B-160662, FEB. 13, 1967

B-160662, FEB. 13, 1967

TO MR. CARL K. COLE, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 27, 1966, ENCLOSING A POWER OF ATTORNEY AUTHORIZING YOU TO REPRESENT MR. GEORGE BUSH IN CONNECTION WITH HIS CLAIM FOR THE 6-MONTHS' DEATH GRATUITY IN THE CASE OF HIS SON, ROBERT I. BUSH, LATE CAPTAIN, UNITED STATES AIR FORCE, WHO DIED ON JUNE 9, 1966. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 21, 1966, FOR THE REASON THAT THE DECEDENT DIED DURING THE INTERLOCUTORY PERIOD OF THE DIVORCE OBTAINED BY HIS WIFE, MRS. CAROL L. BUSH, IN THE STATE OF CALIFORNIA, LEAVING HER AS HIS SURVIVING WIDOW WHO UNDER THE PERTINENT STATUTE, 10 U.S.C. 1477, TAKES PRECEDENCE FOR THE GRATUITY.

IT APPEARS FROM YOUR LETTER OF NOVEMBER 1, 1966, AND ENCLOSURE, TO OUR OFFICE REQUESTING RECONSIDERATION OF THE SETTLEMENT THAT YOU RECOGNIZE THAT MRS. CAROL L. BUSH IS THE SURVIVING SPOUSE OF THE DECEDENT. HOWEVER, YOU SAY THAT UNDER THE PROPERTY SETTLEMENT AGREEMENT SHE ENTERED INTO WITH THE DECEDENT WHICH WAS INCORPORATED IN THE INTERLOCUTORY DIVORCE DECREE SHE WAIVED ALL HER RIGHTS OF SUPPORT EXCEPT AS THERE PROVIDED AND HAD NO ENFORCEABLE CLAIM AGAINST HIM FOR SUPPORT AS OF THE DATE OF HIS DEATH. YOU CONTEND THAT IN OUR DECISIONS 30 COMP. GEN. 277 AND 34 COMP. GEN. 601, WE HAVE DEFINED THE 6-MONTHS' DEATH GRATUITY AS A SUPPORT RIGHT, AND THAT SINCE BEFORE THE DEATH OF CAPTAIN BUSH, MRS. BUSH HAD WAIVED HER RIGHT TO ANY FURTHER SUPPORT, SHE IS NOT LEGALLY OR MORALLY ENTITLED TO THE GRATUITY.

ELIGIBILITY OF SURVIVORS TO RECEIVE THE 6-MONTHS' DEATH GRATUITY IS GOVERNED BY 10 U.S.C. 1477. THAT SECTION (SO FAR AS APPLICABLE HERE) PROVIDES THAT SUCH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

(1) SURVIVING SPOUSE; (2) CHILDREN (INCLUDING STEPCHILDREN WHO WERE PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH), IN EQUAL SHARES; AND (3) CERTAIN PERSONS (INCLUDING HIS PARENTS) IF DESIGNATED BY HIM.

UNDER THE LAW AND DIVORCE PROCEDURE OF THE STATE OF CALIFORNIA AN INTERLOCUTORY JUDGMENT OF DIVORCE DOES NOT SEVER THE MARRIAGE STATUS AND THE PARTIES REMAIN IN THE LEGAL RELATION OF HUSBAND AND WIFE UNTIL THE FINAL JUDGMENT OF DIVORCE. IN RE DARGIE'S ESTATE, 162 CAL. 51, 121 P. 320; LUIS V. CAVIN, 198 P.2D 563, AND BROWN V. BROWN (1960) 177 CAL.APP.2D 387. INASMUCH AS A FINAL JUDGMENT OF DIVORCE HAD NOT BEEN ENTERED AS OF THE DATE OF DECEDENT'S DEATH, AND SINCE, AS YOU HAVE STATED IN YOUR LETTER OF AUGUST 18, 1966, TO THE DEPARTMENT OF THE AIR FORCE, MRS. BUSH WAS HIS LEGAL WIFE AT THAT TIME, SHE MUST BE CONSIDERED HIS WIDOW.

THE 6-MONTHS' DEATH GRATUITY IS PAYABLE TO A WIDOW OR CHILD WITHOUT DESIGNATION AND WITHOUT ANY SHOWING OTHER THAN RELATIONSHIP. 22 COMP. GEN. 85, 87. THE 6-MONTHS' DEATH GRATUITY IS NOT INCOME OR EARNINGS OF THE DECEASED MEMBER OF THE AIR FORCE ON WHOSE DEATH IT BECOMES PAYABLE, NOR IS IT PART OF HIS ESTATE. IT IS SIMPLY A GRATUITY AUTHORIZED TO BE PAID IN ACCORDANCE WITH THE STATUTE UPON THE DEATH OF THE MEMBER. THEREFORE, IT IS NOT APPARENT HOW SUCH WAIVER AS THE DECEDENT'S WIDOW MAY HAVE MADE IN THE PROPERTY SETTLEMENT TO ANY FURTHER PAYMENTS FROM CAPTAIN BUSH FOR HER SUPPORT AND MAINTENANCE AND ANY INTEREST IN AND TO HER HUSBAND'S FUTURE EARNINGS AND INCOME, OR RIGHTS OF HEIRSHIP IN THE ESTATE, COULD AFFECT HER RIGHT TO THE 6 MONTHS' DEATH GRATUITY. HOWEVER THAT MAY BE, IT HAS LONG BEEN OUR VIEW THAT A WAIVER BY A LAWFUL WIDOW OF HER STATUTORY RIGHT TO RECEIVE THE GRATUITY IS WITHOUT FORCE OR EFFECT. COMP. GEN. 46.

IN 30 COMP. GEN. 277 WE CONSIDERED THE CLAIM FOR THE 6-MONTHS' DEATH GRATUITY BY THE LEGAL GUARDIAN OF THE MINOR ILLEGITIMATE CHILD OF A DECEASED NAVY ENLISTED MAN. THE DOUBT AROSE BECAUSE THE APPLICABLE LAW IN EFFECT AT THE TIME, ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943 (1946 ED.) DID NOT SPECIFICALLY INCLUDE AN ILLEGITIMATE CHILD OR DEFINE THE TERM CHILD" AS USED THEREIN. IN THAT DECISION WE REEXAMINED THE TERM "CHILD" IN THE LIGHT OF THE CHARACTER AND INTENT OF THE 6-MONTHS' DEATH GRATUITY STATUTES. AS INDICATED IN YOUR LETTER OF AUGUST 18, 1966, WE FOLLOWED THE REASONING OF THE COURT IN MIDDLETON V. LUCKENBACK S.S.CO., 70 F.2D 326, IN WHICH IT WAS HELD THAT THE TERM "CHILD" AS USED IN THE FEDERAL DEATH ACT, 41 STAT. 537, INCLUDES BOTH LEGITIMATE AND ILLEGITIMATE CHILDREN. IN THAT DECISION IT WAS STATED THAT THERE WAS NO RIGHT OF INHERITANCE INVOLVED; THAT THE STATUTE CONFERS RECOVERY UPON DEPENDENTS, NOT FOR THE BENEFIT OF AN ESTATE, BUT FOR THOSE WHO BY OUR STANDARDS ARE LEGALLY OR MORALLY ENTITLED TO SUPPORT, THE OBJECT OF THE STATUTE BEING TO CONTINUE THE SUPPORT OF DEPENDENTS AFTER A CASUALTY. IN VIEW OF THE SIMILARITY OF THE 6-MONTHS' DEATH GRATUITY STATUTE TO THE STATUTE INVOLVED IN THAT CASE, WE LIKEWISE CONCLUDED THAT THE TERM "CHILD" INCLUDES ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED.

IN 34 COMP. GEN. 601 WE CONSIDERED THE CLAIM FOR 6-MONTHS' DEATH GRATUITY BY THE LEGAL GUARDIAN OF THE MINOR CHILD OF A DIVORCED NAVY OFFICER, THE CHILD HAVING BEEN LEGALLY ADOPTED BY THE CLAIMANT AND HIS WIFE IN THE STATE OF OKLAHOMA. IT WAS CONTENDED IN THAT CASE THAT THE ADOPTION STATUTES OF OKLAHOMA DO NOT CUT OFF THE RIGHT OF A CHILD WHO HAS BEEN ADOPTED BY OTHERS TO INHERIT FROM ITS NATURAL PARENTS AND THAT THE CHILD SHOULD ALSO RECEIVE THE GRATUITY INCIDENT TO THE DEATH OF THE NATURAL FATHER. WE REASONED THAT AN ADOPTION EFFECTS A LEGAL AS WELL AS PRACTICAL SUBSTITUTION OF PARENTS WITH THE NATURAL PARENTS LOSING AND THE ADOPTIVE PARENTS RECEIVING OR ASSUMING THE RIGHT TO THE CHILD'S CUSTODY AND EARNINGS AND THE OBLIGATION OF SUPPORT AND EDUCATION. WE CONCLUDED THAT SINCE THERE WAS NO RIGHT OF INHERITANCE INVOLVED IN THE APPLICABLE GRATUITY STATUTE (ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943 (1946 ED.) ( THE STATUS OF A CHILD, PARENT, ETC., FOR PURPOSES OF THE LAW PLAINLY IS FOR DETERMINATION ON THE BASIS OF RELATIONSHIP ALONE. THEREFORE, WE ADHERED TO OUR PREVIOUS DECISIONS THAT AN ADOPTED CHILD IS THE CHILD OF THE ADOPTIVE PARENTS AND ENTITLED TO THE GRATUITY, IF OTHERWISE QUALIFIED, UPON THE DEATH OF THE ADOPTIVE PARENT BUT NOT UPON THE DEATH OF THE NATURAL PARENT.

FROM THE FOREGOING, IT IS CLEAR THAT IN 30 COMP. GEN. 277 AND 34 COMP. GEN. 601, WE DID NOT IMPOSE A QUALIFICATION OF SUPPORT ON THE RIGHT OF A SURVIVING WIDOW TO THE PROCEEDS OF THE DEATH GRATUITY. ALL THAT IS NEEDED UNDER THE STATUTE IS TO ESTABLISH THE LEGAL RELATIONSHIP.

ACCORDINGLY, SINCE THE DECEDENT WAS SURVIVED BY HIS WIDOW, CAROL L. BUSH, WE MUST CONCLUDE THAT SHE WAS ENTITLED TO THE GRATUITY AND THAT THE CLAIM OF MR. GEORGE BUSH FOR SUCH GRATUITY WAS PROPERLY DISALLOWED. THEREFORE, THE SETTLEMENT OF OCTOBER 21, 1966, WAS CORRECT AND IS SUSTAINED.