B-62833, APRIL 1, 1947, 26 COMP. GEN. 723

B-62833, APRIL 1, 1947, 26 COMP. GEN. 723

SIX MONTHS' DEATH GRATUITY PAY - DEATH OF DESIGNATED BENEFICIARY PRIOR TO PAYMENT - RIGHT OF STEPFATHER TO PAYMENT THE TERM "PARENT" USED IN THE ACT OF DECEMBER 17, 1919, AS AMENDED, TO DESIGNATE A CLASS OF PERSONS WHOM THE SECRETARY OF WAR MAY DETERMINE TO HAVE BEEN DEPENDENT FOR PURPOSES OF PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE EVENT OF THE DEATH OF THE DESIGNATED BENEFICIARY PRIOR TO PAYMENT THEREOF, HAS REFERENCE ONLY TO THE NATURAL FATHER OR MOTHER OF THE DECEDENT, AND, THEREFORE, A STEPFATHER STANDING IN LOCO PARENTIS TO A DECEASED ARMY ENLISTED MAN MAY NOT BE REGARDED AS A "PARENT" ENTITLED TO SUCH GRATUITY WHERE THE DEATH OF THE ONLY DESIGNATED BENEFICIARY (MOTHER) OCCURRED PRIOR TO THE DECEDENT'S DEATH.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. S. H. SMITH, U.S. ARMY, APRIL 1, 1947:

THERE WAS RECEIVED BY FIRST INDORSEMENT OF THE CHIEF OF FINANCE DATED DECEMBER 27, 1946, YOUR LETTER OF DECEMBER 12, 1946, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF GEORGE WILLIAM GREEN, 627 WARREN STREET, BROOKLYN, N.Y., FOR THE 6 MONTHS' DEATH GRATUITY IN THE CASE OF JOHN E. WOHLMACHER, PRIVATE, FIRST CLASS, ARMY SERIAL NO. 6,980,164, WHOSE STATUS AS A PRISONER OF WAR WAS TERMINATED ON JULY 23, 1945, THE DATE ON WHICH EVIDENCE CONSIDERED SUFFICIENT TO ESTABLISH THE FACT OF DEATH ON DECEMBER 15, 1944, WAS RECEIVED BY THE SECRETARY OF WAR.

THE RECORD INDICATES THAT THE ENLISTED MAN WAS NOT SURVIVED BY A WIDOW, CHILD, FATHER, OR OTHER; THAT THE MOTHER, THE ONLY DESIGNATED BENEFICIARY TO RECEIVE THE 6 MONTHS' DEATH GRATUITY, DIED MAY 24, 1943; AND IT IS REPRESENTED THAT THE CLAIMANT WHO MARRIED THE MOTHER IN 1924, STOOD IN LOCO PARENTIS TO THE ENLISTED MAN CONTINUOUSLY FROM THE DATE OF SUCH MARRIAGE TO THE TIME THE ENLISTED MAN ENTERED THE MILITARY SERVICE.

THE CLAIM IS ASSERTED ON THE BASIS THAT THE CLAIMANT WAS " STEPFATHER WHO STOOD IN LOCO ENTIS.' IN A BRIEF PREPARED BY SIDNEY EISEN AS ATTORNEY OR CLAIMANT WHICH WAS FORWARDED IN SUPPORT OF THE VOUCHER, IT IS URGED THAT THE CLAIMANT IS ENTITLED TO RECEIVE THE 6 MONTHS' DEATH GRATUITY SINCE HE "IS A "FATHER" WITHIN THE MEANING OF THE STATUTE (TITLE 10, CH. 25, SEC. 903 OF THE U.S. CODE)" AND ALSO, BECAUSE HE "IS A LEGAL REPRESENTATIVE OF THE DESIGNATED DECEASED BENEFICIARY.'

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED (42 STAT. 1385; 55 STAT. 796), 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, 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. * * *

THE SAID ACT WAS FURTHER AMENDED BY THE ACT OF DECEMBER 17, 1943, 57 STAT. 599, 600, BY ADDING THE FOLLOWING PROVISIONS:

* * * AND PROVIDED FURTHER, THAT IN THE EVENT OF THE DEATH OF ANY BENEFICIARY BEFORE PAYMENT TO AND COLLECTION BY SUCH BENEFICIARY OF THE AMOUNT AUTHORIZED HEREIN, SUCH GRATUITY SHALL BE PAID TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION ABOVE STATED: AND PROVIDED FURTHER, THAT IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF WAR SHALL CAUSE THE AMOUNT HEREIN PROVIDED TO BE PAID TO ANY GRANDCHILD, PARENT, BROTHER OR SISTER, OR GRANDPARENT SHOWN TO HAVE BEEN DEPENDENT UPON SUCH OFFICER OR ENLISTED MAN PRIOR TO HIS DEATH, AND THE DETERMINATION OF SUCH FACT BY THE SECRETARY OF WAR SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT: AND PROVIDED FURTHER, THAT THE LAST FOREGOING PROVISO SHALL BE EFFECTIVE AS OF AUGUST 27, 1940.

SEC. 2. NOTHING HEREIN SHALL BE CONSTRUED TO INVALIDATE OR IN ANY MANNER AFFECT ANY PAYMENTS MADE PRIOR TO THE DATE OF THE APPROVAL OF THIS ACT, BUT NO GRATUITY PAYMENT SHALL HEREAFTER BE MADE TO THE REPRESENTATIVE OF THE ESTATE OF A BENEFICIARY WHO DIED PRIOR TO SUCH APPROVAL.

