A-14356, MAY 15, 1926, 5 COMP. GEN. 914

A-14356: May 15, 1926

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SIX MONTHS' DEATH - CHANGE OF STATUS FROM ENLISTED MAN TO OFFICER WHERE A MOTHER WAS DESIGNATED AS THE DEPENDENT RELATIVE OF AN ENLISTED MAN OF THE MARINE CORPS TO RECEIVE UPON HIS DEATH THE AMOUNT EQUAL TO SIX MONTHS' PAY UNDER THE ACT OF AUGUST 22. PAYMENT OF THE GRATUITY IS AUTHORIZED TO THE MOTHER UNDER THE DESIGNATION MADE AS AN ENLISTED MAN. IN WHICH WAS SUSTAINED DISALLOWANCE IN SETTLEMENT NO. THE CLAIM WAS ASSERTED UNDER THE ACT OF JUNE 4. THE DISALLOWANCE WAS BASED ON A REPORT FROM MARINE CORPS HEADQUARTERS THAT THE RECORDS SHOWED THE OFFICER HAD NOT DESIGNATED A DEPENDENT RELATIVE TO RECEIVE THE GRATUITY AUTHORIZED BY THE ACT OF JUNE 4. THE RECORDS OF THIS OFFICE SHOW THAT CHARLES MCCALL PORTIS WAS ENROLLED AS A PRIVATE IN THE MARINE CORPS RESERVE ON 6 JULY 1917.

A-14356, MAY 15, 1926, 5 COMP. GEN. 914

GRATUITIES, SIX MONTHS' DEATH - CHANGE OF STATUS FROM ENLISTED MAN TO OFFICER WHERE A MOTHER WAS DESIGNATED AS THE DEPENDENT RELATIVE OF AN ENLISTED MAN OF THE MARINE CORPS TO RECEIVE UPON HIS DEATH THE AMOUNT EQUAL TO SIX MONTHS' PAY UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 329, AND HE CONTINUED IN THE SERVICE FROM THE DATE OF DESIGNATION TO DATE OF HIS DEATH, NOVEMBER 11, 1922, HAVING BECOME AN OFFICER WITHOUT MAKING A DESIGNATION OF A DEPENDENT RELATIVE UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, PAYMENT OF THE GRATUITY IS AUTHORIZED TO THE MOTHER UNDER THE DESIGNATION MADE AS AN ENLISTED MAN.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 15, 1926:

MRS. ONIE M. PORTIS HAS APPLIED FOR RECONSIDERATION OF DECISION OF JULY 11, 1923, IN WHICH WAS SUSTAINED DISALLOWANCE IN SETTLEMENT NO. N 274914, MARCH 23, 1923, OF HER CLAIM FOR AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY HER SON, FIRST LIEUT. CHARLES MCCALL PORTIS, UNITED STATES MARINE CORPS, AT THE DATE OF HIS DEATH NOVEMBER 11, 1922. THE CLAIM WAS ASSERTED UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, WHICH AUTHORIZED SUCH PAYMENT TO A "DEPENDENT RELATIVE OF SUCH OFFICER * * * PREVIOUSLY DESIGNATED BY HIM" SUBJECT TO THE OTHER LIMITATIONS AND CONDITIONS OF THE ACT. THE DISALLOWANCE WAS BASED ON A REPORT FROM MARINE CORPS HEADQUARTERS THAT THE RECORDS SHOWED THE OFFICER HAD NOT DESIGNATED A DEPENDENT RELATIVE TO RECEIVE THE GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920. THE ADJUTANT AND INSPECTOR OF THE UNITED STATES MARINE CORPS, NOVEMBER 23, 1925, MADE A SUPPLEMENTAL REPORT IN THE MATTER AS FOLLOWS:

1. THE RECORDS OF THIS OFFICE SHOW THAT CHARLES MCCALL PORTIS WAS ENROLLED AS A PRIVATE IN THE MARINE CORPS RESERVE ON 6 JULY 1917, WAS ON 9 OCTOBER 1917 DISENROLLED TO ACCEPT APPOINTMENT AS A SECOND LIEUTENANT (PROBATIONARY) AND SERVED CONTINUOUSLY AS A COMMISSIONED OFFICER IN THE MARINE CORPS UNTIL THE DATE OF HIS DEATH, 11 NOVEMBER 1922.

2. ON 27 JULY 1917 PRIVATE PORTIS EXECUTED IN DUE FORM BEFORE A NOTARY PUBLIC A BENEFICIARY SLIP WHICH IS NOW ON FILE IN THIS OFFICE AND IN WHICH HE NAMED HIS MOTHER, MRS. ONIE MAE PORTIS, AS BENEFICIARY FOR THE SIX MONTHS' DEATH GRATUITY. THE RECORDS ALSO SHOW THAT AT THE TIME OF DEATH HE HAD AN ALLOTMENT, RUNNING SINCE DECEMBER, 1921, OF $75 PER MONTH IN FAVOR OF HIS MOTHER; AND THAT HE WAS RECEIVING RENTAL ALLOWANCE FOR THE DEPENDENT MOTHER. THE ORIGINAL OF THIS BENEFICIARY SLIP WILL BE FORWARDED TO-DAY TO THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, FOR THE USUAL ACTION. AT THE TIME REFERENCE (B) WAS WRITTEN, THIS BENEFICIARY SLIP ESCAPED OBSERVATION, DUE, NO DOUBT, TO THE FACT THAT IT WAS FILED WITH THE RECORD OF PRIVATE PORTIS IN THE RESERVE, WHICH RECORD WAS IN A SEPARATE FOLDER FROM HIS RECORD AS AN OFFICER.

IT IS ON THIS SUPPLEMENTAL REPORT AND THE EVIDENCE THEREIN CONTAINED THAT CLAIMANT NOW REQUESTS FURTHER CONSIDERATION. THE ORIGINAL DESIGNATION IS SUBMITTED. IT WAS EXECUTED BEFORE A NOTARY PUBLIC JULY 27, 1917, BY PRIVATE CHARLES MCCALL PORTIS, UNITED STATES MARINE CORPS RESERVE, IN WHICH UNDER THE PROVISIONS OF THE ACT OF AUGUST 22, 1912, HE DESIGNATED AS HIS DEPENDENT RELATIVE TO RECEIVE THE GRATUITY HIS MOTHER, MRS. ONIE M. PORTIS, 1723 SIXTH AVENUE, BESSEMER, ALA.

THE ACT OF AUGUST 22, 1912, 37 STAT. 329, IN EFFECT JULY 27, 1917, PROVIDED:

THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE NAVY AND MARINE CORPS THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND, IF NO WIDOW, TO THE CHILDREN, AND IF THERE BE NO CHILDREN, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH, LESS SEVENTY-FIVE DOLLARS IN THE CASE OF AN OFFICER AND THIRTY-FIVE DOLLARS IN THE CASE OF AN ENLISTED MAN, TO DEFRAY EXPENSES OF INTERMENT, AND THE RESIDUE, IF ANY, OF THE AMOUNT RESERVED SHALL BE PAID SUBSEQUENTLY TO THE DESIGNATED PERSON.

THIS WAS IN TERMS AN AMENDMENT OF THE ACT OF MAY 13, 1908, 35 STAT. 128, OF SOMEWHAT DIFFERENT PHRASEOLOGY IN THE PORTION HERE MATERIAL. THE ACT OF 1912 WAS REPEALED BY SECTION 312 OF THE WAR-RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 408. THE ACT OF JUNE 4, 1920, WAS A REENACTMENT OF THE DEATH GRATUITY PROVISIONS IN EFFECT IN THE NAVAL SERVICE FROM MAY 13, 1908, TO OCTOBER 6, 1917, BUT IN ITS REENACTMENT IT WAS LIMITED TO "ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS.' THE PRIOR LAWS HAD APPLIED TO "ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE NAVY AND MARINE CORPS," THE LATTER LANGUAGE HAVING BEEN CONSTRUED TO INCLUDE OFFICERS AND ENLISTED MEN OF THE TEMPORARY FORCES AS WELL AS OF THE REGULAR SERVICE; 14 COMP. DEC. 882, 886; 15 ID. 176; 23 ID. 36; 24 ID. 675.

