B-175336, MAY 19, 1972, 51 COMP GEN 759

B-175336, MAY 19, 1972, 51 COMP GEN 759

PAY - MISSING, INTERNED, ETC., PERSONS - PROMOTIONS - "EFFECTIVE FOR ALL PURPOSES" ANY AMOUNTS DUE A MEMBER OF THE MARINE CORPS WHO WHEN HE ENTERED A MISSING STATUS, AS DEFINED BY 37 U.S.C. 551(2), ON APRIL 30, 1967, WAS A PRIVATE FIRST CLASS E-2, AND WHO BY SEPTEMBER 10, 1971, THE DATE HIS DEATH WAS ESTABLISHED AS APRIL 30, 1967, HAD BEEN PROMOTED SUCCESSIVELY TO SERGEANT E-5, ARE PAYABLE AT THE RATES IN EFFECT ON SEPTEMBER 10, 1971, FOR PURSUANT TO PUBLIC LAW 92-169, THE PROMOTION OF A MEMBER WHILE IN A MISSING STATUS IS "FULLY EFFECTIVE FOR ALL PURPOSES," NOTWITHSTANDING 10 U.S.C. 1523 OR ANY OTHER PROVISION OF LAW AND EVEN THOUGH THE SECRETARY CONCERNED OR HIS DESIGNEE UNDER 37 U.S.C. 556(B) DETERMINES THE MEMBER DIED BEFORE THE PROMOTION WAS MADE, AND THE MEMBER'S SPOUSE WHO WAS HIS WIDOW ON THE DAY OF HIS DEATH IS ENTITLED TO THE PAYMENT OF THE ARREARS OF PAY AND THE 6 MONTHS' DEATH GRATUITY DUE NOTWITHSTANDING SHE HAD REMARRIED BEFORE HE WAS OFFICIALLY DETERMINED TO BE DEAD. MILITARY PERSONNEL - MISSING, INTERNED, ETC., PERSONS - LEAVES OF ABSENCE - ACCRUAL ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES CONTINUES TO BE CREDITED PURSUANT TO 37 U.S.C. 552(A) WITH PAY AND ALLOWANCES UNTIL HIS DEATH IS DETERMINED AND SUCH CREDITS ARE NOT DISTURBED IF DEATH IS DETERMINED TO HAVE OCCURRED PRIOR TO THE DATE OF DETERMINATION, FOR THE PURPOSES OF LEAVE ACCURAL THE ACTUAL DATE OF DEATH REMAINS THE DATE OF DISCHARGE UNDER 37 U.S.C. 501(A), SO THAT NO LEAVE ACCRUES AFTER THAT DATE. THEREFORE, A MEMBER OF THE MARINE CORPS WHO WAS DETERMINED ON SEPTEMBER 10, 1971, TO HAVE DIED ON APRIL 30, 1967, DID NOT CONTINUE TO ACCRUE LEAVE AFTER APRIL 30, 1967. HOWEVER, PURSUANT TO PUBLIC LAW 92-169, HIS WIDOW IS ENTITLED TO PAYMENT FOR THE LEAVE THAT HAD ACCRUED TO THE MEMBER BEFORE HIS DEATH, AS WELL AS THE ARREARS OF PAY AND THE 6 MONTHS' DEATH GRATUITY, DUE, ON THE BASIS OF THE MEMBER'S POSTHUMOUS PROMOTIONS FROM GRADE E-2 TO GRADE E- 5, AT THE RATES IN EFFECT ON SEPTEMBER 10, 1971, THE DATE THE MEMBER WAS DETERMINED TO HAVE DIED ON APRIL 30, 1967.

TO MAJOR F. D. BRADY, UNITED STATES MARINE CORPS, MAY 19, 1972:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 15, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED FEBRUARY 28, 1972, OF HEADQUARTERS UNITED STATES MARINE CORPS, REQUESTING A DECISION CONCERNING THE COMPUTATION OF VARIOUS AMOUNTS DUE IN THE CASE OF SERGEANT MILTON E. PRESCOTT, JR., XXX-XX-XXXX, UNITED STATES MARINE CORPS., DECEASED, AND THE PERSON ENTITLED TO RECEIVE SUCH PAYMENT. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC-1148 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT PRESCOTT ENTERED A MISSING STATUS AS DEFINED BY 37 U.S.C. 551(2) ON APRIL 30, 1967. ON THAT DATE HE HAD LESS THAN 2 YEARS OF SERVICE AND HELD THE GRADE OF PRIVATE FIRST CLASS (E-2). HE WAS MARRIED, HAD NO CHILDREN, AND WAS RECEIVING BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF HIS WIFE. SERGEANT PRESCOTT'S WIFE (SANDRA JEAN), MARRIED ONE ELMER E. OLSON, JR., OCTOBER 4, 1969. SO FAR AS IS KNOWN, THE MARRIAGE OF SERGEANT AND SANDRA JEAN PRESCOTT WAS NOT DISSOLVED BY JUDICIAL ACTION. CREDIT FOR BASIC ALLOWANCE FOR QUARTERS WAS TERMINATED EFFECTIVE OCTOBER 3, 1969.

WHILE IN A MISSING STATUS, SERGEANT PRESCOTT WAS PROMOTED SUCCESSIVELY TO THE GRADES OF LANCE CORPORAL, CORPORAL AND SERGEANT (E 5). THE LAST PROMOTION WAS EFFECTIVE JUNE 1, 1968.

ON SEPTEMBER 10, 1971, A DETERMINATION WAS MADE UNDER 37 U.S.C. 556(B) BY THE SECRETARY OF THE NAVY'S DESIGNEE THAT COMPETENT EVIDENCE CONCLUSIVELY ESTABLISHED SERGEANT PRESCOTT'S DATE OF DEATH AS APRIL 30, 1967. ON THE DATE OF SUCH DETERMINATION HE WAS BEING CREDITED WITH PAY AND ALLOWANCES OF A SERGEANT (E-5) WITH OVER 4 YEARS OF SERVICE. ON APRIL 30, 1967, HE HAD 4 DAYS OF UNUSED LEAVE TO HIS CREDIT.

THE ACT OF JULY 28, 1942, CH. 528, 57 STAT. 722, AUTHORIZED THE POSTHUMOUS PROMOTION OF MILITARY AND NAVAL PERSONNEL, BUT PROVIDED THAT NO PERSON SHOULD BE ENTITLED TO ANY BONUS, GRATUITY, PAY, OR ALLOWANCE BY VIRTUE OF ANY PROVISION OF THAT ACT. THAT ACT WAS AMENDED BY THE ACT OF JULY 17, 1953, CH. 220, 67 STAT. 176, TO PROVIDE THAT, FOR THE PURPOSES OF THAT ACT IN ANY CASE WHERE THE DATE OF DEATH IS ESTABLISHED OR DETERMINED UNDER THE MISSING PERSONS ACT, THE DATE OF DEATH IS THE DATE OF RECEIPT BY THE HEAD OF THE DEPARTMENT CONCERNED OF EVIDENCE THAT THE PERSON IS DEAD, OR THE DATE THE FINDING OF DEATH IS MADE. SUCH PROVISIONS OF LAW ARE NOW CODIFIED IN 10 U.S.C. 1521-1524, THE PROVISION THAT NO PERSON IS ENTITLED TO ANY GRATUITY, PAY, OR ALLOWANCE BY VIRTUE OF A POSTHUMOUS PROMOTION BEING CODIFIED IN 10 U.S.C. 1523.

