A-21059, JANUARY 13, 1928, 7 COMP. GEN. 412

A-21059: Jan 13, 1928

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IS REFERRED WITH REQUEST FOR INSTRUCTIONS AS TO WHAT PROCEDURE SHOULD BE FOLLOWED IN PROVIDING FOR THE BURIAL OF DECEASED RETIRED ENLISTED MEN OF THE MARINE CORPS WHO DIE IN A FOREIGN COUNTRY AND WHOSE DESIRE IS TO BE BURIED ABROAD. * * *" FROM THE ABOVE IT WILL BE SEEN THAT THE MARINE CORPS IS AUTHORIZED BY LAW TO PROVIDE FUNERAL EXPENSES FOR DECEASED RETIRED ENLISTED MEN. WAS PREPARED AND FURNISHED ALL RETIRED ENLISTED MEN OF THE MARINE CORPS. PARAGRAPH TWO OF THIS CIRCULAR READS AS FOLLOWS: "WHEN BURIAL AT GOVERNMENT EXPENSE IS DESIRED. THIS IS IMPORTANT. ALSO THE FACT THAT THE MARINE CORPS IS AUTHORIZED BY LAW TO PROVIDE SUCH BURIAL EXPENSES. INFORMATION IS REQUESTED AS TO WHAT PROCEDURE SHOULD BE FOLLOWED BY THE REPRESENTATIVE OF THE DECEASED AND THIS OFFICE IN VIEW OF THE DECISION OF YOUR OFFICE ABOVE MENTIONED.

A-21059, JANUARY 13, 1928, 7 COMP. GEN. 412

BURIAL EXPENSES - RETIRED ENLISTED MEN - MARINE CORPS THE ANNUAL APPROPRIATION ACTS PROVIDING FUNDS FOR THE BURIAL OF RETIRED ENLISTED MEN OF THE MARINE CORPS CONTEMPLATE AN EXPENSE TO BE INCURRED SOLELY BY THE UNITED STATES, AND DO NOT AUTHORIZE REIMBURSEMENT OF BURIAL EXPENSES INCURRED WITHOUT PRIOR AUTHORITY BY RELATIVES OF THE DECEASED OR THE PAYMENT FOR SUCH SERVICES TO UNDERTAKERS OR OTHERS NOT IN CONTRACT RELATIONSHIP WITH THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE QUARTERMASTER, HEADQUARTERS, UNITED STATES MARINE CORPS, JANUARY 13, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 29, 1927, AS FOLLOWS:

THE INCLOSED LETTER DATED 5 DECEMBER, 1927, FROM SERGEANT OSCAR W. FRIDSTROM, U.S.M.C., RETIRED, NOW RESIDING IN BASTAD, SWEDEN, IS REFERRED WITH REQUEST FOR INSTRUCTIONS AS TO WHAT PROCEDURE SHOULD BE FOLLOWED IN PROVIDING FOR THE BURIAL OF DECEASED RETIRED ENLISTED MEN OF THE MARINE CORPS WHO DIE IN A FOREIGN COUNTRY AND WHOSE DESIRE IS TO BE BURIED ABROAD.

THE APPROPRIATION,"GENERAL EXPENSES, MARINE CORPS," APPROVED 3 MARCH, 1927, PROVIDES AS OLLOWS:

"* * * FUNERAL EXPENSES OF OFFICERS AND ENLISTED MEN AND ACCEPTED APPLICANTS FOR ENLISTMENT AND RETIRED OFFICERS ON ACTIVE DUTY AND RETIRED ENLISTED MEN OF THE MARINE CORPS, INCLUDING THE TRANSPORTATION OF THEIR BODIES, ARMS, AND WEARING APPAREL FROM THE PLACE OF DEMISE TO THE HOMES OF THE DECEASED IN THE UNITED STATES; * * *"

