B-179764, MAY 28, 1974, 53 COMP GEN 887

B-179764: May 28, 1974

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PAY - RETIRED - SURVIVOR BENEFIT PLAN - MISSING PERSONS - STATUS IN CASES INVOLVING ACTIVE DUTY SERVICE PERSONNEL WHO ENTER A MISSING IN ACTION STATUS REGARDLESS OF THE DATE WHEN SUCH MEMBER ENTERED THAT STATUS AND ARE SUBSEQUENTLY DETERMINED TO HAVE DIED IN THAT STATUS. SINCE TIME IN AN MIA STATUS UNDER 37 U.S.C. 551-558 IS TREATED AS ACTIVE SERVICE FOR PURPOSES OF PAY. PAY - RETIRED - SURVIVOR BENEFIT PLAN - MISSING PERSONS - DATE OF DEATH DETERMINATION IN CASES WHERE A SURVIVOR BENEFIT PLAN ANNUITY UNDER 10 U.S.C. 1448(D) IS ESTABLISHED FOR THE SURVIVOR OF A MEMBER WHO ENTERED AN MIA STATUS BEFORE COMPLETING SUFFICIENT ACTIVE SERVICE TO QUALIFY FOR RETIRED OR RETAINER PAY BUT REMAINED IN SUCH MIA STATUS LONG ENOUGH TO SO QUALIFY.

B-179764, MAY 28, 1974, 53 COMP GEN 887

PAY - RETIRED - SURVIVOR BENEFIT PLAN - MISSING PERSONS - STATUS IN CASES INVOLVING ACTIVE DUTY SERVICE PERSONNEL WHO ENTER A MISSING IN ACTION STATUS REGARDLESS OF THE DATE WHEN SUCH MEMBER ENTERED THAT STATUS AND ARE SUBSEQUENTLY DETERMINED TO HAVE DIED IN THAT STATUS, SINCE TIME IN AN MIA STATUS UNDER 37 U.S.C. 551-558 IS TREATED AS ACTIVE SERVICE FOR PURPOSES OF PAY, ALLOWANCES AND OTHER BENEFITS, SUCH TIME SHALL BE CONSIDERED AS QUALIFYING SERVICE FOR THE PURPOSE OF ESTABLISHING BOTH THE MINIMUM ELIGIBILITY RETIREMENT FOR YEARS OF SERVICE AND RETIRED PAY COMPUTATION WITHIN THE MEANING OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, FOR THE PURPOSE OF ESTABLISHING AN ANNUITY UNDER 10 U.S.C. 1448(D). PAY - RETIRED - SURVIVOR BENEFIT PLAN - MISSING PERSONS - DATE OF DEATH DETERMINATION IN CASES WHERE A SURVIVOR BENEFIT PLAN ANNUITY UNDER 10 U.S.C. 1448(D) IS ESTABLISHED FOR THE SURVIVOR OF A MEMBER WHO ENTERED AN MIA STATUS BEFORE COMPLETING SUFFICIENT ACTIVE SERVICE TO QUALIFY FOR RETIRED OR RETAINER PAY BUT REMAINED IN SUCH MIA STATUS LONG ENOUGH TO SO QUALIFY, THE INCEPTION DATE FOR PAYMENT OF AN ANNUITY UNDER 10 U.S.C. 1450 IS THE DAY AFTER THE DATE THE SECRETARY CONCERNED MAKES A DETERMINATION OF DEATH SO LONG AS SUCH DATE OF DETERMINATION OCCURS AFTER SEPTEMBER 21, 1972, NOTWITHSTANDING THE FACT THAT A DATE EARLIER THAN THE DATE OF DETERMINATION MAY BE USED TO ESTABLISH A DATE OF DEATH REQUIRED UNDER 37 U.S.C. 555 OR 556.

IN THE MATTER OF APPLICATION OF THE SURVIVOR BENEFIT PLAN TO CASES INVOLVING MISSING PERSONS, MAY 28, 1974:

THIS ACTION IS IN RESPONSE TO A LETTER DATED SEPTEMBER 24, 1973, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING THE APPLICATION OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, TO SERVICE MEMBERS DETERMINED TO BE IN A MISSING IN ACTION STATUS IN THE CIRCUMSTANCES DESCRIBED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 491, WHICH WAS ENCLOSED WITH THE SUBMISSION.

THE QUESTIONS PRESENTED IN THE COMMITTEE ACTION ARE AS FOLLOWS:

1. MAY THE PERIOD DURING WHICH A MEMBER IS IN A MISSING STATUS, AS DEFINED IN 37 U.S.C. 551, BE CONSIDERED QUALIFYING SERVICE FOR RETIRED OR RETAINER PAY "EXCEPT THAT HE HAS NOT APPLIED FOR OR BEEN GRANTED THAT PAY" UNDER 10 U.S.C. 1448(D) FOR THE PURPOSE OF ESTABLISHING A SURVIVOR BENEFIT PLAN ANNUITY UNDER THAT STATUTE, IN THE FOLLOWING CIRCUMSTANCES? A. THE MEMBER ENTERS A MISSING STATUS BEFORE HE HAS COMPLETED SUFFICIENT SERVICE TO QUALIFY FOR RETIRED OR RETAINER PAY, AND B. AFTER A PERIOD SUFFICIENT TO QUALIFY HIM FOR RETIRED OR RETAINER PAY, THE SECRETARY CONCERNED OR HIS DESIGNEE MAKES A FINDING OF DEATH UNDER SECTION 555 OR 556 TO TITLE 37 AND FIXES A DATE OF DEATH EARLIER THAN THAT WHICH WOULD QUALIFY HIM FOR SUCH PAY. 2. WOULD THE ANSWER TO QUESTION 1 BE THE SAME REGARDLESS OF WHETHER THE MEMBER ENTERED A MISSING STATUS BEFORE OR AFTER 21 SEPTEMBER 1972? IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD THE ANNUITY BE EFFECTIVE: A. THE DATE OF DEATH AS ESTABLISHED UNDER SECTION 555 OR 556 OF TITLE 37, PROVIDED SUCH DATE IS ON OR AFTER 21 SEPTEMBER 1972, OR B. 21 SEPTEMBER 1972, IF THE DATE OF DEATH WAS ESTABLISHED PRIOR TO THAT DATE, OR C. THE DATE THE SECRETARY CONCERNED OR HIS DESIGNEE MAKES HIS DETERMINATION? THE BRIEF DISCUSSION IN THE COMMITTEE ACTION STATES THAT THE SECRETARY CONCERNED MAY, ON THE BASIS OF INFORMATION WHICH HE CONSIDERS SUFFICIENT TO ESTABLISH CONCLUSIVELY THE DEATH OF A MEMBER, MAKE A DETERMINATION OF DEATH UNDER THE PROVISIONS OF 37 U.S.C. 556 THAT IS CONCLUSIVE FOR SPECIFIED PURPOSES. HE MAY ALSO MAKE A FINDING OF DEATH UNDER THE PROVISIONS OF 37 U.S.C. 555, ON THE BASIS THAT THE MEMBER CANNOT REASONABLY BE PRESUMED TO BE LIVING, WHICH DETERMINATION IS ALSO CONCLUSIVE FOR SPECIFIED PURPOSES. FURTHER, THAT SECTION 552 OF THE SAME TITLE PROVIDES THAT THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES UNTIL THE DATE THE SECRETARY RECEIVES EVIDENCE THAT THE MEMBER IS DEAD OR THE DATE THAT HIS DEATH IS PRESCRIBED OR DETERMINED UNDER SECTION 555. HOWEVER, DOUBT IS EXPRESSED AS TO WHETHER SUCH SECRETARIAL ACTION UNDER THE MISSING PERSONS ACT OR ANY OTHER PROVISION OF LAW IS APPLICABLE FOR THE PURPOSE OF ESTABLISHING AN ANNUITY UNDER 10 U.S.C. 1448(D). SUBSECTION 1448(D) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS: IF A MEMBER OF AN ARMED FORCE DIES ON ACTIVE DUTY AFTER HE HAS BECOME ENTITLED TO RETIRED OR RETAINER PAY, OR AFTER HE HAS QUALIFIED FOR THAT PAY EXCEPT THAT HE HAS NOT APPLIED FOR OR BEEN GRANTED THAT PAY, AND HIS SPOUSE IS ELIGIBLE FOR DEPENDENCY AND INDEMNITY COMPENSATION UNDER SECTION 411(A) OF TITLE 38 IN AN