B-169135, MAR. 24, 1970

B-169135, MAR. 24, 1970

GRATUITIES--SIX MONTHS' DEATH--PARENTS OR PERSONS STANDING IN LOCO PARENTIS--EVIDENCE OF LOCO PARENTIS RELATIONSHIP FACT THAT CLAIMANT WAS DESIGNATED AS BENEFICIARY TO RECEIVE DECEASED MEMBER'S DEATH GRATUITY AND MEMBER'S FATHER CHOSE CLAIMANT AS SON'S GUARDIAN DOES NOT CREATE RELATIONSHIP OF "IN LOCO PARENTIS" TO ENTITLE CLAIMANT TO DEATH GRATUITY, SUCH RELATIONSHIP BEING PRIMARILY QUESTION OF INTENT TO BE SHOWN BY ACTS, CONDUCT AND DECLARATION OF PERSON ALLEGING THAT RELATIONSHIP. SINCE CLAIMANT DID NOT ASSUME DEGREE OF PERSONAL CONTROL, SUPPORT OR RESPONSIBILITY AS WOULD ESTABLISH PARENTAL STATUS WITHIN CONTEMPLATION OF LAW, THERE IS NO AUTHORITY FOR PAYMENT OF CLAIM.

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 3, 1970, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION BY LETTER DATED JANUARY 28, 1970, IN WHICH YOU WERE ADVISED THAT THERE IS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM FOR THE DEATH GRATUITY BELIEVED TO BE DUE YOU AS FORMER GUARDIAN OF CORPORAL RICHARD J. ZISKO, US 51840926, U. S. ARMY, WHO DIED ON AUGUST 12, 1969.

IT IS PROVIDED IN 10 U.S.C. 1475 THAT THE SECRETARY CONCERNED SHALL HAVE A DEATH GRATUITY PAID TO OR FOR THE SURVIVOR PRESCRIBED BY 10 U.S.C. 1477 IMMEDIATELY UPON RECEIVING OFFICIAL NOTIFICATION OF THE DEATH OF CERTAIN MEMBERS OF THE ARMED FORCES IN A STATUS AS THERE SET FORTH. UNDER 10 U.S.C. 1477 A DEATH GRATUITY PAYABLE UPON THE DEATH OF SUCH A PERSON 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."

IT IS PROVIDED IN SUBSECTION 1477 (C) THAT 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. IT IS STATED IN THE EXPLANATORY NOTES TO SECTION 1477 THAT "THE WORDS 'OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C)' ARE INSERTED IN CLAUSES (3) (A) AND (4) TO REFLECT THE FACT THAT CERTAIN PERSONS WHO ARE NOT PARENTS IN THE NORMAL SENSE ARE INCLUDED AS ELIGIBLE SURVIVORS."

IN SUPPORT OF YOUR CLAIM AS THE BENEFICIARY DESIGNATED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, YOU SUBMITTED A COPY OF YOUR APPOINTMENT AS GUARDIAN OF THE PERSON AND ESTATE OF RICHARD ZISKO, DATED JUNE 7, 1960, AND STATED THAT YOU WERE NOT RELATED TO HIM; THAT WHILE HE DID NOT LIVE WITH YOU IN YOUR HOUSEHOLD, YOU WERE TOGETHER ON CERTAIN VISITS, OVERNIGHT TRIPS AND VACATIONS; THAT HE DID NOT CONTRIBUTE TO YOUR SUPPORT; THAT YOU CONTRIBUTED ONLY SMALL AMOUNTS TO HIS SUPPORT; THAT YOU WERE RESPONSIBLE FOR PLANNING HIS RELIGIOUS AND EDUCATIONAL TRAINING; AND THAT HE LIVED WITH MR. AND MRS. WALTER KIRKWOOD, TO WHOM YOU PAID $80 A MONTH OUT OF GUARDIANSHIP FUNDS FOR HIS SUPPORT. YOU ALSO STATED THAT YOU ARRANGED FOR ORTHODONTIC TREATMENT, SPECIAL READING CLASSES, ADMISSION TO DYKE COLLEGE, AND FOR HIS EMPLOYMENT AT THE COUNTY CLERK'S OFFICE.

ON THE BASIS OF THE FOREGOING INFORMATION OUR CLAIMS DIVISION CONCLUDED THAT, ALTHOUGH YOU WERE APPOINTED AS GUARDIAN, IT SEEMS APPARENT THAT YOU DID NOT EXERCISE THE DEGREE OF PARENTAL CONTROL AND MANAGEMENT NECESSARY TO ESTABLISH A PARENTAL STATUS WITHIN THE CONTEMPLATION OF THE LAW PRIOR TO THE TIME CORPORAL ZISKO ENTERED THE MILITARY SERVICE.

WITH YOUR LETTER OF FEBRUARY 3, 1970, YOU FORWARDED A STATEMENT OF FACTS AND AUTHORITIES IN WHICH YOU STATED THE FACTS, PREVIOUSLY ALLEGED, IN GREATER DETAIL AND SET OUT THE NATURE OF THE COOKSTON FAMILY ACTIVITIES IN WHICH CORPORAL ZISKO TOOK PART. YOU SAY THAT NO CHARGES WERE EVER MADE BY YOU FOR ANY SERVICE AS GUARDIAN AND NO REIMBURSEMENT WAS CHARGED OR COLLECTED FOR EXPENSES OR ACTIVITIES OF A FAMILY NATURE IN WHICH THE DECEDENT PARTICIPATED.

YOU CITED CERTAIN AUTHORITIES TO THE EFFECT THAT, AS TO THE PERSON OF THE WARD, A GENERAL GUARDIAN STANDS "IN LOCO PARENTIS" AND YOU STRESS THE FACT THAT THE FATHER, FRANK ZISKO, IN HIS WILL, CHOSE YOU AS GUARDIAN, AS WELL AS THE FACT THAT CORPORAL ZISKO DESIGNATED YOU AS THE PERSON TO RECEIVE THE DEATH GRATUITY INSTEAD OF HIS GRANDMOTHER, UNCLES, OR THE KIRKWOODS. FOR THESE REASONS YOU ASK "THAT THE MATTER BE GIVEN A REHEARING AND THAT THE AWARD BE GRANTED TO ME."

THE TERM "IN LOCO PARENTIS" AS USED IN 10 U.S.C. 1477 AND THE SIMILAR PROVISION APPEARING IN THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, AS AMENDED, 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 OBLIGATION INCIDENT TO THE PARENTAL RELATIONSHIP WITHOUT GOING THROUGH THE FORMALITIES NECESSARY FOR LEGAL ADOPTION. IT EMBODIES THE TWO IDEAS OF ASSUMING THE PARENTAL STATUS AND DISCHARGING THE PARENTAL DUTIES. COMMON LAW A PARENT IS CHARGED WITH THE DUTY OF EDUCATING AND SUPPORTING A MINOR CHILD AND WITH THE CONTINUING OBLIGATION THEREAFTER IN CERTAIN CASES OF PHYSICAL OR MENTAL DISABILITY. SEE NIEWIADOMSKI V. UNITED STATES, 159 F. 2D 683 (1947); LEYERLY V. UNITED STATES, 162 F. 2D 79 (1947), AND RICHARDS V. UNITED STATES, 93 F. SUPP. 208 (1950). THE FACT THAT CONGRESS SELECTED TO EXPRESS ITS INTENTION IN A LATIN PHRASE WHICH HAS A DEFINITE MEANING IN LAW, STRONGLY SUGGESTS THAT IT WAS USED IN A TECHNICAL LEGAL SENSE. SEE UNITED STATES V. MCMASTER, 174 F. 2D 257 (1949).

WHILE IT IS TRUE THAT THE LEGAL GUARDIAN OF THE PERSON OF A MINOR IN A CERTAIN SENSE STANDS IN LOCO PARENTIS TO HIS WARD, THAT RELATIONSHIP IS THE RESULT OF JUDICIAL PROCEEDINGS, RATHER THAN AN ACT OF VOLITION IN ASSUMING THE DUTIES AND RESPONSIBILITIES OF A PARENT AND EXISTS ONLY SO LONG AS THE STATUS OF GUARDIAN AND WARD CONTINUES. A GUARDIAN MAY BE REMOVED FOR CAUSE AT ANY TIME AND GUARDIANSHIP CEASES UPON THE MINOR REACHING MAJORITY. FURTHERMORE, A GUARDIAN HAS NO OBLIGATION TO SUPPORT HIS WARD OUT OF HIS OWN POCKET, BUT MERELY PROVIDES THE SUPPORT WHICH IS POSSIBLE FROM THE GUARDIANSHIP FUNDS.

ALTHOUGH YOU MAY HAVE FURNISHED CORPORAL ZISKO WITH CERTAIN PRIVILEGES AND EVEN SPENT SOME OF YOUR OWN MONEY TO PROVIDE FOR HIS RECREATION AND AMUSEMENT, IT DOES NOT APPEAR THAT YOU, AT ANY TIME, PROVIDED FOR HIS SUPPORT AND MAINTENANCE FROM YOUR OWN FUNDS OR THAT HE LIVED IN YOUR HOME AS A MEMBER OF YOUR FAMILY. THE FACT THAT YOU DID NOT MAKE ANY CHARGES FOR YOUR SERVICES AS GUARDIAN IS OF LITTLE SIGNIFICANCE IN THIS MATTER. THAT YOU MAY HAVE HAD A STRONG PERSONAL AFFECTION FOR HIM IS IMMATERIAL SINCE YOU AT NO TIME ASSUMED ALL THE OBLIGATIONS OF A PARENT.

WHILE IT WOULD SEEM THAT THE STATUTE SHOULD BE LIBERALLY CONSTRUED TO CARRY OUT THE INTENTION OF THE SERVICE MEMBER, THE DESIGNEE HAS THE BURDEN OF PROVING THAT AN IN LOCO PARENTIS RELATIONSHIP EXISTED IN FACT FOR THE PERIOD OF TIME REQUIRED BY THE LAW. THE RELATIONSHIP IS PRIMARILY A QUESTION OF INTENTION TO BE SHOWN BY THE ACTS, CONDUCT AND DECLARATIONS OF THE PERSON ALLEGING TO STAND IN THAT RELATIONSHIP. SEE RICHARDS V. UNITED STATES, SUPRA, AND HELFGOTT V. UNITED STATES, 250 F. 2D 818 (1958). NEITHER THE FACT THAT FRANK ZISKO CHOSE YOU AS GUARDIAN OF HIS SON NOR THE FACT THAT CORPORAL ZISKO DESIGNATED YOU AS BENEFICIARY TO RECEIVE THE DEATH GRATUITY MAY BE CONSIDERED AS CREATING A RELATIONSHIP OF "IN LOCO PARENTIS" IN YOUR CASE.

IN THE CIRCUMSTANCES INDICATED BY YOU, IT APPEARS THAT NO ONE ASSUMED SUCH A DEGREE OF PERSONAL CONTROL, SUPPORT OR RESPONSIBILITY FOR CORPORAL ZISKO AS WOULD ESTABLISH A PARENTAL STATUS WITHIN THE CONTEMPLATION OF THE LAW. ACCORDINGLY, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM AND THE ACTION OF OUR CLAIMS DIVISION IS SUSTAINED.