B-166032, FEBRUARY 11, 1969, 48 COMP. GEN. 527

B-166032, FEBRUARY 11, 1969, 48 COMP. GEN. 527

OFFICERS AND EMPLOYEES - MISSING, INTERNED, CAPTURED, ETC. - PROXIMATE RESULT OF CIVILIAN EMPLOYMENT DETERMINATION WHEN A CIVILIAN EMPLOYEE STATIONED INSIDE THE UNITED STATES ENTERS A MISSING STATUS OUTSIDE THE UNITED STATES WHILE ON LEAVE SAILING A SLOOP FROM NEWPORT, RHODE ISLAND, TO ST. THOMAS, VIRGIN ISLANDS, A DETERMINATION BY THE AGENCY HEAD THAT THE MISSING STATUS OF THE EMPLOYEE WAS THE PROXIMATE RESULT OF HIS CIVILIAN EMPLOYMENT IS REQUIRED BEFORE THE MISSING PERSONS BENEFITS PROVIDED BY THE ACT OF AUGUST 29, 1957 (5 U.S.C. 5561) MAY BE GRANTED, EVEN THOUGH THE ACT DOES NOT EXPRESSLY REFER TO THE SITUATION INVOLVED.

TO THE CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD, FEBRUARY 11, 1969:

WE REFER TO YOUR LETTER OF JANUARY 27, 1969, REQUESTING OUR DECISION CONCERNING THE APPLICABILITY OF 5 U.S.C. 5561 ET SEQ. (FORMERLY KNOWN AS THE MISSING PERSONS ACT) IN THE CASE OF MR. RUSSELL A. POTTER ONE OF THE BOARD'S HEARING EXAMINERS.

YOUR LETTER SETS FORTH THE FOLLOWING CIRCUMSTANCES RELATING TO MR. POTTER'S CASE:

* * * MR. POTTER ENTERED MISSING STATUS WHILE ON ANNUAL LEAVE COVERING THE PERIOD NOVEMBER 29 TO DECEMBER 17, 1968. DURING THIS PERIOD, HE AND TWO COMPANIONS SET OUT IN A 33-FOOT SLOOP NAMED LISA ANN II ON A VOYAGE FROM NEWPORT, R.I., TO ST. THOMAS, V.I. ACCORDING TO NEWSPAPER ACCOUNTS, THE LISA ANN II DEPARTED NEWPORT ON DECEMBER 2 OR 3, 1968 AND WAS SCHEDULED TO MAKE A REFUELING STOP AT BERMUDA ON DECEMBER 10. THE LISA ANN II WAS REPORTED OVERDUE ON DECEMBER 15 AND, DESPITE INTENSIVE SEARCH AND RESCUE EFFORTS BY THE COAST GUARD, WAS NOT SIGHTED OR HEARD FROM AS OF DECEMBER 26.

ON JANUARY 6, 1969, A BODY BELIEVED TO BE THAT OF ALOYSIUS J. HINNEGAN, SKIPPER OF THE LISA ANN II, WAS RECOVERED BY THE COAST GUARD FROM THE ATLANTIC OCEAN AT A POSITION APPROXIMATELY 550 MILES ESE OF NEWPORT AND 475 MILES NE OF BERMUDA. WITH THIS DEVELOPMENT, THE COAST GUARD RENEWED THE SEARCH UNTIL JANUARY 10 BUT AGAIN WITH NEGATIVE RESULTS. 5 U.S.C. 5561 READS IN PART AS FOLLOWS:

(2) "EMPLOYEE" MEANS AN EMPLOYEE IN OR UNDER AN AGENCY WHO IS A CITIZEN OR NATIONAL OF THE UNITED STATES OR AN ALIEN ADMITTED TO THE UNITED STATES FOR PERMANENT RESIDENCE, BUT DOES NOT INCLUDE A PARTTIME OR INTERMITTENT EMPLOYEE OR NATIVE LABOR CASUALLY HIRED ON AN HOURLY OR DAILY BASIS. HOWEVER, SUCH AN EMPLOYEE WHO ENTERS A STATUS LISTED IN PARAGRAPH (5) (A) - (E) OF THIS SECTION---

(A) INSIDE THE CONTINENTAL UNITED STATES OR

(B) WHO IS A RESIDENT AT OR IN THE VICINITY OF HIS PLACE OF EMPLOYMENT IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY AND WHO WAS NOT LIVING THERE SOLELY AS A RESULT OF HIS EMPLOYMENT; IS AN EMPLOYEE FOR THE PURPOSE OF THIS SUBCHAPTER ONLY ON A DETERMINATION BY THE HEAD OF THE AGENCY CONCERNED THAT THIS STATUS IS THE PROXIMATE RESULT OF EMPLOYMENT BY THE AGENCY * * *.