THE STATUTE PROVIDES FOR PAYMENT OF THE GRATUITY TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION FIXED THEREIN AND PROHIBITS PAYMENT TO THE REPRESENTATIVE OF THE ESTATE OF A DECEASED BENEFICIARY. HENCE, WHILE EVIDENCE HAS NOT BEEN FURNISHED TO ESTABLISH THAT THE CLAIMANT IS IN FACT THE LEGAL REPRESENTATIVE OF THE ESTATE OF MRS. ANNA GREEN, DECEASED, THE ESTABLISHMENT OF THE ALLEGATION THAT SUCH IS THE CASE WOULD NOT CREATE ANY RIGHT IN THE CLAIMANT TO THE DEATH GRATUITY. IN THIS CONNECTION IT MAY BE POINTED OUT THAT THE OPINION IN THE CASE OF S. A. CAMPBELL, ADMINISTRATOR, ETC. V. THE UNITED STATES, 80 C.1CLS. 836 (1935), AND THE DECISION OF THIS OFFICE REPORTED IN 22 COMP. GEN. 736 ( FEBRUARY 2, 1943), CITED BY THE ATTORNEY FOR THE CLAIMANT, PRECEDED THE ACT OF DECEMBER 17, 1943, SUPRA, AND ARE NO LONGER CONTROLLING BY REASON OF THE PROVISIONS OF THE ACT.

THIS OFFICE HAS HELD THAT THE TERM "DEPENDENT RELATIVE" AS USED IN DESIGNATING THE PERSONS WHOM AN OFFICER OR ENLISTED MAN MAY DESIGNATE AS BENEFICIARY, INCLUDES A STEPMOTHER. SEE 5 COMP. GEN. 948; 24 ID. 320; 25 ID. 725. ALSO, SEE 19 COMP. DEC. 651. HOWEVER, IN THOSE CASES WHERE THE DECEASED OFFICER OR ENLISTED MAN IS NOT SURVIVED BY A WIDOW OR CHILD, OR BY A DEPENDENT RELATIVE PREVIOUSLY DESIGNATED BY HIM WHO IS CAPABLE OF TAKING, THE STATUTE, AS AMENDED, SPECIFICALLY LIMITS THE CLASSES OF PERSONS WHOM THE SECRETARY OF WAR MAY DETERMINE TO HAVE BEEN DEPENDENT FOR THE PURPOSE OF PAYING THE GRATUITY.

THE FACT THAT THE CONGRESS BY THE ACT OF DECEMBER 17, 1943, SUPRA, ENUMERATED SPECIFICALLY THE CLASSES OF PERSONS WHOM THE SECRETARY OF WAR MIGHT CONSIDER IN MAKING A DETERMINATION OF DEPENDENCY AND EFFECTING PAYMENT OF THE GRATUITY, AND THAT THE CLASSES OF PERSONS WERE DIFFERENT AND LESS EXTENSIVE THAN THOSE FROM WHICH AN OFFICER OR ENLISTED MAN WAS PERMITTED TO DESIGNATE A BENEFICIARY, APPEARS TO BE A CLEAR INDICATION BY THE CONGRESS OF AN INTENTION TO LIMIT THE RELATIVES WHOM THE SECRETARY OF WAR COULD DETERMINE TO BE DEPENDENT FOR THE PURPOSE OF PAYING THE GRATUITY AUTHORIZED BY THE STATUTE. THUS, WHILE THE TERM "DEPENDENT RELATIVE" AS USED IN THE STATUTE MAY INCLUDE A STEPMOTHER, THE TERM "PARENT" USED IN DESIGNATING ONE OF THE CLASS OF PERSONS WHOM THE SECRETARY OF WAR MAY DETERMINE TO BE DEPENDENT, IS REGARDED AS REFERRING ONLY TO THE NATURAL FATHER OR MOTHER. THE CONCLUSION THAT THE CONGRESS SO INTENDED TO USE THE TERM "PARENT" IS APPARENT WHEN THAT TERM IS CONSIDERED IN THE LIGHT OF THE FULL CONTEST OF THE STATUTE, AS AMENDED, AND SUCH CONCLUSION IS SUPPORTED BY A STATEMENT OF THE CHAIRMAN OF THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, DURING THE HEARINGS HELD ON FEBRUARY 25, 1944, IN CONNECTION WITH THE ACT OF MARCH 29, 1944, 58 STAT. 129, INVOLVING SIMILAR PROVISIONS RELATING TO PERSONNEL OF THE NAVY ( PRINT NO. 198, 78TH CONG., P. 1362, COVERING HEARINGS ON S. 1428). IN A DISCUSSION RELATING TO THE APPLICATION OF THE TERM "PARENT" THE CHAIRMAN STATED--- "A STEPMOTHER IS NOT A PARENT.' ALSO, IT IS SIGNIFICANT TO NOTE THAT LEGISLATION PROPOSED IN THE SEVENTY-NINTH CONGRESS, S. 363, WOULD AMEND THE DESIGNATION OF THE CLASSES OF PERSONS WHOM THE HEADS OF DEPARTMENTS MIGHT DETERMINE TO BE DEPENDENTS FOR THE PURPOSE OF PAYING THE GRATUITY TO INCLUDE PERSONS STANDING IN LOCO PARENTS TO DECEDENTS, INDICATING THAT THE TERM "PARENT" AS USED IN THE PRESENT STATUTE DOES NOT INCLUDE SUCH PERSONS.

ACCORDINGLY, IT IS CONCLUDED THAT A STEPFATHER IS NOT A "PARENT" WTHIN THE CONTEMPLATION OF THE ACT OF DECEMBER 17, 1919, AS AMENDED, SUPRA. THEREFORE, PAYMENT IS NOT AUTHORIZED TO BE MADE ON THE VOUCHER, WHICH IS BEING RETAINED IN THIS OFFICE.