B-150614, MAR. 5, 1963

B-150614, MAR. 5, 1963

TO MAJOR J. J. VANYA, FINANCE OFFICER, UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 16, 1962, FORWARDED TO THIS OFFICE JANUARY 11, 1963, BY THE DIRECTORATE OF ACCOUNTING AND FINANCE AS AIR FORCE REQUEST NO. DO-AF-684, REQUESTING DECISION AS TO THE PROPER PAYEE OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF DECEASED AIRMAN THIRD CLASS L. C. HAZARD, JR., AF 19700669. TWO CLAIMS HAVE BEEN RECEIVED, ONE FROM THE AIRMAN'S MOTHER, MRS. GOLDIE SHANKS, AS DESIGNATED BENEFICIARY, THE OTHER FROM MRS. SEDALIA JORDAN, THE GRANDMOTHER OF AN ALLEGED ILLEGITIMATE CHILD OF THE AIRMAN. IT IS STATED THAT MRS. JORDAN HAS NO WRITTEN STATEMENT FROM THE AIRMAN ACKNOWLEDGING THAT HE IS THE FATHER OF THE ILLEGITIMATE CHILD ON WHOSE BEHALF CLAIM IS MADE BUT SHE CLAIMS THAT HE MADE SUCH A STATEMENT TO HER AND TO HER SISTER. THE AIRMAN IS NAMED AS FATHER ON THE INFANT'S BIRTH CERTIFICATE. IT IS FURTHER STATED THAT BY LETTER DATED AUGUST 30, 1962, MRS. JORDAN WAS ASKED TO FURNISH INFORMATION TO PROVE THAT THE AIRMAN WAS THE FATHER OF THE CHILD INVOLVED, BUT THAT NEITHER A REPLY NOR THE REQUESTED PROOF HAS BEEN RECEIVED.

SECTION 1477, TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) A DEATH GRATUITY * * * SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

"/1) HIS SURVIVING SPOUSE.

"/2) HIS CHILDREN, AS PRESCRIBED BY SUBSECTION (B), IN EQUAL SHARES.

"/3) IF DESIGNATED BY HIM, ANY ONE OR MORE OF THE FOLLOWING PERSONS:

"/A) HIS PARENTS OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C).

"/B) SUBSECTION (A) (2) APPLIES, WITHOUT REGARD TO AGE OR MARITAL STATUS, TO---

"/5) ILLEGITIMATE CHILDREN OF A MALE DECEDENT---

"/A) WHO HAVE BEEN ACKNOWLEDGED IN WRITING SIGNED BY THE DECEDENT;

"/B) WHO HAVE BEEN JUDICIALLY DETERMINED, BEFORE THE DECEDENT'S DEATH, TO BE HIS CHILDREN;

"/C) WHO HAVE BEEN OTHERWISE PROVED, BY EVIDENCE SATISFACTORY TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, TO BE CHILDREN OF THE DECEDENT; OR

"/D) TO WHOSE SUPPORT THE DECEDENT HAD BEEN JUDICIALLY ORDERED TO CONTRIBUTE.'

UNDER THE ABOVE PROVISIONS OF LAW A PARENT, EVEN THOUGH DESIGNATED AS BENEFICIARY FOR THE DEATH GRATUITY, IS PLACED THIRD IN ORDER OF PRECEDENCE OF ELIGIBLE SURVIVORS. WHILE THE DECEDENT IN THIS CASE IS NOT SURVIVED BY A WIDOW, THERE IS PRESENT KNOWLEDGE OF A CHILD WHOSE RIGHTS, IF ITS RELATIONSHIP IS SUFFICIENTLY ESTABLISHED, TAKE PRECEDENCE OVER THE RIGHTS OF A DESIGNATED PARENT. WHILE THE ONE CLAIMING ON BEHALF OF THE ALLEGED ILLEGITIMATE CHILD HAS NOT YET OFFERED TANGIBLE EVIDENCE IN PROOF OF HER CLAIM, THE GOVERNMENT IS ON NOTICE OF THAT CLAIM.

WE HAVE BEEN INFORMALLY ADVISED BY THE VETERANS ADMINISTRATION THAT STILL ANOTHER PERSON CLAIMS TO HAVE BORNE A SON WHO IS ALLEGED TO HAVE BEEN FATHERED AND ACKNOWLEDGED BY THE DECEDENT. IF A PROPER DETERMINATION OF SUCH RELATIONSHIP IS MADE BY COMPETENT AUTHORITY, IT APPEARS THAT THAT CHILD MAY BE ENTITLED TO A SHARE OF THE DEATH GRATUITY PAYMENT.

A SATISFACTORY ACQUITTANCE TO THE GOVERNMENT CANNOT BE OBTAINED (SEE STAMER V. UNITED STATES, 148 CT.CL. 482), BY PAYMENT OF THE GRATUITY TO EITHER OF THE PRESENT CLAIMANTS AND, HENCE, PAYMENT ON THE VOUCHER IS NOT PROPER. IN THE ABSENCE OF A DETERMINATION MADE AS PRESCRIBED IN THE ABOVE -QUOTED STATUTE AS TO WHETHER OR NOT THE AIRMAN WAS THE FATHER OF THE CHILDREN AS ALLEGED, NO PAYMENT OF THE DEATH GRATUITY IS AUTHORIZED. THIS CONNECTION IT MAY BE STATED THAT THE BURDEN OF ESTABLISHING THE VALIDITY OF THEIR CLAIMS AGAINST THE GOVERNMENT RESTS UPON THE CLAIMANTS.

SINCE PAYMENT IS NOT AUTHORIZED ON THE BASIS OF THE PRESENT RECORD, THE VOUCHERS WILL BE RETAINED HERE.