A-64349, AUGUST 14, 1935, 15 COMP. GEN. 139

A-64349: Aug 14, 1935

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THE RELATIONSHIP OF STEPMOTHER TO A VETERAN EXISTING AT THE DATE OF HIS DEATH IS NOT AFFECTED BY THE SUBSEQUENT SEPARATION OF THE STEPMOTHER FROM THE FATHER OF THE VETERAN BUT SHE REMAINS THE PREFERRED DEPENDENT TO THE EXCLUSION OF THE FATHER IF SHE BECAME 60 YEARS OF AGE OR WAS OTHERWISE ABLE TO SHOW DEPENDENCY AT ANY TIME PRIOR TO JANUARY 3. 1935: THERE IS BEFORE THIS OFFICE FOR PREAUDIT ADMINISTRATIVELY APPROVED AWARD OF THE ADJUSTED-SERVICE CREDIT IN THE AMOUNT OF $542.50 AND THE $60 LUMP- SUM AWARD. HE WAS SURVIVED BY HIS FATHER. AT WHICH TIME THE VETERAN WAS ABOUT 9 YEARS OF AGE. THE VETERAN'S STEPMOTHER AND HIS FATHER WERE DIVORCED. WHICH CLAIM WAS DISALLOWED BY THE VETERANS' ADMINISTRATION ON JANUARY 11.

A-64349, AUGUST 14, 1935, 15 COMP. GEN. 139

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - STEPMOTHER AS PREFERRED DEPENDENT IN DETERMINING THE PREFERRED DEPENDENT ENTITLED TO A VETERAN'S ADJUSTED- SERVICE CREDIT AND $60 LUMP-SUM PAYMENT UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED, THE RELATIONSHIP OF STEPMOTHER TO A VETERAN EXISTING AT THE DATE OF HIS DEATH IS NOT AFFECTED BY THE SUBSEQUENT SEPARATION OF THE STEPMOTHER FROM THE FATHER OF THE VETERAN BUT SHE REMAINS THE PREFERRED DEPENDENT TO THE EXCLUSION OF THE FATHER IF SHE BECAME 60 YEARS OF AGE OR WAS OTHERWISE ABLE TO SHOW DEPENDENCY AT ANY TIME PRIOR TO JANUARY 3, 1935.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 14, 1935:

THERE IS BEFORE THIS OFFICE FOR PREAUDIT ADMINISTRATIVELY APPROVED AWARD OF THE ADJUSTED-SERVICE CREDIT IN THE AMOUNT OF $542.50 AND THE $60 LUMP- SUM AWARD, BASED ON THE MILITARY SERVICE OF THOMAS SIMPSON TATE, A- 2093316, XC-78748, IN FAVOR OF HIS FATHER, LEMUEL H. TATE.

THE VETERAN DIED IN THE SERVICE ON NOVEMBER 9, 1918, UNMARRIED AND WITHOUT ISSUE. HE WAS SURVIVED BY HIS FATHER, LEMUEL HALL TATE, AND A STEPMOTHER, VOLLIE ROBINSON TATE, WHO MARRIED HIS FATHER ON JULY 17, 1902, AT WHICH TIME THE VETERAN WAS ABOUT 9 YEARS OF AGE. DURING THE YEAR 1919 OR 1920, THE VETERAN'S STEPMOTHER AND HIS FATHER WERE DIVORCED. SEPTEMBER 17, 1924, THE FATHER FILED AN APPLICATION FOR THE VETERAN'S ADJUSTED-SERVICE CREDIT, WHICH CLAIM WAS DISALLOWED BY THE VETERANS' ADMINISTRATION ON JANUARY 11, 1926, BECAUSE THE CLAIMANT FAILED TO ESTABLISH DEPENDENCY. ON NOVEMBER 21, 1934, THE FATHER FILED A SECOND APPLICATION FOR THE ADJUSTED-SERVICE CREDIT AND THIS CLAIM WAS DISALLOWED BECAUSE THE FATHER WAS NOT THE PREFERRED DEPENDENT. NO APPLICATION HAS BEEN FILED BY THE STEPMOTHER AND AS THE TIME FOR FILING APPLICATIONS UNDER THE ACT EXPIRED ON JANUARY 2, 1935, SHE IS NOW BARRED. RECENTLY THE FATHER WHO IS NOW 69 YEARS OF AGE, REQUESTED THAT HIS CLAIM BE RECONSIDERED ON THE BASIS THAT HE WAS PRESUMED TO BE DEPENDENT UNDER SECTION 602 OF THE ACT, AND THAT THE STEPMOTHER IS REMOVED BECAUSE SHE FAILED TO FILE AN APPLICATION ON OR BEFORE JANUARY 2, 1935. THE BASIS FOR THE ADMINISTRATIVE AWARD IN FAVOR OF THE FATHER OF THE VETERAN SEEMS TO BE AN OPINION OF THE SOLICITOR OF THE VETERANS' ADMINISTRATION DATED MARCH 29, 1935, WHEREIN IT IS STATED AS FOLLOWS:

* * * IT APPEARS THAT THE MARITAL RELATIONSHIP BETWEEN THE VETERAN'S FATHER AND VOLLIE ROBINSON WAS TERMINATED BY A DIVORCE DECREE IN THE EARLY PART OF 1920, WHICH WAS PRIOR TO THE PASSAGE OF THE WORLD WAR ADJUSTED COMPENSATION ACT. UNDER SECTION 601 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, IF THERE ARE NO CHILDREN, WIDOW, OR MOTHER, PAYMENTS MAY BE MADE TO THE FATHER. SINCE THERE ARE NO CHILDREN OR WIDOW AND SINCE VOLLIE ROBINSON WAS DIVORCED FROM THE VETERAN'S FATHER PRIOR TO THE PASSAGE OF THE WORLD WAR ADJUSTED COMPENSATION ACT AND HAS NOT FILED AN APPLICATION FOR BENEFITS WITHIN THE TIME REQUIRED BY THIS ACT, IT FOLLOWS THAT THE FATHER'S CLAIM MAY BE CONSIDERED AT THIS TIME.

THIS VIEW APPEARS TO BE CONTRARY TO THAT EXPRESSED BY THE DIRECTOR OF INSURANCE IN LETTER DATED DECEMBER 27, 1934, AS FOLLOWS:

MRS. VOLLIE ROBINSON TATE WAS THE WIFE OF THE VETERAN'S FATHER, LEMUEL HALL TATE, AND THE STEPMOTHER OF THE VETERAN AT THE TIME OF THE VETERAN'SDEATH ON NOVEMBER 9, 1918. SHE WAS NOT DIVORCED FROM THE VETERAN'S FATHER UNTIL THE YEAR 1920, ACCORDING TO THE EVIDENCE PRESENTED TO THIS ADMINISTRATION. THEREFORE, MRS. VOLLIE ROBINSON TATE, HAVING STOOD IN THE RELATIONSHIP OF STEPMOTHER TO THE VETERAN AT THE TIME OF HIS DEATH, HER RIGHTS TO ADJUSTED COMPENSATION WERE NOT TERMINATED BY HER DIVORCE FROM THE VETERAN'S FATHER. SHE IS THEREFORE THE PREFERRED DEPENDENT IF NOW LIVING, AND THE FATHER'S CLAIM MAY NOT BE GIVEN FURTHER CONSIDERATION UNLESS PROOF OF THE DEATH OF VOLLIE ROBINSON TATE CAN BE FURNISHED.

SECTIONS 601 AND 608 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 828, 829, PROVIDE AS FOLLOWS:

SEC. 601. IF THE VETERAN HAS DIED BEFORE MAKING APPLICATION UNDER SECTION 302, OR, IF ENTITLED TO RECEIVE ADJUSTED-SERVICE PAY, HAS DIED AFTER MAKING APPLICATION BUT BEFORE HE HAS RECEIVED PAYMENT UNDER TITLE IV, THEN THE AMOUNT OF HIS ADJUSTED-SERVICE CREDIT SHALL (AS SOON AS PRACTICABLE AFTER RECEIPT OF AN APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 604, BUT NOT BEFORE MARCH 1, 1925) BE PAID TO HIS DEPENDENTS, IN THE FOLLOWING ORDER OF PREFERENCE:

(1) TO THE WIDOW;

(2) IF NO WIDOW ENTITLED TO PAYMENT, THEN TO THE CHILDREN, SHARE AND SHARE ALIKE;

(3) IF NO WIDOW OR CHILDREN ENTITLED TO PAYMENT, THEN TO THE MOTHER;

(4) IF NO WIDOW, CHILDREN, OR MOTHER, ENTITLED TO PAYMENT, THEN TO THE FATHER.

