A-1148, DECEMBER 22, 1924, 4 COMP. GEN. 554

A-1148: Dec 22, 1924

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1924: THERE IS BEFORE THIS OFFICE THE MATTER OF SIX MONTHS' DEATH GRATUITY. OR NURSE DYING WHILE IN THE REGULAR NAVY OR MARINE CORPS WHOSE DEATH WAS NOT THE RESULT OF HIS OR HER OWN MISCONDUCT. NO DIFFICULTY IS ENCOUNTERED WITH REFERENCE TO THE BENEFICIARY WIDOW. " THE INTENT OF THE CONGRESS AS TO WHO ARE ENTITLED PRESENTS MANY QUESTIONS. ENACTMENTS WITH REFERENCE TO BOTH MILITARY DEPARTMENTS ARE NOT IDENTICAL BUT IT SEEMS CLEAR THAT UNIFORMITY OF PROCEDURE WAS INTENDED BY THE CONGRESS SO THAT BENEFICIARIES THROUGH BOTH SERVICES WOULD BE ACCORDED LIKE TREATMENT IN THEIR SEVERAL CLASSES. THAT IS TO SAY. AS TO WHICH THERE IS NO LEGAL PRESUMPTION OF DEPENDENCY. THE VERY NATURE OF THE LAW AND THE END SOUGHT TO BE ACCOMPLISHED THEREBY DISCLOSES THE INTENT THAT THE DEGREE OF DEPENDENCY WHILE MATERIAL IN EACH CASE IS NOT NECESSARILY THE CONTROLLING ELEMENT.

A-1148, DECEMBER 22, 1924, 4 COMP. GEN. 554

GRATUITIES, SIX MONTHS' DEATH - NAVY AND MARINE CORPS UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, AN AMOUNT EQUAL TO SIX MONTHS' PAY OF AN OFFICER, ENLISTED MAN, OR NURSE WHO DIED WHILE IN THE REGULAR NAVY OR MARINE CORPS, NOT THE RESULT OF THEIR OWN MISCONDUCT, MAY BE PAID TO THE WIDOW, MINOR UNMARRIED CHILD OR CHILDREN OF SUCH OFFICER, ENLISTED MAN OR NURSE, WITHOUT EVIDENCE OF DEPENDENCY, BUT PAYMENT OF SUCH AMOUNT TO BENEFICIARIES OTHER THAN THE WIDOW, MINOR UNMARRIED CHILD OR CHILDREN MAY BE MADE ONLY WHEN PREVIOUSLY DESIGNATED BY THE OFFICER, ENLISTED MAN OR NURSE, AND UPON A SHOWING OF DEPENDENCY UPON THE DECEASED TO SOME DEGREE, THOUGH NOT NECESSARILY FOR THEIR CHIEF OR ACTUAL SUPPORT, EXCEPT THAT, IN CASES OF AUNTS, UNCLES, AND OTHER RELATIVES PREVIOUSLY DESIGNATED WHO STOOD IN LOCO PARENTIS TO THE DECEASED, ACTUAL DEPENDENCY UPON THE DECEASED MUST BE SHOWN.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, DECEMBER 22, 1924:

THERE IS BEFORE THIS OFFICE THE MATTER OF SIX MONTHS' DEATH GRATUITY, INVOLVING A NUMBER OF PENDING CLAIMS AND ITEMS SUSPENDED IN THE ACCOUNTS OF PAYMASTERS, PAYABLE TO DESIGNATED BENEFICIARIES UNDER THE SUPERVISION OF THE PAYMASTER GENERAL OF THE NAVY.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, PROVIDES THAT THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, CHILD, OR CHILDREN, OR ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED BY THE OFFICER, ENLISTED MAN, OR NURSE, AN AMOUNT EQUAL TO SIX MONTHS' PAY RECEIVED BY AN OFFICER, ENLISTED MAN, OR NURSE DYING WHILE IN THE REGULAR NAVY OR MARINE CORPS WHOSE DEATH WAS NOT THE RESULT OF HIS OR HER OWN MISCONDUCT. NO DIFFICULTY IS ENCOUNTERED WITH REFERENCE TO THE BENEFICIARY WIDOW, CHILD, OR CHILDREN, BUT WITH REFERENCE TO THE CLASS OF BENEFICIARIES DEFINED AS "ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER," THE INTENT OF THE CONGRESS AS TO WHO ARE ENTITLED PRESENTS MANY QUESTIONS, PARTICULARLY IN VIEW OF STATUTES IN PARI MATERIA, THE ARMY ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED BY THE ACT OF MARCH 2, 1923,42 STAT. 1385, THE DEPENDENCY ALLOWANCE ACTS OF APRIL 16, 1918, 40 STAT. 530, AND JUNE 10, 1922, 42 STAT. 628, AND THE ACTS AUTHORIZING DISTRIBUTION OF THE ESTATES OF DECEDENTS TO CERTAIN RELATIVES, PER STIRPES.

