B-137252, FEB. 17, 1960

B-137252: Feb 17, 1960

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FURTHER CONSIDERATION IS REQUESTED ON YOUR BEHALF IN THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES. WHICH WAS ERRONEOUSLY PAID TO YOU AS A SIX-MONTH DEATH GRATUITY INCIDENT TO THE DEATH OF YOUR HUSBAND. THE RECORDS SHOW THAT LIEUTENANT SEBESTA WAS KILLED IN AN ACCIDENT ON DECEMBER 13. YOU WERE PAID THE SUM OF $2052.72 AS A DEATH GRATUITY UNDER THE PROVISIONS OF TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT. ON THE BASIS THAT HE WAS IN AN ACTIVE DUTY STATUS AT THE TIME OF HIS DEATH. IT WAS FOUND THAT AT THE TIME OF HIS DEATH YOUR HUSBAND WAS NOT IN UNIFORM. WAS NOT IN POSSESSION OF HIS ORDERS TO ACTIVE DUTY. WAS NOT PERFORMING TRAVEL TO COMPLY WITH HIS ORDERS.

B-137252, FEB. 17, 1960

TO MRS. JANE KATHRYN SEBESTA:

IN A LETTER FROM COMER WHITAKER, ATTORNEY AT LAW, DATED OCTOBER 1, 1959, FURTHER CONSIDERATION IS REQUESTED ON YOUR BEHALF IN THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES, STATED IN THE TOTAL SUM OF $2052.72, WHICH WAS ERRONEOUSLY PAID TO YOU AS A SIX-MONTH DEATH GRATUITY INCIDENT TO THE DEATH OF YOUR HUSBAND, SECOND LIEUTENANT OSCAR J. SEBESTA, JR., AIR NATIONAL GUARD, ON DECEMBER 13, 1957.

THE RECORDS SHOW THAT LIEUTENANT SEBESTA WAS KILLED IN AN ACCIDENT ON DECEMBER 13, 1957, AT TEN MINUTES AFTER MIDNIGHT, WHILE RIDING IN A PRIVATELY OWNED AUTOMOBILE. YOU WERE PAID THE SUM OF $2052.72 AS A DEATH GRATUITY UNDER THE PROVISIONS OF TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, 70 STAT. 868, ON THE BASIS THAT HE WAS IN AN ACTIVE DUTY STATUS AT THE TIME OF HIS DEATH. UPON A REVIEW OF THE FACTS IN THE CASE, HOWEVER, IT WAS FOUND THAT AT THE TIME OF HIS DEATH YOUR HUSBAND WAS NOT IN UNIFORM, WAS NOT IN POSSESSION OF HIS ORDERS TO ACTIVE DUTY, AND WAS NOT PERFORMING TRAVEL TO COMPLY WITH HIS ORDERS. ACCORDINGLY, THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HELD THAT HE WAS NOT IN AN ACTIVE DUTY STATUS AT THE TIME OF HIS DEATH. CONSEQUENTLY, A CASUALTY REPORT OF DECEMBER 23, 1957, INDICATING THAT HE WAS ON ACTIVE DUTY AT THAT TIME WAS CANCELLED UNDER DATE OF MAY 2, 1958, AND A DETERMINATION WAS MADE, BY ORDER OF THE SECRETARY OF THE AIR FORCE, THAT "SUBSEQUENT INFORMATION REVEALS THAT SUBJECT PERSON WAS IN CIVILIAN STATUS AT TIME OF DEATH.'

