6 tions of the executive branch that a Veterans' Administration hospital or other Veterans' Administration facility which is in operation on the date of its enactment should be closed, give rise to serious constitutional questions concerning the principle of separation of executive and legislative powers. Section 5 of H.R. 5498 would prohibit the transfer, by sale, lease, or otherwise, of any real property which was under the jurisdiction of the Veterans Administration unless 30 days' advance notice is given to the Senate and House Committees on Veterans' Affairs and neither House has expressed its disapproval by resolution prior to 90 days in cases involving 100 acres or more where value exceeds $100,000 or 30 days in cases of lesser area and value. Our authority to dispose of interests in real property is provided by 38 U.S.C. 5012(a) (out-leasing) and 38 U.S.C. 5014 and 40 U.S.C. 319 (easements and right-of-way). Gifts of real property may be disposed of under 38 U.S.C. 5104. Other disposal authority comes from the General Services Administration by delegation. Present Veterans' Administration policy dealing with optimum land use in accordance with long-range plans includes in the criteria to be considered, possible use of affiliated medical school or health care training facilities, as well as Veterans' Administration physical facilities, roads and parking. recreation areas, overall esthetics, buffer zones, easements to public utility companies, State or local governments, topography, and cemeteries to assure that land which is essential to Veterans' Administration activities and responsibilities is not mistakenly declared excess. We feel that this policy assures our maintenance of interest in real property adequate to meet our future needs. A provision similar in objective to section 5 of H.R. 5498 was contained in section 10 of H.R. 12674, 92d Congress, which was disapproved by the President last October. The President, in his memorandum of disapproval, stated in pertinent part: This bill would block the orderly system of surplus land disposal established by general law and Executive order, by requiring an unusual congressional approval procedure, before any VA land holdings larger than 100 acres could be sold. These property transfer restrictions would undermine the executive branch's Government-wide system of property management and surplus property disposal which is designed to assure the best and fullest use of Federal property. It would impede the Legacy of Parks program and the procedures for disposing of surplus Federal property under the Federal Property and Administrative Services Act and Executive Order 11508. We are of the view that the provisions of section 5 of H.R. 5498 would impose undue and unnecessary limitations on the authority of the agency. We have been advised by the Department of Justice as follows: The one House veto technique found in sections 2, 4, and 5 of the bill appears to be constitutionally defective in that it precludes the President from exercising an essential aspect of his functions under article 1, section 7 of the Constitution-the authority to veto legislation passed by the Congress. Occasional statutes which utilize the one House veto mechanism such as the Reorganization Acts and the compensation for Federal officials statutes (2 U.S.C. 359 and 5 U.S.C. 5305) authorize Congressional review of Presidential decisions which are essentially legislative in nature. Such is not the case with the Executive powers which this bill proposes to abridge. In summary, I am convinced that the restrictive procedures which would be imposed by the proposed legislation would work to the serious detriment of the Veterans Administration medical and benefit programs and would deeply erode the sound policy which has long been followed under existing law. The additional requirements and prohibitions would seriously interfere with the systematic planning which is essential to the effective discharge of responsibilities which the Veterans Administration, under direction of the President, must strive to meet in serving the needs of our veterans. Because of the many variable factors, we are unable to estimate the cost of this bill, if enacted. For the reasons given earlier in this report, the Veterans Administration opposes the enactment of H.R. 5498, 93d Congress. The Office of Management and Budget advises that there is no objection to the presentation of this report, and that enactment of H.R. 5498 would not be in accord with the administration's program. Sincerely, DONALD E. JOHNSON, [No. 41] COMMITTEE ON VETERANS' AFFAIRS, HOUSE OF REPRESENTATIVES VETERANS' ADMINISTRATION, OFFICE OF THE ADMINISTRATOR OF VETERANS AFFAIRS, Washington, D.C., May 25, 1973. Hon. WM. JENNINGS BRYAN DORN, Chairman, Committee on Veterans' Affairs, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: I am pleased to respond to your request for a report on H.R. 1039, 93d Congress. The bill proposes to authorize the payment of compensation for any service-connected disability rated 30 percent or more concurrently with emergency officers', Regular or Reserve retirement pay, except that such concurrent payments would not be permitted if the two benefits were based on the same disability. The proposals are identical with bills which have been introduced in the Congress over a number of years. The most recent examples are H.R. 882 and H.R. 3353, 92d Congress. These identical measures were pending before your committee at the close of that Congress. Existing law (38 U.S.C. 3104 (a)) prohibits, with a limited exception, the concurrent payment to any person based on his own service of more than one award of pension, compensation, or emergency officers', Regular or Reserve retirement pay. The exception permits any person who is entitled to both retirement pay and compensation or pension to waive so much of his retirement pay as equals the compensation or pension for which he is eligible and thereafter to receive such compensation or pension in addition to the remaining portion of his retirement pay. A prohibition against dual awards has been a part of the law for many years. The act of March 3, 1891 (26 Stat. 1082), prohibited the payment of pensions to persons on the active or retired list of the Army, Navy, or Marine Corps. If a veteran is entitled to benefits from both sources, he may, of course, elect the one which is greater in amount. The policy against the concurrent payment of more than one benefit is also reflected in another provision of 38 U.S.C. 3104 which provides that pension, compensation, or retirement pay on