B-159901, OCTOBER 31, 1966, 46 COMP. GEN. 375

B-159901, OCTOBER 31, 1966, 46 COMP. GEN. 375

VETERANS - HOSPITALIZATION, ETC. - REDUCTION OF RETIREMENT PAY. UNDER THE PROVISIONS OF 38 U.S.C. 3203 (A) (1) PRESCRIBING THE REDUCTION OF THE RETIREMENT PAY OF MILITARY PERSONNEL FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE VETERANS ADMINISTRATION, WHEN A VETERAN IS GRANTED AUTHORITY TO BE TEMPORARILY ABSENT FROM A HOSPITAL ON A TRIAL VISIT FOR 30 DAYS OR MORE, PAYMENT OF RETIREMENT PAY IN THE FULL AMOUNT IS EFFECTIVE THE DAY FOLLOWING THE DATE OF DEPARTURE FROM THE HOSPITAL, THE REDUCTION OF RETIREMENT PAY TO RECOMMENCE ON THE DATE THE VETERAN RETURNS TO THE HOSPITAL, AND BEFORE A VETERAN MAY BE REFUNDED THE AMOUNTS WITHHELD FROM HIS RETIREMENT PAY UPON DISCHARGE OR TERMINATION OF TREATMENT OR CARE THE CONDITIONS SPECIFIED IN SECTION 3203 MUST BE MET. VETERANS - HOSPITALIZATION, ETC. - REDUCTION OF RETIREMENT PAY. WHETHER A VETERAN RECEIVING HOSPITAL TREATMENT, INSTITUTIONAL, OR DOMICILIARY CARE BY THE VETERANS ADMINISTRATION WHO CLAIMS A PARENT IS PARTIALLY DEPENDENT UPON HIM IS SUBJECT TO THE REDUCTION IN RETIREMENT PAY REQUIREMENT PRESCRIBED FOR VETERANS WITHOUT DEPENDENTS PURSUANT TO 38 U.S.C. 3203 (A) (1), IS FOR RESOLUTION ON THE QUESTION OF DEPENDENCY, AN ISSUE FOR DETERMINATION BY THE ADMINISTRATOR OF VETERANS AFFAIRS IN EACH INDIVIDUAL CASE. VETERANS - HOSPITALIZATION, ETC. - REDUCTION OF RETIREMENT PAY. A RETIRED MEMBER OF THE UNIFORMED SERVICES DISCHARGED FROM THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE WHILE RECEIVING HOSPITAL TREATMENT BY THE VETERANS ADMINISTRATION AND SUBJECT TO RETIREMENT PAY REDUCTIONS UNDER 38 U.S.C. 3203 (A) (1) SHOULD NOT BE REFUNDED THE RETIREMENT PAY AMOUNTS WITHHELD FROM HIS RETIREMENT PAY UNTIL HE IS RELEASED FROM THE HOSPITAL.

TO THE SECRETARY OF DEFENSE, OCTOBER 31, 1966:

REFERENCE IS MADE TO LETTER OF AUGUST 13, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION CONCERNING THE RETIRED PAY STATUS OF RETIRED MILITARY PERSONNEL, WITHOUT DEPENDENTS, WHO ARE FURNISHED HOSPITAL TREATMENT BY THE VETERANS ADMINISTRATION IN THE CIRCUMSTANCES OUTLINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 377.

THE BASIC STATUTORY PROVISIONS INVOLVED ARE CONTAINED IN SECTION 3203/A) (1), TITLE 38, U.S. CODE (1964 ED). AS AMENDED BY THE ACT OF MARCH 7, 1966, PUBLIC LAW 89-362, 80 STAT. 30, THAT SECTION IN PERTINENT PART PROVIDES:

(A) (1) WHERE ANY VETERAN HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE VETERANS' ADMINISTRATION 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, IF $30 PER MONTH OR LESS, SHALL CONTINUE WITHOUT REDUCTION, BUT IF GREATER THAN $30 PER MONTH, THE COMPENSATION OR RETIREMENT PAY SHALL NOT EXCEED 50 PERCENTUM OF THE AMOUNT OTHERWISE PAYABLE OR $30 PER MONTH, WHICHEVER IS THE GREATER. IF SUCH VETERAN IS DISCHARGED FROM SUCH TREATMENT OR CARE UPON CERTIFICATION BY THE OFFICER IN CHARGE OF THE HOSPITAL, INSTITUTION, OR HOME, THAT MAXIMUM BENEFITS HAVE BEEN RECEIVED OR THAT RELEASE IS APPROVED, HE SHALL BE PAID IN A LUMP SUM SUCH ADDITIONAL AMOUNT AS WOULD EQUAL THE TOTAL SUM BY WHICH HIS COMPENSATION OR RETIREMENT PAY HAS BEEN REDUCED UNDER THIS SECTION. IF TREATMENT OR CARE IS TERMINATED BY THE VETERAN AGAINST MEDICAL ADVICE OR AS THE RESULT OF DISCIPLINARY ACTION THE AMOUNT BY WHICH ANY COMPENSATION OR RETIREMENT PAY IS REDUCED HEREUNDER, SHALL BE PAID TO HIM AT THE EXPIRATION OF SIX MONTHS AFTER SUCH TERMINATION OR, IN THE EVENT OF HIS PRIOR DEATH, AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION: AND THE COMPENSATION OR RETIREMENT PAY OF ANY VETERAN LEAVING AGAINST MEDICAL ADVICE OR AS THE RESULT OF DISCIPLINARY ACTION SHALL, UPON A SUCCEEDING READMISSION FOR TREATMENT OR CARE WITHIN SIX MONTHS FROM THE DATE OF SUCH DEPARTURE, BE SUBJECT TO REDUCTION, AS HEREIN PROVIDED, FROM THE DATE OF SUCH READMISSION, BUT IF SUCH SUBSEQUENT TREATMENT OR CARE IS CONTINUED UNTIL DISCHARGED THEREFROM UPON CERTIFICATION, BY THE OFFICER IN CHARGE OF THE HOSPITAL, INSTITUTION, OR HOME IN WHICH TREATMENT OR CARE WAS FURNISHED, THAT MAXIMUM BENEFITS HAVE BEEN RECEIVED OR THAT RELEASE IS APPROVED, THE VETERAN SHALL BE PAID IN A LUMP SUM SUCH ADDITIONAL AMOUNT AS WOULD EQUAL THE TOTAL SUM BY WHICH HIS COMPENSATION OR RETIREMENT PAY HAS BEEN REDUCED UNDER THIS SECTION AFTER SUCH READMISSION.

COMMITTEE ACTION NO. 377 PRESENTS AND DISCUSSES THREE QUESTIONS. THE FIRST QUESTION IS AS FOLLOWS:

1. A RETIRED SERVICE MEMBER, OR FORMER MEMBER, HAVING NEITHER WIFE, CHILD, NOR A DEPENDENT PARENT, IS RECEIVING REDUCED RETIRED PAY AS REQUIRED BY 38 U.S.C. 3203 WHILE IN A VETERANS' ADMINISTRATION HOSPITAL. HE IS GRANTED AUTHORITY TO BE TEMPORARILY ABSENT FROM THE HOSPITAL (TRIAL VISIT) FOR 30 DAYS OR MORE.

A. WHEN SHOULD FULL RETIRED PAY CREDIT BE RESUMED?

B. UPON RETURN TO THE HOSPITAL AT THE END OF SUCH TEMPORARY ABSENCE, WHEN SHOULD RETIRED PAY BE REDUCED?

C. WHEN MAY REFUND OF ANY AMOUNTS, AS REDUCED WITHHELD WHILE HE WAS IN THE HOSPITAL, BE MADE TO HIM?

THE COMMITTEE ACTION DISCUSSION RELATING TO PART A OF QUESTION 1 DISCLOSES THAT WHILE THE MARINE CORPS AND AIR FORCE RESUME PAYMENTS OF RETIREMENT PAY IN THE FULL AMOUNT EFFECTIVE THE DAY FOLLOWING THE DATE OF DEPARTURE FROM THE VETERANS ADMINISTRATION HOSPITAL, THE ARMY AND THE NAVY ,IN TIMES PAST" HAVE RESUMED FULL RETIREMENT PAY CREDIT AS OF THE 30TH DAY OF ABSENCE. THE VIEW IS EXPRESSED THAT DENIAL OF CREDIT FROM DAY OF DEPARTURE FROM THE VETERANS ADMINISTRATION HOSPITAL UNTIL A LATER TIME WOULD LACK LEGAL AUTHORITY.

