Matter of: Operations Specialist Second Class Rodney W. Poore, USN-- Claim for Special Persian Gulf Conflict Death Gratuity File: B-251851 Date: August 4, 1993

Matter of: Operations Specialist Second Class Rodney W. Poore, USN-- Claim for Special Persian Gulf Conflict Death Gratuity File: B-251851 Date: August 4, 1993

MILITARY PERSONNEL Pay Death gratuities Eligibility Special Persian Gulf Death Gratuity benefits are payable to beneficiaries of Servicemen's Group Life Insurance (SGLI) insurance policies. The initial determination that a deceased member's father was a proper beneficiary under the son's SGLI policy became questionable when a lawsuit challenging the father's eligibility was settled by the defendant insurance company by paying the plaintiff the full amount requested in the lawsuit. Accordingly, since doubt exists concerning his eligibility under the SGLI program the Special Death Gratuity payment may not be made to him in the absence of court of competent jurisdiction ruling on the matter.

DECISION We have been asked to determine the proper payees of a $50,000 Special Persian Gulf Conflict Death Gratuity payable as a result of the death of Specialist Second Class (OS2) Rodney W. Poore, USN. OS2 Poore's mother, Grace E. Lewis, maintains that OS2 Poore's father, Kenneth L. Poore, is not eligible to receive 50 percent of the gratuity because he was ineligible to receive 50 percent of OS2 Poore's Servicemen's Group Life Insurance (SGLI) proceeds, which eligibility is required for entitlement to the gratuity.

For the reasons presented below, we conclude that Kenneth L. Poore's claim should not be paid and that 50 percent of the Special Death Gratuity should be paid to Grace E. Lewis.

The Special Death Gratuity, Pub. L. No. 102-25, Sec. 308, 105 Stat. 83 (1991), is payable by the Secretary of Defense to each beneficiary under a deceased member's SGLI policy. It equals the amount of the deceased member's SGLI benefit. Unlike the SGLI program, however, the Special Death Gratuity is administered by the Department of Defense.

OS2 Poore maintained a SGLI life insurance policy in the amount of $50,000 and died under circumstances which the Navy determined were in conjunction with or in support of Operation Desert Storm. His properly qualified beneficiaries therefore are entitled to a $50,000 Special Death Gratuity in addition to the benefits paid under his SGLI policy.

OS2 Poore died on October 15, 1990. On November 27, 1990, checks for $25,000 plus interest were sent to Grace E. Lewis and to Kenneth L. Poore as beneficiaries under OS2 Poore's SGLI policy in accordance with the order of precedence clause set out at 38 U.S.C. Sec. 1970.

Ms. Lewis filed suit in U.S. District Court against Prudential alleging that Kenneth L. Poore was ineligible to receive a SGLI benefit payment because he had not provided parental support to OS2 Poore, as required by the SGLI law. In this respect, Ms. Lewis argued that 38 U.S.C. Sec. 1965(9), which excludes from the definition of parent for purposes of SGLI death benefit payment a father who "abandoned or willfully failed to support a child. . .", should have precluded Mr. Poore from receiving the SGLI payment.

In April 1992, the parties reached an out of court settlement. Prudential, without admitting liability, agreed to pay Ms. Lewis an additional $25,000 plus court costs of $120, in exchange for her release of all claims against both Prudential and the Office of Servicemen's Group Life Insurance in connection with her suit. The $25,000 paid to Kenneth Poore was not recouped.

Ms. Lewis is now contesting Mr. Poore's entitlement to the Special Death Gratuity on the same grounds relied on in the litigation on the SGLI payment. The Navy has delayed payment to either parent pending a decision from us. Our Claims Group has referred the matter to us for decision.

Although under 38 U.S.C. Sec. 1975 the U.S. District Courts have jurisdiction of any civil action or claim against the United States arising out of the SGLI program, the Special Death Gratuity is administered by the Department of Defense and claims for benefits authorized by the statute are properly for resolution by this Office. However, in view of the situation presented here it is our view that Mr. Poore's claim should be resolved in the courts.

As noted earlier, while the District Court did not decide the question of Mr. Poore's entitlement, the fact that Prudential settled Ms. Lewis's claims in full raises serious question concerning whether Mr. Poore qualified as a beneficiary under the SGLI program. Since the Special Death Gratuity statute directs the Secretary of Defense to pay the gratuity to the beneficiaries of the SGLI policy and doubt exists as to Mr. Poore's entitlement to benefits under the SGLI program, we believe that on the basis of the record before us that a court would be a more proper forum to resolve this case.

Accordingly, Ms. Lewis should be paid her share of the Special Death Gratuity, but Mr. Poore's share may not be paid until a court of competent jurisdiction rules on the matter.