B-22655, JANUARY 17, 1942, 21 COMP. GEN. 673

B-22655, JANUARY 17, 1942, 21 COMP. GEN. 673

BURIAL EXPENSES - APPROPRIATION AVAILABILITY - RESERVE OFFICERS; CLOTHING FOR REMAINS THE EFFECT OF THE APPROPRIATION MADE BY THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1942, UNDER THE HEADING " CEMETERIAL EXPENSES" FOR "* * * RECOVERY OF BODIES AND DISPOSITION OF THE REMAINS AS AUTHORIZED BY THE ACT OF MAY 17, 1938, * * * INCLUDING REMAINS OF PERSONNEL OF THE ARMY OF THE UNITED STATES WHO DIE WHILE ON ACTIVE DUTY; * * *" IS TO EXTEND THE FUNERAL EXPENSE BENEFITS OF THE ACT OF MAY 17, 1938, TO PERSONNEL OF THE ARMY OF THE UNITED STATES WHO DIE WHILE ON ACTIVE DUTY, AND, THEREFORE, RESERVE OFFICERS WHO DIE WHILE ON ACTIVE DUTY ARE WITHIN THE ACT. WHERE A DECEASED PERSON ENTITLED TO THE BENEFITS OF THE ACT OF MAY 17, 1938, AUTHORIZING APPROPRIATIONS TO BE MADE FOR FUNERAL EXPENSES OF CERTAIN ARMY AND WAR DEPARTMENT PERSONNEL, LEAVES NO AVAILABLE OUTER CLOTHING WITH WHICH TO CLOTHE HIS REMAINS, THE APPROPRIATION MADE BY THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1942, UNDER THE HEADING "CEMETERIAL EXPENSES" TO CARRY OUT THE PURPOSES OF SAID ACT OF MAY 17, 1938, IS AVAILABLE FOR THE PURCHASE OF SUITABLE CLOTHING FOR THIS PURPOSE, INCLUDING ARTICLES OF UNIFORM FOR ARMY OFFICERS WHO DIE WHILE IN ACTIVE SERVICE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JANUARY 17, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED DECEMBER 16, 1941, AS FOLLOWS:

SECOND LIEUTENANT KENNETH EARL ELLIOTT (O-420379), AIR CORPS RESERVE, ON EXTENDED ACTIVE DUTY AT MCCHORD FIELD, WASHINGTON, DIED ON OCTOBER 8, 1941, NEAR ATLANTA, GEORGIA, AS THE RESULT OF AN AIRPLANE ACCIDENT. THIS OFFICER WAS KILLED AS THE RESULT OF HIS JUMPING FROM AN AIRPLANE THAT WAS DISABLED WHILE ALOFT. THE PLANE WAS DESTROYED BY FIRE AFTER THE OFFICER HAD LEAPED FROM IT AND IT CRASHED TO THE GROUND, AND HIS PERSONAL OUTER UNIFORM CLOTHING WHICH WAS IN THE PLANE AT THE TIME WAS ENTIRELY CONSUMED BY THE FIRE THAT DESTROYED THE PLANE. AT THE TIME THIS OFFICER JUMPED FROM THE PLANE HE WAS NOT WEARING HIS OWN OUTER CLOTHING BUT HAD ON THE PRESCRIBED FLYING UNIFORM BELONGING TO THE GOVERNMENT, AND WHICH BECAUSE OF ITS BULK COULD NOT BE USED TO CLOTHE HIS REMAINS WHEN ENCASED IN A CASKET FOR SHIPMENT TO HIS HOME. SINCE THIS DECEDENT'S UNIFORM HAD BEEN DESTROYED BY THE FIRE WHICH BURNED UP THE PLANE AND NO OUTER CLOTHING OF HIS WAS AVAILABLE FOR CLOTHING HIS REMAINS FOR BURIAL, THE FOLLOWING ARTICLES OF OFFICER'S UNIFORM CLOTHING WERE PROCURED ON A GOVERNMENT PURCHASE ORDER ISSUED BY THE LOCAL QUARTERMASTER, AND SETTLEMENT OF WHICH IS NOW HELD IN ABEYANCE IN THE OFFICE OF THE CHIEF OF FINANCE.

CHART

1 BLOUSE ------------------------------------------- $25.00

1 WHITE SHIRT -------------------------------------- 1.00

1 PAIR TROUSERS ------------------------------------ 12.00

1 SAM BROWNE BELT -------------------------------- 4.00

1 AIR CORPS INSIGNIA ----------------------------- 2.85

$44.85

THE ACT OF MAY 17, 1938, AUTHORIZING THE PAYMENT OF FUNERAL EXPENSES FOR MILITARY PERSONNEL PROVIDES IN PARTY AS FOLLOWS: * * * "SEC. AUTHORIZED FUNERAL EXPENSES SHALL INCLUDE THE EXPENSES OF, AND INCIDENT TO, THE RECOVERY OF BODIES, CREMATION (ONLY UPON THE REQUEST OF RELATIVES OF THE DECEASED), PREPARATION FOR BURIAL, TRANSPORTATION TO THE HOME OF THE DECEASED OR TO A NATIONAL OR OTHER CEMETERY DESIGNATED BY PROPER AUTHORITY, AND INTERMENT" * * *.

"PREPARATION FOR BURIAL" AS REFERRED TO IN THE AFORE-CITED ACT AND IN PRIOR ENACTMENTS OF CONGRESS, HAS ALWAYS BEEN INTERPRETED BY THE WAR DEPARTMENT TO INCLUDE THE "CLOTHING OF THE REMAINS CONCERNED, IN A PROPER AND FITTING MANNER" AND PAR. 8, A.R. 30-1820, IN LINE WITH THIS INTERPRETATION, PROVIDES "THE CLOTHING OF THE DECEASED WILL BE USED TO CLOTHE THE REMAINS, IF AVAILABLE AND IN A CLEAN AND PERFECT CONDITION. SUCH CLOTHING IS NOT AVAILABLE, THE FOLLOWING ARTICLES OF NEW CLOTHING ARE AUTHORIZED TO BE ISSUED FOR THIS PURPOSE, WITHOUT CHARGE AGAINST THE DECEASED: 1 BELT, LEATHER, EM; 1 BREECHES, SERVICE, PAID; 1 CHEVRONS, PAIR; 1 COAT, SERVICE; 1 DRAWERS, PAIR; 1 INSIGNIA, COLLAR, SET; 1 NECKTIE; 1 SHIRT; 1 STOCKINGS, PAIR; 1 STRIPES, SERVICE, SET; 1 UNDERSHIRT.' THIS REGULATION, HOWEVER, IS NOT APPLICABLE IN ITS ENTIRETY TO THE REMAINS OF OFFICERS, WHO, UNLIKE ENLISTED MEN, PROVIDE THEIR OWN UNIFORMS AND WHICH UNIFORMS ARE NOT ISSUE ARTICLES OF CLOTHING, CARRIED IN STOCK BY THE QUARTERMASTER CORPS AND WHICH MUST BE PROVIDED BY PURCHASE FROM COMMERCIAL SOURCES.

IN THE MAJORITY OF CASES, SUITABLE PERSONAL CLOTHING OF OFFICERS AND ENLISTED MEN WHO DIE IN ACTIVE SERVICE IS ON HAND OR CAN BE MADE AVAILABLE FOR THEIR BURIAL; BUT WHEN FOR SOME ONE OR MORE POSSIBLE REASONS SUCH CLOTHING IS NOT AND CANNOT BE MADE AVAILABLE IN THE CASE OF THE REMAINS OF AN OFFICER, THE MILITARY AUTHORITIES RESPONSIBLE FOR THEIR PROPER PREPARATION MUST OF NECESSITY PROCURE THE REQUIRED ARTICLES OF CLOTHING BY PURCHASE IN THE OPEN MARKET.