AMOUNT THAT IS LESS THAN THE ANNUITY THE SPOUSE WOULD HAVE RECEIVED UNDER THIS SUBCHAPTER IF IT HAD APPLIED TO THE MEMBER WHEN HE DIED, THE SECRETARY CONCERNED SHALL PAY TO THE SPOUSE AN ANNUITY EQUAL TO THE DIFFERENCE BETWEEN THAT AMOUNT OF COMPENSATION AND 55 PERCENT OF THE RETIRED OR RETAINER PAY TO WHICH THE OTHERWISE ELIGIBLE SPOUSE DESCRIBED IN SECTION 1450(A)(1) OF THIS TITLE WOLD HAVE BEEN ENTITLED IF THE MEMBER HAD BEEN ENTITLED TO THAT PAY BASED UPON HIS YEARS OF ACTIVE SERVICE WHEN HE DIED. IN DISCUSSING SUBSECTION 1448(D) ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES AT THE TIME H.R. 10670, WHICH EVENTUALLY BECAME PUBLIC LAW 92-425 (10 U.S.C. 1431), WAS BEING CONSIDERED, REPRESENTATIVE PIKE STATED IN PART THAT: A SPECIAL SECTION OF THE BILL PROVIDES THAT IN THE CASE OF PERSONNEL STILL ON ACTIVE DUTY WHO ARE ELIGIBLE FOR RETIREMENT ON LENGTH OF SERVICE WHOSE POTENTIAL SURVIVOR ANNUITY WOULD BE MORE THAN THE DEPENDENCY AND INDEMNITY COMPENSATION PAID TO SURVIVORS OF ACTIVE-DUTY PERSONNEL OF LIKE GRADE AND YEARS OF SERVICE, A SUPPLEMENTAL ANNUITY PAYMENT SUFFICIENT TO MAKE UP THE DIFFERENCE WOULD BE PAID ***. CONG. REC., OCTOBER 21, 1971, PAGE H 9871. IN SENATE REPORT NO. 92-1089, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, DATED SEPTEMBER 6, 1972, ON PAGE 51, IT IS STATED WITH RESPECT TO SUBSECTION 1448(D) THAT: *** THE SPOUSE OF A SERVICE MEMBER, WHO IS ELIGIBLE TO RETIRE BUT DIES ON ACTIVE DUTY, WILL BE PAID 55 PERCENT OF THE MEMBER'S EARNED RETIRED PAY. THE PAYMENT WILL RECOGNIZE THAT DEPENDENCY AND INDEMNITY COMPENSATION (DIC) MAY BE PAYABLE BY THE VETERANS ADMINISTRATION BY OFFSETTING ANY DIC PAYMENT FROM THE 55 PERCENT OF RETIRED PAY. *** BASED ON THE BEFORE- QUOTED MATERIAL, IT WOULD APPEAR THAT BY INCLUDING SUCH SPECIAL PROVISIONS (10 U.S.C. 1448(D)) IN PUBLIC LAW 92-425, IT WAS EXPRESSLY INTENDED BY CONGRESS TO INSURE THAT SPOUSES OF ALL ACTIVE DUTY MILITARY PERSONNEL WITH 20 OR MORE YEARS OF CREDITABLE SERVICE SHALL AUTOMATICALLY BE PROVIDED WITH COVERAGE IN THE EVENT OF THE MEMBER'S DEATH WHILE SERVING ON ACTIVE DUTY. SECTION 552 OF TITLE 37, U.S. CODE, AS AMENDED BY PUBLIC LAW 93-26, APPROVED APRIL 27, 1973, 87 STAT. 26, PROVIDES IN PERTINENT PART: (A) A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY *** AND WHO IS IN A MISSING STATUS, IS - (1) 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;

NOTWITHSTANDING SECTION 1523 OF TITLE 10 OR ANY OTHER PROVISION OF LAW, THE PROMOTION OF A MEMBER WHILE HE IS IN A MISSING STATUS IS FULLY EFFECTIVE FOR ALL PURPOSES, EVEN THOUGH THE SECRETARY CONCERNED DETERMINES UNDER SECTION 556(B) OF THIS TITLE THAT THE MEMBER DIED BEFORE THE PROMOTION WAS MADE.

