B-69694, NOVEMBER 12, 1947, 27 COMP. GEN. 269

B-69694, NOVEMBER 12, 1947, 27 COMP. GEN. 269

SIX MONTHS' DEATH GRATUITY PAY - EFFECT OF DESERTION STATUS AT TIME OF DEATH THE SIX MONTHS' DEATH GRATUITY AUTHORIZED TO BE PAID BY THE ACT OF JUNE 4, 1920, AS AMENDED, UPON A NAVY ENLISTED MAN'S DEATH AT THE RATE OF PAY RECEIVED AT THE DATE OF DEATH, IS NOT PAYABLE IN THE CASE OF AN ENLISTED MAN WHO COMMITTED SUICIDE WHILE IN A DESERTER STATUS WHEN HE WAS NOT RECEIVING OR ENTITLED TO PAY, NOTWITHSTANDING THE OPINION OF THE BUREAU OF MEDICINE AND SURGERY THAT SUCH MAN WAS INSANE FROM THE TIME HE COMMENCED HIS UNAUTHORIZED ABSENCE TO THE DATE OF DEATH.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, NOVEMBER 12, 1947:

I HAVE YOUR LETTER OF SEPTEMBER 15, 1947, REQUESTING DECISION AS TO WHETHER MRS. AMELIA SAAVEDRA CORDOVA IS ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AUTHORIZED UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, BY REASON OF THE DEATH OF HER HUSBAND, LEVI AMOS CORDOVA, FIREMAN FIRST CLASS, UNITED STATES NAVY, UNDER THE CIRCUMSTANCES HEREINAFTER STATED.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER SHOW THAT MR. CORDOVA, AN ENLISTED MAN IN THE REGULAR NAVY, WAS ABSENT OVER LEAVE FROM JUNE 8, 1946 TO JULY 9, 1946; THAT ON THE LATTER DATE HE WAS DECLARED A DESERTER FROM THE UNITED STATES NAVY RECEIVING STATION, SEATTLE, WASHINGTON; AND THAT HE DIED IN LOS ANGELES, CALIFORNIA, JULY 19, 1946, AS A RESULT OF " STRANGULATION BY HANGING.' A REPORT FROM THE COMMANDANT, UNITED STATES NAVAL BASE, TERMINAL ISLAND, SAN PEDRO, CALIFORNIA, DATED JULY 29, 1946, STATES THAT CORDOVA WAS NOT IN LINE OF DUTY AT THE TIME OF HIS DEATH, HAVING BEEN DECLARED A DESERTER JULY 9, 1946, AND REMAINING ABSENT WITHOUT LEAVE UNTIL HIS DEATH, THEREFORE, WAS IN A NON-PAY STATUS AND THAT HE "MET HIS DEATH BY SUICIDE.' A SUPPLEMENTAL REPORT DATED OCTOBER 15, 1946, FROM THE OFFICER IN CHARGE, U.S. NAVY RECRUITING STATION, ALBUQUERQUE, NEW MEXICO, WHICH IS BASED UPON STATEMENTS OF A NUMBER OF FRIENDS AND RELATIVES OF THE DECEASED, CONCLUDES THAT AT THE TIME OF HIS DEATH HE MAY HAVE BEEN SUFFERING FROM A MENTAL AND/OR NERVOUS CONDITION CAUSED BY HIS COMBAT EXPERIENCES. A REPORT FROM THE BUREAU OF MEDICINE AND SURGERY DATED NOVEMBER 25, 1946, STATES THAT "IT IS THE OPINION OF THIS BUREAU THAT THE DECEDENT WAS PSYCHOTIC AND THEREFORE INSANE AT THE TIME HE COMMENCED HIS UNAUTHORIZED ABSENCE AND REMAINED SO UNTIL THE COMMISSION OF THE ACT WHICH RESULTED IN HIS DEATH.'

THE JUDGE ADVOCATE GENERAL OF THE NAVY AFTER EXAMINING THE ENTIRE RECORD IN THE CASE CONCLUDED THAT MR. CORDOVA WAS NOT IN A PAY STATUS AT THE TIME OF HIS DEATH AND, THEREFORE, THAT HIS WIDOW WAS NOT ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY. HOWEVER, IT IS POINTED OUT IN YOUR LETTER THAT SUCH OPINION WAS BASED UPON A DECISION OF THIS OFFICE "RENDERED OVER TWENTY-TWO YEARS AGO" (A-6483, MARCH 12, 1925, 4 COMP. GEN. 750) HOLDING THAT AN ENLISTED MAN OF THE NAVY WHO, WITHOUT PROPER AUTHORITY, ABSENTED HIMSELF FROM HIS ORGANIZATION, STATION OR DUTY, WAS NOT ENTITLED TO PAY AND ALLOWANCES DURING SUCH ABSENCE, IRRESPECTIVE OF RESPONSIBILITY OR IRRESPONSIBILITY, AND THAT SUCH DECISION REFERS TO "IRRESPONSIBILITY" AND NOT "INSANITY.' CONSEQUENTLY, DOUBT IS EXPRESSED AS TO WHETHER THE WORD "IRRESPONSIBILITY" AS USED IN THE SAID DECISION WAS INTENDED TO BE SYNONYMOUS WITH "INSANITY," AND, ALSO, WHETHER AN ENLISTED MAN UNDER THE CIRCUMSTANCES HERE INVOLVED MAY BE REGARDED AS IN A PAY STATUS AT THE TIME OF HIS DEATH WITHIN THE MEANING OF THE ACT OF JUNE 4, 1920, AS AMENDED.

