B-142788, JUNE 21, 1960, 39 COMP. GEN. 858

B-142788, JUNE 21, 1960, 39 COMP. GEN. 858

MILITARY PERSONNEL - GRATUITIES - DEATH IN AN AVIATION ACCIDENT - RESERVE MEMBER UNDERGOING INACTIVE FLIGHT TRAINING DUTY WITHOUT PAY THE PROVISION IN 10 U.S.C. 1478 (A) (7) THAT RESERVISTS WHO PERFORM ACTIVE DUTY OR INACTIVE DUTY TRAINING, WITHOUT PAY, ARE CONSIDERED TO BE ENTITLED TO BASIC PAY WHILE PERFORMING SUCH DUTY FOR DEATH GRATUITY PAYMENTS TO THEIR SURVIVORS IS NOT TO BE CONSTRUED AS LIMITING THE AMOUNT OF THE DEATH GRATUITY TO BASIC PAY BUT RATHER AS PLACING THE RESERVISTS PERFORMING MILITARY DUTY WITHOUT PAY IN A PAY STATUS; THEREFORE, IN THE COMPUTATION OF A DEATH GRATUITY PAYMENT DUE A BENEFICIARY OF A RESERVIST WHO WAS KILLED IN AN AVIATION ACCIDENT WHILE ENGAGED IN FLIGHT TRAINING DUTY UNDER ORDERS WHICH AUTHORIZED SPECIAL INACTIVE DUTY TRAINING WITHOUT PAY, AVIATION DUTY PAY IS FOR INCLUSION.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, JUNE 21, 1960:

YOUR LETTER OF APRIL 11, 1960, WITH ENCLOSURES, WAS FORWARDED HERE BY THE COMPTROLLER OF THE NAVY, BY SECOND ENDORSEMENT DATED MAY 3, 1960, REQUESTING DECISION ( DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION ( NO. DO-N-499) CONCERNING THE PROPRIETY OF INCLUDING AVIATION PAY IN THE COMPUTATION OF THE DEATH GRATUITY PAYMENT IN THE CASE OF LIEUTENANT TOM JOHN BOMBERGER, USNR-R556681) 1315.

BY ORDERS DATED NOVEMBER 27, 1959, THE DECEDENT, HAVING BEEN FOUND TO BE PHYSICALLY QUALIFIED AS DETERMINED BY HIS PHYSICAL EXAMINATION UPON HIS ASSIGNMENT TO THE ORGANIZED NAVAL AIR RESERVE, WAS DETAILED TO DUTY IN A FLYING STATUS INVOLVING OPERATIONAL TRAINING FLIGHTS EFFECTIVE UPON REPORTING IN COMPLIANCE WITH THE ORDERS WHICH WERE TO BE VALID FOR A PERIOD NOT TO EXCEED 12 MONTHS. SUCH ORDERS AUTHORIZED THE PERFORMANCE OF SPECIAL INACTIVE DUTY TRAINING WITHOUT PAY AND WITHOUT CASH PAYMENT IN LIEU OF SUBSISTENCE OR COMMUTED RATIONS, AND WITHOUT TRAVEL AT GOVERNMENT EXPENSE.

THE MEMBER PRESENTED HIMSELF FOR DUTY ON NOVEMBER 27, 1959, AND PERFORMED FLIGHT DUTY FROM 1030 TO 1650 HOURS ON THAT DATE. REPORTING AT 1600 HOURS ON DECEMBER 30, 1959, THE MEMBER, WHILE ENGAGED IN FLIGHT TRAINING DUTY, WAS KILLED IN AN AVIATION ACCIDENT ON JANUARY 1, 1960.

SINCE THE MEMBER WAS IN A FLIGHT STATUS AT TIME OF DEATH AND WAS PERFORMING DUTY INVOLVING FLYING, DECISION IS REQUESTED WHETHER A SUPPLEMENTAL DEATH GRATUITY PAYMENT, CONSISTING OF AVIATION DUTY PAY, TO THE DESIGNATED BENEFICIARY WOULD BE PROPER. DOUBT IS SAID TO ARISE IN VIEW OF THE MEMBER'S NONPAY STATUS UNDER THE ORDERS.

SECTION 102 (I) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 (I), PROVIDES IN PERTINENT PART:

THE TERM "INACTIVE DUTY TRAINING" SHALL BE INTERPRETED TO MEAN ANY OF THE TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES, OR EQUIVALENT TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES, OR HAZARDOUS DUTIES PERFORMED WITH OR WITHOUT COMPENSATION BY MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES * * *

TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, APPROVED AUGUST 1, 1956, 70 STAT. 868, PROVIDED AT SECTION 301 (A) AND (B), 38 U.S.C. 1131 (A) AND (B/---

(A) * * * THE SECRETARY CONCERNED SHALL HAVE A DEATH GRATUITY PAID IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF A UNIFORMED SERVICE UNDER HIS JURISDICTION WHO DIES WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING.

(B) THE DEATH GRATUITY SHALL EQUAL SIX MONTHS' BASIC PAY (PLUS SPECIAL AND INCENTIVE PAYS) AT THE RATE TO WHICH THE DECEASED MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DATE OF HIS DEATH, BUT SHALL NOT BE LESS THAN $800 NOR MORE THAN $3,000.