THE DESIGNATION OF JULY 27, 1917, WAS THEREFORE A VALID DESIGNATION UNDER THE ACT OF 1912 AND THE QUESTION IS WHETHER IT MAY BE CONSIDERED ALSO AS A PROPER DESIGNATION UNDER THE ACT OF 1920, THE LATTER BEING IN SOME RESPECTS A NEW STATUTE ENACTED NEARLY THREE YEARS AFTER THE REPEAL OF THE PRIOR LAW.

THE REQUIREMENT FOR A PREVIOUS DESIGNATION OF A DEPENDENT RELATIVE OTHER THAN WIFE OR CHILDREN IS TO FIX WITH CERTAINTY THE PERSON ENTITLED TO TAKE, AND WHERE THERE IS NO DESIGNATION NO PAYMENT MAY BE MADE; 1 COMP. GEN. 771. WHERE THERE IS A DESIGNATION THE INTENT OF THE OFFICER, ENLISTED MAN, OR NURSE, WHEN DULY ASCERTAINED, IS CONTROLLING. SEE 18 COMP. DEC. 277, 279, WHERE IT WAS SAID:

THE DESIGNATION OF A BENEFICIARY UNDER THE ACT OF MAY 13, 1908, SUPRA, IS IN THE NATURE OF A WILL, IN SO FAR AS IT GIVES THE OFFICER OR ENLISTED MAN THE RIGHT TO DESIGNATE HIS BENEFICIARY IS CONCERNED, AND THE SAME RULES OF CONSTRUCTION APPLY.

THEREFORE IT HAD BEEN SAID WITH RESPECT TO DESIGNATIONS UNDER THE EARLIER ACT, 15 COMP. DEC. 610, 614:

* * * IN ALL CASES THE INTENTION OF THE MAN SHOULD BE CARRIED OUT IF IT CAN BE ASCERTAINED FROM THE LANGUAGE OF THE DESIGNATION AND RELIABLE EVIDENCE AS TO THE CIRCUMSTANCES PERTAINING TO THE CASE.

ALTHOUGH THE INTENTION OF THE OFFICER OR ENLISTED MAN IS TO BE ASCERTAINED UNDER THE RULES APPLICABLE TO THE CONSTRUCTION OF WILLS, THE GRATUITY IS NOT A PART OF THE OFFICER OR MAN'S ESTATE, NOR A DEBT OR MONEY DUE HIM, AND A WILL HAS BEEN HELD TO BE NOT A PROPER DESIGNATION WITHIN THE ACT, 21 COMP. DEC. 856, AND INTENTIONS WHEN ASCERTAINED MUST, OF COURSE, STILL BE SUBJECT TO THE FACT OF DEPENDENCY BEING ESTABLISHED. ORAL DESIGNATIONS HAVE BEEN HELD NOT TO SUPPORT A PAYMENT, 17 COMP. DEC. 377, 490, 20 ID. 61; BUT AN INCOMPLETE DESIGNATION SUPPORTED BY EVIDENCE AS TO THE INTENTION OF THE OFFICER OR MAN HAS BEEN HELD SUFFICIENT TO AUTHORIZE PAYMENT, 15 COMP. DEC. 372, 18 ID. 277; AND WHERE THE DESIGNATION WAS DULY MADE BUT HAD BEEN MISPLACED BY THE ADMINISTRATIVE DEPARTMENT, ON PROOF OF THE IDENTITY OF THE PERSON DESIGNATED, PAYMENT WAS AUTHORIZED TO BE MADE, 17 COMP. DEC. 587, 22 ID. 532; AND, AS MATERIAL TO THIS CASE, IT WAS HELD UNDER PRIOR ACTS, 21 COMP. DEC. 856, THAT A DESIGNATION ONCE MADE CONTINUES EFFECTIVE SO LONG AS THE OFFICER OR MAN REMAINS IN THE ACTIVE SERVICE UNLESS THE DESIGNATION IS REVOKED.