SECTION 4 OF THE 1942 LAW, NOW CODIFIED IN 10 U.S.C. 1522, PROVIDES THAT THE SECRETARY CONCERNED MAY ISSUE, OR HAVE ISSUED, AN APPROPRIATE WARRANT IN THE NAME OF A MEMBER OF THE ARMED FORCES WHO WAS OFFICIALLY RECOMMENDED FOR APPOINTMENT OR PROMOTION TO A GRADE OTHER THAN A COMMISSIONED GRADE BUT WAS UNABLE TO ACCEPT THE APPOINTMENT OR PROMOTION BECAUSE OF DEATH IN LINE OF DUTY. THE TERM "A GRADE OTHER THAN A COMMISSIONED GRADE" INCLUDES AN ENLISTED GRADE.

SECTION 552(A), TITLE 37, U.S. CODE, AS AMENDED BY THE ACT OF NOVEMBER 24, 1971, PUBLIC LAW 92-169, 85 STAT. 489, PROVIDES IN PERTINENT PART AS FOLLOWS, THE LAST SENTENCE HAVING BEEN ADDED BY THE 1971 ACT:

(A) A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY *** AND WHO IS IN A MISSING STATUS, IS, FOR THE PERIOD HE IS IN THAT STATUS, ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES, AS DEFINED IN THIS CHAPTER, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY THEREAFTER BECOME ENTITLED. *** NOTWITHSTANDING SECTION 1523 OF TITLE 10 OR ANY OTHER PROVISION OF LAW, THE PROMOTION OF A MEMBER WHILE HE IS IN A MISSING STATUS IS FULLY EFFECTIVE FOR ALL PURPOSES, EVEN THOUGH THE SECRETARY CONCERNED DETERMINES UNDER SECTION 556(B) OF THIS TITLE THAT THE MEMBER DIED BEFORE THE PROMOTION WAS MADE.

IN VIEW OF THE LANGUAGE ADDED BY THE ACT OF NOVEMBER 24, 1971, THAT A PROMOTION OF A MISSING PERSON IS "FULLY EFFECTIVE FOR ALL PURPOSES" YOU PRESENTED FOR CONSIDERATION VARIOUS QUESTIONS AS TO THE GRADE AND RATE OF PAY TO BE USED IN THE COMPUTATION OF THE LEAVE PAYMENT AND THE DEATH GRATUITY. YOU ALSO REQUESTED A DECISION AS TO THE ENTITLEMENT OF MRS. SANDRA J. PRESCOTT OLSON TO PAYMENT OF THE AMOUNT DUE.

ON AUGUST 16, 1966, SERGEANT PRESCOTT EXECUTED A RECORD OF EMERGENCY DATA DESIGNATING SANDRA JEAN PRESCOTT, WIFE, AND IDA PRESCOTT, MOTHER, AS BENEFICIARIES FOR GRATUITY PAY. HE ALSO NAMED SANDRA JEAN PRESCOTT FOR 100 PERCENT OF HIS UNPAID PAY AND ALLOWANCES. SANDRA J. PRESCOTT OLSON HAS PRESENTED CLAIMS FOR UNPAID PAY AND ALLOWANCES AND DEATH GRATUITY. CLAIM HAS BEEN SUBMITTED BY ANY OTHER PERSON. HOWEVER, MR. JOSEPH C. FANELLI, STATING THAT HE IS THE ATTORNEY FOR MR. AND MRS. MILTON E. PRESCOTT, SR., PARENTS, NOTIFIED THE MARINE CORPS ON NOVEMBER 1, 1971, THAT A CLAIM MAY BE FILED ON THEIR BEHALF AND REQUESTED THAT NO DISBURSEMENT BE MADE TO ANY CLAIMANT UNTIL THEY HAVE THE NECESSARY TIME TO COMPLETE THEIR INVESTIGATION AND RESEARCH.

UNDER 10 U.S.C. 1524, PRIOR TO THE ENACTMENT OF PUBLIC LAW 92-169, A POSTHUMOUS PROMOTION WAS ALLOWED TO STAND BUT BY VIRTUE OF 10 U.S.C. 1523, NO EFFECT WAS GIVEN THERETO FOR PAY PURPOSES EXCEPT THAT PAY CREDITED UNDER THE MISSING PERSONS ACT SUBSEQUENT TO THE ACTUAL DATE OF DEATH WAS NOT RECOVERED BY VIRTUE OF THE PROVISIONS OF THAT ACT.

BY THE PLAIN TERMS OF PUBLIC LAW 92-169, THE PROMOTION OF A MEMBER WHILE HE IS IN A MISSING STATUS IS "FULLY EFFECTIVE FOR ALL PURPOSES," NOTWITHSTANDING 10 U.S.C. 1523 OR ANY OTHER PROVISION OF LAW, EVEN THOUGH THE SECRETARY CONCERNED OR HIS DESIGNEE DETERMINES THAT THE MEMBER DIED BEFORE THE PROMOTION WAS MADE. HENCE, IN VIEW OF THE PROVISIONS OF 10 U.S.C. 1524 FOR THE PURPOSES OF THE POSTHUMOUS PROMOTIONS GRANTED TO SERGEANT PRESCOTT, THE DATE OF DEATH IS SEPTEMBER 10, 1971, AND ANY "BONUS, GRATUITY, PAY, OR ALLOWANCE" PAYABLE UPON SUCH DETERMINATION OF DEATH, INCLUDING PAYMENT FOR ACCRUED LEAVE, IS PAYABLE AT THE RATES IN EFFECT ON SEPTEMBER 10, 1971.

A MEMBER IN A MISSING STATUS UNDER 37 U.S.C. 552(A) IS ENTITLED TO CONTINUANCE OF CREDIT OF PAY AND ALLOWANCES UNTIL HIS DEATH IS DETERMINED AND SUCH CREDITS ARE NOT DISTURBED IF DEATH IS DETERMINED TO HAVE OCCURRED PRIOR TO THE DETERMINATION, WHICH CREDITS, UNDER 37 U.S.C. 557, ARE FOR DETERMINATION BY THE SECRETARY CONCERNED OR HIS DESIGNEE. HOWEVER, THE RIGHT OF SURVIVORS TO BE PAID THE ARREARS OF PAY, INCLUDING PAYMENT FOR UNUSED LEAVE AND TO RECEIVE THE 6 MONTHS' DEATH GRATUITY IS FOR DETERMINATION AS OF THE ACTUAL DATE OF DEATH UNDER THE PROVISIONS OF 10 U.S.C. 1477 AND 2771, BUT TO RECEIVE THE DEATH GRATUITY THE SURVIVORS MUST BE LIVING AT THE TIME OF PAYMENT. SEE 10 U.S.C. 1477(D).

PUBLIC LAW 92-169 DID NOT MAKE THE DATE OF RECEIPT OF EVIDENCE OF DEATH OR THE DATE OF MAKING A FINDING OF DEATH THE DATE OF DEATH FOR ALL PURPOSES, BUT ONLY FOR POSTHUMOUS PROMOTION PURPOSES AND THE CONSEQUENT RATE OF PAY FOR PURPOSES OF COMPUTATION OF DEATH BENEFITS BASED THEREON, SINCE THE POSTHUMOUS PROMOTION IS EFFECTIVE FOR ALL PURPOSES UNDER THAT LAW. LEAVE IS NOT "PAY AND ALLOWANCES" (SEE 37 U.S.C. 551(3)), BUT IS "VACATION OR ABSENCE FROM DUTY WITH PAY" (10 U.S.C. 704); HENCE FOR THE PURPOSES OF ACCRUAL OF LEAVE THE ACTUAL DATE OF DEATH REMAINS THE DATE OF DISCHARGE UNDER 37 U.S.C. 501(A), SO THAT NO LEAVE ACCRUES AFTER THAT DATE. 51 COMP. GEN. 391 (1972).