A DECISION IS REQUESTED AS TO WHETHER IN THE CASE OF THE LATE LIEUTENANT KENNETH E. ELLIOTT HERE CONCERNED AND IN ANY OTHER FUTURE CASE WHERE PERSONAL CLOTHING OF A DECEASED OFFICER IN ACTIVE SERVICE IS NOT READILY AVAILABLE FOR PREPARING HIS REMAINS FOR BURIAL, SUITABLE CLOTHING MAY BE FURNISHED BY THE GOVERNMENT AT PUBLIC EXPENSE AND MAY BE PAID FOR FROM THE APPROPRIATION " CEMETERIAL EXPENSES, WAR DEPARTMENT," THE APPROPRIATION " CLOTHING AND EQUIPAGE OF THE ARMY" NOT BEING APPLICABLE.

YOUR LETTER DISCLOSES THAT SECOND LIEUTENANT ELLIOTT WAS A RESERVE OFFICER ON ACTIVE DUTY AND THAT HE DIED ON OCTOBER 8, 1941. PRIOR TO THE FISCAL YEAR 1942, PROVISION WAS MADE IN THE ANNUAL APPROPRIATION ACTS FOR THE MILITARY ESTABLISHMENT UNDER THE HEADING " ORGANIZED RESERVES," FOR NECESSARY FUNDS FOR THE PAYMENT OF THE BURIAL EXPENSES AUTHORIZED BY THE ACT OF JUNE 15, 1936, 49 STAT. 1507, 1508, FOR RESERVE OFFICERS WHO DIED WHILE ON ACTIVE DUTY IN TIME OF PEACE. THE MILITARY APPROPRIATION ACT, 1942, PUBLIC LAW 139, APPROVED JUNE 30, 1941, 55 STAT. 366, CONTAINS NO SUCH PROVISION. HOWEVER, THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1942, PUBLIC LAW 71, APPROVED MAY 23, 1941, 55 STAT. 190, CONTAINS THE FOLLOWING PROVISION UNDER THE HEADING " CEMETERIAL EXPENSES: "

* * * RECOVERY OF BODIES AND DISPOSITION OF THE REMAINS AS AUTHORIZED BY ACT OF MAY 17, 1938 (10 U.S.C. 916-916D), INCLUDING REMAINS OF PERSONNEL OF THE ARMY OF THE UNITED STATES WHO DIE WHILE ON ACTIVE DUTY; * * *

PRIOR APPROPRIATIONS UNDER THE ABOVE HEADING MADE FUNDS AVAILABLE TO CARRY OUT THE PROVISIONS OF THE ACT OF MAY 17, 1938, 52 STAT. 398, BUT THE WORDING "INCLUDING REMAINS OF PERSONNEL OF THE ARMY OF THE UNITED STATES WHO DIE WHILE ON ACTIVE DUTY" IS NEW. THE ACT OF MAY 17, 1938, TO WHICH REFERENCE IS MADE, PROVIDES:

* * * THAT THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED FROM TIME TO TIME SUCH SUMS AS MAY BE NECESSARY FOR FUNERAL EXPENSES OF THE PERSONS HEREINAFTER DESIGNATED, TO BE EXPENDED UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.

SEC. 2. AUTHORIZED FUNERAL EXPENSES SHALL INCLUDE THE EXPENSES OF, AND INCIDENT TO, THE RECOVERY OF BODIES, CREMATION (ONLY UPON THE REQUEST OF RELATIVES OF THE DECEASED), PREPARATION FOR BURIAL, TRANSPORTATION TO THE HOME OF THE DECEASED OR TO A NATIONAL OR OTHER CEMETERY DESIGNATED BY PROPER AUTHORITY, AND INTERMENT.

