B-13721, DECEMBER 13, 1940, 20 COMP. GEN. 313

B-13721, DECEMBER 13, 1940, 20 COMP. GEN. 313

PAY - ACTIVE DUTY - NAVAL RESERVIST RECEIVING RETIRED PAY AS DISTRICT OF COLUMBIA POLICEMAN WHILE PAYMENT OF PAY AND ALLOWANCES UNDER THE NAVAL APPROPRIATION ACT (1941), TO ANY NAVAL OR MARINE CORPS RESERVIST WHO IS "DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES," IS SPECIFICALLY PROHIBITED BY SAID ACT, THE PROHIBITION HAS REFERENCE ONLY TO REWARDS FOR PAST MILITARY OR NAVAL SERVICE, AS DISTINGUISHED FROM ANNUITIES, OR SIMILAR BENEFITS FOR CIVILIAN SERVICE, AND, HENCE, A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY IS ENTITLED TO PAY AND ALLOWANCES WHILE RECEIVING SO-CALLED RETIRED PAY AS A RETIRED POLICEMAN OF THE DISTRICT OF COLUMBIA.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 13, 1940:

I HAVE YOUR LETTER OF NOVEMBER 28, REQUESTING DECISION ON A QUESTION PRESENTED IN A LETTER DATED NOVEMBER 13, 1940, FROM THE DISBURSING OFFICER, UNITED STATES NAVY YARD, WASHINGTON, D.C., ADDRESSED TO THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

1. LIEUTENANT FRANK A. VARNEY, I-V (S) U.S.N.R., WAS ORDERED TO ACTIVE DUTY AT THE NAVY YARD, WASHINGTON, D.C., UNDER ORDERS OF 22 OCTOBER 1940 (ENCLOSURE). HE REPORTED FOR DUTY ON THE 23D OF OCTOBER 1940, AND ON THAT DATE EXECUTED AFFIDAVIT THAT HE WAS NOT DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES AS REQUIRED BY REFERENCE (A) ABOVE. SUBSEQUENTLY, LIEUTENANT VARNEY APPEARED IN THE DISBURSING DEPARTMENT AND REPORTED THAT HE HAD EXECUTED THE AFFIDAVIT ON THE BASIS THAT A PENSION HE WAS RECEIVING AS A RETIRED LIEUTENANT OF THE METROPOLITAN POLICE DEPARTMENT WAS NOT DRAWN FROM THE GOVERNMENT OF THE UNITED STATES.

2. IN VIEW OF THE PROVISION OF REFERENCE (A) ( NAVAL APPROPRIATION ACT FOR FISCAL YEAR ENDING 30 JUNE 1941, PUBLIC, NO. 588, APPROVED JUNE 11, 1940, UNDER "1NAVAL RESERVE") THAT:

"PROVIDED FURTHER, THAT NO APPROPRIATION MADE IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES, TRAVEL, OR OTHER EXPENSES OF ANY OFFICER, OR ENLISTED MAN OF THE NAVAL OR MARINE CORPS RESERVE WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES, AND "RETIRED PAY" AS HERE USED SHALL NOT INCLUDE THE PAY OF MEMBERS OF THE FLEET RESERVE, FLEET MARINE CORPS RESERVE, OR MEMBERS OF THE HONORARY RETIRED LIST OF SUCH RESERVE FORCES.'

ADVANCE DECISION OF THE COMPTROLLER GENERAL IS REQUESTED AS TO RIGHT OF LIEUTENANT VARNEY TO DRAW PAY WHILE SERVING AS A LIEUTENANT IN THE UNITED STATES NAVAL RESERVE IN ADDITION TO HIS RETIRED PAY OF $127.08 PER MONTH AS A RETIRED LIEUTENANT OF THE METROPOLITAN POLICE DEPARTMENT OF THE DISTRICT OF COLUMBIA.

A COPY OF THE ORDERS DATED OCTOBER 22, 1940, ENCLOSED WITH THE SUBMISSION DIRECTED LIEUTENANT FRANK A. VARNEY, I-V (S) U.S.N.R., WITH HIS CONSENT, TO PROCEED FOR PHYSICAL EXAMINATION TO THE MEDICAL OFFICER, NAVAL RESERVE ARMORY, NAVY YARD, WASHINGTON, D.C., AND IF FOUND PHYSICALLY QUALIFIED TO PROCEED AND REPORT TO THE COMMANDANT OF THE NAVY YARD, WASHINGTON, D.C. ENDORSEMENTS ON THE AFORESAID ORDERS SHOW THAT THE RESERVE OFFICER REPORTED AS DIRECTED ON OCTOBER 23, 1940; WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY AND THAT HE REPORTED TO THE COMMANDANT ON THE SAME DATE.

IT IS UNDERSTOOD THAT LIEUTENANT VARNEY WAS APPOINTED TO THE METROPOLITAN POLICE DEPARTMENT OF THE DISTRICT OF COLUMBIA FEBRUARY 1, 1922, AND WAS RETIRED FOR PHYSICAL DISABILITY MARCH 1, 1940, AS A LIEUTENANT, HIS SO- CALLED RETIRED PAY OR PENSION BENEFITS BEING ONE HALF OF $3,050 PER ANNUM, OR $127.08 PER MONTH, AND THAT HE IS RECEIVING THESE BENEFITS AT THE PRESENT TIME UNDER THE PROVISIONS OF THE ACT SEPTEMBER 1, 1916, 39 STAT. 718, AS AMENDED.

A PROVISION SIMILAR TO THE PROVISION IN THE ANNUAL APPROPRIATION ACT FOR 1941, QUOTED BY THE DISBURSING OFFICER, HAS APPEARED IN THE ARMY APPROPRIATION ACTS UNDER " NATIONAL GUARD" AND " ORGANIZED RESERVES" SINCE THE ACT OF MARCH 4, 1933, 47 STAT. 1589 AND 1591. SEE ALSO, 48 STAT. 633 AND 635; 49 STAT. 139, 141, 1298 AND 1301; 50 STAT. 462 AND 464; 52 STAT. 661 AND 663, AND 53 STAT. PART 2, 612 AND 614, AND THE APPROPRIATION ACT FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1941, PUBLIC NO. 611, APPROVED JUNE 13, 1940.

WHILE THERE IS NO LAW PROVIDING FOR CIVIL PENSIONS AS SUCH, MILITARY PENSIONS HAVE BEEN PROVIDED FOR IN THE LAWS NOW COLLECTED IN TITLE 38, OF THE U.S.C. (ENTITLED " PENSIONS, BONUSES, AND VETERANS' RELIEF" (, SECTIONS 1 TO 391 THEREOF PROVIDING PENSIONS FOR SERVICE IN WARS PRIOR TO THE WORLD WAR; SECTIONS 421 TO 590 OF THE TITLE CODIFIES THE LAWS PROVIDING FOR COMPENSATION FOR VETERANS OF THE WORLD WAR; SECTIONS 473 TO 478 PROVIDING FOR DISABILITY COMPENSATION; AND SECTION 11 OF THE ACT OF JULY 3, 1930, 46 STAT. 995 (SEE 38 U.S.C. 701) PROVIDES A DISABILITY ALLOWANCE FOR ANY VETERAN OF THE WORLD WAR WHO HAD HAD 90 DAYS' OR MORE SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, AND WHO WAS 25 PERCENT OR MORE DISABLED. RETIRED PAY IS APPLICABLE TO THE MILITARY SERVICES AND TO THE MILITARY SERVICES ONLY, AND BY THE ACT OF MAY 24, 1928, 45 STAT. 734 (AS AMENDED, 38 U.S.C. 581, ET SEQ. (, THERE WAS ESTABLISHED THE EMERGENCY OFFICERS' RETIRED LIST, PROVIDING FOR THE RETIREMENT OF WORLD WAR EMERGENCY OFFICERS WHO SUFFERED 30 PERCENT OR MORE DISABILITY DURING WORLD WAR SERVICE, AND FOR PAYMENT OF RETIRED PAY TO SUCH OFFICERS. THEREFORE, IT WOULD APPEAR TO BE CLEAR THAT THE FOUR DESCRIPTIVE TERMS "PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION OR RETIRED PAY" AS USED IN THE PROVISO QUOTED IN THE LETTER, SUPRA, HAVE REFERENCE ONLY TO THOSE TECHNICAL TERMS AS USED IN THE LAWS RELATING TO BENEFITS FOR PAST MILITARY SERVICE--- PENSIONS FOR SERVICE IN WARS PRIOR TO THE WORLD WAR OR IN THE REGULAR SERVICE TO THE PRESENT TIME; DISABILITY COMPENSATION FOR DISABILITY INCURRED IN SERVICE DURING THE WORLD WAR; DISABILITY ALLOWANCE FOR CIVIL DISABILITIES BY PERSONS WHO SERVED IN THE WORLD WAR AND SUBSEQUENTLY BECAME DISABLED; AND RETIRED PAY FOR PHYSICAL DISABILITY PAYABLE TO EMERGENCY OFFICERS OF THE WORLD WAR OR RETIREMENT FOR PHYSICAL DISABILITY OR AGE, WHICH INCLUDES OFFICERS OF THE REGULAR ESTABLISHMENTS.

SUCH PROVISIONS HAVE HAD A PRACTICAL CONSTRUCTION IN THIS OFFICE IN ACCORD WITH THE FOREGOING. THAT IS, THE TERMS USED IN THE ACT ARE TECHNICAL TERMS APPLICABLE TO REWARDS FOR PAST MILITARY OR NAVAL SERVICE, AND WERE DESIGNED TO PROHIBIT ONE WHO IS RECEIVING A MONETARY BENEFIT FOR DISABILITY OR AGE GROWING OUT OF PRIOR MILITARY SERVICE FROM RECEIVING PAY AND ALLOWANCES FOR ACTIVE DUTY IN THE MILITARY OR NAVAL SERVICES IN ANOTHER CAPACITY. THE PAYMENT OF AN ANNUITY OR SIMILAR BENEFIT TO A CIVILIAN EMPLOYEE OF THE UNITED STATES OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS NOT WITHIN THE INHIBITION OF THE ACT. WERE THIS OFFICER RETIRED FROM ACTIVE DUTY IN THE POLICE FORCE OF SOME OTHER MUNICIPALITY AND ENTITLED TO BENEFITS FOR HIS POLICE SERVICE UNDER STATE STATUTE OR MUNICIPAL ORDINANCE, CLEARLY HE WOULD NOT BE WITHIN THE LANGUAGE OF THE PROHIBITION. THE SOURCE OF THE FUNDS FROM WHICH BENEFITS ARE PAYABLE--- AS FROM THE UNITED STATES, OR FROM THE UNITED STATES AND THE DISTRICT OF COLUMBIA TOGETHER--- DOES NOT CHANGE THE RESULT, AS THE PARTICULAR BENEFIT RECEIVED BY HIM IS NOT FOR ANY PAST MILITARY OR NAVAL SERVICE BUT IS FOR DISABILITY IN HIS CIVILIAN OCCUPATION.

IF OTHERWISE PROPER, PAYMENTS OF THE PAY AND ALLOWANCES ACCRUING TO THE OFFICER AS A LIEUTENANT OF THE NAVAL RESERVE ON ACTIVE DUTY ARE AUTHORIZED, NOTWITHSTANDING HE MAY BE RECEIVING SO-CALLED RETIRED PAY AS A POLICEMAN OF THE DISTRICT OF COLUMBIA.