A-40554, FEBRUARY 17, 1932, 11 COMP. GEN. 310

A-40554: Feb 17, 1932

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ALL RIGHTS BASED ON THE SAME VETERAN'S SERVICE UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT HAVE BEEN EXHAUSTED. EVEN THOUGH IT APPEARS THE VETERAN IS NOT DEAD. 1932: THIS OFFICE IS IN RECEIPT OF A REQUEST DATED NOVEMBER 9. WAS PAID SEPTEMBER 8. THAT THE VETERAN WAS PRESUMED TO BE DEAD BECAUSE OF AN UNEXPLAINED ABSENCE OF SEVEN YEARS. THE VETERAN WAS DISCHARGED FROM THE MILITARY SERVICE BECAUSE OF A MENTAL DISABILITY AND THEREAFTER WAS CONFINED TO THE IOWA STATE REFORMATORY. FROM WHICH HE WAS PAROLED ON NOVEMBER 21. THAT DURING 1922 HE WAS ADJUDGED INSANE AND INCOMPETENT AND A GUARDIAN APPOINTED FOR HIM. AN APPLICATION FOR AN ADJUSTED SERVICE CERTIFICATE WAS FILED. ON THE BASIS OF WHICH A CERTIFICATE WAS ISSUED IN FAVOR OF THE VETERAN WHOSE WHEREABOUTS WAS THEN UNKNOWN.

A-40554, FEBRUARY 17, 1932, 11 COMP. GEN. 310

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - PRESUMPTION OF DEATH IN ALL CASES WHERE THE RULE OF THE EVIDENCE OF PRESUMPTION OF DEATH OF A VETERAN AFTER AN UNEXPLAINED ABSENCE OF SEVEN YEARS HAS BEEN INVOKED, THE VETERAN JUDICIALLY DECLARED DEAD, AND THE FACE OF AN ADJUSTED SERVICE CERTIFICATE PAID TO A PERSON LAWFULLY ENTITLED THERETO, ALL RIGHTS BASED ON THE SAME VETERAN'S SERVICE UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT HAVE BEEN EXHAUSTED, AND THE GENERAL ACCOUNTING OFFICE MUST DECLINE TO RETURN THE CERTIFICATE TO THE VETERANS' ADMINISTRATION, EVEN THOUGH IT APPEARS THE VETERAN IS NOT DEAD.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 17, 1932:

THIS OFFICE IS IN RECEIPT OF A REQUEST DATED NOVEMBER 9, 1931, FROM THE DIRECT OF FINANCE, VETERANS' ADMINISTRATION, FOR THE RETURN OF THE WORLD WAR ADJUSTED SERVICE CERTIFICATE ISSUED TO BARTON JESSE PEAKER, A-498, 182, ON FILE IN THIS OFFICE, THE FACE VALUE OF WHICH, LESS A LOAN PLUS INTEREST, WAS PAID SEPTEMBER 8, 1930, TO MRS. NINA B. PEAKER, MOTHER, AS ADMINISTRATRIX OF THE ESTATE OF THE VETERAN, BASED ON A DECREE, DATED JUNE 9, 1930, BY THE PROBATE COURT OF RAMSEY COUNTY, MINN., THAT THE VETERAN WAS PRESUMED TO BE DEAD BECAUSE OF AN UNEXPLAINED ABSENCE OF SEVEN YEARS.

IT APPEARS THAT ON NOVEMBER 13, 1917, THE VETERAN WAS DISCHARGED FROM THE MILITARY SERVICE BECAUSE OF A MENTAL DISABILITY AND THEREAFTER WAS CONFINED TO THE IOWA STATE REFORMATORY, FROM WHICH HE WAS PAROLED ON NOVEMBER 21, 1921, FOR THE PURPOSE OF RECEIVING HOSPITAL TREATMENT; THAT DURING 1922 HE WAS ADJUDGED INSANE AND INCOMPETENT AND A GUARDIAN APPOINTED FOR HIM; THAT SOMETIME IN 1923 HE DISAPPEARED; THAT IN JANUARY, 1926, AN APPLICATION FOR AN ADJUSTED SERVICE CERTIFICATE WAS FILED, APPARENTLY BY THE GUARDIAN, ON THE BASIS OF WHICH A CERTIFICATE WAS ISSUED IN FAVOR OF THE VETERAN WHOSE WHEREABOUTS WAS THEN UNKNOWN; AND THAT IT IS NOW KNOWN THE VETERAN IS RESIDING IN THE STATE OF NEW YORK AND, IT IS UNDERSTOOD, HAS REQUESTED THE RETURN OF HIS ADJUSTED SERVICE CERTIFICATE.

SECTION 312 (A) AND (D) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY SECTION 4 OF THE ACT OF MAY 29, 1928, 45 STAT. 948, 949, PROVIDES AS FOLLOWS:

(A) IF SATISFACTORY EVIDENCE IS PRODUCED ESTABLISHING THE FACT OF THE CONTINUED AND UNEXPLAINED ABSENCE OF ANY INDIVIDUAL FROM HIS HOME AND FAMILY FOR A PERIOD OF SEVEN YEARS, DURING WHICH PERIOD NO INTELLIGENCE OF HIS EXISTENCE HAS BEEN RECEIVED, THE DEATH OF SUCH INDIVIDUAL AS OF THE DATE OF THE EXPIRATION OF SUCH PERIOD SHALL, FOR THE PURPOSES OF THIS ACT, BE CONSIDERED AS SUFFICIENTLY PROVED.

(D) IN THE CASE OF A VETERAN, IF IT APPEARS THAT HE IS STILL LIVING, PAYMENTS TO DEPENDENTS IN RESPECT OF HIS DEATH SHALL CEASE, AND, IF HE HAS FILED A VALID APPLICATION UNDER THE PROVISIONS OF SECTION 302, ANY PAYMENTS ALREADY MADE SHALL BE DEDUCTED FROM THE FACE VALUE OF HIS ADJUSTED SERVICE CERTIFICATE, OR FROM THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT IF SUCH CREDIT IS NOT MORE THAN $50. IN THE CASE OF A DEPENDENT, IF IT APPEARS THAT SUCH DEPENDENT IS STILL LIVING, PAYMENTS TO DEPENDENTS LATER IN PREFERENCE UNDER THIS ACT SHALL CEASE, AND, IF SUCH DEPENDENT HAS FILED A VALID APPLICATION UNDER THE PROVISIONS OF SECTION 604, THE REMAINDER OF THE PAYMENTS SHALL BE MADE IN ACCORDANCE WITH THE PROVISIONS OF TITLE VI.

WHILE ORDINARILY THE PRESUMPTION OF DEATH AFTER AN UNEXPLAINED ABSENCE OF SEVEN YEARS IS A RULE OF EVIDENCE WHICH IS REBUTTED BY THE ACTUAL FACTS SHOWING THE PERSON TO BE ALIVE AFTER THE 7-YEAR PERIOD HAS EXPIRED AND EVEN AFTER A JUDICIAL DECREE OF DEATH, THEREBY RENDERING THE DECREE OF NO FORCE AND EFFECT, IN THE INSTANT MATTER IT IS REASONABLY CLEAR THAT THE CONGRESS INTENDED TO DO SOMETHING MORE THAN MAKE AVAILABLE TO BENEFICIARIES OF THE WORLD WAR ADJUSTED COMPENSATION ACT THE RULE OF EVIDENCE OF PRESUMPTION OF DEATH AFTER AN UNEXPLAINED ABSENCE OF SEVEN YEARS. IN ADDITION, IT WAS SOUGHT TO PROTECT THE UNITED STATES FROM DUPLICATE PAYMENTS UNDER THE STATUTE BASED ON THE SAME VETERAN'S SERVICE IN ALL CASES WHERE SAID RULE OF EVIDENCE HAS BEEN INVOKED. THE STATUE DOES NOT SPECIFICALLY COVER A CASE WHERE THE ENTIRE FACE VALUE OF THE ADJUSTED SERVICE CERTIFICATE HAS BEEN PAID TO A BENEFICIARY OR DEPENDENT OF THE VETERAN PRESUMED TO BE DEAD AFTER AN UNEXPLAINED ABSENCE OF SEVEN YEARS, BUT THERE WOULD APPEAR TO BE NO SOUND REASON FOR MAKING A DISTINCTION BETWEEN CASES WHERE THE BENEFICIARIES OR DEPENDENTS OF THE VETERAN HAVE COLLECTED ONLY HIS ADJUSTED SERVICE CREDIT IN WHOLE OR IN PART BEFORE IT HAD BEEN APPLIED TO PURCHASE A CERTIFICATE, AND CASES WHERE THE ENTIRE FACE VALUE OF THE CERTIFICATE HAD BEEN COLLECTED AFTER THE SERVICE CREDIT HAD BEEN APPLIED TO PURCHASE OF CERTIFICATE. IN FACT, IN THE LATTER CASE, MORE THAN THE SERVICE CREDIT WOULD HAVE BEEN PAID.

IN THIS CASE THE GUARDIAN, WHOSE ACTION WAS OF THE SAME EFFECT AS THAT OF THE VETERAN, APPLIED FOR AND RECEIVED AN ADJUSTED SERVICE CERTIFICATE BY THE APPLICATION TOWARD ITS PURCHASE OF HIS ADJUSTED SERVICE CREDIT, AND THE FACE VALUE OF THE CERTIFICATE HAS BEEN PAID TO THE MOTHER OF THE VETERAN AS THE ADMINISTRATRIX OF HIS ESTATE BASED UPON A JUDICIAL DECREE OF DEATH AFTER AN UNEXPLAINED ABSENCE OF SEVEN YEARS. ACCORDINGLY, ALL RIGHTS BASED ON THIS VETERAN'S SERVICE UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT HAVE BEEN EXHAUSTED.

YOU ARE ADVISED, THEREFORE, THAT ON THE BASIS OF THE AVAILABLE FACTS OF RECORD, THIS OFFICE MUST DECLINE TO RETURN THE ADJUSTED SERVICE CERTIFICATE IN THIS CASE.