of payments to citizens or subjects of Germany or Japan with respect to compensation or pension claims based on contingencies arising after the conclusion of peace with Germany or Japan. Opinion of the Solicitor, dated December 15, 1952, approved December 22, 1952. ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, No. 921 JANUARY 15, 1953. Subject: Effect of peace with Germany and Japan on Public Law 622, 79th Congress, with respect to payment of indemnity for death, compensation, or pension to citizens or subjects residing therein. Question presented: Is the payment of indemnity for death under the Servicemen's Indemnity Act of 1951, to citizens or subjects of Germany or Japan residing therein barred by Public Law 622, 79th Congress, in view of the peace effected between those countries and the United States? Facts: Veteran died in action in Korea on August 22, 1950. He had in force National Service Life Insurance in the face amount of $1,000. $9,000 indemnity is payable under section 5, Public Law 23, 82d Congress (38 U. S. C. 854). No beneficiary for this indemnity was named by the veteran and under section 3 of Public Law 23 (38 U. S. C. 852) it is payable to his mother. It has been determined that he was not survived by a spouse or issue. Application for payment of the indemnity made by the veteran's mother indicates that she is a Japanese citizen or subject, domiciled in Japan. Comments: Public Law 622, 79th Congress (38 U. S. C. 729a), provides as follows: "Notwithstanding the provisions of section 5 of Public Law Numbered 144, Seventy-eighth Congress (the Act of July 13, 1943), or Public Law Numbered 828, Seventy-sixth Congress (Act of October 9, 1940, as amended), or Public Law Numbered 783, Seventy-seventh Congress (Act of December 2, 1942), any person who, but for such provisions, was entitled to benefits under any law administered by the Veterans' Administration, and who was not guilty of any of the offenses stated in section 4 of said Public Law Numbered 144, shall be paid out of currently available appropriations of the Veterans' Administration the full amount of any benefits not paid because of the provisions of section 5 of Public Law 144, or withheld, including the amount of any checks covered on his account into the Treasury as miscellaneous receipts together with any amount to his credit in the special-deposit account pursuant to the provisions of said Public Law Numbered 828, as amended; or, in the event of the death of such person prior to receipt of the amount herein authorized, payment shall be made under the provisions, except the one-year limitation, of section 12 of said Public Law Numbered 144, if claim therefor, together with satisfactory evidence that neither the claimant nor the person deceased was guilty of any of the offenses stated in said section 4, shall have been filed with the Veterans' Administration within one year after the effective date of this Act: Provided, That the Administrator of Veterans' Affairs shall certify to the Secretary of the Treasury the amounts of payments which, except for the provisions of this Act, would have been made from the special deposit account, and the Secretary of the Treasury, as directed by the Administrator of Veterans' Affairs, shall reimburse from the special deposit account the appropriations of the Veterans' Administration, or cover into the Treasury as miscellaneous receipts, the amounts so certified: Provided further, That no payments shall be made to German or Japanese citizens or subjects residing in Germany or Japan." [Italic supplied.] The proviso at the end of Public Law 622, at first glance, might seem to bar payments to any Japanese citizen or subject, such as the deceased veteran's mother. It is merely a proviso, however, not a separate act. It must be construed in relation to the act of which it is a part. In enacting Public Law 622, the Congress had in mind a benign and not a penal purpose. The object of Public Law 622 was “* * * to provide that persons residing in countries occupied by the enemy forces during World War II may be paid pension or other benefits under laws administered by the Veterans' Administration, which they have not received * * *" See the Report of the Committee on World War Veterans' Legislation of the House of Representatives, Report No. 2428, 79th Congress (United States Code Congressional Service, 79th Congress, page 1429). The proviso is, therefore, to be regarded as prohibiting payments to those persons, subject to the provisions of the statutes mentioned, while such persons remain citizens or subjects of Germany or Japan. It did not prevent payment of contractual rights, e. g., insurance. It was construed to prevent payment of pension or compensation prospectively under current laws. This was administratively known to be the intent of the Government, i. e., not to pay such gratuitous benefits, current or accrued, to citizens or subjects of those governments with which the United States was still technically at war. In order to ascertain who is within the scope of Public Law 622, it is necessary to consider each of the acts named therein, which are as follows: Section 4, Public Law 144, 78th Congress (38 U. S. C. 728) Section 12, Public Law 144, 78th Congress (paragraph V, part I, Veterans Public Law 828, 76th Congress Public Law 783, 77th Congress (31 U. S. C. 123–128) Section 5, Public Law 144, 78th Congress, provides: "When any person not a citizen of the United States entitled to compensation, pension, or other gratuity under laws administered by the Veterans' Administration is located in the territory of or under military control of an enemy of the United States or of any of its allies, any award of such benefits in favor of such person shall be terminated forthwith ***" When this act (Public Law 144) was passed, the United States was at war. However, the war with Japan is ended. Peace was proclaimed effective April 28, 1952. See 17 Federal Register 85, April 30, 1952. The provisions of section 5 prohibiting payments to persons "located in the territory of *** an enemy of the United States" are, therefore, no longer applicable to persons located in Japan, such as the veteran's mother. It is to be noted that this result is brought about by the change of status of Japan, and not by any particular provisions of the treaty of peace. The instant claim would obviously not be affected by Public Law 622, unless the proviso is alone applicable. As to section 4, Public Law 144, it provides, in effect, for the forfeiture of benefits for acts hostile to the United States. Public Law 622 excludes from its operation persons guilty under section 4, and does not amend or modify section 4. Therefore, a determination as to who is included within the scope of Public Law 622 cannot be made by referral to section 4. As to section 12, Public Law 144, it concerns the disposition of accrued compensation of a decedent. Reference thereto in Public Law 622 does not bring within Public Law 622 any person not already subject thereto. Whether a person's claim falls within the provisions of Public Law 622 depends, therefore, on the other two acts named therein. Both Public Law 828, 76th Congress, and its amendment, Public Law 783, 77th Congress, concern the deferral of payments to beneficiaries located in countries where, in the opinion of the Secretary of the Treasury, delivery or negotiation for value of checks or warrants of the United States is in doubt. These acts did not forfeit any entitlement to payment, and strictly speaking they are not penal in character. It was provided that the deferred payments be put on deposit, for subsequent release. Public Law 622 allows the release of these blocked payments, under certain conditions. However, payments to Japan are not currently blocked. (See 31 Code of Federal Regulations 211.3.) Informal information from the Division of Disbursements, Treasury Department, is to the effect that payments to Japan were removed from the operation of the subject acts by Department Circular 655, Supplement 6, May 10, 1950. These acts must now be regarded as inapplicable to the claimant. As a consequence, the reference to these acts in Public Law 622 cannot make the provisions of Public Law 622 pertinent to her case. But this does not necessarily negative applicability of the proviso. That must be determined in the light of the intent thereof. It has heretofore been held that the last proviso of Public Law 622 generally bars the payment of compensation or pension benefits to citizens or subjects of Japan residing in that country. (See Õps. Sol. 628-47 and 280-51.) When this interpretation was made, Japan (although occupied by our forces) was still technically an enemy of the United States and it was clear that the prohibition of section 5, Public Law 144, 78th Congress, which applied to persons in enemy and enemy-occupied territory was kept in force by the proviso with respect to Japanese citizens or subjects in Japan. The change of status of Japan from an enemy to a friendly power on April 28, 1952, requires a different approach. The provisions of section 5, Public Law 144, as well as other acts affected by Public Law 622, clearly are no longer applicable to persons located in Japan insofar as concerns the claims based upon contingencies arising subsequent to such change of status or to statutes granting new rights enacted subsequent to the passage of Public Law 622. The proviso of Public Law 622, while still applicable to the cases