A-93251, APRIL 15, 1938, 17 COMP. GEN. 843

A-93251: Apr 15, 1938

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THE PROPER RECOGNITION OF ONE UNDER THE PROCEDURE IN EFFECT AT THE TIME SUCH ACTION WAS TAKEN SHALL BE EXCLUSIVE OF THE RIGHTS OF ALL OTHER PERSONS IN THE SAME PARENTAL LINE AND NO OTHER PERSON IN THE SAME PARENTAL LINE WILL THEREAFTER BE ENTITLED TO BENEFITS AS FATHER OR MOTHER. IS A MATTER FOR THE CONSIDERATION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS. IS AS FOLLOWS: RECENTLY I APPOINTED A COMMITTEE FOR THE PURPOSE OF CONSIDERING THE ESTABLISHMENT OF A GENERAL RULE APPLICABLE TO ALL BENEFITS FOR THE RECOGNITION OF PARENTS WHERE THERE IS MORE THAN ONE PERSON IN THE SAME PARENTAL LINE WHO MAY BE ENTITLED TO THE BENEFITS UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION. THE PROPER RECOGNITION OF ONE UNDER THE PROCEDURE IN EFFECT AT THE TIME SUCH ACTION WAS TAKEN SHALL BE EXCLUSIVE OF THE RIGHTS OF ALL OTHER PERSONS IN THE SAME PARENTAL LINE AND NO OTHER PERSON IN THE SAME PARENTAL LINE WILL THEREAFTER BE ENTITLED TO BENEFITS AS FATHER OR MOTHER.'.

A-93251, APRIL 15, 1938, 17 COMP. GEN. 843

VETERANS' ADMINISTRATION - VETERANS' BENEFITS - ESTABLISHMENT OF GENERAL RULE FOR RECOGNITION OF PARENTS THE ESTABLISHMENT OF A GENERAL RULE APPLICABLE TO COMPENSATION, PENSION, INSURANCE, OR ADJUSTED COMPENSATION BENEFITS CONFERRED UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, TO PROVIDE THAT "WHERE * * * MORE THAN ONE PERSON IN A PARENTAL LINE MAY BE RECOGNIZED AS FATHER OR MOTHER, THE PROPER RECOGNITION OF ONE UNDER THE PROCEDURE IN EFFECT AT THE TIME SUCH ACTION WAS TAKEN SHALL BE EXCLUSIVE OF THE RIGHTS OF ALL OTHER PERSONS IN THE SAME PARENTAL LINE AND NO OTHER PERSON IN THE SAME PARENTAL LINE WILL THEREAFTER BE ENTITLED TO BENEFITS AS FATHER OR MOTHER," ALTHOUGH CONTRARY TO THE LONG ESTABLISHED PROCEDURE AS TO CERTAIN OF THESE BENEFITS, IS A MATTER FOR THE CONSIDERATION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, BUT THE GENERAL ACCOUNTING OFFICE DOES NOT FEEL JUSTIFIED IN AGREEING TO A CHANGE IN THE LONG-EXISTING RULE APPLICABLE TO ADJUSTED COMPENSATION DEPENDENCY BENEFITS, REGARDLESS OF WHAT ACTION MAY BE LEGALLY TAKEN AS TO THE OTHER CLASSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 15, 1938:

YOUR LETTER OF MARCH 8, 1938, IS AS FOLLOWS:

RECENTLY I APPOINTED A COMMITTEE FOR THE PURPOSE OF CONSIDERING THE ESTABLISHMENT OF A GENERAL RULE APPLICABLE TO ALL BENEFITS FOR THE RECOGNITION OF PARENTS WHERE THERE IS MORE THAN ONE PERSON IN THE SAME PARENTAL LINE WHO MAY BE ENTITLED TO THE BENEFITS UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION.

THE COMMITTEE, AFTER CAREFULLY CONSIDERING THE SUGGESTIONS CONTAINED IN VARIOUS MEMORANDA ON THE SUBJECT AS TO THE RULES TO BE FOLLOWED, RECOMMENDED THE ADOPTION OF THE FOLLOWING RULE:

"WHERE, UNDER THE LAWS GRANTING BENEFITS (COMPENSATION, PENSION, INSURANCE, OR ADJUSTED COMPENSATION), MORE THAN ONE PERSON IN A PARENTAL LINE MAY BE RECOGNIZED AS FATHER OR MOTHER, THE PROPER RECOGNITION OF ONE UNDER THE PROCEDURE IN EFFECT AT THE TIME SUCH ACTION WAS TAKEN SHALL BE EXCLUSIVE OF THE RIGHTS OF ALL OTHER PERSONS IN THE SAME PARENTAL LINE AND NO OTHER PERSON IN THE SAME PARENTAL LINE WILL THEREAFTER BE ENTITLED TO BENEFITS AS FATHER OR MOTHER.'

IN RECOMMENDING THE ADOPTION OF THIS RULE THE COMMITTEE INVITED MY ATTENTION TO THE FACT THAT YOUR OFFICE IN THE PREAUDIT OF ADJUSTED COMPENSATION BENEFIT CLAIMS HAS DEFINITELY EXPRESSED THE VIEW THAT FOR THE PURPOSE OF AWARDING ADJUSTED COMPENSATION BENEFITS UNDER SECTION 601 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, THE ENTITLEMENT OF ALL PERSONS WHO MAY BE RECOGNIZED AS A MOTHER (NATURAL, FOSTER, STEP, OR ADOPTED) MUST BE DISPOSED OF BEFORE CONSIDERATION CAN BE GIVEN TO A CLAIM ON BEHALF OF A FATHER. IN VIEW OF THIS FACT, THE COMMITTEE SUGGESTED THAT A CONFERENCE BE ARRANGED WITH YOUR OFFICE, BEFORE THE ADOPTION AND PROMULGATION OF THE RECOMMENDED RULE, FOR THE PURPOSE OF ASCERTAINING YOUR REACTION THERETO IN THE ADJUDICATION OF ADJUSTED COMPENSATION BENEFIT CLAIMS.

ACCORDINGLY, YOUR VIEWS AS TO THE ADOPTION OF THE PROPOSED UNIFORM RULE ARE RESPECTFULLY REQUESTED. IN THE EVENT YOU BELIEVE THAT A CONFERENCE WOULD BE ADVANTAGEOUS, I WOULD BE PLEASED TO HAVE REPRESENTATIVES OF THIS OFFICE CONFER WITH REPRESENTATIVES OF YOUR OFFICE ON THIS SUBJECT AT SUCH TIME AND PLACE AS YOU MAY SUGGEST.

THE PROPOSED RULE WOULD CHANGE THE RULE THAT HAS PREVAILED FOR 18 YEARS IN DETERMINING THE CLAIMANTS WHO WILL BE RECOGNIZED AS THE CLAIMANT ENTITLED TO AUTOMATIC INSURANCE BENEFITS AND UNDER WHICH ADJUSTED COMPENSATION DEPENDENCY BENEFITS ALSO HAVE BEEN PAID SINCE THE FIRST OF APRIL 1925. THE QUESTION WAS FIRST PRESENTED IN THE CONSTRUCTION AND APPLICATION TO BE GIVEN SUBDIVISION (4A) OF SECTION 4 OF THE ACT OF DECEMBER 24, 1919, 41 STAT. 371, AMENDING THE WAR RISK INSURANCE ACT, WHICH PROVIDES AS FOLLOWS:

(4A) THE TERMS "FATHER" AND "MOTHER" INCLUDE STEPFATHERS AND STEPMOTHERS, FATHERS AND MOTHERS THROUGH ADOPTION, AND PERSONS WHO HAVE STOOD IN LOCO PARENTIS TO A MEMBER OF THE MILITARY OR NAVAL FORCES AT ANY TIME PRIOR TO HIS ENLISTMENT OR INDUCTION FOR A PERIOD OF NOT LESS THAN ONE YEAR: PROVIDED, THAT THIS SUBDIVISION SHALL BE DEEMED TO BE IN EFFECT AS OF OCTOBER 6, 1917.

THIS PROVISION OF THE WAR RISK INSURANCE ACT WAS REENACTED AS PARAGRAPH (5) OF SECTION 3 OF THE WORLD WAR VETERANS' ACT, 1924, 43 STAT. 607, AND IS THE CONTROLLING STATUTE FOR APPLICATION NOW IN DETERMINING THE RIGHTS AS BETWEEN PARENTS TO AUTOMATIC INSURANCE PAYMENTS UNDER THE PROVISIONS OF SECTION 401 OF THE WAR RISK INSURANCE ACT, AS AMENDED BY THE ACT OF DECEMBER 24, 1919, 41 STAT. 375, WHICH STATUTE GIVES PREFERENCE TO THE MOTHER OVER THE FATHER FOR THESE BENEFITS. IN CONSIDERING THE EFFECT TO BE GIVEN THE PROVISIONS OF SUBDIVISION (4A) OF SECTION 4 OF THE ACT OF DECEMBER 24, 1919, SUPRA, THE COMPTROLLER OF THE TREASURY HELD IN DECISION OF AUGUST 16, 1920, 27 COMP. DEC. 165, THAT THE FATHER WOULD TAKE AUTOMATIC INSURANCE PAYMENTS NEXT AFTER THE MOTHER, ALTHOUGH THE VETERAN WAS SURVIVED BY A MATERNAL GRANDMOTHER WHO HAD STOOD IN LOCO PARENTIS TO THE VETERAN, AND WHO WAS THEREFORE A "MOTHER" WITHIN THE MEANING OF THAT TERM AS DEFINED IN THE STATUTE. THIS DECISION WAS MODIFIED BY DECISION DATED SEPTEMBER 24, 1920, 27 COMP. DEC. 281, IN WHICH THE RULE WAS ADOPTED THAT THE ENTIRE MATERNAL LINE INCLUDED IN THE DEFINITION OF "MOTHER" WOULD TAKE THE BENEFITS PAYABLE BEFORE PAYMENT COULD BE MADE TO ANY PARENT IN THE PATERNAL LINE, THE SYLLABUS OF THE DECISION READING AS FOLLOWS:

IN DETERMINING THE ORDER OF PRECEDENCE OF SURVIVING BENEFICIARIES OF DECEASED SOLDIERS WHO HAVE BEEN GRANTED AUTOMATIC INSURANCE, THE WAR RISK INSURANCE ACT, AS AMENDED BY THE ACT OF DECEMBER 24, 1919, 41 STAT. 375, MAY BE CONSTRUED SO AS TO GIVE THE ENTIRE MATERNAL LINE OF SURVIVORSHIP PRECEDENCE OVER THE ENTIRE PATERNAL LINE, INCLUDING THE FATHER OF THE DEAD SOLDIER; BUT, IN THE ABSENCE OF LEGISLATION GRANTING THE BUREAU OF WAR RISK INSURANCE DISCRETION IN INDIVIDUAL CASES, ANY SUCH RULE OF CONSTRUCTION BY THE BUREAU MUST BE FIXED AND NOT DEVIATED FROM ACCORDING TO THE EQUITIES OR SUPPOSED EQUITIES OF INDIVIDUAL CASES.

THE RULE WAS ALSO DISCUSSED AND APPLIED IN THE DECISION OF THIS OFFICE, A -29812, DATED DECEMBER 19, 1929, IN THE AUTOMATIC INSURANCE CASE OF LESTER J. CALDWELL, XC-132,309, WHEREIN TWO FOSTER-MOTHERS WERE GIVEN PREFERENCE OVER THE FOSTER-FATHER AND THE NATURAL FATHER ON THE BASIS OF THE RULE THAT THE ENTIRE MATERNAL LINE WOULD TAKE PRECEDENCE OVER ANY CLAIMANT IN THE PATERNAL LINE. IT WAS ALSO STATED IN THE DECISION THAT---

* * * AS THE MATTER OF AUTOMATIC INSURANCE IS NOT NOW CURRENT BUT WAS ONLY A TEMPORARY MEASURE, THERE WOULD BE NO SOUND REASON FOR NOW DISTURBING THE RULE THUS ANNOUNCED AND THE PRACTICE ESTABLISHED THEREUNDER.

IT IS SUGGESTED, IN VIEW OF THE LONG PERIOD OF TIME THAT THIS RULE HAS BEEN IN FORCE, AND AS PRACTICALLY ALL CASES INVOLVING AUTOMATIC INSURANCE THAT WOULD BE AFFECTED APPARENTLY HAVE BEEN ADJUDICATED, NO GOOD PURPOSE WOULD APPEAR TO BE SERVED FOR DISTURBING THE RULE AT THIS TIME, SO FAR AS AUTOMATIC INSURANCE IS CONCERNED. HOWEVER, SECTION 5 OF THE ACT OF JULY 3, 1930, 46 STAT. 991, AMENDING THE WORLD WAR VETERANS' ACT VESTS IN THE ADMINISTRATOR OF VETERANS' AFFAIRS EXCLUSIVE AUTHORITY TO DETERMINE ALL QUESTIONS OF FACT AND LAW AFFECTING THE RIGHTS OF CLAIMANTS TO AUTOMATIC INSURANCE, PENSION, AND COMPENSATION BENEFITS. THEREFORE, THE MATTER OF WHETHER THERE SHALL BE ANY CHANGE IN THE RULE WHICH HAS HERETOFORE BEEN FOLLOWED AS TO AUTOMATIC INSURANCE WOULD SEEM TO BE A MATTER FOR THE DETERMINATION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS.

WITH RESPECT TO ADJUSTED COMPENSATION DEPENDENCY BENEFITS, SECTION 601 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 827, PROVIDES AN ORDER OF PREFERENCE WITH THE MOTHER BEFORE THE FATHER.

SECTION 607 (C) OF THE ORIGINAL ACT OF MAY 19, 1924, 43 STAT. 130,DEFINES THE TERMS "FATHER" AND "MOTHER" 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.

THE DEFINITION OF THE TERMS "FATHER" AND "MOTHER" AS CONTAINED IN THIS STATUTE IS SUBSTANTIALLY THE SAME AS THAT CONTAINED IN SUBSECTION (4A) OF THE ACT OF DECEMBER 24, 1919, 41 STAT. 371, SUPRA, AMENDING THE WAR RISK INSURANCE ACT, AND THEREFORE THE SAME RULE THAT APPLIED FOR DETERMINING CLAIMANTS AMONG FATHERS AND MOTHERS UNDER THE WAR RISK INSURANCE ACT HAS BEEN APPLIED IN MAKING PAYMENTS UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT. 15 COMP. GEN. 139, 141. ONLY PAYMENTS TO DEPENDENTS UNDER TITLE VI OF THE WORLD WAR ADJUSTED COMPENSATION ACT ARE AFFECTED BY THIS RULE AND THEN ONLY IN THOSE CASES IN WHICH THERE ARE TWO OR MORE PERSONS IN THE MATERNAL LINE WHO CAN QUALIFY AS A "MOTHER" AS THE TERM IS DEFINED IN THE STATUTE. PAYMENTS UNDER THIS TITLE OF THE ACT BEGAN ON APRIL 1, 1925, ALL OF WHICH HAVE BEEN PREAUDITED BY THIS OFFICE. AS SUBSTANTIALLY ALL CASES INVOLVING BENEFITS OF THIS TYPE HAVE NOW BEEN PAID, AND THE CASES AFFECTED DISPOSED OF UNDER THE RULE THAT THE ENTIRE MATERNAL LINE SHALL TAKE PRECEDENCE OVER THE PATERNAL LINE, IT WOULD SEEM THAT THE RULE, WHICH IS JUSTIFIED UNDER THE TERMS OF THE CONTROLLING STATUTE, SHOULD NOT NOW BE DISTURBED SO FAR AS ADJUSTED COMPENSATION IS CONCERNED AND A DIFFERENT RULE APPLIED TO THE FEW REMAINING CASES THAT MAY NOW REMAIN UNPAID.

AS TO COMPENSATION AND PENSION PAYMENTS, THE STATUTES AUTHORIZING THESE BENEFITS DO NOT PROVIDE FOR AN ORDER OF PREFERENCE BETWEEN THE FATHER AND THE MOTHER AS IN THE CASE OF AUTOMATIC INSURANCE AND ADJUSTED COMPENSATION DEPENDENCY BENEFITS, BUT BOTH THE FATHER AND THE MOTHER MAY BE PAID THESE BENEFITS CONCURRENTLY. THEREFORE, THE RULE THAT THE ENTIRE MATERNAL LINE MUST BE ELIMINATED BEFORE A CLAIMANT IN THE PATERNAL LINE MAY BE RECOGNIZED DOES NOT APPLY TO THESE BENEFITS.

IT WILL BE SEEN FROM A STUDY OF THE CONTROLLING VETERANS' STATUTES THAT THE CONGRESS IS AUTHORIZING THE PAYMENT OF BENEFITS TO DEPENDENTS HAS SET UP A DIFFERENT RULE FOR THE PAYMENT OF AUTOMATIC INSURANCE AND ADJUSTED COMPENSATION BENEFITS FROM THAT AUTHORIZING THE PAYMENT OF PENSIONS AND DEATH COMPENSATION. ACCORDINGLY, ANY LACK OF UNIFORMITY PREVAILING IN THE GRANTING OF THESE BENEFITS IS NOT THE RESULT OF ANY LACK OF UNIFORMITY IN THE CONSTRUCTION OR APPLICATION OF THE STATUTES INVOLVED, BUT IS THE RESULT OF THE RESPECTIVE TERMS OF THE STATUTES WHICH PROVIDE FOR A PRIORITY OF PREFERENCE IN THE RECOGNITION OF CLAIMANTS FOR AUTOMATIC INSURANCE AND ADJUSTED COMPENSATION BENEFITS, BUT DOES NOT PROVIDE FOR ANY SUCH PRIORITY OF PREFERENCE BETWEEN THE FATHER AND MOTHER FOR THE PAYMENT OF COMPENSATION OR PENSIONS.

IN VIEW OF THE FOREGOING IT MUST BE APPARENT THAT A CONFERENCE BETWEEN REPRESENTATIVES OF YOUR ADMINISTRATION AND OF THIS OFFICE TO DISCUSS THE MATTER COULD NOT ACCOMPLISH ANY ADVANTAGEOUS RESULTS. I HAVE ALSO TO ADVISE THAT IN THE CIRCUMSTANCES THIS OFFICE DOES NOT FEEL JUSTIFIED IN AGREEING TO A CHANGE OF THE LONG-EXISTING RULE WHICH IS AUTHORIZED BY THE CONTROLLING STATUTE ON THE BASIS OF WHICH PAYMENTS OF ADJUSTED COMPENSATION DEPENDENCY BENEFITS ARE NOW AUDITED, WHETHER OR NOT A DIFFERENT RULE MAY BE LEGALLY ADOPTED BY THE VETERANS' ADMINISTRATION AS TO OTHER CLASSES OF VETERANS' BENEFITS UNDER THE TERMS OF VETERANS' LEGISLATION OTHER THAN THE WORLD WAR ADJUSTED COMPENSATION ACT.