B-41550, OCTOBER 30, 1944, 24 COMP. GEN. 320

B-41550, OCTOBER 30, 1944, 24 COMP. GEN. 320

SIX MONTHS' DEATH GRATUITY PAY - RIGHTS OF RELATIVES BY AFFINITY UPON TERMINATION OF MARRIAGE BY DEATH OR DIVORCE THE RULE APPLIED IN INSURANCE CASES THAT A RELATIONSHIP BY AFFINITY (SUCH AS STEPPARENT AND STEPCHILD) MAY BE REGARDED AS SURVIVING THE TERMINATION OF THE MARRIAGE FROM WHICH IT AROSE, WHERE THE CLOSE FAMILY TIES OF THE RELATIONSHIP HAVE CONTINUED IN FACT, IS FOR APPLICATION IN THE CASE OF SIX MONTHS' DEATH GRATUITY PAYMENTS AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, TO BE MADE TO PREVIOUSLY DESIGNATED DEPENDENT RELATIVES, WHICH PAYMENTS PARTAKE LARGELY OF THE CHARACTER OF INSURANCE. 8 COMP. GEN. 573 AND 21 ID. 525, DISTINGUISHED. WHERE THE RELATIONSHIP BY AFFINITY BETWEEN AN OFFICER OR ENLISTED MAN AND A STEPCHILD OR OTHER RELATIVE BY AFFINITY WAS CREATED BY A MARRIAGE WHICH HAS TERMINATION BY DEATH--- AS DISTINGUISHED FROM DIVORCE--- SUBSEQUENT TO THE OFFICER'S OR ENLISTED MAN'S DESIGNATION OF SUCH A RELATIVE AS HIS BENEFICIARY TO RECEIVE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, THE RELATIONSHIP, IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, MAY BE CONSIDERED AS CONTINUING, INSOFAR AS PAYMENT OF THE GRATUITY IS CONCERNED. WHERE THE RELATIONSHIP BY AFFINITY BETWEEN AN OFFICER OR ENLISTED MAN AND A STEPCHILD OR OTHER RELATIVE BY AFFINITY WAS CREATED BY A MARRIAGE WHICH HAS BEEN TERMINATED BY DIVORCE--- AS DISTINGUISHED FROM DEATH--- SUBSEQUENT TO THE OFFICER'S OR ENLISTED MAN'S DESIGNATION OF SUCH A RELATIVE AS HIS BENEFICIARY TO RECEIVE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, THE RELATIONSHIP MAY BE CONSIDERED AS ENDED, INSOFAR AS PAYMENT OF THE GRATUITY IS CONCERNED, UNLESS CLEAR AND CONVINCING AFFIRMATIVE EVIDENCE IS FURNISHED TO ESTABLISH THE MAINTENANCE OF CLOSE FAMILY TIES AND AN INTENTION TO CONTINUE THE PRIOR RELATIONSHIP.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, OCTOBER 30, 1944:

BY FIRST INDORSEMENT OF APRIL 20, 1944, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF MARCH 15, 1944, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF KENNETH A. BOYLAN, BROTHER AND DESIGNATED BENEFICIARY OF ROBERT P. BOYLAN, SERIAL NO. 35,292,918, DECEASED, LATE STAFF SERGEANT, AIR CORPS, U.S. ARMY, FOR $1,036.80, REPRESENTED AS EQUAL TO THE PAY OF THE DECEASED FOR SIX MONTHS, THE CLAIM ARISING UNDER THE PROVISIONS OF THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, AND THE ACT OF DECEMBER 10, 1941, 55 STAT. 796.

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

HEREAFTER, 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 CHIEF OF FINANCE OF THE ARMY 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 SECRETARY OF WAR SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE ARMY * * *.

THE PROVISIONS OF SAID ACT WERE EXTENDED TO THE OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10, 1941, RETROACTIVE TO AUGUST 27, 1940.

THE COPY OF " REPORT OF DEATH" ATTACHED TO THE VOUCHER SHOWS THAT SERGEANT BOYLAN DIED OCTOBER 14, 1943, IN THE EUROPEAN AREA, AS A RESULT OF ENEMY ACTION; THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT; AND THAT HE HAD NAMED--- IN THE ORDER NEXT HEREIN SET FORTH--- AS HIS BENEFICIARIES UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, COMELLA BOYLAN, WIFE; GARY JONES, SON; KENNETH A. BOYLAN, BROTHER; AND ARTHUR BOYLAN, FATHER.