FOR PURPOSES OF THE LUMP-SUM LEAVE PAYMENT, THEREFORE, THE MEMBER DID NOT ACCRUE ANY LEAVE AFTER APRIL 30, 1967, THE DATE HE IN FACT DIED, EVEN THOUGH THE LUMP-SUM LEAVE PAYMENT IS FOR COMPUTATION ON THE BASIS OF THE POSTHUMOUS PROMOTION TO THE GRADE OF SERGEANT (E-5) AND THE RATE OF PAY AND ALLOWANCES IN EFFECT ON SEPTEMBER 10, 1971, THE DATE THE DESIGNEE OF THE SECRETARY OF THE NAVY DETERMINED THAT COMPETENT EVIDENCE ESTABLISHED HIS DATE OF DEATH AS APRIL 30, 1967.

THE RECORD INDICATES THAT SANDRA JEAN PRESCOTT OLSON WAS THE WIDOW OF SERGEANT PRESCOTT ON APRIL 30, 1967, THE ACTUAL DATE OF HIS DEATH. NOTHING IN THE PROVISIONS OF 10 U.S.C. 1524 OR PUBLIC LAW 92-169 MAKES THE ELIGIBILITY OF A SURVIVING WIFE AS SUCH OR AS A DESIGNATED BENEFICIARY TO RECEIVE THE ARREARS OF PAY OF A DECEASED MEMBER OF THE ARMED FORCES OR THE 6 MONTHS' DEATH GRATUITY DEPENDENT UPON HER BEING HIS UNREMARRIED WIDOW AS OF THE DATE OF RECEIPT BY THE SECRETARY CONCERNED OF EVIDENCE OF DEATH OF THE MEMBER, AS OF THE DATE A FINDING OF DEATH IS MADE, OR AS OF THE TIME PAYMENT THEREOF IS EFFECTED. CONSEQUENTLY, THE FACT THAT SERGEANT PRESCOTT'S WIFE REMARRIED IN 1969 PRIOR TO THE DATE THE SECRETARY OF THE NAVY OR HIS DESIGNEE RECEIVED EVIDENCE THAT SERGEANT PRESCOTT IN FACT DIED ON APRIL 30, 1967, DOES NOT AFFECT HER ELIGIBILITY TO RECEIVE THE ARREARS OF PAY OR THE 6 MONTHS' DEATH GRATUITY.

SERGEANT PRESCOTT'S WIDOW IS THE LIVING SURVIVOR HIGHEST ON THE LIST PROVIDED IN 10 U.S.C. 1477 ENTITLED TO BE PAID THE DEATH GRATUITY, AND THE DESIGNATED BENEFICIARY IS THE PERSON HIGHEST ON THE LIST CONTAINED IN 10 U.S.C. 2711 ENTITLED TO BE PAID THE ARREARS OF PAY. SINCE, ON APRIL 30, 1967, SANDRA J. PRESCOTT OLSON WAS THE WIFE AND DESIGNATED BENEFICIARY OF SERGEANT PRESCOTT, SHE IS ENTITLED TO RECEIVE THE ACCRUED PAY AND ALLOWANCES CREDITED TO HIS ACCOUNT AND DETERMINED TO BE DUE IN THE CASE, AND TO PAYMENT FOR THE 4 DAYS' UNUSED LEAVE AND THE 6 MONTHS' DEATH GRATUITY COMPUTED ON THE RATES EFFECTIVE ON SEPTEMBER 10, 1971, THE DATE OF DETERMINATION OF DEATH. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

WHILE WE HELD IN OUR DECISION OF JANUARY 5, 1972, 51 COMP. GEN. 391, THAT THE PAYMENT FOR ACCRUED LEAVE IN THE CASE OF A MEMBER WHO DIED WHILE IN A MISSING STATUS SHOULD BE COMPUTED AT THE RATE APPLICABLE ON THE DATE OF HIS DEATH RATHER THAN THE RATE OF PAY ON THE DATE OF RECEIPT OF EVIDENCE OF THE MEMBER'S DEATH, THAT DECISION DID NOT INVOLVE POSTHUMOUS PROMOTIONS, THE RULE SET FORTH ABOVE BEING FOR APPLICATION IN SUCH CASES.