B-97226, FEBRUARY 6, 1951, 30 COMP. GEN. 338

B-97226: Feb 6, 1951

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PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR MEMBERS OF THE REGULAR ARMY. WHICH IS NOT SPECIFICALLY AUTHORIZED IN THE ACT. WHICH ARE SIMILAR IN NATURE TO THE ITEMS PAYABLE UNDER THE 1939 ACT. WHICH ARE NOT A BENEFIT UNDER THE 1939 ACT. IT BEING INDICATED THAT SUCH QUESTIONS HAVE ARISEN IN CONNECTION WITH THE PREPARATION OF REGULATIONS FOR THE ADMINISTRATION OF THE ACT OF JUNE 20. IT IS POINTED OUT IN YOUR LETTER THAT SECTION 2 OF THE SAID ACT OF JUNE 20. PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY. IT ALSO IS STATED THAT UNDER EXISTING LAWS.

B-97226, FEBRUARY 6, 1951, 30 COMP. GEN. 338

BURIAL EXPENSES - DEATH GRATUITIES - RESERVISTS THE PROVISIONS OF THE ACT OF JUNE 20, 1949, ENTITLING MEMBERS OF THE ORGANIZED RESERVE CORPS, UNDER CERTAIN CONDITIONS, TO 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 MEMBERS OF THE REGULAR ARMY, DO NOT AUTHORIZE ANY BENEFIT OR PAYMENT OTHER THAN THOSE SPECIFICALLY NAMED THEREIN, AND THEREFORE, IN EVENT OF DEATH OF A RESERVIST, PAYMENT OF BURIAL EXPENSES, WHICH IS NOT SPECIFICALLY AUTHORIZED IN THE ACT, MAY NOT BE MADE UNLESS PROVIDED FOR UNDER OTHER EXISTING STATUTES. THE PROVISO IN SECTION 4 OF THE ACT OF JUNE 20, 1949, AMENDING THE ACT OF APRIL 3, 1939, THAT BENEFITS PAYABLE FOR DEATH OR DISABILITY INCIDENT TO SERVICE IN THE ORGANIZED RESERVE CORPS BE SUBJECT TO DEDUCTION OF ANY MONETARY BENEFIT RECEIVED UNDER ANY OTHER LAW FOR THE SAME TYPE OF SERVICE, MUST BE CONSIDERED AS RELATING SOLELY TO ITEMS, AUTHORIZED UNDER OTHER LAWS, WHICH ARE SIMILAR IN NATURE TO THE ITEMS PAYABLE UNDER THE 1939 ACT, AND THEREFORE PAYMENT OF BURIAL EXPENSES, WHICH ARE NOT A BENEFIT UNDER THE 1939 ACT, MAY BE MADE FOR RESERVISTS AS AUTHORIZED UNDER THE ACT OF JUNE 15, 1936, AS AMENDED, CONCURRENTLY WITH DEATH GRATUITIES AND OTHER BENEFITS AFFORDED BY THE ACT OF APRIL 3, 1939, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, FEBRUARY 6, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 26, 1950, REQUESTING DECISION ON SEVERAL QUESTIONS INVOLVING THE PAYMENT OF BURIAL EXPENSES IN THE EVENT OF DEATH OF CERTAIN MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, IT BEING INDICATED THAT SUCH QUESTIONS HAVE ARISEN IN CONNECTION WITH THE PREPARATION OF REGULATIONS FOR THE ADMINISTRATION OF THE ACT OF JUNE 20, 1949, 63 STAT. 201.

IT IS POINTED OUT IN YOUR LETTER THAT SECTION 2 OF THE SAID ACT OF JUNE 20, 1949, 63 STAT. 202, AMENDED THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456, SO AS TO ENTITLE MEMBERS OF THE ORGANIZED RESERVE CORPS ON ACTIVE DUTY OR PARTICIPATING IN ACTIVE OR INACTIVE DUTY TRAINING WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY, UNDER CERTAIN CONDITIONS, TO 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 AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY. IT ALSO IS STATED THAT UNDER EXISTING LAWS, OTHER THAN THE ACT OF JUNE 20, 1949, BURIAL EXPENSES ARE PAID IN THE EVENT OF DEATH OF MEMBERS OF THE RESERVE COMPONENTS ONLY (1) WHERE SUCH MEMBERS ARE ON EXTENDED ACTIVE DUTY AS MEMBERS OF THE ARMY OF THE UNITED STATES (ACT OF MAY 17, 1938, 52 STAT. 398, 399, AND PROVISIONS IN ANNUAL APPROPRIATION ACTS); (2) WHERE RESERVE PERSONNEL ON ACTIVE DUTY (RETAINING A RESERVE STATUS) UNDER PROPER ORDERS DIE WHILE ON ACTIVE DUTY OR AFTER RELIEF FROM ACTIVE DUTY WHILE UNDERGOING HOSPITALIZATION FOR DISEASE OR INJURY CONTRACTED OR INCURRED IN LINE OF DUTY WHILE ON ACTIVE DUTY (ACT OF JUNE 15, 1936, 49 STAT. 1507, 1508); AND (3) WHERE RESERVE PERSONNEL DIE AS A RESULT OF PERSONAL INJURY IN LINE OF DUTY WHILE VOLUNTARILY PARTICIPATING IN AERIAL FLIGHTS IN GOVERNMENT-OWNED AIRCRAFT AS AN INCIDENT TO THEIR MILITARY TRAINING (ACT OF JUNE 15, 1936, SUPRA.)

IT IS FURTHER STATED, IN YOUR LETTER, THAT "IN ADDITION TO THE ABOVE CITED STATUTES, THE ACT OF 15 JULY 1939 (53 STAT. 1042), PROVIDES THAT IF ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMY IS PHYSICALLY INJURED IN LINE OF DUTY (1) WHILE ON ACTIVE DUTY, OR (2) WHEN ENGAGED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, OR (3) WHEN ENGAGED IN AUTHORIZED TRAINING WITHOUT PAY, OR DIES AS THE RESULT OF SUCH PHYSICAL INJURY, HE OR HIS BENEFICIARY SHALL BE ENTITLED TO ALL THE BENEFITS PRESCRIBED BY LAW FOR CIVIL EMPLOYEES OF THE UNITED STATES WHO ARE PHYSICALLY INJURED IN LINE OF DUTY OR WHO DIE AS A RESULT THEREOF. THIS ACT FURTHER PROVIDES THAT BENEFITS THEREOF SHALL NOT BE PAID CONCURRENTLY WITH THOSE BASED UPON MILITARY SERVICE PURSUANT TO OTHER STATUTES.'

DECISION IS REQUESTED UPON THE FOLLOWING SPECIFIC QUESTIONS:

A. IS PAYMENT OF BURIAL EXPENSES AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF 20 JUNE 1949, SUPRA, WHEN DEATH OCCURS UNDER CONDITIONS AND CIRCUMSTANCES WHICH WOULD PRECLUDE PAYMENT THEREFROM BY THE DEPARTMENT OF THE ARMY UNDER THE PROVISIONS OF THE ACT OF 17 MAY 1938, SUPRA, AND THE ACT OF 15 JUNE 1936, SUPRA, OR BY THE FEDERAL SECURITY AGENCY UNDER THE PROVISIONS OF THE ACT OF 15 JULY 1939, SUPRA?

B. IN THE EVENT THAT BURIAL EXPENSES ARE AUTHORIZED UNDER THE ACT OF 20 JUNE 1949, SUPRA, FROM WHAT FUNDS ARE THEY PAYABLE?

C. IN THE EVENT YOUR DECISION IS IN THE NEGATIVE, MAY PAYMENT OF BURIAL EXPENSES BE AUTHORIZED UNDER THE ACT OF 15 JUNE 1936, AS AMENDED, FOR RESERVISTS WHO DIE WHILE BEING HOSPITALIZED AND/OR IN RECEIPT OF THE BENEFITS AFFORDED BY THE ACT OF 3 APRIL 1939, AS AMENDED, AS THE RESULT OF INJURIES SUSTAINED OR DISEASE CONTRACTED IN THE LINE OF DUTY WHILE ON ACTIVE DUTY OR WHILE PARTICIPATING IN TRAINING AS CONTEMPLATED BY THE ACT OF 15 JUNE 1936?

D. WOULD DEPENDENTS ALSO BE ENTITLED TO DEATH GRATUITY UNDER THE ACT OF 3 APRIL 1939, IF BURIAL EXPENSES WERE PAID UNDER AUTHORITY OF THE ACT OF 15 JUNE 1936, AS AMENDED?

SECTIONS 2, 4, AND 5 OF THE ACT OF JUNE 20, 1949, SUPRA, ARE AS FOLLOWS:

SEC. 2. THE LAST PROVISO TO SECTION 5 OF THE ACT ENTITLED " ANACT TO PROVIDE MORE EFFECTIVELY FOR THE NATIONAL DEFENSE BY CARRYING OUT THE RECOMMENDATIONS OF THE PRESIDENT IN HIS MESSAGE OF JANUARY 12, 1939, TO THE CONGRESS," APPROVED APRIL 3, 1939, AS AMENDED, IS AMENDED TO READ AS FOLLOWS: "PROVIDED FURTHER, THAT ALL OFFICES, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OR THE AIR FORCE OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, OR THE REGULAR AIR FORCE WHO---

"/1) IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED 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 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 ON THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND 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 AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY OR THE REGULAR AIR FORCE.'

SEC. 4. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM AUGUST 14, 1945, BUT NO BACK PAY, PENSION, COMPENSATION, DEATH GRATUITY, OR RETIREMENT PAY SHALL BE HELD TO HAVE ACCRUED AS THE RESULT OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO SUCH DATE: PROVIDED THAT IN THE CASE OF PERSONS ELECTING TO RECEIVE THE BENEFITS OF THIS ACT, THE AMOUNT OF ANY MONETARY BENEFITS RECEIVED FOR ANY PERIOD SUBSEQUENT TO AUGUST 14, 1945, UNDER ANY PROVISIONS OF LAW PROVIDING BENEFITS FOR DISABILITY OR DEATH INCIDENT TO THE SERVICE DESCRIBED IN SECTIONS 1, 2, AND 3 OF THIS ACT, SHALL BE DEDUCTED FROM THE MONETARY BENEFITS PROVIDED FOR HEREIN.

SEC. 5. NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY BENEFITS TO WHICH HE WAS ENTITLED PRIOR TO ITS ENACTMENT.

THERE IS NO SPECIFIC PROVISION IN THE ABOVE-QUOTED ACT OF JUNE 20, 1949, FOR THE PAYMENT OF BURIAL EXPENSES AND THERE IS NOTHING IN THE LANGUAGE OR IN THE LEGISLATIVE HISTORY OF SUCH ACT WHICH WOULD FORM A PROPER BASIS FOR CONCLUDING THAT THE CONGRESS INTENDED TO AUTHORIZE ANY BENEFIT OR PAYMENT OTHER THAN THOSE SPECIFICALLY NAMED IN THE ACT. IN THAT CONNECTION, SEE THE REPORT OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES ( REPORT NO. 582, 81ST CONGRESS, ST SESSION), ON THE BILL WHICH BECAME THE SAID ACT, WHEREIN IT IS STATED (QUOTING FROM PAGE 2):

THUS, THE PROPOSED BILL WOULD EXTEND TO RESERVES ON SHORT TRAINING PERIODS THE FOLLOWING BENEFITS. HOSPITALIZATION WITH ACTIVE-DUTY PAY, RETIREMENT PAY WHERE DISABILITY RETIREMENT IS WARRANTED, AND PAYMENT TO BENEFICIARIES OF THE 6-MONTH DEATH GRATUITY WHERE DEATH RESULTS FROM INJURY.

IT MAY BE NOTED, ALSO, THAT SEVERAL BILLS HAVE BEEN INTRODUCED IN THE CONGRESS WHICH WOULD FURTHER AMEND THE ACT OF APRIL 3, 1939, AS AMENDED, SO AS TO PROVIDE INTER ALIA, FOR THE PAYMENT OF BURIAL EXPENSES IN THE CASE OF RESERVE PERSONNEL WHO DIE WHILE WITHIN THE PURVIEW OF THAT ACT. SEE H.R. 7348 AND S. 3072, 81ST CONGRESS, 2ND SESSION, AND H.R. 928, 82D CONGRESS, ST SESSION.

ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE AND NO ANSWER TO QUESTION (B) IS NECESSARY.

SINCE THE ACT OF APRIL 3, 1939, SUPRA, DID NOT PROVIDE FOR THE PAYMENT OF BURIAL EXPENSES, AND SINCE THE PAYMENT OF SUCH EXPENSES IS NOT PROVIDED FOR IN THE 1949 AMENDMENT TO SUCH ACT, THE PAYMENT THEREOF MUST BE PREDICATED UPON OTHER STATUTORY PROVISIONS. THE PROVISO IN SECTION 4 OF THE ACT OF JUNE 20, 1949, SUPRA, REQUIRING THAT THE AMOUNT OF ANY MONETARY BENEFIT RECEIVED FOR ANY PERIOD AFTER AUGUST 14, 1945, UNDER ANY PROVISION OF LAW PROVIDING BENEFITS FOR DISABILITY OR DEATH INCIDENT TO THE SAME TYPE OF SERVICE, BE DEDUCTED FROM THE MONETARY BENEFITS PROVIDED IN SUCH 1949 ACT, MUST BE CONSIDERED AS RELATING SOLELY TO ITEMS, AUTHORIZED UNDER OTHER PROVISIONS OF LAW, WHICH ARE SIMILAR IN NATURE TO THE ITEMS PAYABLE UNDER THE SAID 1949 ACT AND WHICH RELATE TO AND COVER DEFINITE PERIODS OF TIME, SUCH AS PENSIONS, COMPENSATION, AND PAY AND ALLOWANCES. HENCE, THE BURIAL EXPENSES AUTHORIZED BY THE ACT OF JUNE 15, 1936, AS AMENDED, MAY BE PAID FOR RESERVISTS WHO DIE "WHILE ON ACTIVE DUTY, OR UNDERGOING TRAINING OR HOSPITAL TREATMENT" AS PROVIDED IN SUCH 1936 ACT, NOTWITHSTANDING THEY WERE BEING HOSPITALIZED AND/OR IN RECEIPT OF THE BENEFITS AFFORDED BY THE ACT OF APRIL 3, 1939, AS AMENDED. IN OTHER WORDS, THE ELECTION OF A RESERVIST TO ACCEPT BENEFITS UNDER THE 1939 ACT AS AMENDED BY THE ACT OF JUNE 20, 1949, DOES NOT PRECLUDE THE PAYMENT OF BURIAL EXPENSES UNDER THE 1936 ACT, IN THE EVENT OF HIS DEATH, IF PAYMENT OF SUCH EXPENSES IS OTHERWISE AUTHORIZED UNDER THE PROVISIONS AND CONDITIONS OF THE 1936 ACT. QUESTION (C) IS ANSWERED ACCORDINGLY.

FOR LIKE REASONS, QUESTION (D) IS ANSWERED IN THE AFFIRMATIVE, IT BEING REASONABLY CLEAR THAT IT WAS THE INTENT OF THE LAW THAT THE DEPENDENTS OF A RESERVIST BE ALLOWED THE DEATH GRATUITY IN ACCORDANCE WITH THE ACT OF APRIL 3, 1939, AS AMENDED, WITHOUT REGARD TO THE QUESTION WHETHER BURIAL EXPENSES FOR SUCH RESERVIST MAY HAVE BEEN PAID UNDER AUTHORITY OF THE ACT OF JUNE 15, 1936, SUPRA, OR SOME OTHER STATUTE.