B-162982, MAR. 4, 1968

B-162982, MAR. 4, 1968

TRANSPORTATION - REMAINS - DEPENDENTS DECISION TO SECRETARY OF THE AIR FORCE AUTHORIZING ADMINISTRATIVE SETTLEMENT OF A CLAIM FOR COST OF TRANSPORTATION OF THE REMAINS OF AIR FORCE MEMBER'S STEPDAUGHTER FROM HAWAII TO ARIZONA. THE COST OF TRANSPORTATION OF REMAINS OF AN ARMY MEMBER'S STEPDAUGHTER AGE 21 AT TIME OF DEATH MAY BE REIMBURSED TO THE MEMBER IF PAYMENT IS GIVEN SECRETARIAL APPROVAL SINCE UNDER 10 U.S.C. 1485 (A) PROVIDES AUTHORITY FOR TRANSPORTATION OF REMAINS OF DEPENDENTS IF DEPENDENTS WERE ENTITLED TO TRANSPORTATION AT GOVT. EXPENSE IF LIVING. THE FACT THAT AF REGULATIONS HAVE NOT BEEN AMENDED TO ACCORD WITH AUTHORITY IN PUBLIC LAW 88-431, SHOULD NOT PRECLUDE PAYMENT OF CASES OTHERWISE WITHIN THE PURVIEW OF THE STATUTE.

TO MR. SECRETARY:

BY LETTER DATED NOVEMBER 15, 1967, WITH ENCLOSURES, MASTER SERGEANT LYLE G. MYERS, AF17091012, 108 PUULOA CIRCLE, APO SAN FRANCISCO 96553, PRESENTED TO THIS OFFICE, WITH A REQUEST THAT IT BE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, A CLAIM FOR REIMBURSEMENT OF THE SUM OF $280, REPRESENTING THE COST OF TRANSPORTATION OF THE REMAINS OF HIS DECEASED STEPDAUGHTER FROM HONOLULU, HAWAII, TO TUCSON, ARIZONA.

THE ONLY INFORMATION WE HAVE PERTAINING TO THE CLAIM IS CONTAINED IN SERGEANT MYERS' LETTER. HE SAYS THAT HE IS STATIONED AT HICKAM AIR FORCE BASE, HAWAII, AND THAT ON AUGUST 5, 1967, HIS STEPDAUGHTER, GERALDINE B. WALMSLEY, WHO WAS BORN ON APRIL 12, 1946, WAS KILLED WHEN THE AUTOMOBILE IN WHICH SHE WAS A PASSENGER AND WHICH WAS DRIVEN BY A NAVY MEMBER WAS INVOLVED IN AN ACCIDENT. HE SAYS FURTHER THAT TRANSPORTATION OF HIS STEPDAUGHTER'S REMAINS AT GOVERNMENT EXPENSE WAS DENIED BECAUSE SHE WAS OVER 21 YEARS OF AGE AT THE TIME OF HER DEATH AND THERE WAS NO ENTITLEMENT TO SUCH TRANSPORTATION UNDER THE PROVISIONS OF PARAGRAPH 1-5F (2) OF AIR FORCE MANUAL 143-1A, DATED JUNE 15, 1966.

AS A BASIS FOR FAVORABLE CONSIDERATION OF HIS CLAIM SERGEANT MYERS POINTS OUT THAT HIS STEPDAUGHTER WAS AN ELIGIBLE DEPENDENT FOR TRANSPORTATION AT GOVERNMENT EXPENSE TO HAWAII -- AS EVIDENCED BY HIS ORDERS OF MARCH 2, 1966, COPY OF WHICH HE ENCLOSED, CHANGING HIS PERMANENT STATION FROM DOVER, DELAWARE, TO HICKAM AIR FORCE BASE -- AND THAT HAD SHE LIVED, HER RETURN TRANSPORTATION AT GOVERNMENT EXPENSE AS A DEPENDENT WOULD HAVE BEEN PROVIDED UPON HIS RETURN TO THE UNITED STATES. HE ADDS THAT BECUASE OF THE INABILITY TO SECURE GOVERNMENT TRANSPORTATION, IT WAS NECESSARY TO ARRANGE FOR TRANSPORTATION OF HIS STEPDAUGHTER'S REMAINS TO THE UNITED STATES AT A PERSONAL COST OF $280. A COPY OF THE FUNERAL BILL SHOWING SUCH COST AND EVIDENCING THE PAYMENT THEREOF WAS SUBMITTED IN SUPPORT OF THE CLAIM.

SECTION 406 (H) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 1 (A) OF PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, 78 STAT. 439, AUTHORIZES THE RETURN TRANSPORTATION TO THE UNITED STATES, OR ITS POSSESSIONS, OF A DEPENDENT OF A MEMBER WHO WAS TRANSPORTED TO HIS OVERSEAS STATION AT GOVERNMENT EXPENSE AND WHO BECOMES 21 YEARS OF AGE WHILE THE MEMBER IS SERVING AT THAT STATION.

IN THE HEARINGS (NO. 10) HELD ON MAY 28, 1963, BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 4739, WHICH WAS ENACTED AS PUBLIC LAW 88-431, SUPRA, IT WAS STATED(PAGE 3005) THAT THE PURPOSE OF THE LEGISLATION IS TO AUTHORIZE RETURN TRANSPORTATION TO THE UNITED STATES OF UNMARRIED CHILDREN OF A MEMBER WHO BECOME 21 YEARS OF AGE WHILE THE MEMBER IS ASSIGNED ON DUTY OVERSEAS. IT WAS STATED FURTHER (PAGE 3007) THAT IT IS CONSIDERED THAT THE GOVERNMENT HAS A RESPONSIBILITY TO PROVIDE RETURN TRANSPORTATION TO THE UNITED STATES OF THE CHILDREN OF A MEMBER WHO WERE TRANSPORTED OVERSEAS AT GOVERNMENT EXPENSE, INCIDENT TO A SPONSOR'S CHANGE OF PERMANENT DUTY STATION, AND WHO ATTAIN THE AGE OF 21 WHILE THE MEMBER IS SERVING OVERSEAS, AND THAT UNDER THE PROPOSED BILL THE GOVERNMENT'S RESPONSIBILITY FOR THE RETURN OF SUCH CHILDREN UPON ADVANCE RETURN OF DEPENDENTS OR UPON THE ASSIGNMENT OF THE MEMBER TO DUTY IN THE UNITED STATES WOULD BE RECOGNIZED. IT WAS ALSO STATED THAT INASMUCH AS THE GOVERNMENT WOULD ULTIMATELY BE REQUIRED TO PAY THE COSTS OF RETURN TRANSPORTATION OF DEPENDENTS ON PERMANENT CHANGE OF STATION OF THE MEMBER IN ALMOST EVERY INSTANCE, THE ENACTMENT OF THE LEGISLATION WOULD RESULT IN ONLY NOMINAL INCREASES IN BUDGETARY REQUIREMENTS. A SIMILAR STATEMENT OF PURPOSE APPEARS ON PAGE 3 OF REPORT NO. 415 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, DATED JUNE 18, 1963, TO ACCOMPANY H.R. 4739.

THUS, THE EFFECT OF THE PROVISIONS OF PUBLIC LAW 88-431 HERE CONCERNED IS TO CONTINUE THE DEPENDENCY STATUS FOR PURPOSES OF RETURN TRANSPORTATION TO THE UNITED STATES OF THOSE DEPENDENTS TRANSPORTED TO AN OVERSEAS STATION AND WHO REACH THE AGE OF 21 YEARS WHILE AT THE OVERSEAS STATION. HENCE, THERE CAN BE LITTLE DOUBT THAT SUCH DEPENDENTS ARE ENTITLED TO RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE ON THE DATE OF THEIR DEATH.

