B-137754, DECEMBER 16, 1958, 38 COMP. GEN. 436

B-137754, DECEMBER 16, 1958, 38 COMP. GEN. 436

MILITARY PERSONNEL - GRATUITIES - SIX MONTHS' DEATH - MINORS - PAYMENTS TO NATURAL GUARDIAN PROPOSED REGULATIONS TO PERMIT SIX MONTHS' DEATH GRATUITY PAYMENTS DUE MINORS TO BE MADE TO THE FATHER OR THE MOTHER AS NATURAL GUARDIAN ARE NOT OBJECTIONABLE PROVIDED THAT THE PAYMENTS DO NOT EXCEED $1,000 AND THAT, IF PAYMENTS ARE IN EXCESS OF $1,000, THE APPOINTMENT OF A LEGAL GUARDIAN ON BEHALF OF THE MINOR BE REQUIRED. IN VIEW OF THE CONFLICT AMONG LEGAL AUTHORITIES AS TO WHETHER ANYONE BUT THE FATHER OR MOTHER CAN BE A NATURAL GUARDIAN OF A MINOR CHILD, PAYMENT OF A SIX MONTHS' DEATH GRATUITY TO A GRANDPARENT AS NATURAL GUARDIAN MAY NOT BE AUTHORIZED, IT BEING DOUBTFUL THAT SUCH PAYMENT WOULD GIVE THE GOVERNMENT A GOOD ACQUITTANCE.

TO THE SECRETARY OF DEFENSE, DECEMBER 16, 1958:

REFERENCE IS MADE TO LETTER DATED OCTOBER 20, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION WHETHER REGULATIONS PROPOSED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE IN COMMITTEE ACTION NO. 227, COVERING PAYMENTS OF DEATH GRATUITY CONTEMPLATED TO BE MADE TO FATHERS AND MOTHERS, AS NATURAL GUARDIANS ON BEHALF OF THEIR MINOR CHILDREN, MAY BE ADOPTED BY THE MILITARY DEPARTMENTS. DECISION ALSO IS REQUESTED AS TO WHETHER SUCH PAYMENTS MAY BE MADE TO GRANDPARENTS, AS NATURAL GUARDIANS ON BEHALF OF MINOR CHILDREN IN THEIR CUSTODY AT THE TIME.

SECTIONS 301-304 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, 70 STAT. 868-869, PROVIDING FOR PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, WERE REPEALED AND SIMILAR PROVISIONS WERE ENACTED AS 10 U.S.C. 1475-1480, BY PUBLIC LAW 85-861, APPROVED SEPTEMBER 2, 1958. THOSE SECTIONS DIRECT THE SECRETARY CONCERNED, UPON OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF A UNIFORMED SERVICE UNDER HIS JURISDICTION, TO HAVE A DEATH GRATUITY OF FROM $800 TO $3,000 PAID IMMEDIATELY ,TO OR FOR" CERTAIN SPECIFIED SURVIVORS OF THE DECEASED MEMBER, IN THE ORDER OF PRECEDENCE THERE SET FORTH. SECTION 1479 OF TITLE 10 U.S.C. PROVIDES THAT IN ORDER THAT PAYMENTS MAY BE MADE IMMEDIATELY UNDER SECTION 1475 OF THAT TITLE, THE SECRETARY CONCERNED (1) SHALL AUTHORIZE THE COMMANDING OFFICER OF A TERRITORIAL COMMAND, INSTALLATION, OR DISTRICT "IN WHICH A SURVIVOR OF A PERSON COVERED BY THAT SECTION IS RESIDING" TO DETERMINE THE BENEFICIARY ELIGIBLE FOR THE DEATH GRATUITY, AND (2) SHALL AUTHORIZE THE DISBURSING OR CERTIFYING OFFICER OF EACH SUCH COMMAND, INSTALLATION, OR DISTRICT TO MAKE PAYMENTS TO THE BENEFICIARIES SO DETERMINED, OR CERTIFY THE PAYMENTS DUE THEM, AS MAY BE APPROPRIATE.

