY FOR A PERIOD OF 14 DAYS. IT FURTHER APPEARS THAT HE WAS CURRENTLY IN RECEIPT OF DISABILITY COMPENSATION FROM THE VETERANS' ADMINISTRATION BUT UPON REPORTING FOR ACTIVE DUTY ON MAY 26, 1947, HE EXECUTED THE FOLLOWING INSTRUMENT, IN ACCORDANCE WITH THE PERTINENT PROVISION OF THE BUREAU OF NAVAL PERSONNEL MANUAL, PART H 1947:

NOTICE OF RE-ENTRANCE INTO ACTIVE SERVICE OF PERSON RECEIVING PENSION OR RETIREMENT PAY

26 MAY 1947 FROM: LIEUTENANT JOSEPH W. SULLIVAN, SI, USNR, 245407 TO: VETERANS ADMINISTRATION VIA: THE DISBURSING OFFICER, THIRD NAVAL DISTRICT

1. THIS IS TO CERTIFY THAT I, JOSEPH W. SULLIVAN, HAVE THIS DATE RE- ENTERED ACTIVE MILITARY SERVICE; AND THAT I AGREE TO REPAY IN CASE (OR BY DEDUCTION FROM PAY IN THE AMOUNT OF SEVEN DOLLARS AND THIRTY SIX CENTS ($7.36) WHICH IS EQUAL TO 16/30 OF MY MONTHLY DISABILITY ALLOWANCE WHICH IS HEREBY AUTHORIZED) ANY PENSION, COMPENSATION, OR RETIREMENT PAY RECEIVED BY ME FROM THE VETERANS' ADMINISTRATION FOR ANY PERIOD SUBSEQUENT TO DATE OF RE-ENTRANCE INTO ACTIVE SERVICE AND TO WHICH I AM NOT ENTITLED BY REASON OF RECEIPT OF ACTIVE SERVICE PAY.

THE QUESTIONS PRESENTED FOR DECISION ARE---

(1) DID LIEUTENANT SULLIVAN'S EXECUTION OF THE INSTRUMENT SET FORTH ABOVE AND THE SUBSEQUENT CHECK AGE OF HIS PAY IN THE AMOUNT OF $7.36 PLACE HIM OUTSIDE THE OPERATION OF THE QUOTED PROVISO OF THE NAVAL APPROPRIATION ACT, 1947, SO AS TO MAKE AVAILABLE FOR HIS PAY AND ALLOWANCES MONEYS APPROPRIATED BY THAT ACT?

(2) IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, WOULD SUCH MONEYS HAVE BEEN MADE SO AVAILABLE BY THE EXECUTION OF LIEUTENANT SULLIVAN OF AN INSTRUMENT DIRECTED TO THE DIRECTOR OF VETERANS' AFFAIRS, CONSENTING TO CHECK AGE OF THE APPROPRIATE AMOUNT BY THE DISBURSING OFFICER OF THE VETERANS' ADMINISTRATION?

(3) IN THE CASE OF PERSONNEL REPORTING FOR DUTY AFTER JUNE 30, 1947, WILL THE SAME CONSIDERATION BE APPLICABLE AS ARE FOUND TO BE APPLICABLE IN LIEUTENANT SULLIVAN'S CASE?

THE PROVISION IN QUESTION WAS FIRST ADDED TO THE APPROPRIATION FOR THE NAVAL RESERVE FOR THE FISCAL YEAR 1934, IN THE NVAL APPROPRIATION ACT, 1934, 47 STAT. 1521, 1526, AND, WITH RESPECT THERETO, IT WAS STATED IN REPORT NO. 2075, HOUSE OF REPRESENTATIVES COMMITTEE ON APPROPRIATIONS, DATED FEBRUARY 20, 1933, AS FOLLOWS (PAGE 16):

THERE ALSO HAS BEEN ATTACHED TO THE APPROPRIATION A PROVISION SIMILAR TO THE ONES CARRIED IN THE WAR DEPARTMENT APPROPRIATION BILL IN CONNECTION WITH THE NATIONAL GUARD AND THE ORGANIZED RESERVES, DENYING PARTICIPATION IN THE APPROPRIATION BY ANY RESERVE WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES.

THE PROVISIONS REFERRED TO IN SUCH REPORT WERE CONTAINED IN THE MILITARY APPROPRIATION ACT, 1934, AS FOLLOWS:

NATIONAL GUARD (47 STAT. 1589):

NO PART OF THE APPROPRIATIONS MADE IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES, OR TRAVELING OR OTHER EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NATIONAL GUARD WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES: PROVIDED, THAT NOTHING IN PROVISION SHALL BE SO CONSTRUED AS TO PREVENT THE APPLICATION OF FUNDS HEREIN CONTAINED TO THE PAY, ALLOWANCES, OR TRAVELING EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NATIONAL GUARD WHO MAY SURRENDER SAID PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FOR THE PERIOD OF HIS SERVICE IN THE NATIONAL GUARD * * *.

ORGANIZED RESERVES (47 STAT. 1591):

NO PART OF THE APPROPRIATION MADE IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES, OR TRAVELING OR OTHER EXPENSES OF ANY OFFICER OF THE ORGANIZED RESERVES WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES.

