B-31756, APRIL 30, 1943, 22 COMP. GEN. 1004

B-31756, APRIL 30, 1943, 22 COMP. GEN. 1004

SETTLEMENT OF ACCOUNTS OF SEAMEN, ETC., OF LOST VESSEL WHEN THE LAST QUARTERLY RETURN OF THE PAYMASTER OF A UNITED STATES VESSEL, WHICH HAS BEEN LOST OR DESTROYED TOGETHER WITH THE DISBURSING RECORDS, DOES NOT AFFORD THIS OFFICE A BASIS FOR SETTLING, IN ACCORDANCE WITH THE FIRST SENTENCE OF SECTION 287, REVISED STATUTES, THE ACCOUNT OF A SEAMAN OR OTHER PERSON ABOARD THE VESSEL AT THE TIME OF ITS LOSS OR DESTRUCTION, THE LAST QUARTERLY RETURN OF THE PAYMASTER ACTUALLY CARRYING THE ACCOUNT OF SUCH SEAMAN OR PERSON MAY BE USED AS A BASIS FOR SETTLING HIS ACCOUNT "ON PRINCIPLES OF EQUITY AND JUSTICE" AS AUTHORIZED BY THE SECOND SENTENCE OF SAID SECTION 287. WHERE THE ACCOUNT OF A DECEASED ENLISTED MAN WHO WAS SERVING ABOARD A NAVAL VESSEL, AND DIED, AT THE TIME OF ITS LOSS OR DESTRUCTION, TOGETHER WITH DISBURSING RECORDS, ON A KNOWN DATE IS TO BE SETTLED BY THIS OFFICE PURSUANT TO SECTION 287, REVISED STATUTES, HIS ACCOUNT SHOULD BE CREDITED WITH PAY ON THE BASIS THAT HE WAS PAID ON THE 5TH OR THE 20TH OF THE MONTH (THE USUAL PAY DAYS ABOARD NAVAL VESSELS), AS THE CASE MAY BE, TO INCLUDE THE HALF MONTH ENDING ON THE PRECEDING 30TH OR 15TH OF THE MONTH, IN THE ABSENCE OF EVIDENCE (SUCH AS THE STATEMENTS OF SURVIVORS) TO THE CONTRARY. IN SETTLING, PURSUANT TO SECTION 287, REVISED STATUTES, THE ACCOUNT OF A DECEASED MARINE CORPS ENLISTED MAN WHO DIED WHEN THE NAVAL VESSEL TO WHICH HE WAS ATTACHED WAS LOST, TOGETHER WITH THE DISBURSING RECORDS, ON A KNOWN DATE, IT WILL BE ASSUMED THAT FOR THE PERIOD FROM THE LAST DAY OF THE QUARTER FOR WHICH RECORDS ARE AVAILABLE TO THE DATE THROUGH WHICH HE WAS LAST PAID HE DREW IN CASH THE SAME PERCENTAGE OF PAY, AVAILABLE FOR WITHDRAWAL IN CASH, ACCRUING OVER SUCH PERIOD AS HE HAD DRAWN IN THE LAST QUARTER FOR WHICH RECORDS ARE AVAILABLE; AND THAT HE DID NOT DRAW ANY PART OF THE BALANCE REMAINING TO HIS CREDIT AS OF THE END OF SUCH QUARTER, OR ANY PART OF THE PAY ACCRUING FROM THE DATE TO WHICH HE WAS LAST PAID TO THE DATE OF HIS DEATH. 26 COMP. DEC. 336, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO JOHN AND MARY ELIZABETH STEELE, APRIL 30, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 3, 1942, REQUESTING REVIEW OF YOUR CLAIM FOR THE ARREARS OF PAY DUE YOUR SON, THE LATE JOHN MARTIN STEELE, AS PRIVATE, U.S. MARINE CORPS, AT DATE OF DEATH, MAY 8, 1942, AS ALLOWED BY SETTLEMENT CERTIFICATE NO. 10703543, DATED NOVEMBER 28, 1942, WHEREIN THE AMOUNT OF $1.70 FOUND DUE IN THE ACCOUNT OF THE DECEDENT WAS MADE PAYABLE TO YOU AS FATHER AND MOTHER IN EQUAL PARTS. YOU STATE THE AMOUNT FOUND DUE MUST BE INCORRECT, AS HE WOULD HAVE HAD AT LEAST EIGHT DAYS' PAY DUE FROM MAY 1 TO 8, 1942, AND, ALSO, YOU EXPRESS DOUBT THAT HE RECEIVED HIS PAY FOR THE MONTH OF APRIL, 1942.

THE RECORDS SHOW THE LATE PRIVATE STEELE ENLISTED IN THE U.S. MARINE CORPS ON DECEMBER 29, 1941, AND WAS KILLED IN ACTION ON MAY 8, 1942. THE DATE OF HIS DEATH HE WAS A MEMBER OF THE MARINE DETACHMENT, U.S.S. LEXINGTON, WHICH VESSEL WAS SUNK AS A RESULT OF ENEMY ACTION AND THE DISBURSING RECORDS WERE DESTROYED.

THERE IS ON FILE IN THIS OFFICE ORIGINAL VOUCHER NO. 2620, ACCOUNT OF W. W. DAVIDSON, MAJOR, A.P.M., USMC, FOR THE MONTH OF MARCH, 1942. THE VOUCHER SHOWS THAT JOHN M. STEELE WAS CREDITED THEREON WITH PAY AS A PRIVATE FROM DECEMBER 29, 1941, TO MARCH 31, 1942, INCLUSIVE, THREE MONTHS AND TWO DAYS AT $21 PER MONTH, AMOUNTING TO $64.40 AND ADDITIONAL PAY FROM FEBRUARY 23, 1942, DATE OF DEPARTURE FROM THE CONTINENTAL UNITED STATES, AT $4.20 PER MONTH (20 PERCENTUM OF BASE PAY), AMOUNTING TO $5.32, OR A TOTAL CREDIT OF $69.72. HIS ACCOUNT WAS CHARGED WITH NAVY HOSPITAL FUND AT $0.20 PER MONTH, $0.61, AND FOR INDEBTEDNESS TO THE POST EXCHANGE IN THE AMOUNT OF $11. HIS ACCOUNT WAS CHARGED FOR ALLOTMENT FOR FEBRUARY AND MARCH, 1942, FOR NATIONAL SERVICE INSURANCE AT $3.30 PER MONTH OR $6.60 AND FOR MONEY WHICH HE DREW ON SPECIAL MONEY REQUISITIONS, $10 ON MARCH 6, 1942, $25 ON MARCH 20, 1942, AND $16 ON MARCH 30, 1942, TOTALING $51, AND LEAVING A BALANCE TO HIS CREDIT ON MARCH 31, 1942, OF $0.51.

IN THE SETTLEMENT OF ACCOUNTS OF ENLISTED MEN OF THE NAVY AND MARINE CORPS, SERVING ON BOARD ANY VESSEL IN THE EMPLOY OF THE UNITED STATES WHICH, BY ANY CASUALTY, OR IN ACTION WITH THE ENEMY, HAS BEEN SUNK OR OTHERWISE DESTROYED AND THE ROLLS AND ACCOUNTS OF SAID VESSEL ARE LOST, THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED UNDER THE PROVISIONS OF SECTION 287 OF THE REVISED STATUTES, 34 U.S.C. 954, TO ASSUME THE LAST QUARTERLY RETURN OF THE PAYMASTER OF ANY SUCH VESSEL AS THE BASIS FOR THE COMPUTATION OF THE SUBSEQUENT CREDITS TO THOSE ON BOARD TO DATE OF SUCH LOSS, IF THERE BE NO OFFICIAL EVIDENCE TO THE CONTRARY, AND "* * * WHERE SUCH QUARTERLY RETURN HAS, FROM ANY CAUSE, NOT BEEN MADE, THE ACCOUNTING OFFICERS ARE AUTHORIZED TO ADJUST AND SETTLE SUCH ACCOUNTS ON PRINCIPLES OF EQUITY AND JUSTICE.' THE LAST QUARTERLY RETURN OF THE PAYMASTER OF THE U.S.S. LEXINGTON DOES NOT AFFORD A BASIS FOR COMPUTING THE PAY OF YOUR SON AS HIS ACCOUNT WAS NOT CARRIED BY THE PAYMASTER OF SUCH VESSEL IN HIS LAST QUARTERLY RETURN--- HAVING BEEN THEN A MEMBER OF COMPANY D, MARINE BARRACKS, PEARL HARBOR, T.H. HOWEVER, THE RETURN OF THE PAYMASTER ACTUALLY CARRYING HIS ACCOUNT SIMILARLY MAY BE RESORTED TO AS A BASIS FOR SETTLEMENT ON PRINCIPLES OF EQUITY AND JUSTICE.

THE SETTLEMENT OF YOUR CLAIM IN THIS CASE FOLLOWED GENERALLY THE RULES INDICATED IN DECISION OF OCTOBER 30, 1919, 26 COMP. DEC. 336, WITH RESPECT TO THE SETTLEMENT OF THE ACCOUNTS OF PERSONS ON THE LOST U.S.S. CYCLOPS. THAT DECISION IS IN PART AS FOLLOWS:

THE LAST QUARTERLY RETURN OF THE CYCLOPS WAS FOR THE QUARTER ENDED SEPTEMBER 30, 1917. THAT RETURN IS TO BE TAKEN AS THE BASIS OF COMPUTATION "IF THERE BE NO OFFICIAL EVIDENCE TO THE CONTRARY.' AUTHORIZING SUBSEQUENT CREDITS, THE LAW MEANS CREDITS TO BE PAID, AND NECESSARILY REQUIRES TAKING THE DEBITS ALSO AS THEY APPEAR IN THE LAST QUARTERLY RETURN "IF THERE BE NO OFFICIAL EVIDENCE TO THE CONTRARY.'

ALLOTMENTS TO BE DEBITED IN THE ACCOUNT TO BE STATED WILL NECESSARILY BE SUCH AS THE RECORD SHOWS AS LEGALLY PAID. WHERE THE QUARTERLY ACCOUNT SHOWS DRAWINGS IN CASH WITHOUT SHOWING THEIR APPLICATION, AND THE RECORDS SHOW FOR THE PERIOD OF THE ADJUSTED ACCOUNT AN ALLOTMENT PAID, THE DRAWINGS IN CASH TO BE DEBITED IN SUCH ADJUSTED ACCOUNT SHOULD BE IN THE SAME PERCENTAGE TO THE EARNINGS THEREIN AFTER DEDUCTION OF THE ALLOTMENT,AS THE DRAWING IN CASH REPRESENTED TO THE EARNINGS IN THE QUARTERLY ACCOUNT. A CASH BALANCE FROM THE PREVIOUS QUARTER SHOULD NOT ENTER INTO THE COMPUTATION OF THE ADJUSTED ACCOUNT BUT IS TO BE ADDED AFTER DEBITS AND CREDITS HAVE BEEN ADJUSTED.

THE CYCLOPS WAS NEVER HEARD FROM AFTER SAILING MARCH 4, 1918, FROM THE BARBADOS FOR BALTIMORE. THERE WERE NO REPORTED SURVIVORS AND THE ACTUAL DATE THE VESSEL AND THOSE ON BOARD WERE LOST WAS NEVER KNOWN. HOWEVER, FOR THE PURPOSE OF SETTLING THE ACCOUNTS OF NAVY PERSONNEL ON BOARD PURSUANT TO SAID SECTION 287, REVISED STATUTES, THE PRESUMPTIVE DATE OF LOSS WAS FIXED AS MARCH 31, 1918, AND APPARENTLY, IT WAS ASSUMED THAT THE CREW WAS LAST PAID TO THAT DATE. BUT AS NAVY MEN GENERALLY MAY DRAW ALL, NONE, OR ANY PART OF THEIR ACCRUED PAY ON PAY DAY, THERE WAS NO MEANS OF KNOWING WHAT PART OF HIS PAY EACH INDIVIDUAL HAD DRAWN OVER THE PERIOD SINCE THE LAST AVAILABLE RECORD. IN THE ABSENCE OF OTHER FAIR BASIS FOR SETTLEMENT IT WAS ASSUMED THAT EACH INDIVIDUAL HAD DRAWN IN CASH OVER THE PERIOD IN QUESTION THE SAME PERCENTAGE OF PAY ACCRUING OVER SUCH PERIOD AND AVAILABLE FOR WITHDRAWAL IN CASH AS HE HAD DRAWN IN THE LAST QUARTER FOR WHICH RECORDS WERE AVAILABLE.

WHILE THAT RULE FOR FIXING THE AMOUNT OF PAY DRAWN BY A MAN OVER THE PERIOD FOR WHICH THE ACCOUNT IS TO BE SETTLED APPEARS GENERALLY FAIR AND EQUITABLE AND IS FOR APPLICATION IN THE ABSENCE OF OTHER EVIDENCE, THERE WOULD APPEAR TO BE NO REASON FOR ASSUMING IN CASES LIKE THE PRESENT ONE, WHERE THE ACTUAL DATE OF DEATH IS KNOWN, THAT THE MAN WAS LAST PAID TO THAT DATE, WHERE THERE MAY BE EVIDENCE OTHERWISE OR BETTER REASON FOR ASSUMING OTHERWISE.

THE FOLLOWING INSTRUCTIONS ARE CONTAINED IN ARTICLE 2161 OF THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL RESPECTING THE PAYMENT OF NAVY ENLISTED PERSONNEL:

1. AUTHORITY FOR PAYMENTS AND AMOUNTS ALLOWED.---

(B) EACH MEMBER OF THE CREW AND THE MARINE DETACHMENT OF A SHIP, EXCEPT SUCH AS MAY BE IN CONFINEMENT AS PUNISHMENT, SERVING SENTENCE, OR AWAITING TRIAL, SHALL BE ALLOWED TO DRAW TWICE A MONTH (ON APPROXIMATELY THE 5TH AND 20TH OF THE MONTH) SUCH MONEY AS HE MAY HAVE DUE HIM. * * *

2. SEMIMONTHLY PAY DAYS.--- MONEY SHALL BE PAID ON THE 5TH AND 20TH OF EACH MONTH, UNLESS THOSE DATES FALL ON SUNDAY OR A LEGAL HOLIDAY, OR UNLESS FOR ANY OTHER REASON IT IS NOT PRACTICABLE TO PAY ON THESE DATES, IN WHICH CASES IT WILL BE PAID AT SUCH TIME AS MAY BE DIRECTED BY THE COMMANDING OFFICER.

IN VIEW OF THESE INSTRUCTIONS AND THE USUAL PRACTICE IN THAT RESPECT, IT WOULD SEEM REASONABLE TO ASSUME, IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, THAT A PERSON SERVING ON BOARD A NAVAL VESSEL ON THE FIFTH OR TWENTIETH OF ANY MONTH WAS LAST PAID ON THAT DATE TO INCLUDE THE HALF MONTH ENDING ON THE PRECEDING THIRTIETH OR FIFTEENTH OF A MONTH, AS THE CASE MIGHT BE, AND WHERE HE DIED BEFORE THE NEXT SUCCEEDING FIFTH OR TWENTIETH, IT WOULD SEEM REASONABLE TO ASSUME THAT HE HAD NOT AGAIN BEEN PAID OR DRAWN ANY MONEY AND, THEREFORE, THAT HIS ACCOUNT SHOULD BE CREDITED WITH FULL PAY BEGINNING WITH THE FIRST OF THE MONTH WHEN HE DIED BEFORE THE TWENTIETH, AND BEGINNING WITH THE SIXTEENTH OF THE MONTH WHEN HE DIED AFTER THE TWENTIETH BUT BEFORE THE FIFTH OF THE NEXT MONTH. SOME CASES, OF COURSE, ALTHOUGH THE PAY RECORDS ARE LOST, THERE MAY BE STATEMENTS OF SURVIVORS OR OTHER EVIDENCE AVAILABLE AS TO WHEN AND TO WHAT DATE THE PERSONNEL ON THE VESSEL WERE PAID BEFORE SUCH LOSS, WHICH SHOULD BE USED AS A BASIS FOR SETTLEMENT RATHER THAN INDULGING A PRESUMPTION THAT THEY WERE PAID ON THE USUAL PAY DAY. IN THE PRESENT CASE, A REPORT DATED FEBRUARY 18, 1943, FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, IS, IN PART, AS FOLLOWS:

IN YOUR LETTER OF JANUARY 28, 1943, FILE B-31756, YOU REQUEST INFORMATION AS TO WHETHER, IN THE SETTLEMENT OF ACCOUNTS OF SURVIVORS OF CASUALTIES TO SHIPS UNDER AUTHORITY OF SECTION 11 OF PUBLIC LAW 490 OF MARCH 7, 1942, A DETERMINATION HAS BEEN MADE AS TO THE DATE THE ENLISTED MEN OF THE U.S.S. LEXINGTON WERE LAST PAID.

THE FACTS BEFORE THE NAVY DEPARTMENT CONCERNING PERSONNEL OF THE LEXINGTON AIR GROUP, WHO WERE ACTUALLY ON BOARD THE SHIP ON MAY 8, 1942, SHOW THAT BOTH OFFICERS AND MEN OF THE AIR GROUP WERE LAST PAID ON MAY 1, 1942 FOR PAY AND ALLOWANCES WHICH HAD ACCRUED TO APRIL 30, 1942. THIS INFORMATION WAS OBTAINED FROM THE CURRENT ORIGINAL MONEY LIST SALVAGED BY THE DISBURSING OFFICER, ENSIGN (NOW LIEUTENANT) C. M. WILLIAMS, SC-V (G), USNR. FURTHER INFORMATION HAS INDICATED THAT OFFICERS AND ENLISTED MEN OF THE U.S.S. LEXINGTON, ALSO WERE PAID ON THE SAME DATE BY ENSIGN R. H. ZWIERSCHKE, SC-V (G), USNR, DECEASED.

IN VIEW OF THIS REPORT AND WHAT HAS BEEN SAID HEREIN, THE CONCLUSION APPEARS JUSTIFIED THAT YOUR SON HAD BEEN LAST PAID TO INCLUDE APRIL 30, 1942, WHEN HE DIED ON MAY 8, 1942. IT IS ASSUMED THAT HE DID NOT DRAW ANY PART OF THE BALANCE REMAINING TO HIS CREDIT AS OF MARCH 31, 1942, AFTER BEING PAID TO INCLUDE THAT DATE, OR ANY PART OF THE PAY ACCRUING FOR THE PERIOD MAY 1 TO MAY 8, 1942. THE PAY RECORDS FOR THE QUARTER ENDING MARCH 31, 1942, SHOW THAT HE DREW 99 PERCENTUM OF HIS PAY FOR SUCH PERIOD AVAILABLE FOR WITHDRAWAL IN CASH AFTER THE DEDUCTION OF ALLOTMENTS, ETC. FOLLOWING THE PRINCIPLES OF THE DECISION CITED ABOVE, 26 COMP. DEC. 336, IT IS ASSUMED THAT HE DREW THE SAME PROPORTION OF HIS AVAILABLE PAY FOR THE PERIOD APRIL 1 TO 30, 1942.

ACCORDINGLY, YOU ARE ADVISED THAT A SUPPLEMENTARY SETTLEMENT IN YOUR FAVOR WILL ISSUE IN DUE COURSE RESTATING THE ACCOUNT ON THE BASIS HEREIN SET FORTH.