B-19223, AUGUST 22, 1941, 21 COMP. GEN. 163

B-19223, AUGUST 22, 1941, 21 COMP. GEN. 163

BURIAL EXPENSES - DEATH DURING PERIOD OF UNAUTHORIZED LEAVE - ARMY RESERVE OFFICER THE RIGHT TO PAYMENT OF BURIAL EXPENSES UNDER THE ACT OF JUNE 15, 1936, IS NOT FORFEITED MERELY BECAUSE DEATH OCCURS WHILE AN ARMY RESERVE OFFICER ON ACTIVE DUTY IS ON UNAUTHORIZED LEAVE, AS DISTINGUISHED FROM DESERTION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. F. M. MOORE, U.S. ARMY, AUGUST 22, 1941:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF JULY 24, 1941, YOUR LETTER DATED JUNE 21, 1941, WHICH IS AS FOLLOWS:

1. IN COMPLIANCE WITH PAR. 2A AR 35-730 AND PAR. 23C (6), FINANCE CIRCULAR B-1, THERE ARE ENCLOSED HEREWITH TWO VOUCHERS, ONE FOR $100.00 PAYABLE TO BALLARD FUNERAL HOME, ROSWELL, NEW MEXICO, AND ONE FOR $50.00, PAYABLE TO E. R. BUTTERWORTH AND SONS, INC., SEATTLE, WASHINGTON, IN THE CASE OF ST LT. RICHARD ELTON MILLION (0-355682) C. A. C.-RES., DECEASED, WHICH HAVE BEEN PRESENTED TO ME AS DISBURSING OFFICER, FORT BLISS, TEXAS, FOR PAYMENT.

2. PAYMENTS HAVE BEEN WITHHELD IN VIEW OF THE FACT THAT A BOARD OF OFFICERS HAVE DETERMINED THAT LT. MILLION'S DEATH WAS NOT IN LINE OF DUTY AND AS A RESULT OF HIS OWN MISCONDUCT. LT. MILLION WAS ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY AT THE TIME OF HIS DEATH. THESE VOUCHERS ARE SUBMITTED TO YOUR OFFICE FOR ADVANCE DECISION AS TO THE LEGALITY OF THE PAYMENTS AS STATED.

FROM YOUR LETTER AND THE PAPERS ATTACHED THERETO, IT APPEARS THAT FIRST LT. RICHARD ELTON MILLION WAS A RESERVE OFFICER ON ACTIVE DUTY AT FORT BLISS, TEX., THAT COMMENCING AT 10:30 A.M. ON JANUARY 13, 1941, HE WAS ABSENT FROM HIS STATION WITHOUT AUTHORITY, THAT ON JANUARY 14, 1941, WHILE STILL ABSENT WITHOUT AUTHORITY, HE MET HIS DEATH, AND THAT A BOARD OF OFFICERS HAS DETERMINED THAT HIS DEATH OCCURRED "NOT IN LINE OF DUTY AND AS A RESULT OF HIS OWN MISCONDUCT.' THE VOUCHERS SUBMITTED WITH YOUR LETTER COVERED EXPENSES INCURRED IN CONNECTION WITH THE OFFICER'S BURIAL AND THE QUESTION PRESENTED IS WHETHER PAYMENT OF THE VOUCHERS IS AUTHORIZED IN VIEW OF THE FACT THAT THE OFFICER'S DEATH WAS NOT IN LINE OF DUTY AND AS A RESULT OF HIS OWN MISCONDUCT.

