A-30829, APRIL 3, 1930, 9 COMP. GEN. 427

A-30829: Apr 3, 1930

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THE RIGHTS OF SUCH PREFERRED DEPENDENT TO THE ADJUSTED SERVICE CREDIT BASED ON THE SERVICE OF THE VETERAN ARE EXCLUSIVE. VEST ANY RIGHTS UNDER THE STATUTE IN THE NEXT PREFERRED DEPENDENT WHO MIGHT OTHERWISE HAVE BEEN QUALIFIED AND WHO HAD FILED AN APPLICATION ON OR BEFORE JANUARY 2. COULD NOT HAVE BEEN QUALIFIED UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT EVEN IF APPLICATION HAD BEEN FILED ON OR BEFORE JANUARY 2. 1930: THERE IS BEFORE THIS OFFICE FOR PREAUDIT THE WORLD WAR ADJUSTED COMPENSATION CASE OF JOHN WASHINGTON. TO THE ADJUSTED SERVICE CREDIT IF PROPER APPLICATION WAS FILED BY HER ON OR BEFORE JANUARY 2. PRIOR TO THE TIME THERE WAS ANY AUTHORITY TO MAKE APPLICATION FOR AN ADJUSTED SERVICE CERTIFICATE.

A-30829, APRIL 3, 1930, 9 COMP. GEN. 427

VETERANS' BUREAU - ADJUSTED COMPENSATION - PREFERRED DEPENDENTS IF A PREFERRED DEPENDENT OF A WORLD WAR VETERAN ESTABLISHES BOTH THE RELATIONSHIP AND THE CONDITION OF DEPENDENCY PRESCRIBED BY THE WORLD WAR ADJUSTED COMPENSATION ACT, THE RIGHTS OF SUCH PREFERRED DEPENDENT TO THE ADJUSTED SERVICE CREDIT BASED ON THE SERVICE OF THE VETERAN ARE EXCLUSIVE, AND THE MERE FAILURE OF SUCH A PREFERRED DEPENDENT TO FILE AN APPLICATION ON OR BEFORE JANUARY 2, 1930, DID NOT, ON JANUARY 3, 1930, VEST ANY RIGHTS UNDER THE STATUTE IN THE NEXT PREFERRED DEPENDENT WHO MIGHT OTHERWISE HAVE BEEN QUALIFIED AND WHO HAD FILED AN APPLICATION ON OR BEFORE JANUARY 2, 1930. IF IT CAN BE ESTABLISHED BY SUFFICIENT EVIDENCE THAT THE PREFERRED DEPENDENT OF A WORLD WAR VETERAN, WHO HAS FAILED TO APPLY FOR THE ADJUSTED SERVICE CREDIT BASED ON THE SERVICE OF THE VETERAN, COULD NOT HAVE BEEN QUALIFIED UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT EVEN IF APPLICATION HAD BEEN FILED ON OR BEFORE JANUARY 2, 1930, THEN THERE MAY BE RIGHTS FOR RECOGNITION IN THE NEXT PREFERRED DEPENDENT WHO HAS FULLY QUALIFIED AND FILED PROPER APPLICATION ON OR BEFORE JANUARY 2, 1930.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 3, 1930:

THERE IS BEFORE THIS OFFICE FOR PREAUDIT THE WORLD WAR ADJUSTED COMPENSATION CASE OF JOHN WASHINGTON, A-1655865; XC-664981, INVOLVING THE QUESTION OF WHETHER THE FAILURE OF A PREFERRED DEPENDENT, IN THIS CASE THE WIDOW, TO FILE AN APPLICATION FOR THE VETERAN'S ADJUSTED SERVICE CREDIT ON OR BEFORE JANUARY 2, 1930, THE EXPIRATION OF THE PERIOD FOR FILING FIXED BY THE STATUTE, ESTABLISHES THE RIGHT OF THE NEXT PREFERRED DEPENDENT, IN THIS CASE THE MOTHER, TO THE ADJUSTED SERVICE CREDIT IF PROPER APPLICATION WAS FILED BY HER ON OR BEFORE JANUARY 2, 1930.

THE VETERAN IN THIS CASE DIED AUGUST 26, 1921, PRIOR TO THE TIME THERE WAS ANY AUTHORITY TO MAKE APPLICATION FOR AN ADJUSTED SERVICE CERTIFICATE. ON AUGUST 8, 1924, THE VETERAN'S MOTHER, MRS. CATHERINE WASHINGTON LOGAN, MADE APPLICATION FOR THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT IN WHICH SHE STATED THERE WAS A WIDOW OF THE VETERAN SURVIVING. IS ALLEGED IN THE RECORD, ALTHOUGH NOT SWORN TO NOR CORROBORATED, THAT THE WHEREABOUTS OF THE WIDOW IS UNKNOWN AND THAT THE VETERAN AND HIS WIFE DID NOT LIVE TOGETHER FOR TWO YEARS PREVIOUS TO HIS ENTRY INTO THE SERVICE, FROM WHICH IT MIGHT APPEAR, ALTHOUGH NOT SUFFICIENTLY ESTABLISHED, THAT THE WIFE WAS NOT LIVING WITH NOR DEPENDENT UPON THE VETERAN AT THE TIME OF HIS DEATH. IT APPEARS, HOWEVER, THAT DURING THE PERIOD OF MILITARY SERVICE FROM AUGUST 27, 1918, TO JUNE 27, 1919, THE VETERAN MADE AN ALLOTMENT OF PAY TO HIS WIFE. THE MOTHER ALLEGES DEPENDENCY ON THE VETERAN AND THE FACTS OF RECORD WOULD SEEM TO WARRANT SUCH ALLEGATION. FURTHERMORE, THE MOTHER IS UNMARRIED AND BECAME 60 YEARS OF AGE PRIOR TO JANUARY 2, 1930.

