B-56467, APRIL 16, 1946, 25 COMP. GEN. 725

B-56467: Apr 16, 1946

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THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 18. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THE PROVISIONS OF SAID ACT WERE EXTENDED TO THE OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10. OR IN ACCORDANCE WITH A FINDING BY THE SECRETARY OF WAR IS PRESUMED TO HAVE DIED. IT IS STATED THAT THE FATHER DIED ON DECEMBER 24. IS WHETHER A "STEPBROTHER. IS ENTITLED TO PAYMENT UNDER THE ACT. IN CONNECTION WITH THE QUESTION THUS PRESENTED IT IS STATED IN YOUR LETTER AS FOLLOWS: IT IS REALIZED THAT THE JUDGE ADVOCATE GENERAL SPECIFICALLY EXCLUDED STEPBROTHERS AND SISTERS FROM THOSE CATEGORIES OF RELATIVES ELIGIBLE TO RECEIVE THE GRATUITY UNDER THE ACT OF CONGRESS OF 17 DECEMBER 1919 (41 STAT. 367) IN HIS DECISION OF 4 MAY 1920.

B-56467, APRIL 16, 1946, 25 COMP. GEN. 725

SIX MONTHS' DEATH GRATUITY PAY - STEPBROTHER THERE BEING NO RELATIONSHIP EITHER BY BLOOD OR BY AFFINITY BETWEEN AN ARMY ENLISTED MAN AND HIS STEPBROTHER, THE STEPBROTHER MAY NOT BE CONSIDERED AS A "RELATIVE" WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTE OF DECEMBER 17, 1919, AS AMENDED, SO AS TO BE ENTITLED UPON THE DEATH OF THE ENLISTED MAN, TO THE PAYMENT AUTHORIZED BY THE STATUTE, EVEN THOUGH THE ENLISTED MAN HAD DESIGNATED THE STEPBROTHER AS A BENEFICIARY TO RECEIVE THE PAYMENT. 24 COMP. GEN. 320, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR E. M. SIMMONS, U.S. ARMY, APRIL 16, 1946:

BY FIRST ENDORSEMENT DATED MARCH 11, 1946, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 18, 1946, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, IN FAVOR OF FRANK PLOTT, STEPBROTHER AND DESIGNATED BENEFICIARY OF JAMES W. EKSTEDT, ASN 19010564, DECEASED, LATE PRIVATE, FIRST CLASS, U.S. ARMY, FOR $319.20, REPRESENTED AS EQUAL TO THE PAY OF THE DECEASED FOR 6 MONTHS, THE CLAIM ARISING UNDER THE PROVISIONS OF THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, AND THE ACT OF DECEMBER 10, 1941, 55 STAT. 796. THE ACT OF DECEMBER 17, 1919, AS AMENDED, PROVIDES IN PERTINENT 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. THE SECRETARY OF WAR SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE ARMY * * *.

THE PROVISIONS OF SAID ACT WERE EXTENDED TO THE OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10, 1941, RETROACTIVE TO AUGUST 27, 1940.

INFORMATION CONTAINED IN THE FILE INDICATES THAT PRIVATE EKSTEDT DIED, OR IN ACCORDANCE WITH A FINDING BY THE SECRETARY OF WAR IS PRESUMED TO HAVE DIED, ON JANUARY 9, 1942, AND THAT HE HAD DESIGNATED HIS FATHER JAMES EKSTEDT, AS PRINCIPAL BENEFICIARY UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, SUPRA, AND HIS "STEPBROTHER," FRANK PLOTT, AS ALTERNATE. IT IS STATED THAT THE FATHER DIED ON DECEMBER 24, 1940, AND THE QUESTION PRESENTED FOR DECISION, IS WHETHER A "STEPBROTHER," NOT BEING A BLOOD RELATIVE OF THE DECEDENT, IS ENTITLED TO PAYMENT UNDER THE ACT.

