A-41830, APRIL 22, 1932, 11 COMP. GEN. 398

A-41830, APRIL 22, 1932, 11 COMP. GEN. 398

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - STEPMOTHERS AS THE RELATIONSHIP OR CONDITION OF DEPENDENCY ON THE BASIS OF WHICH THE RIGHT TO THE ADJUSTED SERVICE CREDIT OF A WORLD WAR VETERAN IS ASSERTED UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT, MUST HAVE BEEN EXISTING AT DATE OF DEATH OF THE VETERAN OR THEREAFTER AND PRIOR TO JANUARY 2, 1935, A PERSON ONCE BEARING THE RELATIONSHIP OF STEPMOTHER TO VETERAN WHO REMARRIED AFTER THE DEATH OF THE FATHER OF THE VETERAN BUT PRIOR TO THE VETERAN'S DEATH, DOES NOT BEAR THE RELATIONSHIP OF STEPMOTHER TO THE VETERAN WITHIN THE MEANING OF THE STATUTE AND IS NOT ENTITLED TO PAYMENT OF THE VETERAN'S ADJUSTED SERVICE CREDIT.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 22, 1932:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR PREAUDIT IN THE WORLD WAR ADJUSTED COMPENSATION CASE OF BALTROMEIUS REKOZCI, A-4557233, XC 57061, AND ADMINISTRATIVELY APPROVED AWARD OF THE VETERAN'S ADJUSTED SERVICE CREDIT IN THE AMOUNT OF $568.25, PAYABLE IN 10 QUARTERLY INSTALLMENTS, AND VOUCHER FOR THE INITIAL PAYMENT OF $56.82, IN FAVOR OFJEVA ZEBRAUSKIENE RIEKASIENE STIKELIENE, AS THE VETERAN'S "STEPMOTHER" AND THE PREFERRED DEPENDENT. THE QUESTION INVOLVED IS WHETHER THERE EXISTS THE RELATIONSHIP BETWEEN THE CLAIMANT AND THE VETERAN OF STEPMOTHER AND STEPCHILD WITHIN THE MEANING OF THE WORLD WAR ADJUSTED COMPENSATION ACT.

THE VETERAN DIED IN THE SERVICE ON NOVEMBER 15, 1919. ON APRIL 15, 1931, MRS. JEVA ZEBRAUSKIENE RIEKASIENE STIKELIENE, AS THE VETERAN'S STEPMOTHER, EXECUTED AN APPLICATION FOR DEPENDENCY BENEFITS UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED, AND ALSO A FORM NO. 527, APPLICATION FOR DEATH COMPENSATION BENEFITS UNDER THE WORLD WAR VETERANS' ACT, AS AMENDED. THE CLAIMANT SUBMITTED ALSO TO THE VETERANS' ADMINISTRATION, IN CONNECTION WITH HER CLAIMS, CERTIFIED COPIES OF PUBLIC DOCUMENTS, WHICH, TOGETHER WITH OTHER EVIDENCE IN THE FILE, DISCLOSE THAT THE VETERAN WAS BORN ON AUGUST 23, 1886, THAT HIS MOTHER'S NAME WAS VERONIKA, NEE KUNGYTE; THAT THE VETERAN'S NATURAL MOTHER DIED IN 1910; THAT THE VETERAN'S FATHER REMARRIED TO THE CLAIMANT, JEVA ZEBRAUSKIENE, ON FEBRUARY 16, 1914; THAT THEREAFTER, THE FATHER DIED, WITHOUT HAVING ANY ISSUE BORN FROM THIS MARRIAGE; THAT THE CLAIMANT REMARRIED TO ONE JONAS STIKELIS ON FEBRUARY 4, 1918; AND THAT CLAIMANT IS NOW MORE THAN 60 YEARS OF AGE.

