B-149052, SEPTEMBER 4, 1962, 42 COMP. GEN. 143

B-149052: Sep 4, 1962

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MILITARY PERSONNEL - DECEASED - REMAINS AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO DIED AFTER HE HAD BREACHED A RESTRICTED STATUS AND LEFT FOR MEXICO WITH THE INTENTION OF REMAINING THERE PERMANENTLY WAS IN FACT IN A DESERTION STATUS. EVEN THOUGH FORMAL ACTION TO DECLARE THE MEMBER A DESERTER WAS DELAYED UNTIL AFTER HIS DEATH. SINCE THE MEMBER WAS IN A DESERTION STATUS AT THE TIME OF HIS DEATH WHICH EFFECTED A TERMINATION OF HIS PAY STATUS. THE 6 MONTHS' DEATH GRATUITY AUTHORIZED FOR SURVIVORS OF MEMBERS IN A PAY STATUS AT TIME OF DEATH IS NOT PAYABLE TO THE ENLISTED MAN'S SURVIVORS. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO HIS DEATH HAD PLACED HIMSELF IN A DESERTION STATUS REQUIRING HIS REMOVAL FROM THE ROLLS OF HIS ORGANIZATION BUT WHO HAD NOT ACTUALLY BEEN DROPPED FROM THE ROLLS BY ADMINISTRATIVE ACTION AT THE TIME OF HIS DEATH IS CONSIDERED A MEMBER ON THE MUSTER ROLLS AT TIME OF DEATH UNDER 10 U.S.C. 1481 FOR PAYMENT OF EXPENSES INCIDENT TO HIS DEATH.

B-149052, SEPTEMBER 4, 1962, 42 COMP. GEN. 143

GRATUITIES - SIX MONTHS' DEATH - DESERTION STATUS AT TIME OF DEATH. MILITARY PERSONNEL - DECEASED - REMAINS AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO DIED AFTER HE HAD BREACHED A RESTRICTED STATUS AND LEFT FOR MEXICO WITH THE INTENTION OF REMAINING THERE PERMANENTLY WAS IN FACT IN A DESERTION STATUS, EVEN THOUGH FORMAL ACTION TO DECLARE THE MEMBER A DESERTER WAS DELAYED UNTIL AFTER HIS DEATH, AND, THEREFORE, SINCE THE MEMBER WAS IN A DESERTION STATUS AT THE TIME OF HIS DEATH WHICH EFFECTED A TERMINATION OF HIS PAY STATUS, THE 6 MONTHS' DEATH GRATUITY AUTHORIZED FOR SURVIVORS OF MEMBERS IN A PAY STATUS AT TIME OF DEATH IS NOT PAYABLE TO THE ENLISTED MAN'S SURVIVORS. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO HIS DEATH HAD PLACED HIMSELF IN A DESERTION STATUS REQUIRING HIS REMOVAL FROM THE ROLLS OF HIS ORGANIZATION BUT WHO HAD NOT ACTUALLY BEEN DROPPED FROM THE ROLLS BY ADMINISTRATIVE ACTION AT THE TIME OF HIS DEATH IS CONSIDERED A MEMBER ON THE MUSTER ROLLS AT TIME OF DEATH UNDER 10 U.S.C. 1481 FOR PAYMENT OF EXPENSES INCIDENT TO HIS DEATH.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 4, 1962:

ON MAY 30, 1962, THE UNDER SECRETARY OF THE NAVY REQUESTED A DECISION AS TO THE LEGALITY OF PAYMENT OF THE 6 MONTHS' DEATH GRATUITY PAY PROVIDED BY 10 U.S.C. 1475-1480 AND EXPENSES INCIDENT TO DEATH AUTHORIZED UNDER 10 U.S.C. 1491, IN THE CASE OF STAFF SERGEANT CRAYTON F. CARTER, 1152829, U.S. MARINE CORPS (DECEASED), UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N-649 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT SERGEANT CARTER BECAME AN UNAUTHORIZED ABSENTEE FROM HIS STATION, MARINE CORPS AIR STATION, EL TORO, (SANTA ANA), CALIFORNIA, ON NOVEMBER 6, 1961; THAT HE WAS ARRESTED BY CIVIL AUTHORITIES AT SAN JOSE, CALIFORNIA, INCIDENT TO A BREACH OF THE PEACE, AND RETURNED TO MILITARY JURISDICTION ON DECEMBER 6, 1961; THAT ON JANUARY 5, 1962, WHILE AT CAMP PENDLETON, CALIFORNIA, IN A RESTRICTED STATUS AWAITING FURTHER TRANSPORTATION BACK TO EL TORO, HE BREACHED HIS RESTRICTED STATUS AND DEPARTED FOR MEXICO, ARRIVING AT TIJUANA AT ABOUT 2 A.M., JANUARY 7, 1962; AND THAT SHORTLY THEREAFTER HE WAS HEARD TO SAY THAT HE INTENDED TO REMAIN PERMANENTLY IN MEXICO.

IT IS STATED THAT THE COMMANDING OFFICER OF CARTER'S UNIT UPON BEING INFORMED OF CARTER'S ABSENCE AND BREACH OF RESTRICTION TOOK ACTION TO DECLARE HIM A DESERTER, IN ACCORDANCE WITH PARAGRAPH 1610.5 OF THE MARINE CORPS MANUAL AND PARAGRAPH 7052 OF MARINE CORPS PERSONNEL MANUAL, BY MAKING AN APPROPRIATE ENTRY IN THE UNIT DIARY AND BY EXECUTING THE ABSENTEE WANTED FORM, DD 553. THIS ACTION IN POINT OF TIME WAS TAKEN AT ABOUT 10:30 A.M., JANUARY 8, 1962, BUT FIXED THE DATE AND TIME OF INCEPTION OF THE DESERTION STATUS AS OF 7:01 A.M., JANUARY 7, 1962, THE TIME AT WHICH CARTER FAILED TO RETURN AND MUSTER AS A RESTRICTED PERSON. IT IS ALSO STATED THAT CARTER WAS FOUND DEAD IN A MOTEL ROOM IN TIJUANA, MEXICO, AT ABOUT NOON, JANUARY 8, 1962. WHILE NO EXACT TIME HAS BEEN OFFICIALLY FIXED AS THE TIME OF DEATH, THE RECORD, INCLUDING THE CONDITION OF THE BODY, SUPPORTS THE CONCLUSION THAT DEATH OCCURRED PRIOR TO 10:30 A.M., JANUARY 8, 1962. THERE WAS NO EVIDENCE OF FOUL PLAY. CAUSE OF DEATH AS REFLECTED BY THE DEATH CERTIFICATE PREPARED BY THE NAVY WAS "CARDIAC SYNCOPE DUE TO ALCOHOLIC INTOXICATION.' IT APPEARS THAT THE COMMANDING OFFICER OF CARTER'S UNIT WHO EXECUTED DOCUMENTS DECLARING CARTER TO BE A DESERTER WAS NOT INFORMED OF THE DEATH UNTIL ABOUT 6:30 P.M., JANUARY 8, 1962, AND THAT THE ADMINISTRATIVE MARK OF DESERTION HAS NOT BEEN REMOVED FROM CARTER'S RECORD.

