B-120683, APRIL 1, 1955, 34 COMP. GEN. 494

B-120683, APRIL 1, 1955, 34 COMP. GEN. 494

SIX MONTHS' DEATH GRATUITIES - ARREARS OF PAY AND ALLOWANCES - PRESUMPTIVE DEATHS - ERRONEOUS DETERMINATIONS PAYMENT OF SIX MONTHS' DEATH GRATUITIES AND PAYMENT OF ARREARS OF PAY AND ALLOWANCES MADE TO THE BENEFICIARIES OR HEIRS OF MISSING MEMBERS OF THE ARMED FORCES PURSUANT TO ADMINISTRATIVE DETERMINATIONS OF DEATH UNDER THE MISSING PERSONS ACT OF 1942 WERE LEGAL AND VALID WHEN MADE AND, THEREFORE, ARE NOT REQUIRED TO BE REFUNDED BY THE PAYEES WHEN THE MEMBERS RETURN TO MILITARY CONTROL, AND THE DEATH DETERMINATIONS ARE CANCELED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 1, 1955:

REFERENCE IS MADE TO LETTER DATED JULY 8, 1954, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), ENCLOSING A COPY OF MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 104, AND REQUESTING A DECISION "WHETHER A MEMBER OF THE ARMED FORCES WHO HAS BEEN DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED TO BE DEAD PURSUANT TO THE AUTHORITY CONTAINED IN THE MISSING PERSONS ACT APPROVED MARCH 7, 1942, AS AMENDED, AND WHO LATER RETURNS TO MILITARY CONTROL, IS ENTITLED TO ARREARS OF PAY WHICH ACCRUED PRIOR TO THE PRESUMPTIVE DATE OF DEATH BUT PAID TO ANOTHER PERSON OR PERSONS ON THE BASIS OF THE ERRONEOUS OFFICIAL DETERMINATION OF DEATH.' IN THE EVENT THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, DECISION ALSO IS REQUESTED "WHETHER ACTION SHOULD BE TAKEN TO RECOUP THE ARREARS OF PAY FROM THE PAYEE WHO HAS BEEN PAID THE ARREARS OF PAY.' DECISION IS FURTHER REQUESTED "WHETHER THE SIX-MONTH GRATUITY IN SUCH A CASE IS REQUIRED TO BE RECOVERED FROM THE PAYEE.'

SECTION 9 OF THE MISSING PERSONS ACT OF 1942, AS AMENDED, 50 U.S.C. APP. 1009, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THIS ACT, AND FOR THE PURPOSES OF THIS ACT DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. * * * DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE. * * * WHEN CIRCUMSTANCES WARRANT RECONSIDERATION OF ANY DETERMINATION AUTHORIZED TO BE MADE BY THIS ACT THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, MAY CHANGE OR MODIFY A PREVIOUS DETERMINATION.

IN VIEW OF SUCH PROVISIONS, THIS OFFICE DOES NOT HAVE JURISDICTION TO QUESTION ANY CREDIT OF PAY AND ALLOWANCES MADE IN THE ACCOUNT OF A MEMBER OF THE ARMED FORCES PURSUANT TO A DETERMINATION BY THE SECRETARY CONCERNED, OR HIS DESIGNEE, INSOFAR AS THE CREDIT RELATES TO A PERIOD WHEN THE MEMBER WAS IN AN ABSENT CASUALTY STATUS. SEE MORENO V. UNITED STATES, 118 C.1CLS. 30, AND COMPARE HEVENOR V. UNITED STATES, 121 C.1CLS. 77. AND THE FACT THAT A DEATH FINDING IS MADE IN SUCH A CASE AND LATER IS CANCELED AS "ERRONEOUS" DOES NOT APPEAR TO MAKE ANY DIFFERENCE IN REGARD TO THE MATTER OF JURISDICTION. NEITHER SUCH PROVISIONS NOR ANY OTHER PROVISIONS OF THE MISSING PERSONS ACT, HOWEVER, APPEAR TO BAR THE JURISDICTION OF THIS OFFICE TO DECIDE WHETHER THE GOVERNMENT SHOULD ASSERT A RIGHT, IN A CASE SUCH AS THAT HERE INVOLVED, TO RECOVER THE ARREARS OF PAY AND THE SIX MONTHS' DEATH GRATUITY FROM THE PERSON OR PERSONS WHO RECEIVED THE SAME ON THE BASIS OF THE "ERRONEOUS" FINDING OF DEATH.

WHEN SECTIONS 5 AND 9 OF THE MISSING PERSONS ACT, AS AMENDED, ARE, READ TOGETHER AND ARE CONSIDERED IN CONJUNCTION WITH THE PROVISIONS OF SECTIONS 2, 3, AND 7 OF THAT ACT (50 U.S.C. APP. 1002-1009), IT SEEMS REASONABLY PLAIN THE CONGRESS INTENDED THAT UPON THE MAKING OF A PRESUMPTIVE DEATH FINDING IN THE CASE OF A MEMBER OF THE ARMED FORCES, THE BALANCE DUE IN HIS PAY AND ALLOWANCE ACCOUNT WOULD BE PAID TO HIS HEIR OR HEIRS OR LEGAL REPRESENTATIVE AND THAT THERE WOULD BE NO RECOVERY OF SUCH PAYMENTS FOR ANY REASON, BARRING FRAUD ON THE PART OF THE PAYEE OR MISTAKE IN COMPUTATION. THE SUBSTANCE OF THE SECOND QUESTION IS THEREFORE ANSWERED IN THE NEGATIVE, ALTHOUGH THE FIRST QUESTION IS NOT DECIDED. IT WOULD SEEM TO FOLLOW, AS A COROLLARY, HOWEVER, THAT THE CONGRESS INTENDED THE GOVERNMENT WOULD GET A VALID ACQUITTANCE OF ITS OBLIGATION WITH RESPECT TO A MEMBER'S PAY AND ALLOWANCE FOR THE PERIOD OF HIS ABSENT CASUALTY STATUS BY PAYING THE AMOUNT TO HIS HEIRS OR LEGAL REPRESENTATIVE, PROVIDED THE PAYMENTS, WHEN MADE, WERE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE STATUTORY PROVISIONS.

RESPECTING THE PAYMENT OF DEATH GRATUITIES, SECTION 5 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C., APP. 1005, REQUIRES A FULL REVIEW OF THE CASE OF A PERSON WHO HAS BEEN ABSENT ON A MISSING OR MISSING-IN ACTION STATUS FOR A PERIOD OF 12 MONTHS AND, FOLLOWING SUCH REVIEW, THE HEAD OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO DIRECT THE CONTINUANCE OF THE PERSON'S MISSING STATUS, IF THE PERSON MAY REASONABLY BE PRESUMED TO BE LIVING, OR IS AUTHORIZED TO MAKE A FINDING OF DEATH. THIS SECTION FURTHER PROVIDES, IN PERTINENT PART, THAT---

* * * WHEN A FINDING OF DEATH IS MADE IT SHALL INCLUDE THE DATE UPON WHICH DEATH SHALL BE PRESUMED TO HAVE OCCURRED FOR THE PURPOSES OF TERMINATION OF CREDITING PAY AND ALLOWANCES, SETTLEMENT OF ACCOUNTS, AND PAYMENTS OF DEATH GRATUITIES * * *.

IT IS TO BE NOTED THAT SECTION 9 PROVIDES---

* * * FOR PURPOSES OF THIS ACT, DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDINGS OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. * * *

WHILE THE ORIGINAL SECTION 5 SPECIFICALLY PROVIDED FOR RECOVERY OF PAYMENT OF THE SIX MONTHS' DEATH GRATUITY BY CHARGING THE PAY ACCOUNT OF THE MEMBER UPON HIS RETURN FROM A MISSING STATUS, THE AMENDED SECTION 5 COMPLETELY ELIMINATED THAT REQUIREMENT IN THE EVENT THE MEMBER IS LATER SHOWN TO BE ALIVE. ALTHOUGH THE LEGISLATIVE HISTORY PERTAINING TO THIS PART OF THE AMENDED SECTION 5 IS DEFINITE AS TO ELIMINATING THE REQUIREMENT OF CHARGING THE PAY ACCOUNT OF THE RETURNED MEMBER, NOTHING IS FOUND RESPECTING RECOVERY FROM THE BENEFICIARIES, THAT IS, THE SURVIVING WIFE, CHILD OR OTHER DEPENDENT RELATIVES, WHO MAY HAVE BEEN PAID SUCH GRATUITY FOLLOWING AN ADMINISTRATIVE FINDING OF DEATH. IN EXCLUDING FROM THE AMENDED SECTION 5 THE PROVISION FOR CHARGING THE GRATUITY AS AN ERRONEOUS PAYMENT, THE PROPONENTS EVIDENTLY WERE GUIDED BY THE VIEW THAT THE PAYMENTS, WHEN MADE UPON A DETERMINATION OR FINDING OF DEATH, WERE PROPER AND LEGAL PAYMENTS AND, HENCE, THAT A CHARGE AGAINST THE RETURNING MEMBER'S PAY ACCOUNT IN EFFECT AMOUNTED TO A FORFEITURE AS A RESULT OF A RETROACTIVE DETERMINATION WHICH MADE IMPROPER AND ILLEGAL THAT WHICH PREVIOUSLY HAD BEEN A PROPER AND CORRECT PAYMENT. IT CAN REASONABLY BE ASSUMED THAT, HAD THE COMMITTEE IN CHARGE OF THE AMENDMENT TO SECTION 5 INTENDED TO SUBSTITUTE THE PAYEE AS A DEBTOR, FOLLOWING A REDETERMINATION THAT THE MISSING MEMBER WAS ALIVE, IT WOULD HAVE DONE SO BY SPECIFICALLY SO PROVIDING AND WOULD NOT HAVE LEFT THE MATTER TO CONJECTURE AND UNCERTAINTY. IN CONCLUSION, WE ARE OF THE VIEW THAT, INASMUCH AS THE PAYMENT WHEN MADE UPON A DETERMINATION OR FINDING OF DEATH IS LEGAL AND VALID, A LATER DETERMINATION THAT THE PERSON IS ALIVE MAY NOT RETROACTIVELY AFFECT ITS LEGALITY SO AS TO REQUIRE RECOVERY FROM THE BENEFICIARY. THE THIRD QUESTION IS ACCORDINGLY ANSWERED IN THE NEGATIVE.