B-127763, JULY 19, 1956, 36 COMP. GEN. 57

B-127763: Jul 19, 1956

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WAS ADMITTED TO A CIVILIAN HOSPITAL FOR TREATMENT FOR POLIOMYELITIS. THE MEMBER'S WIDOW IS ENTITLED TO HAVE THE ADDITIONAL FLIGHT PAY INCLUDED IN THE SIX MONTHS' DEATH GRATUITY PAYMENT. IT IS STATED THAT LIEUTENANT HALL'S WIDOW WAS PAID THE GRATUITY. LIEUTENANT HALL WAS ADMITTED TO UNIVERSITY HOSPITAL. IT IS APPARENT FROM THE EVIDENCE SUBMITTED THAT HE WAS SERVING ON EXTENDED ACTIVE DUTY. LIEUTENANT HALL WAS UNDER ORDERS REQUIRING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS. SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED "SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD. (AND) DEATH GRATUITY * * * AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION" FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY.

B-127763, JULY 19, 1956, 36 COMP. GEN. 57

GRATUITIES - SIX MONTHS' DEATH - INCLUSION OF FLIGHT PAY A NAVAL RESERVIST WHO, WHILE ON AUTHORIZED LEAVE FROM DUTY REQUIRING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS, WAS ADMITTED TO A CIVILIAN HOSPITAL FOR TREATMENT FOR POLIOMYELITIS, WHICH SUBSEQUENTLY CAUSED HIS DEATH, MAY NOT BE REGARDED AS HAVING HIS FLIGHT STATUS AUTOMATICALLY SUSPENDED BY REASON OF THE HOSPITALIZATION AND, THEREFORE, THE MEMBER'S WIDOW IS ENTITLED TO HAVE THE ADDITIONAL FLIGHT PAY INCLUDED IN THE SIX MONTHS' DEATH GRATUITY PAYMENT.

TO L. A. CAMPBELL, UNITED STATES NAVY FINANCE CENTER, JULY 19, 1956:

THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY, BY DIRECTION OF THE SECRETARY OF THE NAVY, FORWARDED TO THIS OFFICE YOUR LETTER OF MARCH 26, 1956, REQUESTING DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER, ENCLOSED THEREWITH, IN THE AMOUNT OF $1,200, REPRESENTING SIX MONTHS' DEATH GRATUITY (FLYING PAY ONLY) IN THE CASE OF LIEUTENANT LEWIS W. HALL, UNITED STATES NAVAL RESERVE, WHO DIED ON AUGUST 28, 1955. IT IS STATED THAT LIEUTENANT HALL'S WIDOW WAS PAID THE GRATUITY, INCLUDING $1,200 AS FLYING PAY PORTION, AND SUBSEQUENTLY, AT THE REQUEST OF THE DEPARTMENT OF THE NAVY, REFUNDED THE AMOUNT OF $1,200.

IT APPEARS THAT ON AUGUST 13, 1955, WHILE ON AUTHORIZED LEAVE, LIEUTENANT HALL WAS ADMITTED TO UNIVERSITY HOSPITAL, COLUMBUS, OHIO, FOR TREATMENT FOR POLIOMYELITIS. ALTHOUGH NO DIRECT STATEMENT TO THAT EFFECT HAS BEEN FURNISHED, IT IS APPARENT FROM THE EVIDENCE SUBMITTED THAT HE WAS SERVING ON EXTENDED ACTIVE DUTY. ALSO, IT APPEARS THAT ON AUGUST 13, 1955, LIEUTENANT HALL WAS UNDER ORDERS REQUIRING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS; THAT HE HAD MET FLIGHT REQUIREMENTS FOR THE MONTH OF JULY 1955; AND THAT HE HAD NOT MADE SUFFICIENT FLIGHTS IN AUGUST TO QUALIFY FOR FLYING PAY FOR 28 DAYS. IT FURTHER APPEARS THAT ON AUGUST 28, 1955, LIEUTENANT HALL DIED OF POLIOMYELITIS.

SECTION 1 OF THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C 1, PROVIDES THAT ALL OFFICERS OF THE NAVAL RESERVE WHO, IF CALLED OR ORDERED INTO THE ACTIVE NAVAL SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL SERVICE IN EXCESS OF 30 DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE 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 RESPECT ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, (AND) DEATH GRATUITY * * * AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION" FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM 34 U.S.C. 943):

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 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. * * *.

PARAGRAPH 1044087-1, NAVY COMPTROLLER MANUAL, IS AS FOLLOWS:

