B-82999, MARCH 1, 1949, 28 COMP. GEN. 484

B-82999, MARCH 1, 1949, 28 COMP. GEN. 484

PAY - RETIRED - COAST GUARD ENLISTED MEN - EFFECT OF WAIVER RETIRED ENLISTED MEN OF THE COAST GUARD WHO ARE RECEIVING A PENSION OR COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION BY VIRTUE OF A WAIVER OF AN EQUIVALENT AMOUNT OF RETIRED PAY PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 27, 1944, ARE ENTITLED, IF THE PAYMENT OF PENSION OR COMPENSATION BE REDUCED OR STOPPED ENTIRELY, TO HAVE THEIR RETIRED PAY INCREASED BY SUCH AN AMOUNT AS MAY BE NECESSARY TO CONTINUE PAYMENTS IN AN AMOUNT EQUAL TO THE FULL AMOUNT OF RETIRED PAY TO WHICH THEY MAY BE ENTITLED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, MARCH 1, 1949:

THERE HAS BEEN RECEIVED A LETTER DATED JANUARY 13, 1949, FROM THE ACTING SECRETARY OF THE TREASURY REQUESTING DECISION WHETHER RETIRED ENLISTED MEN OF THE COAST GUARD WHO ARE RECEIVING A PENSION OR COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION--- THEY HAVING WAIVED RETIRED PAY PURSUANT TO THE ACT OF MAY 27, 1944, 58 STAT. 230 (38 U.S.C. 26C), FOR THE PURPOSE OF OBTAINING SUCH PENSION OR COMPENSATION--- MAY WAIVE SUCH PENSION OR COMPENSATION AND RESUME RECEIPT OF RETIRED PAY. THE WAIVER EXECUTED IN SUCH CASES WITH RESPECT TO RETIRED PAY IS SET OUT IN THE LETTER OF JANUARY 13, 1949, AS FOLLOWS:

PURSUANT TO PROVISIONS OF THE ACT OF MAY 27, 1944, PUBLIC 314, 78TH CONGRESS, I HEREBY WAIVE THAT PORTION OF MY RETIRED PAY AS IS EQUAL IN AMOUNT TO THE PENSION OR COMPENSATION WHICH MAY BE AWARDED BY THE VETERANS' ADMINISTRATION. MY RETIRED PAY IS RECEIVED FROM THE COAST GUARD.

IT IS UNDERSTOOD THAT THE EFFECTIVE DATE OF THIS WAIVER WILL BE DETERMINED BY THE DISBURSING OFFICER PAYING THE RETIRED PAY.

THE SAID ACT OF MAY 27, 1944, PROVIDES:

THAT ANY PERSON WHO IS 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 THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON THE FILING BY SUCH PERSON 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. PREVENT DUPLICATION OF PAYMENTS, THE DEPARTMENT WITH WHICH ANY SUCH WAIVER IS FILED SHALL NOTIFY THE VETERANS' ADMINISTRATION OF THE RECEIPT OF SUCH WAIVER, THE AMOUNT WAIVED, AND THE EFFECTIVE DATE OF THE REDUCTION IN RETIRED PAY.

PRIOR TO THE ACT OF JUNE 30, 1941, 55 STAT. 394, IT HAD BEEN HELD, ON THE BASIS OF CERTAIN PROVISIONS CONTAINED IN THE ACT OF MARCH 3, 1891, 26 STAT. 1081, 1082, AND SECTION 212 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 623, AS AMENDED, 44 STAT. 797, 798, THAT A WAIVER BY ANY RETIRED ENLISTED MAN OF HIS RETIRED PAY FOR THE PURPOSE OF OBTAINING A PENSION OR COMPENSATION FROM THE VETERANS' ADMINISTRATION MIGHT BE CONSIDERED EFFECTIVE ONLY IF CONSTRUED AS A RENUNCIATION OF HIS RETIRED STATUS, AND THAT DISCONTINUANCE OF HIS RETIRED PAY PURSUANT TO SUCH A WAIVER TERMINATED THE ENLISTED MAN'S RETIRED STATUS. 27 COMP. DEC. 606; 20 COMP. GEN. 41. SECTION 4 OF THE ACT OF JUNE 30, 1941, 55 STAT. 395 (38 U.S.C. 26B), HOWEVER, PROVIDED IN PART THAT ENLISTED MEN OF THE REGULAR ARMY AND OF THE PHILIPPINE SCOUTS WHO HAD BEEN PLACED ON THE RETIRED LIST, IN CERTAIN CASES MIGHT WAIVE RECEIPT OF RETIRED PAY AND ALLOWANCES FOR THE PURPOSE OF RECEIVING A PENSION OR COMPENSATION FROM THE VETERANS' ADMINISTRATION AND, THEREAFTER, MIGHT WAIVE RECEIPT OF SUCH PENSION OR COMPENSATION FOR THE PURPOSE OF RECEIVING RETIRED PAY AND ALLOWANCES. SUCH PROVISIONS PERMITTED THE PARTICULAR RETIRED ENLISTED MEN CONCERNED, WHO WERE OTHERWISE ELIGIBLE FOR VETERANS' BENEFITS, TO ELECT TO RECEIVE EITHER RETIRED PAY, OR VETERANS' BENEFITS, WITHOUT THEREBY PERMANENTLY TERMINATING THE STATUS GIVING RISE EITHER TO THE RIGHT TO RETIRED PAY, OR TO VETERANS' BENEFITS.

THE PURPOSE OF THE ACT OF MAY 27, 1944, SUPRA, WAS TO EXTEND THE LIMITED AUTHORIZATION CONTAINED IN SECTION 4 OF THE ACT OF JUNE 30, 1941, TO "ANY PERSON WHO IS 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.' HOWEVER, WHILE THE ACT OF JUNE 30, 1941, REQUIRES A WAIVER OF ALL RETIRED PAY AND ALLOWANCES FOR THE PURPOSE OF RECEIVING A PENSION OR COMPENSATION, AND VICE VERSA, THE ACT OF MAY 27, 1944, REQUIRES ONLY THAT A RETIRED PERSON WAIVE SO MUCH OF THE RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO THE AMOUNT OF PENSION OR COMPENSATION OTHERWISE PAYABLE, FOR THE PURPOSE OF RECEIVING SUCH PENSION OR COMPENSATION.

THE EFFECT OF THE ACT OF MAY 27, 1944, IS TO PERMIT A RETIRED PERSON, OTHERWISE ELIGIBLE THERETO, TO ELECT TO RECEIVE VETERANS' BENEFITS WITHOUT TERMINATING THE STATUS GIVING RISE TO THE RIGHT TO RETIRED PAY, AND UNDER SUCH STATUTE SUCH PERSON MAY RECEIVE VETERANS' BENEFITS IN THE FORM OF PENSION OR COMPENSATION AFTER THE EXECUTION OF A WAIVER OF AN EQUIVALENT AMOUNT OF HIS RETIRED PAY, AND IN ADDITION THERETO RETIRED PAY EQUAL TO THE DIFFERENCE BETWEEN THE AMOUNT OF SUCH BENEFITS AND THE AMOUNT OF HIS RETIRED PAY. HENCE, 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 WAIVER OF RETIRED PAY EXECUTED PURSUANT TO THE ACT OF MAY 27, 1944, AND IN THE FORM QUOTED ABOVE, THE RETIRED PAY OF SUCH RETIRED PERSON MAY BE INCREASED BY SUCH AMOUNT AS MAY BE NECESSARY TO CONTINUE TO HIM PAYMENTS IN AN AMOUNT EQUAL TO THE FULL AMOUNT OF RETIRED PAY TO WHICH HE MAY BE ENTITLED.