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REGULAR ESTABLISHMENT-DISABILITY PENSIONS AND

RETIRED PAY FOR PEACETIME VETERANS

TUESDAY, MAY 13, 1941

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INVALID PENSIONS,

Washington, D. C.

The committee this day met at 11:25 a. m., Hon. John Lesinski, chairman, presiding, for consideration of H. R. 1099, which reads as follows:

[H. R. 1099, 77th Cong., 1st sess.]

A BILL To remove discriminations against disabled retired enlisted men of the Army, Navy, Marine Corps, and Coast Guard who served in war

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That retired enlisted men of the Army, Navy, Marine Corps, and Coast Guard who are disabled as a result of service in war or who may be entitled to pension under existing law shall hereafter be granted compensation or pension under Veterans' Administration laws on parity with other war veterans: Provided, That pension or compensation shall not be awarded to any retired enlisted men at a rate in excess of an amount which when combined with his retired pay makes a total from both sources of $100 per month. SEC. 2. All Acts and/or parts of Acts in conflict with the provisions of this Act are hereby repealed.

The CLERK. The committee has the following reports from the Veterans' Administration, the War Department, and the Navy Department on the pending bill:

Hon. JOHN LESINSKI,

VETERANS' ADMINISTRATION,
Washington, March 31, 1941.

Chairman, Committee on Invalid Pensions,

House of Representatives, Washington, D. C.

MY DEAR MR. LESINSKI: This is with further reference to your letter of January 8, 1941, requesting a report on H. R. 1099, Seventy-seventh Congress, a bill to remove discriminations against disabled retired enlisted men of the Army, Navy, Marine Corps, and Coast Guard who served in war, which provides as follows: "That retired enlisted men of the Army, Navy, Marine Corps, and Coast Guard who are disabled as a result of service in war or who may be entitled to pension under existing law shall hereafter be granted compensation or _pension under Veterans' Administration laws on parity with other war veterans: Provided, That pension or compensation shall not be awarded to any retired enlisted men at a rate in excess of an amount which when combined with his retired pay makes a total from both sources of $100 per month.

"SEC. 2. All acts and/or parts of acts in conflict with the provisions of this act are hereby repealed."

This bill is identical with H. R. 2765, Seventy-sixth Congress, on which the Veterans' Administration rendered a report to you under date of July 5, 1939. The title of the bill would indicate an intent to include only those retired enlisted men who served in a war. However, the language in line 5, "or who may be entitled to pension under existing law," is in the alternative and is broader in scope than the title, as the quoted phraseology would include persons who are pensionable for disability incurred in the service during peacetime. If the intent of the bill is to include only those retired enlisted men who served in war, the bill 1

should be amended.

The word "other" appearing in line 7 before the words "war veterans" would seem to support this conclusion.

The act of March 3, 1891 (38 U. S. C. 26) contains the provision that "hereafter no pension shall be allowed or payable to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list." The World War Veterans' Act, 1924, as amended, contains a proviso in section 212 (38 U. S. C. 422)-"That compensation under this title shall not be paid while the person is in receipt of active service or retirement pay, this proviso to be effective as of April 6, 1917." The bill would, therefore, nullify the foregoing provisions of law by permitting the payment of retired pay to persons in receipt of pension or compensation.

The long existing restrictions against the concurrent payment of pension or compensation and retired pay for military or naval service does not result in any discrimination against retired enlisted men, as it is their privilege to file an application for disability compensation or pension and upon being fully informed as to their entitlement, elect between the two benefits. It has not only been the long established pension policy to prohibit dual payments, but it is a general rule of law to prohibit double indemnity. The retired pay of enlisted men as to the Army is predicated on 30 years' service, as to the Navy retired pay of enlisted men is predicated on 30 years' service, and under certain conditions for lesser periods of service, and as to the Coast Guard retired pay is predicated on a minimum of 6 years' service. The bill proposes to pay pension or compensation (in addition to retirement pay) based upon part of the service upon which the retirement pay is predicated.

Based on figures obtained from the Service Department the estimated first year cost of the bill is as follows:

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The estimate submitted in the report of July 5, 1939, on H. R. 2765, Seventysixth Congress, the provisions of which are identical with those contained in H. R. 1099, Seventy-seventh Congress, gave a first year cost of $261,500. The current estimate is based on more detailed data obtained from the Service Department. In view of the foregoing, the Veterans' Administration does not recommend that the bill be favorably considered by your committee.