GENERAL. THE COMMANDING OFFICER WILL SUSPEND FROM FLYING ANY OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER UNDER HIS COMMAND WHO, IN HIS OPINION, IS UNFIT FOR FLYING, EXCEPT AS A RESULT OF AN AVIATION ACCIDENT. PERSONNEL INJURED OR INCAPACITATED AS A RESULT OF AN AVIATION ACCIDENT WILL NOT BE SUSPENDED FROM FLYING. A SUSPENSION FOR A MINOR SICKNESS OR INJURY IN THE CASE OF AN OFFICER, WARRANT OFFICER, OR AVIATION PILOT IS MADE AND REVOKED BY THE COMMANDING OFFICER; NO CONFIRMATION IS NECESSARY. A SUSPENSION FOR OTHER THAN A MINOR SICKNESS OR INJURY MUST BE CONFIRMED BY THE BUREAU OF NAVAL PERSONNEL. WHEN THE COMMANDING OFFICER CONSIDERS THE MEMBER THUS SUSPENDED TO BE AGAIN FIT FOR FLYING, HE IS AUTHORIZED TO REVOKE THE SUSPENSION AND WILL REPORT HIS ACTION TO THE BUREAU OF NAVAL PERSONNEL. CONFIRMATION OF SUCH ACTION RESULTS IN THE REMOVAL OF THE SUSPENSION FROM THE DATE OF REVOCATION BY THE COMMANDING OFFICER. IN THE CASE OF AN ENLISTED MEMBER, EXCEPT AN AVIATION PILOT, BOTH THE SUSPENSION AND REVOCATION ARE ALWAYS MADE BY THE COMMANDING OFFICER; NO CONFIRMATION IS NECESSARY WHETHER THE SICKNESS OR INJURY BE MINOR OR OTHERWISE. THE COMMANDING OFFICER WILL IMMEDIATELY INFORM THE DISBURSING OFFICER OF ANY SUSPENSION FROM FLYING DUTY, GIVING THE NAME OF THE MEMBER, THE DATE SUSPENDED, AND THE REASON. HE WILL SIMILARLY INFORM THE DISBURSING OFFICER OF THE REVOCATION OF A SUSPENSION. IN THIS CONNECTION, FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO AVIATION PAY, THE RECEIPT OF A HOSPITAL RATION NOTICE (S. AND A. FORM 534) IS CONSIDERED NOTIFICATION TO THE DISBURSING OFFICER THAT AN AUTOMATIC SUSPENSION FROM FLYING DUTY EXISTS.

UNDER A STATUTE SIMILAR TO THE ABOVE ACT OF JUNE 4, 1920, IT WAS HELD IN DECISION OF FEBRUARY 14, 1928, 7 COMP. GEN. 476, THAT ALTHOUGH AN ARMY OFFICER, UNDER FLIGHT ORDERS, DIED WITHOUT HAVING MADE ANY FLIGHTS DURING THE THREE MONTHS SUCCEEDING THE QUARTER IN WHICH HE LAST MET FLIGHT REQUIREMENTS, FLYING PAY, NEVERTHELESS, PROPERLY WAS FOR INCLUSION IN COMPUTING THE DEATH GRATUITY. SUCH CONCLUSION WAS REACHED ON THE BASIS THAT, BUT FOR HIS DEATH, THE OFFICER COULD HAVE MET THE PRESCRIBED FLIGHT REQUIREMENTS AND THAT, THEREFORE, THE RATE OF PAY RECEIVED BY HIM AT THE DATE OF HIS DEATH INCLUDED FLYING PAY.

IN DECISION OF APRIL 12, 1955, B-122105, INVOLVING THE SAME STATUTE CONSIDERED IN THE DECISION OF FEBRUARY 14, 1928, IT WAS HELD THAT FLYING PAY WAS NOT FOR INCLUSION IN THE DEATH GRATUITY PAYABLE IN THE CASE OF AN OFFICER WHO, ON THE DATE OF HIS DEATH, HAD BEEN SUSPENDED FROM FLYING DUTY. IT WAS SAID IN THAT DECISION THAT "A MEMBER IS NOT ENTITLED TO ADDITIONAL PAY FOR FLYING WHEN SUSPENDED FROM FLYING DUTY AND, HENCE, WHEN A MEMBER DIES WHILE UNDER SUCH SUSPENSION, PAY FOR FLYING SHOULD NOT BE INCLUDED IN THE RATE OF PAY AT DATE OF DEATH FOR THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY.'

IN THE PRESENT CASE IT IS STATED (IN THE COMPTROLLER OF THE NAVY'S SECOND ENDORSEMENT ON YOUR LETTER OF MARCH 26, 1956), THAT WHILE LIEUTENANT HALL HAD NOT BEEN SUSPENDED FROM FLYING DUTY AT THE TIME OF HIS DEATH, PARAGRAPH 1044087-1, NAVY COMPTROLLER MANUAL (QUOTED ABOVE) DIRECTS THAT ,ACTION BE TAKEN TO SUSPEND AN OFFICER'S FLYING STATUS WHEN HE IS, IN THE OPINION OF THE COMMANDING OFFICER, UNFIT FOR FLYING" AND THAT "FROM THE NATURE OF THIS OFFICER'S ILLNESS IT APPEARS * * * (THAT PARAGRAPH) WOULD HAVE BEEN APPLICABLE.'

THE DISTINGUISHING FEATURE BETWEEN THE CASES CONSIDERED IN THE DECISIONS OF FEBRUARY 14, 1928, AND APRIL 12, 1955, IS THAT THE OFFICER IN THE LATER CASE HAD BEEN SUSPENDED FROM FLYING DUTY. UNDER THE REGULATIONS QUOTED ABOVE, A SUSPENSION FROM FLYING DUTY BECAUSE OF UNFITNESS FOR FLYING GENERALLY IS A MATTER OF DISCRETION ON THE PART OF THE INDIVIDUAL'S COMMANDING OFFICER. LIEUTENANT HALL'S COMMANDING OFFICER APPARENTLY DID NOT SUSPEND HIM AND THERE APPEARS TO BE NO SUFFICIENT BASIS, UNDER THE QUOTED REGULATIONS, FOR HOLDING THAT LIEUTENANT HALL'S ADMISSION TO THE UNIVERSITY HOSPITAL AT COLUMBUS WORKED AN AUTOMATIC SUSPENSION OF HIS FLIGHT ORDERS.

ACCORDINGLY, IT IS OUR CONCLUSION THAT LIEUTENANT HALL'S CASE IS GOVERNED BY THE RULE ESTABLISHED IN 7 COMP. GEN. 476 AND PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.