A-28100, AUGUST 8, 1929, 9 COMP. GEN. 58

A-28100, AUGUST 8, 1929, 9 COMP. GEN. 58

VETERANS' BUREAU - ADJUSTED COMPENSATION - DEPENDENT ALLOWANCE - SEVEN YEAR ABSENCE OF VETERAN UNDER THE TERMS OF SECTION 312 (B) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, EXPRESSLY FIXING AS A CONDITION PRECEDENT TO PAYMENT OF CLAIMS THAT THE APPLICATION OF DEPENDENTS OF VETERANS WHO HAVE BEEN ABSENT FOR SEVEN YEARS MUST BE FILED ,BEFORE THE DATE OF THE EXPIRATION OF SUCH 7-YEAR PERIOD (IF SUCH PERIOD BEGAN BEFORE JANUARY 3, 1930)," CLAIMS BASED ON APPLICATIONS OF DEPENDENTS FILED AFTER SUCH 7-YEAR PERIODS ARE NOT PAYABLE UNDER THE GENERAL TERMS OF THE STATUTE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR. UNITED STATES VETERANS' BUREAU, AUGUST 8, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 30, 1929, REQUESTING DECISION OF THE QUESTION WHETHER THE CLAIMS OF DEPENDENTS OF WORLD WAR VETERANS FOR THE BENEFITS OF THE WORLD WAR ADJUSTED COMPENSATION ACT THAT HAVE BEEN FILED ON OR BEFORE JANUARY 2, 1930, BUT MORE THAN SEVEN YEARS AFTER THE DISAPPEARANCE OF THE VETERAN, MUST BE DENIED UNDER THE TERMS OF SECTION 312 (B) OF THE ACT, OR WHETHER SUCH CLAIMS MAY BE RECOGNIZED AND ADJUDICATED UNDER THE AUTHORITY OF SECTION 312 (A) AND SECTION 604 (B) OF THE ACT, AS AMENDED.

YOU STATE THAT THERE ARE NOW PENDING BEFORE THE BUREAU THE FOUR CASES OF JOSEPH HYNEK, XC-702,489; ROE CLIFTON MORE HEAD, XC-703,621; JAMES BURR BURTON, XC-708,327; AND THOMAS SAMUEL DUFFY, XC-703,463. YOU DO NOT SUBMIT THE FACTS IN THESE CASES, BUT STATE THAT IN ALL FOUR CASES THE 7- YEAR PERIOD OF UNEXPLAINED ABSENCE OF THE VETERAN HAD EXPIRED PRIOR TO THE DATE AS OF WHICH THE DEPENDENTS FILED CLAIM.

SECTIONS 312 (A) AND (B) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, PROVIDE AS FOLLOWS:

(A) IF SATISFACTORY EVIDENCE IS PRODUCED ESTABLISHING THE FACT OF THE CONTINUED AND UNEXPLAINED ABSENCE OF ANY INDIVIDUAL FROM HIS HOME AND FAMILY FOR A PERIOD OF SEVEN YEARS, DURING WHICH PERIOD NO INTELLIGENCE OF HIS EXISTENCE HAS BEEN RECEIVED, THE DEATH OF SUCH INDIVIDUAL AS OF THE DATE OF THE EXPIRATION OF SUCH PERIOD SHALL, FOR THE PURPOSES OF THIS ACT, BE CONSIDERED AS SUFFICIENTLY PROVED.

(B) IF IN THE CASE OF ANY SUCH INDIVIDUAL WHO IS A VETERAN IT APPEARS THAT HIS APPLICATION WAS NOT MADE AND FILED PRIOR TO THE BEGINNING OF SUCH 7-YEAR PERIOD, OR THAT ALTHOUGH ENTITLED TO RECEIVE ADJUSTED SERVICE PAY HE DID NOT RECEIVE IT PRIOR TO THE BEGINNING OF SUCH 7-YEAR PERIOD, THEN HIS DEPENDENTS WHO HAVE MADE AND FILED APPLICATION BEFORE THE DATE OF THE EXPIRATION OF SUCH 7-YEAR PERIOD (IF SUCH PERIOD BEGAN BEFORE JANUARY 3, 1930) SHALL BE ENTITLED TO RECEIVE THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT IN ACCORDANCE WITH THE PROVISIONS OF TITLE VI.

SECTION 604 (B) OF THE ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, PROVIDES AS FOLLOWS:

(B) APPLICATIONS FOR SUCH BENEFITS, WHETHER VESTED OR CONTINGENT, SHALL BE MADE AND FILED BY THE DEPENDENTS OF THE VETERAN ON OR BEFORE JANUARY 2, 1930; EXCEPT THAT IN THE CASE OF THE DEATH OF THE VETERAN DURING THE SIX MONTHS IMMEDIATELY PRECEDING SUCH DATE THE APPLICATION SHALL BE MADE AND FILED AT ANY TIME WITHIN SIX MONTHS AFTER THE DEATH OF THE VETERAN. PAYMENTS UNDER THIS TITLE SHALL BE MADE ONLY TO DEPENDENTS WHO HAVE MADE AND FILED APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.

UNDER THE PLAIN TERMS OF SECTION 312 (B) EXPRESSLY FIXING AS A CONDITION PRECEDENT TO PAYMENT OF CLAIMS THAT THE APPLICATION OF DEPENDENTS OF VETERANS MUST BE FILED "BEFORE THE DATE OF THE EXPIRATION OF SUCH 7-YEAR PERIOD (IF SUCH PERIOD BEGAN BEFORE JANUARY 3, 1930)," THE FOUR CLAIMS IN QUESTION WOULD NOT BE PAYABLE. QUESTION WOULD NOT BE PAYABLE.

YOU SUGGEST FOR CONSIDERATION WHETHER THE PLAIN TERMS OF SECTION 312 (B) MAY BE DISREGARDED IN VIEW OF THE GENERAL TERMS OF SECTIONS 312 (A) AND 604 (B). SECTION 312 (A) IS THE GENERAL PROVISION APPLICABLE BOTH TO DEPENDENTS AND TO VETERANS, FOR THE ESTABLISHMENT OF DEATH BY THE EXPIRATION OF SEVEN YEARS OF UNEXPLAINED ABSENCE. THERE IS NO RIGHT GRANTED IN THIS PARAGRAPH. SEC. 604 (B) IS THE GENERAL PROVISION GOVERNING THE TIME OF FILING APPLICATIONS OF DEPENDENTS OF VETERANS. WHILE NO DISTINCTION IS MADE THEREIN BETWEEN VETERANS WHOSE DATE OF DEATH IS DEFINITELY KNOWN AND VETERANS WHOSE DATE OF DEATH IS TO BE DETERMINED BY THE EXPIRATION OF SEVEN YEARS OF UNEXPLAINED ABSENCE THE VERY FACT THAT IN THE SAME STATUTES SEC. 312 (B) SPECIFICALLY FIXES THE CONDITIONS AND PRESCRIBES THE PROCEDURE GOVERNING THE FILING OF CLAIMS OF DEPENDENTS OF VETERANS WHOSE DATE OF DEATH IS DETERMINED BY THE EXPIRATION OF SEVEN YEARS OF UNEXPLAINED ABSENCE, IS INDICATION ENOUGH THAT SECTION 604 (B) WAS INTENDED TO RELATE TO THE LARGE GENERAL CLASS OF CLAIMS WHERE THE DATE OF THE VETERAN IS DEFINITELY KNOWN. IN OTHER WORDS, THE CONGRESS HAS SINGLED OUT THE SMALL SPECIAL CLASS OF CLAIMS OF DEPENDENTS OF VETERANS WHOSE DEATH IS A MATTER OF DETERMINATION BY SEVEN YEARS OF UNEXPLAINED ABSENCE AND PROVIDED SPECIFICALLY THE CONDITIONS PRECEDENT TO THE FILING OF CLAIMS OF SUCH CLASS. THESE ARE EXCLUSIVE AND THE GENERAL PROVISIONS IN THE STATUTE GOVERNING THE GENERAL CLASS OF CLAIMS ARE NOT APPLICABLE. THE FUNDAMENTAL PRINCIPLE OF STATUTORY CONSTRUCTION REQUIRES THAT SOME EFFECT BE GIVEN TO EACH PORTION OF A STATUTE IF POSSIBLE WITHOUT RENDERING THE STATUTE INCONSISTENT OR ABSURD. THERE IS NO INCONSISTENCY OR ABSURDITY HERE, AND TO HOLD THAT SUCH CLAIMS AS ARE HERE INVOLVED MAY BE ADJUDICATED UNDER THE GENERAL TERMS OF THE STATUTE WOULD GIVE NO EFFECT TO THE PORTION OF SECTION 312 (B) REQUIRING THE FILING OF THE APPLICATION PRIOR TO EXPIRATION OF THE 7 YEAR PERIOD.

YOU STATE THAT "THE LEGISLATIVE HISTORY OF SEC. 312, SUBSECTION (B) DISCLOSES NO INTENTION TO RESTRICT THE OPERATION OF SECTION 312, SUBSECTION (A), AND THE LANGUAGE OF THIS SUBSECTION DOES NOT SEEM TO REQUIRE OR JUSTIFY SUCH INTERPRETATION.' BUT BE THAT AS IT MAY, THE TERMS OF SECTION 312 (B) ARE SO PLAIN AND FREE FROM AMBIGUITY THAT IT IS NOT NECESSARY TO RESORT TO THE LEGISLATIVE HISTORY TO ASCERTAIN ITS MEANING.

ON THE BASIS OF YOUR PRESENT SUBMISSION AND THE CONTROLLING STATUTE THE CLAIMS IN QUESTION ARE NOT PAYABLE.