B-121790, MAY 16, 1955, 34 COMP. GEN. 601

B-121790, MAY 16, 1955, 34 COMP. GEN. 601

GRATUITIES - SIX MONTHS' DEATH - MINOR CHILD - ADOPTION BY THIRD PARTY A DECEASED NAVAL OFFICER'S MINOR CHILD WHO WAS LEGALLY ADOPTED BY OTHERS PRIOR TO THE OFFICER'S DEATH MAY NOT BE PAID THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO NATHAN CASAVER MCCOY MAY 16, 1955:

REFERENCE IS MADE TO YOUR CLAIM, AS LEGAL GUARDIAN OF SUE CARMELL MCCOY, FOR THE SIX MONTHS' DEATH GRATUITY PAYMENT IN THE CASE OF LOEL RALPH MILLER, LATE LIEUTENANT, UNITED STATES NAVAL RESERVE, WHO DIED JANUARY 28, 1954, OF INJURIES RECEIVED IN AN AIRCRAFT ACCIDENT WHILE ENGAGED IN AN AUTHORIZED FERRY FLIGHT.

YOUR CLAIM HAS BEEN THE SUBJECT OF CORRESPONDENCE FROM HONORABLE TOM STEED, HOUSE OF REPRESENTATIVES, AND YOUR ATTORNEY, MR. ELLIS LYONS; AND CONGRESSMAN STEED AND YOUR ATTORNEY HAVE CONFERRED PERSONALLY WITH OUR REPRESENTATIVES REGARDING THE MATTER.

IT APPEARS THAT SUE CARMELL MCCOY IS THE MINOR DAUGHTER OF THE LATE OFFICER AND MARY JANE MILLER. BY JUDGMENT AND DECREE OF DIVORCE NO. 3315, ENTERED JUNE 20, 1951, IN THE DISTRICT COURT OF PAYNE COUNTY, OKLAHOMA, MARY JANE MILLER WAS AWARDED A DIVORCE FROM THE LATE OFFICER AND CUSTODY OF THE MINOR CHILD. THE DECREE PROVIDED THAT WHEN THE OFFICER BECAME EMPLOYED, HE WOULD CONTRIBUTE $50 PER MONTH TO THE SUPPORT OF THE CHILD. BY DECREE OF ADOPTION NO. 332, ENTERED FEBRUARY 6, 1952, IN THE COUNTY COURT OF PAYNE COUNTY, OKLAHOMA, THE MINOR CHILD WAS ADOPTED BY YOU AND YOUR WIFE, MILDRED REYNOLDS MCCOY, THE DECREE PROVIDING, IN PART, THAT:

* * * THE SAID MINOR, SUE CARMELL MILLER, BE, AND SHE IS HEREBY DECREED TO BE HELD THE LAWFULLY ADOPTED CHILD OF SAID PETITIONERS, NATHAN CASAVER MCCOY AND MILDRED REYNOLDS MCCOY, AND THAT THE NAME OF SAID CHILD BE CHANGED FROM SUE CARMELL MILLER TO SUE CARMELL MCCOY, AND THAT FROM AND AFTER THE SIGNING OF THIS DECREE THE EXCLUSIVE CUSTODY, CARE, NURTURE AND EDUCATION OF SAID CHILD SHALL BE VESTED IN THE SAID PETITIONERS; AND THAT THE PARENTS OF SAID CHILD, AND ALL OTHER PERSONS ARE FOREVER BARRED FROM CLAIMING THE CUSTODY OR POSSESSION OF SAID CHILD.

ON JULY 20, 1951, THE LATE OFFICER EXECUTED DD FORM 93, RECORD OF EMERGENCY DATA FOR THE ARMED FORCES OF THE UNITED STATES, STATING THAT HE WAS DIVORCED AND THAT SUE CARMELL MILLER WAS HIS CHILD. HE FURTHER STATED ON SUCH FORM THAT, IN THE EVENT HE WAS NOT SURVIVED BY A WIFE OR AN ELIGIBLE CHILD ENTITLED TO THE SIX MONTHS' GRATUITY, HE DESIRED THAT PAYMENT BE MADE TO HIS MOTHER, BEULAH JANE MILLER. ON DECEMBER 29, 1952, THE LATER OFFICER EXECUTED ANOTHER DD FORM 93, ON WHICH HE STATED THAT HE HAD NO WIFE OR CHILD AND NAMED HIS MOTHER, BEULAH JANE MILLER AS PRIMARY BENEFICIARY TO RECEIVE THE SIX MONTHS' DEATH GRATUITY PAYMENT.

OUR CLAIMS DIVISION CERTIFIED THE ARREARS OF PAY AND ALLOWANCES DUE THE LATE OFFICER'S ESTATE FOR PAYMENT TO YOU AS ADMINISTRATOR OF HIS ESTATE. THE SIX MONTHS' GRATUITY WAS CERTIFIED FOR PAYMENT TO BEULAH J. MILLER, MOTHER, AS DESIGNATED BENEFICIARY. YOUR CLAIM FOR THE GRATUITY AS LEGAL GUARDIAN OF SUE CARMELL MCCOY WAS DENIED ON AUTHORITY OF OUR DECISION DATED NOVEMBER 17, 1943, 23 COMP. GEN. 371, HOLDING THAT THE MINOR CHILD OF A DIVORCED MEMBER OF THE ARMED FORCES WHO HAD BEEN LEGALLY ADOPTED BY OTHERS PRIOR TO THE MEMBER'S DEATH IS NOT HIS CHILD FOR PURPOSES OF THE SIX MONTHS' DEATH GRATUITY.

IN HIS VERY ABLE BRIEF, AND ORALLY, YOUR ATTORNEY CONTENDS THAT THE ADOPTION STATUTES OF THE STATE OF OKLAHOMA DO NOT CUT OFF THE RIGHT OF A CHILD WHO HAS BEEN ADOPTED BY OTHERS TO INHERIT FROM ITS NATURAL PARENTS AND HE SAYS THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY IS OF OPINION THAT YOUR WARD MAY INHERIT FROM HER NATURAL FATHER. ALSO, HE POINTS OUT THAT ADOPTED CHILDREN HAVE BEEN RECOGNIZED IN CERTAIN CASES BY THE VETERANS ADMINISTRATION AND THE BUREAU OF EMPLOYEES' COMPENSATION AS CHILDREN OF THEIR NATURAL PARENTS FOR PURPOSES OF VETERANS' BENEFITS AND EMPLOYEE COMPENSATION PAYMENTS. IN SUCH CIRCUMSTANCES, HE URGES THAT YOUR CLAIM FOR THE SIX MONTHS' GRATUITY SHOULD BE ALLOWED.

THE ACT OF JUNE 4, 1920, AS AMENDED, 34 U.S.C. 943, PROVIDES, IN PERTINENT PART, AS FOLLOWS (QUOTING THE UNITED STATES CODE):

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY 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, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * * AND PROVIDED, FURTHER, THAT IN THE EVENT OF THE DEATH OF ANY BENEFICIARY BEFORE PAYMENT TO AND COLLECTION BY SUCH BENEFICIARY OF THE AMOUNT AUTHORIZED HEREIN, SUCH AMOUNT SHALL BE PAID TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION ABOVE STATED.

PRIOR TO ENACTMENT OF THE QUOTED PROVISO THE UNITED STATES COURT OF CLAIMS HAD HELD THAT THE DEATH OF THE SURVIVING WIDOW OF A DECEASED ARMY OFFICER PRIOR TO PAYMENT TO HER OF THE SIX MONTHS' GRATUITY UNDER THE SIMILAR ACT OF DECEMBER 17, 1919, 10 U.S.C. 903, CREATED A RIGHT OF ACTION IN FAVOR OF THE LEGAL REPRESENTATIVE OF HER ESTATE, AND THAT THE PROCEEDS OF THE GRATUITY WERE PAYABLE TO HIM FOR DISPOSITION. SEE CAMPBELL, ADM. V. UNITED STATES, 80 C.1CLS. 836 (1935). SINCE THE EFFECT OF THE COURT DECISION WAS TO AUTHORIZE PAYMENTS WHICH MIGHT BE CONTRARY TO THE WISHES OF THE OFFICER OR SOLDIER, THE AMENDMENT WAS DESIGNED TO OVERCOME THAT DECISION AND TO AUTHORIZE PAYMENT OF THE GRATUITY AS THEREIN PROVIDED WITHOUT SURVIVORSHIP BUT BASED UPON THE ALTERNATELY NAMED BENEFICIARIES. AS DONOR OR GRANTOR OF THE SIX MONTHS' GRATUITY, THE LEGISLATIVE BRANCH OF THE GOVERNMENT, UPON BEING APPRISED OF THE COURT'S RULING IN THE CAMPBELL CASE, HAD THE RIGHT TO, AND DID IN FACT, EXERCISE ITS PREROGATIVE TO SO AMEND THE STATUTE, IN ORDER THAT THERE WOULD BE NO DOUBT AS TO THE LEGISLATIVE INTENT TO VEST PAYMENT IN THE DESIGNATED BENEFICIARIES PERSONALLY, WITHOUT SURVIVORSHIP.

