B-85615, JULY 13, 1949, 29 COMP. GEN. 14

B-85615, JULY 13, 1949, 29 COMP. GEN. 14

RETIREMENT - ARMY OFFICERS - COLLECTION OF OVERPAYMENTS OF RETIREMENT PAY BASED UPON ERRONEOUS CERTIFICATION A FORMER OFFICER WHO WAS CERTIFIED BY THE SECRETARY OF WAR TO THE VETERANS ADMINISTRATION IN ACCORDANCE WITH EXECUTIVE ORDER NO. 8099, AS AMENDED, TO RECEIVE RETIREMENT PAY UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, AT A RATE IN EXCESS OF THAT TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS GRADE AND LENGTH OF SERVICE, BUT WHOSE CERTIFICATION OF AWARD SUBSEQUENTLY WAS AMENDED TO SHOW HIS CORRECT MONTHLY RATE OF RETIREMENT PAY RETROACTIVE TO THE DATE OF ORIGINAL AWARD, IS REQUIRED TO REFUND AMOUNTS REPRESENTING OVERPAYMENTS OF RETIREMENT PAY BASED UPON THE ERRONEOUS CERTIFICATION OF AWARD. 25 COMP. GEN. 802, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, JULY 13, 1949:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1949, REQUESTING A DECISION, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH, AS TO THE EFFECTIVE DATE OF AN AMENDED AWARD REDUCING THE RETIREMENT PAY OF COLONEL LESTER JAMES MYERS (C-3 856 363).

IT APPEARS FROM THE INFORMATION PRESENTED THAT COLONEL MYERS SUFFERED PERMANENT DISABILITY IN LINE OF DUTY WHILE ON ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES, AND THAT EFFECTIVE MAY 10, 1945, HE WAS CERTIFIED TO THE VETERANS ADMINISTRATION IN ACCORDANCE WITH EXECUTIVE ORDER NO. 8099, APRIL 28, 1939, AS AMENDED, FOR THE PURPOSE OF RECEIVING THE RETIREMENT BENEFITS GRANTED UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557. IT FURTHER APPEARS THAT THE AMOUNT CERTIFIED BY THE WAR DEPARTMENT AS THE MONTHLY RETIRED PAY OF SUBJECT OFFICER WAS IN EXCESS OF THAT TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS GRADE AND LENGTH OF SERVICE. THE VETERANS ADMINISTRATION APPROVED AN AWARD FOR THE ERRONEOUS AMOUNT STATED IN THE CERTIFICATION OF THE WAR DEPARTMENT AND PAYMENTS WERE MADE TO SUBJECT OFFICER UNDER SUCH AWARD FROM MAY 10, 1945, UNTIL DECEMBER 1948. ON JANUARY 24, 1949, AFTER AUDIT EXCEPTIONS HAD BEEN RAISED BY THIS OFFICE TO THE RATE OF RETIREMENT PAY BEING RECEIVED BY COLONEL MYERS, THE DEPARTMENT OF THE ARMY AMENDED ITS ORIGINAL CERTIFICATION SO AS TO CORRECT RETROACTIVELY TO MAY 10, 1945, THE MONTHLY RATE OF RETIREMENT PAY STATED THEREIN.

YOUR QUESTION IS AS TO WHETHER THE VETERANS' ADMINISTRATION AWARD, BASED UPON THE AMENDED CERTIFICATION OF THE DEPARTMENT OF THE ARMY, IS REQUIRED TO BE MADE RETROACTIVELY EFFECTIVE TO MAY 10, 1945, WHICH ACTION, IF REQUIRED, WOULD RESULT IN AN OVERPAYMENT. THAT QUESTION APPARENTLY ARISES FROM A DECISION DATED MAY 23, 1946, B-57348, 25 COMP. GEN. 802, TO THE THEN ADMINISTRATOR OF VETERANS AFFAIRS IN WHICH IT WAS HELD THAT PAYMENTS OF RETIREMENT PAY TO AN OFFICER CERTIFIED TO BE ENTITLED THERETO BY THE SECRETARY OF WAR PURSUANT TO EXECUTIVE ORDER 8099, SUPRA, AS AMENDED, NEED NOT BE REFUNDED UPON A REDETERMINATION BY THE SECRETARY OF WAR THAT THE DISABILITY OF THE OFFICER WAS NOT INCURRED IN LINE OF DUTY AND, THEREFORE, THAT HE WAS NOT ENTITLED TO RETIREMENT PAY.

BY VIRTUE OF EXECUTIVE ORDER NO. 8099, SUPRA, AND AMENDMENTS THERETO, THE SECRETARY OF WAR IS VESTED WITH AUTHORITY TO DETERMINE QUESTIONS OF ELIGIBILITY FOR THE RETIREMENT BENEFITS PROVIDED UNDER THE ACT OF APRIL 3, 1939, SUPRA, AND THE SAID DECISION OF MAY 23, 1946, WHILE RECOGNIZING THE AUTHORITY OF THE SECRETARY OF WAR TO MAKE REDETERMINATIONS OF ELIGIBILITY UPON THE BASIS OF NEW EVIDENCE, DOES NOT REQUIRE COLLECTION OF RETIREMENT PAYMENTS MADE AND RECEIVED IN GOOD FAITH UNDER AN ORIGINAL DETERMINATION OF ELIGIBILITY WHICH SUBSEQUENTLY IS REVERSED. HOWEVER, THE INSTANT SITUATION IS NOT ONE IN WHICH THE SECRETARY OF WAR HAS MODIFIED OR REVERSED AN EARLIER DETERMINATION OF ELIGIBILITY BUT MERELY INVOLVES PAYMENTS OF RETIREMENT PAY AT A RATE IN EXCESS OF THAT PROVIDED BY STATUTE. WHILE THE QUESTION OF ELIGIBILITY FOR RETIREMENT PAY PROVIDED FOR UNDER THE 1939 ACT IS A MATTER FOR DETERMINATION BY THE SECRETARY OF WAR, THE AMOUNT THEREOF IS SPECIFICALLY FIXED BY STATUTE AND IS DEPENDENT UPON THE GRADE AND LENGTH OF SERVICE OF THE INDIVIDUAL CONCERNED. NEITHER THE SECRETARY OF WAR NOR THIS OFFICE LEGALLY CAN AUTHORIZE OR APPROVE PAYMENTS AT RATES IN EXCESS OF THE STATUTORY RATE; NOR IS THERE ANY JURISDICTION IN THIS OFFICE TO WAIVE COLLECTION OF OVERPAYMENTS MADE IN CONTRAVENTION OF STATUTE. IT WOULD APPEAR THAT THE CREATION OF THE OVERPAYMENT IN QUESTION IS NOT DEPENDENT UPON ACTION OF THE VETERANS ADMINISTRATION IN PLACING THE NEW AWARD FOR THE LESSER AMOUNT IN EFFECT RETROACTIVELY TO MAY 10, 1945, BUT RATHER THAT SUCH OVERPAYMENT AROSE IMMEDIATELY UPON THE PAYMENT TO COLONEL MYERS OF RETIREMENT PAY AT A RATE IN EXCESS OF THAT SPECIFICALLY PROVIDED BY STATUTE.

IN VIEW OF THE FOREGOING, THE CONCLUSION IS INESCAPABLE THAT COLLECTION OF THE OVERPAYMENTS OF RETIREMENT PAY MADE TO COLONEL MYERS DURING THE PERIOD MAY 10, 1945, TO DECEMBER 1948 IS REQUIRED.