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Nothing in this paragraph shall be construed to allow the payment to any person of both a disability allowance and compensation during the same period; and all payments made to any person for a period covered by a new or increased award of disability allowance or compensation shall be deducted from the amount payable under such new or increased award. As used in Titles I and V of the World War Veterans' Act, 1924, as amended, the term "compensation" shall be deemed to include the term "disability allowance" as used in this paragraph.'"

There is nothing in section 11 of the Act of July 3, 1930, which inhibits the payment to Miller of the disability allowance therein provided because of the fact that he is now receiving compensation under the Federal Employees' Compensation Act by reason of the same injury for which he seeks the disability allowance. While section 11 prevents "the payment to any person of both a disability allowance and compensation during the same period," the word "compensation," because of its context, quite obviously refers to the compensation provided by the World War Veterans' Act. There is nothing in the language or in the purpose of the statute which would warrant the conclusion that the word "compensation" in section 11 was intended to refer to or include compensation payable under the Federal Employees' Compensation Act.

Nor is there anything in the Federal Employees' Compensation Act which prevents the receipt of a disability allowance by Miller while he is receiving compensation under that Act. On the contrary, that statute expressly sanctions this result. Section 7 of that Act (U. S. C., Title 5, Sec. 757) provides:

"That as long as the employee is in receipt of compensation under this Act, or, if he has been paid a lump sum in commutation of installment payments, until the expiration of the period during which such installment payments would have continued, he shall not receive from the United States any salary, pay, or remuneration whatsoever except in return for services actually performed, and except pensions for service in the Army or Navy of the United States."

Section 7 of the Federal Employees' Compensation Act thus provides expressly that the recipient of compensation under that Act may receive concurrently a pension for military service. The so-called disability allowance provided by section 11 of the amendatory Act of July 3, 1930, is a gratuity to World War veterans who are able to show a certain percentum of permanent disability but who are unable to establish that their disabilities are service connected so as to entitle them to compensation under the World War Veterans' Act. Such a gratuity is a pension in the true sense of the word. See Walton v. Cotton, 19 How. 355, 358; Donnelly v. United States, 17 C. Cls. 105, 108; 31 Op. 296; 2 Comp. Gen. 582. Although called a disability allowance, the payment provided by section 11 is in all essential respects similar to pensions heretofore granted to Civil War and Spanish War veterans disabled by causes of non-service origin. If any doubt existed, the fact that section 11 of the amendatory Act of July 3, 1930, was intended to provide a disability pension is made clear by the legislative history of the Act. (See Cong. Rec., 71st Cong., 2d sess., pp. 12058-12059, 1206112063, 12177-12179, 12182.)

My opinion is that payment of the disability allowance provided by section 11 of the Act of July 3, 1930, supra, is authorized, even though the recipient of such allowance is now receiving compensation under the Federal Employees' Compensation Act for the same injury upon which his application for the disability allowance is predicated.

Respectfully,

WILLIAM D. MITCHELL.

To the ADMINISTRATOR OF VETERANS' AFFAIRS.

COMPUTATION OF COMMISSIONED STRENGTH OF THE NAVY In computing the total number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, the Secretary of the Navy is not permitted to apply the four per centum fixed by law as the basis for such computation to the 14,000 enlisted men temporarily authorized for instruction in trade schools, in addition to the number of 137,485 comprising the permanent authorized enlisted strength of 131,485 plus 6,000 apprentice seamen.

DEPARTMENT OF JUSTICE,

June 9, 1931.

SIR: I have the honor to comply with your request of March 18, 1931, for my opinion upon the following question: "In computing the total authorized number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, should the four per centum fixed by law as the basis for such computation be applied to the 14,000 enlisted men authorized for instruction in trade schools, in addition to the number, 137,485, comprising the permanent authorized enlisted strength of 131,485 plus 6,000 apprentice seamen?”

