B-28386, SEPTEMBER 7, 1942, 22 COMP. GEN. 192

B-28386, SEPTEMBER 7, 1942, 22 COMP. GEN. 192

PAY OF PERSONS MISSING IN ACTION, ETC. - JURISDICTION; FLYING PAY CONTINUANCE SECTION 11 OF THE ACT OF MARCH 7, 1942, WHICH MAKES CONCLUSIVE THE SETTLEMENT BY THE HEAD OF THE DEPARTMENT CONCERNED, OR PERSONS DESIGNATED BY HIM, OF ACCOUNTS OF PERSONS MISSING IN ACTION, CAPTURED BY THE ENEMY, ETC., CONTEMPLATES THAT THE SETTLEMENT WHICH IS CONCLUSIVE IS WITH RESPECT TO DATES AND DEBITS AND CREDITS AT LAWFUL RATES, AND QUESTIONS AS TO THE LEGALITY OF THE PAY RATES, ETC., ARE FOR DETERMINATION BY THIS OFFICE. UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, PROVIDING THAT ANY PERSON IN ACTIVE SERVICE WHO IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY SHALL BE ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE BEGINNING OF THE ABSENCE, AN OFFICER RECEIVING EXTRA PAY FOR FLIGHT DUTY WHEN REPORTED AS ABSENT FOR ONE OF THE CAUSES MENTIONED IN THE STATUTE IS ENTITLED TO CONTINUE TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT SUCH ADDITIONAL PAY DURING THE PERIOD SO ABSENT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 7, 1942:

I HAVE YOUR LETTER OF AUGUST 21, 1942, AS FOLLOWS;

REFERENCE IS MADE TO THE ACT OF MARCH 7, 1942 ( PUBLIC LAW 490 - 77TH CONGRESS), WHICH STATES IN PART AS FOLLOWS:

"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 HEREAFTER: * * *.'

EXECUTIVE ORDER NO. 9195, JULY 7, 1942, WHICH PRESCRIBES THE NUMBER OF FLIGHTS REQUIRED TO QUALIFY PERSONNEL FOR EXTRA PAY, APPLIES TO PERSONS WHO ARE IN ACTIVE SERVICE AT POST OF DUTY. PARAGRAPH 10 (B) THEREOF EXTENDS TO SIX MONTHS THE PERIOD IN WHICH FLIGHTS MAY BE PERFORMED BY PERSONNEL WHO, DUE TO COMBAT CONDITIONS, ARE UNABLE TO PERFORM THE REQUIRED FLIGHTS. THE EXECUTIVE ORDER DOES NOT COVER PERSONS WHO ARE ABSENT FROM POSTS OF DUTY AS MISSING, INTERNED, OR PRISONERS OF WAR, AND IT IS BELIEVED THAT IT COULD NOT PROPERLY DEAL WITH PAY RIGHTS OF SUCH PERSONNEL, SINCE ITS SCOPE IS TO DEFINE "REGULAR AND FREQUENT AERIAL FLIGHTS" WITHIN THE PAY READJUSTMENT ACTS OF 1922 AND 1942.

A DECISION IS, THEREFORE, REQUESTED AS TO WHETHER MILITARY PERSONNEL, OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY OR CAPTURED BY THE ENEMY ARE ENTITLED TO HAVE FLYING PAY CREDITED TO THEIR ACCOUNTS, IF SUCH PERSONNEL WERE AT THE TIME OF DISAPPEARANCE, INTERNMENT OR CAPTURE, REQUIRED TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS (ON FLIGHT DUTY).

SECTION 2 OF PUBLIC LAW 490, APPROVED MARCH 7, 1942, 56 STAT. 144, 146, IS PARTLY QUOTED IN YOUR LETTER AND SECTION 11 OF THE SAME ACT PROVIDES:

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.

REASONABLY, SECTION 11 CONTEMPLATES THAT ONLY THE PAY AND ALLOWANCES WHICH ARE LAWFUL UNDER THE OFFICER'S APPOINTMENT AND ASSIGNMENT ARE AUTHORIZED TO BE CREDITED AND THAT THE SETTLEMENT OF THE ACCOUNT WHICH IS CONCLUSIVE IS WITH RESPECT TO DATES, DEBITS AND CREDITS AT THE LAWFUL RATES. OBVIOUSLY, THE ACCOUNT OF A PRIVATE WHICH IS CREDITED WITH THE PAY AND ALLOWANCES OF A MAJOR GENERAL WAS NEVER INTENDED TO BE CONCLUSIVE; IT IS ONLY THE LAWFUL PAY AND ALLOWANCES OF THE GRADE, THE DATES AND DEBITS WHICH ARE CONCLUSIVE. AS SO UNDERSTOOD, THIS OFFICE HAS JURISDICTION OF THE QUESTION YOU HAVE PRESENTED.

THE LAW IS PLAIN THAT ONE FALLING WITHIN SECTION 2 OF THE ACT IS 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 ABSENCE. IF AT THE BEGINNING OF THE ABSENCE AS DESCRIBED IN SECTION 2 THE OFFICER WAS ENTITLED TO PAY FOR FLIGHT DUTY--- THAT IS, ASSIGNED TO DUTY REQUIRING PARTICIPATION IN REGULAR AND FREQUENT FLIGHTS--- IT IS PROPER THAT CREDIT OF THAT ADDITIONAL PAY BE ENTERED IN HIS ACCOUNTS.