Advice has been received from the Bureau of the Budget that the proposed legislation would not be in accord with the program of the President. Very truly yours,

Hon. JOHN LESINSKI,

FRANK T. HINES, Administrator.

WAR DEPARTMENT, Washington, April 9, 1941.

Chairman, Committee on Invalid Pensions,

House of Representatives.

DEAR MR. LESINSKI: The War Department is opposed to the enactment of H. R. 1099, Seventy-seventh Congress, a bill which would authorize both a pension and retired pay, at a rate not exceeding $100 per month, for retired enlisted men "who are disabled as a result of service in war or who may be entitled to pension under existing law."

An enlisted man in the Army may retire only after he has completed 30 years' service and he is then entitled to retired pay at the rate of 75 percent of the activeduty pay which he was receiving at the time of retirement plus an allowance of $15.75 per month. Army enlisted men who are physically disabled prior to the completion of 30 years' service are discharged and may apply for pensions under laws administered by the Veterans' Administration. Those who are disabled after the completion of 30 years' service may elect retirement with pay as stated above, or discharge, in order to receive a pension. They may not receive a pension while on the retired list.

It appears that H. R. 1099, which reads in part, "That retired enlisted men * * * disabled as a result of service in war or who may be entitled to pension under existing law shall hereafter be granted compensation or pension under

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Veterans' Administration laws on parity with other war veterans: * *" is

intended to affect only retired enlisted men who are war veterans. It would therefore now apply, insofar as Army personnel are concerned, to the relatively few enlisted men who, subsequent to retirement, become disabled as a result of some injury or disease incurred many years ago during a period of war service and from which they suffered no material disability during the remainder of their active service.

In the opinion of the War Department, pension rates for peacetime and wartime disabilities should be equal. A combination of pension and retirement benefits, as proposed in H. R. 1099, would be difficult to administer justly and would create further disparities in the compensation authorized for disabled soldiers. Such a combination can be justified only on the grounds that either the pension or retirement pay is inadequate for its intended purpose.

The War Department believes that present laws which prohibit the receipt by military personnel of both pension and retirement pay are based on sound principles and recommends that H. R. 1099 be not enacted.

The War Department is unable to estimate the additional cost of this legislation. The Bureau of the Budget advises that the enactment of the proposed legislation would not be in accord with the program of the President.

Sincerely yours,

HENRY L. STIMSON, Secretary of War.

NAVY DEPARTMENT,
OFFICE OF THE SECRETARY,
Washington, April 24, 1941.

The CHAIRMAN, COMMITTEE ON INVALID PENSIONS,

House of Representatives, Washington, D. C.

MY DEAR MR. CHAIRMAN: Further reference is made to your letter of January 27, 1941, requesting the views and recommendation of the Navy Department relative to the bill (H. R. 1099) to remove discriminations against disabled retired enlisted men of the Army, Navy, Marine Corps, and Coast Guard who served in

war.

The bill H. R. 1099 provides that retired enlisted men of the Army, Navy, Marine Corps, and Coast Guard who are disabled as a result of service in war or who may be entitled to pension under existing law shall hereafter be granted compensation or pension under Veterans' Administration laws on parity with other war veterans, provided that pension or compensation shall not be awarded to any retired enlisted men at a rate in excess of an amount which, when combined with his retired pay, makes a total from both sources of $100 per month.

The act of March 3, 1891 (26 Stat. 1082; 38 U. S. C., sec. 26), which provides that "no pension shall be allowed or paid to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list," in the opinion of the Navy Department, should not be changed.

While it does not seem equitable that an enlisted man who would be entitled to a pension but for the fact that he is in receipt of retired pay should receive from the Government less pay than the amount of the pension, under the present practice of the Veterans' Administration such a man may receive the pension by waiving his retired pay. The Navy Department considers that a man should not receive both retired pay and a pension.

Marine Corps, and Coast Guard. This could be accomplished by an amendment to section 4 of the bill or by separate enactment.

Section 1 of the act of March 3, 1891 (26 Stat. 1082; 38 U. S. C. 26), "An Act making appropriations for the payment of invalid pensions. of the United States, for the fiscal year ending June 30, 1892, and for other purposes," contains the following proviso:

And provided further, That hereafter no pension shall be allowed or paid to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list.