ENACTMENTS WITH REFERENCE TO BOTH MILITARY DEPARTMENTS ARE NOT IDENTICAL BUT IT SEEMS CLEAR THAT UNIFORMITY OF PROCEDURE WAS INTENDED BY THE CONGRESS SO THAT BENEFICIARIES THROUGH BOTH SERVICES WOULD BE ACCORDED LIKE TREATMENT IN THEIR SEVERAL CLASSES. THAT IS TO SAY, THE REQUIREMENTS AS TO BENEFICIARIES UNDER THE ARMY AND NAVY ACTS SHOULD BE THE SAME ACCORDING TO DEGREE OF RELATIONSHIP AND DEPENDENCY.

WITH REFERENCE TO THE DEGREE AND PRESUMPTIVENESS OF DEPENDENCY THE LAWS CONTEMPLATE TWO MAJOR CLASSES: FIRST, WIDOW AND UNMARRIED MINOR CHILD (OR CHILDREN), PRESUMED IN LAW TO BE DEPENDENT AND, SECOND, ANY OTHER DEPENDENT RELATIVES PREVIOUSLY DESIGNATED, AS TO WHICH THERE IS NO LEGAL PRESUMPTION OF DEPENDENCY. THE VERY NATURE OF THE LAW AND THE END SOUGHT TO BE ACCOMPLISHED THEREBY DISCLOSES THE INTENT THAT THE DEGREE OF DEPENDENCY WHILE MATERIAL IN EACH CASE IS NOT NECESSARILY THE CONTROLLING ELEMENT. THE WORDS "DEPENDENT RELATIVES" WERE USED NOT TO RESTRICT PAYMENTS TO A RELATIVE DEPENDENT IN FACT UPON THE DECEASED AND TO RECEIVE PAYMENTS, AND SUCH CLASS WOULD NATURALLY INCLUDE ONLY THOSE BEARING SUCH INTIMATE RELATIONSHIP TO THE DECEASED AS WOULD INVOLVE AT LEAST A MORAL OBLIGATION TO ASSIST IN THE EVENT OF NEED. THOSE WHO WOULD THEREFORE BE CONSIDERED AS BENEFICIARIES ARE A WIDOW OR UNMARRIED MINOR CHILD (OR CHILDREN); DEPENDENT MOTHER, FATHER, BROTHER OR SISTER OF THE WHOLE AND HALF BLOOD, UPON A SHOWING OF NEEDY CONDITION, OR AUNTS, UNCLES AND OTHER RELATIVES STANDING IN LOCO PARENTIS SHOWN TO BE ACTUALLY DEPENDENT UPON DECEASED.

THAT DEPENDENCY IN SOME DEGREE MUST EXIST IN EACH CASE IS CLEAR AND AS STATED THE DEPENDENCY OF A WIDOW OR UNMARRIED MINOR CHILD (OR CHILDREN) MAY BE PRESUMED, BUT IN CASES INVOLVING SOME "OTHER DEPENDENT RELATIVE" PREVIOUSLY DESIGNATED NO SUCH PRESUMPTION EXISTS AND THE CONDITION OF DEPENDENCY MUST BE ESTABLISHED BY A REASONABLE SHOWING OF EXISTING OR POSSIBLE FUTURE NEED AT TIME OF DESIGNATION TO BE ESTABLISHED IN THE HER INCOME FROM ALL SOURCES. DEPENDENCY SHOULD APPEAR IN EACH CASE OF THOSE REMOTE RELATIVES IN SUCH DEGREE AS WILL PERMIT A REASONABLE CONCLUSION FROM THE FACTS OF RECORD THAT THERE IS OR MAY BE ACTUAL DEPENDENCY OF MORE OR LESS PERMANENCY, BUT NOT NECESSARILY FOR CHIEF OR IMMEDIATE SUPPORT, EXCEPT IN CASES OF AUNTS, UNCLES AND OTHERS IN LOCO PARENTIS. IT IS POSSIBLE THAT MORAL RESPONSIBILITY FOR FUTURE SUPPORT CIRCUMSTANCES OF DEPENDENCY EXISTING AT DATE OF DEATH. THE FACT OF CONTRIBUTION IS ALWAYS MATERIAL AND WOULD BE DESERVING OF SPECIAL CONSIDERATION IN CASES OF REGULAR CONTRIBUTION OF A FAIR PART OF DECEDENT'S INCOME, THE EXTENT THEREOF BEING PROPER FOR CONSIDERATION IN DRAFTING THE REGULATIONS FOR ISSUANCE BY YOU.

WHILE IT IS IMPOSSIBLE TO PRESCRIBE JUST WHAT FACTS MUST APPEAR TO SUPPORT A CONCLUSION OF DEPENDENCY, THE FOREGOING IS STATED AS INDICATIVE OF THE VIEW OF THIS OFFICE FOR USE IN THE EXAMINATION AND SETTLEMENT OF CLAIMS AND ACCOUNTS INVOLVING THE SIX MONTHS' DEATH GRATUITY AND UNTIL MORE EFFECTIVE REGULATIONS CAN BE PROMULGATED THROUGHOUT THE REMAINDER OF THE FISCAL YEAR, IF NECESSARY, PAYMENTS AND SETTLEMENTS MAY BE MADE ACCORDINGLY.

THE FOREGOING IS TO EXPEDITE THE RELIEF GRANTED BY LAW TO MEET IMMEDIATE NEEDS, BUT THE VIEWS EXPRESSED MAY BE USEFUL IN ESTABLISHING THE REGULATIONS REQUIRED BY LAW, AS FOLLOWS:

* * * THE SECRETARY OF THE NAVY SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN OR NURSE HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS OR HER DEATH. * * *

THIS PROVISION CONTEMPLATES THE ISSUANCE OF SUCH REGULATIONS AS MAY BE NECESSARY TO A UNIFORM ADMINISTRATION OF THE LAW, AND IT IS SUGGESTED THAT REGULATION BE PREPARED IN ACCORDANCE WITH THE STATUTE. SHOULD YOU SO DESIRE THIS OFFICE WILL BE PLEASED TO COOPERATE AND FURNISH SUCH ASSISTANCE AS IS POSSIBLE. IN SUCH CONNECTION THERE WOULD SEEM FOR CONSIDERATION THE ADVISABILITY AND PRACTICABILITY OF IDENTICAL REGULATIONS BY THE WAR AND THE NAVY DEPARTMENT.

IT WOULD SEEM THE BETTER PRACTICE TO SECURE AS COMPLETE A RECORD AS POSSIBLE DURING THE LIFETIME OF THE OFFICER, ENLISTED MAN, OR NURSE, SO THAT THE MATTERS OF RELATIONSHIP AND DEPENDENCY CAN BE MORE READILY DETERMINED FROM THE FACTS APPEARING IN THE APPLICATION OR VOUCHER REQUIRED OF THE BENEFICIARY, THE FORM OF WHICH APPLICATION OR VOUCHER COULD BE IDENTICAL FOR ALL SERVICES. TO AID IN SUCH A PROCEDURE THE IDEA OF HAVING ALL DESIGNATIONS MADE PERIODICALLY OR PREVIOUS DESIGNATIONS CORROBORATED FROM TIME TO TIME AT ONCE SUGGESTS ITSELF AS DESIRABLE.

IN ORDER THAT REGULATIONS MAY BE PROMULGATED IN AMPLE TIME TO BECOME EFFECTIVE BY JULY 1, 1925, IF THE ASSISTANCE OF THIS OFFICE IS TO BE AVAILED OF, IT IS SUGGESTED THE MATTER BE SO ADMINISTRATIVELY PROCEEDED WITH THE SUBMISSION TO THIS OFFICE BE BEFORE MARCH 1, 1925.