originally covered by it, is not relevant to claims of Japanese citizens or subjects in Japan arising subsequent to the changed status; for neither by language nor purpose can it be held to have any possible effect upon new conditions and events not envisaged at the time of the enactment. To hold it applicable would require a forced construction not consonant with any principle of statutory construction. If the Congress had intended that it (the proviso) apply to Public Law 23, it presumably would have so provided. And the fact that the Congress did not repeal the proviso, as recommended by the Veterans' Administration and other agencies, is inconsistent with the view that the proviso, while still effective as to the original scope, does not extend to present contingencies. Obviously what has been said hereinabove is equally applicable to claims of German citizens or subjects in Germany. The state of war between that country and the United States terminated October 19, 1951. (See Public Law 181, 82d Congress.) HELD: The prohibition in the last proviso of Public Law 622, 79th Congress, against the payment of benefits administered by the Veterans' Administration to citizens or subjects of Germany or Japan residing therein does not bar the payment to such persons of claims for indemnity for death under the Servicemen's Indemnity Act of 1951 (part I, Public Law 23, 82d Congress). Furthermore, the said proviso of Public Law 622, supra, has no present bearing upon the matter of payments to citizens or subjects of Germany or Japan with respect to compensation or pension claims based on contingencies arising after the conclusion of peace with Germany or Japan. (Opinion of the Solicitor, dated December 15, 1952, approved December 22, 1952.) This decision is hereby promulgated for observance by all officers and employees of the Veterans' Administration. CARL R. GRAY, Jr., Administrator of Veterans' Affairs. Distribution in accordance with VA Form 3-3040, Mailing or Distribution List. [No. 124] COMMITTEE ON VETERANS' AFFAIRS, HOUSE OF REPRESENTATIVES Hon. EDITH NOURSE ROGERS, VETERANS' ADMINISTRATION, Washington 25, D. C., July 17, 1953. Chairman, Committee on Veterans' Affairs, House of Representatives, Washington 25, D. C. DEAR MRS. ROGERS: This is in reply to your request for reports on H. R. 47 and H. R. 1536, 83d Congress, each entitled "A bill to amend Veterans Regulation No. 9 (a), as amended, so as to increase the limit of amounts payable thereunder in connection with the funeral and burial of deceased veterans." The mentioned bills are identical, except that H. R. 47 would increase the present maximum burial allowance payable under laws administered by the Veterans' Administration, from $150 to $400, whereas H. R. 1536 would increase the maximum burial allowance from $150 to $350. The law presently provides that where a veteran of any war discharged under other than dishonorable conditions, a veteran of any war in receipt of compensation or pension, a veteran discharged from the Army, Navy, Marine Corps, or Coast Guard for disability incurred in line of duty, or a veteran of the Army, Navy, Marine Corps, or Coast Guard in receipt of pension for service-connected disability dies after discharge, the Administrator of Veterans' Affairs, in his discretion and with due regard to the circumstances in each case, shall pay, for burial and funeral expenses and transportation of the body (including preparation of the body) to the place of burial, a sum not exceeding $150 to cover such items and to be paid to such person or persons as may be prescribed by the Administrator of Veterans' Affairs. Public Law 28, 82d Congress, provides that any person who shall have served in the active service of the Armed Forces of the United States on or after June 27, 1950, and prior to such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress shall, subject to other provisions of law, be entitled to burial benefits provided by law for persons who served during the period of World War II. The present law further provides that where death occurs in a Veterans' Administration facility within the continental limits of the United States, or a Territory or possession of the United States, the Veterans' Administration will assume the actual cost (not to exceed $150) of burial and funeral, and transport the body to the place of burial within the continental limits of the United States or to the place of burial in Alaska if the veteran was a resident of Alaska and had been brought to the United States as beneficiary of the Veterans' Administration for hospital or domiciliary care. Where a veteran dies while hospitalized under authority of the Veterans' Administration in a Territory or possession of the United States, the