B-27929, OCTOBER 27, 1942, 22 COMP. GEN. 395

B-27929: Oct 27, 1942

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OR HAVE CREDITED TO HIS ACCOUNT. THE PAY AND ALLOWANCES TO WHICH HE WAS THEN OR THEREAFTER BECAME ENTITLED. ON THE BASIS OF PAY FOR A RANK TO WHICH AN OFFICER WAS ADVANCED AFTER BEING OFFICIALLY REPORTED MISSING WHERE IT WAS LATER DETERMINED THAT THE OFFICER HAD DIED PRIOR TO SUCH ADVANCEMENT IN RANK. AS FOLLOWS: THERE IS TRANSMITTED A VOUCHER STATED IN FAVOR OF MRS. ATTENTION IS INVITED TO PARAGRAPH 2 OF THE FIRST ENDORSEMENT. WHEREIN IT IS STATED THAT "THE SECRETARY OF THE NAVY DIRECTED THAT THE ACCOUNT OF THE LATE MAJOR ELROD BE SETTLED WITH FULL PAY AND ALLOWANCES TO INCLUDE JUNE 8. DATE ON WHICH INFORMATION WAS RECEIVED THAT HE DIED ON DECEMBER 23. IT WILL BE NOTED THAT TWO RATES OF PAY ARE GIVEN IN THE FIRST ENDORSEMENT REFERRED TO.

B-27929, OCTOBER 27, 1942, 22 COMP. GEN. 395

SIX MONTHS' DEATH GRATUITY - OFFICER ADVANCED IN RANK AFTER DATE OF DEATH SECTION 2 OF THE ACT OF MARCH 7, 1942, WHICH ENTITLED ANY PERSON IN ACTIVE SERVICE OFFICIALLY REPORTED MISSING, INTERNED, ETC., TO CONTINUE TO RECEIVE, OR HAVE CREDITED TO HIS ACCOUNT, THE PAY AND ALLOWANCES TO WHICH HE WAS THEN OR THEREAFTER BECAME ENTITLED, DOES NOT AUTHORIZE COMPUTATION OF THE SIX MONTHS' DEATH GRATUITY PAYMENT PROVIDED FOR IN THE ACT OF JUNE 4, 1920, AS AMENDED, ON THE BASIS OF PAY FOR A RANK TO WHICH AN OFFICER WAS ADVANCED AFTER BEING OFFICIALLY REPORTED MISSING WHERE IT WAS LATER DETERMINED THAT THE OFFICER HAD DIED PRIOR TO SUCH ADVANCEMENT IN RANK.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. TOM E. THRASHER, JR., U.S. MARINE CORPS, OCTOBER 27, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 4, 1942, AS FOLLOWS:

THERE IS TRANSMITTED A VOUCHER STATED IN FAVOR OF MRS. ELIZABETH ELROD, WIDOW AND BENEFICIARY OF MAJOR HENRY TALMAGE ELROD, U.S. MARINE CORPS, DECEASED, IN THE SUM OF $2,812.50. THE ATTACHED VOUCHER REPRESENTS CLAIM FOR DEATH GRATUITY UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, AS AMENDED BY THE ACT OF MAY 22, 1928, 45 STAT. 710, U.S. CODE, TITLE 34, SECTION 943, PROVIDING FOR THE PAYMENT OF "AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER" AT THE DATE OF HIS DEATH.

ATTENTION IS INVITED TO PARAGRAPH 2 OF THE FIRST ENDORSEMENT, DATED JULY 27, 1942, ON LETTER OF THE COMMANDANT, DATED JULY 13, 1942, WHEREIN IT IS STATED THAT "THE SECRETARY OF THE NAVY DIRECTED THAT THE ACCOUNT OF THE LATE MAJOR ELROD BE SETTLED WITH FULL PAY AND ALLOWANCES TO INCLUDE JUNE 8, 1942, DATE ON WHICH INFORMATION WAS RECEIVED THAT HE DIED ON DECEMBER 23, 1941.' IT WILL BE NOTED THAT TWO RATES OF PAY ARE GIVEN IN THE FIRST ENDORSEMENT REFERRED TO; ONE AS $375.00 PER MONTH, BEING THE RATE OF PAY TO WHICH THE LATE MAJOR ELROD WAS ENTITLED TO RECEIVE ON DECEMBER 23, 1941, AND ONE IN THE AMOUNT OF $468.75 PER MONTH, BEING THE RATE OF PAY TO WHICH THE LATE MAJOR ELROD WOULD HAVE BEEN ENTITLED TO RECEIVE ON JUNE 8, 1942. IT IS THIS LATTER RATE WHICH HAS BEEN USED AS A BASIS FOR STATING THE AMOUNT DUE THE WIDOW AND BENEFICIARY UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, AS AMENDED, SUPRA.