AT COMMON LAW AND UNDER STATUTES, A WILL IMPLIEDLY REVOKED BY OPERATION OF LAW FROM SOME CHANGE IN THE TESTATOR'S CONDITION OR CIRCUMSTANCE WAS NOT REVIVED BY THE FACT THAT SUCH CHANGE CEASED TO EXIST, AS FOR EXAMPLE, WHERE A WOMAN EXECUTED A WILL, THEN MARRIED, AND SUBSEQUENTLY BECAME A WIDOW, HER WILL, REVOKED BY MARRIAGE, WAS NOT REVIVED BY THE DEATH OF HER HUSBAND. SEE 40 CYC. 1212-13, AND THE CITATIONS THEREUNDER. BUT THE ANALOGY BETWEEN A WILL AND A DESIGNATION UNDER THE GRATUITY ACT OF 1920 SHOULD NOT BE UNDULY STRESSED TO DEFEAT THE PURPOSE AND OBJECT OF THE LAW. IT HAS HERETOFORE BEEN HELD, BOTH UNDER THE ARMY AND THE NAVY STATUTE, THAT WHERE THE MAN HAD NO OPPORTUNITY UNDER THE REENACTMENTS OF THE STATUTES IN 1919 AND 1920 TO MAKE A NEW DESIGNATION PAYMENT WAS AUTHORIZED TO THE PERSON DESIGNATED UNDER THE PRIOR LAWS, 95 MS. COMP. DEC. 473 AND 694. THE THEORY UNDERLYING THOSE CASES IS THAT HAD THERE BEEN AN INTENTION TO CHANGE THE DESIGNATED BENEFICIARY, OR REVOKE THE DESIGNATION, THE OFFICER OR MAN WOULD HAVE TAKEN SOME AFFIRMATIVE ACTION IN THAT RESPECT AFTER THE REENACTMENT OF THE LAW, AND THAT IN THE ABSENCE OF ANY DESIGNATION UNDER THE LATTER STATUTE THE RULE THAT UNLESS REVOKED A DESIGNATION ONCE MADE CONTINUES THROUGHOUT THE ACTIVE SERVICE OF THE OFFICER OR MAN SHOULD APPLY. THE LAW MAKES NO REQUIREMENT OF A REDESIGNATION ON A CHANGE OF STATUS, AS WHERE A MAN IS DISCHARGED AND REENLISTS; OR WHERE A MAN IS APPOINTED AN OFFICER; A DESIGNATION OF THE DEPENDENT RELATIVE TO RECEIVE THE SIX MONTHS' DEATH GRATUITY IS ALL THAT IS REQUIRED; AND WHETHER THE GRATUITY FOR WHICH THE BENEFICIARY WAS DESIGNATED IS TO BE PAID UNDER THE 1912 ACT OR UNDER THE 1920 ACT IS NOT A MATTER OF SUBSTANCE; BUT ONE AMOUNT EQUAL TO SIX MONTHS' PAY MAY BE PAID, AND THAT ONLY TO THE DEPENDENT RELATIVE PREVIOUSLY DESIGNATED.

THE MOTHER IN THIS CASE IS SHOWN TO HAVE BEEN DEPENDENT UPON THE DECEASED AND IT IS SHOWN THAT HE MADE SUBSTANTIAL ALLOTMENTS OF HIS PAY FOR HER SUPPORT. IN THESE CIRCUMSTANCES AND IN VIEW OF THE NEW AND MATERIAL EVIDENCE NOW PRESENTED THE SETTLEMENT IS MODIFIED AND THERE IS CERTIFIED DUE CLAIMANT AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY LIEUT. CHARLES MCCALL PORTIS AT THE DATE OF HIS DEATH.