B-97082, JANUARY 2, 1951, 30 COMP. GEN. 255

B-97082, JANUARY 2, 1951, 30 COMP. GEN. 255

PAY - RETIRED - NONREGULAR MILITARY PERSONNEL - CONCURRENT RECEIPT OF VETERANS ADMINISTRATION PENSION - AVAILABILITY FOR SET-OFF THE ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION, NO. 860, OCTOBER 5, 1950, HOLDING THAT NONREGULAR MEMBERS AND FORMER MEMBERS OF THE ARMY AND AIR FORCE RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY MAY WAIVE THEIR RETIRED PAY IN FAVOR OF A PENSION OR OTHER COMPENSATION PAYABLE UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION IS CONCLUSIVE UPON THE GENERAL ACCOUNTING OFFICE, AND SUCH PERSONS MAY LATER WAIVE THEIR PENSION OR OTHER COMPENSATION FOR THE PURPOSE OF AGAIN RECEIVING THE RETIRED PAY PREVIOUSLY WAIVED. A RETIRED NONREGULAR OFFICER OR ENLISTED MAN OF THE ARMY OR AIR FORCE WHO ACCEPTS CIVILIAN EMPLOYMENT IN THE FEDERAL GOVERNMENT WITH COMPENSATION AT THE RATE OF $3,000, OR MORE, PER ANNUM, THEREBY BEING PRECLUDED FROM DRAWING RETIRED PAY, AND WHO DURING SUCH CIVILIAN EMPLOYMENT RECEIVES A PENSION OR COMPENSATION FROM THE VETERANS ADMINISTRATION, MAY, AFTER THE TERMINATION OF HIS CIVILIAN EMPLOYMENT, WAIVE RECEIPT OF SUCH PENSION OR COMPENSATION AND AGAIN RECEIVE RETIRED PAY FROM THE ARMY OR AIR FORCE, THE RIGHT TO RETIRED PAY NOT HAVING BEEN TERMINATED BUT MERELY SUSPENDED DURING THE PERIOD OF CIVILIAN EMPLOYMENT. A RETIRED NONREGULAR OFFICER OR ENLISTED MAN OF THE ARMY OR AIR FORCE WHO ACCEPTS CIVILIAN EMPLOYMENT IN THE FEDERAL GOVERNMENT WITH COMPENSATION AT A RATE LESS THAN $3,000 PER ANNUM, BUT WHOSE COMBINED COMPENSATION AND RETIRED PAY EXCEEDS $3,000 PER ANNUM, AND WHO WAIVES THE REDUCED AMOUNT OF RETIRED PAY DURING THE PERIOD OF CIVILIAN EMPLOYMENT IN ORDER TO RECEIVE A PENSION OR COMPENSATION FROM THE VETERANS ADMINISTRATION, MAY, UPON TERMINATION OF HIS CIVILIAN EMPLOYMENT, WAIVE RECEIPT OF SUCH PENSION OR COMPENSATION AND AGAIN RECEIVE RETIRED PAY FROM THE ARMY OR AIR FORCE. RETIRED PAY OF NONREGULAR PERSONNEL OF THE ARMY AND AIR FORCE IS NOT CONSIDERED A BENEFIT WITHIN THE CONTEMPLATION OF THE ACT OF AUGUST 12, 1935, AS AMENDED, WHICH PROHIBITS THE COLLECTION BY SET-OFF OR OTHERWISE OF ANY AMOUNTS FOUND TO BE DUE THE GOVERNMENT OUT OF ANY BENEFITS PAYABLE PURSUANT TO ANY LAW ADMINISTERED BY THE VETERANS ADMINISTRATION, AND THEREFORE, AS A GENERAL RULE, RETIRED PAY OF SUCH PERSONNEL WOULD NOT BE SUBJECT TO ADMINISTRATIVE SET-OFF WITHOUT THE DEBTOR'S CONSENT, EXCEPT TO THE EXTENT THAT THE SET-OFF MIGHT BE ACCOMPLISHED UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1936, AS AMENDED BY THE ACT OF AUGUST 3, 1950.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JANUARY 2, 1951:

REFERENCE IS MADE TO YOUR PREDECESSOR'S LETTER OF JULY 24, 1950, STATING THAT IN ACCORDANCE WITH EXECUTIVE ORDER 10122, DATED APRIL 14, 1950, THE DEPARTMENT OF THE ARMY NOW IS RESPONSIBLE FOR THE PAYMENT OF DISABILITY RETIRED PAY TO BOTH REGULAR AND NONREGULAR OFFICERS AND ENLISTED MEN WHO ARE RETIRED FROM THE ARMY AND AIR FORCE UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 802, AND TO CERTAIN NONREGULAR OFFICERS AND ENLISTED MEN PREVIOUSLY PAID BY THE VETERANS ADMINISTRATION. IN THAT CONNECTION REFERENCE IS MADE TO THE ACT OF MAY 27, 1944, 58 STAT. 230, WHICH ALLOWS OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY (AND THE AIR FORCE) TO WAIVE ALL OR A PART OF THEIR RETIRED PAY IN ORDER TO RECEIVE PENSIONS OR COMPENSATION FROM THE VETERANS ADMINISTRATION, AND THEREAFTER TO WAIVE RECEIPT OF SUCH PENSIONS OR COMPENSATION FOR THE PURPOSE OF AGAIN RECEIVING RETIRED PAY. A DECISION IS REQUESTED AS TO WHETHER NONREGULAR PERSONNEL RETIRED FROM THE ARMY AND THE AIR FORCE FOR PHYSICAL DISABILITY ALSO MAY WAIVE ALL OR A PART OF THEIR RETIRED PAY IN ORDER TO RECEIVE PENSIONS OR COMPENSATION FROM THE VETERANS ADMINISTRATION, AND THEREAFTER WAIVE RECEIPT OF SUCH PENSIONS OR COMPENSATION FOR THE PURPOSE OF AGAIN RECEIVING RETIRED PAY.

SECTION 11 OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1197, PROVIDES THAT--

NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, EXCEPT AS PROVIDED IN SECTION 19 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, AND IN SECTION 817 OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, THE DECISIONS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS ON ANY QUESTION OF LAW OR FACT CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER THIS OR ANY OTHER ACT ADMINISTERED BY THE VETERANS' ADMINISTRATION SHALL BE FINAL AND CONCLUSIVE AND NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES SHALL HAVE POWER OR JURISDICTION TO REVIEW ANY SUCH DECISIONS.

THE PAYMENT OF THE PENSIONS AND COMPENSATION REFERRED TO IS GOVERNED BY LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION AND IN CONNECTION WITH THE QUESTION SUBMITTED ATTENTION IS INVITED TO ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION NO. 860, DATED OCTOBER 5, 1950, WHEREIN THE SAME QUESTION WAS CONSIDERED AND IT WAS HELD, INTER ALIA, THAT NONREGULAR MEMBERS AND FORMER MEMBERS OF THE ARMY AND AIR FORCE RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY ARE ENTITLED TO THE BENEFITS OF THE ACT OF MAY 27, 1944, SUPRA. THAT DECISION, INSOFAR AS IT RELATES TO THE RIGHT TO RECEIVE PENSIONS OR OTHER COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION IS CONCLUSIVE UPON THIS OFFICE. AS TO THE RIGHT OF SUCH PERSONS TO LATER WAIVE THEIR PENSION OR OTHER COMPENSATION FOR THE PURPOSE OF AGAIN RECEIVING RETIRED PAY, YOU MAY BE ADVISED THAT UNDER SUCH CIRCUMSTANCES THERE WOULD BE NO OBJECTION TO RESUMING THE PAYMENTS OF THE AMOUNT OF THE RETIRED PAY PREVIOUSLY WAIVED. IN THAT CONNECTION IT MAY BE NOTED THAT THE ADMINISTRATOR'S DECISION WAS PREDICATED TO A LARGE EXTENT ON THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, 63 STAT. 816, AND, HENCE, IT WOULD APPEAR TO BE FOR APPLICATION ONLY ON AND AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THAT ACT.

A DECISION ALSO IS REQUESTED AS TO WHETHER THE ANSWER TO THE ABOVE QUESTION WOULD APPLY EQUALLY TO PERSONS WHO ARE GRANTED RETIRED PAY UNDER THE PROVISIONS OF THE ACT OF JUNE 29, 1948, 62 STAT. 1081. IT IS ASSUMED THAT THIS REFERS TO PERSONS GRANTED RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE SAID ACT OF JUNE 29, 1948, 62 STAT. 1087, AND, IN THAT CONNECTION, YOU ARE ADVISED THAT SUCH QUESTION WAS CONSIDERED IN DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, WHEREIN IT WAS POINTED OUT (PAGE 660) THAT IN ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION, NO. 800, DATED DECEMBER 22, 1948, IT WAS HELD THAT---

RETIRED PAY AUTHORIZED UNDER TITLE III, PUBLIC LAW 810, 80TH CONGRESS (APPROVED JUNE 29, 1948), IS NOT SUCH PAY AS MAY BE WAIVED, UNDER PUBLIC LAW 314, 78TH CONGRESS (APPROVED MAY 27, 1944), FOR THE PURPOSE OF RECEIVING COMPENSATION OR PENSION FROM THE VETERANS' ADMINISTRATION.

IN VIEW OF SUCH DECISION THERE IS NO OCCASION TO CONSIDER THE CONVERSE OF THE QUESTION, I.E., WHETHER SUCH PERSONS MAY LATER WAIVE THEIR PENSIONS OR COMPENSATION IN ORDER TO AGAIN RECEIVE THEIR RETIRED PAY.

