B-170470, AUG 28, 1970, 50 COMP GEN 148

B-170470: Aug 28, 1970

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UNTIL THAT STATUS WAS TERMINATED ON MARCH 19. SUCH AUTHORITY TOGETHER WITH SECTION 5 OF THE SALARY ACT ON WHICH IT IS BASED IS CONSIDERED TO HAVE REFERENCE TO A TERMINATION OF PAY BECAUSE OF DEATH. 1970: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30. WHICH WAS FORWARDED HERE BY LETTER DATED JULY 24. FORWARDED WITH YOUR LETTER DISCLOSES THAT MAJOR BELCHER WAS HELD TO HAVE BEEN IN A MISSING IN ACTION STATUS FROM MARCH 28. UNTIL THAT STATUS WAS TERMINATED ON MARCH 19. THE DATE ON WHICH EVIDENCE WAS RECEIVED IN THE DEPARTMENT OF THE AIR FORCE WHICH WAS CONSIDERED SUFFICIENT TO CONCLUSIVELY ESTABLISH HIS DEATH. OR CAPTURED PERSONNEL WHOSE STATUS IS TERMINATED BY RETROACTIVE DECLARATION OF KILLED IN ACTION.

B-170470, AUG 28, 1970, 50 COMP GEN 148

PAY - MISSING, INTERNED, ETC., PERSONS - PAY INCREASES THE WIDOW AND DESIGNATED BENEFICIARY OF AN AIR FORCE CAPTAIN HELD TO BE IN A MISSING IN ACTION STATUS FROM MARCH 28, 1969, UNTIL THAT STATUS WAS TERMINATED ON MARCH 19, 1970, ON THE BASIS OF EVIDENCE ESTABLISHING HIS DEATH, MAY BE PAID THE INCREASE IN BASIC PAY PROVIDED BY THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND IMPLEMENTED BY EXECUTIVE ORDER NO. 11525, FOR THE PERIOD JANUARY 1, 1970, THE RETROACTIVE EFFECTIVE DATE OF THE ACT, THROUGH MARCH 19, 1970, ABSENT A CONTRARY DETERMINATION UNDER 37 U.S.C. 556(C) BY THE SECRETARY OF THE AIR FORCE. WHILE THE DEPARTMENT OF DEFENSE MEMORANDUM IMPLEMENTING THE EXECUTIVE ORDER PERMITS A RETROACTIVE INCREASE IN PAY FOR ANY ACTIVE SERVICE PERFORMED IN THE CASE OF A PERSON "WHO DIED" AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970, SUCH AUTHORITY TOGETHER WITH SECTION 5 OF THE SALARY ACT ON WHICH IT IS BASED IS CONSIDERED TO HAVE REFERENCE TO A TERMINATION OF PAY BECAUSE OF DEATH.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, AUGUST 28, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30, 1970, WHICH WAS FORWARDED HERE BY LETTER DATED JULY 24, 1970, FROM HEADQUARTERS UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $200.66 IN FAVOR OF MRS. PHYLLIS A. BELCHER, WIDOW AND DESIGNATED BENEFICIARY OF MAJOR ROBERT A. BELCHER, DECEASED, COVERING DIFFERENCE IN BASIC PAY FOR THE PERIOD JANUARY 1, 1970, THROUGH MARCH 19, 1970, PURSUANT TO EXECUTIVE ORDER NO. 11525, DATED APRIL 15, 1970. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF- 1089 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COPY OF DD FORM 1300, REPORT OF CASUALTY, FORWARDED WITH YOUR LETTER DISCLOSES THAT MAJOR BELCHER WAS HELD TO HAVE BEEN IN A MISSING IN ACTION STATUS FROM MARCH 28, 1969, UNTIL THAT STATUS WAS TERMINATED ON MARCH 19, 1970, THE DATE ON WHICH EVIDENCE WAS RECEIVED IN THE DEPARTMENT OF THE AIR FORCE WHICH WAS CONSIDERED SUFFICIENT TO CONCLUSIVELY ESTABLISH HIS DEATH. YOU SAY THAT YOUR RESEARCH HAS NOT REVEALED ANY DECISIONS COVERING PAYMENT OF THE INCREASED RATE OF BASIC PAY PURSUANT TO THE FEDERAL EMPLOYEES SALARY ACT OF 1970, APPROVED APRIL 15, 1970, PUBLIC LAW 91-231, 84 STAT. 195, PERTINENT TO MISSING, MISSING IN ACTION, OR CAPTURED PERSONNEL WHOSE STATUS IS TERMINATED BY RETROACTIVE DECLARATION OF KILLED IN ACTION.

