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authority thereof, following a finding that he is mentally competent, but it is provided further that if he dies before payment to him is accomplished no part thereof may be paid.

During the course of our consideration of your submission, information was received that Mr. Burgess died on March 17, 1963, while still a patient at St. Elizabeths Hospital. Hence, the question now to be decided is whether the final loss of the right to compensation which had been withheld by the Veterans Administration while the member was hospitalized makes the waiver cease to be effective and permits payment of retired pay which theretofore had been waived under the provisions of the act of May 27, 1944, and 38 U.S.C. 3105. We held in 28 Comp. Gen. 484 that to be entitled to pension or compensation otherwise payable a retired person must waive so much of his retired pay and allowances as is equal in amount to the amount of pension or compensation to which he is entitled. We held further therein that the effect of the act of May 27, 1944, was to permit a retired person to elect to receive veterans' benefits without terminating the status giving rise to the right to retired pay. That decision indicates that if the Veterans Administration either reduces, or stops altogether, the payment of pension or compensation which a retired person has been receiving by virtue of a waiver of retired pay executed pursuant to the act of May 27, 1944, the retired pay of such retired person may be increased as may be necessary to continue payment to him in an amount equal to the full amount of retired pay to which he may be entitled.

Generally, once retired pay is waived, a right to again receive such pay can accrue only in the event of termination, as distinguished from a contingent withholding, of compensation by the Veterans Administration, or by a withdrawal of the waiver. Neither the language of the act of May 27, 1944, nor that of 38 U.S.C. 3105, provides for an unconditional waiver of retired pay. Those provisions merely provide that a retired person shall be entitled to receive pension or compensation upon the execution of a waiver of so much of his retired pay as is equal to the compensation to which he is entitled. Therefore, it appears that where a retired person files a waiver so that he may receive disability compensation and that compensation is withheld under the provisions of 38 U.S.C. 3203(b)(2) and later becomes unpayable because of the member's death before release from the hospital, no right to compensation matured for the period it was withheld and not paid, and his right to retired pay was not finally waived for that period. 28 Comp. Gen. 484. Since the payment of the compensation for which Mr. Burgess' guardian waived his retired pay and which was being withheld under the limitation provided in 38 U.S.C. 3203 (b) (2) is now precluded by that provision of law, it follows that

his right to retired pay was not waived from the date of cessation of compensation payments and the amount of such retired pay is subject to disbursement as provided in 10 U.S.C. 2771. It should be noted that Mr. Burgess' death terminated the powers and duties of Mrs. McGunigle as his guardian, except those necessarily involved in the accounting and settlement of the guardianship proceeding.

The voucher stated in favor of Mrs. McGunigle as guardian of Mr. Burgess will be retained here.

[B-151185]

Insane and Incompetents-Military Personnel-Retired Pay Availability for Hospitalized Veterans

Retired pay which is being withheld by the Coast Guard from a hospitalized mentally incompetent retired Coast Guard member without funds pursuant to 37 U.S.C. 351-354 in the absence of the location of a person to act as trustee for the member may be considered to be embraced in the term "compensation or retirement pay" in 38 U.S.C. 3203 (b) (4), which permits payment, in the discretion of the Administrator of Veterans' Affairs, of compensation or retirement pay on account of hospitalized veterans to the chief officer of the institution furnishing care to the veteran to be used for his benefit, and while the provisions for payments to mentally incompetent retired Coast Guard members in the act of June 21, 1950, 37 U.S.C. 351-354, might conflict with 38 U.S.C. 3203, the later provisions enacted in 1959 represent the latest expression of the intent of Congress, so that in the absence of any action under the 1950 act amounts of retired pay to provide for the comfort and welfare of the veteran may be paid to the chief officer of the hospital under 38 U.S.C. 3203 upon request of the Administrator of Veterans Affairs.

To T. C. Crabe, United States Coast Guard, July 11, 1963:

By first indorsement dated March 27, 1963, the Chief, Payments and Claims Division, United States Coast Guard, forwarded your letter of the same date requesting an advance decision concerning the propriety of making payments of retired pay directly to the chief officer, Veterans Administration Hospital, Lexington, Kentucky, in the case of Clifford DeLozier (102-792) BTC, retired.

