B-156553, MAY 14, 1965, 44 COMP. GEN. 727

B-156553, MAY 14, 1965, 44 COMP. GEN. 727

PAY - RETIRED - WAIVER FOR VETERANS BENEFITS - WITHHOLDING DURING INELIGIBILITY FOR BENEFITS A HOSPITALIZED MENTALLY INCOMPETENT RETIRED MEMBER OF THE UNIFORMED SERVICES WHOSE CURATOR ON HIS BEHALF ELECTED IN LIEU OF RETIRED PAY COMPENSATION FROM THE VETERANS ADMINISTRATION UNDER 38 U.S.C. 3203, WHICH REQUIRES WITHHOLDING OF SUCH COMPENSATION FOR HOSPITALIZED INCOMPETENT VETERANS WHEN THEIR ESTATE EXCEEDS $1,500, UNTIL THE ESTATE IS REDUCED TO $500, DOES NOT AUTOMATICALLY BECOME ENTITLED TO THE WAIVED RETIRED PAY DURING THE PERIODS WHEN THE VETERAN'S ESTATE EXCEEDS THE LIMITATION IN THE ABSENCE OF WITHDRAWAL OF THE RETIRED PAY WAIVER BECAUSE A RIGHT TO RETIRED PAY ONCE WAIVED DOES NOT ACCRUE UNLESS THERE IS A TERMINATION OF THE RIGHT TO COMPENSATION AS DISTINGUISHED FROM A CONTINGENT WITHHOLDING AND, THEREFORE, PAYMENT OF RETIRED PAY WAIVED IN FAVOR OF COMPENSATION MAY NOT BE MADE TO THE CURATOR ON BEHALF OF THE MEMBER FOR THE PERIODS WHEN COMPENSATION WAS WITHHELD.

TO LIEUTENANT COLONEL P. M. CALLINAN, DEPARTMENT OF THE ARMY, MAY 14, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 22, 1965, FORWARDED HERE BY FIRST INDORSEMENT DATED APRIL 13, 1965, OF THE OFFICE, CHIEF OF FINANCE, REQUESTING AN ADVANCE DECISION CONCERNING PAYMENT ON A VOUCHER IN THE CASE OF PRIVATE RICHARD P. MICKENS, RA 18 416 562, RETIRED, STATED TO REPRESENT RETIRED PAY FOR THE PERIODS FEBRUARY 1, 1955 THROUGH DECEMBER 31, 1960, AND AUGUST 1, 1961, THROUGH JUNE 30, 1964. YOUR REQUEST HAS BEEN ALLOCATED D.O. NUMBER A 839, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PRIVATE MICKENS WAS PERMANENTLY RETIRED DUE TO 100 PERCENT DISABILITY ON JULY 1, 1953. HIS MOTHER, MRS. VIRGINIA MICKENS, AS HIS CURATOR, ELECTED COMPENSATION FROM THE VETERANS ADMINISTRATION IN LIEU OF RETIRED PAY EFFECTIVE JULY 1, 1953. THE HIBERNIA NATIONAL BANK OF NEW ORLEANS, APPOINTED CURATOR ON AUGUST 28, 1963, ELECTED COMPENSATION IN LIEU OF RETIRED PAY EFFECTIVE AUGUST 10, 1964. NO RETIRED PAY HAS BEEN PAID IN THE CASE OF PRIVATE MICKENS AND A STATEMENT RECEIVED FROM THE VETERANS ADMINISTRATION REGIONAL OFFICE, NEW ORLEANS, LOUISIANA, IN 1964 INDICATES THAT COMPENSATION WAS PAID PURSUANT TO 38 U.S.C. 3105 UNDER THE WAIVERS EXCEPT FOR THE PERIODS FEBRUARY 1, 1955, THROUGH DECEMBER 31, 1960, AND AUGUST 1, 1961, THROUGH JUNE 30, 1964, DURING WHICH PERIODS PAYMENTS WERE DISCONTINUED DUE TO THE LIMITATION CONTAINED IN 38 U.S.C. 3203 (B) (2). IT IS ASSUMED THAT HE HAS NEITHER A WIFE NOR CHILDREN AND THAT HE IS STILL A PATIENT AT A VETERANS ADMINISTRATION HOSPITAL.

