MILITARY PENSIONS AND WAR-RISK COMPENSATION TO SAME

PERSONS.

A person having a right to a military pension by reason of an injury received in the military or naval service prior to April 6, 1917, and who by reason of service since April 6, 1917, received an entirely new injury or suffered an aggravation of the old one, thereby coming within the purview of the war risk insurance act, as amended, may not receive both pension and warrisk compensation but may elect between the two forms of payment. Injuries received in the military or naval service prior to April 6, 1917, by persons whose enlistment continued beyond that date, or who reentered the service after that date, may properly be considered by the Director of the Veterans' Bureau in fixing the disability rating of such persons under the war risk act in connection with disability from injuries or disease, or aggravation of prior injuries, occurring after April 6, 1917, where the benefi ciary elects to receive war-risk compensation in lieu of pension under the old laws.

Comptroller General McCarl to the Director, United States Veterans' Bureau, April 12, 1923:

I have your letter of February 20, 1923, presenting for decision two questions with respect to payment of war-risk compensation and pension under prior laws to the same person for the same period of time, first, where the two allowances are for unrelated injuries or disabilities, and, second, where the war-risk compensation is payment for an aggravation of the injury or disability for which the original pension was granted.

Example of the first is that of a man who during the earlier enlistment had two fingers of his left hand amputated for which he has right to a pension. During his second enlistment, authorized with defect noted, he sustained an injury to his right leg, causing anchylosis of the knee, entitling him to war-risk disability compensation. Example of the second is that of a man awarded $8 per month pension on account of an injury to the left eye, who reenlisted for service in the World War, there being noted at the time of the reenlistment the injury, and is claiming compensation by reason of the aggravation suffered during his latest enlistment in addition to the pension for the original injury.

There is for consideration the general proposition underlying both of your questions, whether payment of pension and war-risk compensation to the same person for the same period is authorized. Section 312 of the war risk insurance act of October 6, 1917, 40 Stat. 408, in part is as follows:

The laws providing for gratuities or payments in the event of death in the service and existing pension laws shall not be applicable after the enactment of this amendment to persons now in or hereafter entering the military or naval service, or to their widows, children, or their dependents, except in so far as rights under any such law shall have heretofore accrued.

The war risk act provided a new system of pensions, being a substitution of the earlier pension laws, and use of the word "compensation " in lieu of " pension" did not change the pension character of

the allowance. The compensation is as much a pension for service in the military or naval forces as was the allowance designated as "pension" theretofore. 27 Comp. Dec., 547; id., 607; id., 865; id., 1067; 31 Op. Atty. Gen., 296; 1 Comp. Gen., 26. See also decision of March 21, 1923, 2 Comp. Gen., 582, holding the compensation to be a pension for service in the Army or Navy within the meaning of the exception in section 7 of the employees' compensation act, September 7, 1916, 39 Stat., 742.

Section 4715, Revised Statutes, derived from acts of June 6 and July 25, 1866, 14 Stat., 56; id., 230; and the act of March 3, 1873, 17 Stat., 566, provides as follows:

Nothing in this Title shall be so construed as to allow more than one pension at the same time to the same person, or to persons entitled jointly; but any pensioner who shall so elect may surrender his certificate, and receive, in lieu thereof, a certificate for any other pension to which he would have been entitled had not the surrendered certificate been issued. But all payments previously made for any period covered by the new certificate shall be deducted from the amount allowed by such certificate.

In subsequent pension legislation extending the benefits to persons theretofore not included, or changing the conditions precedent to granting pensions, there appear express prohibitions as follows, or in similar terms: "That no person shall receive more than one pension for the same period." Act of July 25, 1882, 22 Stat., 176; act of June 27, 1890, 26 Stat., 182, as amended by act of May 9, 1900, 31 Stat., 170; act of August 5, 1892, 27 Stat., 348; act of February 6, 1907, 34 Stat., 879; act of May 11, 1912, 37 Stat., 112.