WITH YOUR LETTER THERE WAS SUBMITTED A " CERTIFICATE OF DIVORCE" WHICH SHOWS THAT A DIVORCE WAS GRANTED BY THE COMMON PLEAS COURT OF THE STATE OF OHIO, STARK COUNTY, ON JUNE 28, 1943, IN THE CASE OF ESTELLA C. BOYLAN V. ROBERT P. BOYLAN.

IT APPEARS FROM THE EVIDENCE SUBMITTED THAT ESTELLA C. BOYLAN IS THE COMELLA BOYLAN NAMED BY THE SOLDIER AS FIRST BENEFICIARY; THAT SHE HAD A SON, GARY JONES, ALTHOUGH DESIGNATED BY THE SOLDIER AS HIS SON, WAS IN FACT THE STEPSON OF THE SOLDIER. MRS. ESTELLA C. ( COMELLA) BOYLAN, ALTHOUGH DESIGNATED BY THE SOLDIER ON HIS BENEFICIARY SLIP AS HIS WIFE, SUBSEQUENTLY OBTAINED A DIVORCE FROM HIM AND IS NOT ENTITLED TO THE GRATUITY.

THE FORMER WIFE BEING ELIMINATED AS A BENEFICIARY UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, THE NEXT DESIGNATED BENEFICIARY IS HER SON, GARY JONES. ONLY IN CASE HE CANNOT TAKE UNDER THE ACT WOULD PAYMENT BE AUTHORIZED ON THE VOUCHER, SUBMITTED WITH YOUR LETTER, IN FAVOR OF KENNETH A. BOYLAN, BROTHER, THE NEXT DESIGNATED BENEFICIARY. THUS, THE QUESTION PRIMARILY FOR DECISION IS WHETHER OR NOT THE SAID GARY JONES IS ENTITLED TO PAYMENT UNDER THE ACT.

IT WAS HELD IN DECISION OF APRIL 10, 1913, 19 COMP. DEC. 651, QUOTING THE SYLLABUS, AS FOLLOWS:

THE WORD RELATIVE AS USED IN THE ACT OF AUGUST 22, 1912 (37 STAT., 328), PROVIDING A SIX MONTHS' PAY GRATUITY FOR A "DEPENDENT RELATIVE" DESIGNATED TO RECEIVE THE SAME BY AN OFFICER OR ENLISTED MAN OF THE NAVY, INCLUDES RELATIVES BY AFFINITY OR MARRIAGE, AND THEREFORE A DEPENDENT STEPMOTHER, IF DESIGNATED, MAY BE PAID SAID GRATUITY. TO LIKE EFFECT IS DECISION OF MAY 29, 1926, 5 COMP. GEN. 948, WHERE IT WAS HELD THAT THE TERM "RELATIVE" AS USED IN THE SIX MONTHS' DEATH GRATUITY ACT OF JUNE 4, 1920, 41 STAT. 824, INCLUDES THE STEPMOTHER OF A DECEASED ENLISTED MAN OF THE NAVY. ALSO, IT WAS HELD IN DECISION OF DECEMBER 19, 1933, A-52184, THAT "UPON THE EVIDENCE SUBMITTED, THE STEPCHILD IS REGARDED AS A "DEPENDENT RELATIVE" OF THE DECEASED OFFICER.'

SINCE IT THUS HAS BEEN HELD THAT A STEP RELATIVE IS A RELATIVE WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTES, IT APPEARS THAT THE DOUBT IN THE PRESENT MATTER--- AS INDICATED BY THE FISCAL DIRECTOR'S REFERENCE IN HIS TRANSMITTAL INDORSEMENT TO DECISIONS OF THIS OFFICE IN 5 COMP. GEN. 948, AND 21 ID. 525--- IS OCCASIONED BY THE DETERMINATION OF THIS OFFICE, IN 21 COMP. GEN. 525, THAT THE RELATION OF STEPPARENT AND STEPCHILD DOES NOT SURVIVE THE DISSOLUTION OF THE MARRIAGE WHICH CREATED THE RELATIONSHIP SO AS TO AUTHORIZE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO AN OFFICER, OR QUARTERS ALLOWANCE TO AN ENLISTED MAN, ON ACCOUNT OF SAID CHILD; WHEREAS IN THE SAID CASE, 5 COMP. GEN. 948, UNDER THE SIX MONTHS' DEATH GRATUITY STATUTE, PAYMENT OF THE GRATUITY TO THE STEPMOTHER WAS AUTHORIZED EVEN THOUGH THE FATHER OF THE ENLISTED MAN WAS ALREADY DEAD.