THE LITERAL WORDING OF THE QUOTED PROVISION INDICATES THAT WHEN AN EMPLOYEE, STATIONED INSIDE THE CONTINENTAL UNITED STATES, ENTERS A STATUS LISTED IN PARAGRAPH 5 (A/-/E) OF SUCH SECTION AT A TIME WHEN HE IS OUTSIDE THE CONTINENTAL UNITED STATES, FOR WHATEVER REASON, HE WOULD QUALIFY AS AN "EMPLOYEE" FOR MISSING PERSONS BENEFITS WITHOUT ANY DETERMINATION BEING MADE BY THE AGENCY HEAD THAT THE STATUS IS THE PROXIMATE RESULT OF EMPLOYMENT BY THE AGENCY.

ON THE OTHER HAND SUCH A CONCLUSION APPEARS INCONSISTENT WITH THE PURPOSE AND SPIRIT OF THE STATUTE. AS POINTED OUT IN YOUR LETTER IT WAS NOT UNTIL ENACTMENT OF THE ACT OF AUGUST 29, 1957, 71 STAT. 491, THAT COVERAGE WAS EXTENDED TO AN EMPLOYEE WHO WAS LOCATED WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES AT THE TIME HE ENTERED A STATUS ENUMERATED IN THE ACT. THIS EXTENSION OF COVERAGE WAS DEEMED NECESSARY PRIMARILY BECAUSE CERTAIN EMPLOYEES MIGHT ENTER SUCH A STATUS AS RESULT OF AIRCRAFT ACCIDENTS OR WHILE PERFORMING SECURITY MISSIONS WITHIN THE CONTINENTAL UNITED STATES. THE CONGRESS EXPRESSLY GRANTED THIS EXTENSION UPON THE CONDITION THAT THE AGENCY HEAD DETERMINE THAT THE MISSING STATUS WAS THE PROXIMATE RESULT OF EMPLOYMENT BY THE DEPARTMENT. SEE PAGES 3, 6 AND 7 OF S.REPT. NO. 970, AUGUST 15, 1957, ON H.R. 5807; PAGE 2 OF H.REPT. NO. 204, MARCH 18, 1957, ON H.R. 5807,AND 103 CONG. REC. 6365, MAY 6, 1957.

IT IS REASONABLY CLEAR THAT THE PURPOSE OF THE 1957 AMENDMENT WAS TO EXTEND THE COVERAGE OF THE ACT TO CIVILIAN EMPLOYEES WHO ENTERED A STATUS DESCRIBED IN SUCH ACT IN THE CONTINENTAL UNITED STATES ONLY WHEN SUCH EMPLOYEES OTHERWISE WERE ENGAGED IN THE PERFORMANCE OF OFFICIAL DUTY OR WHEN SUCH MISSING STATUS WAS INCIDENT TO THEIR PERFORMANCE OF OFFICIAL DUTY. WHILE THE STATUTE DOES NOT EXPRESSLY REFER TO A SITUATION IN WHICH AN EMPLOYEE OFFICIALLY STATIONED IN THE UNITED STATES ENTERS A MISSING STATUS OUTSIDE OF THE UNITED STATES, SUCH AS HERE, WE CONSIDER THAT UNLESS SUCH EMPLOYEE'S PRESENCE OUTSIDE THE UNITED STATES CLEARLY WAS PURSUANT TO OFFICIAL ORDERS THE GRANTING OF MISSING PERSONS BENEFITS WOULD BE DEPENDENT UPON AN ADMINISTRATIVE DETERMINATION MADE BY THE EMPLOYING AGENCY THAT THE STATUS OTHERWISE GIVING RISE TO MISSING PERSONS BENEFITS WAS THE PROXIMATE RESULT OF HIS EMPLOYMENT. A LITERAL CONSTRUCTION OF THE PROVISION WOULD, WE BELIEVE, PRODUCE AN UNINTENDED RESULT THAT WOULD BE INCONSISTENT WITH THE CONTEMPLATED PURPOSE AND OBJECTIVE OF THE 1957 AMENDMENT.

ACCORDINGLY, OUR VIEW IS THAT UNLESS SUCH AN ADMINISTRATIVE DETERMINATION CAN BE MADE IN THE CASE OF MR. POTTER MISSING PERSONS BENEFITS MAY NOT BE GRANTED IN HIS CASE.