IN VIEW OF THE FOREGOING, DOUBT EXISTS AS TO THE CORRECT RATE OF PAY WHICH MAY BE USED IN PAYING DEATH GRATUITY ON THE ATTACHED VOUCHER, AND YOUR DECISION IS THEREFORE REQUESTED IN THE PREMISES.

THE AMOUNT OF THE VOUCHER, $2,812.50, EQUALS SIX TIMES $468.75, THE MONTHLY PAY OF A MAJOR, CONSISTING OF BASE PAY $250; LONGEVITY INCREASE $37.50; FOREIGN SHORE PAY $25, PLUS AVIATION INCREASE $156.25. IT STATED, ALSO, THAT AT THE TIME OF THE OFFICER'S DEATH, DECEMBER 23, 1941 HE WAS RECEIVING THE PAY OF A CAPTAIN, $200 PER MONTH; LONGEVITY INCREASE $30; FOREIGN SHORE PAY $20, PLUS AVIATION INCREASE AMOUNTING TO $125, TOTAL MONTHLY PAY OF $375.

IT APPEARS THAT HENRY T. ELROD ACCEPTED APPOINTMENT AS SECOND LIEUTENANT IN THE MARINE CORPS FEBRUARY 26, 1931; ACCEPTED APPOINTMENT AS FIRST LIEUTENANT NOVEMBER 20, 1934, AND AS CAPTAIN SEPTEMBER 8, 1937. IT IS STATED THAT THE OFFICER WAS APPOINTED A MAJOR (TEMPORARY) ON JANUARY 5, 1942. IT APPEARS FURTHER THAT HE WAS CARRIED OFFICIALLY IN A "MISSING" STATUS FROM DECEMBER 23, 1941, TO JUNE 8, 1942, THE DATE INFORMATION WAS RECEIVED TO THE EFFECT THAT HE DIED DECEMBER 23, 1941, WHILE ATTACHED TO MARINE FIGHTING SQUADRON 211, MARINE AIRCRAFT GROUP 21, SECOND MARINE AIRCRAFT WING, FLEET MARINE FORCE.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED 34 U.S.C. 943, PROVIDES, IN PERTINENT PART:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW * * * OF SUCH OFFICER, ENLISTED MAN, OR NURSE * * * AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * *

CLEARLY UNDER THE PROVISIONS OF THIS ACT THE GRATUITY PAYABLE TO THE BENEFICIARIES THEREIN DESCRIBED IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE PAY THAT THE OFFICER WAS RECEIVING AT THE TIME OF HIS DEATH. IT IS SUGGESTED, HOWEVER, AS EVIDENCE BY ENCLOSURES TRANSMITTED WITH YOUR LETTER, PARTICULARLY BY A COPY OF A LETTER OF THE COMMANDANT, U.S. MARINE CORPS, DATED JULY 17, 1942, THAT THE REPORTED DATE OF DEATH MAY BE THE DATE OF DEATH FOR THE PURPOSE OF ESTABLISHING A RIGHT TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, BUT THAT SUCH DATE SHOULD NOT BE CONSIDERED AS CONCLUSIVE FOR THE PURPOSE OF COMPUTING THE RATE OF PAY OF THE DECEASED OFFICER OR FOR THE PURPOSE OF MEASURING THE DURATION OF THE PAY STATUS SUBSEQUENT TO THE DATE THE PERSON IS REPORTED AS MISSING IN ACTION AND UNTIL IT IS DETERMINED HE DIED WHEN REPORTED AS MISSING IN ACTION.