Veterans' Administration will assume the actual cost (not to exceed $150) of burial and funeral, and transport the body to the place of burial within the Territory or possession. The burial allowance referred to in the preceding paragraphs was increased from a maximum of $100 to $150 by Public Law 529, 79th Congress, approved July 24, 1946. The legislative history of the act discloses that hearings were held by the House Committee on World War Veterans' Legislation on bills proposing to increase the burial allowance to sums ranging from $150 to $250, and that all the factors involved were given careful consideration. It appears that the Congress concluded at that time that the increase to $150 was reasonable. The Veterans' Administration has experienced no real difficulty in securing within the limitation of Public Law 529, above mentioned, contracts with reputable undertakers throughout the country for the burial of veterans who die in its hospitals or domiciliary installations. It is realized, however, that the Veterans' Administration because of the continuing need of many future burial contracts, may be able to secure more favorable terms with local undertakers than would be available to others who are concerned only with the burial of a single individual. It is estimated that H. R. 47, if enacted, would result in a maximum first year's cost of $26,290,000, and that H. R. 1536, if enacted, would result in a maximum first-year's cost of $21,032,000. These estimates are excessive only by the amount that the burial costs would be less than the amounts specified in the bill to which such estimates relate. The Bureau of the Budget recommends against favorable consideration of this legislation. Sincerely yours, H. V. STIRLING, Acting Administrator. [No. 125] COMMITTEE ON VETERANS' AFFAIRS, HOUSE OF REPRESENTATIVES VETERANS' ADMINISTRATION, Washington 25, D. C., July 17, 1953. Hon. EDITH NOURSE ROGERS, Chairman, Committee on Veterans' Affairs, House of Representatives, Washington 25, D. C. DEAR MRS. ROGERS: This is in reply to your request for a report on H. R. 1305, 83d Congress, a bill to amend Veterans Regulation No. 9 (a), as amended, so as to provide for the payment of an additional amount to cover the cost of a burial lot in connection with the funeral and burial of deceased veterans. The purpose of the bill is to authorize payment of an amount not in excess of $75 for the site of burial, interment, or entombment, in addition to the present burial allowance of not to exceed $150. The law presently provides that where a veteran of any war discharged under other than dishonorable conditions, a veteran of any war in receipt of pension or compensation, a veteran discharged from the Army, Navy, Marine Corps, or Coast Guard for disability incurred in line of duty, or a veteran of the Army, Navy, Marine Corps, or Coast Guard in receipt of pension for service-connected disability, dies after discharge, the Administrator of Veterans' Affairs, in his discretion and with due regard to the circumstances in each case, shall pay, for burial and funeral expenses and transportation of the body (including preparation of the body) to the place of burial, a sum not exceeding $150 to cover such items and to be paid to such person or persons as may be prescribed by the Administrator of Veterans' Affairs. Public Law 28, 82d Congress, provides that any person who shall have served in the active service of the Armed Forces of the United States on or after June 27, 1950, and prior to such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress shall, subject to other provisions of law, be entitled to burial benefits provided by law for persons who served during the period of World War II. The bill would provide an allowance of $75, earmarked for the site of burial, interment, or entombment. This would result in the adjudication of two separate claims in many instances and increase the administrative workload because of the necessity of initiating, developing, and adjudicating additional claim or claims, in the majority of cases in which the proposed burial allowance would be payable. This might result in additional administrative cost, the amount of which cannot be accurately estimated. The proposed allowance would result in a maximum first year's benefit cost of $7,887,000. This estimate is excessive to the extent that no additional burial allowance would be payable in those cases in which deceased veterans are buried in national or Veterans' Administration cemeteries and in those cases in which the cost of the burial lot is less than the $75 maximum allowable. The Bureau of the Budget recommends against favorable consideration of this legislation. Sincerely yours, H. V. STIRLING, Acting Administrator. |