B-51701, OCTOBER 28, 1948, 28 COMP. GEN. 270

B-51701, OCTOBER 28, 1948, 28 COMP. GEN. 270

TRANSPORTATION - DEPENDENTS OF PERSONS REPORTED AS INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS THE PROVISIONS OF SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, THAT ADMINISTRATIVE DETERMINATIONS AS TO DEATH OR FINDING OF DEATH, ETC., SHALL BE CONCLUSIVE, DO NOT INCLUDE THE POWER FINALLY TO DETERMINE DISPUTED QUESTIONS OF LAW AS TO THE CONSTRUCTION TO BE PLACED UPON THE PROVISION IN SECTION 12 OF SAID ACT AUTHORIZING THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF PERSONS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS. AN ADMINISTRATIVE DETERMINATION THAT THE CIRCUMSTANCES SURROUNDING THE DEATH OF A PERSON WHILE ON ACTIVE DUTY ARE SUCH AS TO BRING IT WITHIN THE PURVIEW OF SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, AUTHORIZING THE TRANSPORTATION OF DEPENDENTS OF PERSONS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, MAY NOT BE REGARDED AS CONCLUSIVE WITHIN THE MEANING OF SECTION 9 OF SAID ACT SO AS TO ENTITLE THE DEPENDENT OF SUCH A PERSON TO PAYMENT OF TRANSPORTATION EXPENSES WHERE THE RECORD FAILS TO DISCLOSE THAT THE PERSON WAS KILLED ,AS THE RESULT OF MILITARY OR NAVAL OPERATIONS.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 28, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 13, 1947, REQUESTING RECONSIDERATION OF DECISIONS OF JANUARY 10, 1946, AND MAY 14, 1947 (B- 510701), INVOLVING THE RIGHT OF THE WIDOW OF LIEUTENANT RUSSEL P. CUNNINGHAM, U.S. NAVY, TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM CORONA, CALIFORNIA, TO HER HOME, UNDER THAT PART OF SECTION 12 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 146, AS AMENDED, WHICH PROVIDES FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF ANY PERSON ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS "INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY.'

IN THE DECISION OF JANUARY 10, 1946, IT WAS CONCLUDED THAT, ON THE BASIS OF THE EXISTING RECORD, IT WAS NOT ESTABLISHED THAT LIEUTENANT CUNNINGHAM DIED "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS" SO AS TO ENTITLE HIS DEPENDENT WIFE TO TRANSPORTATION AT GOVERNMENT EXPENSE. THEREAFTER, ON MAY 10, 1946, THE SECRETARY OF THE NAVY REQUESTED RECONSIDERATION OF THAT DECISION ON THE BASIS OF A REPORT DATED JUNE 17, 1944, OF THE HOUSE NAVAL AFFAIRS COMMITTEE, WHICH STATED THAT THE PHRASE "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS" WAS INTENDED TO APPLY TO PERSONNEL OFFICIALLY REPORTED AS "MISSING" AND NOT TO PERSONNEL REPORTED AS "INJURED" OR "DEAD.' IN REPLY TO SUCH REQUEST IT WAS CONCEDED, IN DECISION OF MAY 14, 1947 (B-51701), THAT A LITERAL READING OF THE PROVISION IN QUESTION IN SECTION 12 OF THE MISSING PERSONS ACT STRONGLY SUPPORTS THE VIEW THAT THE WORDS "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS" WERE INTENDED TO MODIFY ONLY THE WORD ,MISSING" AND NOT THE PRECEDING WORDS "INJURED" OR "DEAD," BUT IT WAS POINTED OUT IN THAT DECISION THAT THE LEGISLATIVE HISTORY OF THE PROVISION IS HIGHLY PERSUASIVE THAT SUCH WAS NOT THE INTENT AND THAT "IT IS SIGNIFICANT THAT FROM THE BEGINNING THE NAVY DEPARTMENT," AS WELL AS THIS OFFICE, VIEWED THE LIMITATION AS LEGISLATIVELY INTENDED TO APPLY TO PERSONS OFFICIALLY REPORTED AS "DEAD" THE SAME AS TO THOSE OFFICIALLY REPORTED AS "MISSING.' AND, AFTER DISCUSSING THE LEGISLATIVE HISTORY OF THAT PROVISION, IT WAS CONCLUDED THAT "THERE DOES NOT APPEAR TO BE A SUFFICIENT BASIS NOW TO REVERSE THE PRIOR DECISIONS BASED ON SUCH LEGISLATIVE HISTORY AND APPLIED AND FOLLOWED THROUGHOUT THE PERIOD OF HOSTILITIES AND TO SUBSTITUTE A LITERAL INTERPRETATION OF THE PROVISION, IN DISREGARD OF SUCH LEGISLATIVE HISTORY.'

