B-62748, MARCH 31, 1947, 26 COMP. GEN. 711

B-62748, MARCH 31, 1947, 26 COMP. GEN. 711

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND RETIREMENT PAY DURING PERIOD OF CIVILIAN EMPLOYMENT WHERE DISABILITY RETIREMENT PAY FOR A PERIOD OF COMMISSIONED SERVICE WAS RETROACTIVELY AWARDED UNDER THE ACT OF APRIL 3, 1939, AS AMENDED, TO A PERSON WHO HAD BEEN IN RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY AS AN ARMY ENLISTED MAN, ONLY THE DIFFERENCE BETWEEN HIS ENLISTED RETIRED PAY AND THE TOTAL AMOUNT WHICH COULD HAVE ACCRUED AS RETIREMENT PAY IS TO BE CONSIDERED AS RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" IN APPLYING, OVER A PERIOD PRIOR TO THE AWARD, THE LIMITATION IN SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, ON THE COMBINED AMOUNT OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH MAY BE RECEIVED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 31, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 23, 1946, AS FOLLOWS;

THE QUESTION HAS BEEN PRESENTED AS TO WHETHER A FORMER OFFICER WHO HASBEEN RETIRED BOTH AS AN ENLISTED MAN AND AN OFFICER MAY ELECT TO RECEIVE RETIRED PAY AS AN ENLISTED MAN OVER EACH PERIOD OF HIS FEDERAL CIVIL EMPLOYMENT, AND ELECT TO RECEIVE RETIRED PAY AS AN OFFICER OVER PERIODS HE WAS NOT SO EMPLOYED. INASMUCH AS THE QUESTION INVOLVES APPROPRIATIONS OTHER THAN THOSE APPLICABLE FOR THE PAYMENT OF RETIRED PAY ADMINISTERED BY THE VETERANS ADMINISTRATION, IT IS BELIEVED THAT YOUR VIEWS ON THIS QUESTION SHOULD BE SOLICITED.

THE FACTS IN THE CASE ON WHICH A QUESTION HAS ARISEN ARE AS FOLLOWS:

THE VETERANS SERVED IN THE ARMY AS AN ENLISTED MAN FROM DECEMBER 11, 1915 TO MAY 22, 1942. HE WAS COMMISSIONED CAPTAIN, AUS, ON MAY 23, 1942 AND SERVED IN THAT RANK UNTIL FEBRUARY 5, 1943. HE APPLIED FOR RETIREMENT UNDER PUBLIC LAW 18, 76TH CONGRESS (ACT, APRIL 3, 1939, 53 STAT. 555), BUT THIS APPLICATION WAS DENIED BY THE WAR DEPARTMENT ON THE PREMISE THAT THE DISABILITY WAS NOT INCURRED IN LINE OF DUTY. HE REENLISTED IN THE REGULAR ARMY AS A MASTER SERGEANT ON MARCH 15, 1943 AND SERVED AS SUCH UNTIL JUNE 30, 1943 AT WHICH TIME HE WAS RETIRED AS AN ENLISTED MAN BECAUSE OF PHYSICAL DISABILITY. THE WAR DEPARTMENT SUBSEQUENTLY REVIEWED HIS APPLICATION FOR RETIREMENT AS AN OFFICER AND ON DECEMBER 28, 1945 CERTIFIED TO THE VETERANS ADMINISTRATION AS FOLLOWS:

"THE SUBJECT OFFICER CONTRACTED PERMANENT DISABILITY RENDERING HIM UNFIT FOR FURTHER MILITARY SERVICE AND SUCH DISABILITY WAS CONTRACTED IN LINE OF DUTY WHILE ON ACTIVE DUTY SUBSEQUENT TO 3 APRIL 1939. THE CAUSE OF SUCH DISABILITY IS: (1) ARTERIOSCLEROSIS, GENERALIZED, WITH CORONARY FOCALIZATION, MODERATELY SEVERE; (2) THROMBOSIS, CORONARY, ACUTE, WIH MYOCARDIAL IN INFARCTION, RESIDUALS OF, SECONDARY TO NO. 1. THE DISABILITY ON WHICH CAPTAIN DEWITT'S RETIREMENT IS BASED IS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, NOR WAS IT THE RESULT OF AN EXPLOSION OF INSTRUMENTALITY OF WAR IN LINE OF DUTY.

"HE WAS ON EXTENDED ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES, FROM 23 MAY 1942 TO 5 FEBRUARY 1943 ON WHICH DATE HIS ACTIVE SERVICE PAY CEASED. HE REENLISTED IN THE REGULAR ARMY AS MASTER SERGEANT ON 15 MARCH 1943, AND RECEIVED ACTIVE DUTY PAY UNTIL 30 JUNE 1943, ON WHICH DATE HE WAS RETIRED AS AN ENLISTED MAN. HE WAIVED HIS RIGHTS TO RECEIVE RETIREMENT PAY AN AN ENLISTED MAN IN FAVOR OF RETIREMENT PAY AS A CAPTAIN, UNDER THE PROVISION OF THE ACT OF 3 APRIL 1939. HE IS ENTITLED TO RETIREMENT PAY AS A CAPTAIN, FOURTH PAY PERIOD EFFECTIVE FROM 6 FEBRUARY 1943 UNTIL 14 MARCH 1943 AND FROM 1 JULY 1943 IN THE AMOUNT OF $262.50 MONTHLY.'

PURSUANT TO THIS CERTIFICATION HE WAS AWARDED RETIREMENT PAY BY THE VETERANS ADMINISTRATION OF $262.50 FROM FEBRUARY 6, 1943 TO MARCH 14, 1943 AND FROM JULY 1, 1943. SUBSEQUENT TO THE AWARD OF RETIREMENT PAY BY THE VETERANS ADMINISTRATION, INFORMATION WAS RECEIVED FROM THE WAR DEPARTMENT TO THE EFFECT THAT THE VETERAN HAD RECEIVED RETIRED PAY AS AN ENLISTED MAN IN THE AMOUNT OF $145.79 PER MONTH FOR THE PERIOD "1 JULY 1943 THROUGH 31 DECEMBER 1945.' IT WAS ALSO ASCERTAINED THAT HE WAS EMPLOYED IN A CIVILIAN CAPACITY IN THE FEDERAL GOVERNMENT FROM MARCH 23, 1944 THROUGH APRIL 30, 1944 AND FROM JUNE 3, 1944 THROUGH SEPTEMBER 22, 1945 OR APPROXIMATELY 17 MONTHS, AND BY VIRTUE OF THESE FACTS WOULD NOT BE ENTITLED TO RETIREMENT PAY AS A COMMISSIONED OFFICER FROM THE VETERANS ADMINISTRATION DURING THE PERIOD HE RECEIVED THE OTHER BENEFITS. ACCORDINGLY, AN OVERPAYMENT RESULTED AND THE VETERAN WAS ADVISED TO THAT EFFECT. FOR THE PURPOSE OF REDUCING THE OVERPAYMENT THE VETERAN NOW DESIRES TO ELECT TO RECEIVE RETIREMENT PAY AN AN ENLISTED MAN DURING THE PERIOD HE WAS A CIVILIAN GOVERNMENT EMPLOYEE AND TO RECEIVE RETIREMENT PAY AS AN OFFICER DURING THE PERIOD WHEN NOT SO EMPLOYED, THEREBY AVOIDING THE PROHIBITION IN SECTION 212, SUPRA, AGAINST RECEIPT OF CIVILIAN SALARY AND RETIREMENT PAY CONCURRENTLY.

IT WOULD APPEAR FROM YOUR DECISION OF OCTOBER 28, 1946, B-61122 (26COMP. GEN. 271), ADDRESSED TO THE SECRETARY OF THE NAVY, THAT THIS VETERAN HAS NO RIGHT OF ELECTION BETWEEN RETIREMENT PAY AS A COMMISSIONED OFFICER AND RETIREMENT PAY AS AN ENLISTED MAN FOR THE PURPOSE OF AVOIDING THE PROHIBITION IN SECTION 212, PUBLIC 212, 72ND CONGRESS, AS AMENDED (5 U.S.C. 59A). HOWEVER, THE FACTS IN THE CASES PRESENTED BY THE SECRETARY OF THE NAVY ARE MATERIALLY DIFFERENT THAN THOSE HERE UNDER CONSIDERATION AND IT IS NOT CLEAR WHETHER THE VIEW EXPRESSED IN THAT DECISION WOULD BE APPLICABLE HERE.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761, 5 U.S.C. 59A, B, IS AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I.

