B-33661, MAY 29, 1943, 22 COMP. GEN. 1053

B-33661, MAY 29, 1943, 22 COMP. GEN. 1053

SIX MONTHS' DEATH GRATUITY - PERSONS DECLARED DEAD AFTER MISSING STATUS PAY RATE APPLICABLE IN THE CASE OF A MARINE CORPS ENLISTED MAN WHO WAS OFFICIALLY CARRIED IN A MISSING STATUS AND SUBSEQUENTLY DECLARED DEAD AS OF A CERTAIN DATE, THE DEATH GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920, AS AMENDED, IN AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE "RATE RECEIVED * * * AT THE DATE OF * * * DEATH" SHOULD BE COMPUTED ON THE PAY RATE TO WHICH THE MAN WAS ENTITLED (BY REASON OF THE PROVISIONS OF SECTION 2 OF THE ACT OF MARCH 7, 1942, WITH RESPECT TO THE CONTINUANCE OF THE PAY OF MISSING PERSONS) ON THE DATE AS OF WHICH HE WAS DECLARED DEAD, RATHER THAN ON THE RATE HE WAS RECEIVING AT THE BEGINNING OF THE MISSING STATUS.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. TOM E. THRASHER, JR., U.S. MARINE CORPS, MAY 29, 1943:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 22, 1943, SUBMITTING A VOUCHER IN FAVOR OF FLORENCE YENTOCH, MOTHER AND DESIGNATED BENEFICIARY OF LOREN WILLIAM YENTOCH, NO. 244204, DECEASED, LATE PLATOON SERGEANT, U.S. MARINE CORPS, FOR $1,333.80, REPRESENTED AS EQUAL TO THE PAY OF THE DECEASED FOR SIX MONTHS, THE CLAIM ARISING UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED BY THE ACT OF MAY 22, 1928, 45 STAT. 710.

THE RECORDS IN THIS OFFICE SHOW THAT SERGEANT YENTOCH WAS OFFICIALLY CARRIED AS MISSING SINCE SEPTEMBER 3, 1941, AND WAS, BY THE SECRETARY OF THE NAVY, OFFICIALLY DECLARED DECEASED AS OF SEPTEMBER 3, 1942. YOU REQUEST DECISION AS TO WHETHER THE MAN'S RATE OF PAY ON SEPTEMBER 3, 1941, $148.60 PER MONTH, OR THAT ON SEPTEMBER 3, 1942, $222.30 PER MONTH, SHOULD BE USED IN PAYING THE SIX MONTHS' DEATH GRATUITY PAY.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, PROVIDES IN PERTINENT PART, AS FOLLOWS:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * *

THE ACT OF MARCH 7, 1942, 56 STAT. 144-147, PROVIDES:

SEC. 2. ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER: PROVIDED, THAT SUCH PERSON SHALL NOT HAVE BEEN OFFICIALLY REPORTED AS HAVING BEEN ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY: PROVIDED FURTHER, THAT EXPIRATION OF THE AGREED TERM OF SERVICE DURING THE PERIOD OF SUCH ABSENCE SHALL NOT OPERATE TO TERMINATE THE RIGHT TO RECEIVE SUCH PAY AND ALLOWANCES.

SEC. 5. UPON THE EXPIRATION OF TWELVE MONTHS FROM THE DATE THE PERSON IS REPORTED AS MISSING, OR MISSING IN ACTION, IN THE ABSENCE OF AN OFFICIAL REPORT OF DEATH OF THE MISSING PERSON, THE HEAD OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO MAKE A FINDING OF DEATH OF SUCH PERSON. FOLLOWING A FINDING OF DEATH, THE SIX MONTHS' DEATH GRATUITY PROVIDED BY LAW IS AUTHORIZED TO BE PAID. * * *

SEC. 15. THIS ACT, EXCEPT SECTIONS 13, 16, 17, AND 18, SHALL BE EFFECTIVE FROM SEPTEMBER 8, 1939, AND SHALL REMAIN IN EFFECT UNTIL THE TERMINATION OF THE PRESENT WAR WITH GERMANY, ITALY, AND JAPAN, AS PROCLAIMED BY THE PRESIDENT, AND FOR TWELVE MONTHS THEREAFTER.

THE ACT OF JUNE 4, 1920, AS AMENDED, PROVIDES FOR PAYMENT OF AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY THE ENLISTED MAN AT THE DATE OF HIS DEATH. SECTION 2 OF THE ACT OF MARCH 7, 1942, PROVIDES THAT A PERSON OFFICIALLY REPORTED AS MISSING SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER. ACCORDINGLY, YOU ARE ADVISED THAT, ON THE FACTS PRESENTED, THE RATE OF PAY TO WHICH THE ENLISTED MAN WAS LAWFULLY ENTITLED ON SEPTEMBER 3, 1942, DATE HE WAS OFFICIALLY DECLARED DEAD, SHOULD BE USED IN COMPUTING THE SIX MONTHS' DEATH GRATUITY PAY.