B-87367, OCTOBER 6, 1949, 29 COMP. GEN. 168

B-87367: Oct 6, 1949

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TRANSPORTATION - DEPENDENTS OF PERSONS REPORTED AS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS A NAVY ENLISTED MAN WHO WAS REPORTED MISSING AS THE RESULT OF A MOTOR LAUNCH SWAMPING WHILE EN ROUTE TO HIS SHIP WITH A LIBERTY PARTY IN A FOREIGN PORT. AUTHORIZING TRANSPORTATION OF DEPENDENTS OF ANY PERSON ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS MISSING AS THE RESULT OF NAVAL OPERATIONS TO THE OFFICIAL RESIDENCE OF RECORD. 1949: REFERENCE IS MADE TO YOUR LETTER OF JUNE 21. WAS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS WITHIN THE MEANING OF SECTION 12 OF THE MISSING PERSONS ACT. WHETHER REIMBURSEMENT IS AUTHORIZED FOR TRAVEL OF HIS DEPENDENTS FROM ST. RAYMOND JULIUS PONCEL WAS REPORTED MISSING AS THE RESULT OF A MOTOR LAUNCH SWAMPING WHILE EN ROUTE TO THE U.S.S.

B-87367, OCTOBER 6, 1949, 29 COMP. GEN. 168

TRANSPORTATION - DEPENDENTS OF PERSONS REPORTED AS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS A NAVY ENLISTED MAN WHO WAS REPORTED MISSING AS THE RESULT OF A MOTOR LAUNCH SWAMPING WHILE EN ROUTE TO HIS SHIP WITH A LIBERTY PARTY IN A FOREIGN PORT, A MISHAP REASONABLY INCIDENT TO NAVAL OPERATIONS, MAY BE CONSIDERED AS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS WITHIN THE MEANING OF SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, AUTHORIZING TRANSPORTATION OF DEPENDENTS OF ANY PERSON ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS MISSING AS THE RESULT OF NAVAL OPERATIONS TO THE OFFICIAL RESIDENCE OF RECORD, OR, UPON APPLICATION BY THE DEPENDENT, TO SUCH OTHER LOCATION AS MAY BE ADMINISTRATIVELY DETERMINED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 6, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1949, WITH ENCLOSURES, REQUESTING DECISION (1) AS TO WHETHER, UNDER THE CIRCUMSTANCE INVOLVED, IT MAY BE HELD THAT RAYMOND JULIUS PONCEL, MACHINIST'S MATE, SECOND CLASS, UNITED STATES NAVY, WAS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS WITHIN THE MEANING OF SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, 60 STAT. 5, 50 U.S.C., WAR, APP., 1012, AND (2), IF SO, WHETHER REIMBURSEMENT IS AUTHORIZED FOR TRAVEL OF HIS DEPENDENTS FROM ST. PETERSBURG, FLORIDA, TO PORTSMOUTH, VIRGINIA, A POINT OTHER THAN HIS OFFICIAL RESIDENCE OF RECORD.

IT APPEARS THAT ON FEBRUARY 16, 1948, RAYMOND JULIUS PONCEL WAS REPORTED MISSING AS THE RESULT OF A MOTOR LAUNCH SWAMPING WHILE EN ROUTE TO THE U.S.S. MIDWAY WITH A LIBERTY PARTY IN THE GULF OF HYERES, FRANCE, 3,000 YARDS FROM THE FRENCH COAST AND 500 YARDS FROM THE SAID VESSEL. ALSO, IT APPEARS THAT THE ENLISTED MAN'S OFFICIAL RESIDENCE OF RECORD WAS MINNEAPOLIS, MINNESOTA; THAT HIS DEPENDENTS (WIFE AND INFANT SON) WERE RESIDING IN ST. PETERSBURG, FLORIDA, WHEN NOTICE OF HIS STATUS WAS RECEIVED; THAT THEY TRAVELED FROM THE LATTER CITY TO PORTSMOUTH, VIRGINIA, FEBRUARY 29 TO MARCH 1, 1948; AND THAT THEY RETURNED TO ST. PETERSBURG ON MARCH 5, 1948.