THE FINAL PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C., SUPP. V, 456, IS AS FOLLOWS:

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS, OTHER THAN FOR SERVICE WITH THE CIVIL CONSERVATION CORPS, AND WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY, INCLUDING FOR THEIR DEPENDENTS THE BENEFITS OF SECTION 903 OF THIS TITLE, AS AMENDED.

EXECUTIVE ORDER NO. 8099, DATED APRIL 28, 1949, PROVIDES IN PERTINENT PART, AS FOLLOWS:

WHEREAS THE SAID ACT (OF APRIL 3, 1939) IS SILENT AS TO WHAT AGENCY SHALL ADMINISTER THE BENEFITS PROVIDED THEREBY; AND

WHEREAS IT IS DEEMED APPROPRIATE AND DESIRABLE THAT SUCH ADMINISTRATION BE PLACED IN THE VETERANS' ADMINISTRATION:

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, AND BY THE ACT OF JULY 3, 1930, C. 863, 46 STAT. 1016, THE DUTIES, POWERS, AND FUNCTIONS INCIDENT TO THE ADMINISTRATION AND PAYMENT OF THE BENEFITS PROVIDED BY THE STATUTE AS ABOVE SET OUT ARE HEREBY VESTED IN THE VETERANS' ADMINISTRATION: PROVIDED, THAT IN THE ADMINISTRATION OF THE RETIREMENT PROVISIONS OF THE SAID STATUTE, THE DETERMINATION WHETHER DISABILITY EXISTS AND WHETHER SUCH DISABILITY WAS INCURRED IN LINE OF DUTY SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS, PROVIDED BY LAW OR REGULATIONS FOR REGULAR ARMY PERSONNEL.

THE PROVISO IN THE ABOVE-QUOTED EXECUTIVE ORDER WAS AMENDED BY EXECUTIVE ORDER NO. 8461, DATED JUNE 28, 1940, TO READ AS FOLLOWS:

PROVIDED, THAT IN THE ADMINISTRATION OF THE RETIREMENT-PAY PROVISIONS OF THE SAID STATUTE, THE DETERMINATION OF ALL QUESTIONS OF ELIGIBILITY FOR THE BENEFITS THEREOF, INCLUDING ALL QUESTIONS OF LAW AND FACT RELATING TO SUCH ELIGIBILITY, SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS, PROVIDED BY LAW, OR REGULATIONS FOR REGULAR ARMY PERSONNEL.

IN DECISION OF THIS OFFICE DATED NOVEMBER 23, 1944, 24 COMP. GEN. 407, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

THE LIMITATION OF $3,000 PER ANNUM, AND EXCEPTIONS THERETO, PRESCRIBED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, ON THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION THAT MAY BE PAID TO A PERSON WHO RECEIVES RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, U.S. CODE, ARE APPLICABLE TO ANY RETIRED OFFICER RECEIVING SUCH RETIRED PAY, WITHOUT REGARD TO THE PARTICULAR STATUTE PURSUANT TO WHICH THE OFFICER SERVED ON ACTIVE DUTY OR WAS RETIRED FROM ACTIVE SERVICE, INCLUDING OFFICERS OF THE ARMY OF THE UNITED STATES RECEIVING RETIREMENT PAY PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939.

IN THE DECISION OF THIS OFFICER REFERRED TO IN YOUR LETTER ABOVE, 26 COMP. GEN. 271, IT WAS HELD (QUOTING THE FOURTH PARAGRAPH OF THE SYLLABUS):

ENLISTED MEN OR RETIRED ENLISTED MEN OF THE NAVY WHO, PURSUANT TO SECTION 8 (A) OR 8 (B), OR SECTION 10, AS AMENDED, OF THE ACT OF JULY 24, 1941, BECOME ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF THEIR TEMPORARY ACTIVE-DUTY COMMISSIONED RANK MAY NOT WAIVE COMPUTATION ON SUCH BASIS AND ELECT TO RECEIVE RETIRED PAY BASED ON ENLISTED RATINGS, SO AS TO RENDER THEMSELVES EXEMPT FROM THE LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, ON THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY "FOR OR ON ACCOUNT OF" COMMISSIONED SERVICE WHICH MAY BE RECEIVED. STATEMENTS TO THE CONTRARY IN PRIOR DECISIONS NO LONGER WILL BE FOLLOWED.