SECTION 2 OF PUBLIC LAW 93-26 PROVIDES THAT, FOR ALL PURPOSES OTHER THAN FOR CHAPTER 13 OF TITLE 38, U.S. CODE, IT BECOMES EFFECTIVE AS OF FEBRUARY 28, 1961.

SECTION 555 OF TITLE 37, U.S. CODE, ENTITLED "SECRETARIAL REVIEW," PROVIDES IN PART:

(A) WHEN A MEMBER OF A UNIFORMED SERVICE ENTITLED TO PAY AND ALLOWANCES UNDER SECTION 552 OF THIS TITLE HAS BEEN IN A MISSING STATUS, AND THE OFFICIAL REPORT OF HIS DEATH OR OF THE CIRCUMSTANCES OF HIS ABSENCE HAS NOT BEEN RECEIVED BY THE SECRETARY CONCERNED, HE SHALL, BEFORE THE END OF A 12-MONTH PERIOD IN THAT STATUS, HAVE THE CASE FULLY REVIEWED. AFTER THAT REVIEW AND THE END OF THE 12-MONTH PERIOD IN A MISSING STATUS, OR AFTER A LATER REVIEW WHICH SHALL BE MADE WHEN WARRANTED BY INFORMATION RECEIVED OR OTHER CIRCUMSTANCES, THE SECRETARY CONCERNED, OR HIS DESIGNEE, MAY -

(1) IF THE MEMBER CAN REASONABLY BE PRESUMED TO BE LIVING, DIRECT A CONTINUANCE OF HIS MISSING STATUS; OR

(2) MAKE A FINDING OF DEATH.

(B) WHEN A FINDING OF DEATH IS MADE UNDER SUBSECTION (A) OF THIS SECTION, IT SHALL INCLUDE THE DATE DEATH IS PRESUMED TO HAVE OCCURRED FOR THE PURPOSE OF -

(1) ENDING THE CREDITING OF PAY AND ALLOWANCES;

(2) SETTLEMENT OF ACCOUNTS; AND

(3) PAYMENT OF DEATH GRATUITIES.

IN CONJUNCTION WITH THE ABOVE-QUOTED SECTION, SUBSECTION, 556(B) OF THE SAME TITLE PROVIDES:

(B) WHEN THE SECRETARY CONCERNED RECEIVES INFORMATION THAT HE CONSIDERS ESTABLISHES CONCLUSIVELY THE DEATH OF A MEMBER OF A UNIFORMED SERVICE, HE SHALL, NOTWITHSTANDING ANY EARLIER ACTION RELATING TO DEATH OR OTHER STATUS OF THE MEMBER, ACT ON IT AS AN OFFICIAL REPORT OF DEATH. AFTER THE END OF THE 12-MONTH PERIOD IN A MISSING STATUS PRESCRIBED BY SECTION 555 OF THIS TITLE, THE SECRETARY CONCERNED, OR HIS DESIGNEE, SHALL, WHEN HE CONSIDERS THAT THE INFORMATION RECEIVED, OR A LAPSE OF TIME WITHOUT INFORMATION, ESTABLISHES A REASONABLE PRESUMPTION THAT A MEMBER IN A MISSING STATUS IS DEAD, MAKE A FINDING OF DEATH.

A MEMBER SERVING ON ACTIVE DUTY IS ENTITLED TO BASIC PAY UNDER THE PROVISIONS OF 37 U.S.C. 204 AT THE RATES PRESCRIBED IN 37 U.S.C. 203, AS AMENDED, WITH YEARS OF SERVICE COMPUTED UNDER 37 U.S.C. 205.

IN 30 COMP. GEN. 285 (1951), INVOLVING THE QUESTION OF SERVICE CREDITS FOR RETIREMENT PURPOSES, WE HELD THAT A LEAVE OF ABSENCE WITHOUT PAY GRANTED AN ENLISTED MAN IS TO BE REGARDED AS ACTIVE SERVICE WITHIN THE MEANING OF SECTION 202(A) OF THE CAREER COMPENSATION ACT OF 1949 (PRESENTLY CODIFIED AS 37 U.S.C. 205) FOR THE PURPOSE OF COMPUTING THE MEMBER'S CUMULATIVE YEARS OF SERVICE TO BE USED IN DETERMINING HIS RETIRED PAY.

IN ARRIVING AT THAT DECISION WE SAID THEREIN THAT:

WHILE THERE WOULD APPEAR TO BE NO QUESTION THAT THE TIME LOST DUE TO ABSENCE BY REASON OF SICKNESS DUE TO MISCONDUCT, ABSENCE WITHOUT LEAVE, ETC., CANNOT BE CONSIDERED ACTIVE SERVICE - 22 COMP. GEN. 759 - THE CONCLUSION THAT IT CANNOT BE CONSIDERED ACTIVE SERVICE IS PREDICATED NOT ON THE FACT THAT THE MAN WAS NOT IN A PAY STATUS DURING THE PERIOD IN QUESTION BUT ON THE FACT THAT HE HAS DEPRIVED THE GOVERNMENT OF HIS SERVICES BY DELIBERATELY ABSENTING HIMSELF FROM DUTY WITHOUT AUTHORITY OR BY BEING UNABLE TO PERFORM HIS DUTIES BY REASON OF HIS OWN MISCONDUCT THUS MAKING HIS ABSENCE, TO AN EXTENT, UNAUTHORIZED. *** ON THE OTHER HAND, I DO NOT THINK THERE IS ANY QUESTION BUT THAT THE PERIODS A MAN MAY BE ABSENT WITH LEAVE ARE TO BE CONSIDERED AS ACTIVE SERVICE, NOT SIMPLY BECAUSE HE IS IN A PAY STATUS DURING SUCH PERIODS BUT BECAUSE SUCH ABSENCE WAS PROPERLY AUTHORIZED; THE MAN CONTINUED TO BE SUBJECT TO CONTROL OF HIS SERVICE; AND HE WAS READY AND WILLING TO, AND DID, RETURN TO HIS NORMAL DUTIES AT THE EXPIRATION OF SUCH LEAVE OF ABSENCE, OR SOONER, IF SO ORDERED. ***

IN 44 COMP. GEN. 667 (1965), WHILE DISCUSSING THE LEGALITY OF CREDITING AN EXCUSED PERIOD OF ABSENCE WITHOUT LEAVE AS ACTIVE DUTY FOR RETIREMENT QUALIFICATION WE SAID ON PAGE 669 THAT TIME DURING WHICH AN ABSENT MEMBER "IS UNDER SOME OBLIGATION TO RETURN TO HIS STATION FOR THE PERFORMANCE OF ACTIVE DUTY BUT BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL OR BEYOND THE CONTROL OF THE GOVERNMENT SUCH RETURN IS PREVENTED" WOULD QUALIFY AS ACTIVE SERVICE.

THE PROVISIONS OF THE MISSING PERSONS ACT ESTABLISHED CONGRESSIONAL RECOGNITION OF THE BASIC PRESUMPTION OF A CONTINUATION OF LIFE WHEN A MEMBER WHO IS SERVING ON ACTIVE DUTY BECOMES MISSING IN ACTION, AND THE PRESUMPTION THAT HIS RETURN TO HIS DUTY STATION IS PREVENTED BY CIRCUMSTANCES BEYOND HIS CONTROL. SINCE SUCH A MEMBER IS ENTITLED TO BE CREDITED WITH FULL PAY AND ALLOWANCES UNDER 37 U.S.C. 552 (50 COMP. GEN. 148 (1970)); MAY ACCRUE LEAVE UNDER 10 U.S.C. 701(G) (51 COMP. GEN. 391 (1972)); AND MAY BE PROMOTED UNDER 37 U.S.C. 552, AS AMENDED (51 COMP. GEN. 759 (1972)), THE CONCLUSION IS INESCAPABLE THAT A MEMBER'S STATUS OF BEING ON ACTIVE DUTY AT THE TIME OF ENTERING A MISSING STATUS WAS TO CONTINUE FOR THE ENTIRE PERIOD OF THAT STATUS.

