B-145404, MAY 18, 1961, 40 COMP. GEN. 632

B-145404, MAY 18, 1961, 40 COMP. GEN. 632

MILITARY PERSONNEL - DECEDENTS' ESTATES - PAY, ETC; DUE MILITARY PERSONNEL THE TERM "MEMBER" IN 10 U.S.C. 2771 RELATING TO THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES INCLUDES FORMER MEMBERS OF THE ARMY OF THE UNITED STATES AND FORMER MEMBERS OF RESERVE COMPONENTS WHO HAVE BEEN RETIRED, THERE BEING NO EVIDENCE OF A CONGRESSIONAL INTENT IN THE ENACTMENT OF 10 U.S.C. 2771 AND IN THE DERIVATIVE LAWS TO DISTINGUISH CASES OF FORMER MEMBERS WHO HAVE BEEN RETIRED FROM THOSE OF REGULAR AND RESERVE RETIRED MEMBERS; THEREFORE, ACCOUNTS OF SUCH DECEASED FORMER MEMBERS MAY BE ADMINISTRATIVELY SETTLED IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, MAY 18, 1961:

BY FIRST ENDORSEMENT OF MARCH 20, 1961, THE OFFICE CHIEF OF FINANCE FORWARDED YOUR LETTER OF FEBRUARY 10, 1961, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT OF ARREARS OF RETIRED PAY ON A VOUCHER STATED IN FAVOR OF MRS. ANNIE B. REHBERG, DESIGNATED BENEFICIARY OF LIEUTENANT COLONEL RICHARD B. BARNITZ, 10 108 116, RETIRED, DECEASED. YOUR REQUEST WAS ASSIGNED DO NO. 568 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT LIEUTENANT COLONEL BARNITZ WAS A FORMER MEMBER OF THE UNIFORMED SERVICES WHO BECAME ENTITLED TO RECEIVE RETIRED PAY FROM DECEMBER 1, 1950, UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND REQUIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1081 (NOW CODIFIED IN 10 U.S.C. 1331-1337), THAT HE DIED ON DECEMBER 22, 1960, AND THAT A SISTER WAS DESIGNATED AS BENEFICIARY TO RECEIVE THE ARREARS OF PAY DUE UPON HIS DEATH. THE LAST PARAGRAPH OF YOUR LETTER IS AS FOLLOWS:

5. ARREARS OF RETIRED PAY WILL BE PAID TO DESIGNATED AND NON DESIGNATED BENEFICIARIES OF DECEASED REGULAR ARMY RETIRED PERSONNEL AS PRESCRIBED IN 10 U.S.C. 2771, AS AMENDED. SETTLEMENT WILL ALSO BE EFFECTED TO DESIGNATED SURVIVING SPOUSES OF FORMER MEMBERS. THE UNDERSIGNED, HOWEVER, IS IN DOUBT AS TO WHETHER SETTLEMENT OF ARREARS OF RETIRED PAY MAY BE MADE BY THE DEPARTMENT CONCERNED FOR FORMER MEMBERS OF THE UNIFORMED SERVICES IN THE ORDER OF PRECEDENCE PRESCRIBED IN 10 U.S.C. 2771 AS AMENDED. ADVANCE DECISION IS REQUESTED.

IN FIRST ENDORSEMENT OF MARCH 20, 1961, THE OFFICE CHIEF OF FINANCE MAKES THE FOLLOWING COMMENT IN CONNECTION WITH YOUR REQUEST:

2. GENERALLY, THE TERM "MEMBER" HAS BEEN INTERPRETED TO INCLUDE REGULAR ARMY PERSONNEL AND MEMBERS OF RESERVE COMPONENTS. RETIRED AUS INDIVIDUALS AND THOSE WHO ARE NO LONGER DE JURE RESERVISTS HAVE BEEN CONSIDERED TO BE "FORMER MEMBERS.' HOWEVER, FOR THE PURPOSE OF SETTLING CLAIMS UNDER 10 U.S.C. 2771 (C) "MEMBER" HAS BEEN INTERPRETED AS APPLYING ONLY TO REGULAR ARMY PERSONNEL. ACCORDINGLY ALL CLAIMS INVOLVING OTHER THAN REGULAR ARMY MEMBERS HAVE BEEN FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT, EXCEPT THOSE WHERE A WIDOW HAS BEEN DESIGNATED.

3. IN VIEW OF THE FOREGOING AND SINCE 10 U.S.C. 2771 (C) SPECIFIES THAT SETTLEMENT MAY BE MADE TO BENEFICIARIES OF "MEMBERS" DOUBT EXISTS AS TO WHETHER SETTLEMENT MAY BE MADE IN THIS AND SIMILAR CASES.

