B-122066, APRIL 22, 1955, 34 COMP. GEN. 542

B-122066: Apr 22, 1955

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GRATUITIES - SIX MONTHS' DEATH - DISQUALIFICATION OF DESIGNATED BENEFICIARY A FOSTER PARENT OF THE MOTHER OF A DECEASED SERVICEMAN WHO WAS DESIGNATED AS "GRANDMOTHER" TO RECEIVE SIX MONTHS' DEATH GRATUITY. OR GRANDPARENT SHOWN TO HAVE BEEN ACTUALLY DEPENDENT UPON SUCH OFFICER. SUCH STATUTE AND SIMILAR STATUTORY PROVISIONS APPLICABLE TO THE OTHER BRANCHES OF THE ARMED FORCES ARE CONSIDERED AS INTENDED PRIMARILY TO PROVIDE BENEFITS IN THE NATURE OF LIFE INSURANCE FOR THE SUPPORT OF DEPENDENTS OF DECEASED SERVICE PERSONNEL AND THE TERM "DEPENDENT RELATIVE" HAS BEEN CONSTRUED BY THIS OFFICE IN THE BROAD SENSE OF THE LAW OF INSURANCE AS INCLUDING. IN ADDITION TO RELATIVES WHO ARE ACTUALLY DEPENDENT.

B-122066, APRIL 22, 1955, 34 COMP. GEN. 542

GRATUITIES - SIX MONTHS' DEATH - DISQUALIFICATION OF DESIGNATED BENEFICIARY A FOSTER PARENT OF THE MOTHER OF A DECEASED SERVICEMAN WHO WAS DESIGNATED AS "GRANDMOTHER" TO RECEIVE SIX MONTHS' DEATH GRATUITY, AND WHO STOOD IN LOCO PARENTIS TO THE DECEASED, DOES NOT QUALIFY AS A "DEPENDENT RELATIVE" FOR BENEFICIARY DESIGNATION PURPOSES UNDER THE ACT OF JUNE 4, 1920.

COMPTROLLER GENERAL CAMPBELL TO CAPTAIN JAMES M. WEIDNER, UNITED STATES MARINE CORPS, APRIL 22, 1955:

BY FIRST ENDORSEMENT DATED NOVEMBER 8, 1954, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF NOVEMBER 4, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF CARRIE G. FOSTER, AS DESIGNATED BENEFICIARY OF THE LATE PRIVATE FIRST CLASS EDWARD M. O CONNOR, 1286651, FOR $832.80 AS A DEATH GRATUITY OF SIX MONTHS' PAY UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943.

THE ACT OF JUNE 4, 1920, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM 34 U. S. C. 943):

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. 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 GRANDCHILD, PARENT, BROTHER OR SISTER, OR GRANDPARENT 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

. (ITALICS SUPPLIED.)

SUCH STATUTE AND SIMILAR STATUTORY PROVISIONS APPLICABLE TO THE OTHER BRANCHES OF THE ARMED FORCES ARE CONSIDERED AS INTENDED PRIMARILY TO PROVIDE BENEFITS IN THE NATURE OF LIFE INSURANCE FOR THE SUPPORT OF DEPENDENTS OF DECEASED SERVICE PERSONNEL AND THE TERM "DEPENDENT RELATIVE" HAS BEEN CONSTRUED BY THIS OFFICE IN THE BROAD SENSE OF THE LAW OF INSURANCE AS INCLUDING, IN ADDITION TO RELATIVES WHO ARE ACTUALLY DEPENDENT, THOSE PERSONS WHO BY REASON OF THEIR RELATIONSHIP TO THE DECEASED HAVE AN INSURABLE INTEREST IN HIM, THOUGH NOT ACTUALLY DEPENDENT. 22 COMP. GEN. 85; 23 COMP. GEN. 216; 24 COMP. GEN. 320; 30 COMP. GEN. 277. HOWEVER, AS POINTED OUT IN 22 COMP. GEN. 85, IT IS ONLY IN THE CASE OF MOTHERS, FATHERS, BROTHERS AND SISTERS, THAT WE MAY REGARD A SHOWING OF RELATIONSHIP ALONE AS SUFFICIENT TO ESTABLISH AN INSURABLE INTEREST.

THE RECORDS SHOW THAT THE DECEDENT WAS KILLED IN ACTION IN KOREA ON JULY 19, 1953; THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT; THAT HE IS SURVIVED BY HIS PARENTS, MR. AND MRS. JOHN E. O-CONNOR, ROUTE NO. 5, SPARTANBURG, SOUTH CAROLINA, AND SEVERAL BROTHERS, NONE OF WHOM APPEARS TO HAVE BEEN "ACTUALLY DEPENDENT" UPON HIM; AND THAT HE HAD DESIGNATED MRS. CARRIE G. FOSTER OF THE SAME ADDRESS, WHO HAD STOOD IN LOCO PARENTIS TO HIM FROM THE TIME HE WAS FOUR YEARS OF AGE, AS THE BENEFICIARY OF THE SIX MONTHS' DEATH GRATUITY PAYMENT, INDICATING THAT SHE WAS HIS GRANDMOTHER.

IT APPEARS THAT MRS. FOSTER WAS A DISTANT RELATIVE BY MARRIAGE AND THAT HER CLAIM AS ,GRANDMOTHER" IS PREDICATED UPON A WRITTEN INSTRUMENT EXECUTED DECEMBER 23, 1919, IN SPARTANBURG COUNTY, SOUTH CAROLINA, ENTITLED A " DEED-TO-CHILD," UNDER WHICH SHE AND HER HUSBAND HAD TAKEN OVER THE CARE AND CUSTODY OF THELMA FOSTER, WHO BECAME THE DECEDENT'S MOTHER. BY THE TERMS OF THAT AGREEMENT, THELMA'S FATHER COMMITTED THELMA'S CASE, CUSTODY, MAINTENANCE, EDUCATION AND SUPPORT DURING MINORITY, TO CARRIE FOSTER AND HER LATE HUSBAND, AND PURPORTED TO CONVEY TO THEM HIS RIGHTS, PRIVILEGES AND BENEFITS AS A PARENT. THEY, IN TURN, APPARENTLY AGREED TO ACCEPT RESPONSIBILITY FOR SUCH CARE, CUSTODY, MAINTENANCE, EDUCATION, AND SUPPORT AND TO MAKE THE "CHILD" EQUAL WITH THEIR OWN CHILDREN, IF ANY, IN THE DISTRIBUTION OF THEIR ESTATES. THAT INSTRUMENT, HOWEVER, DID NOT EFFECT THE LEGAL ADOPTION OF THELMA, THE DECEDENT'S MOTHER, BY CARRIE FOSTER AND HER HUSBAND ( HATCHELL ET AL. V. NORTON ET AL., 170 S.C. 272, 170 S.E. 341; SMITH V. ATLANTIC COAST LINE R. CO., 212 S.C. 332, 47 S.E. 2D 725) AND THE ONLY RELATIONSHIP CREATED BY THE AGREEMENT WOULD SEEM TO BE THAT OF FOSTER PARENTS AND FOSTER CHILD. SINCE THELMA WAS NOT CARRIE'S LEGAL CHILD, IT IS CLEAR THAT THELMA'S SON (THE DECEDENT) WAS NOT CARRIE'S LEGAL GRANDCHILD. CONSEQUENTLY, SHE HAS NO LEGAL CLAIM TO THE SIX MONTHS' DEATH GRATUITY ON THE GROUND THAT SHE IS THE GRANDMOTHER OF THE DECEDENT. MOREOVER, SINCE A GRANDPARENT ORDINARILY MAY NOT BE REGARDED AS HAVING AN INSURABLE INTEREST IN HIS GRANDCHILD BY VIRTUE OF RELATIONSHIP ALONE (22 COMP. GEN. 85), MRS. FOSTER, AS INDICATED BELOW, WOULD NOT APPEAR TO QUALIFY AS A "DEPENDENT RELATIVE" OF THE DECEDENT FOR BENEFICIARY DESIGNATION PURPOSES OF THE ACT OF JUNE 4, 1920, AS AMENDED, EVEN IF HIS MOTHER HAD BEEN LEGALLY ADOPTED BY HER AND UNDER PERTINENT STATE LAW MIGHT BE REGARDED AS HIS LEGAL GRANDMOTHER. COMPARE DECISION OF MAY 29, 1953, B-113147.

IT APPEARS, FURTHER, THAT MRS. CARRIE G. FOSTER IS A DISTANT COUSIN BY MARRIAGE OF THE DECEDENT, HER LATE HUSBAND HAVING BEEN A SECOND COUSIN OF THE MATERNAL GRANDFATHER OF THE DECEDENT. EVEN IF SHE WERE A FIRST COUSIN, HOWEVER, HER RELATIONSHIP ALONE WOULD NOT ESTABLISH AN INSURABLE INTEREST IN THE DECEDENT FOR PURPOSES OF THE SIX MONTHS' DEATH GRATUITY PAYMENT. SEE 22 COMP. GEN. 85, AND 29 AM. JUR., INSURANCE, 363. ALSO, THE RECORDS SUGGEST THAT SHE IS FINANCIALLY INDEPENDENT AND THAT THE DECEDENT WAS DEPENDENT UPON HER AND WAS MATERIALLY SUPPORTED BY HER. ACCORDINGLY, IT IS CONCLUDED THAT MRS. FOSTER HAS NO LEGAL CLAIM TO THE DEATH GRATUITY ON THE BASIS OF HER RELATIONSHIP BY AFFINITY TO THE DECEDENT.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.