B-25070, AUGUST 6, 1942, 22 COMP. GEN. 120

B-25070, AUGUST 6, 1942, 22 COMP. GEN. 120

SIX MONTHS' DEATH GRATUITY - JURISDICTION AND SUFFICIENCY OF DEPENDENCY DETERMINATIONS BY SUBORDINATE OFFICIALS THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE AS "TO ANY OTHER DEPENDENT RELATIVE" DESIGNATED UNDER THE ACT OF MAY 22, 1928, TO RECEIVE THE 6 MONTHS' DEATH GRATUITY PROVIDED BY THAT ACT IS NOT AFFECTED BY SECTION 10 OF THE ACT OF MARCH 7, 1942, WHICH MAKES FINAL AND CONCLUSIVE THE ADMINISTRATIVE DETERMINATION OF THE FACT OF DEPENDENCY ONLY IN THE CLASS OF PAYMENTS ENUMERATED THEREIN. THE ADMINISTRATIVE DETERMINATION OF DEPENDENCY WHICH IS MADE FINAL AND CONCLUSIVE UNDER THE PROVISO IN THE ACT OF MAY 22, 1928, REQUIRING THE SECRETARY OF THE NAVY TO CAUSE THE 6 MONTHS' DEATH GRATUITY--- IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED RELATIVE--- TO BE PAID TO ANY GRANDPARENT, PARENT, SISTER, OR BROTHER, DETERMINED TO HAVE BEEN DEPENDENT ON THE DECEASED OFFICER, NURSE, OR ENLISTED MAN, NEED NOT BE THE PERSONAL DETERMINATION OF THE SECRETARY OF THE NAVY BUT MAY BE THE CONCLUSION AS TO DEPENDENCY REACHED BY A SUBORDINATE OFFICIAL DESIGNATED BY THE SECRETARY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 6, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 6, 1942, AS FOLLOWS:

SECTION 10 OF THE ACT APPROVED MARCH 7, 1942 ( PUBLIC LAW 490--- 77TH CONGRESS), PROVIDES:

"SEC. 10. THE DETERMINATION OF THE FACT OF DEPENDENCY UNDER THE PROVISIONS OF THIS ACT, AND THE DETERMINATION OF THE FACT OF DEPENDENCY UNDER THE PROVISIONS OF ANY AND ALL OTHER LAWS PROVIDING FOR THE PAYMENT OF PAY, ALLOWANCES, OR OTHER EMOLUMENTS TO ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES WHERE SUCH PAYMENTS ARE CONTINGENT UPON DEPENDENCY, SHALL BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, AND SUCH DETERMINATION SO MADE SHALL BE FINAL AND CONCLUSIVE: PROVIDED, THAT THE ACT OF JUNE 4, 1920 (41 STAT. 824), AS AMENDED ( U.S.C., TITLE 34, SEC. 943), IS HEREBY AMENDED BY DELETING THE WORD "ACTUALLY" IN THE FIRST PROVISO.'

IN A LETTER DATED MARCH 13, 1942, THE SECRETARY OF THE NAVY EXPRESSED THE DESIRE THAT ALL PERSONS IN THE NAVAL SERVICE SHOULD UNDERSTAND THE PURPOSE OF THE ACT OF MARCH 7, 1942, AND THE PROCEDURE THEREIN OUTLINED FOR ITS ADMINISTRATION. IN THIS CONNECTION, PARAGRAPH 13 OF SAID LETTER PROVIDES:

"13. IN THE ADMINISTRATION OF REFERENCE (A) THE CHIEF OF THE BUREAU OF NAVIGATION IS CHARGED WITH THE FOLLOWING:

"/C) TO DETERMINE THE FACT OF DEPENDENCY:

"/1) FOR THE PAYMENT OF SIX MONTHS' DEATH GRATUITY * * *.'

THE LAW AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AS SET FORTH IN U.S. CODE, TITLE 34, SECTION 943, 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 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: PROVIDED, THAT NOTHING IN THIS SECTION OR IN OTHER EXISTING LEGISLATION SHALL BE CONSTRUED AS MAKING THE PROVISIONS OF THIS SECTION APPLICABLE TO OFFICERS, ENLISTED MEN, OR NURSES OF ANY FORCES OF THE NAVY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR NAVY AND MARINE CORPS, AND NOTHING IN THIS SECTION SHALL BE CONSTRUED TO APPLY IN COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT OR PROBATIONARY APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD, AND THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY ( JUNE 4, 1920, CH. 228, SEC. 1, 41 STAT. 824; MAY 22, 1928, CH. 685, 45 STAT. 710).'