THE REGULATIONS PROPOSED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE AS A GUIDE IN THE IMPLEMENTATION OF THOSE PROVISIONS ARE AS FOLLOWS:

REGULATIONS FOR PAYMENT OF DEATH GRATUITY TO NATURAL

GUARDIANS ON BEHALF OF MINORS

1. GENERAL

DEATH GRATUITY MAY BE PAID TO A NATURAL GUARDIAN ON BEHALF OF A MINOR ENTITLED TO SUCH PAYMENT UNDER TITLE III, ACT OF AUGUST 1, 1956, 70 STAT. 857, 38 U.S.C. 1101 NOTE, PROVIDED A LEGALLY APPOINTED GUARDIAN HAS NOT BEEN APPOINTED.

2. SUBSTANTIATION

PAYMENT OF THE GRATUITY MUST BE SUPPORTED BY:

A. A SWORN (NOTARIZED) STATEMENT OF THE NATURAL GUARDIAN CONTAINING THE FOLLOWING INFORMATION:

1. THAT NO LEGAL GUARDIAN HAS BEEN APPOINTED NOR IS SUCH AN APPOINTMENT CONTEMPLATED;

2. THE RELATIONSHIP OF THE NATURAL GUARDIAN TO THE MINOR;

3. THAT THE MINOR IS IN THE ACTUAL CUSTODY OF THE NATURAL GUARDIAN;

4.THAT ANY AMOUNT PAID TO NATURAL GUARDIAN WILL BE HELD FOR, OR APPLIED TO, THE USE AND BENEFIT OF THE MINOR;

B. CERTIFICATE OF BIRTH OF THE MINOR OR OTHER ACCEPTABLE EVIDENCE OF BIRTH.

3. DETERMINATION OF NATURAL GUARDIAN

A. NONE OTHER THAN THE NATURAL FATHER OR MOTHER MAY BE CONSIDERED AS THE "NATURAL GUARDIAN; "

B. IF THE NATURAL FATHER AND MOTHER ARE RESIDING TOGETHER AND THE MINOR CHILD IS IN THEIR CUSTODY, OR IS RESIDING ELSEWHERE WITH THE FATHER'S CONSENT AND HAS NOT BEEN ABANDONED OR EMANCIPATED, THE FATHER WILL BE CONSIDERED AS THE "NATURAL GUARDIAN.' UNDER NO CIRCUMSTANCES WILL PAYMENT BE MADE TO THE FATHER AND MOTHER IN EQUAL SHARES. PAYMENT OF THE GRATUITY BEING FOR THE BENEFIT OF THE MINOR CHILD NO ACTION SHALL BE TAKEN WHICH WOULD GIVE RISE TO AN INFERENCE THAT THE PAYMENT IS FOR OTHER THAN THE BENEFIT OF THE CHILD;

C. IF THE NATURAL FATHER IS DEAD, MENTALLY INCOMPETENT, OR IS NOT RESIDING WITH THE NATURAL MOTHER BECAUSE OF JUDICIAL OR OTHER SEPARATION, AND IF INFORMATION IS NOT RECEIVED BY THE ARMED SERVICE THAT LEGAL CUSTODY OF THE MINOR HAS BEEN GRANTED BY COURT ORDER TO SOME OTHER PERSON THAN ITS MOTHER, AND IF THE CHILD RESIDES WITH ITS MOTHER, SHE WILL BE CONSIDERED TO BE THE "NATURAL GUARDIAN; "

D. IF THE NATURAL MOTHER IS DEAD, MENTALLY INCOMPETENT, OR IS NOT RESIDING WITH THE NATURAL FATHER BECAUSE OF JUDICIAL OR OTHER SEPARATION, AND IF INFORMATION IS NOT RECEIVED BY THE ARMED SERVICE THAT LEGAL CUSTODY OF THE MINOR HAS BEEN GRANTED BY COURT ORDER TO SOME OTHER PERSON THAN ITS FATHER, AND IF THE CHILD RESIDES WITH ITS FATHER, HE WILL BE CONSIDERED TO BE THE "NATURAL GUARDIAN; "

E. THE NATURAL MOTHER (ONLY) WILL BE CONSIDERED AS THE "NATURAL GUARDIAN" IN THE CASE OF AN ILLEGITIMATE CHILD;

F. A STEPPARENT WILL NOT BE CONSIDERED AS A "NATURAL GUARDIAN" FOR THIS PURPOSE;

4. QUESTIONABLE QUALIFICATION OF NATURAL GUARDIAN

IF CONFLICT OR CONTENTION ARISES AMONG MEMBERS OF THE FAMILY OF THE DECEASED AS TO THE PERSON ENTITLED TO RECEIVE PAYMENT OF THE GRATUITY, PAYMENT WILL BE MADE ONLY TO A LEGALLY APPOINTED GUARDIAN.

IT APPEARS THAT THE PROPOSED REGULATIONS FOLLOW THE REQUIREMENTS AND RESTRICTIONS APPLIED IN THE SETTLEMENT OF SUCH CLAIMS BY OUR CLAIMS DIVISION EXCEPT THAT THE PAYMENT LIMITATION OF $1,000 IS OMITTED FROM THE REGULATIONS. IN THE COMMITTEE ACTION, IT IS POINTED OUT THAT UNDER THIS LIMITATION ONLY SURVIVORS OF MEMBERS IN PAY GRADES E-1 THROUGH E 3, E-4 WITH LESS THAN FOUR YEARS' SERVICE, AND E-5 WITH LESS THAN TWO YEARS' SERVICE, MAY BE PAID BY THE SERVICES WITHOUT THE APPOINTMENT OF A LEGAL GUARDIAN OF THE MINOR. IN ORDER TO INSURE UNIFORM TREATMENT OF ALL SURVIVORS, REGARDLESS OF THE PAY GRADE OF THE DECEASED MEMBER, IT IS SUGGESTED THAT NO MONETARY LIMITATION BE IMPOSED FOR SUCH PAYMENTS. ALTHOUGH NOT INCLUDED IN THE PROPOSED REGULATIONS, IT IS REPORTED THAT ONE OF THE SERVICES CONSIDERS IT ADVANTAGEOUS TO EXPAND THE CONCEPT OF PAYMENT SO AS TO INCLUDE GRANDPARENTS AS NATURAL GUARDIANS IN CERTAIN CASES.

THE GENERAL RULE IN THIS COUNTRY APPEARS TO BE THAT GUARDIANSHIP BY NATURE, IN THE ABSENCE OF A STATUTE, EXTENDS ONLY TO THE CUSTODY OF THE PERSON OF THE AWARD AND DOES NOT INCLUDE THE RIGHT TO MANAGE SUBSTANTIAL PROPERTY INTERESTS ACQUIRED EITHER BY INHERITANCE OR BY OPERATION OF A STATUTE IN CONFERRING PROPERTY RIGHTS ON HIM. SEE 39 C.J.S., GUARDIAN AND WARD, AT PAGE 116; 25 AM. JUR., GUARDIAN AND WARD, AT PAGE 13; DECKER V. POUVAILSMITH CORP., 233 N.Y.S. 407, REVERSED ON OTHER GROUNDS, 168 N.E. 442; FLESHMAN V. BANK OF MARLINTON, 173 S.E. 775, 776; APPLICATION OF GOODCHILD, 290 N.Y.S. 683, 701. THE STATE STATUTES GENERALLY PROVIDE FOR THE APPOINTMENT BY THE PROBATE COURT, WHEN FOUND NECESSARY, OF A GUARDIAN OF THE PERSON OR OF THE ESTATE OF THE MINOR, OR OF BOTH, WHO WILL HAVE THE CARE AND MANAGEMENT OF THE PERSON OR OF THE ESTATE OF SUCH MINOR, OR OF BOTH; THAT, WITH CERTAIN EXCEPTIONS, A MINOR OVER THE AGE OF 14 YEARS MAY SELECT A GUARDIAN WHO, IF A SUITABLE PERSON, SHALL BE APPOINTED, AND THAT THE FATHER AND MOTHER HAVE A RIGHT TO THE CUSTODY OF THE MINOR. CERTAIN OF THE STATE STATUTES ALSO MAKE IT THE DUTY OF THE HUSBAND TO SUPPORT HIS WIFE AND HIS MINOR CHILDREN OUT OF HIS PROPERTY OR BY HIS LABOR. IF HE IS UNABLE TO DO SO, THEY PROVIDED THAT HIS WIFE MUST ASSIST HIM SO FAR AS SHE IS ABLE, AND THAT NO PART OF THE WARD'S ESTATE SHALL BE USED FOR THE SUPPORT, MAINTENANCE OR EDUCATION OF A WARD UNLESS ORDERED OR APPROVED BY THE COURT. THERE IS ACCORDINGLY A CLEAR DISTINCTION BETWEEN THE PARENT ACTING AS THE NATURAL GUARDIAN OF HIS MINOR CHILD WITH CUSTODY OF THE PERSON OF THE MINOR, AND THE POSITION OF LEGAL GUARDIAN APPOINTED BY THE COURT FOR THE PURPOSE OF CARE AND MANAGEMENT OF THE ESTATE OF SUCH MINOR. TO THIS MUST BE ADDED THE FACT THAT WHERE PAYMENTS DUE THE MINOR ARE AUTHORIZED TO BE MADE TO HIS PARENTS, AS NATURAL GUARDIANS, SUCH PAYMENTS GENERALLY ARE LIMITED TO AMOUNTS OF $1,000 OR LESS BY THE STATE STATUTES. IN VIEW OF SUCH LIMITED AUTHORITY OF PARENTS AS NATURAL GUARDIANS OF MINORS AND THE LIMITATIONS IMPOSED ON THE AMOUNTS THEY ARE ENTITLED TO RECEIVE IN THAT CAPACITY, OUR CLAIMS DIVISION HAS FOLLOWED THE PROCEDURE OF PAYING THEM RELATIVELY SMALL AMOUNTS DUE MINORS--- NOT IN EXCESS OF $1,000--- IF THE MATTER IS OTHERWISE FREE FROM DOUBT, THE EXPENSE OF OBTAINING LEGAL GUARDIAN GENERALLY BEING DISPROPORTIONATE TO THE AMOUNT DUE FROM THE UNITED STATES.