THE SIX-MONTH DEATH GRATUITY PROVIDED IN TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT IS AUTHORIZED TO BE PAID TO THE SURVIVORS OF A DECEASED MEMBER WHO "DIES WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING.' THE TERM "ACTIVE DUTY" IS DEFINED FOR THE PURPOSES OF THAT ACT IN SECTION 102 (4), 70 STAT. 858, AS INCLUDING "/A) FULL-TIME DUTY * * * OTHER THAN ACTIVE DUTY FOR TRAINING, * * * AND (B) AUTHORIZED TRAVEL TO OR FROM SUCH DUTY OR SERVICE.' AS TO ACTIVE DUTY FOR TRAINING AND INACTIVE DUTY TRAINING, PARAGRAPH (6) (B) OF SECTION 102 PROVIDES THAT A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE (ALSO APPLICABLE TO MEMBERS OF THE AIR NATIONAL GUARD) WHO, WHEN AUTHORIZED OR REQUIRED BY COMPETENT AUTHORITY, ASSUMES AN OBLIGATION TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING, AND WHO DIES FROM INJURY INCURRED "WHILE PROCEEDING DIRECTLY TO OR RETURNING DIRECTLY FROM SUCH ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING," SHALL BE DEEMED TO HAVE BEEN ON ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING, AS THE CASE MAY BE, AND ENTITLED TO BASIC PAY AT THE TIME SUCH INJURY WAS INCURRED. FOR THE PURPOSE OF PAYMENT OF THE SIX-MONTH DEATH GRATUITY, THE SECRETARY CONCERNED IS REQUIRED BY THE STATUTE TO DETERMINE WHETHER SUCH MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WAS SO AUTHORIZED OR REQUIRED TO PERFORM SUCH DUTY, AND WHETHER HE DIED FROM INJURY SO INCURRED, TAKING INTO CONSIDERATION SUCH ITEMS AS THE HOUR ON WHICH HE BEGAN TO TRAVEL, THE HOUR SCHEDULED FOR ARRIVAL, THE ITINERARY, THE IMMEDIATE CAUSE OF DEATH, ETC.

FROM INFORMATION FURNISHED TO US IN CONNECTION WITH YOUR HUSBAND'S CASE, IT APPEARS THAT HE WAS ORDERED TO ACTIVE DUTY FOR ONE DAY, DECEMBER 13, 1957, AT ELLINGTON AIR FORCE BASE, TEXAS, AND THAT ALTHOUGH HIS ORDERS STATED THAT ACTIVE DUTY WOULD COMMENCE AT ONE MINUTE AFTER MIDNIGHT, THE REPORTING TIME FOR SUCH DUTY ACTUALLY WAS ONE HOUR BEFORE SUNRISE. THE ADMINISTRATIVE DETERMINATION THAT HE WAS NOT IN AN ACTIVE DUTY STATUS AT THE TIME OF HIS DEATH, MADE UNDER AUTHORITY OF THE ABOVE CITED STATUTORY PROVISIONS, WE CONSIDER TO BE FULLY JUSTIFIED AND REQUIRED IN VIEW OF THE FACT THAT AT THE TIME OF HIS ACCIDENT HE WAS NOT EITHER IN THE PERFORMANCE OF ACTIVE DUTY OR PROCEEDING TO SUCH ACTIVE DUTY, AVAILABLE EVIDENCE INDICATING THAT THE ACCIDENT OCCURRED WHILE HE WAS AWAY FROM HIS HOME TO ATTEND A MOVIE AND BEFORE HE WAS REQUIRED TO TRAVEL OR REPORT UNDER HIS ORDERS. WHILE IT IS UNFORTUNATE THAT THE DEATH GRATUITY PAYMENT WAS MADE TO YOU, WE CONSIDERED THAT IT CLEARLY WAS UNAUTHORIZED UNDER THE LAW. UNDER SUCH CIRCUMSTANCES, IT IS OUR RESPONSIBILITY AND DUTY TO TAKE THE STEPS NECESSARY TO EFFECT A RECOVERY OF THE ERRONEOUS PAYMENT. IT IS AGAIN REQUESTED, THEREFORE, THAT PAYMENT OF THE INDEBTEDNESS, OR PARTIAL PAYMENT (ACCOMPANIED BY A STATEMENT OF YOUR PROPOSAL FOR LIQUIDATION OF THE BALANCE OF THE DEBT), BE MADE BY CHECK OR MONEY ORDERS PAYABLE TO "THE UNITED STATES GENERAL ACCOUNTING OFFICE," WHICH SHOULD BE ADDRESSED TO UNITED STATES GENERAL ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON 13, D.C. ..END :