B-149489, SEPTEMBER 10, 1962, 42 COMP. GEN. 158

B-149489, SEPTEMBER 10, 1962, 42 COMP. GEN. 158

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC.--- DECEASED MEMBER. PAY - ACTIVE DUTY - RELEASE, ETC.- - EFFECTIVE DAY SETTLEMENT FOR THE UNUSED LEAVE STANDING TO THE CREDIT OF A MARINE CORPS OFFICER ON THE DAY OF DEATH, WHO EARLIER ON THAT DAY HAD BEEN NOTIFIED THAT HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST WAS EFFECTIVE THAT DAY, MAY BE MADE TO HIS SURVIVORS, THE OFFICER HAVING DIED AFTER RETIREMENT WITHIN THE MEANING OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33 (C), WHICH AUTHORIZES SETTLEMENT OF ACCRUED LEAVE TO SURVIVORS OF MEMBERS WHO DIE AFTER RETIREMENT, AS UPON NOTICE OF RETIREMENT TO THE OFFICER ON THE DATE HIS ORDERS DIRECTED RETIREMENT HE WAS RELEASED FROM ACTIVE DUTY WITHOUT DELAY AND WAS IN A RETIRED STATUS AT THE TIME OF DEATH. THE CREDITING TO THE ACCOUNT OF A MARINE CORPS MEMBER OF ACTIVE DUTY PAY AND ALLOWANCES FOR THE DAY ON WHICH HE DIED WAS ERRONEOUS AND PAYMENT MADE FOR THAT DAY SHOULD BE COLLECTED, THE MEMBER HAVING BEEN NOTIFIED OF HIS RETIREMENT, DETACHMENT, AND RELEASE FROM ACTIVE DUTY SHORTLY BEFORE HIS DEATH, HIS RELEASE FROM ACTIVE DUTY PURSUANT TO PARAGRAPH 13005 OF THE MARINE CORPS PERSONNEL MANUAL, WAS EFFECTED ON THE DAY PRECEDING THE EFFECTIVE DAY OF RETIREMENT, WHICH WAS THE DAY OF HIS DEATH, AND PAYMENT OF PAY AND ALLOWANCES SUBSEQUENT TO THE RELEASE OF THE MEMBER FROM ACTIVE DUTY SHOULD NOT HAVE BEEN MADE.

TO MAJOR JOHN A. RAPP. UNITED STATES MARINE CORPS, SEPTEMBER 10, 1962:

YOUR LETTER OF JULY 4, 1962, CDH/JR, TRANSMITTED HERE BY FIRST ENDORSEMENT OF JULY 14, 1962, BY THE COMMANDANT OF THE MARINE CORPS, UNDER NO. DO-MC-666 ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION AS TO WHETHER BASIC PAY AND APPLICABLE ALLOWANCES FOR THE UNUSED LEAVE STANDING TO THE CREDIT OF FIRST LIEUTENANT MARTIN R. P. WILKE, 1077756, U.S. MARINE CORPS, RETIRED, ON THE DAY OF HIS DEATH MAY BE PAID TO HIS WIDOW, MARYJOANNE C. WILKE, AND ON BEHALF OF HIS TWO MINOR CHILDREN, KIM R. AND CRAIG M. WILKE.

ORDERS OF MAY 16, 1962, FROM THE COMMANDANT OF THE MARINE CORPS TO LIEUTENANT WILKE DIRECTED THE LATTER OFFICER'S TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 16, 1962. IT APPEARS THAT THE COMMANDING GENERAL, BROOKE GENERAL HOSPITAL, FORT SAM HOUSTON, TEXAS, WHERE LIEUTENANT WILKE WAS THEN HOSPITALIZED, WAS FURNISHED SUCH INFORMATION BY DISPATCH DATED THE SAME DAY.

YOU SAY THAT LIEUTENANT WILKE WAS NOTIFIED OF HIS RETIREMENT, DETACHMENT, AND RELEASE FROM ACTIVE DUTY AT 2130 HOURS ON MAY 16, 1962; THAT HE DIED AT 2245 OR 2250 HOURS ON THE SAME DAY; THAT HE WAS CREDITED ACTIVE DUTY PAY AND ALLOWANCES THROUGH MAY 16, 1962; AND THAT HE HAD 22 DAYS OF UNUSED LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RETIREMENT. IT APPEARS THAT HE DIED AT BROOKE GENERAL HOSPITAL OF PNEUMONIA, WHICH RESULTED FROM THIRD DEGREE BURNS SUFFERED ON MAY 3, 1962, AT HILL AIR FORCE BASE, UTAH, WHILE PILOTING AN AIRCRAFT ON A TRAINING FLIGHT.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, CH. 931, 60 STAT. 964, AS AMENDED, 37 U.S.C. 33 (C), PROVIDES THAT SETTLEMENT FOR ACCRUED LEAVE IN THE CASE OF A MEMBER "WHO DIES AFTER RETIREMENT" SHALL BE MADE TO THE SURVIVORS OF SUCH MEMBER IN THE MANNER THERE PRESCRIBED.

PARAGRAPH 13005 OF THE MARINE CORPS PERSONNEL MANUAL IS, IN PERTINENT PART, AS FOLLOWS:

1. INDIVIDUAL ORDERS AND AUTHORIZATIONS FOR RETIREMENT WILL BE ISSUED BY THE SECRETARY OF THE NAVY OR THE COMMANDANT OF THE MARINE CORPS. RELEASE FROM ACTIVE DUTY ON THE OCCASION OF RETIREMENT IS NORMALLY EFFECTED ON THE DAY PRECEDING THE EFFECTIVE DATE OF RETIREMENT AND RETIRED PAY COMMENCES ON THE EFFECTIVE DATE OF RETIREMENT. * * *.

PRIOR TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF CRIST V. UNITED STATES, 124 CT.CL. 825 (1952), THE RULE WAS WELL ESTABLISHED THAT UPON COMPLETION OF ADMINISTRATIVE PROCEEDINGS EFFECTING RETIREMENT AND THE ISSUANCE OF RETIREMENT ORDERS, THE MEMBER CONCERNED ENTERED A RETIRED STATUS ON THE DATE STATED IN SUCH ORDERS AND THAT HE WAS ENTITLED TO RETIRED PAY COMMENCING ON THAT DATE, WITHOUT REGARD TO THE DATE SUCH ORDERS WERE ACTUALLY DELIVERED TO HIM. 30 COMP. GEN. 470. PARAGRAPH 1044202-1A OF THE NAVY COMPTROLLER MANUAL PROVIDES THAT CREDIT FOR ACTIVE DUTY PAY AND ALLOWANCES CONTINUES TO AND INCLUDES THE DAY PRIOR TO THE DATE OF PLACEMENT OF THE MEMBER'S NAME ON THE RETIRED LIST AS SPECIFIED IN HIS RETIREMENT ORDERS. THE CRIST CASE EFFECTED A CHANGE IN THE ESTABLISHED RULE ONLY IN CASES WHERE THE RETIREMENT ORDERS, OR APPROPRIATE NOTICE THEREOF, WERE NOT COMMUNICATED TO THE MEMBER UNTIL AFTER THE DATE OF RETIREMENT SPECIFIED IN SUCH ORDERS. IN SUCH CIRCUMSTANCES THE MEMBER IS REGARDED AS HAVING BEEN RETAINED ON ACTIVE DUTY AFTER RETIREMENT UNTIL HIS RELEASE FROM ACTIVE DUTY IS DIRECTED IN COMPETENT ORDERS. SINCE LIEUTENANT WILKE RECEIVED NOTICE OF HIS RETIREMENT ORDERS ON MAY 16, 1962, THE DATE SUCH ORDERS DIRECTED HIS RETIREMENT, HIS RELEASE FROM ACTIVE DUTY WAS NOT DELAYED UNTIL AFTER THE EFFECTIVE DATE OF HIS RETIREMENT AND THERE IS NO BASIS FOR REGARDING HIM AS HAVING BEEN RETAINED ON ACTIVE DUTY AFTER RETIREMENT WITHIN THE RULE OF THE CRIST CASE.

LIEUTENANT WILKE SHOULD NOT HAVE BEEN PAID PAY AND ALLOWANCES FOR MAY 16, 1962, AND APPROPRIATE COLLECTION ACTION SHOULD BE TAKEN WITH RESPECT THERETO. ASIDE FROM THIS MATTER, IT IS CONCLUDED THAT HE DIED AFTER RETIREMENT WITHIN THE MEANING OF THE PROVISIONS OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AND THAT, TO THE EXTEND OTHERWISE CORRECT, HIS SURVIVORS ARE ENTITLED TO PAYMENT FOR HIS UNUSED ACCRUED LEAVE.