B-31590, FEBRUARY 2, 1943, 22 COMP. GEN. 736

B-31590, FEBRUARY 2, 1943, 22 COMP. GEN. 736

SIX MONTHS' DEATH GRATUITY PAY - EFFECT OF DEATH OF BENEFICIARY WHERE THE WIDOW, CHILD OR CHILDREN, OR DESIGNATED BENEFICIARY OF A NAVY OFFICER, ENLISTED MAN OR NURSE DIES SUBSEQUENT TO THE DEATH OF THE PERSON IN THE SERVICE BUT PRIOR TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF MAY 22, 1928, AS AMENDED, THE RIGHT TO RECEIVE THE GRATUITY PASSES TO THE LEGAL REPRESENTATIVE OF THE DECEASED BENEFICIARY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 2, 1943:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 6, 1943, WITH ENCLOSURE, REQUESTING DECISION ON THE QUESTIONS STATED THEREIN AS FOLLOWS:

(A) WHEN THE WIDOW, CHILD OR CHILDREN, OR DESIGNATED BENEFICIARY OF A DECEASED NAVY OFFICER, ENLISTED MAN OR NURSE DIES PRIOR TO PAYMENT OF THE SIX MONTHS GRATUITY AS AUTHORIZED UNDER THE ACT OF MAY 22, 1928 (34 U.S.C. 943), AS AMENDED, AND SUBSEQUENT TO THE DEATH OF THE PERSON IN THE SERVICE, DOES THE RIGHT TO RECEIVE THE GRATUITY PASS TO THE LEGAL REPRESENTATIVE OF THE DECEASED BENEFICIARY?

(B) IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE NEGATIVE, MAY THE CLAIM OF ANY GRANDPARENT, PARENT, BROTHER OR SISTER, WHO HAS NOT BEEN NAMED AS BENEFICIARY BY THE PERSON IN THE SERVICE, BE CONSIDERED UNDER THE CITED ACT AND PAID, IF OTHERWISE IN ORDER?

THE ACT OF MAY 22, 1928, AS AMENDED, SECTION 943, TITLE 34, U.S. CODE, PROVIDES:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. THE SECRETARY OF THE NAVY SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN OR NURSE HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS OR HER DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE NAVY AND PAY OF THE MARINE CORPS, RESPECTIVELY: PROVIDED, THAT IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF THE NAVY SHALL CAUSE THE AMOUNT HEREIN PROVIDED TO BE PAID TO ANY GRANDPARENT, PARENT, SISTER, OR BROTHER SHOWN TO HAVE BEEN ACTUALLY DEPENDENT UPON SUCH OFFICER, ENLISTED MAN, OR NURSE PRIOR TO HIS OR HER DEATH, AND THE DETERMINATION OF SUCH FACT BY THE SECRETARY OF THE NAVY SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT: PROVIDED, THAT NOTHING IN THIS SECTION OR IN OTHER EXISTING LEGISLATION SHALL BE CONSTRUED AS MAKING THE PROVISIONS OF THIS SECTION APPLICABLE TO OFFICERS, ENLISTED MEN, OR NURSES OF ANY FORCES OF THE NAVY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR NAVY AND MARINE CORPS, AND NOTHING IN THIS SECTION SHALL BE CONSTRUED TO APPLY IN COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT OR PROBATIONARY APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD, AND THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY.

SEE ALSO SECTION 4, ACT OF AUGUST 27, 1940, 54 STAT. 864, AND THE ACT OF MARCH 17, 1941, 55 STAT. 43, IN CONNECTION WITH PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN CASES OF MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE.

IN THE CASE OF CAMPBELL, ADMINISTRATOR OF SPOTSWOOD V. THE UNITED STATES, 80 C.1CLS. 836, DECIDED MARCH 4, 1935, CONSIDERING A SIMILAR QUESTION, THE COURT HELD AS FOLLOWS:

* * * THE RIGHT OF ACTION ON SUCH CLAIM, IN THE ABSENCE OF A PROVISION TO THAT EFFECT IN THE STATUTE, CREATING IT, IS NOT ABATED BY THE DEATH OF THE PERSON HAVING THE CLAIM, BUT PASSES TO HIS LEGAL REPRESENTATIVE, WHO CAN PROSECUTE IT TO JUDGMENT.

THIS OFFICE HAS, IN OTHER SIMILAR CASES FOLLOWED THE DECISION OF THE COURT OF CLAIMS IN THE SPOTSWOOD CASE. SEE DECISIONS OF APRIL 3, 1939, A- 56055; JUNE 24, 1941, B-15137, AND DECEMBER 7, 1942, B-30573.

ACCORDINGLY, QUESTION "/A)" AS PRESENTED IN YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE, THUS MAKING IT UNNECESSARY TO CONSIDER QUESTION "/B).'