B-149056, JUL. 24, 1962

B-149056, JUL. 24, 1962

TO MAJOR J. J. VANYA, USAF:

BY LETTER OF MAY 25, 1962, THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER DATED MAY 9, 1962, REQUESTING AN ADVANCE DECISION CONCERNING THE LEGALITY OF PAYING THE SIX MONTHS' DEATH GRATUITY TO THE BENEFICIARY DESIGNATED BY AIRMAN SECOND CLASS BERWICK N. HYDE, AF 18525926, DECEASED. YOUR REQUEST WAS ASSIGNED AIR FORCE NO. DO-AF-650 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT DD FORM 1300, REPORT OF CASUALTY, DATED SEPTEMBER 20, 1961, SHOWS MR. NOBLE HYDE AS FATHER OF THE DECEASED; THAT THIS INFORMATION WAS DERIVED FROM AF FORM 246, RECORD OF EMERGENCY DATA SIGNED BY THE AIRMAN ON AUGUST 10, 1960; AND THAT MR. NOBLE HYDE IS THE PERSON DESIGNATED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY. BY AFFIDAVIT DATED MARCH 27, 1962, MR. NOBLE HYDE STATES THAT HE IS THE NATURAL FATHER OF THE DECEASED; THAT HE WAS NEVER MARRIED TO THE NATURAL MOTHER OF THE DECEASED AND DID NOT LIVE WITH HER AS MAN AND WIFE; THAT HE HAS NOT BEEN NAMED IN A COURT ORDER TO BE THE FATHER OF THE AIRMAN; THAT WHILE HE MADE A PARTIAL CONTRIBUTION TO THE SUPPORT OF BERWICK N. HYDE THE LATTER WAS MOSTLY CARED FOR BY HIS GRANDMOTHER; AND THAT THE DECEDENT WAS NOT SURVIVED BY A SPOUSE OR CHILD. CORRESPONDENCE FROM RUFUS KING, UNCLE OF THE DECEDENT, CONTAINS THE INFORMATION THAT HIS MOTHER (BERWICK'S GRANDMOTHER) AND HER CHILDREN REARED BERWICK FROM SHORTLY AFTER HIS BIRTH; THAT THE DECEASED WAS BORN OUT OF WEDLOCK; AND THAT HIS FATHER NEVER HAS "DONE ANYTHING FOR HIM.'

YOU CITE 13 COMP. GEN. 439 (1934) WHEREIN IT WAS HELD THAT THE FATHER OF AN ILLEGITIMATE CHILD WHO FAILED TO LEGITIMATE HIS SON WAS NOT A "RELATIVE" WITHIN THE MEANING OF THAT TERM AS USED IN THE DEATH GRATUITY STATUTE, AND THAT IT IS NOT MATERIAL THAT THE SOLDIER DESIGNATED HIM AS HIS FATHER. YOU POINT OUT THAT WHILE THE LAW THEN IN EFFECT AUTHORIZED PAYMENT OF SIX MONTHS' DEATH GRATUITY TO "ANY OTHER DEPENDENT RELATIVE," CURRENT PROVISIONS OF LAW AUTHORIZE PAYMENT TO THE ,PARENTS," A TERM WHICH IS NOT OTHERWISE QUALIFIED IN THE STATUTE. SEE 10 U.S.C. 1475-1480. SUBSECTION (C), 10 U.S.C. 1477, PROVIDES AS FOLLOWS:

"/C) CLAUSES 3 AND 4 OF SUBSECTION (A), SO FAR 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 STATUS DESCRIBED IN SECTION 1475 OR 1476 OF THIS TITLE. HOWEVER, ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS MAY BE RECOGNIZED IN ANY CASE, AND PREFERENCE SHALL BE GIVEN TO THOSE WHO EXERCISED A PARENTAL RELATIONSHIP ON THE DATE, OR MOST NEARLY BEFORE THE DATE, ON WHICH THE DECEDENT ENTERED THAT STATUS.'

THE TERM "IN LOCO PARENTIS" REFERS TO A PERSON WHO ACTUALLY ASSUMES THE OBLIGATIONS OF A PARENT. IN GENERAL, THERE MUST BE AN EXERCISE OF CUSTODY, CARE, CONTROL AND MANAGEMENT OF THE INDIVIDUAL CONCERNED.

THE PROVISION FOR PAYMENT OF THE DEATH GRATUITY HAS BEEN VIEWED AS IN THE NATURE OF LIFE INSURANCE AND AS REQUIRING A SHOWING OF AN "INSURABLE INTEREST" BY THE BENEFICIARY IN THE LIFE OF THE DECEASED AS A PREREQUISITE TO PAYMENT. SEE 22 COMP. GEN. 85. IT HAS BEEN HELD IN CONNECTION WITH A CLAIM FOR THE PROCEEDS OF A POLICY UNDER THE WAR RISK INSURANCE ACT AND THE NATIONAL SERVICE LIFE INSURANCE ACT BY A DESIGNATED PUTATIVE FATHER, THAT THE FATHER OF AN ILLEGITIMATE CHILD IS NOT A "PARENT" OR A "FATHER" WITHIN THE MEANING OF THOSE TERMS AS USED IN SUCH ACTS AND, HENCE, WAS NOT ENTITLED TO RECOVER AS BENEFICIARY UNLESS HE OCCUPIED THE RELATIONSHIP OF IN LOCO PARENTIS TO THE DECEASED. GIBBS V. UNITED STATES, 80 F.SUPP. 907; HOWARD V. UNITED STATES, 2 F.2D 170.

IN VIEW OF THE ABOVE-CITED DECISIONS AND THE RULINGS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT FOR OVER 28 YEARS THAT THE FATHER OF AN ILLEGITIMATE CHILD IS NOT A "RELATIVE" OF THE CHILD (NOT LEGITIMATED) WITHIN THE MEANING OF THAT TERM AS USED IN THE DEATH GRATUITY ACT THEN IN EFFECT, A CONCLUSION THAT THE CONGRESS INTENDED TO EXTEND THE DEATH GRATUITY BENEFITS TO FATHERS WHO DO NOT LEGITIMATE THEIR ILLEGITIMATE CHILDREN WOULD BE WARRANTED ONLY IF THE LANGUAGE USED IN THE CURRENT PROVISIONS OF LAW CLEARLY SO STATES. THE WORD "PARENTS" ALONE DOES NOT EXPRESS SUCH INTENT AND WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF TITLE III OF THE ACT OF AUGUST 1, 1956, CH. 837, 70 STAT. 868 (FROM WHICH 10 U.S.C. 1475-1480 WAS DERIVED) WHICH EVIDENCES AN INTENT TO THAT EFFECT.

THE FACTS OF RECORD DO NOT ESTABLISH THAT NOBLE HYDE LEGITIMATED HIS ILLEGITIMATE CHILD AND HE WAS NOT NAMED IN A COURT ORDER AS THE FATHER OF THE CHILD. HIS SWORN STATEMENT THAT HE FURNISHED ,PARTIAL" SUPPORT FOR THE CHILD "MOSTLY" CARED FOR BY THE GRANDMOTHER DOES NOT ESTABLISH THAT HE STOOD IN LOCO PARENTIS TO THE CHILD AND HIS ATTORNEY'S STATEMENT THAT BERWICK STAYED WITH HIS CLIENT "DURING THE YEAR 1952 OR A PORTION THEREOF" FURNISHES NO BASIS FOR A CONCLUSION THAT AN IN LOCO PARENTIS RELATIONSHIP EXISTED "FOR A PERIOD OF NOT LESS THAN ONE YEAR" PRIOR TO THE TIME BERWICK ENTERED THE SERVICE.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT NOBLE HYDE WAS NEITHER THE PARENT OF, NOR STOOD IN LOCO PARENTIS TO, BERWICK HYDE WITHIN THE MEANING OF THOSE TERMS AS USED IN THE DEATH GRATUITY STATUTE AND HENCE THAT HE IS NOT ENTITLED TO PAYMENT OF THE DEATH GRATUITY AS THE DESIGNATED BENEFICIARY OF BERWICK HYDE.