Distinguishing Comp Gen B-29633, 20 Jan 1943, p 40, 2 Bull JAG, USA, No. 1 and 20 Comp Gen 772.) Op JAGAF 1954/3. 29 January 1954. § 63. Disposition of Effects of Deceased Personnel § 63.1. Generally. When the widow or legal representative of a deceased member is not present to take possession of his effects, the provisions of the Act of 4 June 1920 (41 Stat 809), as amended (5 USC 150j) (formerly Article of War 112), as implemented by Special Regulations 600-560-5, 25 June 1951, permit a summary court to transmit the deceased's effects directly to the person entitled thereto under the cited act. (See SPJGA 1943/16315, 13 Nov 1943.) JAGA 1954/4424. 13 May 1954. § 63.5. Persons eligible to receive effects. After initial disposition of the personal effects of a deceased serviceman by a summary court, upon failure to ascertain eligibile recipients, letters of administration in the estate of the deceased were received, together with a request for the personal property of the estate. As a result of the initial disposition, the summary court officer had in his custody cash, the proceeds of the sale of an automobile of the deceased, and personal effects. Articles valuable chiefly as keepsakes within the meaning of sec 6c, PL 506, 81st Cong, were retained by the summary court officer. Held: All cash and effects belonging to the estate of the deceased now in the possession of the summary court may legally be delivered to the administratrix of the estate. Even after initial failure to ascertain eligible recipients, a summary court legally can deliver cash and effects belonging to the estate of a deceased serviceman to the legal representative of the estate. (See JAGA 1953/6910, 2 Sep 1953, 3 Dig Ops, MIL PERS § 63.5; act of 4 June 1920, 41 Stat 809, 5 USC 150j; act of 21 Feb 1931, 46 Stat 1203, as amended 5 USC 150j-1, 2, 3; JAGA 1952/5092, 20 Jun 1952.) JAGA 1954/6598. 10 August 1954. § 63.21. Creditors' claims. In a hypothetical situation a service member dies on the 29th day of a month; $10 is found in his effects. The summary court appointed to settle his affairs receives notification of outstanding debts of $30. No funds are received from persons owing the deceased. The deceased had accrued pay for 29 days but the disbursing officer is not authorized to pay the summary court for any purpose and thus the funds in the hands of the summary court are insufficient to pay the decedent's debts. Held: The summary court appointed to secure the effects of a deceased service member is under no obligation to pay all undisputed local creditors of the decedent. He is, however, authorized to pay undisputed local creditors so far as the money belonging to the decedent which may come into his possession will permit. In the hypothetical case presented, if only $10 comes into his possession then the summary court is authorized to pay only that amount to undisputed local creditors. Questions of apportionment of available funds or priorities of payment to undisputed local creditors should be resolved by the summary court upon a consideration of the facts and circumstances of each case. (Citing SR 600-560-5, 25 June 1951; former AW 112 (RS 1342), as amended (5 USC 150j).) JAGA 1954/9834. 21 December 1954. § 65.1. Generally. § 65. Death Gratuity Necessity of action to recover death gratuity when person declared presumptively dead returns, see Comp Gen B-120683, PAY § 9.31. § 65.8. Persons on active duty without pay status. The benefits provided by the Act of 20 June 1949, in case of death, are not predicated upon the existence of a pay status at the date of death. Thus, such death gratuity is payable in the cases of reservists who are ordered to active duty without pay for a period in excess of thirty days under the authority of sec 240 of the Armed Forces Reserve Act of 1952, 66 Stat 492, who, while so employed, suffer death in line of duty from a disease on the date the disease is contracted or thereafter during the period pay and allowances accrue under the 1949 Act and in the cases of reservists who are ordered to active duty without pay for any period of time under the authority of sec 240 of the Armed Forces Reserve Act of 1952 who, while so employed, suffer death in line of duty from an injury on the date the injury occurred or thereafter during the period pay and allowances accrue under the 1949 Act, regardless of whether such reservists are hospitalized for the diseases or injuries resulting in death. (Cf. 27 Comp Gen 269; 29 Comp Gen 294; 31 Comp Gen 645.) MS Comp Gen B-117730, 33 Comp Gen 411. 