B-26431, JUNE 8, 1942, 21 COMP. GEN. 1100

B-26431: Jun 8, 1942

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THE PREPARATION OF HIS REMAINS AT GOVERNMENT EXPENSE IS AUTHORIZED UNDER THE ACT OF JULY 8. PROVIDES THAT THE BENEFITS AUTHORIZED THEREIN SHALL NOT BE DENIED BECAUSE THE DECEASED WAS TEMPORARILY ABSENT FROM DUTY WHEN DEATH OCCURRED. 1942: I HAVE YOUR LETTER OF JUNE 2. AS FOLLOWS: THERE IS BEFORE THIS DEPARTMENT FOR IMMEDIATE CONSIDERATION AND AUTHORIZATION. OTHER EMPLOYEES OF THE FOREIGN SERVICE INCLUDING FOREIGN SERVICE INSPECTORS WHO HAVE DIED OR MAY DIE ABROAD OR IN TRANSIT WHILE IN DISCHARGE OF THEIR OFFICIAL DUTIES. IT WILL BE NOTED THAT SECTION 103B OF TITLE 5 STATES "THE BENEFITS OF SECTION 103A OF THE TITLE SHALL NOT BE DENIED IN ANY CASE ON THE GROUND THAT THE DECEASED WAS TEMPORARILY ABSENT FROM DUTY WHEN DEATH OCCURRED.'.

B-26431, JUNE 8, 1942, 21 COMP. GEN. 1100

PREPARATION AND TRANSPORTATION OF REMAINS - CIVILIAN EMPLOYEE DYING WHILE ON LEAVE IN UNITED STATES FROM FOREIGN-DUTY POST WHERE A CIVILIAN EMPLOYEE DIED WHILE ON LEAVE IN THE UNITED STATES FROM HIS POST OF DUTY IN A FOREIGN COUNTRY, THE PREPARATION OF HIS REMAINS AT GOVERNMENT EXPENSE IS AUTHORIZED UNDER THE ACT OF JULY 8, 1940, WHICH, IN AUTHORIZING THE PREPARATION AND TRANSPORTATION OF THE REMAINS OF CIVILIAN PERSONNEL WHO DIE WHILE PERFORMING OFFICIAL DUTIES IN A FOREIGN COUNTRY, PROVIDES THAT THE BENEFITS AUTHORIZED THEREIN SHALL NOT BE DENIED BECAUSE THE DECEASED WAS TEMPORARILY ABSENT FROM DUTY WHEN DEATH OCCURRED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, JUNE 8, 1942:

I HAVE YOUR LETTER OF JUNE 2, 1942, AS FOLLOWS:

THERE IS BEFORE THIS DEPARTMENT FOR IMMEDIATE CONSIDERATION AND AUTHORIZATION, IF ALLOWABLE, FROM AVAILABLE APPROPRIATIONS THE PAYMENT OF THE EXPENSES OF THE PREPARATION OF THE REMAINS OF A NONCAREER VICE CONSUL OF THE UNITED STATES STATIONED AT HAVANA, CUBA, WHO DIED BY HIS OWN HAND WHILE ON SIMPLE LEAVE OF ABSENCE AT MIAMI, FLORIDA.

IN 22 U.S.C. 130A PROVISION HAS BEEN MADE FOR PAYMENT OF THE EXPENSES OF THE PREPARATION AND TRANSPORTATION OF THE REMAINS OF DIPLOMATIC, CONSULAR AND FOREIGN SERVICE OFFICERS, AND OTHER EMPLOYEES OF THE FOREIGN SERVICE INCLUDING FOREIGN SERVICE INSPECTORS WHO HAVE DIED OR MAY DIE ABROAD OR IN TRANSIT WHILE IN DISCHARGE OF THEIR OFFICIAL DUTIES, TO THEIR FORMER HOMES IN THE UNITED STATES OR TO A PLACE NOT MORE DISTANT FOR INTERMENT AND FOR THE ORDINARY EXPENSES OF SUCH INTERMENT, BUT THAT ACT DOES NOT PROVIDE FOR ANY SUCH EXPENSES OF OFFICES OR EMPLOYEES WHO MAY BE TEMPORARILY ABSENT IN THE UNITED STATES FROM A POST OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES.

