B-151863, AUG. 26, 1963, 43 COMP. GEN. 213

B-151863, AUG. 26, 1963, 43 COMP. GEN. 213

PAY - RETIRED - HOSPITALIZATION, ETC., IN VETERANS FACILITIES - REDUCTION. PAY - RETIRED - HOSPITALIZATION, ETC., IN VETERANS FACILITIES - REDUCTION AN ENLISTED MEMBER OF THE MARINE CORPS WITHOUT DEPENDENTS WHO WAS HOSPITALIZED IN A VETERANS ADMINISTRATION HOSPITAL FOR A PERIOD BEFORE PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST IS NOT CONSIDERED A VETERAN FOR RETIRED PAY REDUCTION PURPOSES UNDER 38 U.S.C. 3203 (A) (1) UNTIL PLACEMENT ON THE RETIRED LIST AND THE SEVENTH CALENDAR MONTH FOLLOWING THE MONTH OF ADMISSION WHEN THE VETERAN'S RETIRED PAY MUST BE REDUCED FOR TREATMENT AND CARE IS COMPUTED FROM THE MONTH FOLLOWING HIS PLACEMENT ON THE TEMPORARY RETIRED LIST. A MENTALLY INCOMPETENT RETIRED MEMBER OF THE UNIFORMED SERVICES WHOSE WIFE--- HIS ONLY DEPENDENT--- DIED 10 YEARS AFTER HIS ADMISSION TO A VETERANS ADMINISTRATION HOSPITAL IS NOT CONSIDERED TO BE A VETERAN WITHOUT DEPENDENTS FOR RETIRED PAY REDUCTION PURPOSES UNDER 38 U.S.C. 3203 (B) (1) UNTIL HIS WIFE'S DEATH AND THE VETERAN'S RETIRED PAY IS NOT FOR REDUCTION UNTIL THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE MONTH IN WHICH HIS WIFE DIED.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 26, 1963:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1963, REQUESTING (UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION DO- MC-712) A DECISION AS TO THE RETIRED PAY PROPERLY PAYABLE TO LANCE CORPORAL DONALD L. ZULFER, 1886618, USMC, RETIRED, AND SECOND LIEUTENANT WILLIAM A. ROLFF, 01210, USMCR, RETIRED.

YOU STATE THAT WHILE SERVING AS A MEMBER OF THE REGULAR MARINE CORPS CORPORAL ZULFER WAS HOSPITALIZED ON AUGUST 27, 1962, IN THE VETERANS ADMINISTRATION HOSPITAL, HINES, ILLINOIS, AND HAS BEEN CONTINUOUSLY HOSPITALIZED THERE SINCE THAT DATE; THAT HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS ON OCTOBER 1, 1962, UNDER 10 U.S.C. 1202, WITH MONTHLY RETIRED PAY OF $93; AND THAT HE HAS NO WIFE, CHILD OR DEPENDENT PARENT. IT IS FURTHER STATED THAT NO PORTION OF HIS RETIRED PAY WAS WITHHELD UNDER 38 U.S.C. 3203 (A) (1) DURING THE PERIOD MARCH 1 THROUGH APRIL 30, 1963, AND THAT HE WAS NOT A VETERAN FOR THE PURPOSES OF SECTION 3203 (A) (1) UNTIL THE DATE OF HIS RETIREMENT, OCTOBER 1, 1962. YOU EXPRESS DOUBT AS TO WHETHER HE MUST HAVE BEEN HOSPITALIZED FOR THE FULL SPECIFIED PERIOD AS A "VETERAN" BEFORE THE 50 PERCENT REDUCTION OF HIS RETIRED PAY UNDER SECTION 3203 (A) (1) BECAME EFFECTIVE.

SUBSECTION (A) (1), 38 U.S.C. 3203 (1958 ED., SUPP. IV), 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 CALENDAR 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 OR $30, WHICHEVER IS GREATER.

WHILE THE PROVISIONS OF SECTION 3203 (A) (1), REDUCING THE AMOUNT OF COMPENSATION OR RETIREMENT PAY OTHERWISE PAYABLE AFTER HOSPITALIZATION FOR APPROXIMATELY 7 MONTHS, REFER TO A PERIOD FOLLOWING THE "MONTH OF ADMISSION," THEY ARE ADDRESSED TO THE SITUATION OF A PERSON WHO IS HOSPITALIZED AS A VETERAN. UNTIL HE ACHIEVES SUCH STATUS HE IS NOT COVERED BY THOSE PROVISIONS. IT NECESSARILY FOLLOWS THAT THE 7-MONTH PERIOD INCLUDES ONLY THAT CONTINUOUS PERIOD DURING WHICH THE HOSPITALIZED MEMBER HELD THE STATUS OF A VETERAN ENTITLED TO COMPENSATION OR RETIREMENT PAY, AND NOT THAT TIME DURING WHICH HE WAS IN A STATUS ENTITLING HIM TO ACTIVE DUTY PAY. DESPITE THE REFERENCE TO THE MONTH OF ADMISSION, WE FIND NO BASIS FOR A CONCLUSION THAT THE REDUCTION PROVISION WAS INTENDED TO APPLY ONLY WHEN THE PERSON CONCERNED WAS A VETERAN WHEN HE ENTERED THE HOSPITAL. SINCE CORPORAL ZULFER DID NOT BECOME A VETERAN UNTIL HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 1, 1962 (41 COMP. GEN. 224), HIS RETIRED PAY BECAME SUBJECT TO REDUCTION UNDER THE CITED PROVISIONS OF LAW EFFECTIVE MAY 1, 1963.

IT IS STATED THAT LIEUTENANT ROLFF HAS BEEN A RETIRED MEMBER OF THE MARINE CORPS RESERVE SINCE JULY 1920; THAT HE HAS BEEN HOSPITALIZED IN A VETERANS ADMINISTRATION HOSPITAL SINCE JUNE 1950; THAT HIS WIFE DIED ON JUNE 18, 1961; THAT HE HAS NO OTHER DEPENDENT FOR THE PURPOSES OF 38 U.S.C. 3203 (A) (1); THAT HE IS CONSIDERED TO BE MENTALLY INCAPABLE OF MANAGING HIS AFFAIRS AND A TRUSTEE HAS BEEN APPOINTED UNDER CH. 11, TITLE 37, U.S. CODE, TO RECEIVE HIS MONTHLY RETIRED PAY OF $227.87; AND THAT NO PORTION OF THAT AMOUNT WAS WITHHELD UNDER 38 U.S.C. 3203 (A) (1) AND (B) (1) DURING THE PERIOD JUNE 19, 1961, THROUGH DECEMBER 31, 1961.

SECTION 3203 (B) (1) PROVIDES THAT THE COMPENSATION OR RETIREMENT PAY OF A MENTALLY INCOMPETENT VETERAN WITHOUT WIFE, CHILD OR DEPENDENT PARENT IS SUBJECT TO THE TEMPORARY WITHHOLDING PROVISION OF SECTION 3203 (A) (1). SINCE LIEUTENANT ROLFF DID NOT BECOME A VETERAN WITHOUT DEPENDENTS UNTIL HIS WIFE DIED, THE PROVISIONS OF SECTION 3203 (A) (1) AND (B) (1) DID NOT BECOME APPLICABLE UNTIL THAT TIME. IN ORDER TO GIVE EFFECT TO THE "SEVENTH CALENDAR MONTH" PROVISION IN SUCH CIRCUMSTANCE, IT IS BELIEVED THAT HIS RETIRED PAY SHOULD NOT BE REDUCED UNTIL THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE MONTH IN WHICH HIS WIFE DIED. COMPARE THE PROVISIONS OF PARAGRAPH 25.14 (C), CHANGE 9, DEPARTMENT OF VETERANS BENEFITS MANUAL M21-1.