B-123855, SEP. 30, 1955

B-123855, SEP. 30, 1955

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF, DISBURSING OFFICER, HEADQUARTERS USAF:

YOUR LETTER OF APRIL 22, 1955, REQUESTS A DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER, IN THE AMOUNT OF $642.12, REPRESENTING THE SIX MONTHS' DEATH GRATUITY, STATED IN THE FAVOR OF COMMISSIONER OF PUBLIC WELFARE, WESTCHESTER COUNTY, WHITE PLAINS, NEW YORK, AS CUSTODIAN OF LINDA JANE NAPP, MINOR CHILD OF JOSEPH NAPP, AIRMAN, SECOND CLASS, AF 1234 5524, WHO DIED ON AUGUST 29, 1953.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, APPLICABLE TO PERSONNEL OF THE ARMY AND THE AIR FORCE, IN EFFECT AT THE TIME OF THE DECEDENT'S DEATH, PROVIDED THAT IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF THE AIR FORCE THERE SHALL BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR CHILDREN OF THE MEMBER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE THE MEMBER WAS RECEIVING AT THE TIME OF DEATH.

IT APPEARS FROM THE ENCLOSURES WITH YOUR LETTER THAT ON JULY 4, 1950, AT BURLINGTON, NEW JERSEY, A CHILD, LINDA JANE NAPP, WAS BORN OUT OF WEDLOCK TO JOSEPH NAPP OF NEW YORK AND LUCILLE GARCIA OF NEW JERSEY. IN AN AFFIDAVIT DATED FEBRUARY 26, 1953, JOSEPH NAPP ACKNOWLEDGED THAT SHE WAS HIS CHILD AND THAT HE AND THE CHILD'S MOTHER WERE MARRIED ON JULY 12, 1952. HE FURTHER ALLEGED THAT ON FEBRUARY 2, 1953, HE LEARNED THAT LUCILLE A. GARCIA HAD A LIVING AND UNDIVORCED SPOUSE AT THE TIME OF HIS MARRIAGE TO HER AND THAT HE INTENDED TO INSTITUTE PROCEEDINGS TO OBTAIN A DIVORCE FROM HIS WIFE OR HAVE THE MARRIAGE ANNULLED. IT FURTHER APPEARS THAT THE MINOR CHILD WAS JUDICIALLY COMMITTED TO THE CUSTODY OF THE COMMISSIONER OF PUBLIC WELFARE OF WESTCHESTER COUNTY, WHITE PLAINS, NEW YORK, AND THAT THE CHILD HAS BEEN PLACED BY THE CUSTODIAN IN A LICENSED FOSTER HOME IN SCARSDALE, NEW YORK.

IT HAS BEEN HELD THAT THE SIX MONTHS' DEATH GRATUITY STATUTES SHOULD BE VIEWED AS INCLUDING ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED. SEE 30 COMP. GEN. 277. WHILE THE DECEDENT'S WRITTEN ACKNOWLEDGMENT THAT THE CHILD IS HIS CHILD WOULD APPEAR TO BE SUFFICIENT TO ESTABLISH HER RELATIONSHIP TO HIM, SHE WOULD NOT BE ENTITLED TO PAYMENT OF THE GRATUITY IF THE DECEDENT IS SURVIVED BY A WIDOW, WHO, UNDER THE STATUTE, HAS A PRIMARY RIGHT TO THE GRATUITY.

THE ONLY EVIDENCE SUBMITTED INDICATING THAT THE DECEDENT'S MARRIAGE TO THE CHILD'S MOTHER WAS INVALID IS HIS ALLEGATION THAT "ON 2 FEBRUARY 1953, I FOUND OUT THAT MY WIFE, LUCILLE A. GARCIA, HAD BEEN MARRIED TO JOHN SMITH ON 1 MARCH 1951 AND THAT SHE DID NOT HAVE A LEGAL DIVORCE AT THE TIME WE WERE MARRIED ON 12 JULY 1952.' SUCH UNSUPPORTED STATEMENT MAY NOT BE ACCEPTED AS PROOF OF THE REPRESENTATION MADE. THE UNITED STATES COURT OF CLAIMS HAS HELD THAT, WHERE THE VALIDITY OF A SECOND MARRIAGE CONTRACTED IN LEGAL FORM AND CONSUMMATED BY COHABITATION IS ATTACKED ON THE GROUND THAT ONE OF THE PARTIES TO THE MARRIAGE WAS INCAPACITATED TO CONTRACT SUCH MARRIAGE BY REASON OF AN EXISTING PRIOR MARRIAGE, IT MUST BE SHOWN THAT THE FORMER MARRIAGE WAS VALID, THAT AT THE TIME OF THE SECOND MARRIAGE THE FORMER SPOUSE WAS LIVING, AND THAT THE FORMER MARRIAGE HAD NOT BEEN LEGALLY DISSOLVED BY DIVORCE OR ANNULMENT. BRIGGS V. UNITED STATES, 116 C.CLS. 638. SEE ALSO MADE WELL V. UNITED STATES, 84 F.SUPP. 329.

SINCE UNDER THE LAW PAYMENT OF THE DEATH GRATUITY MAY BE MADE ON BEHALF OF THE CHILD ONLY IF THERE BE NO WIDOW, ON THE PRESENT RECORD THE MATTER IS TOO DOUBTFUL TO AUTHORIZE PAYMENT OF THE DEATH GRATUITY ON THE CHILD'S BEHALF. COMPARE 16 COMP. GEN. 798; ID. 889. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH WILL BE RETAINED IN THIS OFFICE.