SECTION 12 OF THE SAID MISSING PERSONS ACT PROVIDES, INTER ALIA, THAT THE DEPENDENTS OF ANY PERSON ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS "MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS," MAY BE MOVED TO THE OFFICIAL RESIDENCE OF RECORD OF SUCH PERSON, OR, UPON APPLICATION BY SUCH DEPENDENTS, TO SUCH OTHER LOCATION AS MAY BE APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE. PARAGRAPH 9, BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 2-49, DATED JANUARY 5, 1949, PROVIDES THAT "THE TERM "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS" * * * IS NOT LIMITED TO OPERATIONS INCIDENT TO ACTUAL WARFARE, BUT INCLUDES DUTIES DIRECTLY CONNECTED WITH MILITARY OR WARLIKE FUNCTIONS AS DISTINGUISHED FROM ADMINISTRATIVE FUNCTIONS.' SAID PROVISION IS IN CONFORMITY WITH THE PROVISIONS OF THE ACT AS CONSTRUED IN DECISIONS OF THIS OFFICE PERTAINING THERETO. 21 COMP. GEN. 1090; 23 ID. 349; AND DECISIONS B 51701 OF JANUARY 10, 1946, MAY 14, 1947, AND OCTOBER 28, 1948, 28 COMP. GEN. 270.

IT APPEARS THAT YOUR QUESTION AS TO WHETHER THE ENLISTED MAN HERE INVOLVED MAY BE HELD TO BE MISSING AS A RESULT OF MILITARY OR NAVAL OPERATIONS ARISES BY REASON OF LANGUAGE USED IN THE DECISION OF OCTOBER 28, 1948, MENTIONED ABOVE (INVOLVING THE TRANSPORTATION OF THE DEPENDENT OF A NAVAL OFFICER WHOSE DEATH RESULTED FROM A SELF-INFLICTED GUNSHOT WOUND), IN WHICH IT WAS HELD, WITH RESPECT TO DISPUTED QUESTIONS OF LAW, THAT "A DETERMINATION BY THE SECRETARY OF THE NAVY OR HIS DESIGNEE * * * THAT THE CIRCUMSTANCES SURROUNDING THE DEATH OF A PERSON WHILE ON ACTIVE DUTY ARE SUCH AS TO BRING IT WITHIN SECTION 12 OF THE ACT SO AS TO ENTITLE HIS DEPENDENT TO PAYMENT OF TRANSPORTATION EXPENSES, MAY NOT BE ACCEPTED AS ENTITLING THE DEPENDENT TO PAYMENT OF TRANSPORTATION EXPENSES WHERE THE RECORD FAILS TO DISCLOSE THAT THE PERSON WAS KILLED "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS.'" IN THE PRESENT CASE, SINCE THE RECORD SHOWS THAT THE ENLISTED MAN WAS REPORTED MISSING AS THE RESULT OF A MISHAP UNDER CIRCUMSTANCES WHICH REASONABLY MAY BE CONSIDERED AS INCIDENT TO NAVAL OPERATIONS, THERE APPEARS NO COGENT REASON WHY IT COULD NOT PROPERLY BE HELD THAT HE WAS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS WITHIN THE MEANING OF THE SAID MISSING PERSONS ACT. HOWEVER, EVEN IF IT BE DETERMINED BY YOU OR YOUR DESIGNEE THAT MR. PONCEL WAS MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, SINCE THE TRAVEL OF HIS DEPENDENTS TO A POINT OTHER THAN HIS OFFICIAL RESIDENCE OF RECORD DOES NOT APPEAR TO HAVE BEEN PURSUANT TO PRIOR APPLICATION AND APPROVAL AS REQUIRED BY THE ACT, REIMBURSEMENT IS NOT AUTHORIZED. SEE 25 COMP. GEN. 45; AND DECISION B-88273, DATED AUGUST 25, 1949, 29 COMP. GEN. 94.