A-27897, JULY 26, 1929, 9 COMP. GEN. 38

A-27897, JULY 26, 1929, 9 COMP. GEN. 38

PAY - ARREARS - MARINE CORPS ENLISTED MAN, DECEASED IN THE ABSENCE OF EVIDENCE THAT CLAIMANT WAS THE ADOPTIVE PARENT OF THE DECEASED, THERE IS NO AUTHORITY OF LAW TO PAY THE ARREARS OF PAY DUE A DECEASED ENLISTED MAN OF THE MARINE CORPS TO AN UNCLE WHO HAD ALSO BEEN GUARDIAN OF THE ENLISTED MAN.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 26, 1929:

REVIEW HAS BEEN REQUESTED OF THE ACTION TAKEN IN DISALLOWING THE CLAIM OF RAY C. LAKIN FOR $40.65 ARREARS OF PAY DUE RAYMOND NATHAN LAKIN, FORMERLY A PRIVATE IN THE MARINE CORPS, AT THE DATE OF HIS DEATH.

IT APPEARS THAT RAYMOND NATHAN LAKIN'S PARENTS DIED WHILE HE WAS AN INFANT, AND FROM EARLY CHILDHOOD HE WAS BROUGHT UP AND CARED FOR BY THE CLAIMANT, WHO WAS HIS UNCLE AND ALSO HIS GUARDIAN, TO THE TIME OF HIS BECOMING OF AGE. THE ENLISTED MAN LEFT NO WIDOW OR CHILD AND THE CLAIMANT MADE CLAIM FOR THE ARREARS OF PAY AS THE NEAREST RELATIVE TO THE DECEASED ENLISTED MAN.

THE ACT OF MAY 27, 1908, 35 STAT. 373, PROVIDES:

HEREAFTER IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED MEN OF THE NAVY AND MARINE CORPS, WHERE THE AMOUNT DUE THE DECEDENT'S ESTATE IS LESS THAN FIVE HUNDRED DOLLARS AND NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW; SECOND, IF THE DECEDENT LEFT NO WIDOW, OR WIDOW BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; THIRD, IF NO WIDOW OR DESCENDANTS, THEN TO THE FATHER AND MOTHER IN EQUAL PARTS, PROVIDED FATHER HAS NOT ABANDONED THE SUPPORT OF HIS FAMILY, IN WHICH CASE TO THE MOTHER ALONE; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NO WIDOW, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES: PROVIDED, THAT THIS ACT SHALL NOT BE SO CONSTRUED AS TO PREVENT PAYMENT FROM THE AMOUNT DUE THE DECEDENT'S ESTATE OF FUNERAL EXPENSES, PROVIDED A CLAIM THEREFOR IS PRESENTED BY THE PERSON OR PERSONS WHO ACTUALLY PAID THE SAME BEFORE SETTLEMENT BY THE ACCOUNTING OFFICERS.

IN DECISION OF APRIL 2, 1919, 25 COMP. DEC. 720, CONSTRUING A SIMILAR STATUTE RELATING TO SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED MEN OF THE ARMY, IT WAS HELD THAT IN THE ABSENCE OF AFFIRMATIVE EVIDENCE OF ADOPTION IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF LAW, A FOSTER PARENT OF A DECEASED OFFICER OR ENLISTED MAN OF THE ARMY WAS NOT ENTITLED TO RECEIVE THE ARREARS OF PAY DUE SAID DECEDENT.

THE RULE LAID DOWN IN THE DECISION CITED IS CONTROLLING IN THE INSTANT CASE. THE CLAIMANT IS, AT MOST, A FOSTER PARENT AND THERE IS NO EVIDENCE OR ALLEGATION THAT THE DECEASED ENLISTED MAN WAS ADOPTED BY CLAIMANT.

ACCORDINGLY, THE ACTION TAKEN IN DISALLOWING THE CLAIM MUST BE AND IS SUSTAINED.