B-223536 O/M, MAY 1, 1987
Highlights
THE SPOUSE'S CLAIM FOR 6-MONTH DEATH GRATUITY MAY BE PAID SINCE THE COURTS HAVE HELD THAT WHERE AN ACCUSED DIES BEFORE MANDATORY APPEAL FROM HIS CONVICTION HAS BEEN COMPLETED. THE PROCEEDINGS MUST BE ABATED FROM THEIR INCEPTION AND IF PROCEEDINGS WERE ABATED MEMBER'S SPOUSE WOULD BE ELIGIBLE FOR DEATH BENEFITS. CLAIM OF PATRICIA WHITE - B-223536-O.M.: RETURNED HEREWITH IS YOUR FILE Z-2831043. IT IS OUR VIEW THAT THE DEATH GRATUITY IS PAYABLE TO MRS. WHITE SINCE PRIVATE WHITE DIED PRIOR TO THE COMPLETION OF THE APPELLATE PROCESS TO WHICH HE WAS ENTITLED AS A MATTER OF RIGHT. WAS COURT MARTIALED AND SENTENCED TO A PUNITIVE DISCHARGE FOR VARIOUS VIOLATIONS OF THE UNIFORM CODE OF MILITARY JUSTICE EFFECTIVE JANUARY 22.
B-223536 O/M, MAY 1, 1987
MILITARY PERSONNEL - PAY - DEATH GRATUITIES - ELIGIBILITY DIGEST: MEMBER OF THE MARINE CORPS DIED WHILE ON EXCESS LEAVE WHILE AWAITING APPELLATE REVIEW OF HIS COURT-MARTIAL. THE SPOUSE'S CLAIM FOR 6-MONTH DEATH GRATUITY MAY BE PAID SINCE THE COURTS HAVE HELD THAT WHERE AN ACCUSED DIES BEFORE MANDATORY APPEAL FROM HIS CONVICTION HAS BEEN COMPLETED, THE PROCEEDINGS MUST BE ABATED FROM THEIR INCEPTION AND IF PROCEEDINGS WERE ABATED MEMBER'S SPOUSE WOULD BE ELIGIBLE FOR DEATH BENEFITS.
CLAIM OF PATRICIA WHITE - B-223536-O.M.:
RETURNED HEREWITH IS YOUR FILE Z-2831043, REGARDING THE CLAIM OF PATRICIA A. WHITE FOR PAYMENT OF A DEATH GRATUITY IN CONNECTION WITH THE DEATH OF PRIVATE ROBERT WHITE. IT IS OUR VIEW THAT THE DEATH GRATUITY IS PAYABLE TO MRS. WHITE SINCE PRIVATE WHITE DIED PRIOR TO THE COMPLETION OF THE APPELLATE PROCESS TO WHICH HE WAS ENTITLED AS A MATTER OF RIGHT.
PRIVATE ROBERT WHITE, A MEMBER OF THE U.S. MARINE CORPS, WAS COURT MARTIALED AND SENTENCED TO A PUNITIVE DISCHARGE FOR VARIOUS VIOLATIONS OF THE UNIFORM CODE OF MILITARY JUSTICE EFFECTIVE JANUARY 22, 1980. WHILE AWAITING APPEAL OF THE COURT-MARTIAL CONVICTION, PRIVATE WHITE WAS PLACED IN AN EXCESS LEAVE STATUS. PRIVATE WHITE WAS IN AN EXCESS LEAVE STATUS WHEN HE DIED ON NOVEMBER 8, 1980, AND APPARENTLY HIS ENLISTMENT HAD NOT EXPIRED. MRS. WHITE HAS FILED A CLAIM FOR DEATH BENEFITS IN CONNECTION WITH HIS DEATH. THE MARINE CORPS ASKS WHETHER THE DEATH GRATUITY MAY BE PAID.
THE STATUTE AUTHORIZING EXCESS LEAVE IN EFFECT AT THE TIME OF PRIVATE WHITE'S DEATH AND COURT-MARTIAL, 37 U.S.C. SEC. 502(B) (1976), PROVIDED THAT:
"*** A MEMBER WHO IS AUTHORIZED BY THE SECRETARY CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, TO BE ABSENT FOR A PERIOD THAT IS LONGER THAN THE LEAVE AUTHORIZED BY SECTION 701 OF TITLE 10 IS NOT ENTITLED TO PAY OR ALLOWANCES DURING THE PART OF HIS ABSENCE THAT IS MORE THAN THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THAT SECTION."
