B-46799, MAY 18, 1945, 24 COMP. GEN. 822

B-46799: May 18, 1945

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ARE THOSE AUTHORIZED FOR ARMY OFFICERS BY THE ACT OF MARCH 9. NO LONGER ARE APPLICABLE. AS FOLLOWS: THERE HAVE BEEN PRESENTED TO ME FOR CERTIFICATION THE ENCLOSED VOUCHERS SUMMARIZED BELOW COVERING BURIAL AND FUNERAL EXPENSES FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE AS INDICATED. 77TH CONGRESS (31 U.S.C. 82D) YOUR DECISION IS DESIRED ON THE QUESTIONS PRESENTED HEREIN IN ORDER THAT I MAY DETERMINE WHICH AMOUNTS MAY BE CORRECTLY CERTIFIED. 1. WATSON WAS DETAILED UNDER DATE OF OCTOBER 15. 1943 HE WAS ENTITLED TO FULL MILITARY BENEFITS. HIS SALARY WAS PAID FROM THE " WORKING FUND. ERNST WAS ASSIGNED TO THE PAN AMERICAN SANITARY BUREAU. HIS SALARY WAS PAID FROM THE APPROPRIATION " COMMISSIONED OFFICERS.

B-46799, MAY 18, 1945, 24 COMP. GEN. 822

PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS - BURIAL EXPENSES BURIAL EXPENSES PAYABLE IN THE CASE OF COMMISSIONED PUBLIC HEALTH SERVICE OFFICERS WITHIN THE PURVIEW OF THE ACT OF NOVEMBER 11, 1943, ASSIMILATING THE MILITARY BENEFITS RIGHTS OF SUCH OFFICERS TO THOSE OF MILITARY AND NAVAL COMMISSIONED PERSONNEL, AND THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, REPEALING THE 1943 ACT AND THEREAFTER ASSIMILATING SUCH RIGHTS TO THOSE OF COMMISSIONED OFFICERS OF THE ARMY, ONLY, ARE THOSE AUTHORIZED FOR ARMY OFFICERS BY THE ACT OF MARCH 9, 1928, AS AMENDED, AND APPLICABLE ARMY REGULATIONS, AND, WHERE INCONSISTENT, PUBLIC HEALTH SERVICE REGULATIONS, INCLUDING THE EXPENSE LIMITATION PRESCRIBED THEREIN, NO LONGER ARE APPLICABLE.

COMPTROLLER GENERAL WARREN TO R. D. KINSEY, FEDERAL SECURITY AGENCY, MAY 18, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 4, 1945, AS FOLLOWS:

THERE HAVE BEEN PRESENTED TO ME FOR CERTIFICATION THE ENCLOSED VOUCHERS SUMMARIZED BELOW COVERING BURIAL AND FUNERAL EXPENSES FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE AS INDICATED. IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3, PUBLIC LAW 389, 77TH CONGRESS (31 U.S.C. 82D) YOUR DECISION IS DESIRED ON THE QUESTIONS PRESENTED HEREIN IN ORDER THAT I MAY DETERMINE WHICH AMOUNTS MAY BE CORRECTLY CERTIFIED.

1. VOUCHER IN AMOUNT OF $443.45 IN FAVOR OF DOROTHY P. WATSON (WIFE), BENEFICIARY OF THE ESTATE OF PASSED ASSISTANT SURGEON RESERVE, LESTER D. WATSON. DR. WATSON WAS DETAILED UNDER DATE OF OCTOBER 15, 1943 FOR DUTY WITH THE NAVY DEPARTMENT AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 (B) (2) OF PUBLIC LAW 184, 78TH CONGRESS, APPROVED NOVEMBER 11, 1943 HE WAS ENTITLED TO FULL MILITARY BENEFITS. HE DIED AT THE U.S. PUBLIC HEALTH SERVICE HOSPITAL, SHEEPSHEAD BAY, BROOKLYN, NEW YORK, ON JUNE 14, 1944. HIS SALARY WAS PAID FROM THE " WORKING FUND, FEDERAL SECURITY AGENCY, P.H.S., 1944, 7545903.004.'

2. VOUCHER IN AMOUNT OF $227.25 FAVOR OF JOSEPH GAWLER'S SONS, INC., WASHINGTON, D.C., COVERING FUNERAL EXPENSES FOR MEDICAL DIRECTOR EDWARD C. ERNST. DR. ERNST WAS ASSIGNED TO THE PAN AMERICAN SANITARY BUREAU, WASHINGTON, D.C. AT THE TIME OF HIS DEMISE ON NOVEMBER 3, 1944 AND DIED WHILE ON DUTY. HIS SALARY WAS PAID FROM THE APPROPRIATION " COMMISSIONED OFFICERS, PAY, AND SO FORTH" ( PUBLIC LAW 373, 78TH CONGRESS, APPROVED JUNE 28, 1944) AND HE WAS ENTITLED TO LIMITED MILITARY BENEFITS UNDER SECTION 212 (B) (1) OF PUBLIC LAW 410, 78TH CONGRESS APPROVED JULY 1, 1944.

ALSO VOUCHER IN AMOUNT OF $75.00 IN FAVOR OF WM. T. WRIGHT, JR., ASSISTANT SURGEON GENERAL, U.S. PUBLIC HEALTH SERVICE, COVERING REIMBURSEMENT FOR THE COST OF CREMATING THE REMAINS OF MEDICAL DIRECTOR EDWARD C. ERNST.

3. VOUCHER IN AMOUNT OF $233.75 IN FAVOR OF THE S. H. HINES COMPANY FOR FUNERAL EXPENSES OF PASSED ASSISTANT SURGEON RICHARD G. HENDERSON. DR. HENDERSON WAS ON DUTY WITH THE NATIONAL INSTITUTE OF HEALTH, BETHESDA, MARYLAND, WHICH IS A FIELD STATION OF THE U.S. PUBLIC HEALTH SERVICE AND DIED AT THE NAVAL HOSPITAL, BETHESDA, MARYLAND, OCTOBER 20, 1944. HIS SALARY WAS PAID FROM THE APPROPRIATION " COMMISSIONED OFFICERS, PAY, AND SO FORTH" ( PUBLIC LAW 373, 78TH CONGRESS, APPROVED JUNE 28, 1944) AND HE WAS ENTITLED TO LIMITED MILITARY BENEFITS UNDER SECTION 212 (B) (1) OF PUBLIC LAW 410, 78TH CONGRESS, APPROVED JULY 1, 1944.

4. VOUCHER IN AMOUNT OF $170.00 IN FAVOR OF MRS. BERTHA HARRIS DENNEY, WIDOW OF SENIOR SURGEON O. E. DENNEY. DR. DENNEY WAS MEDICAL OFFICER IN CHARGE OF THE U.S. MARINE HOSPITAL, GALVESTON, TEXAS, AT THE TIME OF HIS DEMISE ON FEBRUARY 19, 1944. HIS SALARY WAS PAID FROM THE APPROPRIATION " COMMISSIONED OFFICERS, PAY, AND SO FORTH" ( PUBLIC LAW 135, 78TH CONGRESS, APPROVED JULY 12, 1943) AND HE WAS ENTITLED TO LIMITED MILITARY BENEFITS UNDER SECTION 8 (B) (1) OF PUBLIC LAW 184, 78TH CONGRESS, APPROVED NOVEMBER 11, 1943.

THE FEDERAL SECURITY APPROPRIATION ACT FOR 1944, PUBLIC LAW 135, 78TH CONGRESS PROVIDES:

1. UNDER THE HEADING PUBLIC HEALTH SERVICE THAT,"THE APPROPRIATION IN THIS TITLE FOR TRAVELING EXPENSES SHALL BE AVAILABLE FOR PREPARATION FOR SHIPMENT AND TRANSPORTATION TO THEIR FORMER HOMES OF REMAINS OF OFFICERS WHO DIE IN LINE OF DUTY.'

2. "TRAVELING EXPENSES, FEDERAL SECURITY AGENCY: FOR TRAVELING EXPENSES (NOT APPROPRIATED FOR ELSEWHERE) FOR THE FEDERAL SECURITY AGENCY AND ALL BUREAUS, BOARDS, AND CONSTITUENT ORGANIZATIONS THEREOF, * * *.'

THE PUBLIC HEALTH SERVICE ACT, PUBLIC LAW 410, 78TH CONGRESS,APPROVED JULY 1, 1944, SECTION 506, PROVIDES:

"APPROPRIATIONS AVAILABLE FOR TRAVELING EXPENSES OF THE SERVICE SHALL BE AVAILABLE FOR MEETING THE COST OF PREPARATION FOR BURIAL AND OF TRANSPORTATION TO THE PLACE OF BURIAL OF REMAINS OF COMMISSIONED OFFICERS, AND OF PERSONNEL SPECIFIED IN REGULATIONS, WHO DIE IN LINE OF DUTY.'

PUBLIC LAW 184, 78TH CONGRESS AND THE PUBLIC HEALTH SERVICE ACT, PUBLIC LAW 410, 78TH CONGRESS (THE LATTER STATUTE REPEALED THE FORMER) BOTH DEFINE THE TERMS "FULL MILITARY BENEFITS" AND ,LIMITED MILITARY BENEFITS" TO INCLUDE BURIAL PAYMENTS IN THE EVENT OF DEATH.

PARAGRAPH 166 OF THE U.S. PUBLIC HEALTH SERVICE REGULATIONS, 1931 PROVIDES:

"ACTUAL EXPENSES FOR PREPARATION FOR SHIPMENT, NOT TO EXCEED $400, AND TRANSPORTATION TO THEIR FORMER HOMES IN THE CUSTOMARY WAY, INCLUDING AN ESCORT IF WITHOUT ANY ADDITIONAL EXPENSE, OF REMAINS OF OFFICERS COMMISSIONED OR APPOINTED FOR GENERAL SERVICE WHO DIE IN LINE OF DUTY WILL BE REIMBURSED TO PERSONS WHO PROCURE THE SERVICES AND SUPPORT THEIR CLAIMS WITH RECEIPTS SHOWING PAYMENT THEREFOR BY THEM; BUT WHEN NOT PROCURED AS INDICATED ABOVE THE SERVICE REPRESENTATIVE IS AUTHORIZED TO PROCURE THE SERVICES IN ACCORDANCE WITH REGULATIONS GOVERNING EXPENDITURES, INCLUDING THE USE OF GOVERNMENT TRANSPORTATION REQUESTS AND BILLS OF LADING. THESE EXPENSES ARE NOT AUTHORIZED IN THE CASE OF OFFICERS SERVING UNDER LOCAL APPOINTMENT.'

