B-73830, APRIL 1, 1948, 27 COMP. GEN. 565

B-73830: Apr 1, 1948

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COMPENSATION - DOUBLE - DISABILITY COMPENSATION AND ACTIVE-DUTY PAY AND ALLOWANCES AS MEMBER OF OFFICERS' RESERVE CORPS A MEMBER OF THE OFFICERS' RESERVE CORPS IN RECEIPT OF DISABILITY COMPENSATION FROM THE VETERANS' ADMINISTRATION COVERING A PERIOD DURING WHICH HE WAS ON ACTIVE DUTY FOR TRAINING AS A RESERVE OFFICER MAY NOT. AGAINST THE USE OF THE APPROPRIATED FUNDS FOR THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO OFFICERS OF THE ORGANIZED RESERVES WHO ARE DRAWING DISABILITY COMPENSATION FROM THE UNITED STATES. PROVIDED THE LATTER COMPENSATION IS WAIVED. AT WHICH TIME HE SIGNED A STATEMENT THAT HE WAS NOT IN RECEIPT OF COMPENSATION OR PENSION. WAS RECEIVED. WHICH COVERED THE PERIOD DURING WHICH HE WAS ON ACTIVE DUTY AS A RESERVE OFFICER.

B-73830, APRIL 1, 1948, 27 COMP. GEN. 565

COMPENSATION - DOUBLE - DISABILITY COMPENSATION AND ACTIVE-DUTY PAY AND ALLOWANCES AS MEMBER OF OFFICERS' RESERVE CORPS A MEMBER OF THE OFFICERS' RESERVE CORPS IN RECEIPT OF DISABILITY COMPENSATION FROM THE VETERANS' ADMINISTRATION COVERING A PERIOD DURING WHICH HE WAS ON ACTIVE DUTY FOR TRAINING AS A RESERVE OFFICER MAY NOT, BY SURRENDERING THE 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 MILITARY APPROPRIATION ACT, 1948, AGAINST THE USE OF THE APPROPRIATED FUNDS FOR THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO OFFICERS OF THE ORGANIZED RESERVES WHO ARE DRAWING DISABILITY COMPENSATION FROM THE UNITED STATES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, APRIL 1, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 18, 1948, WHEREIN YOU REQUEST DECISION AS TO WHETHER A MEMBER OF THE OFFICERS' RESERVE CORPS, ORDERED TO ACTIVE DUTY FOR TRAINING, WOULD BE AUTHORIZED TO RECEIVE THE PAY AND ALLOWANCES FOR SUCH ACTIVE DUTY WHEN ENTITLED TO DISABILITY COMPENSATION FROM THE VETERANS' ADMINISTRATION FOR THE SAME PERIOD, PROVIDED THE LATTER COMPENSATION IS WAIVED.

AS A SPECIFIC EXAMPLE YOU CITE THE CASE OF A RESERVE OFFICER, ORDERED TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD AUGUST 7 THROUGH AUGUST 23, 1947, AT WHICH TIME HE SIGNED A STATEMENT THAT HE WAS NOT IN RECEIPT OF COMPENSATION OR PENSION. HOWEVER, UPON ARRIVAL AT HIS HOME ON AUGUST 23, 1947, A NOTICE OF AWARD OF COMPENSATION FROM THE VETERANS' ADMINISTRATION, DATED AUGUST 12, 1947, WAS RECEIVED, WHICH COVERED THE PERIOD DURING WHICH HE WAS ON ACTIVE DUTY AS A RESERVE OFFICER.

THE MILITARY APPROPRIATION ACT, 1948, PUBLIC LAW 267, APPROVED JULY 30, 1947, 1947, 61 STAT. 565, UNDER THE HEADING "ORGANIZED RESERVES," PROVIDES THAT---

NO 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.

THAT PROVISION FIRST APPEARED IN THE MILITARY APPROPRIATION ACT, 1934, UNDER THE SAME HEADING, 47 STAT. 1591, BUT IT LATER WAS MODIFIED IN THE MILITARY APPROPRIATION ACT, 1936, 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. AS NOTED IN YOUR LETTER, THIS MODIFYING PROVISO WAS CONTINUED IN THE MILITARY APPROPRIATION ACTS THROUGH THE FISCAL YEAR 1941 (54 STAT. 350, 374), BUT SINCE THE FISCAL YEAR 1942, IT HAS BEEN OMITTED (55 STAT. 366, 387). WHILE NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE MILITARY APPROPRIATION ACT, 1942, WHICH WOULD INDICATE THE REASONS FOR ELIMINATING THAT MODIFYING PROVISO, IT MUST BE ASSUMED THAT ITS ELIMINATION WAS NOT INADVERTENT AND THE CONCLUSION IS REQUIRED THAT IT WAS THE INTENT OF THE CONGRESS THAT THEREAFTER MEMBERS OF THE ORGANIZED RESERVES WHO MIGHT BE DRAWING A PENSION, ETC., FROM THE VETERANS' ADMINISTRATION WOULD BE PROHIBITED FROM RECEIVING PAY, ALLOWANCES, ETC., UNDER ANY CIRCUMSTANCES. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE. SEE DECISION OF JANUARY 30, 1948, B-71447 (27 COMP. GEN. 416), CONSIDERING A SIMILAR QUESTION WITH RESPECT TO MEMBERS OF THE NAVAL RESERVE.

WITH RESPECT TO THE OFFICER WHOSE CASE YOU MENTION IN YOUR LETTER, YOUR ATTENTION IS INVITED TO THE FACT THAT, AS NOTED IN THE SAID DECISION OF JANUARY 30, 1948, 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 SERVICE, MIGHT BE CONSTRUED AS A RECOGNITION BY THIS OFFICE OF THE RIGHT OF RESERVES 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 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 PENSION, ETC., WAS RETAINED BY, OR REFUNDED TO, THE VETERANS' ADMINISTRATION.