THE DISSIMILARITY BETWEEN THE TWO PROVISIONS QUOTED ABOVE IS IMMEDIATELY APPARENT, IN THAT WHILE THE PROVISION RELATIVE TO THE NATIONAL GUARD EXPRESSLY PERMITTED THE MEMBERS THEREOF TO CONTINUE IN RECEIPT OF THEIR PAY AND ALLOWANCES IF THEY SURRENDERED THEIR PENSION, DISABILITY ALLOWANCE, ETC., THE PROVISION RELATIVE TO THE ORGANIZED RESERVES, WHICH WAS ALMOST IDENTICAL TO THE PROVISION RELATIVE TO THE NAVAL RESERVE, WAS SILENT IN THAT RESPECT. IT NECESSARILY MUST BE CONSIDERED THAT THE SURRENDER PROVISO WAS ADVISEDLY INCLUDED IN ONE PROVISION AND OMITTED IN THE OTHER AND, HENCE, THE CONCLUSION IS REQUIRED THAT THE PROVISION REGARDING THE ORGANIZED RESERVE, AND, THEREFORE, THE PROVISION REGARDING THE NAVAL RESERVE, WERE INTENDED TO PROHIBIT MEMBERS THEREOF WHO WERE IN RECEIPT OF A PENSION, DISABILITY ALLOWANCE, ETC., FROM RECEIVING PAY, ALLOWANCES, ETC., AS RESERVES, UNDER ANY CIRCUMSTANCES. THAT THE ORIGINAL PROVISION FOR THE ORGANIZED RESERVE, AND, HENCE, THE SIMILAR PROVISION FOR THE NAVAL RESERVE, WERE SO INTENDED IS FURTHER SHOWN BY THE FACT THAT THE MILITARY APPROPRIATION ACT, 1936, AND SUCCEEDING ANNUAL MILITARY APPROPRIATION ACTS, EXPRESSLY MODIFIED THE ORIGINAL PROVISION REGARDING THE ORGANIZED RESERVES BY THE ADDITION OF THE FOLLOWING PROVISO (49 STAT. 141):

* * * PROVIDED, THAT NOTHING IN THIS PROVISION SHALL BE SO CONSTRUED AS TO PREVENT THE APPLICATION OF FUNDS HEREIN CONTAINED TO THE PAY, ALLOWANCES, OR TRAVELING EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE RESERVE CORPS WHO MAY SURRENDER SAID PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FOR THE PERIOD OF HIS ACTIVE DUTY IN THE RESERVE CORPS.

SINCE NO SUCH CHANGE HAS EVER BEEN MADE WITH RESPECT TO THE SIMILAR PROVISIONS REGARDING THE NAVAL RESERVE TO AUTHORIZE ACTIVE DUTY PAY AND ALLOWANCES UPON THE SURRENDER OF PENSIONS, ETC., THE CONCLUSION APPEARS REQUIRED THAT THE ORIGINAL INTENT OF SUCH STATUTORY RESTRICTIONS HAS NOT BEEN MODIFIED, INSOFAR AS THE NAVAL RESERVE IS CONCERNED. ACCORDINGLY, AND IN THE ABSENCE OF SIMILAR AMENDATORY LANGUAGE FOR THE NAVAL RESERVE, YOUR QUESTIONS (1) AND (2) ARE ANSWERED IN THE NEGATIVE, AND QUESTION (3) IS ANSWERED IN THE AFFIRMATIVE.

IT MAY BE NOTED, IN CONNECTION WITH THE FOREGOING, THAT CERTAIN LANGUAGE USED IN DECISION OF NOVEMBER 17, 1942, B-29108, ADDRESSED TO LIEUTENANT COLONEL W. W. DAVIDSON, UNITED STATES MARINE CORPS, IN A CASE WHERE A MARINE CORPS RESERVIST DRAWING DISABILITY COMPENSATION HAD BEEN PLACED ON ACTIVE DUTY FOR WAR SERVICES, MIGHT BE CONSTRUED AS A RECOGNITION BY THIS OFFICE OF THE RIGHT OF MEMBERS OF THE NAVAL RESERVE TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES UPON SURRENDER OF DISABILITY COMPENSATION, PENSIONS, ETC. TO THE EXTENT THAT SUCH DECISION MAY BE VIEWED AS AUTHORITY FOR THAT PROPOSITION, IT NO LONGER WILL BE FOLLOWED. IN VIEW OF SUCH DECISION, HOWEVER, YOU ARE ADVISED THAT PAYMENTS HERETOFORE MADE ON SUCH BASIS, INCLUDING THE PAYMENTS MADE TO LIEUTENANT SULLIVAN, WILL BE PASSED TO CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED, IF THEY ARE OTHERWISE CORRECT, PROVIDED THAT SATISFACTORY EVIDENCE IS SUBMITTED THAT THE AMOUNT DUE AS PENSIONS, ETC., WAS RETAINED BY, OR REFUNDED TO, THE VETERANS' ADMINISTRATION.