29 March 1954. § 65.37. Death resulting from act of beneficiary. A serviceman was fatally stabbed by his wife. The investigation indicated that shortly before the stabbing he had been abusive to his wife but, on the basis that she did not have sufficient provocation, the official report of death stated that it was not due to the decedent's own misconduct. The grand jury of the county in which the incident took place failed to indict the wife. Held: The wife is not entitled to the six months death gratuity. It is against public policy to permit payment by the government of arrears of pay, compensation or other benefits to an heir or beneficiary who feloniously kills the person upon whose death such benefits become payable. This is so even though the heir or beneficiary may be found not guilty by a trial jury in criminal proceedings growing out of the homicide. While payment of the six months death gratuity has been authorized in some cases where the heir or beneficiary was responsible for the serviceman's death, in such cases the record established with reasonable clarity the absence of any felonious intent. In the instant case the grand jury did not consider the evidence sufficient to justify bringing the claimant to trial on criminal charges but the fact that the grand jury returned a "no bill" did not absolve the claimant of felonious action in connection with the death nor preclude the consideration of the facts and circumstances involved in determining the claimant's right to receive the death gratuity. The record in this case does not clearly establish the absence of any felonious intent on the part of the claimant and payment of the death gratuity to her would not be justified. (Citing A-13608, 29 May 1926; A-46506, 9 May 1933; A-60953, 12 Jun 1935; B-115170, 16 Jul 1953, 3 Dig Ops MIL PERS § 65.37; 13 Comp Gen 72; U. S. v. Kwasniewski, 91 F Supp 847; Swavely v. Prudential Insurance Co. of America, 157 A 394, and cases cited therein; New York Mutual Life Ins. Co. v. Armstrong Administratrix, 117 US 591, 29 L ed 997, 6 S Ct 877.) MS Comp Gen B-119863, 34 Comp Gen 103. 27 August 1954. § 66. - Persons Entitled to; Dependents § 66.1. Generally. Wife of officer reported missing in action on 21 March 1951, who remarried prior to determination officer was killed in action as of such date, as entitled to death gratuity, see Op JAGAF 1953/47, supra § 61.3. § 66.5. Children. One B. designated his mother as the dependent relative to receive the six months' death gratuity. While serving in Korea, B. stated over his written signature that he felt certain he was the father of one N.'s unborn child and that, if she so desired, he would initiate a request for leave to return to the United States and marry her, give her child his name, and bear all the expenses incident to its birth and later support. Copies of a Certificate of Birth Registration and Letters of Guardianship show that on 13 June 1953 a child was born to N. and B. and that a guardian of the person and property of the child was appointed by a surrogate's court of a New York county. B. was killed in Korea and notification of his death was received on 3 April 1953, prior to the birth of the child. The act of 4 June 1921, 41 Stat 824, as amended, 34 USC 943, provides for payment of a six months' death gratuity to the widow of the decedent if any and if there be no widow, payment is to be made to the decedent's child or children and, if there be no widow or child, payment is authorized to any other dependent relative previously designated. Held: Payment of the six months' death gratuity should be made to the legal guardian of the child. The six months' death gratuity statute includes illegitimate children where such relationship is properly established. Also, unborn children are considered to be in esse for the purpose of taking any estate which is for their interest. Also, the laws of the state of New York, the apparent domicile of the parties involved, provide that the father of an illegitimate child is liable for its support and the New York courts have construed the word "child" to include an unborn child. Since the decedent in this case was not survived by a widow, but was survived by a child, the rights of that child take precedence over alleged rights of any other dependent relative designated. The relationship of the child being sufficiently established by the decedent's written acknowledgment, the fact that the child was unborn on the date of notification of his death does not defeat its claim to the six months' death gratuity. (Citing 30 Comp Gen 277, 280; In re Seabolt, 113 F 766, 771; New York Domestic Relations Law, sections 119-139; Thomson v. Elliott, 152 Misc 188, 273 N.Y.S. 898, 902.) MS Comp Gen B-117183, 34 Comp Gen 415. 