A-44502, SEPTEMBER 14, 1932, 12 COMP. GEN. 352

A-44502: Sep 14, 1932

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ECONOMY ACT - SIX MONTHS' DEATH GRATUITY THE MEASURE FOR COMPUTING THE SIX MONTHS' DEATH GRATUITY PAYABLE TO TO THE DESIGNATED BENEFICIARIES OF ARMY OR NAVY OFFICERS DYING DURING THE FISCAL YEAR 1933 IS THE RATE OF PAY OF THE OFFICER ESTABLISHED BY THE ACT OF JUNE 10. WHICH WAS REQUIRED TO BE DEDUCTED AND IMPOUNDED AT THE DATE OF DEATH OF THE OFFICER UNDER THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT. AS FOLLOWS: ATTACHED HERETO IS A VOUCHER IN FAVOR OF MRS. THE UNDERSIGNED WOULD HAVE NO DOUBT WHATEVER OF HIS AUTHORITY TO PAY THE GRATUITY IN THE AMOUNT CLAIMED IN THE VOUCHER IN THIS CASE. WERE IT NOT FOR THE FACT THAT IT HAS BEEN BROUGHT TO HIS ATTENTION UNOFFICIALLY THAT IN THE PREAUDIT BY THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE.

A-44502, SEPTEMBER 14, 1932, 12 COMP. GEN. 352

ECONOMY ACT - SIX MONTHS' DEATH GRATUITY THE MEASURE FOR COMPUTING THE SIX MONTHS' DEATH GRATUITY PAYABLE TO TO THE DESIGNATED BENEFICIARIES OF ARMY OR NAVY OFFICERS DYING DURING THE FISCAL YEAR 1933 IS THE RATE OF PAY OF THE OFFICER ESTABLISHED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, LESS 8 1/3 PERCENT, WHICH WAS REQUIRED TO BE DEDUCTED AND IMPOUNDED AT THE DATE OF DEATH OF THE OFFICER UNDER THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO MAJ. J. B. HARPER, UNITED STATES ARMY, SEPTEMBER 14, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 25, 1932, AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER IN FAVOR OF MRS. ROSE L. MINTER, COVERING THE SIX MONTHS' GRATUITY UNDER THE ACT OF DECEMBER 17, 1919, ON ACCOUNT OF THE DEATH OF 1ST LIEUTENANT HUGH C. MINTER, AIR CORPS, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

THE UNDERSIGNED WOULD HAVE NO DOUBT WHATEVER OF HIS AUTHORITY TO PAY THE GRATUITY IN THE AMOUNT CLAIMED IN THE VOUCHER IN THIS CASE, WERE IT NOT FOR THE FACT THAT IT HAS BEEN BROUGHT TO HIS ATTENTION UNOFFICIALLY THAT IN THE PREAUDIT BY THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE, OF A CLAIM OF THIS CHARACTER ARISING UNDER THE NAVY DEPARTMENT IT WAS PROPOSED TO DEDUCT 8 1/3 PERCENT FROM THE GRATUITY, WHICH GRATUITY, IT WOULD SEEM, IS IN NO SENSE PAY, BUT IS AN AMOUNT MEASURED IN TERMS OF THE RATE OF PAY WHICH THE DECEASED OFFICER OR ENLISTED MAN WAS RECEIVING AT THE TIME OF HIS DEATH. ACCORDINGLY, IN VIEW OF THE PRELIMINARY ACTION WHICH, IT IS UNDERSTOOD, WAS TAKEN IN THE NAVY CASE, YOUR ADVANCE DECISION IS REQUESTED OF THE QUESTION AS TO WHETHER THE UNDERSIGNED MAY MAKE PAYMENT OF THIS VOUCHER IN THE AMOUNT STATED THEREIN.

IN THE FORWARDING LETTER FROM THE ASSISTANT CHIEF OF FINANCE IT IS STATED:

THE ACT APPROVED DECEMBER 17, 1919 (41 STAT. 367), ENTITLED---

"AN ACT TO PROVIDE FOR THE PAYMENT OF SIX MONTHS' PAY TO THE WIDOW, CHILDREN, OR OTHER DESIGNATED DEPENDENT RELATIVE OF ANY OFFICER OR ENLISTED MAN OF THE REGULAR ARMY WHOSE DEATH RESULTS FROM WOUNDS OR DISEASE NOT THE RESULT OF HIS OWN MISCONDUCT,"

PROVIDES IN PART---

"THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE QUARTERMASTER GENERAL OF THE ARMY 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 OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH.'

3. AS IT WOULD NOT APPEAR THAT THE BENEFICIARY UNDER CLAIM IN QUESTION MAY BE CONSIDERED AN ,OFFICER" OR "EMPLOYEE" AS DEFINED IN SECTION 104 OF THE ECONOMY ACT APPROVED JUNE 30, 1932, IT IS CONSIDERED THAT SHE IS NOT AFFECTED BY THE PROVISIONS OF SECTION 101 OF SAID ACT. FURTHER, AS CLAIMANTS OF THIS CHARACTER ARE NOT INCLUDED IN THE SPECIAL CLASSES ENUMERATED IN SECTION 105 OF THE ACT CITED ABOVE, IT LIKEWISE FOLLOWS THAT SAID BENEFICIARY IS NOT INCLUDED IN THE TERM ,OFFICES AND EMPLOYEES" REFERRED TO IN SUBPARAGRAPH (D) (6) OF SAID SECTION. IT WOULD THEREFORE APPEAR THAT THE BENEFICIARY UNDER A CLAIM COVERING SIX MONTHS' GRATUITY PAY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, CITED ABOVE, IS NOT SUBJECT TO 8 1/3 PERCENT DEDUCTION OF THE SIX MONTHS' PAY AUTHORIZED, I.E., SIX MONTHS' PAY AT THE RATE RECEIVED BY THE OFFICER AT THE TIME OF HIS DEATH.

THE CLAIM IS FOR $2,160, REPRESENTING SIX MONTHS' PAY OF A FIRST LIEUTENANT WITH OVER 14 YEARS' SERVICE, ON DUTY REQUIRING PARTICIPATION IN AERIAL FLIGHTS AT DATE OF DEATH, JULY 8, 1932.

THE ACTION TAKEN IN THE PREAUDIT TO WHICH YOU REFER WAS IN THE CASE OF PETER JOHN PENNER, DECEASED, LATE LIEUTENANT, UNITED STATES NAVY, WHOSE WIDOW MADE CLAIM AS THE DESIGNATED BENEFICIARY UNDER THE ACT OF MAY 22, 1928, 45 STAT. 710, FOR $2,175, REPRESENTING SIX MONTHS' DEATH GRATUITY BASED ON THE FULL RATE OF PAY AT THE DATE OF DEATH OF HER HUSBAND JULY 11, 1932. IN THE PREAUDIT THERE WAS APPROVED FOR PAYMENT ONLY $1,993.75, A DIFFERENCE OF $181.25, OR 8 1/3 PERCENT OF THE TOTAL RATE OF PAY, WHICH WAS DEDUCTED AND REQUIRED TO BE IMPOUNDED UNDER THE PROVISIONS OF THE ECONOMY ACT.

THE BASIS FOR THIS ACTION WAS SECTION 101 (B) OF THE ECONOMY ACT, REQUIRING LEGISLATIVE FURLOUGH OF ONE CALENDAR MONTH, WHICH APPARENTLY HAD BEEN APPLIED TO THE OFFICER IN QUESTION PRIOR TO HIS DEATH, THE EFFECT OF WHICH SECTION WHEN READ IN CONNECTION WITH OTHER PROVISIONS OF THE ECONOMY ACT WAS TO REDUCE THE PAY OF THE OFFICER BY 8 1/3 PERCENT AT THE DATE OF HIS DEATH. WHILE THE "RATE" ESTABLISHED BY LAW FOR PAY OF OFFICERS OF THE ARMY WITHIN THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT IS NOT CHANGED, THE EFFECT OF COMPULSORY LEAVE OF ABSENCE WITHOUT PAY FOR ONE- TWELFTH OF THE YEAR REDUCES THE PAY AND THE "RATE" OF PAY ACTUALLY PAYABLE TO THE OFFICER BY ONE-TWELFTH. THE FACTS IN THE INSTANT CASE ARE SUBSTANTIALLY THE SAME, THE PROVISIONS OF THE ARMY LAW BEING SIMILAR TO THE PROVISIONS OF THE NAVY LAW AUTHORIZING PAYMENT OF THE GRATUITY, AND THE SAME APPLICATION OF THE ECONOMY ACT IS REQUIRED.

THE ECONOMY ACT PROVIDES FOR THREE METHODS OF DEDUCTING AND IMPOUNDING COMPENSATION DURING THE FISCAL YEAR 1933, VIZ, 5-DAY WEEK, LEGISLATIVE FURLOUGH, AND 8 1/3 PERCENT REDUCTION IN COMPENSATION, WITH A DISCRETION IN THE ADMINISTRATIVE OFFICE AS TO THE PLAN THAT SHALL BE PLACED IN OPERATION. IT CAN NOT BE CONTENDED SERIOUSLY THAT IF THERE HAD BEEN APPLIED THE 8 1/3 PERCENT REDUCTION IN COMPENSATION UNDER SECTION 105 (B) (6) OF THE ECONOMY ACT ON THE BASIS THAT IT WAS ADMINISTRATIVELY IMPRACTICABLE TO APPLY TO THEM THE 5-DAY WEEK OR LEGISLATIVE FURLOUGH, THEN THE ,RATE RECEIVED" BY THE OFFICERS AT THE DATE OF DEATH, WITHIN THE MEANING OF THE ACTS OF MAY 22, 1928, AND DECEMBER 17, 1919, SUPRA, SHOULD BE OTHER THAN THE RATE ESTABLISHED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, LESS 8 1/3 PERCENT. THE STATUTORY DEDUCTIONS FROM COMPENSATION REQUIRED BY ANY ONE OF THE THREE PLANS PROVIDED IN THE ECONOMY ACT, INCLUDING LEGISLATIVE FURLOUGH, ARE REDUCTIONS IN PAY AND NECESSARILY A REDUCTION IN THE "RATE RECEIVED" DURING THE PERIOD THE DEDUCTIONS ARE BEING MADE, THE MEASURE FOR DETERMINING THE AMOUNT OF THE SIX MONTHS' DEATH GRATUITY TO BE BASED ON THE REDUCED RATE ACTUALLY RECEIVED BY THE OFFICER AT THE DATE OF HIS DEATH.

SINCE DEATH OCCURRED DURING THE FIRST HALF OF JULY IN THE INSTANT CASE, AS WELL AS IN THE CASE OF THE NAVY OFFICER PREVIOUSLY CONSIDERED IN THE PREAUDIT, THE OFFICERS COULD NOT HAVE BEEN RECEIVING THE FULL RATE OF PAY ESTABLISHED BY PERMANENT LAW AT THE DATE OF DEATH.

SECTION 110 OF THE ECONOMY ACT PROVIDES:

THE APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS UNEXPENDED BY REASON OF THE OPERATION OF THIS TITLE SHALL NOT BE USED FOR ANY PURPOSE, BUT SHALL BE IMPOUNDED AND RETURNED TO THE TREASURY.

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, PROVIDES THAT "SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE Y.' THIS APPROPRIATION IS MADE IN THE ACT OF JULY 14, 1932, 47 STAT. 667. THE AMOUNT OF 8 1/3 PERCENT DEDUCTED FROM THE SIX MONTHS' DEATH GRATUITY SHOULD BE IMPOUNDED UNDER SAID APPROPRIATION PURSUANT TO THE PROCEDURE PROVIDED BY INSTRUCTIONS OF JULY 12, 1932, A-42691, A-43276.

YOU ARE ADVISED, THEREFORE, THAT YOU ARE NOT AUTHORIZED TO PAY THE FULL AMOUNT OF THE VOUCHER PRESENTED IN FAVOR OF MRS. ROSE L. MINTER.