SINCE YOUR QUESTION RELATES TO THE PROPRIETY OF CREDITING THE MEMBER'S PAY ACCOUNT WITH AN ITEM OF PAY DURING A PERIOD HE WAS CARRIED IN A MISSING STATUS, IT WOULD APPEAR THAT AUTHORITY TO MAKE A FINAL DETERMINATION AS TO SUCH A CREDIT VESTED IN THE SECRETARY OF THE AIR FORCE OR HIS DESIGNEE. SEE 37 U.S.C. 556(C). HOWEVER, IT IS OUR VIEW THAT PAYMENT IS AUTHORIZED FOR THE REASON INDICATED BELOW.

SECTION 2 OF EXECUTIVE ORDER 11525 READS AS FOLLOWS:

SEC. 2(A) A PERSON WHO BECAME ENTITLED AFTER DECEMBER 31, 1969, BUT BEFORE THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, TO PAYMENT FOR ITEMS SUCH AS LUMP-SUM LEAVE, REENLISTMENT AND VARIABLE REENLISTMENT BONUS, CONTINUATION PAY, ANY TYPE OF SEPARATION PAY, OR SIX MONTHS DEATH GRATUITY, SHALL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THIS ORDER.

(B) AUTHORITY TO PRESCRIBE OTHER RULES FOR PAYMENT OF RETROACTIVE COMPENSATION SHALL BE EXERCISED FOR THE UNIFORMED SERVICES BY THE SECRETARY OF DEFENSE. ENTITLEMENT TO RETROACTIVE PAY UNDER SUCH RULES SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654.

MEMORANDUM FROM THE DEPUTY SECRETARY OF DEFENSE FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), DATED APRIL 27, 1970, ISSUED PURSUANT TO EXECUTIVE ORDER 11525 PROVIDES IN PERTINENT PART AS FOLLOWS:

A PERSON IS NOT ENTITLED TO ANY INCREASE IN HIS BASIC PAY BY VIRTUE OF THAT ORDER FOR ANY PERIOD BEFORE APRIL 15, 1970 UNLESS HE WAS ON ACTIVE DUTY ON THAT DATE. HOWEVER, A PERSON WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970 OR WHO DIED DURING THAT PERIOD, IS ENTITLED TO A RETROACTIVE INCREASE IN BASIC PAY FOR ANY SERVICE HE PERFORMED DURING THAT PERIOD FOR WHICH HE WAS ENTITLED TO BASIC PAY. IN THE CASE OF A PERSON WHO DIED DURING THAT PERIOD, ANY INCREASE IN BASIC PAY THAT IS PAYABLE UNDER THIS ORDER SHALL BE PAID TO THE PERSON DETERMINED UNDER SECTION 2771 OF TITLE 10, UNITED STATES CODE. ***

SECTION 552 OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY OR PERFORMING INACTIVE-DUTY TRAINING, AND WHO IS IN A MISSING STATUS, IS, FOR THE PERIOD HE IS IN THAT STATUS, ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES, AS DEFINED IN THIS CHAPTER, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY THEREAFTER BECOME ENTITLED. ***

(B) *** NOTWITHSTANDING THE DEATH OF A MEMBER WHILE IN A MISSING STATUS, ENTITLEMENT TO PAY AND ALLOWANCES UNDER SUBSECTION (A) OF THIS SECTION ENDS ON THE DATE--

(1) THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT THE MEMBER IS DEAD; OR

(2) THAT HIS DEATH IS PRESCRIBED OR DETERMINED UNDER SECTION 555 OF THIS TITLE.

FOR THE PURPOSE OF CREDITING PAY AND ALLOWANCES TO A MEMBER UNDER 37 U.S.C. 552(A), (B), THE DATE UPON WHICH THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT HE IS DEAD IS THE CONTROLLING DATE NOTWITHSTANDING THE FACT THAT AN EARLIER DATE IS DETERMINED BY COMPETENT EVIDENCE TO BE THE ACTUAL DATE OF DEATH. WHILE THE ABOVE QUOTED MEMORANDUM ISSUED PURSUANT TO EXECUTIVE ORDER 11525 PERMITS A RETROACTIVE INCREASE IN PAY TO BE PAID IN THE CASE OF A PERSON "WHO DIED" AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970, WE THINK THAT THOSE REGULATIONS AND SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970 ON WHICH THEY ARE BASED, HAVE REFERENCE TO A TERMINATION OF PAY BETWEEN THOSE DATES BECAUSE OF DEATH OF THE MEMBER AND THUS THAT MEMORANDUM WOULD COVER A SITUATION SUCH AS HERE INVOLVED. SINCE MAJOR BELCHER'S RIGHT TO BASIC PAY ENDED ON MARCH 19, 1970, BECAUSE OF HIS DEATH, A RETROACTIVE INCREASE IN SUCH BASIC PAY WOULD APPEAR TO BE PROPER UNDER THE 1970 LAW AND THE MEMORANDUM OF APRIL 27, 1970, FOR THE PERIOD JANUARY 1, TO MARCH 19, 1970.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED, WOULD APPEAR TO BE PROPER FOR PAYMENT IN THE ABSENCE OF A DETERMINATION UNDER 37 U.S.C. 556(C) TO THE CONTRARY.