B-144905, APR. 17, 1961

B-144905, APR. 17, 1961

TO MRS. NAN M. LONG:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1960, WITH REGARD TO YOUR CLAIM FOR THE SIX-MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR GRANDSON, JAMES P. SHANNON, WHO DIED ON AUGUST 2, 1960, WHILE SERVING AS A PRIVATE, UNITED STATES MARINE CORPS.

BY SETTLEMENT OF DECEMBER 16, 1960, OUR CLAIMS DIVISION SUMMARIZED THE PERTINENT PROVISIONS OF THE GOVERNING STATUTE, THE ACT OF AUGUST 1, 1956, 70 STAT. 868, AS AMENDED BY PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1453, 10 U.S.C. 1477, AND DISALLOWED YOUR CLAIM ON THE GROUNDS THAT SUCH STATUTE DOES NOT INCLUDE A GRANDMOTHER AS ONE OF THE PERSONS ELIGIBLE TO RECEIVE THE GRATUITY AND THAT THE DECEDENT IS SURVIVED BY HIS MOTHER, AN ELIGIBLE PERSON. WHEN THE DISALLOWANCE ACTION WAS TAKEN, THERE WERE ON FILE SEVERAL SUPPORTING DOCUMENTS, AS LISTED BELOW, WHICH HAD BEEN SUBMITTED BY YOU AND YOUR DAUGHTER, MRS. BARBARA M. CALDWELL, WHO, AS MOTHER OF THE DECEDENT, ALSO HAD FILED A CLAIM.

1. EXECUTED FORM "LOCO PARENTIS AFFIDAVIT" OF AUGUST 11, 1960, SIGNED BY YOU SHOWING, AMONG OTHER THINGS, THAT (A) "FATHER LEFT, MOTHER UNABLE TO SUPPORT CHILD" AND (B) WITH RESPECT TO THE EXTENT THE NATURAL PARENTS MAINTAINED CONTROL OVER AND RESPONSIBILITY FOR THE DECEDENT, INCLUDING CONTRIBUTIONS TO HIS SUPPORT, AND THAT MOTHER "MAINTAINED CONTROL, GRANDMOTHER SUPPORTED J. P. SHANNON.'

2. NOTARIZED AFFIDAVIT OF SEPTEMBER 29, 1960, SIGNED BY BARBARA M. CALDWELL SHOWING THAT SHE, AS NATURAL MOTHER, HAD PARENTAL CONTROL OF THE DECEDENT AT THE TIME OF HIS DEATH. THAT AFFIDAVIT CONTAINS IN ADDITION THE FOLLOWING STATEMENT:

"PVT. JAMES P. SHANNON MY LATE SON LIVED WITH HIS GRANDMOTHER UNTIL I WAS ABLE TO HAVE A HOME OF MY OWN. AT THAT TIME HE SPENT HIS TIME BETWEEN OUR TWO HOUSES. DURING HIS LIFETIME I NEVER GAVE UP MY CONTROL OF THE BOY AND SUPPORTED HIM AS I COULD. MY MOTHER NAN M. LONG WAS AND STILL IS IN MUCH BETTER CIRCUMSTANCES THAN MYSELF. HOWEVER I DO NOT CLASSIFY LUXURIES AS SUPPORT. AT THE TIME HIS FATHER LEFT US I HAD NO CHOICE BUT TO RETURN TO MY HOME UNTIL I COULD FIND WORK AND DID, TO HELP TAKE CARE OF HIM AND MYSELF.'

SHE ALSO STATED THAT SHE "SIGNED PAPERS FOR THE MARINE CORPS" IN 1959.

3. YOUR LETTER OF SEPTEMBER 30, 1960, WHEREIN YOU HAVE STATED THAT THE MARINE CORPS ADVISED YOU BY TELEPHONE THAT THE DECEDENT LEFT "ANYTHING COMING TO HIM AT HIS DEATH TO ME AND IN CASE OF MY DEATH TO HIS AUNT THELMA ANDERSON, WHO LIVES IN GALVESTON" AND THAT YOU TOOK CARE OF THE DECEDENT "ALL OF HIS 18 YEARS.'

THERE WAS ALSO ON FILE A COPY OF A STANDARDIZED UNITED STATES MARINE CORPS FORM IN WHICH THE DECEDENT DESIGNATED YOU AND BARBARA MAYES CALDWELL AS BENEFICIARIES FOR THE DEATH GRATUITY PAY AND AS BENEFICIARIES WITH SHARES OF 50 PERCENT EACH FOR THE PAY AND ALLOWANCES THAT MAY BECOME DUE UNDER PUBLIC LAW 147, APPROVED JULY 12, 1955, 69 STAT. 295, AS AMENDED. ON THAT FORM YOUR ADDRESS, AS WELL AS THAT OF MRS. CALDWELL, IS SHOWN AS 5450 BRIAR BEND, HOUSTON, TEXAS.

SINCE THE LAW PROVIDES FOR THE PAYMENT OF THE GRATUITY PAY TO EITHER THE PARENT OR THE PERSON WHO STOOD IN LOCO PARENTIS TO A DECEASED MEMBER, AND PROVIDES THAT PAYMENT MAY BE MADE TO ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS, IT WAS INCUMBENT ON OUR CLAIMS DIVISION AFTER AN EVALUATION OF THE EVIDENCE TO MAKE A DETERMINATION AS TO WHETHER, AS A MATTER OF LAW, THE DECEDENT'S MOTHER WAS QUALIFIED TO RECEIVE THE GRATUITY, AND IF NOT, WHETHER YOU STOOD IN LOCO PARENTIS TO THE DECEDENT AND THEREFORE WERE QUALIFIED TO RECEIVE THE GRATUITY PAY (TO THE EXCLUSION OF THE DECEDENT'S LAWFUL MOTHER.)

THE TERM "IN LOCO PARENTIS" REFERS TO A PERSON WHO ACTUALLY ASSUMES THE OBLIGATIONS INCIDENT TO PARENTAL RELATIONSHIP WITHOUT GOING THROUGH THE FORMALITIES NECESSARY TO LEGAL ADOPTION. UNDER SUCH RELATIONSHIP, IN GENERAL, THERE MUST BE AN EXERCISE OF CUSTODY, CARE, CONTROL AND MANAGEMENT OF THE INDIVIDUAL CONCERNED. WHILE THE RECORD INDICATES THAT YOU EXTENDED FINANCIAL ASSISTANCE TO THE DECEDENT DURING HIS ENTIRE LIFETIME, IT WAS NOT SUFFICIENT TO SUPPORT A DETERMINATION BY OUR CLAIMS DIVISION THAT YOU STOOD IN LOCO PARENTIS TO HIM IMMEDIATELY PRIOR TO HIS ENTRANCE IN THE MILITARY SERVICE TO THE EXCLUSION OF HIS MOTHER. RATHER, THE CLAIMS DIVISION CONCLUDED THAT THERE WAS NOTHING IN THE FILE TO ESTABLISH THAT MRS. CALDWELL, AT ANY TIME, HAD ABANDONED THE DECEDENT OR RELINQUISHED PARENTAL CONTROL OVER HIM. IN SUPPORT OF THAT CONCLUSION IS HER SWORN STATEMENT IN THE AFFIDAVIT, COUPLED WITH YOUR OWN STATEMENT ON THE EXECUTED FORM, WITH REGARD TO HER PARENTAL CONTROL. SIGNIFICANT, TOO, IS THE FACT THAT BOTH YOU AND MRS. CALDWELL LIVED IN THE SAME HOUSE AT THE TIME THE DECEDENT ENTERED THE MILITARY SERVICE--- A STRONG INDICATION THAT HE WAS UNDER HER DIRECT CONTROL AT THAT TIME. THERE WAS ALSO CONSIDERED THE FACT THAT THE DECEDENT DESIGNATED MRS. CALDWELL AS A CO-BENEFICIARY FOR THE GRATUITY PAY AND THE PAY AND ALLOWANCES. FURTHERMORE, THERE WAS FOR APPLICATION IN THOSE CIRCUMSTANCES THE GENERAL PRINCIPLE OF LAW THAT WHERE THERE IS A LIVING PARENT, THE PRESUMPTION PREVAILS THAT THE RELATIONSHIP OF PARENT AND CHILD CONTINUES TO EXIST. OUR CLAIMS DIVISION, THEREFORE, DID NOT CONSIDER THAT YOUR GRANDSON'S NATURAL MOTHER HAD FAILED TO EXERCISE THE REQUISITE MEASURE OF CONTROL AND SUPPORT TO QUALIFY AS HIS PARENT WITHIN THE MEANING OF THE STATUTE. THE STATUTE PROVIDES THAT PAYMENT MAY BE MADE TO ONLY ONE MOTHER, AND SINCE PAYMENT TO HER APPEARED TO BE AUTHORIZED ON THE BASIS OF HER STATEMENTS AND YOUR OWN STATEMENTS, PAYMENT WAS MADE TO HER. THE FULL AMOUNT OF THE GRATUITY WAS ALLOWED TO HER BY SETTLEMENT DATED DECEMBER 19, 1960. SINCE OUR CLAIMS DIVISION DETERMINED THAT MRS. CALDWELL WAS ENTITLED TO THE DEATH GRATUITY AS YOUR GRANDSON'S MOTHER, NO PAYMENT WAS MADE TO YOU.

YOU NOW ASSERT THAT YOU HAD COMPLETE CONTROL AND CUSTODY OF THE DECEDENT FROM THE FIFTH DAY OF HIS LIFE UNTIL HE ENTERED THE MARINE CORPS AND THAT DURING THAT ENTIRE PERIOD HIS MOTHER HAD NO CONTACT WITH HIM. SUCH ASSERTIONS APPEAR TO BE INCONSISTENT WITH THE SWORN STATEMENT OF YOUR DAUGHTER AND YOUR EARLIER STATEMENT REGARDING HER PARENTAL CONTROL OVER THE DECEDENT, AS WELL AS OTHER EVIDENCE OF RECORD. SINCE THIS OFFICE HAD NO REASON TO QUESTION THOSE STATEMENTS AND RELIED UPON THEM IN THE DISPOSITION OF YOUR CLAIM AND IN ALLOWING THE CLAIM OF MRS. CALDWELL, FAVORABLE CONSIDERATION MAY NOT BE GIVEN TO YOUR CLAIM. THE DISALLOWANCE OF YOUR CLAIM WAS PROPER ON THE RECORD BEFORE US AND UPON REVIEW IT IS SUSTAINED.