You say that DeLozier retired for years of service under the provisions of 14 U.S.C. 355, effective October 1, 1951; that on March 15, 1957, competent medical authority determined that he was mentally incapable of managing his own affairs; that it has not been possible to locate anyone to assume the duties of a trustee under the provisions of 37 U.S.C. 351-354; and that payments of retired pay are being withheld by the Coast Guard. As DeLozier is presently a patient at the Veterans Administration Hospital, Lexington, Kentucky, and without funds which are considered necessary for the purchase of health and comfort items, question has arisen as to whether or not the provisions of 38 U.S.C. 3203 are limited to funds paid by the Veterans Administration or may include retired pay received for years of service or otherwise paid by the military service.

The Chief, Special Services Division, has requested that appropriate amounts of retired pay be released directly to the chief officer of the Veterans Administration Hospital, Lexington, Kentucky, to be used for DeLozier's welfare pursuant to the provisions of 38 U.S.C. 3203 (b) (4) as follows:

All or any part of the pension, compensation, or retirement pay payable on account of any incompetent veteran who is being furnished hospital treatment, institutional or domiciliary care may, in the discretion of the Administrator, be paid to the chief officer of the institution wherein the veteran is being furnished such treatment or care, to be properly accounted for by such chief officer and to be used for the benefit of the veteran.

The quoted provision had as its source the third proviso of section 1(B) of the act of August 8, 1946, Ch. 869, 60 Stat. 909, 38 U.S.C. 739(1)(B) (1952 Ed.). Although we held in decision of May 18, 1948, B-72718, 27 Comp. Gen. 699, that while retired officers and enlisted men of the military service are subject to the provisions of section 1(A) of the act of August 8, 1946, 38 U.S.C. 739(1)(A) (1952 Ed.), they are not subject to the provisions of section 1(B) of that act, subsequently enacted legislation requires the conclusion that the term "veteran" as used in 38 U.S.C. 3203 includes retired officers and enlisted personnel. See 41 Comp. Gen. 224.

As originally enacted, the provisions of section 1(B) of the act of August 8, 1946, related exclusively to matters under the jurisdiction of the Veterans Administration. Hence, the third proviso of section 1(B)--from which the above-quoted provisions of 38 U.S.C. 3203 (b) (4) were derived-left to the discretion of the Administrator of Veterans Affairs the determination as to the part, if any, of the retirement pay there mentioned which should be paid to the chief officer of the institution where the mentally incompetent veteran was receiving hospital care, to be used for the benefit of such veteran.

The legislative history of the act of August 7, 1959, Pub. L. 86-146, 73 Stat. 297, which amended 38 U.S.C. 3203, including parts of subsection (b), clearly shows that the Congress intended that subsection (b) (1), 38 U.S.C. 3203(b)(1) (Supp. I), should cover retired pay generally. See 41 Comp. Gen. 218. Since the language "compensation or retirement pay" there used is identical to that appearing in paragraph (4) of subsection (b), we find no basis for a conclusion that the retirement pay mentioned in paragraph (4) does not include retired pay such as is payable to DeLozier. While it is somewhat anomalous that the Administrator of Veterans Affairs should determine what part of the retired pay payable by another agency of the Government should be paid to the chief officer of the hospital involved for the veteran's benefit and welfare, the provisions of law from which paragraph (4) was derived were not repealed by the act of June 21,

1950, Ch. 342, 64 Stat. 249, 37 U.S.C. 351-354, and effect must be given such statutory provisions as reenacted in subsequent legislation.

The act of June 21, 1950, deals with the matter, among others, of payment of retired pay due a mentally incompetent member of the armed services and authorizes payment of such pay for the use and benefit of the incompetent, to such person or persons as may be designated by the Secretary concerned. Determinations concerning the designations of such person or persons are "final and conclusive." While the scope of 38 U.S.C. 3203 (b) (4) parallels to some extent that of the 1950 act, and thus raises a possibility of conflict in certain situations, the provisions of 38 U.S.C. 3203 were enacted after the 1950 act and hence constitute the latest expression of intent of the Congress. However, if no action has been taken under the 1950 act and where, as here, the amounts proposed to be paid are limited to those needed to provide for the comfort and welfare of the veteran concerned, no conflict will result and it is our view that 38 U.S.C. 3203 (b) (4) furnishes authority for the proposed payments.

Accordingly, you are advised that if the Administrator of Veterans Affairs should request that appropriate monthly payments of a part of DeLozier's retired pay be made to the chief officer, Veterans Administration Hospital, Lexington, Kentucky, payments of the amounts involved would be proper.

[B-151790]

Pay-Retired-Fleet Reservists—Application of the Act of July 24, 1956

A former enlisted member of the Coast Guard Reserve who was released from active duty prior to the act of August 10, 1946, which provided for transfer of enlisted members of the Regular Navy with 20 years of service to the Fleet Reserve, and who seeks placement on the retired list by reason of the Coast Guard Reserve assimilation authority in 14 U.S.C. 755(e) under the act of July 24, 1956, 10 U.S.C. 6330 note, extending Fleet Reserve appointments to Navy enlisted members who did not have 20 years of active service entirely in the Navy or Marine Corps may not be considered to have any retirement benefits under the 1956 act, which prescribed benefits for Regular Navy members as distinguished from Naval Reserve members, and in the absence of any component in the Coast Guard comparable to the Fleet Reserve to which the member could be appointed there is no authority for placement of the member on the retired list under the 1956 act.

To the Secretary of the Treasury, July 11, 1963:

Reference is made to letter of June 11, 1963, from the Assistant Secretary of the Treasury requesting decision on two questions concerning the propriety of placing William Scoville Rogers, former chief machinist, United States Coast Guard Reserve, on the retired list of the Coast Guard, with appropriate retired pay, under the cir

cumstances outlined in the accompanying memorandum of the Acting Commandant of the Coast Guard. The questions are as follows:

(1) May Rogers be placed on the retired list of the U.S. Coast Guard, with appropriate pay?

(2) If answer to question one is in the affirmative, what will be the proper rank and rate of retired pay?

It appears from the discussion contained in the memorandum that the matter for determination is whether his retirement may be effected under the provisions of the act of July 24, 1956, Ch. 683, 70 Stat. 626, 34 U.S.C. 854c-1 (1952 Ed., Supp. V).

The statement of service furnished shows that William Scoville Rogers enlisted in the United States Naval Reserve on May 6, 1918; that he immediately entered on active duty; and that he was released from active duty on September 8, 1920.. He enlisted in the Regular Navy on October 9, 1920, and continued to serve in the Navy, with only slight interruption, until July 20, 1928, when he was discharged. He enlisted in the Regular Coast Guard on July 25, 1928, and served continuously, with slight interruption, until September 16, 1937, when he was discharged. He enlisted in the Coast Guard Reserve on May 27, 1941, and immediately entered on active duty.

On August 5, 1943, he was appointed as a warrant officer in the Coast Guard Reserve for temporary service and on November 11, 1944, he was appointed a chief warrant officer in the Reserve for temporary service. On January 11, 1946, he departed on 4 days' leave and 1 day's travel time at the expiration of which he was released from active duty. On the same day (January 11, 1946) he was appointed as a permanent chief warrant officer in the Coast Guard Reserve. It is indicated that during the 3 years following his appointment as permanent chief warrant officer he had no active duty, and that his appointment expired on January 10, 1949, and he was discharged. It is stated that at such time he had over 22 years of active service and over 26 years of service for basic pay purposes including his inactive service; that he is not at present a member of any military service; and that he has requested retirement by letter dated November 6, 1961.

The second paragraph of the memorandum relating to the case of William Scoville Rogers reads as follows:

It appears that he does not qualify for retirement under 10 U.S.C. 1331 et seq., as the last eight years of his service was not in the Reserve. He lacks slightly over four months of the necessary time. He does not qualify for retirement as a twenty-year Warrant Officer, as 10 U.S.C. 1293 (The Warrant Officer Act of 1954) was not in effect in either 1946 or 1949. He does not qualify for retirement under 34 U.S.C. (1946 ed.) 410b, made applicable to the Coast Guard by 14 U.S.C. (1946 ed.) 162a, since he did not have ten years commissioned service by several years.

In this connection it is to be noted that he does not qualify for retirement under subsection (f) of section 755, Title 14, U.S. Code, relating to former members of the Coast Guard Reserve, as the last 10 years

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