WHILE THE SURVIVOR BENEFIT PLAN DOES NOT SPECIFICALLY MENTION MISSING PERSONS, ITS LEGISLATIVE HISTORY DOES SPEAK CLEARLY OF THE PURPOSE OF 10 U.S.C. 1448(D). IN HOUSE REPORT NO. 92-481, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 10670, AT PAGE 10, IT IS STATED AS FOLLOWS:

THE COMMITTEE WAS PARTICULARLY CONCERNED, IN A PROGRAM PRIMARILY DESIGNED TO PROVIDE AN ADEQUATE LEVEL OF INCOME REPLACEMENT FOR SURVIVORS OF CAREER PERSONNEL, THAT A SITUATION NOT BE CREATED WHERE SURVIVORS OF RETIRED PERSONNEL RECEIVE HIGHER BENEFITS THAN THE SURVIVORS OF ACTIVE-DUTY PERSONNEL OF THE SAME GRADE AND SAME YEARS OF SERVICE.

SIMILAR STATEMENTS ARE FOUND IN HOUSE REPORT NO. 91-68, 91ST CONG., 2ND SESS. 9504 (1970) AND SENATE REPORT NO. 92-1089, 92ND CONG., 2ND SESS. 4 (1972). IN LIGHT OF THE OTHER BENEFITS ACCRUING TO MISSING PERSONS, IT IS OUR VIEW THAT THE CONGRESS, IN ENACTING PUBLIC LAW 92 425, INTENDED TO INCLUDE IN 10 U.S.C. 1448(D) THE OTHERWISE ELIGIBLE SURVIVORS OF RETIREMENT ELIGIBLE MEMBERS WHO ARE DETERMINED TO HAVE DIED WHILE IN A MISSING IN ACTION STATUS AS DEFINED IN 37 U.S.C. 551.

ONE OF THE NORMAL INCIDENTS OF ACTIVE SERVICE IS THAT SUCH TIME COUNTS IN ESTABLISHING THE MEMBER'S ENTITLEMENT TO RETIRED OR RETAINER PAY. THUS, WHERE THE MEMBER ENTERS A MISSING STATUS AS DEFINED IN 37 U.S.C. 551 BEFORE HE HAS COMPLETED SUFFICIENT SERVICE TO QUALIFY FOR RETIRED OR RETAINER PAY, IT IS OUR VIEW THAT, SINCE THE PERIOD DURING WHICH HE IS MISSING IS TO BE TREATED AS ACTIVE SERVICE FOR THE PURPOSES PREVIOUSLY ENUMERATED IT MAY BE CONSIDERED QUALIFYING SERVICE FOR THE PURPOSE OF ESTABLISHING BOTH THE MINIMUM ELIGIBILITY FOR RETIREMENT FOR YEARS OF SERVICE AND ENTITLEMENT TO RETIRED OR RETAINER PAY, "EXCEPT THAT HE HAS NOT APPLIED FOR OR BEEN GRANTED THAT PAY FOR THE PURPOSE OF ESTABLISHING AN ANNUITY UNDER 10 U.S.C. 1448(D). CF. 53 COMP. GEN. 470 (1974).

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE. REGARDING QUESTION 2, SEPTEMBER 21, 1972, IS THE EFFECTIVE DATE OF PUBLIC LAW 92 425 WHICH ESTABLISHED THE SURVIVOR BENEFIT PLAN. HAVING DETERMINED THAT THE PERIOD DURING WHICH A MEMBER IS MISSING IN ACTION MAY BE TREATED AS ACTIVE SERVICE FOR PURPOSES OF 10 U.S.C. 1448(D), AND ACTING ON THE ASSUMPTION THAT SUCH A MEMBER IS PROPERLY IN SUCH STATUS (CF. BELL V. UNITED STATES, 366 U.S. 393 (1961)), WE PERCEIVE NO REASON WHY THE DATE ON WHICH THE MEMBER ENTERED A MISSING STATUS SHOULD HAVE ANY BEARING UPON THE ISSUES CONSIDERED HEREIN. FURTHER, NOTHING IN EITHER SUBSECTION 1448(D) OR ITS LEGISLATIVE HISTORY SUGGESTS THAT SUCH A DISTINCTION SHOULD BE MADE. THUS, QUESTION 2 IS ALSO ANSWERED IN THE AFFIRMATIVE. THE FINAL QUESTION CONCERNS THE EFFECTIVE DATE OF THE ANNUITY. SECTION 1450 OF TITLE 10, U.S. CODE, PROVIDES THAT THE ANNUITY SHALL BE PAID EFFECTIVE AS OF THE DAY FOLLOWING THE DATE OF DEATH. AS PREVIOUSLY STATED, NEITHER THE SURVIVOR BENEFIT PLAN NOR ITS LEGISLATIVE HISTORY SPECIFICALLY MENTIONS MEMBERS DETERMINED TO BE IN A MISSING IN ACTION STATUS, THUS, NO PARTICULAR LIMITATION CAN BE ASCRIBED TO CONGRESS IN THIS CONTEXT FOR THE PHRASE "DATE OF DEATH" AS MENTIONED IN SECTION 1450. THIS IS ESPECIALLY PERTINENT IN VIEW OF THE FACT THAT A DETERMINATION OF DEATH UNDER THE MISSING PERSONS ACT NORMALLY IS BASED UPON EVIDENCE RECEIVED BY THE SECRETARY CONCERNED THAT THE MEMBER CANNOT REASONABLY BE PRESUMED TO BE LIVING, AND MAY EVEN BE BASED UPON A MERE LAPSE OF TIME WITHOUT INFORMATION.

WE BELIEVE THAT, IN THE ABSENCE OF STATUTORY PROVISION OR CLEAR INDICATION OF LEGISLATIVE INTENT TO THE CONTRARY, THE DATE ON WHICH TO COMMENCE PAYMENT OF A SURVIVOR ANNUITY UNDER 10 U.S.C. 1448(D) IS THE DAY FOLLOWING THE DATE ON WHICH THE COMPENSATION AND OTHER EMOLUMENTS OF ACTIVE SERVICE TERMINATE. UNDER 37 U.S.C. 552(B), "NOTWITHSTANDING THE DEATH" OF THE MEMBER WHILE IN MISSING STATUS, PAY AND ALLOWANCES CONTINUE TO THE DATE OF DETERMINATION UNDER SECTION 555 OR THE DATE THE SECRETARY CONCERNED "RECEIVES EVIDENCE THAT THE MEMBER IS DEAD." FURTHER, SINCE THE MISSING PERSON IS TREATED AS IF HE WERE ALIVE AND ON CONTINUOUS ACTIVE DUTY FOR ALL PURPOSES UP TO THE DATE THAT THE SECRETARY CONCERNED MAKES THE DETERMINATION OF DEATH OR RECEIVES EVIDENCE THAT THE MEMBER IS DEAD, NOTWITHSTANDING THE FACT THAT AN EARLIER DATE MAY BE FIXED AS THE "DATE OF DEATH" FOR CERTAIN ADMINISTRATIVE PURPOSES, IT IS OUR VIEW THAT SO LONG AS THE DATE OF DETERMINATION OCCURS ON OR AFTER SEPTEMBER 21, 1972, THE INCEPTION DATE OF THE SURVIVOR BENEFIT PLAN, THE DAY FOLLOWING THE DATE THE SECRETARY CONCERNED MAKES THE DETERMINATION OF DEATH OR RECEIVES EVIDENCE THAT THE MEMBER IS DEAD IS CONTROLLING FOR THE PURPOSE OF INITIATING PAYMENTS UNDER 10 U.S.C. 1448(D).

QUESTION 3 IS ANSWERED ACCORDINGLY.