SUBSECTION (C) OF SECTION 304 OF THAT ACT, 38 U.S.C. 1134 (C), UNDER THE HEADING " ADMINISTRATIVE PROVISIONS," PROVIDED IN PERTINENT PART:

(C) A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO PERFORMS ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING, WITHOUT PAY SHALL, FOR THE PURPOSES OF THIS TITLE ONLY, BE CONSIDERED AS HAVING BEEN ENTITLED TO BASIC PAY WHILE PERFORMING SUCH DUTIES. * * *

H. REPT. NO. 993, PART I, P. 38, AND S. REPT. NO. 2380, P. 14, STATE WITH RESPECT TO SECTION 301 OF THE 1956 ACT, 38 U.S.C. 1131, THAT:

THIS SECTION ESTABLISHES THE CRITERIA FOR DETERMINING WHETHER A DEATH GRATUITY WILL BE PAID TO SURVIVORS OF A DECEASED PERSON; ESTABLISHES THE AMOUNT OF SUCH DEATH GRATUITY; AND ESTABLISHES THE SURVIVORS ENTITLED THERETO. ( ITALICS SUPPLIED.)

AT THE TIME OF THE ENACTMENT OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 971, PROVIDED:

SUBJECT TO THE PROVISIONS OF THIS ACT, MEMBERS OF THE RESERVE COMPONENTS MAY BE ORDERED TO ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR OTHER DUTY WITH PAY AND ALLOWANCES AS PROVIDED BY LAW, OR, WITH THEIR CONSENT, WITHOUT PAY. DUTY WITHOUT PAY SHALL BE COUNTED FOR ALL PURPOSES THE SAME AS LIKE DUTY WITH PAY. ( ITALICS SUPPLIED.)

ALTHOUGH SECTION 240 WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 682, ITS PROVISIONS WERE CODIFIED AND ENACTED INTO LAW AS 10 U.S.C. 683 (A). THE DEATH GRATUITY PROVISIONS OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT WERE CODIFIED BY PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1452, AND ARE NOW CONTAINED IN 10 U.S.C. 1475- 1480 (1958 USED.).

SECTION 1475 (A) OF TITLE 10 U.S.C. NOW PROVIDES IN PERTINENT PART:

(A) * * * THE SECRETARY CONCERNED SHALL HAVE A DEATH GRATUITY PAID TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477 OF THIS TITLE, IMMEDIATELY UPON RECEIVING OFFICIAL NOTIFICATION OF THE DEATH OF---

(3) ANY RESERVE OF AN ARMED FORCE WHO, WHEN AUTHORIZED OR REQUIRED BY AN AUTHORITY DESIGNATED BY THE SECRETARY, ASSUMED AN OBLIGATION TO PERFORM ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING * * *

SECTION 1478 OF TITLE 10 PROVIDES IN PERTINENT PART:

(A) THE DEATH GRATUITY * * * SHALL BE EQUAL TO SIX MONTHS' PAY AT THE RATE TO WHICH THE DECEDENT WAS ENTITLED ON THE DATE OF HIS DEATH, EXCEPT THAT THE GRATUITY MAY NOT BE LESS THAN $800 OR MORE THAN $3,000. FOR THIS PURPOSE:

(7) A PERSON * * * WHO PERFORMED ACTIVE DUTY, OR INACTIVE DUTY TRAINING, WITHOUT PAY IS CONSIDERED TO HAVE BEEN ENTITLED TO BASIC PAY WHILE PERFORMING THAT DUTY OR TRAINING.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 235 (A), PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY (INCLUDING AERIAL FLIGHTS) REQUIRED BY COMPETENT ORDERS.

NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY TO SUGGEST THAT THE PURPOSE OF SECTION 304 (C) OF THE ACT OF AUGUST 1, 1956, 38 U.S.C. 1134 (C) NOW CODIFIED IN 10 U.S.C. 1478 (A) (7), WAS TO ESTABLISH THE AMOUNT OF THE DEATH GRATUITY WHERE THE MEMBER PERFORMED DUTY WITHOUT PAY, BY LIMITING SUCH GRATUITY TO BASIC PAY. RATHER, IT APPEARS MERELY TO HAVE BEEN THE PURPOSE OF CONGRESS THEREBY TO PLACE THE RESERVIST PERFORMING MILITARY DUTY WITHOUT PAY IN A PAY STATUS FOR THE PURPOSE OF DETERMINING QUALIFICATION OR ELIGIBILITY FOR PAYMENT OF THE DEATH GRATUITY. SEE, ALSO, OUR DECISION OF MARCH 29, 1954, 33 COMP. GEN. 411, 416, IN WHICH WE HELD THAT THE DEATH GRATUITY BENEFITS AUTHORIZED FOR RESERVISTS BY THE ACT OF JUNE 20, 1949, 63 STAT. 201, PUBLIC LAW 108, 81ST CONGRESS, 34 U.S.C. 855C-1, WERE PAYABLE IN THE CASE OF A RESERVIST PERFORMING ACTIVE DUTY WITHOUT PAY UNDER SECTION 240 OF THE ARMED FORCES RESERVE ACT OF 1952, SINCE THOSE BENEFITS ARE NOT PREDICATED UPON THE EXISTENCE OF A PAY STATUS AT DATE OF DEATH.

FROM THE FOREGOING IT IS CONCLUDED THAT THE AMOUNT OF THE DEATH GRATUITY PAYABLE TO THE DESIGNATED BENEFICIARY OF LIEUTENANT BOMBERGER, COMPUTED UNDER SECTION 1478 OF TITLE 10 U.S. CODE, INCLUDES INCENTIVE PAY.

ACCORDINGLY, A SUPPLEMENTAL PAYMENT CONSISTING OF AVIATION DUTY PAY, TO THE EXTENT LIMITED BY LAW, MAY NOW BE MADE IN THIS CASE, IF OTHERWISE PROPER.