[Claim for Refund of Security Deposit]

A-24019, OCTOBER 18, 1928, 8 COMP. GEN. 197

VETERANS' BUREAU - ADJUSTED-SERVICE CREDIT - PRESUMPTION OF DEPENDENCY ON VETERAN UNDER THE PROVISIONS OF SECTION 602 (C) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, THE AMOUNT OF AN ADJUSTED SERVICE CREDIT DUE A VETERAN OF THE WORLD WAR MAY BE PAID TO HIS FATHER SOLELY ON THE BASIS THAT HE IS OVER 60 YEARS OF AGE, WITHOUT THE NECESSITY OF SHOWING OF ACTUAL DEPENDENCY ON THE VETERAN.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR UNITED STATES VETERANS' BUREAU, OCTOBER 18, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 20, 1928, SUBMITTING FOR CONSIDERATION THE ADJUSTED COMPENSATION CASE OF CARL H. JARVIS, DECEASED, X-C 95191, INVOLVING THE QUESTION WHETHER HIS FATHER IS ENTITLED TO THE AMOUNT OF THE ADJUSTED-SERVICE CREDIT SOLELY ON THE BASIS OF THE FACT THAT THE FATHER'S AGE IS OVER 60 YEARS.

IT APPEARS IN THIS CASE THAT BOTH THE FATHER AND MOTHER ARE LIVING; THAT THE MOTHER IS LESS THAN 60 YEARS OF AGE; THAT THE FATHER IS MORE THAN 60 YEARS OF AGE; AND THAT THE PARENTS HAVE NEVER BEEN ACTUALLY DEPENDENT ON THEIR VETERAN SON.

SECTION 602 (C) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, PROVIDES AS FOLLOWS:

NO PAYMENT UNDER SECTION 601 SHALL BE MADE TO A MOTHER OR FATHER UNLESS DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND BEFORE JANUARY 3, 1930. IF AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND BEFORE JANUARY 3, 1930, THE MOTHER IS UNMARRIED OR OVER SIXTY YEARS OF AGE, OR THE FATHER IS OVER SIXTY YEARS OF AGE, SUCH MOTHER OR FATHER, RESPECTIVELY, SHALL BE PRESUMED TO BE DEPENDENT.

SEE SIMILAR PROVISION IN THE EARLIER AMENDMENT OF JULY 3, 1926, 44 STAT. 829. THE ORIGINAL STATUTE HAD PROVIDED THAT "THE FATHER AND MOTHER, RESPECTIVELY, SHALL SUBMIT UNDER OATH A STATEMENT OF THE DEPENDENCY, TO BE FILED WITH THE APPLICATION.'

AFTER A COMPARISON BETWEEN THE ORIGINAL AND AMENDED PROVISIONS, THERE WOULD SEEM TO BE NO DOUBT BUT THAT THE CONGRESS INTENDED TO ELIMINATE THE NECESSITY OF A FATHER OVER 60 YEARS OF AGE SUBMITTING THE STATEMENT OF DEPENDENCY UNDER OATH REQUIRED BY THE ORIGINAL LAW. IN FACT, THIS INTENT IS SPECIFICALLY STATED IN THE SENATE AND HOUSE REPORTS ON H.R. 10277, SIXTY-NINTH CONGRESS, FIRST SESSION, WHICH BECAME THE ACT OF JULY 3, 1926, SUPRA, WHEREIN SECTION 602 OF THE ORIGINAL LAW WAS FIRST AMENDED. IT WAS THEREIN STATED:

A MOTHER OR FATHER IS ENTITLED TO BE CONSIDERED DEPENDENT UPON A SHOWING OF DEPENDENCY UPON ANYONE BEFORE JANUARY 2, 1928, AND IS PRESUMED TO BE DEPENDENT IF OVER SIXTY YEARS OF AGE BEFORE JANUARY 2, 1928. A MOTHER IS ALSO PRESUMED TO BE DEPENDENT IF UNMARRIED. THE REQUIREMENT IN THE PRESENT LAW OF A STATEMENT UNDER OATH OF THE DEPENDENCY IN THE CASE OF THE MOTHER AND FATHER HAS BEEN ELIMINATED.

THE DATE WAS CHANGED IN THE LAST AMENDMENT TO JANUARY 3, 1930.

IT APPEARS THAT THE VETERANS' BUREAU HAS DENIED THE CLAIM OF THE FATHER IN THIS CASE FOLLOWING A PRIOR DECISION OF THE DIRECTOR TO THE EFFECT THAT THE PRESUMPTION OF DEPENDENCY ON THE BASIS OF AGE IS NOT CONCLUSIVE BUT REBUTTABLE. IF THIS WERE THE PROPER CONSTRUCTION, THE PROCEDURE IN ADJUDICATING THE CLAIMS UNDER THE AMENDED LAW WOULD BE PRACTICALLY THE SAME AS UNDER THE ORIGINAL LAW. IN SUCH CASES IT IS NOT A MATTER OF SHIFTING THE BURDEN OF PROOF FROM THE PARENT TO THE GOVERNMENT TO PROVE DEPENDENCY, WHICH MAY BE CONSIDERED AS A DISTINCTION BETWEEN A REBUTTABLE AND CONCLUSIVE PRESUMPTION, BECAUSE IN EITHER CASE THE EVIDENCE WOULD PRIMARILY COME FROM THE PARENT AND THE BUREAU NOW WOULD BE REQUIRED TO OBTAIN THE SAME CHARACTER OF AFFIDAVIT OF DEPENDENCY AS IT OBTAINED BEFORE THE PRESUMPTION OF DEPENDENCY ON THE BASIS OF AGE WAS PLACED IN THE STATUTE.

YOUR ATTENTION IS INVITED, ALSO, TO A SIMILAR PRESUMPTION AS TO THE WIDOWS OF VETERANS APPEARING IN SECTION 602 (A) OF THE ACT AS AMENDED, AS FOLLOWS:

* * * THE WIDOW SHALL BE PRESUMED TO HAVE BEEN DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN UPON A SHOWING OF THE MARITAL COHABITATION.

IT IS UNDERSTOOD THAT THE VETERANS' BUREAU HAS NOT ATTEMPTED TO HOLD THAT THE WIDOW MUST SHOW ACTUAL DEPENDENCY IN ADDITION TO THE FACT OF COHABITATION. THERE IS NO MORE REASON, UNDER THE STATUTE, FOR REQUIRING A STATEMENT OF DEPENDENCY BY A FATHER OVER 60 YEARS OF AGE THAN FOR REQUIRING A SIMILAR STATEMENT FROM THE WIDOW. THE TWO PRESUMPTIONS ARE SIMILAR. AS TO WIDOWS, THE FACT OF COHABITATION ONLY MUST BE SHOWN, WHILE AS TO A FATHER, IT MUST BE ESTABLISHED THAT HE IS OVER 60 YEARS OF AGE.

YOU ARE ADVISED, THEREFORE, THAT THE AMOUNT OF THE ADJUSTED SERVICE CREDIT DUE TO CARL H. JARVIS LAWFULLY MAY BE PAID TO HIS FATHER ON THE BASIS OF SATISFACTORY PROOF THAT HE IS OVER 60 YEARS OF AGE, NOTWITHSTANDING THAT HE HAS FILED INSUFFICIENT PROOF OF ACTUAL DEPENDENCY ON THE VETERAN.