A-24596, OCTOBER 30, 1928, 8 COMP. GEN. 217

A-24596: Oct 30, 1928

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SIX MONTHS' DEATH - NAVY ENLISTED MAN KILLED NOT IN LINE OF DUTY THE SIX MONTHS' PAY GRATUITY IS NOT AUTHORIZED TO BE PAID. OR OTHER DEPENDENT RELATIVE OF AN ENLISTED MAN OF THE NAVY WHO WAS STRUCK BY AN AUTOMOBILE AND KILLED WHILE ABSENT FROM DUTY WITHOUT AUTHORITY. BY ENLISTING IN THE NAVY A MAN CONTRACTS FOR HONEST AND FAITHFUL SERVICE AND THE RENDITION OF SUCH SERVICE IS AN ESSENTIAL CONDITION PRECEDENT TO HIS RIGHT TO BE PAID. THE CONTRACT IS AN ENTIRETY. IF SERVICE FOR ANY PORTION OF THE TIME IS OMITTED WITHOUT AUTHORITY THE PAY OR ALLOWANCES AUTHORIZED FOR "SERVICE" ARE NOT EARNED. WHO RECENTLY WAS STRUCK BY AN AUTOMOBILE AND KILLED WHILE ABSENT WITHOUT LEAVE. AS IT DID NOT APPEAR THAT THE FACT THAT SESSIONS WAS STRUCK BY THE AUTOMOBILE.

A-24596, OCTOBER 30, 1928, 8 COMP. GEN. 217

GRATUITIES, SIX MONTHS' DEATH - NAVY ENLISTED MAN KILLED NOT IN LINE OF DUTY THE SIX MONTHS' PAY GRATUITY IS NOT AUTHORIZED TO BE PAID, UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, TO THE WIDOW, CHILD, OR OTHER DEPENDENT RELATIVE OF AN ENLISTED MAN OF THE NAVY WHO WAS STRUCK BY AN AUTOMOBILE AND KILLED WHILE ABSENT FROM DUTY WITHOUT AUTHORITY. BY ENLISTING IN THE NAVY A MAN CONTRACTS FOR HONEST AND FAITHFUL SERVICE AND THE RENDITION OF SUCH SERVICE IS AN ESSENTIAL CONDITION PRECEDENT TO HIS RIGHT TO BE PAID; THE CONTRACT IS AN ENTIRETY, AND IF SERVICE FOR ANY PORTION OF THE TIME IS OMITTED WITHOUT AUTHORITY THE PAY OR ALLOWANCES AUTHORIZED FOR "SERVICE" ARE NOT EARNED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, OCTOBER 30, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 26, 1928, AS FOLLOWS:

THE NAVY DEPARTMENT HAS BEFORE IT THE CASE OF ONE ROBERT MORRIS SESSIONS, LATE SEAMAN SECOND CLASS, U.S. NAVY, WHO RECENTLY WAS STRUCK BY AN AUTOMOBILE AND KILLED WHILE ABSENT WITHOUT LEAVE. AS IT DID NOT APPEAR THAT THE FACT THAT SESSIONS WAS STRUCK BY THE AUTOMOBILE, WHICH SAID FACT WAS THE PROXIMATE CAUSE OF HIS DEATH, WAS DUE TO ANYTHING BLAMEWORTHY IN SESSIONS CONDUCT AT THE IMMEDIATE TIME, IT HAS BEEN HELD BY THE NAVY DEPARTMENT THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT, THOUGH INCURRED WHILE NOT IN LINE OF DUTY.

A QUESTION NOW ARISES RELATIVE TO THE PAYMENT TO SESSIONS' BENEFICIARY OF THE SIX MONTHS' PAY PROVIDED FOR UNDER THE ACT OF JUNE 4, 1920 (41 STAT. 824; U.S.C., TITLE 34, SECTION 943), WHICH READS AS FOLLOWS:

"IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY * * * THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH.'

IT WILL BE NOTED FROM THE ABOVE QUOTATION THAT THE STATUTE CONTEMPLATED PAYMENT OF THE SIX MONTHS' GRATUITY "AT THE RATE RECEIVED * * * AT THE DATE OF * * * DEATH.' AT THE TIME OF HIS DEATH SESSIONS WAS ABSENT WITHOUT LEAVE. THE DECISIONS OF THE ACCOUNTING OFFICERS ARE TO THE EFFECT THAT NO PAY ACCRUES DURING PERIODS OF UNAUTHORIZED ABSENCE, AND ARTICLE 1799, NAVY REGULATIONS, 1920, PROVIDES FOR FORFEITURE OF PAY ACCRUING DURING SUCH UNAUTHORIZED ABSENCE. ACCORDINGLY, SESSIONS WAS NOT IN A PAY STATUS AT THE TIME OF HIS DEATH, AND IT IS THE VIEW OF THIS DEPARTMENT THAT THE ABOVE STATUTE DID NOT CONTEMPLATE THAT THE BENEFICIARY OF A MAN WHO WAS IN A NONPAY STATUS BY REASON OF HIS OWN MISCONDUCT AT THE TIME OF DEATH SHOULD BE ENTITLED TO RECEIVE SIX MONTHS' PAY AT THE RATE RECEIVED BY THE DECEASED WHILE IN A PAY STATUS.

REFERENCE IS MADE TO YOUR DECISION OF APRIL (OCTOBER) 30, 1924 (4 COMP. GEN. 415), RENDERED IN CONNECTION WITH THE CLAIM OF THE BENEFICIARY OF A GENERAL COURT-MARTIAL PRISONER WHO, AT THE TIME OF HIS DEATH, WAS CARRIED ON THE ACTIVE LIST OF THE REGULAR NAVY AS AN APPRENTICE SEAMAN AT THE RATE OF PAY OF $25.20 PER MONTH BUT WHO, UNDER THE TERMS OF HIS SENTENCE, WAS FORFEITING ALL PAY EXCEPT $3.00 PER MONTH FOR NECESSARY PRISON EXPENSES. IN THE SAID DECISION IT WAS HELD THAT---

"THE NAVY DEPARTMENT HAS REPORTED THAT THATCHER'S DEATH WAS DUE TO DISEASE NOT THE RESULT OF HIS OWN MISCONDUCT AND THE FACT THAT AT THE TIME OF HIS DEATH HE WAS FORFEITING THE PAY RECEIVED BY HIM WITH THE EXCEPTION OF $3.00 PER MONTH FOR PRISON EXPENSES, AS IT ACCRUED, DID NOT DEPRIVE THE WIDOW OF HER RIGHT UNDER THE ACT OF JUNE 4, 1920, TO RECEIVE AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE TO WHICH THE SEAMAN WAS ENTITLED BY REASON OF HIS GRADE AND LENGTH OF SERVICE AT THE TIME OF HIS DEATH. PAYMENT OF THE CLAIM IS ACCORDINGLY AUTHORIZED IN THE AMOUNT OF $141.20.'

AS THERE IS AN APPARENT CONFLICT BETWEEN THE VIEW EXPRESSED IN THE ABOVE DECISION AND THE VIEW OF THE NAVY DEPARTMENT AS HEREINBEFORE SET FORTH, THE NAVY DEPARTMENT WOULD APPRECIATE AN EXPRESSION OF YOUR VIEWS RELATIVE TO THE QUESTION NOW BEFORE IT IN REGARD TO THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF ROBERT MORRIS SESSIONS.

THE CONFLICT BETWEEN THE VIEW EXPRESSED IN THE CITED DECISION OF OCTOBER 30, 1924, IN THATCHER'S CASE, AND THE VIEW OF THE NAVY DEPARTMENT RESPECTING THE DISPOSITION WHICH SHOULD BE MADE OF SESSIONS' CASE IS NOT PERCEIVED. THE APPARENT CONFLICT IS PROBABLY SUGGESTED BECAUSE THE NAVY REGULATIONS IMPLIEDLY RECOGNIZE PAY ACCRUES WHILE A MAN IS ABSENT WITHOUT LEAVE AND THAT AS THE RESULT OF SUCH ABSENCE IT IS FORFEITED. THE FACT IS NO PAY IS EARNED WHILE THE MAN IS ABSENT WITHOUT LEAVE; THERE CAN BE NO FORFEITURE OF THAT TO WHICH THE MAN HAS NO RIGHT OR TITLE. SEE THE FINAL PARAGRAPH HEREOF.

IN CONSTRUING AN ARMY STATUTE, PRACTICALLY IDENTICAL WITH THE CITED NAVY ACT OF JUNE 4, 1920, THAT IS, THE ACT OF MAY 11, 1908, 35 STAT. 108, AS AMENDED BY THE ACT OF MARCH 3, 1909, 35 STAT. 735, IN THE CASE OF MOORE V. UNITED STATES (1913), 48 CT.CLS. 110, 114, THE COURT OF CLAIMS HAS SAID:

* * * THAT A REASONABLE CONSTRUCTION OF IT CONFERS THE BENEFIT WHENEVER THE SOLDIER (SAILOR) DIES WHILE IN THE SERVICE GENERALLY, AND SUBMITTING TO ITS RULES AND REGULATIONS, FROM WOUNDS OR DISEASE NOT THE RESULT OF HIS OWN MISCONDUCT. * * *

IN NAVY FILE 26250-218 (P. 610 DIGEST NAVY LAWS) IT WAS HELD THE DEATH OF A PRIVATE IN THE MARINE CORPS WHO WAS BURNED TO DEATH WHILE IN CONFINEMENT BY CIVIL AUTHORITIES AWAITING TRIAL, THE IMPRISONMENT BEING THE RESULT OF HIS OWN MISCONDUCT (DRUNKENNESS) WHILE ON LIBERTY, DID NOT OCCUR IN LINE OF DUTY, AND IN THE CASE OF ALONZO GROOM AUSTIN, SEAMAN, SECOND CLASS, UNITED STATES NAVY, A-9295, MAY 6, 1925, 45 MS. COMP. GEN. 314 (CL.NO. 075901), IT WAS RECOGNIZED THAT A SERIOUS INJURY TO AN ENLISTED MAN IN AN AUTOMOBILE CRASH WHILE A PRISONER AT LARGE AFTER HIS ESCAPE FROM A PRISON GUARD WAS AN INJURY DUE TO HIS OWN MISCONDUCT.

WHILE THE OPINIONS OF THE ATTORNEYS GENERAL DO NOT AGREE THAT THE CORRECT RULE TO BE APPLIED IS AS BROAD AS THE LANGUAGE OF THE COURT OF CLAIMS INDICATES, THE ATTORNEYS GENERAL SEEM CONSISTENTLY TO HAVE RECOGNIZED, UNDER STATUTES IN PARI MATERIA WITH THE CITED ACT OF JUNE 4, 1920, THAT AN ENLISTED MAN HELD IN ARREST OR CONFINEMENT BY THE MILITARY AUTHORITIES, PRIOR TO THE EXPIRATION OF HIS CONTRACT OF ENLISTMENT OR THE TERMINATION THEREOF BY DISCHARGE OR OTHERWISE, AND SUBJECT TO THE RULES AND REGULATIONS OF THE SERVICE WHEREIN HE ENLISTED IS IN LINE OF DUTY AND THAT IF HIS DEATH OCCUR DURING SUCH ARREST OR CONFINEMENT AND IS NOT THE RESULT OF HIS OWN MISCONDUCT THE CONDITION OF THE STATUTE IS MET. OP.ATTY.GEN. 149, 161; 32 ID. 12, 22.

IN THE CITED CASE OF THATCHER IT APPEARS THAT WHILE SERVING AS COMMISSARY STEWARD UNDER HIS ENLISTMENT IN THE REGULAR NAVY OF AUGUST 24, 1923, FOR FOUR YEARS, HE WAS TRIED BY GENERAL COURT-MARTIAL AT NEW LONDON, CONN., AND WAS FOUND GUILTY OF "ATTEMPTING A FRAUD IN VIOLATION OF ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY" AND WAS SENTENCED TO BE REDUCED FROM THE RATING OF COMMISSARY STEWARD, UNITED STATES NAVY, TO THE RATING OF APPRENTICE SEAMAN, TO BE CONFINED FOR A PERIOD OF 12 MONTHS, THEN TO BE DISHONORABLY DISCHARGED FROM THE UNITED STATES NAVAL SERVICE, AND TO SUFFER ALL THE OTHER ACCESSORIES OF SAID SENTENCE, AS PRESCRIBED BY SECTION 833, NAVAL COURTS AND BOARDS. THE PROCEEDINGS, FINDINGS, AND SENTENCE IN THIS CASE WERE APPROVED JANUARY 5, 1924, AND THE NAVAL PRISON, PORTSMOUTH, N.H., WAS DESIGNATED AS THE PLACE OF CONFINEMENT. HE DIED FEBRUARY 13, 1924, WHILE IN CONFINEMENT.

THE DECISION OF THIS OFFICE (4 COMP. GEN. 415) CONFORMING BOTH TO THE OPINIONS OF THE ATTORNEYS GENERAL AND OF THE COURT OF CLAIMS, RECOGNIZED THE DEATH OF THATCHER "FROM WOUNDS OR DISEASE" HAD OCCURRED IN LINE OF DUTY AND NOT AS THE RESULT OF HIS OWN MISCONDUCT AND ALLOWED THE CLAIM FOR SIX MONTHS' PAY GRATUITY AT THE RATE THE DECEDENT WAS ENTITLED TO RECEIVE UNDER EXISTING LAWS AT THE DATE OF HIS DEATH. THE FACT THAT THE MAJOR PORTION OF SUCH PAY WAS BEING WITHHELD (FORFEITED) AT THATCHER'S DEATH PURSUANT TO THE SENTENCE OFA GENERAL COURT-MARTIAL DID NOT OPERATE TO CHANGE HIS "RATE" OF PAY WHICH THE LAW AUTHORIZED FOR HIM AT THE TIME OF HIS DEATH, BEFORE TERMINATION OF HIS ENLISTMENT AND WHILE SUBMITTING TO THE RULES AND REGULATIONS OF THE NAVY DEPARTMENT.

THE CASE OF SESSIONS NOW PRESENTED IS AN ENTIRELY DIFFERENT CASE, FOR SESSIONS, AT THE TIME OF HIS DEATH, WAS IN A STATUS OF ABSENT WITHOUT LEAVE. EVERY MOMENT OF SUCH ABSENCE, WHATEVER HE MAY HAVE BEEN DOING, HE WAS SETTING AT DEFIANCE THE RULES AND REGULATIONS OF THE NAVY DEPARTMENT AND VIOLATING THE TERMS OF HIS ENLISTMENT CONTRACT TO RENDER FAITHFUL SERVICE. THIS WAS HIS STATUS WHEN HE WAS STRUCK AND KILLED BY AN AUTOMOBILE AND IN THAT RESPECT IT WAS THE SAME AS THOSE ABOVE MENTIONED OF THE PRIVATE IN THE MARINE CORPS BURNED TO DEATH WHILE UNDER ARREST BY CIVIL AUTHORITIES FOR DRUNKENNESS AND OF THE NAVY ENLISTED MAN, AUSTIN, WHO WAS KILLED IN AN AUTOMOBILE WRECK WHILE A PRISONER AT LARGE; TO FURTHER ILLUSTRATE, SESSIONS' STATUS WAS THE SAME AS THAT OF A MAN WHOSE DEATH RESULTS WHILE "IN THE ACT OF MUTINY, DESERTION, OR OTHER BREACH OF MILITARY OBLIGATION" SUCH AS THE ATTORNEY GENERAL IN THE CITED OPINION, 7 OP.ATTY.GEN. 149, 153, RECOGNIZED AS DUE TO MISCONDUCT AND NOT IN LINE OF DUTY. SEE ALSO MOORE V. UNITED STATES (1913), 48 CT.CLS. 110.

THE FACTS AND CIRCUMSTANCES UNDER WHICH SESSIONS IS REPORTED TO HAVE DIED SEEM TO REQUIRE A CONCLUSION UNDER THE CITED AUTHORITIES NOT ONLY THAT HIS DEATH DID NOT OCCUR IN LINE OF DUTY BUT THAT IT RESULTED FROM HIS OWN MISCONDUCT. WHAT IS SAID HEREIN, ACCORDINGLY, IS NOT TO BE UNDERSTOOD AS AN INDORSEMENT OR ACQUIESCENCE IN THE CONTRARY CONCLUSION REPORTED TO HAVE BEEN REACHED IN THE NAVY DEPARTMENT, VIZ, THAT SESSIONS--- "DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT.'

IRRESPECTIVE OF THAT APPARENT DIFFERENCE IN VIEW, HOWEVER, PAYMENT IS NOT AUTHORIZED IN SESSIONS' CASE OF SIX MONTHS' PAY GRATUITY FOR IT CONSISTENTLY HAS BEEN HELD SINCE THE FOUNDATION OF OUR GOVERNMENT THAT BY ENLISTING IN THE ARMY OR NAVY A MAN CONTRACTS FOR HONEST AND FAITHFUL SERVICE AND THAT RENDITION OF SUCH SERVICE IS AN ESSENTIAL CONDITION PRECEDENT TO HIS RIGHT TO BE PAID; ALSO, THAT THE CONTRACT IS AN ENTIRETY AND IF SERVICE FOR ANY PORTION OF THE TIME IS OMITTED WITHOUT AUTHORITY, THE PAY OR ALLOWANCES AUTHORIZED FOR FAITHFUL SERVICE ARE NOT EARNED. UNITED STATES V. LANDERS, 92 U.S. 77, 23 L. ED. 603; 18 R.C.L. 1044, 1045, 1050. SESSIONS, ACCORDINGLY, HAD NO "RATE" OF PAY UNDER THE LAW AT THE TIME OF HIS DEATH UPON WHICH TO COMPUTE A DEATH GRATUITY "EQUAL TO SIX MONTHS' PAY.'