B-101456, AUGUST 22, 1951, 31 COMP. GEN. 44

B-101456: Aug 22, 1951

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SIX MONTHS' DEATH GRATUITY PAY - VOLUNTEER RESERVISTS - CALL OR ORDER TO TRAINING DUTY REQUIREMENT A MARINE CORPS RESERVE OFFICER WHO WAS AUTHORIZED TO ASSOCIATE WITH AN AVIATION VOLUNTEER UNIT UNDER ORDERS MAKING HIM ELIGIBLE FOR REPEATED TRAINING DUTY ORDERS INVOLVING FLYING WITHOUT PAY AND ALLOWANCES AND WHO WAS KILLED WHILE PARTICIPATING IN A VOLUNTARY TRAINING FLIGHT MAY NOT BE CONSIDERED BY VIRTUE OF SUCH ORDERS AS HAVING BEEN CALLED OR ORDERED TO DUTY BY COMPETENT AUTHORITY. 1951: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THE VOUCHER IS STATED IN FAVOR OF ANNIE L. LIEUTENANT MURPHY WAS AUTHORIZED TO "ASSOCIATE WITH USNR.

B-101456, AUGUST 22, 1951, 31 COMP. GEN. 44

SIX MONTHS' DEATH GRATUITY PAY - VOLUNTEER RESERVISTS - CALL OR ORDER TO TRAINING DUTY REQUIREMENT A MARINE CORPS RESERVE OFFICER WHO WAS AUTHORIZED TO ASSOCIATE WITH AN AVIATION VOLUNTEER UNIT UNDER ORDERS MAKING HIM ELIGIBLE FOR REPEATED TRAINING DUTY ORDERS INVOLVING FLYING WITHOUT PAY AND ALLOWANCES AND WHO WAS KILLED WHILE PARTICIPATING IN A VOLUNTARY TRAINING FLIGHT MAY NOT BE CONSIDERED BY VIRTUE OF SUCH ORDERS AS HAVING BEEN CALLED OR ORDERED TO DUTY BY COMPETENT AUTHORITY, WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, SO AS TO AUTHORIZE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PROVIDED BY SAID ACT.

COMPTROLLER GENERAL WARREN TO CAPT. J. W. ELDRIDGE, UNITED STATES MARINE CORPS, AUGUST 22, 1951:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1951, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, COVERING THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THOMAS FOSTER MURPHY, FIRST LIEUTENANT, UNITED STATES MARINE CORPS RESERVE, VOLUNTEER, CLASS III (A). THE VOUCHER IS STATED IN FAVOR OF ANNIE L. MURPHY, 501 LAKELAND DRIVE, BATON ROUGE, LOUISIANA, THE DECEDENT'S SISTER AND DESIGNATED BENEFICIARY.

BY ORDERS DATED NOVEMBER 29, 1949, OF THE COMMANDANT OF THE MARINE CORPS, LIEUTENANT MURPHY WAS AUTHORIZED TO "ASSOCIATE WITH USNR, AVIATION VOLUNTEER UNIT (A) NUMBER 5, BATON ROUGE," FOR THE PERIOD OCTOBER 30, 1949, TO OCTOBER 29, 1951. SUCH ORDERS PROVIDED THAT HE WAS "ELIGIBLE FOR REPEATED TRAINING DUTY ORDERS INVOLVING FLYING WITHOUT PAY AND ALLOWANCES.' ORDERS DATED DECEMBER 14, 1949, OF THE DIRECTOR, EIGHTH MARINE CORPS RESERVE DISTRICT, DIRECTED LIEUTENANT MURPHY TO REPORT TO THE MEDICAL OFFICER, USNR AVIATION VOLUNTEER UNIT (A) NUMBER 5, BATON ROUGE, LOUISIANA, FOR PHYSICAL EXAMINATION TO DETERMINE HIS PHYSICAL FITNESS FOR TRAINING DUTY AND PROVIDED THAT:

3. IF FOUND PHYSICALLY AND PSYCHOLOGICALLY QUALIFIED TO SERVE AS PILOT OF NAVAL AIRCRAFT, YOU WILL REPORT TO:

COMMANDING OFFICER, U.S. NAVAL RESERVE AVIATION

VOLUNTEER UNIT (A) NUMBER 5,

BATON ROUGE, LOUISIANA FOR REPEATED PERIODS OF TRAINING WITHOUT PAY OR ALLOWANCES COMMENCING ON 30 OCT. 1949 AND TERMINATING 29 APR. 1950. THESE ORDERS CONSTITUTE YOUR ASSIGNMENT TO TRAINING DUTY AND YOUR FLIGHT ORDERS REMAIN IN FORCE FOR THIS DUTY.

