B-142477, APRIL 20, 1960, 39 COMP. GEN. 716

B-142477, APRIL 20, 1960, 39 COMP. GEN. 716

CIVILIAN PERSONNEL - DECEASED - TRANSPORTATION - REMAINS - ALASKA AND HAWAII AFTER THE ADMISSION OF ALASKA AND HAWAII INTO THE UNION, EMPLOYEES OFFICIALLY STATIONED IN THOSE STATES WERE ONLY ENTITLED, UNDER THE ACT OF JULY 8, 1940, 5 U.S.C. 103A, WHICH AUTHORIZES THE TRANSPORTATION OF REMAINS AT GOVERNMENT EXPENSE UNDER CERTAIN CIRCUMSTANCES, TO THE BENEFITS WHICH ARE PROVIDED FOR EMPLOYEES IN THE UNITED STATES (WHO DIE WHILE IN A TRAVEL STATUS) RATHER THAN TO THE BENEFITS PROVIDED FOR EMPLOYEES STATIONED IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY; THE STATUS OF ALASKA AND HAWAII ON THE DATE OF THE DEATH OF THE EMPLOYEE BEING DETERMINATIVE OF THE BENEFITS PAYABLE BY THE GOVERNMENT.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, APRIL 20, 1960:

ON APRIL 1, 1960, YOUR ASSOCIATE DEPUTY ADMINISTRATOR, REQUESTED OUR DECISION UPON TWO QUESTIONS CONCERNING THE EFFECT OF THE ADMISSION OF ALASKA AND HAWAII INTO THE UNION UPON THE APPLICATION OF THE PROVISIONS OF THE ACT OF JULY 8, 1940, 54 STAT. 743, AS AMENDED, 5 U.S.C. 103A, IN CAUSES OF DEATH OF CIVILIAN EMPLOYEES OF THE GOVERNMENT. THE TWO QUESTIONS ARE AS FOLLOWS:

(1) ARE GOVERNMENT EMPLOYEES PERFORMING OFFICIAL DUTIES IN THE STATES OF ALASKA AND HAWAII ENTITLED TO THE TRANSPORTATION BENEFITS PROVIDED BY PUBLIC NO. 729, 76TH CONGRESS, AS AMENDED (5 U.S.C. 103A/?

(2) IF REPLY TO THE GENERAL QUESTION IS IN THE NEGATIVE, ARE GOVERNMENT EMPLOYEES WHO WERE ASSIGNED TO DUTY IN ALASKA AND HAWAII BEFORE STATEHOOD WAS GRANTED ENTITLED TO SUCH TRANSPORTATION BENEFITS?

THE ACT OF JULY 8, 1940, IS IN PERTINENT PART AS FOLLOWS (QUOTING FROM 5 U.S.C. 103A):

IN CASE ANY CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES DIES (1) WHILE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION IN THE UNITED STATES OR (2) WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE HEAD OF THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR FEDERALLY OWNED OR CONTROLLED CORPORATION, HEREINAFTER CALLED DEPARTMENT, IN THE SERVICE OF WHICH SUCH OFFICER OR EMPLOYEE WAS ENGAGED, IS AUTHORIZED, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT AND EXCEPT AS OTHERWISE PROVIDED BY LAW, TO PAY FROM THE APPROPRIATION AVAILABLE FOR THE ACTIVITY IN WHICH HE WAS ENGAGED--- -

(A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IN SUCH TRAVEL STATUS IN THE UNITED STATES, OR IN THE CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE EXPENSES OF PREPARING AND TRANSPORTING THE REMAINS OF SUCH OFFICER OR EMPLOYEE TO HIS HOME OR OFFICIAL STATION OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT.

(B) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES, OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE TRANSPORTATION EXPENSES OF HIS DEPENDENTS, INCLUDING EXPENSES INCURRED IN PACKING, CRATING, DRAYAGE, AND TRANSPORTATION OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY TO HIS FORMER HOME OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT SHALL DETERMINE.

UNDER THE ABOVE-QUOTED STATUTE THE REMAINS OF A DECEASED EMPLOYEE WHO DIES WHILE OFFICIALLY STATIONED IN THE UNITED STATES MAY BE PREPARED AND TRANSPORTED AT GOVERNMENT EXPENSE ONLY WHEN THE EMPLOYEE WAS IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION AT THE TIME OF HIS DEATH. ON THE OTHER HAND, AN EMPLOYEE STATIONED IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM IS NOT REQUIRED TO HAVE BEEN IN A TRAVEL STATUS AT THE TIME OF HIS DEATH IN ORDER TO QUALIFY FOR THE BENEFITS OF THAT ACT- - IT BEING SUFFICIENT THAT DEATH OCCURRED "WHILE PERFORMING OFFICIAL DUTIES.' FURTHER, IN THE CASE OF DEATH OF AN EMPLOYEE STATIONED IN THE UNITED STATES, NO RIGHT EXISTS UNDER THE STATUTE FOR TRANSPORTATION OF HIS DEPENDENTS OR HOUSEHOLD EFFECTS.

IN PRINCIPLE, THE SITUATION HERE INVOLVED IS SIMILAR TO THAT CONSIDERED IN OUR DECISION OF OCTOBER 1, 1958, 38 COMP. GEN. 261, CONCERNING THE EFFECT OF THE ADMISSION OF ALASKA INTO THE UNION UPON THE 45-DAY LEAVE ACCUMULATION BENEFIT THERETOFORE ENJOYED BY EMPLOYEES OFFICIALLY STATIONED WITHIN HER BORDERS. WE HELD IN THAT DECISION THAT EMPLOYEES STATIONED IN ALASKA ON THE DATE OF HER ADMISSION AS A STATE AUTOMATICALLY BECAME SUBJECT TO THE 30-DAY ANNUAL LEAVE LIMITATION APPLICABLE TO EMPLOYEES OFFICIALLY STATIONED WITHIN THE SEVERAL STATES.

SIMILARLY, FOR THE PURPOSES OF THE ACT OF JULY 8, 1940, ALASKA AND HAWAII UPON THEIR ADMISSION INTO THE UNION AS STATES LOST THEIR STATUS AS TERRITORIES. HENCE, THE PROVISIONS OF THAT ACT APPLICABLE TO EMPLOYEES OFFICIALLY STATIONED WITHIN THE UNITED STATES AUTOMATICALLY BECAME APPLICABLE TO EMPLOYEES OFFICIALLY STATIONED WITHIN ALASKA OR HAWAII ON OR AFTER THE DATE OF THEIR ADMISSION AS STATES. IN THAT CONNECTION BOTH SECTION 8 (D) OF THE ALASKA STATEHOOD ACT, PUBLIC LAW 85-508, JULY 7, 1958, 72 STAT. 344, AND SECTION 15 OF THE HAWAII STATEHOOD ACT, PUBLIC LAW 86-3, MARCH 18, 1959, 73 STAT. 11, PROVIDE IN EFFECT THAT THE "LAWS OF THE UNITED STATES SHALL HAVE THE SAME FORCE AND EFFECT WITHIN" ALASKA OR HAWAII, AS THE CASE MAY BE,"AS ELSEWHERE WITHIN THE UNITED STATES.' OUR DECISION OF DECEMBER 18, 1958, 38 COMP. GEN. 447, WE CONSTRUED THAT PROVISION MERELY AS A REQUIREMENT THAT THE LAWS OF THE UNITED STATES BE GIVEN THE SAME VALIDITY AND FORCE IN ALASKA AS IN OTHER STATES. THE SAME CONSTRUCTION WOULD BE APPLICABLE IN THE CASE OF HAWAII. HENCE, AFTER THE ADMISSION OF ALASKA AND HAWAII INTO THE UNION, THE ACT OF JULY 8, 1940, CONTINUED IN FORCE AND EFFECT IN BOTH JURISDICTIONS. HOWEVER, EMPLOYEES STATIONED IN ALASKA AND HAWAII THEREAFTER BECAME ENTITLED TO THE BENEFITS PROVIDED BY SUCH ACT FOR EMPLOYEES STATIONED WITHIN THE UNITED STATES IN LIEU OF THE BENEFITS AUTHORIZED BY THE ACT FOR EMPLOYEES STATIONED IN TERRITORIES AND POSSESSIONS, ETC., TO WHICH THEY THERETOFORE HAD BEEN ENTITLED. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

CONCERNING THE SECOND QUESTION PRESENTED, OUR VIEW IS THAT THE FACT AN EMPLOYEE WAS ASSIGNED TO ALASKA OR HAWAII BEFORE STATEHOOD WAS GRANTED IS NOT CONTROLLING. SINCE DEATH IS THE CONTINGENCY ESTABLISHING IMMEDIATE ENTITLEMENT TO THE BENEFITS PROVIDED UNDER THE ACT OF JULY 8, 1940, THE STATUS OF ALASKA OR HAWAII--- WHICHEVER OF THE TWO MAY HAVE BEEN THE OFFICIAL STATION OF THE EMPLOYEE--- AS OF THE DATE OF DEATH OF THE EMPLOYEE WOULD DETERMINE THE BENEFITS PAYABLE BY THE GOVERNMENT UNDER THAT ACT. THEREFORE, AS TO SUCH AN EMPLOYEE THE ANSWER TO THE FIRST QUESTION IS APPLICABLE IN THE EVENT OF HIS DEATH WHILE STATIONED IN ALASKA OR HAWAII AFTER THEIR ADMISSION AS STATES.