B-133984, NOV. 26, 1957

B-133984, NOV. 26, 1957

TO MRS. GERTRUDE ARNOLD:

REFERENCE IS MADE TO YOUR UNDATED LETTER FORWARDED HERE BY THE DEPARTMENT OF THE ARMY BY LETTER DATED SEPTEMBER 11, 1957, CONCERNING YOUR CLAIM FOR ARREARS OF PAY IN THE CASE OF YOUR LATE GRANDSON, ARTHUR A. ALLEN, WHO DIED DECEMBER 28, 1945, WHILE SERVING AS AN ENLISTED MAN OF THE ARMY. THERE ALSO HAS BEEN RECEIVED YOUR LETTER DATED SEPTEMBER 29, 1957, AND YOUR FURTHER UNDATED LETTER RECEIVED HERE ON OCTOBER 8, 1957, BOTH OF WHICH LETTERS ARE RELATIVE TO THE SAME MATTER.

AFTER THE RECEIPT HERE ON APRIL 3, 1946, OF YOUR CLAIM DATED MARCH 25, 1946, AS GRANDMOTHER OF THE DECEDENT FOR THE ARREARS OF PAY DUE, OUR CLAIMS DIVISION BY LETTER DATED MAY 10, 1946, ADVISED YOU THAT PAYMENT OF YOUR CLAIM WAS NOT AUTHORIZED SINCE A GRANDMOTHER WAS NOT AN HEIR SPECIFIED IN THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED, WHICH GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMY WHO DIED PRIOR TO JANUARY 1, 1956. LATER, AFTER THE RECEIPT OF YOUR CLAIM AS LEGAL GUARDIAN OF THE DECEDENT, THE CLAIMS DIVISION BY LETTER DATED JULY 18, 1946, ADVISED YOU THAT YOUR GUARDIANSHIP OF THE DECEDENT CEASED AT HIS DEATH AND THAT YOUR APPOINTMENT AS LEGAL GUARDIAN DID NOT QUALIFY YOU AS AN HEIR UNDER THE ACT OF JUNE 30 1906, AS AMENDED, SO AS TO ENTITLE YOU TO RECEIVE THE ARREARS OF PAY AMOUNTING TO APPROXIMATELY $10.

IN THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMY WE MUST COMPLY WITH THE APPLICABLE FEDERAL LAW IN SETTLING SUCH ACCOUNTS AND WE HAVE NO AUTHORITY TO ALLOW CLAIMS FOR AMOUNTS DUE A SOLDIER'S ESTATE, AS IN THE CASE OF YOUR GRANDSON, EXCEPT AS AUTHORIZED BY THE ACT OF JUNE 30, 1906, AS AMENDED. THAT ACT, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, SETS FORTH THE ORDER OF PRECEDENCE OF HEIRS TO WHOM PAYMENT MAY BE MADE, IN THE ABSENCE OF A CLAIM FROM A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEDENT, AND AS YOU HAVE BEEN ADVISED, A GRANDMOTHER AND A LEGAL GUARDIAN DO NOT COME WITHIN ANY OF THE CLASSES ENUMERATED, THE STATUTE GOING NO FURTHER THAN BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS.

WHILE YOU MAY HAVE STOOD IN THE RELATIONSHIP OF A FOSTER PARENT TO YOUR GRANDSON AND WERE HIS LEGAL GUARDIAN, SUCH STATUS DOES NOT ESTABLISH THE LEGAL RELATIONSHIP OF PARENT AND CHILD OR OTHERWISE MAKE YOU ELIGIBLE TO RECEIVE FROM THE GOVERNMENT THE AMOUNT DUE HIS ESTATE. THE LAW HAS BEEN THE SAME IN THAT RESPECT SINCE 1906 AND IT LONG HAS BEEN HELD THAT FOSTER PARENTS AND LEGAL GUARDIANS ARE NOT LEGAL HEIRS WITHIN THE MEANING OF THE ACT OF JUNE 30 1906, AS AMENDED, AND ARE NOT ENTITLED TO THE AMOUNT DUE THE DECEDENT'S ESTATE, EXCEPT IN CERTAIN CASES WHERE IT IS AFFIRMATIVELY ESTABLISHED THAT THE CLAIMING FOSTER PARENT OR LEGAL GUARDIAN HAD LEGALLY ADOPTED THE DECEDENT AND BECOME HIS LEGAL HEIR. SINCE IT DOES NOT APPEAR THAT YOU LEGALLY ADOPTED YOUR GRANDSON, THERE IS NO LEGAL BASIS FOR ALLOWING YOU THE SUM OF APPROXIMATELY $10 DUE THE ESTATE AS ARREARS OF PAY.

IF YOUR CLAIM IS FOR PAYMENT OF A GRATUITY IN AN AMOUNT EQUAL TO SIX MONTHS' PAY OF THE DECEDENT AS AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, UNDER THE CONDITIONS PRESCRIBED IN THAT ACT, YOU ARE ADVISED THAT THE QUESTION OF WHETHER SUCH GRATUITY IS PAYABLE IS INITIALLY FOR CONSIDERATION BY THE DEPARTMENT OF THE ARMY. HOWEVER, THE GRATUITY IS NOT PAYABLE IN THE CASE OF YOUR LATE GRANDSON SINCE THE REPORT OF HIS DEATH SHOWS THAT HE DIED AS THE RESULT OF HIS OWN MISCONDUCT, UNDER WHICH CIRCUMSTANCES PAYMENT OF THE GRATUITY IS EXPRESSLY PROHIBITED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED. A SIMILAR PROHIBITION IS CONTAINED IN SECTION 3688, TITLE 10, OF THE U.S.C. WHICH NOW GOVERNS THE PAYMENT OF SUCH A GRATUITY.