Since implied repeals are not favored, it is suggested that the bill be amended so as to contain explicit language modifying the abovecited proviso and also provisions of law requiring discharge from the service as a requisite to payment of pension or compensation, substantially as follows:

The proviso in the act of March 3, 1891 (title 38, U. S. C., sec. 26), prohibiting the payment of a pension to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list, shall not hereafter be construed to prohibit the payment of pension or compensation to such personnel on the retired list, and it shall not be required that such personnel shall have been separated from the service, but pension or compensation shall not be paid concurrently with retired pay or active-duty

pay.

The enactment of this bill, S. 239, would not result in any additional expenditure of funds from appropriations for the Veterans' Administration. In those cases where the veteran elects to take retirement pay in lieu of pension, there would, of course, result a saving so far as the Veterans' Administration is concerned. However, it is not possible for the Veterans' Administration to estimate the extent of such savings.

The Veterans' Administration recommended that Senate 239 be enacted with the amendments suggested.

The Veterans' Administration has a clearance of this bill from the Bureau of the Budget conditioned upon the amendments suggested by the Veterans' Administration.

Mr. MOSER. What is the difference between Senate 239 and H. R. 1099?

General HINES. The other bill in effect would, as Mr. Hoeppel can explain better than I can, result, according to an interpretation, in the payment of both retired pay and pension up to $100 a month.

The CHAIRMAN. I did not know about Senate 239 until this meeting. That bill has been approved by the Senate Committee on Military Affairs, passed by the Senate, and referred to the House Committee on Military Affairs.

Mr. MOSER. The reason I raise the question is that I gather from General Hines that the amendment suggested was to the bill in the Senate.

General HINES. Yes.

The CHAIRMAN. Please make an explanation of what is in the Senate. bill so that when we get through with our bill we will know where we are Mr. MOSER. That report was addressed to the acting chairman of the committee, on a Senate bill, and therefore I suggest that we consider our own bill.

General HINES. The purpose of calling this to the attention of members of the committee is that these two bills will come head-on here

The CHAIRMAN. We have General Hines with us this morning, and at this time we will be pleased to have his testimony on the pending bill.

STATEMENT OF BRIG. GEN. FRANK. T HINES, ADMINISTRATOR OF VETERANS' AFFAIRS

General HINES. I want to call your attention to Senate 239, which passed the Senate March 27.

Recently we were colled upon to make a report to the acting chairman of the Senate Committee on Military Affairs even though the bill had passed.

This bill essentially affects the same proposal, with some modifications, as H. R. 1099.

The essential purpose of the proposed legislation of S. 239 is to provide for the retirement of enlisted men of the Regular Army or the Philippine Scouts who have served 20 years or more in the military forces of the United States and who had become incapacitated for active service due to disability incurred in line of duty. It further provides for retirement pay on the same basis as now authorized for an enlisted man who voluntarily retires after completing 30 years' service. It grants such retired enlisted man the privilege of election whether he shall receive retirement pay or pension.

The Veterans' Administration would be concerned only with section 4 of the bill in the event it is enacted, which section reads as follows:

SEC. 4. Where an enlisted man placed on the retired list under this Act or under any provision of law would be eligible to receive pension or compensation under the laws administered by the Veterans' Administration, if he were not receiving retired pay, he may waive receipt of retired pay and allowances for the purpose of receiving such pension or compensation, and thereafter such retired enlisted man may waive receipt of such pension or compensation for the purpose of receiving retired pay and allowances. To prevent concurrent payments, when waiver of receipt of retired pay and allowances for the purpose of receiving pension or compensation is filed in the War Department, that department shall notify the Veterans' Administration of the receipt of such waiver and the effective date of the stoppage of retired pay and allowances. Similar report to the War Department shall be rendered by Veterans' Administration, when waiver of receipt of pension or compensation is filed in the Veterans' Administration for the purpose of receiving retired pay and allowances.

The first sentence of section 4 is designed to overcome the decision of the Comptroller General of July 25, 1940 (20 Comp. Gen. 41), so as to permit a retired enlisted man placed on the retired list under the act or under any provision of law to elect whether to receive retired pay or pension without affecting the status of the person concerned. The cited decision of the Comptroller General is to the effect that the recipient of military pension must be entirely separated from his military status when awarded or paid. The Veterans' Administration is in accord with this objective of the bill and, in the interests of clarification, it is suggested that the phrase "if he were not receiving retired pay," in lines 24 and 25, page 2 of the bill, be changed to read, "if he were not on the retired list.

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It is also suggested that while Senate 239 applies to the Army only, the provisions of section 4 thereof should apply equally to the Navy,

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