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in line of duty which rendered her physically unfit to perform further service in the Women's Army Auxiliary Corps or the Women's Army Corps shall be considered active duty for the purposes of all laws administered by the Veterans’ Administration.

(2) Any person entitled to compensation or pension by reason of this subsection and to employees' compensation based upon the same service under the Federal Employees Compensation Act must elect which benefit she will receive. (b) Any person

(1) who has applied for enlistment or enrollment in the active military, naval, or air service and has been provisionally accepted and directed or ordered to report to a place for final acceptance into such service; or

(2) who has been selected or drafted for service in the Armed Forces and has reported pursuant to the call of his local draft board and before rejection; or

(3) who has been called into the Federal service as a member of the National Guard, but has not been enrolled for the Federal

service; and who has suffered an injury or contracted a disease in line of duty while en route to or from, or at, a place for final acceptance or entry upon active duty, will, for the purposes of chapters 11, 13, 19, 21, 31, and 39 of this title, and for purposes of determining service-connection of a disability under chapter 17 of this title, be considered to have been on active duty and to have incurred such disability in the active military, naval, or air service.

(c) For the purposes of this title, whenever an individual is discharged or released after December 31, 1956, from a period of active duty he shall be deemed to continue on active duty during the period of time immediately following the date of such discharge or release from such duty determined by the Secretary concerned to be required for him to proceed to his home by the most direct route, and in any event, until midnight of the date of such discharge or release. (d) For the purposes of this title, any individual

(1) who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive duty training; and

(2) who is disabled or dies from an injury incurred after December 31, 1956, by him while proceeding directly to or returning directly from such active duty for training or inactive duty

training, as the case may be; shall be deemed to have been on active duty for training or inactive duty training, as the case may be, at the time such injury was incurred. In determining whether or not such individual was so authorized or required to perform such duty, and whether or not he was disabled or died from injury so incurred, the Administrator shall take into account the hour on which he began so to proceed or to return; the hour on which he was scheduled to arrive for, or on which he ceased to perform, such duty; the method of travel employed; his itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this subsection, the burden of proof shall be on the claimant.

PART II-GENERAL BENEFITS

Chapter 13-Dependency and Indemnity Compensation for

Service-Connected Deaths 30

Subchapter 1-General § 401. Definitions

As used in this chapter

(1) The term “basic pay” means the monthly pay prescribed by sections 232 (a), 232 (e), or 308 of Title 37, as may be appropriate, for a member of a uniformed service on active duty.

(2) The term “veteran” includes a person who died in the active military, naval, or air service. § 402. Computation of basic pay

(a) With respect to a veteran who died in the active military, naval, or air service, his basic pay shall be that prescribed on January 1, 1957, or on the date of his death (whichever is the later date) for a member of a uniformed service on active duty of the same rank and years of service as that of the deceased veteran at the time of his death.

(b) With respect to a veteran who did not die in the active military, naval, or air service, his basic pay shall be that prescribed on January 1, 1957, or on the date of his death (whichever is the later date) for a member of a uniformed service on active duty of the same rank and years of service as that of the deceased veteran

(1) at the time of his last discharge or release from active duty under conditions other than dishonorable; or

(2) at the time of his discharge or release from any period of active duty for training or inactive duty training, if his death results from service-connected disability incurred during such period and if he was not thereafter discharged or released under

conditions other than dishonorable from active duty. (c). (1) The basic pay of any veteran described in section 106 (b) of this title shall be that to which he would have been entitled upon final acceptance or entry upon active duty.

(2) The basic pay of any person not otherwise described in this section, but who had a compensable status on the date of his death under laws administered by the Veterans' Administration, shall be determined by the head of the department under which such person performed the services by which he obtained such status (taking into consideration his duties, responsibilities, and years of service) and certified to the Administrator. For the purposes of this chapter, such person shall be deemed to have been on active duty while performing such services.

(d) If a veteran has satisfactorily served on active duty for a period of six months or more in a rank higher than that specified in subsection (a) or (b) and was so serving in such rank within one hundred and twenty days before death in the active military, naval, or air service or before last discharge or release from active duty under conditions other than dishonorable, his basic pay shall be determined

30 These provisions of Chapter 13 of Title 38, U. S. C., were compiled by the Veterans' Administration.

by using the appropriate rank specified in those subsections or by substituting such higher rank for the rank specified in those subsections, whichever will result in a greater amount. The determination as to whether an individual has served satisfactorily for the required period in a higher rank shall be made by the Secretary of the Department in which such higher rank was held.31 8 403. Coverage of members of Reserve Officers' Training Corps

For the purposes of this chapter and section 722 of this title, annual training duty to which ordered for a period of fourteen days or more by a member of a Reserve Officers' Training Corps, and authorized travel to or from such duty, shall be deemed to be active military, naval, or air service. The basic pay of any such member shall be considered to be the monthly pay of a person having the rank and years of service of those members of a uniformed service to which such member's pay

is assimilated. § 404. Special provisions relating to widows

No dependency and indemnity compensation shall be paid to the widow of a veteran dying after December 31, 1956, unless she was married to him

(1) before the expiration of fifteen years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; or

(2) for five or more years; or

(3) for any period of time if a child was born of the marriage. Subchapter II—Dependency and Indemnity Compensation § 410. Deaths entitling survivors to dependency and indemnity

compensation (a) When any veteran dies after December 31, 1956, from a serviceconnected or compensable disability, the Administrator shall pay dependency and indemnity compensation to his widow, children, and parents. The standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title.