THE FIRST PROVISO OF THE ABOVE-QUOTED LAW WAS AMENDED BY SECTION 10 OF THE ACT OF MARCH 7, 1942, BY DELETING THEREFROM THE WORD "ACTUALLY.'

UNDER THE LANGUAGE OF SECTION 10, SUPRA, THE HEAD OF THE DEPARTMENT CONCERNED IS REQUIRED TO DETERMINE THE FACT OF DEPENDENCY IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 7, 1942, WHICH DETERMINATION, HOWEVER, THE HEAD OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO DELEGATE TO SUCH SUBORDINATE AS HE MAY DESIGNATE. AS INDICATED ABOVE, THE SECRETARY OF THE NAVY, IN HIS LETTER OF MARCH 13, 1942, DELEGATED TO THE CHIEF OF THE BUREAU OF NAVIGATION THE AUTHORITY TO DETERMINE THE FACT OF DEPENDENCY FOR THE PAYMENT OF SIX MONTHS' DEATH GRATUITY IN THE CASE OF NAVY PERSONNEL, AND BY PARAGRAPH 21 OF SUCH LETTER SIMILAR DELEGATION OF AUTHORITY WAS MADE TO THE COMMANDANT, U.S. MARINE CORPS, WITH RESPECT TO MARINE CORPS PERSONNEL.

IT WILL BE OBSERVED THAT SECTION 10 OF THE ACT OF MARCH 7, 1942, COVERS PAYMENTS TO ENLISTED MEN ONLY. MOREOVER, IN THE CASE OF PREVIOUSLY DESIGNATED DEPENDENT RELATIVES OF DECEASED NAVAL PERSONNEL, THE DEPENDENCY DETERMINATION, UNDER THE PROVISIONS OF 34 U.S.C.943, SUPRA, RESTS IN THE COMPTROLLER GENERAL. SIMILARLY, IN THE CASE OF UNDESIGNATED BENEFICIARIES FOR PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, AS AUTHORIZED IN THE FIRST PROVISO APPEARING IN 34 U.S.C. 943, THE DETERMINATION OF THE FACT OF DEPENDENCY IS EXPRESSLY REQUIRED TO BE MADE BY THE SECRETARY OF THE NAVY AND HIS DETERMINATION IN SUCH CASES IS MADE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT.

HOWEVER, IN VIEW OF THE PROVISIONS OF THE ACT OF MARCH 7, 1942, AS HEREIN REFERRED TO, AND OF THE INSTRUCTIONS ISSUED THEREUNDER BY THE SECRETARY OF THE NAVY ON MARCH 13, 1942, YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT PAYMENTS OF CLAIMS FOR THE SIX MONTHS' DEATH GRATUITY ON THE BASIS OF DETERMINATION OF THE FACT OF DEPENDENCY MADE BY THE CHIEF OF THE BUREAU OF NAVIGATION OR THE COMMANDANT, U.S. MARINE CORPS, IN THE CASE OF BOTH PREVIOUSLY DESIGNATED DEPENDENT RELATIVES AND OF UNDESIGNATED DEPENDENT RELATIVES OF DECEASED OFFICERS AND ENLISTED MEN OF THE NAVAL SERVICE, WILL BE PASSED IN THE AUDIT.

SINCE THE QUESTION OF PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS ONE OF IMMEDIATE CONCERN TO THE DEPENDENT RELATIVES OF DECEASED OFFICERS AND ENLISTED MEN, IT IS REQUESTED THAT YOUR REPLY BE EXPEDITED.

THERE IS NOTHING IN THE ACT OF MARCH 7, 1942, 56 STAT. 143, WHICH AFFECTS THE JURISDICTION OF THIS OFFICE WITH RESPECT TO PAYMENTS OF THE 6 MONTHS' DEATH GRATUITY UNDER THE ACT OF MAY 22, 1928, 45 STAT. 710. 34 U.S.C. 943. THE AMENDMENT THEREOF IN SECTION 10 OF THE ACT OF MARCH 7, 1942, 56 STAT. 145, IS OF A PROVISO WHICH CONFERS UPON THE SECRETARY OF THE NAVY AUTHORITY TO CAUSE TO BE PAID THE AMOUNTS THEREOF IN CASES OF UNDESIGNATED RELATIVES, AND IN THAT CONNECTION AND TO THIS LIMITED EXTENT TO MAKE A FINAL AND CONCLUSIVE DETERMINATION OF THE FACT OF DEPENDENCY OF RELATIVES TO WHOM HE HAS CAUSED PAYMENT TO BE MADE.

