B-113207, FEB 25, 1953

B-113207, FEB 25, 1953

PRECIS-UNAVAILABLE

COMMANDER N. GRAUEL, USN:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1952, FORWARDED TO THIS OFFICE BY LETTER OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, DATED DECEMBER 17, 1952, REQUESTING A DECISION WHETHER, UNDER THE CIRCUMSTANCES DISCLOSED IN YOUR LETTER, THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS AUTHORIZED IN THE CASE OF MELVIN EDWARD WILLIAMS, GUNNER'S MATE, THIRD CLASS, USN, DECEASED.

IT APPEARS FROM YOUR LETTER THAT ON SEPTEMBER 21, 1948, WILLIAMS ENLISTED IN THE REGULAR NAVY FOR THREE YEARS; THAT UPON THE EXPIRATION OF SUCH TERM OF SERVICE HIS ENLISTMENT WAS INVOLUNTARILY EXTENDED FOR ONE YEAR, THAT IS, UNTIL SEPTEMBER 20, 1952; THAT ON JULY 28, 1952, HE WAS TRANSFERRED TO THE U.S. NAVAL RECEIVING STATION, NORFOLK, VIRGINIA, FOR DISCHARGE DUE TO EXPIRATION OF ENLISTMENT, AT WHICH TIME HE WAS RECOMMENDED FOR REENLISTMENT BUT STATED THAT HE DID NOT DESIRE TO DO SO, AND THAT ON AUGUST 5, 1952, HE WAS HONORABLY DISCHARGED PURSUANT TO ARTICLE C-10306, BUREAU OF NAVAL PERSONNEL MANUAL. IT IS FURTHER REPORTED THAT ON THE DAY OF HIS DISCHARGE WILLIAMS WAS KILLED IN AN AUTOMOBILE ACCIDENT WHILE ENROUTE TO HIS HOME.

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

"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 **** THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW **** 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. ***"

IN A LETTER DATED OCTOBER 24, 1952, TO THE CHIEF OF NAVAL PERSONNEL FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY IT IS POINTED OUT THAT THE DECEDENT'S WIDOW WILL NOT BE PRECLUDED FROM RECEIVING THE GRATUITY AUTHORIZED BY THE FOREGOING PROVISIONS IF THE DECEDENT MAY BE DEEMED TO HAVE BEEN ON ACTIVE DUTY AT THE TIME OF HIS DEATH, BUT THAT HE CANNOT BE REGARDED AS HAVING BEEN ON ACTIVE DUTY AT THAT TIME IF THE DISCHARGE ISSUED TO HIM EARLIER IN THE DAY HAD BECOME EFFECTIVE PRIOR TO HIS DEATH. IT IS FURTHER STATED THAT DISCHARGES ISSUED UPON EXPIRATION OF ENLISTMENT LONG HAVE BEEN REGARDED BY THE DEPARTMENT OF THE NAVY AS BECOMING EFFECTIVE AT MIDNIGHT ON THE DATE ISSUED WHEREAS OTHER DISCHARGES ARE REGARDED AS EFFECTIVE AT THE MOMENT OF DELIVERY OF THE DISCHARGE CERTIFICATE, AND THE CONCLUSION WAS REACHED, IN VIEW OF THE ACT OF AUGUST 22, 1912, 37 STAT. 331, 34 U.S.C. 195, AUTHORIZING THE DISCHARGE OF ENLISTED MEN OF THE NAVY WITHIN THREE MONTHS BEFORE EXPIRATION OF ENLISTMENT, THAT SINCE WILLIAMS WAS DISCHARGED WITHIN THREE MONTHS OF THE TIME WHEN HIS ENLISTMENT, AS EXTENDED, WOULD HAVE EXPIRED, SUCH DISCHARGE WAS IN REALITY ISSUED BY REASON OF EXPIRATION OF HIS ENLISTMENT AND THAT HE THUS SHOULD BE DEEMED TO HAVE BEEN ON ACTIVE DUTY AT THE TIME OF HIS DEATH.

