B-141472, FEB. 5, 1960

B-141472, FEB. 5, 1960

TO FIRST LIEUTENANT JOHN E. HILLIARE, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 11, 1959, REGARDING THE RETIRED PAY SETTLEMENT MADE TO AND ACCEPTED BY YOU AS A RESULT OF THE CORRECTION OF YOUR MILITARY RECORDS PURSUANT TO SECTION 207 OF LEGISLATIVE REORGANIZATION ACT OF 1946 AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655.

UNDER THE CITED LEGISLATIVE REORGANIZATION ACT PROVISIONS, NOW CODIFIED IN SECTION 1552 OF TITLE 10 OF THE U.S.C. THE SECRETARY OF THE DEPARTMENT CONCERNED, UNDER PRESCRIBED PROCEDURES, MAY CORRECT ANY MILITARY RECORD OF THE DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. IF, AS A RESULT OF SUCH CORRECTION, AN AMOUNT IS FOUND DUE THE MEMBER CONCERNED, THE DEPARTMENT IS AUTHORIZED TO PAY THE CLAIM OF THE MEMBER FOR SUCH AMOUNT. THE LAW PROVIDES, HOWEVER, THAT NO PAYMENT MAY BE MADE UNDER ITS PROVISIONS OF A BENEFIT TO WHICH THE CLAIMANT MAY LATER BECOME ENTITLED UNDER THE LAWS AND REGULATIONS ADMINISTERED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS. UNDER THE LAW, THE MEMBER'S ACCEPTANCE OF THE DEPARTMENT'S SETTLEMENT OF HIS CLAIM FULLY SATISFIES THE CLAIM AND NO FURTHER PAYMENT MAY BE MADE THEREON.

THE RECORDS AVAILABLE TO US SHOW THAT YOU WERE SEPARATED FROM ACTIVE SERVICE ON OCTOBER 15, 1945. YOU QUALIFIED FOR VETERANS ADMINISTRATION DISABILITY COMPENSATION EFFECTIVE OCTOBER 16, 1945, AND DURING THE PERIOD FROM OCTOBER 16, 1945, TO JULY 31, 1954, RECEIVED PAYMENTS OF SUCH DISABILITY COMPENSATION TOTALING $12,858.35.

ON MARCH 25, 1954, THE ASSISTANT SECRETARY OF THE AIR FORCE, ACTING UNDER AUTHORITY OF THE AMENDED SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT DIRECTED THAT YOUR MILITARY RECORDS BE CORRECTED TO SHOW "THAT ON 15 OCTOBER 1945," YOU WERE INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PERMANENT PHYSICAL DISABILITY RESULTING FROM AN INCIDENT OF THE SERVICE INCURRED SUBSEQUENT TO AUGUST 20, 1942, AND SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY.

SUCH A CORRECTION DOES NOT SHOW THAT YOU WERE RETIRED FOR PHYSICAL DISABILITY UNDER PROCEDURES APPLICABLE TO REGULAR AIR FORCE MEMBERS. HOWEVER, THE ACT OF APRIL 3, 1939, AS AMENDED EFFECTIVE AUGUST 14, 1945, BY THE ACT OF JUNE 20, 1949, 63 STAT. 201, AS APPLICABLE PRIOR TO OCTOBER 1, 1949, PROVIDED THAT ALL MEMBERS OF THE AIR FORCE OF THE UNITED STATES OTHER THAN MEMBERS OF THE REGULAR AIR FORCE WHO, IF CALLED OR ORDERED INTO ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF 30 DAYS, SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE OR INJURY SHOULD BE ENTITLED TO THE SAME RETIREMENT PAY PROVIDED FOR MEMBERS OF CORRESPONDING GRADE AND LENGTH OF SERVICE OF THE REGULAR AIR FORCE. SUCH RETIREMENT BENEFITS ACCRUE TO INDIVIDUALS BY VIRTUE OF A CORRECTION OF THE MILITARY RECORDS LIKE THE CORRECTION IN YOUR CASE. COMP. GEN. 1. PRESUMABLY THE ADMINISTRATIVE SETTLEMENT OF YOUR RETIRED PAY CLAIM CREDITING YOU WITH RETIRED PAY RETROACTIVELY TO OCTOBER 16, 1945, THE DAY FOLLOWING YOUR SEPARATION FROM ACTIVE SERVICE, WAS BASED ON THE PROVISIONS OF THE ACT OF APRIL 3, 1939, AS AMENDED. SINCE SECTION 4 OF THE 1949 ACT PROVIDES THAT, IN THE CASE OF PERSONS ELECTING TO RECEIVE THE BENEFITS OF THAT ACT, THE AMOUNT OF ANY MONETARY BENEFITS, RECEIVED FOR ANY PERIOD SUBSEQUENT TO AUGUST 14, 1945, UNDER ANY PROVISION OF LAW PROVIDING BENEFITS FOR DISABILITY INCIDENT TO THE ACTIVE MILITARY SERVICE ON WHICH THE 1939 ACT BENEFITS WERE PREDICATED, SHALL BE DEDUCTED FROM THE 1939 ACT BENEFITS, ALL THE DISABILITY COMPENSATION PAYMENTS WHICH HAD BEEN RECEIVED BY YOU FROM THE VETERANS ADMINISTRATION NECESSARILY WERE DEDUCTED FROM THE RETIRED PAY DUE YOU FOR THE RETROACTIVE PERIOD.

THE ADMINISTRATIVE RETIRED PAY SETTLEMENT MADE IN YOUR CASE APPEARS TO HAVE BEEN COMPUTED IN STRICT ACCORDANCE WITH APPLICABLE RETIRED PAY PROVISIONS, AND NEITHER THE AIR FORCE NOR THIS OFFICE MAY AUTHORIZE THE PAYMENT TO YOU OF ANY "DISABILITY COMPENSATION," THE PAYMENT OF THAT BENEFIT BEING A MATTER WITHIN THE JURISDICTION OF THE VETERANS ADMINISTRATION. HENCE, WE COULD NOT HAVE AUTHORIZED THE PAYMENT TO YOU OF AN AMOUNT IN EXCESS OF THE NET RETIRED PAY PAYMENT MADE TO YOU BY THE AIR FORCE SETTLEMENT. ACCORDINGLY, WE TRUST YOU WILL UNDERSTAND THAT OUR OFFICE CANNOT MAKE ANY FURTHER PAYMENT TO YOU.

IT MAY BE POINTED OUT FOR YOUR INFORMATION THAT, ON THE BASIS OF THE CORRECTED RECORD AND SETTLEMENT ACTION, YOU NOW APPEAR TO BE IN THE POSITION OF A PERSON RECEIVING RETIRED PAY WHO HAS BEEN QUALIFIED FOR DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION FROM THE DATE OF HIS SEPARATION FROM ACTIVE SERVICE. IN THIS RESPECT, SECTION 3105 OF TITLE 38 OF THE UNITED STATES CODE PROVIDES THAT ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW PROVIDING RETIRED OR RETIREMENT PAY TO PERSONS IN THE ARMED FORCES AND WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED OR RETIREMENT PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON THE FILING BY SUCH PERSON WITH THE DEPARTMENT BY WHICH SUCH RETIRED OR RETIREMENT PAY IS PAID OF A WAIVER OF SO MUCH OF HIS RETIRED PAY OR RETIREMENT PAY AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION. AS INDICATED ABOVE, HOWEVER, QUESTIONS RELATING TO PAYMENT OF VETERANS' BENEFITS COME UNDER THE VETERANS' ADMINISTRATION AND NOT OUR OFFICE AND WE HAVE NO JURISDICTION IN SUCH MATTERS. IF YOU CARE TO PURSUE THIS ASPECT OF THE MATTER, WE SUGGEST THAT YOU WRITE TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, VETERANS' ADMINISTRATION, WASHINGTON 25, D.C. ..END :