B-85145, JUNE 3, 1949, 28 COMP. GEN. 688

B-85145: Jun 3, 1949

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SIX MONTHS' DEATH GRATUITY PAY - EFFECT OF ABSENCE WITHOUT LEAVE FOR ONE HOUR AT TIME OF DEATH A MARINE CORPS ENLISTED MAN WHO DIED FROM INJURIES RECEIVED NOT AS THE RESULT OF HIS OWN MISCONDUCT BUT WHILE HE WAS ABSENT WITHOUT LEAVE FOR APPROXIMATELY ONE HOUR IS TO BE REGARDED. AS HAVING BEEN IN A PAY STATUS SO AS TO HAVE HAD A "RATE" OF PAY UPON WHICH TO COMPUTE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED UNDER THE ACT OF JUNE 4. 1949: REFERENCE IS MADE TO YOUR LETTER OF MARCH 29. SO AS TO HAVE HAD A RATE OF PAY UPON WHICH TO BASE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED UNDER THE ACT OF JUNE 4. ARE ENTITLED TO RECEIVE AN AMOUNT EQUAL TO "SIX MONTHS' PAY" AT THE "RATE" RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH.

B-85145, JUNE 3, 1949, 28 COMP. GEN. 688

SIX MONTHS' DEATH GRATUITY PAY - EFFECT OF ABSENCE WITHOUT LEAVE FOR ONE HOUR AT TIME OF DEATH A MARINE CORPS ENLISTED MAN WHO DIED FROM INJURIES RECEIVED NOT AS THE RESULT OF HIS OWN MISCONDUCT BUT WHILE HE WAS ABSENT WITHOUT LEAVE FOR APPROXIMATELY ONE HOUR IS TO BE REGARDED, IN VIEW OF THE APPLICABLE REGULATIONS, AS HAVING BEEN IN A PAY STATUS SO AS TO HAVE HAD A "RATE" OF PAY UPON WHICH TO COMPUTE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED UNDER THE ACT OF JUNE 4, 1920, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 3, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1949, REQUESTING DECISION AS TO WHETHER THE LATE CLIFFORD PURCELL, PRIVATE, FIRST CLASS, U.S. MARINE CORPS (DECEASED), MAY BE REGARDED AS HAVING BEEN IN A PAY STATUS AT THE TIME OF HIS DEATH, UNDER THE CIRCUMSTANCES HERE INVOLVED, SO AS TO HAVE HAD A RATE OF PAY UPON WHICH TO BASE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, WHICH PROVIDES THAT CERTAIN BENEFICIARIES OF OFFICERS AND ENLISTED MEN OF THE NAVY AND MARINE CORPS, UPON OFFICIAL NOTIFICATION OF THE OFFICER'S OR ENLISTED MAN'S DEATH FROM WOUNDS OR DISEASE NOT THE RESULT OF HIS OWN MISCONDUCT, ARE ENTITLED TO RECEIVE AN AMOUNT EQUAL TO "SIX MONTHS' PAY" AT THE "RATE" RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH.

IT APPEARS THAT ON MAY 24, 1948, AT APPROXIMATELY 11 P.M., PURCELL AND TWO OTHER MARINE CORPS ENLISTED MEN LEFT THEIR STATION AT THE NAVAL ORDNANCE LABORATORY, WHITE OAK, MARYLAND, TO TAKE AN UNAUTHORIZED RIDE IN A STATION VEHICLE; THAT PURCELL WAS INJURED ABOUT 15 MINUTES LATER WHEN THE VEHICLE COLLIDED WITH AN ELECTRIC POWER POLE APPROXIMATELY THREE MILES FROM THE STATION; THAT HE DIED IN THE LELAND MEMORIAL HOSPITAL, RIVERDALE, MARYLAND, ABOUT MIDNIGHT, AT WHICH TIME HE HAD BEEN ABSENT WITHOUT LEAVE FOR APPROXIMATELY ONE HOUR. ALSO, IT IS STATED THAT A BOARD OF INVESTIGATION FOUND, OR WAS OF THE OPINION, THAT NONE OF THE ENLISTED MEN WERE UNDER THE INFLUENCE OF ALCOHOL AND THAT THE ACCIDENT WAS DUE TO ONE OF THE OTHER ENLISTED MEN'S INEFFICIENT DRIVING AT AN EXCESSIVE RATE OF SPEED. ACCORDINGLY, THE NAVY DEPARTMENT DETERMINED THAT PURCELL'S DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT.