(b) Dependency and indemnity compensation shall not be paid to the widow, children, or parents of any veteran dying after December 31, 1956, unless he (1) was discharged or released under conditions other than dishonorable from the period of active military, naval, or air service in which the disability causing his death was incurred or aggravated, or (2) died while in the active military, naval, or air service. 8 411. Dependency and indemnity compensation to a widow

(a) Dependency and indemnity compensation shall be paid to a widow at a monthly rate equal to $112 plus 12 per centum of the basic pay of her deceased husband. (b) If there is a widow and two or more children below the age

of eighteen of a deceased veteran, and

(1) the total of the monthly benefits to which such widow and children are (or would be, upon the filing of an application)

81 P. L. 86–492 added subsec. (d), effective June 8, 1960.

entitled on the basis of such deceased veteran's status under the

laws referred to in subsection (d); is less than

(2) the amount described in subsection (e); then the dependency and indemnity compensation paid monthly to the widow shall be increased by $25 for each such child in excess of one; however, the total of increases under this subsection shall not exceed the difference between the amounts referred to in subparagraphs (1) and (2) of this subsection.

(c) If the amount determined under subsection (a), after increase (if any) under subsection (b), involves a fraction of a dollar, the amount payable shall be increased by the Administrator to the next higher dollar. (d) The laws referred to in subsection (b) (1) are

(1) section 412 of this title; (2) section 402 of title 42 (including the reduction provisions of subsection (a) of section 403 of title 42, but without regard to the deduction provisions of section 403); and

(3) section 228e of title 45 (including the reduction provisions of section 228c-1 (i) and 228e (h) of title 45). (e) The amount referred to in subsection (b) (2) is an amount equal to the total of the monthly benefits to which a widow and two children of a deceased fully and currently insured individual would be entitled under section 402 of title 42 (after reduction under subsection (a) of section 403 of title 42 but without regard to deduction provisions of section 403) if such deceased individual's average monthly wage had been $160.

(f) The amount referred to in subsection (b) (1) shall be determined by the Secretary of Health, Education, and Welfare, or the Railroad Retirement Board, as the case may be, and shall be certified to the Administrator upon his request. § 412. Benefits in certain cases of in-service or service-connected

deaths In the case of any veteran

(1) who dies after December 31, 1956, and is not a fully and currently insured individual (as defined in section 414 of title 42) at the time of his death; and (2) whose death occurs

(A) while on active duty, active duty for training, or inactive duty training; or

(B) as the result of a service-connected disability incurred after September 15, 1940; and (3) who leaves one or more survivors who are not entitled for any month to monthly benefits under section 402 of title 42 on the basis of his wages and self-employment income but who would, upon application therefor, be entitled to such benefits if he had

been fully and currently insured at the time of his death; the Administrator shall pay for such month benefits under this section to each such survivor in an amount equal to the amount of the benefits which would have been paid for such month to such survivor under subchapter II of chapter 7 of title 42, if such veteran had been both fully and currently insured at the time of his death and if such

65368-61-29

survivor had filed application therefor on the same date on which application for benefits under this section is filed with the Administrator.

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$ 417. Restriction on payments under this chapter

(a) No dependency and indemnity compensation shall be paid to the widow, children, or parents of any veteran dying after April 30, 1957, having in effect at the time of death a policy of United States Government life insurance or National Service Life Insurance under waiver of premiums under section 724 of this title, unless waiver of premiums on such policy was granted pursuant to the first proviso of section 622 (a) of the National Service Life Insurance Act of 1940, and the death occurs before the veteran's return to military jurisdiction or within one hundred and twenty days thereafter. Where dependency and indemnity compensation is not payable by reason of the preceding sentence, death compensation may be paid under section 321 or 341 of this title, as applicable.

(b) No person eligible for dependency and indemnity compensation by reason of any death occurring after December 31, 1956, shall be eligible by reason of such death for any payments under (1) provisions of law administered by the Veterans Administration providing for the payment of death compensation or death pension, or (2) the Federal Employees' Compensation Act.

Subchapter III—Certifications 8 421. Certifications with respect to basic pay

(a) The Secretary concerned shall, at the request of the Administrator, certify to him the basic pay, considering rank or grade and cumulative years of service for pay purposes, of deceased persons with respect to whose deaths applications for benefits are filed under this chapter. The certification of the Secretary concerned shall be binding upon the Administrator.

(b) Whenever basic pay (as defined in section 401 of this title) is increased or decreased, basic pay determined pursuant to this chapter shall increase or decrease accordingly. 8 422. Certifications with respect to social security entitlement

(a) Determinations required by section 412 of this title (other than a determination required by section 412 (2) of this title) as to whether any survivor described in section 412 (3) of this title of a deceased individual would be entitled to benefits under section 402 of title 42 for any month and as to the amount of the benefits which would be paid for such month, if the deceased veteran had been a fully and currently insured individual at the time of his death, shall be made by the Secretary of Health, Education, and Welfare, and shall be certified by him to the Administrator upon request of the Administrator.

(b) Upon the basis of estimates made by the Secretary of Health, Education, and Welfare after consultation with the Administrator, the Administrator shall pay to the Secretary an amount equal to the costs which will be incurred in making determinations and certifica

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