B-68774, OCTOBER 14, 1947, 27 COMP. GEN. 205

B-68774: Oct 14, 1947

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THAT IS. WHICH AN EMPLOYEE WAS RECEIVING AT THE BEGINNING OF A PERIOD OF ABSENCE IN A STATUS OF "CAPTURED BY AN ENEMY. " MAY NOT BE ALLOWED AS PART OF THE "PAY AND ALLOWANCES" WITH WHICH HE WAS ENTITLED TO BE CREDITED UNDER SECTION 2 OF THE MISSING PERSONS ACT. HEVENOR FOR A PER DIEM TRAVEL ALLOWANCE AS A CIVILIAN EMPLOYEE OF THE UNITED STATES DURING THE PERIOD HE WAS HELD BY THE JAPANESE AS A PRISONER OF WAR FROM DECEMBER 23. ANY PERSON WHO IS IN ACTIVE SERVICE WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING. FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS. BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER * * *.

B-68774, OCTOBER 14, 1947, 27 COMP. GEN. 205

PAY AND ALLOWANCES - MISSING, INTERNED, CAPTURED, ETC., PERSONS THE PROVISIONS OF SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, THAT ADMINISTRATIVE DETERMINATIONS OF ENTITLEMENT OF ANY PERSON,"UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT," SHALL BE CONCLUSIVE, APPLY ONLY TO MATTERS WITHIN THE SCOPE OF THE ACT; THAT IS, THE CONCLUSIVENESS SO ACCORDED TO ADMINISTRATIVE DETERMINATION DOES NOT EXTEND TO A PAY OR ALLOWANCE ITEM NOT WITHIN THE CONTEMPLATION OF THE STATUTE. PER DIEM OF SUBSISTENCE, A TEMPORARY ALLOWANCE WHILE IN A TRAVEL STATUS, WHICH AN EMPLOYEE WAS RECEIVING AT THE BEGINNING OF A PERIOD OF ABSENCE IN A STATUS OF "CAPTURED BY AN ENEMY," MAY NOT BE ALLOWED AS PART OF THE "PAY AND ALLOWANCES" WITH WHICH HE WAS ENTITLED TO BE CREDITED UNDER SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, DURING THE PERIOD OF SUCH ABSENCE.

DECISION BY COMPTROLLER GENERAL WARREN, OCTOBER 14, 1947:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR SETTLEMENT THE CLAIM OF MR. HERMAN P. HEVENOR FOR A PER DIEM TRAVEL ALLOWANCE AS A CIVILIAN EMPLOYEE OF THE UNITED STATES DURING THE PERIOD HE WAS HELD BY THE JAPANESE AS A PRISONER OF WAR FROM DECEMBER 23, 1941, TO SEPTEMBER 8, 1945, SUCH CLAIM BEING MADE UNDER THE PROVISIONS OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 143, AS AMENDED BY THE ACT OF JULY 1, 1944, 58 STAT. 679, 680.

SECTIONS 2 AND 9 OF THE MISSING PERSONS ACT, AS AMENDED, SUPRA, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 2. ANY PERSON WHO IS IN ACTIVE SERVICE WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, CAPTURED BY AN ENEMY, BELEAGUERED OR BESIEGED SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER * * *.

SEC. 9. THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THIS ACT, AND FOR THE PURPOSES OF THIS ACT DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. THE DETERMINATION OF THE HEAD OF THE DEPARTMENT CONCERNED, OR OF SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL BE CONCLUSIVE AS TO WHETHER INFORMATION RECEIVED CONCERNING ANY PERSON IS TO BE CONSTRUED AND ACTED UPON AS AN OFFICIAL REPORT OF DEATH. WHEN ANY INFORMATION DEEMED TO ESTABLISH CONCLUSIVELY THE DEATH OF ANY PERSON IS RECEIVED IN THE DEPARTMENT CONCERNED, ACTION SHALL BE TAKEN THEREON AS AN OFFICIAL REPORT OF DEATH, NOTWITHSTANDING ANY PRIOR ACTION RELATING TO DEATH OR OTHER STATUS OF SUCH PERSON. IF THE TWELVE MONTHS' ABSENCE PRESCRIBED IN SECTION 5 OF THIS ACT HAS EXPIRED, A FINDING OF DEATH SHALL BE MADE WHENEVER INFORMATION RECEIVED, OR A LAPSE OF TIME WITHOUT INFORMATION, SHALL BE DEEMED TO ESTABLISH A RESPONSIBLE PRESUMPTION THAT ANY PERSON IN A MISSING OR OTHER STATUS IS NO LONGER ALIVE. PAYMENT OR SETTLEMENT OF AN ACCOUNT MADE PURSUANT TO A REPORT, DETERMINATION, OR FINDING OF DEATH SHALL NOT BE RECOVERED OR REOPENED BY REASON OF A SUBSEQUENT REPORT OR DETERMINATION WHICH FIXES A DATE OF DEATH EXCEPT THAT AN ACCOUNT SHALL BE REOPENED AND SETTLED UPON THE BASIS OF ANY DATE OF DEATH SO FIXED WHICH IS LATER THAN THAT USED AS A BASIS FOR PRIOR SETTLEMENT. DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE * * *. (ITALICS SUPPLIED.)

