B-167316, AUG. 7, 1969

B-167316, AUG. 7, 1969

MILITARY - SIX MONTHS' DEATH GRATUITY - PERSONS IN LOCO PARENTIS A MATERNAL GRANDFATHER WHO WAS DESIGNATED AS BENEFICIARY BY A MEMBER OF THE UNIFORMED SERVICES EVEN THOUGH THE MEMBER'S STEP FATHER HAD ASSUMED PARENTAL RESPONSIBILITY OVER THE MEMBER SEVERAL YEARS BEFORE HIS ENTRY INTO THE SERVICE IS TO BE REGARDED AS A PARENT FOR THE 6 MONTHS' DEATH GRATUITY IN 10 U.S.C. 1477 (A) SINCE THE PARENT DESIGNATED AS BENEFICIARY IS PREFERRED OVER A PARENT NOT SO DESIGNATED. THEREFORE NEITHER THE MEMBER'S NATURAL MOTHER NOR HIS STEP FATHER IS ENTITLED TO THE GRATUITY PAYMENT. SINCE ONE HALF OF THE GRATUITY WAS ERRONEOUSLY PAID TO THE MOTHER ONLY BALANCE SHOULD BE PAID TO THE GRANDFATHER WITH ADVICE AS TO REASON FOR WITHHOLDING BALANCE. IF THE BENEFICIARY SHOULD INSIST ON PAYMENT IT SHOULD BE PAID.

TO LIEUTENANT COLONEL J. E. FARR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1969, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT TO MICHAEL FINNELL ON A VOUCHER FOR $400, REPRESENTING ONE-HALF OF THE DEATH GRATUITY DUE IN THE CASE OF PRIVATE DARRELL J. ROBTOY, RA 11 751 316, WHO DIED OCTOBER 12, 1968. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NUMBER A 1041 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT PAYMENT OF ONE-HALF OF THE AMOUNT DUE OR $400 WAS MADE ON MARCH 27, 1969, TO MRS. ANN J. HOLROYD, MOTHER OF THE DECEASED MEMBER, LEAVING A BALANCE OF $400 TO BE DISBURSED. YOU SAY FURTHER THAT PRIVATE ROBTOY WAS SURVIVED BY HIS MOTHER AND STEPFATHER, MRS. ANN M. HOLROYD AND MR. GORDON A. HOLROYD; BY HIS FATHER MR. WINSTON WOODROW ROBTOY, AND HIS MATERNAL GRANDFATHER, MR. MICHAEL FINNELL. IT APPEARS THAT PRIVATE ROBTOY DESIGNATED HIS GRANDFATHER, MR. MICHAEL FINNELL, AS THE PERSON TO RECEIVE 100 PERCENT OF THE DEATH GRATUITY IN THE EVENT HE WAS NOT SURVIVED BY A WIDOW OR CHILD.

THE RECORD INDICATES THAT THE DECENDENT'S NATURAL FATHER DESERTED HIS FAMILY IN 1949, THE YEAR IN WHICH DECEDENT WAS BORN, AND DIVORCED HIS MOTHER; THAT HIS MATERNAL GRANDFATHER, MICHAEL FINNELL, EXERCISED CARE AND CUSTODY OF THE DECEDENT WHEN HIS NATURAL FATHER DESERTED HIS MOTHER IN 1949 UNTIL SHE REMARRIED IN 1953, AND THAT HIS STEPFATHER, MR. GORDON A. HOLROYD, ASSUMED PARENTAL RESPONSIBILITY FOR HIM FROM 1953 ON. CLAIMS FOR THE DEATH GRATUITY HAVE BEEN ASSERTED BY THE DECEDENT'S NATURAL MOTHER AND STEPFATHER, AND BY HIS MATERNAL GRANDFATHER.

SUBSECTION (A) OF SECTION 1477, TITLE 10, U.S. CODE, AUTHORIZES PAYMENT OF A DEATH GRATUITY WHERE A MEMBER OF THE ARMED SERVICES DIES WHILE ON ACTIVE DUTY, INSOFAR AS HERE MATERIAL, TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

"/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 ARES.' SUBSECTION (C) READS 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.'

YOU SAY THAT DOUBT EXISTS CONCERNING THE PROPER INTERPRETATION OF THE STATUTE AS IT PERTAINS TO PERSONS IN LOCO PARENTIS, IN THAT THE FOSTER PARENT RELATIONSHIP MUST EXIST FOR A PERIOD OF AT LEAST ONE YEAR BEFORE THE MEMBER ENTERED ON ACTIVE DUTY, THERE CAN BE ONLY ONE FATHER OR MOTHER OR THEIR COUNTERPARTS IN LOCO PARENTIS IN ANY CASE, AND THE STATUTE REQUIRES THAT "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.'

YOU ALSO SAY THAT WHILE THE DESIGNATED BENEFICIARY (MR. FINNELL, GRANDFATHER) STOOD IN LOCO PARENTIS, HE WAS NOT THE LAST TO DO SO PRIOR TO THE MEMBER'S ENTRY ON ACTIVE DUTY, AND THAT THE ISSUE IS WHETHER THE PREFERENCE PROVISION NECESSITATES PAYMENT TO A NONDESIGNATED PERSON WHO LAST STOOD IN LOCO PARENTIS IN PREFERENCE TO A DESIGNATED PERSON IN LOCO PARENTIS. YOU SUGGEST THAT IF SUCH PREFERENCE IS REQUIRED, THE MEMBER'S DESIGNATION IN THIS CASE FAILS AND PAYMENT WOULD BE DUE HIS NATURAL MOTHER AND STEPFATHER, WHO WOULD TAKE IN EQUAL SHARES, THE LATTER AS THE PERSON WHO LAST STOOD IN LOCO PARENTIS.

INSOFAR AS HERE MATERIAL, SECTION 1477 IS A CODIFICATION OF SUBSECTIONS 102 (7) AND 301 (C) OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, APPROVED AUGUST 1, 1956, 70 STAT. 860 AND 868, WHICH RESPECTIVELY PROVIDED THAT THE TERM "PARENT" HAD THE MEANING ASSIGNED TO IT BY VETERANS REGULATION NUMBERED 10, AS AMENDED (SUBSTANTIALLY THE SAME AS NOW INCORPORATED IN SECTION 1477 (C) (, AND THAT:

"/C) THE DEATH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR OR SURVIVORS OF THE DECEASED MEMBER OF A UNIFORMED SERVICE FIRST LISTED BELOW:

"/1) HIS SPOUSE.

"/2) HIS CHILDREN (WITHOUT REGARD TO THEIR AGE OR MARITAL STATUS) IN EQUAL SHARES.

"/3) HIS PARENTS OR HIS BROTHERS OR SISTERS (INCLUDING THOSE OF THE HALF BLOOD AND THOSE THROUGH ADOPTION), WHEN DESIGNATED BY HIM.

"/4) HIS PARENTS IN EQUAL SHARES.

"/5) HIS BROTHERS AND SISTERS (INCLUDING THOSE OF THE HALF BLOOD AND THOSE THROUGH ADOPTION) IN EQUAL SHARES.'

IT SEEMS BEYOND QUESTION THAT UNDER SUBSECTION 301 (C) A PARENT DESIGNATED AS A BENEFICIARY WAS PREFERRED OVER A PARENT WHO WAS NOT SO DESIGNATED. IN OTHER WORDS, WHETHER A PERSON IN LOCO PARENTIS DESIGNATED AS A BENEFICIARY IS A "PARENT" IS DETERMINED BY WHETHER HE IS A PERSON WHO STOOD IN LOCO PARENTIS TO THE DECEASED SOLDIER FOR A PERIOD OF AT LEAST ONE YEAR BEFORE ENTERING THE MILITARY SERVICE. IF THERE IS ONLY ONE PERSON DESIGNATED AS BENEFICIARY WHO STOOD IN PLACE OF THE FATHER TO THE SOLDIER, THE TIME WHEN HE SO STOOD IS IMMATERIAL. IF TWO OR MORE PERSONS WHO STOOD IN PLACE OF THE FATHER TO THE SOLDIER ARE DESIGNATED AS BENEFICIARIES, PREFERENCE MUST BE GIVEN TO THE ONE WHO LAST EXERCISED THE PARENTAL RELATIONSHIP TO THE SOLDIER.

IN OTHER WORDS, IN THE PRESENT CASE THE PERSON ENTITLED TO THE DEATH GRATUITY AS THE PERSON WHO STOOD IN LOCO PARENTIS TO THE SOLDIER IS DETERMINED NOT ON THE BASIS OF THE TIME WHEN SUCH RELATIONSHIP EXISTED, BUT BY THE FACT THAT THE SOLDIER'S GRANDFATHER, WHO HAD STOOD IN THAT RELATIONSHIP FOR THE PERIOD PRESCRIBED BY THE STATUTE ("A PERIOD OF NOT LESS THAN ONE YEAR AT ANY TIME" BEFORE THE SOLDIER ENTERED THE MILITARY SERVICE), IS A PARENT WITHIN THE MEANING OF THE STATUTE AND WAS DESIGNATED BY THE SOLDIER AS THE BENEFICIARY OF THE DEATH GRATUITY.

IT FOLLOWS THAT, SINCE THE SOLDIER'S GRANDFATHER IS A PARENT WITHIN THE MEANING OF THE STATUTE AND WAS DESIGNATED TO RECEIVED 100 PERCENT OF THE DEATH GRATUITY, NEITHER HIS NATURAL MOTHER NOR HIS STEPFATHER IS ENTITLED TO ANY PART OF THAT BENEFIT. THE PAYMENT OF ONE-HALF OF THE DEATH GRATUITY TO HIS NATURAL MOTHER WAS THEREFORE ERRONEOUS. IN THE CIRCUMSTANCES OF THIS CASE, HOWEVER, THE DESIGNATED BENEFICIARY SHOULD BE PAID ONLY $400 AND ADVISED THAT THE BALANCE IS BEING WITHHELD, IT BEING ASSUMED THAT HE WOULD NOT WANT THE GOVERNMENT TO RECOVER THE PAYMENT HIS DAUGHTER RECEIVED IN ORDER TO PAY IT OVER TO HIM. HOWEVER, SHOULD HE INSIST UPON PAYMENT, THE BALANCE OF $400 SHOULD BE PAID TO HIM AND THE PAYMENT MADE TO THE SOLDIER'S MOTHER SHOULD BE RECOVERED. THE VOUCHERS AND OTHER PAPERS ARE RETURNED HEREWITH.