IT APPEARS THAT THIS OFFICER WAS KILLED IN AN AVIATION ACCIDENT ON JULY 7, 1950, WHILE PARTICIPATING IN A TRAINING FLIGHT WITH THE SAID U.S. NAVAL RESERVE AVIATION VOLUNTEER UNIT (A) NUMBER 5. HOWEVER, AT THAT TIME THE ORDERS CITED ABOVE HAD TERMINATED AND NO FURTHER ORDERS DIRECTING HIS PARTICIPATION IN SUCH TRAINING HAD BEEN ISSUED.

SECTION 1 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW NO. 108, 63 STAT. 201, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED ( U.S.C. TITLE 34, SEC. 855C-1), IS AMENDED TO READ AS FOLLOWS:

"SEC. 4. ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO---

"/2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE-DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *

IN DECISION OF APRIL 4, 1950, B-91508, 29 COMP. GEN. 397, IT WAS HELD THAT UNDER SUCH STATUTORY PROVISIONS, THE BENEFITS THEREIN MENTIONED ARE PAYABLE ONLY IN THOSE CASES WHERE THE PERSONNEL CONCERNED ARE "CALLED" OR "ORDERED" TO DUTY BY COMPETENT AUTHORITY. THE BENEFITS OF SUCH PROVISIONS EXTEND ONLY TO CASES WHERE THE BURDEN OF THE PARTICULAR DUTY IS IMPOSED UPON THE INDIVIDUAL BY A CALL OR ORDER TO DUTY ISSUED BY COMPETENT AUTHORITY.

YOU POINT OUT THAT, WHILE THE DECEDENT'S ORDERS OF DECEMBER 14, 1949, HAD TERMINATED APRIL 29, 1950, THE ORDERS OF NOVEMBER 29, 1949, ASSIGNED HIM TO THE NAVAL RESERVE AVIATION VOLUNTEER UNIT (A) NUMBER 5, IN AN ASSOCIATE VOLUNTEER NON-DRILL PAY STATUS FOR DUTY INVOLVING FLYING UNTIL OCTOBER 29, 1951, AND THAT THE FATAL ACCIDENT OCCURRED WHILE HE WAS PARTICIPATING IN A TRAINING FLIGHT WITH SUCH UNIT. YOU REQUEST DECISION WHETHER, IN SUCH CIRCUMSTANCES, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS AUTHORIZED BY THE QUOTED STATUTORY PROVISIONS.

THE SAID ORDERS OF NOVEMBER 29, 1949, AUTHORIZING THE DECEDENT TO ASSOCIATE HIMSELF WITH THE VOLUNTEER UNIT CONCERNED DO NOT DIRECT THE PERFORMANCE OF ANY DUTY AS SUCH. IN FACT, THEIR ONLY EFFECT WITH RESPECT TO AERIAL FLIGHTS WAS, AS STATED THEREIN, TO MAKE HIM ELIGIBLE FOR REPEATED TRAINING DUTY ORDERS INVOLVING FLYING WITHOUT PAY AND ALLOWANCES.

ON THE DAY OF LIEUTENANT MURPHY'S DEATH IT APPEARS THAT HE WAS PERFORMING DUTY AS A VOLUNTEER RESERVIST WHO WAS ASSOCIATED WITH A VOLUNTEER UNIT AND IT DOES NOT APPEAR THAT HE WAS ORDERED OR DIRECTED TO PERFORM SUCH DUTY WITHIN THE MEANING OF THE SAID ACT OF JUNE 20, 1949. IN SUCH CIRCUMSTANCES IT MAY NOT BE CONCLUDED THAT HIS BENEFICIARY IS ENTITLED TO THE SIX MONTHS' DEATH GRATUITY CLAIMED. PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.