A-27897, JULY 26, 1929, 9 COMP. GEN. 39

A-27897, JULY 26, 1929, 9 COMP. GEN. 39

GRATUITIES - SIX MONTHS' DEATH - MARINE CORPS ENLISTED MAN A FOSTER PARENT WHO IS NOT AN ADOPTIVE PARENT DOES NOT COME WITHIN THE MEANING OF "PARENT" AS USED IN THE ACT OF MAY 22, 1928, 45 STAT. 710, GRANTING SIX MONTHS' DEATH GRATUITY TO CERTAIN CLASSES OF RELATIVES OF OFFICERS AND ENLISTED MEN OF THE NAVY AND MARINE CORPS.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 26, 1929:

THERE IS FOR CONSIDERATION THE CLAIM OF MRS. LILLIAN M. LAKIN FOR 6 MONTHS' DEATH GRATUITY AT THE RATE OF $21 PER MONTH ON ACCOUNT OF THE DEATH, WHILE IN THE SERVICE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF RAYMOND NATHAN LAKIN, FORMERLY A PRIVATE IN THE MARINE CORPS.

IT APPEARS THAT THE PARENTS OF THE ENLISTED MAN DIED WHILE HE WAS AN INFANT AND FROM EARLY CHILDHOOD HE WAS BROUGHT UP AND CARED FOR BY CLAIMANT AND HER HUSBAND, WHO WAS THE ENLISTED MAN'S UNCLE AND HIS GUARDIAN.

THE ACT OF MAY 22, 1928, 45 STAT. 710, 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 THE 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: * * *.

THE ENLISTED MAN IN THIS CASE LEFT NO WIDOW OR CHILD, AND HE HAD NOT PREVIOUSLY DESIGNATED ANY DEPENDENT RELATIVE. THEREFORE, PAYMENT COULD BE MADE ONLY TO A GRANDPARENT, PARENT, SISTER, OR BROTHER, AFTER A DETERMINATION BY THE SECRETARY OF THE NAVY THAT SUCH RELATIVE WAS ACTUALLY DEPENDENT ON THE ENLISTED MAN PRIOR TO HIS DEATH. THERE HAS BEEN NO DETERMINATION BY THE SECRETARY OF THE NAVY OF ACTUAL DEPENDENCY, AND EVEN IF THERE HAD BEEN SUCH DETERMINATION, PAYMENT TO CLAIMANT WOULD NOT BE AUTHORIZED SINCE SHE DOES NOT COME WITHIN ANY OF THE CLASSES OF RELATIVES NAMED IN THE STATUTE. AT MOST, SHE WAS A FOSTER PARENT, AND THE RULE IS WELL SETTLED THAT A FOSTER PARENT IS NOT ENTITLED TO THE RIGHTS OF AN ACTUAL PARENT IN THE ABSENCE OF EVIDENCE OF ADOPTION BY SUCH FOSTER PARENT. SEE IN THIS CONNECTION 25 COMP. DEC. 720; SEE, ALSO, 4 COMP. GEN. 554.