B-130701, APRIL 4, 1957, 36 COMP. GEN. 695

B-130701, APRIL 4, 1957, 36 COMP. GEN. 695

SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT - MEMBERS OF INSULAR FORCE OF THE NAVY - DEATH GRATUITY PAYMENTS SURVIVORS OF MEMBERS OF THE INSULAR FORCE OF THE NAVY ARE ENTITLED TO THE DEATH GRATUITY BENEFITS PROVIDED BY SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT. IN THE COMPUTATION OF DEATH GRATUITY PAYMENTS PRESCRIBED BY SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT FOR SURVIVORS OF MEMBERS OF THE INSULAR FORCE OF THE NAVY, THE RATES OF PAY FIXED BY THE SECRETARY OF THE NAVY ARE TO BE USED RATHER THAN THE BASIC RATES OF PAY PRESCRIBED IN SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF DEFENSE, APRIL 4, 1957:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 12, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION ON CERTAIN QUESTIONS CONCERNING THE PAYMENT OF A DEATH GRATUITY UNDER THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, APPROVED AUGUST 1, 1956, 70 STAT. 868, 38 U.S.C. 1131, IN THE CASE OF DEATH OF A MEMBER OF THE INSULAR FORCE OF THE NAVY.

THE QUESTIONS PRESENTED ARE SET FORTH IN COMMITTEE ACTION NO. 169 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. IS THE DEATH GRATUITY PROVIDED BY SECTION 301, TITLE III, OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, PAYABLE IN THE CASE OF DEATH OF A MEMBER OF THE INSULAR FORCE OF THE NAVY?

2. IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE, ON WHAT BASIS SHOULD THE GRATUITY BE COMPUTED?

SECTION 301 OF TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFIT ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 301. (A) EXCEPT AS PROVIDED IN SECTION 304 (A), THE SECRETARY CONCERNED SHALL HAVE A DEATH GRATUITY PAID IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF A UNIFORMED SERVICE UNDER HIS JURISDICTION WHO DIES WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING.

(B) THE DEATH GRATUITY SHALL EQUAL SIX MONTHS' BASIC PAY (PLUS SPECIAL AND INCENTIVE PAYS) AT THE RATE TO WHICH THE DECEASED MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DATE OF HIS DEATH, BUT SHALL NOT BE LESS THAN $800 NOR MORE THAN $3,000.

PRIOR TO THE ENACTMENT OF TITLE III OF THE ACT OF AUGUST 1, 1956, THERE WAS IN EFFECT THE ACT OF JUNE 4, 1920, 34 U.S.C. 943, WHICH ACT AUTHORIZED THE PAYMENT OF A SIX MONTHS' DEATH GRATUITY TO CERTAIN SURVIVORS OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY. THAT ACT WAS EXPRESSLY REPEALED BY SECTION 502 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, 14 U.S.C. PREC. 461. WHILE THE INSULAR FORCE OF THE NAVY IS NOT SPECIFICALLY ENUMERATED AS A " MEMBER OF A UNIFORMED SERVICE" AS THAT TERM IS DEFINED IN SECTION 102 OF THE ACT OF AUGUST 1, 1956, 38 U.S.C. 1101, IT LONG HAS BEEN HELD THAT MEMBERS OF THE INSULAR FORCE OF THE NAVY ARE ENLISTED MEN OF THE REGULAR NAVY OF THE UNITED STATES. 12 COMP. DEC. 189; 26 ID. 428; 1 COMP. GEN. 480; 21 ID; 311, 313. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 1, 1956, WHICH WOULD INDICATE THAT THE CONGRESS INTENDED TO EXCLUDE MEMBERS OF THE INSULAR FORCE OF THE NAVY FROM THE DEATH GRATUITY BENEFITS AUTHORIZED FOR CERTAIN SURVIVORS IN TITLE III OF THAT ACT. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

THE TERM "BASIC PAY" IS DEFINED IN SECTION 102 (10) (A), 38 U.S.C. 1101 (10) (A), AS FOLLOWS:

"BASIC PAY" MEANS THE MONTHLY PAY PRESCRIBED BY SECTION 201 (A), 201 (E), 201 (F), OR 508 OF THE CAREER COMPENSATION ACT OF 1949, AS MAY BE APPROPRIATE, FOR A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY.

SECTION 201 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 232 (A), PRESCRIBES THE PAY GRADES AND MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES WITHIN EACH PAY GRADE ACCORDING TO CUMULATIVE YEARS OF SERVICE. SECTIONS 201 (E) AND 508 (37 U.S.C. 308) PRESCRIBES THE BASIC RATE FOR AVIATION CADETS AND FOR CADETS AND MIDSHIPMEN, RESPECTIVELY, AND SECTION 201 (F), 37 U.S.C. 232 (F), PROVIDES AN ADDITIONAL INCREMENT OF BASIC PAY OF $100 A MONTH FOR LIEUTENANT GENERALS AND VICE ADMIRALS AND $200 A MONTH FOR GENERALS AND ADMIRALS.