THERE IS A CONFLICT AMONG THE AUTHORITIES AS TO WHETHER ANYONE BUT THE FATHER OR MOTHER CAN PROPERLY BE SAID TO BE A NATURAL GUARDIAN. SOME CASES EXPRESSLY HOLD THAT THE PARENTS ARE THE ONLY NATURAL GUARDIANS, AND THAT NO OTHER RELATIVE HAS THE RIGHT TO CLAIM THE GUARDIANSHIP OF A CHILD EXCEPT BY LEGAL APPOINTMENT. 25 AM. JUR., GUARDIAN AND WARD, PAGE 12; IN RE MENDELSOHN'S ADOPTION, 39 N.Y.S.2D 384, AND THE AUTHORITIES CITED IN THAT CASE. SINCE ONLY THE FATHER AND MOTHER ARE GENERALLY RECOGNIZED AS THE NATURAL GUARDIANS OF A CHILD, PAYMENT TO A GRANDPARENT IN THAT CAPACITY MAY NOT BE AUTHORIZED, IT BEING DOUBTFUL THAT SUCH PAYMENT WOULD GIVE THE GOVERNMENT A GOOD ACQUITTANCE.

ACCORDINGLY, YOU ARE ADVISED THAT WE WOULD HAVE NO OBJECTION TO THE ISSUANCE OF THE PROPOSED REGULATIONS PROVIDING THEY ARE AMENDED TO LIMIT PAYMENT TO A PARENT AS NATURAL GUARDIAN OF A MINOR, IN AN AMOUNT NOT IN EXCESS OF $1,000. IN ANY CASE INVOLVING A SUM IN EXCESS OF $1,000 DUE A MINOR, IT IS FELT THAT THE EXPENSE INCIDENT TO THE APPOINTMENT OF A LEGAL GUARDIAN WOULD NOT BE DISPROPORTIONATE TO THE AMOUNT DUE FROM THE UNITED STATES AND THAT SUCH PROCEDURE IS JUSTIFIED IN ORDER TO MORE ADEQUATELY PROTECT THE INTERESTS OF BOTH THE MINOR AND THE GOVERNMENT.