B-148095, MAY 9, 1962

B-148095: May 9, 1962

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MCGRATTON: REFERENCE IS MADE TO LETTER OF JANUARY 25. WHEREIN A REVIEW IS REQUESTED OF THE ACTION TAKEN BY OUR CLAIM DIVISION IN SETTLEMENT DATED DECEMBER 8. A CASUALTY REPORT SHOWS THAT SERGEANT STEEVES WAS BORN ON AUGUST 25. WHO IS NOW DECEASED. YOU ALSO STATE THAT YOU PROVIDED FINANCIAL SUPPORT FOR YOUR NEPHEW FROM 1940 TO 1946 AND THAT ADDITIONAL CONTRIBUTIONS OF APPROXIMATELY $100 PER YEAR WERE RECEIVED FROM YOUR BROTHER. THAT SERGEANT STEEVES WAS RESIDING WITH HER IN HER HOME DURING THE PERIOD COVERED BY YOUR AFFIDAVIT. THAT DURING THE YEARS 1940 TO 1945 YOU WERE IN THE SERVICE WITH THE CANADIAN ARMY BUT WERE STILL SUPPORTING YOUR MOTHER. THAT AFTER YOU WERE DISCHARGED YOU LIVED WITH YOUR MOTHER AND SERGEANT STEEVES AND SUPPORTED BOTH.

B-148095, MAY 9, 1962

TO MR. FRANKLIN G. MCGRATTON:

REFERENCE IS MADE TO LETTER OF JANUARY 25, 1962, FROM R.D. CALDWELL STEWART, QUEEN'S COUNSEL, WRITTEN IN YOUR BEHALF, WHEREIN A REVIEW IS REQUESTED OF THE ACTION TAKEN BY OUR CLAIM DIVISION IN SETTLEMENT DATED DECEMBER 8, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF TECHNICAL SERGEANT LEONARD E. STEEVES, USAF, WHO DIED ON JUNE 26, 1961.

THE RECORD SHOWS THAT ON MARCH 18, 1961, SERGEANT STEEVES EXECUTED A FORM DESIGNATING YOU AS BENEFICIARY FOR GRATUITY PAY AND FOR THE PAY AND ALLOWANCES THAT MAY BE DUE IN THE EVENT OF HIS DEATH. THE FORM SHOWS YOUR RELATIONSHIP AS UNCLE. A CASUALTY REPORT SHOWS THAT SERGEANT STEEVES WAS BORN ON AUGUST 25, 1928, AND ENTERED THE SERVICE ON OCTOBER 18, 1946, AND THAT HE DIED WHILE ON ACTIVE DUTY ON JUNE 26, 1961. IN AN AFFIDAVIT DATED JUNE 18, 1961, TRANSMITTED WITH YOUR CLAIM, YOU STATE THAT LEONARD E. STEEVES ACTUALLY RESIDED WITH YOU FROM 1940 TO 1946, EXCEPT FOR THE PERIOD 1941 AND 1942 WHILE ATTENDING COLLEGE, AND THAT YOU SUPERVISED HIS UPBRINGING, EDUCATION AND RELIGIOUS TRAINING WITH THE ASSISTANCE OF YOUR MOTHER, WHO IS NOW DECEASED. YOU ALSO STATE THAT YOU PROVIDED FINANCIAL SUPPORT FOR YOUR NEPHEW FROM 1940 TO 1946 AND THAT ADDITIONAL CONTRIBUTIONS OF APPROXIMATELY $100 PER YEAR WERE RECEIVED FROM YOUR BROTHER, NOW DECEASED. IN LETTER DATED NOVEMBER 4, 1961, YOU STATE FURTHER THAT YOUR MOTHER DIED ON OCTOBER 9, 1958, THAT SERGEANT STEEVES WAS RESIDING WITH HER IN HER HOME DURING THE PERIOD COVERED BY YOUR AFFIDAVIT, THAT DURING THE YEARS 1940 TO 1945 YOU WERE IN THE SERVICE WITH THE CANADIAN ARMY BUT WERE STILL SUPPORTING YOUR MOTHER, AND THAT AFTER YOU WERE DISCHARGED YOU LIVED WITH YOUR MOTHER AND SERGEANT STEEVES AND SUPPORTED BOTH.

YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF DECEMBER 8, 1961, FOR THE REASON THAT THE EVIDENCE FURNISHED TO ESTABLISH YOUR RELATIONSHIP TO THE DECEASED MEMBER AS ONE IN LOCO PARENTIS DID NOT INDICATE THAT YOU EXERCISED THE NECESSARY PARENTAL OBLIGATIONS TO QUALIFY YOU FOR THAT STATUS DURING THE PERIOD THE MEMBER RESIDED IN YOUR MOTHER'S HOME OR AT ANY TIME PRIOR TO HIS ENTRY INTO THE ARMED FORCES. IN THE LETTER REQUESTING A REVIEW OF THE ACTION TAKEN, IT IS STATED THAT WHILE YOU WERE OVERSEAS YOU SUPPORTED BOTH YOUR MOTHER AND NEPHEW, AND THAT EVEN THOUGH THE MEMBER LIVED FOR A TIME WITH HIS PATERNAL GRANDMOTHER, MOST OF HIS LIFE WAS SPENT WITH YOUR MOTHER, DURING WHICH TIME YOU WERE THE ONLY ONE THAT CONTRIBUTED TO THE MAINTENANCE OF THE HOUSEHOLD. ALSO IT IS STATED THAT ON THE DEATH OF YOUR MOTHER YOUR NEPHEW CONTINUED TO LIVE WITH YOU, AND IT IS SUGGESTED THAT SINCE YOU WERE NAMED BY HIM AS HIS BENEFICIARY HE CONSIDERED THAT YOU STOOD IN LOCO PARENTIS TO HIM.

SECTION 1475 OF TITLE 10, U.S. CODE, PROVIDES THAT IMMEDIATELY UPON RECEIVING OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF THE ARMED FORCES WHILE ON ACTIVE DUTY, THE SECRETARY CONCERNED SHALL HAVEA DEATH GRATUITY PAID TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477 OF THAT TITLE. SECTION 1477 (A) PROVIDES THAT SUCH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

"/1) HIS SURVIVING SPOUSE.

(2) HIS CHILDREN, AS PRESCRIBED BY SUBSECTION (B), IN EQUAL SHARES.

(3) IF DESIGNATED BY HIM, ANY ONE OR MORE OF THE FOLLOWING PERSONS:

(A) HIS PARENTS OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C).

(B) HIS BROTHERS.

(C) HIS SISTERS.

(4) HIS PARENTS OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C), IN EQUAL SHARES.

(5) HIS BROTHERS AND SISTERS IN EQUAL SHARES.'

SUBSECTION (C) PROVIDES THAT CLAUSES (3) AND (4) OF SUBSECTION (A), SOFAR AS THEY APPLY TO PARENTS AND PERSONS IN LOCO PARENTIS, INCLUDE FATHERS AND MOTHERS THROUGH ADOPTION,"AND PERSONS WHO STOOD IN LOCO PARENTIS TO THE DECEDENT FOR A PERIOD OF NOT LESS THAN ONE YEAR AT ANY TIME BEFORE HE ACQUIRED A (MILITARY) STATUS DESCRIBED IN SECTION 1475 OR 1476 OF THIS TITLE.' IT FURTHER PROVIDES THAT ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS, MAY BE RECOGNIZED IN ANY CASE, AND THAT PREFERENCE SHALL BE GIVEN TO THOSE WHO EXCERISED A PARENTAL RELATIONSHIP ON THE DATE, OR MOST NEARLY BEFORE THE DATE, ON WHICH THE DECEDENT ENTERED THAT STATUS. SUBSECTION (D) PROVIDES THAT IF AN ELIGIBLE SURVIVOR DIES BEFORE HE RECEIVES THE DEATH GRATUITY, IT SHALL BE PAID TO THE LIVING SURVIVOR NEXT IN THE ORDER PRESCRIBED BY SUBSECTION (A).

THE TERM "IN LOCO PARENTIS" AS USED IN THE CITED STATUTORY PROVISIONS, AND IN A SIMILAR PROVISION APPEARING IN THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, 38 U.S.C. 701, IS CONSIDERED AS REFERRING TO A PERSON WHO HAS PUT HIMSELF IN THE SITUATION OF A LAWFUL PARENT BY ACTUALLY ASSUMING THE OBLIGATIONS INCIDENT TO THE PARENTAL RELATIONSHIP WITHOUT GOING THROUGH THE FORMALITIES NECESSARY TO LEGAL ADOPTION. B-144905, APRIL 17, 1961; NIEWIADOMSKI V. UNITED STATES, 159 F. 2D 683. IT EMBODIES THE TWO IDEAS OF ASSUMING THE PARENTAL STATUS AND DISCHARGING THE PARENTAL DUTIES. IT CLEARLY EMBODIES MORE THAN FURNISHING MATERIAL HELP TO A CLOSE RELATIVE IN NEED, SUCH AS THE ADDED FURNISHING MATERIAL HELP TO A CLOSE RELATIVE IN NEED, SUCH AS THE ADDED ELEMENTS OF CUSTODY, CONTROL, CARE, AND MANAGEMENT OF THE INDIVIDUAL CONCERNED. SEE ALSO JENSEN V. UNITED STATES, 78 F.SUPP. 974, AND HELFGOTT V. UNITED STATES, 250 F. 2D 818.

IT APPEARS THAT FROM 1940 TO 1946, WHEN THE DECEDENT STAYED AT YOUR HOME WITH YOUR MOTHER, YOU WERE FOR THE MOST PART IN ACTIVE SERVICE WITH THE CANADIAN ARMY. ALTHOUGH YOU HAVE INDICATED THAT YOU CONTRIBUTED THE MAJOR PORTION OF THE NECESSARY SUPPORT OF YOUR MOTHER AND NEPHEW, IT SEEMS APPARENT THAT YOU DID NOT AND COULD NOT EXERCISE THE DEGREE OF PERSONAL CONTROL AND MANAGEMENT NECESSARY TO ESTABLISH A PARENTAL STATUS WITHIN THE CONTEMPLATION OF THE LAW PRIOR TO THE TIME THE MEMBER ENTERED THE MILITARY SERVICE. IN THE CIRCUMSTANCES INDICATED, IT WOULD APPEAR THAT IT WAS YOUR MOTHER RATHER THAN YOU WHO ASSUMED SUCH RESPONSIBILITY AND CONTINUED TO MAINTAIN SUCH PARENTAL STATUS UNTIL HOUR NEPHEW ENTERED THE ARMED FORCES. THE FACT THAT ON THE DEATH OF YOUR MOTHER YOUR NEPHEW CONTINUED TO MAINTAIN HIS RESIDENCE WITH YOU DOES NOT CHANGE YOUR STATUS, FOR AT THE TIME HE WAS STILL ON ACTIVE DUTY.

SINCE THE EVIDENCE OF RECORD DOES NOT ESTABLISH THAT YOU STOOD IN THE POSITION OF A PARENT WITH RESPECT TO YOUR NEPHEW FOR A PERIOD OF AT LEAST ONE YEAR AT ANY ONE TIME PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE TO THE EXTENT REQUIRED BY THE LAW TO CONSTITUTE YOU A PERSON IN LOCO PARENTIS, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM AND THE SETTLEMENT OF DECEMBER 8, 1961, IS SUSTAINED.

YOU MAY BE ADVISED THAT PAYMENT OF THE GRATUITY HAS BEEN MADE IN EQUAL SHARES TO JACQUELINE MONTGOMERY, SISTER OF THE DECEASED, AND TO KENNETH AND BLAIR E. STEEVES, HIS HALF BROTHERS, AS LIVING SURVIVORS NEXT QUALIFYING UNDER THE PROVISIONS OF SECTION 1477A, QUOTED ABOVE, AND NO FURTHER PAYMENT OF THE GRATUITY MAY BE MADE TO ANYONE.