IT WILL BE NOTED THAT SECTION 2, QUOTED ABOVE, PROVIDES THAT ANY PERSON WITHIN THE PURVIEW OF THE ACT WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A MISSING, MISSING IN ACTION, ETC., STATUS SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN SUCH STATUS, BE ENTITLED TO RECEIVE THE SAME "PAY AND ALLOWANCES" TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH ABSENCE OR TO WHICH HE MAY BECOME ENTITLED THEREAFTER. THE PHRASE "PAY AND ALLOWANCES" IS NOT INCLUDED UNDER ANY OF THE DEFINITIONS CONTAINED IN THE SAID MISSING PERSONS ACT, AS AMENDED. AND, IT CANNOT BE SAID THAT SUCH PHRASE NECESSARILY INCLUDES ANY OR ALL "ALLOWANCES" WHICH ADMINISTRATIVELY MAY BE AUTHORIZED, ESPECIALLY WITH RESPECT TO TEMPORARY ALLOWANCES SUCH AS PER DIEM WHILE IN A TRAVEL STATUS. CF. 26 COMP. GEN. 165.

HOWEVER, THE QUESTION OF WHETHER A TEMPORARY PER DIEM ALLOWANCE IS WITHIN CONTEMPLATION OF THE PHRASE "PAY AND ALLOWANCES" AS USED IN SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, SUPRA, WOULD SEEM TO BE RESOLVED BY THE LEGISLATIVE HISTORY OF THAT ACT. IN HOUSE REPORT NO. 1674, JUNE 17, 1944, ACCOMPANYING H.R. 4405, WHICH SUBSEQUENTLY BECAME THE SAID AMENDATORY ACT OF JULY 1, 1944, IT WAS STATED WITH RESPECT TO SECTION 2, AS THEREIN REVISED, AS FOLLOWS:

(B) A PERSON IS ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE PAY AND ALLOWANCES HE WAS ENTITLED TO RECEIVE AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR WHICH HE MAY BECOME ENTITLED TO THEREAFTER. INITIALLY OR SUBSEQUENTLY INCLUDED ARE CREDITS FOR FOREIGN SERVICE AND SEA PAY, SUBMARINE, AVIATION, AND PARACHUTE PAY, LONGEVITY, MEDAL PAY, UNIFORM ALLOWANCES, RENTAL, SUBSISTENCE AND QUARTERS ALLOWANCES, INCREASES INCIDENT TO PROMOTION AND LONGEVITY, AND OTHER PAY AND ALLOWANCES THAT MAY BE AUTHORIZED BY LAW. TEMPORARY OR PER DIEM ALLOWANCES ARE NOT INCLUDED. (ITALICS SUPPLIED.)

ALSO, APPENDED TO THE REPORT OF THE HEARING HELD JUNE 15, 1944, BY THE HOUSE OF REPRESENTATIVES ON H.R. 4405, UNDER THE HEADING "1OMISSIONS FROM H.R. 4405" ( REPORT NO. 241, PAGES 2342 AND 2343), IS A PREPARED STATEMENT BY MAJOR GENERAL JAY L. BENEDICT, U.S. ARMY, CONTAINING, INTER ALIA, A STATEMENT RESPECTING THE SAID SECTION 2, AS FOLLOWS:

6. IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT PAY AND ALLOWANCES TO BE CREDITED DURING ABSENCE INCLUDE ALL CONTINUING PAY AND ALLOWANCES TO WHICH ENTITLED AT BEGINNING OF ABSENCE BUT NOT TEMPORARY ALLOWANCES SUCH AS A PER DIEM FOR TRAVEL EXPENSE. H.R. 4405 RETAINS THE PRESENT LANGUAGE AND CHANGE IS NOT DEEMED NECESSARY. (ITALICS SUPPLIED.)

IT IS RECOGNIZED THAT THE ABOVE-QUOTED STATEMENT OF GENERAL BENEDICT REPRESENTS MERELY AN EXPRESSION OF THE POLICY OF THE WAR DEPARTMENT IN THE MATTER AND THAT IT IS NOT NECESSARILY CONTROLLING WITH RESPECT TO THE SCOPE OR INTENDED EFFECT OF THE STATUTE. BUT, AT THE SAME TIME, IT DOES INDICATE THAT THE WAR DEPARTMENT--- EVEN WITHOUT THE BENEFIT OF AN EXPRESSED INTENT ON THE PART OF THE COMMITTEE AS CONTAINED IN HOUSE REPORT NO. 1674, SUPRA, ACCOMPANYING THE PROPOSED AMENDMENT IN 1944--- HAD CONSTRUED THE TERM "PAY AND ALLOWANCES" AS USED IN SECTION 2, SUPRA, AS NOT INCLUDING TEMPORARY PER DIEM ALLOWANCE WHILE IN A TRAVEL STATUS.

