A-32213, AUGUST 19, 1930, 10 COMP. GEN. 78

A-32213: Aug 19, 1930

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IS A COMPLETE SUBSTITUTE FOR THE ACT OF JUNE 4. UNDER ITS PROVISIONS THE WIDOW AND CHILDREN ARE ENTITLED TO THE GRATUITY BY THE MERE FACT OF RELATIONSHIP TO THE DECEASED. 1930: THERE IS FOR CONSIDERATION SETTLEMENT NO. 0266922. SURFMAN OLDENBERG WAS ON THE ACTIVE LIST OF THE COAST GUARD AND SERVING UNDER REGULAR ENLISTMENT. THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. THE CLAIM WAS DENIED BECAUSE THE RECORDS APPEARED TO SHOW THAT THE DECEASED LEFT A WIDOW. PROVIDES: WHEN A JUDGMENT OF DIVORCE FROM THE BONDS OF MATRIMONY IS GRANTED. SHALL BE DEEMED TO HAVE ENTIRELY SEVERED THE MARRIAGE RELATION IMMEDIATELY BEFORE SUCH DEATH. * * * UNDER THIS PROVISION. THE MARRIAGE RELATION OF LAURA OLDENBERG AND THE LATE CARL OLDENBERG WAS SEVERED IMMEDIATELY BEFORE THE LATTER'S DEATH.

A-32213, AUGUST 19, 1930, 10 COMP. GEN. 78

GRATUITIES, SIX MONTHS' DEATH - COAST GUARD ENLISTED MAN THE ACT OF MAY 22, 1928, 45 STAT. 710, AUTHORIZING PAYMENT OF A SIX MONTHS' DEATH GRATUITY "TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR CHILDREN" OF DECEASED OFFICERS OR ENLISTED MEN OF THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD, IS A COMPLETE SUBSTITUTE FOR THE ACT OF JUNE 4, 1920, 41 STAT. 824, AND UNDER ITS PROVISIONS THE WIDOW AND CHILDREN ARE ENTITLED TO THE GRATUITY BY THE MERE FACT OF RELATIONSHIP TO THE DECEASED, AND WITHOUT REGARD TO AGE, PREVIOUS DESIGNATION, OR DEPENDENCY. 4 COMP. GEN. 554, DISTINGUISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 19, 1930:

THERE IS FOR CONSIDERATION SETTLEMENT NO. 0266922, DATED SEPTEMBER 19, 1929, WHICH DISALLOWED THE CLAIMS OF HAROLD OLDENBERG, HAZEL OLDENBERG MOLITOR, AND MARGURETTE OLDENBERG ROTH, CHILDREN OF CARL AUGUST OLDENBERG, LATE SURFMAN, UNITED STATES COAST GUARD, WHO DIED MAY 8, 1929, FOR SIX MONTHS' DEATH GRATUITY PAY ON ACCOUNT OF THE DEATH OF THEIR FATHER.

THE RECORDS SHOW THAT, AT THE TIME OF HIS DEATH, SURFMAN OLDENBERG WAS ON THE ACTIVE LIST OF THE COAST GUARD AND SERVING UNDER REGULAR ENLISTMENT, AND THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. THE CLAIM WAS DENIED BECAUSE THE RECORDS APPEARED TO SHOW THAT THE DECEASED LEFT A WIDOW.

UNDER DATE OF JUNE 14, 1928, THE CIRCUIT COURT OF MILWAUKEE COUNTY, STATE OF WISCONSIN, ENTERED A JUDGMENT AWARDING LAURA OLDENBERG A DIVORCE FROM THE LATE CARL OLDENBERG. THE DECREE CONTAINED A PROVISION AS FOLLOWS:

* * * THAT THIS JUDGMENT SO FAR AS IT DETERMINES THE STATUS OF THE PARTIES SHALL NOT BE EFFECTIVE, EXCEPT FOR THE PURPOSE OF AN APPEAL TO REVIEW THE SAME UNTIL THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE ENTRY OF SAME.

THE RESPONDENT DIED MAY 8, 1929, WITHIN ONE YEAR FROM THE DATE OF ENTRY OF THE DECREE, AND ON THESE FACTS IT APPEARED THAT THE DECREE NEVER BECAME EFFECTIVE. HOWEVER, SECTION 2374, 247.37 REVISED STATUTES OF WISCONSIN, PROVIDES:

WHEN A JUDGMENT OF DIVORCE FROM THE BONDS OF MATRIMONY IS GRANTED, SO FAR AS IT AFFECTS THE STATUS OF THE PARTIES IT SHALL NOT BE EFFECTIVE UNTIL THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE ENTRY OF SUCH JUDGMENT; EXCEPTING THAT IT SHALL IMMEDIATELY BAR THE PARTIES FROM COHABITATION TOGETHER AND THAT IT MAY BE REVIEWED ON APPEAL DURING SAID PERIOD. BUT IN CASE EITHER PARTY DIES WITHIN SAID PERIOD SUCH JUDGMENT, UNLESS VACATED OR REVERSED, SHALL BE DEEMED TO HAVE ENTIRELY SEVERED THE MARRIAGE RELATION IMMEDIATELY BEFORE SUCH DEATH. * * *

