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the six months' death gratuity, notwithstanding the lack of final determination between the contending guardians as to the right to receive the six months' death gratuity, since such a final determination under these circumstances is not necessary to protect the interests of the United States or of the minor child.
To Lieutenant Colonel J. L. Whipple, Department of the Army, August 24, 1959:
Reference is made to your letter of June 12, 1959, requesting decision by this Office as to the propriety of payment of six months' death gratuity in the amount of $1866.60 to the claiming guardians of the minor child Donald P. Fore, the only surviving child of Master Sergeant Donnie R. Fore, RA 14054267, and his deceased spouse. Your request was assigned D.O. Number 430 by the Military Pay and Allowance Committee, Department of Defense.
Sergeant Fore entered the armed services from Louisiana in 1941 and served continuously until his death on September 7, 1957, in France. He married his wife Franziska, a German national, in Germany in 1952 and the child, Donald P. Fore, was born in Virginia in 1954. At the time of his death Sergeant Fore was rushing his wife to a hospital in France in their auto when he missed a curve, crashed and was killed instantly. Franziska died several hours later.
Donald P. Fore was turned over to the custody of his maternal aunt, Mrs. Jakobine Toth, of Cleveland, Ohio, by Army officials after the funeral of his parents, for the apparent purpose of returning the child to the United States. In arranging for his return to the United States the Army consulted Mrs. Ella V. Fore, the surviving parent of Sergeant Fore, a domiciliary resident of Louisiana, and she agreed that her daughter, Mrs. Tillery, would qualify as legal guardian under the laws of Mississippi. On October 18, 1957, Mrs. Tillery was appointed legal guardian by the Chancery Court of Anita County, Mississippi.
Mrs. Tillery went to New York to meet the child on its arrival about October 25, 1957, and served upon Mrs. Toth a copy of a petition in habeas corpus seeking the release of the boy. After a hearing, a New York court, on November 25, 1957, refused to release the boy and attempted to award legal custody to Mrs. Toth.
Returning with the child to Cleveland, Ohio, Mrs. Toth filed an application for letters of guardianship of the person and estate of Donald in the Probate Court of Cuyahoga County, naming as next of kin the maternal grandparents in Germany and the paternal grandmother, Mrs. Ella V. Fore, residing in Louisiana. The application was granted by the Probate Court of Cuyahoga County on December 2, 1957. On April 21, 1958, ten days after the granting of an application for tutorship in the Fifth District Court, Franklin Parish, Louisiana, the tutrix, Mrs. Ella V. Fore, instituted an
action in habeas corpus in the Court of Appeals for Cuyahoga County, Ohio. (In re Fore's Petition, 151 N.E. 2d 777.) The Court of Appeals found that the child was illegally detained, as the Probate Court was without jurisdiction to appoint Mrs. Toth guardian, and that the Louisiana decree of tutorship should be recognized. The Ohio Supreme Court reversed this decision, In Re Fore, 168 Ohio St. 363, 155 N.E. 2d 194. The law of the case was stated by the court in the syllabi as follows:
1. Where there is no existing award of custody of an orphaned minor resident of Ohio by a foreign court, the Probate Court of the county of such residence has jurisdiction, under Section 2111.02, Revised Code, to appoint a guardian of the minor, irrespective of the fact that the domicil of such minor may be in another state.
2. A decree of guardianship of a minor resident of Ohio by a court in the state where the child has a technical domicil, which decree is made without personal service on either the child or the person with whom such child is living, is not entitled, under Section 1, Article IV of the Constitution of the United States, to such faith and credit as will nullify the prior appointment of a guardian of such minor by the Probate Court of the county of his residence.
Mrs. Fore appealed this reversal to the Supreme Court of the United States, but that court denied review on April 20, 1959, considering the papers presented as a petition for certiorari, 27 L.W. 3293.
Both Mrs. Fore and Mrs. Toth have made claim for the six months' death gratuity on behalf of the child and there remains a third possible claimant in Mrs. Tillery as guardian appointed in Mississippi.
It does not appear that Donald lived at any time in either Louisiana or Mississippi, although presumably the domicile of his father was Louisiana at the time of death (see 148 A.L.R. 1413), nor does it appear that Donald is possessed of any property in either of those states. In the award of the custody of Donald, the Ohio Supreme Court clearly indicated that the jurisdiction to appoint a guardian is not solely dependent upon the domicile of the child, even though it be conceded that the domicile of the child could become that of its surviving paternal grandparent after the death of the parents without the child living with the grandparent, a proposition with which the court did not agree. The Court stated that the basis for jurisdiction in the appointment of a guardian is that the state seeking to exercise such jurisdiction be so closely connected with the welfare of the child that it is in the furtherance of his interests that his custody be determined in that state. Moreover, the Court determined that residence of the child within the state was a sufficiently close connection for this purpose.
It appears that both the appointments of Mrs. Toth and Mrs. Fore are valid and subsisting, and although there is doubt whether the Mississippi appointment is within the jurisdiction of the
appointing court, see Mississippi Code 1942, Vol. 1A Recompiled, Title 4, Chap. 2, Sec. 404, it may, for the purposes here involved, be presumed valid. However, the ward is beyond the jurisdiction of the Louisiana and Mississippi courts, and accordingly the authority of guardians appointed in those states would seem to be limited to property within the state. Morgan v. Potter, 157 U.S. 195; 25 Am. Jur. Guardian and Ward § 215.
Inasmuch as the Ohio court has duly appointed Mrs. Toth as guardian, the jurisdiction of that court has been tested by court action, the guardian has actual care and custody of the person and estate of Donald, and a debt due from the United States has no situs in a particular state but is payable wherever the United States chooses to pay it, United States v. Borcherling, 185 U.S. 223, payment to Mrs. Toth of the six months' death gratuity would provide a valid acquittance to the United States.
In the matter herein considered, there are circumstances which did not exist in 11 Comp. Gen. 418. These circumstances include the fact that a minor is involved, the jurisdiction of the Ohio court to appoint a guardian has been tested between two of the contending guardians, and the Ohio guardian has actual control of the person and property of the minor. Compare 38 Comp. Gen. 124; B-9399, May 17, 1940; A-60240, March 8, 1935. Application of the principles of 11 Comp. Gen. 418, which would require a final determination among the conflicting guardians as to the right to receive payment, is not necessary in this instance to protect the interests of the United States or of the child.
In view of the facts and circumstances presently available, payment of the voucher returned herewith may be made to Mrs. Jakobine Toth as guardian of Donald P. Fóre, minor.
Military Personnel-Retired Officers-Employment with NATO-Double Compensation Limitation Applicability
A regular commissioned officer of the uniformed services who, after retirement for physical disability not incurred in combat or caused by an instrumentality of war, is employed by the Department of State for detail to a position with the North Atlantic Treaty Organization and who receives a salary from the Department of State, which salary subsequently results in a credit to the United States against its share of the expenses, must have the NATO position regarded as an appointive one "under the United States Government" as used in section 212 of the Economy Act of 1932, 5 U.S.C. 59a, which precludes concurrent receipt of retired and civilian pay in excess of $10,000 a year, in view of the conditions of the service and section 532 (b) of the Mutual Security Act of 1954, which permits retired military officers to be employed in international organizations but subjects their salary to the double compensation limitation in 5 U.S.C. 59a.
To the Secretary of Defense, August 25, 1959:
Reference is made to letter of June 23, 1959, from the Assistant Secretary of Defense (Comptroller), requesting a decision as to whether a Regular commissioned officer of the Armed Forces retired for physical disability who, it is stated, accepts an appointment to a position on the NATO International Staff, is subject to the dual compensation provisions of section 212 of the Economy Act of June 30, 1932, as amended, 5 U.S.C. 59a, under the circumstances set forth in Committee Action No. 245 of the Department of Defense Military Pay and Allowance Committee.
It is reported that the question concerns the applicability of section 212 of the Economy Act of June 30, 1932, as amended, in connection with a specific position, in the circumstances which are described as follows:
The NATO International Staff position has a salary range of $9890 to $13,000 per annum (NATO 13, $9900 per annum). * U.S. Nationals [apparently including the officer here involved] are employed for the International Staff by the State Department upon the recommendation of the Department of Defense. Such positions are assigned NATO grades and salaries by agreement of NATO. In accordance with the Ottawa Agreement, the United States arranged with the NATO Council to pay salaries and other emoluments to U.S. Nationals emploved on the International Staff at rates fixed by the United States Government and from its own funds. NATO then credits the U.S. with the amounts of salaries and emoluments which would otherwise have been paid by NATO to U.S. Nationals. The difference between NATO rates for salaries and emoluments and those of the U.S. varies with both the grade of the position and the candidate.
