B-172014 L/M, MAR 11, 1971

B-172014 L/M, MAR 11, 1971

PRECIS-UNAVAILABLE

MAJOR W. G. REDDICK, DEPARTMENT OF THE NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER FORWARDED TO THIS OFFICE BY HEADQUARTERS UNITED STATES MARINE CORPS LETTER DATED FEBRUARY 23, 1971, REFERENCE CD-PBF 7220/7, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER COVERING THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF SERGEANT MAJOR THOMAS G. ELDREDGE, 29 38 08, UNITED STATES MARINE CORPS, WHO DIED MAY 17, 1970. THE VOUCHER IS STATED IN FAVOR OF MRS. JEAN C. ELDREDGE, THE DECEDENT'S WIDOW AND DESIGNATED BENEFICIARY.

YOU SAY THAT SERGEANT MAJOR ELDREDGE'S DEATH RESULTED FROM GUNSHOT WOUNDS INFLICTED BY HIS WIFE AT THEIR HOME.

IT IS REPORTED THAT ON FEBRUARY 23, 1970, MRS. ELDREDGE AND HER 12 YEAR OLD SON BY A PREVIOUS MARRIAGE, STEPHEN (STEVEN) K. THOMAS, WHO APPARENTLY LIVED WITH THE ELDREDGES, WERE HOSPITALIZED OVERNIGHT FOLLOWING AN ASSAULT UPON THEM BY SERGEANT MAJOR ELDREDGE AND THAT FOLLOWING HER RELEASE FROM THE HOSPITAL ON FEBRUARY 24, 1970, MRS. ELDREDGE PURCHASED THE HAND GUN WHICH WAS LATER USED TO KILL HER HUSBAND. IT APPEARS THAT THE WEAPON WAS RETAINED BY STEPHEN IN HIS ROOM UNTIL THE NIGHT BEFORE THE SHOOTING.

YOUR LETTER DISCLOSES THAT ON THE NIGHT BEFORE THE SHOOTING STEPHEN RAN FROM THE HOUSE AFTER SERGEANT MAJOR ELDREDGE THREW AN OBJECT AT HIM DURING AN ARGUMENT AND THAT AFTER SERGEANT MAJOR ELDREDGE FELL ASLEEP MRS. ELDREDGE BROUGHT STEPHEN BACK INTO THE HOUSE, AT WHICH TIME HE GAVE THE WEAPON TO MRS. ELDREDGE. IT IS STATED THAT STEPHEN AWOKE THE FOLLOWING MORNING TO THE SOUND OF FURNITURE BEING THROWN. HE ATTEMPTED TO INTERFERE BUT WAS EJECTED FROM THE HOUSE BY SERGEANT MAJOR ELDREDGE. HE THEN OBTAINED A BROOM HANDLE AND REENTERED THE HOUSE WHERE HE OBSERVED HIS MOTHER ON THE FLOOR BEING STRUCK. SERGEANT MAJOR ELDREDGE WRESTED THE BROOM HANDLE FROM STEPHEN, STRUCK HIM WITH IT AND AGAIN EJECTED HIM FROM THE HOUSE.

IT IS STATED FURTHER THAT MRS. ELDREDGE FOLLOWED STEPHEN FROM THE HOUSE AT WHICH TIME SERGEANT MAJOR ELDREDGE ALLEGEDLY STATED TO STEPHEN IN MRS. ELDREDGE'S PRESENCE, "YOU BETTER LEAVE BECAUSE I'M GOING TO KILL YOUR MOTHER." SERGEANT MAJOR ELDREDGE THEN TURNED AND STRUCK MRS. ELDREDGE, KNOCKING HER AGAINST A PORCH. SHE THEN PRODUCED THE REVOLVER AND FIRED TWICE. SHE WAS STRUCK AGAIN, AND FIRED A THIRD TIME, CAUSING SERGEANT MAJOR ELDREDGE TO FALL TO THE GROUND, WHEREUPON MRS. ELDREDGE DISCHARGED THE WEAPON INTO HIM UNTIL IT WAS EMPTY.

AS A RESULT OF THIS HOMICIDE, MRS. ELDREDGE WAS INDICTED AND TRIED ON CRIMINAL CHARGED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION. VERDICTS OF NOT GUILTY WERE RETURNED TO CHARGES OF MURDER IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE AND VOLUNTARY MANSLAUGHTER. WE UNDERSTAND THAT MRS. ELDREDGE'S DEFENSE TO THE CHARGES WAS SELF-DEFENSE.

THIS OFFICE HAS REPEATEDLY HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT THE PAYMENT BY THE GOVERNMENT OF BENEFITS TO A BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENTS BECOME DUE. SEE 34 COMP. GEN. 103, 104, AND CASES CITED THEREIN.

HOWEVER, WE DO NOT BELIEVE THAT RULE IS FOR APPLICATION IN THE CIRCUMSTANCES OF THIS CASE. THE PREVIOUS ASSAULTS MADE UPON MRS. ELDREDGE AND HER SON BY THE DECEASED, THE ALLEGED ORAL THREAT ON MRS. ELDREDGE'S LIFE MADE IN HER PRESENCE AND THE DECEASED'S ASSAULT UPON HER WHICH WAS TAKING PLACE AT THE TIME OF THE SHOOTING, REASONABLY SUPPORT THE VIEW THAT MRS. ELDREDGE FELT HER LIFE TO BE IN GRAVE DANGER AND THAT NO AVENUE OF ESCAPE WAS OPEN TO HER AT THE TIME OF THE SHOOTING. THIS VIEW IS SUPPORTED BY HER ACQUITTAL ON ALL CHARGES. ACCORDINGLY, IT IS CONCLUDED THAT THIS HOMICIDE WAS EXCUSABLE BY REASON OF SELF-DEFENSE AND WAS NOT A FELONIOUS KILLING WHICH WOULD BAR MRS. ELDREDGE FROM RECEIVING THE SIX MONTHS' DEATH GRATUITY.

THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, PAYMENT BEING AUTHORIZED, IF OTHERWISE CORRECT.