IN 5 U.S.C. SECTIONS 103A AND 103B AND EXECUTIVE ORDER NO. 8553 (8557) OF SEPTEMBER 30, 1940, PRESCRIBING REGULATIONS GOVERNING THE PAYMENT OF EXPENSES INCURRED IN CONNECTION WITH THE DEATH OF CERTAIN CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES IT APPEARS THAT PROVISION HAS BEEN MADE FOR THE PAYMENT OF EXPENSES INCURRED IN CONNECTION WITH THE PREPARATION OF THE REMAINS OF A DECEASED OFFICER WHO DIES WHILE TEMPORARILY ABSENT FROM DUTY DURING THE PERIOD OF HIS ASSIGNMENT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. IT WILL BE NOTED THAT SECTION 103B OF TITLE 5 STATES "THE BENEFITS OF SECTION 103A OF THE TITLE SHALL NOT BE DENIED IN ANY CASE ON THE GROUND THAT THE DECEASED WAS TEMPORARILY ABSENT FROM DUTY WHEN DEATH OCCURRED.'

THIS IS THE FIRST CASE OF THIS KIND TO COME BEFORE THE DEPARTMENT SINCE THE PASSAGE OF THE ACT OF JULY 8, 1940 WHICH WOULD APPEAR TO COME WITHIN THE PROVISIONS OF THAT ACT, AND I SHALL APPRECIATE RECEIVING AN INDICATION OF YOUR OPINION ON THE APPLICABILITY OF THAT ACT TO THE CASE CITED IN ORDER THAT STEPS MAY BE TAKEN TO ISSUE THE NECESSARY INSTRUCTIONS TO THE OFFICERS CONCERNED.

IT IS NOTED THAT SECTION 17 OF THE SAID EXECUTIVE ORDER NO. 8557 PROVIDES, IN SUBSTANCE, THAT NO PAYMENTS SHALL BE MADE UNDER THE ACT OF JULY 8, 1940, 54 STAT. 743, 744, 5 U.S.C. 103A-103B, REFERRED TO IN YOUR LETTER, FOR EXPENSES AUTHORIZED TO BE PAID UNDER ANY OTHER LAW OF THE UNITED STATES. IN THIS CONNECTION, I CONCUR IN YOUR EXPRESSED VIEW THAT THE STATUTORY PROVISIONS FOUND IN 22 U.S.C. 130A WOULD NOT AUTHORIZE PAYMENT OF THE EXPENSES REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER, INASMUCH AS THE OFFICER INVOLVED DID NOT DIE ABROAD OR IN TRANSIT WHILE IN THE DISCHARGE OF HIS OFFICIAL DUTIES.

THE SAID ACT OF JULY 8, 1940, PROVIDES AS FOLLOWS:

THAT IN CASE ANY CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES DIES (1) WHILE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION IN THE UNITED STATES OR (2) WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE HEAD OF THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR FEDERALLY OWNED OR CONTROLLED CORPORATION, HEREINAFTER CALLED DEPARTMENT, IN THE SERVICE OF WHICH SUCH OFFICER OR EMPLOYEE WAS ENGAGED, IS HEREBY AUTHORIZED, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT AND EXCEPT AS OTHERWISE PROVIDED BY LAW, TO PAY FROM THE APPROPRIATION AVAILABLE FOR THE ACTIVITY IN WHICH HE WAS ENGAGED---

(A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IN SUCH TRAVEL STATUS IN THE UNITED STATES, OR IN THE CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE EXPENSES OF PREPARING AND TRANSPORTING THE REMAINS OF SUCH OFFICER OR EMPLOYEE TO HIS HOME OR OFFICIAL STATION OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT.

(B) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE TRANSPORTATION EXPENSES OF HIS DEPENDENTS, INCLUDING EXPENSES INCURRED IN PACKING, CRATING, DRAYAGE, AND TRANSPORTATION OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY TO HIS FORMER HOME OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT SHALL DETERMINE.

SEC. 2. THE BENEFITS OF SECTION 1 OF THIS ACT SHALL NOT BE DENIED IN ANY CASE ON THE GROUND THAT THE DECEASED WAS TEMPORARILY ABSENT FROM DUTY WHEN DEATH OCCURRED.

SEC. 3. THIS ACT SHALL BECOME EFFECTIVE SIXTY DAYS AFTER ITS ENACTMENT.

WHILE NOT MATERIAL INSOFAR AS CONCERNS THE PRESENT CASE, IT IS NOTED THAT THE LANGUAGE OF THE QUOTED ACT APPARENTLY WOULD PERMIT PAYMENT OF THE EXPENSES REFERRED TO THEREIN, WITH RESPECT TO A CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES STATIONED IN THE UNITED STATES, ONLY IF HE BE "IN A TRAVEL STATUS" AT THE TIME OF HIS DEATH. SEE 21 COMP. GEN. 591. HOWEVER, THE ACT APPEARS TO BE SUSCEPTIBLE OF A BROADER INTERPRETATION WITH RESPECT TO OFFICERS OR EMPLOYEES STATIONED IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY. THE STATUTORY LANGUAGE DESCRIPTIVE OF SUCH OFFICERS OR EMPLOYEES ("WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM") DOES NOT RESTRICT THEM TO A SPECIFIC AND WELL-DEFINED STATUS; AND WHEN CONSIDERED AS A WHOLE, INCLUDING SECTION 2, THE ACT WOULD APPEAR TO CONTEMPLATE PAYMENT OF THE EXPENSES REFERRED TO THEREIN EVEN THOUGH THE OFFICER OR EMPLOYEE MAY BE ON LEAVE OF ABSENCE AT THE TIME OF HIS DEATH. THE WORDS ,PERFORMING OFFICIAL DUTIES IN" APPEAR, IN THE LIGHT OF THE SAID SECTION 2, TO MEAN "ASSIGNED TO A POST OF DUTY IN" OR "STATIONED IN," AS SUGGESTED BY LANGUAGE HEREINAFTER QUOTED FROM THE SAID EXECUTIVE ORDER NO. 8557. ANY OTHER INTERPRETATION WOULD APPEAR TO RENDER SECTION 2 OF THE ACT PRACTICALLY MEANINGLESS AND WOULD DEFEAT ONE OF THE CHIEF APPARENT PURPOSES OF THE STATUTE, VIZ, THE RELIEF OF THE DEPENDENTS OF A DECEASED OFFICER OR EMPLOYEE FROM THE FINANCIAL BURDEN ATTENDANT UPON TRANSPORTING TO THE UNITED STATES THE DEPENDENTS, THE REMAINS, AND THE PROPERTY OF THE DECEDENT FROM A TERRITORY OR POSSESSION OF THE UNITED STATES OR A FOREIGN COUNTRY.

FURTHERMORE, ANY OTHER INTERPRETATION APPARENTLY WOULD PRECLUDE PAYMENT BY THE GOVERNMENT OF ANY OF THE SAID EXPENSES IF THE INVOLVED EMPLOYEE WERE ON LEAVE OF ABSENCE AT THE TIME OF HIS DEATH, IRRESPECTIVE OF THE PLACE OF HIS DEATH. PARTICULARLY IN VIEW OF THE PROVISIONS OF SECTION 2 OF THE ACT, IT DOES NOT SEEM REASONABLE TO SUPPOSE THAT THE CONGRESS INTENDED, IN THE ENACTMENT OF THE SAID ACT OF JULY 8, 1940, THAT THE UNITED STATES SHOULD DECLINE TO PAY THE SAID EXPENSES IF SUCH OFFICER OR EMPLOYEE WERE ON LEAVE OF ABSENCE AT THE TIME OF HIS DEATH. IN THIS VIEW OF THE MATTER, IT WOULD SEEM IMMATERIAL THAT DEATH OCCURRED IN THE UNITED STATES INSTEAD OF IN A FOREIGN COUNTRY.

THE INTERPRETATION SET OUT ABOVE APPEARS TO BE IN HARMONY WITH THE SAID EXECUTIVE ORDER NO. 8557 PRESCRIBING REGULATIONS PURSUANT TO THE SAID ACT OF JULY 8, 1940, PERTINENT PROVISIONS OF THE ORDER BEING QUOTED AS FOLLOWS: PART III--- PREPARATION AND TRANSPORTATION OF REMAINS OF EMPLOYEES

DYING WHILE IN A TRAVEL STATUS OUTSIDE THE CONTINENTAL

LIMITS OF THE UNITED STATES OR WHILE ON ASSIGNMENT TO A

POST OUTSIDE THE UNITED STATES

SECTION 5. WHEN AN EMPLOYEE DIES WHILE TRAVELING ON OFFICIAL BUSINESS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR WHILE ON ASSIGNMENT TO A POST OUTSIDE THE UNITED STATES, THE HEAD OF THE DEPARTMENT CONCERNED SHALL PAY THE EXPENSES OF PREPARING THE REMAINS OF THE DECEDENT AND OF TRANSPORTING THE REMAINS TO THE HOME OR OFFICIAL STATION OF THE DECEDENT OR TO SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT MAY DESIGNATE AS THE APPROPRIATE PLACE OF INTERMENT, PROVIDED THAT IN NO CASE SHALL THE EXPENSES PAYABLE BE GREATER THAN THE AMOUNT WHICH WOULD HAVE BEEN PAYABLE HAD THE PLACE OF INTERMENT BEEN THE HOME OR OFFICIAL STATION, WHICHEVER SHALL BE MORE DISTANT.

* * * * * * * PART IV- - TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AND

OTHER PERSONAL PROPERTY OF EMPLOYEES DYING DURING A PERIOD

OF ASSIGNMENT TO A POST OUTSIDE THE CONTINENTAL LIMITS OF

THE UNITED STATES

SECTION 8. WHEN AN EMPLOYEE DIES DURING A PERIOD OF ASSIGNMENT TO A POST OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR WHILE IN TRANSIT TO OR FROM SUCH POST, THE HEAD OF THE DEPARTMENT CONCERNED SHALL PAY THE COSTS OF TRANSPORTATION OF THE DEPENDENTS OF THE DECEDENT AND OF THE HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY OF THE DECEDENT AND HIS DEPENDENTS TO HIS FORMER HOME OR TO SUCH OTHER PLACE IN THE UNITED STATES NOT MORE DISTANT THAN THE FORMER HOME AS THE HEAD OF THE DEPARTMENT MAY DESIGNATE.

SECTION 9. TRANSPORTATION OF DEPENDENTS.--- THE COSTS OF TRANSPORTATION OF DEPENDENTS ALLOWABLE UNDER SECTION 8 OF THESE REGULATIONS SHALL INCLUDE THE ACTUAL COSTS OF TRANSPORTING SUCH OF THE DEPENDENTS OF THE DECEDENT AS ARE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES TO THE DESIGNATED DESTINATION, PROVIDED THAT THE COSTS SHALL NOT EXCEED THE COSTS OF TRANSPORTATION BY THE MOST DIRECT ROUTE FROM THE OFFICIAL STATION OF THE DECEASED EMPLOYEE TO SAID DESTINATION, AND PROVIDED THAT TRAVEL IS UNDERTAKEN DURING THE PERIOD OF ONE YEAR FROM THE DATE OF DEATH OF THE DECEDENT. * * *

SECTION 14. DEATH DURING PERIOD OF ABSENCE FROM DUTY.---WHEN AN EMPLOYEE DIES WHILE TEMPORARILY ABSENT FROM DUTY DURING A PERIOD OF TRAVEL ON OFFICIAL BUSINESS OR DURING THE PERIOD OF HIS ASSIGNMENT TO A POST OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, THE PROVISIONS OF THESE REGULATIONS SHALL APPLY, EXCEPT THAT THE AMOUNT ALLOWED FOR THE TRANSPORTATION OF THE REMAINS TO THE PLACE OF INTERMENT SHALL NOT EXCEED THE AMOUNT WHICH WOULD HAVE BEEN ALLOWABLE HAD DEATH OCCURRED AT THE POINT FROM WHICH THE DECEDENT DEPARTED ON SUCH TEMPORARY ABSENCE.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT THE EXPENSES AS REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER, TO THE EXTENT OTHERWISE AUTHORIZED BY THE STATUTE AND THE REGULATIONS, SUPRA, MAY BE PAID UNDER THE PROVISIONS OF THE SAID ACT OF JULY 8, 1940.