IN THE DECISION REFERRED TO IN YOUR LETTER (A-97631, OCTOBER 18, 1938), AN ARMY ENLISTED MAN, WHILE ABSENT WITHOUT LEAVE, DIED, WITHIN 24 HOURS AFTER HE LEFT HIS STATION, AS THE RESULT OF HAVING BEEN RUN OVER BY A BUS WHILE AWAITING TRANSPORTATION BACK TO HIS POST. THE ARMY REGULATIONS IN EFFECT AT THAT TIME PROVIDED THAT AUTHORIZED ABSENCES OF LESS THAN 24 HOURS DID NOT AFFECT PAY AND ALLOWANCES, AND, CONSEQUENTLY, IT WAS HELD THAT THE MAN HAD A "RATE" OF PAY AT THE TIME OF HIS DEATH UPON WHICH TO COMPUTE A DEATH GRATUITY "EQUAL TO SIX MONTHS' PAY.' INASMUCH AS NAVY INSTRUCTIONS AND REGULATIONS ALSO PROVIDE FOR PRESERVATION OF A PAY STATUS FOR AN ABSENCE OVER LEAVE OR WITHOUT LEAVE OF LESS THAN 24 HOURS, YOU ASK WHETHER SUCH DECISION IS APPLICABLE TO THE CASE HERE INVOLVED AND TO CASES INVOLVING NAVY AND MARINE CORPS PERSONNEL, GENERALLY.

THE INSTRUCTIONS IN EFFECT ON THE DATE OF THE ENLISTED MAN'S DEATH (ARITCLE 28-1 (2) MARINE CORPS MANUAL, AND PARAGRAPH 54361-2 B, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL), PROVIDED THAT A FRACTIONAL PART OF A DAY WILL NOT BE CONSIDERED IN MAKING CHECK AGES OF PAY AND ALLOWANCES FOR ABSENCE AND, IF THE UNAUTHORIZED ABSENCE COVERS A PERIOD OF LESS THAN 24 CONSECUTIVE HOURS, NO CHECK AGE WILL BE MADE IN THE MAN'S PAY ACCOUNT. SEE, ALSO, U.S. NAVY REGULATIONS, 1948, APPROVED AUGUST 9, 1948 (ARTICLE 1929), WHICH--- FOLLOWING SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 748--- PROVIDES THAT PERSONS ABSENT FROM THEIR STATIONS OR DUTY, EITHER WITHOUT LEAVE OR AFTER THEIR LEAVE HAS EXPIRED, SHALL FORFEIT TO THE UNITED STATES ALL PAY AND ALLOWANCES ACCRUING DURING SUCH UNAUTHORIZED ABSENCE; BUT THE SAID 1948 REGULATION, LIKE THE PRIOR NAVY INSTRUCTIONS PROVIDES, IN EFFECT, THAT NO CHECK AGE OF PAY WILL BE MADE FOR AN UNAUTHORIZED ABSENCE OF LESS THAN 24 CONSECUTIVE HOURS. IN VIEW OF SUCH INSTRUCTIONS, THE RULE APPLIED IN THE DECISION OF OCTOBER 18, 1938, SUPRA, INVOLVING AN ARMY ENLISTED MAN, IS EQUALLY APPLICABLE TO NAVY AND MARINE CORPS PESONNEL AND, SINCE THE ENLISTED MAN HERE INVOLVED HAD BEEN ABSENT ONLY A LITTLE OVER ONE HOUR AT THE TIME OF HIS DEATH, HE IS TO BE REGARDED AS HAVING BEEN IN A PAY STATUS SO AS TO HAVE HAD A "RATE" OF PAY UPON WHICH TO COMPUTE FOR PAYMENT AN AMOUNT ,EQUAL TO SIX MONTHS' PAY" WITHIN THE CONTEMPLATION OF THE SAID ACT OF JUNE 4, 1920, AS AMENDED, IF THE PAYMENT OF SUCH AMOUNT BE OTHERWISE PROPER.