THE VETERANS' BUREAU WAS APPARENTLY UNABLE TO ACCEPT THE EVIDENCE OF RECORD AS SUFFICIENT TO SHOW THAT THE WIDOW COULD NOT HAVE QUALIFIED UNDER THE STATUTE, AND ADVISED THE MOTHER AND THOSE INTERESTED IN HER BEHALF THAT IF THE WIDOW FAILED TO FILE APPLICATION ON OR BEFORE JANUARY 2, 1930, THE MOTHER'S APPLICATION WOULD BE FURTHER CONSIDERED.

THE VETERANS' BUREAU NOW PROPOSES PAYMENT TO THE MOTHER SOLELY ON THE PRINCIPLE THAT THE FAILURE OF A PREFERRED DEPENDENT TO ASSERT A RIGHT UNDER THE STATUTE BY FILING APPLICATION WITHIN THE TIME LIMIT VESTS A RIGHT IN THE NEXT PREFERRED DEPENDENT WHO HAS ASSERTED A RIGHT WITHIN THE TIME PRESCRIBED BY FILING A PROPER APPLICATION.

SECTION 601 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 828, PROVIDES AS FOLLOWS:

IF THE VETERAN HAS DIED BEFORE MAKING APPLICATION UNDER SECTION 302, OR, IF ENTITLED TO RECEIVE ADJUSTED-SERVICE PAY, HAS DIED AFTER MAKING APPLICATION BUT BEFORE HE HAS RECEIVED PAYMENT UNDER TITLE IV, THEN THE AMOUNT OF HIS ADJUSTED-SERVICE CREDIT SHALL (AS SOON AS PRACTICABLE AFTER RECEIPT OF AN APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 604, BUT NOT BEFORE MARCH 1, 1925), BE PAID TO HIS DEPENDENTS, IN THE FOLLOWING ORDER OF PREFERENCE:

(1) TO THE WIDOW;

(2) IF NO WIDOW ENTITLED TO PAYMENT, THEN TO THE CHILDREN, SHARE AND SHARE ALIKE;

(3) IF NO WIDOW OR CHILDREN ENTITLED TO PAYMENT, THEN TO THE MOTHER;

(4) IF NO WIDOW, CHILDREN, OR MOTHER, ENTITLED TO PAYMENT, THEN TO THE FATHER.

SECTION 602 OF THE SAME STATUTE, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 947, PROVIDES, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

(A) NO PAYMENT UNDER SECTION 601 SHALL BE MADE TO A WIDOW IF SHE HAS REMARRIED BEFORE MAKING AND FILING APPLICATION, OR IF AT THE TIME OF THE DEATH OF THE VETERAN WAS LIVING APART FROM HIM BY REASON OF HER OWN WILLFUL ACT; NOR UNLESS DEPENDENT AT THE TIME OF THE DEATH OF THE VETERAN OR AT ANY TIME THEREAFTER AND BEFORE JANUARY 3, 1930. 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.

(C) 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.

SECTION 603 OF THE SAME STATUTE AS ORIGINALLY ENACTED MAY 19, 1924, 43 STAT. 129, WHICH HAS NOT BEEN AMENDED, PROVIDES AS FOLLOWS:

THE PAYMENTS AUTHORIZED BY SECTION 601 SHALL BE MADE IN TEN EQUAL QUARTERLY INSTALLMENTS, UNLESS THE TOTAL AMOUNT OF THE PAYMENT IS LESS THAN $50, IN WHICH CASE IT SHALL BE PAID ON THE FIRST INSTALLMENT DATE. NO PAYMENTS UNDER THE PROVISIONS OF THIS TITLE SHALL BE MADE TO THE HEIRS OR LEGAL REPRESENTATIVES OF ANY DEPENDENTS ENTITLED THERETO WHO DIE BEFORE RECEIVING ALL THE INSTALLMENT PAYMENTS, BUT THE REMAINDER OF SUCH PAYMENTS SHALL BE MADE TO THE DEPENDENT OR DEPENDENTS IN THE NEXT ORDER OF PREFERENCE UNDER SECTION 601. ALL PAYMENTS UNDER THIS TITLE SHALL BE MADE BY THE DIRECTOR.

SECTION 604 (B) OF THE SAME STATUTE, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 948, PROVIDES AS FOLLOWS:

(B) APPLICATIONS FOR SUCH BENEFITS, WHETHER VESTED OR CONTINGENT, SHALL BE MADE AND FILED BY THE DEPENDENTS OF THE VETERAN ON OR BEFORE JANUARY 2, 1930; EXCEPT THAT IN THE CASE OF THE DEATH OF THE VETERAN DURING THE SIX MONTHS IMMEDIATELY PRECEDING SUCH DATE THE APPLICATION SHALL BE MADE AND FILED AT ANY TIME WITHIN SIX MONTHS AFTER THE DEATH OF THE VETERAN. PAYMENTS UNDER THIS TITLE SHALL BE MADE ONLY TO DEPENDENTS WHO HAVE MADE AND FILED APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.

TWO CONDITIONS MUST BE ESTABLISHED TO ENTITLE DEPENDENTS TO THE VETERAN'S ADJUSTED SERVICE CREDIT, TO WIT, (1) THE PREFERRED RELATIONSHIP STATED IN THE STATUTE AND (2) DEPENDENCY UNDER THE TERMS OF THE STATUTE. IF A PREFERRED DEPENDENT, AS IN THIS CASE THE WIDOW, ESTABLISHES THE EXISTENCE OF BOTH OF THESE CONDITIONS, THE RIGHTS OF SUCH PREFERRED DEPENDENT UNDER THE STATUTE ARE EXCLUSIVE. THE MERE FAILURE OF A PREFERRED DEPENDENT, OTHERWISE FULLY QUALIFIED, TO ASSERT RIGHTS UNDER THE STATUTE BY FILING AN APPLICATION ON OR BEFORE JANUARY 2, 1930, DID NOT IPSO FACTO ON JANUARY 3, 1930, VEST ANY RIGHTS UNDER THE STATUTE IN THE NEXT PREFERRED DEPENDENT, WHO MIGHT OTHERWISE HAVE BEEN QUALIFIED. THE PREFERRED DEPENDENT WHO IS FULLY QUALIFIED, AS WELL AS THE VETERAN HIMSELF, HAS AN OPTION WITH RESPECT TO ASSERTING RIGHTS UNDER THE STATUTE; AND IF THE OPTION OF NOT FILING AN APPLICATION IS EXERCISED, THEN RIGHTS OF ANY OTHER PERSON BASED ON THE SAME SERVICE DO NOT ARISE. THE NEXT PREFERRED DEPENDENT HAS ONLY A RIGHT CONTINGENT UPON THE FACT THAT THE PREFERRED DEPENDENT IS REMOVED BY DEATH OR HIS OR HER RIGHTS OTHERWISE TERMINATED ON OR BEFORE JANUARY 2, 1930, OR SUCH SUBSEQUENT TERMINATION DATE AS MAY HEREAFTER BE FIXED BY STATUTE.

BUT IF IT CAN BE ESTABLISHED BY SUFFICIENT EVIDENCE, AS DISTINGUISHED FROM SELF-SERVING AFFIDAVITS, THAT THE PREFERRED DEPENDENT WHO HAS FAILED TO APPLY COULD NOT HAVE QUALIFIED EVEN IF APPLICATION HAD BEEN FILED WITHIN THE TIME ALLOWED, THEN THERE MAY BE RIGHTS FOR RECOGNITION OF THE NEXT PREFERRED DEPENDENT WHO HAS FULLY QUALIFIED AND WHO DID FILE PROPER APPLICATION ON OR BEFORE JANUARY 2, 1930.

IN THE INSTANT CASE, THEREFORE, WHILE THE EVIDENCE NOW WITH THE RECORD IS NOT SUFFICIENT TO AUTHORIZE PAYMENT TO THE MOTHER, IF THERE SHOULD BE FILED SATISFACTORY EVIDENCE SHOWING THAT THE VETERAN AND HIS WIFE, DUE TO HER OWN WILLFUL ACT, ACTUALLY DID NOT LIVE TOGETHER AT AND FOR A CONSIDERABLE PERIOD PRIOR TO HIS DEATH, AND THAT HE DID NOT CONTRIBUTE TO HIS WIFE'S SUPPORT TO ANY SUBSTANTIAL EXTENT DURING SUCH PERIOD, AND THAT SHE WAS NOT OTHERWISE DEPENDENT AT THE TIME OF THE VETERAN'S DEATH OR AT ANY TIME THEREAFTER AND BEFORE JANUARY 3, 1930, OR IF IT CAN BE ESTABLISHED THAT SHE DIED OR REMARRIED PRIOR TO JANUARY 3, 1930, THE APPLICATION OF THE MOTHER MAY BE RECOGNIZED AND PAYMENTS OF THE ADJUSTED SERVICE CREDIT MADE TO HER IN THE MANNER PROVIDED BY LAW.

THE VOUCHER IN FAVOR OF THE MOTHER ON THE BASIS OF THE PRESENT RECORD CAN NOT BE CERTIFIED FOR PAYMENT.