B-37969, NOV 30, 1943

B-37969, NOV 30, 1943

PRECIS-UNAVAILABLE

HONORABLE LOUIS LUDLOW, HOUSE OF REPRESENTATIVES:

I HAVE YOUR LETTER OF NOVEMBER 11, 1943, IN FURTHER REFERENCE TO YOUR LETTER OF OCTOBER 11, ACKNOWLEDGED OCTOBER 15, RELATIVE TO THE SETTLEMENT ISSUED SEPTEMBER 20, 1943, IN CONNECTION WITH THE CLAIM OF ANN A. MESSICK, 701 SOUTH COLUMBIA, FRANKFORT, INDIANA, FOR AMOUNTS DUE FROM THE GOVERNMENT ON ACCOUNT OF THE SERVICE OF HARRY B. MESSICK, JR., FORMERLY A FIRST LIEUTENANT, AIR CORPS, AUS, WHO DIED IN AN AVIATION ACCIDENT ON MAY 20, 1943.

WITH YOUR LETTER OF OCTOBER 11, YOU ENCLOSES A COPY OF A LETTER FROM H.B. MESSICK, FATHER OF THE DECEDENT, DATED OCTOBER 6, 1943, ADDRESSED TO THIS OFFICE, REQUESTING REVIEW OF THE SETTLEMENT INSOFAR AS THERE WERE DISALLOWED AMOUNTS REPRESENTING (1) THE LUMP SUM PAYMENTS PROVIDED BY SECTION 2 OF THE ACT OF JUNE 16, 1943, 49 STAT. 1524, AS AMENDED, 10 U.S.C. 300A; (2) AN AMOUNT OF $12.40 DEDUCTED ON ACCOUNT OF INDEBTEDNESS TO THE OFFICERS' MESS, FORT WORTH, TEXAS; AND (3) THE DIFFERENCE OF $2.08 BETWEEN THE AMOUNT OF PAY CLAIMED AND THE AMOUNT ALLOWED IS DUE TO THE FACT THAT THE AMOUNT CLAIMED WAS BASED ON AN INCREASE OF 5 PERCENT FOR 3 YEARS' SERVICE BEGINNING MAY 1, 1943, WHEREAS THE OFFICER DID NOT COMPLETE 3 YEARS' SERVICE UNTIL MAY 6, 1943. ACCORDINGLY, NOTHING FURTHER IS DUE IN THAT RESPECT. AS TO THE ITEM OF $12.40 FOR INDEBTEDNESS TO THE OFFICERS' MESS AT FORT WORTH, IN VIEW OF THE STATEMENT TO THE EFFECT THAT THIS DEBT WAS PAID AND THAT RECEIPT IS HELD THEREFOR, FURTHER CONSIDERATION WILL BE GIVEN THERETO.

THE CLAIM FOR THE LUMP-SUM PAYMENTS PROVIDED BY SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, SUPRA, WAS DISALLOWED ON THE GROUND THAT THE RIGHT TO SUCH PAYMENTS DID NOT ACCRUE EXCEPT UPON RELEASE OF THE OFFICER FROM ACTIVE DUTY, AND WAS PREDICATED UPON THE VIEW THAT DEATH WAS NOT A "RELEASE FROM ACTIVE DUTY" WITHIN THE CONTEMPLATION OF THE STATUTE.

THAT CONCLUSION WAS BASED, TO SOME EXTENT, ON THE FACT THAT THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 16, 1936, TENDED TO SHOW THAT THE PAYMENTS WERE IN THE NATURE OF GRATUITIES INTENDED MAINLY FOR THE PURPOSE OF EASING THE TRANSITION TO CIVIL LIFE FOR THE AVIATION OFFICERS CONCERNED. HOWEVER, THE MORE RECENT AMENDATORY ACT (SECTION 6 OF THE ACT OF JUNE 3, 1941, 55 STAT. 240), INDICATES THAT, TO THE CONTRARY, THE PAYMENTS ACTUALLY ARE INTENDED AS ADDITIONAL COMPENSATION FOR SERVICES RENDERED UNDER STIPULATED CONDITIONS AND NOT AS PURE GRATUITIES. UNDER SUCH CIRCUMSTANCES, IT WOULD SEEM REASONABLE TO CONCLUDE THAT THE DEATH OF AN OFFICER WHILE ON ACTIVE DUTY, AT LEAST WHERE NOT DUE TO THE OFFICER'S MISCONDUCT, IS A RELEASE FROM ACTIVE DUTY WITHIN THE MEANING OF THAT TERM AS USED IN THE STATUTE.

ACCORDINGLY, IT WOULD APPEAR THAT THERE IS DUE THE ESTATE OF THE FORMER OFFICER AN AMOUNT IN EXCESS OF $500 ON ACCOUNT OF SUCH LUMP-SUM PAYMENTS. IN THAT CONNECTION, ATTENTION IS INVITED TO THE ACT OF JUNE 30, 1906, 34 STAT. 750 WHICH PROVIDES:

"HEREAFTER, IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED MEN OF THE ARMY, WHERE THE AMOUNT DUE THE DECEDENT'S ESTATE IS LESS THAN FIVE HUNDRED DOLLARS AND NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW; SECOND, IF DECEDENT LEFT NO WIDOW, OR THE WIDOW BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; THIRD, IF NO WIDOW OR DESCENDENTS, THEN TO THE FATHER AND MOTHER IN EQUAL PARTS, PROVIDED THE FATHER HAS NOT ABANDONED THE SUPPORT OF HIS FAMILY, IN WHICH CASE TO THE MOTHER ALONE; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NO WIDOW, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES ***."

SINCE, AS STATED ABOVE, THE AMOUNT NOW FOUND TO BE DUE EXCEEDS $500, PAYMENT THEREOF MAY NOT BE MADE EXCEPT TO A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. THEREFORE, THE PROPER PROCEDURE NOW WOULD BE FOR THE INTERESTED PARTIES TO APPLY FOR LETTERS OF ADMINISTRATION OR LETTERS TESTAMENTARY, AS THE CASE MAY BE, AT THE PLACE OF THE OFFICER'S LEGAL DOMICILE AT THE TIME OF HIS DEATH. UPON PRESENTATION OF A PROPERLY AUTHENTICATED COPY OF SUCH LETTERS, OR A SHORT FORM CERTIFICATE, THE CLAIM OF SUCH LEGAL REPRESENTATIVE WILL BE GIVEN CONSIDERATION.

WITH RESPECT TO MR. MESSICK'S INQUIRY RELATIVE TO THE TRANSPORTATION OF THE DECEASED OFFICER'S WIDOW FROM FORT WORTH, TEXAS, TO FRANKFORT, INDIANA, YOU ARE ADVISED THAT SHE SHOULD FILE CLAIM THEREFOR WITH THE WAR DEPARTMENT.

THE COPY OF MR. MESSICK'S LETTER, ENCLOSED WITH YOUR LETTER OF OCTOBER 11 IS RETURNED HEREWITH AS REQUESTED.