ALSO, IT IS RECOGNIZED THAT UNDER THE PROVISIONS OF THAT PORTION OF SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, WHICH IS QUOTED ABOVE, THE ADMINISTRATIVE DETERMINATIONS OF THE ENTITLEMENT OF ANY PERSON WITHIN THE PURVIEW OF THAT ACT "TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT" ARE TO BE CONCLUSIVE. IT IS FUNDAMENTAL, HOWEVER, THAT AUTHORITY TO ADMINISTER THE PROVISIONS OF A STATUTE DOES NOT CARRY WITH IT THE POWER FINALLY TO DETERMINE DISPUTED QUESTIONS OF LAW AS TO THE CONSTRUCTION OF THE STATUTE BEING ADMINISTERED. SEE 21 COMP. GEN. 226, 229, AND CASES THERE CITED, VIZ: IN RE FASSETT, 142 U.S. 479; MEDBURY V. UNITED STATES, 173 U.S. 492, 497; AND DUGAN V. UNITED STATES, 34 C.1CLS. 458. THAT SUCH PRINCIPLE WAS CLEARLY INTENDED TO APPLY TO THE PRESENT STATUTE IS SHOWN BY A REFERENCE TO THE REPORT OF THE HEARING OF JUNE 14, 1944, ON H.R. 4405, RESPECTING THE PROPOSED AMENDMENT TO SECTION 9 OF THE SAID ACT OF MARCH 7, 1942. THE LANGUAGE OF THE AMENDMENT, AS ORIGINALLY PROPOSED, PROVIDED THAT THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE SHOULD HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THE ACT, AND "DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT.' OVERCOME THE OBJECTIONS OF CERTAIN MEMBERS OF THE COMMITTEE THAT SUCH LANGUAGE, STANDING ALONE, MIGHT BE VIEWED AS PRECLUDING THE GENERAL ACCOUNTING OFFICE FROM QUESTIONING ANY DETERMINATION MADE UNDER SUCH BROAD AUTHORITY, WHETHER OR NOT AUTHORIZED BY THAT ACT, AN AMENDMENT--- WHICH LATER WAS INCORPORATED INTO SECTION 9 AS AMENDED--- WAS OFFERED WHEREBY IT WAS PROPOSED TO INSERT IMMEDIATELY BEFORE THE LANGUAGE QUOTED ABOVE, THE PHRASE "FOR THE PURPOSES OF THIS ACT.' SEE, PARTICULARLY, PAGE 2324, ET SEQ., OF SUCH REPORT.

IN THE LIGHT OF THE DISCUSSION AT SUCH HEARINGS THE CONCLUSION IS INESCAPABLE THAT THE SUBSTANTIALLY SIMILAR PROVISION IN THE UNDERSCORED PORTION OF SECTION 9 OF THE ACT, AS AMENDED, WHICH PROVIDES THAT ADMINISTRATIVE DETERMINATIONS OF ENTITLEMENT TO PAY AND ALLOWANCES "UNDER THE PROVISIONS OF THIS ACT" SHALL BE CONCLUSIVE, LIMITS THE CONCLUSIVENESS OF SUCH DETERMINATIONS TO MATTERS WITHIN THE SCOPE OF THAT ACT. IN OTHER WORDS, THE CONCLUSIVE EFFECT WHICH THE STATUTE ACCORDS TO ADMINISTRATIVE DETERMINATIONS RESPECTING THE RIGHT OF A PERSON TO "PAY AND ALLOWANCES" IS NOT CONSTRUED AS AUTHORIZING AN ADMINISTRATIVE OFFICE TO INCLUDE IN THE SETTLEMENT OF AN ACCOUNT AN ITEM WHICH THE STATUTE HAS NOT AUTHORIZED TO BE PAID. AND, SINCE THE COMMITTEE IN CHARGE OF THE AMENDATORY BILL EXPRESSLY STATED UNEQUIVOCALLY IN ITS LEGISLATIVE REPORT THEREON THAT TEMPORARY PER DIEM WHILE IN A TRAVEL STATUS IS NOT PART OF THE "PAY AND ALLOWANCES" TO BE CREDITED FOR A PERIOD WHILE IN A MISSING, MISSING IN ACTION, ETC., STATUS, IT MUST BE HELD THAT SECTION 2 OF THE ACT WAS REVISED AND REENACTED BY THE CONGRESS WITH THAT UNDERSTANDING AND INTENT, AND, HENCE, THAT SUCH ALLOWANCE IS NOT ONE TO WHICH A PERSON IS ENTITLED UNDER THE PROVISIONS OF THAT ACT AS SO AMENDED. CONSEQUENTLY, THE CLAIM HERE INVOLVED WILL BE DISALLOWED AND THE GENERAL ACCOUNTING OFFICE WILL NOT AUTHORIZE OR ALLOW CREDIT FOR PAYMENTS OF PER DIEM HEREAFTER IN SUCH CASES.