B-150970, JULY 10, 1963, 43 COMP. GEN. 39

B-150970, JULY 10, 1963, 43 COMP. GEN. 39

PAY - RETIRED - WAIVER FOR VETERANS BENEFITS - TERMINATION DISABILITY COMPENSATION PAYMENTS WHICH HAD BEEN ELECTED BY THE GUARDIAN OF A HOSPITALIZED MENTALLY INCOMPETENT RETIRED COAST GUARD MEMBER UPON THE EXECUTION OF A WAIVER OF THE MEMBER'S RETIRED PAY BUT WHICH WERE BEING WITHHELD UNDER THE LIMITATION IN 38 U.S.C. 3203 (B) (2) AT THE TIME OF THE DEATH OF THE MEMBER BEFORE RELEASE FROM THE HOSPITAL ARE REGARDED AS FINALLY TERMINATED FROM THE DATE OF THE CESSATION OF PAYMENTS SINCE DEATH PRECLUDED PAYMENT; THEREFORE, THE RETIRED PAY WAIVER EXECUTED UNDER 38 U.S.C. 3105 IS INEFFECTIVE FROM THE TIME THE DISABILITY COMPENSATION PAYMENTS WERE WITHHELD AND RETIRED PAY MAY BE PAID AS PROVIDED IN 10 U.S.C. 2771.

TO C. C. GORDON, UNITED STATES COAST GUARD, JULY 10, 1963:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1963, WHICH WAS FORWARDED BY THE COMMANDANT, U.S. COAST GUARD, ON THAT DATE, WHEREIN YOU REQUEST A DETERMINATION AS TO WHETHER PAYMENT OF RETIRED PAY IN THE CASE OF WILLIAM G. BURGESS (101-476) FN, U.S. COAST GUARD, RETIRED, FOR THE PERIOD DECEMBER 1, 1959, THROUGH FEBRUARY 28, 1963, MAY BE PAID TO HIS GUARDIAN, ETHEL M. MCGUNIGLE. YOU STATE THAT MR. BURGESS RETIRED ON JULY 1, 1934, FOR PERMANENT PHYSICAL DISABILITY AND HAS BEEN CONFINED IN ST. ELIZABETHS HOSPITAL, WASHINGTON, D.C., SINCE THAT TIME; THAT MRS. MCGUNIGLE WAS APPOINTED GUARDIAN OF HER BROTHER ON JUNE 18, 1948; THAT WHILE RETIRED PAY CHECKS WERE MAILED TO HER THROUGH NOVEMBER 30, 1951, MR. BURGESS' RETIRED PAY WAS DISCONTINUED IN ITS ENTIRETY IN FAVOR OF VETERANS ADMINISTRATION COMPENSATION PAYMENTS EFFECTIVE DECEMBER 1, 1951; AND THAT HE HAS NOT BEEN PAID ANY MONEY FROM THE U.S. COAST GUARD FROM DECEMBER 1, 1951, THROUGH FEBRUARY 28, 1963. IT IS ASSUMED THAT PAYMENT OF RETIRED PAY WAS DISCONTINUED AS A RESULT OF A WAIVER OF SUCH PAY BY HIS GUARDIAN UNDER 38 U.S.C. 26C (1946 ED.).

IT IS FURTHER STATED THAT THE VETERANS ADMINISTRATION HAS NOTIFIED MRS. MCGUNIGLE AND THE U.S. COAST GUARD THAT PAYMENTS OF COMPENSATION FOR MR. BURGESS WERE DISCONTINUED AFTER NOVEMBER 30, 1959, DUE TO THE FACT THAT HIS ESTATE WAS IN EXCESS OF $1,500 AND THAT FURTHER COMPENSATION PAYMENTS MAY NOT BE MADE UNTIL HIS ESTATE IS REDUCED TO $500. SUCH ACTION APPARENTLY WAS TAKEN UNDER 38 U.S.C. 3203 (B) (2).

THE ACT OF MAY 27, 1944, CH. 209, 58 STAT. 230 (38 U.S.C. 26C, 1946 ED., NOW CODIFIED IN 38 U.S.C. 3105), PROVIDED IN MATERIAL PART THAT ANY PERSON RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE, AND WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON FILING WITH THE DEPARTMENT BY WHICH SUCH RETIRED PAY IS PAID OF A ,WAIVER OF SO MUCH OF HIS RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION.' SINCE THE AMOUNT OF RETIRED PAY WHICH IS SUBJECT TO WAIVER IS LIMITED TO AN AMOUNT WHICH IS EQUAL TO THE COMPENSATION TO WHICH HE IS ENTITLED FROM THE VETERANS ADMINISTRATION, IT APPEARS THAT IF THAT AGENCY TERMINATES THE COMPENSATION PAYABLE ON BEHALF OF A MENTALLY INCOMPETENT MEMBER THE WAIVER OF HIS RETIRED PAY BECOMES INEFFECTIVE. SEE 28 COMP. GEN. 484. HOWEVER, FOR SUCH RESULT TO FOLLOW, TERMINATION OF THE COMPENSATION PAYMENTS MUST BE COMPLETE AND UNCONDITIONAL, AS DISTINGUISED FROM A TEMPORARY OR CONTINGENT WITHHOLDING FOR PAYMENT AT A LATER TIME. 38 U.S.C. 3203 (B) (2) PROVIDES FOR A LUMP-SUM PAYMENT TO THE VETERAN OF THE COMPENSATION WITHHELD UNDER AUTHORITY THEREOF, FOLLOWING A FINDING THAT HE IS MENTALLY COMPETENT, BUT IT IS PROVIDED FURTHER THAT IF HE DIES BEFORE PAYMENT TO HIM IS ACCOMPLISHED NO PART THEREOF MAY BE PAID.

