B-109305, JUNE 4, 1952, 31 COMP. GEN. 645

B-109305: Jun 4, 1952

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SAID GRATUITY MAY NOT BE PAID IN ANY CASE WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THE MEMBER WAS A DESERTER. IS AUTHORIZED IN THE CASE OF MEMBERS OF THE ARMED FORCES WHO ON OR AFTER AUGUST 31. ARE DECLARED TO BE DESERTERS AND WHO DIE WHILE IN A DESERTION STATUS. WAS CONSIDERED TO BE IN NON-PAY STATUS WHILE SO ABSENT. IRRESPECTIVE OF WHETHER HIS ABSENCE WAS REGARDED AS ABSENCE WITHOUT LEAVE. SUCH GRATUITY WAS NOT PAYABLE WHERE THE ENLISTED MAN DIED WHILE IN AN ABSENCE WITHOUT LEAVE STATUS. 27 COMP. UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE * * *". IT WAS HELD IN DECISION OF JANUARY 9. WERE NO LONGER CONTROLLING IN ANY CASE WHERE THE UNAUTHORIZED ABSENCE MIGHT BE REGARDED AS COMING WITHIN THE PURVIEW OF THE SAID SECTION 4 (B).

B-109305, JUNE 4, 1952, 31 COMP. GEN. 645

SIX MONTHS' DEATH GRATUITY - MEMBERS OF UNIFORMED SERVICES IN DESERTION STATUS AT TIME OF DEATH THE SIX MONTHS DEATH GRATUITY PROVIDED BY THE ACT OF JUNE 4, 1920, AS AMENDED, FOR THE NAVY, AND THE ACT OF DECEMBER 17, 1919, AS AMENDED, FOR THE ARMY AND AIR FORCE, MAY BE PAID IN THE CASE OF MEMBERS OF THE ARMED FORCES WHO DIE WHILE ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE AFTER THE EFFECTIVE DATE OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED; HOWEVER, SAID GRATUITY MAY NOT BE PAID IN ANY CASE WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THE MEMBER WAS A DESERTER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JUNE 4, 1952:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 23, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER, OR UNDER WHAT CIRCUMSTANCES, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PROVIDED BY THE ACT OF JUNE 4, 1920, AS AMENDED, 34 U.S.C. 943, FOR THE NAVY, AND THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, FOR THE ARMY AND AIR FORCE, IS AUTHORIZED IN THE CASE OF MEMBERS OF THE ARMED FORCES WHO ON OR AFTER AUGUST 31, 1946, THE EFFECTIVE DATE OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 34 U.S.C. 604, AND 10 U.S.C. 18, ARE DECLARED TO BE DESERTERS AND WHO DIE WHILE IN A DESERTION STATUS.

THE ABOVE-CITED LAWS AUTHORIZING THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PROVIDE, IN SUBSTANCE, THAT 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 SERVICE CONCERNED, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THERE SHALL BE PAID TO THE WIDOW, CHILD, OR CERTAIN SPECIFIED DEPENDENT RELATIVES OF THE DECEDENT,"AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF DEATH.'

UNDER THE LAWS AND REGULATIONS IN EFFECT PRIOR TO THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AN ENLISTED MEMBER OF THE ARMY OR NAVY WHO, WITHOUT PROPER AUTHORITY, ABSENTED HIMSELF FROM HIS ORGANIZATION, STATION, OR DUTY, WAS CONSIDERED TO BE IN NON-PAY STATUS WHILE SO ABSENT, IRRESPECTIVE OF WHETHER HIS ABSENCE WAS REGARDED AS ABSENCE WITHOUT LEAVE, ABSENCE OVER LEAVE, OR DESERTION. AND, BEING IN A NONPAY STATUS AT THE TIME OF DEATH SUCH ENLISTED MAN HAD NO RATE OF PAY ON WHICH TO COMPUTE THE GRATUITY AND, THEREFORE, SUCH GRATUITY WAS NOT PAYABLE WHERE THE ENLISTED MAN DIED WHILE IN AN ABSENCE WITHOUT LEAVE STATUS. 27 COMP. GEN. 269, AND DECISIONS CITED THEREIN. HOWEVER, SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, WHICH PROVIDES THAT MEMBERS OF THE ARMED FORCES," WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, * * * SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE * * *"--- HAS THE EFFECT OF CONTINUING SUCH MEMBERS AT LEAST IN A NOMINAL PAY STATUS WHILE ABSENT WITHOUT LEAVE, OR ABSENT OVER LEAVE AND, CONSEQUENTLY, IT WAS HELD IN DECISION OF JANUARY 9, 1950, 29 COMP. GEN. 294, THAT PRIOR DECISIONS BASED UPON LAWS AND REGULATIONS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, WERE NO LONGER CONTROLLING IN ANY CASE WHERE THE UNAUTHORIZED ABSENCE MIGHT BE REGARDED AS COMING WITHIN THE PURVIEW OF THE SAID SECTION 4 (B). ALSO, IN DECISION OF NOVEMBER 19, 1951, B-105587, WHICH INVOLVED A MEMBER ABSENT WITHOUT LEAVE FOR A PERIOD IN EXCESS OF THREE MONTHS, IT WAS HELD THAT THE SAID DECISION OF JANUARY 9, 1950, WAS APPLICABLE WITHOUT REGARD TO THE DURATION OF THE ABSENCE WITHOUT PROPER AUTHORITY, PROVIDED THE ENLISTED MEMBER WAS NOT IN A DESERTION STATUS AND HIS DEATH OCCURRED PRIOR TO THE EXPIRATION OF HIS ENLISTMENT PERIOD. HOWEVER, THERE IS NOTHING IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, WHICH PURPORTS TO CONTINUE A MEMBER IN A PAY STATUS AFTER HE BECOMES A DESERTER. EVEN PRIOR TO THE ARMED FORCES LEAVE ACT IT UNIFORMLY HAD BEEN HELD THAT THE EFFECT OF THE ACT OF DESERTION UPON THE DESERTER'S PAY AND ALLOWANCES, IS TO WORK A FORFEITURE OF PAY AND ALLOWANCES DUE AT THE TIME OF DESERTION AND TO TERMINATE HIS PAY STATUS THEREAFTER, IT BEING CONSIDERED THAT THE CONTRACT OF ENLISTMENT IS AN ENTIRETY AND IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED. UNITED STATED V. LANDERS, 92 U.S. 77; UNITED STATES V. KINGSLEY, 138 U.S. 87; 12 COMP. DEC. 328; 8 COMP. GEN. 233; 23 ID. 44; 26 ID. 702; 28 ID. 114 CF. REED V. UNITED STATES, 252 F.1REP. 21.

THE CIRCUMSTANCES UNDER WHICH AN INDIVIDUAL IS TO BE REGARDED AS A DESERTER ARE SET FORTH IN THE UNIFORM CODE OF MILITARY JUSTICE, ARTICLE 85, 64 STAT. 135, AND DEPARTMENTAL REGULATIONS AND WHERE THE CONDUCT OF AN INDIVIDUAL BRINGS HIM WITHIN SUCH LAW AND REGULATIONS, PRIMA FACIE, HE IS IN A DESERTION STATUS, EVEN THOUGH NO FORMAL ACTION IS TAKEN ADMINISTRATIVELY TO DECLARE HIM A DESERTER. 23 COMP. GEN. 44. HOWEVER, WHILE ABSENCE WITHOUT AUTHORITY BEYOND A PRESCRIBED PERIOD--- 29 DAYS--- IS A BASIS FOR ADMINISTRATIVELY DECLARING A MAN A DESERTER, SUCH PERIOD OF ABSENCE DOES NOT, IPSO FACTO, ESTABLISH DESERTION AND WHERE NO ADMINISTRATIVE DETERMINATION OF DESERTION IS MADE IN SUCH CASES, OR WHERE SUCH DETERMINATION, IF MADE, WAS ERRONEOUS, AND IT IS ADMINISTRATIVELY DETERMINED THAT THE MEMBER WAS ONLY ABSENT WITHOUT LEAVE, OR ABSENT OVER LEAVE, THIS OFFICE WOULD NOT, IN THE ABSENCE OF COMPELLING EVIDENCE TO THE CONTRARY, BE REQUIRED TO CONCLUDE THAT THE ABSENTEE WAS A DESERTER FOR PURPOSES OF THE SIX MONTHS' DEATH GRATUITY. CF. B-105587, SUPRA. ..END :