IN DECISION OF JULY 30, 1942, B-25657, 22 COMP. GEN. 85, TO AN ARMY DISBURSING OFFICER, IT WAS HELD--- CONTRARY TO A HOLDING OF A FORMER COMPTROLLER GENERAL--- THAT THE DEATH GRATUITY STATUTE IN AUTHORIZING PAYMENTS TO ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED CONTEMPLATED A CLASS OF NEAR RELATIVES WHO HAD AN INSURABLE INTEREST IN THE DECEASED, NOT THAT EVIDENCE OF DEPENDENCY SHOULD BE FURNISHED, AND THAT, WHERE PROPERLY DESIGNATED, PAYMENT WAS AUTHORIZED IN THE CASE OF MOTHER, FATHER, BROTHER, OR SISTER WITHOUT EVIDENCE OF DEPENDENCY. IN THE CASE OF MORE REMOTE RELATIVES IT WAS HELD THERE MUST BE EVIDENCE OF INSURABILITY, AND THIS OFFICE UNDER THE DEATH GRATUITY STATUTES AS TO ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED HAS JURISDICTION TO DETERMINE THAT THE RELATIVE DESIGNATED IS A DEPENDENT RELATIVE--- THAT IS, ONE WHO HAS AN INSURABLE INTEREST IN THE DECEASED--- WITHIN THOSE ACTS. THE OFFICIALS YOU HAVE DIRECTED TO DETERMINE THE FACT OF DEPENDENCY NECESSARILY WILL EXERCISE THEIR AUTHORITY SUBJECT TO THE AUDIT OF THIS OFFICE IN ALL SUCH CASES.

PAYMENTS AUTHORIZED BY YOU TO BE MADE TO UNDESIGNATED RELATIVES, AS PROVIDED IN THE FIRST PROVISO TO THE SECTION OF THE CODE AS QUOTED IN YOUR LETTER, ARE NOT WITHIN THE JURISDICTION OF THIS OFFICE EXCEPT TO THE EXTENT THAT AS TO SUCH PAYMENTS THIS OFFICE HAS AUTHORITY TO DETERMINE THAT THE TERMS OF THE PROVISO HAVE BEEN OBSERVED.

YOUR QUESTION IS WHETHER, HAVING AUTHORIZED CERTAIN OTHER OFFICERS TO DETERMINE THE FACT OF DEPENDENCY IN THE CASE OF UNDESIGNATED RELATIVES, SUCH DETERMINATION WILL BE ACCEPTED BY THIS OFFICE. IN VIEW OF THE DECISION OF JULY 30, 1942, B-25657, SUPRA, QUESTION WOULD ARISE ONLY WITH RESPECT TO DETERMINATIONS IN CASES OF GRANDPARENTS. CLEARLY, THE SELECTION OF THE RELATIVE TO WHOM PAYMENT IS TO BE MADE, WHERE THERE HAS BEEN NO DESIGNATION BY THE DECEASED, IS EXCLUSIVELY WITHIN THE JURISDICTION OF THE SECRETARY OF THE NAVY. THE STATUTE PROVIDES THAT THE SECRETARY OF THE NAVY SHALL CAUSE THE PAYMENT TO BE MADE TO ANY ONE OF THE NAMED RELATIVES WITH THE FURTHER PROVISION THAT THE DETERMINATION OF SUCH FACT (DEPENDENCY) BY THE SECRETARY OF THE NAVY SHALL BE FINAL AND CONCLUSIVE. AS THE PRINCIPAL CLAUSE OF THE PROVISION DOES NOT REQUIRE THE PERSONAL ACTION OF THE SECRETARY OF THE NAVY THE FINALITY OF THE CONCLUSION REACHED BY THE SUBORDINATE OFFICIAL DESIGNATED BY THE SECRETARY OF THE NAVY TO PERFORM THE DUTIES CONTEMPLATED BY THE STATUTE WILL BE TREATED IN THE AUDIT AS THE DETERMINATION OF THE SECRETARY OF THE NAVY AND GIVEN EFFECT ACCORDINGLY.