BONUS ‑- VETERANS ‑- VIETNAM ‑- CHILDREN ‑- ADOPTION
A parent who has been deprived by a decree of a court of competent jurisdiction of custody of a deceased Vietnam veteran who would have been eligible for a veteran's bonus under RCW 73.34.020 is not entitled to receive survivor's benefits under subsection (3) thereof; however, such a parent may, as another other person, apply for and receive compensation for burial expenses under RCW 73.34.110.
- - - - - - - - - - - - -
April 1, 1974
Honorable Robert S. O'Brien
Olympia, Washington 98504 Cite as: AGLO 1974 No. 40
Attention: !ttMr. Michael J. Murphy
Vietnam Veterans' Bonus Division
In connection with a pending claim for benefits under the Vietnam Veterans' Bonus Act, chapter 154, Laws of 1972, Ex. Sess., you have asked for our opinion on two questions which we paraphrase as follows:
(1) Is a parent who has been deprived by a decree of a court of competent jurisdiction of custody of a deceased Vietnam veteran who would have been eligible for a veteran's bonus under chapter 154, supra, entitled to receive survivor's benefits under § 2(3) thereof ‑ now codified as RCW 73.34.020(3)?
(2) Assuming a negative answer to question (1), is such a parent as is described therein also ineligible to receive compensation for burial expenses incurred under § 12 of the act, RCW 73.34.110?
We answer your first question in the negative and your second question in the manner set forth in our analysis.
As explained in our prior opinion to your office of December 8, 1972 [[to Robert S. O'Brien, State Treasurer an Informal Opinion AIR-72587]], copy enclosed, chapter 154, Laws of 1972, Ex. Sess., is, basically, a legislative authorization to pay to each eligible veteran of the Vietnam Conflict a bonus of $250 as a form of "compensation" for military services rendered. The right to receive this compensation and the terms of eligibility therefor are spelled out in § 2(1) of the act1/ as follows:
[[Orig. Op. Page 2]]
"There shall be paid to each person who has been on active federal service as a member of the armed military or naval forces of the United States between a period commencing August 5, 1964, and ending on such date as shall thereafter be determined by presidential proclamation or concurrent resolution of the congress terminating the conflict involving United States forces battling in South Viet Nam, or in the case of a reduction in hostilities, on a date determined by proclamation of the governor, and who for a period of one year immediately prior to the date of his entry into such service, was a bona fide citizen or resident of the state of Washington, and received the Viet Nam Service Medal, the sum of two hundred and fifty dollars for service between said dates: . . ."
Subsection (2) of this section then provides for the receipt of tuition credit at certain designated categories of institutions of higher education in lieu of that monetary bonus at the election of a qualified veteran, after which subsection (3) provides that:
"In case of the death of any such person prior to said termination date as referred to in subsection (1) above, or at such time as such person would have been eligible for benefits hereunder, an equal amount shall be paid to his surviving widow if not remarried at the time compensation is requested, or in case he left no widow or in case his widow remarried and he has left children, then to his surviving children, or in the event he left no widow eligible for payment hereunder, or children surviving on such date, then to his surviving parent or parents: PROVIDED, HOWEVER, That no such parent who has been deprived of custody of such child by a decree of a court of competent jurisdiction shall be entitled to any compensation under this 1972 amendatory act." (Emphasis supplied.)
[[Orig. Op. Page 3]]
Based upon the above underscored proviso to § 2(3), there can be no doubt but that your first question must be answered in the negative. A parent who has been deprived by a decree of a court of competent jurisdiction of custody of a deceased Vietnam veteran who, had he lived, would have been eligible for a veteran's bonus under § 2(1), supra, is not entitled to receive survivor's benefits under § 2(3) of the act.
In addition to the bonus itself, however, the legislature has further provided in § 12, chapter 154, supra,2/ for the payment of $250 "to aid in defraying funeral and other burial costs" of a qualified veteran who has died. This section reads, in full, as follows:
"Upon the death of any person qualified to receive compensation pursuant to this 1972 amendatory act or who would have been qualified to receive compensation except for death occurring while serving in federal service as a member of the armed military or naval forces of the United States, there shall be paid to his widow, parent, child, next of kin or other person assuming responsibility or having the duty to provide for his burial, the sum of two hundred fifty dollars to aid in defraying funeral and other burial costs. Payment shall be made, after application therefor, in the same manner as is provided in this 1972 amendatory act for payment of compensation. The state treasurer shall promulgate such rules and regulations and provide such procedures as may be necessary to properly administer the provisions of this section.
"Any payment under this section shall be deemed and construed to be a part of the term 'compensation' as used in this 1972 amendatory act and shall be made from the war veterans' compensation fund."
[[Orig. Op. Page 4]]
In our earlier opinion of December 8, 1972, supra, we advised you that this provision contemplates the payment of a separate award in addition to the "survivorship" benefit provided for in § 2(3), supra; and secondly, we also advised you that this award may not be paid to any person who has previously applied for and received the bonus itself as a survivor's benefit under that earlier subsection of the act. Accord, § 2(1), supra, which states that:
". . . no person shall be eligible to receive compensation under this 1972 act having prior thereto applied for and received compensation hereunder." (Emphasis supplied.)
Because the burial award is also declared by § 12, supra, to be compensation, and because the above proviso speaks of "compensation under this . . . act" and not merely such compensation as is paid under the section in which it is located, we viewed its effect as being to disqualify any person who has previously applied for and received a payment under § 2(3), supra, from later receiving another payment under § 12.
At first blush, this same line of reasoning would seem to compel a conclusion that because the disqualifying proviso in § 2(3) itself is also expressed in terms ineligibility to receive ". . . any compensation under this act," a parent who has been deprived of custody by order of a court of competent jurisdiction is not only ineligible for survivor's benefits under § 2(3) but for a burial award under § 12 as well. Such a conclusion, however, would indeed be anamolous in view of the fact that § 12, supra, authorizes the payment of a burial award not only to a surviving spouse or parent of a deceased Vietnam veteran but to "any other person" who has assumed responsibility for his burial. Thus, while a complete stranger who has assumed responsibility for the burial of a veteran can receive a $250 burial award under this section of the act, a parent who had been earlier deprived of custody of the veteran, as a child, could not claim and be paid the same award if that literal approach to the statute were to be taken.
This analysis leads us, obviously, to the well-established principle ". . . that no construction should be given to a statute which leads to gross injustice or absurdity." Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968), and cases cited therein. The solution, in the [[Orig. Op. Page 5]] instant case, is to treat the parent who has been deprived of custody as having, thereby, lost all rights as a parent to receive any form of compensation under the act with which we are here concerned. But because a person who has assumed responsibility for the burial of a qualified veteran need not be a parent at all ‑ or for that matter, have any other natural or legal relationship to the decedent ‑ in order to qualify for a burial award under § 12, supra, that treatment of such a parent and his or her resulting disqualification is irrelevant insofar as this benefit is concerned. Accordingly, even though barred from receiving survivor's benefits under § 2(3) of the act, supra, this parent may, in effect, disregard that status and, simply as the person who has assumed and paid the decedent's burial expenses, apply for and receive the separate award provided for under that later section of the act.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***