THERE IS NO RIGHT OF INHERITANCE INVOLVED IN THE ACT OF JUNE 4, 1920, AS AMENDED. THE STATUTE AUTHORIZES PAYMENT TO DESIGNATED DEPENDENTS, NOT FOR THE BENEFIT OF AN ESTATE, BUT FOR THE BENEFIT OF THOSE WHO BY OUR STANDARDS ARE LEGALLY OR MORALLY ENTITLED TO SUPPORT. THE PURPOSE AND OBJECT OF THE STATUTE IS TO CONTINUE FOR A SHORT PERIOD THE SUPPORT OF DEPENDENTS AFTER A CASUALTY. CONGRESS HAD THE POWER, OF COURSE, TO RESTRICT THE TERMS USED IN THE STATUTE BUT IT DID NOT DO SO. IN THE ABSENCE OF SUCH RESTRICTION AND THERE BEING NO MATTER OF INHERITANCE INVOLVED, THE STATUS OF AN INDIVIDUAL OR A CHILD, PARENT, ETC., FOR PURPOSES OF THE LAW PLAINLY IS FOR DETERMINATION ON THE BASIS OF RELATIONSHIP ALONE.

GENERALLY, IN THIS COUNTRY, AN ADOPTION EFFECTS A LEGAL AS WELL AS A PRACTICAL SUBSTITUTION OF PARENTS. THE NATURAL PARENTS LOSE AND THE ADOPTIVE PARENTS RECEIVE OR ASSUME THE RIGHT TO THE CHILD'S CUSTODY, SERVICES, AND EARNINGS, AND THE RIGHT TO CONTROL THE CHILD, AND THE OBLIGATIONS OF MAINTENANCE, EDUCATION, ETC. THE CHILD OWES THE DUTIES ARISING OUT OF THE RELATIONSHIP TO HIS ADOPTIVE PARENTS AND NOT TO HIS NATURAL PARENTS. SEE VERNIER, AMERICAN FAMILY LAWS, VOLUME IV, PAGE 405. THE PURPOSE OF THE STATUTORY ADOPTION SCHEMES OF THE VARIOUS STATES IS TO TRANSPLANT THE ADOPTED PERSON INTO THE FAMILY OF THE ADOPTER, THE PERSON THUS BEARING THE SAME LEGAL RELATIONSHIPS TO THE ADOPTIVE PARENTS AS DOES THEIR NATURAL CHILD. COMPARE CARPENTER V. UNITED STATES, 168 F.2D 369, AND SEE THE AUTHORITIES FOOTNOTED TO THAT CASE. SEE, ALSO, WOODWARD V. UNITED STATES, 341 U.S. 112. THE ABOVE QUOTED LANGUAGE OF THE DECREE OF ADOPTION IN THIS CASE INDICATES THAT SUCH IS THE PRECISE PURPOSE OF THE OKLAHOMA ADOPTION STATUTES.

NOTHING IN THE ACT OF JUNE 4, 1920, AS AMENDED, SUGGESTS THAT THE CONGRESS INTENDED THAT A CHILD SHOULD HAVE MORE THAN ONE PATERNAL PARENT AND ONE MATERNAL PARENT FOR THE PURPOSES OF THE STATUTE; AND UNQUESTIONABLY THE LEGAL ADOPTION OF A CHILD ESTABLISHES THE LEGAL RELATIONSHIP OF PARENT AND CHILD BETWEEN THE CHILD AND ITS ADOPTIVE PARENTS. UNIFORMLY WE HAVE HELD THAT AN ADOPTED CHILD IS THE CHILD OF THE ADOPTIVE PARENTS ENTITLED TO THE GRATUITY, IF OTHERWISE QUALIFIED, UPON THE DEATH OF THE ADOPTIVE PARENT AND NOT UPON THE DEATH OF THE NATURAL PARENT. 5 COMP. GEN. 92; 23 COMP. GEN. 371; AND COMPARE 24 COMP. GEN. 479.

