B-109506, JUL 9, 1952

B-109506: Jul 9, 1952

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PRECIS-UNAVAILABLE THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF MAY 5. A SUPPLEMENTAL PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS AUTHORIZED ON THE BASIS OF THE PAY OF THE RANK OF LIEUTENANT (JUNIOR GRADE) IN THE CASE OF ENSIGN JOHN B. WHO WAS KILLED IN AN AIRPLANE CRASH ON SEPTEMBER 13. IT IS STATED THAT HE WAS ELIGIBLE. HE WAS FOUND PHYSICALLY QUALIFIED FOR PROMOTION ON AUGUST 12. IT IS STATED ALSO THAT THE REPORT OF THE BOARD WHICH FOUND THAT HE WAS QUALIFIED FOR PROMOTION WAS APPROVED BY THE SECRETARY OF THE NAVY ON SEPTEMBER 6. IT IS INDICATED. WAS BEING USED AT THAT TIME IN LIEU OF A COMMISSION. REPORT OF DEATH WAS RECEIVED ON SEPTEMBER 15 BY THE CASUALTY BRANCH OF THE BUREAU OF NAVAL PERSONNEL.

B-109506, JUL 9, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MAY 5, 1952, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING DECISION WHETHER UNDER THE CIRCUMSTANCES SET FORTH IN A LETTER DATED FEBRUARY 28, 1952, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, ENCLOSED THEREWITH, A SUPPLEMENTAL PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS AUTHORIZED ON THE BASIS OF THE PAY OF THE RANK OF LIEUTENANT (JUNIOR GRADE) IN THE CASE OF ENSIGN JOHN B. LITTLE, U. S. NAVY, WHO WAS KILLED IN AN AIRPLANE CRASH ON SEPTEMBER 13, 1949.

IT APPEARS FROM THE INFORMATION CONTAINED IN THE SAID LETTER OF FEBRUARY 28, 1952, THAT ON AUGUST 7, 1945, THE OFFICER ACCEPTED APPOINTMENT AS ENSIGN A1(L), USNR, TO RANK FROM AUGUST 1, 1945, AND SERVED ON ACTIVE DUTY THEREUNDER UNTIL JULY 25, 1947, THE DATE OF ACCEPTANCE OF APPOINTMENT AS ENSIGN, USN, DATED FEBRUARY 19, 1947. IT IS STATED THAT HE WAS ELIGIBLE, UNDER THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, FOR PROMOTION TO THE RANK OF LIEUTENANT (JUNIOR GRADE) EFFECTIVE AUGUST 1, 1948, IF MENTALLY, MORALLY, PROFESSIONALLY, AND PHYSICALLY QUALIFIED THEREFOR, AND THAT THE SENATE ON JUNE 9, 1948, CONFIRMED HIS NOMINATION ALONG WITH THE NOMINATIONS OF CERTAIN OTHER ENSIGNS ELIGIBLE FOR PROMOTION TO LIEUTENANT (JUNIOR GRADE) PRIOR TO OCTOBER 1, 1948, THE CONFIRMATIONS BEING SUBJECT TO QUALIFICATIONS FOR APPOINTMENT TO SUCH RANK AS PROVIDED BY LAW. HE WAS FOUND PHYSICALLY QUALIFIED FOR PROMOTION ON AUGUST 12, 1948, AND IN ACCORDANCE WITH ORDERS OF THE CHIEF OF NAVAL PERSONNEL OF JUNE 10, 1949, AS MODIFIED BY DISPATCH ORDERS OF JUNE 22, 1949, HE REPORTED TO A NAVAL EXAMINING BOARD ON JUNE 28 FOR FURTHER EXAMINATION FOR PROMOTION. IT IS STATED ALSO THAT THE REPORT OF THE BOARD WHICH FOUND THAT HE WAS QUALIFIED FOR PROMOTION WAS APPROVED BY THE SECRETARY OF THE NAVY ON SEPTEMBER 6, 1949, AND THAT REPORT FORMED THE BASIS FOR THE ISSUANCE OF A BUREAU OF NAVAL PERSONNEL SPEEDLETTER DATED SEPTEMBER 16, 1949, ADDRESSED TO THE COMMANDING OFFICER, FIGHTER SQUADRON 13 (VF-13), C/O FLEET POST OFFICE, NEW YORK, NEW YORK, STATING:

"THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE PERMANENTLY APPOINTED JOHN B LITTLE 470645/1100 USN A LIEUTENANT (JUNIOR GRADE) IN THE NAVY TO RANK FROM 1 AUGUST 1948 EFFECTIVE 1 AUGUST 1948 X FORWARD ORIGINAL ACCEPTANCE AND OATH OF OFFICE TO BUPERS ATTN PERS 32152 BT"

SUCH FORM OF APPOINTMENT, IT IS INDICATED, WAS BEING USED AT THAT TIME IN LIEU OF A COMMISSION. WHILE ASSIGNED TO DUTY INVOLVING FLYING WITH FIGHTER SQUADRON 13, ENSIGN LITTLE DIED ON SEPTEMBER 13, 1949, AND REPORT OF DEATH WAS RECEIVED ON SEPTEMBER 15 BY THE CASUALTY BRANCH OF THE BUREAU OF NAVAL PERSONNEL.

