B-124928, OCTOBER 21, 1955, 35 COMP. GEN. 225

B-124928, OCTOBER 21, 1955, 35 COMP. GEN. 225

PAY - ACTIVE DUTY - EFFECTIVE DATE OF RETIREMENT ORDERS A NAVAL RESERVE ENLISTED MAN WHO AFTER TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST DIED PRIOR TO RECEIVING RETIREMENT ORDERS WHICH WOULD HAVE EFFECTED HIS RETIREMENT SOMETIME PRIOR TO DEATH MAY BE CONSIDERED TO HAVE CONTINUED IN AN ACTIVE-DUTY PAY AND ALLOWANCE STATUS FROM THE DATE OF TRANSFER TO DATE OF DEATH, AND HIS WIDOW IS ENTITLED TO PAYMENT BASED ON HIS ACTIVE DUTY STATUS, UNDER SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, AND TO THE 6 MONTHS' DEATH GRATUITY PROVIDED IN THE ACT OF JUNE 4, 1920.

TO THE SECRETARY OF THE NAVY, OCTOBER 21, 1955:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER THE FINAL PAY ACCOUNT OF CHRISTIAN FLOYD ROSS, CHIEF YEOMAN, UNITED STATES NAVAL RESERVE, RETIRED, COVERING THE PERIOD FROM OCTOBER 1, 1953, DATE OF HIS TRANSFER TO THE RETIRED LIST, TO OCTOBER 17, 1953, DATE OF HIS DEATH, PROPERLY IS TO BE COMPUTED ON THE BASIS OF AN ACTIVE DUTY STATUS RATHER THAN A RETIRED INACTIVE-DUTY STATUS.

THE DECEDENT'S WIDOW, MRS. BEULAH E. ROSS, WAS ALLOWED THE SUM OF $130.63 IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MARCH 24, 1954, REPRESENTING RETIRED PAY (PLUS A BALANCE OF 68 CENTS FROM THE ENLISTED MAN'S PRECEDING PAY ACCOUNT) FOR THE PERIOD OCTOBER 1 TO 17, 1953, INCLUSIVE. THAT ACTION WAS TAKEN PURSUANT TO THE PROVISIONS OF 34 U.S.C. 941A AND WAS BASED UPON (1) A STATEMENT OF FINAL PAY ACCOUNT FURNISHED BY THE DEPARTMENT OF THE NAVY, AND (2) A REPORT SHOWING THAT MR. ROSS WAS PLACED ON THE RETIRED LIST OF THE NAVY EFFECTIVE OCTOBER 1, 1953, AND THAT HE HAS IN A RETIRED INACTIVE-DUTY STATUS FROM THAT DATE UNTIL HIS DEATH ON OCTOBER 17, 1953.

HOWEVER, A SUPPLEMENTAL REPORT DATED SEPTEMBER 28, 1955, FROM THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, STATES THAT MR. ROSS WAS TRANSFERRED ON FEBRUARY 17, 1953, FROM ENLISTED PERSONNEL HEADQUARTERS, 11TH NAVAL DISTRICT, U.S. NAVAL RECEIVING STATION, SAN DIEGO, CALIFORNIA, TO THE U.S. NAVAL HOSPITAL AT SAN DIEGO, FOR TREATMENT; THAT ON AUGUST 25, 1953, HE WAS PLACED IN A LIMITED DUTY STATUS AT THE NAVAL RECEIVING STATION, SAN DIEGO, TO AWAIT APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD; THAT ON AUGUST 28, 1953, MR. ROSS WAS DISCHARGED FROM FURTHER ATTENDANCE BEFORE THE PHYSICAL EVALUATION BOARD AND THAT HE RETURNED TO THE NAVAL RECEIVING STATION, SAN DIEGO, TO AWAIT FINAL ACTION ON THE BOARD'S PROCEEDINGS.

THE REPORT OF SEPTEMBER 28, 1955, IN PERTINENT PART, FURTHER STATES:

ON 11 SEPTEMBER 1953 THE SECRETARY OF THE NAVY APPROVED THE RECORD OF PROCEEDINGS OF THE PHYSICAL EVALUATION BOARD IN MR. ROSS' CASE AND DIRECTED THAT HE BE TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 (37 U.S.C. 272). ORDERS DATED 14 SEPTEMBER 1953 WERE ACCORDINGLY ISSUED BY THE CHIEF OF NAVAL PERSONNEL TO MR. ROSS VIA THE COMMANDING OFFICER, U.S. NAVAL RECEIVING STATION, NAVAL STATION, SAN DIEGO, CALIFORNIA, EFFECTING HIS RELEASE FROM ACTIVE DUTY ON 30 SEPTEMBER 1953 AND HIS TEMPORARY RETIREMENT ON 1 OCTOBER 1953. THESE ORDERS WERE MISDIRECTED TO THE NAVAL STATION, TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA, BEING RECEIVED BY THAT ACTIVITY ON 22 SEPTEMBER 1953. THE COMMANDING OFFICE, RECEIVING STATION, SAN DIEGO, BY LETTER OF 23 OCTOBER 1953 ADVISED THE CHIEF OF NAVAL PERSONNEL THAT MR. ROSS' RETIREMENT ORDERS WERE RECEIVED FROM THE RECEIVING STATION, TREASURE ISLAND, SAN FRANCISCO, ON 12 OCTOBER 1953 AND THAT " THE REQUIRED PAPERS FOR EFFECTING RETIREMENT WERE PREPARED BY THE SEPARATION ACTIVITY ON 16 OCTOBER AND WERE TO BE EXECUTED ON 19 OCTOBER 1953.' THERE IS NOTHING IN THE RECORD TO INDICATE THAT MR. ROSS WAS ACTUALLY INFORMED OF THE EFFECTIVE DATE OF HIS RETIREMENT.

THE CERTIFICATE OF DEATH DATED 28 OCTOBER 1953 SUBMITTED BY THE COMMANDING OFFICER, NAVAL RECEIVING STATION, NAVAL STATION, SAN DIEGO, STATES THAT MR. ROSS DIED ON 17 OCTOBER 1953. THE CERTIFICATE FURTHER STATES THAT " PATIENT WAS AT HOME ON LIBERTY WHEN HE SUFFERED AN ATTACK. HE WAS DECLARED DEAD ON ARRIVAL AT THE U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA.'

MR. ROSS WAS NOT ORDERED HOME IN AN "AWAITING ORDERS" STATUS AFTER APPEARING BEFORE THE PHYSICAL EVALUATION BOARD, NOR WAS HE GRANTED LEAVE SUBSEQUENT TO SUCH HEARING. HE WAS PHYSICALLY PRESENT AT THE RECEIVING STATION, NAVAL STATION, SAN DIEGO, CALIFORNIA, FOR THE PERIOD 1 OCTOBER 1953 TO 17 OCTOBER 1953, EXCEPT FOR ANY PERIODS OF LIBERTY WHICH MAY HAVE BEEN GRANTED HIM NO ACCOUNTING OF WHICH IS KEPT IN THE SERVICE RECORDS.

MRS. BEULAH E. ROSS, 737 GROSSMONT AVENUE, EL CAJON, CALIFORNIA, MRS. ROSS' WIDOW, IS THE DESIGNATED BENEFICIARY TO RECEIVE THE SIX MONTHS' DEATH GRATUITY.

PARAGRAPH 1 OF ORDERS OF THE CHIEF OF NAVAL PERSONNEL, DATED SEPTEMBER 14, 1953, TO WHICH REFERENCE IS MADE IN THE ABOVE-QUOTED REPORT, DIRECT MR. ROSS TO PROCEED TO HIS HOME IN CONNECTION WITH HIS RETIREMENT " UPON COMPLETION OF HOSPITALIZATION AND WHEN DIRECTED BY YOUR COMMANDING OFFICER.' PARAGRAPH 3 OF THOSE ORDERS DIRECTED THAT HE WOULD BE RELEASED FROM ACTIVE DUTY EFFECTIVE AS OF MIDNIGHT ON SEPTEMBER 30, 1953, AND THAT HE WOULD BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE OCTOBER 1, 1953.

SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821, 37 U.S.C. 314, WHICH BECAME EFFECTIVE OCTOBER 1, 1949, EXPRESSLY PROVIDES THAT RETIRED MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED "WHEN SERVING ON ACTIVE DUTY" TO RECEIVE "THE PAY AND ALLOWANCES TO WHICH ENTITLED BY THE PROVISIONS OF THIS ACT FOR THE GRADE OR RANK IN WHICH THEY ARE SERVING ON SUCH ACTIVE DUTY.' IT IS FURTHER EXPRESSLY PROVIDED THAT RETIRED MEMBERS SHALL "WHEN ON SUCH ACTIVE-DUTY STATUS, HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR WHILE SICK AS MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY OF SIMILAR GRADE OR RANK, AND, IF DEATH OCCURS WHILE ON ACTIVE-DUTY STATUS, WHILE ON LEAVE OF ABSENCE, OR WHILE SICK, THEIR DEPENDENTS SHALL NOT THEREBY BE DEPRIVED OF ANY OF THE (DEATH GRATUITY) BENEFITS PROVIDED IN THE ACT OF DECEMBER 17, 1919 (41 STAT. 367; 10 U.S.C. 903), AS AMENDED, AND IN THE ACT OF JUNE 4, 1920 (41 STAT. 824; 34 U.S.C. 943), AS AMENDED.'

THE COURT OF CLAIMS IN THE CASE OF CRIST V. UNITED STATES, 124 C.1CLS. 825, DECIDED ON DECEMBER 2, 1952, CONSTRUED THE PROVISIONS OF SECTION 514 AS MAKING NO DISTINCTION BETWEEN ACTIVE DUTY PERFORMED BEFORE RETIREMENT AND SUCH DUTY PERFORMED AFTER RETIREMENT AND AS STIPULATING THAT RETIRED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES WHEN SERVING ON ACTIVE DUTY. IT WAS HELD BY THE COURT THAT THE PLAINTIFF CRIST "WAS SERVING ON ACTIVE DUTY AND SUBJECT TO ASSIGNMENT UNTIL HE WAS DIRECTED OTHERWISE BY THE DELIVERY OF THE (RETIREMENT) ORDERS TO HIM.' THE COURT THUS CONCLUDED THAT CRIST WAS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES, LESS THE AMOUNT OF RETIRED PAY WHICH HE HAD RECEIVED, FOR THE PERIOD COVERED BY HIS CLAIM.

THE FACTS IN THE INSTANT CASE CLEARLY ESTABLISH THAT MR. ROSS WAS SERVING ON ACTIVE DUTY DURING THE PERIOD FROM OCTOBER 1, 1953, THE DATE HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST, TO OCTOBER 17, 1953, THE DATE OF HIS DEATH. HENCE, HE WAS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES THROUGH OCTOBER 17, 1953, UNDER THE HOLDING IN THE CRIST CASE. ACCORDINGLY, A SUPPLEMENTAL SETTLEMENT WILL ISSUE IN DUE COURSE, IF OTHERWISE CORRECT, IN FAVOR OF MRS. BEULAH E. ROSS, ALLOWING THE ADDITIONAL AMOUNT FOUND DUE AFTER RECOMPUTING THE DECEDENT'S FINAL PAY ACCOUNT ON THE BASIS THAT HE HELD AN ACTIVE-DUTY PAY AND ALLOWANCE STATUS FOR THE PERIOD OCTOBER 1 TO 17, 1953, INCLUSIVE.

FURTHERMORE, INASMUCH AS THE LATE ENLISTED MAN WAS "ON THE RETIRED LIST WHEN ON ACTIVE DUTY" AT THE DATE OF HIS DEATH ON OCTOBER 17, 1953, HIS STATUS AT THAT TIME (IF THE WOUNDS OR DISEASE WHICH CAUSED HIS DEATH DID NOT RESULT FROM HIS OWN MISCONDUCT) PLACED HIM WITHIN THE PURVIEW OF THE SIX MONTHS' DEATH GRATUITY ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943. ACCORDINGLY, PAYMENT OF THE 6 MONTHS' DEATH GRATUITY PROPERLY MAY BE MADE, IF OTHERWISE CORRECT, TO THE DECEDENT'S WIDOW, MRS. BEULAH E. ROSS.

PRIOR HOLDINGS OF THIS OFFICE (DISALLOWING ACTIVE-DUTY PAY AFTER EFFECTIVE DATE OF RETIREMENT NOTWITHSTANDING MEMBER'S RECEIPT OF RETIREMENT ORDERS AFTER SUCH EFFECTIVE DATE) BASED ON THE DECISIONS OF THE COURT OF CLAIMS IN TERRY V. UNITED STATES, 81 C.1CLS. 958 AND HOLLAND V. UNITED STATES, 83 C.1CLS. 376, RELATE TO PROVISIONS OF LAW WHICH WERE IN EFFECT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND HENCE ARE NOT FOR APPLICATION IN THE PRESENT MATTER.