It is stated that the involved officer's disability was not incurred in combat and that it was not caused by an instrumentality of war in line of duty.
The Ottawa Agreement on the Status of the North Atlantic Treaty Organization, National Representatives, and International Staff, was signed on September 20, 1951, on behalf of the United States and the other parties to the North Atlantic Treaty. Article 19 of the Agreement, 5 U.S. Treaties and Other International Agreements 1087, 1098, provides as follows:
Officials of the Organization agreed under Article 17 shall be exempt from taxation on the salaries and emoluments paid to them by the Organization in their capacity as such officials. Any Member State may, however, conclude an arrangement with the Council acting on behalf of the Organization whereby such Member State will employ and assign to the Organization all of its nationals (except, if such Member State so desires, any not ordinarily resident within its territory) who are to serve on the international staff of the Organization and pay the salaries and emoluments of such persons from its own funds at a scale fixed by it. The salaries and emoluments so paid may be taxed by such Member State but shall be exempt from taxation by any other Member State. If such an arrangement is entered into by any Member State and is subsequently modified or terminated, Member States shall no longer be bound under the first sentence of this Article to exempt from taxation the salaries and emoluments paid to their nationals.
A supplemental agreement was executed on September 29, 1951, 5 U.S. Treaties and Other International Agreements 1112, between
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the United States and the North Atlantic Council Deputies, acting on behalf of the North Atlantic Treaty Organization, as follows:
1. Whenever the Organization desires the services of a United States national, it will notify the Deputy United States Representative, North Atantic Council of: (A) The nature of the position to be filled, (B) The qualifications which an individual must possess to fill the position, and (c) The salary which such individual would receive if employed by the North Atlantic Treaty Organization. The Organization may notify the Government of the United States of the name (s) of any individual (s) it deems acceptable for the position.
2. The Government of the United States may assign to the Organization a United States national from its Government service who is acceptable to the Organization. The Government of the United States will provide security clearance for the individual concerned.
3. The Government of the United States will pay any and all salaries and emoluments of United States nationals, who are employed by it and assigned to the Organization, from its own funds at rates determined by the Government of the United States.
4. The Organization agrees that it will not pay salaries and emoluments to any citizen of the United States.
5. The Organization will credit to the United States the amounts of salaries and emoluments which would otherwise have been paid by the Organization to United States nationals and will deduct the total of such credits for each fiscal year from the amount assessed the Government of the United States by the Organization, in respect of the annual contribution of the Government of the United States for the subsequent fiscal year. [Italics supplied.]
Authority for detail of personnel to international organizations currently is found in section 529 of the Mutual Security Act of 1954, 68 Stat. 858, 22 U.S.C. 1789. Subsection 529 (a), 22 U.S.C. 1789 (a), provides that whenever the President determines it to be consistent with and in furtherance of the purpose of the act, the head of any United States Government agency is authorized to detail, assign, or otherwise make available to any international organization any officer or employee of his agency to serve with or as a member of the international staff of such organization. Presumably, the officer mentioned in the question submitted was hired by the Department of State and then detailed to the NATO International Staff. Subsection 529 (b) provides that any such officer or employee, while so assigned or detailed, shall be considered, for the purpose of preserving his allowances, privileges, rights, seniority and other benefits as such, an officer or employee of the Government of the United States and of the Government agency from which detailed or assigned, and he shall continue to receive compensation, allowances, and benefits from funds available to that agency or made available to that agency out of funds authorized under that act. Section 532 (b) of the Mutual Security Act of 1954, 22 U.S.C. 1792(b), provides in pertinent part that, notwithstanding 5 U.S.C. 62, which prohibits certain retired officers from holding certain office, any retired officer of any of the services mentioned in the Career Compensation Act of 1949, 63 Stat. 802, may hold any office or appointment under that act or the Mutual Defense Assistance Control Act of 1951, 65 Stat. 644, but that the compensation of any such retired officer shall be subject to