B-149056, MAR. 5, 1963

B-149056, MAR. 5, 1963

TO MR. N. A. HYDE, SR.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1963, ASKING IF WE CAN FURNISH FORMS TO BE USED FOR THE PURPOSE OF REOPENING THE CLAIM OF YOUR BROTHER, NOBLE HYDE, FOR THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF BERWICK N. HYDE, AF 18525926, WHO DIED ON JULY 23, 1961, WHILE SERVING AS AN AIRMAN SECOND CLASS, UNITED STATES AIR FORCE. YOU HAVE FURNISHED A GENERAL POWER OF ATTORNEY AUTHORIZING YOU TO REPRESENT NOBLE HYDE, AND YOU INDICATE THAT YOU BELIEVE YOU CAN FURNISH INFORMATION ESTABLISHING HIS ENTITLEMENT TO THE GRATUITY IN QUESTION.

THE SIX MONTHS' DEATH GRATUITY IS PAYABLE UNDER THE PROVISIONS OF CHAPTER 75, TITLE 10, U.S. CODE. CLAUSES (3) AND (4) OF SUBSECTION (A) OF SECTION 1477, WHICH IS A PART OF CHAPTER 75, PROVIDE, AMONG OTHER THINGS, FOR PAYMENT OF SUCH GRATUITY TO A DECEASED MEMBER'S PARENTS OR TO PERSONS IN LOCO PARENTIS. SUBSECTION (C) OF THAT SECTION PROVIDES THAT CLAUSES (3) AND (4) OF SUBSECTION (A), SO FAR AS THEY APPLY TO PARENTS AND TO 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 SUCH A STATUS IN THE ARMED FORCES AS IS DESCRIBED IN SECTIONS 1475 OR 1476, WHICH ARE ALSO A PART OF CHAPTER 75. SUBSECTION (C) FURTHER PROVIDES THAT ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS, MAY BE RECOGNIZED IN ANY CASE, AND THAT PREFERENCE SHALL BE GIVEN TO THOSE WHO EXERCISED A PARENTAL RELATIONSHIP ON THE DATE, OR MOST NEARLY BEFORE THE DATE, ON WHICH THE DECEDENT ACQUIRED SUCH A STATUS IN THE ARMED FORCES.

IN OUR DECISION OF JULY 24, 1962, B-149056, COPY HEREWITH, IN THIS CASE, WHICH WAS ADDRESSED TO MAJOR J. J. VANYA, AN AUTHORIZED AIR FORCE FINANCE OFFICER, WE HELD THAT THE FATHER OF AN ILLEGITIMATE CHILD IS NOT A "PARENT" OR A "FATHER" WITHIN THE MEANING OF THOSE TERMS AS USED IN THE DEATH GRATUITY STATUTES. WE THERE POINTED OUT THAT THE FACTS OF RECORD DO NOT ESTABLISH THAT NOBLE HYDE LEGITIMATED BERWICK N. HYDE OR THAT HE STOOD IN LOCO PARENTIS TO HIM "FOR A PERIOD OF NOT LESS THAN ONE YEAR" PRIOR TO THE TIME HE ENTERED THE SERVICE. WE CONCLUDED, THEREFORE, THAT NOBLE HYDE IS NOT ENTITLED TO PAYMENT OF THE DEATH GRATUITY AS THE DESIGNATED BENEFICIARY OF BERWICK N. HYDE.

AT THE TIME SUCH ACTION WAS TAKEN, THERE WAS IN THE FILE AN AFFIDAVIT EXECUTED BY NOBLE HYDE ON MARCH 27, 1962, IN WHICH HE STATED (1) THAT HE IS THE NATURAL FATHER OF AIRMAN SECOND CLASS BERWICK N. HYDE, DECEASED, (2) THAT HE WAS NEVER MARRIED TO THE NATURAL MOTHER OF THE DECEASED AIRMAN AND THAT THEY NEVER LIVED TOGETHER AS HUSBAND AND WIFE; (3) THAT HE WAS NEVER NAMED IN A COURT ORDER TO BE THE FATHER OF THE AIRMAN; (4) THAT DURING THE LIFETIME OF BERWICK N. HYDE, HE CONTRIBUTED TO HIS PARTIAL SUPPORT, BUT THAT HE WAS MOSTLY CARED FOR BY HIS GRANDMOTHER; (5) THAT THE MOTHER OF THE AIRMAN IS NOW DECEASED; AND (6) THAT THE AIRMAN IS NOT SURVIVED BY A SPOUSE OR CHILD. IN HIS LETTER OF MARCH 27, 1962, TRANSMITTING THAT AFFIDAVIT, IVAN J. JOHNSON, III, ATTORNEY AT LAW, STATED THAT NOBLE HYDE INFORMED HIM THAT ALTHOUGH BERWICK HYDE WAS CARED FOR BY HIS GRANDMOTHER IN CROWLEY, LOUISIANA, AFTER HIS MOTHER'S DEATH, NOBLE SENT HER APPROXIMATELY $2,800 FOR CARE, UPKEEP, AND SUPPORT OF THE CHILD; AND THAT THE CHILD DID STAY WITH HIM "DURING THE YEAR 1952 OR A PORTION THEREOF," PRIOR TO ENTERING THE SERVICE.

THERE WAS ALSO IN THE FILE AT THAT TIME A LETTER DATED AUGUST 5, 1961, FROM RUFUS JONES, CROWLEY, LOUISIANA, WHO STATED THAT HE IS ONE OF THE CHILDREN OF MRS. EMMA JONES (NOW DECEASED), THE GRANDMOTHER OF BERWICK HYDE. HE STATED FURTHER THAT BERWICK HYDE WAS BORN OUT WEDLOCK; THAT HIS MOTHER DIED SHORTLY AFTER HE WAS BORN; THAT HE WAS REARED BY "HIS GRANDPARENTS AND THEIR CHILDREN; " AND THAT HIS FATHER, NOBLE HYDE, HAD "NEVER DONE ANY THING FOR HIM.' HE INDICATED THAT THE BODY OF BERWICK HYDE WAS RETURNED TO CROWLEY FOR BURIAL. IN THIS CONNECTION, IT IS NOTED THAT THE RECORDS SHOW CROWLEY, LOUISIANA, AS THE DECEASED MEMBER'S HOME OF RECORD AS OF NOVEMBER 7, 1956, THE DATE OF LAST ENTRY ON ACTIVE DUTY IN CURRENT STATUS. HIS LOCAL BOARD IS SHOWN AS LOCAL BOARD NO. 1, CROWLEY, LOUISIANA.

ON THE BASIS OF THE EVIDENCE NOW OF RECORD, IT IS OUR VIEW THAT NOBLE HYDE IS NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY IN THIS CASE. YOU HAVE ANY ADDITIONAL RELEVANT INFORMATION AS TO THIS MATTER, IT MAY BE SUBMITTED FOR OUR CONSIDERATION. HOWEVER, YOU ARE ADVISED THAT INFORMATION CONCERNING THE AMOUNT OF ANY FINANCIAL OR OTHER AID FURNISHED THE DECEASED MEMBER BY THE BROTHERS OF OTHER RELATIVES OF THE CLAIMANT WOULD BE WITHOUT LEGAL SIGNIFICANCE IN DETERMINING THE LATTER'S RIGHTS IN THE PREMISES.