B-123855, MAR. 28, 1956

B-123855, MAR. 28, 1956

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF, DISBURSING OFFICER, HEADQUARTERS USAF:

YOUR LETTER OF DECEMBER 29, 1955, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF OUR DECISION OF SEPTEMBER 30, 1955, B-123855. THAT DECISION HELD THAT PAYMENT OF THE SIX MONTHS DEATH GRATUITY TO THE COMMISSIONER OF PUBLIC WELFARE, WESTCHESTER COUNTY, WHITE PLAINS, NEW YORK, AS CUSTODIAN OF LINDA JANE NAPP, MINOR CHILD AND DESIGNATED BENEFICIARY OF JOSEPH NAPP, AIRMAN, SECOND CLASS, AF 1234 5524, WAS NOT AUTHORIZED, SINCE IT APPEARED FROM THE RECORD THAT THE DECEDENT MAY HAVE BEEN SURVIVED BY A WIDOW.

YOU STATE THAT RECONSIDERATION OF THE MATTER IS REQUESTED "INASMUCH AS IT WAS DETERMINED PRIOR TO REQUEST FOR ADVANCE DECISION THAT DECEDENT WAS NOT SURVIVED BY A LAWFUL WIDOW AND THAT RELATIONSHIP OF THE MINOR ILLEGITIMATE CHILD, LINDA JANE NAPP, TO THE DECEDENT HAD BEEN PROPERLY ESTABLISHED.' ALSO, YOU STATE THAT YOU "REQUESTED DECISION AS TO PROPRIETY OF PAYMENT IN BEHALF OF THIS CHILD WHO IS CURRENTLY A WARD OF THE STATE OF NEW YORK, ALSO IN THE EVENT YOU DETERMINED PAYMENT TO BE PROPER, YOUR DECISION WAS REQUESTED AS TO THE PROPER AGENCY OR INSTRUMENTALITY TO WHOM PAYMENT SHOULD BE MADE AND THE CORRECT WORDING TO BE USED ON THE VOUCHER WITH RESPECT TO THE PAYEE.'

WHILE ADMINISTRATIVE DETERMINATIONS OF (1) DEPENDENCY AND RELATIONSHIP MADE UNDER AUTHORITY OF THE DEPENDENTS ASSISTANCE ACT OF 1950 (RELATING TO PAYMENTS UNDER THAT ACT AND (2) OF DEPENDENCY MADE UNDER AUTHORITY OF SECTION 10 OF THE MISSING PERSONS ACT WITH RESPECT TO PAYMENT OF THE SIX MONTHS DEATH GRATUITY ARE FINAL AND CONCLUSIVE, WE ARE REQUIRED TO DETERMINE OTHER QUESTIONS WHICH MAY ARISE IN CONNECTION WITH THE PAYMENT OF SUCH DEATH GRATUITY IN CASES BEFORE US FOR DECISION OR SETTLEMENT. FOR EXAMPLE, BEFORE AUTHORIZING PAYMENT WE MUST DETERMINE, AS A MATTER OF LAW, WHETHER AN ALLEGED RELATIONSHIP BETWEEN THE DECEASED AND A CLAIMANT ACTUALLY EXISTED. HENCE, WHILE THE HEAD OF THE DEPARTMENT CONCERNED MAY DETERMINE THAT A PERSON IS DEPENDENT ON THE ENLISTED MEMBER, UNLESS SUCH PERSON OCCUPIES THE LEGAL RELATIONSHIP TO THE MEMBER PRESCRIBED IN THE STATUTE, WE MAY NOT CONSIDER HIM AS A BENEFICIARY WITHIN THE MEANING OF THE LAW.

WHEN THE DECISION OF SEPTEMBER 30, 1955, WAS RENDERED THE ONLY EVIDENCE OF RECORD INDICATING THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW WAS HIS STATEMENT THAT HIS WIFE, LUCILLE A. GARCIA, HAD BEEN PREVIOUSLY MARRIED AND THAT SHE DID NOT HAVE A LEGAL DIVORCE WHEN HE MARRIED HER ON JULY 12, 1952. THERE NOW HAS BEEN SUBMITTED WITH YOUR LETTER OF DECEMBER 29, 1955, A PHOTOSTAT OF A CERTIFIED COPY OF A DECREE OF DIVORCE (RECEIVED IN THE CENTRAL DISBURSING DIVISION, AIR FORCE FINANCE CENTER, DENVER 5, COLORADO, ON DECEMBER 1, 1955) ENTERED IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, ON SEPTEMBER 9, 1954, IN THE CASE OF LUCILLE SMITH, PLAINTIFF V. JOHN J. SMITH, DEFENDANT, GRANTING AN ABSOLUTE DIVORCE TO THE PLAINTIFF AND RESTORING THE USE OF HER MAIDEN NAME "LUCILLE ALICIA GARCIA," TOGETHER WITH A PHOTOSTAT OF A CERTIFIED COPY OF A "TRANSCRIPT FROM RECORD OF MARRIAGES IN CITY OF YONKERS, STATE OF NEW YORK," SHOWING THAT JOHN SMITH AND LUCILLE GARCIA WERE MARRIED AT MOUNT VERNON, NEW YORK, ON MARCH 1, 1951, AND THAT NEITHER PARTY HAD BEEN PREVIOUSLY MARRIED. SUCH EVIDENCE WILL BE ACCEPTED IN THIS CASE AS ESTABLISHING THE FACT THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW AT THE TIME OF HIS DEATH.

SINCE IT NOW APPEARS THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW, AND SINCE THE RELATIONSHIP OF THE MINOR CHILD IN THIS CASE HAS BEEN SUFFICIENTLY ESTABLISHED BY THE DECEDENT'S WRITTEN ACKNOWLEDGEMENT THAT SHE IS HIS CHILD, THE CHILD IS ENTITLED TO PAYMENT OF THE SIX MONTHS DEATH GRATUITY PAY. SEE 30 COMP. GEN. 277.

IT APPEARS THAT IN 1953 THE CHILD WAS COMMITTED BY THE CHILDREN'S COURT TO THE CARE OF THE WESTCHESTER COUNTY DEPARTMENT OF PUBLIC WELFARE. THE SOCIAL WELFARE LAW OF NEW YORK AUTHORIZES THE COUNTY COMMISSIONER OF PUBLIC WELFARE TO RECEIVE AND DISBURSE FUNDS FOR THE BENEFIT OF MINORS UNDER HIS JURISDICTION. COMPARE 13 COMP. GEN. 97. SINCE IT APPEARS THAT UNDER PERTINENT PROVISIONS OF STATE STATUTES THE CHILD IS UNDER HIS JURISDICTION AND IN LEGAL EFFECT IS HIS WARD, PAYMENT IN THIS CASE MAY BE MADE TO HIM ON BEHALF OF THE CHILD, AS FOLLOWS: "STANTON W. STRAWSON, COMMISSIONER OF PUBLIC WELFARE, WESTCHESTER COUNTY, FOR THE USE AND BENEFIT OF LINDA JANE NAPP.'