B-145179, AUG. 16, 1961

B-145179, AUG. 16, 1961

TO MR. EUGENE W. SPIKA:

REFERENCE IS MADE TO YOUR LETTER, AND ENCLOSURES, RECEIVED FEBRUARY 6, 1961, PRESENTING A CLAIM FOR DRILL PAY IN THE APPROXIMATE AMOUNT OF $100 FOR DRILLS ATTENDED IN 1950 AS A MEMBER OF THE 132ND AIRCRAFT CONTROL AND WARNING SQUADRON OF THE AIR NATIONAL GUARD, MINNEAPOLIS, MINNESOTA. OUR RECORDS SHOW THAT THIS SAME SERVICE FORMED THE BASIS OF A CLAIM WHICH WAS DISALLOWED BY OUR SETTLEMENT OF JULY 9, 1954, ADDRESSED TO YOU AT "6835 PALOMAR WAY, RIVERSIDE, CALIFORNIA.' YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE ACTION TAKEN IN THE SETTLEMENT.

FROM THE RECORDS NOW ON FILE, IT APPEARS THAT YOU JOINED THE MINNESOTA AIR NATIONAL GUARD EFFECTIVE FEBRUARY 7, 1949, AND AT THAT TIME WAIVED THE MONTHLY PAYMENTS OF DISABILITY COMPENSATION WHICH YOU HAD BEEN RECEIVING FROM THE VETERANS ADMINISTRATION. EXCEPT FOR THE PERIOD FEBRUARY 20-28, 1950, WAIVER OF THE DISABILITY COMPENSATION PAYMENTS CONTINUED THROUGH MARCH 27, 1950, AFTER WHICH YOU BEGAN RECEIVING THE PAYMENTS AT THE RATE OF $15 A MONTH. VOUCHER NO. 5234 COVERING THE DRILL PAY OF YOUR ORGANIZATION FOR THE PERIOD JUNE 1 TO AUGUST 31, 1950, SHOWS THAT YOU WERE NOT PAID FOR NINE DRILLS ATTENDED DURING THAT PERIOD FOR THE REASON THAT YOU WERE MORE IN RECEIPT OF DISABILITY COMPENSATION. WHILE THE CERTIFYING OFFICER STATED ON THE VOUCHER THAT YOU DID NOT RECEIVE OR CLAIM DISABILITY COMPENSATION FOR THE DAYS ON WHICH YOU ATTENDED DRILLS, THE CERTIFICATION DOES NOT APPEAR TO BE IN AGREEMENT WITH THE FACTS AS REPORTED BY THE VETERANS ADMINISTRATION TO THE EFFECT THAT YOU RECEIVED THE FULL MONTHLY COMPENSATION PAYMENTS FOR THE PERIOD COVERED BY VOUCHER NO. 5234 AND FOR THE SUBSEQUENT MONTHS OF SEPTEMBER, OCTOBER AND NOVEMBER DURING WHICH YOU ATTENDED 11 DRILLS AND WERE PAID THEREFOR ON VOUCHER NO. 11159, DECEMBER 1950 ACCOUNTS OF CAPTAIN F. E. HELLENGA, SYMBOL 225 213.

IT APPEARS FROM YOUR STATEMENTS THAT WHEN YOU WERE REFUSED PAYMENT ON PAYROLL VOUCHER NO. 5234, YOU REQUESTED YOUR PAY AND ALLOWANCES LESS ANY AMOUNT OF DISABILITY COMPENSATION YOU MAY HAVE RECEIVED FOR SUCH CORRESPONDING PERIODS OF SERVICE IN ACCORDANCE WITH SECTION 610 OF THE ACT OF OCTOBER 29, 1949, 63 STAT. 1018, AND SECTION 609 OF THE ACT OF SEPTEMBER 6, 1950, 64 STAT. 752, WHICH ACTS PROVIDED CERTAIN APPROPRIATIONS FOR THE FISCAL YEARS ENDING JUNE 30, 1950, AND JUNE 30, 1951.