ADMITTEDLY THE VETERANS ADMINISTRATION HAS REACHED A CONTRARY RESULT IN THE ADMINISTRATION OF VETERANS' BENEFITS. HOWEVER, THE LAWS RELATING TO VETERANS' BENEFITS ARE SEPARATE AND DISTINCT AND DIFFER MATERIALLY FROM THE ACT OF JUNE 4, 1920, AS AMENDED. IN CERTAIN CASES OF VETERANS' BENEFITS, A RIGHT OF INHERITANCE IS RECOGNIZED IN DETERMINING THE PERMITTED CLASS OF DESIGNATED BENEFICIARIES. SEE, FOR EXAMPLE, SECTION 303 OF THE ACT OF JUNE 7, 1924, 43 STAT. 625, AS AMENDED, 38 U.S.C. 514. ALSO, IN 1927 THE CORRECTNESS OF THE RULINGS OF THE VETERANS ADMINISTRATION IN THIS TYPE OF CASE WAS QUESTIONED BY THE THEN SECRETARY OF WAR. THE ATTORNEY GENERAL OF THE UNITED STATES, IN SUSTAINING THE POSITION OF THE VETERANS ADMINISTRATION, BASED HIS DECISION UPON THE FACT THAT THE ADMINISTRATIVE CONSTRUCTION WAS OF LONG DURATION AND HAD NOT BEEN QUESTIONED BY THE CONGRESS AND WAS NOT SO CLEARLY WRONG THAT IT SHOULD BE CHANGED AT THAT LATE DATE BY ADMINISTRATIVE DECISION. 35 OP. ATTY. GEN. 385. THAT OPINION, HOWEVER, DOES NOT HOLD THAT AN OPPOSITE CONSTRUCTION BY THE VETERANS ADMINISTRATION WOULD HAVE BEEN CONTRARY TO LAW.

APPARENTLY THE BUREAU OF EMPLOYEES' COMPENSATION FOLLOWS THE RULINGS OF THE VETERANS ADMINISTRATION IN THIS TYPE OF CASE; BUT, AGAIN, LAWS DIFFERENT FROM THE ACT OF JUNE 4, 1920, ARE INVOLVED AND THE ADMINISTRATIVE CONSTRUCTION GIVEN TO THOSE LAWS IS NOT CONTROLLING WHERE THE SIX MONTHS' DEATH GRATUITY IS CONCERNED.

CAREFUL AND SYMPATHETIC CONSIDERATION OF THE LEGAL POINTS RAISED IN THIS CASE BY BOTH MR. LYONS AND CONGRESSMAN STEED HAVE NOT CONVINCED US THAT OUR CONSTRUCTION OF THE TERM "CHILD," AS USED IN THE ACT OF JUNE 4, 1920, AS AMENDED, IS INCORRECT. ALSO, IT SEEMS PERTINENT AGAIN TO DIRECT ATTENTION TO THE FACT THAT ALTHOUGH THE ACTION TAKEN IN DENYING PAYMENT TO YOU, AS GUARDIAN OF THE MINOR CHILD OF THE DECEASED OFFICER, WAS GROUNDED SPECIFICALLY ON THE DECISION OF NOVEMBER 17, 1943 (23 COMP. GEN. 371), SUCH HOLDING WAS MERELY A REITERATION OF THE CONCLUSION IN A SIMILAR CASE DECIDED AUGUST 5, 1925 (5 COMP. GEN. 92), WHICH HAS CONSISTENTLY BEEN FOLLOWED AND APPLIED IN THE DISPOSITION OF CASES OF THIS TYPE FOR APPROXIMATELY THIRTY YEARS. ALSO, IT MAY BE SUPPOSED, IN VIEW OF THE SUBSTANTIAL TIME WHICH HAS ELAPSED SINCE THE RULING OF AUGUST 5, 1925, WITHOUT ANY CONGRESSIONAL ACTION HAVING BEEN TAKEN SIMILAR TO THAT FOLLOWING THE CAMPBELL CASE, CITED ABOVE, THAT OUR CONSTRUCTION HAS THE APPROVAL OF THE CONGRESS. ACCORDINGLY, WE MUST CONCLUDE THAT THE GRATUITY PROPERLY WAS PAID TO THE DESIGNATED BENEFICIARY AND THAT YOUR CLAIM, ON BEHALF OF THE CHILD, FOR THE GRATUITY PROPERLY WAS DENIED.