B-126617, MAY 16, 1956, 35 COMP. GEN. 643

B-126617, MAY 16, 1956, 35 COMP. GEN. 643

RECORDS CORRECTION - MILITARY - SIX MONTHS' DEATH GRATUITY - ACCEPTANCE OF PAYMENT ON FIRST CORRECTION AS PRECLUDING PAYMENT ON SECOND CORRECTION THE CORRECTION OF A NAVY SEAMAN'S RECORDS TO REMOVE THE MARK OF DESERTION FOLLOWING A DETERMINATION OF PRESUMED DEATH AT THE END OF AN UNEXPLAINED ABSENCE OF MORE THAN SEVEN YEARS DOES NOT ESTABLISH A PRESUMPTION AS TO THE DATE OF DEATH, BUT THE RECORDS MAY BE CORRECTED AGAIN TO SHOW A DATE OF DEATH FOR THE PURPOSE OF COMPUTING THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY 34 U.S. CODE 943. THE ACCEPTANCE OF A DECEASED SEAMAN'S ARREARS OF PAY BY THE MOTHER AS ADMINISTRATRIX OF THE ESTATE FOLLOWING THE CORRECTION OF THE DECEDENT'S MILITARY RECORD, TO REMOVE A MARK OF DESERTION FOLLOWING A DETERMINATION OF PRESUMED DEATH AT THE END OF AN UNEXPLAINED ABSENCE OF MORE THAN SEVEN YEARS, DOES NOT CONSTITUTE THE ACCEPTANCE OF A SETTLEMENT AS USED IN SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 TO PRECLUDE THE PAYMENT OF A SIX MONTHS' DEATH GRATUITY TO THE MOTHER AS DESIGNATED BENEFICIARY ON THE FURTHER CORRECTION OF THE RECORD TO ESTABLISH A DATE OF DEATH FOR PAYMENT OF THE GRATUITY.

TO T. P. CONDON, DEPARTMENT OF THE NAVY, MAY 16, 1956:

BY LETTER DATED JANUARY 9, 1956, THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF AUGUST 26, 1955, REQUESTING AN ADVANCE DECISION RESPECTING THE RIGHTS OF JENNIE M. SULTZ, MOTHER OF THE LATE ROBERT W. SULTZ, SEAMAN, SECOND CLASS, USNR, TO ARREARS OF PAY AND SIX MONTHS' DEATH GRATUITY BASED ON THE CORRECTION OF HER SON'S NAVAL RECORDS.

IT APPEARS FROM YOUR LETTER, AND ENCLOSURES, THAT SULTZ ENLISTED IN THE NAVAL SERVICE ON JUNE 11, 1942; THAT ON NOVEMBER 30, 1942, WHILE ATTACHED TO THE U.S.S. MARBLE HEAD AT RECIFE, BRAZIL, HE WAS GRANTED LIBERTY TO EXPIRE AT MIDNIGHT ON THAT DAY; THAT HE FAILED TO RETURN TO HIS SHIP; AND THAT ON JANUARY 1, 1943, HE WAS DECLARED A DESERTER AS OF NOVEMBER 30, 1942. THE RECORD FURTHER INDICATES THAT ON AUGUST 29, 1951, AN ABSOLUTE DECREE WAS ENTERED IN THE PROBATE COURT OF SANDUSKY COUNTY OHIO, STATING THAT ROBERT WILLIAM SULTZ IS PRESUMED TO BE DEAD, AND THAT HIS MOTHER, JENNIE SULTZ, IS ENTITLED TO BE APPOINTED ADMINISTRATRIX OF HIS ESTATE. SUBSEQUENTLY, SULTZ'S RECORDS WERE CORRECTED BY THE ASSISTANT SECRETARY OF THE NAVY, ALONG ON THE FINDINGS AND DECISION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS (ESTABLISHED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A). THE ASSISTANT SECRETARY'S MEMORANDUM DATED NOVEMBER 26, 1954, DIRECTING THE CORRECTIVE ACTION, IS AS FOLLOWS:

1. IT IS DIRECTED THAT THE NAVAL RECORDS OF THE SUBJECT MAN BE CORRECTED AS RECOMMENDED IN PARAGRAPH 14 OF ENCLOSURE (2), AS FOLLOWS:

THAT THE NAVAL RECORD OF ROBERT WILLIAM SULTZ, S2C, U. S. NAVAL RESERVE, 614 49 83, BE CORRECTED BY APPROPRIATE ENTRIES THEREIN TO SHOW THAT HE PERFORMED NO ACTIVE DUTY IN THE NAVAL SERVICE AFTER 30 NOVEMBER 1942; THAT THE MARK OF DESERTION IS REMOVED, SINCE THE CONTINUANCE THEREOF WOULD BE AN INJUSTICE; THAT HE IS PRESUMED TO HAVE DIED BECAUSE OF UNEXPLAINED ABSENCE FOR A PERIOD OVER SEVEN YEARS; AND THAT HIS DEATH OCCURRED NOT AS A RESULT OF HIS OWN MISCONDUCT.

