B-111466, SEP 9, 1952

B-111466, SEP 9, 1952

PRECIS-UNAVAILABLE

CAPTAIN C.L. CARDWELL, F.C., USA:

BY 1ST INDORSEMENT DATED AUGUST 18, 1952, OF THE CHIEF OF FINANCE DEPARTMENT OF THE ARMY, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF JULY 29, 1952, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF MRS. HELEN A. BASS AND MR. FRED A. BASS, AS NON-DESIGNATED ADOPTIVE PARENTS OF THOMAS BASS, LATE CORPORAL, RA 32 673 225, UNITED STATES ARMY, FOR $915.90, REPRESENTED AS EQUAL TO THE PAY OF THE DECEDENT FOR SIX MONTHS, THE CLAIM ARISING UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 1946 ED., 903.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY 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 OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. *** AND PROVIDED FURTHER. THAT IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF WAR SHALL CAUSE THE AMOUNT HEREIN PROVIDED TO BE PAID TO ANY GRANDCHILD, PARENT, BROTHER OR SISTER, OR GRANDPARENT SHOWN TO HAVE BEEN DEPENDENT UPON SUCH OFFICER OR ENLISTED MAN PRIOR TO HIS DEATH, AND THE DETERMINATION OF SUCH FACT BY THE SECRETARY OF WAR SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT' ***"

THE COPY OF THE FINAL REPORT OF DEATH DATED AUGUST 3, 1951, SHOWS THAT THOMAS BASS, SERVICE NO. RA 32 673 225, CORPORAL, INFANTRY, UNITED STATES ARMY, WAS KILLED IN ACTION ON AUGUST 14, 1950, IN KOREA; THAT HE DESIGNATED AS HIS BENEFICIARY UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, (1) JUANITA E. CARR, FOSTER MOTHER, AND (2) LLOYD E. CARR, FOSTER FATHER; THAT HE WAS LEGALLY ADOPTED BY MR. AND MRS. FRED A. BASS, 68 PEMBROKE AVENUE, BUFFALO, NEW YORK, AND THE ADOPTION RECORDED IN ERIE COUNTY CLERK'S OFFICE ON DECEMBER 28, 1925. IT APPEARS FROM THE "PUBLIC VOUCHER FOR SIX MONTH'S GRATUITY PAY". DD FORM 397, THAT THE DECEDENT IS NOT SURVIVED BY A WIDOW OR CHILD.

THE EVIDENCE SUBMITTED SHOWS THAT AN ORDER OF ADOPTION WAS ISSUED IN THE SURROGATE COURT, IN THE CITY OF BUFFALO, ERIE COUNTY, STATE OF NEW YORK, ON DECEMBER 18, 1925, IN PERTINENT PART -

"IN THE MATTER OF THE ADOPTION OF

THOMAS WEBER

A MINOR

BY FREDERICK A BASS

AND HELEN KOENIG BASS, HIS WIFE

"ORDERED THAT THE ADOPTION OF SAID MINOR THOMAS WEBER BY SAID FREDERICK A BASS AND HELEN KOENIG BASS, HIS WIFE, BE AND THE SAME HEREBY IS ALLOWED AND CONFIRMED AND IT IS FURTHER

"ORDERED THAT THE SAID THOMAS WEBER SHALL HEREAFTER BE REGARDED AND TREATED IN ALL RESPECTS AS THE CHILD OF SAID FREDERIC A BASS AND HELEN KOENIG BASS, HIS WIFE, IN ACCORDANCE WITH THE STATUTE MADE AND PROVIDED AND SHALL HEREAFTER BE KNOWN AS THOMAS BASS ***."

IT IS STATED IN THE FOURTH PARAGRAPH OF YOUR LETTER THAT -

"IN ANSWER TO A LETTER DIRECTED TO HER ON 30 AUGUST 1951, JUANITA E. CARR, FOSTER MOTHER AND DESIGNATED PRINCIPAL BENEFICIARY, MADE THE FOLLOWING STATEMENT: 'CORP. BASS MADE HIS HOME WITH US AFTER HE HAD SOME TROUBLE WITH HIS ADOPTED PARENTS AND THE JUDGE WOULD NOT LET HIM GO BACK TO THEM BECAUSE HE WAS VERY MUCH MISTREATED BY THEM. THIS JUDGE SENT HIM TO THE V.F.W. FARM WHICH WE WERE OPERATING AT THAT TIME. WHEN FARM WAS DISSOLVED HE STAYED RIGHT ON WITH US UNTIL HE WAS INDUCTED INTO THE SERVICE AND HE CAME TO OUR HOME TO STAY WHILE ON HIS LEAVES ALSO CAME HOME ON HIS WEEK END PASSED WHEN HE WAS STATIONED NEAR ENOUGH TO MAKE IT POSSIBLE.'"

ADOPTION USUALLY IS REGARDED AS CREATING THE SAME RELATIONSHIP BETWEEN THE ADOPTIVE PARENT AND ADOPTED CHILD AS BETWEEN A NATURAL PARENT AND HIS CHILD. 2 C.J.S. ADOPTION SEC 55. A FINAL DECREE OF ADOPTION, WHICH INCLUDES A FINDING OF ALL FACTS NECESSARY TO THE VALIDITY OF THE DECREE, IS CONCLUSIVE UPON ALL PERSONS INTERESTED IN THE PROCEEDINGS AND ALL STATEMENTS IN THE DECREE STAND UNTIL OVERTHROWN BY CLEAR AND POSITIVE EVIDENCE. 2 C.J.S. ADOPTION SEC 40C. AN ORDER OR DECREE OF ADOPTION GENERALLY IS CONSIDERED REVOCABLE BY JUDICIAL PROCEEDINGS, AND, IF THERE IS A STATUTORY PROCEDURE FOR SUCH PROCEEDINGS, THERE MUST BE A SUBSTANTIAL COMPLIANCE WITH THE STATUTORY PROCEDURE. 2 C.J.S. ADOPTION SEC. 42.

IT DOES NOT APPEAR FROM THE EVIDENCE SUBMITTED WITH YOUR LETTER THAT THE ORDER OF ADOPTION HERE INVOLVED WAS REVOKED OR ABROGATED BY JUDICIAL PROCEEDINGS PRIOR TO THE ENLISTED MAN'S DEATH. IN THIS CONNECTION, IT WILL BE NOTED THAT IN 1932 FREDERICK A. BASS APPLIED FOR AN ORDER ABROGATING THE ADOPTION OF THE DECEDENT, AND, ON APPEAL, AN ORDER OF ABROGATION WAS REVERSED AND THE APPLICATION DENIED. SEE IN RE BASS, IN RE WEBER'S ADOPTION, 254 N.Y.S. 852, 243 APP. DIV. 299. THE MATTER DOES NOT APPEAR TO HAVE BEEN LITIGATED THEREAFTER. WHILE THE DECEDENT DESIGNATED JUANITA E. CARR AND LLOYD E. CARR, AS HIS FOSTER PARENTS AND BENEFICIARIES, IT DOES NOT APPEAR FROM THE EVIDENCE SUBMITTED THAT HE WAS LEGALLY ADOPTED BY THEM. THE RULE IS WELL SETTLED THAT A FOSTER PARENT, WHO IS NOT AN ADOPTIVE PARENT IS NOT A "RELATIVE" OF AN ENLISTED MAN WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF DECEMBER 17, 1919, AS AMENDED. SEE 13 COMP. GEN. 439; B 32359, FEBRUARY 18, 1943. HENCE, JUANITA E. CARR AND LLOYD E. CARR ARE NOT ENTITLED TO THE GRATUITY THEREIN PROVIDED FOR DEPENDENT RELATIVES PREVIOUSLY DESIGNATED BY THE ENLISTED MAN.

SINCE IT APPEARS THAT AS A RESULT OF THE ABOVE-CITED ACTION OF THE SUPREME COURT OF NEW YORK REVERSING THE ORDER OF THE LOWER COURT ABROGATING THE ADOPTION OF THE DECEASED BY THESE CLAIMANTS, THE DECEDENT AT THE DATE OF HIS DEATH WAS THE CHILD, BY ADOPTION, OF FRED (FREDERICK) A. BASS AND HELEN A. (KOENIG) BASS, THEY PROPERLY ARE TO BE CONSIDERED WITHIN THE CLASS OF RELATIVES ENTITLED TO RECEIVE THE SIX MONTHS' GRATUITY PAY IF FOUND BY THE SECRETARY OF THE ARMY TO HAVE BEEN DEPENDENT UPON THE DECEDENT PRIOR TO HIS DEATH, SUCH DETERMINATION BEING FINAL AND CONCLUSIVE UPON THIS OFFICE UNDER THE PROVISIONS OF THE SAID GRATUITY STATUTE. ACCORDINGLY, IF IT BE DETERMINED BY THE SECRETARY OF THE ARMY OR A DULY DESIGNATED SUBORDINATE THAT THEY WERE DEPENDENT UPON THE DECEDENT PRIOR TO HIS DEATH, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH IS RETURNED HEREWITH, TOGETHER WITH THE OTHER PAPERS TRANSMITTED WITH YOUR LETTER, IF OTHERWISE PROPER.