SECTION 601 (A) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 828, PROVIDES AS FOLLOWS:

IF THE VETERAN HAS DIED BEFORE MAKING APPLICATION UNDER SECTION 302, OR, IF ENTITLED TO RECEIVE ADJUSTED SERVICE PAY, HAS DIED AFTER MAKING APPLICATION BUT BEFORE HE HAS RECEIVED PAYMENT UNDER TITLE IV, THEN THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT SHALL (AS SOON AS PRACTICABLE AFTER RECEIPT OF AN APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 604, BUT NOT BEFORE MARCH 1, 1925) BE PAID TO HIS DEPENDENTS, IN THE FOLLOWING ORDER OF PREFERENCE:

(1) TO THE WIDOW;

(2) IF NO WIDOW ENTITLED TO PAYMENT, THEN TO THE CHILDREN, SHARE AND SHARE ALIKE;

(3) IF NO WIDOW OR CHILDREN ENTITLED TO PAYMENT, THEN TO THE MOTHER; * *

SECTION 602 (C) OF THE STATUTE, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, PROVIDES AS FOLLOWS:

(C) NO PAYMENT UNDER SECTION 601 SHALL BE MADE TO A MOTHER OR FATHER UNLESS DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND BEFORE JANUARY 3, 1930. IF AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND BEFORE JANUARY 3, 1930, THE MOTHER IS UNMARRIED OR OVER SIXTY YEARS OF AGE, OR THE FATHER IS OVER SIXTY YEARS OF AGE, SUCH MOTHER OR FATHER, RESPECTIVELY, SHALL BE PRESUMED TO BE DEPENDENT.

THE DATE OF JANUARY 3, 1930, WAS EXTENDED TO JANUARY 2, 1935, BY THE ACT OF JUNE 5, 1930, 46 STAT. 496.

IT DOES NOT APPEAR FROM THE FILE THAT THE VETERAN WAS EVER MARRIED OR THAT HE EVER HAD ANY CHILDREN. CONSEQUENTLY, THE FIRST TWO PREFERRED DEPENDENTS PRESCRIBED BY THE STATUTE, SUPRA, ARE NOT FOR CONSIDERATION. THERE ARE, HOWEVER, FOR CONSIDERATION THE RIGHTS OF THE THIRD PREFERRED DEPENDENT NAMED IN THE STATUTE, VIZ, THE MOTHER.

THE TERM "MOTHER" IS DEFINED IN SECTION 607 (C) OF THE ORIGINAL ACT MAY 19, 1924, 43 STAT. 130, AS FOLLOWS:

THE TERMS * * * "MOTHER" INCLUDE * * * STEPMOTHERS, * * * MOTHERS THROUGH ADOPTION, AND PERSONS WHO HAVE, FOR A PERIOD OF NOT LESS THAN ONE YEAR, STOOD IN LOCO PARENTIS TO THE VETERAN AT ANY TIME PRIOR TO THE BEGINNING OF HIS SERVICE: * * *

THE NATURAL MOTHER IS REMOVED FROM CONSIDERATION HEREIN BECAUSE OF HER DEATH IN 1910. WITH RESPECT TO THE CLAIMANT'S RIGHTS AS A STEPMOTHER, THE EVIDENCE OF RECORD SHOWS THAT HER MARRIAGE TO THE VETERAN'S FATHER HAD TERMINATED DURING 1917 OR 1918 BY THE DEATH OF THE VETERAN'S FATHER, AND THAT SHE REMARRIED TO A THIRD HUSBAND ON FEBRUARY 4, 1918, PRIOR TO THE VETERAN'S DEATH.

UNDER THE STATUTE, THE RIGHT OF A DEPENDENT MOTHER TO THE ADJUSTED SERVICE CREDIT OF HER VETERAN SON FIRST ARISES AS OF THE DATE OF DEATH OF THE VETERAN. THE RIGHT MAY ARISE AT ANY TIME AFTER THE DEATH OF THE VETERAN AND PRIOR TO JANUARY 2, 1935, BY THE MOTHER BECOMING 60 YEARS OF AGE, BUT THERE IS NO PROVISION IN THE STATUTE FOR THE RIGHT TO ACCRUE PRIOR TO THE DEATH OF THE VETERAN. THEREFORE, THE RELATIONSHIP OR CONDITION OF DEPENDENCY, ON THE BASIS OF WHICH THE RIGHT IS ASSERTED, MUST HAVE BEEN EXISTING AT DATE OF DEATH OF THE VETERAN OR THEREAFTER AND PRIOR TO JANUARY 2, 1935.

WHILE THE STATUTE INCLUDES A STEPMOTHER IN THE TERM "MOTHER," THE RELATIONSHIP OF STEPMOTHER IS ARTIFICIAL AND DOES NOT CONTINUE AFTER THE MARRIAGE RELATION WITH THE CHILD'S FATHER IS TERMINATED, AT LEAST IN A CASE SUCH AS THIS WHERE THE STEPMOTHER REMARRIED. IN 46 CORPUS JURIS 1338 (NOTE) THERE IS QUOTED THE CASE OF NOBLE V. STATE, 22 OH.ST. 541, HOLDING THAT THE RELATIONSHIP OF STEPFATHER AND STEPCHILD DOES NOT EXIST AFTER THE TERMINATION OF THE MARRIAGE RELATION BETWEEN THE STEPFATHER AND THE STEPDAUGHTER'S MOTHER. SEE, ALSO, THE CASE OF FOSTER V. DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, 73 A.L.R., 1012, APPLYING THE PROVISIONS OF A WORKMEN'S COMPENSATION ACT. INASMUCH AS THE RELATIONSHIP OF STEPMOTHER TO THE VETERAN TERMINATED PRIOR TO HIS DEATH, SHE HAS NO RIGHT TO HIS ADJUSTED SERVICE CREDIT AS HIS DEPENDENT "MOTHER" ON THE BASIS OF SUCH RELATIONSHIP.

WITH RESPECT TO THE CLAIMANT'S RIGHTS AS A PERSON WHO STOOD IN LOCO PARENTIS, WITHIN THE RM,"MOTHER," AS ABOVE DEFINED, THE FILE SHOWS THAT THE VETERAN WAS 24 YEARS OLD WHEN HIS NATURAL MOTHER DIED IN THE YEAR 1910, AND THAT HE RESIDED IN THE UNITED STATES FROM THE YEAR 1912, THE FATHER CONTINUING TO RESIDE IN WHAT IS NOW KNOWN AS LITHUANIA. INASMUCH AS THE CLAIMANT DID NOT MARRY THE VETERAN'S FATHER UNTIL 1914, AT WHICH TIME THE VETERAN WAS MORE THAN 21 YEARS OF AGE AND RESIDING IN THIS COUNTRY, IT WOULD APPEAR THAT SHE NEVER STOOD IN LOCO PARENTIS TO HIM, WITHIN THE MEANING OF THAT TERM. ACCORDINGLY, SHE IS NOT ENTITLED TO PAYMENT OF THE VETERAN'S ADJUSTED SERVICE CREDIT UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED, AS A PERSON WHO STOOD IN LOCO PARENTIS.

YOU ARE ADVISED, THEREFORE, THAT THE ADMINISTRATIVELY APPROVED AWARD AND VOUCHER FOR INITIAL PAYMENT MAY NOT BE CERTIFIED BY THIS OFFICE FOR PAYMENT.

IT IS SUGGESTED FOR YOUR CONSIDERATION UNDER THE TERMS OF THE WORLD WAR VETERANS' ACT, WHETHER CLAIMANT HAS ESTABLISHED SUCH A RELATION TO, OR CONDITION OF DEPENDENCY ON, THE VETERAN AS TO ENTITLE HER TO DEATH COMPENSATION IN THE AMOUNT OF $20 PER MONTH HERETOFORE ADMINISTRATIVELY APPROVED IN HER FAVOR.