B-149213, SEP. 5, 1962

B-149213, SEP. 5, 1962

TO MR. BEN PAUL NOBLE, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1962, IN BEHALF OF MRS. ROSALIA M. BANDISH, WIDOW OF THE LATE WILLIAM E. BANDISH, MASTER SERGEANT, USAF, RETIRED, CONCERNING THE CLAIM OF THE DECEDENT FOR FLIGHT PAY FOR THE PERIOD NOVEMBER 1, 1941, THROUGH SEPTEMBER 10, 1945.

IT IS STATED THAT IN 1947 DECEDENT ADDRESSED A LETTER TO THE ARMY FINANCE CENTER CLAIMING FLIGHT PAY FOR THE PERIOD OF HIS INTERMENT AS A PRISONER OF WAR OF THE JAPANESE; THAT THE CLAIM WAS RETURNED WITHOUT ACTION BECAUSE OF FAILURE TO FURNISH PROOF OF ISSUANCE OF FLIGHT ORDERS; THAT AGAIN IN 1947, CLAIM WAS MADE ACCOMPANIED BY A CERTIFICATE EXECUTED BY HIS WARTIME FIRST SERGEANT; THAT THIS CLAIM ALSO WAS RETURNED BECAUSE OF INSUFFICIENT PROOF; THAT IN 1948, CLAIM WAS AGAIN PRESENTED TO THE ARMY FINANCE CENTER, ACCOMPANIED BY A CERTIFICATE SIGNED BY DECEDENT'S ACTING COMMANDING OFFICER ON BATAAN; AND THAT NO REPLY WAS RECEIVED TO THIS COMMUNICATION. IT APPEARS THAT THE MATTER THEN LAY DORMANT UNTIL DECEDENT ADDRESSED A LETTER DATED AUGUST 29, 1960, TO THE ARMY FINANCE CENTER CLAIMING FLIGHT PAY FOR THE PERIOD NOVEMBER 1, 1941, TO SEPTEMBER 10, 1945. THERE WAS ATTACHED TO THIS LETTER A STATEMENT DATED AUGUST 18, 1960, AND SIGNED BY GENERAL WILLIAM G. HIPPS, WHEREIN GENERAL HIPPS CERTIFIED THAT ON DECEMBER 7, 1941, HE WAS THE COMMANDING OFFICER OF THE DECEDENT'S ORGANIZATION; THAT THE DECEDENT WAS "ON FLYING STATUS UNDER COMPETENT ORDERS AND A MEMBER OF A FLIGHT CREW; " AND THAT DECEDENT PARTICIPATED IN ACTUAL FLYING OPERATIONS SUBSEQUENT TO DECEMBER 7, 1941. THIS CLAIM WAS FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT BY LETTER DATED SEPTEMBER 13, 1960, OF THE FINANCE CENTER, U.S. ARMY, WITH THE COMMENT THAT SINCE THE CLAIM HAD BEEN DORMANT FOR MORE THAN TEN YEARS, ALL RECORDS HAD BEEN DESTROYED.

BY SETTLEMENT DATED DECEMBER 16, 1960, OUR CLAIMS DIVISION, DISALLOWED THE CLAIM, STATING THAT WHERE A LONG PERIOD HAS ELAPSED BETWEEN THE PERIOD INVOLVED AND THE PRESENTATION OF A CURRENT CLAIM, AND WHERE THE RECORDS NECESSARY TO ADJUDICATE THE CLAIM ARE NO LONGER AVAILABLE, THERE IS NO BASIS ON WHICH A PROPER SETTLEMENT MAY ISSUE.

IN YOUR PRESENT LETTER YOU SUMMARIZE THE ABOVE AND SUBMIT THAT THE DECEDENT SHOULD NOT HAVE BEEN REQUIRED TO SUBMIT PROOF OF HIS CLAIM, AND FURTHER THAT THE STATEMENT OF GENERAL HIPPS IS SUFFICIENT EVIDENCE OF ENTITLEMENT TO THE FLIGHT PAY CLAIMED.