SEC. 608. IF THE VETERAN DIED WHILE IN THE SERVICE AND BEFORE JULY 1, 1919, AND IF AN ADJUSTED-SERVICE CREDIT HAS BEEN OR IS, AFTER THIS SECTION TAKES EFFECT, CERTIFIED TO THE DIRECTOR, THEN THE SUM OF $60 SHALL BE PAID IN A LUMP SUM TO THE DEPENDENTS OF SUCH VETERAN IN THE SAME MANNER AS IS PROVIDED IN SECTIONS 601 AND 602 OF THIS ACT.

SECTION 607 (C) OF THE ORIGINAL ACT OF MAY 19, 1924, 43 STAT. 130, PROVIDES AS FOLLOWS:

(C) THE TERMS "FATHER" AND "MOTHER" INCLUDE STEPFATHERS AND STEPMOTHERS, FATHERS AND MOTHERS THROUGH ADOPTION, AND PERSONS WHO HAVE, FOR A PERIOD OF NOT LESS THAN ONE YEAR, STOOD IN LOCO PARENTIS TO THE VETERAN AT ANY TIME PRIOR TO THE BEGINNING OF HIS SERVICE.

SECTION 602 (C) OF THE ACT, AS AMENDED BY THE ACTS OF MAY 29, 1928, 45 STAT. 948, AND JUNE 5, 1930, 46 STAT. 496, PROVIDES AS FOLLOWS:

(C) NO PAYMENT UNDER SECTION 601 SHALL BE MADE TO A MOTHER OR FATHER UNLESS DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND ON OR BEFORE JANUARY 2, 1935. IF AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND ON OR BEFORE JANUARY 2, 1935, THE MOTHER IS UNMARRIED OR OVER SIXTY YEARS OF AGE, OR THE FATHER IS OVER SIXTY YEARS OF AGE, SUCH MOTHER OR FATHER, RESPECTIVELY, SHALL BE PRESUMED TO BE DEPENDENT.

SECTION 604 (B) OF THE ACT, AS AMENDED BY THE SAME STATUTES WHICH AMENDED SECTION 602 (C), SUPRA, PROVIDES AS FOLLOWS:

(B) APPLICATIONS FOR SUCH BENEFITS, WHETHER VESTED OR CONTINGENT, SHALL BE MADE AND FILED BY THE DEPENDENTS OF THE VETERAN ON OR BEFORE JANUARY 2, 1935; EXCEPT THAT IN THE CASE OF THE DEATH OF THE VETERAN DURING THE SIX MONTHS IMMEDIATELY PRECEDING SUCH DATE THE APPLICATION SHALL BE MADE AND FILED AT ANY TIME WITHIN SIX MONTHS AFTER THE DEATH OF THE VETERAN. PAYMENTS UNDER THIS TITLE SHALL BE MADE ONLY TO DEPENDENTS WHO HAVE MADE AND FILED APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.

IT IS WELL SETTLED THAT THE ENTIRE MATERNAL LINE, INCLUDING A STEPMOTHER, TAKES PRECEDENCE OVER THE PATERNAL LINE. THE RELATIONSHIP OF STEPMOTHER TO A VETERAN EXISTING AT THE DATE OF HIS DEATH, IS NOT AFFECTED BY THE SUBSEQUENT SEPARATION OF THE STEPMOTHER FROM THE FATHER OF THE VETERAN, THAT IS, THE RELATION OF "STEPMOTHER" IS THE SAME AS "MOTHER" WITHIN THE MEANING OF THE STATUTE. IT IS THE RELATIONSHIP BETWEEN THE VETERAN AND THE BENEFICIARY AT THE DATE OF HIS DEATH, AND NOT AT THE DATE OF THE ORIGINAL STATUTE, AS SUGGESTED BY THE SOLICITOR OF THE VETERANS' ADMINISTRATION, WHICH CONTROLS THE DISPOSITION OF THE VETERAN'S ADJUSTED- SERVICE CREDIT AND THE LUMP-SUM PAYMENT OF $60.

OF COURSE, A CHANGE IN THE MARITAL STATUS OF THE STEPMOTHER AFTER THE DEATH OF THE VETERAN MAY HAVE PREVENTED HER FROM ESTABLISHING THE CONDITION OF DEPENDENCY REQUIRED BY THE LAW, SECTION 601 (C), AS AMENDED, SUPRA, BUT IF SHE WAS OVER 60 YEARS OF AGE AT ANY TIME PRIOR TO JANUARY 3, 1935, EVEN HER REMARRIAGE CONSTITUTED NO BAR TO HER RIGHT AS THE PREFERRED DEPENDENT UNDER THE STATUTE. THE RECORD DOES NOT DISCLOSE THE AGE OF THE STEPMOTHER OF THE VETERAN, BUT IN VIEW OF THE AGE OF THE FATHER, 69 YEARS, IT MAY NOT BE PRESUMED, IN THE ABSENCE OF ANY EVIDENCE TO THAT EFFECT, THAT THE STEPMOTHER DID NOT BECOME 60 YEARS OF AGE PRIOR TO JANUARY 3, 1935.

IN DECISION OF APRIL 3, 1930, 9 COMP. GEN. 427, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

IF A PREFERRED DEPENDENT OF A WORLD WAR VETERAN ESTABLISHES BOTH THE RELATIONSHIP AND THE CONDITION OF DEPENDENCY PRESCRIBED BY THE WORLD WAR ADJUSTED-COMPENSATION ACT, THE RIGHTS OF SUCH PREFERRED DEPENDENT TO THE ADJUSTED-SERVICE CREDIT BASED ON THE SERVICE OF THE VETERAN ARE EXCLUSIVE, AND THE MERE FAILURE OF SUCH A PREFERRED DEPENDENT TO FILE AN APPLICATION ON OR BEFORE JANUARY 2, 1930, DID NOT, ON JANUARY 3, 1930, VEST ANY RIGHTS UNDER THE STATUTE IN THE NEXT PREFERRED DEPENDENT WHO MIGHT OTHERWISE HAVE BEEN QUALIFIED AND WHO HAD FILED AN APPLICATION ON OR BEFORE JANUARY 2, 1930.

IF IT CAN BE ESTABLISHED BY SUFFICIENT EVIDENCE THAT THE PREFERRED DEPENDENT OF A WORLD WAR VETERAN, WHO HAS FAILED TO APPLY FOR THE ADJUSTED -SERVICE CREDIT BASED ON THE SERVICE OF THE VETERAN, COULD NOT HAVE BEEN QUALIFIED UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT EVEN IF APPLICATION HAD BEEN FILED ON OR BEFORE JANUARY 2, 1930, THEN THERE MAY BE RIGHTS FOR RECOGNITION IN THE NEXT PREFERRED DEPENDENT WHO HAS FULLY QUALIFIED AND FILED PROPER APPLICATION ON OR BEFORE JANUARY 2, 1930.

BY DECISION OF JUNE 28, 1935, A-30829, THE QUOTED DECISION WAS REVIEWED UPON YOUR REQUEST IN CONNECTION WITH THE STATUTORY EXTENSION TO JANUARY 3, 1935, FOR THE FILING OF CLAIMS FOR THESE BENEFITS, AND THE RULES STATED IN THE DECISION WERE AFFIRMED.

ACCORDINGLY, THE STEPMOTHER HAVING BEEN THE PREFERRED DEPENDENT UNDER THE STATUTE, ALTHOUGH SHE FILED NO APPLICATION PRIOR TO JANUARY 3, 1935, AND THE RECORD FAILING TO DISCLOSE HER DISQUALIFICATION, THIS OFFICE MAY NOT, ON THE BASIS OF THE RECORD PRESENTED, CERTIFY FOR PAYMENT THE ADMINISTRATIVELY APPROVED AWARD IN FAVOR OF THE FATHER.

IF, HOWEVER, THERE SHOULD BE FILED SATISFACTORY EVIDENCE THAT THE STEPMOTHER OF THE VETERAN DID NOT BECOME 60 YEARS OF AGE PRIOR TO JANUARY 3, 1935, AND WAS OTHERWISE DISQUALIFIED, THE MATTER WILL BE GIVEN FURTHER CONSIDERATION.