THE BASIS FOR SUCH HOLDING IS SET FORTH IN THE SAID DECISION AS FOLLOWS (QUOTING FROM PAGES 277 AND 278):

THE ONLY RIGHT OF ELECTION PROVIDED BY SECTION 212 OF THE ECONOMY ACT, AS AMENDED, SUPRA, IS THAT PERMITTED "WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM" AND, UNDER SUCH CIRCUMSTANCES, THE RIGHT IS LIMITED TO AN ELECTION BETWEEN THE PAY OF THE CIVILIAN OFFICE OR POSITION AND THE RETIRED PAY. HENCE, IT IS NOT UNDERSTOOD UPON WHAT BASIS THE INDIVIDUALS EMBRACED UNDER QUESTIONS (B) AND (C) MAY BE CONSIDERED AS HAVING A RIGHT OF ELECTION UNDER THE SAID SECTION 212 WITH RESPECT TO THE PARTICULAR BASIS UPON WHICH THEIR RETIRED PAY SHALL BE COMPUTED FOR THE PURPOSES OF THAT SECTION.

THE PROVISIONS OF SECTION 8 (A) AND (B) AND SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY PUBLIC LAW 305, GOVERN THE RETIRED PAY OF THE INDIVIDUALS REFERRED TO IN QUESTIONS (C) AND (B), RESPECTIVELY. NEITHER OF THE ABOVE SECTIONS CONFERS ANY RIGHT OF ELECTION UPON THE INDIVIDUALS COVERED THEREBY TO HAVE THEIR RETIRED PAY COMPUTED IN ANY OTHER MANNER THAN THAT PROVIDED IN SUCH SECTIONS. CONSEQUENTLY, THE RETIRED PAY OF SUCH INDIVIDUALS MUST BE COMPUTED FOR ALL PURPOSES ON THE BASES THEREIN PRESCRIBED. STATED IN OTHER WORDS, INDIVIDUALS COVERED BY SUCH SECTIONS MAY NOT WAIVE THE INCREASED RETIRED PAY PROVIDED BY THOSE SECTIONS IN ORDER TO RECEIVE THE RETIRED PAY OF A LESSER AMOUNT WHICH THEY FORMERLY RECEIVED--- AS IN THE CASE OF ENLISTED MEN INITIALLY RETIRED AS ENLISTED MEN--- NOR MAY THEY ELECT TO RECEIVE IN LIEU OF THEIR STATUTORY RETIRED PAY A ,CONSTRUCTIVE" RETIRED PAY BASED UPON THEIR FORMER ENLISTED GRADE BUT WHICH PAY THEY NEVER HAD RECEIVED, AS WOULD BE THE CASE OF INDIVIDUALS ON ACTIVE DUTY WHO WERE GIVEN TEMPORARY PROMOTIONS AS COMMISSIONED OFFICERS AND WHO WERE RETIRED SUBSEQUENT TO THE ENACTMENT OF PUBLIC LAW 305 AND WHO NOW ARE IN RECEIPT OF RETIRED PAY PURSUANT TO SECTION 10 (B) (2) OF THE 1941 STATUTE AS AMENDED BY PUBLIC LAW 305. IN THIS CONNECTION, IT MAY BE STATED THAT THE SAVING PROVISIONS CONTAINED IN SECTION 7 OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 604, ARE NOT CONSIDERED AS IN ANY WISE AFFECTING THE RETIRED PAY TO WHICH SUCH INDIVIDUALS ARE ENTITLED. THE PROVISIONS OF PUBLIC LAW 305, 60 STAT. 28, CONSIDERED IN THE ABOVE-QUOTED DECISION, CHANGED THE BASIS FOR COMPUTING THE REGULAR (NAVAL) RETIRED PAY OF THE CLASSES OF PERSONNEL SPECIFIED THEREIN BUT SUCH SUPERSEDING PROVISIONS HAD THE EFFECT OF SUBSTITUTING THAT STATUTORY RIGHT TO REGULAR (NAVAL) RETIRED PAY COMPUTED ON A SPECIFIED BASIS FOR THE STATUTORY RIGHT TO HAVE SUCH PAY COMPUTED ON A DIFFERENT (PREEXISTING) BASIS AND DID NOT HAVE THE EFFECT OF CREATING DUAL RIGHTS IN ANY PERSON, FOR RETIRED PAY PURPOSES, WHEREAS, IT APPEARS, FOR REASONS SET FORTH BELOW, THAT, UNDER THE STATUTORY PROVISIONS AND THE PRINCIPLES APPLICABLE TO THE QUESTION YOU PRESENT, THE VETERAN THERE INVOLVED DID ACQUIRE DUAL RIGHTS (I.E., A RIGHT TO REGULAR MILITARY RETIRED PAY AS AN ENLISTED MAN AND A CONCURRENT RIGHT TO A CERTAIN AMOUNT OF OFFICERS' DISABILITY RETIREMENT PAY IN THE NATURE OF PENSION) SUBJECT TO LIMITATIONS AS INDICATED HEREINAFTER.

THERE HAS NOT BEEN SHOWN THE DATE OF APPROVAL OF THE FINDINGS AND RECOMMENDATIONS OF THE RETIRING BOARD WHICH DETERMINED THAT THE VETERAN HAD CONTRACTED PERMANENT DISABILITY IN LINE OF DUTY WHILE ON ACTIVE DUTY AS AN OFFICER BUT IT IS INDICATED THAT THE WAR DEPARTMENT'S CERTIFICATION TO THE VETERANS' ADMINISTRATION, BASED UPON SUCH FINDINGS AND RECOMMENDATIONS, WAS MADE ON DECEMBER 28, 1945, AND IT IS ASSUMED THAT SUCH APPROVAL WAS GIVEN AFTER SEPTEMBER 22, 1945, THE DATE WHEN, IT APPEARS THE VETERAN LAST SERVED AS A CIVILIAN EMPLOYEE. MENTION OF SUCH MATTER IS MADE IN VIEW OF THE RULE THAT, GENERALLY, THE EFFECTIVE DATE OF THE RETIREMENT OF A REGULAR ARMY OFFICER IS GOVERNED BY THE DATE WHEN THE PRESIDENT APPROVES HIS RETIREMENT, AND BY THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, AND MAY NOT BE A DATE PRIOR TO THE DATE OF SUCH APPROVAL. 25 COMP. GEN. 663.

THAT SUCH RULE HAS NOT BEEN APPLIED IN CASES WHERE TEMPORARY OFFICERS OF THE ARMY OF THE UNITED STATES HAVE BEEN AWARDED DISABILITY "RETIREMENT PAY" IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, AND EXECUTIVE ORDERS, IS INDICATED BY THE ACTION OF BOTH THE WAR DEPARTMENT AND THE VETERAN ADMINISTRATION IN THE CASE OF THE VETERAN HERE INVOLVED. MOREOVER IS UNDERSTOOD THAT IT HAS BEEN THE GENERAL PRACTICE OF THE WAR DEPARTMENT, IN MAKING DETERMINATIONS OF THE ELIGIBILITY OF OFFICERS FOR DISABILITY RETIREMENT PAY UNDER THE SAID SECTION 5, TO CERTIFY, AS THE EFFECTIVE DATE OF ELIGIBILITY FOR SUCH RETIREMENT PAY, THE DAY IMMEDIATELY FOLLOWING THE LAST DAY OF THE PERIOD OF ACTIVE DUTY DURING WHICH THE DISABILITY WAS SUFFERED, AND, APPARENTLY, THE VETERANS' ADMINISTRATION, IN THE PERFORMANCE OF ITS FUNCTIONS UNDER THE EXECUTIVE ORDERS QUOTED ABOVE, HAS MADE AWARDS IN AGREEMENT WITH THE TERMS OF CERTIFICATIONS ISSUED IN ACCORDANCE WITH SUCH PRACTICE. THE LEGALITY OF SUCH PRACTICE HAS NOT BEEN QUESTIONED BY THIS OFFICE. IN THAT CONNECTION, SEE DECISION OF OCTOBER 19, 1943, TO THE SECRETARY OF WAR, 23 COMP. GEN. 284, WHEREIN IT WAS STATED (QUOTING FROM PAGE 286):