DURING THE COURSE OF OUR CONSIDERATION OF YOUR SUBMISSION, INFORMATION WAS RECEIVED THAT MR. BURGESS DIED ON MARCH 17, 1963, WHILE STILL A PATIENT AT ST. ELIZABETHS HOSPITAL. HENCE, THE QUESTION NOW TO BE DECIDED IS WHETHER THE FINAL LOSS OF THE RIGHT TO COMPENSATION WHICH HAD BEEN WITHHELD BY THE VETERANS ADMINISTRATION WHILE THE MEMBER WAS HOSPITALIZED MAKES THE WAIVER CEASE TO BE EFFECTIVE AND PERMITS PAYMENT OF RETIRED PAY WHICH THERETOFORE HAD BEEN WAIVED UNDER THE PROVISIONS OF THE ACT OF MAY 27, 1944, AND 38 U.S.C. 3105.

WE HELD IN 28 COMP. GEN. 484 THAT TO BE ENTITLED TO PENSION OR COMPENSATION OTHERWISE PAYABLE A RETIRED PERSON MUST WAIVE SO MUCH OF HIS RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO THE AMOUNT OF PENSION OR COMPENSATION TO WHICH HE IS ENTITLED. WE HELD FURTHER THEREIN THAT THE EFFECT OF THE ACT OF MAY 27, 1944, WAS TO PERMIT A RETIRED PERSON TO ELECT TO RECEIVE VETERANS' BENEFITS WITHOUT TERMINATING THE STATUS GIVING RISE TO THE RIGHT TO RETIRED PAY. THAT DECISION INDICATES THAT IF THE VETERANS ADMINISTRATION EITHER REDUCES, OR STOPS ALTOGETHER, THE PAYMENT OF PENSION OR COMPENSATION WHICH A RETIRED PERSON HAS BEEN RECEIVING BY VIRTUE OF A WAVIER OF RETIRED PAY EXECUTED PURSUANT TO THE ACT OF MAY 27, 1944, THE RETIRED PAY OF SUCH RETIRED PERSON MAY BE INCREASED AS MAY BE NECESSARY TO CONTINUE PAYMENT TO HIM IN AN AMOUNT EQUAL TO THE FULL AMOUNT OF RETIRED PAY TO WHICH HE MAY BE ENTITLED.

GENERALLY, ONCE RETIRED PAY IS WAIVED, A RIGHT TO AGAIN RECEIVE SUCH PAY CAN ACCRUE ONLY IN THE EVENT OF TERMINATION, AS DISTINGUISHED FROM A CONTINGENT WITHHOLDING, OF COMPENSATION BY THE VETERANS ADMINISTRATION,OR BY A WITHDRAWAL OF THE WAIVER. NEITHER THE LANGUAGE OF THE ACT OF MAY 27, 1944, NOR THAT OF 38 U.S.C. 3105, PROVIDES FOR AN UNCONDITIONAL WAIVER OF RETIRED PAY. THOSE PROVISIONS MERELY PROVIDE THAT A RETIRED PERSON SHALL BE ENTITLED TO RECEIVE PENSION OR COMPENSATION UPON THE EXECUTION OF A WAIVER OF SO MUCH OF HIS RETIRED PAY AS IS EQUAL TO THE COMPENSATION TO WHICH HE IS ENTITLED. THEREFORE, IT APPEARS THAT WHERE A RETIRED PERSON FILES A WAIVER SO THAT HE MAY RECEIVE DISABILITY COMPENSATION AND THAT COMPENSATION IS WITHHELD UNDER THE PROVISIONS OF 38 U.S.C. 3203 (B) (2) AND LATER BECOMES UNPAYABLE BECAUSE OF THE MEMBER'S DEATH BEFORE RELEASE FROM THE HOSPITAL, NO RIGHT TO COMPENSATION MATURED FOR THE PERIOD IT WAS WITHHELD AND NOT PAID, AND HIS RIGHT TO RETIRED PAY WAS NOT FINALLY WAIVED FOR THAT PERIOD. 28 COMP. GEN. 484. SINCE THE PAYMENT OF THE COMPENSATION FOR WHICH MR. BURGESS' GUARDIAN WAIVED HIS RETIRED PAY AND WHICH WAS BEING WITHHELD UNDER THE LIMITATION PROVIDED IN 38 U.S.C. 3203 (B) (2) IS NOW PRECLUDED BY THAT PROVISION OF LAW, IT FOLLOWS THAT HIS RIGHT TO RETIRED PAY WAS NOT WAIVED FROM THE DATE OF CESSATION OF COMPENSATION PAYMENTS AND THE AMOUNT OF SUCH RETIRED PAY IS SUBJECT TO DISBURSEMENT AS PROVIDED IN 10 U.S.C. 2771. IT SHOULD BE NOTED THAT MR. BURGESS' DEATH TERMINATED THE POWERS AND DUTIES OF MRS. MCGUNIGLE AS HIS GUARDIAN, EXCEPT THOSE NECESSARILY INVOLVED IN THE ACCOUNTING AND SETTLEMENT OF THE GUARDIANSHIP PROCEEDING.

THE VOUCHER STATED IN FAVOR OF MRS. MCGUNIGLE AS GUARDIAN OF MR. BURGESS WILL BE RETAINED HERE.