B-163944, MAY 23, 1968

TO MR. FRANCIS J. O-BRIEN:

WE REFER AGAIN TO YOUR LETTER OF APRIL 2, 1968, REQUESTING A DECISION CONCERNING THE TERMINAL DATE FOR ENTITLEMENT TO PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT OF AN EMPLOYEE WHO DIED AFTER BEING CAPTURED BY THE VIET CONG.

YOUR LETTER POINTS OUT THAT THE EMPLOYEE WAS CAPTURED BY THE VIET CONG ON FEBRUARY 2, 1965. YOU SAY FURTHER THAT:

"ON NOVEMBER 7, 1967, AT 11:32 A.M. (PHNOM PENH TIME), THE AUSTRALIAN EMBASSY IN PHNOM PENH, CAMBODIA, CABLED THE TRANSLATION OF AN OCTOBER 30, 1967 LETTER FROM PRINCE NORODOM SIHANOUK, CAMBODIA CHIEF OF STATE, TO MRS. GUSTAV HERTZ. THE CABLE STATED THAT PRINCE SIHANOUK HAD RECEIVED A LETTER FROM NGUYEN HUU THO, PRESIDENT OF THE CENTRAL COMMITTEE OF THE NATIONAL LIBERATION FRONT OF VIETNAM, INFORMING HIM THAT MR. GUSTAV HERTZ, A CIVILIAN PRISONER OF THE NFL, HAD DIED ON SEPTEMBER 24, 1967, AFTER A SHORT ILLNESS. THE CABLE WAS RECEIVED BY THE STATE DEPARTMENT ON NOVEMBER 6, 1967, AT 8:40 P.M. (EST).'

ACTING UPON THE INFORMATION CONTAINED IN THE CABLE, THE PRESIDENT OF THE UNITED STATES SENT A LETTER OF CONDOLENCE TO THE EMPLOYEE'S WIFE ON NOVEMBER 8, AND THE SECRETARY OF STATE AS WELL AS THE ADMINISTRATOR FOR THE AGENCY FOR INTERNATIONAL DEVELOPMENT SENT LETTERS OF CONDOLENCE ON NOVEMBER 9. YOU SAY ALSO THAT YOUR PAYROLL BRANCH, ACTING ON THE INFORMATION RECEIVED, TERMINATED THE PAY AND ALLOWANCES OF THE EMPLOYEE AS OF NOVEMBER 7, 1967.

SUBSEQUENTLY ON NOVEMBER 17, 1967, THE AGENCY PERSONNEL ADMINISTRATION SENT AN ACTION MEMORANDUM TO THE ASSISTANT ADMINISTRATOR FOR ADMINISTRATION OUTLINING THE CIRCUMSTANCES IN THE EMPLOYEE'S CASE AND CITING THE RECEIPT OF THE CABLE ON THE EVENING OF NOVEMBER 6, 1967, ADVISING OF THE EMPLOYEE'S DEATH ON SEPTEMBER 24. THE MEMORANDUM RECOMMENDED THAT THE ASSISTANT ADMINISTRATOR "IN ACCORDANCE WITH THE AUTHORITY DELEGATED * * * UNDER SECTION 9 OF THE MISSING PERSONS ACT, MAKE THE DETERMINATION THAT GUSTAV C. HERTZ IS DEAD, AND THAT PAY AND ALLOWANCE BE TERMINATED AS OF C.O.B. NOVEMBER 18, 1967.' THE RECOMMENDATION WAS APPROVED BY THE ASSISTANT ADMINISTRATOR.

YOUR QUESTION RELATES PRIMARILY TO THE AUTHORITY OF THE ASSISTANT ADMINISTRATOR TO CONTINUE THE PAYMENT OF PAY AND ALLOWANCES UNTIL NOVEMBER 18, 1967, SINCE THE HEAD OF THE AGENCY RECEIVED NOTICE OF THE EMPLOYEE'S DEATH ON NOVEMBER 6.

AS POINTED OUT IN YOUR LETTER, 5 U.S.C. 5562 PROVIDES:

"/A) AN EMPLOYEE IN A MISSING STATUS IS ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT, FOR THE PERIOD HE IS IN THAT STATUS, THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY BECOME ENTITLED THEREAFTER.

"/B) ENTITLEMENT TO PAY AND ALLOWANCES * * * ENDS ON THE DATE OF--

"/1) RECEIPT BY THE HEAD OF THE AGENCY CONCERNED OF EVIDENCE THAT THE EMPLOYEE IS DEAD; OR

"/2) DEATH PRESCRIBED OR DETERMINED UNDER SECTION 5565 OF THIS TITLE.'

SECTION 5566 OF THE TITLE IN PERTINENT PART PROVIDES:

"/A) THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE MAY MAKE ANY DETERMINATION NECESSARY TO ADMINISTER THIS SUBCHAPTER, AND WHEN SO MADE IT IS CONCLUSIVE AS TO---

"/1) DEATH OR FINDING OF DEATH;

"/3) ANY OTHER STATUS COVERED BY THIS SUBCHAPTER;

"/4) AN ESSENTIAL DATE INCLUDING ONE ON WHICH EVIDENCE OR INFORMATION IS RECEIVED BY THE HEAD OF THE AGENCY CONCERNED * * *

"/C) THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE MAY DETERMINE THE ENTITLEMENT OF AN EMPLOYEE TO PAY AND ALLOWANCES UNDER THIS SUBCHAPTER, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND THAT DETERMINATION IS CONCLUSIVE. * * *"

WE RECOGNIZE THE AUTHORITY OF THE ASSISTANT ADMINISTRATOR AS THE DESIGNEE OF THE ADMINISTRATOR OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT TO MAKE FINAL DETERMINATIONS IN CERTAIN AREAS UNDER THE CITED STATUTE. HOWEVER, THE RECORD INDICATES THAT THE ONLY DETERMINATION MADE BY THE ASSISTANT ADMINISTRATOR WAS THE APPROVAL OF THE RECOMMENDATION OF NOVEMBER 17, 1967, OF THE AGENCY PERSONNEL ADMINISTRATION THAT THE EMPLOYEE IS DEAD AND THAT HIS PAY SHOULD CEASE AS OF NOVEMBER 18.

THERE IS NO INDICATION WHY THE ASSISTANT ADMINISTRATOR APPROVED THE DATE OF NOVEMBER 18, WHEN THE RECORD SHOWS THAT NOTICE OF DEATH OF THE EMPLOYEE WAS RECEIVED ON NOVEMBER 6 AND THAT SUCH EVIDENCE WAS ACCEPTED BY THE SECRETARY OF STATE AND THE ADMINISTRATOR FOR THE AGENCY FOR INTERNATIONAL DEVELOPMENT AS SHOWN BY THEIR LETTERS OF CONDOLENCE TO THE WIDOW OF THE DECEASED EMPLOYEE.

IN VIEW OF THE SPECIFIC REQUIREMENT IN THE STATUTE THAT THE PAY OF THE EMPLOYEE CARRIED IN A MISSING OR CAPTURED STATUS SHOULD CEASE AS OF THE DATE OF THE RECEIPT OF EVIDENCE OF HIS DEATH, THE ASSISTANT ADMINISTRATOR MAY WISH TO RECONSIDER HIS PRIOR ACTION IN THIS CASE. ANY FURTHER DETERMINATION MADE BY HIM THAT THE NOTICE OF DEATH WAS RECEIVED ON NOVEMBER 6 AND THAT PAY SHOULD TERMINATE ON SUCH DATE WOULD BE CONCURRED IN BY OUR OFFICE.