EACH OF THE STATUTES PLAINLY STATES THAT IT SHALL NOT BE CONSTRUED TO PREVENT PAYMENT TO THE MEMBERS CONCERNED, WHO WAIVE OR RELINQUISH PENSION OR DISABILITY BENEFITS, FOR PERIODS OF ACTIVE DUTY, FIELD TRAINING, INSTRUCTION, OTHER DUTY OR DRILL, FOR WHICH HE MAY BE ENTITLED TO RECEIVE COMPENSATION PURSUANT TO LAW, AND THERE IS NOTHING IN THE LANGUAGE WHICH REQUIRES THE CONCLUSION THAT THE WAIVER OR ELECTION MUST BE MADE PRIOR TO THE PERFORMANCE OF THE SERVICE OR WITHIN ANY FIRST TIME THEREAFTER.

YOU PERFORMED SERVICES WITHIN THE PERIODS COVERED BY THE STATUTES FOR WHICH YOU WERE ENTITLED TO RECEIVE THE PRESCRIBED PAY AND ALLOWANCES. YOUR REQUEST FOR PAYMENT OF YOUR PAY AND ALLOWANCES LESS ANY AMOUNT OF DISABILITY COMPENSATION YOU MAY HAVE RECEIVED FOR SUCH CORRESPONDING PERIODS OF SERVICE IN EFFECT CONSTITUTED A WAIVER OR RELINQUISHMENT OF YOUR DISABILITY COMPENSATION. ACCORDINGLY, YOUR CASE COMES SQUARELY WITHIN THE STATUTES.

YOU ALSO TAKE EXCEPTION TO THE VIEW EXPRESSED BY THE NATIONAL GUARD BUREAU THAT YOU ARE NOT ENTITLED TO PAY FOR THE DRILLS ATTENDED FOR THE REASON THAT YOU SHOULD NOT HAVE BEEN ENROLLED IN THE SERVICE BECAUSE AIR NATIONAL GUARD REGULATIONS AT THAT TIME PROVIDED THAT PERSONS DRAWING DISABILITY COMPENSATION WERE NOT ELIGIBLE FOR ENLISTMENT, SUCH PROVISION HAVING BEEN REFERRED TO IN THE SETTLEMENT OF JULY 9, 1954. WHILE IT SEEMS THAT THE DRAWING OF SUCH COMPENSATION WAS ADMINISTRATIVELY CONSIDERED, AT THAT TIME, TO BE SUFFICIENT EVIDENCE OF DISQUALIFYING DISABILITY, LATER AND CURRENT REGULATIONS PROVIDE FOR THE ENLISTMENT OF THESE INDIVIDUALS. SEE ANGR 39-9, JANUARY 31, 1955, AND SUPERSEDING ISSUE OF NOVEMBER 21, 1957. THERE IS NOTHING IN THE RECORD TO INDICATE THAT YOU WERE NOT DULY ENROLLED AS A MEMBER OF THE AIR NATIONAL GUARD AND THERE IS NO INDICATION THAT YOUR INJURY INTERFERED WITH THE PROPER PERFORMANCE OF YOUR DUTIES. CONSEQUENTLY, EVEN THOUGH YOUR ENROLLMENT MAY HAVE BEEN CONTRARY TO AIR NATIONAL GUARD DIRECTIVES IN THAT RESPECT, IT IS NOT CONSIDERED THAT THIS NULLIFIED THE ENROLLMENT AND AS A MEMBER OF THE AIR NATIONAL GUARD YOU WERE ENTITLED TO PAY AND ALLOWANCES FOR THE DUTY PERFORMED. CF. UNITED STATES V. GRIMLEY, 137 U.S. 147.

ACCORDINGLY, OUR CLAIM DIVISION IS BEING INSTRUCTED TO ISSUE A SETTLEMENT IN YOUR FAVOR FOR DRILLS ATTENDED DURING JUNE, JULY AND AUGUST 1950. HOWEVER, IN THE ABSENCE OF ANY EVIDENCE SHOWING REDUCTION OF VETERANS ADMINISTRATION DISABILITY COMPENSATION PAYMENTS FOR THE DAYS ON WHICH AIR NATIONAL GUARD SERVICE WAS PERFORMED DURING THE PERIODS FEBRUARY 20-28, 1950, AND MARCH 28 TO NOVEMBER 30, 1950, DEDUCTION WILL BE MADE FOR SUCH COMPENSATION FOR ALL DAYS ON WHICH YOU ATTENDED DRILLS DURING THESE PERIODS.