[Protest of Air Force Contract Awards for Hazardous Waste Cleanup]

A-17050, JANUARY 27, 1927, 6 COMP. GEN. 495

VETERANS' BUREAU - BURIAL EXPENSES THE PROVISIONS OF SECTION 201 (1) OF THE WORLD WAR VETERANS' ACT, RATHER THAN THE PROVISIONS OF SECTION 301 OF THE WAR RISK INSURANCE ACT, AUTHORIZING REIMBURSEMENT FOR BURIAL EXPENSES, ARE APPLICABLE TO ALL UNSETTLED CLAIMS, WHETHER DEATH OCCURRED PRIOR OR SUBSEQUENT TO JUNE 7, 1924. WHERE DEATH OCCURRED IN THE SERVICE SUBSEQUENT TO JULY 2, 1921, REIMBURSEMENT FOR BURIAL EXPENSES IS AUTHORIZED ONLY IF AND WHEN SATISFACTORY EVIDENCE IS SUBMITTED SHOWING THAT DEATH WAS THE RESULT OF SERVICE BETWEEN APRIL 6, 1917, AND JULY 2, 1921. WHERE DEATH OCCURRED DURING SERVICE UNDER REENLISTMENT ENTERED INTO SUBSEQUENT TO JULY 2, 1921, AND THE DECEASED HAD PRIOR SERVICE DURING THE WAR, REIMBURSEMENT FOR BURIAL EXPENSES IS NOT FOR DISPOSITION ON THE BASIS THAT THE DECEASED WAS A ,VETERAN OF ANY WAR" WHICH WOULD AUTHORIZE PAYMENT DEPENDENT UPON INSUFFICIENCY OF ASSETS, BUT IS FOR DISPOSITION UNDER THE CURRENT APPROPRIATION ACTS AVAILABLE FOR BURIAL EXPENSES UNDER THE SERVICE IN WHICH THE DEATH OCCURRED.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 27, 1927:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION AS TO THE LEGALITY OF PROPOSED PAYMENTS ON TWO VOUCHERS REPRESENTING REIMBURSEMENT FOR BURIAL EXPENSES IN THE CASES OF GUY C. KALLENBERGER AND ALBERT N. FLEISCHMAN, DECEASED VETERANS.

IN THE FIRST CASE VOUCHER NO. C-14011 HAS BEEN EXECUTED AND PRESENTED FOR PAYMENT IN FAVOR OF JOHN B. KALLENBERGER FOR REIMBURSEMENT IN THE AMOUNT OF $30. ACCORDING TO DATA ON THE VOUCHER THE DECEASED LAST ENLISTED JANUARY 9, 1920, AND DIED IN THE SERVICE FEBRUARY 15, 1922. THE QUESTION IS PRESENTED WHETHER REIMBURSEMENT IS AUTHORIZED UNDER SECTION 301 OF THE WAR-RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 405, OR UNDER SECTION 201 (1) OF THE WORLD WAR VETERANS' ACT, DATED JUNE 7, 1924, 43 STAT. 617, AND AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 794. THE FORMER PROVIDED:

IF THE DEATH OCCUR BEFORE DISCHARGE OR RESIGNATION FROM SERVICE, THE UNITED STATES SHALL PAY FOR BURIAL EXPENSES AND THE RETURN OF BODY TO HIS HOME A SUM NOT TO EXCEED $100, AS MAY BE FIXED BY REGULATIONS.

UNDER THIS STATUTE NO EXPRESS LIMITATION WAS PLACED ON THE TIME OF INCURRENCE OF THE DISEASE OR DISABILITY FROM WHICH DEATH RESULTED OR ON THE DATE OF DEATH, BUT THE ALLOWANCE WAS AUTHORIZED IF DEATH OCCURRED BEFORE DISCHARGE OR RESIGNATION FROM THE SERVICE. IF THIS STATUTE IS APPLICABLE, THE PROPOSED PAYMENT IS AUTHORIZED, HAVING BEEN LIMITED IN AMOUNT TO ITEMS AUTHORIZED BY REGULATION.

THE LATTER CITED STATUTE PROVIDES:

(1) IF DEATH OCCUR OR SHALL HAVE OCCURRED SUBSEQUENT TO APRIL 6, 1917, AND BEFORE DISCHARGE OR RESIGNATION FROM THE SERVICE, THE UNITED STATES VETERANS' BUREAU SHALL PAY FOR BURIAL AND FUNERAL EXPENSES AND THE RETURN OF BODY TO HIS HOME A SUM NOT TO EXCEED $100, AS MAY BE FIXED BY REGULATION.

SECTION 212 OF THE SAME STATUTE, 43 STAT. 623, AND AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 798, PROVIDES:

* * * TITLES II AND IV OF THIS ACT SHALL NOT BE APPLICABLE TO ANY DISABILITY OR RESULTANT DEATH IN THE SERVICE IF SUCH DISABILITY OCCURRED AS A RESULT OF SERVICE PRIOR TO APRIL 6, 1917, OR AFTER JULY 2, 1921: * *

THE AUTHORITY FOR PAYMENT OF BURIAL EXPENSES IN THE WORLD WAR VETERANS' ACT IS UNDER TITLE II AND THE ALLOWANCE FALLS WITHIN THE ABOVE-QUOTED RESTRICTION. IF THIS STATUTE IS APPLICABLE THE VOUCHER WOULD BE PAYABLE ONLY UPON A SHOWING THAT THE DEATH OF GUY C. KALLENBERGER ON FEBRUARY 15, 1922, DURING SERVICE, RESULTED FROM SERVICE BETWEEN APRIL 6, 1917, AND JULY 2, 1921.

