October 10, 2013
Payment of Death Gratuities under P.L. 113-39, the Pay Our Military Act
Edward C. Liu, Legislative Attorney, x7-9166
This memorandum was prepared to enable distribution to more than one congressional office.
This memorandum provides an analysis of whether funds appropriated under P.L. 113-39, the Pay Our Military Act (POMA), are available to pay “death gratuities” under 10 U.S.C. §§ 1475 et seq. The current authority to provide death gratuities was first enacted in 1956, as Title III of the Servicemember’s and Veterans’ Survivor Benefits Act (SVSBA).1 Section 304(b) of that law provided that: Payments under this title shall be made from appropriations available for the pay of members of the uniformed service concerned.2
In 1958, this Title of the SVSBA was codified in Title 10 of the U.S. Code, as part of P.L. 85-861, an Act to “amend titles 10, 14, and 32, United States Code, to codify recent military law, and to improve the Code.”3 As codified at 10 U.S.C. § 1480(d), the provision cited above now reads: Payments under sections 1475-1477 of this title [Title 10 of the U.S. Code10 USCS §§ 1475-1477] shall be made from appropriations available for the payment of members of the armed force concerned.4
Beginning in FY1960, and through FY2013, the relevance of this provision was significantly lessened by the fact that annual appropriations provided for the military explicitly included appropriations for purposes of paying gratuities with respect to military personnel. For example, the Consolidated and Further Continuing Appropriations Act for FY2013 provides the following with respect to the Army: Military Personnel, Army For pay, allowances, individual clothing, subsistence, interest on deposits, gratuities, permanent change of station travel (including all expenses thereof for organizational movements), and expenses of temporary duty travel between permanent duty stations, for members of the Army on active duty, (except members of reserve components provided for elsewhere), cadets, and aviation cadets; for 1
P.L. 84-881, 70 Stat. 857, 868. 70 Stat. at 869. 3 72 Stat. 1437. 4 10 U.S.C. § 1480(d). 2
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members of the Reserve Officers' Training Corps; and for payments pursuant to section 156 of Public Law 97-377, as amended (42 U.S.C. 402 note), and to the Department of Defense Military Retirement Fund, $40,199,263,000.5
Thus, under normal circumstances, annual appropriations language for the military appears to include an appropriation that specifically covers “gratuities” paid to servicemembers’ survivors. During a lapse in appropriations for military personnel, there would not appear to be an appropriation from which death gratuities may be paid.6 The most recent version of this annual appropriations language expired at the end of FY2013,7 and no annual appropriation or traditional continuing resolution for the military has been enacted as of the date of this memorandum. However, immediately prior to the beginning of that funding lapse, POMA was signed into law to prevent a lapse in appropriations for military personnel, as well as certain civilian employees and contractors of the Department of Defense. With respect to military personnel, § 2 of that law provides: (a) In General- There are hereby appropriated for fiscal year 2014, out of any money in the Treasury not otherwise appropriated, for any period during which interim or full-year appropriations for fiscal year 2014 are not in effect-(1) such sums as are necessary to provide pay and allowances to members of the Armed Forces (as defined in section 101(a)(4) of title 10, United States Code), including reserve components thereof, who perform active service during such period ...8
Given the current lack of interim or full-year appropriations for FY2014, this provision of POMA has become effective, and is currently providing funds for “pay and allowances” to servicemembers who perform active service during this funding lapse. Nothing in POMA provides an explicit reference to payments of death gratuities during the funding lapse. However, questions may be raised regarding whether 10 U.S.C. § 1480(d) authorizes the use of the funds made available to pay members of the Armed Forces under POMA to pay death gratuities to the survivors of personnel killed while performing active service.9 The first step in answering these questions requires an analysis of whether POMA constitutes an appropriation that is available for the “payment of members” of the Armed Forces under § 1480(d). As described above, § 1480(d) dates from a 1958 codification in title 10 of multiple laws that were already in existence. The precursor to § 1480(d) explicitly uses the term “pay” but is otherwise identical.10 This word change in 1958 from “pay” to “payment” would ordinarily imply that the meaning of the provision had changed. But, the 1958 codification also expressly provides that its legislative purpose is “to restate, without substantive change, the law replaced by those sections on the effective date of this Act.”11 In light 5
P.L. 113-6, div. C, Title I (emphasis added). 10 U.S.C. § 1480(d) does not provide any funds itself, but merely designates from which appropriation death gratuities shall be paid. 7 P.L. 113-6, div. C (providing that “The following sums are hereby appropriated, out of any money in the Treasury not otherwise appropriated, for the fiscal year ending September 30, 2013”). 8 P.L. 113-39 (emphasis added). 9 The issue is not whether POMA, viewed in isolation, appropriates money for payments to persons other than the military personnel or Department of Defense civilians and contractors within its scope. It clearly does not. Instead, the issue is whether § 1480(d) could be read to provide additional uses for funds appropriated under POMA. 10 P.L. 84-881, 70 Stat. 857, 869. 11 P.L. 85-861, § 34, 72 Stat. 1437, 1568 (emphasis added). 6
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of this history, there appears to be a sufficient legal basis upon which a court could hold that the best reading of the terms “payment,” as used in § 1480(d), and “pay,” as used in its precursor, are the same. Assuming that a court adopts this construction, then the proposition that the appropriation under POMA “to provide pay and allowances to members of the Armed Forces” falls within the category of “appropriations available for the payment of members of the armed force concerned” under § 1480(d) would appear to be clear on its face. However, it should not be ignored that since FY1960, the annual appropriations for all military personnel have explicitly included death gratuities in the relevant military personnel account. It might be argued that this historical practice for more than a half-century should inform the construction of POMA to imply that the specific omission of gratuities from that law is indicative of Congress’ intent to prohibit the availability of this appropriation for death gratuities, notwithstanding 10 U.S.C. § 1480(d) or any other provision of law. Such an interpretation may be plausible, but is arguably less likely since the law contains no notwithstanding clause, or any other similar language, and repeals or amendments by implication are generally disfavored. Courts will construe statutes to avoid such conflicts whenever reasonably possible,12 and the doctrine disfavoring repeal by implication “applies with even greater force when the claimed repeal rests solely on an Appropriations Act,” as it is presumed that appropriations laws do not normally change substantive law.13
GAO, 1, Principles of Federal Appropriations Law, 2-43 (Jan. 2004) (citing TVA v. Hill, 437 U.S. 153 (1974)). TVA v. Hill, 437 U.S. 153, 190 (1978).