B-38090, NOVEMBER 17, 1943, 23 COMP. GEN. 371

B-38090: Nov 17, 1943

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SIX MONTHS' DEATH GRATUITY PAY - ADOPTED CHILD THE MINOR CHILD OF A DIVORCED ARMY ENLISTED MAN WHO WAS LEGALLY ADOPTED BY ITS MOTHER AND STEPFATHER PRIOR TO THE MAN'S DEATH MAY NOT BE REGARDED AS THE CHILD OF THE ENLISTED MAN AT THE TIME OF THE LATTER'S DEATH. PAYMENT OF THE SAID GRATUITY ON BEHALF OF SUCH ADOPTED CHILD IS UNAUTHORIZED. 1943: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF GLADYS L. THAT NONE OF THE FUNDS APPROPRIATED FOR THE PURPOSES OF THIS SECTION SHALL BE USED FOR THE PAYMENT OF SUCH SIX MONTHS' PAY TO ANY MARRIED CHILD OR UNMARRIED CHILD OVER TWENTY-ONE YEARS OF AGE OF A DECEASED OFFICER OR ENLISTED MAN WHO IS NOT ACTUALLY A DEPENDENT OF SUCH DECEASED OFFICER OR ENLISTED MAN.

B-38090, NOVEMBER 17, 1943, 23 COMP. GEN. 371

SIX MONTHS' DEATH GRATUITY PAY - ADOPTED CHILD THE MINOR CHILD OF A DIVORCED ARMY ENLISTED MAN WHO WAS LEGALLY ADOPTED BY ITS MOTHER AND STEPFATHER PRIOR TO THE MAN'S DEATH MAY NOT BE REGARDED AS THE CHILD OF THE ENLISTED MAN AT THE TIME OF THE LATTER'S DEATH, WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTE OF DECEMBER 17, 1919, AS AMENDED, AND, THEREFORE, PAYMENT OF THE SAID GRATUITY ON BEHALF OF SUCH ADOPTED CHILD IS UNAUTHORIZED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, NOVEMBER 17, 1943:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1943, FORWARDED BY INDORSEMENT OF NOVEMBER 1, 1943, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF GLADYS L. ELLINGSON, GUARDIAN OF HAROLD ELLINGSON, AS MINOR SON OF THEOPHILE R. GARNIER, NO. R-5,247,005, DECEASED, LATE TECHNICIAN, FOURTH GRADE, QUARTERMASTER CORPS, U.S. ARMY, FOR $468, REPRESENTED AS EQUAL TO THE PAY OF THE DECEASED FOR SIX MONTHS, THE CLAIM ARISING UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, PROVIDES, IN PART, AS FOLLOWS:

HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY 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 OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * * AND PROVIDED FURTHER, THAT NONE OF THE FUNDS APPROPRIATED FOR THE PURPOSES OF THIS SECTION SHALL BE USED FOR THE PAYMENT OF SUCH SIX MONTHS' PAY TO ANY MARRIED CHILD OR UNMARRIED CHILD OVER TWENTY-ONE YEARS OF AGE OF A DECEASED OFFICER OR ENLISTED MAN WHO IS NOT ACTUALLY A DEPENDENT OF SUCH DECEASED OFFICER OR ENLISTED MAN.

THE REPORT OF DEATH ATTACHED TO THE VOUCHER SHOWS THAT THEOPHILE R. GARNIER, NO. R-5,247,005, DECEASED, LATE TECHNICIAN, FOURTH GRADE, QUARTERMASTER CORPS, U.S. ARMY, DIED DECEMBER 31, 1942, AT THE STATION HOSPITAL, FORT LEWIS, WASHINGTON, THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT DUE TO HIS OWN MISCONDUCT; THAT HE HAD SERVED 9 MONTHS AND 12 DAYS AT THE TIME OF HIS DEATH; THAT HE HAD DESIGNATED AS HIS BENEFICIARIES UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, FIRST, GLADYS LONG GARNIER (WIFE), DIVORCED; SECOND, HAROLD G. GARNIER, SON; THIRD, MADELINE MOORE, SISTER; FOURTH, CHESTER D. GARNIER, FATHER.

