B-95301, JUNE 1, 1950, 29 COMP. GEN. 487

B-95301, JUNE 1, 1950, 29 COMP. GEN. 487

PAY - RETIRED - ARMY ENLISTED MEN - EFFECT OF WAIVER ON RIGHT TO MUSTERING-OUT PAY A RETIRED ARMY ENLISTED MAN WHO WAIVES HIS STATUTORY RIGHT TO RETIREMENT PAY IN FAVOR OF COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION MAY NOT BE CONSIDERED AS NOT TRANSFERRED TO THE RETIRED LIST WITH RETIREMENT PAY WITHIN THE MEANING OF THE MUSTERING-OUT PAYMENT ACT OF 1944, SO AS TO BE ENTITLED TO MUSTERING-OUT PAY CONTRARY TO A DECISION OF THE SECRETARY OF THE ARMY INVOLVING PERSONS IN SIMILAR SITUATIONS.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. A. S. KINSMAN, DEPARTMENT OF THE ARMY, JUNE 1, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1950, WITH ENCLOSURE, TRANSMITTED TO THIS OFFICE BY FIRST INDORSEMENT DATED MAY 11, 1950, FROM THE CHIEF OF FINANCE, WHEREIN YOU REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF MUSTERING-OUT PAY TO EDWARD J. SNOW, PRIVATE, FIRST CLASS, ARMY OF THE UNITED STATES, RETIRED, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT BY PARAGRAPH 73, SPECIAL ORDERS NO. 77, DEPARTMENT OF THE ARMY, WASHINGTON, .C., DATED APRIL 20, 1950, IT WAS ANNOUNCED THAT, AMONG OTHERS, PRIVATE, FIRST CLASS, EDWARD W. SNOW, NO. US 32488843, ARMY OF THE UNITED STATES--- PRESUMABLY THE SAME PERSON AS EDWARD J. SNOW--- WOULD BE PLACED ON THE RETIRED LIST, EFFECTIVE APRIL 30, 1950, BY REASON OF PHYSICAL DISABILITY, PURSUANT TO THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 816, 823.

UNDER SUCH CIRCUMSTANCES MR. SNOW WAS LEGALLY ENTITLED FROM THE DATE OF HIS RETIREMENT TO RETIREMENT PAY COMPUTED ON THE FORMULA SET FORTH IN SUBSECTION (D) OF THE SAID SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. SECTION 1 (B) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

NO MUSTERING-OUT PAYMENT SHALL BE MADE TO---

(2) ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELIEF FROM ACTIVE SERVICE, IS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIREMENT PAY OR TO A STATUS IN WHICH HE RECEIVES RETIREMENT PAY;

MR. SNOW APPARENTLY TAKES THE POSITION THAT WHILE HE WAS LEGALLY ENTITLED TO RETIREMENT PAY HE WAS NOT TRANSFERRED TO THE RETIRED LIST "WITH RETIREMENT PAY" BECAUSE HE HAD WAIVED HIS RIGHT TO RETIREMENT PAY IN FAVOR OF COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION.

SECTION 5 (B) OF THE MUSTERING-OUT PAYMENTS ACT OF 1944, 58 STAT. 10, PROVIDES AS FOLLOWS:

THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THIS ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS THEREOF, AND THE DECISIONS OF THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL. ( ITALICS SUPPLIED.)

WHILE IT DOES NOT APPEAR THAT THE SECRETARY OF THE ARMY HAS MADE ANY EXPRESS DECISION IN MR. SNOW'S PARTICULAR CASE, IT APPEARS HE HAS MADE A DECISION WITH RESPECT TO PERSONS IN A SIMILAR SITUATION. SEE PARAGRAPH 11C.1, ARMY REGULATIONS 35-2490, CHANGE NO. 7, DATED JANUARY 28, 1949, WHICH READS AS FOLLOWS:

AN OFFICER WHO IS CERTIFIED TO THE VETERANS ADMINISTRATION FOR RETIREMENT PAY, UNDER THE PROVISIONS OF SECTION 5, ACT OF 3 APRIL 1939 (53 STAT. 557; AR 35-3420) ON THE DATE FOLLOWING THE DATE OF HIS RELIEF FROM ACTIVE SERVICE FOR PHYSICAL DISABILITY, MAY NOT RECEIVE THE MUSTERING-OUT PAYMENT EVEN THOUGH HE HAS WAIVED HIS RETIREMENT PAY IN FAVOR OF DISABILITY COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION.

