B-117462, DEC 9, 1953

B-117462, DEC 9, 1953

PRECIS-UNAVAILABLE

COLONEL CLYDE W. O'HERN, USAF:

BY LETTER DATED OCTOBER 20, 1953, THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED TO THIS OFFICE YOUR LETTER OF AUGUST 20, 1953, REQUESTING DECISION WHETHER PAYMENT IS LEGALLY AUTHORIZED ON A VOUCHER, SUBMITTED THEREWITH, STATED IN FAVOR OF ADRAIN T. FLANDERS, FATHER AND DESIGNATED BENEFICIARY OF CHARLES A. FLANDERS, SERVICE NO. 15,431,187, DECEASED, LATE AIRMAN, FIRST CLASS, UNITED STATES AIR FORCE, FOR $825.54, REPRESENTING THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903.

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 HIS DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE ARMY *** THAT IN THE EVENT OF THE DEATH OF ANY BENEFICIARY BEFORE PAYMENT TO AND COLLECTION BY SUCH BENEFICIARY OF THE AMOUNT AUTHORIZED HEREIN, SUCH GRATUITY SHALL BE PAID TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION ABOVE STATED ***."

THE PROVISIONS OF THE SAID ACT WERE EXTENDED TO THE PERSONNEL OF THE UNITED STATES AIR FORCE BY SECTION 305(A) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508, 5 U.S.C. 171L.

THE COPY OF THE "CASUALTY REPORT" ATTACHED TO THE VOUCHER SHOWS THAT AIRMAN, FIRST CLASS, FLANDERS DIED ON FEBRUARY 3, 1953, AS THE RESULT OF A VEHICLE ACCIDENT; THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT, AND THAT HE NAMED AS HIS BENEFICIARIES UNDER THE ACT OF DECEMBER 17, 1919, SUPRA, ADRAIN T. FLANDERS, FATHER (PRINCIPAL BENEFICIARY), AND MAYME FLANDERS JONES, AUNT (ALTERNATE BENEFICIARY). FURTHER APPEARS THAT THE DECEDENT'S WIFE DIED ON FEBRUARY 5, 1953, AS THE RESULT OF THE ACCIDENT WHICH CAUSED HIS DEATH; THAT HE ALSO IS SURVIVED BY A STEPCHILD, NANCY ELIZABETH BART, WHO WAS SUPPORTED AND MAINTAINED BY HIM AND HER MOTHER UNTIL THE TIME OF THEIR DEATH; THAT THE SAID CHILD WAS NEVER ADOPTED BY HIM, AND THAT SHE WAS NOT DESIGNATED BY HIM TO RECEIVE THE GRATUITY PAYMENT. IN VIEW OF THE EXISTENCE OF A STEPCHILD, YOU QUESTION WHETHER SHE WOULD TAKE PRECEDENCE OVER THE DECEDENT'S FATHER FOR SUCH PAYMENT. THE WORD "RELATIVE" AS USED IN THE SO CALLED GRATUITY STATUTE, HAS BEEN CONSTRUED TO INCLUDE A RELATIVE BY AFFINITY, AND SUCH RELATIVE, IF DEPENDENT AND PREVIOUSLY DESIGNATED, MAY BE PAID THE GRATUITY. 19 COMP. DEC. 651; 5 COMP. GEN. 948, 24 ID. 320. HOWEVER, THE PREVIOUS DESIGNATION OF A STEPCHILD IS A PREREQUISITE TO PAYMENT OF THE GRATUITY. ACCORDINGLY, SINCE THE DECEDENT'S WIFE DIED BEFORE PAYMENT AND COLLECTION OF THE GRATUITY, AND INASMUCH AS HE DID NOT DESIGNATE HIS STEPCHILD AS HIS BENEFICIARY TO RECEIVE THE GRATUITY, PAYMENT MAY BE MADE ON THE VOUCHER SUBMITTED, IF OTHERWISE CORRECT, TO THE DESIGNATED BENEFICIARY, THE DECEDENT'S FATHER.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH.