B-167430, SEPTEMBER 12, 1969, 49 COMP. GEN. 167

B-167430, SEPTEMBER 12, 1969, 49 COMP. GEN. 167

GRATUITIES -- SIX MONTHS' DEATH -- CONFLICTING CLAIMS -- PARENTS AND PERSONS IN LOCO PARENTIS THE SIX MONTHS' DEATH GRATUITY AUTHORIZED IN 10 U.S.C. 1477 THAT IS PAYABLE INCIDENT TO THE DEATH OF AN ENLISTED THE UNIFORMED SERVICES AND WHICH IS CLAIMED BY THE DECEDENT'S NATURAL FATHER AND A COUSIN DESIGNATED TO RECEIVE THE GRATUITY WHO IS CLAIMING A LOCO PARENTIS RELATIONSHIP--ONE IN WHICH PARENTAL OBLIGATIONS ARE ASSUMED WITHOUT LEGAL ADOPTION--MAY NOT BE PAID TO EITHER CLAIMANT, ABSENT MORE CONCLUSIVE EVIDENCE OR A JUDICIAL DETERMINATION OF ENTITLEMENT. THE EVIDENCE PRESENTED BY BOTH CLAIMANTS IS IN CONFLICT, AS ARE THE NUMEROUS COURT DECISIONS RESPECTING THE DETERMINATION OF THE TERM "IN LOCO PARENTIS," AND ALTHOUGH A CLOSE RELATIONSHIP EXISTED BETWEEN THE DECEDENT AND THE FAMILY OF THE PERSON ALLEGING THE LOCO PARENTIS RELATIONSHIP, THE MEMBER PRIOR TO ENLISTMENT WAS SELF-SUPPORTING AND LIVED WHERE HE CHOSE.

TO FIRST LIEUTENANT C. G. MOORE, UNITED STATES MARINE CORPS, SEPTEMBER 12, 1969:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1969, SUBMITTING FOR OUR DETERMINATION THE QUESTION WHETHER AND TO WHOM PAYMENT SHOULD BE MADE OF THE 6 MONTHS' DEATH GRATUITY IN THE CASE OF LANCE CORPORAL MANUAL A. SOARES, USMC, WHO DIED ON OCTOBER 8, 1968.

THE DECEDENT IS NOT SURVIVED BY A WIDOW OR CHILDERN. CLAIMS FOR THE GRATUITY HAVE BEEN RECEIVED FROM JOHN C. GONSALVES, THE DECEDENT'S COUSIN, RESIDING AT 109 ROBESON STREET, FALL RIVER, MASSACHUSETTS, AND JOSEPH (JOSE) A. SOARES, THE DECEDENT'S NATURAL FATHER, RESIDING AT 223 DAVIS STREET, IN THE SAME CITY. MR. GONSALVES, THE DECEDENT'S COUSIN, WAS DESIGNATED BY HIM TO RECEIVE THE GRATUITY AND IS CLAIMING AS A PERSON WHO STOOD IN LOCO PARENTIS TO HIM.

THE FILE SHOWS THAT AT THE TIME OF HIS ENLISTMENT ON AUGUST 8, 1967, THE DECEDENT STATED THAT HE RESIDED AT 223 DAVIS STREET, HIS FATHER'S ADDRESS, FROM 1961 UNTIL MARCH 1967, AND THAT FROM MARCH 1967 TO THE DATE OF HIS ENLISTMENT, HE RESIDED AT 109 ROBESON STREET, THE ADDRESS OF MR. GONSALVES. THE FILE SHOWS FURTHER THAT HE HAD BEEN CONTINUOUSLY EMPLOYED FROM DECEMBER 1962, UNTIL HIS ENLISTMENT, APPARENTLY WAS SELF-SUPPORTING AND WAS FREE TO COME AND GO AS HE PLEASED DURING THIS PERIOD.

IN AN AFFIDAVIT IN SUPPORT OF HIS CLAIM FOR THE 6 MONTHS' DEATH GRATUITY, MR. GONSALVES STATED THAT ON OR ABOUT FEBRUARY 1, 1966, THE DECEDENT CAME TO LIVE IN HIS HOME BECAUSE HIS FATHER THREW HIM OUT AND THAT HE CONTINUED TO LIVE WITH HIM UNTIL MARCH 26, 1968. IN A FURTHER AFFIDAVIT SUBMITTED BY MR. GONSALVES AND HIS WIFE IT IS STATED THAT HE HAD STAYED WITH THEM SINCE DECEMBER 1964; THAT THEY ASSISTED HIM FINANCIALLY WHEN HE NEEDED IT; CONSULTED WITH HIM ABOUT HIS ENTRY INTO THE SERVICE; AND THAT THEY REGARDED HIM AS A MEMBER OF THE FAMILY AND HE REGARDED THEIR HOME AS HIS HOME. AFFIDAVITS BY OTHERS ARE TO THE EFFECT THAT HE HAD LIVED WITH GONSALVES SINCE 1964 AND WAS TREATED AS A SON BY THEM.

EVIDENCE SUBMITTED BY THE FATHER OF THE DECEDENT IS TO THE EFFECT THAT EXCEPT FOR A PERIOD OF 2 MONTHS IN EARLY 1966, WHEN HIS SON RESIDED TEMPORARILY WITH THE GONSALVES FAMILY, HE LIVED WITH HIM AND TURNED OVER ALL HIS WAGES TO HIM. THIS EVIDENCE SHOWS THAT HE AND THE DECEDENT HAD A COMMON SAVINGS ACCOUNT WHICH WAS CLOSED OUT BY HIS SON IN FEBRUARY 1967. IN EXPLANATION OF HIS SON'S CLOSE ASSOCIATION WITH THE GONSALVES FAMILY THE FATHER STATED THAT HIS SON HAD BEEN KEEPING COMPANY WITH MR. GONSALVES' DAUGHTER AND THAT THEY PLANNED TO MARRY. ALSO, HE SAID THAT HIS SON PAID BOARD WHILE RESIDING WITH THE GONSALVES FAMILY. AFFIDAVITS FURNISHED BY THE FATHER'S FRIENDS ARE TO THE EFFECT THAT WHEN THEY VISITED IN HIS HOME HIS SON WAS LIVING THERE AND SUPPORT HIS STATEMENT THAT HIS SON HAD BEEN KEEPING COMPANY WITH MR. GONSALVES' DAUGHTER.

IN A REPORT DATED JANUARY 30, 1969, THE MARINE CORPS OFFICER WHO INVESTIGATED THESE CONFLICTING CLAIMS STATED THAT THERE IS NO CONCRETE EVIDENCE THAT EITHER OF THEM IS LEGALLY ENTITLED TO THE GRATUITY. EXPRESSED THE OPINION, HOWEVER, THAT THE FATHER HAS A PROVABLE CLAIM. ENDORSEMENT OF FEBRUARY 19, 1969, THE OFFICER RECOMMENDED THAT PAYMENT BE MADE TO THE FATHER.

SECTION 1477 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) A DEATH GRATUITY PAYABLE UPON THE DEATH OF A PERSON COVERED BY SECTION 1475 OR 1476 OF THIS TITLE SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

(3) IF DESIGNATED BY HIM, ANY ONE OR MORE OF THE FOLLOWING PERSONS:

(A) HIS PARENTS OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C)

(4) HIS PARENTS OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C), IN EQUAL SHARES.

(C) CLAUSES (3) AND (4) OF SUBSECTION (A), SO FAR AS THEY APPLY TO PARENTS AND PERSONS IN LOCO PARENTIS, INCLUDE FATHERS AND MOTHERS THROUGH ADOPTION, AND PERSONS WHO STOOD IN LOCO PARENTIS TO THE DECEDENT FOR A PERIOD OF NOT LESS THAN ONE YEAR AT ANY TIME BEFORE HE ACQUIRED A STATUS DESCRIBED IN SECTION 1475 AND 1476 OF THIS TITLE. HOWEVER, ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS, MAY BE RECOGNIZED IN ANY CASE, AND PREFERENCE SHALL BE GIVEN TO THOSE WHO EXERCISED A PARENTAL RELATIONSHIP ON THE DATE, OR MOST NEARLY BEFORE THE DATE, ON WHICH THE DECEDENT ENTERED THAT STATUS.

