B-91223, JANUARY 9, 1950, 29 COMP. GEN. 294

B-91223: Jan 9, 1950

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SIX MONTHS' DEATH GRATUITY - EFFECT OF ABSENCE WITHOUT LEAVE AT TIME OF DEATH A MEMBER OF THE ARMED FORCES WHO DIED BY SUICIDE DURING A PERIOD OF ABSENCE WITHOUT LEAVE OCCURRING AFTER THE EFFECTIVE DATE OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 IS TO BE REGARDED AS CONTINUING IN A PAY STATUS DURING SUCH ABSENCE FOR THE PURPOSE OF COMPUTING THE SIX MONTHS' DEATH GRATUITY AT THE RATE OF PAY RECEIVED AT THE DATE OF DEATH AND SUCH GRATUITY. MAY BE PAID UPON ADMINISTRATIVE DETERMINATION THAT DEATH WAS NOT DUE TO MISCONDUCT. THERE WAS RECEIVED YOUR COMMUNICATION OF NOVEMBER 10. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THAT HIS DEATH WAS IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

B-91223, JANUARY 9, 1950, 29 COMP. GEN. 294

SIX MONTHS' DEATH GRATUITY - EFFECT OF ABSENCE WITHOUT LEAVE AT TIME OF DEATH A MEMBER OF THE ARMED FORCES WHO DIED BY SUICIDE DURING A PERIOD OF ABSENCE WITHOUT LEAVE OCCURRING AFTER THE EFFECTIVE DATE OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 IS TO BE REGARDED AS CONTINUING IN A PAY STATUS DURING SUCH ABSENCE FOR THE PURPOSE OF COMPUTING THE SIX MONTHS' DEATH GRATUITY AT THE RATE OF PAY RECEIVED AT THE DATE OF DEATH AND SUCH GRATUITY, NOT BEING A PART OF THE PAY AND ALLOWANCES FORFEITED BY SECTION 4 (B) FOR ABSENCE WITHOUT LEAVE, MAY BE PAID UPON ADMINISTRATIVE DETERMINATION THAT DEATH WAS NOT DUE TO MISCONDUCT.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. H. G. LEDGERWOOD, DEPARTMENT OF THE ARMY, JANUARY 9, 1950:

BY INDORSEMENT OF DECEMBER 6, 1949, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THERE WAS RECEIVED YOUR COMMUNICATION OF NOVEMBER 10, 1949, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, IN FAVOR OF MRS. HELEN C. ALTAMIRANO, BOX 136, RINCON, NEW MEXICO, AS MOTHER AND DESIGNATED BENEFICIARY, COVERING THE SIX MONTHS' DEATH GRATUITY PAY IN THE CASE OF HER LATE SON, EDWARD C. ALTAMIRANO, PRIVATE, COAST ARTILLERY CORPS.

THE OFFICIAL REPORT OF THE ENLISTED MAN'S DEATH, WHICH ACCOMPANIED YOUR COMMUNICATION, REFLECTS THAT HE DIED JULY 11, 1949, OF SELF INFLICTED GUNSHOT WOUNDS WHILE MENTALLY UNSOUND; THAT HIS DEATH WAS IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT; AND THAT HE HAD BEEN ABSENT WITHOUT LEAVE FROM 6 A.M., JULY 8, 1949, BUT THAT THE ADMINISTRATIVE CHARGE OF ABSENT WITHOUT LEAVE WAS REMOVED BECAUSE OF MENTAL UNSOUNDNESS AT THE BEGINNING OF THE ABSENT WITHOUT LEAVE STATUS.

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903, PROVIDES IN PART AS FOLLOWS:

HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY 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 OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF DEATH. * * *

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, MAKES SIMILAR PROVISIONS WITH RESPECT TO THE NAVY.

THE LAWS AND REGULATIONS GOVERNING THE PAY OF ENLISTED MEN OF THE ARMY AND NAVY, IN EFFECT PRIOR TO THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, UNIFORMLY WERE APPLIED AS PLACING IN A NONPAY STATUS AN ENLISTED MAN WHO, WITHOUT PROPER AUTHORITY, ABSENTED HIMSELF FROM HIS ORGANIZATION, STATION, OR DUTY, REGARDLESS OF WHETHER THE ABSENCE RESULTED FROM SICKNESS OR DISABILITY AND IRRESPECTIVE OF HIS CONDITION BEING ONE OF RESPONSIBILITY OR IRRESPONSIBILITY. SINCE, IN SUCH CASE, THE ENLISTED MAN WAS NOT IN A PAY STATUS AND, HENCE, HAD NO RATE OF PAY ON WHICH TO COMPUTE THE GRATUITY, IT NECESSARILY WAS HELD THAT THE GRATUITY WAS NOT PAYABLE WHERE THE ENLISTED MAN DIED WHILE IN AN ABSENT WITHOUT LEAVE STATUS, NOTWITHSTANDING HE MAY NOT HAVE BEEN RESPONSIBLE BECAUSE OF INSANITY, OR OTHERWISE, FOR HIS UNAUTHORIZED ABSENCE. DECISION OF NOVEMBER 12, 1947, B -69694, 27 COMP. GEN. 269, MENTIONED IN YOUR COMMUNICATION, WHICH CONSIDERED A CASE INVOLVING AN UNAUTHORIZED ABSENCE FROM JUNE 8 TO JULY 9, 1946, IS TO SUCH EFFECT.

