(c) 2001 Barb Wise (wisebarb@home.com) Letterhead: Veterans Administration, Board of Veterans Appeals Date: 12 AUG 1954 Subject: Hollen, Woodrow Wilson, Claim No. XC-16 586 695, Docket No. 286 106 Addressed to: Not Applicable Written by: L. E. Imhoff; Harold J. Gordon, M.D.; Ralph L. Chambers Body of Document: Inice Belle Hollen : Hollen, Woodrow W. : Claim No XC-16 586 695 : Docket No. 286 106 Public No. 2, 73d. Congress, as amended KC DB (Leg. Rel.) Denied Public No. 23, 82d. Congress Indemnity (Leg. Rel.) Denied Question at Issue: Entitlement of the appellant, mother of the deceased serviceman, to the serviceman's entire $10,000 indemnity and to death compensation benefits as sole parent. Contentions: The appellant contends that her former husband, James F. Davis, did not support the serviceman; that she divorced Mr. Davis prior to the serviceman's entry into the service; and that, therefore, she, the mother, should be awarded the entire indemnity and death compensation benefits. Outline of Material Evidence: The official records show that the serviceman first entered active duty in July 1940 and served until October 6, 1945; and that he re-enlisted on September 21, 1948 and died in service on January 5, 1952. It is not shown that he is survived by a widow or child. Under the provisions of the Serviceman's Indemnity Act of 1951, there was $10,000 indemnity in force at the time of his death. The Service Department has reported that there is no record of a beneficiary designation by the serviceman for the indemnity. Claim for indemnity and death compensation benefits were filed by the appellant and by James F. Davis, the latter claiming as foster father. The appellant was awarded death compensation benefits on the maternal side and one-half of the indemnity. It was determined by the agency of original jurisdiction that death compensation benefits on the paternal side and one-half of the indemnity were payable to Mr. Davis as the last person who stood in the position of father to the serviceman. The mother has appealed from this determination. It is reported that the serviceman was born on March 19, 1915. There is in file documentary evidence showing that the appellant and the serviceman's natural father were divorced on September 28, 1929; that on the same day the appellant was remarried to Mr. Davis; that the natural father died on October 5, 1929; and that the appellant and Mr. Davis were divorced on September 13, 1946. [Page 2] In connection with her appeal, the mother submitted affidavits by several persons, including Bennie and Esther Selfe, to the effect that the serviceman supported himself entirely during the time the appellant was married to Mr. Davis. In an affidavit executed on May 10, 1952, James F. Davis stated that after he married the appellant, the serviceman lived with him and the appellant about nine months out of each year; that during the rest of the time the serviceman worked for neighbors; that he, the affiant furnished the serviceman with board and lodging; and that no other person contributed toward the serviceman's support. A field investigation was subsequently conducted by this Administration to adduce additional evidence. James F. Davis deposed that he and the appellant separated in October 1945; that prior to the separation he worked hard to support the entire family, including the serviceman; that the serviceman was away from home only during short periods of time when he worked on neighboring farms; that he and the serviceman got along well; and that he at times counseled and corrected the serviceman. Depositions from several neighbors were to the effect that the serviceman lived most of the time with the appellant and Mr. Davis prior to his entry into the service; that Mr. Davis worked hard to support the family; that he furnished the serviceman with almost his entire support, especially during the first few years after the mother's remarriage; and that Mr. Davis treated the serviceman in kindly fashion, saw to it that he went to church, and otherwise treated him as though he were his own son. Esther Selfe testified that she saw the serviceman for the first time in 1936, after he had attained the age of 21. Bennie Selfe deposed that he did not see much of the serviceman or the claimants during the years the claimants were married to each other. ESSENTIAL ELEMENTS FOR ENTITLEMENT: The governing law and regulations provide, under certain conditions, for the payment of death compensation benefits to the serviceman's father and mother. It is further provided that the term "father" shall include a natural father, father through adoption, and a person who stood in the relationship of a father to the serviceman for a period of at least one year prior to his entry into service, such period commencing during the serviceman's minority. Only one father, as defined, may be recognized in any claim and preference is given to the last person so qualified who actually exercised the paternal relationship at the time of or most nearly prior to the serviceman's entry into service. With respect to indemnity, the Servicemen's Indemnity Act of 1951 provides in part that if no beneficiary designation is made by the serviceman, indemnity benefits may be paid only to the surviving spouse, child, or [START OF PAGE 3] children, parent (including a stepparent, parent by adoption or person who stood in loco parentis to the insured at any time prior to entry into service for a period of not less than one year), brother, or sister of the insured, payment to be made to the first eligible class of beneficiaries according to the order set forth above and in equal shares, if the class is composed of more than one person. It is further provided that unless designated by the serviceman, the term "parent" shall include only the mother and father who last bore that relationship to the insured. DISCUSSION AND DECISION: The evidence shows that the appellant divorced the serviceman's natural father and remarried James F. Davis on the same day (September 28, 1929), at which time the serviceman was 14 years of age. The natural father died a few days later, and there is substantial evidence in file showing that the serviceman lived with Mr. Davis and the mother most of the time until he entered service. Although the serviceman is reported to have worked part time subsequent to his mother's remarriage to Mr. Davis, he depended to some extent on Mr. Davis. Further, the latter is stated to have treated the serviceman well and to have substantially performed the functions and responsibilities normally expected of and devolving upon a father. After careful review of the entire record, the Board finds that James F. Davis stood in the position of father to the serviceman for a period of at least one year during his minority and that he was the last person to so stand. Therefore, he qualifies as a person in the class of "parent" for one-half of the indemnity and to death compensation benefits on the paternal side. In view of the foregoing, it is the Board's decision that entitlement of the appellant to the serviceman's entire $10,000 indemnity and to death compensation benefits as sole parent is not established, and her appeal is denied. [signature] [signature] L. E. Imhoff Harold J. Gordon, M.D. Associate Member Associate Member [signature] Ralph L. Chamber Associate Member (c) 2001 Barb Wise (wisebarb@home.com)