Berkey v. United States

• Decision Date: 10 June 1966
• Docket Number: No. 171-65.,171-65.
• Citation: 361 F.2d 983,176 Ct. Cl. 1
• Parties: Charles M. BERKEY v. The UNITED STATES.
• Court: U.S. Claims Court

176 Ct. Cl. 1, 361 F.2d 983 (1966)

Charles M. BERKEY v. The UNITED STATES.

No. 171-65.

United States Court of Claims.

June 10, 1966.

John I. Heise, Jr., Washington, D. C., for plaintiff. Daniel F. Boone, Washington, D. C., of counsel.

Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge.

This case calls upon us to X-ray an opaque piece of legislation relating to veterans who die while institutionalized in federal facilities. The basic issue is whether Congress has forbidden the payment to plaintiff of the retirement pay accumulated by his late father, a retired Army officer, during the many years the father was an incompetent patient in a Veterans Administration hospital.

Plaintiff is the only child of Captain Charles M. Hurt, Jr., who entered the Veterans Administration Hospital in Murfreesboro, Tennessee, in October 1947, as an adjudicated incompetent. Captain Hurt remained a patient until he died intestate at the hospital on August 6, 1962. During that time, the captain was the beneficiary of about $19,000 in Army retirement pay which was withheld from him under the statute with which we shall be concerned. In August 1963 plaintiff made claim for this sum. This demand was refused¹ and plaintiff sues for the accumulated retirement pay. Both parties have moved for summary judgment and there is no factual dispute.

The controlling statute — 38 U.S.C. § 3203, 72 Stat. 1234, entitled "Hospitalized veterans and estates of incompetent institutionalized veterans" — is set out in the Appendix.² It deals with the payment of compensation or retirement pay to certain veterans who are being cared for by the Veterans Administration in its institutions. Section 3203(a) (1) provides that, if such a veteran has "neither wife, child, nor dependent parent", his compensation or retirement pay shall continue unabated for six months following his admission, but that after six months only one-half of such monies (if more than $30 per month) shall be paid to the veteran. Upon his discharge he is paid, in a lump sum, the amount by which his retirement pay has been reduced,³ except that if he leaves against medical advice or as a result of disciplinary action he cannot obtain this lump sum until six months have elapsed. If the veteran dies while institutionalized or before payment of the lump sum, the money is to be paid (§ 3203(a) (2) (A)):

First, to the spouse; second, if the decedent left no spouse, or if the spouse is dead at time of settlement, then to the children (without regard to their age or marital status) in equal parts; third, if no spouse or child, then to the dependent parents in equal parts.

If there is no surviving member of these classes, "no payment shall be made", except for expenses of burial or last sickness.

Obviously a problem is created by the seeming conflict between the basic provision for reduction and accumulation of retirement pay — which expressly applies, under § 3203(a) (1), only to veterans "having neither wife, child, nor dependent parent" — and the direction to pay the accumulated lump sum, if the veteran has not received it before death, to a spouse, child, or dependent parent. A man "having neither wife, child, nor dependent parent" can hardly be left with such relatives. Congress solved this dilemma by providing, first, that veterans subject to the reduction and accumulation of retirement pay "shall be deemed to be single and without dependents in the absence of satisfactory evidence to the contrary" (§ 3203(c)), and, second, that survivors within the specified classes have five years after the veteran's death to file claim for the accumulated lump sum (§ 3203(a) (2) (B)). Under these provisions, as they have been applied by the Veterans Administration, an institutionalized veteran is considered to have "neither wife, child, nor dependent parent" so long as affirmative proof of such status is not officially presented. On the veteran's death, the survivors have five years in which to offer "satisfactory evidence" of their relationship, and to claim the lump sum.⁴ Many a wife, we are told, defers making such proof until after her husband's death so that the retirement pay given to him in the hospital will be halved and the remainder accumulated, safely, as a nest-egg which cannot be squandered or dissipated by the patient.

