B-53010, NOV 23, 1945

B-53010, NOV 23, 1945

PRECIS-UNAVAILABLE

THE PAYMASTER:

HEADQUARTERS, U.S. MARINE CORPS

WASHINGTON, D.C.

REFERENCE IS MADE TO A LETTER FROM YOUR OFFICE DATED AUGUST 17, 1945 (FILE 030853 BE-114-MEG), TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, RETURNING FOR FURTHER CONSIDERATION CERTIFICATE OF SETTLEMENT NO. 1101831, DATED AUGUST 2, 1945, IN FAVOR OF ETHEL J. GAY, 2123, DELLWOOD AVENUE, JACKSONVILLE, FLORIDA, AS MOTHER OF WILLIAM REGINALD GAY, DECEASED, FOR $419.27, REPRESENTING PAY AND ALLOWANCES DUE THE DECEDENT AT DATE OF DEATH, FEBRUARY 22, 1945, AS 2ND LIEUTENANT, SERIAL NO. 030853, U.S. MARINE CORPS RESERVE.

BY LETTER FROM YOUR OFFICE DATED MAY 12, 1945, THERE WAS TRANSMITTED TO THIS OFFICE A REPORT OF DEATH IN THE CASE OF THE DECEASED OFFICER TOGETHER WITH A DETAILED STATEMENT OF HIS ACCOUNT DATED MARCH 6, 1945, PREPARED BY THE OFFICE OF THE PAYMASTER'S DEPUTY, SAN FRANCISCO, CALIFORNIA, SHOWING ACCRUED PAY AND ALLOWANCES OF $1,146.20 AND DEBITS OF $666.10, LEAVING A BALANCE DUE OF $480.10. THE STATEMENT OF ACCOUNT INCLUDED A CHARGE OF $12.50 PER MONTH FOR NOVEMBER AND DECEMBER, 1944, AND JANUARY, 1945, FOR A CLASS B ALLOTMENT, BUT IN THE LETTER OF MAY 12, 1945, IT WAS STATED THAT THE ALLOTMENT WAS STOPPED AFTER DECEMBER, 1944, INDICATING AN OVER CHECK AGE OF $12.50 FOR JANUARY, 1945. ALSO, THE STATEMENT OF ACCOUNT INCLUDED A CHARGE FOR AN ALLOTMENT OF $100 PER MONTH FOR NOVEMBER AND DECEMBER, 1944, AND JANUARY, 1945. HOWEVER, IT IS STATED IN SAID LETTER OF MAY 12, 1945, THAT THE ALLOTMENT WAS PAID THROUGH MARCH, 1945, AND THAT NOTICE OF DEATH OF THE OFFICER WAS RECEIVED ON OR ABOUT FEBRUARY 28, 1945, BY THE MARINE CORPS ALLOTMENT OFFICER, INDICATING THAT PAYMENTS SUBSEQUENT TO THE DATE OF DEATH WERE NOT OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH BY THE MARINE CORPS ALLOTMENT OFFICER, IN VIEW OF WHICH THE BELIEF WAS EXPRESSED THAT UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 1, 1944, PUBLIC LAW 408, THE DECEDENT'S ACCOUNT SHOULD BE CHECKED FOR THE PAYMENTS THROUGH THE MONTH OF MARCH, 1945.

IT APPEARS FROM THE MARINE CORPS CASUALTY REPORT DATED FEBRUARY 28, 1945, THAT THE OFFICER DIED IN THE PHILIPPINE ISLANDS ON FEBRUARY 22, 1945, AS THE RESULT OF AN AIRPLANE CRASH FOLLOWING A MID-AIR COLLISION AND THAT THE BODY WAS RECOVERED. THE OFFICER WAS NOT CARRIED IN A MISSING OR MISSING- IN-ACTION STATUS AT THE TIME OF HIS DEATH AND THE STATEMENT OF ACCOUNT FORWARDED TO THIS OFFICE FOR SETTLEMENT DOES NOT APPEAR TO BE INTENDED AS A STATEMENT SUCH AS THE HEAD OF THE DEPARTMENT, OR HIS DESIGNEE, IS AUTHORIZED TO MADE AND WHICH, UNDER SECTION 9 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, AS AMENDED BY SECTION 5 OF THE ACT OF JULY 1, 1944, 58 STAT. 680, IS CONCLUSIVE. HENCE THE ACCOUNT WAS SETTLED AS A SO-CALLED "SPOT DEATH" UNDER THE APPLICABLE LAWS GOVERNING SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE MARINE CORPS, GENERALLY.

THE SETTLEMENT OF AUGUST 2, 1945, BY WHICH THERE WAS CERTIFIED AS DUE THE SUM OF $419.29, WAS COMPUTED ON THE BASIS STATED IN THE LETTER FROM YOUR OFFICE OF AUGUST 17, 1945, NAMELY, $480.10 DUE AS SHOWN IN THE DEPUTY PAYMASTER'S STATEMENT OF ACCOUNT OF MARCH 6, 1945, PLUS CREDIT OF $12.50 FOR THE OVER CHECK AGE OF CLASS B ALLOTMENT FOR JANUARY, 1945, LESS $73.33 REPRESENTING THE PRO RATA PORTION OF THE ALLOTMENT OF $100 FOR FEBRUARY, 1945, WHICH HAD ACCRUED AT THE DATE OF DEATH. IN REQUESTING FURTHER CONSIDERATION OF THE SETTLEMENT IT IS AGAIN STATED THAT IT IS THE OPINION OF YOUR OFFICE THAT SINCE THE PAYMENT OF THE ALLOTMENT OF $100 PER MONTH SUBSEQUENT TO THE DEATH OF THE ALLOTTER WAS NOT OCCASIONED BY DELAY IN RECEIPT OF NOTICE OF HIS DEATH, THE ACCOUNT OF THE OFFICER SHOULD BE CHARGED WITH THE ALLOTMENT PAYMENTS THROUGH MARCH, 1945, LEAVING A BALANCE DUE OF $292.60.

SECTION 5 OF PUBLIC LAW 408 APPROVED JULY 1, 1944, 58 STAT. 680, PROVIDES, IN PART, AS FOLLOWS:

"*** EXCEPTING ALLOTMENT FOR UNEARNED INSURANCE PREMIUMS, ANY ALLOTMENTS PAID FOR PAY AND ALLOWANCES OF ANY PERSON FOR THE PERIOD OF THE PERSON'S ENTITLEMENT UNDER THE PROVISIONS OF SECTION 2 OF THIS ACT TO RECEIVE OR HAVE CREDITED SUCH PAY AND ALLOWANCES SHALL NOT BE SUBJECT TO COLLECTION FROM THE ALLOTTEE AS OVERPAYMENTS WHEN PAYMENT THEREOF HAS BEEN OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH, AND ANY ALLOTMENT PAYMENTS FOR PERIODS SUBSEQUENT TO THE TERMINATION, UNDER THIS ACT OR OTHERWISE, OF ENTITLEMENT TO PAY AND ALLOWANCES, THE PAYMENT OF WHICH HAS BEEN OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH, SHALL NOT BE SUBJECT TO COLLECTION FROM THE ALLOTTEE OR CHARGED AGAINST THE PAY OF THE DECEASED PERSON. ***"

APPARENTLY YOU ARE OF THE OPINION THAT SINCE THE ABOVE-QUOTED PROVISION DOES NOT PRECLUDE CHARGING THE DECEDENT'S ACCOUNT FOR ALLOTMENT PAYMENTS MADE AFTER EVIDENCE OF DEATH WAS RECEIVED BY THE MARINE CORPS ALLOTMENT OFFICER, THE ACCOUNT SHOULD BE DEBITED WITH THE ALLOTMENT PAYMENTS FOR FEBRUARY AND MARCH, 1945. HOWEVER, IN CONNECTION WITH THE SETTLEMENT OF THE CLAIM THERE IS FOR CONSIDERATION, ALSO, THE PROVISION CONTAINED IN THE MILITARY APPROPRIATION ACT, 1945, PUBLIC LAW 374, APPROVED JUNE 28, 1944, 58 STAT. 573, 575, AS FOLLOWS:

"*** THAT NO COLLECTION OR RECLAMATION SHALL BE MADE BY THE UNITED STATES ON ACCOUNT OF ANY MONEY PAID TO ASSIGNEES, TRANSFEREES, OR ALLOTTEES, OR TO OTHERS FOR THEM, UNDER ASSIGNMENTS, TRANSFERS, OR ALLOTMENTS OF PAY AND ALLOWANCES MADE UNDER AUTHORITY OF LAW WHERE LIABILITY MIGHT EXIST WITH RESPECT TO SUCH ASSIGNMENTS, TRANSFERS, OR ALLOTMENTS, OR THE USE OF SUCH MONEYS, BECAUSE OF THE DEATH OF THE ASSIGNOR, TRANSFEROR, OR ALLOTTER

THE STATUTE PROVIDES UNEQUIVOCALLY THAT "NO COLLECTION OR RECLAMATION SHALL BE MADE BY THE UNITED STATES ON ACCOUNT OF ANY MONEY PAID," INTER ALIA, TO ALLOTTEES UNDER ALLOTMENTS OF PAY AND ALLOWANCES MADE UNDER AUTHORITY OF LAW WHERE LIABILITY MIGHT EXIST WITH RESPECT TO SUCH ALLOTMENTS "BECAUSE OF THE DEATH OF THE *** ALLOTTER." THE EFFECT IS TO PROTECT ALLOTTEES FROM COLLECTION WHERE LIABILITY MIGHT EXIST BECAUSE OF THE DEATH OF THE ALLOTTER AND THE PROTECTION IS NOT LIMITED TO SITUATIONS WHERE THE OVERPAYMENT WAS "OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH." ALTHOUGH THE PROVISION WAS ENACTED AS A PART OF THE MILITARY APPROPRIATION ACT, 1945, IT IS LEGISLATION OF A GENERAL CHARACTER; AND AS IT APPLIED TO ANY MONEY PAID TO ALLOTTEES UNDER "ALLOTMENTS OF PAY AND ALLOWANCES MADE UNDER AUTHORITY OF LAW," IT IS VIEWED AS EXTENDING TO ALLOTMENTS MADE BY PERSONS IN THE NAVY AND MARINE CORPS AS WELL AS THOSE IN THE ARMY. THEREFORE, IN VIEW OF THE ABOVE-QUOTED STATUTORY PROVISION, COLLECTION BY SET-OFF OR CHECK AGE OF THE ALLOTTER'S ACCOUNT OF THE OVERPAYMENT IS NOT AUTHORIZED. HOWEVER, THERE IS NOTHING IN THE SAID PROVISION OF THE MILITARY APPROPRIATION ACT, 1945, OR IN THE PROVISION IN SECTION 5 OF PUBLIC LAW 408, 58 STAT. 680, WHICH PRECLUDES PRORATING AN ALLOTMENT PAYMENT MADE FOR THE MONTH IN WHICH THE ALLOTTER DIES AND CHARGING HIS ACCOUNT WITH THE ALLOTMENT FOR THAT PART OF THE MONTH FOR WHICH PAY ACCRUED. SINCE THE AMOUNT CERTIFIED DUE IN CERTIFICATE OF SETTLEMENT NO. 1101831, DATED AUGUST 2, 1945, WAS DETERMINED IN ACCORDANCE WITH THE PRINCIPLES SET FORTH ABOVE, THE CERTIFICATE IS RETURNED HEREWITH FOR PAYMENT.