UPON RECEIVING NOTICE OF THE NONPAYMENT OF COMPENSATION DURING THE PERIODS MENTIONED, CONSIDERATION WAS GIVEN TO RETROACTIVE PAYMENT OF ONE- HALF OF THE RETIRED PAY WITHHELD AT THAT TIME AND YOU HAVE FORWARDED A VOUCHER IN THE AMOUNT OF $3,731.21 COVERING ONE-HALF OF THE RETIRED PAY WHICH ACCRUED DURING SUCH PERIODS SUBSEQUENT TO MARCH 1, 1955, THE REMAINING AMOUNT BEING BEYOND THE 10-YEAR LIMITATION ON CLAIMS CONTAINED IN 31 U.S.C. 71A. IN VIEW OF THE TIME THAT HAS ELAPSED BETWEEN THE DATE OF DISCONTINUANCE OF VETERANS ADMINISTRATION COMPENSATION AND THE DATE ON WHICH THE RETIRED PAY DIVISION RECEIVED NOTICE THEREOF, YOU EXPRESS DOUBT AS TO WHETHER RETIRED PAY MAY BE PAID TO THE CURATOR AT THIS TIME, AND, IF SO, WHAT EFFECT PAYMENT WOULD HAVE UPON ENTITLEMENT TO GREATER VETERANS ADMINISTRATION BENEFITS WHICH MIGHT BE AWARDED AT A LATER DATE TO COVER THE SAME PERIODS.

WHILE 38 U.S.C. 3104 PERMITS ONLY ONE AWARD OF PENSION, COMPENSATION, RETIRED PAY, ETC., TO BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE, 38 U.S.C. 3105 ALLOWS ANY PERSON WITH DUAL ELIGIBILITY TO RECEIVE VETERANS' BENEFITS IN THE FORM OF PENSION OR COMPENSATION UPON EXECUTION OF A WAIVER OF "SO MUCH OF HIS RETIRED OR RETIREMENT PAY AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION.' SUCH A WAIVER DOES NOT DISTURB THE PERSON'S STATUS AS A RETIRED MEMBER AND IS EFFECTIVE ONLY AS TO THE AMOUNT OF RETIRED PAY WAIVED. HOWEVER, IN THE ABSENCE OF A WITHDRAWAL OF SUCH WAIVER, A RIGHT TO RETIRED PAY ONCE WAIVED DOES NOT AGAIN ACCRUE UNLESS THERE IS A TERMINATION OF THE RIGHT TO COMPENSATION AS DISTINGUISHED FROM A CONTINGENT WITHHOLDING THEREOF BY THE VETERANS ADMINISTRATION.

UNDER THE PROVISIONS OF 38 U.S.C. 3203 (B) (2) THE WITHHOLDING OF PAYMENTS OF PENSION, COMPENSATION OR EMERGENCY OFFICERS' RETIREMENT PAY IS REQUIRED IN ANY CASE IN WHICH AN INCOMPETENT VETERAN HAVING NEITHER WIFE NOR CHILDREN IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE WITHOUT CHARGE OR OTHERWISE BY THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF AND HIS ESTATE FROM ANY SOURCE EXCEEDS $1,500, UNTIL THE ESTATE IS REDUCED TO $500. SUCH WITHHOLDINGS DO NOT TERMINATE THE RIGHT OF THE VETERAN TO THE AMOUNTS SO WITHHELD AND THEY ARE PAYABLE UPON THE HAPPENING OF ONE OF THE CONTINGENCIES SET FORTH IN 38 U.S.C. 3203 WHICH AUTHORIZE SUCH ACTION.

SINCE THE WAIVER EFFECTIVE JULY 1, 1953, WAS NOT WITHDRAWN, IT REMAINED IN EFFECT DURING THE PERIODS FEBRUARY 1, 1955, THROUGH DECEMBER 31, 1960, AND AUGUST 1, 1961, THROUGH JUNE 30, 1964, AND WHILE THE COMPENSATION PAYABLE IN LIEU OF THE WAIVED RETIRED PAY WAS DISCONTINUED TEMPORARILY UNTIL MICKENS' ESTATE WAS REDUCED BELOW $500, HE DID NOT AUTOMATICALLY BECOME ENTITLED TO RECEIVE RETIRED PAY FOR THOSE PERIODS, SINCE THE CONTINGENCY WHICH WILL DETERMINE WHETHER OR NOT THE COMPENSATION WITHHELD WILL BE PAID HAS NOT YET OCCURRED. THERE IS NO PRESENT BASIS FOR PAYMENT OF ANY OF THE RETIRED PAY WAIVED IN FAVOR OF COMPENSATION FROM THE VETERANS ADMINISTRATION.

ACCORDINGLY, THE VOUCHER FORWARDED WITH YOUR REQUEST WILL BE RETAINED HERE.