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its own errors and its authority to make such correction retroactively effective so long as vested rights are not disturbed. Second, the obligation of the Government is limited by the policy of insurance to a definite number of installments, and it is therefore not material to the pecuniary interest of the Government what number of installments are paid as disability benefit to the insured and what number are paid as death benefit to the beneficiary of the insurance, so long as the Government stands acquitted and discharged from obligation under the policy to the full extent of any and all payments which have been made.
There can be no doubt that the insured himself would be estopped from setting up a claim under the policy for any installment which had already been received by him. Whether the beneficiary also would be estopped from claiming installments erroneously paid to the insured is a more open question.
I understand your submission to relate to those cases only in which the correction is made during the lifetime of the insured and therefore before any right under the policy has vested in the beneficiary. In such cases no right can afterward vest in the insured except to such installments only as have not been paid to the insured during his lifetime.
If, after the correction is made, an insured becomes permanently totally disabled and continues in that condition up to the time of his death, the Government can suffer no loss because of the former erroneous award and payment except the use of the money erroneously awarded and paid, but if no condition of permanent total disability should develop, or if having developed it should subsequently be removed, and in either such case the policy thereafter should lapse, the Government will have suffered a loss of the amount erroneously awarded and paid. The question for decision is whether the Gov. ernment may now be protected from such loss, and the amount erroneously awarded and paid be recovered from the insured by deduction from compensation payment falling due to him, or otherwise.
You express the view that the right to the installments erroneously paid had vested in the insured under competent awards of the director of the bureau, and that those rights may not now be disturbed by any retroactive correction of the awards. That view is correct in so far as it relates to payments on awards of any one of your predecessors in office made under mistake of law, or of opinion and judgment, and uncorrected at the time of payment, such awards not being open to correction by you, but I do not think it can prevail in those cases where you have corrected your own awards, such awards being open to your correction in matters of law, or of opinion and judgment, as well as in matters of fact. Any award which you may have made which did not conform to the statutory require
ment that there must be a condition of permanent total disability to mature insurance was without authority of law, and therefore could vest no right in the insured which might not be defeated by your subsequent correction. The right of the insured must rest primarily upon the statute. The award merely fixed and determined that right.
As a comparatively short time intervened between your induction into office and the adverse decision of this office to which reference has been made, I assume that the embarrassment and hardship growing out of former erroneous bureau awards will be reduced to a minimum. It is to be regretted that such a situation has arisen, but it can not be relieved by a decision of this office relaxing those sound legal principles which must govern the transaction of public affairs
In the opinion of this office, it is the right and duty of the director to protect the interest of the United States by recovering so far as may be all erroneous payment of insurance on correction of his own award in any case where failure to do so may subject the Government to pecuniary loss. I think it is not his duty to recover such payments in any case where the pecuniary interest of the United States will not be jeopardized by a failure to make the recovery.
TRANSPORTATION OF DEPENDENTS OF OFFICERS OF THE
ARMY. Officers of the Army ordered to make a temporary change of station are not
entitled to transportation of their dependents to the temporary duty
station. Officers of the Army ordered to make a permanent change of station are
entitled to transportation of their dependents only from the place where they are then located to the new permanent duty station, if not greater
than the cost of transportation from the old to the new station. Decision by Comptroller General McCarl, January 29, 1923.
Stephen G. Henry, captain, Infantry, requested November 21, 1922, review of settlement No. W-854846, dated November 16, 1922, disallowing his claim for reimbursement in a sum equal to what it would have cost the United States to have transported his wife from Camp Lewis, Wash., to Camp Meade, Md., incident to change of stations under orders dated September 15 and 17, 1921, and May 15, 1922.
Claimant reported September 17, 1921, to the commanding general at Camp Pike, Ark., from leave of absence, for duty, and by Special Order No. 221 of that date he was directed to proceed to Camp Lewis, Wash., and report there to the commanding general for duty. Prior thereto and on September 15, 1921, orders had been issued to claimant, through the commanding general at Camp Pike, to report to the Massachusetts Institute of Technology on temporary duty for the purpose of taking a course in steam engineering
The orders of September 15, 1921, appear not to have reached Camp Pike prior to his departure there from for Camp Lewis and were forwarded to him at the latter station. He left Camp Lewis on October 3, 1921, for Boston, Mass., paying railroad and Pullman expenses for his wife to that place to the amount of $124.52. After completion of temporary duty at the Massachusetts Institute of Technology and on May 15, 1922, claimant was ordered to report to Camp Meade, Md., on or before June 10, 1922, for station and duty. He paid transportation expenses for his wife from Boston to Camp Meade and claimed reimbursement in a sum equal to what it would have cost the United States to have furnished her with transportation from Camp Lewis direct to Camp Meade.
Under the act of May 18, 1920, 41 Stat., 604, when a commissioned officer who has a wife is ordered to make a permanent change of station he is entitled to transportation for the wife from the old to the new station. He is not entitled to transportation for his wife when ordered to make a temporary change of station, 27 Comp., Dec., 400. Therefore, claimant was not entitled to transportation for his wife from Camp Lewis to Boston when he was ordered to the latter place for temporary duty. When he was ordered from Boston to Camp Meade for permanent duty his wife was at Boston and transportation from thence to Camp Meade only was authorized, if the distance from the temporary station to the new station did not exceed that from the old to the new station. The distance was not in excess, and claimant is entitled to reimbursement in the sum of $20.98, the amount it would have cost the United States to have furnished transportation from Boston to Camp Meade. See 27 Comp. Dec., 530.
