B-122177, MAY 24, 1955

B-122177, MAY 24, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL C.W. GRIFFIN, USAF:

YOUR LETTER OF NOVEMBER 3, 1954, REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER STATED IN FAVOR OF EMORY EMERSON, AS FOSTER FATHER AND DESIGNATED BENEFICIARY OF HENRY LEWIS, SERVICE NO. AF 18,280,861, LATE PRIVATE, FIRST CLASS, UNITED STATES AIR FORCE, FOR $543, REPRESENTING THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903.

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

"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 BRANCH, OFFICE, OR OFFICERS OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE 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. ***"

THE PROVISIONS OF THE ACT WERE EXTENDED TO THE PERSONNEL OF THE UNITED STATES AIR FORCE BY SECTION 305(A) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508, 5 U.S.C. 171L.

THE COPY OF THE CASUALTY REPORT ATTACHED TO THE VOUCHER SHOWS THAT THE AIRMAN DIED ON MAY 29, 1951, BY DROWNING, HIS DEATH HAVING OCCURRED IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

IT ALSO APPEARS FROM THE REPORT THAT HE NAMED AS HIS BENEFICIARIES UNDER THE 1919 ACT EMORY EMERSON, STEPFATHER (PRIMARY BENEFICIARY), AND L.E. LEWIS, GRANDFATHER (ALTERNATE BENEFICIARY). THE RECORD SHOWS THAT THE AIRMAN'S NATURAL FATHER ESCAPED FROM JAIL IN 1932 AND HAS NOT BEEN HEARD FROM SINCE AND THAT HIS NATURAL MOTHER, NOW DECEASED, MARRIED MR. EMERSON ON FEBRUARY 21, 1945, WITHOUT OBTAINING A DIVORCE FROM THE AIRMAN'S FATHER. THE DISAPPEARANCE OF THE AIRMAN'S FATHER WAS UNDER CIRCUMSTANCES WHICH WOULD APPEAR TO EXPLAIN, ON A BASIS OTHER THAN DEATH, HIS FAILURE TO COMMUNICATE WITH HIS FAMILY AND RELATIVES. THE FAILURE OF HIS WIFE TO SECURE A DIVORCE MAKES HER MARRIAGE TO THE CLAIMANT INVALID UNDER THE LAWS OF THE STATE OF LOUISIANA, IN THE ABSENCE OF CONCLUSIVE EVIDENCE THAT HER PRIOR MARRIAGE TO THE AIRMAN'S FATHER PREVIOUSLY HAD BEEN TERMINATED BY HIS DEATH OR OTHERWISE.

THE TERM DEPENDENT RELATIVE AS USED IN THE 1919 ACT, AS AMENDED, IS RESTRICTED TO RELATIVES OF THE DECEDENT, THAT IS, TO PERSONS RELATED BY BLOOD, MARRIAGE OR LEGAL ADOPTION TO THE INDIVIDUAL. FOSTER PARENTS WHO ARE NOT RELATED TO THE FOSTER CHILD BY BLOOD, MARRIAGE, OR LEGAL ADOPTION, ORDINARILY ARE NOT WITHIN THE LEGAL CONTEMPLATION OF THE TERMS "RELATIVE," "FATHER," "MOTHER," OR "PARENT," AND, THEREFORE, SUCH FOSTER PARENTS ARE NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY. 9 COMP. GEN. 39; 24 ID. 320.

ACCORDINGLY, IN THE ABSENCE OF CONCLUSIVE EVIDENCE THAT THE CLAIMANT WAS LEGALLY MARRIED TO THE AIRMAN'S MOTHER HE MAY NOT BE CONSIDERED A DEPENDENT RELATIVE AS THAT TERM IS USED IN THE 1919 ACT, AS AMENDED. PAYMENT ON THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.