Under the act of December 24, 1919, 41 Stat., 374, amending the war risk act so as to make sections 301 and 302, relative to compensation for death or disability, retroactively effective from October 6, 1917, to April 6, 1917, persons claiming the benefits of the war risk act for service during that period were required to relinquish any gratuity or pension granted under the pension laws. Such amendment to section 301 is reenacted in act of March 4, 1923, 42 Stat., 1524. These provisions show an intention to continue, with respect to the new system of pensions established by the war risk act, the settled policy of Congress to limit one person to one military or naval pension during the same period, as expressed in section 4715, Revised Statutes, and a long line of subsequent legislation. Decision of March 21, 1923, 2 Comp. Gen. 582. In the absence of a clear statutory expression so providing, there would be no sound basis for concluding that a different policy had been adopted merely because of the change in the system of granting the military and naval pensions.

The expression in section 312 of the war risk act discontinuing the old pension system, emphasized by you as constituting possible authority for payment of both pension and compensation, viz,

except in so far as rights under any such law have heretofore accrued," merely saved to a pensioner the right to receive the pension under the old system, where his right had accrued, notwithstanding he was in the service upon the passage of the war risk act, and was not intended as granting right to double pension. Under the old pension laws right to a pension "accrued " upon death or honorable discharge of the soldier, act of January 25, 1879, 20 Stat., 265, 17 Pension Decisions 129; 19 Op. Atty. Gen. 2, or when he was entitled to an honorable discharge, 31 Op. Atty. Gen. 296. If the soldier was continued in active service through reenlistment or otherwise, although his right had accrued, he did not begin to receive payment until final release from active service. Thus this provision in section 312 must be construed as excepting from the operation of the war risk act a pensioner's right to receive subsequent payment of pension accrued under the old laws upon final release from active service performed after October 6, 1917, but not as excepting that right from operation of the prohibition against receipt of two pensions.

Accordingly in the two classes of cases cited by you, involving unrelated injuries and disabilities, or aggravation of the same injury and disability, there exists no authority for payment of both pension and war-risk compensation to the same person for the same period, but the pensioner may elect between the two forms of pensions.

Your attention is directed to the following proviso in the act of March 4, 1923, 42 Stat., 1523, amending the war risk insurance act:

And provided further, That compensation as hereinafter provided may be paid for disability resulting from personal injury or disease contracted in line of duty prior to April 6, 1917, or for aggravation of a disability existing prior to examination, acceptance, and enrollment for service for such aggravation suffered and contracted in line of duty prior to April 6, 1917, by any member of the military or naval forces in active service on April 6, 1917, whỏ was discharged subsequent to April 6, 1917. With the exception of members of the military and naval forces whose injury was suffered or disease contracted prior to April 6, 1917, this section shall be deemed to be in effect as of April 6, 1917.

The involved phraseology of this proviso has rendered the exact meaning somewhat obscure necessitating a careful interpretation to arrive at the intent of Congress. Without at this time attempting any construction that will cover all possible situations, it is believed that the intent of Congress by the first portion thereof was to authorize the granting of war risk compensation to persons who served subsequent to April 6, 1917, during the World War, based on disabilities resulting from personal injury or disease contracted in line of duty prior to April 6, 1917, and for aggravation of such disabilities caused by World War service. The clause "by any member of the military or naval forces in active service on April 6, 1917,"

apparently should not be construed as relating to persons seeking war risk compensation for disabilities of service origin prior to April 6, 1917, but those in the service on April 6, 1917, and those reentering the service subsequent thereto should be considered alike in this respect. It would seem that Congress could not have had any reason for making a distinction.

Hence in both of the cases presented there is for your consideration the advisability of changing the disability rating because of the double injury or aggravation of prior disability so as to increase the amount of war risk compensation to be received by the beneficiary. But in the event the beneficiary elects to receive such increased compensation he must, of course, relinquish all right to the pension granted him under the old pension laws.

UNIFORM GRATUITY-NAVAL RESERVE FORCE AND VOLUNTEER NAVAL RESERVE.

Any amounts paid as uniform gratuities to enrolled members of the Naval Reserve Force, discharged before the expiration of their enrollment, should be deducted from pay due as reservist at date of discharge from the reserve; or, if insufficient pay is due to liquidate such refund, the excess should be deducted from pay accruing upon subsequent enlistment in the Regular Navy. Members of the Volunteer Naval Reserve to whom a uniform has been issued in kind as permitted by act of July 1, 1922, 42 Stat., 793, are not required to refund the value of such uniform upon discharge, but should be required to refund any uniform gratuity paid to them as members of the Naval Reserve Force prior to transfer to the Volunteer Naval Reserve, if discharged before the expiration of their enrollments.

Comptroller General McCarl to the Secretary of the Navy, April 12, 1923:

I have your letter of March 10, 1923, requesting decision whether the amount of uniform gratuity received by an enrolled member of the Naval Reserve Force may be charged against the clothing credit to which he becomes entitled upon enlistment in the regular Navy, and whether the value of the clothing in kind issued to members of the Volunteer Naval Reserve is required to be refunded upon discharge prior to expiration of enrollment for the purpose of enlisting in the Regular Navy.

The act of August 29, 1916, 39 Stat., 589, provides:

Members of the Naval Reserve Force shall, upon first reporting for active service for training during each period of enrollment, be credited with a uniform gratuity of $50 for officers and $30 for men.

Provided, That should any member of the Naval Reserve Force sever his connection with the service without compulsion on part of the Government before the expiration of his term of enrollment, the amount so credited shall be deducted from any money that may be or may become due him.

VOLUNTEER NAVAL RESERVE.

The Volunteer Naval Reserve shall be composed of those members of the Naval Reserve Force who are eligible for membership in any one of the other

classes of the Naval Reserve Force, and who obligate themselves to service in the Navy in any one of said classes without retainer pay and uniform gratuity in time of peace.

The appropriation act for the fiscal year 1923, act of July 1, 1922, 42 Stat., 793, provides, under the heading "Naval Reserve Force: "

That members of the Volunteer Naval Reserve may, in the discretion of the Secretary of the Navy, be issued such articles of uniform as may be required for their drills and training, the value thereof not to exceed that authorized to be issued to other classes of the Naval Reserve Force

This provision in the appropriation act of July 1, 1922, did not establish a uniform gratuity for the Volunteer Naval Reserve, 2 Comp. Gen., 148, and contains no requirement as in the uniform gratuity provision in the act of August 29, 1916, for a refund on discharge of the cost of such articles of uniform as may be issued.

The act of August 29, 1916, specifically requires a refund where a uniform gratuity has been paid and a member is discharged for purpose of enlisting in the Navy, and provides that the refund shall be made "from any money that may be or may become due him.” The reference to any money that may become due is not limited to money that may be due as a member of the Reserve.

You are accordingly advised that any amounts which have been paid as a uniform gratuity should be deducted from pay due as a reservist at the date of discharge from the Reserve, or if the pay due is insufficient to liquidate the refund the excess should be deducted from pay that accrues under the enlistment in the Regular Navy. No refund is, however, required of the value of uniform issued in kind to a member of the Volunteer Naval Reserve. The mere discharge of a member from the Volunteer Naval Reserve is not necessarily conclusive that no refund is required, for such a member may have received a uniform gratuity as a member of some other class of the Naval Reserve Force prior to a transfer to the Volunteer Naval Reserve made under authority of Alnav 67, dated September 29, 1921.

REPAIRS TO AUTOMOBILE SEIZED WHILE ILLEGALLY TRANSPORTING LIQUOR.

Reimbursement from the appropriation for the enforcement of prohibition may properly be made for labor in repairing an automobile seized while transporting liquor in violation of law, when immediately necessary for the removal of the automobile to storage.

Decision by Comptroller General McCarl, April 12, 1923:

Jacob's Ladder Garage requested March 23, 1923, review of settlement No. T-4968, dated February 23, 1922, disallowing its claim under the act of March 3, 1921, 41 Stat., 1274, for $5 for five hours of labor expended April 27, 1922, in putting a Maxwell car bearing Massachusetts registration No. 197-685, seized by Federal prohibi