SECTION 1485 (A) OF TITLE 10 OF THE U.S.C. AS AMENDED BY PUBLIC LAW 89- 150, APPROVED AUGUST 28, 1965, 79 STAT. 585, PROVIDES THAT THE SECRETARY CONCERNED MAY, IF A DEPENDENT" OF A MEMBER OF AN ARMED FORCE DIES WHILE THE MEMBER IS ON ACTIVE DUTY, PROVIDE FOR AND PAY THE NECESSARY EXPENSES OF TRANSPORTING THE REMAINS OF THE DECEASED DEPENDENT TO THE HOME OF THE DEPENDENT OR TO ANY OTHER PLACE THAT THE SECRETARY DETERMINES TO BE THE APPROPRIATE PLACE OF INTERMENT.

THE 1965 AMENDMENT BROADENED THE TRANSPORTATION OF REMAINS OF DEPENDENTS BENEFITS PROVIDED BY 10 U.S.C. 1485 (A) TO AUTHORIZE SUCH BENEFITS FOR ALL MEMBERS ON ACTIVE DUTY REGARDLESS OF WHETHER THEY ARE SERVING OVERSEAS OR IN THE CONTINENTAL UNITED STATES. PRIOR TO THAT AMENDMENT THE LAW WAS APPLICABLE ONLY TO THOSE MEMBERS ON DUTY IN OVERSEAS AREAS. WITH RESPECT TO THE PURPOSE OF THE LAW AS AMENDED, SENATE REPORT NO. 586, 89TH CONGRESS, TO ACCOMPANY H.R. 3037, WHICH BECAME PUBLIC LAW NO. 89-150 STATES (P.2):

"* * * THE BILL WOULD AUTHORIZE ESSENTIALLY THE SAME TRANSPORTATION FOR A DEAD DEPENDENT THAT WOULD BE AUTHORIZED IF THE DEPENDENT WERE LIVING.' SINCE 10 U.S.C. 1485 (A) PROVIDES AUTHORITY FOR THE TRANSPORTATION OF THE REMAINS OF DEPENDENTS IN CASES WHERE SUCH TRANSPORTATION WOULD BE AUTHORIZED IF THE DEPENDENT WERE LIVING, IT IS OUR VIEW THAT DEPENDENTS COMING WITHIN THE ABOVE-MENTIONED PROVISIONS OF 37 U.S.C. 406 (H) ARE WITHIN THE SCOPE OF THE LAW.

THE CURRENT PROVISIONS OF PARAGRAPH 1-5F (2) OF AIR FORCE MANUAL 143-1A DO NOT AUTHORIZE THE TRANSPORTATION TO THE UNITED STATES OF THE REMAINS OF A CHILD OF THE AGE OF 21 YEARS OR MORE AT THE TIME OF DEATH. THESE PROVISIONS APPEAR, HOWEVER, TO HAVE BEEN CARRIED FORWARD FROM THE REGULATIONS IN EFFECT PRIOR TO ENACTMENT OF PUBLIC LAW 88-431 AND DO NOT NECESSARILY REFLECT A PURPOSE ON THE PART OF THE AIR FORCE TO DENY TRANSPORTATION OF THE REMAINS OF DEPENDENTS WHO WOULD BE ENTITLED TO SUCH TRANSPORTATION UNDER THE PROVISIONS OF 37 U.S.C. 406 (H) IF THEY WERE ALIVE. ON THE ASSUMPTION, THEREFORE, THAT PARAGRAPH 1-5F (2) WILL BE REVISED TO AUTHORIZE THE TRANSPORTATION OF THE REMAINS OF DEPENDENT CHILDREN WHO DIE AT THE MEMBER'S OVERSEAS STATION AFTER BECOMING 21 YEARS OF AGE AND WHO WOULD BE ENTITLED TO TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE UNDER THE PROVISIONS OF 37 U.S.C. 406 (H) IF THEY WERE ALIVE, WE WOULD NOT OBJECT TO THE ADMINISTRATIVE PAYMENT OF THE AMOUNT CLAIMED BY SERGEANT MYERS, PROVIDED SUCH PAYMENT IS GIVEN SECRETARIAL APPROVAL.

IN LINE WITH THE FOREGOING, SERGEANT MYERS' LETTER OF NOVEMBER 15, 1967, AND ENCLOSURES, ARE FORWARDED FOR YOUR CONSIDERATION. A COPY OF THIS DECISION IS BEING FORWARDED TO SERGEANT MYERS.