account of a person's service shall not be paid for any period for which he receives active service pay. This section also bars the payment of compensation for service-connected disabilities concurrently with pension for non-service-connected disabilities. As noted above, the policy against concurrent payments has been relaxed to the extent of authorizing a partial waiver so that full compensation or pension can be drawn concurrently with part of the retirement pay to which a veteran is eligible. This does not involve any duplicate amounts since the total waiver cannot exceed the gross amount of the retirement pay. The principal advantage to the veteran of waiving a portion of his retirement pay and receiving an equal amount of compensation or pension lies in the fact that compensation 2 and pension payments are tax exempt (38 U.S. Code 3101), whereas retirement pay based on length of service or attained age is not. It is believed probable that enactment of H.R. 1039 would not affect the vast majority of retirees. The two principal reasons for military retirement are disability and length of service. Of those servicemen retired for disability, few could claim a service-connected disease or injury 30 percent or more disabling which had not already been taken into consideration by the service department in connection with their retirement. And, since it is generally to the financial advantage of service personnel to retire for disability rather than longevity, it is believed that not too many of those retired for longevity would be likely to have had a service-connected disability 30 percent or more disabling. The proposal would benefit three principal classes of retirees. The first would be those persons who had a service-connected disability of the requisite degree at time of retirement but for some reason-perhaps because the service department concerned determined that the disability did not render the individual unfit to perform the duties of his grade or office--were actually retired for longevity. Persons in the second class are those individuals who may hereafter become eligible to retire because of both disability and length of service. At present it is to their financial advantage to accept disability retirement for two reasons. First, the amount of disability retirement pay exceeds the amount of longevity retirement pay payable for less than 30 years' service; and second, disability retirement pay is generally exmept from taxation as income. The enactment of the bill would make it financially more advantageous for such a retiree to accept longevity retirement if the amount of disability compensation payable for his service-connected disabilities plus his longevity retirement pay, less the income tax payable on that retirement pay, exceeds the amount of disability retirement pay he would be eligible to receive. The third group that would be benefited by these proposals are those individuals who were retired for either disability or longevity and who are subsequently determined to have a disease or disability which is service-connected under certain statutory presumptions. Since it is not possible to identify the cases to which the proposal would apply, the Veterans' Administration is unable to furnish an estimate of the cost of enactment of the measure. As heretofore noted, the prohibition against the concurrent payment of disability compensation and retirement pay has been a part of the law for over 70 years. This policy apparently reflects the view that the pyramiding of these benefits to a veteran would exceed the Government's obligation to him. The Veterans' Administration is not aware of any cogent reasons for departing from this policy. Accordingly, the Veterans' Administration opposes enactment of H.R. 1039. This will also serve as a report on identical measures H.R. 2070 and H.R. 2476. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely, DONALD E. JOHNSON, 31-413 - 74-2 [No. 48] COMMITTEE ON VETERANS' AFFAIRS, HOUSE OF REPRESENTATIVES VETERANS' ADMINISTRATION, OFFICE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, Washington, D.C., June 19, 1973. Hon. WM. JENNINGS BRYAN DORN, DEAR MR. CHAIRMAN: We are pleased to respond to your request for a report on H.R. 2069, 93d Congress. The purpose of the bill is to require the Administrator of Veterans Affairs to adjust "from time to time" the monthly rates of serviceconnected disability compensation of veterans residing outside the contiguous United States, to offset the difference between the cost-ofliving in the area of residence and the cost-of-living in the District of Columbia, "if such cost in the outside area is substantially higher." Such upward adjustment would be limited to 25 per centum in excess of statutory disability compensation rates. The measure is identical with H.R. 879, 92d Congress, which was pending before your Committee at the close of that Congress. Congress, in constructing the compensation program, established it on the basis of the average man and his average earning capacity. Need has not been a factor in the compensation program since the benefit is designed to overcome the average disabling effect of injury or disease. Thus, there has been no attempt to individualize the program based on educational, career, or geographic differences. This proposal introduces a new concept for payment of compensation-geographical differentials to compensate for cost-of-living variances-and departs from the "average man" concept. Since it is not stable, adoption of a geographic cost-of-living criterion for payment of compensation could require constant change in the rates payable to veterans residing outside the contiguous United States. The basis of the present system-average impairment of earning capacity-could not be retained if veterans with the same percentage-rated loss of earning power were paid different rates. There are many high cost-of-living areas within the contiguous United States. If this proposal were enacted, people living in such areas would demand similar consideration, with the result that equally-disabled veterans in some parts of the country would be receiving higher compensation than those in other areas. The phrase, "outside of the contiguous United States," includes all other areas of the world. Since there are veteran beneficiaries scattered throughout the world, the bill, if enacted, would require world-wide cost-of-living determinations. It is also felt that there could be some administrative problems involving bona fide residency status in view of the mobility of our beneficiaries. Even if these problems were |