The Act of August 29, 1916 (c. 417, 39 Stat. 556, 576, U.S. C. Title 34, sec. 2), provided that:

"Hereafter the total number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, shall be four per centum of the total authorized enlisted strength of the active list, exclusive of the Hospital Corps, prisoners undergoing sentence of discharge, enlisted men detailed for duty with the Naval Militia, and the Flying Corps

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In an opinion of September 5, 1922 (33 Op. 311, 315), Attorney General Daugherty advised your predecessor that "the total number of commissioned officers of the active list of the line of the Navy may be computed at the present time upon the basis of the total authorized enlisted strength of 131,485 men as provided in the Act of July 1, 1918." The only question considered at that time was whether the Navy Department should use that figure, or a lower figure representing the average number of enlisted men as provided in the Act of July 1, 1922. In an opinion of May 19, 1930 (36 Op. 233), I advised you that you might lawfully computate the total authorized number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, at four per centum of 137,485, but in determining whether the number of officers thus computed have been commissioned, you might exclude officers designated pursuant to law as additional numbers in grade. It was unnecessary for your purpose at the time the latter opinion. was rendered for the Attorney General to express any opinion upon the question whether the four per centum fixed by

law should be applied to the 14,000 enlisted men temporarily authorized by the Act of July 1, 1918, for instruction in trade schools, but this question was referred to as doubtful, and the desirability of clarifying legislation was emphasized. You presented the question which you now ask in your letter of January 16, 1931, and I advised you on February 3, 1931, that while Congress was still in sesssion and an effort was being made to obtain additional legislation, it would serve no good purpose, and perhaps might be improper, for me to attempt to advise you what course to pursue in the event the legislation should not be enacted. The matter was presented to and considered by the Congress, and the following provisions were inserted in the Act of February 28, 1931 (46 Stat. 1431, 1440), making appropriations for the Navy Department:

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"Provided, That the appropriation Pay, subsistence, and transportation, Navy, 1931,' shall be available for the pay and allowances of all officers commissioned in accordance with law, and shall be available to pay one year's sea pay to surplus graduates of the Naval Academy, as provided by law: Provided further, That the President of the United States, by and with the advice and consent of the Senate, is hereby authorized to appoint as ensigns in the line of the Navy all midshipmen who graduate from the Naval Academy in the year 1931, but if the number so commissioned should exceed the total number of officers of the line of the Navy authorized by existing law, the excess shall be carried in the grade of ensign."

While these provisions in the Act of February 28, 1931, authorized the President, by and with the advice and consent of the Senate, to commission all graduates of the 1931 class at the Naval Academy as ensigns, so that it would be unnecessary for you to determine the question upon which you ask my opinion, in order to decide whether such graduates could be commissioned, the Act of August 29, 1916, as amended (39 Stat. 556, 577, 41 Stat. 131, 139, U. S. C. Title 34, sec. 7), requires you to make a computation at least once each year to determine the authorized number of officers in the various ranks and grades of the line and of the staff corps. I understand that you propose to make such a computation and that a decision upon the question in regard

to which you ask my opinion is necessary in making such computation.

The provision for 14,000 enlisted men authorized for instruction in trade schools is found in the amendment of July. 1, 1918 (40 Stat. 704, 714) of the Act of May 22, 1917 (40 Stat. 84), entitled "An Act to temporarily increase the commissioned and warrant and enlisted strength of the Navy and Marine Corps, and for other purposes." The Act of May 22, 1917, temporarily increased the authorized enlisted strength of the active list of the Navy from 87,000 to 150,000. This legislation was of a purely temporary character, and there was no permanent increase of the enlisted strength of the Navy at that time. The appointment of additional commissioned officers based upon the temporary increases authorized by this statute was, by section 4 of this Act, expressly required to be temporary, and by section 8 of the same Act it was provided that these temporary appointments should continue in force not later than six months after the termination of the war. Thus, in placing the Navy upon a temporary war-time basis, Congress provided for the appointment of officers temporarily commissioned in proportion to the temporary increase in enlisted strength. The Act of May 22, 1917, made no reference to men under instruction in trade schools.

The 14,000 men authorized for instruction in the trade schools are first mentioned in the amendment of section 1 of the Act of May 22, 1917, which is contained in the amendatory Act of July 1, 1918. This Act increased the permanent authorized enlisted strength of the Navy from 87,000 to 131,485, and then amended the temporary increases provided by the Act of May 22, 1916, so as to provide for additional temporary enlistments as follows:

"That the authorized enlisted strength of the active list of the Navy is hereby temporarily increased from one hundred and thirty-one thousand four hundred and eighty-five to one hundred and eighty-one thousand four hundred and eighty-five; the authorized number of apprentice seamen is hereby temporarily increased from six thousand to twentyfour thousand; and the authorized number of enlisted men of the Flying Corps is hereby temporarily increased from three hundred and fifty to ten thousand: Provided, That the

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