SECTIONS 1475 AND 1478 OF TITLE 10 OF THE U.S.C. PROVIDE THAT A DEATH GRATUITY MAY BE PAID TO THE SURVIVOR OF A MEMBER WHO DIES WHILE ON ACTIVE DUTY. THE GRATUITY IS AN AMOUNT EQUAL TO 6 MONTHS' PAY "AT THE RATE TO WHICH THE DECEDENT WAS ENTITLED ON THE DATE OF HIS DEATH." APPLICABLE REGULATIONS, FOUND AT 32 C.F.R. SEC. 716.1, ALSO STATE THAT THE DEATH BENEFIT SHALL BE PAID TO THE SURVIVOR AT THE RATE OF PAY TO WHICH THE DECEASED MEMBER WAS ENTITLED AT HIS DEATH.
IN THIS REGARD WE HAVE HELD THAT A MEMBER ON EXCESS LEAVE PURSUANT TO 37 U.S.C. SEC. 502(B) MAY HAVE AN ACTIVE DUTY STATUS. SEE 47 COMP.GEN. 467, 469 (1968). FURTHERMORE, WE HELD THAT AN ENLISTED MEMBER IN A NONPAY STATUS HAS A RATE OF BASIC PAY WHICH IS THE RATE APPLICABLE BY LAW TO THE PARTICULAR ENLISTED GRADE HELD. SEE 63 COMP.GEN. 25, 28 (1983).
ADDITIONALLY, THE COURTS HAVE HELD THAT WHERE AN ACCUSED DIES BEFORE MANDATORY APPEAL FROM HIS CONVICTION HAS BEEN COMPLETED, THE PROCEEDINGS MUST BE ABATED FROM THEIR INCEPTION. SEE DOVE V. UNITED STATES, 423 U.S. 325 (1976), AND U.S. V. MARCOTT, ACMR 1979, 8 M.J. 531.
IN U.S. V. MARCOTT, THE COURT HELD THAT AN APPEAL TO THE ARMY COURT OF MILITARY REVIEW PURSUANT TO ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C. SEC. 866), WAS A MATTER OF RIGHT, AND THUS WHEN THE ACCUSED DIED PRIOR TO THE APPEAL FROM HIS CONVICTION OF LARCENY, PROCEEDINGS HAD TO BE ABATED FROM THEIR INCEPTION. THUS, PRIOR ACTION AFFIRMING FINDINGS AND SENTENCE WAS DECLARED A NULLITY, FINDINGS AND SENTENCE WERE SET ASIDE, AND CHARGES WERE DISMISSED.
IN THE PRESENT CASE, PRIVATE WHITE DIED PRIOR TO THE COMPLETION OF THE APPEAL. ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. SEC. 866 (1976), THE STATUTORY PROVISION IN EFFECT AT THE TIME OF HIS DEATH, PROVIDED IN PERTINENT PART:
"*** (B) THE JUDGE ADVOCATE GENERAL SHALL REFER TO A COURT OF MILITARY REVIEW THE RECORD IN EVERY CASE OF TRAIL BY COURT-MARTIAL IN WHICH THE SENTENCE, AS APPROVED, AFFECTS A GENERAL OR FLAG OFFICER OR EXTENDS TO DEATH, DISMISSAL OF A COMMISSIONED OFFICER, CADET OR MIDSHIPMAN, DISHONORABLE OR BAD-CONDUCT DISCHARGE, OR CONFINEMENT FOR ONE YEAR OR MORE."
PRIVATE WHITE'S SENTENCE INCLUDED A BAD-CONDUCT DISCHARGE. THUS, HIS SENTENCE FALLS WITHIN THE MANDATE OF THE STATUTE AND APPELLATE REVIEW OF HIS CASE WAS A MATTER OF RIGHT AND NOT DISCRETIONARY. IT APPEARS THAT, CONSISTENT WITH THE CASES DISCUSSED ABOVE, THE PROCEEDINGS WERE ABATED. PRESUMABLY, THEY WERE ABATED FROM THEIR INCEPTION, THE FINDINGS OF GUILTY AND THE SENTENCE SET ASIDE AND THE CHARGES DISMISSED.
ACCORDINGLY, IT IS OUR VIEW THAT THE DEATH GRATUITY PAYABLE PURSUANT TO 10 U.S.C. SECS. 1475 AND 1478 IS PAYABLE TO MRS. WHITE.