B-147039, OCTOBER 2, 1961, 41 COMP. GEN. 224

B-147039, OCTOBER 2, 1961, 41 COMP. GEN. 224

PAY - RETIRED - HOSPITALIZATION, ETC., IN VETERANS FACILITIES - REDUCTION A RETIRED AIR FORCE ENLISTED MAN WITHOUT DEPENDENTS WHO WAS IN RECEIPT OF RETIRED PAY WHEN HE WAS ADMITTED TO A VETERANS ADMINISTRATION FACILITY WHERE HE HAS BEEN HOSPITALIZED FOR MORE THAN 7 MONTHS IS CONSIDERED TO BE A "VETERAN" FOR THE PURPOSES OF 38 U.S.C. 3203, WHICH PROVIDES FOR A REDUCTION IN COMPENSATION OR RETIREMENT PAY FOR VETERANS WITHOUT DEPENDENTS WHO ARE HOSPITALIZED FOR PERIODS BEYOND SEVEN MONTHS, AND ALTHOUGH THE RETIRED PAY WITHHOLDING PROVISIONS IN SECTION 4 OF THE ACT OF JULY 19, 1939--- A DERIVATIVE STATUTE--- WERE SPECIFICALLY REPEALED BY SECTION 2202 (151) OF THE VETERANS' BENEFITS ACT OF 1957, THEY HAD PREVIOUSLY BEEN SUPERSEDED BY THE ACT OF AUGUST 8, 1946, WHICH CONTINUED ONLY THE HOSPITALIZATION AND DOMICILIARY CARE PROVISIONS OF THE 1939 ACT; THEREFORE, SINCE THE SPECIFIC REPEAL DID NOT AFFECT THE WITHHOLDING PROVISIONS, THE RETIRED PAY OF THE AIR FORCE MEMBER WHOSE STATUS COMES WITHIN THE SCOPE OF 38 U.S.C. 3203 IS REQUIRED TO BE WITHHELD DURING PROLONGED PERIODS OF HOSPITALIZATION IN A VETERANS FACILITY.

TO COLONEL N. O. WAHLSTROM, DEPARTMENT OF THE AIR FORCE, OCTOBER 2, 1961:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1961, REQUESTING DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A VOUCHER (RECEIVED WITH YOUR LETTER) STATED IN FAVOR OF TECHNICAL SERGEANT CHARLES J. ANDERSON, U.S. AIR FORCE, RETIRED. THE AMOUNT OF THE VOUCHER REPRESENTS RETIRED PAY WITHHELD UNDER AUTHORITY OF 38 U.S.C. 3203, DURING THE PERIOD JANUARY 1 TO JUNE 30, 1961, INCLUSIVE. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF-601 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT ANDERSON WAS RETIRED MAY 23, 1960, AS PROVIDED IN 10 U.S.C. 1201 AND 1372, WITH A 40 PERCENTUM DISABILITY RATING, THAT HE IS ENTITLED TO RETIRED PAY AT THE RATE OF $145 PER MONTH (BASED ON 20 YEARS 2 MONTHS AND 1 DAY OF ACTIVE SERVICE) AND THAT HIS RETIRED PAY WAS REDUCED BY ONE-HALF ($72.50 PER MONTH) EFFECTIVE JANUARY 1, 1961, THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING HIS ADMISSION TO THE VETERANS ADMINISTRATION HOSPITAL IN DANVILLE, ILLINOIS.

SUBSECTION (A) (1), 38 U.S.C. 3203, IN PERTINENT PART PROVIDES THAT WHEN HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE IS BEING FURNISHED BY THE VETERANS ADMINISTRATION TO ANY VETERAN HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT, ANY COMPENSATION OR RETIREMENT PAY OTHERWISE PAYABLE SHALL CONTINUE WITHOUT REDUCTION UNTIL THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE MONTH OF ADMISSION OF SUCH VETERAN FOR TREATMENT OR CARE. IF TREATMENT OR CARE EXTENDS BEYOND THAT PERIOD, THE COMPENSATION OR RETIREMENT PAY MAY NOT EXCEED 50 PERCENT OF THE AMOUNT OTHERWISE PAYABLE. SUBSECTION (A) (1) FURTHER PROVIDES THAT THE AMOUNT OF COMPENSATION OR RETIREMENT PAY WHICH HAS BEEN SO WITHHELD SHALL BE PAID TO THE VETERAN IN A LUMP SUM IMMEDIATELY FOLLOWING AN APPROVED RELEASE FROM SUCH TREATMENT OR CARE, OR UNDER THE CONDITIONS SPECIFIED AT THE EXPIRATION OF 6 MONTHS AFTER TERMINATION OF TREATMENT OR CARE.