AS NOTED ABOVE, SECTION 1 (B) (2) OF THE MUSTERING-OUT PAYMENT ACT OF 1944 DENIES MUSTERING-OUT PAY TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELIEF FROM ACTIVE SERVICE, IS TRANSFERRED OR RETURNED TO THE RETIRED LIST "WITH RETIREMENT PAY" OR TO A STATUS IN WHICH HE RECEIVES RETIREMENT PAY. THIS OFFICE CANNOT SAY, CONTRARY TO THE POSITION TAKEN BY THE SECRETARY OF THE ARMY, THAT A PERSON WHO IS BY STATUTE ENTITLED TO RETIREMENT PAY UPON RETIREMENT IS NOT ,TRANSFERRED TO THE RETIRED LIST WITH RETIREMENT PAY" WITHIN THE MEANING OF THE MUSTERING- OUT PAYMENT ACT, NOTWITHSTANDING THAT SUCH RETIREMENT PAY BE WAIVED FOR THE TIME BEING, OR INDEFINITELY, IN FAVOR OF LARGER ALTERNATIVE PAYMENTS. WHILE THE MATTER WOULD APPEAR TO BE BASICALLY FOR DECISION BY THE SECRETARY OF THE ARMY UNDER THE EXPRESS AUTHORITY GIVEN HIM IN THE MUSTERING-OUT PAYMENT ACT, IT MAY BE POINTED OUT THAT THE PROVISION OF THE ACT DENYING MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES TRANSFERRED TO THE RETIRED LIST WITH RETIREMENT PAY APPEARS TO BE IN ACCORD WITH THE PURPOSES SET FORTH IN THE PRESIDENT'S REQUEST FOR SUCH LEGISLATION WHICH READS, IN PERTINENT PART, AS FOLLOWS:

TO HELP SERVICE MEN AND WOMEN TIDE OVER THE DIFFICULT PERIOD OF READJUSTMENT FROM MILITARY TO CIVILIAN LIFE, MUSTERING-OUT PAY WILL BE NEEDED. IT WILL RELIEVE THEM OF ANXIETY WHILE THEY SEEK PRIVATE EMPLOYMENT OR MAKE THEIR PERSONAL PLANS FOR THE FUTURE. * * *

SEE PAGE 3 OF THE MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, HOUSE OF REPRESENTATIVES DOCUMENT NO. 361, 78TH CONGRESS, ST SESSION.

APPARENTLY IT WAS CONSIDERED THAT THOSE MEMBERS OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELIEF FROM ACTIVE SERVICE, ARE TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIREMENT PAY OR TO A STATUS IN WHICH THEY WOULD RECEIVE RETIREMENT PAY WOULD RECEIVE SUFFICIENT COMPENSATION TO RELIEVE THEM OF THE ECONOMIC SITUATION FACED BY THOSE NOT ENTITLED TO SUCH RETIREMENT PAY UPON THEIR DISCHARGE OR RELIEF FROM ACTIVE SERVICE AND RETURN TO CIVILIAN LIFE, AND IT IS AT LEAST DOUBTFUL THAT THE CONGRESS INTENDED TO PERMIT A MEMBER TO WAIVE HIS LEGAL RETIREMENT PAY IN FAVOR OF GREATER IMMEDIATE COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION AND THEREBY OBTAIN NOT ONLY SUCH LARGER COMPENSATION PAYMENT BUT ALSO THE MUSTERING-OUT PAY DENIED TO PERSONS DRAWING THE LESSER RETIRED PAY. THAT COULD BE DONE, THEN APPARENTLY IN ANY CASE WHERE THE RETIREMENT PAY HAPPENED TO BE GREATER, THE MEMBER MIGHT WAIVE IT FOR THE FIRST MONTH, WEEK, OR DAY AFTER RETIREMENT TO OBTAIN THE MUSTERING-OUT PAY AND THEN SWITCH BACK TO THE GREATER RETIRED PAY, IN EFFECT SETTING AT NAUGHT THE PROHIBITION IN THE STATUTE. WERE THE COMPENSATION BENEFITS UNDER THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION LESS THAN THE RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, SUPPOSEDLY THE WAIVER OF RETIRED PAY BENEFITS WOULD NOT HAVE BEEN SERIOUSLY CONSIDERED BY MR. SNOW NOR THE CONTENTION ADVANCED RESPECTING HIS "INVOLUNTARY" RETIREMENT STATUS. WHILE SUCH CONTENTION DOES NOT APPEAR TO BE NOW SUBJECT TO DETERMINATION HERE, THIS OFFICE KNOWS OF NO STATUTE COMPELLING THE INVOLUNTARY RETIREMENT OF A PERSON OTHERWISE ENTITLED TO BE RELEASED FROM MILITARY SERVICE. IT MAY BE SUGGESTED, HOWEVER, THAT THE ELECTION OF VETERANS ADMINISTRATION BENEFITS BY WAIVING HIS RETIREMENT PAY NETTING A GREATER RETURN AT LEAST FOR THE TIME BEING WOULD APPEAR TO EVIDENCE AN ACQUIESCENCE IN THE RETIREMENT PROCEEDINGS AND STATUS. INSTANCES HAVE BEEN KNOWN WHERE VETERANS ADMINISTRATION BENEFITS HAVE BEEN REDUCED OR ELIMINATED AND ALSO THERE ARE INSTANCES WHERE RETIRED PAY HAS BEEN INCREASED, AND A PERSON RETAINING HIS RETIRED STATUS WOULD AT LEAST CONTINUE TO HAVE AN ELECTION TO TAKE THE GREATER BENEFIT.

HOWEVER THOSE MATTERS MAY BE, THE RECORD IN THE PRESENT CASE ESTABLISHES NO LEGAL BASIS FOR THIS OFFICE TO AUTHORIZE PAYMENT OF MUSTERING-OUT PAY TO MR. SNOW, CONTRARY TO THE DECISION OF THE SECRETARY OF THE ARMY IN LIKE CASES. IT FOLLOWS THAT THE QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE.