B-108422, APR 1, 1952

B-108422: Apr 1, 1952

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THE RECORD INDICATES THAT IN 1947 THE ENLISTED MAN WAS ADMITTED TO THE PUBLIC HEALTH SERVICE HOSPITAL. REPECKO WAS APPOINTED GUARDIAN OF THE PERSON AND ESTATE OF JULIUS JOHN REPECKO (CASE NO. THE COURT GRANTED AN ORDER FOR ALLOWANCE IN THE FOLLOWING TERMS: "IT IS ORDERED BY THE COURT THAT SAID GUARDIAN IS HEREBY AUTHORIZED TO EXPEND FROM THE FUNDS OF SAID ESTATE. THE RECORD FURTHER INDICATES THAT IN JUNE 1949 THE ENLISTED MAN WAS TRANSFERRED FROM THE PUBLIC HEALTH SERVICE HOSPITAL. FROM WHICH INSTITUTION HE WAS DISCHARGED TO HIS HOME ON JANUARY 24. IT IS FURTHER INDICATED THAT THE AMOUNTS WHICH HAVE BEEN RECEIVED BY MR. REPECKO FROM HIS WIFE AND GUARDIAN IN CALIFORNIA ARE INADEQUATE AND SINCE HE IS REPORTED TO BE UNABLE TO KEEP HIMSELF STEADILY EMPLOYED.

B-108422, APR 1, 1952

PRECIS-UNAVAILABLE

COMMANDER J.B. WARNER, SC. USN:

THERE HAS BEEN RECEIVED BY LETTER OF MARCH 3, 1952 WITH ENCLOSURES, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY YOUR LETTER OF JANUARY 2, 1952, AS ACCOUNTABLE OFFICER, REQUESTING DECISION WHETHER RETAINER PAY DUE AND ACCRUING TO JULIUS JOHN REPECKO, CHIEF ELECTRICIAN'S MATE, CLASS F-4-D, FLEET NAVAL RESERVE, MAY PROPERLY BE PAID TO HIS WIFE AND DULY APPOINTED GUARDIAN, MRS. MARY A. REPECKO, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

THE RECORD INDICATES THAT IN 1947 THE ENLISTED MAN WAS ADMITTED TO THE PUBLIC HEALTH SERVICE HOSPITAL, FORT WORTH, TEXAS, AS A PATIENT. OCTOBER 1947, MRS. MARY A. REPECKO WAS APPOINTED GUARDIAN OF THE PERSON AND ESTATE OF JULIUS JOHN REPECKO (CASE NO. LBP 17555, IN THE MATTER OF THE ESTATE AND GUARDIANSHIP OF JULIUS JOHN REPECKO, AN INCOMPETENT PERSON) BY DECREE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES AND ON SEPTEMBER 13, 1948, THE COURT GRANTED AN ORDER FOR ALLOWANCE IN THE FOLLOWING TERMS: "IT IS ORDERED BY THE COURT THAT SAID GUARDIAN IS HEREBY AUTHORIZED TO EXPEND FROM THE FUNDS OF SAID ESTATE, NOT TO EXCEED THE SUM OF $150.00 PER MONTH FOR THE SUPPORT AND MAINTENANCE OF HERSELF, AS WIFE OF SAID INCOMPETENT, AND HER MINOR CHILD."

THE RECORD FURTHER INDICATES THAT IN JUNE 1949 THE ENLISTED MAN WAS TRANSFERRED FROM THE PUBLIC HEALTH SERVICE HOSPITAL, FORT WORTH, TEXAS, TO THE UNITED STATES NAVAL HOSPITAL, MARE ISLAND, CALIFORNIA, FROM WHICH INSTITUTION HE WAS DISCHARGED TO HIS HOME ON JANUARY 24, 1950. APPEARS, HOWEVER, THAT SINCE HIS DISCHARGE MR. REPECKO HAS BEEN RESIDING WITH HIS MOTHER IN LYNN, MASSACHUSETTS, AND THAT FROM TIME TO TIME HIS WIFE, WHO HAS REMAINED IN CALIFORNIA, HAS FORWARDED TO HIM FOR HIS USE SMALL SUMS OF MONEY FROM THE FUNDS RECEIVED BY HER AS HIS DULY APPOINTED LEGAL GUARDIAN. IN THIS CONNECTION, IT IS FURTHER INDICATED THAT THE AMOUNTS WHICH HAVE BEEN RECEIVED BY MR. REPECKO FROM HIS WIFE AND GUARDIAN IN CALIFORNIA ARE INADEQUATE AND SINCE HE IS REPORTED TO BE UNABLE TO KEEP HIMSELF STEADILY EMPLOYED, THE MEMBERS OF HIS FAMILY IN MASSACHUSSETS ARE FINDING IT NECESSARY TO ASSIST HIM IN HIS PERSONAL SUPPORT. SINCE IT IS APPARENT THAT MRS. REPECKO DOES NOT HAVE ACTUAL CUSTODY OF THE PERSON OF HER HUSBAND AND WARD, JULIUS JOHN REPECKO, YOU REQUEST A DECISION AS TO WHETHER THE REPORT OF EXISTENCE, REQUIRED TO BE EXECUTED BY THE GUARDIAN ON THE LAST DAY OF EACH MONTH TO EVIDENCE THE CONTINUED EXISTENCE OF THE WARD, IS SUFFICIENT TO AUTHORIZE PAYMENT IN THIS CASE.

THE LONG ESTABLISHED PRACTICE OF REQUIRING A CERTIFICATE OF EXISTENCE TO BE EXECUTED BY THE GUARDIAN, IN CASES INVOLVING THE PAYMENT OF RETIRED OR RETAINER PAY DUE OF THE WARD OF SUCH GUARDIAN, IS BASED ON THE FACT THAT SINCE THE WARD'S RIGHT TO SUCH RETIRED OR RETAINER PAY IS TERMINATED BY DEATH, IT IS NECESSARY, IN PURSUANCE OF A SOUND POLICY OF FULL PROTECTION TO THE GOVERNMENT, THAT THERE BE SUBMITTED A SPECIFIC STATEMENT THAT THE PERSON ON WHOSE BEHALF SUCH RETIRED OR RETAINER PAY IS BEING PAID WAS ALIVE DURING THE ENTIRE PERIOD TO BE COVERED BY SUCH PAYMENT. CIRCUMSTANCES WHERE THE WARD IS CONFINED IN AND UNDER THE CONTROL OF A UNITED STATES INSTITUTION DISTANT FROM THE PLACE OF RESIDENCE OF THE DULY APPOINTED GUARDIAN, IT HAS BEEN HELD THAT "THE CERTIFICATE OF THE SUPERINTENDENT OR HEAD OF THE PLACE OF CONFINEMENT OF THE PERSON IS A SUBSTANTIAL COMPLIANCE AND MAY BE ACCEPTED IN LIEU OF AND AS A REPORT ON BEHALF OF THE GUARDIAN." SEE LETTER DATED JUNE 23, 1931, A-3551, TO THE SECRETARY OF THE NAVY. ALSO, SEE DECISION OF OCTOBER 17, 1935, A-65977, TO THE SECRETARY OF THE NAVY, WITH RESPECT TO PAY DUE A FLEET MARINE CORPS RESERVIST WHO WAS CONFINED AS A PATIENT IN SAINT ELIZABETH'S HOSPITAL, WASHINGTON, D.C. AND WHOSE SISTER, A RESIDENT OF VENTNOR CITY, NEW JERSEY, WAS APPOINTED HIS GUARDIAN. IN THAT CASE IT WAS STATED -

"TO ESTABLISH AUTHORITY TO MAKE PAYMENT OF THE MAN'S ACCRUED PAY TO HIS GUARDIAN THERE MUST BE EVIDENCE SHOWING APPOINTMENT AND QUALIFICATION OF THE GUARDIAN AND CONTINUANCE OF THE GUARDIANSHIP; ALSO THERE MUST BE EVIDENCE OF THE MAN'S CONTINUED EXISTENCE OVER THE PERIOD FOR WHICH PAYMENT IS TO BE MADE. IN THE SITUATION PRESENTED THE GUARDIAN AND HER WARD SEEM TO BE SEPARATELY SITUATED - THE GUARDIAN LIVING IN NEW JERSEY AND HER WARD IN THE DISTRICT OF COLUMBIA. TO PROPERLY QUALIFY TO SIGN THE MUSTER AND PAY CARD IN LIEU OF HER WARD THE GUARDIAN MUST HAVE PERSONAL KNOWLEDGE OF THE CONTINUED EXISTENCE OF HER WARD. IN THE CIRCUMSTANCES APPEARING THE MEDICAL OFFICER IN CHARGE OF NAVY AND MARINE PATIENTS AT ST. ELIZABETH'S HOSPITAL HAS PERSONAL KNOWLEDGE OF THE MAN'S STATUS. STATEMENT BY THAT OFFICER ON THE MUSTER AND PAY CARD RELATIVE TO THE MAN'S CONTINUED SERVICE STATUS AND REFERENCE TO THE ESTABLISHED GUARDIANSHIP, OVER HIS SIGNATURE, WOULD BE ACCEPTED BY THIS OFFICE AS ESTABLISHING THE MAN'S SERVICE STATUS FOR A SPECIFIC PAY PERIOD."

IT DOES NOT NECESSARILY FOLLOW HOWEVER, THAT WHERE A GUARDIAN DOES NOT HAVE ACTUAL CUSTODY OF THE PERSON OF THE WARD THAT A CERTIFICATE OF EXISTENCE WHICH MAY BE EXECUTED BY SUCH A GUARDIAN IS FOR THAT REASON ALONE INACCEPTABLE AS ESTABLISHING THE CONTINUED EXISTENCE OF THE WARD. THERE APPEARS TO BE NO SOUND REASON WHY A CERTIFICATE OF EXISTENCE EXECUTED BY SUCH A GUARDIAN SHOULD NOT BE ACCEPTED FOR PURPOSES OF PAYMENT OF RETIRED OR RETAINER PAY WHERE IT REASONABLY APPEARS FROM THE FACTS AND CIRCUMSTANCES IN THE PARTICULAR CASE THAT THE GUARDIAN WOULD HAVE IMMEDIATE NOTIFICATION OF THE DEATH OF THE WARD.

IN THE PRESENT INSTANCE IT IS SHOWN THAT THE GUARDIAN, MRS. MARY REPECKO, IS THE WIFE OF THE WARD AND THAT SHE HAS BEEN AUTHORIZED BY AN APPROPRIATE ORDER OF THE COURT WHICH APPOINTED HER AS HIS GUARDIAN TO EXPEND A CERTAIN AMOUNT FROM THE FUNDS OF THE INCOMPETENT'S ESTATE FOR THE SUPPORT AND MAINTENANCE OF HERSELF AND MINOR CHILD. THUS, IN ADDITION TO THE NORMAL INTEREST IN THE WELFARE OF HER WARD WHICH MRS. REPECKO AS GUARDIAN IS DUTY BOUND TO OBSERVE, THERE IS ALSO A DIRECT AND CLOSE FAMILY RELATIONSHIP AND DEPENDENCY STATUS. THE HUSBAND WARD LIVES WITH HIS MOTHER AND THE GUARDIAN WIFE SENDS HIM MONEY OCCASIONALLY. UNDER SUCH CIRCUMSTANCES, IT REASONABLY MAY BE ASSUMED, AT LEAST IN THE ABSENCE OF STRONG INDICATIONS TO THE CONTRARY, THAT THE WIFE WOULD BE NOTIFIED IMMEDIATELY OF HER HUSBAND'S DEATH. IN VIEW OF THE FOREGOING, A CERTIFICATE OF CONTINUED EXISTENCE OF HER WARD EXECUTED BY MRS. REPECKO ON OR AFTER THE LAST DAY OF A MONTH MAY BE ACCEPTED AS SUFFICIENT PROOF OF CONTINUED EXISTENCE THROUGH THAT MONTH. YOUR QUESTION IS ANSWERED ACCORDINGLY.