THE GENERAL RULE APPEARS WELL ESTABLISHED THAT WHERE A MARRIAGE IS DISSOLVED BY DEATH OR DIVORCE ANY RELATIONSHIP BY AFFINITY WHICH WAS CREATED BY THE MARRIAGE WILL BE REGARDED AS TERMINATED UNLESS THERE IS SURVIVING ISSUE OF THE MARRIAGE. 2 C.J. 379, AND NUMEROUS CASES CITED IN STEELE V. SUWALSKI, 75 F.2D 885, AT PAGE 887; AND IN BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN V. HOGAN, 5 F.1SUPP. 598, AT PAGES 601 AND 602. THE GENERAL RULE HAS BEEN APPLIED BY THIS OFFICE IN RENTAL, SUBSISTENCE AND QUARTERS ALLOWANCE CASES. SEE 8 COMP. GEN. 573; 21 ID. 525. HOWEVER, IN ORDER BETTER TO CARRY OUT BENEVOLENT AND WORTHY PURPOSES SOUGHT TO BE ACCOMPLISHED BY LIFE INSURANCE, A WELL DEFINED EXCEPTION TO SUCH RULE HAS BEEN DEVELOPED IN THE FIELD OF INSURANCE LAW.

IN THE STEELE CASE, SUPRA, THE COURT, IN HOLDING THAT THE RELATIONSHIP BY AFFINITY SURVIVED THE TERMINATION OF THE MARRIAGE WHICH CREATED THE RELATIONSHIP SO AS TO AUTHORIZE PAYMENTS TO A SISTER-IN-LAW UNDER A WAR RISK INSURANCE POLICY, SET FORTH THE RULE THAT WHERE THE RELATIONSHIP BY AFFINITY IS IN FACT CONTINUED BEYOND THE DEATH OF ONE OF THE PARTIES TO THE MARRIAGE WHICH CREATED THE RELATIONSHIP, AND WHERE THE PARTIES CONTINUED THE SAME FAMILY TIES AND RELATIONSHIPS, CONSIDERING THEMSELVES MORALLY BOUND TO CARE FOR EACH OTHER, THE RELATIONSHIP BY AFFINITY WILL NOT BE REGARDED AS HAVING ENDED AT THE TERMINATION OF THE MARRIAGE. SEE, ALSO, SIMCOKE V. GRAND LODGE, 84 IOWA 383, 15 L.R.A. 114; MCGAUGHEY V. GRAND LODGE, 148 MINN. 136, 180 N.W. 1001; HESSENMUELLER V. SIRILO, 23 C.C.N.S. ( OHIO) 314. SEE, ALSO, RENNER V. SUPREME LODGE, 89 WIS. 401, 62 N.W. 80; JONES V. FIREMEN RELIEF ASSOCIATION, 151 WIS. 215, 138 N.W. 618, ANN. CAS. 1914B, 59; INSURANCE COMPANY V. RICHARDSON, 132 S.W.2D ( TEXAS) 161. WITH THE EXCEPTION OF THE JONES AND RENNER CASES, ALL OF THOSE DECISIONS HOLD THAT THE RELATIONSHIP BY AFFINITY SURVIVES THE TERMINATION OF THE MARRIAGE WHICH CREATED THE RELATIONSHIP. WHILE SUCH TWO CASES DO NOT EXPRESSLY SO HOLD, SUCH A RESULT IS IMPLICIT IN THE FACTS OF EACH CASE, AS IS APPARENTLY RECOGNIZED BY THE STEELE CASE IN CITING AND FOLLOWING THEM, AND NUMEROUS OTHER CASES, NOT EXACTLY IN POINT BUT WHICH RECOGNIZE THE INSURANCE RULE, ARE CITED BY THE COURT IN THAT CASE.