THE ACT OF AUGUST 22, 1912, SUPRA, PROVIDES IN PERTINENT PART:

"THAT UNDER SUCH REGULATION AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, WITH THE APPROVAL OF THE PRESIDENT, ANY ENLISTED MAN MAY BE DISCHARGED AT ANY TIME WITHIN THREE MONTHS BEFORE THE EXPIRATION OF HIS TERM OF ENLISTMENT OR EXTENDED ENLISTMENT WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT THAT HE WOULD HAVE RECEIVED, EXCEPT PAY AND ALLOWANCES FOR THE UNEXPIRED PERIOD NOT SERVED, OR TO WHICH HE WOULD THEREAFTER BECOME ENTITLED HAD HE SERVED HIS FULL TERM OF ENLISTMENT OR EXTENDED ENLISTMENT ***."

ARTICLE C-10306 OF THE BUREAU OF NAVAL PERSONNEL MANUAL PROVIDES THAT THE BUREAU MAY AUTHORIZE OR DIRECT THE DISCHARGE OF ENLISTED PERSONNEL FOR THE CONVENIENCE OF THE GOVERNMENT FOR THE REASONS THEREIN STATED INCLUDING EARLY DISCHARGES IN ACCORDANCE WITH ARTICLE C-10317. THE LATTER ARTICLE PROVIDES IN PERTINENT PART AS FOLLOWS:

"(1) UNDER CERTAIN CIRCUMSTANCES ENLISTED PERSONNEL MAY BE DISCHARGED FOR REASON OF EXPIRATION OF ENLISTMENT 3 MONTHS OR LESS PRIOR TO THE NORMAL DATE OF EXPIRATION, PROVIDED THAT SUCH EARLY DISCHARGE IS FOR THE CONVENIENCE OF THE GOVERNMENT. ***"

THE ABOVE-QUOTED ACT OF JUNE 4, 1920, AUTHORIZES THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO THE DESIGNATED SURVIVORS OF MEMBERS OF THE NAVY WHO DIE FROM WOUNDS OR DISEASE, NOT THE RESULT OF THEIR OWN MISCONDUCT, WHILE ON THE ACTIVE LIST OR WHILE SERVING ON ACTIVE DUTY IN THE NAVY. HENCE, THE GRATUITY IS NOT PAYABLE IN A CASE WHERE A FORMER MEMBER DIES AFTER HIS DISCHARGE FROM THE SERVICE HAS BECOME EFFECTIVE. IN A NAVY DEPARTMENT DECISION DATED FEBRUARY 5, 1917, A DIGEST OF WHICH IS REPORTED IN COURT MARTIAL ORDER NO. 15, 1917, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN WHO DIED UPON THE LAST DAY OF HIS ENLISTMENT, AFTER DELIVERY OF HIS DISCHARGE BY REASON OF EXPIRATION OF ENLISTMENT, AND IT WAS CONCLUDED - CITING A DECISION DATED AUGUST 14, 1915, OF THE COMPTROLLER OF THE TREASURY - THAT SUCH DISCHARGE DID NOT TAKE EFFECT UNTIL MIDNIGHT OF THE DAY OF DISCHARGE AND, THEREFORE, THAT THE DECEDENT WAS IN THE SERVICE AT THE TIME HIS DEATH OCCURRED. A NOTE FOLLOWING THE DIGEST STATED THAT SUCH HOLDING WAS LIMITED TO DISCHARGES BY REASON OF EXPIRATION OF ENLISTMENT, THERE BEING CITED A NAVY DEPARTMENT DECISION OF JULY 8, 1908, HOLDING THAT AN ENLISTED MAN WHO WAS GIVEN AN UNDESIRABLE DISCHARGE WAS NO LONGER SUBJECT TO NAVAL JURISDICTION AND COULD NOT BE DETAINED UPON DISCOVERING, AFTER DELIVERY OF HIS DISCHARGE BUT ON THE SAME DAY, THAT HE HAD BEEN OVERPAID. THESE CONCLUSIONS WERE APPARENTLY THE BASIS FOR SECTION 334 OF THE MANUAL FOR NAVAL COURTS AND BOARDS, 1937, WHICH PROVIDED IN PART THAT:

"DISCHARGE BY EXPIRATION OF ENLISTMENT DOES NOT TAKE EFFECT, NOTWITHSTANDING DELIVERY OF THE DISCHARGE CERTIFICATE, UNTIL MIDNIGHT OF THE LAST DAY OF SERVICE. DISCHARGE AT ANY OTHER TIME OR FOR ANY OTHER CAUSE TAKES EFFECT ON DELIVERY OF THE CERTIFICATE."

THE DECISION OF THE COMPTROLLER OF THE TREASURY, DATED AUGUST 14, 1915, ON WHICH THE NAVY DECISION OF FEBRUARY 5, 1917, SEEMS TO HAVE BEEN PREDICATED, DID NOT INVOLVE ANY QUESTION AS TO WHEN A DISCHARGE BECOMES EFFECTIVE, BUT HELD THAT AN ENLISTED MAN WHO EXTENDED HIS ENLISTMENT THE DAY FOLLOWING THE EXPIRATION OF HIS TERM OF SERVICE WAS ENTITLED TO THE CONTINUOUS SERVICE PAY AUTHORIZED UPON AN EXTENSION OF ENLISTMENT UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331, SINCE HIS SERVICE WAS CONTINUOUS WITHIN THE MEANING OF THAT ACT. BUT HOWEVER THAT MAY BE, THE SAID NAVAL COURTS AND BOARDS, 1937, HAS BEEN SUPERSEDED BY THE MANUAL FOR COURTS- MARTIAL, UNITED STATES, 1951, AND NO PROVISIONS SIMILAR TO THE ABOVE- QUOTED PROVISIONS OF THE SAID SECTION 334 ARE FOUND IN THE 1951 MANUAL. NOR HAS THERE BEEN CALLED TO ATTENTION OR FOUND ANY OTHER NAVY DEPARTMENT REGULATION OR DIRECTIVE IN EFFECT AT THE TIME THE ENLISTED MAN WAS DISCHARGED IN WHICH ANY SUCH PROVISIONS WERE SET FORTH OR PUBLISHING ANY RULE TO THE NAVAL SERVICE THAT ANY DISCHARGE WOULD NOT BE EFFECTIVE WHEN DELIVERED, CONTRARY TO THE GENERAL RULE THAT A DISCHARGE FROM MILITARY SERVICE IS EFFECTIVE FROM THE MOMENT OF DELIVERY. A COPY OF MR. WILLIAMS' DISCHARGE CERTIFICATE HAS NOT BEEN FURNISHED FOR EXAMINATION BUT NO REPRESENTATION IS MADE THAT IT CONTAINED ANY STATEMENT INDICATING THAT IT WOULD NOT BE EFFECTIVE WHEN DELIVERED OR THAT IT WAS NOT SO INTENDED. THEREFORE, INSOFAR AS THE RECORD BEFORE THIS OFFICE SHOWS, THERE WAS NO NOTICE TO THE ENLISTED MAN, EITHER ACTUAL OR CONSTRUCTIVE, OF ANY ADMINISTRATIVE INTENTION THAT HIS DISCHARGE WAS NOT TO BECOME EFFECTIVE UNTIL MIDNIGHT. RATHER, THE DISCHARGE CERTIFICATE APPARENTLY WAS UNCONDITIONAL AND TERMINATED WILLIAMS' STATUS AS AN ENLISTED MAN IN THE NAVY AT THE TIME OF DELIVERY. IT WOULD REQUIRE CONVINCING EVIDENCE OF BOTH INTENTION AND NOTICE TO HOLD THAT AN ENLISTED MAN REMAINED SUBJECT TO MILITARY JURISDICTION AFTER HE HAD ONCE BEEN HANDED HIS DISCHARGE CERTIFICATE. SEE UNITED STATES EX REL. FLANNERY V. COMMANDING GENERAL, 69 F. SUPP. 661.

ACCORDINGLY, SINCE THE RECORD DOES NOT SHOW THAT THE DECEDENT WAS ON THE ACTIVE LIST OF THE NAVY OR SERVING ON ACTIVE DUTY IN THE NAVY AT THE TIME HIS DEATH OCCURRED, THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS NOT AUTHORIZED.