IN THE AFORESAID LETTER OF JULY 17, 1942, IT IS STATED, IN PERTINENT PART:

3. MAJOR HENRY T. ELROD WAS A CAPTAIN WHEN HIS OFFICIAL "MISSING IN ACTION" STATUS BEGAN DECEMBER 23, 1941; HE WAS APPOINTED A TEMPORARY MAJOR IN THE MARINE CORPS JANUARY 5, 1942, BY THE PRESIDENT WHICH APPOINTMENT COULD NOT BE ACCEPTED BECAUSE OF HIS MISSING STATUS. IT IS THE OPINION OF THIS OFFICE THAT UNDER REFERENCES (A) AND (B) HE IS ENTITLED TO HAVE CREDITED TO HIS ACCOUNT THE PAY AND ALLOWANCES OF A MAJOR FROM JANUARY 5 TO JUNE 8, 1942.

4. IT APPEARS TO THIS OFFICE THAT IT WAS THE INTENT OF THE LAW ( PUBLIC LAW 490), AS DISCLOSED BY DISCUSSION DURING COMMITTEE HEARINGS OF CIRCUMSTANCES SUCH AS ARE ABOVE SET FORTH, THAT THE PERSONNEL CONCERNED SHOULD HAVE ALL PAY AND ALLOWANCES CONTINUED FOR THE ENTIRE PERIOD DURING WHICH THEY WERE CARRIED AS "MISSING" OR "CAPTURED" TO AND INCLUDING THE DATE OF RECEIPT OF EVIDENCE OF PRIOR DEATH BY THE HEAD OF THE DEPARTMENT CONCERNED. THE LAW EXPRESSLY PROVIDES THAT PERSONS CARRIED AS "MISSING" FOR TWELVE MONTHS SHALL HAVE ALL PAY AND ALLOWANCES CONTINUED FOR TWELVE MONTHS, AT THE EXPIRATION OF WHICH PERIOD A FINDING OF DEATH IS AUTHORIZED TO BE MADE, WHEREUPON THE DEATH GRATUITY BECOMES PAYABLE. THUS, TWELVE MONTHS PAY AND ALLOWANCES WILL ACCRUE AND THE SIX MONTHS' DEATH GRATUITY WILL BECOME PAYABLE IN ALL SUCH CASES WHERE THE CORPUS DELICTI IS NOT ESTABLISHED, THOUGH THE PROVISION FOR FINDING OF DEATH IS INDICATIVE OF THE ACKNOWLEDGED FACT THAT SUCH DEATH OCCURRED AT THE BEGINNING OF THE TWELVE MONTH PERIOD. THE FACT THAT THE BODIES WERE IN THE HANDS OF THE ENEMY DURING THE "MISSING" PERIOD AND INFORMATION CONCERNING THE REPORTED DEATHS WAS RELEASED BY THE ENEMY AFTER BEING WITHHELD FOR A PERIOD OF NEARLY SIX MONTHS SHOULD NOT SO OPERATE AS A RESULT IN DISCRIMINATION.

5. THE REPORTS OF THE RESPECTIVE DEATHS OF THE PERSONNEL NAMED ABOVE MUST, IN THE OPINION OF THIS OFFICE, BE REGARDED AS HEARSAY AND THE TESTS OF RELIABILITY OF HEARSAY EVIDENCE MUST BE APPLIED IN THE DETERMINATION OF ITS TRUSTWORTHINESS. ITS FAILURE TO MEET SUCH TESTS (PARTICULARLY ITS EMANATION FROM ENEMY SOURCES AND THE DIFFICULTY OF VERIFYING ITS RELIABILITY, AND EVEN ITS AUTHENTICITY) SHOULD RESULT INDENYING TO IT SUCH PROBATIVE VALUE AS, WITH NOTHING MORE, WOULD DEPRIVE SUCH PERSONNEL OF THE BENEFITS ACCORDED BY PUBLIC LAW NO. 490. UNUSUAL CIRCUMSTANCES, SUCH AS SURROUND THE STATUS OF THE PERSONNEL HEREIN NAMED, PROMPTED THE ENACTMENT OF AN UNUSUAL STATUTE (REFERENCE (A) ( WHICH CHANGED, UNDER SUCH CIRCUMSTANCES, THE EXISTING PRESUMPTIONS OF DEATH FOUNDED UPON ABSENCE. THE PURPOSE OF SUCH LAW IS THE PRESERVATION OF THE MORALE OF THE ARMED FORCES BY PROMOTING THE WELFARE OF DEPENDENTS OF THE PERSONNEL OF SUCH FORCES.

6. IT IS THEREFORE RECOMMENDED THAT, IN THE INTEREST OF THE SERVICE FROM A MORALE STANDPOINT AND IN THE INTEREST OF THE DEPENDENTS INVOLVED, THE SECRETARY APPROVE AND DIRECT THE SETTLEMENT OF THE ACCOUNTS OF THE OFFICER AND MEN HEREIN NAMED TO AND INCLUDING JUNE 8, 1942, IN THE WAKE ISLAND CASES, AND TO AND INCLUDING MAY 4, 1942, IN THE GUAM CASES; AND THE CREDITING IN SUCH SETTLEMENTS OF ALL PAY AND ALLOWANCES WHICH UNDER THE SPECIFIC TERMS OF REFERENCE (A) ARE REQUIRED TO ACCRUE DURING THE PERIOD EACH PERSON WAS OFFICIALLY CARRIED AS "MISSING" , AT THE RATE OF PAY TO WHICH EACH WAS ENTITLED AT THE BEGINNING OF SUCH ABSENCE OR TO WHICH EACH BECAME ENTITLED DURING SUCH PERIOD OF MISSING STATUS.

SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 144, PUBLIC LAW 490, PROVIDES:

SEC. 2. ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER: PROVIDED, THAT SUCH PERSON SHALL NOT HAVE BEEN OFFICIALLY REPORTED AS HAVING BEEN ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY: PROVIDED FURTHER, THAT EXPIRATION OF THE AGREED TERM OF SERVICE DURING THE PERIOD OF SUCH ABSENCE SHALL NOT OPERATE TO TERMINATE THE RIGHT TO RECEIVE SUCH PAY AND ALLOWANCES: AND PROVIDED FURTHER, THAT SHOULD PROPER AUTHORITY SUBSEQUENTLY DETERMINE THAT THE PERSON CONCERNED HAD BEEN ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY, SUCH PERSON SHALL BE INDEBTED TO THE GOVERNMENT IN THE AMOUNT FOR WHICH PAYMENTS HAVE BEEN MADE OR PAY AND ALLOWANCES CREDITED TO HIS ACCOUNT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT DURING SUCH ABSENCE.

SECTION 3 OF THE ACT PROVIDES FOR THE PAYMENT OF ALLOTMENT FOR THE SUPPORT OF DEPENDENTS AND FOR THE PAYMENT OF INSURANCE PREMIUMS FOR TWO PERIODS OF SIX MONTHS EACH FROM THE DATE OF COMMENCEMENT OF ABSENCE, NOTWITHSTANDING EXPIRATION OF THE DESIGNATED ALLOTMENT PERIOD, AND IN THE ABSENCE OF A DESIGNATED ALLOTTEE THE HEAD OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO DIRECT THAT AN ALLOTMENT BE PAID TO THE DEPENDENT; THAT FOR THE INITIAL PERIOD OF SIX MONTHS, UNLESS PRIOR DECISION AS TO STATUS IS MADE, A MONTHLY ALLOTMENT FOR SUPPORT OF THE DEPENDENT SHALL BE PAID WITHOUT REGARD TO THE FACT THAT THE SIX MONTHS' DEATH GRATUITY MAY BE PAID LATER; WITH FURTHER PROVISION THAT AT THE EXPIRATION OF THE INITIAL SIX MONTHS, NO FURTHER DECISION HAVING BEEN MADE AS TO THE STATUS OF THE MISSING PERSON, A PAYMENT OF ALLOTMENT SHALL CONTINUE FOR AN ADDITIONAL PERIOD NOT TO EXCEED SIX MONTHS; ANY PAYMENT PAID TO A DEPENDENT FOR A PERIOD SUBSEQUENT TO DATE OF DEATH, IF DEATH OCCURRED SUBSEQUENT TO THE EXPIRATION OF THE FIRST SIX MONTHS, TO BE DEDUCTED FROM THE SIX MONTHS' DEATH GRATUITY.