IT IS POINTED OUT THAT THE RECORD AS CORRECTED DOES NOT SHOW A DATE OF DEATH IN THE CASE OF ROBERT W. SULTZ AND YOU PRESENT THE QUESTION WHETHER MRS. SULTZ'S ACCEPTANCE OF THE ARREARS OF PAY DUE HER SON AS OF NOVEMBER 30, 1942, WOULD AFFECT HER ENTITLEMENT TO A FUTURE PAYMENT OF DEATH GRATUITY IN THE EVENT THE DATE OF HER SON'S DEATH IS SUBSEQUENTLY DETERMINED BY PROPER NAVAL AUTHORITY TO BE NOVEMBER 30, 1942. TRANSMITTING YOUR LETTER HERE, THE ACTING JUDGE ADVOCATE GENERAL EXPRESSES THE VIEW THAT AN ADDITIONAL QUESTION ARISES AS TO WHETHER THE RECORD AS CORRECTED PROVIDES AUTHORITY FOR THE PAYMENT OF THE DEATH GRATUITY OR WHETHER THE FAILURE TO DESIGNATE AN EXACT DATE OF DEATH PRECLUDES SUCH PAYMENT AT THIS TIME. HE ALSO SUGGESTS THAT YOUR QUESTION STEMS FROM AN INTERPRETATION OF SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (C), WHICH PROVIDES, WITH RESPECT TO PAYMENTS BASED ON CORRECTIONS OF MILITARY OR NAVAL RECORDS AUTHORIZED BY THAT ACT, THAT " THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.'

THE ACT OF JUNE 4, 1920, AS AMENDED, 34 U.S.C. 943, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW,OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * * ( ITALICS SUPPLIED.)

SINCE THE STATUTE AUTHORIZES PAYMENT OF THE SIX MONTHS' DEATH GRATUITY COMPUTED AT THE RATE OF PAY RECEIVED BY THE MEMBER AT THE DATE OF HIS DEATH, AND SINCE NO DATE OF DEATH HAS BEEN ADMINISTRATIVELY ESTABLISHED OR DETERMINED IN THIS CASE, THE PRESENT RECORD DOES NOT PROVIDE A PROPER BASIS FOR PAYMENT OF THE GRATUITY TO MRS. SULTZ, PARTICULARLY SINCE THE LAW RAISES NO PRESUMPTION AS TO THE DATE OF DEATH IN A CASE SUCH AS THIS EVEN THOUGH THE FACT OF DEATH IS PRESUMED BECAUSE OF AN UNEXPLAINED ABSENCE OF SEVEN YEARS. SEE DAVIE V. BRIGGS, 97 U.S. 628, 24 L.ED. 1086, AND THE CASES CITED IN 16 AM. JUR., DEATH, 34.

NOTWITHSTANDING THE LACK OF A PRESUMPTION WITH RESPECT TO DATE OF DEATH, HOWEVER, IT IS OUR VIEW THAT THE SECRETARY OF THE NAVY, ACTING THROUGH THE BOARD FOR CORRECTION OF NAVAL RECORDS, WOULD HAVE THE AUTHORITY, UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO CORRECT THE RECORD OF ROBERT W. SULTZ TO SHOW A DATE OF DEATH IF HE CONCLUDED THAT SUCH ACTION WAS JUSTIFIED FROM SUCH EVIDENCE AS MAY BE AVAILABLE AND WAS "NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' HENCE, WE WOULD NOT OBJECT TO THE OTHERWISE PROPER PAYMENT OF THE GRATUITY TO MRS. SULTZ IF HER SON'S RECORD SHOULD AGAIN BE CORRECTED (UNDER SECTION 207) TO SHOW THE DATE OF HIS DEATH AS NOVEMBER 30, 1942.

WITH RESPECT TO THE QUESTION WHETHER MRS. SULTZ'S ACCEPTANCE OF HERE SON'S ARREARS OF PAY WOULD ,CONSTITUTE A COMPLETE RELEASE" BY HER OF ANY CLAIM SHE MAY HAVE OR MAY ACCRUE FOR THE SIX MONTHS' DEATH GRATUITY INCIDENT TO HIS DEATH, IT IS OUR VIEW THAT THE ACCEPTANCE OF A "SETTLEMENT" BASED ON A CORRECTION OF RECORD MADE UNDER SECTION 207 OF THE 1946 ACT, AS AMENDED, WOULD NOT PRECLUDE A SUBSEQUENT CORRECTION OF THE SAME RECORD OR A PAYMENT OF AN ADDITIONAL AMOUNT DUE ON THE BASIS OF THE RECORD AS SUBSEQUENTLY CORRECTED. MOREOVER, WHILE IT IS NOT ENTIRELY CLEAR FROM THE PRESENT RECORD, IT APPEARS THAT MRS. SULTZ IS CLAIMING HER SON'S ARREARS OF PAY AS ADMINISTRATRIX OF HIS ESTATE AND THAT ANY CLAIM SHE MIGHT MAKE FOR THE SIX MONTHS' DEATH GRATUITY WOULD BE MADE BY HER AS HIS DESIGNATED BENEFICIARY. IN SUCH CIRCUMSTANCES, THE ACCEPTANCE BY MRS. SULTZ, AS ADMINISTRATRIX OF THE ESTATE, OF THE ARREARS OF PAY WOULD NOT BE CONSIDERED AN ACCEPTANCE OF A SETTLEMENT AS CONTEMPLATED BY THE STATUTE SO AS TO CONSTITUTE "A COMPLETE RELEASE" OF HER CLAIM AGAINST THE UNITED STATES FOR THE SIX MONTHS' DEATH GRATUITY SUBMITTED IN A DIFFERENT CAPACITY, THAT IS, IN THE CAPACITY OF DESIGNATED BENEFICIARY.