Upon review of the matter the settlement is modified and $20.98 is certified due claimant.
WAR RISK INSURANCE-RATING OF PERMANENT TOTAL DISA. BILITY AWARDED AFTER REDUCTION IN FACE OF POLICY.
A retroactive rating of permanent total disability awarded upon proof filed
after applicant's converted war-risk policy had been reduced in accordance with his request is effective to mature the policy only to the extent of the reduced insurance, notwithstanding the fact that the application for such
rating was filed before the reduction. Comptroller General McCarl to the Director, United States Veterans' Bureau,
January 30, 1923.
I have your letter of December 12, 1922, requesting reconsideration of a decision of this office of August 26, 1922, in the case of John Leslie McPartlin, who held a policy of converted insurance which had been matured on a retroactive rating of permanent total disability purporting to be effective at a time prior to reduction in the amount of the policy.
The decision was rendered upon the submission of the disbursing clerk of the Veterans' Bureau and was based upon the statement of facts submitted, which statement was stated in the decision to have been incomplete in some respects and not entirely clear on some points of the case. You now submit a full statement of all material facts and say that the decision, which is to the effect that on the facts submitted the reduced insurance only is due and payable, is not in harmony with bureau practice in other like cases.
According to the statement of facts now submitted this insured applied for and was granted term insurance of $10,000 on February 1, 1918. On August 1, 1919, one day prior to his discharge from the service, he executed an application for conversion of $5,000 of this insurance into a 20-year endowment policy, and on August 26, 1919, requested discontinuance of the remaining $5,000 of term insurance. Premiums were paid on the $5,000 of converted insurance to and including the month of February, 1921. Under date of February 14, 1921, he applied for reduction of his insurance as follows:
Referring to my 20-year endowment Government insurance policy # K-42 909, on which premium is due Mar. 1st next, I am now writing you to ask that you reduce the amount of the face of this policy from $5,000.00 to $2,000.00, as the circumstances now will not permit me to carry so much insurance.
Please advise me how you wish to handle this changing the amount of the policy from $5,000.00. As this is the only change I wish to have made, viz, to change the amount of the insurance from $5,000.00 to $2,000.00, could we not arrange to have this amount changed in the policy which I hold now, or will it be necessary to write an entirely new policy for $2,000.00 ?
Kindly advise me how to proceed to make this change, and advise.
Receipt is acknowledged of your request to reduce the amount of your 20-year endowment policy K-42 909 to $2,000.00.
In reply you are advised that the proper investigation has been made, which shows that your insurance has been in force one year and six months, March 1, 1921, and the $3,000 discontinued on that date has a cash value of $149.73. This money may be taken in cash or applied on the retained insurance, paying premiums for approximately one year and ten months. If applied as a single net premium it will purchase a paid-up policy in the amount of $263.97 or extended insurance for approximately six years.
A release receipt for the cash value is enclosed for your signature, and when you return it to the bureau, together with your policy, you are asked to give explicit directions as to the disposition of the above credit.
When you have complied with all requirements a prompt adjustment of your case will be made and a new policy will be issued.
Under date of April 8, 1921, the insured wrote to the bureau inclosing his policy and the release receipt and expressing his desire that the $149.73 be applied to payment of the $2,000 converted insurance retained by him as far as the money would go. Under date of May 10, 1921, the bureau wrote the insured inclosing a new policy for $2,000 and informing him that the cash surrender value of the discontinued insurance had been applied to payment of premiums on the new policy to January 1, 1923, with a slight overpayment. No further payment of premiums on either policy of insurance was
made by the insured, except by application of the cash-surrender value of the discontinued insurance as hereinbefore stated.
The insured applied for compensation February 24, 1921, and due proof that he was permanently totally disabled was received in the bureau May 12, 1921, two days after the bureau had issued and mailed the new policy for $2,000. On a subsequent date not given in your submission but stated in the former decision as January 28, 1922, the applicant was given by the bureau a rating of permanent total disability purporting to be retroactively effective as of March 17, 1921, at which time the application for reduction in the amount of insurance had been received in the bureau but had not been acted upon.
The bureau view of the case is that the clause in the $5,000 policy allowing 31 days' grace for payment of premiums served to keep it in force to a time beyond the date when it, in fact, matured by reason of the permanent total disability of the insured, which was afterwards found by the bureau to have existed from March 17, 1921. If no subsequent action upon the application for reduction had been taken by the bureau, that view would doubtless be the correct one, but the reduction was an accomplished fact before the maturing rating was given, and also before proof of permanent total disability bad been received in the bureau, so that any laches which might be chargeable to the bureau could not affect the legal right of the insured.
Your submission does not show the cause of permanent total disability, but I assume it to have been some cause required to be ascertained and determined by the bureau, and not a cause such as loss of limb, etc., upon which the statute itself establishes such disability. Upon that assumption, the original decision must be adhered to. At the time the maturing rating was given the insured had been fully divested of his right under the former $5,000 policy and rights under the $2,000 had fully vested in him. The Government's obligation therefore must be measured by the latter policy.
The former decision is not only in accordance with law, but it also obviously accords with the accomplished intention of the parties. It is true that the insured had applied for compensation, which appli. cation afterwards established the condition of permanent total disability as existing prior to the accomplishment of the then contemplated reduction in the amount of his insurance, but it is evident that he would not have gone forward with the reduction of his insurance if he had contemplated early maturity of his $5,000 policy on his compensation rating when made.
It has been held that a retroactive rating of permanent total disability can not be effective to mature a policy back of the time of conversion of the insurance, prior maturity of the policy being incon