THE 6 MONTHS' DEATH GRATUITY PROVIDED IN 10 U.S.C. 1475 (A) (1) IS AUTHORIZED TO BE PAID TO THE SURVIVOR OF A DECEASED MEMBER WHO "DIES WHILE ON ACTIVE DUTY OR WHILE PERFORMING AUTHORIZED TRAVEL TO OR FROM ACTIVE DUTY.' WE HAVE HELD THAT THE DEATH GRATUITY AUTHORIZED BY THE ACT IS NOT PAYABLE IN ANY CASE WHERE THE MEMBER WAS NOT IN A STATUS ENTITLING HIM TO PAY AT DATE OF DEATH UNLESS IT WAS OTHERWISE PROVIDED BY STATUTE. COMP. GEN. 202, 204. ALSO, IT IS WELL SETTLED THAT THE GRATUITY MAY NOT BE PAID IN ANY CASE WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THE MEMBER WAS A DESERTER. 31 COMP. GEN. 645. PARAGRAPH 1610-5E, MARINE CORPS MANUAL, SETS OUT THE POLICIES REGARDING ABSENTEES AND DESERTERS, AND SUBPARAGRAPH (1) PROVIDES THAT ABSENTEES WILL ORDINARILY BE CARRIED ON THE ROLLS OF THEIR RESPECTIVE PERMANENT DUTY ORGANIZATIONS DURING THE FIRST 29 DAYS OF ABSENCE. SUBPARAGRAPH (3) (A) PROVIDES THAT ABSENTEES SHALL BE DECLARED DESERTERS AT ANY TIME DURING THE FIRST 29 DAYS OF ABSENCE WHEN THE INTENT TO REMAIN AWAY PERMANENTLY IS EVIDENT FROM CIRCUMSTANCES SURROUNDING THE ABSENCE. SUBPARAGRAPH (3) (E) PROVIDES THAT SUCH ADMINISTRATIVE ACTION WILL ALSO BE TAKEN WHEN AN INDIVIDUAL ESCAPES FROM CONFINEMENT OR HIS GUARD OR ABSENTS HIMSELF WHILE IN A RESTRICTED OR ARREST STATUS AWAITING INVESTIGATION OF A SERIOUS OFFENSE.

PARAGRAPH 7052, MARINE CORPS PERSONNEL MANUAL, WHICH PRESCRIBES THE PROCEDURE TO BE FOLLOWED BY COMMANDS IN THE CASES OF ESCAPED PRISONERS, DEFINES AN ESCAPE BY A PRISONER AS HIS DELIBERATE ABSENCE FROM HIS PLACE OF ARREST, CONFINEMENT, OR FROM HIS GUARD. THE REGULATION REQUIRES, AMONG OTHER PROCEDURES, THAT WITHIN ONE HOUR THE COMMANDER SHALL DECLARE THE ESCAPEE A DESERTER FROM THE TIME OF ESCAPE.

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, 10 U.S.C. 885, AND DEPARTMENTAL REGULATIONS AND WHERE THE CONDUCT OF THE INDIVIDUAL BRINGS HIM WITHIN SUCH LAW AND REGULATIONS, PRIMA FACIE, HE IS IN A DESERTION STATUS, EVEN THOUGH NO FORMAL ACTION IS TAKEN TO DECLARE HIM A DESERTER. 23 COMP. GEN. 44; 31 ID. 645. IN THIS CASE, FORMAL ACTION WAS TAKEN TO DECLARE CARTER A DESERTER. THE DELAY IN TAKING SUCH ACTION APPARENTLY WAS THE RESULT OF DELAY IN THE TRANSMISSION OF INFORMATION TO THE COMMANDING OFFICER. SINCE IT IS REPORTED THAT CARTER BREACHED HIS RESTRICTED STATUS AND DEPARTED FOR MEXICO WITH THE INTENTION OF REMAINING THERE PERMANENTLY, THERE APPEARS TO BE AMPLE EVIDENCE OF THE FACT OF DESERTION. IN THE CIRCUMSTANCES, NO SIGNIFICANCE NEED BE ATTACHED TO THE FACT THAT THE FORMAL ACTION TO DECLARE HIM A DESERTER WAS TAKEN AFTER HIS DEATH. SINCE HE DIED IN A DESERTION STATUS AND SINCE HIS DESERTION EFFECTED A FORFEITURE OF HIS PAY AND ALLOWANCES AND TERMINATED HIS PAY STATUS (UNITED STATES V. LANDERS, 92 U.S. 77, 79; UNITED STATES V. KINGSLEY, 138 U.S. 87), PAYMENT OF THE 6 MONTHS' DEATH GRATUITY IS NOT AUTHORIZED.