IN RESPECT TO THE ABOVE, YOUR DECISION IS DESIRED AS TO WHETHER THE APPROPRIATION INDICATED ON EACH VOUCHER MAY BE CORRECTLY CHARGED FOR THE AMOUNTS SPECIFIED WHICH INCLUDE:

(1) BURIAL EXPENSES IN EXCESS OF $400;

(2) BURIAL EXPENSES OTHER THAN THOSE EXPENSES ALLOWABLE FOR PREPARATION OF REMAINS FOR SHIPMENT;

(3) EXPENSES FOR LOCAL BURIAL (NO SHIPMENT INVOLVED);

(4) CREMATION EXPENSES IN LIEU OF INTERMENT.

ASIDE FROM THE QUESTION WITH RESPECT TO THE AVAILABILITY OF THE PARTICULAR APPROPRIATIONS SHOWN ON THE ENCLOSED VOUCHERS FOR EXPENSES OF THE CHARACTER INVOLVED, IT APPEARS THAT DOUBT EXISTS AS TO THE EXTENT OF THE OBLIGATION OF THE UNITED STATES FOR BURIAL EXPENSES INCURRED IN CONNECTION WITH THE DISPOSITION OF THE REMAINS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE IN VIEW OF THE RECENT LEGISLATIVE ENACTMENTS MENTIONED IN YOUR LETTER RESPECTING THE PUBLIC HEALTH SERVICE.

AS STATED IN YOUR LETTER, THE ACT OF NOVEMBER 11, 1943, 57 STAT. 587, AS WELL AS THE ACT OF JULY 1, 1944, 58 STAT. 682, WHICH REPEALED THE EARLIER ACT, AUTHORIZED "MILITARY BENEFITS"--- INCLUDING PAYMENT OF BURIAL EXPENSES--- FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE UNDER THE PARTICULAR CONDITIONS THEREIN SET FORTH. AND, SO FAR AS IS MATERIAL TO A DISPOSITION OF THE PRESENT MATTER, THE PROVISIONS OF THE TWO ACTS DIFFER ONLY IN THAT SECTION 8 (A) (1) OF THE 1943 ACT, 57 STAT. 588, ASSIMILATED THE RIGHTS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE RESPECTING "MILITARY BENEFITS" TO THE RIGHTS, PRIVILEGES, ETC., AUTHORIZED BY LAW FOR "COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES," WHEREAS SECTION 212 (A) (1) OF THE 1944 STATUTE, 58 STAT. 689, ASSIMILATES SUGH RIGHTS TO THE RIGHTS, PRIVILEGES, ETC., AUTHORIZED FOR ,COMMISSIONED OFFICERS OF THE ARMY.'

IT IS NOTED THAT THE DEATHS OF DR. ERNST AND DR. HENDERSON OCCURRED SUBSEQUENT TO THE ENACTMENT OF THE 1944 ACT AND, HENCE, UNDER THE PLAIN PROVISIONS OF THAT ACT, THE "MILITARY BENEFITS" AUTHORIZED ARE THE BENEFITS PROVIDED BY LAW IN LIKE INSTANCES FOR "COMMISSIONED OFFICERS OF THE ARMY.' HOWEVER, THE DEATHS OF DR. WATSON AND DR. DENNEY OCCURRED WHILE THE 1943 ACT WAS IN EFFECT, AND, THEREFORE, A DETERMINATION OF THE "MILITARY BENEFITS" AUTHORIZED IN THOSE CASES IS GOVERNED BY SECTION 8 OF THE 1943 ACT WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

SEC. 8 (A) FOR THE PURPOSES OF THIS SECTION---

(1) THE TERM "FULL MILITARY BENEFITS" MEANS ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES (INCLUDING THEIR SURVIVING BENEFICIARIES) ON ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE, INCLUDING BUT NOT LIMITED TO, BURIAL PAYMENTS IN THE EVENT OF DEATH, SIX MONTHS' PAY IN CASE OF DEATH, VETERANS' COMPENSATION AND PENSIONS AND OTHER VETERANS' BENEFITS * * *

(2) THE TERM "LIMITED MILITARY BENEFITS" MEANS FULL MILITARY BENEFITS, EXCEPT VETERANS' COMPENSATION AND PENSIONS AND OTHER VETERANS' BENEFITS, AND ELIGIBILITY UNDER THE NATIONAL SERVICE LIFE INSURANCE ACT, AS AMENDED.

(B) BEGINNING WITH THE DATE OF ENACTMENT OF THIS ACT, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, REGULAR AND RESERVE (INCLUDING THEIR SURVIVING BENEFICIARIES/---

(1) IN TIME OF WAR, SHALL BE ENTITLED TO LIMITED MILITARY BENEFITS WITH RESPECT TO ALL ACTIVE SERVICE IN THE PUBLIC HEALTH SERVICE;

(2) WHILE SUCH OFFICERS ARE DETAILED FOR DUTY WITH THE ARMY, NAVY, OR COAST GUARD, SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO SUCH DUTY;

(3) WHILE SUCH OFFICERS ARE SERVING OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA IN TIME OF WAR, SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO SUCH SERVICE.

BECAUSE OF THE LACK OF UNIFORMITY BETWEEN THE RIGHTS, PRIVILEGES, IMMUNITIES, ETC., AUTHORIZED FOR COMMISSIONED OFFICERS OF THE ARMY AND THOSE AUTHORIZED FOR COMMISSIONED OFFICERS OF THE NAVY, THE PROVISION IN THE QUOTED SECTION THAT THE "MILITARY BENEFITS" THEREIN AUTHORIZED FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE SHALL MEAN ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF "COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES" GAVE RISE TO DOUBT AND UNCERTAINTY AS TO THE PARTICULAR BENEFITS SOUGHT TO BE CONFERRED BY THE 1943 ACT. THAT IS, IT WAS NOT CLEAR WHETHER THE BENEFITS AUTHORIZED WERE THOSE AUTHORIZED EXCLUSIVELY FOR THE ARMY, THOSE AUTHORIZED EXCLUSIVELY FOR THE NAVY, OR THOSE AUTHORIZED FOR BOTH THE ARMY AND THE NAVY. THE LEGISLATIVE HISTORY OF THAT ACT CONTAINS NOTHING WHICH WOULD BE OF ASSISTANCE IN A DETERMINATION OF THE INTENT OF THE CONGRESS IN THE MATTER. HOWEVER, IN REPORT NO. 1364, DATED APRIL 20, 1944, OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, TO ACCOMPANY H.R. 462, WHICH BECAME THE ACT OF JULY 1, 1944, IT IS STATED WITH RESPECT TO SECTION 212 OF THAT ACT, IN PART AS FOLLOWS (PAGES 11 AND 12):

SECTION 212 DEALS WITH MILITARY BENEFITS AND IS SUBSTANTIALLY THE SAME AS SECTION 8 OF PUBLIC LAW 184, SEVENTY-EIGHTH CONGRESS.

PARAGRAPH (1) OF SUBSECTION (A) OF SECTION 212 DEFINES THE TERM "FULL MILITARY BENEFITS" TO INCLUDE MOST OF THE RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER LAW FOR COMMISSIONED OFFICERS OF THE ARMY * *

THIS PARAGRAPH DIFFERS FROM SECTION 8 (A) (1) OF PUBLIC LAW 184 IN ONLY A FEW RESPECTS. SINCE THE BENEFITS ACCORDED ARMY AND NAVY OFFICERS ARE IN A FEW INSTANCES NOT IDENTICAL YOUR COMMITTEE THOUGHT IT DESIRABLE, IN ORDER TO AVOID CONFUSION, TO RESTRICT BENEFITS TO THOSE ENJOYED BY COMMISSIONED OFFICERS OF THE ARMY. * * *

FROM THE FOREGOING IT IS CLEAR THAT THE PRIMARY PURPOSE OF THE REFERRED- TO CHANGE IN LANGUAGE BETWEEN THAT APPEARING IN SECTION 212 (A) (1) OF THE 1944 ACT AND THAT IN SECTION 8 (A) (1) OF THE 1943 ACT WAS NOT TO EFFECT A MATERIAL MODIFICATION OF THE "MILITARY BENEFITS" THERETOFORE AUTHORIZED UNDER THE SAID SECTION 8 (A) (1) FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, BUT, RATHER, SUCH CHANGE APPEARS TO HAVE BEEN MADE FOR THE EXPRESS PURPOSE OF CLARIFYING THE CHARACTER OF THOSE BENEFITS AND TO AVOID THE AMBIGUOUS PHRASEOLOGY CONTAINED IN THE 1943 ACT. HENCE, WHATEVER DOUBT MIGHT HAVE EXISTED RESPECTING THE EXTENT OF THE "MILITARY BENEFITS" AUTHORIZED UNDER THE PROVISIONS OF THE REPEALED STATUTE, SUCH DOUBT WOULD SEEM TO HAVE BEEN REMOVED BY THE EXPRESS PROVISION IN THE 1944 ACT THAT "MILITARY BENEFITS" ARE THE RIGHTS, PRIVILEGES, IMMUNITIES, ETC., AUTHORIZED FOR "COMMISSIONED OFFICERS OF THE ARMY.' ACCORDINGLY, IT REASONABLY APPEARS THAT, GENERALLY, UNDER EITHER THE 1943 ACT OR THE 1944 ACT, THE "MILITARY BENEFITS" AUTHORIZED FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE THE RIGHTS, ETC., PROVIDED BY LAW FOR COMMISSIONED OFFICERS OF THE ARMY, EXCEPTING, OF COURSE, SUCH BENEFITS AS ARE AUTHORIZED FOR NAVAL PERSONNEL AND WHICH EXPRESSLY HAVE BEEN MADE APPLICABLE BY OTHER STATUTORY AUTHORITY TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE--- SUCH AS WAS PROVIDED BY SECTION 6 OF THE ACT OF OCTOBER 27, 1943, 57 STAT. 582, 583, WITH REGARD TO LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL PROPERTY OF SUCH OFFICERS WHEN SERVING WITH THE NAVY. SEE DECISION OF MARCH 8, 1945, B-45178, 24 COMP. GEN. 664. CONSEQUENTLY, THE DEATHS OF THE OFFICERS HERE INVOLVED HAVING OCCURRED SUBSEQUENT TO THE ENACTMENT OF THE SAID ACT OF NOVEMBER 11, 1943, THE AUTHORIZED BURIAL EXPENSES PAYABLE BY THE UNITED STATES IN EACH CASE ARE THE AMOUNTS AUTHORIZED UNDER EXISTING LAW FOR COMMISSIONED OFFICERS OF THE ARMY. THE ACT OF MARCH 9, 1928, 45 STAT. 251, AS AMENDED BY THE ACT OF MAY 17, 1938, 52 STAT. 398, 399, PROVIDES, IN PERTINENT PART:

THAT THE ACT ENTITLED "AN ACT TO AUTHORIZE APPROPRIATIONS TO BE MADE FOR THE DISPOSITION OF REMAINS OF MILITARY PERSONNEL AND CIVILIAN EMPLOYEES OF THE ARMY," APPROVED MARCH 9, 1928, IS HEREBY AMENDED TO READ AS FOLLOWS: "THAT THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED FROM TIME TO TIME SUCH SUMS AS MAY BE NECESSARY FOR FUNERAL EXPENSES OF THE PERSONS HEREINAFTER DESIGNATED, TO BE EXPENDED UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.'

SEC. 2. AUTHORIZED FUNERAL EXPENSES SHALL INCLUDE THE EXPENSES OF, AND INCIDENT TO, THE RECOVERY OF BODIES, CREMATION (ONLY UPON THE REQUEST OF RELATIVES OF THE DECEASED), PREPARATION FOR BURIAL, TRANSPORTATION TO THE HOME OF THE DECEASED OR TO A NATIONAL OR OTHER CEMETERY DESIGNATED BY PROPER AUTHORITY, AND INTERMENT.

SEC. 3. FUNERAL EXPENSES SHALL BE ALLOWED FOR (1) ALL PERSONS IN THE REGULAR ARMY AS COMPOSED UNDER SECTION 2, ACT OF JUNE 3, 1916, AS AMENDED (39 STAT. 166; U.S.C., TITLE 10, SEC. 4), WHO DIE WHILE IN THE ACTIVE MILITARY SERVICE * * *. * * * * * *

SEC. 5. IN ANY CASE WHERE FUNERAL EXPENSES AUTHORIZED IN SECTION 3 HEREOF ARE BORNE BY INDIVIDUALS, REIMBURSEMENT TO SUCH INDIVIDUALS MAY BE MADE OF THE AMOUNT ALLOWED BY THE GOVERNMENT FOR SUCH SERVICES, BUT NO REIMBURSEMENT SHALL BE MADE OF ANY EXPENSES INCURRED PRIOR TO THE ENACTMENT OF THIS ACT WHICH WOULD NOT HAVE BEEN A PROPER CHARGE AGAINST THE GOVERNMENT PRIOR TO THE DATE OF APPROVAL THEREOF.

THE QUOTED ACT IS NOT SELF-EXECUTING. HENCE, IN ORDER TO DETERMINE THE PROPER BURIAL EXPENSES PAYABLE IN THE INSTANT CASES, RECOURSE MUST BE HAD TO THE APPLICABLE REGULATIONS PRESCRIBED FROM TIME TO TIME BY THE SECRETARY OF WAR PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 1 OF THAT ACT. CURRENT INSTRUCTIONS, IN EFFECT AT THE TIME OF THE DEATHS OF DR. ERNST AND DR. HENDERSON, AND WHICH ARE SIMILAR--- WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL--- TO THOSE IN EFFECT AT THE TIME OF THE DEATHS OF DR. WATSON AND DR. DENNEY ARE CONTAINED IN ARMY REGULATION 30- 1830, DATED OCTOBER 13, 1944, PARAGRAPH 3 OF WHICH READS AS FOLLOWS:

3. EXPENSES ALLOWABLE.--- A. FOR PERSONNEL OF THE ARMY OF THE UNITED STATES AND REGULAR ARMY * * *.

(1) BURIAL EXPENSES PROPER.--- EXPENSES INCIDENT TO INITIAL PREPARATION OF REMAINS, RESTRICTED TO---

(A) UNDERTAKER'S SERVICES, INCLUDING EMBALMING AND OTHER PRESERVATIVE METHODS.

(B) COST OF CASKET.

(C) COST OF OUTSIDE BOX, WHEN REQUIRED.

(D) HIRE OF HEARSE. * * * * * * * *

(6) INTERMENT EXPENSES.

(A) EXPENSES NOT TO EXCEED $50 INCIDENT TO INTERMENT. * * * * * * * *

(7) CREMATION.--- REMAINS MAY BE CREMATED UPON WRITTEN REQUEST OF LEGAL NEXT OF KIN ONLY, EITHER AT PLACE OF DEATH, OR AFTER ARRIVAL AT DESTINATION. IN ADDITION TO THE COST OF CREMATION A REASONABLE AMOUNT FOR A SUITABLE URN FOR THE ASHES IS AUTHORIZED.

INSTRUCTIONS RESPECTING THE MANNER OF OBTAINING BURIAL SERVICES AT GOVERNMENT EXPENSE ARE SET OUT IN DETAIL IN THE SAID REGULATION, BUT A BRIEF SUMMARY THEREOF APPEARS SUFFICIENT FOR THE PURPOSES OF THE PRESENT MATTER. PARAGRAPH 4 OF THE REGULATION PROVIDES, IN SUBSTANCE, THAT BURIAL EXPENSES PROPER WILL BE OBTAINED UNDER CONTRACTS ENTERED INTO WITH LOCAL UNDERTAKERS AND, IF AT THE TIME AND PLACE OF DEATH A PROPERLY APPROVED CONTRACT WAS IN FORCE, THE AMOUNT TO BE ALLOWED FOR BURIAL EXPENSES PROPER WILL BE LIMITED TO THE SUM THAT SUCH CONTRACT WOULD HAVE ALLOWED FOR A SIMILAR CASE; HOWEVER, IF NO SUCH CONTRACT WAS IN EFFECT AT THE TIME AND PLACE OF DEATH, DETERMINATIONS AS TO THE AMOUNT TO BE ALLOWED WILL BE MADE ADMINISTRATIVELY.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT AMOUNTS PROPERLY PAYABLE BY THE UNITED STATES FOR THE "BURIAL EXPENSES PROPER" INCURRED IN THE CASES HEREIN CONSIDERED ARE FOR DETERMINATION IN ACCORDANCE WITH THE TERMS OF WAR DEPARTMENT BURIAL CONTRACTS THEN IN FORCE IN THE LOCALITIES IN WHICH THE SERVICES WERE PROCURED. THEREFORE, IN CONSONANCE WITH THE VIEW HEREINBEFORE EXPRESSED THAT THE PROVISIONS OF SECTION 8 OF THE SAID ACT OF NOVEMBER 11, 1943, PROPERLY MAY BE REGARDED AS HAVING ASSIMILATED THE RIGHTS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, RESPECTING BURIAL EXPENSES, TO THOSE AUTHORIZED BY LAW FOR COMMISSIONED OFFICERS OF THE ARMY, IT FOLLOWS THAT THE THEN EXISTING REGULATIONS OF THE PUBLIC HEALTH SERVICE--- SO FAR AS INCONSISTENT WITH ARMY REGULATIONS GOVERNING LIKE EXPENSES--- NO LONGER WERE FOR APPLICATION TO SUCH OFFICERS AND THE $400 BURIAL EXPENSE LIMITATION APPEARING IN SUCH REGULATIONS IS NOT CONTROLLING IN THE PRESENT CASES. QUESTION (1) ABOVE, IS ANSWERED ACCORDINGLY.

IN VIEW OF THE PROVISIONS OF ARMY REGULATION 30-1830, SUPRA, EXPENSES OF THE CHARACTER MENTIONED IN QUESTIONS (2), (3), AND (4) CLEARLY APPEAR ALLOWABLE IN CASES OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, SUBJECT, HOWEVER, TO THE CONDITIONS AND LIMITATIONS AS PRESCRIBED THEREFOR BY THE SAID REGULATION.

WITH REGARD TO THE AVAILABILITY OF THE PARTICULAR APPROPRIATIONS SHOWN ON THE ENCLOSED VOUCHERS FOR EXPENSES OF THE CHARACTER HERE INVOLVED, IT IS NOTED THAT THE ACT OF JUNE 26, 1940, 54 STAT. 584 (42 U.S.C. 68), WHICH, ALSO, WAS REPEALED BY THE SAID ACT OF JULY 1, 1944, PROVIDED---

* * * THAT FUNDS OF THE PUBLIC HEALTH SERVICE EXPENDABLE FOR TRANSPORTATION AND TRAVELING EXPENSES MAY ALSO BE USED FOR PREPARATION FOR SHIPMENT AND TRANSPORTATION TO THEIR FORMER HOMES OF REMAINS OF OFFICERS WHO DIE IN LINE OF DUTY.

SECTION 506 OF THE 1944 ACT, 58 STAT. 710, WHICH, IN SUBSTANCE, IS A REENACTMENT OF THE REPEALED LAW PROVIDES:

APPROPRIATIONS AVAILABLE FOR TRAVELING EXPENSES OF THE SERVICE SHALL BE AVAILABLE FOR MEETING THE COST OF PREPARATION FOR BURIAL AND OF TRANSPORTATION TO THE PLACE OF BURIAL OF REMAINS OF COMMISSIONED OFFICERS, AND OF PERSONNEL SPECIFIED IN REGULATIONS, WHO DIE IN LINE OF DUTY.

THE LEGISLATIVE HISTORY OF SECTION 506 CLEARLY INDICATES THAT THE CHANGE IN LANGUAGE APPEARING THEREIN FROM THAT OF THE EARLIER STATUTE MERELY WAS FOR THE PURPOSE OF MODIFYING THE EXISTING AUTHORITY TO CHARGE TRAVEL EXPENSE APPROPRIATIONS WITH EXPENSES INCIDENT TO TRANSPORTATION OF THE REMAINS OF DECEASED OFFICER PERSONNEL TO CONFORM TO THE PROVISIONS OF THE 1943 AND 1944 ACTS RESPECTING THE ADDITIONAL BURIAL EXPENSE BENEFITS THEREIN AUTHORIZED FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. IN THE HEARINGS ON THE BILL H.R. 3379, FOR WHICH WAS SUBSTITUTED H.R. 4624 WHICH BECAME THE ACT OF JULY 1, 1944, THE ASSISTANT GENERAL COUNSEL, FEDERAL SECURITY AGENCY, STATED (PAGES 110 AND 111, HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES):

THE MATTER OF BURIAL EXPENSES AND ALLOWANCES FOR OFFICERS WHO DIE IN LINE OF DUTY IS A LITTLE COMPLICATED. EVEN BEFORE PUBLIC LAW 184 THERE WAS PROVISION IN 42 U.S.C. 68 THAT THE PUBLIC HEALTH SERVICE SHOULD BEAR THE EXPENSE OF PREPARING THE BODIES FOR SHIPMENT AND TRANSPORTING THEM TO THE FORMER HOMES OF THE OFFICERS. THIS PROVISION APPEARS IN SECTION 506 OF THE BILL, THE ONLY CHANGE BEING THAT INSTEAD OF OFFICERS--- A TERM WHICH HAS BEEN CONSTRUED TO INCLUDE THE HIGHER RANKING CIVILIAN PERSONNEL AS WELL AS THE COMMISSIONED OFFICERS--- THE BILL REFERS TO COMMISSIONED OFFICERS AND PERSONNEL SPECIFIED IN REGULATIONS. WE SUGGEST THAT THE AUTHORITY SHOULD EXTEND TO SHIPMENT TO THE PLACE OF BURIAL, IF THAT DIFFERS FROM THE FORMER HOME OF THE OFFICER. THIS CHANGE IS PROMPTED CHIEFLY BY THE FACT THAT CERTAIN OFFICERS HAVE THE RIGHT TO BE BURIED IN A NATIONAL CEMETERY, AND THE AUTHORITY TO PAY THE EXPENSE OF SHIPMENT TO THE FORMER HOME DOES NOT MEET THE SITUATION. WE ALSO SUGGEST THAT THE COST OF PREPARATION "FOR BURIAL" WOULD BE A BETTER PHRASE THAN THE PREPARATION "FOR SHIPMENT" OF THE BODY.

SECTION 68 OF TITLE 42 OF THE U.S.C. DID NOT INCLUDE THE COST OF BURIAL ITSELF. BY VIRTUE OF PUBLIC LAW 184, I BELIEVE THAT THIS COST IS ALSO PAYABLE IN THE CASE OF ANY OFFICER WHO DIES IN SERVICE EITHER IN TIME OF WAR OR WHILE DETAILED TO THE ARMED FORCES (10 U.S.C. 916 (B) ). FOR THE SAME OFFICERS, I BELIEVE THAT PUBLIC LAW 184 ALSO GAVE THE RIGHT OF BURIAL IN A NATIONAL CEMETERY (24 U.S.C. 281) AND THE RIGHT TO HAVE A HEADSTONE PROVIDED AT THE EXPENSE OF THE GOVERNMENT (ID., 279).

CONSEQUENTLY, FROM AND AFTER NOVEMBER 11, 1943--- THE DATE OF ENACTMENT OF PUBLIC LAW 184--- APPROPRIATIONS FOR TRAVELING EXPENSES THERETOFORE PROPERLY CHARGEABLE WITH "THE PREPARATION FOR SHIPMENT AND TRANSPORTATION TO THEIR FORMER HOMES," ONLY, ARE AVAILABLE FOR BURIAL EXPENSES FOR THE REMAINS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE TO THE SAME EXTENT AS AUTHORIZED FOR COMMISSIONED OFFICERS OF THE ARMY. THE APPROPRIATION " TRAVELING EXPENSES, FEDERAL SECURITY AGENCY, 1945" PROPOSED TO BE CHARGED WITH BURIAL EXPENSES FOR DR. ERNST AND DR. HENDERSON, WHO DIED DURING THE FISCAL YEAR 1945, CLEARLY APPEARS AVAILABLE FOR SUCH EXPENSES WITHIN THE LIMITATIONS SET FORTH ABOVE. ALSO, IN THE CASE OF DR. DENNEY WHO WAS THE MEDICAL OFFICER IN CHARGE, U.S. MARINE HOSPITAL, GALVESTON, TEXAS, AT THE TIME OF HIS DEMISE ON FEBRUARY 19, 1944, THE APPROPRIATION " PAY OF PERSONNEL AND MAINTENANCE OF HOSPITALS, PUBLIC HEALTH SERVICE, 1944" APPEARS AVAILABLE FOR HIS BURIAL EXPENSES INASMUCH AS THAT APPROPRIATION IS AVAILABLE, INTER ALIA, FOR ADMINISTRATIVE EXPENSES OF PUBLIC HEALTH SERVICE HOSPITALS--- INCLUDING EXPENSES FOR "TRAVEL.'

RESPECTING THE AVAILABILITY OF THE " WORKING FUND, FEDERAL SECURITY AGENCY, PUBLIC HEALTH SERVICE, 1944" FOR PROPER BURIAL EXPENSES FOR DR. WATSON, IT IS NOTED THAT PARAGRAPH 9 OF THE AGREEMENT DATED AUGUST 28, 1942, ENTERED INTO BY REPRESENTATIVES OF THE PUBLIC HEALTH SERVICE, THE WAR SHIPPING ADMINISTRATION, AND THE UNITED STATES COAST GUARD--- PURSUANT TO WHICH THE SAID WORKING FUND WAS ESTABLISHED FOR THE OPERATION OF THE GOVERNMENT-OWNED HOSPITAL AT SHEEPSHEAD BAY, LONG ISLAND, NEW YORK--- PROVIDES:

9. FUNDS FOR OPERATION OF THE HOSPITAL.

A. THE WAR SHIPPING ADMINISTRATION SHALL ALLOT AND TRANSFER FUNDS, QUARTERLY IN ADVANCE, TO THE FEDERAL SECURITY AGENCY ( PUBLIC HEALTH SERVICE) FOR DISBURSEMENT BY THAT SERVICE UNDER THE VARIOUS HEADINGS OF ITS APPLICABLE APPROPRIATIONS, OF SUCH AMOUNTS AS ARE NECESSARY FOR THE ESTIMATED FULL COST OF OPERATION OF THE HOSPITAL.

B. SHOULD THE WAR SHIPPING ADMINISTRATION LACK AUTHORITY TO ALLOT AND TRANSFER FUNDS AS ABOVE SPECIFIED, THEN TO ACCOMPLISH THE SAME RESULT IT SHALL TRANSFER FUNDS TO THE PUBLIC HEALTH SERVICE QUARTERLY IN ADVANCE PURSUANT TO SECTION 601 OF THE ACT OF JUNE 30, 1932, AS AMENDED (31 U.S.C. 686), TO BE CREDITED TO A WORKING FUND, WITH SYMBOL AND DESIGNATION TO BE APPROVED BY THE GENERAL ACCOUNTING OFFICE.

C. WHEN REGULAR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE DETAILED TO DUTY AT THE HOSPITAL, RESERVE COMMISSIONED OFFICERS OR CIVILIAN OFFICERS WILL BE EMPLOYED BY THE PUBLIC HEALTH SERVICE TO REPLACE THEM AND THEIR SALARIES PAID FROM THE FUNDS OF THE WAR SHIPPING ADMINISTRATION ALLOTTED TO THE U.S. PUBLIC HEALTH SERVICE.

D. AS IS INDICATED IN A AND B ABOVE, TRANSFERRED FUNDS SHALL BE AVAILABLE FOR DISBURSEMENT BY THE PUBLIC HEALTH SERVICE FOR ALL EXPENSES NECESSARY FOR THE OPERATION OF THE HOSPITAL, INCLUDING TRANSPORTATION AND TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES DETAILED TO DUTY AT THE HOSPITAL, AND FOR PERSONAL SERVICES AND OTHER ADMINISTRATIVE EXPENSES AS MAY BE NECESSARY IN THE HEADQUARTERS OFFICE OF THE PUBLIC HEALTH SERVICE AND ELSEWHERE.

IT IS NOT CLEAR FROM A READING OF THE QUOTED LANGUAGE THAT IT WAS CONTEMPLATED THE WORKING FUND WOULD BE CHARGEABLE WITH BURIAL EXPENSES FOR PUBLIC HEALTH SERVICE OFFICERS DETAILED FOR DUTY AT THE SAID HOSPITAL; AND, WHILE THE FUND IS AVAILABLE FOR "TRAVEL EXPENSES" OF SUCH OFFICERS, IT IS NOT ONE OF THE "APPROPRIATIONS AVAILABLE FOR TRAVELING EXPENSES OF THE SERVICE" WITHIN THE MEANING OF SAID SECTION 506, AND, THEREFORE, THE PROVISIONS OF THAT SECTION WOULD NOT HAVE THE EFFECT OF MAKING SUCH FUND AVAILABLE FOR BURIAL EXPENSES OF SUCH OFFICERS. ACCORDINGLY, IT APPEARS THAT THE APPROPRIATION "TRAVELING EXPENSES, FEDERAL SECURITY AGENCY, 1944" PROPERLY IS CHARGEABLE WITH THE BURIAL EXPENSES OF DR. WATSON.

THE VOUCHERS AND SUPPORTING PAPERS ARE RETURNED HEREWITH FOR ACTION IN ACCORDANCE WITH THE FOREGOING.