THE COPY OF DIVORCE DECREE, ISSUED BY THE DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BINGHAM, SHOWS THAT GLADYS GARNIER AND THEODORE ( THEOPHILE) GARNIER WERE DIVORCED ON AUGUST 29, 1930; THAT THE COURT ORDERED, ADJUDGED AND DECREED THAT GLADYS GARNIER HAVE THE CARE, CUSTODY AND MAINTENANCE OF HAROLD GARNIER, THEIR MINOR CHILD, AND THAT NO ALIMONY SHOULD BE PAID GLADYS GARNIER UNTIL THE FURTHER ORDER OF THE COURT.

THE COPY OF MARRIAGE CERTIFICATE SHOWS THAT O. W. ELLINGSON AND GLADYS GARNIER WERE MARRIED ON MARCH 25, 1933, AT LOGAN, UTAH, AND IT APPEARS FROM THE RECORD THAT THEY SUBSEQUENTLY ADOPTED HAROLD GARNIER, THE MINOR CHILD.

ADOPTION WHEN LEGALLY CONDUCTED HAS THE GENERAL EFFECT OF TERMINATING THE RELATIONS BETWEEN THE CHILD AND ITS NATURAL PARENTS, AND OF MAKING HIM A CHILD OF THE ADOPTIVE PARENTS WITH THE SAME PERSONAL RIGHTS AS A NATURAL CHILD. 1 CORPUS JURIS 1398.

THE LAWS OF THE STATE OF IDAHO PROVIDE THAT ANY MINOR CHILD MAY BE ADOPTED UPON THE ORDER OF THE PROBATE COURT, SUBJECT TO THE FOLLOWING LIMITATIONS--- THAT THE PERSON ADOPTING THE CHILD MUST BE FIFTEEN YEARS ITS SENIOR; THAT NO MARRIED PERSON CAN ADOPT WITHOUT THE CONSENT OF THE SPOUSE; THAT THE CONSENT OF THE PARENTS OF A LEGITIMATE CHILD IS NECESSARY OR THE CONSENT OF THE MOTHER OF AN ILLEGITIMATE CHILD; THAT AN ABANDONED CHILD MAY BE ADOPTED ON CONSENT OF LEGAL GUARDIAN, NEAREST RELATIVE OR NEXT FRIEND OF SUCH CHILD; THAT AN ADOPTED CHILD HAS ALL THE RIGHTS AND IS SUBJECT TO ALL THE DUTIES OF A LAWFUL CHILD OF ADOPTED PARENTS AND ITS REAL PARENTS ARE RELIEVED OF ALL PARENTAL DUTIES.

THE COPY OF ORDER OF ADOPTION, ISSUED IN THE PROBATE COURT OF THE COUNTY OF BONNEVILLE, STATE OF IDAHO, SEPTEMBER 20, 1935, STATES, IN PART AS FOLLOWS:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT SAID MINOR CHILD, HAROLD GORMAN GARNIER, BE, AND HE IS HEREBY DECLARED ADOPTED BY SAID PETITIONERS, O. W. ELLINGSON AND GLADYS GARNIER ELLINGSON, HIS WIFE, AS THE CHILD OF EACH AND BOTH OF THEM; THAT THE SAID CHILD SHALL HENCEFORTH BE REGARDED AND TREATED IN ALL RESPECTS AS THE CHILD OF O. W. ELLINGSON AND GLADYS GARNIER ELLINGSON AND SAID CHILD AND SAID ADOPTING PARENTS SHALL HENCEFORTH SUSTAIN EACH TOWARD THE OTHER THE RELATION OF PARENT AND CHILD, AND WITH ALL RIGHTS AND SUBJECT TO ALL DUTIES OF SUCH RELATION; AND THAT SAID CHILD SHALL TAKE THE FAMILY NAME OF SAID PETITIONERS FOR ADOPTION, TO-WIT, THE FAMILY NAME OF ELLINGSON, AND HENCEFORTH SHALL BE KNOWN AS HAROLD GORMAN ELLINGSON, THE CHILD OF O. W. ELLINGSON AND GLADYS GARNIER ELLINGSON.

THE COPY OF LETTERS OF GUARDIANSHIP ISSUED IN THE PROBATE COURT OF BONNEVILLE COUNTY, STATE OF IDAHO, JUNE 19, 1943, SHOWS THAT GLADYS L. ELLINGSON WAS APPOINTED GUARDIAN OF THE PERSON AND ESTATE OF HAROLD ELLINGSON, A MINOR. IT HAS BEEN ASCERTAINED INFORMALLY FROM THE NAVY DEPARTMENT THAT HAROLD GORMAN ELLINGSON, NO. 4,128,776, ENLISTED OCTOBER 15, 1942, AND IS NOW SERVING AS AN APPRENTICE SEAMAN, V-12, U.S. NAVAL RESERVE.

IT WAS HELD IN DECISION OF JULY 30, 1942, 22 COMP. GEN. 85, THAT THE PAYMENT PROVIDED FOR IN THE ACT OF DECEMBER 17, 1919, IS TO BE MADE TO THE WIDOW OR CHILD OF THE DECEASED WITHOUT DESIGNATION AND WITHOUT ANY SHOWING OTHER THAN THE RELATIONSHIP. IT WAS HELD IN DECISION OF AUGUST 5, 1925, 5 COMP. GEN. 92, IN CONSTRUING THE ACT OF DECEMBER 17, 1919, IN PART, AS FOLLOWS:

THE USUAL RULE IS THAT ADOPTION MAKES ONE A CHILD OF THE FOSTER PARENTS. THE ADOPTION OF THE INFANT DAUGHTER OF LIEUTENANT WATSON SHIFTED THE LEGAL OBLIGATION FOR HER SUPPORT FROM HER FATHER, THE OFFICER, TO HER ADOPTING PARENTS, AND IT IS SHOWN THAT THERE WAS EVIDENCE BEFORE THE COURT THAT THE ADOPTING PARENTS WERE IN CIRCUMSTANCES ENABLING THEM TO DISCHARGE THE OBLIGATION THUS IMPOSED UPON THEM.

IT MUST BE HELD THE ADOPTED CHILD OF ANOTHER PERSON NOT IN THE ARMY IS NOT THE CHILD OF AN OFFICER OF THE ARMY WITHIN THE MEANING OF THE ACT OF DECEMBER 17, 1919. * * *

AS HAROLD GORMAN ELLINGSON WAS LEGALLY ADOPTED BY O. W. ELLINGSON AND GLADYS GARNIER ELLINGSON ON SEPTEMBER 20, 1935, HE WAS NOT THE CHILD OF THE SOLDIER AT THE TIME OF THE LATTER'S DEATH, WITHIN THE MEANING OF THE STATUTES.

ATTENTION IS ALSO INVITED TO THE FACT THAT IT HAS BEEN HELD THAT WHERE A MINOR ENTERS THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES, SUCH ACT OPERATES AS AN EMANCIPATION OF THE MINOR INSOFAR AS HIS RIGHT TO MANAGE HIS AFFAIRS IS CONCERNED. SEE IN THIS CONNECTION UNITED STATES V. WILLIAMS, 302 U.S. 46, 48; IROQUOIS IRON COMPANY V. INDUSTRIAL COMMISSION OF ILLINOIS, 128 N.E. 289, 12 A.L.R. 924; SMITH V. RICKERTS, 38 S.W. 2D 644.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.