B-115170, JUL 16, 1953

B-115170: Jul 16, 1953

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH. THE VOUCHER IS STATED IN FAVOR OF MRS. IT APPEARS THAT WHILE SERGEANT ROSE'S WIFE WAS EXAMINING A GUN WHICH HE WISHED TO PURCHASE FROM A FELLOW ENLISTED MAN. THE GUN WAS DISCHARGED FATALLY WOUNDING HIM. NOR THE TESTIMONY GIVEN DURING THE CORONER'S HEARING CONTAINS ANY EVIDENCE INDICATING THAT A CONCLUSION OF OTHER THAN ACCIDENTAL DEATH MIGHT HAVE BEEN REACHED IN THIS CASE. PROVIDES THAT A PERSON WHO TAKES THE LIFE OF THE DECEASED IS NOT ELIGIBLE AS CLAIMANT OF THE GRATUITY. THIS IS SO EVEN THOUGH SUCH HEIR OR BENEFICIARY MAY BE FOUND NOT GUILTY BY A TRIAL JURY IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE.

B-115170, JUL 16, 1953

PRECIS-UNAVAILABLE

CAPTAIN C. L. CARDWELL, F.C., U.S. ARMY:

BY FIRST INDORSEMENT DATED MAY 11, 1953, FILE REFERENCE FINEE 247 ROSE, CLYDE W. (20 APRIL 53) RA 37 611 202, THE OFFICE OF THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF APRIL 20, 1953, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH, COVERING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE LATE CLYDE WILLIAM ROSE, SERGEANT, INFANTRY, RA 37 611 202. THE VOUCHER IS STATED IN FAVOR OF MRS. URSULA D. ROSE, THE DECEDENT'S WIDOW AND DESIGNATED BENEFICIARY.

IT APPEARS THAT WHILE SERGEANT ROSE'S WIFE WAS EXAMINING A GUN WHICH HE WISHED TO PURCHASE FROM A FELLOW ENLISTED MAN, THE GUN WAS DISCHARGED FATALLY WOUNDING HIM. IT FURTHER APPEARS THAT HAVING EXAMINED THE BODY AND HEARD THE TESTIMONY OF THE WITNESSES, THE CORONER OF JOHNSON COUNTY, INDIANA, FOUND THAT THE DECEDENT CAME TO HIS DEATH "BY REASON OF ACCIDENTAL MEANS WHEN SHOT ACCIDENTALLY." NEITHER THE TESTIMONY TAKEN DURING THE LINE OF DUTY INVESTIGATION, NOR THE TESTIMONY GIVEN DURING THE CORONER'S HEARING CONTAINS ANY EVIDENCE INDICATING THAT A CONCLUSION OF OTHER THAN ACCIDENTAL DEATH MIGHT HAVE BEEN REACHED IN THIS CASE.

PARAGRAPH 5B(2) ARMY REGULATIONS 35-1370, DATED SEPTEMBER 28, 1951, PROVIDES THAT A PERSON WHO TAKES THE LIFE OF THE DECEASED IS NOT ELIGIBLE AS CLAIMANT OF THE GRATUITY. IN SUCH CONNECTION IT UNIFORMLY HAS BEEN HELD TO BE AGAINST PUBLIC POLICY TO PERMIT THE PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION OR OTHER BENEFITS TO AN HEIR OR BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENTS BECOME DUE. A-13608, MAY 29, 1926; A-46506, MAY 9, 1933; A 60953, JUNE 12, 1935; 13 COMP. GEN. 72. AND THIS IS SO EVEN THOUGH SUCH HEIR OR BENEFICIARY MAY BE FOUND NOT GUILTY BY A TRIAL JURY IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE. AUSTIN V. UNITED STATES, 125 F. 2D 816; UNITED STATES V. KWASNIEWSKI, 91 F. SUPP. 847.

HOWEVER, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY HAS BEEN AUTHORIZED TO THE HEIR OR BENEFICIARY RESPONSIBLE FOR DEATH IN CASES WHERE THE RECORD CLEARLY ESTABLISHES THE ABSENCE OF ANY FELONIOUS INTENT. SINCE THE CORONER'S VERDICT OF DEATH "BY REASON OF ACCIDENTAL MEANS WHEN SHOT ACCIDENTALLY," AND THE EVIDENCE ADDUCED IN THE LINE OF OF ANY FELONIOUS INTENT IN CONNECTION WITH HIS DEATH, PAYMENT ON THE DUTY INVESTIGATION APPEAR CLEARLY TO ABSOLVE SERGEANT ROSE'S WIDOW VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.