B-91508, APRIL 4, 1950, 29 COMP. GEN. 397

B-91508, APRIL 4, 1950, 29 COMP. GEN. 397

SIX MONTHS' DEATH GRATUITY PAY - VOLUNTEER RESERVISTS - CALL OR ORDER TO TRAINING DUTY REQUIREMENTS UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, THE SIX MONTHS' DEATH GRATUITY IS PAYABLE ONLY IN THOSE CASES WHERE PERSONNEL ARE "CALLED" OR "ORDERED" TO DUTY BY COMPETENT AUTHORITY, SO THAT PAYMENT OF THE GRATUITY MAY NOT BE MADE WHERE A MARINE CORPS RESERVE OFFICER IS KILLED WHILE PARTICIPATING IN A VOLUNTARY TRAINING FLIGHT WITHOUT HAVING BEEN CALLED OR ORDERED BY COMPETENT AUTHORITY TO PERFORM TRAINING DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. J. W. ELDRIDGE, UNITED STATES MARINE CORPS, APRIL 4, 1950:

BY INDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS, DATED DECEMBER 15, 1949, THERE WAS RECEIVED YOUR LETTER OF DECEMBER 2, 1949, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, COVERING THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE LATE ROBERT EMMETT RUSSELL, FIRST LIEUTENANT, UNITED STATES MARINE CORPS RESERVE, VOLUNTEER. THE VOUCHER IS STATED IN FAVOR OF EMMETT L. RUSSELL, 2109 N. 3RD AVENUE, BIRMINGHAM, ALABAMA, WHO IS THE FATHER AND DESIGNATED BENEFICIARY.

IT APPEARS THAT LIEUTENANT RUSSELL WAS A MEMBER OF THE ASSOCIATE VOLUNTEER UNIT ( AVIATION), NAVAL AIR STATION, ATLANTA, NUMBER TWO, AT THE NAVAL AIR RESERVE AUXILIARY, BIRMINGHAM, ALABAMA, IN AN ASSOCIATE VOLUNTEER NON-DRILL PAY STATUS FOR DUTY INVOLVING FLYING. IT FURTHER APPEARS THAT HE WAS KILLED IN AN AVIATION ACCIDENT ON MAY 29, 1948, WHILE PARTICIPATING IN A CROSS-COUNTRY TRAINING FLIGHT WHICH WAS BEING CONDUCTED IN ACCORDANCE WITH NORMAL OPERATIONAL PRACTICE IN ORGANIZATIONS CONTROLLING THE ACTIVITIES OF NAVAL AIRCRAFT. WITH RESPECT TO THE TYPE OF DUTY HERE INVOLVED YOUR LETTER STATES THAT:

INVESTIGATION SHOWS THAT VOLUNTEER RESERVISTS ARE ELIGIBLE TO FLY NAVAL AIRCRAFT ON A LIMITED BASIS THROUGHOUT THE YEAR. UNLIKE THE ORGANIZED RESERVIST, THE VOLUNTEER IS NOT REQUIRED TO ATTEND REGULARLY, IS NOT ASSURED OF AN AIRCRAFT EACH TIME HE REPORTS, AND IS NOT CURRENTLY PAID FOR ATTENDANCE. THERE IS NO EVIDENCE OF A WRITTEN ORDER PRECEDING THE FATAL CIRCUMSTANCE IN THIS CASE * * *.

IN SUCH CONNECTION, IT IS UNDERSTOOD THAT RESERVISTS OF THE CLASS HERE INVOLVED ASSOCIATE THEMSELVES TOGETHER IN UNITS ON A VOLUNTEER BASIS AND THAT, AFTER SUCH UNITS ARE GIVEN OFFICIAL RECOGNITION, THE MEMBERS THEREOF MAY, AT SUCH TIMES AS THEY DESIRE AND AT THEIR OWN CONVENIENCE, PRESENT THEMSELVES AT NAVAL INSTALLATIONS AND FLY NAVAL AIRCRAFT, PROVIDED SUCH AIRCRAFT ARE AVAILABLE. IT IS FURTHER UNDERSTOOD THAT NO ORDERS ARE ISSUED IN THESE CASES EITHER FOR THE PURPOSE OF ASSIGNING MEMBERS TO THE UNITS OR FOR THE PURPOSE OF AUTHORIZING THE FLIGHTS WHICH THEY MAY MAKE.

SECTION 1 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW NO. 108, 63 STAT. 201, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED ( U.S.C., TITLE 34, SEC. 855C-1), IS AMENDED TO READ AS FOLLOWS:

"SEC. 4. ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO---

"/1) IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

"/2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE-DUTY TRAINING FOR ANY PERIOD OF TIME SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *.' (ITALICS SUPPLIED.)

SUCH PROVISIONS WERE MADE RETROACTIVE TO AUGUST 14, 1945.

YOU REQUEST DECISION AS TO WHETHER, IN THE CIRCUMSTANCES OF THE CASE, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS AUTHORIZED BY THE ABOVE- QUOTED STATUTORY PROVISIONS. UNDER SUCH PROVISIONS, PAYMENT OF THE GRATUITY IS AUTHORIZED WHERE THE PERSONNEL CONCERNED ARE CALLED OR ORDERED BY THE FEDERAL GOVERNMENT, INTER ALIA, TO PERFORM INACTIVE-DUTY TRAINING FOR ANY PERIOD OF TIME AND SUFFER DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED. THE LEGISLATIVE HISTORY OF SUCH PROVISIONS INDICATES THAT THE WORDS "CALLED" OR "ORDERED" WERE USED IN THE SENSE IN WHICH THEY ARE ORDINARILY UNDERSTOOD WITH RESPECT TO PERFORMANCE OF MILITARY DUTY. THE HEARINGS HELD IN FEBRUARY 1949, ON THE BILL S. 213, WHICH BECAME THE ACT OF JUNE 20, 1949, THE NATIONAL VICE PRESIDENT FOR NAVAL AFFAIRS, RESERVE OFFICERS ASSOCIATION, PRESENTED SEVERAL HYPOTHETICAL TRAINING DUTY CASES IN WHICH NAVAL RESERVE OFFICERS WOULD BENEFIT BY THE ACT, ONE SUCH CASE INVOLVING A VOLUNTEER. IN REPLY TO A QUESTION AS TO WHETHER THE VOLUNTEER WAS CALLED OUT FOR SUCH TRAINING, THE SAID OFFICER STATED (PAGE 18, HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE):

ORDERED DOWN AS A PART OF THE RESERVE UNIT. HE IS NOT DOWN THERE JUST AS AN INTERLOPER, BECAUSE OF THE ATTRACTIVE NUISANCE OF THE GUN, BUT ACTUALLY ON TRAINING. HE IS UNDER ORDERS, BUT HE GETS NO COMPENSATION BECAUSE HE IS IN THE VOLUNTEER RATHER THAN ORGANIZED STATUS.

ALSO, IN A REPORT TO ACCOMPANY THE BILL S. 213 ( SENATE REPORT NO. 95, PAGE 3) IT WAS STATED:

THE EFFECT OF THIS BILL, AS AMENDED, WOULD BE TO GIVE A RESERVIST OR NATIONAL GUARDSMAN SERVING UNDER COMPETENT ORDERS, WITH OR WITHOUT PAY, THE SAME COVERAGE FOR INJURIES RECEIVED WHILE ON SHORT PERIODS OF TRAINING OR DUTY THAT HE WOULD HAVE IF SERVING FOR A PERIOD IN EXCESS OF 30 DAYS. IT WOULD ALSO COVER SERVICE WITHOUT PAY SO LONG AS SUCH SERVICE WAS PERFORMED IN RESPONSE TO COMPETENT ORDERS. ( ITALICS SUPPLIED.)

IN VIEW OF SUCH LEGISLATIVE HISTORY, READ IN CONJUNCTION WITH THE LANGUAGE OF THE STATUTORY PROVISIONS INVOLVED, IT MUST BE CONSIDERED THAT THE BENEFITS OF SUCH PROVISIONS EXTEND ONLY TO CASES WHERE THE BURDEN OF THE PARTICULAR DUTY INVOLVED IS IMPOSED UPON THE PERSON CONCERNED BY A CALL OR ORDER TO DUTY ISSUED BY COMPETENT AUTHORITY.

SINCE IT DOES NOT APPEAR THAT ANY CALL OR ORDER TO DUTY WAS ISSUED TO LIEUTENANT RUSSELL IN CONNECTION WITH THE FATAL MISSION INVOLVED IN THIS CASE, IT MAY NOT PROPERLY BE CONCLUDED THAT HE WAS PERFORMING SERVICE PURSUANT TO ORDERS AS CONTEMPLATED BY THE STATUTE. ACCORDINGLY, ON THE PRESENT RECORD, I AM CONSTRAINED TO HOLD THAT HIS BENEFICIARY IS NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.