SECTION 1475 OF TITLE 10 OF THE CODE HAS REFERENCE TO MEMBERS WHO DIE WHILE IN CERTAIN DUTY OR TRAVEL STATUSES AND SECTION 1476 RELATES TO CERTAIN PERSONS WHO DIE WITHIN 120 DAYS AFTER DISCHARGE OR RELEASE FROM ACTIVE DUTY OR INACTIVE DUTY TRAINING.

IN DECISION OF MAY 9, 1962, B-148095, WE SAID THAT--

THE TERM "IN LOCO PARENTIS" AS USED IN THE CITED STATUTORY PROVISIONS (10 U.S.C. 1475), AND IN A SIMILAR PROVISION APPEARING IN THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, 38 U.S.C. 701, IS CONSIDERED AS REFERRING TO A PERSON WHO HAS PUT HIMSELF IN THE SITUATION OF A LAWFUL PARENT BY ACTUALLY ASSUMING THE OBLIGATIONS INCIDENT TO THE PARENTAL RELATIONSHIP WITHOUT GOING THROUGH THE FORMALITIES NECESSARY TO LEGAL ADOPTION. B-144905, APRIL 17, 1961; NIEWIAOMSKI V UNITED STATES, 159 F. 2D 683. IT EMBODIES THE TWO IDEAS OF ASSUMING THE PARENTAL STATUS AND DISCHARGING THE PARENTAL DUTIES. IT CLEARLY EMBODIES MORE THAN FURNISHING MATERIAL HELP TO A CLOSE RELATIVE IN NEED, SUCH AS THE ADDED ELEMENTS OF CUSTODY, CONTROL, CARE, AND MANAGEMENT OF THE INDIVIDUAL CONCERNED. SEE ALSO JENSEN V UNITED STATES, 78 F. SUPP. 974, AND HELFGOTT V UNITED STATES, 250 F. 2D. 818.

THE DECISIONS CITED IN THAT DECISION AS A BASIS FOR THE RULE STATED THEREIN FOLLOWED, ACCORDING TO THE COURTS, THE ESTABLISHED RECOGNIZED COMMON LAW MEANING OF THE TERM "IN LOCO PARENTIS." IT IS DOUBTFUL THAT ON THE BASIS OF THE FACTS AS SET OUT ABOVE AND AS PRESENTLY UNDERSTOOD, MR. GONSALVES COULD BE REGARDED AS HAVING STOOD IN LOCO PARENTIS TO THE DECEDENT AT ANY TIME UNDER THE RULE OF THOSE DECISIONS.

HOWEVER, IN THE CASE OF BANKS V UNITED STATES, 267 F. 2D 535, INVOLVING THE QUESTION WHETHER A PERSON COULD STAND IN LOCO PARENTIS TO AN ADULT, THE COURT DECLINED TO FOLLOW THE RULE OF THE NIEWIADOMSKI CASE AND ITS OWN DECISION IN THE HELFGOTT CASE, POINTING OUT THAT THE RATIONALE OF NIEWIADOMSKI HAD BEEN DISAVOWED BY THE DECIDING COURT IN THE LATER CASE OF THOMAS V UNITED STATES, 189 F. 2D 494, WHERE THE COURT CONCLUDED THAT THERE NEVER WAS ANY GENERALLY ACCEPTED COMMON LAW MEANING OF THE TERM "IN LOCO PARENTIS," AND THAT THE STATUTE SHOULD BE LIBERALLY CONSTRUED TO CARRY OUT THE INTENTION OF THE INSURED.

THE COURT SAID IN THE BANKS CASE THAT THE ASSUMPTION OF THE IN LOCO PARENTIS RELATIONSHIP IS PRIMARILY A QUESTION OF INTENTION, TO BE SHOWN BY THE ACTS, CONDUCT AND DECLARATION OF THE PERSON ALLEGING TO STAND IN THAT RELATIONSHIP. IT SAID FURTHER THAT THE VERY NATURE OF THE RELATIONSHIP IS SUCH THAT IT MUST RESIDE IN THE MINDS AND HEARTS OF THE PARTIES INVOLVED. TO PROVIDE PROOF OF THE EXISTENCE OF THE RELATIONSHIP THE COURT REMARKED THAT OBJECTIVE MANIFESTATIONS OF THE FEELINGS MUST, OF COURSE, APPEAR AND THAT GENERALLY THESE ARE TO BE LOOKED FOR NOT ONLY IN THINGS DONE AND GIVEN TO EACH OTHER, BUT MORE ESPECIALLY IN THE KIND OF SERVICES DONE AND THE KIND OF THINGS GIVEN. IT HELD EXPRESSLY THAT THE LACK OF A COMMON RESIDENCE OR THE ABSENCE OF FINANCIAL SUPPORT DID NOT NEGATE THE RELATIONSHIP IN CIRCUMSTANCES WHERE A REQUIREMENT FOR THE EXISTENCE OF THOSE CONDITIONS DID NOT OTHERWISE EXIST.

WHILE THE DECEDENT WAS NOT AN ADULT UNTIL AFTER THE DATE OF HIS ENLISTMENT, HE WAS SELF-SUPPORTING AND APPARENTLY LIVED WHERE HE CHOSE. NEITHER OF THE CLAIMANTS WAS REQUIRED TO SUPPORT HIM AND HE WAS CAPABLE OF PROVIDING HIS OWN LIVING QUARTERS. ALSO, A CLOSE RELATIONSHIP APPEARS TO HAVE EXISTED BETWEEN HIM AND THE GONSALVES FAMILY AND HE DESIGNATED MR. GONSALVES AS BENEFICIARY OF THE GRATUITY PAYMENT. UNDER THE RULE OF THE BANKS CASE THOSE FACTORS TEND TO SUPPORT THE CONCLUSION THAT MR. GONSALVES STOOD IN LOCO PARENTIS TO HIM. SEE ALSO ZAZOVE V UNITED STATES, 156 F. 20, 24, AND LEYERLY V UNITED STATES, 162 F.2D 79.

WHILE THE COURTS HAVE HELD THE STATUTE SHOULD BE LIBERALLY CONSTRUED TO CARRY OUT THE INTENTION OF THE INSURED THAT PAYMENT SHOULD BE MADE TO A DESIGNATED BENEFICIARY, THEY HAVE STATED THAT THE DESIGNEE HAS THE BURDEN OF PROVING THAT AN IN LOCO PARENTIS STATUTE EXISTED IN FACT FOR THE PERIOD REQUIRED BY THE STATUTE. THIS IS ESPECIALLY SO WHEN A NATURAL PARENT OF THE SERVICE MEMBER IS A PARTY TO AN ACTION IN WHICH AN IN LOCO PARENTIS RELATIONSHIP IS ASSERTED BY A DESIGNATED BENEFICIARY. IN SUCH CASES THE EVIDENCE MUST BE CAREFULLY WEIGHED IN ARRIVING AT A DETERMINATION AS TO THE PROPER PARTY ENTITLED TO THE PROCEEDS. SEE BAUMET V UNITED STATES, 191 F. 2D 194, REVERSED IN PART ON OTHER GROUNDS IN BAUMET V UNITED STATES, 344 U.S. 82.

ASIDE FROM THE CONFLICT OF OPINION SHOWN BY THE ABOVE-CITED DECISIONS, THE EVIDENCE SUBMITTED BY THE CONFLICTING CLAIMANTS IS DIAMETRICALLY OPPOSED IN MANY RESPECTS AND WE AGREE WITH THE VIEW OF THE INVESTIGATING OFFICER THAT SUCH EVIDENCE DOES NOT CLEARLY ESTABLISH THE RIGHT OF EITHER CLAIMANT TO THE GRATUITY PAYMENT. AND, AS WAS SAID IN LONGWILL V UNITED STATES, 77 CT. CL. 288, AT PAGE 291, IT IS THE DUTY OF THE ACCOUNTING OFFICERS TO REJECT THOSE CLAIMS "AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT." ACCORDINGLY, THIS OFFICE MAY NOT AUTHORIZE PAYMENT OF THE GRATUITY TO EITHER CLAIMANT IN THE ABSENCE OF MORE CONCLUSIVE EVIDENCE OR A JUDICIAL DETERMINATION OF THE PERSON ENTITLED THERETO.

INASMUCH AS ONLY COPIES OF CLAIMS AND SUPPORTING PAPERS WERE SUBMITTED, THEY WILL BE RETAINED FOR OUR FILES.