Captain John R. Kindred, USAF (Deceased)

B-261579 Nov 01, 1995 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Captain Kindred was to receive an initial payment of $42. The Department of Defense shall pay the appropriate amount of Aviation Continuation Pay authorized by 37 U.S.C. 301(b) to the survivors of persons who have signed reenlistment contracts on or after January 1. This provision was included in the legislation to specifically cover Captain Kindred's situation. DFAS questions whether the above statute is sufficient authority to make a payment to Captain Kindred's widow and in what amount such payment should be. Section 8141 refers to "reenlistment contracts" while Captain Kindred was an officer. The same phrase is used in the agreement signed by Captain Kindred and is employed in the Department of Defense Military Pay and Allowances Manual (DODMPAM) (DOD 7000.14-R) in the regulations which govern the use and payment of the aviation retention bonus. View Decision Matter of: Captain John R. Kindred, USAF (Deceased) File: B-261579 Date: November 1, 1995 Widow of Air Force Officer who died in the line of duty 13 days prior to the effective date of an agreement to serve seven more years on active duty in return for aviation retention bonus may be paid first year's installment of the bonus following the enactment by Congress of legislation that survivors of persons who died in the line of duty less than 14 days prior to the effective date of such an agreement shall be paid the appropriate amount of the bonus. DECISION The Defense Finance and Accounting Service, Denver Center (DFAS) has requested our decision regarding the claim of Mrs. Lori Kindred for the aviation retention bonus of her husband, Captain John R. Kindred, USAF (Deceased). Captain Kindred signed an agreement with the Air Force on February 14, 1994, which provided that he agreed to serve on active duty from May 19, 1994, through June 1, 2001, in return for $84,433.33 of "Aviator Continuation Pay under 37 U.S.C. section 301b." Captain Kindred was to receive an initial payment of $42,216.67 on the effective date of the agreement (May 19, 1994), with the remainder paid in anniversary installments during the life of the contract. Captain Kindred died in an F-15C airplane crash in the line of duty on May 6, 1994, 13 days prior to the effective date of the agreement. Section 8141 of the Department of Defense Appropriations Act of 1995, Pub. L. No. 103-335, September 30, 1994, provides: "Notwithstanding any other provision of law, within the funds made available by this Act, the Department of Defense shall pay the appropriate amount of Aviation Continuation Pay authorized by 37 U.S.C. 301(b) to the survivors of persons who have signed reenlistment contracts on or after January 1, 1994, but whose service connected death predates the effective date of such reenlistment contract by less than 14 days." This provision was included in the legislation to specifically cover Captain Kindred's situation. See 140 Cong. Rec. S11,255 (daily ed. Aug. 11, 1994) (statement of Sen. Hatch). DFAS questions whether the above statute is sufficient authority to make a payment to Captain Kindred's widow and in what amount such payment should be. DFAS notes that no statute contains the term "aviation continuation pay", section 8141 refers to "reenlistment contracts" while Captain Kindred was an officer, not an enlisted member, and 37 U.S.C. Sec. 301(b) refers to hazardous duty pay. Section 301b of title 37, authorizes the Secretary concerned to pay an aviation retention bonus of up to $12,000 per year to an aviation officer who executes an agreement to remain on active duty in aviation service. While section 8141 uses the term "aviation continuation pay," we believe that this phrase has the same meaning as an aviation retention bonus. The same phrase is used in the agreement signed by Captain Kindred and is employed in the Department of Defense Military Pay and Allowances Manual (DODMPAM) (DOD 7000.14-R) in the regulations which govern the use and payment of the aviation retention bonus. Accordingly, the use of such a phrase in section 8141 would not affect any entitlement conferred by the law. Also, the use of the phrase "reenlistment contract" likewise would not be a bar to payment since it is clear that the aviation retention bonus is only payable to officers, and the agreement signed by Captain Kindred has the same effect of a reenlistment contract signed by an enlisted member, i.e. the member agrees to remain on active duty in exchange for the receipt of a bonus. Finally, it is clear from the legislative history of section 8141 which section of the United States Code was intended, namely 37 U.S.C. Sec. 301b. The fact that section 8141 cites 37 U.S.C. Sec. 301(b) rather than 37 U.S.C. Sec. 301b should be treated as a typographical error obvious on its face and the statute given the effect intended. 58 Comp. Gen.