B-153951, JUL. 10, 1964

B-153951, JUL. 10, 1964

TO MAJOR JOHN A. RAPP, USMC, DISBURSING OFFICER, HEADQUARTERS UNITED STATES MARINE CORPS:

YOUR LETTER OF MARCH 28, 1964, CDH/JR, TRANSMITTED HERE BY FIRST ENDORSEMENT OF APRIL 10, 1964, BY THE COMMANDANT OF THE MARINE CORPS, UNDER NO. DO-MC-763 ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION AS TO WHETHER BASIC PAY AND APPLICABLE ALLOWANCES FOR THE UNUSED LEAVE STANDING TO THE CREDIT OF STAFF SERGEANT JOHN S. BRIGHT, 289276, U.S. MARINE CORPS, RETIRED, ON THE DAY OF HIS DEATH MAY BE PAID TO HIS WIDOW, HELEN A. BRIGHT, AND ON BEHALF OF HIS MINOR CHILD, PENNY M. BRIGHT.

YOU SAY THAT SERGEANT BRIGHT WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE TEMPORARY DISABILITY RETIRED LIST OF THE U.S. MARINE CORPS EFFECTIVE NOVEMBER 4, 1963, UNDER 10 U.S.C. 1202. PARAGRAPH 1 OF HIS ORDERS DATED NOVEMBER 4, 1963, READS AS FOLLOWS:

"THE SECRETARY OF THE NAVY HAS DETERMINED THAT YOU ARE PHYSICALLY UNFIT TO PERFORM THE DUTIES OF YOUR GRADE AND HAS DIRECTED THAT YOU BE TEMPORARILY RETIRED UNDER THE PROVISIONS OF REFERENCE (A) (10 U.S.C. 1202). YOU ARE RELEASED FROM ALL ACTIVE DUTY AT 2400 ON 4 NOVEMBER 1963, AND TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE 4 NOVEMBER 1963. YOUR ACTIVE DUTY PAY ACCOUNTS WILL BE SETTLED TO INCLUDE 4 NOVEMBER 1963.

YOU ALSO SAY THAT SERGEANT BRIGHT DIED ON NOVEMBER 4, 1963, AFTER APPROVAL OF HIS RETIREMENT; THAT HIS RETIREMENT ORDERS WERE NOT RECEIVED AT HIS DUTY STATION (MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA) UNTIL AFTER THE DATE OF HIS DEATH; AND THAT HE HAD 28 DAYS OF UNUSED LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RETIREMENT.

IN 10 U.S.C. 701 (D), IT IS PROVIDED THAT LEAVE ACCUMULATED UNDER THAT SECTION DOES NOT SURVIVE THE DEATH OF THE MEMBER "DURING ACTIVE SERVICE.' IT IS PROVIDED IN 37 U.S.C. 501 (D), HOWEVER, THAT PAYMENT FOR UNUSED ACCRUED LEAVE IN THE CASE OF A MEMBER "WHO DIES AFTER RETIREMENT" SHALL BE MADE TO THE SURVIVORS OF SUCH MEMBER IN THE MANNER THERE PRESCRIBED. THE CITED STATUTORY PROVISIONS WERE DERIVED FROM THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, CH. 931, 60 STAT. 963, AS AMENDED.

IN B-149489, SEPTEMBER 10, 1962, 42 COMP. GEN. 158, WE REFERRED TO THE WELL-ESTABLISHED RULE THAT UPON COMPLETION OF ADMINISTRATIVE PROCEEDINGS EFFECTING RETIREMENT AND THE ISSUANCE OF RETIREMENT ORDERS, THE MEMBER CONCERNED ENTERED INTO A RETIRED STATUS ON THE DATE STATED IN SUCH ORDERS AND THAT HE WAS ENTITLED TO RETIRED PAY COMMENCING ON THAT DATE, WITHOUT REGARD TO THE DATE SUCH ORDERS ACTUALLY WERE DELIVERED TO HIM. WE ALSO STATED THAT THE CASE OF CRIST V. UNITED STATES, 124 CT.CL. 825 (1952), CHANGED THAT RULE ONLY IN CASES WHERE THE RETIREMENT ORDERS OR APPROPRIATE NOTICE THEREOF WERE NOT COMMUNICATED TO THE MEMBER UNTIL AFTER THE DATE OF RETIREMENT SPECIFIED IN THE RETIREMENT ORDERS, IN WHICH EVENT HE IS REGARDED AS HAVING BEEN RETAINED ON ACTIVE DUTY AFTER RETIREMENT UNTIL HIS RELEASE FROM ACTIVE DUTY IS DIRECTED IN COMPETENT ORDERS. SINCE THE ORDERS OF NOVEMBER 4, 1963, DIRECTED SERGEANT BRIGHT'S TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON THAT DATE, HE MUST BE REGARDED AS HAVING BEEN IN A RETIRED STATUS FROM THE BEGINNING OF THAT DATE. HENCE, IT APPEARS THAT HE DIED AFTER HIS RETIREMENT BECAME EFFECTIVE. SINCE NOTICE OF SUCH RETIREMENT APPARENTLY WAS NOT RECEIVED, ACTIVE DUTY PAY AND ALLOWANCES ARE PAYABLE FOR NOVEMBER 4, 1963, THE DATE OF DEATH, UNDER THE RULE OF THE CRIST CASE.

IN VIEW OF THE PROVISIONS IN 37 U.S.C. 501 (D) AUTHORIZING PAYMENT FOR UNUSED ACCRUED LEAVE TO THE SURVIVORS OF A MEMBER WHO DIES AFTER RETIREMENT, THE PHRASE "DURING ACTIVE SERVICE" IN 10 U.S.C. 701 (D) IS INTERPRETED AS REFERRING TO THE ACTIVE SERVICE WHICH PRECEDES RETIREMENT. SINCE SERGEANT BRIGHT DIED AFTER HIS RETIREMENT BECAME EFFECTIVE, PAY AND ALLOWANCES FOR THE UNUSED LEAVE WHICH ACCRUED TO HIM PRIOR TO HIS RETIREMENT ARE PROPERLY PAYABLE TO HIS WIDOW AND CHILD.