IT WILL BE NOTED THAT SECTION 201 (1) OF THE WORLD WAR VETERANS' ACT ABOVE QUOTED STIPULATES ,IF DEATH OCCUR OR SHALL HAVE OCCURRED SUBSEQUENT TO APRIL 6, 1917.' THIS PHRASE APPLIED THE STATUTE RETROACTIVELY TO COVER ANY DEATH IN THE SERVICE WHICH OCCURRED SUBSEQUENT TO APRIL 6, 1917. THE PROVISIONS OF THE WAR-RISK INSURANCE ACT IN FORCE PRIOR TO JUNE 7, 1924, BUT REPEALED OR SUPERSEDED BY THAT STATUTE, MAY NOT BE APPLIED. THE FACT THAT DEATH OCCURRED PRIOR TO PASSAGE OF THE WORLD WAR VETERANS' ACT WOULD NOT HAVE VESTED SUCH A RIGHT TO REIMBURSEMENT OF BURIAL EXPENSES UNDER THE PROVISIONS OF THE WAR-RISK INSURANCE ACT AS WAS SAVED BY SECTION 602 OF THE WORLD WAR VETERANS' ACT. ALL UNSETTLED CLAIMS FOR REIMBURSEMENT OF BURIAL EXPENSES ARE FOR DISPOSITION UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' ACT.

IT MUST BE CONCLUDED, THEREFORE, THAT PAYMENT ON THE VOUCHER IS AUTHORIZED, IF AT ALL, UNDER THE WORLD WAR VETERANS' ACT AND ONLY IF AND WHEN THERE IS SUBMITTED SATISFACTORY PROOF THAT THE DEATH OF GUY C. KALLENBERGER WAS THE RESULT OF A DISABILITY INCURRED BETWEEN APRIL 6, 1917, AND JULY 2, 1921. 5 COMP. GEN. 1006.

IN THE SECOND CASE, VOUCHER NO. C-17523 HAS BEEN EXECUTED AND SUBMITTED IN FAVOR OF GEORGE FLEISCHMAN FOR REIMBURSEMENT OF BURIAL EXPENSES OF ALBERT N. FLEISCHMAN IN THE AMOUNT OF $39.03. THE DECEASED ENLISTED JULY 18, 1916, AND WAS DISCHARGED MARCH 31, 1919, REENLISTED SEPTEMBER 26, 1923, AND DIED IN THE SERVICE MARCH 28, 1926.

REFERENCE MAY BE MADE TO THE SAME PORTIONS OF THE STATUTES CONSIDERED IN THE FIRST CLASS AND ALSO TO THE SECOND PORTION OF SECTION 201 (1) OF THE WORLD WAR VETERANS' ACT AUTHORIZING REIMBURSEMENT OF BURIAL EXPENSES OF VETERANS OF ANY WAR DYING AFTER DISCHARGE OR RESIGNATION FROM THE SERVICE, IF DETERMINED BY THE DIRECTOR OF THE VETERANS' BUREAU TO HAVE LEFT INSUFFICIENT ASSETS TO MEET THE EXPENSES OF BURIAL. IT WAS HELD IN DECISION OF JUNE 22, 1926, 5 COMP. GEN. 1006, UNDER THESE STATUTES, THAT IF THE DEATH OCCURRED IN THE SERVICE DURING A PERIOD OF ENLISTMENT ENTERED INTO SUBSEQUENT TO JULY 2, 1921, THE BURIAL EXPENSES ARE PROVIDED FOR IN THE CURRENT APPROPRIATION ACTS FOR THE SERVICE IN WHICH ENLISTED, AND THAT INDIGENCY IS NOT A FACTOR IN SUCH A CASE, EVEN THOUGH THERE WAS A PRIOR PERIOD OF WAR SERVICE. THE CONCLUSION WAS REACHED THAT REIMBURSEMENT UNDER THE WORLD WAR VETERANS' ACT WAS NOT AUTHORIZED.

IT HAS BEEN SUGGESTED THAT THERE IS A CONFLICT BETWEEN THE DECISION IN THAT CASE AND THE DECISION OF JUNE 11, 1923, 2 COMP. GEN. 791. THE DECISION OF JUNE 11, 1923, WAS RENDERED PRIOR TO THE PASSAGE OF THE WORLD WAR VETERANS' ACT AND CONSTRUED ONLY THE PROVISIONS OF THE WAR RISK INSURANCE ACT. BUT IF THE PRINCIPLES THEREIN ANNOUNCED SEEM TO BE IN CONFLICT WITH THE DECISION OF JUNE 22, 1926, AND THE PRESENT DECISION, THE LATER DECISIONS WILL BE CONSIDERED AS CONTROLLING.

ACCORDINGLY, PAYMENT ON VOUCHER NO. C-17523 IN FAVOR OF GEORGE FLEISCHMAN IS NOT AUTHORIZED.