PRIOR TO JANUARY 1, 1956, THE EFFECTIVE DATE OF THE ACT OF JULY 12, 1955, 69 STAT. 295, 37 U.S.C. 361-365 (1952 USED. SUPP. III), WHICH SUPERSEDED AND REPLACED ALL PRIOR PROVISIONS OF LAW RELATING TO THE FINAL SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES, THERE WAS IN EFFECT THE ACT OF JUNE 30, 1906, AS AMENDED, 10 U.S.C. 868 (1952 USED.). THAT ACT, AS AMENDED, PROVIDED IN PERTINENT PART AS FOLLOWS:

HEREAFTER IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO * * *

IN THE APPLICATION OF THIS PROVISION OF LAW, THE ACCOUNTING OFFICERS HAVE UNIFORMLY HELD THAT IT WAS SUFFICIENT BROAD IN ITS SCOPE TO ENCOMPASS ACCOUNTS OF FORMER OFFICERS AND ENLISTED PERSONS OF THE ARMY. SEE 23 COMP. DEC. 95, THE ENCLOSED COPIES OF OUR DECISIONS, A 63701, AUGUST 6, 1935, INVOLVING ADDITIONAL TRAVEL ALLOWANCE DUE A DECEASED FORMER ARMY ENLISTED MEMBER, AND A-42958, JULY 2, 1932, AND SEPTEMBER 19, 1932, INVOLVING ARREARS OF RETIREMENT PAY DUE ON THE ACCOUNT OF A DECEASED EMERGENCY OFFICER OF WORLD WAR I.

THE 1906 LAW, AS AMENDED, EXCEPT WITH RESPECT TO ITS APPLICATION IN CASES OF MEMBERS WHO DIED PRIOR TO JANUARY 1, 1956, WAS REPLACED BY THE 1955 LAW. SECTIONS 1 AND 2 OF THE 1955 LAW, 37 U.S.C. 361 AND 362 (1952 USED.), PROVIDED, IN MATERIAL PART, AS FOLLOWS:

THAT FOR THE PURPOSES OF THIS ACT * * * THE TERMS "UNIFORMED SERVICES," "MEMBER" AND ,1SECRETARY" SHALL HAVE THE RESPECTIVE MEANINGS GIVEN THOSE TERMS IN SECTION 102 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 804), AS AMENDED, ON THE DATE OF ENACTMENT OF THIS ACT, * * *

SEC. 2. IN THE SETTLEMENT OF THE ACCOUNT OF ANY DECEASED MEMBER OF THE UNIFORMED SERVICES OR OF THE NATIONAL GUARD OR THE AIR NATIONAL GUARD, * *

SECTION 102 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231, PROVIDES AS FOLLOWS:

(B) THE TERM "MEMBER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES. AS USED IN THIS SUBSECTION THE WORDS "RETIRED PERSON" SHALL INCLUDE MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE WHO ARE IN RECEIPT OF RETAINER PAY. (ITALICS SUPPLIED.)

HENCE, IT IS CLEAR FROM THE EXPRESS WORDING IN THE 1955 LAW THAT THE CONGRESS INTENDED THAT ACCOUNTS OF "RETIRED PERSONS" OF THE UNIFORMED SERVICES WERE TO BE SETTLED UNDER THE PROVISIONS OF THAT LAW. ALSO, IT APPEARS THAT WHILE THE CONGRESS WAS FULLY COGNIZANT OF THE EXISTENCE OF FORMER MEMBERS OF THE ARMY OF THE UNITED STATES AND FORMER MEMBERS OF RESERVE COMPONENTS WHO HAD BEEN RETIRED UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1946 USED.), AND TITLE II OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, OR UNDER OTHER PROVISIONS OF LAW, NO DISTINCTION WAS DRAWN BETWEEN THE ACCOUNTS OF SUCH RETIRED FORMER MEMBERS AND THOSE OF RETIRED REGULAR AND RESERVE MEMBERS OF THE UNIFORMED SERVICES IN THE 1955 LAW. PRESUMABLY THE CONGRESS CONSIDERED THAT THE CASES OF FORMER MEMBERS OF THE UNIFORMED SERVICES WHO HAVE BEEN RETIRED ARE NOT DISTINGUISHABLE FROM THOSE OF REGULAR AND RESERVE MEMBERS WHO HAVE BEEN RETIRED, SINCE THEY RECEIVE THEIR RETIRED OR RETIREMENT PAY BY VIRTUE OF MILITARY SERVICE AND RECEIVE SUCH PAY FROM FUNDS MADE AVAILABLE BY ANNUAL APPROPRIATIONS UNDER THE CONTROL OF THE DEPARTMENTS CONCERNED.

THE 1955 LAW WAS REPEALED BY THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1569. SUBSECTION 1 (56) OF THAT ACT, 72 STAT. 1461, REVISED 10 U.S.C. 2771 TO READ, IN MATERIAL PART, AS FOLLOWS:

(A) IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

THE 1958 LAW IS A REENACTMENT, FOR THE PURPOSES OF CODIFICATION, OF THE 1955 LAW WITHOUT SUBSTANTIVE CHANGE. SEE SECTION 34 (A), 72 STAT. 1568. INASMUCH AS THERE HAS BEEN NO SUBSTANTIVE CHANGE IN THE LAW BY THE 1955 OR THE 1958 LAWS SO FAR AS THE MILITARY PERSONNEL TO WHOM IT IS APPLICABLE ARE CONCERNED, WE THINK THAT THE 1958 LAW SHOULD BE CONSTRUED AND APPLIED IN THE SAME MANNER IN THAT RESPECT AS THE 1906 LAW.

THEREFORE, PAYMENT IN FAVOR OF MRS. ANNIE B. REHBERG, DESIGNATED BENEFICIARY, IF OTHERWISE CORRECT, IS PROPER UNDER THE PROVISIONS OF THE 1958 LAW AND ONE TO BE MADE BY YOUR DEPARTMENT UNDER THE PURVIEW OF OUR CIRCULAR LETTER OF AUGUST 1, 1960, B-115731. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH.