B-154382, SEP. 15, 1964

B-154382: Sep 15, 1964

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EMSWILER: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR THE 6 MONTHS' DEATH GRATUITY PAYMENT AS THE WIDOW OF ROBERT M. COMMANDER EMSWILER WAS ASSIGNED TO THE NAVAL RESERVE OFFICERS SCHOOL 4-10. WHICH HE WAS REQUIRED TO COMPLY WITH. THE COMMANDING OFFICER OF NAVAL RESERVE OFFICERS SCHOOL 4-10 REPORTED THAT THERE WERE NO FORMAL OFFICIAL OR QUASI OFFICIAL FUNCTIONS SCHEDULED AFTER 4 P.M. THAT THE SECRETARY OF THE SERVICE CONCERNED SHALL HAVE A DEATH GRATUITY PAID TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477 OF THAT TITLE. SECTION 0911C OF THE MANUAL OF THE JUDGE ADVOCATE GENERAL (NAVY) PROVIDES THAT ENGAGEMENT IN INACTIVE DUTY FOR TRAINING (DRILL) IS CONSIDERED TO BE ONLY THAT PERIOD BETWEEN MUSTER AND DISMISSAL.

B-154382, SEP. 15, 1964

TO MRS. MARGARET L. EMSWILER:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR THE 6 MONTHS' DEATH GRATUITY PAYMENT AS THE WIDOW OF ROBERT M. EMSWILER, JR., COMMANDER, USNR-R, 334816/1315, DECEASED.

BY TRAINING ORDERS DATED MARCH 23, 1960, COMMANDER EMSWILER WAS ASSIGNED TO THE NAVAL RESERVE OFFICERS SCHOOL 4-10, WILLOW GROVE, PENNSYLVANIA, EFFECTIVE MARCH 12, 1960, AND AUTHORIZED TO PERFORM INACTIVE DUTY TRAINING IN ACCORDANCE WITH DIRECTIVES THEN IN EFFECT AND THEREAFTER PROMULGATED. THE "PLAN OF THE DAY" FOR NAVAL RESERVE OFFICERS SCHOOL 4-10 FOR MARCH 9 AND 10, 1963, WHICH HE WAS REQUIRED TO COMPLY WITH, OUTLINED DRILLS FOR EACH OF THOSE DAYS BETWEEN THE HOURS OF 8 A.M. AND 4 P.M. THE COMMANDING OFFICER OF NAVAL RESERVE OFFICERS SCHOOL 4-10 REPORTED THAT THERE WERE NO FORMAL OFFICIAL OR QUASI OFFICIAL FUNCTIONS SCHEDULED AFTER 4 P.M. ON MARCH 9, 1963. COMMANDER EMSWILER REGISTERED AT THE NAVAL AIR STATION, WILLOW GROVE BACHELOR OFFICERS' QUARTERS ON THE EVENING OF MARCH 8, 1963, AND ATTENDED SCHEDULED DRILL PERIODS ON MARCH 9, 1963. HE DID NOT REPORT FOR SCHEDULED DRILL PERIODS ON MARCH 10, 1963, THE DAY HE DIED IN HIS ROOM AT THE BACHELOR OFFICERS' QUARTERS.

SECTION 1475 (A) (2) OF TITLE 10 OF THE U.S.C. PROVIDES, WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE, THAT THE SECRETARY OF THE SERVICE CONCERNED SHALL HAVE A DEATH GRATUITY PAID TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477 OF THAT TITLE, IMMEDIATELY UPON RECEIVING OFFICIAL NOTIFICATION OF THE DEATH OF A RESERVE MEMBER OF AN ARMED FORCE WHO DIES WHILE ON INACTIVE DUTY TRAINING. SECTION 0911C OF THE MANUAL OF THE JUDGE ADVOCATE GENERAL (NAVY) PROVIDES THAT ENGAGEMENT IN INACTIVE DUTY FOR TRAINING (DRILL) IS CONSIDERED TO BE ONLY THAT PERIOD BETWEEN MUSTER AND DISMISSAL. IN DECISION OF OCTOBER 25, 1963, B-148324, 43 COMP. GEN. 412, CONSIDERING RIGHTS TO BENEFITS ARISING UNDER THE PROVISIONS OF 10 U.S.C. 6148 (A) INCIDENT TO INJURIES SUFFERED BY RESERVE FORCE MEMBERS WHILE EMPLOYED ON INACTIVE DUTY TRAINING, WE HELD THAT WHEN A RESERVIST IS ORDERED TO INACTIVE DUTY TRAINING THE PERIOD OF TRAINING EXTENDS FROM THE TIME THE MAN IS FIRST MUSTERED IN UNTIL THE END OF HIS SCHEDULED INACTIVE DUTY TRAINING ON THAT DAY, AND THAT SUCH PERIOD OF TRAINING IS NOT EXTENDED BY THE FACT THAT THE RESERVIST MAY BE PERMITTED ON THE PREMISES OF HIS DUTY STATION AND FURNISHED QUARTERS OR GOVERNMENT TRANSPORTATION INCIDENT TO HIS INACTIVE DUTY TRAINING. A COPY OF THAT DECISION IS ENCLOSED. SINCE COMMANDER EMSWILER'S DEATH DID NOT OCCUR DURING ANY SCHEDULED PERIOD OF TRAINING ON EITHER MARCH 9 OR 10, 1963, IT MUST BE CONSIDERED THAT HE WAS NOT ON INACTIVE DUTY TRAINING WHEN HE DIED, AND THUS THERE IS NO AUTHORITY UNDER THE CITED STATUTORY PROVISIONS FOR PAYMENT OF THE 6 MONTHS' DEATH GRATUITY IN HIS CASE.

WHILE THE CIRCUMSTANCES SURROUNDING YOUR CLAIM ARE UNFORTUNATE, WE MAY AUTHORIZE PAYMENT OF CLAIMS FROM PUBLIC FUNDS ONLY IF SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. ACCORDINGLY, THERE IS NO BASIS UPON WHICH WE MAY GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM.