B-117891, AUGUST 30, 1954, 34 COMP. GEN. 105

B-117891, AUGUST 30, 1954, 34 COMP. GEN. 105

GRATUITIES - SIX MONTHS' DEATH - DISQUALIFICATION OF BENEFICIARY - DEPENDENT RELATIVE DESIGNATED BY SECRETARY OF ARMY WHILE THE BENEFICIARY DESIGNATION AUTHORITY VESTED IN THE SECRETARY OF THE ARMY BY THE DEATH GRATUITY LAWS WAS INTENDED TO BE EXERCISED ONLY WHEN THERE WAS NO WIFE, CHILD, OR DESIGNATED DEPENDENT RELATIVE, THE SECRETARY MAY DESIGNATE A DEPENDENT RELATIVE WHEN THE BENEFICIARY DESIGNATED BY THE SERVICEMAN FAILS TO QUALIFY AS A DEPENDENT RELATIVE. 22 COMP. GEN. 155, OVERRULED IN PART.

ACTING COMPTROLLER GENERAL KELLER TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, AUGUST 30, 1954:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 10, 1953, FORWARDED BY ENDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED DECEMBER 1, 1953, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF FORREST L. FORSYTHE, AS FATHER OF ROBERT W. FORSYTHE (AN ENLISTED MEMBER OF THE ARMY KILLED IN ACTION IN KOREA ON NOVEMBER 5, 1951), IN THE AMOUNT OF $897.30, REPRESENTING THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903. THE PAYMENT IS PROPOSED UNDER AUTHORITY OF THE ACT OF DECEMBER 17, 1943, 57 STAT. 599, AMENDING THE ACT OF DECEMBER 17, 1919, ON THE BASIS THAT BENEFICIARIES DESIGNATED BY THE DECEASED HAVE BEEN ADMINISTRATIVELY DETERMINED TO BE INELIGIBLE TO RECEIVE THE GRATUITY.

DESIGNATION OF TWO AUNTS, MRS. ADELE KENNEDY AND MRS. BERNICE ZAGER, AS PRINCIPAL BENEFICIARY AND ALTERNATE BENEFICIARY, RESPECTIVELY, OF THE SIX MONTHS' DEATH GRATUITY IS SHOWN TO HAVE BEEN MADE BY THE DECEASED MEMBER. BY LETTER OF JUNE 2, 1952, MRS. KENNEDY DISCLAIMS ANY BENEFITS ARISING BY REASON OF DEPENDENCY ON THE DECEASED, STATING THAT SHE HAD NEVER "CONTRIBUTED IN ANY WAY TO HIS SUPPORT, REARING, MEDICAL CARE OR EDUCATION," AND THAT " ANY DEPENDENCY OR DEBTOR-CREDITOR STATUS EXISTED SOLELY BETWEEN HIM AND HIS PARENTS.' YOU STATE THAT SHE HAS REFUSED, HOWEVER, TO EXECUTE A FORMAL RELINQUISHMENT OF HER CLAIM. YOU STATE FURTHER THAT MRS. ZAGER HAS SUBMITTED NO EVIDENCE OF INSURABLE INTEREST IN THE DECEASED BUT ALSO REFUSES TO RELINQUISH ANY RIGHTS SHE MAY HAVE, AND THAT AVAILABLE EVIDENCE INDICATES THAT SHE COULD NOT HAVE THE REQUISITE INSURABLE INTEREST TO PERMIT PAYMENT TO HER OF THE GRATUITY.

THE ACT OF DECEMBER 17, 1943, AMENDED THE ACT OF DECEMBER 17, 1919, TO PROVIDE (SEE 10 U.S.C. 903) THAT WHERE THE DECEASED IS NOT SURVIVED BY A WIDOW OR CHILD OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF THE ARMY SHALL CAUSE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO BE MADE 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 THAT "THE DETERMINATION OF SUCH FACT (OF DEPENDENCY) BY THE SECRETARY OF THE ARMY SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT.' THE TERM "DEPENDENT RELATIVE" AS USED IN THE LAWS AUTHORIZING PAYMENT OF THE SIX "MONTHS' DEATH" GRATUITY HAS BEEN CONSTRUED BY THIS OFFICE IN THE BROAD SENSE OF THE LAW OF INSURANCE AS INCLUDING, IN ADDITION TO RELATIVES WHO ARE ACTUALLY DEPENDENT, THOSE PERSONS WHO BY REASON OF THEIR RELATIONSHIP TO THE DECEASED HAVE AN INSURABLE INTEREST IN HIS LIFE. DECISION OF JULY 30, 1942, 22 COMP. GEN. 85, HELD THAT IN THE CASE OF A MOTHER, FATHER, BROTHER OR SISTER SUCH INSURABLE INTEREST EXISTED BY REASON OF THE RELATIONSHIP ALONE WITHOUT EVIDENCE OF DEPENDENCY. THE MORE REMOTE RELATIONSHIP BETWEEN UNCLE OR AUNT AND NIECE OR NEPHEW, HOWEVER, HAS BEEN CONSIDERED TO REQUIRE MORE THAN MERE RELATIONSHIP, SUCH AS A SHOWING OF MATERIAL SUPPORT OR REASON TO EXPECT SUCH SUPPORT, TO ESTABLISH THE NECESSARY INSURABLE INTEREST. COMP. GEN. 409.

IN THE DECISION OF AUGUST 24, 1942, 22 COMP. GEN. 155, TO WHICH YOU REFER, IT WAS HELD THAT STATUTORY PROVISIONS SIMILAR TO THOSE OF THE CITED ACT OF DECEMBER 17, 1943, BUT RELATING TO THE NAVAL ESTABLISHMENT, PROVIDED ONLY FOR SITUATIONS WHERE NO DESIGNATION ACTUALLY HAD BEEN MADE AND HAD NO APPLICATION WHERE THERE HAD BEEN A DESIGNATION EVEN THOUGH THE DESIGNATED RELATIVE HAD DECLINED TO SUBMIT A CLAIM BECAUSE OF LACK OF DEPENDENCY. WHILE IT IS EVIDENT THAT SUCH AUTHORITY FOR DESIGNATION BY THE SECRETARY CONCERNED OF A DEPENDENT TO TAKE WAS INTENDED TO BE EXERCISED ONLY WHERE THERE WAS NO WIFE, CHILD, OR DESIGNATED DEPENDENT RELATIVE, IT SEEMS EQUALLY EVIDENT THAT SUCH AUTHORITY SHOULD NOT BE CONSIDERED AS CURTAILED BECAUSE OF A DESIGNATION MADE BY THE DECEASED MEMBER OF A RELATED PERSON NOT IN FACT A "DEPENDENT" RELATIVE, ANY MORE THAN IT WOULD BE HAD THE DECEASED IN ERROR DESIGNATED AS BENEFICIARY A PERSON NOT EVEN REMOTELY RELATED TO HIM.

IT HAS BEEN RECOGNIZED THAT THE NIECE OF A DECEASED SERVICEMAN SHOWN TO HAVE HAD NO ACTUAL DEPENDENCY UPON THE DECEASED AND SO NO INSURABLE INTEREST WAS NOT A "DEPENDENT RELATIVE" UNDER THE DEATH GRATUITY LAWS. COMP. GEN. 409. WHERE, IN THE ABSENCE OF A SURVIVING WIDOW OR CHILD, THERE HAS BEEN DESIGNATED AS BENEFICIARY ONLY A RELATIVE NOT QUALIFYING AS A "DEPENDENT RELATIVE," IT IS CONSIDERED THAT THE SECRETARY CONCERNED PROPERLY MAY DIRECT PAYMENT OF THE GRATUITY TO A PARENT DETERMINED BY HIM TO HAVE BEEN DEPENDENT ON THE DECEASED. TO THE EXTENT THAT THE DECISION OF AUGUST 24, 1942, 22 COMP. GEN. 155, CONFLICTS WITH THESE VIEWS, THAT DECISION WILL NO LONGER BE FOLLOWED.

MRS. KENNEDY'S LETTER OF JUNE 2, 1952, APPEARS TO ESTABLISH CLEARLY THAT SHE IS NOT A DEPENDENT RELATIVE UNDER THE STATUTE, AND YOU STATE THAT AVAILABLE EVIDENCE INDICATES A SIMILAR SITUATION WITH REGARD TO MRS. ZAGER. IF SUCH BE THE CASE AND IF THE SECRETARY OF THE ARMY HAS MADE A DETERMINATION OF THE FATHER'S DEPENDENCY UPON THE DECEDENT, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, PROPERLY MAY BE MADE IF OTHERWISE CORRECT. THE EVIDENCE REFERRED TO IN MRS. ZAGER'S CASE SHOULD BE AFFIXED TO THE VOUCHER IN SUPPORT OF THE PAYMENT.