B-7663, JANUARY 25, 1940, 19 COMP. GEN. 676

B-7663: Jan 25, 1940

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AS THE SAID RETIRED PAY IS IN THE NATURE OF A "PENSION" FOR SERVICE IN THE ARMY OR NAVY WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. 1940: I HAVE YOUR LETTER OF DECEMBER 15. WHILE HE WAS EMPLOYED AS A PRINCIPAL OPERATING ENGINEER BY THE DISTRICT OF COLUMBIA. THE CLAIMANT STATED THAT HE WAS RECEIVING RETIRED PAY AS A FORMER EMERGENCY OFFICER OF THE U.S. DURING THE PERIOD THAT HE WAS EMPLOYED BY THE GOVERNMENT HIS TOTAL PAYMENTS. WERE LIMITED TO $3. HIS RETIREMENT BENEFITS HAVE BEEN PAID BECAUSE OF HERNIA. READS AS FOLLOWS: "THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT. UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED.

B-7663, JANUARY 25, 1940, 19 COMP. GEN. 676

COMPENSATION - DISABILITY - CONCURRENT RECEIPT OF EMERGENCY OFFICERS' RETIRED PAY THE RECEIPT OF EMERGENCY OFFICERS' RETIRED PAY FOR DISABILITY UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, AS AMENDED, DOES NOT BAR PAYMENT BY THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION CONCURRENTLY OF COMPENSATION FOR DISABILITY CAUSED BY AN INJURY SUSTAINED BY THE RECIPIENT IN HIS CIVIL EMPLOYMENT, AS THE SAID RETIRED PAY IS IN THE NATURE OF A "PENSION" FOR SERVICE IN THE ARMY OR NAVY WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, IN SPECIFICALLY EXCEPTING "PENSIONS" FROM THE CONCURRENT PAYMENTS PROHIBITION OF THE SAID SECTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, JANUARY 25, 1940:

I HAVE YOUR LETTER OF DECEMBER 15, 1939 (FILE NO. 602116), AS FOLLOWS:

THE COMMISSION HAS FOR CONSIDERATION A CLAIM FOR COMPENSATION BY JASPER N. STANCIL ON ACCOUNT OF AN INJURY TO HIS RIGHT HEEL, SUSTAINED ON JULY 19, 1938, WHILE HE WAS EMPLOYED AS A PRINCIPAL OPERATING ENGINEER BY THE DISTRICT OF COLUMBIA, AT A SALARY OF $1,860 PER ANNUM.

THE CLAIMANT STATED THAT HE WAS RECEIVING RETIRED PAY AS A FORMER EMERGENCY OFFICER OF THE U.S. NAVY. IN REPLY TO AN INQUIRY FROM THIS COMMISSION, THE FOLLOWING STATEMENT DATED OCTOBER 28, 1939, HAS BEEN RECEIVED FROM THE DIRECTOR, VETERANS' CLAIMS SERVICE, VETERANS' ADMINISTRATION:

THIS VETERAN HAS BEEN ENTITLED TO EMERGENCY OFFICERS' RETIREMENT BENEFITS SINCE JULY 1, 1933, UNDER SECTION 10, TITLE 1, PUBLIC, 2, 73D CONGRESS, BUT DURING THE PERIOD THAT HE WAS EMPLOYED BY THE GOVERNMENT HIS TOTAL PAYMENTS, INCLUDING SALARY AND EMERGENCY OFFICERS' RETIREMENT PAY, WERE LIMITED TO $3,000.00 YEARLY, SECTION 212, PUBLIC, 212, 72D CONGRESS. SINCE OCTOBER 13, 1938, THE DAY FOLLOWING THE TERMINATION OF HIS EMPLOYMENT BY THE GOVERNMENT HE HAS RECEIVED THE FULL AMOUNT OF HIS RETIREMENT PAY OF $116.87 MONTHLY, AS PROVIDED BY PUBLIC, 2, 73D CONGRESS. HIS RETIREMENT BENEFITS HAVE BEEN PAID BECAUSE OF HERNIA, INGUINAL, RECURRENT, RIGHT, DIRECTLY RESULTING FROM AN INJURY SUSTAINED DURING WORLD WAR SERVICE BY THIS OFFICER WHILE LIFTING AN AIR PUMP IN THE ENGINE ROOM OF THE U.S.S. HOWARD GREEN IN FEBRUARY 1918.'

SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, READS AS FOLLOWS:

"THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.'

UNDER DECISIONS OF YOUR OFFICE (A-43502, SEPT. 7, 1932, NOV. 30, 1932, MARCH 25, 1939) IT HAS BEEN HELD THAT RETAINER PAY AND RETIREMENT PAY ON ACCOUNT OF SERVICE IN THE U.S. NAVY ARE NOT ,PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES" WITHIN THE MEANING OF THE PROVISION QUOTED, AND THAT CONCURRENT PAYMENTS OF COMPENSATION BY THIS COMMISSION ARE ACCORDINGLY PROHIBITED.

IN A DECISION OF MARCH 21, 1923 (2 COMP. GEN. 582), IT WAS HELD THAT THE RECEIPT OF COMPENSATION UNDER THE WAR RISK ACT WAS NOT OF ITSELF A BAR TO THE RECEIPT BY THE SAME PERSON OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916; AND BY THE DECISION OF YOUR OFFICE DATED OCTOBER 3, 1938 (A-95378), CERTAIN PREVIOUS RULINGS AGAINST CONCURRENT PAYMENTS BY THIS COMMISSION AND THE VETERANS' ADMINISTRATION FOR THE SAME OR RELATED DISABILITIES WERE SET ASIDE.

YOUR DECISION IS REQUESTED AS TO WHETHER THE RECEIPT BY MR. STANCIL OF EMERGENCY OFFICERS' RETIREMENT BENEFITS FROM THE VETERANS' ADMINISTRATION CONSTITUTES A BAR TO THE PAYMENT BY THIS COMMISSION CONCURRENTLY OF COMPENSATION FOR DISABILITY CAUSED BY AN INJURY SUSTAINED IN HIS CIVIL EMPLOYMENT.

IN NONE OF THE DECISIONS OF THIS OFFICE HAS THERE BEEN CONSIDERED THE SPECIFIC QUESTION HERE PRESENTED, NAMELY, WHETHER DISABILITY COMPENSATION MAY BE PAID, UNDER THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, TO AN EMPLOYEE OF THE GOVERNMENT FOR AN INJURY INCURRED IN CIVILIAN EMPLOYMENT, WHO, ALSO, IS IN RECEIPT OF EMERGENCY OFFICERS' RETIRED PAY FOR A DISABILITY DIRECTLY RESULTING "FROM THE PERFORMANCE OF MILITARY OR NAVAL DUTY," UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928, 45 STAT. 735, AS AMENDED, BY SECTION 10, TITLE I, ACT OF MARCH 20, 1933, 48 STAT. 10.

SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, EXPRESSLY EXCEPTS "PENSIONS FOR SERVICE IN THE ARMY OR NAVY" FROM THE PROHIBITION AGAINST PAYMENT TO A PERSON RECEIVING DISABILITY COMPENSATION UNDER THE ACT OF ANY "SALARY, PAY, OR REMUNERATION WHATSOEVER" FROM THE UNITED STATES. THEREFORE, THE SOLE QUESTION FOR CONSIDERATION IS WHETHER EMERGENCY OFFICERS' RETIRED PAY COMES WITHIN THE MEANING OF THE TERM "PENSIONS" AS USED IN THE STATUTORY EXCEPTION JUST REFERRED TO.

THE EMPLOYEES' COMPENSATION ACT WAS PASSED IN 1916 BEFORE THE NEW CLASSES OF PAYMENTS FOR PAST MILITARY OR NAVAL SERVICES--- SERVICES UPON WHICH "PENSION" RIGHTS ARE DETERMINED--- WERE ADDED TO THE STATUTES, SUCH NEW CLASSES OF PAYMENTS COMPRISING (1) "COMPENSATION FOR DEATH OR DISABILITY" PROVIDED BY THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 398, AS AMENDED, AND LATER, BY THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 607, AS AMENDED; (2) "EMERGENCY OFFICERS' RETIRED PAY" PROVIDED BY THE ACT OF MAY 24, 1928, 45 STAT. 735, AS AMENDED; AND (3) "DISABILITY ALLOWANCE," PROVIDED BY SECTION 11 OF THE ACT OF JULY 3, 1930, 46 STAT. 995, WHICH SECTION AMENDED SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, BUT WHICH BENEFIT WAS REPEALED BY SECTION 17, TITLE I, OF THE ACT OF MARCH 20, 1933, 48 STAT. 11. IN EXPRESSLY EXCEPTING "PENSIONS FOR SERVICE IN THE ARMY OR NAVY" FROM THE PROHIBITION CONTAINED IN SECTION 7 OF THE EMPLOYEES COMPENSATION ACT, THERE APPEARS NO REASONABLE BASIS FOR CONCLUDING THAT THE CONGRESS INTENDED TO LIMIT THE TERM "PENSIONS" TO THE PARTICULAR FORMS OF PENSIONS THEN BEING PAID; RATHER IT IS TO BE CONCLUDED THAT THE CONGRESS INTENDED TO EXCEPT ANY FORM OF "PENSION" FOR SERVICE IN THE ARMY OR NAVY INCLUDING THOSE PROVIDED BY SUBSEQUENT ENACTMENTS IN WHICH THE PAYMENT MIGHT BE DESIGNATED BY ANOTHER NAME.

IN DECISION OF MARCH 21, 1923, 2 COMP. GEN. 582-583, IT WAS STATED:

THE WAR RISK DISABILITY COMPENSATION APPARENTLY FALLS WITHIN THE EXCEPTION MADE IN THE PROVISION OF THE EMPLOYEES' COMPENSATION ACT QUOTED, SUCH COMPENSATION HAVING CONSISTENTLY BEEN CONSTRUED AS IN THE NATURE OF A PENSION FOR SERVICE IN THE ARMY OR NAVY. 27 COMP. DEC. 607; ID. 865; ID. 1067; 31 OP. ATTY. GEN. 296.

THE CHANGE IN THE SYSTEM OF PENSIONS, BY PASSAGE OF THE WAR RISK INSURANCE ACT, ON OCTOBER 6, 1917, DOES NOT JUSTIFY A HOLDING THAT THE EXCEPTION IN THE EMPLOYEES' COMPENSATION ACT CEASED TO OPERATE WITH RESPECT TO ALLOWANCE OF PENSIONS IN ACCORDANCE WITH THAT CHANGE AND APPLIED ONLY TO THE OLD SYSTEM OF PENSIONS. ON THE CONTRARY, I BELIEVE THE EXCEPTION IS EQUALLY AS APPLICABLE TO WAR RISK DISABILITY COMPENSATION AS TO PENSIONS UNDER PRIOR LAWS. SEE, ALSO, 15 COMP. GEN. 498 ( QUESTION NO. 4, PP. 507-509).

THE EMERGENCY OFFICERS' RETIREMENT ACT OF MAY 24, 1928, 45 STAT. 735, PROVIDES, IN PART, AS FOLLOWS:

THAT ALL PERSONS WHO HAVE SERVED AS OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR, OTHER THAN AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO DURING SUCH SERVICE HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY, AND WHO HAVE BEEN, OR MAY HEREAFTER, WITHIN ONE YEAR, BE, RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE, SHALL, FROM DATE OF RECEIPT OF APPLICATION BY THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU, BE PLACED UPON, AND THEREAFTER CONTINUED ON, SEPARATE RETIRED LISTS, HEREBY CREATED AS PART OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, TO BE KNOWN AS THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, RESPECTIVELY, * * * PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF THIS LAW SHALL BE PAID SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE UNITED STATES VETERANS' BUREAU, AND SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WORLD WAR VETERANS' ACT, 1924, AND AMENDMENTS THERETO, * * * ( ITALICS SUPPLIED.)

SECTION 10, TITLE I, OF THE ACT OF MARCH 20, 1933, 48 STAT. 10, PROVIDES:

NOTWITHSTANDING THE PROVISIONS OF SECTION 2 OF THIS TITLE, ANY PERSON WHO SERVED AS AN OFFICER OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR, OTHER THAN AS AN OFFICER OF THE REGULAR ARMY, NAVY, OR MARINE CORPS DURING THE WORLD WAR, WHO MADE VALID APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF PUBLIC, NO. 506, SEVENTIETH CONGRESS, ENACTED MAY 24, 1928, SECTIONS 581 AND 582, TITLE 38, U.S.C. AND WHO PRIOR TO THE PASSAGE OF THIS ACT HAS BEEN GRANTED RETIREMENT WITH PAY, SHALL BE ENTITLED TO CONTINUE TO RECEIVE RETIREMENT PAY AT THE MONTHLY RATE NOW BEING PAID HIM IF THE DISABILITY FOR WHICH HE HAS BEEN RETIRED RESULTED FROM DISEASE OR INJURY OR AGGRAVATION OF A PREEXISTING DISEASE OR INJURY INCURRED IN LINE OF DUTY DURING SUCH SERVICE; PROVIDED, THAT SUCH PERSON ENTERED ACTIVE SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918: PROVIDED, THAT THE DISEASE OR INJURY OR AGGRAVATION OF THE DISEASE OR INJURY DIRECTLY RESULTED FROM THE PERFORMANCE OF MILITARY OR NAVAL DUTY, AND THAT SUCH PERSON OTHERWISE MEETS THE REQUIREMENTS OF THE REGULATIONS WHICH MAY BE ISSUED UNDER THE PROVISIONS OF THIS ACT.

THERE ARE PARTICULARLY FOR NOTING THE FACTS (1) THAT THE EMERGENCY OFFICERS' RETIRED PAY PROVIDED FOR UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT, AS AMENDED, IS "IN LIEU OF ALL DISABILITY COMPENSATION" BENEFITS TO WHICH SUCH OFFICERS OR PERSONS ARE OTHERWISE ENTITLED UNDER THE WORLD WAR VETERANS' ACT, AS AMENDED, AND (2) THAT SUCH RETIRED PAY IS FOR PAYING "SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE UNITED STATES VETERANS' BUREAU ( VETERANS' ADMINISTRATION)"--- THE APPROPRIATION FUND UNDER WHICH DISABILITY COMPENSATION BENEFITS UNDER THE WORLD WAR VETERAN'S ACT, AS AMENDED, ARE PAYABLE. SINCE DISABILITY COMPENSATION UNDER VETERAN'S LEGISLATION HAS BEEN HELD TO BE IN THE NATURE OF A PENSION, AND SINCE EMERGENCY OFFICERS' RETIRED PAY IS IN LIEU OF DISABILITY COMPENSATION PAYABLE UNDER VETERANS' LEGISLATION AND IS PAID FROM THE APPROPRIATION PROVIDED FOR THE PAYMENT OF VETERANS' DISABILITY COMPENSATION, IT APPEARS REASONABLE TO CONCLUDE THAT, BY APPLYING THE RULE STATED IN 2 COMP. GEN. 582, THE RETIRED PAY FOR DISABILITY AUTHORIZED UNDER THE STATUTES LAST ABOVE QUOTED IS LIKEWISE IN THE NATURE OF A "PENSION" FOR SERVICE IN THE ARMY OR NAVY WITHIN THE MEANING OF THE TERM "PENSIONS," AS USED IN THE EXCEPTION EMBODIED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT. SEE 36 OP. ATTY. GEN. 227, AT PAGES 229, 230, AND AUTHORITIES THEREIN CITED.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.