4 March 1955. § 66.15. Brothers or sisters. See MS Comp Gen B-119057, infra § 66.19. § 66.19. Nephews or nieces; aunts or uncles. The minor niece of a deceased serviceman, who was designated as primary beneficiary of the six months' death gratuity authorized by the Act of 17 December 1919 (41 Stat 367), as amended (10 USC 903), has no legal claim to such death gratuity where she was neither dependent on her uncle nor had an insurable interest in his life. (Citing 22 Comp Gen 85; 23 Comp Gen 216; 24 Comp Gen 320; 30 Comp Gen 277; 29 Am Jur 326; 44 CJS 907; McRae v. Warmack, 135 SW 807, 33 LRA NS 949; W. A. Doody Co. v. Green, 62 SE 984; Harrel's Adm'r. v. Harrel, 23 SW2d 922.) Held also: However, the decedent's sister, who was designated alternate beneficiary, has an insurable interest in the decedent's life by reason of relationship alone and she is entitled to the six months' death gratuity. (Citing 22 Comp Gen 85; Wilton v. New York Life Ins. Co., 34 Tex Civ App 156, 78 SW 403; see also Aetna Life Ins. Co. v. France, 94 US 561, 24 L ed 287.) MS Comp Gen B-119057, 33 Comp Gen 409. 26 March 1954. A deceased serviceman had designated two aunts as principal and alternate beneficiaries of the six months death gratuity. By letter one of the aunts disclaimed any benefits stating that any dependency status existed solely between the deceased and his parents. However, she refused to execute a formal relinquishment of her claim. The other aunt submitted no evidence of insurable interest but she also refused to relinquish any rights she might have. Payment of the gratuity to the deceased's father was proposed on the basis that the designated beneficiaries were ineligible. Held: The term "dependent relative" as used in the laws authorizing payment of the six months death gratuity includes, in addition to relatives who are actually dependent, those persons who by reasonable relationship to the deceased have an insurable interest in his life. However, the remote relationship between uncle or aunt and niece and nephew requires more than mere relationship, such as a showing of material support or reason to expect such support, to establish the necessary insurable interest. In the absence of a surviving widow or child, where the designated beneficiary does not qualify as a dependent relative, the Secretary concerned may direct payment of the gratuity to a parent determined by him to have been dependent on the deceased. Accordingly, if it is determined by the Secretary of the Army that the aunts are not dependent relatives and that the father was dependent, payment to the father would be proper. (Citing 22 Comp Gen 85; 33 Comp Gen 409. To the extent that 22 Comp Gen 155 is inconsistent it should no longer be followed.) MS Comp Gen B-117891, 34 Comp Gen 105. 30 August 1954. IV. SEPARATION FROM THE SERVICE; RELIEF § 73.51. Homosexuals. § 73. In General The discharge of homosexuals under the provisions of AR 615-368, 27 October 1948, is not authorized, inasmuch as the supersession of AR 600-443, 12 January 1950, including Changes No. 1 thereto, by AR 600-443, 10 April 1953, did not revive that portion of AR 615-368, supra, as changed by Changes No. 2, 12 May 1953, which was superseded by AR 600-443, 12 January 1950. JAGA 1954/3864. 14 April 1954. § 75. Physical Disability § 75.11. Notice and opportunity for a hearing. A board of medical survey found an enlisted man unfit for further service by reason of a physical disability that existed prior to enlistment, was not the result of his own misconduct, and was not aggravated by service conditions. It recommended that he be discharged from the service under the authority of Bureau of Medicine Instruction 1910.2 of 21 May 1953. The report of the board contained a statement in rebuttal by the man wherein he contended that his disability was incurred subsequent to his enlistment and was aggravated by service conditions. The board recommendation was approved and the man was discharged in accordance with par 10268, Marine Corps Manual and the cited BuMed instruction. Later it was discovered he had been discharged without executing the certificate relative to a full and fair hearing required by par 5b (1)(d) of the BuMed instruction. Also it did not appear that he had been advised of his right to a hearing as required by the instruction. Held: By enacting sec 413 of the Career Compensation Act of 1949 (37 USC 283), Congress intended in insure that no member of the uniformed services could be legally separated for physical disability unless he was afforded a full and fair hearing should he demand it. Also, the Bureau of Medicine Instruction referred to above authorized discharge for physical disability only upon compliance therewith. Since the man was not advised of his right to demand a full and fair hearing by a physical evaluation board prior to discharge nor given an opportunity to certify in writing that he did not demand such a hearing prior to discharge, as required by the Bureau of Medicine Instruction, his discharge was illegal. If a person illegally discharged promptly and effectively objects to his discharge and takes steps to insure his reinstatement he must be considered as being entitled to be restored to duty but he must promptly assert his rights thereto or they will be lost. Therefore, the man in this case should be advised of his right to make a prompt request for reinstatement and of his right to a full and fair hearing before a |