B-96142, AUG 7, 1953

B-96142, AUG 7, 1953

PRECIS-UNAVAILABLE

LTC JAMES H. COMINGS, DEPT OF THE ARMY:

BY FIRST INDORSEMENT DATED JUNE 9, 1953, FILE REFERENCE FIMEI 241.18 PRICE, WILLIAM G., 0-139849 (21 MAY 53), THE OFFICE OF THE CHIEF OF FINANCE, FORWARDED YOUR COMMUNICATION OF MAY 21, 1953, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH, COVERING PAYMENT OF RETIRED PAY TO MAJOR GENERAL WILLIAM G. PRICE, JR., RETIRED, SERVICE NO. 0-139849. THE VOUCHER IS STATED IN THE AMOUNT OF $1,486.03, AS REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT OF RETIRED PAY DUE FOR THE PERIOD OCTOBER 3, 1951, THROUGH APRIL 30, 1953, AND THE AMOUNT OF SPANISH-AMERICAN WAR PENSION RECEIVED FROM THE VETERANS ADMINISTRATION SUCH DIFFERENCE BEING AT THE RATE OF $77.80 PER MONTH FOR THE PERIOD OCTOBER 3, 1951, THROUGH APRIL 30, 1952; $84.51 PER MONTH FOR THE PERIOD MAY 1, 1952, THROUGH JUNE 30, 1952; AND $77.76 PER MONTH FOR THE PERIOD JULY 1, 1952, THROUGH APRIL 30, 1953.

IT APPEARS THAT THE OFFICER WAS PLACED ON THE RETIRED LIST EFFECTIVE JANUARY 31, 1953, WITH RETIRED PAY EFFECTIVE OCTOBER 3, 1951, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AS AMENDED, SUCH ACTION HAVING BEEN BASED UPON PRICE V. UNITED STATES, 121 C. CLS. 664, AND LETTER OF THIS OFFICE DATED JANUARY 27, 1953, B 107796; AND THAT HE RECEIVED THE SAID PENSION PAYMENTS BY VIRTUE OF HIS SERVICE DURING THE SPANISH-AMERICAN WAR.

IN DECISION OF MAY 20, 1949, B-83703, 28 COMP. GEN. 655, QUOTED IN MATERIAL PART IN YOUR COMMUNICATION, THE ATTENTION OF THE SECRETARY OF THE ARMY WAS CALLED TO THE FACT THAT IN ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION, NO. 800, DATED DECEMBER 22, 1948, IT WAS HELD, AMONG OTHER THINGS, THAT THE SPANISH-AMERICAN WAR SERVICE PENSION MAY NOT BE PAID CONCURRENTLY WITH RETIRED PAY AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948. AS NOTED IN THE DECISION OF THIS OFFICE, UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1197, THE ADMINISTRATOR'S DECISION, INSOFAR AS IT RELATES TO THE SPANISH-AMERICAN WAR SERVICE PENSION, IS CONCLUSIVE UPON THIS OFFICE AND, IN VIEW OF THE NEGATIVE CONCLUSION REACHED IN SUCH DECISION, IT WAS DETERMINED THAT NO USEFUL PURPOSE WOULD BE SERVED BY THIS OFFICE CONSIDERING THE CONVERSE OF THE QUESTION; THAT IS, WHETHER RETIRED PAY MAY BE PAID CONCURRENTLY WITH THE SPANISH-AMERICAN WAR SERVICE PENSION.

IN SUCH CONNECTION, HOWEVER, THE COURT OF CLAIMS, IN ITS SUPPLEMENTAL OPINION ON THIS OFFICER'S INITIAL CLAIM FOR RETIRED PAY, HELD (121 C. CLS. AT PAGE 685):

"THE ACT OF JULY 13, 1943, VETERANS REGULATION NO. 10, PAR. XIII, 57 STAT. 559, SPECIFIES THAT

'NOT MORE THAN ONE AWARD OF PENSION, COMPENSATION, OR EMERGENCY OFFICERS' OR REGULAR RETIREMENT PAY, SHALL BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE.'

IT APPEARS THAT PLAINTIFF'S RETIREMENT PAY IS 'EMERGENCY OFFICERS'' RETIREMENT PAY WITHIN THE MEANING OF VETERANS REGULATION NO. 10, SUPRA. CONSEQUENTLY PLAINTIFF IS NOT ENTITLED TO CONCURRENT AWARDS FOR BOTH PENSION AND RETIREMENT PAY BASED ON HIS OWN SERVICE. THE GOVERNMENT IS ENTITLED THEREFORE TO DEDUCT THE AMOUNT OF PENSION RECEIVED BY PLAINTIFF FROM THE RETIREMENT PAY TO WHICH PLAINTIFF WOULD OTHERWISE BE ENTITLED."

THE DECISION DECLARES UNMISTAKABLY THAT HE IS NOT ENTITLED TO BOTH RETIRED PAY AND A PENSION AND THAT SINCE HE IS ENTITLED TO RETIRED PAY, THE GOVERNMENT IS ENTITLED TO DEDUCT THE AMOUNT OF PENSION RECEIVED BY HIM FROM THE RETIREMENT PAY TO WHICH HE IS OTHERWISE ENTITLED. SINCE THE VOUCHER, RETURNED HEREWITH, APPARENTLY COVERS ONLY THE EXCESS OF GENERAL PRICE'S RETIRED PAY OVER THE AMOUNT OF THE PENSION WHICH HE RECEIVED DURING THE PERIOD INVOLVED, PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT. HOWEVER, APPROPRIATE STEPS SHOULD BE TAKEN TO TRANSFER THE BALANCE OF THE RETIRED PAY DUE HIM FOR SUCH PERIOD TO THE VETERANS ADMINISTRATION IN REINBURSEMENT OF THE PENSION WHICH HE HAS RECEIVED.

ANY QUESTION AS TO THE LIABILITY OF GENERAL PRICE FOR INCOME TAXES ON THE FULL AMOUNT OF THE RETIREMENT PAY TO WHICH HE IS ENTITLED DURING THE PERIOD IN QUESTION, REFERRED TO IN YOUR LETTER, IS, OF COURSE, FOR DETERMINATION BY THE COMMISSIONER OF INTERNAL REVENUE. IN THAT CONNECTION, IT SHOULD BE NOTED THAT IN ADDITION TO THE ADMINISTRATOR'S DECISION OF DECEMBER 22, 1948, HOLDING THAT THE SPANISH-AMERICAN WAR PENSION MAY NOT BE PAID CONCURRENTLY WITH RETIREMENT PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, IT ALSO WAS HELD THAT SUCH RETIREMENT PAY MAY NOT BE WAIVED IN FAVOR OF PENSION FROM THE VETERANS ADMINISTRATION.

A COPY OF THIS DECISION IS BEING FORWARDED TO THE ADMINISTRATOR OF VETERANS AFFAIRS FOR HIS INFORMATION.