IN THE EVENT THE ANSWER TO EITHER OF THE ABOVE QUESTIONS IS IN THE NEGATIVE, DECISION IS REQUESTED AS TO WHETHER OR NOT A NONREGULAR OFFICER OR ENLISTED MAN OF THE ARMY OR AIR FORCE WHO IS RETIRED UNDER ANY PROVISION OF LAW, WHO THEREAFTER ACCEPTS CIVILIAN EMPLOYMENT WITH THE FEDERAL GOVERNMENT WITH COMPENSATION AT THE RATE OF $3,000, OR MORE, PER ANNUM, BEING THEREBY PRECLUDED FROM DRAWING RETIRED PAY, AND WHO DURING SUCH CIVILIAN EMPLOYMENT RECEIVES A PENSION OR COMPENSATION FROM THE VETERANS ADMINISTRATION, MAY AFTER THE TERMINATION OF HIS CIVILIAN EMPLOYMENT WAIVE RECEIPT OF SUCH PENSION OR COMPENSATION AND AGAIN RECEIVE RETIRED PAY FROM THE ARMY OF THE AIR FORCE.

SINCE THE RIGHT OF SUCH PERSONS TO THEIR RETIRED PAY IS NOT TERMINATED BUT IS MERELY SUSPENDED DURING THE TERM OF THEIR CIVILIAN EMPLOYMENT, THERE WOULD APPEAR TO BE NO BASIS FOR DENYING THEM THEIR RIGHT TO RETIRED PAY AFTER THE TERMINATION OF THEIR CIVILIAN EMPLOYMENT. CF. 12 COMP. GEN. 448. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

A FURTHER DECISION IS REQUESTED AS TO WHETHER THE ANSWER TO THE ABOVE QUESTION WOULD APPLY TO THOSE CASES WHERE THE COMPENSATION ATTACHED TO THE CIVILIAN POSITION WITH THE FEDERAL GOVERNMENT IS LESS THAN $3,000 PER ANNUM, BUT THE COMBINED COMPENSATION AND RETIRED PAY EXCEEDS $3,000 PER ANNUM, AND THE REDUCED AMOUNT OF RETIRED PAY IS WAIVED BY THE PERSON CONCERNED DURING THE PERIOD OF HIS CIVILIAN EMPLOYMENT IN ORDER TO RECEIVE A PENSION OR COMPENSATION FROM THE VETERANS ADMINISTRATION. THIS QUESTION ALSO IS ANSWERED IN THE AFFIRMATIVE, THERE BEING FOUND NO PROVISION OF LAW WHICH WOULD DENY TO SUCH A PERSON THE RIGHT TO RECEIVE HIS RETIRED PAY UPON THE TERMINATION OF HIS CIVILIAN EMPLOYMENT.

THE NEXT QUESTION IS AS TO WHETHER OR NOT, IN CONNECTION WITH THE PAYMENT OF NONREGULAR RETIRED PERSONNEL OF THE ARMY AND OF THE AIR FORCE AFTER JULY 1, 1950, THERE MAY BE SET OFF AGAINST SUCH PAYMENTS OF RETIRED PAY ANY AMOUNTS FOUND TO BE DUE THE GOVERNMENT BY REASON OF OVERPAYMENTS MADE TO SUCH INDIVIDUALS. WITH RESPECT TO SUCH QUESTION, ATTENTION IS CALLED TO SECTION 5 OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1195, AMENDING SECTION 3 OF THE ACT OF AUGUST 12, 1935, 49 STAT. 609, WHICH PROHIBITS THE COLLECTION BY SET-OFF OR OTHERWISE OUT OF ANY BENEFITS PAYABLE PURSUANT TO ANY LAW ADMINISTERED BY THE VETERANS ADMINISTRATION AND RELATING TO VETERANS, THEIR ESTATES, OR THEIR DEPENDENTS, OF ANY CLAIM OF THE UNITED STATES, OR ANY AGENCY THEREOF.

IF ANY DOUBT EXISTED IN THE MATTER BEFORE, IT WOULD APPEAR TO BE CLEAR THAT SINCE THE ISSUANCE OF EXECUTIVE ORDER 10122, SUPRA, THE RETIRED PAY OF THE PERSONS REFERRED TO COULD NOT BE CONSIDERED A BENEFIT PAYABLE PURSUANT TO ANY LAW ADMINISTERED BY THE VETERANS ADMINISTRATION. HENCE, THE SAID SECTION 3 OF THE ACT OF AUGUST 12, 1935, AS AMENDED, WOULD HAVE NO APPLICATION THERETO. HOWEVER, NOTWITHSTANDING THE FACT THAT SUCH LAW HAS NO APPLICATION, YOU ARE ADVISED THAT AS A GENERAL RULE THE RETIRED PAY IN QUESTION WOULD NOT BE SUBJECT TO SET-OFF ADMINISTRATIVELY, WITHOUT THE DEBTOR'S CONSENT, IN VIEW OF THE RULING IN BAKER V. MCCARL, 24 F.2D 897, EXCEPT TO THE EXTENT THAT SUCH SET-OFF MIGHT BE ACCOMPLISHED UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1936, 49 STAT. 1374, AS AMENDED BY THE ACT OF AUGUST 3, 1950, PUBLIC LAW 633.