A-25111, NOVEMBER 20, 1928, 8 COMP. GEN. 264

A-25111: Nov 20, 1928

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THE GENERAL ACCOUNTING OFFICE WILL APPLY RETROACTIVELY EFFECTIVE SECTION 23 OF THE ACT OF AUGUST 9. PROVIDING THAT "WHERE A BENEFICIARY AT THE TIME OF DESIGNATION BY THE INSURED IS WITHIN THE PERMITTED CLASS OF BENEFICIARIES AND IS THE DESIGNATED BENEFICIARY AT THE TIME OF THE MATURITY OF THE INSURANCE BECAUSE OF DEATH OF THE INSURED. SUCH BENEFICIARY SHALL BE DEEMED TO BE WITHIN THE PERMITTED CLASS EVEN THOUGH THE STATUS OF SUCH BENEFICIARY SHALL HAVE BEEN CHANGED.' 5 COMP. WILL NO LONGER BE FOLLOWED. IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS OF THE FIRST CITED DECISION): A DIVORCE GRANTED THE WIFE OF THE INSURED PRIOR TO THE PASSAGE OF SECTION 23 OF THE ACT OF AUGUST 9. WHICH WAS ALSO PRIOR TO DATE OF SAID ACT.

A-25111, NOVEMBER 20, 1928, 8 COMP. GEN. 264

VETERANS' BUREAU - INSURANCE - BENEFICIARIES HEREAFTER, IN THE AUDIT, THE GENERAL ACCOUNTING OFFICE WILL APPLY RETROACTIVELY EFFECTIVE SECTION 23 OF THE ACT OF AUGUST 9, 1921, 42 STAT. 155, PROVIDING THAT "WHERE A BENEFICIARY AT THE TIME OF DESIGNATION BY THE INSURED IS WITHIN THE PERMITTED CLASS OF BENEFICIARIES AND IS THE DESIGNATED BENEFICIARY AT THE TIME OF THE MATURITY OF THE INSURANCE BECAUSE OF DEATH OF THE INSURED, SUCH BENEFICIARY SHALL BE DEEMED TO BE WITHIN THE PERMITTED CLASS EVEN THOUGH THE STATUS OF SUCH BENEFICIARY SHALL HAVE BEEN CHANGED.' 5 COMP. GEN. 501; 6 ID. 89; A-12397 OF OCTOBER 16, 1926, WILL NO LONGER BE FOLLOWED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, NOVEMBER 20, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 10, 1928, FORWARDING COPIES OF DECISIONS BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, THIRD DIVISION, RENDERED JUNE 21, 1927, AND UPON APPEAL, BY THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, JUNE 23, 1928, 27 FED.REP. (2D) 45, IN THE CASE OF LOTTIE C. CONKLIN, ADMINISTRATRIX V. THE UNITED STATES, ET AL, WHICH GREW OUT OF THE WAR RISK INSURANCE CLAIM OF GEORGE HEIZMAN, C-454471, AND ALSO COPY OF THE ACTION OF THE UNITED STATES SUPREME COURT IN DENYING A PETITION FOR A WRIT OF CERTIORARI IN THE CASE.

YOU DIRECT MY ATTENTION TO THESE DECISIONS FOR THE REASON THAT THE FINAL COURT DECISION IN THE CASE, THAT OF THE UNITED STATES CIRCUIT COURT OF APPEALS DOES NOT APPEAR TO BE IN ACCORD WITH DECISION OF THIS OFFICE DATED JANUARY 20, 1926, 5 COMP. GEN. 501, AFFIRMED BY DECISION DATED JULY 31, 1926, 6 ID. 89, AND AGAIN BY MANUSCRIPT DECISION DATED OCTOBER 16, 1926, A -12397, IN THE CASE OF RUSSELL W. WALKER, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS OF THE FIRST CITED DECISION):

A DIVORCE GRANTED THE WIFE OF THE INSURED PRIOR TO THE PASSAGE OF SECTION 23 OF THE ACT OF AUGUST 9, 1921, 42 STAT. 155, AMENDING SECTION 402 OF THE WAR RISK INSURANCE ACT, WHICH HAD NO RETROACTIVE EFFECT, REMOVED HER FROM THE PERMITTED CLASS OF BENEFICIARIES, AND ALTHOUGH SHE REMAINED THE DESIGNATED BENEFICIARY UNDER THE POLICY UNTIL DATE OF DEATH OF INSURED, WHICH WAS ALSO PRIOR TO DATE OF SAID ACT, PAYMENTS UNDER THE POLICY TO HER WERE UNAUTHORIZED.

SEE ALSO 4 COMP. GEN. 759, WHEREIN A SIMILAR PRINCIPLE WAS ANNOUNCED WITH RESPECT TO THE RETROACTIVE EFFECT OF THE IDENTICAL PROVISION REENACTED JUNE 7, 1924.

THE FINAL DECREE OF THE COURT IN THE HEIZMAN CASE IS TO THE EFFECT THAT THE ACTION OF THE VETERANS' BUREAU IN MAKING PAYMENT TO THE DIVORCED WIFE WHO WAS THE DESIGNATED BENEFICIARY AT DATE OF DEATH OF THE VETERAN WOULD NOT BE DISTURBED EVEN THOUGH THE DEATH OCCURRED PRIOR TO THE ENACTMENT OF THE PROVISION IN SECTION 23 OF THE ACT OF AUGUST 9, 1921, 42 STAT. 155.

I THANK YOU FOR BRINGING THE MATTER TO MY ATTENTION. THE ACTION IN THE AUDIT WITH RESPECT TO PAYMENTS UNDER THE POLICY CONSIDERED BY THE COURT IN THE HEIZMAN CASE, AND WITH RESPECT TO OTHER PAYMENTS WHERE THE ESSENTIAL FACTS ARE IDENTICAL, WILL BE IN ACCORDANCE WITH THE FINAL DECREE OF THE COURT.