CONCERNING THE QUESTION AS TO THE PROPRIETY OF PAYING EXPENSES INCIDENT TO DEATH UNDER THE PROVISIONS OF 10 U.S.C. 1481, SUBSECTION (B) AUTHORIZES THE PAYMENT OF SUCH EXPENSES, EVEN THOUGH THE MEMBER CONCERNED MAY HAVE BEEN TEMPORARILY ABSENT FROM ACTIVE DUTY, WITH OR WITHOUT LEAVE, AT THE TIME OF HIS DEATH, UNLESS HE HAD BEEN DROPPED FROM THE ROLLS OF HIS ORGANIZATION BEFORE HIS DEATH. THE INTENT IS CLEAR THAT PAYMENT OF SUCH EXPENSES MAY NOT BE MADE UNLESS THE MEMBER WAS ON THE MUSTER ROLLS OF HIS ORGANIZATION AT THE TIME OF HIS DEATH.

CHAPTER 16, SECTION 3 OF THE MARINE CORPS PERSONNEL MANUAL PRESCRIBES THE PROCEDURE FOR KEEPING THE UNIT DIARY WHICH IS DEFINED AS THE REPORTING MEDIUM FOR THE DAY TO DAY HISTORY OF THE UNIT AND ITS PERSONNEL AND WHICH SERVES AS THE PERMANENT HISTORICAL RECORD OF THE UNIT IN THE ARCHIVES OF THE UNITED STATES. PARAGRAPH 16081-7, CHAPTER 16, PROVIDES THAT WHEN AN INDIVIDUAL IS DECLARED A DESERTER HE IS DROPPED FROM THE UNIT ACCOUNT AND FROM THE ACTIVE DUTY STRENGTH OF THE MARINE CORPS. IT IS THERE STATED THAT THE DROP ENTRY WILL BE SHOWN ON THE DIARY FOR THE DATE THE DECLARATION IS MADE AND WILL INCLUDE THE TIME AND DATE OF COMMENCEMENT OF UNAUTHORIZED ABSENCE, THE DATE AS OF WHICH DESERTION WAS DECLARED AND WHETHER SERVICE RECORDS ARE RETAINED OR FORWARDED. SUCH REGULATIONS APPARENTLY CONTEMPLATE REMOVAL FROM THE ROLLS AS OF THE TIME IT IS DETERMINED THAT THE MEMBER ENTERED A DESERTION STATUS.

WHILE IT MAY BE ARGUED THAT THE CONGRESS COULD NOT HAVE INTENDED THE PAYMENT OF EXPENSES INCIDENT TO THE DEATH OF A MEMBER WHO, PRIOR TO HIS DEATH, HAD PLACED HIMSELF IN A STATUS REQUIRING HIS REMOVAL FROM THE ROLLS OF HIS ORGANIZATION BUT APPROPRIATE ADMINISTRATIVE ACTION TO THAT END WAS NOT TAKEN PRIOR TO THE TIME OF DEATH, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF 10 U.S.C. 1481 WHICH SUPPORTS THAT CONCLUSION. THE LANGUAGE OF THE STATUTE IS CLEAR AND FREE FROM AMBIGUITY AND MUST BE GIVEN LITERAL EFFECT. SINCE CARTER, EVEN THOUGH IN FACT A DESERTER, HAD NOT BEEN OFFICIALLY DROPPED FROM THE ROLLS OF HIS ORGANIZATION PRIOR TO HIS DEATH, PAYMENT OF EXPENSES INCIDENT TO HIS DEATH MAY BE MADE AT YOUR DISCRETION.