* * * RETIRED PAY, TOGETHER WITH ANY LONGEVITY INCREASE THEREIN, IS PAID TO RETIRED OFFICERS OF THE REGULAR ARMY AS CURRENT COMPENSATION OR PAY FOR THEIR CONTINUED SERVICE AS OFFICERS AFTER RETIREMENT AND ONLY WHILE THEY REMAIN IN THE SERVICE ( UNITED STATES V. TYLER, 105 U.S. 244), WHEREAS THE "RETIREMENT PAY" AUTHORIZED BY SECTION 5 OF THE SAID ACT OF APRIL 3, 1939, FOR OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, WHO SUFFER DISABILITY WHILE EMPLOYED IN THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT, IS NOT CONDITIONED ON THEIR REMAINING IN THE SERVICE BUT IS MORE IN THE NATURE OF A PENSION PREDICATED ON THE DISABILITY, WITHOUT REGARD TO WHETHER THEY REMAIN IN THE SERVICE AND WITHOUT RELATION TO ANY SUCH SUBSEQUENT SERVICE. COMPARE DECISION OF AUGUST 16, 1943, B-35046, 23 COMP. GEN. 102. SEE, ALSO, DECISION OF JULY 21, 1939, B-4432. * * *

IN DECISION OF THIS OFFICE TO YOU, DATED MAY 23, 1946, 25 COMP. GEN. 802, IT WAS HELD AS FOLLOWS (QUOTING THE FIRST PARAGRAPH OF THE SYLLABUS):

PAYMENTS OF RETIREMENT PAY MADE BY THE VETERANS' ADMINISTRATION PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, TO AN OFFICER OF THE ARMY OF THE UNITED STATES IN ACCORDANCE WITH A DETERMINATION BY THE SECRETARY OF WAR UNDER EXECUTIVE ORDER NO. 8099, AS AMENDED, THAE OFFICER'S DISABILITY WAS INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY, NEED NOT BE REFUNDED WHERE THE SECRETARY OF WAR REDETERMINED, ON THE BASIS OF ADDITIONAL EVIDENCE, THAT THE DISABILITY WAS NOT INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY.

IN THAT DECISION IT WAS STATED THAT THERE WOULD APPEAR TO BE FOR APPLICATION, BY ANALOGY TO SUCH CASES, THE PRINCIPLE OF THE RULE STATED IN 3 COMP. GEN. 41, 43, AS FOLLOWS:

PARTICULAR ATTENTION IS DIRECTED TO THE GENERALLY ACCEPTED AND ESTABLISHED PRINCIPLE THAT CORRECTION OF AN AWARD CAN NOT BE SO MADE RETROACTIVELY AS TO DISTURB VESTED RIGHTS UNDER A RULING OR AWARD MADE BY COMPETENT AUTHORITY, ESPECIALLY UPON A CHANGE OF JUDGMENT OR OPINION AS TO THE DEGREE OR PERMANENCE OF THE CONDITION OF DISABILITY. ANY CHANGE IN THE AWARD UPON REVIEW ENDING OR DIMINISHING THE COMPENSATION PREVIOUSLY AWARDED IS EFFECTIVE ONLY FROM THE DATE OF THE CHANGE, PAST PAYMENTS NOT TO BE DISTURBED, BUT CHANGES IN AWARDS INCREASING COMPENSATION, OR ALLOWING COMPENSATION PREVIOUSLY REFUSED, REDUCED, OR DISCONTINUED MAY BE RETROACTIVE TO THE DATE SUCH DEGREE OF DISABILITY BEGAN BUT NOT EARLIER THAN DATE OF DISCHARGE OR RESIGNATION OF THE BENEFICIARY FROM THE MILITARY OR NAVAL SERVICE. 2 COMP. GEN. 462.

SUCH RULE, RELATING PRIMARILY TO PENSIONS AND RELATING BY ANALOGY TO "RETIREMENT PAY" IN THE NATURE OF PENSION, MAY NOT BE INVOKED AS AUTHORITY FOR GIVING RETROACTIVE EFFECT TO ANY CHANGE IN AN ENLISTED MAN'S STATUS AS A RETIRED MEMBER OF THE REGULAR ARMY WHO REMAINS A MEMBER OF THE MILITARY SERVICE AFTER SUCH RETIREMENT ( UNITED STATES V. TYLER, 105 U.S. 244; 1 COMP. GN. 700, 02; 22 ID. 664, 671). THE VETERAN HERE INVOLVED APPARENTLY WAS RETIRED AS A REGULAR ARMY ENLISTED MAN, ACQUIRED A STATUS AS SUCH, REMAINS A MEMBER OF THE MILITARY SERVICE WHILE HOLDING SUCH STATUS, AND BECAME VESTED OF A STATUTORY RIGHT TO THE RETIRED PAY ACCRUING BY REASON OF SUCH STATUS WHICH COULD NOT BE DIVESTED RETROACTIVELY. HOWEVER, BY ANALOGY, HIS CASE SEEMS TO FALL WITHIN THE AMBIT OF THE PRINCIPLES WHICH HAVE GOVERNED IN CASES INVOLVING PERSONS WHO WERE ENLISTED MEN ON THE RETIRED LIST OF THE REGULAR ARMY AND WHO REMAINED SUCH AFTER THEY WERE PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, 45 STAT. 735, AND UNDER SUCH PRINCIPLES IT SEEMS THAT, WHILE HIS STATUS COULD NOT BE CHANGED RETROACTIVELY BY THE WAR DEPARTMENT'S DETERMINATION OF HIS ELIGIBILITY FOR OFFICERS' DISABILITY RETIREMENT PAY, SUCH DETERMINATION DID HAVE THE EFFECT OF RETROACTIVELY ENTITLING HIM TO OFFICERS' DISABILITY RETIREMENT PAY SUBJECT TO THE LIMITATION THAT THE AMOUNT ACCRUING TO HIM AS OFFICERS' DISABILITY RETIREMENT PAY COULD NOT IN ANY EVENT EXCEED THE DIFFERENCE BETWEEN HIS RETIRED PAY AS AN ENLISTED MAN AND THE TOTAL AMOUNT OF OFFICERS' RETIREMENT PAY WHICH LEGALLY COULD BE PAID TO HIM IF HE HAD NO OTHER FEDERAL PAY RIGHTS. SEE 9 COMP. GEN. 399, WHEREIN, FOLLOWING THE PRINCIPLES OF THE DECISIONS OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA IN HINES V. UNITED STATES, EX REL. CAVANAGH, 39 F.2D 517, AND HINES V. UNITED STATES, EX. REL. EASTON, 39 F.2D 519, IT WAS STATED (QUOTING FROM PAGE 404):

* * * IF, HOWEVER, ANY SUCH OFFICERS (FORMER EMERGENCY OFFICERS PLACED ON THE RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928) IN FACT APPEAR AS OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, EITHER ON THE ACTIVE OR RETIRED LIST, OR ARE RECEIVING RETAINER PAY AS TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE OR THE FLEET MARINE CORPS RESERVE, THE PAYMENTS MADE BY THE DISBURSING CLERK OF THE UNITED STATES VETERANS' BUREAU MAY NOT EXCEED THE DIFFERENCE BETWEEN THE RETIRED PAY ACCRUING TO THE FORMER EMERGENCY OFFICER UNDER THE ACT OF 1928, AND THE AMOUNT CLAIMED FOR ARMY, NAVY, OR MARINE CORPS ACTIVE, RETIRED, OR RETAINER PAY.

SEE, ALSO, PATE V. UNITED STATES, 78 C.1CLS. 395.

CONSIDERATION HAS BEEN GIVEN TO THE PROVISIONS OF SECTION 15 OF THE ACT OF JULY 13, 1943, 57 STAT. 559, WHICH AMENDED PARAGRAPH XIII OF VETERANS REGULATION NUMBERED 10 TO READ AS FOLLOWS:

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. THE RECEIPT OF PENSION OR COMPENSATION BY A WIDOW, CHILD, OR PARENT ON ACCOUNT OF THE DEATH OF ANY PERSON, OR RECEIPT BY ANY PERSON OF PENSION OR COMPENSATION ON ACCOUNT OF HIS OWN SERVICE, SHALL NOT BAR THE PAYMENT OF PENSION OR COMPENSATION ON ACCOUNT OF THE DEATH OR DISABILITY OF ANY OTHER PERSON. THIS PARAGRAPH IS HEREBY MADE APPLICABLE TO ALL LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION. SECTION 4715 OF THE REVISED STATUTES ( U.S.C., TITLE 38, SEC. 25) AND ANY OTHER LAWS IN CONFLICT HEREWITH ARE HEREBY REPEALED OR MODIFIED ACCORDINGLY.

PENSION, COMPENSATION, OR RETIREMENT PAY ON ACCOUNT OF HIS OWN SERVICE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE PAY.

THE THIRD PROVISO OF PARAGRAPH 2 OF SECTION 1 OF THE ACT OF MARCH 3, 1891 ( U.S.C., TITLE 38, SEC. 26); THE LAST PROVISO OF PARAGRAPH 2 OF SECTION 3 OF THE ACT OF JANUARY 28, 1915 ( U.S.C., TITLE 38, SEC. 27), AND ANY OTHER PROVISION OF LAW OR VETERANS REGULATION CONTRARY HERETO IS HEREBY REPEALED OR MODIFIED ACCORDINGLY.

IT WILL BE NOTED THAT HIS SECTION PROHIBITS THE MAKING OF MORE THAN ONE AWARD--- A WORD NOT NORMALLY USED IN CONNECTION WITH REGULAR MILITARY OR NAVAL RETIRED PAY--- AND THAT IT REFERS TO ,PENSION, COMPENSATION, OR EMERGENCY OFFICERS' OR REGULAR RETIREMENT PAY," MAKING NO MENTION OF ,RETIRED PAY"--- THE TERM GENERALLY AND CONSISTENTLY USED TO DESCRIBE THE MILITARY OR NAVAL RETIRED PAY OF AN OFFICER OR ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR ARMY OR THE REGULAR NAVY. IT WILL BE NOTED, ALSO, THAT THE SECTION, BY ITS TERMS, IS APPLICABLE TO "ALL LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION" BUT THAT IT MAKES NO MENTION OF ANY LAWS ADMINISTERED BY OTHER DEPARTMENTS SUCH AS THE LAW UNDER WHICH HE VETERAN HERE INVOLVED WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR ARMY. MOREOVER, THE SECTION SPECIFICALLY PROHIBITS THE PAYMENT OF PENSION, COMPENSATION OR RETIREMENT PAY ON ACCOUNT OF HIS OWN SERVICE TO ONE WHO IS IN RECEIPT OF ACTIVE SERVICE PAY, AND, IN THIS CONNECTION, IT STILL MAKES NO MENTION OF "RETIRED PAY.' WHEN THESE MATTERS ARE CONSIDERED AND THE SAID SECTION 15 IS EXAMINED TOGETHER WITH THE PROVISIONS OF THE ACT OF MAY 27, 1944, 58 STAT. 230, 38 U.S.C., SUPP. V, 26C--- AUTHORIZING A RETIRED MEMBER OF THE MILITARY OR NAVAL ESTABLISHMENT TO WAIVE SO MUCH OF HIS MILITARY OR NAVAL RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO ANY PENSION OR COMPENSATION TO WHICH HE MAY BE ENTITLED UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION--- THE CONCLUSION SEEMS TO BE REQUIRED THAT THE SAID SECTION 15 DOES NOT NECESSITATE OR JUSTIFY A DEPARTURE FROM THE PRINCIPLE OF THE RULE BASED ON THE COURT DECISIONS CITED ABOVE.

THUS IT APPEARS THAT THE VETERAN HERE INVOLVED LEGALLY WAS ENTITLED TO RECEIVE THE PAYMENTS HE DID RECEIVE AS PAY OF A RETIRED ENLISTED MAN OF THE ARMY. CLEARLY, SUCH RETIRED PAY WAS NOT PAID ,FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SUPRA, AND, HENCE, THE SAID SECTION HAS NO APPLICATION TO IT. HOWEVER, AN ADDITIONAL AMOUNT, REPRESENTING THE DIFFERENCE BETWEEN SUCH RETIRED PAY AND THE TOTAL AMOUNT THAT COULD ACCRUE TO HIM FOR A LIKE PERIOD AS OFFICERS' DISABILITY RETIREMENT PAY IF HE WERE RECEIVING NO OTHER FEDERAL PAY OR COMPENSATION, OR ACCRUED TO HIM "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" SUBJECT TO THE CONDITIONS AND LIMITATIONS OF THE SAID SECTION. THEREFORE, IN ADJUSTING HIS DEBITS AND CREDITS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212, AS AMENDED, SUCH DIFFERENCE, ONLY, SHOULD BE CONSIDERED AS "RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.'