FROM THE ABOVE IT WILL BE SEEN THAT THE MARINE CORPS IS AUTHORIZED BY LAW TO PROVIDE FUNERAL EXPENSES FOR DECEASED RETIRED ENLISTED MEN, WITHOUT RESTRICTION AS TO PLACE OF BURIAL. YOUR DECISION, HOWEVER, DATED 6 OCTOBER, 1927, A-19948, AND RECONSIDERATION OF 7 NOVEMBER, 1927, REQUIRES THAT BURIAL EXPENSES OF DECEASED RETIRED ENLISTED MEN MAY BE PAID ONLY IN CASES WHERE BURIAL AT GOVERNMENT EXPENSE HAS BEEN AUTHORIZED BY THE QUARTERMASTER, IN PURSUANCE OF WHICH THE INCLOSED CIRCULAR DATED 12 NOVEMBER, 1927, WAS PREPARED AND FURNISHED ALL RETIRED ENLISTED MEN OF THE MARINE CORPS. PARAGRAPH TWO OF THIS CIRCULAR READS AS FOLLOWS:

"WHEN BURIAL AT GOVERNMENT EXPENSE IS DESIRED, THE QUARTERMASTER, HEADQUARTERS, U.S. MARINE CORPS, NAVY BUILDING, WASHINGTON, D.C., SHOULD BE NOTIFIED OF THAT FACT BY TELEGRAPH, IMMEDIATELY AFTER THE DECEASE OF THE RETIRED MARINE, AND NO STEPS TO ENGAGE THE SERVICES OF AN UNDERTAKER TAKEN BEFORE THE RECEIPT OF AUTHORITY FROM THE QUARTERMASTER TO DO SO. THIS IS IMPORTANT, AS NO BURIAL EXPENSES INCURRED WITHOUT SUCH PRIOR AUTHORITY CAN BE PAID BY THE MARINE CORPS.'

IN VIEW OF THE FACT THAT IT WOULD BE HIGHLY IMPRACTICABLE FOR A REPRESENTATIVE OF THE DECEASED RETIRED ENLISTED MAN WHO DIES IN A FOREIGN COUNTRY TO OBTAIN PRIOR TELEGRAPHIC AUTHORITY FROM THIS OFFICE IN ORDER TO ENGAGE FUNERAL SERVICES, AND ALSO THE FACT THAT THE MARINE CORPS IS AUTHORIZED BY LAW TO PROVIDE SUCH BURIAL EXPENSES, INFORMATION IS REQUESTED AS TO WHAT PROCEDURE SHOULD BE FOLLOWED BY THE REPRESENTATIVE OF THE DECEASED AND THIS OFFICE IN VIEW OF THE DECISION OF YOUR OFFICE ABOVE MENTIONED.

IT WAS STATED IN DECISION OF NOVEMBER 7, 1927, THAT THE APPROPRIATIONAL AUTHORITY TO PAY FUNERAL EXPENSES FOR DECEASED RETIRED ENLISTED MEN OF THE MARINE CORPS APPLIES WHERE DEATH OCCURS IN CIRCUMSTANCES ENABLING THE DEPARTMENT TO ARRANGE FOR THE BURIAL OF THE DECEASED AND THAT SUCH AUTHORITY WAS NOT A BINDING OBLIGATION ON THE GOVERNMENT TO PAY THE FUNERAL EXPENSES OF RETIRED ENLISTED MEN OF THE MARINE CORPS AS REIMBURSEMENT TO RELATIVES OR PAYMENT TO AN UNDERTAKER NOT IN CONTRACT RELATIONSHIP WITH THE GOVERNMENT. IT APPEARS THAT PURSUANT TO THAT HOLDING INSTRUCTIONS WERE ISSUED TO ALL RETIRED ENLISTED MEN OF THE MARINE CORPS TO THE EFFECT THAT WHEN BURIAL IS DESIRED AT GOVERNMENT EXPENSE THE QUARTERMASTER OF THE MARINE CORPS SHOULD BE IMMEDIATELY NOTIFIED OF THE DEATH SO THAT PROPER STEPS MAY BE TAKEN TO AUTHORIZE THE REQUIRED SERVICE, AND THAT NO BURIAL EXPENSES INCURRED WITHOUT SUCH PRIOR AUTHORITY CAN BE PAID BY THE MARINE CORPS.

YOU NOW REQUEST INFORMATION AS TO WHAT PROCEDURE SHOULD BE FOLLOWED IN CASE OF THE DEATH OF A RETIRED ENLISTED MAN WHO DIES IN A FOREIGN COUNTRY WHERE IT IS IMPRACTICABLE FOR A REPRESENTATIVE OF THE DECEASED MAN TO OBTAIN FROM THE QUARTERMASTER PRIOR TELEGRAPHIC AUTHORITY TO ENGAGE FUNERAL SERVICES.

THE DECISIONS TO WHICH REFERENCE IS MADE WERE SPECIFIC THAT THERE IS NO AUTHORITY TO REIMBURSE RELATIVES FOR EXPENSES INCURRED FOR THE BURIAL OF RETIRED ENLISTED MEN NOR PAYMENT FOR SUCH SERVICES TO UNDERTAKERS OR OTHERS NOT IN CONTRACT RELATIONSHIP WITH THE GOVERNMENT; THAT THE LAW IS AUTHORITY ONLY FOR THE DEPARTMENT TO ARRANGE FOR THE BURIAL OF DECEASED RETIRED ENLISTED MEN. THIS HOLDING WAS IN ACCORD WITH THE CONSTRUCTION OF SIMILAR LEGISLATION FOR MANY YEARS. YOUR QUESTION, IN EFFECT, IS, WHERE THE MAN DIES IN A FOREIGN COUNTRY, HOW CAN THIS LIMITATION IN THE LAW BE CIRCUMVENTED. THIS OFFICE KNOWS OF NO "PROCEDURE" THAT CAN BE ADOPTED TO SECURE WHAT THE LAW HAS NOT AUTHORIZED.

IT IS SUGGESTED, HOWEVER, THAT THE MATTER BE SUBMITTED TO THE CONGRESS IN CONNECTION WITH THE PENDING APPROPRIATION BILL THAT THAT BODY MAY DETERMINE WHETHER RETIRED ENLISTED MEN OF THE MARINE CORPS SHALL CONTINUE TO RECEIVE A BENEFIT NOT ACCORDED TO RETIRED ENLISTED MEN OF THE ARMY OR THE NAVY. IT IS TO BE OBSERVED THAT AN ENLISTED MAN IS RETIRED NOW ON A FAIRLY SUBSTANTIAL PAY AND THAT UNDER THE CONSTRUCTION BY THE MARINE CORPS THIS GENEROUS PROVISION HAS BEEN SUPPLEMENTED BY PAYMENT OF BURIAL EXPENSES ON HIS DEATH UNDER AN APPROPRIATIONAL AUTHORITY THAT SEEMS TO HAVE ORIGINALLY BEEN ADOPTED MERELY AS AUTHORITY TO THE DEPARTMENT TO DISPOSE OF THE REMAINS OF RETIRED ENLISTED MEN WHO DIE IN NAVAL OR OTHER GOVERNMENT HOSPITALS OR UNDER CIRCUMSTANCES MAKING DESIRABLE THE BURIAL OF THE DECEASED BY OR AT THE INSTANCE OF THE UNITED STATES. THAT IT WAS IN ORIGIN INTENDED TO PROVIDE MORE GENEROUSLY FOR RETIRED ENLISTED MEN OF THE MARINE CORPS THAN FOR RETIRED ENLISTED MEN OF THE ARMY OR NAVY IS NOT BELIEVED AND IF THE AUTHORITY IS TO BE USED IN THE FUTURE AS IN THE PAST, IT MUST BE ONLY AFTER THE CONGRESS SHALL HAVE PROVIDED MORE SPECIFICALLY THEREFOR.

WITH RESPECT TO THE PRECISE QUESTION SUBMITTED IT MAY BE SAID, IF THE RETIRED ENLISTED MAN VOLUNTARILY, BY RESIDING IN A FOREIGN COUNTRY, PLACES HIMSELF WHERE IT IS IMPRACTICABLE OR IMPOSSIBLE FOR HIS REPRESENTATIVES TO SECURE PRIOR AUTHORITY TO INCUR FUNERAL EXPENSES, HE SIMPLY CREATES A CONDITION TO WHICH THE STATUTE DOES NOT APPLY.