UNDER THIS PROVISION, THE MARRIAGE RELATION OF LAURA OLDENBERG AND THE LATE CARL OLDENBERG WAS SEVERED IMMEDIATELY BEFORE THE LATTER'S DEATH, AND HE LEFT NO WIDOW TO WHOM THE GRATUITY MAY BE PAID. OF THE THREE CHILDREN CLAIMING, ONE, MARGURETTE OLDENBERG ROTH, WAS UNDER 21 YEARS OF AGE AND UNMARRIED WHEN HER FATHER DIED, AND THE OTHERS WERE OVER 21 YEARS OF AGE AND DISCLAIM DEPENDENCE ON THEIR FATHER AT DATE OF HIS DEATH. QUESTION ARISES WHETHER THE CLAIMANTS OVER 21 YEARS OLD AND NOT DEPENDENT ON THE DECEASED ARE ENTITLED TO ANY PART OF THE GRATUITY.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, PROVIDED:

THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * *

THIS ACT WAS AMENDED AND REENACTED BY THE ACT OF MAY 22, 1928, 45 STAT. 710, TO READ AS OLLOWS:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. 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. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE NAVY AND PAY OF THE MARINE CORPS, RESPECTIVELY: PROVIDED, THAT IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF THE NAVY SHALL CAUSE THE AMOUNT HEREIN PROVIDED TO BE PAID TO ANY GRANDPARENT, PARENT, SISTER, OR BROTHER SHOWN TO HAVE BEEN ACTUALLY DEPENDENT UPON SUCH OFFICER, ENLISTED MAN, OR NURSE PRIOR TO HIS OR HER DEATH, AND THE DETERMINATION OF SUCH FACT BY THE SECRETARY OF THE NAVY SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT: PROVIDED, THAT NOTHING IN THIS SECTION OR IN OTHER EXISTING LEGISLATION SHALL BE CONSTRUED AS MAKING THE PROVISIONS OF THIS SECTION APPLICABLE TO OFFICERS, ENLISTED MEN, OR NURSES OF ANY FORCES OF THE NAVY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR NAVY AND MARINE CORPS, AND NOTHING IN THIS SECTION SHALL BE CONSTRUED TO APPLY IN COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT OR PROBATIONARY APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD, AND THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY.

IN DECISION 4 COMP. GEN. 554, IT WAS SUGGESTED THAT THE PROVISION IN THE ACT OF MARCH 2, 1923, 42 STAT. 1385, RELATING TO THE SIX MONTHS' PAY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, 41 STAT. 367 (PROVIDING A SIX MONTHS' PAY GRATUITY FOR RELATIVES OF DECEASED ARMY PERSONNEL), AND WHICH PROHIBITS PAYMENT THEREOF TO "ANY MARRIED CHILD OR UNMARRIED CHILD OVER 21 YEARS OF AGE * * * WHO IS NOT ACTUALLY A DEPENDENT OF SUCH DECEASED OFFICER OR ENLISTED MAN," WAS APPLICABLE TO PAYMENT OF THE GRATUITY PROVIDED IN THE ACT OF JUNE 4, 1920, 41 STAT. 824, TO BE PAID "TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN" OF DECEASED OFFICERS, ENLISTED MEN, OR NURSES ON THE ACTIVE LIST OF THE REGULAR NAVY.

THE ACT OF MAY 22, 1928, IS A COMPLETE SUBSTITUTE FOR THE ACT OF JUNE 4, 1920. NEITHER OF THESE ACTS PRESCRIBES ANY AGE LIMITATION TO THE CHILD OR CHILDREN TO WHOM SUCH GRATUITY IS PAYABLE AS IS PROVIDED IN THE ARMY ACT OF MARCH 2, 1923. IN VIEW OF THE FACT THAT THIS LATER NAVY ACT, ENACTED SUBSEQUENTLY TO THE ARMY ACT, PLACES NO LIMITATION ON THE AGE OF THE CHILD OR CHILDREN AUTHORIZED TO RECEIVE THE SIX MONTHS' GRATUITY PAY, AND ESPECIALLY IN VIEW OF THE INCLUSION OF THE MATTER CONTAINED IN THE FIRST PROVISO WHICH WOULD EXCLUDE A DEPENDENT MARRIED OR ADULT CHILD IF NOT DESIGNATED AS A DEPENDENT RELATIVE, THE SUGGESTION IN 4 COMP. GEN. 554, THAT BY REASON OF THE ARMY ACT OF 1923 (WHICH IS APPLICABLE SOLELY TO THE ARMY PERSONNEL) THE AUTHORIZATION OF SUCH GRATUITY PAY, WITHOUT EVIDENCE OF DEPENDENCY OF THE BENEFICIARY IS LIMITED TO THE WIDOW AND UNMARRIED MINOR CHILDREN OF THE NAVY PERSONNEL, IS NOT NOW TENABLE.

IT IS THEREFORE CONCLUDED THAT UNDER THE ACT OF MAY 22, 1928, 45 STAT. 710, THE "WIDOW, CHILD, OR CHILDREN" ARE ENTITLED TO PAYMENT OF THE GRATUITY PAY BY THE MERE FACT OF THEIR RELATIONSHIP TO THE DECEASED, AND WITHOUT REGARD TO AGE, PREVIOUS DESIGNATION OR DEPENDENCY.

UPON REVIEW, THE SETTLEMENT IS MODIFIED AND AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE CARL AUGUST OLDENBERG, LATE SURFMAN, UNITED STATES COAST GUARD, WAS RECEIVING AT DATE OF HIS DEATH, MAY 8, 1929, OR $540, IS CERTIFIED DUE THE THREE CLAIMANTS, AND SETTLEMENT WILL BE MADE ALLOWING THEM $180 EACH.