THE SAID ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, PROVIDES IN PART AS FOLLOWS:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * *

AT THE OUTSET IT IS NOTED THAT ALTHOUGH THE ACT OF JUNE 4, 1920, HAS BEEN AMENDED AND REENACTED SEVERAL TIMES SINCE ITS ENACTMENT IN 1920--- THE LAST REENACTMENT HAVING OCCURRED ON MARCH 22, 1944, 58 STAT. 129--- THE PROVISION IN THE 1920 ACT AUTHORIZING THE PAYMASTER GENERAL OF THE NAVY TO PAY "AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH," HAS REMAINED UNCHANGED.

THE DECISION OF MARCH 12, 1925, 4 COMP. GEN. 750, REFERRED TO IN YOUR LETTER, INVOLVED THE RIGHT OF A GUARDIAN OF A FORMER ENLISTED MAN IN THE NAVY TO ACTIVE DUTY PAY ON HIS ACCOUNT FOR THE PERIOD FROM JUNE 27, 1922, THE DATE HE ABSENTED HIMSELF FROM HIS VESSEL WITHOUT AUTHORITY, TO OCTOBER 9, 1923, THE DATE THE MARK OF DESERTION WAS REMOVED AND HE WAS DISCHARGED FROM THE NAVY BECAUSE OF PHYSICAL DISABILITY. THE NAVY DEPARTMENT WAS UNAWARE OF THE MAN'S WHEREABOUTS FROM JUNE 27, 1922 TO JULY 27, 1923, WHEN NOTIFIED THAT HE WAS A "MENTAL PATIENT" IN BOISE, IDAHO. THE ENLISTED MAN WAS EXAMINED ON AUGUST 20, 1923, BY A NAVAL MEDICAL BOARD AND FOUND TO BE SUFFERING FROM "ANEMIA, PERNICIOUS" ORIGIN IN LINE OF DUTY WITH MENTALITY "BELOW PAR.' AFFIDAVITS EXECUTED BY THREE PRACTICING PHYSICIANS PURPORTED TO SHOW THAT THE ENLISTED MAN WAS "MENTALLY IRRESPONSIBLE" AT THE TIME HE ABSENTED HIMSELF FROM NAVAL CONTROL AND DUTY WITHOUT AUTHORITY AND THAT SUCH CONDITION CONTINUED DURING THE ENTIRE PERIOD OF HIS ABSENCE. DISALLOWING THE GUARDIAN'S CLAIM FOR ACTIVE DUTY PAY DURING THE PERIOD THE ENLISTED MAN WAS ABSENT WITHOUT AUTHORITY, IT WAS STATED:

THE LAWS AND REGULATIONS GOVERNING THE PAY FOR AN ENLISTED MAN IN THE NAVY ARE TO THE EFFECT THAT NO PAY OR ALLOWANCES ACCRUE TO SUCH ENLISTED MAN WHO WITHOUT PROPER AUTHORITY ABSENTS HIMSELF FROM HIS ORGANIZATION, STATION, OR DUTY, AND SUCH IS THE CASE WHERE THERE IS ABSENCE BECAUSE OF SICKNESS OR DISABILITY AND IRRESPECTIVE OF THE CONDITION BEING ONE OF RESPONSIBILITY OR IRRESPONSIBILITY.

THE ENLISTED MAN IN THAT CASE APPARENTLY HAD NOT BEEN DECLARED INSANE BY A COURT OF COMPETENT JURISDICTION, BUT IT SEEMS CLEAR FROM THE FACTS THERE INVOLVED THAT HE WAS "MENTALLY IRRESPONSIBLE" AND THAT THE WORD "IRRESPONSIBLE" WAS USED IN SAID DECISION TO DENOTE SUCH MENTAL CONDITION. SEE, ALSO, 7 COMP. GEN. 812; 21 ID. 845; AND MERWIN V. UNITED STATES, 78 C.1CLS. 561.

