Comptroller General Warren to Major E. M. Simmons
| Decision Date | 02 December 1946 |
| Docket Number | B-53160 |
| Parties | COMPTROLLER GENERAL WARREN TO MAJOR E. M. SIMMONS, U.S. ARMY, DECEMBER 2, 1946: |
| Court | Comptroller General of the United States |
Six months' death gratuity pay - cadets at military academy cadets at the military academy are to be regarded as officers on the active list of the regular army within the meaning of the six months' death gratuity statute of December 17 1919, as amended, so that, upon the death of a cadet, the gratuity, otherwise proper, is payable to the person entitled thereto under the terms of the statute.
Reference is made to your letter of September 21, 1945, submitting a voucher covering a claim for six months' death gratuity made by lieutenant colonel raymond morrison, U.S. Army retired, as designated beneficiary of his son, the late arthur R. Morrison, cadet, united states military academy who died on May 24, 1945, as a result of an aviation training accident at St. Elmo, new York. You express doubt as to whether or not cadets of the united states military academy and their beneficiaries are within the scope of the statutory provisions authorizing payment of six months' death gratuity and, accordingly, you request a decision on the legality of paying the claim here in question. In transmitting your request to this office by first indorsement of October 12, 1945, the fiscal director, army service forces, refers particularly to decision of July 17, 1908, 15 comp. Dec. 39, in which it was held that midshipmen at the naval academy were officers on the active list within the meaning of a similar death gratuity statute for naval personnel.
Payments of the six months' death gratuity in cases of death of army personnel are authorized and governed by the provisions of the act of December 17, 1919, 41 Stat. 367, as amended 10.S.C., Supp. V, 903, as follows:
Hereafter immediately upon official notification of the death from wounds or disease, not the result of his own misconduct, of any officer or enlisted man on the active list of the regular army or on the retired list when on active duty, the chief of finance of the army shall cause to be paid to the widow, and if there be no widow to the child or children, and if there be no widow or child to any other dependent relative of such officer or enlisted man previously designated by him, an amount equal to six months' pay at the rate received by such officer or enlisted man at the date of his death. The secretary of war shall establish regulations requiring each officer and enlisted man having no wife or child to designate the proper dependent relative to whom this amount shall be paid in case of his death. Said amount shall be paid from funds appropriated for the pay of the army: provided, that nothing in this section shall be construed as making the provisions thereof applicable to officers or enlisted men of any forces or troops of the army of the united states other than those of the regular army, and nothing in this section shall be construed to apply in commissioned grades to any officers except those holding permanent appointments in the regular army: and provided further, that none of the funds appropriated for the purposes of this section shall be used for the pay of such six months' pay to any married child or unmarried child over twenty-one years of AGE of a deceased officer or enlisted man who is not actually a dependent of such deceased officer or enlisted man: and provided further, that in the event of the death of any beneficiary before payment to and collection by such beneficiary of the amount authorized herein, such gratuity shall be paid to the next living benficiary in the order of succession above stated: and provided further, that if there be no widow, child, or previously designated dependent relative, the secretary of war shall cause the amount herein provided to be paid to any grandchild, parent, brother or sister, or grandparent shown to have been dependent upon such officer or enlisted man prior to his death, and the determination of such fact by the secretary of war shall be final and conclusive upon the accounting officers of the government: and provided further, that the last foregoing proviso shall be effective as of August 27, 1940.
The act of December 10, 1941, 55 Stat. 796 (effective August 27, 1940), extended the above provisions of the act of December 17, 1919, as amended, to all "officers, warrant officers, and enlisted men of the army of the united states, other than the officers and enlisted men of the regular army, if called or ordered into the active military service by the federal government for extended military service in excess of thirty days.' see 10 U.S.C., Supp. V, 456.
As you have pointed out, war department circular no. 230, dated July 30, 1945, rescinded paragraph 3b of army regulations 35-1540, dated April 19, 1945, which said:
The provisions of the act of 17 December 1919 (41 Stat. 367) authorizing payment of six months' gratuity pay do not apply to cadets at the united states military academy.
Statements substantially identical to that quoted above appeared in army regulations 35-1540, dated December 15, 1924, and subsequent revisions of the said regulations dated March 30, 1929, March 15, 1937, and December 19, 1942, and while none of the revisions of the regulations, including the one dated April 19, 1945, cited any statute, decision or opinion as a basis for such statements, it is understood that they had their inception in an unpublished opinion given by the judge advocate general of the army October 24, 1923.
It is well settled that a uniform construction given to a statute by the Administrative Officers of the government charged with executing it, and acted upon for a long term of years, though not conclusive, is given great weight by the courts. Also, it is well settled that a regulation, issued by a department or agency of the government, cannot be effective to deprive a person of a right given to him by statute.
Whatever justification there May have been for the previous war department view that the act of December 17, 1919, as amended, did not apply to cadets at the military academy, the subparagraph in the army regulations which reflected that view was rescinded in July, 1945, apparently on the basis that it was erroneous, considering the fact that the similar statutory provisions for payment of six months' death gratuity in cases of death of navy personnel have been regarded as applicable to midshipmen at the united states naval academy ever since the decision of July 17, 1908, 15 comp. Dec. 39, cited by the fiscal director, was rendered to the secretary of the navy. It was held in that decision (quoting from the syllabus) that:
Midshipmen at the naval academy are officers on the active list of the navy within the meaning of the proviso in the act of May 13, 1908, which allows a gratuity of six months' pay to be paid to the widow or other designated beneficiary upon the death of an officer on the active list of the navy.
An examination of the statutory provisions for payment of the gratuity which were construed by the assistant comptroller of the treasury in the said decision of July 17, 1908, discloses that, for purposes of comparison in connection with the present question, such provisions do not differ materially from the current statutory provisions pertaining to the army, as quoted above, or from the provisions of the act of May 11, 1908, 35 Stat. 108, the original statute authorizing payments of six months' death gratuity in cases of death of army personnel, and no statute or decision has been found which would afford any substantial basis for holding that there is a distinction between midshipmen at the naval academy and cadets at the military academy for the purposes of the statutes pertaining to payments of the six months' death gratuity. In such connection, it is noted that the court of claims, in a decision rendered on April 2, 1906, in the case of weller v. United States, 41 c.1cls. 324, stated (quoting from page 342):
We know of no reason why a midshipman at the naval academy at the present time should have privileges and rights denied to a cadet at the military academy, and we do not believe the law, properly construed, makes any such distinction. Neither of them holds either a commission or a warrant. Both are appointed by the president; those appointed at the military academy are called cadets and those at the naval academy are now called midshipmen.
There May have been a time in the history of the government and the naval academy when a midshipman should have been regarded as an officer in the navy within the meaning of section 1229, and when the students at the naval academy were on a different footing in that regard than the students at the military academy, but the reason for so holding no longer exists. The act of March 3, 1883 (supra), changed the title of midshipmen in the navy to ensign and the act of March 3, 1899, leaves midshipmen out of the list of line officers of the navy, so that now there are no midshipmen except those appointed to the naval academy and undergoing instruction therein or in connection therewith.
The state of the law respecting the status of cadets at the military academy and midshipmen at the naval academy is summarized in volume 36 of American jurisprudence (topic: military, section 51, page 217) as follows:
* * * the law is not well settled as to whether students at the military and naval academy are officers. For the purpose of determining longevity pay, they were formerly so classed; and under former statutes, cadet engineer graduates were so called, in effect, for certain purposes, but within the meaning of a statute prohibiting dismissals from service in time of peace, except after trial and...
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