B-81545, APR 15, 1949

B-81545: Apr 15, 1949

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THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 2. WHO HAS BEEN RETIRED AND IS IN RECEIPT OF RETIRED PAY. THE QUESTION OF WHETHER PERSONNEL OF THE NAVY WHO WERE RECEIVING RETAINER OR RETIRED PAY AND WHO HAD WAIVED SUCH PAY PRIOR TO THE ACT OF MAY 27. ARE AUTHORIZED BY THE PROVISION OF THE SAID ACT NOW TO WAIVE SUCH VETERANS' BENEFITS AND AGAIN RECEIVE RETIRED PAY. SUCH QUESTION IS ASKED SPECIFICALLY WITH REFERENCE TO THE CASE OF EARL BREWER YOUNG. 58 STAT. 230 PROVIDES: "THAT ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE. WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY.

B-81545, APR 15, 1949

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 2, 1948, FROM THE ACTING SECRETARY OF THE NAVY, REQUESTING DECISION WHETHER AN OFFICER OR ENLISTED MAN OF THE NAVY, WHO HAS BEEN RETIRED AND IS IN RECEIPT OF RETIRED PAY, MAY WAIVE THE WHOLE OR A PART OF SUCH RETIRED PAY PURSUANT TO THE ACT OF MAY 27, 1944, 58 STAT. 230, IN ORDER TO RECEIVE A PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, AND THEREAFTER MAY WAIVE SUCH PENSION OR COMPENSATION AND BE ENTITLED TO RECEIVE RETIRED PAY. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED FEBRUARY 15, 1949, FROM THE ACTING SECRETARY OF THE NAVY, PRESENTING FOR DECISION IN CONNECTION WITH THIS MATTER, THE QUESTION OF WHETHER PERSONNEL OF THE NAVY WHO WERE RECEIVING RETAINER OR RETIRED PAY AND WHO HAD WAIVED SUCH PAY PRIOR TO THE ACT OF MAY 27, 1944, FOR THE PURPOSE OF RECEIVING VETERANS' BENEFITS, ARE AUTHORIZED BY THE PROVISION OF THE SAID ACT NOW TO WAIVE SUCH VETERANS' BENEFITS AND AGAIN RECEIVE RETIRED PAY. SUCH QUESTION IS ASKED SPECIFICALLY WITH REFERENCE TO THE CASE OF EARL BREWER YOUNG, 1, 741, 646, MACHINIST'S MATE, FIRST CLASS, UNITED STATES NAVY (RETIRED).

THE ACT OF MAY 27, 1944, 58 STAT. 230 PROVIDES:

"THAT ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE, AND WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON THE FILING BY SUCH PERSON WITH THE DEPARTMENT BY WHICH SUCH RETIRED PAY IS PAID OF A WAIVER OF SO MUCH OF HIS RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION. PREVENT DUPLICATION OF PAYMENTS, THE DEPARTMENT WITH WHICH ANY SUCH WAIVER IS FILED SHALL NOTIFY THE VETERANS ADMINISTRATION OF THE RECEIPT OF SUCH WAIVER, THE AMOUNT WAIVED, AND THE EFFECTIVE DATE OF THE REDUCTION IN RETIRED PAY."

WITH RESPECT TO THE QUESTION PRESENTED IN THE LETTER OF NOVEMBER 2, 1948, THE ABOVE-QUOTED STATUTE EXPRESSLY AUTHORIZES THE PAYMENT OF PENSION OR COMPENSATION TO "ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE, AND WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY, "UPON THE FILING BY SUCH PERSON OF A WAIVER OF SO MUCH OF HIS RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION.

IN DECISION OF MARCH 1, 1949, B-829999, 28 COMP.GEN. 484, ON THE QUESTION OF WHETHER RETIRED ENLISTED MEN OF THE COAST GUARD WHO ARE RECEIVING A PENSION OR COMPENSATION BY VIRTUE OF A WAIVER OF RETIRED PAY EXECUTED PURSUANT TO SUCH STATUTE, MAY THEREAFTER WAIVE SUCH PENSION OR COMPENSATION AND RESUME RECEIPT OF RETIRED PAY IT WAS HELD, QUOTING THE SYLLABUS, THAT:

"RETIRED ENLISTED MEN OF THE COAST GUARD WHO ARE RECEIVING A PENSION OR COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION BY VIRTUE OF A WAIVER OF AN EQUIVALENT AMOUNT OF RETIRED PAY PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 27, 1944, ARE ENTITLED, IF THE PAYMENT OF PENSION OR COMPENSATION BE REDUCED OR STOPPED ENTIRELY, TO HAVE THEIR RETIRED PAY INCREASED BY SUCH AN AMOUNT AS MAY BE NECESSARY TO CONTINUE PAYMENTS IN AN AMOUNT EQUAL TO THE FULL AMOUNT OF RETIRED PAY TO WHICH THEY MAY BE ENTITLED."

A COPY OF SAID DECISION, WHICH IS EQUALLY APPLICABLE IN THE CASE OF PERSONNEL OF THE NAVY, IS ENCLOSED HEREWITH, AND FOR REASONS THEREIN STATED THE QUESTION PRESENTED IN THE LETTER OF NOVEMBER 2, 1948, IS ANSWERED IN THE AFFIRMATIVE.

REGARDING THE QUESTION PRESENTED IN THE LETTER OF FEBRUARY 15, 1949, IT IS REPORTED THAT ON MARCH 8, 1938, EARL BREWER YOUNG WAS TRANSFERRED TO CLASS F-4-C OF THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY, AND THAT, ON NOVEMBER 1, 1940, HE WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY FOR PHYSICAL DISABILITY. ON THE DATE OF HIS TRANSFER TO THE FLEET RESERVE HE HAD COMPLETED 16 YEARS, 1 MONTH AND 12 DAYS' SERVICE CREDITABLE FOR PAY PURPOSES AND ON JULY 31, 1940, WAS ENTITLED TO RETAINER PAY OF $49 PER MONTH. THE SUBJECT INDIVIDUAL EXECUTED A WAIVER OF HIS RIGHT TO RETAINER PAY EFFECTIVE JULY 31, 1940, AND WAS AWARDED DISABILITY COMPENSATION BY THE VETERANS ADMINISTRATION, EFFECTIVE AUGUST 1, 1940, WHICH COMPENSATION THEREAFTER WAS INCREASED AND DECREASED, AND FINALLY, WAS DISCONTINUED ON SEPTEMBER 1, 1948, IN COMPLIANCE WITH YOUNG'S REQUEST.

IT IS A FUNDAMENTAL CANON OF STATUTORY CONSTRUCTION THAT A STATUTE WILL BE CONSTRUED PROSPECTIVELY, AND NOT RETROACTIVELY UNLESS REQUIRED IN EXPRESS TERMS OR BY NECESSARY IMPLICATION. UNITED STATES, V. ST. LOUIS ETC. RAILWAY CO., 270 U.S. 1. THE ACT OF MAY 27, 1944 SUPRA DOES NOT BY EXPRESS LANGUAGE, NOR BY NECESSARY IMPLICATION, REQUIRE A RETROACTIVE EFFECT, AND THE STATED RULE OF CONSTRUCTION IS APPLICABLE. HENCE, THE PARTICULAR WAIVER HERE INVOLVED IS NOT WITHIN THE SAID STATUTE.

IN THE ABSENCE OF A STATUTE SO PROVIDING RETIREMENT PAY CANNOT BE WAIVED. 2 COMP.GEN. 743; 6 ID. 223; 20 ID. 41. ACCORDINGLY, SINCE YOUNG IS NO LONGER ENTITLED TO COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, THERE APPEARS TO BE NO REASON WHY HE MAY NOT BE PAID HIS RETIREMENT PAY. YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.