YOU EXPRESS DOUBT AS TO THE APPLICABILITY OF THE WITHHOLDING PROVISIONS OF 38 U.S.C. 3203 WITH RESPECT TO THE RETIRED PAY OF TECHNICAL SERGEANT ANDERSON, BECAUSE SECTION 2202 (151) OF THE VETERANS' BENEFITS ACT OF 1957, 71 STAT. 169, REPEALED, EFFECTIVE AS OF JANUARY 1, 1958, SECTION 4 OF THE ACT OF JULY 19, 1939, 53 STAT. 1070, 38 U.S.C. 706B (1952 USED.). THE 1939 LAW PROVIDED THAT, IN THE ADMINISTRATION OF LAWS PERTAINING TO VETERANS, RETIRED OFFICERS AND ENLISTED MEN OF THE ARMY, AIR FORCE, NAVY, MARINE CORPS, AND COAST GUARD, WHO HAD SERVED HONORABLY DURING A WAR PERIOD WOULD BE ENTITLED TO HOSPITALIZATION AND DOMICILIARY CARE IN THE SAME MANNER AND TO THE SAME EXTENT AS VETERANS OF ANY WAR FOR WHOM HOSPITALIZATION OR DOMICILIARY CARE BY THE VETERANS ADMINISTRATION WAS AUTHORIZED. THE EXTENSION OF SUCH BENEFITS WAS, HOWEVER, EXPRESSLY MADE SUBJECT TO THOSE PROVISIONS OF PARAGRAPH VI (A) OF VETERANS REGULATION NUMBERED 6 (C), WHICH PROVIDED FOR REDUCTION OF MONETARY BENEFITS TO VETERANS WITHOUT WIFE, CHILD, OR DEPENDENT PARENT WHILE BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL, OR DOMICILIARY CARE. THE PROVISIONS OF PARAGRAPH VI (A) WERE REPEALED BY SECTION 1 OF THE ACT OF AUGUST 8, 1946, 60 STAT. 908, AND SUPERSEDED BY THE PROVISIONS OF THAT SAME ACT WHICH WERE CODIFIED AS 38 U.S.C. 739 (1946 USED.), SECTION 1503 OF THE VETERANS' BENEFITS ACT OF 1957, 71 STAT. 137, SUPERSEDED 38 U.S.C. 739, AND IN TURN HAS SINCE BEEN REPLACED BY THE STATUTORY PROVISIONS OF 38 U.S.C. 3203 AS ENACTED BY THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1234. SINCE THE PROVISIONS OF THE 1939 LAW WERE REPEALED EFFECTIVE AS OF JANUARY 1, 1958, YOU EXPRESS THE VIEW THAT THERE MAY NOT HAVE BEEN ANY STATUTORY AUTHORITY SINCE THAT DATE WHEREBY RETIRED OFFICERS AND ENLISTED PERSONNEL ARE BROUGHT WITHIN THE SCOPE OF THE PROVISIONS OF 38 U.S.C. 3203. IN THAT CONNECTION YOU STATE:

* * * THE MANDATORY PROVISO REQUIRING WITHHOLDING OF MILITARY RETIRED PAY DURING SUCH HOSPITALIZATION FORMERLY REQUIRED BY SEC. 4 OF THE ACT OF JULY 19, 1939, SUPRA, WAS OMITTED AND IS THEREFORE IN OUR OPINION NO LONGER A CONDITION OF VA HOSPITALIZATION ENTITLEMENT.

INSOFAR AS HERE MATERIAL SECTION 4 OF THE 1939 ACT DID TWO THINGS: (1) IT BROADENED THE RIGHT OF RETIRED MILITARY PERSONNEL WITH RESPECT TO HOSPITALIZATION AND DOMICILIARY CARE IN VETERANS ADMINISTRATION FACILITIES (SEE 19 COMP. GEN. 431) AND (2) MADE THE RETIRED PAY OF RETIRED MILITARY PERSONNEL WITHOUT DEPENDENTS SUBJECT TO THE WITHHOLDING PROVISIONS OF THE THEN CURRENT VETERANS REGULATIONS. AS PREVIOUSLY STATED THE WITHHOLDING PROVISIONS OF SECTION 4 OF THE 1939 ACT AND THE PERTINENT VETERANS REGULATIONS WERE SUPERSEDED BY THE ACT OF AUGUST 8, 1946. 27 COMP. GEN. 699. THE WITHHOLDING PROVISIONS OF THE 1946 ACT WERE SUPERSEDED BY SECTION 1503 OF THE VETERANS' BENEFITS ACT OF 1957, 71 STAT. 137, WHICH IN TURN WAS SUPERSEDED BY THE PROVISIONS OF 38 U.S.C. 3203 AS ENACTED BY THE ACT OF SEPTEMBER 2, 1958.

THE PROVISIONS FOR HOSPITALIZATION AND DOMICILIARY CARE OF RETIRED MILITARY PERSONNEL CONTAINED IN SECTION 4 OF THE 1939 ACT WERE NOT AFFECTED BY THE ACT OF AUGUST 8, 1946, BUT REMAINED IN EFFECT UNTIL THEY WERE REPEALED BY THE 1957 ACT, WHICH SIMULTANEOUSLY REENACTED SUCH PROVISIONS WITH RESPECT TO RETIRED MILITARY PERSONNEL. THE TERM "VETERAN" WAS DEFINED IN SECTION 101 (2) OF THE VETERANS' BENEFITS ACT OF 1957, 71 STAT. 88, AS MEANING "A PERSON WHO SERVED IN THE ACTIVE MILITARY, NAVAL, OR AIR SERVICE, AND WHO WAS DISCHARGED OR RELEASED THEREFROM UNDER CONDITIONS OTHER THAN DISHONORABLE.' IN SECTION 101 (11), 71 STAT. 89, THE TERM "MILITARY, NAVAL, OR AIR SERVICE" WAS DEFINED AS MEANING "SERVICE IN THE UNITED STATES ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF.' SECTION 101 (13), 71 STAT. 89, DEFINED THE TERM "VETERAN OF ANY WAR" AS MEANING "ANY VETERAN WHO SERVED IN THE ACTIVE MILITARY, NAVAL, OR AIR SERVICE DURING A PERIOD OF WAR.' SECTION 106 OF THE ACT, 71 STAT. 91, PROVIDED THAT " FOR THE PURPOSES OF ALL LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, RETIREMENT OF AN INDIVIDUAL FROM THE MILITARY, NAVAL, OR AIR SERVICE SHALL BE CONSIDERED TO BE A DISCHARGE OR RELEASE FROM SUCH SERVICE.' SEE THE CORRESPONDING PROVISIONS OF LAW NOW CONTAINED IN CLAUSES (2), (12); (18) AND (24), 38 U.S.C. 101.

INASMUCH AS THE WITHHOLDING PROVISIONS OF SECTION 4 OF THE 1939 ACT WERE SUPERSEDED BY THE PROVISIONS OF THE 1946 ACT AND ONLY THE HOSPITALIZATION AND DOMICILIARY CARE PROVISIONS OF THE 1939 ACT REMAINED IN EFFECT THEREAFTER (THESE LATTER PROVISIONS BEING LATER REPEALED AND SUPERSEDED BY THE PROVISIONS OF THE 1957 AND 1958 ACTS RE ENACTING THE SAME), IT FOLLOWS THAT THE REPEAL OF SECTION 4 OF THE 1939 ACT BY THE 1957 ACT HAD NO EFFECT ON THE WITHHOLDING PROVISIONS OF LAW THEN IN EFFECT, WHICH PROVISIONS, ALSO REPEALED AND RE-ENACTED BY THE 1957 AND 1958 ACTS, ARE NOW SET FORTH IN 38 U.S.C. 3203.

UNDER THE SPECIFIC TERMS OF THE STATUTORY PROVISIONS REFERRED TO ABOVE, RETIRED OFFICERS AND ENLISTED PERSONNEL ARE REQUIRED TO BE CONSIDERED AS "VETERANS" FOR THE PURPOSES OF THE VETERANS' BENEFITS ACT OF 1957 AND ALSO FOR THE PURPOSES OF THE PROVISIONS OF 38 U.S.C. 3203. ACCORDINGLY, THE RETIRED PAY OF ANY RETIRED OFFICER OR ENLISTED MEMBER WHOSE STATUS COMES WITHIN THE SCOPE OF THE PROVISIONS OF 38 U.S.C. 3203 IS REQUIRED TO BE WITHHELD TO THE EXTENT PRESCRIBED IN THOSE STATUTORY PROVISIONS.

THERE IS NO SHOWING THAT THE CONDITIONS SPECIFIED IN 38 U.S.C. 3203 FOR PAYMENT TO SERGEANT ANDERSON OF A LUMP SUM REPRESENTING THE AMOUNT WHICH HAS BEEN WITHHELD FROM HIS RETIRED PAY (BEGINNING WITH THE SEVENTH MONTH FOLLOWING THE MONTH OF HIS ADMISSION TO THE VETERANS ADMINISTRATION HOSPITAL IN DANVILLE, ILLINOIS) HAVE BEEN MET. HENCE, THERE IS NO AUTHORITY TO MAKE PAYMENT ON THE VOUCHER RECEIVED WITH YOUR LETTER AND THE VOUCHER WILL BE RETAINED HERE.