SEC. 3. FUNERAL EXPENSES SHALL BE ALLOWED FOR (1) ALL PERSONS IN THE REGULAR ARMY AS COMPOSED UNDER SECTION 2, ACT OF JUNE 3, 1916, AS AMENDED (39 STAT. 166; U.S.C., TITLE 10, SEC. 4), WHO DIE WHILE IN THE ACTIVE MILITARY SERVICE; (2) ACCEPTED APPLICANTS FOR ENLISTMENT; (3) ENLISTED MEN WHO ARE DISCHARGED IN HOSPITALS AND CONTINUE AS INMATES OF SAID HOSPITALS TO THE DATE OF THEIR DEATH; (4) CIVILIAN EMPLOYEES OF THE ARMY OR OF THE WAR DEPARTMENT WHO HAVE BEEN ORDERED BY COMPETENT AUTHORITY AWAY FROM THEIR HOMES IN THE UNITED STATES TO FOREIGN COUNTRIES, HAWAII, THE PHILIPPINE ISLANDS, ALASKA, PUERTO RICO, OR THE CANAL ZONE, AND WHO DIE WHILE ON DUTY IN SUCH PLACES OR WHILE PERFORMING AUTHORIZED TRAVEL THERETO OR THEREFROM; (5) CIVILIAN EMPLOYEES OF THE ARMY OR OF THE WAR DEPARTMENT WHO DIE ON ARMY TRANSPORTS OR WHILE ACCOMPANYING TROOPS IN THE FIELD, OR WHO, WHILE ON ARMY TRANSPORTS OR WHILE ACCOMPANYING TROOPS IN THE FIELD, INCUR INJURY OR CONTRACT DISEASE RESULTING DIRECTLY IN DEATH AWAY FROM THEIR HOMES: PROVIDED, THAT THE BENEFITS OF THIS ACT WILL BE DENIED IN NO CASE ON THE GROUND THAT THE DECEASED WAS TEMPORARILY ABSENT WITH OR WITHOUT LEAVE WHEN DEATH OCCURRED.

THE APPARENT INTENTION OF THE DRAFTERS OF THE APPROPRIATION ACT FOR THE FISCAL YEAR 1942 WAS TO EXTEND THE BENEFITS AUTHORIZED BY THE ACT OF MAY 17, 1938, TO PERSONNEL OF THE ARMY OF THE UNITED STATES WHO DIE WHILE ON ACTIVE DUTY AND, THEREFORE, RESERVE OFFICERS WHO DIE WHILE ON ACTIVE DUTY ARE WITHIN THE ACT.

IT IS STATED THAT NO OUTER CLOTHING BELONGING TO THE OFFICER WAS AVAILABLE AFTER HIS DEATH AND THAT ARTICLES OF OFFICER'S UNIFORM CLOTHING AMOUNTING TO $44.85 WERE PROCURED ON A GOVERNMENT PURCHASE ORDER. THE ACT OF MAY 17, 1938, PROVIDES THAT AUTHORIZED FUNERAL EXPENSES SHALL INCLUDE, AMONG OTHER THINGS, THE EXPENSES OF AND INCIDENT TO THE PREPARATION OF BODIES FOR BURIAL. WHEN IT IS FOUND THAT A DECEASED PERSON WITHIN THE ACT LEFT NO AVAILABLE OUTER CLOTHING WITH WHICH TO CLOTHE HIS REMAINS, IT APPEARS THAT THE FURNISHING OF SUCH CLOTHING IS AN ITEM REASONABLY WITHIN THE TERM "PREPARATION FOR BURIAL" AS USED IN THE ACT, AND THAT THE PURCHASE OF SUITABLE CLOTHING AT GOVERNMENT EXPENSE FOR THE PURPOSE OF CLOTHING HIS REMAINS IS AUTHORIZED. ACCORDINGLY, TO THE EXTENT OTHERWISE PROPER, PAYMENT FOR THE ARTICLES OF UNIFORM MENTIONED IN YOUR LETTER WHICH WERE PURCHASED IN CONNECTION WITH THE BURIAL OF SECOND LIEUTENANT ELLIOTT IS AUTHORIZED FROM FUNDS MADE AVAILABLE BY THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1942, SUPRA, UNDER THE HEADING " CEMETERIAL EXPENSES," AND SUCH APPROPRIATION IS ALSO AVAILABLE DURING THE PERIOD COVERED THEREBY FOR LIKE EXPENDITURES IN OTHER CASES WITHIN THE ACT OF MAY 17, 1938, WHERE PERSONAL CLOTHING OF THE DECEASED IS NOT AVAILABLE FOR PREPARING HIS REMAINS FOR BURIAL.