This is the system Congress has spelled out, in terms, for institutionalized veterans who are competent, e. g., those who are patients or inmates because they are physically ill or merely advanced in years. For the mentally incompetent the surface of the statute reads differently as to disposition of the lump sum upon the patient's death, and that difference gives rise to the defense here. There is reduction and accumulation of retirement pay in the case of incompetents as well as of competents, and this applies, again, only to a hospitalized veteran "having neither wife, child, nor dependent parent."⁵ The general provisions relating to institutionalized but competent veterans are likewise made applicable — including the scheme for distribution to survivors — except that the subsection on incompetents (38 U.S.C. § 3203(b) (1), 73 Stat. 298) adds:

however, no payment of a lump sum herein authorized shall be made to the veteran until after the expiration of six months following a finding of competency and in the event of the veteran\'s death before payment of such lump sum no part thereof shall be payable.

Read literally, this would bar payment of the accumulated lump sum to the survivors of an incompetent veteran, such as plaintiff's father, who dies in the hospital while still incompetent. Unlike the survivors of a tubercular veteran, the incompetent's close relatives would receive nothing. The Government insists that the statute must and should be read literally. Our inquiry is whether we are so constrained.

The major stumbling block to a literal reading is that the defendant has given us no reason, and none appears in the legislative history, why Congress would have wished to differentiate in this way — at least as to retirement pay — between the survivors of mentally incompetent veterans and those who were physically sick or merely old. If Captain Hurt had been hospitalized for tuberculosis or cancer, and had died in 1962 in the hospital of that disease, plaintiff would clearly be entitled to recover the lump sum consisting of the accumulated half of the captain's retirement pay which was withheld during his long institutionalization — the veteran had no surviving wife and plaintiff, as the only son, proved his status and filed his claim within five years of his father's death. With competent veterans, sick or old, there is no instance under the specific wording of the statute in which a surviving son could not timely claim the accumulated lump sum (if it had not already been paid to the veteran).⁶ There would never be a cutting-off, forfeiture, escheat, or lapse. Can it be than Congress, without giving any reason, meant to discriminate against the wives, children, and dependent parents of incompetents?

The legislative background of the statute does not give a clear or conclusive answer, but we think it suggests, quite strongly, that Congress did not intend to confine distribution of an incompetent veteran's accumulated retirement pay to those few instances in which the patient has survived a finding of competency by six months. We are concerned in this case only with accumulated retirement pay, not with other types of veterans' benefits, and we look to the history of these provisions with that type of payment specially in mind. The modern general system of reducing and accumulating retirement pay (and other compensation) began in 1946 when the Act of August 8, 1946, 60 Stat. 908, established the forerunner of present Section 3203.⁷ Under that Act, which applied both to competent and to incompetent veterans institutionalized in Veterans Administration facilities, one major difference from the current pattern was that distribution could be made, not only to wives, children, or dependent parents, but also to brothers and sisters (if no member of the prior classes survived). But that Act, like the present legislation, delayed payment of the lump sum to the competent veteran, himself, for six months if he left the hospital against medical advice or as a result of disciplinary action. With respect to incompetents, the 1946 statute incorporated the basic plan set up for competents, but also contained a proviso declaring that no payment of the lump sum should be made until after the expiration of six months following a finding of competency (§ (B)); the Act did not then add (as it does now): "and in the event of the veteran's death before payment of such lump sum no part thereof shall be payable." Since the 1946 legislation specifically required the retirement pay of the incompetent to "be subject to the provisions" relating to the competent — which contained directions for distribution to relatives on the veteran's death — the provision for a six month's delay "following a finding of competency" could easily be read as equivalent to the six months wait for competent patients who were discharged against doctor's advice or on disciplinary grounds; just as in the case of competent patients, the lump sum would be paid, however, to the surviving relatives if an incompetent veteran died in the hospital or within six months of an adjudication of competency.⁸

The 1946 Act also contained an ambiguous stipulation that "in any case where the estate of such incompetent veteran derived from any source equals or exceeds $1,500, further payments of such benefits * * * shall not be made until the estate is reduced to $500." The words "such...