HOWEVER, SECTION 4 (B) OF THE SAID ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES, IN PART, AS FOLLOWS:

(B) AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHEN DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS FOR ANY PERIOD IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT; WHEN ABSENT WITH LEAVE FOR OTHER CAUSES, MEMBERS SHALL BE ENTITLED DURING SUCH ABSENCE NOT EXCEEDING THE AGGREGATE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE AND TO ANY ADDITIONAL ALLOWANCE OR ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS WHILE ON LEAVE. WHEN THE SECRETARY AUTHORIZES MEMBERS TO BE ABSENT IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, THEY SHALL NOT BE ENTITLED TO ANY PAY OR ALLOWANCES DURING SUCH ABSENCE. WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * * (ITALICS SUPPLIED.)

IN VIEW OF THE PROVISIONS OF SUCH STATUTE AND AS THE ADMINISTRATIVE CHARGE OF ABSENT WITHOUT LEAVE IN THIS CASE WAS REMOVED BECAUSE OF MENTAL UNSOUNDNESS AT THE BEGINNING OF SUCH ABSENCE, YOU REQUEST DECISION AS TO THE PROPRIETY OF PAYMENT ON THE SUBMITTED VOUCHER.

CONTRARY TO THE SITUATION UNDER THE PRIOR LAWS AND REGULATIONS, THE ITALICIZED PROVISIONS OF THE QUOTED SECTION 4 (B) PLAINLY CONTEMPLATE THAT ENLISTED MEN OF THE ARMED FORCES SHALL CONTINUE IN A PAY STATUS DURING PERIODS OF ABSENCE WITHOUT LEAVE. SUCH PROVISIONS WERE SO APPLIED IN B- 87857, SEPTEMBER 16, 1949, AUTHORIZING SETTLEMENT IN FAVOR OF THE WIDOW OF AN ENLISTED MAN OF THE ARMY WHO DIED FEBRUARY 23, 1949, WHILE ABSENT WITHOUT LEAVE, OF THE NET BALANCE OF PAY ACCRUING FROM THE BEGINNING OF SUCH ABSENCE, JANUARY 24, 1949, TO DATE OF DEATH, UPON A SHOWING THAT HIS UNAUTHORIZED ABSENCE WAS EXCUSED AS UNAVOIDABLE. ACCORDINGLY, THE SAID DECISION OF NOVEMBER 12, 1947, AND PRIOR DECISIONS OF LIKE EFFECT, ARE NOT FOR CONSIDERATION IN ANY CASE WHERE THE UNAUTHORIZED ABSENCE MAY BE REGARDED AS COMING WITHIN THE PURVIEW OF THE SAID SECTION 4 (B). ALSO, IT IS ONLY THE PAY AND ALLOWANCES ACCRUING TO AN ENLISTED MAN DURING A PERIOD OF ABSENCE WITHOUT LEAVE WHICH ARE FORFEITED BY THOSE STATUTORY PROVISIONS UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. THE SIX MONTHS' DEATH GRATUITY IS NOT A PART OF AN ENLISTED MAN'S "PAY AND ALLOWANCES" AND, CONSEQUENTLY, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS OF THE SIX MONTHS' DEATH GRATUITY IN CASES OF THIS NATURE SOLELY FOR THE REASON THAT THE UNAUTHORIZED ABSENCES HAD NOT BEEN EXCUSED AS UNAVOIDABLE.

THE ENTIRE PERIOD OF THIS DECEDENT'S UNAUTHORIZED ABSENCE WAS SUBSEQUENT TO THE EFFECTIVE DATE OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 AND, ACCORDINGLY, HE WAS IN A PAY STATUS ON THE DATE OF HIS DEATH. ON THE BASIS OF THE SHOWING IN THE OFFICIAL REPORT OF DEATH, THAT THIS ENLISTED MAN'S DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT, PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED.