B-113558, MAR 17, 1953

B-113558: Mar 17, 1953

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USMC: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THE VOUCHER IS STATED IN FAVOR OF DEE S. WAS PAID TO HIS MOTHER DURING NOVEMBER 1951. ADDITIONAL GRATUITY IN THE AMOUNT OF $270 BECAME DUE IN THIS CASE AND THAT A CHECK THEREFOR WAS DRAWN OCTOBER 15. WAS RETURNED BY THE FATHER WITH EVIDENCE THAT THE MOTHER HAD DIED ON JUNE 28. YOU EXPRESS DOUBT AS TO WHETHER THE ADDITIONAL GRATUITY IS PAYABLE TO THE ESTATE OF THE MOTHER OR TO THE SURVIVING FATHER AS ALTERNATE BENEFICIARY. THE UNDERSCORED PROVISIONS OF SECTION 1 OF THE STATUTE AND SECTION 2 THEREOF WERE ADDED BY THE SAID ACT OF MARCH 29. THE PURPOSE OF SUCH PROVISIONS IS STATED IN THE REPORT OF THE COMMITTEE ON NAVAL AFFAIRS OF THE SENATE.

B-113558, MAR 17, 1953

PRECIS-UNAVAILABLE

MAJOR JAMES W. ELDRIDGE, USMC:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1953, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, COVERING AN ADDITIONAL PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE LATE WILBURN D. BUCKNER, PRIVATE FIRST CLASS, UNITED STATES MARINE CORPS RESERVE, SERIAL NO. 1043933. THE VOUCHER IS STATED IN FAVOR OF DEE S. BUCKNER, ROUTE NO. 12, KNOXVILLE, TENNESSEE, THE DECEDENT'S FATHER AND ALTERNATE BENEFICIARY.

IT APPEARS THAT THIS ENLISTED MAN HAD DESIGNATED HIS MOTHER, MARGARET L. BUCKNER, AS PRINCIPAL BENEFICIARY AND HIS FATHER, DEE S. BUCKNER, AS ALTERNATE BENEFICIARY, FOR PURPOSES OF THE SIX MONTHS' DEATH GRATUITY PAYMENT; AND THAT FOLLOWING THE ENLISTED MAN'S DEATH ON SEPTEMBER 12, 1951, A DEATH GRATUITY IN THE AMOUNT OF $543 REPRESENTED AS EQUAL TO SIX TIMES THE MONTHLY RATE OF PAY PAYABLE AT DATE OF HIS DEATH, WAS PAID TO HIS MOTHER DURING NOVEMBER 1951. IT FURTHER APPEARS THAT BY VIRTUE OF RETROACTIVE PROVISIONS OF THE COMBAT DUTY PAY ACT OF 1952, 66 STAT. 538, ADDITIONAL GRATUITY IN THE AMOUNT OF $270 BECAME DUE IN THIS CASE AND THAT A CHECK THEREFOR WAS DRAWN OCTOBER 15, 1952, IN FAVOR OF THE MOTHER. SUCH CHECK, HOWEVER, WAS RETURNED BY THE FATHER WITH EVIDENCE THAT THE MOTHER HAD DIED ON JUNE 28, 1952. YOU EXPRESS DOUBT AS TO WHETHER THE ADDITIONAL GRATUITY IS PAYABLE TO THE ESTATE OF THE MOTHER OR TO THE SURVIVING FATHER AS ALTERNATE BENEFICIARY.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED BY THE ACT OF MARCH 29, 1944, 58 STAT. 129, PROVIDES, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

"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. *** AND PROVIDED FURTHER, THAT IN THE EVENT OF THE DEATH OF ANY BENEFICIARY BEFORE PAYMENT TO AND COLLECTION BY SUCH BENEFICIARY OF THE AMOUNT AUTHORIZED HEREIN, SUCH AMOUNT SHALL BE PAID TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION ABOVE STATED.

"SEC. 2. NOTHING CONTAINED IN SECTION 1 OF THIS ACT SHALL BE CONSTRUED TO INVALIDATE OR IN ANY MANNER AFFECT ANY PAYMENTS OF THE SIX MONTHS' DEATH GRATUITY MADE PRIOR TO THE DATE OF APPROVAL OF THIS ACT, BUT NO PAYMENT OF SUCH GRATUITY SHALL HEREAFTER BE MADE TO THE REPRESENTATIVE OF THE ESTATE OF A BENEFICIARY WHO DIED PRIOR TO SUCH APPROVAL."

THE UNDERSCORED PROVISIONS OF SECTION 1 OF THE STATUTE AND SECTION 2 THEREOF WERE ADDED BY THE SAID ACT OF MARCH 29, 1944, AND THE PURPOSE OF SUCH PROVISIONS IS STATED IN THE REPORT OF THE COMMITTEE ON NAVAL AFFAIRS OF THE SENATE, ON THE BILL, S. 1428, WHICH BECAME THAT ACT, SENATE REPORT NO. 613, DATED DECEMBER 17, 1943, IN PART, AS FOLLOWS (U.S.C. CONG. SERVICE, 1944, P. 997):

"THE PURPOSE OF THE BILL IS TO AMEND THE ACT OF JUNE 4, 1920 (41 STAT. 824), AS AMENDED BY THE ACT OF MAY 22, 1928 (45 STAT. 710), AND BY THE ACT OF MARCH 7, 1942 (56 STAT. 146; 34 U.S.C. SUPP. 943) SO AS TO INSURE THAT THE 6 MONTHS' GRATUITY THEREIN PROVIDED IS PAID TO BENEFICIARIES PROVIDED FOR IN THE LAW AND NOT TO THE ESTATES OF DECEASED BENEFICIARIES.

"IN THE CASE OF CAMPBELL, ADMINISTRATOR OF SPOTSWOOD V. THE UNITED STATES (80 C. CLS. 836) THE COURT, INTERPRETING A SIMILAR LAW PROVIDING FOR THE PAYMENT OF A SIMILAR GRATUITY TO THE BENEFICIARIES OF OFFICERS AND ENLISTED MEN OF THE ARMY, HELD THAT WHERE THE BENEFICIARY, SUBSEQUENT TO THE DEATH OF THE PERSON IN THE ARMY, DIES PRIOR TO THE PAYMENT OF THE GRATUITY TO SUCH BENEFICIARY, THE RIGHT OF ACTION ON A CLAIM FOR PAYMENT OF THE GRATUITY PASSES TO THE LEGAL REPRESENTATIVE, WHO CAN PROSECUTE IT TO JUDGMENT. THE COMPTROLLER GENERAL OF THE UNITED STATES IN A DECISION RENDERED TO THE SECRETARY OF THE NAVY ON FEBRUARY 2, 1943 (22 COMP. GEN. 736), RULES THAT THE SPOTSWOOD CASE CONTROLS AS TO THE LAW RELATING TO PAYMENT OF THE 6 MONTHS' DEATH GRATUITY IN THE CASE OF NAVAL PERSONNEL. THE RESULT OF THESE DECISIONS IS THAT FUNDS PROVIDED BY LAW FOR PAYMENT TO WIDOWS, CHILDREN, AND DEPENDENT RELATIVES OF DECEASED MEMBERS OF THE ARMED SERVICES MAY GO THE ESTATES OF CERTAIN OF THE BENEFICIARIES WHERE THEY ARE SUBJECT TO CLAIMS OF CREDITORS OF SUCH ESTATES, AND TO THE PAYMENT OF THE DEBTS OF THE DECEASED BENEFICIARY INSTEAD OF GOING TO THE NEXT BENEFICIARY IN THE LINE OF SUCCESSION PRESCRIBED BY THE LAW. IT IS BELIEVED THAT SUCH A DISPOSITION OF THE GRATUITY WAS NOT INTENDED BY THE CONGRESS AND THE BILL IS DESIGNED TO CORRECT THE EFFECT OF THE ABOVE INTERPRETATIONS OF THE LAW."

PLAINLY THE ABOVE-QUOTED STATUTORY PROVISIONS AUTHORIZE PAYMENT OF THE GRATUITY TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION FIXED THEREIN AND PROHIBIT PAYMENT TO THE REPRESENTATIVE OF THE ESTATE OF A DECEASED BENEFICIARY. ALSO, IT SEEMS CLEAR THAT THE CONGRESS INTENDED SUCH AUTHORIZATION AND PROHIBITION TO APPLY IN EVERY CASE WHETHER THE PAYMENT CONCERNED CONSISTS OF THE FULL AMOUNT DUE OR ONLY A PORTION THEREOF.

ACCORDINGLY, PAYMENT ON THE VOUCHER WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.