IN YOUR LETTER YOU REFER TO OUR DECISION 23 COMP. GEN. 948 AS AUTHORITY FOR ALLOWANCE OF THE PRESENT CLAIM. IN THE CITED CASE THERE WAS CONSIDERED THE QUESTION OF ENTITLEMENT TO FLIGHT PAY AFTER THE TERMINATION OF THE MEMBER'S MISSING-IN-ACTION OR PRISONER-OF-WAR STATUS. THE ENTITLEMENT TO FLIGHT PAY FOR THE PERIOD PRIOR TO ABSENCE WAS ESTABLISHED AND PAYMENT OF FLIGHT PAY FOR THE PERIOD OF ABSENCE WHILE A PRISONER OF WAR WAS REGARDED AS CORRECT UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, CH. 166, 56 STAT. 144. THE PRESENT MATTER IS CONCERNED WITH THE ENTITLEMENT TO FLIGHT PAY BEFORE AND DURING THE MISSING-IN-ACTION OR PRISONER-OF-WAR PERIODS. HENCE, THE CITED DECISION HAS NO APPLICATION TO THE PRESENT MATTER.

PARAGRAPH 8 OF EXECUTIVE ORDER NO. 5865, DATED JUNE 27, 1932, PROMULGATED FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF SECTION 20 OF THE ACT OF JUNE 10, 1922, CH. 212, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, CH. 721, 44 STAT. 782, PROVIDED:

"EACH ENLISTED MAN WHO IS SERVING IN THE AIR CORPS OF THE ARMY OR IN ANY PART OF THE AERONAUTIC ORGANIZATION OF THE NAVY, MARINE CORPS, OR COAST GUARD, AND WHO IS NOT A QUALIFIED AIRCRAFT PILOT OR OBSERVER, MAY BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY HIS COMMANDING OFFICER, AND ORDERS FOR SUCH REQUIREMENT SHALL REMAIN IN FORCE FOR THE ENTIRE PERIOD OF SUCH ASSIGNMENT EXCEPT AS HEREINAFTER PROVIDED IN PARAGRAPH 12; ORDERS FOR SUCH REQUIREMENT AND THEIR REVOCATION SHALL BE REPORTED TO THE CHIEF OF THE AIR CORPS FOR THE ARMY, * * *.'

IN HIS STATEMENT OF AUGUST 18, 1960, GENERAL HIPPS DOES NOT STATE THAT HE, IN HIS CAPACITY AS COMMANDING OFFICER OF THE CLAIMANT'S ORGANIZATION, DIRECTED THE PARTICIPATION OF THE CLAIMANT IN REGULAR AND FREQUENT AERIAL FLIGHTS AT ANY TIME PRIOR TO, OR AFTER, DECEMBER 7, 1941, NOR DOES HE STATE THAT ANY FLIGHTS WERE PERFORMED PRIOR TO DECEMBER 7, 1941. HENCE, THERE IS NO BASIS FOR THE ALLOWANCE OF FLIGHT PAY FOR THE PERIOD NOVEMBER 1, 1941, THROUGH DECEMBER 7, 1941. IN THIS CONNECTION YOU ARE ADVISED THAT WE HAVE OBTAINED THE PAYROLL OF THE CLAIMANT'S ORGANIZATION FOR THE MONTH OF NOVEMBER 1941, AND THE PARTIAL PAYMENT PAYROLL FOR DECEMBER 1941, AND THERE IS NO INDICATION THEREIN THAT THE CLAIMANT HAD BEEN DIRECTED TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS.

SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED BY THE ACT OF JULY 1, 1944, CH. 371, 58 STAT. 679, 50 U.S.C. APP. 1002 (1946 ED.), PROVIDED, IN PART, THAT:

"ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, CAPTURED BY AN ENEMY, BELEAGUERED OR BESIEGED SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER * * *.'

DURING THE EARLY PART OF WORLD WAR II THE WAR DEPARTMENT MADE A GENERAL DETERMINATION TO THE EFFECT THAT ALL ARMY PERSONNEL IN THE PHILIPPINE ISLANDS DURING THE PERIOD DECEMBER 8, 1941, TO MAY 6, 1942, WERE IN A BELEAGUERED STATUS AND THAT ALL ARMY PERSONNEL IN THE PHILIPPINE ISLANDS ON MAY 7, 1942, WERE IN A MISSING-IN-ACTION STATUS FROM THAT DATE. ALL SPECIFIC DETERMINATIONS OF STATUS MADE IN THE CASES OF INDIVIDUAL MEMBERS OF THE ARMY IN THE PHILIPPINE ISLANDS WERE MADE IN ACCORDANCE WITH SUCH GENERAL DETERMINATION PURSUANT TO THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED.

SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED BY THE ACT OF JULY 1, 1944, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THIS ACT, AND FOR THE PURPOSES OF THIS ACT DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. * * * DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE * * *. WHEN CIRCUMSTANCES WARRANT RECONSIDERATION OF ANY DETERMINATION * * * THE HEAD OF THE DEPARTMENT CONCERNED * * * MAY CHANGE OR MODIFY A PREVIOUS DETERMINATION. * * *"

SINCE THERE IS NO EVIDENCE THAT MR. BANDISH WAS ENTITLED TO AVIATION PAY AT THE BEGINNING OF THE PERIOD OF HIS BELEAGUERMENT, THE CREDIT OF FLIGHT PAY FOR THAT PERIOD AND WHILE HE WAS IN A MISSING-IN-ACTION OR PRISONER-OF -WAR STATUS IS NOT AUTHORIZED ON THE CONTINUANCE OF PAY BASIS. WHETHER HE BECAME "ENTITLED THEREAFTER" (AFTER ENTERING A STATUS WITHIN THE PROVISIONS OF THE MISSING PERSONS ACT) TO SUCH ADDITIONAL PAY WAS A MATTER OF FACT TO BE DETERMINED BY THE SECRETARY OF WAR (ARMY), AND IF APPROPRIATE, INCLUDED IN THE DEPARTMENTAL SETTLEMENT OF MR. BANDISH'S PAY ACCOUNT UPON HIS RETURN TO MILITARY CONTROL. IT IS ASSUMED THAT, AS IN ALL OTHER SIMILAR CASES, AN ADMINISTRATIVE SETTLEMENT WAS ISSUED FOLLOWING THE TERMINATION OF MR. BANDISH'S PRISONER-OF-WAR STATUS BASED ON A DETERMINATION AS TO THE PAY AND ALLOWANCES DUE HIM AT THAT TIME. WHEN PROPERLY MADE, PURSUANT TO THE MISSING PERSONS ACT, A DETERMINATION IS BINDING AND CONCLUSIVE. SINCE IT APPEARS THAT FLIGHT PAY WAS NOT INCLUDED IN THAT SETTLEMENT, THE DETERMINATION SO MADE AS TO HIS RIGHTS AT THAT TIME IS CONCLUSIVE ON THE GENERAL ACCOUNTING OFFICE. IN THE ABSENCE OF A REDETERMINATION AS TO THIS MATTER UNDER SECTION 9 OF THE MISSING PERSONS ACT OR OTHER APPROPRIATE ACTION UNDER 10 U.S.C. 1552 ESTABLISHING HIS RIGHT TO FLIGHT PAY DURING THE PERIOD INVOLVED, NO FAVORABLE ACTION MAY BE TAKEN ON THE CLAIM.

YOUR REQUEST FOR A HEARING PURSUANT TO THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 1001-1011, HAS BEEN NOTED. YOU ARE ADVISED THAT WE HAVE ALWAYS TAKEN THE VIEW THAT THE FUNCTIONS OF THE GENERAL ACCOUNTING OFFICE ARE NOT WITHIN THE SCOPE OF THAT ACT. OUR DECISIONS, IN CASES OF CLAIMS OF INDIVIDUALS, ARE BINDING ONLY ON THE ACCOUNTABLE OFFICERS OF THE GOVERNMENT. THE INDIVIDUAL CLAIMANT CAN ALWAYS RESORT TO AN APPROPRIATE COURT FOR A HEARING DE NOVO AND ADJUDICATION OF HIS CLAIM. HOWEVER, ADMINISTRATIVE DETERMINATIONS UNDER THE MISSING PERSONS ACT ARE BINDING ON THE COURTS AS WELL AS THIS OFFICE. MORENO V. UNITED STATES, 93 F.SUPP. 607 (1950), CERTIORARI DENIED, 342 U.S. 814.