IN DECISION OF OCTOBER 30, 1928, 8 COMP. GEN. 217, IT WAS HELD THAT UNDER THE SAID ACT OF JUNE 4, 1920, THE GRATUITY WAS NOT PAYABLE IN THE CASE OF A NAVY ENLISTED MAN WHO WAS KILLED IN AN AUTOMOBILE ACCIDENT WHILE ABSENT WITHOUT LEAVE. THAT DECISION AGREED WITH THE CONCLUSION OF THE SECRETARY OF THE NAVY THAT THE GRATUITY WAS NOT PAYABLE BECAUSE THE ENLISTED MAN WAS NOT IN A PAY STATUS WHILE ABSENT WITHOUT LEAVE AND, HENCE, HAD NO RATE OF PAY UNDER THE LAW AT THE TIME OF HIS DEATH ON WHICH TO COMPUTE THE DEATH GRATUITY. IN DECISION OF OCTOBER 16, 1942, B-29310, TO LIEUTENANT COLONEL CARL WITCHER, FINANCE OFFICER, UNITED STATES ARMY (RECONSIDERED JUNE 29, 1943, AT THE REQUEST OF THE SECRETARY OF WAR), IT WAS CONCLUDED THAT UNDER THE SIX MONTHS' DEATH GRATUITY STATUTE APPLICABLE TO ENLISTED MEN OF THE ARMY, 10 U.S.C. 903, WHICH IS SIMILAR TO THE NAVY STATUTE, AN ARMY ENLISTED MAN WHO WAS ABSENT WITHOUT AUTHORITY AT THE TIME OF HIS DEATH WAS NOT RECEIVING OR ENTITLED TO RECEIVE ACTIVE DUTY PAY, AND, HENCE, HAD NO RATE OF PAY UPON WHICH TO COMPUTE THE SIX MONTHS' DEATH GRATUITY, ALTHOUGH THE MAN'S ABSENCE WAS ADMINISTRATIVELY REGARDED AS EXCUSED BECAUSE HE WAS "MENTALLY UNSOUND" AT THE TIME. ALSO, IN DECISION OF DECEMBER 15, 1939, B -6196, TO LIEUTENANT COLONEL WILLIAM M. DIXON, FINANCE OFFICER, UNITED STATES ARMY, THERE WAS CONSIDERED THE QUESTION OF WHETHER A SIX MONTHS' DEATH GRATUITY MIGHT BE PAID IN THE CASE OF AN ENLISTED MAN OF THE ARMY WHO WAS ABSENT WITHOUT AUTHORITY FROM APRIL 5, TO APRIL 14, 1939, THE DATE OF HIS DEATH, SINCE IT APPEARED THAT HE WAS "MENTALLY UNSOUND" AT THE TIME OF HIS DEATH. IN THAT DECISION, AFTER REFERRING TO 4 COMP. GEN. 750, SUPRA, AND 8 COMP. GEN. 217, 221, SUPRA, IT WAS HELD THAT SINCE THE ENLISTED MAN HAD NO RATE OF PAY UNDER THE LAW AT THE TIME OF HIS DEATH UPON WHICH TO COMPUTE A DEATH GRATUITY EQUAL TO SIX MONTHS' PAY, PAYMENT WAS NOT AUTHORIZED. IT MAY BE NOTED, HOWEVER, THAT THIS OFFICE OFFERED NO OBJECTION TO A SUBSEQUENTLY PROPOSED PRIVATE BILL FOR THE RELIEF OF THE WIDOW OF THE ARMY ENLISTED MAN INVOLVED IN THAT CASE, AND THAT SUCH RELIEF BILL WAS ENACTED INTO LAW AND BECAME PRIVATE ACT NO. 535, APPROVED AUGUST 13, 1940, 54 STAT. 1352, WHICH DIRECTED THE SECRETARY OF WAR TO PAY THE WIDOW "SUCH SUM AS WOULD OTHERWISE HAVE BEEN PAID TO SAID WIDOW AS A DEATH GRATUITY * * * HAD THE SAID DONALD E. ELLIOTT DIED WHILE IN A PAY STATUS.'

FOLLOWING THE PRINCIPLES OF THOSE DECISIONS, THE ENLISTED MAN HERE INVOLVED WAS NOT RECEIVING OR ENTITLED TO RECEIVE THE PAY ON THE DATE OF HIS DEATH, AND, CONSEQUENTLY, HAD NO RATE OF PAY UPON WHICH A DEATH GRATUITY MAY BE COMPUTED PURSUANT TO THE STATUTE. SINCE THE OPINION THAT HE WAS INSANE AT THE TIME HE COMMENCED HIS UNAUTHORIZED ABSENCE AND REMAINED SO UNTIL HIS DEATH MAY NOT BE VIEWED AS RESTORING HIM TO A PAY STATUS, IT MUST BE CONCLUDED THAT UNDER EXISTING LAW MRS. CORDOVA IS NOT ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES STATED.