THE ACT OF JUNE 15, 1936, 49 STAT. 1508, WHICH IS APPLICABLE TO RESERVE OFFICERS OF THE ARMY, PROVIDES IN PART---

* * * IF THE DEATH OF ANY PERSON MENTIONED HEREIN OCCURS WHILE HE IS ON ACTIVE DUTY, OR UNDERGOING TRAINING OR HOSPITAL TREATMENT CONTEMPLATED BY THIS SECTION, THE UNITED STATES SHALL, UNDER REGULATIONS PRESCRIBED AS AFORESAID, PAY THE NECESSARY EXPENSES FOR RECOVERY OF THE BODY, ITS PREPARATION FOR BURIAL, INCLUDING THE USE OF SUCH OF THE UNIFORM AND ARTICLES OF CLOTHING ISSUED TO HIM AS MAY BE REQUIRED, INTERMENT (OR CREMATION IF REQUESTED BY HIS RELATIVES), AND TRANSPORTATION OF HIS REMAINS, INCLUDING ROUND-TRIP TRANSPORTATION AND SUBSISTENCE OF AN ESCORT, TO HIS HOME OR THE PLACE WHERE HE RECEIVED ORDERS FOR THE PERIOD OF TRAINING UPON WHICH ENGAGED AT THE TIME OF HIS DEATH, OR TO SUCH OTHER PLACE AS HIS RELATIVES MAY DESIGNATE PROVIDED THE DISTANCE TO SUCH OTHER PLACE BE NOT GREATER THAN THE DISTANCE TO HIS HOME; * * * SEE ALSO ARMY REGULATIONS 30-1830 AS TO REGULATIONS ISSUED BY THE SECRETARY OF WAR IN CONNECTION WITH THE ABOVE ACT.

THE LAW AUTHORIZES CERTAIN BURIAL EXPENSES TO BE PAID IN CONNECTION WITH THE DEATH OF ANY PERSON MENTIONED IN THE ACT IF DEATH OCCURRED "WHILE HE IS ON ACTIVE DUTY.' IT IS NOT NECESSARY THAT IT BE SHOWN THAT DEATH OCCURRED IN LINE OF DUTY. SEE A-81789, APRIL 23, 1937. IT APPEARS TO BE ESTABLISHED THAT LIEUTENANT MILLION WAS ON ACTIVE DUTY IMMEDIATELY PRECEDING HIS DEPARTURE FROM HIS STATION AT FORT BLISS ON JANUARY 13, 1941. THEREFORE, THE QUESTION APPEARS TO BE WHETHER HE MAY BE CONSIDERED "ON ACTIVE DUTY" WITHIN THE MEANING OF THE ACT OF JUNE 15, 1936, WHILE HE WAS ABSENT FROM HIS STATION ON UNAUTHORIZED LEAVE.

A RESERVE OFFICER CANNOT RELIEVE HIMSELF FROM ACTIVE DUTY, ALTHOUGH HE MAY TERMINATE HIS ACTIVE DUTY BY DESERTION; THERE IS NO SUGGESTION IN THIS CASE THAT THE OFFICER'S ACTIVE DUTY HAD BEEN TERMINATED BY HIS OWN ACTION, THE EQUIVALENT OF DESERTION. IT APPEARS CLEAR THAT ABSENCE ON UNAUTHORIZED LEAVE, IN ITSELF, AND NOT AMOUNTING TO DESERTION, DOES NOT TERMINATE AN OFFICER'S ACTIVE-DUTY STATUS PRIOR TO THE DATE SPECIFIED IN HIS ORDERS ORDERING HIM TO ACTIVE DUTY.

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT LIEUTENANT MILLION ALTHOUGH ABSENT ON UNAUTHORIZED LEAVE BEGINNING AT 10:30 A.M. JANUARY 13, 1941, MAY BE CONSIDERED TO HAVE BEEN "ON ACTIVE DUTY" AS THAT TERM IS USED IN THE ACT OF JUNE 15, 1936, UNTIL HIS DEATH ON JANUARY 14, 1941. IF THE PAYMENTS ARE OTHERWISE CORRECT AND WITHIN THE APPLICABLE REGULATIONS, YOU ARE AUTHORIZED TO PAY THE VOUCHERS WHICH ARE RETURNED HEREWITH.