You have requested our opinion as to whether Justin and Nathan B~ are eligible for
survivor's benefits on the account of W.H. B~, Jr., number holder (NH).
Justin and Nathan B~, twins born on November 23, 1987, were charged in the shooting
death of NH, their father. In a juvenile disposition and commitment order from the
District Court of North Carolina, Vance County, dated November 23, 1999, Nathan B~
was adjudicated delinquent for the second degree murder of W.H. B~, Jr. Under North
Carolina law, second degree murder involves the knowing and intentional killing of
another. N.C. Stat. 14-17; State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922);State v. Rich, 512 S.E. 2d 441 (N.C. 1999). Accordingly, Nathan would not be entitled to survivor's
benefits. See POMS GN 00304.060 and GN 00303.70.
Justin B~ was adjudicated as delinquent for the involuntary manslaughter of W.H. B~,
Jr. in an order from the same court dated August 2, 1999. The order mentions a finding
that Justin, "unlawfully, willfully, and feloniously involuntary killed" NH. The statute
cited was N.C. Stat. 14-18, the state's manslaughter statute. According to the field
office, the court records have been sealed and additional information about the killing
is not available. Under North Carolina law, involuntary manslaughter is a crime not
involving intent. N.C. Stat.14-18; State v. Hudson, 345 N.C. 729, 483 S.E. 2d 436 (1997) (elements of involuntary manslaughter are:
1) an unintentional killing; 2) proximately caused by either a) an unlawful act not
amounting to a felony and not ordinarily dangerous to human life; or b) culpable negligence);
see also State
v. Meadlock, 95 N.C. App. 146, 381 S.E. 2d 805 (1989) (involuntary manslaughter is unlawful unintentional
killing without malice). Agency policy states that in an involuntary manslaughter
case, lack of intent is presumed but may be rebutted. POMS GN 00304.065. Here, there is no information that would rebut the presumption of lack of intent.
The use of the word "willfully" in the evidence portion of the order would not create
intent where the ultimate finding was that Justin was guilty of involuntary manslaughter.
Such a conviction is generally regarded as an unintentional slaying and thus does
not bar entitlement to benefits. Id.
Accordingly, we believe that Nathan would not be entitled to survivor's benefits,
although Justin would be so entitled.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Laurie G. R~
Assistant Regional Counsel