HOWEVER, THERE IS A MINORITY CONTRARY VIEW. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN V. HOGAN, SUPRA; MOREY V. MONK, 145 ALA. 301, 40 SO. 411; DOSTER V. UNITED STATES, 33 F.1SUPP. 23 ( ALA.); ALLEN V. CUNNINGHAM, 223 S.W. 450, 143 TENN. 11. SEE, ALSO, 99 A.L.R. 593, AS TO THIS CONFLICT. BUT, IT WILL BE NOTED THAT WHILE SOME FAMILY TIES WERE MAINTAINED IN THE MOREY CASE, IN ONLY ONE OF THE MINORITY CASES (THE ALLEN CASE) WERE CLOSE FAMILY TIES SHOWN TO EXIST AFTER THE TERMINATION OF THE MARRIAGE, AND IN BOTH OF THOSE CASES THE COURT FOUND ANOTHER WAY TO GIVE THE STEP RELATIVE THE BENEFIT OF THE POLICY. ALSO, IT IS TO BE NOTED THAT IN THE HOGAN CASE THE MARRIAGE WHICH BROUGHT ABOUT THE RELATIONSHIP OF STEPFATHER AND STEPCHILDREN WAS TERMINATED BY DIVORCE, AND THAT THE FORMER WIFE--- THE MOTHER OF THE CHILDREN--- HAD REMARRIED. MOREOVER, A CAREFUL PERUSAL OF THE HOGAN CASE LEAVES THE IMPRESSION THAT THE RESULT MIGHT HAVE BEEN AFFECTED IF IT HAD BEEN SHOWN THAT CLOSE FAMILY TIES HAD EXISTED AND THE COURT DEFINITELY SUGGESTED THAT A DIFFERENT RULE MIGHT BE APPLICABLE WHERE THE MARRIAGE IS TERMINATED BY DEATH THAN WHERE IT IS DISSOLVED BY DIVORCE. AT LEAST, AS THE COURT POINTED OUT, IT IS MUCH MORE LIKELY THAT THE CLOSE FAMILY TIES WILL CONTINUE AFTER A DEATH THAN AFTER A DIVORCE. THE SORROW WHICH ATTENDS A DEATH IN A FAMILY WOULD TEND TO DRAW THE SURVIVORS TOGETHER; WHILE THE STRAIN, WOUNDED FEELINGS AND SEPARATIONS ENGENDERED BY DIVORCE WOULD WORK TO DESTROY ANY CLOSE FAMILY TIES WHICH MIGHT HAVE EXISTED BY REASON OF THE AFFINITY RELATIONSHIP.

AS SIX MONTHS' DEATH GRATUITY PAYMENTS AUTHORIZED BY THE STATUTE TO BE MADE TO WIDOWS, CHILDREN OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVES PARTAKE LARGELY OF THE CHARACTER OF INSURANCE PAYMENTS (SEE 22 COMP. GEN. 85; 23 ID. 216, 225), THERE APPEARS PROPERLY FOR APPLICATION TO SUCH PAYMENTS THE SAID MAJORITY RULE APPLIED IN INSURANCE CASES, TO WIT, THAT THE RELATIONSHIP BY AFFINITY MAY BE REGARDED AS SURVIVING THE ENDING OF THE MARRIAGE FROM WHICH IT AROSE WHERE THE CLOSE FAMILY TIES OF SUCH RELATIONSHIP HAVE CONTINUED IN FACT, ESPECIALLY WHERE THE APPLICATION OF SUCH RULE WOULD APPEAR TO GIVE DUE EFFECT TO THE WISHES OF THE SOLDIER IN HIS DESIGNATION OF A RELATIVE BY AFFINITY AS HIS BENEFICIARY.

WHILE THE CONTINUATION OF THE RELATIONSHIP BY AFFINITY AFTER THE TERMINATION OF THE MARRIAGE IS A QUESTION OF FACT, IT MUST BE RECOGNIZED THAT WHERE A PERSON IS IN THE ARMED FORCES EVIDENCE OF CONTINUANCE OF THE CLOSE FAMILY TIES AND ASSOCIATIONS WOULD NOT BE AVAILABLE AS IN OTHER CASES, PARTICULARLY IN TIME OF WAR, AND THE CONTINUATION OF THE RELATIONSHIP MUST IN LARGE PART DEPEND UPON INTENT. HENCE, THE DELIBERATE DESIGNATION BY AN OFFICER OR AN ENLISTED MAN AFTER ENTERING THE SERVICE OF A STEPCHILD OR OTHER RELATIVE BY AFFINITY AS HIS BENEFICIARY TO RECEIVE THE SIX MONTHS' GRATUITY IN THE EVENT OF HIS DEATH IS TO BE GIVEN GREAT WEIGHT AND IN CASES WHERE THE MARRIAGE CREATING THE RELATIONSHIP BY AFFINITY HAS TERMINATED BY DEATH SUBSEQUENT TO SUCH DESIGNATION IT MAY BE ASSUMED, IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, THAT THE RELATIONSHIP WITH THE DESIGNATED STEPCHILD OR OTHER PREVIOUSLY DESIGNATED RELATIVE BY AFFINITY WAS NOT AFFECTED THEREBY, INSOFAR AS PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS CONCERNED. HOWEVER, THERE WOULD BE NO BASIS FOR ANY SUCH ASSUMPTION WHERE THE MARRIAGE CREATING THE RELATIONSHIP BY AFFINITY HAS BEEN BROKEN BY DIVORCE SUBSEQUENT TO THE DESIGNATION OF A STEPCHILD OR OF ANY OTHER RELATIVE OF THE FORMER WIFE. ON THE CONTRARY, THE PRESUMPTION WOULD BE THAT THE DIVORCE BROUGHT TO AN END OR AT LEAST GREATLY WEAKENED ANY CLOSE FAMILY TIES WITH THE DIVORCED WIFE'S RELATIVES ( BROTHERHOOD V. HOGAN, SUPRA), AND IT WOULD TAKE CLEAR AND CONVINCING AFFIRMATIVE EVIDENCE TO OVERCOME THAT PRESUMPTION AND TO ESTABLISH THAT THE OFFICER OR ENLISTED MAN IN THE SERVICE MAINTAINED SUCH CLOSE FAMILY TIES AND INTENDED TO CONTINUE THE PRIOR RELATIONSHIP IN SUCH CASES.

IN THE PRESENT CASE, IT APPEARS THAT THE ENLISTED MAN HAD BEEN IN THE SERVICE MORE THAN A YEAR WHEN HIS WIFE DIVORCED HIM AND THAT HE DIED IN THE SERVICE SHORTLY THEREAFTER AS A RESULT OF ENEMY ACTION. HE HAD PREVIOUSLY DESIGNATED HER AND THEN HER SON BY A FORMER MARRIAGE TO RECEIVE THE SIX MONTHS' DEATH GRATUITY IN THE EVENT OF HIS DEATH. SUCH DESIGNATIONS USUALLY ARE MADE AT OR ABOUT THE TIME OF ENLISTMENT; AND AS HE DESIGNATED HER AS HIS "WIFE" IT IS APPARENT THAT THE DESIGNATION WAS MADE PRIOR TO THE DIVORCE. FOLLOWING HIS DEATH SHE WAS ADVISED BY THE FINANCE OFFICE, ARMY SERVICE FORCES, THAT HAVING BEEN GRANTED A DIVORCE, SHE WAS NOT HIS LEGAL WIDOW AT THE DATE OF HIS DEATH AND, THEREFORE, WAS NOT ENTITLED TO THE SIX MONTHS' GRATUITY. AT THE SAME TIME, SHE WAS INTERROGATED AS TO WHETHER THE DECEDENT HAD EVER LEGALLY ADOPTED HER SON AND SHE REPLIED THAT "NO. SERGEANT BOYLAN NEVER ADOPTED MY SON GARY JONES.' THERE IS NO EVIDENCE IN THE RECORD OR EVEN ANY SUGGESTION THAT THE ENLISTED MAN HAD MAINTAINED ANY CLOSE FAMILY TIES OR HAD CONTINUED TO TREAT AND REGARD HER SON AS HIS SON AFTER SHE DIVORCED HIM AND, CONSEQUENTLY, THERE APPEARS NO BASIS FOR A CONCLUSION THAT AFTER THE DIVORCE HER SAID SON BY A PREVIOUS MARRIAGE CONTINUED TO BE HIS RELATIVE" WITHIN THE CONTEMPLATION OF THE SIX MONTHS' DEATH GRATUITY STATUTE. FOLLOWS THAT PAYMENT OF THE GRATUITY TO THE SAID GARY JONES IN NOT AUTHORIZED AND, IN VIEW OF THE FACTS AND CIRCUMSTANCES IN THIS CASE, PAYMENT MAY BE MADE ON THE VOUCHER SUBMITTED, IF OTHERWISE CORRECT, TO THE NEXT DESIGNATED BENEFICIARY, TO WIT, THE DECEDENT'S BROTHER.