B-158031, JAN. 18, 1966, 45 COMP. GEN. 413

B-158031, JAN. 18, 1966, 45 COMP. GEN. 413

GRATUITIES - SIX MONTHS' DEATH - CONFLICTING CLAIMS - MOTHER V. STEPCHILDREN THE DEATH GRATUITY CLAIMED BY THE MOTHER OF A DECEASED MEMBER OF THE AIR FORCE, DESIGNATED AS BENEFICIARY IN THE EVENT NO SPOUSE OR CHILD SURVIVED, AND ON BEHALF OF THREE STEPCHILDREN, MEMBERS OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF THEIR MOTHER'S DEATH, SHORTLY BEFORE THAT OF THE MEMBER, WHO TRAVELED AS HIS DEPENDENTS TO THE HOME OF THEIR MATERNAL GRANDMOTHER, LOCATED CLOSE TO THE PERMANENT DUTY STATION TO WHICH THE MEMBER HAD BEEN REASSIGNED FOR HUMANITARIAN REASONS, IS PAYABLE IN EQUAL SHARES TO THE STEPCHILDREN UPON PROOF OF A GUARDIAN RELATIONSHIP BY THE PERSONS CLAIMING FOR THEM, THE AIRMAN'S STATUS AS A "HOUSEHOLDER"--- ONE WHO AS HEAD OF A HOUSEHOLD GIVES LIFE, SUPPORT, AND GUIDANCE TO THE FAMILY UNIT--- NOT HAVING TERMINATED UPON THE DEATH OF HIS WIFE, AS EVIDENCE BY HIS ENDEAVOR TO MAINTAIN A HOUSEHOLD FOR THE CHILDREN WITH THEIR GRANDMOTHER NEAR HIS NEW DUTY STATION, AND THE STEPCHILDREN CONSIDERED MEMBERS OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH MEET THE QUALIFICATION IN 10 U.S.C. 1477 (B) (3) AND ARE ENTITLED TO THE DEATH GRATUITY PRESCRIBED IN 10 U.S.C. 1475.

TO GENERAL A. J. CORWIN, DEPARTMENT OF THE AIR FORCE, JANUARY 18, 1966:

REFERENCE IS MADE TO THE UNSIGNED LETTER DATED OCTOBER 19, 1965, WITH ENCLOSURES, ADDRESSED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER IN THE CASE OF STAFF SERGEANT BOBBIE G. CHEEK, USAF, 13 346 697, WHO DIED MAY 20, 1965. THE ENCLOSURES RECEIVED WITH SUCH LETTER INCLUDE THREE SEPARATE CLAIMS FOR THE DEATH GRATUITY PAYABLE AS A RESULT OF THE DEATH OF THE LATE AIRMAN. ONE OF THE CLAIMS IS FROM THE DECEDENT'S MOTHER AND THE OTHER TWO CLAIMS ARE PRESENTED ON BEHALF OF THE THREE MINOR STEPCHILDREN OF THE LATE AIRMAN.

ALTHOUGH THE AIR FORCE LETTER OF OCTOBER 19, 1965, IS UNSIGNED, THE REQUEST MADE THEREIN FOR A DETERMINATION AS TO WHICH OF THE CLAIMANTS IS LEGALLY ENTITLED TO RECEIVE PAYMENT OF THE DEATH GRATUITY WILL BE TREATED AS A REQUEST BY THE DISBURSING OFFICER CONCERNED FOR AN ADVANCE DECISION IN THE MATTER. A REQUEST FOR AN ADVANCE DECISION IN ANY CASE WHERE DOUBT EXISTS AS TO THE PROPER LEGAL BASIS FOR SETTLEMENT SHOULD BE SUBMITTED TO THE COMPTROLLER GENERAL OF THE UNITED STATES. SEE 31 U.S.C. 74.

UNDER THE PROVISIONS OF 10 U.S.C. 1475 THE SECRETARY CONCERNED IS REQUIRED TO HAVE A DEATH GRATUITY PAID (EXCEPT AS PROVIDED IN SECTION 1480, WHICH IS NOT APPLICABLE IN THE INSTANT CASE) TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477, IMMEDIATELY UPON RECEIVING OFFICIAL NOTIFICATION OF THE DEATH OF "/1) A MEMBER OF AN ARMED FORCE UNDER HIS JURISDICTION WHO DIES WHILE ON ACTIVE DUTY * * *.'

SECTION 1477, TITLE 10, U.S. CODE, IN PERTINENT PART PROVIDES:

(A) A DEATH GRATUITY PAYABLE UPON THE DEATH OF A PERSON COVERED BY SECTION 1475 * * * 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 * * *.

(B) SUBJECTION (A) (2) APPLIES, WITHOUT REGARD TO AGE OR MARITAL STATUS, TO---

(3) STEPCHILDREN WHO WERE A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH * * *.

COPY OF AF FORM 246, RECORD OF EMERGENCY DATA, EXECUTED BY THE LATE AIRMAN ON APRIL 26, 1965, LISTS THREE STEPCHILDREN (RAYMOND, PHYLLIS AND MARTY DICKEN) RESIDING AT 427 1/2 KANAWHA TURNPIKE, CHARLESTON, WEST VIRGINIA. IN ITEM 18 HIS MOTHER, MRS. PAULINE WALKER OF SANDUSKY, OHIO, IS DESIGNATED AS BENEFICIARY FOR THE DEATH GRATUITY PAYMENT (EFFECTIVE UNDER THE PROVISIONS OF 10 U.S.C. 1477 ONLY WHEN THERE IS NO SURVIVING SPOUSE OR CHILD) AND IN ITEM 19 THE MOTHER IS DESIGNATED TO RECEIVE ALL UNPAID PAY AND ALLOWANCES, INCLUDING DEPOSITS, IF ANY.

THE RECORD ESTABLISHES THAT THE THREE STEPCHILDREN WERE A PART OF THE DECEDENT'S HOUSEHOLD AT HIS DUTY STATION IN ALASKA WHEN THEIR MOTHER (THE LATE AIRMAN'S WIFE) DIED ON MARCH 10, 1965; THAT HE WAS REASSIGNED (HUMANITARIAN) TO WRIGHT PATTERSON AIR FORCE BASE, OHIO; THAT TRAVEL OF THE THREE STEPCHILDREN AS HIS DEPENDENTS WAS AUTHORIZED INCIDENT TO SUCH CHANGE OF PERMANENT DUTY STATION AND THAT WHEN AIR FORCE FORM 246 WAS EXECUTED BY HIM ON APRIL 26, 1965, THE THREE STEPCHILDREN WERE RESIDING WITH THEIR MATERNAL GRANDMOTHER, MRS. DANTIA MURPHY, AT 427 1/2 KANAWHA TURNPIKE, CHARLESTON, WEST VIRGINIA. IT IS FURTHER SHOWN THAT AFTER THE AIRMAN DIED ON MAY 20, 1965, TWO OF THE STEPCHILDREN (PHYLLIS AND MARTY DICKEN) WENT TO LIVE WITH THEIR NATURAL FATHER, MR. WOODROW DICKEN, WHO IS NOW SHOWN AS RESIDING AT 5304 W STREET, S.E., WASHINGTON, D.C. RAYMOND DICKEN REMAINED WITH HIS MATERNAL GRANDMOTHER, MRS. MURPHY, IN CHARLESTON, WEST VIRGINIA.

IF THE STEPCHILDREN WERE A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH ON MAY 20, 1965, THEY ARE ENTITLED TO RECEIVE THE DEATH GRATUITY IN EQUAL SHARES. OTHERWISE, THE DEATH GRATUITY IS PAYABLE TO DECEDENT'S MOTHER, MRS. PAULINE WALKER. IN THAT CONNECTION IT IS STATED IN PARAGRAPH 8 OF THE LETTER OF OCTOBER 19, 1965, THAT IF THE GRATUITY IS PAYABLE TO THE THER,"PAYMENT MAY BE MADE ON THE BASIS OF DOCUMENTS SUBMITTED.' ON THE OTHER HAND, IF THE GRATUITY IS PAYABLE TO THE STEPCHILDREN, REQUEST IS MADE TO "RETURN CLAIMS WITH YOUR DETERMINATION" INDICATING THAT IN SUCH AN EVENT THE AIR FORCE WILL REQUIRE LETTERS OF GUARDIANSHIP BEFORE MAKING PAYMENT.

THE TERM "HOUSEHOLD" IS NOT DEFINED IN THE STATUTORY PROVISIONS ABOVE REFERRED TO AND THE LEGISLATIVE HISTORY OF THOSE PROVISIONS OF LAW IS COMPLETED BY SILENT AS TO THE CONGRESSIONAL INTENT IN THE MATTER. WHILE BLACK'S LAW DICTIONARY, THIRD EDITION, DEFINES THE TERM "HOUSEHOLD" AS "THOSE WHO DWELL UNDER THE SAME ROOF AND COMPOSE A FAMILY," IT IS NOT NECESSARY THAT THE FATHER OR HEAD OF THE FAMILY LIVE IN THE SAME HOUSE WITH THE MEMBERS OF HIS HOUSEHOLD CONTINUOUSLY AND UNDER ALL CIRCUMSTANCES. SEE BOYD V. FOLSOM, 149 F.SUPP. 925 (1957) AND BOUVIER'S LAW DICTIONARY (RAWLES REVISION) P. 965. THE TERM HOUSEHOLD NECESSARILY INVOLVES THE CONCEPT OF A HOUSEHOLDER AS ITS HEAD WHO GIVES LIFE, SUPPORT AND GUIDANCE TO THAT PARTICULAR SOCIAL UNIT. FROM A LEGAL STANDPOINT THE AIRMAN'S STATUS AS A HOUSEHOLDER WAS NOT TERMINATED UPON THE DEATH OF HIS WIFE IN ALASKA ON MARCH 10, 1965. THE RECORD TENDS TO REFUTE SUCH A CONCLUSION, SINCE TRANSPORTATION AT GOVERNMENT EXPENSE WAS AUTHORIZED FOR THE THREE STEPCHILDREN AS HIS DEPENDENTS--- A FACT CONSTITUTING SOME RECOGNITION OF THE CONTINUATION OF THE FAMILY HOUSEHOLD ENTITY--- INCIDENT TO HIS PERMANENT CHANGE-OF-DUTY STATION TO WRIGHT PATTERSON AIR FORCE BASE, OHIO. IN ADDITION, IT IS FURTHER STATED IN PARAGRAPH 2 OF THE LETTER OF OCTOBER 19, 1965, THAT THE LATE AIRMAN AUTHORIZED A CLASS E ALLOTMENT IN THE AMOUNT OF $165 PER MONTH EFFECTIVE JUNE 1, 1965, PAYABLE TO THE MATERNAL GRANDMOTHER, MRS. DANTIA MURPHY, FOR THE CARE OF THE THREE STEPCHILDREN. THUS, THE PLACEMENT BY THE LATE AIRMAN OF THE THREE STEPCHILDREN WITH THEIR MATERNAL GRANDMOTHER AT CHARLESTON, WEST VIRGINIA, A POINT PROBABLY AS CLOSE TO HIS NEW PERMANENT DUTY STATION AT WRIGHT PATTERSON AIR FORCE BASE, OHIO, AS CIRCUMSTANCES PERMITTED, REASONABLY MAY BE VIEWED AS FURTHER EVIDENCE OF THE LATE AIRMAN'S INTENT TO CONTINUE THE SAME FAMILY HOUSEHOLD RELATIONSHIP WITH HIS STEPCHILDREN AND TO SUPPORT AND MAINTAIN SUCH HOUSEHOLD TO THE EXTENT OF HIS ABILITY IN THE CIRCUMSTANCES CONFRONTING HIM.

THE SUPREME COURT OF NEW JERSEY IN FAY V. JOHN WALDRON CORPORATION, 187 A. 140, DECIDED SEPTEMBER 29, 1936, CONSTRUING THE TERM "HOUSEHOLD" AS USED IN THE WORKMAN'S COMPENSATION ACT OF THAT STATE IN A CASE INVOLVING A DECEASED WIDOWER WHOSE TWO SURVIVING MINOR CHILDREN WERE LIVING WITH THEIR AUNT (DECEDENT'S SISTER) IN HER HOME AND TO WHICH THE DECEDENT RETURNED EACH WEEK-END FROM HIS PLACE OF WORK SOME DISTANCE AWAY, STATED THAT THEY COULD PERCEIVE NO INCONSISTENCY WHATEVER WITH THE IDEA WHICH HAD BEEN REJECTED BY THE COURT OF COMMON PLEAS "THAT THERE COULD BE TWO HOUSEHOLDS IN THIS ONE HOME IN DUNELLEN (NEW JERSEY).' THE COURT POINTED OUT THAT UNDER THE FACTS IN THAT CASE:

* * * THE DUNELLEN RESIDENCE COULD UNQUESTIONABLY BE FOUND TO BE THE LEGAL RESIDENCE OF THE DECEDENT. THE ROOMING HOTEL IN NEW BRUNSWICK(NEW JERSEY) * * * SEEMS TO HAVE BEEN A PLACE WHERE HE FOUND IT CONVENIENT TO LIVE DURING THE WORKING DAYS OF THE WEEK, BUT HE RETURNED TO HIS CHILDREN ON THE WEEK-END. THE MOTHER OF THESE CHILDREN BEING DEAD, IT WAS QUITE NATURAL, AND IS IN FACT A MATTER OF COMMON EXPERIENCE, THAT A FATHER WOULD PLACE HIS CHILDREN UNDER THE CARE OF HIS SISTER, PARTICULARLY SINCE, AS HERE, SHE HAD NO CHILDREN OF HER OWN.

IN FURTHER CONSIDERATION OF THE MATTER THE COURT ADDED:

THE PLACE OF ABODE MIGHT LACK SOME OF THE FORMAL CONCOMITANTS THAT USUALLY ARE FOUND IN A HOME AND STILL * * * BE ONE'S HOUSEHOLD, AS INTENDED BY THE STATUTE. QUITE CONCEIVABLY, A SINGLE ROOM MIGHT BE MADE OUT TO BE A PERFECT HOUSEHOLD IN A LEGAL SENSE. IT ISN-T NECESSARY THAT THOSE WHO ARE ENTITLED TO CALL AN ABODE THEIR HOUSEHOLD SHOULD BE IN SOLE CONTROL OF IT. THE HOUSEHOLD MIGHT BE IN A BOARDING ESTABLISHMENT OR A HOTEL, AND * * * IT MIGHT BE IN THE HOME OF AN AUNT, AS HERE, ALTHOUGH THE DECEASED OR HIS CHILDREN HAD NO RIGHT TO STRICT DOMINION OVER IT. THE HOME IN QUESTION WAS THE PLACE WHICH THE FATHER CHOSE, OR PERHAPS WAS COMPELLED TO SELECT, AS AN ABODE FOR HIS CHILDREN BECAUSE OF ECONOMIC CONDITIONS OR THE FACT THAT HE COULD NOT FIND A BETTER OR SAFER PLACE FOR THEM WHILE HE WAS ENGAGED IN HIS WORK SOME DISTANCE AWAY. THE ESTABLISHMENT NEED NOT HAVE THE FORMALITY OF A HOME AS THE PHRASE IS USUALLY UNDERSTOOD.

WHILE THE FACTS IN THE NEW JERSEY DECISION, ABOVE REFERRED TO, ARE OF COURSE SOMEWHAT DIFFERENT THAN THOSE PRESENTED IN THE INSTANT CASE (THE STATUTORY PROVISIONS WHILE LIKEWISE DIFFERING ARE EACH SUBJECT TO A LIBERAL AND BROAD CONSTRUCTION) THE PRINCIPLES THEREIN SET FORTH CONCERNING THE NATURE OF A HOUSEHOLD FOR PURPOSES OF A REMEDIAL LAW SEEM TO BE PARTICULARLY PERTINENT IN THIS CASE. THE LATE AIRMAN, AFTER THE DEATH OF HIS WIFE IN ALASKA AND FOLLOWING HIS TRANSFER TO WRIGHT PATTERSON AIR FORCE BASE, OHIO, APPARENTLY WAS ENDEAVORING TO MAINTAIN A HOUSEHOLD FOR HIS STEPCHILDREN AT A POINT NEAR HIS DUTY STATION AND WITH A PERSON WHOSE SOLICITUDE FOR THEM WAS INHERENT IN THE NATURAL AFFINITY OF GRANDPARENT AND GRANDCHILD. THEY WERE MEMBERS OF HIS HOUSEHOLD PRIOR TO THEIR DEPARTURE FROM ALASKA AND THERE APPEARS TO BE INSUFFICIENT EVIDENCE TO ESTABLISH THAT SUCH RELATIONSHIP TERMINATED PRIOR TO HIS DEATH APPROXIMATELY 1 MONTH AFTER REPORTING AT HIS NEW STATION. IN THE CIRCUMSTANCES THE THREE STEPCHILDREN PROPERLY MAY BE CONSIDERED TO HAVE BEEN A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH ON MAY 20, 1965, AND THEY ARE ENTITLED TO BE PAID IN EQUAL SHARES THE DEATH GRATUITY PRESCRIBED IN 10 U.S.C. 1475.

THE TWO VOUCHERS PROPOSING PAYMENT OF THE DEATH GRATUITY TO THE ADULTS WITH WHOM THE STEPCHILDREN ARE RESIDING ARE RETURNED HEREWITH AND UPON THE RECEIPT OF PROOF OF THE GUARDIAN RELATIONSHIP, PAYMENT THEREON IS PROPER IF OTHERWISE CORRECT. THE THIRD VOUCHER STATED IN FAVOR OF THE DECEDENT'S MOTHER, MRS. PAULINE WALKER, SANDUSKY, OHIO, MAY NOT BE PAID AND HENCE WILL BE RETAINED HERE.