SINCE THE COMMITTEE ACTION DISCUSSION DOES NOT REFER TO MENTALLY INCOMPETENT VETERANS AND SUBSECTION 3203/B) (1) IS NOT MENTIONED, IT IS ASSUMED THAT THE QUESTION RELATE TO MENTALLY COMPETENT VETERANS. THE RETIREMENT PAY OF A VETERAN WHO HAS NEITHER WIFE, CHILD, NOR DEPENDENT PARENT IS REQUIRED TO BE REDUCED UNDER AUTHORITY OF 38 U.S.C. 3203/A) (1) DURING THE PERIOD HE "IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE VETERANS' ADMINISTRATION;, SINCE IT APPEARS THAT SUCH TREATMENT OR CARE WOULD NOT BE FURNISHED DURING A TRIAL ABSENCE OF 30 DAYS OR MORE, WE VIEW THE PRACTICE OF THE MARINE CORPS AND THE AIR FORCE, IN RESUMING PAYMENT OF FULL RETIREMENT PAY AS OF THE DAY FOLLOWING THE DATE OF DEPARTURE FROM THE HOSPITAL, AS MEETING THE REQUIREMENTS OF THE LAW.

WITH RESPECT TO PART B OF QUESTION 1, THE DISCUSSION IN COMMITTEE ACTION NO. 377 STATES THAT RETIREMENT PAY SHOULD BE REDUCED ON THE DATE OF RETURN TO A VETERANS ADMINISTRATION HOSPITAL FOLLOWING A TEMPORARY ABSENCE. CONNECTION WITH PART C OF QUESTION 1, IT IS STATED THAT REFUND OF ANY AMOUNTS WITHHELD WHILE RECEIVING VETERANS ADMINISTRATION HOSPITAL TREATMENT SHOULD BE MADE WHEN THE CONDITIONS SPECIFIED IN 38 U.S.C. 3203 HAVE BEEN MET. IT IS INDICATED THAT ALL SERVICES ARE IN AGREEMENT WITH THE ACTION BEING TAKEN IN THE SITUATIONS WHICH COME WITHIN THE PURVIEW OF PARTS B AND C OF QUESTION 1 AND IT IS ASSUMED THAT SUCH ACTION IS CONSISTENT WITH THE ABOVE STATEMENTS FROM THE COMMITTEE ACTION. WE VIEW SUCH HANDLING BY THE UNIFORMED SERVICES OF CASES COMING WITHIN PARTS B AND C OF QUESTION 1 AS PROPER AND REQUIRED UNDER THE PROVISIONS OF 38 U.S.C. 3203/A) (1).

QUESTION 2:

A RETIRED SERVICE MEMBER, OR FORMER MEMBER, IN A VETERANS' ADMINISTRATION HOSPITAL, CLAIMS HIS MOTHER IS PARTIALLY DEPENDENT UPON HIM WHICH, IF SO, WOULD PRECLUDE REDUCTION OF HIS RETIRED PAY UNDER 38 U.S.C. 3203. UPON WHAT BASIS SHOULD IT BE DETERMINED WHETHER OR NOT REDUCTION OF RETIRED PAY IS REQUIRED UNDER 38 U.S.C. 3203?

THE COMMITTEE ACTION DISCUSSION ON THIS QUESTION REFLECTS THE VIEW CORRECTLY, WE THINK, THAT DETERMINATION OF DEPENDENCY OF A PARENT WHICH WOULD AFFECT THE OPERATION OF THE PROVISIONS OF 38 U.S.C. 3203 WITH RESPECT TO RETIREMENT PAY WOULD HAVE EQUAL APPLICATION TO VETERANS ADMINISTRATION COMPENSATION BENEFITS AND THAT, IN ORDER TO ACHIEVE UNIFORMITY UNDER THE LAW, DETERMINATIONS OF DEPENDENCY SHOULD BE MADE ON THE BASIS OF VETERANS ADMINISTRATION PRINCIPLES. IT APPEARS THAT THREE OF THE UNIFORMED SERVICES ARE IN AGREEMENT IN THIS RESPECT, TWO SERVICES ADJUDICATING SUCH CASES ON THE BASIS OF THE FACTS AS TO DEPENDENCY AND RELATIONSHIP AS PRESCRIBED IN VETERANS ADMINISTRATION REGULATIONS AND THE THIRD SERVICE REQUESTING A SPECIFIC DETERMINATION OF DEPENDENCY FROM THE VETERANS ADMINISTRATION. IT IS STATED THAT A FOURTH SERVICE DETERMINES THE DEPENDENCY OF A PARENT UPON THE CRITERIA EMPLOYED BY THE INTERNAL REVENUE SERVICE, THAT IS, IF THE MEMBER PROVIDES MORE THAN ONE-HALF OF THE SUPPORT OF HIS PARENT IT IS CONSIDERED THAT HE HAS A DEPENDENT PARENT FOR THE PURPOSES OF 38 U.S.C. 3203.

THE RESTRICTIONS AND LIMITATIONS IMPOSED BY SECTION 3203 (A) (1) APPLY ONLY IN THE CASE OF A VETERAN HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT. SECTION 102/A), TITLE 38, U.S. CODE, AS AMENDED BY PUBLIC LAW 89- 358, MARCH 3, 1966, 80 STAT. 24, IN PERTINENT PART, PROVIDES:

(A) (1) DEPENDENCY OF A PARENT, WHICH MAY ARISE BEFORE OR AFTER THE DEATH OF A VETERAN, SHALL BE DETERMINED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR.

(2) DEPENDENCY OF A PARENT SHALL NOT BE DENIED (A) SOLELY BECAUSE OF REMARRIAGE, OR (B) IN ANY CASE IN ANY STATE WHERE THE MONTHLY INCOME FOR A MOTHER OR FATHER, NOT LIVING TOGETHER, IS NOT MORE THAN $105, OR WHERE THE MONTHLY INCOME FOR A MOTHER AND FATHER LIVING TOGETHER, IS NOT MORE THAN $175, PLUS, IN EITHER CASE, $45, FOR EACH ADDITIONAL MEMBER OF THE FAMILY WHOM THE FATHER OR MOTHER IS UNDER A MORAL OR LEGAL OBLIGATION TO SUPPORT, AS DETERMINED BY THE ADMINISTRATOR.

(3) FOR THE PURPOSES OF THIS SUBSECTION IN DETERMINING MONTHLY INCOME THE ADMINISTRATOR SHALL NOT CONSIDER ANY PAYMENTS UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION BECAUSE OF DISABILITY OR DEATH OR PAYMENTS OF BONUS OR SIMILAR CASH GRATUITY BY ANY STATE BASED UPON SERVICE IN THE ARMED FORCES.

ALSO, SEE VETERANS ADMINISTRATION REGULATIONS 1250 AND 1263, T.S.281 AND 331, RESPECTIVELY, WHEREIN THE REQUIREMENTS TO ESTABLISH THE DEPENDENCY OF A PARENT (OTHER THAN THE PROVISIONS OF 38 U.S.C. 102 (A) (2), QUOTED ABOVE), ARE SET FORTH. THE METHOD OF DETERMINING THE DEPENDENCY OF A PARENT ON THE BASIS OF CRITERIA EMPLOYED BY THE INTERNAL REVENUE SERVICE DOES NOT CONFORM TO THE APPLICABLE STATUTORY PROVISIONS OR WITH THE VETERANS ADMINISTRATION REGULATIONS ABOVE REFERRED TO. ACCORDINGLY, THE USE OF SUCH METHOD SHOULD BE DISCONTINUED. SINCE THE ABOVE-QUOTED PROVISIONS OF LAW APPEAR TO CONTEMPLATE ACTION BY THE ADMINISTRATOR OF VETERANS AFFAIRS, WE ARE OF THE VIEW THAT A SPECIFIC DETERMINATION FROM THE VETERANS ADMINISTRATION SHOULD BE SECURED ON THE ISSUE OF DEPENDENCY OF A PARENT IN EACH INDIVIDUAL CASE IN WHICH THAT QUESTION IS INVOLVED.

QUESTION 3 IS AS FOLLOWS:

RETIRED PAY IS BEING REDUCED UNDER 38 U.S.C. 3203. DURING VETERANS' ADMINISTRATION HOSPITALIZATION, THE MEMBER IS DISCHARGED FROM THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE. WHEN SHOULD AMOUNTS WITHHELD UNDER 38 U.S.C. 3203 BE REFUNDED?

THE COMMITTEE EXPRESSES THE OPINION THAT REFUND OF THE AMOUNT OF RETIREMENT PAY WHICH HAS BEEN WITHHELD IN THE CIRCUMSTANCES SHOWN SHOULD NOT BE MADE UNTIL THE INDIVIDUAL IS RELEASED FROM THE HOSPITAL. THAT CONCLUSION APPEARS TO BE IN CONFORMITY WITH THE PROVISIONS OF SECTION 3203 (A) (1). WE SEE NO REASON WHY THE FACT OF A MEMBER'S DISCHARGE FROM THE TEMPORARY DISABILITY RETIRED LIST WHILE STILL HOSPITALIZED SHOULD AFFECT IN ANY WAY THE TIME OF MAKING A LUMP-SUM PAYMENT OF THE AMOUNTS WHICH HAVE BEEN WITHHELD FROM HIS RETIREMENT PAY.

THE QUESTIONS DISCUSSED IN COMMITTEE ACTION NO. 377 ARE ANSWERED ACCORDINGLY.