IN OUR DECISION OF NOVEMBER 1, 1956, B-129589, 36 COMP. GEN. 355, CITED IN THE DISCUSSION IN COMMITTEE ACTION NO. 169, THERE WAS CONSIDERED THE RATES OF BASIC PAY WHICH THE SECRETARIES OF THE MILITARY DEPARTMENTS ARE AUTHORIZED BY TITLE II OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT--- INVOLVING THE RIGHT OF CERTAIN SURVIVORS TO DEPENDENCY AND INDEMNITY COMPENSATION--- TO CERTIFY TO THE VETERANS ADMINISTRATION IN THE CASES OF MEMBERS AND FORMER MEMBERS OF THE PHILIPPINE SCOUTS, THE INSULAR FORCE OF THE NAVY, AND OF THE PHILIPPINE ARMY. IT WAS POINTED OUT IN THAT DECISION THAT IN THE CASE OF A MEMBER OF THE ARMED SERVICES WHO DIES WHILE ON ACTIVE DUTY, THE TERM "BASIC PAY" IS NOT DEFINED AS THE PAY RECEIVED BY THE MEMBER AT THE DATE OF DEATH BUT IS THE BASIC PAY AS DEFINED IN SECTION 102 (10) OF THE ACT OF AUGUST 1, 1956, 36 U.S.C. 1101 (10), FOR A MEMBER ON ACTIVE DUTY OF THE SAME RANK AND LENGTH OF SERVICE AS THAT OF THE DECEASED MEMBER ON THE DATE OF HIS DEATH. IT WAS OUR OPINION THAT THE RATES OF PAY PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT SHOULD BE CERTIFIED AS THE BASIC PAY RATES APPLICABLE UNDER THE ACT OF AUGUST 1, 1956, TO MEMBERS AND FORMER MEMBERS OF THE PHILIPPINE SCOUTS, INSULAR FORCE OF THE NAVY, AND OF THE PHILIPPINE ARMY.

IT WILL BE NOTED THAT THE DECISION OF NOVEMBER 1, 1956, RELATED TO THE PROVISIONS OF TITLE II OF THE 1946 ACT ONLY INSOFAR AS DETERMINING THE BASIC PAY RATES APPLICABLE TO THE BENEFITS PROVIDED IN THAT TITLE. UNLIKE THE PROVISIONS OF TITLE II, SECTION 301 (B) OF TITLE III, 38 U.S.C. 1131 (B), AS QUOTED ABOVE, EXPRESSLY PROVIDES THAT THE GRATUITY SHALL EQUAL SIX MONTHS' BASIC PAY (PLUS SPECIAL AND INCENTIVE PAYS) "AT THE RATE TO WHICH THE DECEASED MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DATE OF HIS DEATH.' THUS, TITLE III CONTAINS A DESCRIPTION OF BASIC PAY NOT FOUND IN TITLE II.

FOLLOWING THE ENACTMENT OF SECTION 507 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 307 (B), WHICH AUTHORIZED THE SECRETARY OF THE NAVY TO FIX THE RATES OF PAY FOR THE ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY, THE SECRETARY OF THE NAVY SAW FIT TO FIX THOSE RATES AT ONE-HALF OF THE RATES APPLICABLE TO OTHER ENLISTED MEMBERS OF THE REGULAR NAVY. THE PAY SO PRESCRIBED IS THE EQUIVALENT OF THE BASIC PAY PROVIDED IN SECTION 201 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 232, FOR OTHER ENLISTED MEMBERS OF THE REGULAR NAVY AND IT IS THAT PAY ON WHICH THE SIX MONTHS' DEATH GRATUITY AUTHORIZED PRIOR TO THE EFFECTIVE DATE OF THE ACT OF AUGUST 1, 1956, WAS COMPUTED. WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT TO INDICATE THAT IT WAS INTENDED TO CHANGE MATERIALLY THE BASIS FOR COMPUTING THE GRATUITY FOR MEMBERS OF THE INSULAR FORCE AND IN VIEW OF THE EXPRESS PROVISION IN SECTION 301 (B) OF THE 1956 ACT THAT THE PAY TO WHICH THE MEMBER IS ENTITLED AT DATE OF DEATH IS TO BE USED IN COMPUTING THE GRATUITY, IT IS OUR VIEW THAT SECTION 301 (B) CONTEMPLATES THAT THE DEATH GRATUITY FOR MEMBERS OF THE INSULAR FORCE SHOULD BE COMPUTED ON THE BASIS OF THE RATES OF PAY FIXED BY THE SECRETARY OF THE NAVY RATHER THAN ON THE BASIS OF THE BASIC PAY PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT. QUESTION 2 IS ANSWERED ACCORDINGLY.