SINCE THE DEATH OF THE OFFICER OCCURRED PRIOR TO THE ISSUANCE OF THE APPOINTMENT TO THE RANK OF LIEUTENANT (JUNIOR GRADE) ON SEPTEMBER 16, 1949, THE QUESTION PRESENTED IS WHETHER UNDER THE INDICATED CIRCUMSTANCES HIS PROMOTION MIGHT BE CONSIDERED AS HAVING BEEN CONSUMMATED PRIOR TO HIS DEATH FOR THE PURPOSES OF ENTITLEMENT TO THE SIX MONTHS' DEATH GRATUITY ON THE BASIS OF THE HIGHER RANK, IT BEING SUGGESTED THAT AN AFFIRMATIVE CONCLUSION COULD BE REACHED IN VIEW OF THE FACT THAT ALL ACTIONS NECESSARY TO ESTABLISH HIS RIGHT TO THE PROMOTION HAD BEEN COMPLETED PRIOR TO THE DATE OF HIS DEATH. IN THAT CONNECTION REFERENCE IS MADE TO A DECISION OF THE COMPTROLLER OF THE TREASURY DATED SEPTEMBER 23, 1915, 74 MS, COMP. DEC. 1223, WHEREIN IT WAS HELD THAT A NAVAL OFFICER WHO HAD MET THE REQUIREMENTS FOR PROMOTION FROM ENSIGN TO LIEUTENANT (JUNIOR GRADE) AND FOR WHOM A COMMISSION HAD BEEN ISSUED AND SIGNED BY THE PRESIDENT, BUT WHO WAS KILLED IN AN AIRPLANE ACCIDENT BEFORE HE RECEIVED NOTICE OF HIS APPOINTMENT, BECAME VESTED WITH THE RIGHT TO THE PAY OF THE HIGHER GRADE UPON THE ISSUANCE OF HIS COMMISSION, COMPUTED FROM THE DATE HE TOOK RANK AS STATED THEREIN. IN SUCH CASE, HOWEVER, THE APPOINTMENT ACTUALLY WAS ISSUED BEFORE THE OFFICER'S DEATH WHEREAS APPOINTMENT WAS NOT ISSUED IN THE CASE OF ENSIGN LITTLE UNTIL A DATE SUBSEQUENT TO THAT ON WHICH HE WAS KILLED.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, PROVIDES IN PERTINENT PART 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 OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID *** 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. ***"

SUCH PROVISIONS REQUIRE THAT THE GRATUITY PAYMENT THEREIN PROVIDED SHALL BE COMPUTED ON THE BASIS OF THE PAY THAT THE OFFICER ACTUALLY WAS ENTITLED TO RECEIVE ON THE DATE OF HIS DEATH. CLEARLY A RIGHT TO PAY WHICH WOULD VEST AT A LATER DATE BUT FOR THE DEATH OF THE OFFICER MAY NOT BE CONSIDERED AS WITHIN THE CONTEMPLATION THEREOF.

THE RIGHT OF AN OFFICER TO RECEIVE THE PAY OF A PARTICULAR GRADE OR RANK IS NECESSARILY DEPENDENT UPON HIS HOLDING OR HAVING A VESTED RIGHT TO HOLD THAT OFFICE, AND SUCH RIGHT, IN TURN, IS PREDICATED UPON HIS HAVING BEEN APPOINTED OR PROMOTED THERETO. IT IS WELL SETTLED THAT UNLESS EXPRESSLY AUTHORIZED BY STATUTE A PROMOTION AFTER THE DEATH OF AN OFFICER DOES NOT AUTHORIZE PAY IN THE PROMOTED GRADE. SEE IN THAT CONNECTION THE ACT OF JULY 28, 1942, 56 STAT. 722, WHICH, ALTHOUGH AUTHORIZING POSTHUMOUS APPOINTMENTS FOR CERTAIN PURPOSES, SPECIFICALLY PROHIBITS THE PAYMENT OF ANY BONUS, GRATUITY, PAY, OR ALLOWANCES BY VIRTUE OF SUCH APPOINTMENTS. WHILE, AS IS SUGGESTED, IT APPEARS THAT ALL OF THE STATUTORY REQUIREMENTS OF ELIGIBILITY FOR PROMOTION TO THE RANK OF LIEUTENANT (JUNIOR GRADE) WERE MET BY ENSIGN LITTLE PRIOR TO HIS DEATH, SUCH REQUIREMENTS WERE DESIGNED TO SERVE AND DID SERVE ONLY AS QUALIFICATION FOR PROMOTION. HIS RIGHT TO PAY IN THE HIGHER RANK ON THE DATE OF HIS DEATH WOULD HAVE VESTED ONLY UPON THE EXECUTION OF APPOINTMENT BY THE APPOINTING POWER ON OR BEFORE THAT DATE. CF. 25 COMP. GEN. 512, 26 ID. 475.

THERE IS NO SHOWING THAT THE APPOINTMENT OF ENSIGN LITTLE TO THE RANK OF LIEUTENANT (JUNIOR GRADE) WAS ISSUED UNTIL A DATE SUBSEQUENT TO THAT ON WHICH HE WAS KILLED AND, HENCE, THE CONCLUSION IS REQUIRED THAT HE WAS ENTITLED ON THE DATE OF HIS DEATH, SEPTEMBER 13, 1949, TO PAY AS AN ENSIGN. ACCORDINGLY, NO AUTHORITY EXISTS FOR A SUPPLEMENTAL PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN HIS CASE BASED ON THE HIGHER RANK.