BNUMBER:  B-261579
DATE:  November 1, 1995
TITLE:  Captain John R. Kindred, USAF (Deceased)

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Matter of:Captain John R. Kindred, USAF (Deceased)

File:     B-261579

Date:     November 1, 1995

DIGEST

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.  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.  
301b.  The fact that section 8141 cites 37 U.S.C.  301(b) rather than 
37 U.S.C.  301b should be treated as a typographical error obvious on 
its face and the statute given the effect intended.  58 Comp. Gen. 358 
(1979).

Regarding the amount of the bonus payable to Captain Kindred"s widow, 
section 8141 states that the "appropriate amount" should be paid.  
DFAS asks whether the appropriate amount is the entire $84,433.33 of 
aviation continuation pay or only the first year's installment of 
$42,216.67.

Section 301b(e) states that upon acceptance of the written agreement, 
the total amount payable pursuant to the agreement becomes fixed and 
may be paid in either a lump sum or installments.  The same language 
is contained in paragraph 12004a of the DODMPAM.  Air Force 
Instruction 36-3004, issued June 10, 1994, a month after the death of 
Captain Kindred, states the aviation continuation pay ceases 
immediately upon the member's death while on active duty and no 
further anniversary payments are to be made.

We find that the appropriate amount to be paid is the first year 
installment, $42,216.67, which is the amount Captain Kindred would 
have received if he had died after the effective date of the agreement 
during the first year.  A review of the agreement signed by Captain 
Kindred shows that to continue to receive the annual installment 
payments of the bonus, he had to remain eligible and available for 
aviation service.  Therefore, while the total amount payable became 
fixed upon acceptance of the agreement, the agreement contemplated 
that the subsequent installments would cease for various reasons, 
i.e., promotion, medical reasons, separation.  The fact that the Air 
Force Instruction became effective after his death does not require a 
different result, but rather supports the above result in the 
circumstances here.

/s/Seymour Efros
for Robert P. Murphy 
General Counsel