SECTION 5 OF THE ACT, 56 STAT. 145, PROVIDES THAT UPON EXPIRATION OF TWELVE MONTHS FROM THE DATE THE PERSON IS REPORTED MISSING, IN THE ABSENCE OF AN OFFICIAL REPORT OF DEATH OF THE MISSING PERSON, THE HEAD OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO MAKE A FINDING OF DEATH OF SUCH PERSON. SECTION 5 PROVIDES FURTHER:

* * * FOLLOWING A FINDING OF DEATH, THE SIX MONTHS' DEATH GRATUITY PROVIDED BY LAW IS AUTHORIZED TO BE PAID. IN THE EVENT OF THE LATER RETURN OF SUCH MISSING PERSON TO THE CONTROLLABLE JURISDICTION OF THE HEAD OF THE DEPARTMENT CONCERNED, THE PAY ACCOUNT OF SUCH PERSON SHALL BE REOPENED AND CHARGED WITH THE AMOUNT OF THE SIX MONTHS' DEATH GRATUITY WHICH MAY HAVE BEEN PAID: * * *.

OTHER PERTINENT SECTIONS OF THE ACT, 56 STAT. 145, 146, ARE:

SEC. 9. WITHIN THE SCOPE OF THE AUTHORITY GRANTED BY THIS ACT, THE DETERMINATION BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH PERSON AS HE MAY DESIGNATE, OF THE STATUS OF A PERSON IN THE MILITARY OR NAVAL FORCES, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, THE PUBLIC HEALTH SERVICE, OR CIVILIAN OFFICERS OR EMPLOYEES AS DEFINED IN PARAGRAPH (A) (3) OF SECTION 1 OF THIS ACT, OR HIS DIRECTION RELATIVE TO CONTINUANCE, TEMPORARY SUSPENSION, OR RESUMPTION OF PAYMENT OF PAY AND ALLOWANCES, OR FINDING OF DEATH, SHALL BE CONCLUSIVE.

SEC. 11. THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH PERSON AS HE MAY DESIGNATE, IS AUTHORIZED TO SETTLE THE ACCOUNTS OF PERSONS FOR WHOSE ACCOUNT PAYMENTS HAVE BEEN MADE PURSUANT TO THE PROVISIONS OF SECTIONS 2 TO 7, BOTH INCLUSIVE, OF THIS ACT, AND THE ACCOUNTS OF SURVIVORS OF CASUALTIES TO SHIPS, STATIONS AND MILITARY INSTALLATIONS WHICH RESULT IN LOSS OR DESTRUCTION OF DISBURSING RECORDS, AND SUCH SETTLEMENTS SHALL BE CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN EFFECTING SETTLEMENTS OF THE ACCOUNTS OF DISBURSING OFFICERS.

THE PURPOSE AND INTENT OF SECTION 2 OF THE ACT OF MARCH 7, 1942, ARE TO AUTHORIZE CONTINUATION OF PAY AND ALLOWANCES TO THE PERSONS THEREIN DESCRIBED FROM THE DATE OF ABSENCE UNTIL A DECISION HAS BEEN MADE BY THE HEAD OF THE DEPARTMENT CONCERNED AS TO THE MISSING PERSON'S STATUS. WHERE THE STATUS OF THE PERSON IS SUCH THAT PAYMENT MAY NOT BE MADE TO HIM PERSONALLY HIS ACCOUNT IS TO BE CREDITED WITH THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR WHICH MAY BECOME DUE THEREAFTER. THE CREDIT CONTEMPLATED BY THIS SECTION 2 IS A CURRENT CREDIT RUNNING FROM DAY TO DAY UNTIL THE STATUS OF THE MISSING PERSON IS DEFINITELY DETERMINED BY DEATH OR OTHERWISE AND, IF FROM SUCH CREDITED PAY THE ALLOTMENT PAYMENTS AUTHORIZED BY SECTION 3 OF THE ACT HAVE BEEN MADE CURRENTLY FOR A PERIOD SUBSEQUENT TO THE MISSING PERSON'S DEATH, SUCH PAYMENTS ARE VALIDATED TO THE EXTENT OTHERWISE SUBSEQUENTLY PROVIDED. THE OBVIOUS PURPOSE OF THE AUTHORIZATION CONTAINED IN SECTION 2 IS TO PROVIDE AND MAINTAIN FOR A FIXED PERIOD PROMPT CURRENT PAYMENT WHICH THE ALLOTMENT MAY BE CONTINUED OR INITIATED (WHERE THE ABSENT PERSON MAY NOT BE PAID PERSONALLY) SOLELY BY REASON OF THE UNCERTAIN STATUS OF SUCH PERSON AND, IF ACCOUNTS HAVE BEEN CREDITED AND ALLOTMENT PAYMENTS MADE THEREFROM UNDER SECTION 3 SUBSEQUENT TO THE DEATH OF SUCH PERSON AS FOUND (WHETHER CONCLUSIVELY OR ADMINISTRATIVELY DETERMINED) UNDER SECTION 5, PAYMENTS ALTHOUGH CONTRARY TO LAW, ARE REQUIRED TO BE PASSED TO THE CREDIT OF THE DISBURSING OFFICER CONCERNED UNDER THE PROVISIONS OF THE ACT. BUT THERE IS NO PROVISION IN THE LAW, EITHER EXPRESS OR IMPLIED, SUGGESTING THAT A FINDING OF DEATH OPERATES TO AUTHORIZE THE COMMENCEMENT INITIALLY OF PAYMENTS, OR AS STATED IN SECTION 2 OF THE ACT,"TO HAVE CREDITED TO HIS ACCOUNT" FROM THE DATE OF DEATH TO THE DATE OF THE FINDING THEREOF SO AS TO CONFER ANOTHER GRATUITY UPON THE BENEFICIARY OF THE DECEASED PERSON IN ADDITION TO THE SIX MONTHS' GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920. THE PROVISIONS PERMITTING PAYMENTS DURING ABSENCE CONTEMPLATE PAYMENTS FROM THE DATE THE PERSON IS REPORTED TO BE MISSING BUT, IF SUCH PAYMENTS HAVE NOT BEEN MADE OR THE MISSING PERSON'S ACCOUNT HAS NOT BEEN CREDITED UNTIL AFTER THE DATE OF HIS DEATH HAS BEEN DETERMINED, IT IS THEN TOO LATE TO INITIATE A CREDIT OF ILLEGAL PAY AND ALLOWANCES DURING THAT INTERIM. AS TO PROMOTION, IT IS SETTLED LAW THAT IN THE ABSENCE OF STATUTORY AUTHORITY SO PROVIDING, A PROMOTION AFTER THE DEATH OF AN OFFICER DOES NOT AUTHORIZE PAY IN THE PROMOTED GRADE OR ANY OTHER. ALTHOUGH SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, PUBLIC LAW 639, CITED IN THE CORRESPONDENCE, PROVIDES THAT PERSONS TEMPORARILY APPOINTED THEREUNDER SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT AND SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE, THE "APPOINTMENT" OR "PROMOTION" OF A MISSING PERSON SUBSEQUENT TO HIS DEATH IS NOT EFFECTIVE TO INCREASE HIS PAY, UNLESS POSSIBLY PAYMENTS THEREUNDER WHICH WERE MADE PRIOR TO A FINDING UNDER THE ACT OF MARCH 7, 1942, THAT HE WAS DEAD. POSTHUMOUS APPOINTMENTS ARE SPECIFICALLY PROVIDED ELSEWHERE WITH A PROHIBITION AGAINST THE PAYMENT OF ANY BONUS GRATUITY, PAY OR ALLOWANCES BY VIRTUE THEREOF. SEE PUBLIC LAW 680, APPROVED JULY 28, 1942, 56 STAT. 722.

ON THE FACTS PRESENTED THE SIX MONTHS' GRATUITY PAYMENT TO THE BENEFICIARY OF THE DECEASED OFFICER UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, SHOULD BE COMPUTED ON THE PAY TO WHICH THE OFFICER WAS LAWFULLY ENTITLED AT THE TIME OF HIS DEATH DECEMBER 23, 1941. THE STANDARD FORM 1057 EXECUTED BY THE BENEFICIARY AND ABSTRACTS FROM THE SERVICE RECORD OF THE OFFICER WHICH WERE INCLUDED AS ONE OF THE ENCLOSURES WITH YOUR LETTER ARE RETURNED HEREWITH.