The case involves two questions. The first is whether a juvenile found "delinquent for the second-degree murder" of the wage earner in the State of North Carolina is precluded from entitlement to survivors benefits on the deceased wage earner's record under the rules in POMS GN 00304.060 (Forfeiture of Entitlement - Homicide of the Worker) and GN 00303.070 (Homicide by Child). Under North Carolina law, second-degree murder involves the knowing and intentional killing of another. Such a conviction, therefore, precludes entitlement to survivor benefits. The second question involves whether a juvenile found "delinquent for the involuntary Manslaughter" of the wage earner should be precluded from entitlement to survivors benefits on the deceased wage earner's record based on the same rules in POMS. In an involuntary manslaughter case, Agency policy in POMS GN 00304.065 (Classification of Homicide) states that lack of intent is presumed but may be rebutted. Since such a conviction is generally regarded as an unintentional slaying, and there is no information that would rebut the presumption of lack of intent, no bar to entitlement to survivors benefits exists.

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