IT NOW IS SUGGESTED THAT UNDER THE "SWEEPING POWERS" CONFERRED UPON THE HEADS OF DEPARTMENTS BY SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, ADMINISTRATIVE DETERMINATIONS OF QUESTIONS OF LAW SHOULD BE ACCEPTED BY THIS OFFICE AS FINAL AND CONCLUSIVE; AND IT IS URGED THAT PRIOR TO EITHER THE DECISION OF JANUARY 10, 1946 OR THE DECISION OF MAY 14, 1947, THE NAVY DEPARTMENT HAS ISSUED INSTRUCTIONS REGARDING THE ADMINISTRATION OF THE MISSING PERSONS ACT, WHICH WERE NOT MENTIONED IN ITS PRIOR SUBMISSIONS OF AUGUST 9, 1945, AND MAY 10, 1946, AND THAT "THE ASSISTANT COMPTROLLER GENERAL HAD NOT BEEN MADE AWARE OF THE NAVY DEPARTMENT'S ADMINISTRATIVE INTERPRETATION OF SECTION 12 OF THE ACT WHEN HIS DECISIONS OF JANUARY 10, 1946, AND MAY 14, 1947, WERE RENDERED.' IN VIEW THEREOF, DECISION IS REQUESTED ON TWO QUESTIONS, AS FOLLOWS:

(1) WILL YOUR OFFICE BE REQUIRED TO OBJECT TO PAYMENT OF TRANSPORTATION ALLOWANCES TO THE DEPENDENT OF THE LATE LIEUTENANT CUNNINGHAM, OR TO OTHER PERSONS SIMILARLY SITUATED?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, AND YOUR OFFICE WILL OBJECT TO SUCH PAYMENT IN AN INDIVIDUAL CASE, WOULD THE OBJECTION BE REMOVED UPON A SPECIFIC DETERMINATION BY THE SECRETARY OF THE NAVY OR HIS DESIGNEE THAT THE PAYEE WAS ENTITLED TO SUCH PAYMENT?

SECTION 9 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 145, AS AMENDED BY SECTION 5 OF THE ACT OF JULY 1, 1944, 58 STAT. 680, 50 U.S.C., WAR, APP., 1009, PROVIDES IN PERTINENT PART AS FOLLOWS:

THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THIS ACT, AND FOR THE PURPOSES OF THIS ACT DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. THE DETERMINATION OF THE HEAD OF THE DEPARTMENT CONCERNED, OR OF SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL BE CONCLUSIVE AS TO WHETHER INFORMATION RECEIVED CONCERNING ANY PERSON IS TO BE CONSTRUED AND ACTED UPON AS AN OFFICIAL REPORT OF DEATH. WHEN ANY INFORMATION DEEMED TO ESTABLISH CONCLUSIVELY THE DEATH OF ANY PERSON IS RECEIVED IN THE DEPARTMENT CONCERNED, ACTION SHALL BE TAKEN THEREON AS AN OFFICIAL REPORT OF DEATH, NOTWITHSTANDING ANY PRIOR ACTION RELATING TO DEATH OR OTHER STATUS OF SUCH PERSON. IF THE TWELVE MONTHS' ABSENCE PRESCRIBED IN SECTION 5 OF THIS ACT HAS EXPIRED, A FINDING OF DEATH SHALL BE MADE WHENEVER INFORMATION RECEIVED, OR A LAPSE OF TIME WITHOUT INFORMATION, SHALL BE DEEMED TO ESTABLISH A REASONABLE PRESUMPTION THAT ANY PERSON IN A MISSING OR OTHER STATUS IS NO LONGER ALIVE. PAYMENT OR SETTLEMENT OF AN ACCOUNT MADE PURSUANT TO A REPORT, DETERMINATION, OR FINDING OR DEATH SHALL NOT BE RECOVERED OR REOPENED BY REASON OF A SUBSEQUENT REPORT OR DETERMINATION WHICH FIXES A DATE OF DEATH EXCEPT THAT AN ACCOUNT SHALL BE REOPENED AND SETTLED UPON THE BASIS OF ANY DATE OF DEATH SO FIXED WHICH IS LATER THAN THAT USED AS A BASIS FOR PRIOR SETTLEMENT. DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE * * *.

SECTION 12 OF THE SAID ACT, AS AMENDED BY SECTION 1 (A) OF THE ACT OF FEBRUARY 12, 1946, 60 STAT. 5, 50 U.S.C., WAR, APP., 1012, PROVIDES AS FOLLOWS:

THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY, MAY BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS) TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON, OR, UPON APPLICATION BY SUCH DEPENDENTS, TO SUCH OTHER LOCATIONS AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE, BY THE USE OF EITHER COMMERCIAL OR GOVERNMENT TRANSPORTATION: PROVIDED, THAT THE COST OF SUCH TRANSPORTATION, INCLUDING PACKING AND UNPACKING, SHALL BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE. PROVIDED FURTHER, THAT IN LIEU OF TRANSPORTATION AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE HEAD OF THE DEPARTMENT CONCERNED MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED, WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

THE INTERPRETATION PLACED UPON THE SAID SECTION 12 BY THE NAVY DEPARTMENT IN NOVEMBER 1945 IS SET FORTH IN NAVAL PERSONNEL CIRCULAR LETTER NO. 328- 45, DATED NOVEMBER 2, 1945, AS FOLLOWS:

THE TERM "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS" AS USED HEREIN IS NOT LIMITED TO OPERATIONS INCIDENT TO ACTUAL WARFARE, BUT INCLUDES DUTIES DIRECTLY CONNECTED WITH MILITARY OR WARLIKE FUNCTIONS AS DISTINGUISHED FROM ADMINISTRATIVE FUNCTIONS, AND IS APPLICABLE TO PERSONS IN A "MISSING" STATUS ONLY. THEREFORE, TRANSPORTATION FOR DEPENDENTS AS PROVIDED HEREIN IS AUTHORIZED WHEN PERSONS CONCERNED ARE REPORTED AS "INJURED" OR "DEAD" WITHOUT REGARD TO THE CAUSE OR PLACE OF THE INJURY OR DEATH.

AT THE OUTSET, IT MAY BE SAID THAT THIS OFFICE WAS FULLY AWARE OF THE FACT THAT THE NAVY DEPARTMENT HAD ISSUED INSTRUCTIONS ON NOVEMBER 2, 1945- -- WHILE THE SUBMISSION OF AUGUST 9, 1945, WAS PENDING HERE--- AND THAT SUCH INSTRUCTIONS WERE CONTRARY TO THE PRIOR DECISION OF JUNE 4, 1942 (21 COMP. GEN. 1090), TO THE SECRETARY OF THE NAVY, AND TO DECISION OF NOVEMBER 9, 1943 (23 COMP. GEN. 349), TO COLONEL CARL WITCHER, U.S. ARMY. FURTHERMORE, THE DECISION OF MAY 14, 1947, DID NOT STATE THAT THE NAVY DEPARTMENT'S INSTRUCTIONS THEN IN EFFECT WERE CONSISTENT WITH THE INTERPRETATION SET FORTH IN THOSE DECISIONS; BUT ONLY POINTED OUT THAT SUCH DECISIONS HAD BEEN APPLIED AND FOLLOWED BY THE NAVY DEPARTMENT "THROUGHOUT THE PERIOD OF HOSTILITIES.' AND, SINCE THE NAVY DEPARTMENT DID NOT SEE FIT IN ITS SUBMISSION OF MAY 10, 1946; TO MENTION THE FACT THAT IT HAD ISSUED INSTRUCTIONS CONTRARY TO THE DECISIONS OF THIS OFFICE, OR TO DISCUSS THE LEGAL BASIS UPON WHICH IT HAD REACHED THE CONTRARY VIEW SET FORTH IN SUCH INSTRUCTIONS, IT WAS ASSUMED THAT CLAIMS FOR TRANSPORTATION UNDER SIMILAR CIRCUMSTANCES WERE BEING HELD IN ABEYANCE PENDING A REPLY TO YOUR SUBMISSION AND THAT NO NAVY DISBURSING OFFICER WOULD ASSUME THE RESPONSIBILITY FOR MAKING SUCH PAYMENTS SOLELY UPON THE BASIS OF SUCH ADMINISTRATIVE INSTRUCTIONS SO LONG AS THE PRIOR DECISIONS OF THIS OFFICE IN THE MATTER WERE IN EFFECT, OR UNTIL THE CONGRESS SPECIFICALLY AMENDED THE LAW IN THAT RESPECT. HOWEVER THAT MAY BE, IT NOW APPEARS THAT SUCH ADMINISTRATIVE INSTRUCTIONS MAY HAVE BEEN BASED TO SOME EXTENT UPON THE PROPOSITION THAT, UNDER SECTION 9 OF THE SAID ACT, ADMINISTRATIVE DETERMINATIONS BY THE HEAD OF THE DEPARTMENT ARE FINAL AND CONCLUSIVE. THE QUESTION OF THE CONCLUSIVENESS OF ADMINISTRATIVE DETERMINATIONS UNDER SECTION 9 OF THE ACT WAS CONSIDERED IN DECISION OF OCTOBER 14, 1947, B-68774, 27 COMP. GEN. 205, WHEREIN IT WAS STATED THAT:

* * * IT IS RECOGNIZED THAT UNDER THE PROVISIONS OF THAT PORTION OF SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, WHICH IS QUOTED ABOVE, THE ADMINISTRATIVE DETERMINATIONS OF THE ENTITLEMENT OF ANY PERSON WITHIN THE PURVIEW OF THAT ACT "TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT ARE TO BE CONCLUSIVE. IT IS FUNDAMENTAL, HOWEVER, THAT AUTHORITY TO ADMINISTER THE PROVISIONS OF A STATUTE DOES NOT CARRY WITH IT THE POWER FINALLY TO DETERMINE DISPUTED QUESTIONS OF LAW AS TO THE CONSTRUCTION OF THE STATUTE BEING ADMINISTERED. SEE 21 COMP. GEN. 226, 229, AND CASES THERE CITED, VIZ: IN RE FASSETT, 142 U.S. 479; MEDBURY V. UNITED STATES, 173 U.S. 492, 497; AND DUGAN V. UNITED STATES, 34 C.1CLS. 458. THAT SUCH PRINCIPLE WAS CLEARLY INTENDED TO APPLY TO THE PRESENT STATUTE IS SHOWN BY A REFERENCE TO THE REPORT OF THE HEARING OF JUNE 14, 1944, ON H.R. 4405, RESPECTING THE PROPOSED AMENDMENT TO SECTION 9 OF THE SAID ACT OF MARCH 7, 1942. THE LANGUAGE OF THE AMENDMENT, AS ORIGINALLY PROPOSED, PROVIDED THAT THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE SHOULD HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THE ACT, AND "DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT.' OVERCOME THE OBJECTIONS OF CERTAIN MEMBERS OF THE COMMITTEE THAT SUCH LANGUAGE, STANDING ALONE, MIGHT BE VIEWED AS PRECLUDING THE GENERAL ACCOUNTING OFFICE FROM QUESTIONING ANY DETERMINATION MADE UNDER SUCH BROAD AUTHORITY, WHETHER OR NOT AUTHORIZED BY THAT ACT, AN AMENDMENT--- WHICH LATER WAS INCORPORATED INTO SECTION 9 AS AMENDED--- WAS OFFERED WHEREBY IT WAS PROPOSED TO INSERT IMMEDIATELY BEFORE THE LANGUAGE QUOTED ABOVE, THE PHRASE "FOR THE PURPOSES OF THIS ACT.' SEE, PARTICULARLY, PAGE 2324, ET SEQ., OF SUCH REPORT.

IN THE LIGHT OF THE DISCUSSION AT SUCH HEARINGS THE CONCLUSION IS INESCAPABLE THAT THE SUBSTANTIALLY SIMILAR PROVISION IN THE UNDERSCORED ( ITALICIZED) PORTION OF SECTION 9 OF THE ACT, AS AMENDED, WHICH PROVIDES THAT ADMINISTRATIVE DETERMINATIONS OF ENTITLEMENT TO PAY AND ALLOWANCES "UNDER THE PROVISIONS OF THIS ACT" SHALL BE CONCLUSIVE, LIMITS THE CONCLUSIVENESS OF SUCH DETERMINATIONS TO MATTERS WITHIN THE SCOPE OF THAT ACT. IN OTHER WORDS, THE CONCLUSIVE EFFECT WHICH THE STATUTE ACCORDS TO ADMINISTRATIVE DETERMINATIONS RESPECTING THE RIGHT OF A PERSON TO "PAY AND ALLOWANCES" IS NOT CONSTRUED AS AUTHORIZING AN ADMINISTRATIVE OFFICE TO INCLUDE IN THE SETTLEMENT OF AN ACCOUNT AN ITEM WHICH THE STATUTE HAS NOT AUTHORIZED TO BE PAID. * * *

THUS, IT SEEMS APPARENT THAT THE "SWEEPING POWERS" CONFERRED UPON THE HEADS OF DEPARTMENTS BY SECTION 9 OF THE ACT DO NOT INCLUDE THE POWER TO FINALLY DETERMINE DISPUTED QUESTIONS OF LAW AS TO THE CONSTRUCTION TO BE PLACED UPON THE PROVISION IN SECTION 12 FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF PERSONS OFFICIALLY REPORTED AS "INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS.' IT FOLLOWS, THEREFORE, THAT A DETERMINATION BY THE SECRETARY OF THE NAVY OR HIS DESIGNEE, IN AN INDIVIDUAL CASE, THAT THE CIRCUMSTANCES SURROUNDING THE DEATH OF A PERSON WHILE ON ACTIVE DUTY ARE SUCH AS TO BRING IT WITHIN SECTION 12 OF THE ACT SO AS TO ENTITLE HIS DEPENDENT TO PAYMENT OF TRANSPORTATION EXPENSES, MAY NOT BE ACCEPTED AS ENTITLING THE DEPENDENT TO PAYMENT OF TRANSPORTATION EXPENSES WHERE THE RECORD FAILS TO DISCLOSE THAT THE PERSON WAS KILLED "AS THE RESULT OF MILITARY OR NAVAL OPERATIONS.'