B-37674, NOVEMBER 9, 1943, 23 COMP. GEN. 349

B-37674: Nov 9, 1943

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THE FACT THAT AN ARMY OFFICER WAS SERVING IN THE UNITED STATES AT THE TIME HE WAS KILLED AS A RESULT OF A MILITARY OR NAVAL OPERATION WOULD NOT NECESSARILY. PRECLUDE PAYMENT OF THE TRANSPORTATION AUTHORIZED UNDER SECTION 12 OF THE SAID ACT FOR DEPENDENTS OF PERSONS ON ACTIVE DUTY WHO ARE KILLED AS THE RESULT OF "MILITARY OR NAVAL OPERATIONS.'. WAS ENGAGED IN TRAINING ACTIVITIES TO RENDER HIMSELF OR OTHERS FIT FOR COMBAT SERVICE. AUTHORIZING TRANSPORTATION FOR DEPENDENTS OF ANY PERSON ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS INJURED. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON FOUR VOUCHERS SUBMITTED THEREWITH. THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS INJURED.

B-37674, NOVEMBER 9, 1943, 23 COMP. GEN. 349

TRANSPORTATION - DEPENDENTS OF SERVICE PERSONNEL KILLED IN "MILITARY OPERATIONS" IN VIEW OF THE PROVISION IN SECTION 1 (A) OF THE ACT OF MARCH 7, 1942, DEFINING THE TERM PERSON" AS USED THEREIN AS INCLUDING COMMISSIONED OFFICERS WHEREVER SERVING, THE FACT THAT AN ARMY OFFICER WAS SERVING IN THE UNITED STATES AT THE TIME HE WAS KILLED AS A RESULT OF A MILITARY OR NAVAL OPERATION WOULD NOT NECESSARILY, OF ITSELF, PRECLUDE PAYMENT OF THE TRANSPORTATION AUTHORIZED UNDER SECTION 12 OF THE SAID ACT FOR DEPENDENTS OF PERSONS ON ACTIVE DUTY WHO ARE KILLED AS THE RESULT OF "MILITARY OR NAVAL OPERATIONS.' AN ARMY OFFICE WHO, AT THE TIME OF HIS DEATH, OR INJURY RESULTING IN DEATH, WAS ENGAGED IN TRAINING ACTIVITIES TO RENDER HIMSELF OR OTHERS FIT FOR COMBAT SERVICE--- DUTIES DIRECTLY CONNECTED WITH THE MILITARY OR WARLIKE FUNCTIONS OF THE WAR DEPARTMENT, AS DISTINGUISHED FROM ITS ADMINISTRATIVE FUNCTIONS--- MAY BE REGARDED AS HAVING DIED AS A RESULT OF "MILITARY * * OPERATIONS" WITHIN THE MEANING OF SECTION 12 OF THE ACT OF MARCH 7, 1942, AUTHORIZING TRANSPORTATION FOR DEPENDENTS OF ANY PERSON ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS INJURED, DEAD, OR MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, ETC. 21 COMP. GEN. 1090, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, NOVEMBER 9, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 10, 1943, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON FOUR VOUCHERS SUBMITTED THEREWITH, REPRESENTING CLAIMS OF THE WIDOWS OF FOUR DECEASED ARMY OFFICERS FOR THE COST OF COMMERCIAL TRANSPORTATION TO VARIOUS POINTS IN THE UNITED STATES UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF MARCH 7, 1942, 56 STAT. 146, WHICH PROVIDES AS FOLLOWS:

SEC. 12. THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY, MAY BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS) TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON, OR, UPON APPLICATION BY SUCH DEPENDENTS, TO SUCH OTHER LOCATIONS AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE, BY THE USE OF EITHER COMMERCIAL OR GOVERNMENT TRANSPORTATION: PROVIDED, THAT THE COST OF SUCH TRANSPORTATION, INCLUDING PACKING AND UNPACKING SHALL BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE.

IT IS STATED THAT THE OFFICERS CONCERNED DIED UNDER THE CIRCUMSTANCES SET FORTH BELOW:

MAJOR ROY GILBERT. KILLED IN AN AIRPLANE ACCIDENT IN THE VICINITY OF MATHER FIELD, SACRAMENTO, CALIFORNIA, WHILE INSTRUCTING IN AN ARMY PLANE.

SECOND LIEUTENANT ROBERT E. ORR. KILLED IN AN AIRPLANE ACCIDENT, APPARENTLY IN THE VICINITY OF WILLIAMS FIELD, PHOENIX, ARIZONA, WHILE ON AN AUTHORIZED FLIGHT.

SECOND LIEUTENANT GEORGE J. GANOW, JR. KILLED IN AN AIRPLANE ACCIDENT, APPARENTLY IN THE VICINITY OF MACDILL FIELD, TAMPA, FLORIDA, WHILE ON A ROUTINE FLIGHT.

FIRST LIEUTENANT JOHN H. PALMER. DIED AT FORT BRAGG, NORTH CAROLINA, AS A RESULT OF AN EXPLOSION OF A QUANTITY OF BLASTING CAPS WHICH HE WAS USING IN CONNECTION WITH A CLOSE COMBAT COURSE FOR TRAINEES.

WITH RESPECT TO THE PROPOSED PAYMENTS, YOU STATE IN YOUR LETTER:

THE UNDERSIGNED IS IN DOUBT AS TO WHETHER OR NOT THESE VOUCHERS MAY BE CONSIDERED FOR PAYMENT UNDER SECTION 12, ACT MARCH 7, 1942 (1 PUBLIC LAW 490--- 77TH CONGRESS) DUE TO THE FACT THAT DEATH OCCURRED IN THE UNITED STATES. IN 21 CG 1090 IT WAS HELD "THE WHOLE PURPOSE OF THE ACT WAS WITH RESPECT TO PERSONS ENGAGED IN MILITARY OR NAVAL OPERATIONS INCIDENT TO ACTUAL WARFARE * * *.' ( ITALICS SUPPLIED). THE QUESTION IS WHETHER "OPERATIONS INCIDENT TO ACTUAL WARFARE" WOULD INCLUDE TRAINING FOR COMBAT DUTY, THUS APPARENTLY ALLOWING PAYMENT OF THE INSTANT VOUCHERS, OR WOULD BE LIMITED TO CASES INVOLVING ACTUAL COMBAT WITH THE ENEMY.

SECTION 1 (A) OF THE SAID ACT OF MARCH 7, 1942, 56 STAT. 143, DEFINES THE TERM "PERSON" AS USED IN SUCH ACT AS INCLUDING A COMMISSIONED OFFICER, WHEREVER SERVING. HENCE, THE FACT THAT THE OFFICERS HERE INVOLVED WERE KILLED IN THE UNITED STATES WOULD NOT NECESSARILY, OF ITSELF, PRECLUDE THEIR DEPENDENTS FROM RECEIVING THE BENEFITS OF THE PROVISIONS CONTAINED IN SECTION 12 OF THE ACT IF THEY ARE OTHERWISE ENTITLED THERETO.

IN THE DECISION OF JUNE 4, 1942, 21 COMP. GEN. 1090, REFERRED TO IN YOUR LETTER, IT WAS STATED (PAGE 1092):

YOU ASK, BROADLY, WHETHER IT (SECTION 12 OF THE ACT OF MARCH 7, 1942) IS APPLICABLE "IN A CASE WHERE THE OFFICER OR ENLISTED MAN CONCERNED WAS KILLED WHILE TRAVELING BY COMMON CARRIER UNDER OFFICIAL ORDERS.' IT IS POSSIBLE, IN SOME CIRCUMSTANCES, SUCH A CASE MIGHT FALL WITHIN THE SECTION, BUT YOU HAVE SUBMITTED THE CASE OF AN OFFICER WHO, ACCORDING TO THE COPY OF THE ORDERS FURNISHED, WAS ON DUTY IN THE BUREAU OF NAVIGATION OF THE NAVY DEPARTMENT AT WASHINGTON AND WHO WAS DIRECTED TO TRAVEL BY COMMERCIAL AIRCRAFT WITHIN THE UNITED STATES FOR THE PURPOSE OF INSPECTION OF "PROPOSED SITES," THE DUTY TO BE IN ADDITION TO HIS THEN PRESENT DUTIES AND UPON COMPLETION HE WAS DIRECTED TO RETURN TO WASHINGTON AND RESUME HIS REGULAR DUTIES. THE REPORT OF THE COMMITTEE SHOWS THAT THE LEGISLATION HERE INVOLVED WAS INTENDED TO PROVIDE FOR CERTAIN SITUATIONS ARISING FROM WARLIKE ACTIVITIES. THE TRAVEL OF COMMANDER BURROW WAS WITHIN THE UNITED STATES AND WAS IN CONNECTION WITH THE ADMINISTRATION OF THE NAVY DEPARTMENT AT WASHINGTON. TO GIVE THE TERM THE MEANING YOU HAVE SUGGESTED NECESSARILY WOULD INCLUDE, ALSO, ANY OTHER ACTIVITIES PERFORMED BY AN OFFICER OR AN ENLISTED MAN IN THE ADMINISTRATION OF THE NAVY DEPARTMENT AT WASHINGTON. NEITHER THE LANGUAGE OF THE SECTION NOR THE REPORT OF THE COMMITTEE SUGGESTS SUCH A GRANT WAS CONTEMPLATED. THE WHOLE PURPOSE OF THE ACT WAS WITH RESPECT TO PERSONS ENGAGED IN MILITARY OR NAVAL OPERATIONS INCIDENT TO ACTUAL WARFARE AND, THEREFORE, THE SECTION DOES NOT INCLUDE OR PROVIDE FOR THE MOVEMENT OF THE DEPENDENTS OR HOUSEHOLD GOOD AND PERSONAL EFFECTS OF A PERSON OTHERWISE WITHIN THE SECTION ASSIGNED TO DUTY IN THE NAVY DEPARTMENT AT WASHINGTON, WHO IN THE COURSE OF THE PERFORMANCE OF HIS DUTIES (INCLUDING TRAVEL WITHIN THE UNITED STATES UNDER OFFICIAL ORDERS IN CONNECTION WITH THOSE DUTIES IN THE NAVY DEPARTMENT) IS INJURED OR KILLED.

WHILE THE IMPRESSION MIGHT BE GAINED FROM THE ABOVE THAT SOME STRESS WAS PUT ON THE FACT THAT THE OFFICER THERE INVOLVED WAS KILLED IN THE UNITED STATES, THAT FACT WAS NOT THE POINT ON WHICH THE DECISION TURNED. RATHER, THE FACT THAT HE WAS KILLED IN THE UNITED STATES WAS MERELY INCIDENTAL, THE IMPORTANT FACTOR BEING THAT AT THE TIME OF THE ACCIDENT RESULTING IN HIS DEATH SUCH OFFICER WAS ENGAGED IN PERFORMING DUTIES OF AN ADMINISTRATIVE NATURE IN CONNECTION WITH THE GENERAL ADMINISTRATION OF THE NAVY DEPARTMENT, AND HE WAS NOT ENGAGED IN MILITARY OR NAVAL OPERATIONS INCIDENT TO ACTUAL WARFARE.

THE TERM "MILITARY OR NAVAL OPERATIONS" AS USED IN SECTION 12 OF THE ACT OF MARCH 7, 1942, SUPRA, DOES NOT LEND ITSELF READILY TO ABSOLUTE DEFINITION. HOWEVER, AS SAID IN THE DECISION OF JUNE 4, 1942, SUPRA, THE WHOLE PURPOSE OF THE ACT WAS WITH RESPECT TO PERSONS ENGAGED IN MILITARY OR NAVAL OPERATIONS INCIDENT TO ACTUAL WARFARE--- IN SHORT, OPERATIONS AGAINST AN ENEMY. THAT DOES NOT NECESSARILY MEAN THAT THE INJURY OR DEATH MUST HAVE BEEN INCURRED IN ACTUAL COMBAT. AS STATED BY THE ATTORNEY GENERAL OF THE UNITED STATES (22 OP. ATTY. GEN. 95, 96) IN INTERPRETING THE TERM ,OPERATING AGAINST AN ENEMY" AS USED IN SECTION 7 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365:

IT WOULD BE UNJUST TO INTERPRET THE PHRASE "EVERY OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY" AS APPLICABLE ONLY TO OPERATIONS IN THE IMMEDIATE PRESENCE OR EVEN THE NEAR NEIGHBORHOOD OF AN ENEMY. IT WOULD BE EQUALLY UNJUST TO RESTRICT ITS MEANING TO THE OPERATIONS OF AN ACTUAL CAMPAIGN, EVEN THOUGH THE MOVEMENTS OF THE TROOPS TO POINTS OF RENDEZVOUS BEFORE EMBARKATION FOR HOSTILE TERRITORY WERE COUNTED AS PROPERLY A PART OF CAMPAIGN MOVEMENTS, WHICH UNQUESTIONABLY THEY ARE.

I THINK THE CLAUSE IN QUESTION WAS INTENDED TO APPLY TO ALL INSTANCES WHERE THE TROOPS OF THE UNITED STATES ARE ASSEMBLED INTO SEPARATE BODIES, SUCH AS REGIMENTS, BRIGADES, DIVISIONS, OR CORPS, FOR THE PURPOSE OF CARRYING ON AND BRINGING TO A CONCLUSION THE WAR WITH SPAIN. IF THE OPERATIONS OFF THE TROOPS ARE WITH THE DIRECT OBJECT OF ASSISTING IN THE MILITARY MEASURES OF THE GOVERNMENT FOR SUBDUING THE FORCES OF SPAIN. THE OPERATIONS OF THE TROOPS ARE WITH THE DIRECT OBJECT OF ASSISTING IN THE MILITARY MEASURES OF THE GOVERNMENT FOR SUBDUING THE FORCES OF SPAIN, THEY CAN, WITHIN THE REASONABLE INTENDMENT OF THIS ACT, BE CONSIDERED AS OPERATING AGAINST AN ENEMY, ALTHOUGH SUCH OPERATIONS MAY NOT BE DIRECT BUT ARE IN THE NATURE OF NECESSARY COMPONENT STEPS THROUGH REMOTE, IN ONE GREAT MILITARY OBJECTIVE. THAT INTERPRETATION OF THE TERM HAS BEEN FOLLOWED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. SEE 5 COMP. DEC. 354; ID. 659; 6 ID. 186; ID. 254. ALSO, IT WAS CITED WITH APPROVAL IN THE CASE OF MITCHELL V. UNITED STATES, 41 C.1CLS. 36, 43, THE COURT STATING, IN PART:

* * *ANY RULE THAT WOULD RESTRICT THE OPERATIONS OF TROOPS AGAINST AN ENEMY TO DISTINCTLY OFFENSIVE OPERATIONS AS CONTRADISTINGUISHED FROM DEFENSIVE OPERATIONS, WOULD BE SOMEWHAT DIFFICULT OF APPLICATION AND CERTAINLY PRODUCTIVE OF RESULTS PROBABLY NEVER INTENDED BY CONGRESS IN THE PASSAGE OF THIS ACT. SUCH A RULE WOULD EXCLUDE THOSE TROOPS IN THE FIELD ON THE DEFENSIVE OR ENGAGED IN DEFENSIVE TACTICS. THE BROAD AND, AS WE THINK, THE PROPER RULE WOULD INCLUDE EVERY COMMAND READY TO TAKE THE INITIATIVE OR IN POSITION TO FIGHT IN DEFENSE, WITHIN THE COUNTRY OR OUT OF IT, AND ALONG THE COAST OR IN THE INTERIOR, IF THE MOVEMENTS OF AN ENEMY SHOULD RENDER PROBABLE ACTUAL COMBAT. * * *

THE OFFICERS WHO WERE KILLED UNDER THE CIRCUMSTANCES HEREINBEFORE STATED WERE, AT THE TIME OF THEIR DEATH, OR INJURY RESULTING IN DEATH, ENGAGED IN TRAINING ACTIVITIES TO RENDER THEMSELVES OR OTHERS FIT FOR COMBAT SERVICE. THEIR DUTIES WERE DIRECTLY CONNECTED WITH THE MILITARY OR WARLIKE FUNCTIONS OF THE WAR DEPARTMENT AS DISTINGUISHED FROM ADMINISTRATIVE FUNCTIONS. UNDER THE CIRCUMSTANCES, THE VIEW SEEMS REQUIRED THAT THEY DIED AS A RESULT OF MILITARY OPERATIONS. ACCORDINGLY, PAYMENT ON THE VOUCHERS SUBMITTED, WHICH ARE RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT--- THE ONLY QUESTION DECIDED HEREIN BEING AS TO WHETHER THE OFFICERS CONCERNED DIED AS A RESULT OF MILITARY OPERATIONS WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 12 OF THE ACT OF MARCH 7, 1942, SUPRA. ..END :