IN CONNECTION WITH THE QUESTION THUS PRESENTED IT IS STATED IN YOUR LETTER AS FOLLOWS:

IT IS REALIZED THAT THE JUDGE ADVOCATE GENERAL SPECIFICALLY EXCLUDED STEPBROTHERS AND SISTERS FROM THOSE CATEGORIES OF RELATIVES ELIGIBLE TO RECEIVE THE GRATUITY UNDER THE ACT OF CONGRESS OF 17 DECEMBER 1919 (41 STAT. 367) IN HIS DECISION OF 4 MAY 1920. HOWEVER, IN VIEW OF THE BROAD INTERPRETATION OF THE RIGHTS OF STEP-RELATIVES TO PAYMENT OF THE GRATUITY EXPRESSED IN MANUSCRIPT DECISION B-41550 DATED 30 OCTOBER 1944, (24 CG 320), THE UNDERSIGNED IS IN DOUBT AS TO WHETHER PAYMENT ON THE ATTACHED VOUCHER IS AUTHORIZED AND REQUESTS THAT IT BE FORWARDED TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION.

IN THE SAID DECISION OF OCTOBER 30, 1944, 24 COMP. GEN. 320, IT WAS RECOGNIZED THAT STEPPARENTS AND STEPCHILDREN, BY VIRTUE OF BEING RELATIVES BY AFFINITY, ARE RELATIVES WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTES--- CITING 19 COMP. DEC. 651, 5 COMP. GEN. 948, AND MANUSCRIPT DECISION OF DECEMBER 19, 1933, A-52184. HOWEVER, AS APPARENTLY WAS RECOGNIZED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY DATED MAY 4, 1920, REFERRED TO IN YOUR LETTER, THE MARRIAGE OF ONE PERSON HAVING ISSUE TO ANOTHER PERSON HAVING ISSUE DOES NOT CREATE A RELATIONSHIP BY AFFINITY BETWEEN THEIR RESPECTIVE ISSUE. RELATION BY AFFINITY HAS GENERALLY BEEN DEFINED AS THE RELATIONSHIP THROUGH MARRIAGE BETWEEN THE HUSBAND AND THE BLOOD RELATIVES OF THE WIFE AND BETWEEN THE WIFE AND THE BLOOD RELATIVES OF THE HUSBAND. IN SUCH CASES, THE BLOOD RELATIVES OF THE HUSBAND DO NOT BECOME RELATED BY AFFINITY TO THE BLOOD RELATIVES OF THE WIFE, THEIR STATUS BEING THAT OF AFFINITAS AFFINITATIS--- THE CONNECTION BETWEEN PARTIES ARISING FROM MARRIAGE WHICH IS NEITHER CONSANGUINITY NOR AFFINITY, I.E., THE CONNECTION BETWEEN THE KINSMEN OF BOTH SPOUSES. CENTRAL RAILROAD AND BANKING CO. OF GA. V. ROBERTS, 91 GA. 513, 18 S.E. 315; STATE V. HOOPER, 37 P./2D) 52; DOYLE V. COMMONWEALTH, 1 VA. 808, 40 S.E. 925; NORTH ARKANSAS AND W. RY. CO. ET. UX, 71 ARK. 38, 70 S.W. 312; TEGARDEN V. PHILLIPS, 14 IND. APP. 27, 42 N.E. 549; CHINN V. STATE, 47 OHIO ST. 575, 26 N.E. 986; SMITH V. SUPREME TENT KNIGHTS OF MACCABEES OF THE WORLD, 127 IOWA 115, 102 N.W. 830. SEE, ALSO, 2 CLJ. 378, NOTE 18, AND 2 CLJ.S. 991.

SINCE IT APPEARS THAT FRANK PLOTT, THE DESIGNATED BENEFICIARY IN THIS CASE, WAS THE STEPBROTHER" OF THE DECEDENT, I.E., THE SON OF THE DECEDENT'S STEPMOTHER, THERE WOULD BE NO RELATIONSHIP EITHER BY BLOOD OR BY AFFINITY BETWEEN HIM AND THE DECEDENT. IT FOLLOWS THAT PAYMENT OF THE 6 MONTHS' DEATH GRATUITY TO HIM IS NOT AUTHORIZED UNDER THE PROVISIONS OF THE STATUTE.